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Articles 91 - 120 of 589
Full-Text Articles in Entire DC Network
Rape Messaging, Alena Allen
Rape Messaging, Alena Allen
Fordham Law Review
When feminists began advocating for rape reform in the 1970s, the rape message was clear: rape was not a crime to be taken seriously because women lie. After decades of criminal law reform, the legal requirement that a woman vigorously resist a man’s sexual advances to prove that she was raped has largely disappeared from the statute books, and, in theory, rape shield laws make a woman’s prior sexual history irrelevant. Yet, despite what the law dictates, rape law reforms have not had a “trickle-down” effect, where changes in law lead to changes in attitude. Women are still believed to …
Public Dollars, Private Discrimination: Protecting Lgbt Students From School Voucher Discrimination, Adam Mengler
Public Dollars, Private Discrimination: Protecting Lgbt Students From School Voucher Discrimination, Adam Mengler
Fordham Law Review
More than a dozen states operate school voucher programs, which allow parents to apply state tax dollars to their children’s private school tuition. Many schools that participate in voucher programs are affiliated with religions that disapprove of homosexuality. As such, voucher-accepting schools across the country have admissions policies that discriminate against LGBT students and students with LGBT parents. Little recourse exists for students who suffer discrimination at the hands of voucher-accepting schools. This Note considers two ways to provide protection from such discrimination for LGBT students and ultimately argues that the best route is for an LGBT student to bring …
The Role Of Direct-Injury Government-Entity Lawsuits In The Opioid Litigation, Edgar Aliferov
The Role Of Direct-Injury Government-Entity Lawsuits In The Opioid Litigation, Edgar Aliferov
Fordham Law Review
The opioid epidemic has ravaged the United States, killing over 100 Americans every day and costing the nation upward of $90 billion a year. All branches and levels of the government have pursued measures to combat the epidemic and reduce its societal costs. Perhaps the most interesting response is the emergence of direct-injury government-entity lawsuits, which seek to recover damages from opioid companies that facilitated prescription pill addictions. Cities, counties, and states across the country are suing opioid manufacturers and distributors in unprecedented numbers. This Note explores the role of direct-injury government-entity claims as compared to other forms of civil …
Universal Representation, Lindsay Nash
Universal Representation, Lindsay Nash
Fordham Law Review
In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for noncitizens in removal proceedings. This effort, initially born out of a pilot project in New York City, has generated a host of replication projects throughout the nation and holds the promise of even broader expansion. But as it grows, this effort must confront challenges from within: the sort-of supporters who want to limit this representation system’s coverage in a number of ways, …
Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii
Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii
Fordham Law Review
In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for …
Immigration Blame, David S. Rubenstein
Immigration Blame, David S. Rubenstein
Fordham Law Review
This Article provides the first comprehensive study of blame in the U.S. immigration system. Beyond blaming migrants, we blame politicians, bureaucrats, and judges. Meanwhile, these players routinely blame each other, all while trying to avoid being blamed. As modeled here, these dynamics of “immigration blame” have catalyzing effects on the politics, policies, and structures of immigration law. Yoking key insights from a range of social sciences, this Article offers unique perspectives on the operation and design choices of the immigration system. Moreover, through a blame lens, the terms of debate over amnesty, immigration enforcement, the travel ban, sanctuary cities, and …
Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya Lovell Banks
Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya Lovell Banks
Fordham Law Review
The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only ongovernment “racial” definitions. Multiracial individuals should enjoy thefreedom to self-identify as they wish—and, like others, be afforded theprotections of antidiscrimination law.The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection” protecting the interests of white Americans from usurpation by non whites and, unless the creation of a separate multiracial …
Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray
Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray
Fordham Law Review
This Article argues that scholarly discussions about prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pretrial or questions of factual and legal guilt. Given that the primary role of the prosecutoris to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of nonconviction andconviction information. It offers a framework for exercising such discretion and, in doing so, hopes to initiate additional conversation about the role of prosecutors during the phases that follow arrest and prosecution.
