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Articles 1 - 30 of 98
Full-Text Articles in Law
Secret Faits Accomplis: Declination Decisions, Nonprosecution Agreements, And The Crime Victim’S Right To Confer, Zulkifl M. Zargar
Secret Faits Accomplis: Declination Decisions, Nonprosecution Agreements, And The Crime Victim’S Right To Confer, Zulkifl M. Zargar
Fordham Law Review
The state’s monopoly power over the institution of prosecution is a feature as familiar as any in the American criminal justice system. That the criminal proceeding is between the state and the defendant leaves little doubt as to the identities of the victimized interest and the offender. But, in avenging societal harm alone, the criminal process treats another victim—the crime victim— as an outcast. Beginning in the 1970s, the victim’s rights movement mobilized to address this institutional neglect, and, by most accounts, it has triumphed. Federal and state victim’s rights laws now empower victims to attend criminal proceedings, deliver impact …
Accidental Vitiation: The Natural And Probable Consequence Of Rosemond V. United States On The Natural And Probable Consequence Doctrine, Evan Goldstick
Accidental Vitiation: The Natural And Probable Consequence Of Rosemond V. United States On The Natural And Probable Consequence Doctrine, Evan Goldstick
Fordham Law Review
Recently, the Court decided Rosemond v. United States. In Rosemond, the Court had to determine the requisite mental state for aiding and abetting a particular federal crime. While the Court had the opportunity to weigh in on the natural and probable consequence doctrine in Rosemond, it declined to do so in footnote 7. This Note reviews the natural and probable consequence doctrine, its reception by courts and commentators, and the Court’s holding in Rosemond. This Note then applies the holding of Rosemond to several federal cases that employed the doctrine to determine whether, despite footnote 7, …
Read This Note Or Else!: Conviction Under 18 U.S.C. § 875(C) For Recklessly Making A Threat, Maria A. Brusco
Read This Note Or Else!: Conviction Under 18 U.S.C. § 875(C) For Recklessly Making A Threat, Maria A. Brusco
Fordham Law Review
What does it mean to make a threat, and under what circumstances can a speaker be convicted for making one? This Note examines these questions in light of Elonis v. United States, a Supreme Court case decided in June 2015. There, the Court held that when a speaker subjectively intends a statement be taken as a threat or knows that it will be taken as a threat, she may be convicted under 18 U.S.C. § 875(c). The Court did not decide whether a speaker who recklessly makes a threat may be convicted under the statute. This Note argues that …
Guns And Drugs, Benjamin Levin
Guns And Drugs, Benjamin Levin
Fordham Law Review
This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …
Criminal Corruption: Why Broad Definitions Of Bribery Make Things Worse, Albert W. Alschuler
Criminal Corruption: Why Broad Definitions Of Bribery Make Things Worse, Albert W. Alschuler
Fordham Law Review
Although the law of bribery may look profoundly underinclusive, the push to expand it usually should be resisted. This Article traces the history of two competing concepts of bribery—the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, when applied to officials other than unelected judges, “intent to influence” is now an untenable standard. This standard cannot be taken literally. This Article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read …
When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber
When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber
Fordham Law Review
Focusing on criminal law and procedure in particular, this Article seeks to expose various tensions in critical race theorizing and progressive theorizing more broadly, offer some suggestions for a unifying methodology of critical criminal law analysis, and discuss where empirical study might fit into this new program. Progressive (critical race and feminist) theorizing on criminal law is not only subject to the competing frames of critique and formalism, it also exists within an overarching American criminal law culture that can eclipse both concerns over rights violations and structural injustice. The U.S. penal system has become a “peculiar institution” and a …
Can Banks Be Liable For Aiding And Abetting Terrorism?: A Closer Look Into The Split On Secondary Liability Under The Antiterrorism Act, Alison Bitterly
Can Banks Be Liable For Aiding And Abetting Terrorism?: A Closer Look Into The Split On Secondary Liability Under The Antiterrorism Act, Alison Bitterly
