Digital Commons Network^™

The Value In Secrecy, Camilla A. Hrdy

Fordham Law Review

Trade secret law is seen as the most inclusive of intellectual property regimes. So long as information can be kept secret, the wisdom goes, it can be protected under trade secret law, even if patent and copyright protections are unavailable. But keeping it a secret does not magically transform information into a trade secret. The information must also derive economic value from being kept secret from others. This elusive statutory requirement—called “independent economic value”—might at first glance seem redundant, especially in the context of litigation. After all, if information had no value, why would the plaintiff have bothered to keep …

The Collateral Effects Of Criminal Orders Of Protection On Parent Defendants In Cases Of Intimate Partner Violence, Isabelle Leipziger

Fordham Law Review

Intimate partner violence is a serious public health problem that affects people from all cultures, ethnicities, and socioeconomic backgrounds. Although courts have historically refused to get involved due to the intimate and private nature of these offenses, widespread reforms have led to some judicial intervention. Through the issuance of criminal orders of protection, courts have alleviated some of the difficulties associated with prosecuting cases of intimate partner violence and have provided immediate protection for victims. However, criminal orders of protection also pose significant challenges for defendants who live and co-parent with their accuser.

In New York, issuance of these orders …

Sentencing After Stash Houses: Addressing Manipulation Of The Federal Sentencing Guidelines, Elizabeth Foy Gudgel

Fordham Law Review

In the realm of undercover work, law enforcement has broad discretion to define the contours of a criminal offense. Due to quantity-based provisions in the Federal Sentencing Guidelines, federal agents or their informants may coerce an individual into a higher sentencing range by escalating their behavior to align with mandatory minimums or quantifiable offense levels. Because this type of offense is police-initiated, law enforcement has discretion to select the individuals subject to these tactics and influence their eventual sentences. The defenses of sentencing entrapment and sentencing manipulation are meant to combat this discretion. However, these defenses are rarely invoked successfully …

Second Service: 28 U.S.C. § 1448 And State Court Service Of Process After Removal, Leigh Forsyth

Fordham Law Review

28 U.S.C. § 1448 governs the requirements of process after removal, providing that when defendants are not completely or perfectly served prior to removal, plaintiffs may complete such process or service, or new process may be issued in the same manner as in cases originally filed in the district court. There remains an open question as to whether state court service issued prior to removal, but served after removal, retains its efficacy in federal court under § 1448. This open question has led to divergent interpretations among district courts, with differing consequences. As of this Note’s publication, at least twenty-seven …

Does Brady Apply To Supervised Release Revocation Hearings?, Alex Breindel

Fordham Law Review

Many federal offenders face a term of supervised release upon leaving prison. The successor to the federal parole system, supervised release places conditions upon individuals’ freedom. Violation of a condition may result in revocation of release and reimprisonment. To revoke release, the government must prove to a judge by a preponderance of the evidence that a violation occurred. At this proceeding, known as a “revocation hearing,” the individual may contest the alleged violation and present their own evidence.

Under Brady v. Maryland and its progeny, due process requires the government to disclose material exculpatory evidence to criminal defendants. This Note …

Decarceration's Inside Partners, Seema Tahir Saifee

Fordham Law Review

This Article examines a hidden phenomenon in criminal punishment. People in prison, during their incarceration, have made important—and sometimes extraordinary—strides toward reducing prison populations. In fact, stakeholders in many corners, from policy makers to researchers to abolitionists, have harnessed legal and conceptual strategies generated inside the walls to pursue decarceral strategies outside the walls. Despite this outside use of inside moves, legal scholarship has directed little attention to theorizing the potential of looking to people on the inside as partners in the long-term project of meaningfully reducing prison populations, or “decarceration.”

