Digital Commons Network^™

The Data Surveillance State In Europe And The United States, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.

Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain

Faculty Scholarship

Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …

Head Versus Heart: Applying Empirical Evidence About The Connection Between Child Pornography And Child Molestation To Probable Cause Analyses, Emily Weissler

Fordham Law Review

    As the internet has become nearly ubiquitous, child pornography possession has become increasingly widespread. Law enforcement efforts to combat the reach of these images have become increasingly aggressive and sophisticated. Sentences have also dramatically increased. As of 2008, the mean sentence for child pornography possession was ninety–two months, with a mandatory minimum sentence of five years.

    Circuit courts have confronted child pornography search warrant applications based mainly upon a prior child molestation conviction or enticement of a minor. Evaluating similar fact patterns, the Second, Sixth, and Ninth Circuits have held that child molestation or child enticement cannot be used to …

Central Harlem Reentry Resource Guide: Steps To Community Reintegration, The Fortune Society, Community Board #10, Public Safety Committee

Reentry Resources

No abstract provided.

Can Condoms Be Compelling? Examining The State Interest In Confiscating Condoms From Suspected Sex Workers, Meghan Newcomer

Fordham Law Review

    Confiscating condoms from suspected sex workers leaves them at risk for HIV/AIDS, other sexually transmitted diseases, and unwanted pregnancy. Yet, police officers in New York, Washington, D.C., and Los Angeles collect condoms from sex workers to use against them as evidence of prostitution. Sometimes, the condoms are taken solely for the purpose of harassment. These actions put sex workers at risk of contracting sexually transmitted diseases because they may continue to engage in sex work without using protection.

    In the landmark case of Griswold v. Connecticut, the U.S. Supreme Court established a fundamental privacy right in the use and …

A New Split On Old Age: Preclusion Of § 1983 Claims And The Adea, Emer M. Stack

Fordham Law Review

    In 1967, Congress enacted the Age Discrimination in Employment Act (ADEA) to combat employer bias against older workers and to reject the idea that the job performance of all employees declines with age. The ADEA provides a statutory scheme for addressing age discrimination against employees aged forty years and older. Some older workers, however, have turned instead to the Equal Protection Clause of the Fourteenth Amendment, using § 1983 claims as a means of relief.

    A six–to–one circuit split has emerged as to whether the ADEA is the exclusive remedy for age discrimination or whether an aggrieved older worker can …

When Is When?: 8 U.S.C. § 1226(C) And The Requirements Of Mandatory Detention, Gerard Savaresse

Fordham Law Review

    Over the past several decades, immigration law has come to resemble criminal law in a number of ways. Most significantly, the current statutory regime allows the U.S. Attorney General (AG) to detain noncitizens during their removal proceedings. Ordinarily, the AG may detain noncitizens subject to removal so long as the AG provides an individualized bond hearing to assess whether the noncitizen poses a flight risk or a danger to the community. Pursuant to 8 U.S.C. § 1226(c), however, the AG must detain and hold without bond any noncitizen who has committed qualifying offenses “when the alien is released” from criminal …

Stein Center News - September 2013, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

Adequately Representing Groups, Elizabeth Chamblee Burch

Fordham Law Review

No abstract provided.

Social Impact Bonds And The Private Benefit Doctrine: Will Participation Jeopardize A Nonprofit’S Tax-Exempt Status?, Peter G. Dagher Jr.

Fordham Law Review

   In August 2012, the first social impact bond in the United States was implemented, introducing a revolutionary framework that aligns the incentives of the participants and provides nonprofits with a steady source of long term funding to scale up social projects. In the prevailing social impact bond structure, private investors essentially place a bet with a government agency that the selected nonprofits will accomplish measureable goals through a comprehensive project designed to reduce public costs. If the program fails to reach these goals, the investors lose the bet and their entire financial commitment to the social impact bond. If the …

Creating A More Meaningful Detention Statute: Lessons Learned From Hedges V. Obama, Colby P. Horowitz

Fordham Law Review

       In 2004, the Supreme Court affirmed the President‘s power to indefinitely detain members of Al Qaeda and the Taliban. Nearly ten years later, however, the substantive parameters of executive detention remain unclear. Post–9/11 detention law has been largely shaped by the lower federal courts on a case–by–case basis as they evaluate habeas corpus petitions from detainees held at Guantanamo Bay. In 2012, as part of the National Defense Authorization Act (NDAA), Congress attempted, for the first time, to codify a substantive detention standard in section 1021. Instead of providing clarity, however, section 1021 contained ambiguous terms and created more confusion. …

How Antitrust Lost Its Goal, Barak Orbach

Fordham Law Review

   During the first seven decades following the enactment of the Sherman Act, competition was the uncontroversial goal of antitrust. The introduction of the consumer welfare standard led to the dissipation of “competition” as the goal of U.S. competition laws. This Essay explores how antitrust lost the goal of competition and argues that this goal should be restored. The Essay reevaluates several influential antitrust propositions. First, while “consumer welfare” was offered as a remedy for reconciling contradictions and inconsistencies in antitrust, the adoption of the consumer welfare standard sparked an enduring controversy, causing confusion and doctrinal uncertainty. In effect, the consumer …

Privacy And Missing Persons After Natural Disasters, Joel Reidenberg, Robert Gellman, Jamela Debelak, Adam Elewa, Nancy Liu

Center on Law and Information Policy

When a natural disaster occurs, government agencies, humanitarian organizations, private companies, volunteers, and others collect information about missing persons to aid the search effort. Often this processing of information about missing persons exacerbates the complexities and uncertainties of privacy rules. This report offers a road map to the legal and policy issues surrounding privacy and missing persons following natural disasters. The report first identifies the privacy challenges in the disaster context and provides some recent examples that demonstrate how disaster relief information sharing raises unique privacy concerns and issues. It then outlines current missing persons information sharing activities in the …

Stein Center News - March 2013, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

Emerging From The Haze Of America's War On Drugs And Examining Canada's New Half-Baked Laws, Ramy Oden

Fordham International Law Journal

No abstract provided.

