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Smashing The Tragic Illusion Of Justice: The Reprehensibility Of The Death Penalty In Virginia, Meagan E. Costello 2017 St. John's University School of Law

Smashing The Tragic Illusion Of Justice: The Reprehensibility Of The Death Penalty In Virginia, Meagan E. Costello

The Catholic Lawyer

No abstract provided.


Capital Punishment In The Age Of Terrorism, Norman L. Greene, Norman Redlich, David Bruck, Paul Saunders, Richard Weisberg, Kenneth Roth 2017 St. John's University School of Law

Capital Punishment In The Age Of Terrorism, Norman L. Greene, Norman Redlich, David Bruck, Paul Saunders, Richard Weisberg, Kenneth Roth

The Catholic Lawyer

No abstract provided.


An Empirical Look At Commander Bias In Sexual Assault Cases, Eric R. Carpenter 2017 FIU College of Law

An Empirical Look At Commander Bias In Sexual Assault Cases, Eric R. Carpenter

Eric R. Carpenter

In response to the American military’s perceived inability to handle sexual assault cases, the Uniform Code of Military Justice is undergoing its most significant restructuring since its creation in 1950. Critics point to the high rates of sexual assault case attrition as a sign that the system is failing sexual assault victims. The theory is that commanders are predisposed to believe the offenders and to blame the victims. This bias then causes high levels of attrition as the commanders undervalue the cases and divert them from the legal process. This study tests that causal inference. It measures the attrition ...


Bringing Penance Back To The Penitentiary: Using The Sacrament Of Reconciliation As A Model For Restoring Rehabilitation As A Priority In The Criminal Justice System, John Celichowski, O.F.M Cap. 2017 St. John's University School of Law

Bringing Penance Back To The Penitentiary: Using The Sacrament Of Reconciliation As A Model For Restoring Rehabilitation As A Priority In The Criminal Justice System, John Celichowski, O.F.M Cap.

The Catholic Lawyer

No abstract provided.


Introducing Plea Bargaining Into Post-Conflict Legal Systems, Cynthia Alkon, Ena Dion 2017 Texas A&M University School of Law

Introducing Plea Bargaining Into Post-Conflict Legal Systems, Cynthia Alkon, Ena Dion

Cynthia Alkon

Criminal justice systems around the world face overwhelming caseloads and ever-increasing pressure to handle more. This pressure can be even more serious in post-conflict countries that face additional problems such as limited resources and fragile political environments. In overloaded criminal justice systems it may be difficult, if not impossible, to hold trials for every accused person in a timely way. As a result, countries are increasingly looking to alternative processes to handle criminal cases beyond traditional formal trials. Plea bargaining is frequently considered as a possible solution to problems of case backlogs, long periods of pretrial detention, and to help ...


Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon 2017 Texas A&M University School of Law

Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon

Cynthia Alkon

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty ...


Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon 2017 Texas A&M University School of Law

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Cynthia Alkon

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can ...


An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To Reduce Prosecutorial Power In Plea Bargaining, Cynthia Alkon 2017 Texas A&M University School of Law

An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To Reduce Prosecutorial Power In Plea Bargaining, Cynthia Alkon

Cynthia Alkon

The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial ...


What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon 2017 Texas A&M University School of Law

What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon

Cynthia Alkon

This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are ...


United States V. Pho: Defining The Limits Of Discretionary Sentencing, John G. Wheatley 2017 University of Maine School of Law

United States V. Pho: Defining The Limits Of Discretionary Sentencing, John G. Wheatley

Maine Law Review

In the consolidated case of United States v. Pho, the government appealed two district court rulings that imposed criminal sentences outside of the range provided in the Federal Sentencing Guidelines Manual (Guidelines). At separate trials, both defendants pied guilty to the crime of possession with intent to distribute five grams or more of cocaine base (commonly known as crack). Rejecting the Guidelines' disparate treatment of crack and powder cocaine, the district court imposed sentences that were below the Guidelines' range, but above the statutory mandatory minimum. The Court of Appeals for the First Circuit vacated both sentences and remanded the ...


Government Speech And The War On Terror, Helen Norton 2017 University of Colorado School of Law

Government Speech And The War On Terror, Helen Norton

Fordham Law Review

This Article examines how the government’s speech in the War on Terror can threaten free speech, equal protection, and due process values. It focuses primarily on the constitutional harms threatened by the government’s speech itself (what some call a form of “soft law”), rather than on situations in which the government’s speech may be evidence of a constitutionally impermissible motive for its “hard law” actions.


Terrorizing Advocacy And The First Amendment: Free Expression And The Fallacy Of Mutual Exclusivity, Martin H. Redish, Matthew Fisher 2017 Northwestern University Pritzker School of Law

Terrorizing Advocacy And The First Amendment: Free Expression And The Fallacy Of Mutual Exclusivity, Martin H. Redish, Matthew Fisher

Fordham Law Review

Traditional free speech doctrine is inadequate to account for modern terrorist speech. Unprotected threats and substantially protected lawful advocacy are not mutually exclusive. This Article proposes recognizing a new hybrid category of speech called “terrorizing advocacy.” This is a type of traditionally protected public advocacy of unlawful conduct that simultaneously exhibits the unprotected pathologies of a true threat. This Article explains why this new category confounds existing First Amendment doctrine and details a proposed model for how the doctrine should be reshaped.


Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn 2017 University of Wisconsin Law School

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 ...


Reevaluating The Computer Fraud And Abuse Act: Amending The Statute To Explicitly Address The Cloud, Amanda B. Gottlieb 2017 Fordham University School of Law

Reevaluating The Computer Fraud And Abuse Act: Amending The Statute To Explicitly Address The Cloud, Amanda B. Gottlieb

Fordham Law Review

Under the current interpretations of authorization, instances where an individual harmlessly accesses the cloud data of another user could be classified as hacking and a violation of this federal statute. As such, this Note demonstrates that all of the current interpretations of the CFAA are too broad because they could result in this nonsensical outcome. This Note accordingly proposes an amendment to the CFAA specifically addressing user access to data on the cloud. Such an amendment would eliminate the unusual result of innocuous cloud-computing users being deemed hackers under federal law.


Terrorist Incitement On The Internet, Alexander Tsesis 2017 Loyola University School of Law

Terrorist Incitement On The Internet, Alexander Tsesis

Fordham Law Review

I organized this symposium to advance understanding of how terrorist communications drive and influence social, political, religious, civil, literary, and artistic conduct. Viewing terrorist speech through wide prisms of law, culture, and contemporary media can provide lawmakers, adjudicators, and administrators a better understanding of how to contain and prevent the exploitation of modern communication technologies to influence, recruit, and exploit others to perpetrate ideologically driven acts of violence. Undertaking such a multipronged study requires not only looking at the personal and sociological appeals that extreme ideology exerts but also considering how to create political, administrative, educational, and economic conditions to ...


Free Speech And The Confluence Of National Security And Internet Exceptionalism, Alan K. Chen 2017 University of Denver Sturm College of Law

Free Speech And The Confluence Of National Security And Internet Exceptionalism, Alan K. Chen

Fordham Law Review

In this Article, I argue that, notwithstanding these contemporary developments, the Court got it mostly right in Brandenburg. Or, I want to at least suggest that it is premature to reconstruct the Brandenburg test to address perceived changes in our global environment. For the most part, Brandenburg has succeeded in mediating the balance between protecting political or ideological advocacy and enabling the government to regulate actual incitement, even in the contemporary era. Moreover, I argue that society should be especially wary of calls to narrow Brandenburg’s speech-protective standard because such changes might be significantly influenced by the confluence of ...


The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, Danielle Keats Citron, Benjamin Wittes 2017 University of Maryland Francis King Carey School of Law

The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, Danielle Keats Citron, Benjamin Wittes

Fordham Law Review

Section 230 is overdue for a rethinking. If courts do not construe the scope of federal immunity to avoid injustice, we argue, Congress should amend the law. This is not to discount the important role that the immunity provision has played over the past twenty years. Far from it. Section 230 immunity has enabled innovation and expression beyond the imagination of the operators of early bulletin boards and computer service providers the provision was designed to protect. But its overbroad interpretation has left victims of online abuse with no leverage against site operators whose business models facilitate abuse. This state ...


The Role Of Internet Intermediaries In Tackling Terrorism Online, Raphael Cohen-Almagor 2017 University of Hull

The Role Of Internet Intermediaries In Tackling Terrorism Online, Raphael Cohen-Almagor

Fordham Law Review

Gatekeeping is defined as the work of third parties “who are able to disrupt misconduct by withholding their cooperation from wrongdoers.”1 Internet intermediaries need to be far more proactive as gatekeepers than they are now. Socially responsible measures can prevent the translation of violent thoughts into violent actions. Designated monitoring mechanisms can potentially prevent such unfortunate events. This Article suggests an approach that harnesses the strengths and capabilities of the public and private sectors in offering practical solutions to pressing problems. It proposes that internet intermediaries should fight stringently against terror and further argues that a responsible gatekeeping approach ...


Terrorist Advocacy And Exceptional Circumstances, David S. Han 2017 Pepperdine University School of Law

Terrorist Advocacy And Exceptional Circumstances, David S. Han

Fordham Law Review

This Article proceeds as follows. Part I discusses the harmful effects of terrorist advocacy and outlines the present doctrinal treatment of such speech. Part II discusses the issue of exceptional circumstances and highlights the two approaches courts might take to account for them: applying strict scrutiny to the case at hand or broadly reformulating the First Amendment’s doctrinal boundaries. Part III sets forth my central thesis: courts should adhere to case-by-case strict scrutiny analysis, rather than broad doctrinal reformulation, as the initial means of accounting for exceptional circumstances with respect to terrorist advocacy. This approach reflects the vital importance ...


Free Speech And National Security Bootstraps, Heidi Kitrosser 2017 University of Minnesota Law School

Free Speech And National Security Bootstraps, Heidi Kitrosser

Fordham Law Review

It is troubling that courts treat administrative designations—specifically, both FTO determinations and information classification—as bootstraps by which to yank speech restrictions from the clutches of probing judicial scrutiny. This Article builds on existing scholarly critiques to identify and examine the common thread of national security bootstrapping that runs through both sets of cases. The hope is that in so doing, some greater light may be shed both on the cases themselves and, more broadly, on the costs and benefits of judicial deference to executive national security claims where civil rights and civil liberties are at stake.


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