Building on the change-making agency and revolutionary ideation inside …

Police Vehicle Searches And Racial Profiling: An Empirical Study, Griffin Edwards, Stephen Rushin

Fordham Law Review

In 1981, the U.S. Supreme Court held in New York v. Belton that police officers could lawfully search virtually anywhere in a vehicle without a warrant after the arrest of any occupant in the vehicle. Then, in 2009, the Court reversed course in Arizona v. Gant, holding that police could only engage in vehicle searches after such arrests in a smaller number of extenuating circumstances. This series of cases became a flash point for the broader debate about the regulation of policing. Law enforcement groups argued that administratively complex rules, like those established in Gant, risk officer safety. …

Criminal Justice Expertise, Benjamin Levin

Fordham Law Review

For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions, and (2) the democratic, which treats criminal policy as insufficiently responsive …

From Empathy Gap To Reparations: An Analysis Of Caregiving, Criminalization, And Family Empowerment, Charisa Smith

Fordham Law Review

America’s legacy of violent settler colonialism and racial capitalism reveals a misunderstood and neglected civil rights concern: the forced separation of families of color and unwarranted state intrusion upon caregiving through criminalization and surveillance. The War on Drugs, the Opioid Crisis, and the COVID-19 pandemic are a few examples demonstrating the precariousness of our nation’s collective empathy well toward caregivers and our tattered social safety net. In fact, these instances illuminate what this Essay coins an “empathy gap” in perception when the general public, policy makers, and the mainstream media view similarly situated families with different identities. Ironically, the COVID-19 …

Parenting While Black, R. A. Lenhardt

Fordham Law Review

Changes in law and policy—not to mention developments such as the COVID-19 pandemic and its devastating effects on families—raise important questions about how to define parental rights and how to best support parents and children during these challenging times. The Symposium also presented important questions about issues of race, gender, sexuality, and class in our modern context. Even more salient in this space are issues of race. Here, as in other contexts, Black families, like my grandmother’s and so many others, are the “canaries in the mine.” Their experiences provide us with important insight into the signs of danger facing …

Chilling Parental Rights, Meghan M. Boone

Fordham Law Review

Despite this clear lack of consensus as to what constitutes ideal parenting, state actors have increasingly intervened in families when they feel that a particular parenting choice is wrong. These interventions increasingly occur through the use of criminal law and punishment.5 This criminalization extends beyond prosecutions for what would traditionally be considered abuse or neglect to a wide range of parenting choices that do not rise to this level. Although many scholars have critiqued this criminalization of parenting, the focus of these critiques has centered on the harm to the families that are actually criminalized and on how a disproportionate …

Foreword, Bennett Capers, Bruce A. Green

Fordham Law Review

Is there such a thing as subversive lawyering? And if so, what is it? These are the questions that motivate this colloquium issue. To be sure, other, similar terms exist and have been explicated. Movement lawyering. Rebellious lawyering. Resistance lawyering. Indeed,we were particularly inspired by Daniel Farbman’s article Resistance Lawyering, in which he uncovers the stories of abolitionist lawyers who, confronting the Fugitive Slave Act of 1850, “employed every means at their disposal to frustrate, delay, and dismantle the system within which they were practicing.” But still, we wondered if subversive lawyering might be something different. Something akin to resistance …

Progressive Prosecutors Are Not Trying To Dismantle The Master’S House, And The Master Wouldn’T Let Them Anyway, Paul Butler

Fordham Law Review

The first thing to note about Audre Lorde’s famous phrase “the master’s tools will never dismantle the master’s house” is that it cannot literally be true. If tools can dismantle the master’s house, the master’s own tools would be good as anyone’s. The main problem would not be that the tools don’t work, but rather how to get them to the people who most need the master’s house dismantled—the enslaved ones. But the considerable work that the phrase does in social justice movements and critical theory is figurative rather than literal. It is usually intended as a rebuke of liberal …

No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, Andrew Manuel Crespo

Fordham Law Review

The American penal system is a system of massive, racially unjust incarceration. It is also, to quote the U.S. Supreme Court, a “system of pleas.” The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths. Mass incarceration is a predictable result. But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point. That Achilles’ heel is exposed once we see people facing prosecution not as isolated individuals but …

Racial Allies, Atinuke O. Adediran

Fordham Law Review

Racial allies are white individuals and institutions that actively work to dismantle systems of racial inequality and the consequences of poverty that disproportionately impact communities of color and that are willing to both confer and share power with members of subjugated groups. There is no other sector of the legal profession that professes to be racial allies more than individuals and institutions within the public interest law sector. Yet, these institutions that address structural racism and disproportionately serve communities of color appear not to share power with racial and ethnic minorities. The public interest law sector has been at the …

Opening The Safety Valve: A Second Look At Compassionate Release Under The First Step Act, Michael T. Hamilton