Fordham Law Review
The Antiterrorism Act of 1990 (ATA) explicitly authorizes a private cause of action for U.S. nationals who suffer an injury “by reason of an act of international terrorism.” ATA civil litigation has increased dramatically following September 11, 2001—and banks, because of their deep pockets, have emerged as an increasingly popular target. Courts are divided concerning the scope of liability under the statute, specifically over whether the ATA authorizes a cause of action premised on secondary liability. Under a secondary liability theory, a plaintiff could argue that a bank, through providing financial services to a terrorist client, aided and abetted an …
From Sounds Bites To Sound Policy: Reclaiming The High Ground In Criminal Justice Policy-Making, Anthony C. Thompson
From Sounds Bites To Sound Policy: Reclaiming The High Ground In Criminal Justice Policy-Making, Anthony C. Thompson
Fordham Urban Law Journal
In this article, the author contemplates the way the criminal justice system is portrayed in the media and suggests how the media's emphasis on "sound bites" - which makes it difficult to separate fact from hype - has had significant policy ramifications. The author makes a point of exploring the many ways that conceptions of crime are formed and influenced, as well as how the media has shaped legislation. In the author's opinion, in order to curb the excessive influence of most mainstream representations of the criminal justice system, there must be some mechanism for oversight of both the media …
Inherently Female Cases Of Child Abuse And Neglect: A Gender-Neutral Analysis, Suzanne D'Amico
Inherently Female Cases Of Child Abuse And Neglect: A Gender-Neutral Analysis, Suzanne D'Amico
Fordham Urban Law Journal
Tabitha Walrond was a young mother who was found guilty of criminally negligent homicide after her two-month-old son died from malnutrition. This Comment examines how the portrayal of Ms. Walrond by the defense and prosecution, and in the media reflects gender stereotypes in the criminal law and society. The Comment posits the notion that Ms. Walrond was portrayed as either a good or bad mother and once so labeled, the judge, jury and prosecution view her as such, while ignoring her specific situation. As a result, a defendant such as Ms. Walrond may be treated either too harshly or too …
Dna And Due Process, Brandon L. Garrett
Dna And Due Process, Brandon L. Garrett
Fordham Law Review
The U.S. Supreme Court in District Attorney’s Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not “constitutionalize the issue” by announcing an unqualified freestanding right, Chief Justice Roberts’s majority opinion proceeded to carefully fashion an important, …
Access To Justice: Some Historical Comments, Lawrence M. Friedman
Access To Justice: Some Historical Comments, Lawrence M. Friedman
Fordham Urban Law Journal
This article sets out some preliminary thoughts on what "access to justice" might mean, and comment on how access to justice has fared historically.
Defending Demaree: The Ex Post Facto Clause's Lack Of Control Over The Federal Sentencing Guidelines After Booker, Daniel M. Levy
Defending Demaree: The Ex Post Facto Clause's Lack Of Control Over The Federal Sentencing Guidelines After Booker, Daniel M. Levy
Fordham Law Review
In 2005, the U.S. Supreme Court held that the Federal Sentencing Guidelines violated a defendant’s Sixth Amendment right to a jury trial because they allowed a judge to depart from a mandatory range based on facts not presented to a jury. As a solution, the Court modified the Guidelines to be “advisory,” yet curiously held that sentences were still subject to appellate review for reasonableness. Given this tension, U.S. courts of appeals are split on whether the Guidelines are “laws,” subject to the Ex Post Facto Clause of the U.S. Constitution. This Note argues that the Guidelines are advisory, given …
Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko
Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko
Fordham Law Review
DNA plays an indespensable role in modern law enforcement, and courts uniformly find that DNA extraction statutes targeting criminals satisfy the Fourth Amendment. Courts differ on which Fourth Amendment test--totality of the circumstances or special needs--ought to be employed in this context. This Note concludes the courts should apply Samson v. California's less stringent totality of the circumstances test to analyze DNA extraction statutes in order to maintain the integrity of the special needs test.
Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax, Jr.
Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax, Jr.
Fordham Law Review
Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to nonconstitutional trial errors until forty years ago, when the U.S. Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees--the Sixth Amendment right to jury trial being no exception. However, while a trade-off between important process values and the Constitution's protection of individual rights is inherent in the …
To Act Or Not To Act: Will New York's Defeated Death Penalty Be Resurrected? , Diana N. Huffman
To Act Or Not To Act: Will New York's Defeated Death Penalty Be Resurrected? , Diana N. Huffman
Fordham Urban Law Journal
Capital punishment has always been a topic of controversy in the United States. The debate about the death penalty, its value as a way to permanently incapacitate society's most dangerous criminals and its effectiveness as a deterrent to violent crime, has increased. This phenomenon is particularly visible in New York State, where, in 2004, the New York Court of Appeals struck down the State's death penalty statute as invalid under the New York Constitution. This Note describes the evolution of New York's 1995 death penalty statute, analyzing the way in which the state legislature could respond to the statute's unconstitutionality, …
Working Through The Confrontation Clause After Davis V. Washington, Andrew Dylan
Working Through The Confrontation Clause After Davis V. Washington, Andrew Dylan
Fordham Law Review
In Davis v. Washington, the U.S. Supreme Court clarified its newly minted approach to the Sixth Amendment's Confrontation Clause, set out just two years earlier in Crawford v. Washington. While Davis provides some guidance to the lower courts in their attempts to separate “testimonial” from “nontestimonial” statements--the hinge on which confrontation jurisprudence now swings--it falls short of offering a bright-line rule. In fact, Davis may be construed as endorsing not one but three tests for determining whether a statement is testimonial, prompting confusion and inconsistency in the lower courts. This Note attempts to sort through the alternatives in an effort …
Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas
Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas
Fordham Law Review
No abstract provided.
Federal Sentencing Under "Advisory" Guidelines: Observations By District Judges, Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerard E. Lynch, Gregory A. Presnell
Federal Sentencing Under "Advisory" Guidelines: Observations By District Judges, Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerard E. Lynch, Gregory A. Presnell
Fordham Law Review
No abstract provided.
Underenforcement, Alexandra Natapoff
Too Little, Too Late: Ineffective Assistance Of Counsel, The Duty To Investigate, And Pretrial Discovery In Criminal Cases, Jenny Roberts
Too Little, Too Late: Ineffective Assistance Of Counsel, The Duty To Investigate, And Pretrial Discovery In Criminal Cases, Jenny Roberts
Fordham Urban Law Journal
Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, criminal discovery result in a much more limited flow of information. Many commentators, for many years, have called for the liberalization of criminal discovery statutes and rules. Indeed, some states have heeded the call. But about a dozen states follow the highly restrictive federal rule, which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to …
Advocacy And Compassion In The Jewish Tradition, Daniel B. Sinclair
Advocacy And Compassion In The Jewish Tradition, Daniel B. Sinclair
Fordham Urban Law Journal
This essay surveys the Talmudic sources dealing with the issue of advocacy in Jewish law, and highlights the element of compassion that underlies the permissive approach to advocacy in the Talmudic sources. It outlines post-Talmudic developments with a special emphasis on the way in which the medieval authorities synthesized the views of the two Talmuds on the question of advocacy, and how later halakhists pushed this synthesis to its limits in order to pave the way for the emergence of the rabbinical pleader of modern times. This essay concludes with a brief remark on the link between compassion and advocacy …
Transformative Criminal Defense Practice: Truth, Love, And Individual Rights- The Innovative Approach Of The Georgia Justice Project, Douglas Ammar, Tosha Downey
Transformative Criminal Defense Practice: Truth, Love, And Individual Rights- The Innovative Approach Of The Georgia Justice Project, Douglas Ammar, Tosha Downey
Fordham Urban Law Journal
Georgia Justice Project has a unique approach to criminal defense and rehabilitation which is based on a relationship and community-oriented ethic. Focused on only accepting clients who are willing to make a serious commitment to changing their lives, the GJP ensures that the client moves beyond social, emotional and personal challenges that contributed to their legal problems. This article describes the unique factors of the GJP that have contributed to its continued success.
