Digital Commons Network^™

Fabricating The Crime Of Undocumented Presence, Eric S. Fish, Doug Keller

Fordham Law Review

In 2025, the Trump administration’s Office of Legal Counsel (OLC) declared that it is a federal crime simply to be an undocumented immigrant. Congress has enacted no such crime. Congress has made it a crime for an immigrant to enter the United States in a manner that “eludes examination or inspection.” For nearly 100 years, this “elude” offense has been understood to occur only at the moment an immigrant enters the country. But the Trump administration’s OLC has reinterpreted this crime as a continuing offense. Under this new reading, an immigrant who entered unlawfully eludes examination until the moment of …

The Long Arm And The Short Stick: How Citizenship Transforms White-Collar Enforcement, Andrey Spektor, Henry B. Blaikie

Fordham Law Review Online

Transnational white-collar enforcement has expanded steadily, even amid recent Department of Justice rhetoric favoring restraint. Yet the enforcement apparatus imposes markedly different—and more costly—consequences on noncitizen defendants than on similarly situated U.S. citizens. Noncitizens are more likely to be detained pretrial and more likely to serve longer and harsher custodial terms because they are excluded from sentence-reducing mechanisms, housed in more restrictive facilities, and face an additional layer of postsentence immigration detention. These structural features convert nominally equivalent sentences into more punitive sanctions while increasing burdens on courts, prisons, the immigration system, and taxpayers.

This Essay argues that courts, as …

Minimal Success: The Consequences Of Mandatory Minimums In Youth Sentencing, Maya Chrobot

Fordham Law Review

In New York State, children as young as thirteen can be processed as adults and sentenced to mandatory minimum sentences. Mandatory minimum sentences require judges to sentence the defendant to a statutorily set minimum term of imprisonment. Practitioners, judges, and researchers question the efficacy of mandatory minimum sentences, finding that they are ineffective at deterring crime, decreasing bias in sentencing, and increasing community safety. Additionally, there is clear evidence about the damaging effects of incarceration on young adults. Instead of functioning as rehabilitative punishment, incarceration leads young adults to experience poor mental and physical health outcomes upon release, and they …

Law's Penal-Professional World Order, Pilar Margarita Hernández Escontrías

Fordham Law Review

The attorney discipline regime has been propagandized as a necessary mechanism to police poor attorney conduct to protect the public. According to this myth, professional associations investigate attorney misconduct and impose sanctions, thus protecting the “noble profession” from attorneys who would tarnish its reputation. Violations of ethics rules lead to investigation, prosecution, and punishment by the state bar. In structure and language, state bars and judicial officers replicate the state in their use of disciplinary frameworks and regimes.

The self-regulating bar is a form of punitive governance used by the state to control entry into and expulsion from the profession. …

Decision In Art. 78 Proceeding - Dones, Juan (2025-10-24)

Decisions in Art. 78 Proceedings

No abstract provided.

Recalibrating Deference In Sentencing, Meghana Nemali

Fordham Law Review

The U.S. Sentencing Commission (the “Commission”) is responsible for promoting consistency, transparency, and fairness in federal sentencing. In pursuit of this mandate, the Commission publishes the U.S. Sentencing Guidelines (the “Guidelines”), which are accompanied by official commentary. In Stinson v. United States, the U.S. Supreme Court endowed the commentary with controlling authority. However, nearly three decades later, the Court in Kisor v. Wilkie granted courts greater discretion in deciding whether to defer to the commentary. Moreover, in 2024, the Court eliminated the absolute deference regime for administrative agency determinations in Loper Bright Enterprises v. Raimondo. As a result, …

Echoes Across Borders: Comparative Criminal Law And Justice In The Us Landscape, Alessandro Corda

