Digital Commons Network^™

From Retribution To Restoration: Implementing Nationwide Restorative Justice Initiatives - Lessons From Jamaica, Inga N. Laurent

Fordham International Law Journal

No abstract provided.

Nuts About Netz: The Network Enforcement Act And Freedom Of Expression, Rebecca Zipursky

Fordham International Law Journal

No abstract provided.

Barnette And Masterpiece Cakeshop: Some Unanswered Questions, Abner S. Greene

Faculty Scholarship

This symposium piece addresses three issues stemming from the Court’s Masterpiece Cakeshop case and that case’s relationship to West Virginia v. Barnette. First, it discusses the relationship between claims for exemption from laws of general applicability and as-applied claims. Second, it addresses the issue most discussed in the Cakeshop briefs and oral argument, but not ultimately resolved by the Court: what counts as compelled speech in the setting of provision of services such as custom-made wedding cakes? Third, it intervenes in the fascinating sidebar between Justice Kagan and Justice Gorsuch regarding the state commission’s refusal to sanction bakers who wouldn’t …

The Dilemma Of Localism In An Era Of Polarization, Nestor M. Davidson

Faculty Scholarship

Localism, the discourse of local legal power and state-local relations, has returned to the center of national attention, driven by gridlock at the federal level and sharply rising political and cultural conflicts between cities and their states. In recent years, states have aggressively sought to constrain, eliminate, and even criminalize local policy discretion across an array of policy domains. Cities and their advocates have just as aggressively fought back—in litigation, in the po- litical arena, and in popular discourse.

Advocacy for resurgent local empowerment is raising anew what has long been the central dilemma of localism: how can a vertical …

Congress And The Independence Of Federal Law Enforcement, Andrew Kent

Faculty Scholarship

Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This Article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today. As important background, this Article recounts the abuses of the Hoover era at the Federal Bureau of Investigation (“FBI”), and the ways the Nixon White House sought to both impede and corrupt the Department of Justice (“DOJ”) and the FBI. It then describes what an engaged Congress looked …

A Second Step Act For The States (And Counties And Cities), John F. Pfaff

Faculty Scholarship

No abstract provided.

Process Scrutiny: Motivational Inquiry And Constitutional Rights, Joseph Landau

Faculty Scholarship

Judicial inquiries into political branch motivation have long bedeviled courts and scholars. Especially vexing are questions regarding judicial review of facially neutral government action. The canonical decision in this arena, Washington v. Davis, holds that facially neutral legislation or administrative action resulting in a disparate impact on the basis of race or gender will not on its own trigger heightened scrutiny. In order to invoke more careful scrutiny of government action, there must be evidence of discriminatory intent. Many scholars understand the Court’s intent doctrine to license malintent by encouraging policymakers to conceal invidious purposes behind facially neutral language. For …

Decarceration’S Blindspots, John F. Pfaff

Faculty Scholarship

For over a decade, my research has focused on trying to answer one simple question: how did the United States, home to about 5% of the world’s population, come to house nearly 25% of its prisoners?1 We were not always the world’s largest jailer; as recently as the 1970s, our incarceration rate was largely indistinguishable from those in other liberal democracies. Yet starting in the mid-1970s, as Figure 1 shows, that rate started to slowly—but steadily and relentlessly—grow, until by the late 2000s it rivaled and then surpassed even the rates seen in autocratic countries like Cuba and Belarus and …

Prosecutors In The Court Of Public Opinion, Bruce A. Green

Faculty Scholarship

No abstract provided.

Counterterrorism And Human Rights: A Comparative Analysis Of United States And European Laws, And Suggestions For Turkish Law Reform, Gulen Soyaslan

SJD Dissertations

This dissertation examines whether Turkish law could be amended in order to address the concerns of counterterrorism officials without unnecessarily infringing on individual rights. It differs from other research conducted on counterterrorism law in a number of ways. First, it provides general information on the concept of terrorism and the history and evolution of terrorism in Turkey. It further compares terrorism in Turkey with Europe and the United States. Second, it compares relevant counterterrorism laws of the United States, the United Kingdom, France, Germany, and Turkey. Third, it shows the approaches of the European and United States highest courts to …

Board Of Parole Welcome Book, Accreditation Audit, November 2018, New York State Department Of Corrections And Community Supervision (Doccs), Board Of Parole

Additional Resources

No abstract provided.

A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema

Fordham Law Review

In the last two decades, the U.S. Supreme Court has actively grappled with balancing the interests of immigrant detainees and the federal government in the context of prolonged immigration detention by reconciling the statutory framework with constitutional guarantees of due process. The Court has focused on how prolonged detention without an opportunity for an individualized custody determination poses a serious constitutional threat to an alien’s liberty interest. The Court’s jurisprudence has focused, however, on aliens who have effected an entry into the United States. The constitutional entitlements of nonresidents who are detained upon presenting themselves at the border have so …

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 …

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Fordham Law Review

Each year, law enforcement seizes thousands of electronic devices—smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts. It measures this right …

Prosecutors Who Police The Police Are Good People, Vida B. Johnson

Fordham Law Review Online

In 2001 Professor Abbe Smith asked if a person could be both a good prosecutor and a good person. Her answer was, essentially, “no.” My answer in 2018 is that only a prosecutor who focuses on the powerful, and particularly who is willing to prosecute police who do wrong, can be good.