"Forgive Me Victim For I Have Sinned": Why Repentance And The Criminal Justice System Do Not Mix - A Lesson From Jewish Law, Cheryl G. Bader
"Forgive Me Victim For I Have Sinned": Why Repentance And The Criminal Justice System Do Not Mix - A Lesson From Jewish Law, Cheryl G. Bader
Fordham Urban Law Journal
This essay will critique the Georgia Justice Project's encouragement of confessions in the context of the secular American justice system via comparison with the treatment of confessions under ancient Jewish law. Specifically, this essay posits that the absolute prohibition on the use of confessions in a legal system firmly rooted in religious values recognizes the danger inherent in combining the act of speaking of one's sins for religious penance with the use of such confessions in the criminal adjudication process. The Jewish legal system avoids these inherent dangers by completely devaluing the accused's confession. The GJP, in contrast, merges the …
What Were They Thinking?: The Mental States Of The Aider And Abettor And The Causer Under Federal Law, Baruch Weiss
What Were They Thinking?: The Mental States Of The Aider And Abettor And The Causer Under Federal Law, Baruch Weiss
Fordham Law Review
No abstract provided.
Human Rights And Human Wrongs: Is The United States Death Penalty System Inconsistent With International Human Rights Law, Warren Allmand, Stephen B. Bright, Rubin "Hurricane" Carter, Dorean Marguerite Koenig, William A. Schabas, W. L. Seriti
Human Rights And Human Wrongs: Is The United States Death Penalty System Inconsistent With International Human Rights Law, Warren Allmand, Stephen B. Bright, Rubin "Hurricane" Carter, Dorean Marguerite Koenig, William A. Schabas, W. L. Seriti
Fordham Law Review
No abstract provided.
Ethics, Law Enforcement, And Fair Dealing: A Prosecutor's Duty To Disclose Nonevidentiary Information, David Aaron
Ethics, Law Enforcement, And Fair Dealing: A Prosecutor's Duty To Disclose Nonevidentiary Information, David Aaron
Fordham Law Review
No abstract provided.
Rethinking The Tough Sentencing Of Teenage Neonaticide Offenders In The United States, Christine A. Fazio, Jennifer L. Comito
Rethinking The Tough Sentencing Of Teenage Neonaticide Offenders In The United States, Christine A. Fazio, Jennifer L. Comito
Fordham Law Review
No abstract provided.
Imposing Duties On Witnesses To Child Sexual Abuse: A Futile Response To Bystander Indifference, Jessica R. Givelber
Imposing Duties On Witnesses To Child Sexual Abuse: A Futile Response To Bystander Indifference, Jessica R. Givelber
Fordham Law Review
No abstract provided.
Religion And The Public Defender, Sadiq Reza
Religion And The Public Defender, Sadiq Reza
Fordham Urban Law Journal
This essay argues that the public defender should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional responsibility, except for imminent death or serious bodily harm to another. Having accepted the responsibility of representing indigent criminal defendants, the public defender is duty-bound to not compromise that responsibility for competing religious obligations. This argument rests on four premises: (1) the public defender occupies a unique position in our legal system, and options available to private interest lawyers or other clients should not …
Trade Secrets: How Well Should We Be Allowed To Hide Them? The Economic Espionage Act Of 1996, Rochelle Cooper Dreyfuss
Trade Secrets: How Well Should We Be Allowed To Hide Them? The Economic Espionage Act Of 1996, Rochelle Cooper Dreyfuss
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.