Family Courts As Certifying Agencies: When Family Courts Can Certify U Visa Applications For Survivors Of Intimate Partner Violence, Sylvia Lara Altreuter
Family Courts As Certifying Agencies: When Family Courts Can Certify U Visa Applications For Survivors Of Intimate Partner Violence, Sylvia Lara Altreuter
Fordham Law Review
Undocumented intimate partner violence survivors living in the UnitedStates have limited options for immigration relief. One of the only avenuesopen to them is the U Visa: a nonimmigrant visa established by the BatteredImmigrant Women Protection Act of 2000. To apply for a U Visa, a survivormust prove to immigration authorities that she was the victim of a crime;suffered substantial abuse; and was, is,or is likely to be helpful in theinvestigation of her abuser. The statute requires that all U Visa applicationsbe certified by an appropriate officialwho testifies to the applicant’shelpfulness with the investigation. This certification is a tremendous obstaclefor survivors: …
The Influence Of Government Defenders On Affirmative Civil Rights Enforcement, Alexander A. Reinert
The Influence Of Government Defenders On Affirmative Civil Rights Enforcement, Alexander A. Reinert
Fordham Law Review
The focus of this brief Article will be on a conundrum, particularly in the area of civil rights enforcement: the federal government—in particular the DOJ—can be one of the most efficient and powerful vindicators of civil rights, while at the same time one of the most effective advocates for imposing barriers to affirmative civil rights enforcement. At the same time that the DOJ’s Civil Rights Division (CRD) is entering federal court to “vindicat[e] rights and remedy[] inequities,” attorneys in the Civil Division (either from Main Justice or in any number of U.S. Attorney’s offices) are appearing in court to prevent …
Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael L. Wells
Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael L. Wells
Fordham Law Review
The end result in Nelson will satisfy nearly everyone’s sense of basic justice, at least insofar as the monetary refund is concerned. Still, the case is interesting not for its outcome but because the Court’s analysis touches on, but fails to fully engage with, subtle and difficult questions of constitutional law. This Article examines three important aspects of the case—outside of the procedural due process balancing question—that receive little, if any, attention in the Court’s opinion. Part I shows that the Court’s procedural due process analysis skips over the logical first step and doctrinally harder question of whether Nelson had …
Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm
Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm
Fordham Law Review
With regard to criminal cases, the focus of this Article, judges face significant challenges in ruling on the admissibility of expert testimony that do not occur in most civil cases. This Article starts by describing these challenges and then offers some suggestions about what can be done to address them.
The Myth Of The Reliability Test, Brandon L. Garret, Chris Fabricant
The Myth Of The Reliability Test, Brandon L. Garret, Chris Fabricant
Fordham Law Review
The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing. This Article examines whether Rule 702 is in fact functioning as a reliability test, focusing on forensic evidence used in criminal cases …
Symposium On Forensic Expert Testimony, Daubert, And Rule 702, Daniel J. Capra
Symposium On Forensic Expert Testimony, Daubert, And Rule 702, Daniel J. Capra
Fordham Law Review
No abstract provided.
The Duty To Investigate And The Availability Of Expert Witnesses, Stephen A. Saltzburg
The Duty To Investigate And The Availability Of Expert Witnesses, Stephen A. Saltzburg
Fordham Law Review
To assess the likelihood that the proposed rule will assure better representation for criminal defendants, this Article proceeds as follows: Part I provides a general review of the effective assistance of counsel standard. Next, Part II focuses on the specific duty of defense counsel to investigate. Part III then examines the constitutional right of indigent criminal defendants to have expert assistance at government expense. Part IV proceeds to examine proposed Rule 707 and argues that it will not accomplish its purpose unless criminal defendants and their counsel have access to expert resources that match those relied upon by the government. …
Deceptively Simple: Framing, Intuition, And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty
Deceptively Simple: Framing, Intuition, And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty
Fordham Law Review
This Article explains how courts have skirted the reliability problem of FCM evidence and argues that judges perceive the question of FCM evidence to be a simple problem that cross-examination can solve. Relying on insights from cognitive science to help explain the resistance of the courts to FCM evidence challenges, the Article urges courts to recognize the complexity of FCM evidence and refocus on the danger such evidence poses for continued wrongful conviction. By framing the admissibility of FCM evidence as an “easy” question, courts are relying on heuristics—that is, shortcuts—to solve complex problems. As this Article explains, using heuristics …
The Critical Role Of Statistics In Demostrating The Reliability Of Expert Evidence, Karen Kafadar
The Critical Role Of Statistics In Demostrating The Reliability Of Expert Evidence, Karen Kafadar
Fordham Law Review
Federal Rule of Evidence 702, which covers testimony by expert witnesses, allows a witness to testify “in the form of an opinion or otherwise” if “the testimony is based on sufficient facts or data” and “is the product of reliable principles and methods” that have been “reliably applied.” The determination of “sufficient” (facts or data) and whether the “reliable principles and methods” relate to the scientific question at hand involve more discrimination than the current Rule 702 may suggest. Using examples from latent fingerprint matching and trace evidence (bullet lead and glass), I offer some criteria that scientists often consider …