From Abortion To Islam- The Changing Function Of Law In Europe's Cultural Debates, Ofrit Liviatan

Fordham International Law Journal

No abstract provided.

Corporate Responsibility And Climate Justice: A Proposal For A Polluter-Financed Relocation Fund For Federally Recognized Tribes Imperiled By Climate Change, Randall S. Abate

Fordham Environmental Law Review

No abstract provided.

Fingerprints Of Apartheid Residual Effects Of The Former South African Government On Current Dna Legislation, Alex D'Amico

Fordham International Law Journal

No abstract provided.

Eu Citizenship: Why Can't The Advocates General Keep Sheila Mccarthy's Family Together?, Cma Mccauliff

Fordham International Law Journal

No abstract provided.

Realizing Liberty- The Use Of International Human Rights Law To Realign Immigration Deterntion In The United States, Denise Gilman

Fordham International Law Journal

No abstract provided.

Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau

Faculty Scholarship

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after …

Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green

Faculty Scholarship

In general, discovery is far narrower in federal criminal cases than in federal civil litigation. Under current federal law, prosecutors do not have to disclose evidence and information that is favorable to the defense for its use in investigating, advising the defendant, plea negotiations or trial, unless the favorable evidence falls within one of several narrow categories or might be probative enough to produce an acquittal. Proponents of broader federal criminal discovery law express concern both that disclosure is too limited to ensure fair outcomes and provide a fair process in criminal cases and that prosecutors do not universally comply …

Gideon’S Amici, Why Do Prosecutors So Rarely Defend The Rights Of The Accused?, Bruce A. Green

Faculty Scholarship

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the …

Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth. Review Of Plague Of Prisons: The Epidemiology Of Mass Incarceration In America By Ernest Drucker, John F. Pfaff

Faculty Scholarship

This article reviews Ernest Drucker's recent book, "A Plague of Prisons: The Epidemiology of Mass Incarceration in America," which attempts to explain the causes behind the explosion in prison growth over the past several decades. The account proves to be unsatisfying, and this review highlights four major flaws with Drucker's work. First, Drucker places too much weight on the war on drugs. While he argues it is the primary engine of prison growth, the increase in drug incarcerations explains only about 25% of the total growth since the 1970s. Second, he significantly underplays the importance of soaring crime rates between …

Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson

Faculty Scholarship

The heroes of the modern civil rights movement were more than just stoic victims of racist violence. Their history was one of defiance and fighting long before news cameras showed them attacked by dogs and fire hoses. When Fannie Lou Hamer revealed she kept a shotgun in every corner of her bedroom, she was channeling a century old practice. And when delta share cropper Hartman Turnbow, after a shootout with the Klan, said “I don’t figure I was being non-nonviolent, (yes non-nonviolent) I was just protecting my family”, he was invoking an evolved tradition that embraced self-defense and disdained political …

The Mobility Case For Regionalism, Nestor M. Davidson, Sheila R. Foster

Faculty Scholarship

In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden. This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. …

Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent

Faculty Scholarship

The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …

Functionalism’S Military Necessity Problem: Extraterritorial Habeas Corpus, Justice Kennedy, Boumediene V. Bush, And Al Maqaleh V. Gates, Richard Nicholson

Fordham Law Review

   The U.S. Supreme Court has struggled over the last 150 years to definitively answer the question of whether the U.S. Constitution applies beyond the borders of the territorial United States. Because the Constitution is silent on the issue, the burden has fallen on the judiciary to establish the contours of the doctrine. At times, the Court has espoused formulistic theories limiting constitutional application to territorial sovereignty, while at others it has looked to more objective, practical solutions that reach beyond the borders.

   In 2008, the Supreme Court held in Boumediene v. Bush that the application of the Suspension Clause of …

Unearthing The Public Interest: Recognizing Intrastate Economic Protectionism As A Legitimate State Interest, Katharine M. Rudish

Fordham Law Review

   In Oklahoma, a person must complete sixty-credit hours of undergraduate training and embalm twenty-five bodies before being legally licensed to sell caskets in the state. In Louisiana, in order to sell caskets, one must operate a fully licensed funeral establishment, defined as a place dedicated to preparing bodies for burial. In recent years, these states and others have faced legal challenges to casket sale restrictions by individuals who wish to sell caskets directly to the public, yet who are unable to do so as they are not licensed funeral directors. Courts have grappled with whether these state regulations, which in …

Doma And Presidential Discretion: Interpreting And Enforcing Federal Law, Joseph Landau

Fordham Law Review

No abstract provided.