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Fordham Law School

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Can The President Control The Department Of Justice?, Bruce A. Green Jan 2018

Can The President Control The Department Of Justice?, Bruce A. Green

Faculty Scholarship

No abstract provided.


Transitional Justice For The Persecution Of The Rohingya, Elliot Higgins Jan 2018

Transitional Justice For The Persecution Of The Rohingya, Elliot Higgins

Fordham International Law Journal

No abstract provided.


A Voice For One, Or A Voice For The People: Balancing Prosecutorial Speech Protections With Community Trust, Immanuel Kim Dec 2017

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 Dec 2017

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 …


Entertaining Satan: Why We Tolerate Terrorist Incitement, Andrew Koppelman Nov 2017

Entertaining Satan: Why We Tolerate Terrorist Incitement, Andrew Koppelman

Fordham Law Review

Words are dangerous. That is why governments sometimes want to suppress speech. The law of free speech reflects a settled decision that, at the time that law was adopted, the dangers were worth tolerating. But people keep dreaming up nasty new things to do with speech. Recently, the Islamic State of Iraq and Syria (ISIS) and other terrorist organizations have employed a small army of Iagos on the internet to recruit new instruments of destruction. Some of what they have posted is protected speech under present First Amendment law. In response, scholars have suggested that there should be some new …


Social Media Accountability For Terrorist Propaganda, Alexander Tsesis Nov 2017

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

Fordham Law Review

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints …


Government Speech And The War On Terror, Helen Norton Nov 2017

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 Nov 2017

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.


Terrorist Incitement On The Internet, Alexander Tsesis Nov 2017

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 Nov 2017

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 two …


Algorithmic Jim Crow, Margaret Hu Nov 2017

Algorithmic Jim Crow, Margaret Hu

Fordham Law Review

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …


Terror On Your Timeline: Criminalizing Terrorist Incitement On Social Media Through Doctrinal Shift, Zachary Leibowitz Nov 2017

Terror On Your Timeline: Criminalizing Terrorist Incitement On Social Media Through Doctrinal Shift, Zachary Leibowitz

Fordham Law Review

The United States faces a barrage of threats from terrorist organizations on a daily basis. The government takes some steps to prevent these threats from coming to fruition, but not much is being done proactively. Any person can log into a social media account to preach hate and incite violence against the United States and its citizenry, and sometimes these words result in action. When speakers are not held accountable, they can continue to incite the masses to violent action across the United States. This Note proposes a new incitement doctrine to prevent these speakers from being able to spread …


Bathroom Laws As Status Crimes, Stephen Rushin, Jenny Carroll Oct 2017

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 May 2017

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 …


Jail Isolation After Kingsley: Abolishing Solitary Confinement At The Intersection Of Pretrial Incarceration And Emerging Adulthood, Deema Nagib May 2017

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 …


Footfall And Social Media V. Concentrated Solar Power: When The Power Of A Choice In A Behavior-Based Economy Can Be More Powerful Than The Power Of The Sun, Kimberly E. Diamond Apr 2017

Footfall And Social Media V. Concentrated Solar Power: When The Power Of A Choice In A Behavior-Based Economy Can Be More Powerful Than The Power Of The Sun, Kimberly E. Diamond

Fordham Environmental Law Review

No abstract provided.


Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas Apr 2017

Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas

Fordham Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …


Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas Apr 2017

Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas

Fordham Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …


Revisiting Our Administrative System Of Criminal Justice, Benjamin E. Rosenberg Mar 2017

Revisiting Our Administrative System Of Criminal Justice, Benjamin E. Rosenberg

Res Gestae

Nineteen years after Judge Lynch’s piece, "Our Administrative System of Criminal Justice," this Article considers recent developments in the criminal justice system and whether Judge Lynch’s observations have withstood the test of time. It suggests that Judge Lynch’s observation—that our criminal justice system has strayed far from the model of the adversarial system—remains as true today as it was when he made it in 1998. It further explains that developments in the nineteen years since the publication of “Our Administrative System of Criminal Justice” have caused the criminal justice system to stray even further from the adversarial model and in …