Fordham International Law Journal

Despite its substantial promise to deepen understanding of domestic criminal laws and their operation, offer alternative approaches to policy challenges, and foster cross-cultural dialogue, comparative criminal law and justice remains only modestly visible in the United States—both in academic discourse and policymaking circles. After tracing the trajectory of comparative criminal law and justice in the United States and examining the primary factors contributing to its marginal status in legal scholarship and reform debates, this Article investigates the reasons for its limited prominence through an analysis of findings from a web-based survey of faculty specializing in criminal law, criminal procedure, and …

Restructuring The Institutional Logics Of Taiwan's Prison Labor: A Human Rights-Based Approach, Mao-Hong Lin

Fordham International Law Journal

In Taiwan, inmates are mandated to participate in work programs, a system long criticized for its mistreatment of prisoners. Despite numerous reform efforts, substantive change remains elusive. This Article investigates the persistence of Taiwan’s in-prison work programs through the lens of institutional logics theory and proposes a human rights-based approach to address the issue. Drawing on in-depth interviews and a focus group discussion, the study identifies four key logics sustaining these programs: security and management, bureaucracy, accounting imperatives, and competitive disadvantages. These logics stem from two opposing ideologies, market-driven and state-driven, yet collectively function to resist reform. Consequently, reform initiatives …

Expungement’S Deportation Paradox, Marie Mark, Talia Peleg

Fordham Urban Law Journal

No abstract provided.

Hardwiring Hercules?, Courtney M. Cox

Faculty Scholarship

It is time to reorient the debate over the right to a human decision. Within that debate, the strongest arguments in favor of human decisionmakers are Arguments from Explanation: AI technology is increasingly and necessarily opaque, and so machines should not replace human decisionmakers because machines cannot give the required explanations. Or so the humanist argument goes. Meanwhile, machinists argue that most humanist principles have been deflated by the Better Decision Argument, which reframes such principles as grounding not a right to a human decision, but merely to a “better” decision— whether by human or machine.

This Article turns that …

A Case For Rule 413 And Evidentiary Rule-Bending In Sexual Assault Cases, Emily Gwydir

Fordham Urban Law Journal

No abstract provided.

The Psychology Of Deception: Rethinking The Excited Utterance Exception For 911 Calls, Alexandra Spano

Fordham Urban Law Journal

No abstract provided.

Export Controls As Intellectual Property Regulation, Doni Bloomfield

Faculty Scholarship

Export-control laws have long regulated information created outside of the U.S. government. Legal scholars have paid little attention to these national-security laws, and have not recognized that the government uses them specifically to assert a right to suppress information held in patent applications and trade secrets. In this Article, I present a new history of the relationship between export controls and intellectual property to show how the government regulates IP transfers, and how the state uses IP laws to national-security ends. Export-control laws regulate IP by controlling how people in the United States and beyond can share or use inventive …

A Council Of Europe Tribunal To Prosecute Putin For The Crime Of Aggression In Ukraine, Erin A. Kenny

Fordham International Law Journal

No abstract provided.

The Regulation Of Technological Innovation In Financial Services: A Comparative Approach With Respect To Digital Assets And Artificial Intelligence, Howell E. Jackson, Katja Langenbucher

Faculty Scholarship

No abstract provided.

The Surveillance Of System-Adjacent Individuals, Mariam A. Hinds

Faculty Scholarship

Although the Fourth Amendment protects against “unreasonable searches and seizures,” this right is not enjoyed by all people equally. Supreme Court jurisprudence has curtailed the Fourth Amendment privacy rights of individuals under probation or parole supervision. In this line of cases, the Court concluded that the government’s interest in monitoring supervisees, reducing recidivism, and promoting public safety outweighed their reasonable expectation of privacy.