Good Person, Good Prosecutor In 2018, Abbe Smith

Fordham Law Review Online

Nearly twenty years ago, I wrote an essay on the ethics of prosecution in a time of mass incarceration called “Can You Be a Good Person and a Good Prosecutor?”1 I am both pleased and perplexed that the essay, which caused some controversy at the time, continues to strike a chord—at least with the organizers of this online conversation. I appreciate the invitation to weigh in on whether you can be a good person and a good prosecutor in 2018.

New York State Parole Board: Failures In Staffing And Performance, Parole Preparation Project, Release Aging People In Prison Campaign

All Categories

No abstract provided.

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.

Reforming The Summary Judgment Problem: The Consensus Requirement, Suja A. Thomas

Fordham Law Review

If one or more federal trial or appellate court judges disagree on whether summary judgment should be ordered, summary judgment can still be granted when an appellate majority finds in favor of summary judgment. The case will be dismissed, and a jury will not try it. Logically, however, should this occur? At least one judge has stated that a reasonable jury could find for the party against whom summary judgment has been ordered. In these situations where judges disagree on whether summary judgment should be granted, they often portray the case’s facts in very different ways—what I refer to as …

Heller‘S Collateral Damage: As-Applied Challenges To The Felon-In-Possession Prohibition, Carly Lagrotteria

Fordham Law Review

A longstanding firearm regulation in the United States prohibits individual convicted of felonies and certain misdemeanors from possessing a firearm. Following the U.S. Supreme Court’s decision in District of Columbia v. Heller, waves of litigation challenged, among other laws, the felon-in-possession prohibition. Due to the lack of clarity in Heller and the Court’s refusal to address it, there is an unsettling circuit split over whether and how an individual can mount an as-applied challenge to the felon-in-possession prohibition. A decade after Heller, the Third Circuit upheld the first successful asapplied challenge while four circuits have denied the permissibility …

Fast Times In Federal Court And The Need For Flexibility, K. Michael Moore

Fordham Law Review

The shifting landscape of criminal prosecutions involving designer drugs presents several novel legal issues. There are different ways to address these issues when they are the result of the production, possession, or distribution of as-of-yet unregulated substances. One way is for the legislature to enact appropriate legislation as quickly as the need for regulation or criminalization arises—a lofty, if not unrealistic, goal. The other is to guide the courts with general principles of applicability—the approach adopted by Congress through the enactment of the Analogue Act. This small but unfortunately quickly expanding area of federal criminal law supports the notion that …

Guns In The Library | Safety & Security, Jennifer Dixon

Staff Publications

No abstract provided.

Grassroots Challenges To The Effects Of Prison Sprawl On Mental Health Services For Incarcerated People, Stefen R. Short

Fordham Urban Law Journal

No abstract provided.

Criminal Punishment And The Politics Of Place, John F. Pfaff

Fordham Urban Law Journal

No abstract provided.

#Closerikers: The Campaign To Transform New York City’S Criminal Justice System, Janos Marton

Fordham Urban Law Journal

No abstract provided.

“We Know Not Where We Go”: Protecting Digital Privacy In New York City’S Municipal Wi-Fi Network, Eric Hornbeck

Fordham Urban Law Journal

No abstract provided.

The New Writs Of Assistance, Ian Samuel

Fordham Law Review

The providers of network services (and the makers of network devices) know an enormous amount about our lives. Because they do, these network intermediaries are being asked with increasing frequency to assist the government in solving crimes or gathering intelligence. Given how much they know about us, if the government can secure the assistance of these intermediaries, it will enjoy a huge increase in its theoretical capacity for surveillance—the ability to learn almost anything about anyone. This has the potential to create serious social harm, even assuming that the government continues to adhere to ordinary democratic norms and the rule …

Immigration As Commerce: A New Look At The Federal Immigration Power And The Constitution, Jennifer Gordon

Faculty Scholarship

The relationship of immigration law to the Constitution has long been incoherent. One result is that there is little clarity on the appropriate standard of review for constitutional violations when aspects of immigration law and policy are challenged in the federal courts. This Article advances the Commerce Clause as the anchor of a new understanding of the link between the government's immigration power and the Constitution. Despite the extensive early history of the Foreign Commerce Clause as the presumed source of the immigration power, it plays almost no role in immigration jurisprudence today, and few scholars have seriously considered its …

Re-Designing Afghanistan's Approach To Mental Illness Evaluations For Criminal Defendants: Toward Reliable Procedures And Predictable Outcomes, Habiburrahman Rizapoor

Fordham International Law Journal

No abstract provided.

Beyond The Island: Changing The Culture Of New York City Jails, Michael Jacobson, Elizabeth Dewolf, Margaret Egan, David Hafetz

Fordham Urban Law Journal

No abstract provided.