Big Budget Productions With Limited Release: Video Retention Issues With Body-Worn Cameras, Bradley X. Barbour Mar 2017

Big Budget Productions With Limited Release: Video Retention Issues With Body-Worn Cameras, Bradley X. Barbour

Fordham Law Review

Since 2013, there has been growing support for police body-worn cameras in the wake of several high-profile and controversial encounters between citizens and law enforcement. The federal government has justified budgetary measures funding body-worn camera programs as a means to facilitate trust between law enforcement and the public through the objectivity of video footage—a sentiment supported by many lawmakers advocating for implementation of this technology. These policy goals, however, are stymied by a deficiency of police department policies and state statutes regulating the retention of footage and close adherence of states to the precedent of Arizona v. Youngblood, which …


Updating The Social Network: How Outdated And Unclear State Legislation Violates Sex Offenders’ First Amendment Rights, Elizabeth Tolon Mar 2017

Updating The Social Network: How Outdated And Unclear State Legislation Violates Sex Offenders’ First Amendment Rights, Elizabeth Tolon

Fordham Law Review

Readily available on computers, phones, tablets, or television, social media has become a necessary platform of expression for many. But, for others, social media is an inaccessible tool whose very use has criminal repercussions. To protect innocent children, many states have enacted legislation restricting sex offenders’ access to social media. Unfortunately, this legislation is often outdated, overly restrictive, and unconstitutional under the First Amendment. North Carolina has recently attracted national attention, as its statute highlights the potential constitutional issues states face in drafting such legislation. To avoid the constitutional concerns that North Carolina faces, state legislators must draft statutes narrowly …


Warrantless Operations Of Public Use Drones: Considerations For Government Agencies, Gregory S. Mcneal, William Goodwin, Sezen Jones Jan 2017

Warrantless Operations Of Public Use Drones: Considerations For Government Agencies, Gregory S. Mcneal, William Goodwin, Sezen Jones

Fordham Urban Law Journal

No abstract provided.


Criminal Justice Reform Is Not For The Short-Winded: How The Judiciary’S Proactive Pursuit Of Justice Helped Achieve “Raise The Age” Reform In New York, Jonathan Lippman Jan 2017

Criminal Justice Reform Is Not For The Short-Winded: How The Judiciary’S Proactive Pursuit Of Justice Helped Achieve “Raise The Age” Reform In New York, Jonathan Lippman

Fordham Urban Law Journal

No abstract provided.


Decriminalizing Childhood, Andrea L. Dennis Jan 2017

Decriminalizing Childhood, Andrea L. Dennis

Fordham Urban Law Journal

No abstract provided.


Airports, Droneports, And The New Urban Airspace, Timothy M. Ravich Jan 2017

Airports, Droneports, And The New Urban Airspace, Timothy M. Ravich

Fordham Urban Law Journal

No abstract provided.


Coordinating Access To Justice For Low And Moderate Income People, Ian Weinstein Jan 2017

Coordinating Access To Justice For Low And Moderate Income People, Ian Weinstein

Faculty Scholarship

No abstract provided.


Collaborating Across The Walls: A Community Approach To Parole Justice, Michelle Lewin, Nora Caroll Jan 2017

Collaborating Across The Walls: A Community Approach To Parole Justice, Michelle Lewin, Nora Caroll

All Categories

No abstract provided.


Youth Incarceration, Health, And Length Of Stay, Thalia GonzáLez Jan 2017

Youth Incarceration, Health, And Length Of Stay, Thalia GonzáLez

Fordham Urban Law Journal

No abstract provided.


The Evolution Of The Municipal Corporation And The Innovations Of Local Governance In California To Preserve Home Rule And Local Control, Frank Vram Zerunyan Jan 2017

The Evolution Of The Municipal Corporation And The Innovations Of Local Governance In California To Preserve Home Rule And Local Control, Frank Vram Zerunyan

Fordham Urban Law Journal

No abstract provided.


Affordable Housing Law And Policy In An Era Of Big Data, Nestor M. Davidson Jan 2017

Affordable Housing Law And Policy In An Era Of Big Data, Nestor M. Davidson

Fordham Urban Law Journal

No abstract provided.