Fordham Law Review

Under federal law, judges are generally prohibited from changing a sentence once it has been imposed. Compassionate release, to put it simply, provides a “safety valve” against this general principle, allowing federal judges to reduce a prisoner’s sentence when it is warranted by “extraordinary and compelling reasons.” For the past thirty years, statutory and bureaucratic roadblocks made compassionate release an unlikely avenue for prisoners to receive sentence reductions. With the passage of the First Step Act of 2018, the U.S. Congress made the first significant changes to the compassionate release statute in decades, permitting defendants for the first time to …

The First Step Act And Individualized Review: Must Judges Apply The 18 U.S.C.   3553(A) Factors To Section 404 Petitioners?, Kielan Barua

Fordham Law Review

In 2010, the U.S. Congress amended the notorious mandatory minimum sentencing structure for crack cocaine offenses in response to the decades of harm it had caused. As the amendment was not retroactive, Congress passed the First Step Act of 2018 to allow prisoners incarcerated before 2010 to petition their original sentencing court for discretionary relief based on the new penalties. However, what exactly these courts must do when deciding whether to grant relief has divided the circuits. Some circuits require an up-to-date consideration of defendants’ individual mitigating circumstances and whether their sentences are the minimum necessary to satisfy the purposes …

Bargaining For Abolition, Zohra Ahmed

Fordham Law Review

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories. Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes. The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor to keep …

Who Tells Their Stories?: Examining The Role, Duties, And Ethical Constraints Of The Victim’S Attorney Under Model Rule 3.6, Ksenia Matthews

Fordham Law Review

In U.S. criminal proceedings, the prosecution typically presents the victim’s story. However, as part of the victims’ rights movement, victims are striving to make their voices heard and tell their stories in their own words. Yet, despite the growing role victims occupy in criminal proceedings and the rights afforded to victims by the Crime Victims’ Rights Act and its state counterparts, victims still remain nonparties in criminal proceedings. As victims increasingly retain private lawyers to help navigate criminal proceedings and represent their interests, it is important to understand how these lawyers fall within the traditional two-party adversary system. Limited by …

The Criminalization Of Foreign Relations, Steven Arrigg Koh

Fordham Law Review

Overcriminalization has rightly generated national condemnation among policymakers, scholars, and practitioners alike. And yet, such scholarship often assumes that the encroachment of criminal justice stops at our borders. This Article argues that our foreign relations are also at risk of overcriminalization due to overzealous prosecution, overreaching legislation, and presidential politicization—and that this may be particularly problematic when U.S. criminal justice supplants certain nonpenal U.S. foreign policies abroad. This Article proposes three key reforms—presidential distancing, prosecutorial integration, and legislative de-escalation—to assure a principled place for criminal justice in foreign relations.

Media Consolidation & Political Polarization: Reviewing The National Television Ownership Rule, Mary R. Hornak

Fordham Law Review

Local television plays an important role in the democratic society. The medium is viewed as being trustworthy, and it is accessible and uniquely situated to report on matters of local interest. Among other roles, the Federal Communications Commission (FCC) regulates firms’ ownership interests in the media through regulations that permit a certain degree of consolidation at both the local and national levels. Since 1996, Congress has mandated that the FCC regularly review broadcast media ownership regulations. Originally, this requirement mandated biennial review. In 2004, however, Congress revised the mandate, requiring review on a quadrennial basis and excluding from such review …

Compulsory Voting And Black Citizenship, Ekow N. Yankah

Fordham Law Review

Protesting Black votes is part of our history of rejecting Black Americans as legitimate wielders of political power and contesting the fullness of Black citizenship. Obviously, hostility toward viewing Black Americans as deserving of the rights owed to other Americans is present in nearly every aspect of American life. But, among the oldest and most contentious hostilities—from the Civil War to Reconstruction to the Civil Rights Movement to contemporary voter suppression efforts—has been the resistance against Black votes. Any opportunity to quell this locus of racial animus calls for urgent address. Particularly, at this moment, when long-standing prophylactic measures such …

An Uncertain Participant: Victim Input And The Black Box Of Discretionary Parole Release, Noah Epstein