The Intuitive Appeal Of Explainable Machines, Andrew D. Selbst, Solon Barocas
The Intuitive Appeal Of Explainable Machines, Andrew D. Selbst, Solon Barocas
Fordham Law Review
Algorithmic decision-making has become synonymous with inexplicable decision-making, but what makes algorithms so difficult to explain? This Article examines what sets machine learning apart from other ways of developing rules for decision-making and the problem these properties pose for explanation. We show that machine learning models can be both inscrutable and nonintuitive and that these are related, but distinct, properties. Calls for explanation have treated these problems as one and the same, but disentangling the two reveals that they demand very different responses. Dealing with inscrutability requires providing a sensible description of the rules; addressing nonintuitiveness requires providing a satisfying …
Implicit Racial Biases In Prosecutorial Summations: Proposing An Integrated Response, Praatika Prasad
Implicit Racial Biases In Prosecutorial Summations: Proposing An Integrated Response, Praatika Prasad
Fordham Law Review
Racial bias has evolved from the explicit racism of the Jim Crow era to amore subtle and difficult-to-detect form: implicit racial bias. Implicit racial biases exist unconsciously and include negative racial stereotypes andassociations. Everyone, including actors in the criminal justice system who believe themselves to be fair, possess these biases. Although inaccessible through introspection, implicit biases can easily be triggered through language. When trials involve Black defendants, prosecutors’ summations increasingly include racial themes that could trigger jurors’ implicit biases, lead to the perpetuation of unfair stereotypes, and contribute to racial injustice and disparate outcomes. This Note examines and critiques the …
Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile
Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile
Fordham Law Review
This Foreword provides an overview of Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Center on Race, Law & Justice. Even fifty years later, Loving provides ample foundation for an inquiry into the operation of race and racial inequality in the United States, which touches on the queries outlined above, as well as many others. In our view, a symposium focused on Loving makes a significant contribution by deepening scholarly analysis of that decision and by explicating the kinds of …
A Voice For One, Or A Voice For The People: Balancing Prosecutorial Speech Protections With Community Trust, Immanuel Kim
A Voice For One, Or A Voice For The People: Balancing Prosecutorial Speech Protections With Community Trust, Immanuel Kim
Fordham Law Review
Prosecutors, as representatives of the public in the criminal justice system, are the sole advocates for “the People” in a criminal case. Thus, prosecutors are expected to maintain a particular level of integrity that would ensure a fair and just representation of the People. Despite this expectation, the wide discretionary authority prosecutors hold makes it virtually impossible to regulate their conduct. Furthermore, the First Amendment of the U.S. Constitution protects many expressions of viewpoints, and such protections extend—albeit to a limited degree—to prosecutors, thereby giving them even more discretion in how they decide to handle their own cases. Nonetheless, the …
American Equal Protection And Global Convergence, Holning Lau, Hillary Li
American Equal Protection And Global Convergence, Holning Lau, Hillary Li
Fordham Law Review
Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First, the Court has begun to blur the line that it previously drew between facial discrimination and disparate impact. Second, the Court has begun to collapse its previously established tiered standards for reviewing discrimination. These two trajectories combine to produce a third trajectory of change: by …
Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn
Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn
Fordham Law Review
Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure—confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The contents of this draft …
Asset Forfeiture And Attorneys’ Fees: The Zero-Sum Game, Adam R. Cohen
Asset Forfeiture And Attorneys’ Fees: The Zero-Sum Game, Adam R. Cohen
Fordham Law Review
The history of asset forfeiture law spans almost as long as the history of the United States. However, in the last thirty years, the number of crimes for which asset forfeiture can be levied has grown exponentially both on the federal and state levels. As a result, a growing number of defendants face asset forfeiture. When these criminal defendants seek legal representation, they place their attorneys in a difficult legal and ethical position. Asset forfeiture has developed in such a way that the criminal defense attorney cannot provide her client with zealous advocacy if the attorney seeks to retain her …
Adjudication In The Age Of Disagreement, John Fabian Witt
Adjudication In The Age Of Disagreement, John Fabian Witt
Fordham Law Review
In the time I have here with you today I would like to offer the beginnings of an answer. It does not lie in the distance between the court’s traditions and Manton’s conduct. That would be too easy. At base, I think the answer lies in something far more subtle and interesting: the relationship between acentral tradition of the Second Circuit and one of the great questions we face as a society today. That question is how to deal with disagreement.