Fordham Law Review

Little is understood about the parole release process, as state parole boards predominately operate with incredible discretion and keep their deliberations and rationales hidden from public view. Even less is understood about the intersection of the inscrutable parole release decision-making process and victim rights. As the victim rights movement mobilized in the 1970s, victims, instead of remaining passive witnesses, came to wield significant influence over the release decision process. Today, victim participation in parole proceedings is increasing as most parole boards proclaim how important victims’ voices are and, in turn, actively incorporate victim input into their release calculus. Yet, it …

Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway

Fordham Law Review

Domestic violence is a global issue, but in the United States it is especially lethal. Hundreds of women are shot and killed in the United States by intimate partners every year. Federal and state legislatures have enacted laws that focus on the issue of domestic violence and gun violence. In 1996, Congress passed the Lautenberg Amendment to the Gun Control Act of 1968, which permanently prohibits individuals convicted of domestic violence misdemeanors from possessing firearms. Twenty-nine states and the District of Columbia have also enacted laws that mirror the Lautenberg Amendment. In many jurisdictions, misdemeanor domestic violence convictions carry a …

Lgbtqia+ Public Accomodation Cases: The Battle Between Religious Freedom And Civil Rights, Jamie Reinah

Fordham Law Review

Protections for LGBTQIA+ Americans have greatly expanded since the U.S. Supreme Court recognized marriage equality in Obergefell v. Hodges, but the debate about whether business owners can refuse to serve LGBTQIA+ couples on religious grounds has grown more bitterly divided. The free exercise of religion is a fundamental constitutional right, and it is strongly protected at both the federal and state levels. At the same time, LGBTQIA+ couples are protected from receiving unequal treatment in public places under state antidiscrimination laws. The clash between religion and LGBTQIA+ rights has culminated in a line of cases that present difficult questions …

Corporate Law's Forgotten Constituents: Reimagining Corporate Lawyering In Routine Business Contexts, Melissa E. Romanovich

Fordham Law Review

Although they are artificial entities, corporations are operated, managed, and represented by people. Sometimes, these people have personal interests at stake—interests that are separate and distinct from the corporation’s interests and that arise from these people acting in their corporate roles. These personal interests and related potential liabilities range from employment concerns and civil liability to criminal prosecution and imprisonment. Until now, however, the law has determined that, in most situations, a corporation’s lawyer neither represents the corporation’s constituents nor their personal interests. The corporate lawyer, therefore, has the challenging role of discharging the proper ethical and legal obligations to …

Collaterally Attacking The Prison Litigation Reform Act's Application To Meritorious Prisoner Civil Litigation, Melissa Benerofe

Fordham Law Review

Earlier this year, the Prison Litigation Reform Act (PLRA) reached its twenty-fifth birthday, reinvigorating discussion on its effects on people in prison and the U.S. criminal justice system more broadly. This Note examines how the PLRA deters and obstructs prisoners’ ability to file meritorious civil rights lawsuits regarding the conditions of their confinement. The PLRA does so primarily through four of its provisions, which this Note refers to as the “access provisions.” The access provisions include: (1) the exhaustion of administrative remedies; (2) the filing fee provision; (3) the three-strikes rule; and (4) limitations on attorney’s fees. This Note argues …

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Fordham Law Review

No abstract provided.

Transgender Inmates’ Right To Gender Confirmation Surgery, Marissa Luchs

Fordham Law Review

The Eighth Amendment prohibits cruel and unusual punishment. It ensures that the state’s power to punish is exercised within the bounds of evolving standards of human decency. At the time of its enactment in 1791, the Eighth Amendment merely protected against torture and other physically barbarous treatments. However, as society’s standards of decency changed, so too did the scope of the Eighth Amendment. Today, among other protections, the Eighth Amendment mandates that prisons provide inmates with adequate conditions of confinement. This includes an obligation on the part of the prison to provide adequate medical care. But a great deal of …

Local Offenses, Brenner M. Fissell

Fordham Law Review

Criminal law is generally thought to exist within two jurisdictional levels: federal and state. Neglected in the legal mind, and in legal scholarship, is the vast body of criminal law promulgated by local governments. While one should ask “what” is being criminalized by cities, towns, and villages, one should also ask “how” these offenses are written. The offense-drafting practices reflected in state criminal law have been extensively studied, but this has never been attempted for local offenses. This Article undertakes that task. After surveying a large number of local criminal codes, this Article concludes that local offenses routinely fail to …