Bathroom Laws As Status Crimes, Stephen Rushin, Jenny Carroll
Bathroom Laws As Status Crimes, Stephen Rushin, Jenny Carroll
Fordham Law Review
A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals. By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize it. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would …
Reflections On The Challenge Of Inez Moore: Family Integrity In The Wake Of Mass Incarceration, Ann Cammett
Reflections On The Challenge Of Inez Moore: Family Integrity In The Wake Of Mass Incarceration, Ann Cammett
Fordham Law Review
The U.S. Supreme Court case Moore v. City of East Cleveland has long been celebrated as affirming constitutional rights related to family integrity. The Moore holding specifically confirmed the Court’s obligation to scrutinize housing ordinances that regulate a traditional family’s household composition. By comparison and extension, one might assume that alternative family formations would trigger similar scrutiny, but the Court has been loath to extend these protections. Apart from the Court’s failure to increase protections beyond traditional extended families, an interesting phenomenon has gone largely unexplored in this jurisprudential framework. In the wake of late twentieth-century mass incarceration, lawmakers and …
Riding The Wave Or Drowning?: An Analysis Of Gender Bias And Twombly/Iqbal In Title Ix Accused Student Lawsuits, Bethany A. Corbin
Riding The Wave Or Drowning?: An Analysis Of Gender Bias And Twombly/Iqbal In Title Ix Accused Student Lawsuits, Bethany A. Corbin
Fordham Law Review
This Article offers the first empirical analysis of dismissal trends in reverse Title IX cases and highlights that most courts erroneously dismiss these lawsuits at the 12(b)(6) stage. Through a misinterpretation of plausibility pleading, these courts hold that accused perpetrators have not shown causal evidence of discrimination at the outset of the lawsuit. This prodismissal approach, however, violates Swierkiewicz v. Sorema N.A.’s proclamation complaint. This Article proposes a more flexible causal pleading scheme that satisfies Twombly, Iqbal, and Swierkiewicz and ensures accused perpetrators receive their day in court. Alternatively, this Article argues for limited predismissal discovery in …
Jail Isolation After Kingsley: Abolishing Solitary Confinement At The Intersection Of Pretrial Incarceration And Emerging Adulthood, Deema Nagib
Fordham Law Review
In 2015, the U.S. Supreme Court held that allegations of excessive use of force in pretrial detention are subject to an objective standard. However, it is unclear whether the objective standard extends to claims arising out of different factual circumstances. The Second Circuit’s recent decision in Darnell v. Pineiro to extend Kingsley v. Hendrickson to conditions-of- confinement cases provides hope. This Note argues that Kingsley should extend to solitary confinement litigation—particularly the isolation of emerging adults in pretrial detention. Solitary confinement is a widespread practice in the criminal justice system, but the implications of its use in pretrial detention have …
Thinking Outside The Box: Reforming Commercial Discrimination Doctrine To Combat The Negative Consequences Of Ban-The-Box Legislation, Nina Kucharczyk
Thinking Outside The Box: Reforming Commercial Discrimination Doctrine To Combat The Negative Consequences Of Ban-The-Box Legislation, Nina Kucharczyk
Fordham Law Review
This Note suggests a new approach to address the unintended consequences of ban-the-box legislation. The solution to combat unconscious discrimination during the hiring process is not to eliminate ban- the-box laws entirely; instead, lawmakers must modernize and strengthen Commercial discrimination doctrine to empower racial minorities who suspect discrimination and to ensure employers are critically analyzing their hiring processes.