However, surveillance mechanisms like probation and parole extend the criminal legal system’s carceral gaze beyond the supervisees and peer into the bedrooms and digital lives of their families, roommates, and communities, or who this Article calls system-adjacent …

An Empirical Study Of Malingering In Insanity Cases Across Twelve Decades, Deborah W. Denno

Faculty Scholarship

The last 120 years have seen a surge in the use of neuroscientific evidence in American criminal law cases, fueled by discoveries in brain science that have challenged the legal system’s assumptions about human thinking and culpability. One key assumption is that many defendants “malinger,” that is, feign or fake insanity or mental illness, to garner an acquittal or mitigated punishment. Likewise, when potential evidence that a defendant is malingering is introduced in court, it can have a pronounced and powerful negative effect on the defendant’s insanity claim, especially when juries and criminal justice actors are already skeptical of insanity …

Silencing As Blackening, I. Bennett Capers

Faculty Scholarship

We are so accustomed to seeing defendants sit silently at criminal trials while their lawyers speak that we hardly question it. Or we tell ourselves this silence is for their own protection, part of their privilege against self-incrimination and the rules we have created for their own benefit. But what if we've gotten everything wrong? What if encouraging defendants to remain silent does not inure to their benefit at all, but to the State's? And what if this silencing is tied to race? "Silencing as Blackening" tells a fuller story about silent defendants. One, that this silence is rarely voluntary, …

Equality In Sentencing Mitigation, John B. Meixner Jr.

Fordham Law Review

As guilty-plea rates have skyrocketed, sentencing has become an increasingly important part of criminal procedure. With judges often wielding significant discretion at sentencing, a key question is how judges interpret mitigation: evidence about the defendant’s background or the case that supports a reduced sentence. Past empirical research—both experimental and in real-world cases—indicates that mitigation plays an important role in determining sentences. But does mitigation help everyone, or does it reinforce inequalities that frequently infect other areas of criminal procedure? Do low-income Black defendants with appointed counsel benefit from sentencing mitigation as much as wealthier White defendants with private attorneys? Do …

Red, White-, And Blue-Collar Crime: Federal Sentencing Practices Among White-Collar And Blue-Collar Offenders, Henna Judge

Fordham Law Review

Under the current federal sentencing regime, district courts exercise immense amounts of discretion when sentencing. Though strict adherence to the U.S. Sentencing Commission Guidelines (the “Guidelines”) was once mandatory, courts must now use these Guidelines as an advisory starting point and make a series of fact-specific determinations when sentencing a defendant. Though judicial discretion in this realm aids in preventing undue reliance on Guidelines-range recommendations that can lack nuance, it also invites bias.

In recent years, scholars and courts alike have called attention to a potential disparity in the way blue-collar and white-collar offenders are sentenced. This Note examines relevant …

Settling On A Standard: Reviewing The Right To Self-Representation, Lauren Lipson

Fordham Law Review

Courts appoint counsel for indigent criminal defendants who cannot afford legal representation to uphold their Sixth Amendment rights. In its seminal waiver case, Faretta v. California, the U.S. Supreme Court elevated the corollary right—the right to self-representation—to constitutional status. In dicta, the Court created a standard by which defendants must waive their right to counsel “knowingly and intelligently” to proceed pro se. The Court subsequently sculpted the right to self-representation as it came to standby counsel and mental competency, but it never prescribed a precise waiver colloquy for district court judges to administer, causing the Faretta colloquy to look …

2025-2026 Fordham Law School Faculty Bibliography, Fordham Law School

Faculty Bibliography

Bibliography of Fordham Law School faculty publications in print from July 2025-June 2026.

The Conversation Continues: The Judiciary’S Evolving Role In Perpetuating Racial Disparities In Addiction Treatment, Sydney Crute

Fordham Law Review

Language is a powerful means of social control, an idea that resonates deeply with court rhetoric as it relates to race. This Note examines the language courts use when discussing cases related to drug use and addiction. During the crack epidemic, when Black individuals represented the race of the primary drug user and drug dealer, courts relied on racially coded language related to crime and fear. Alternatively, during the opioid epidemic, when White individuals represented the race of the primary drug user, courts relied on more neutral language related to the health and well-being of society. Finally, the language courts …

Fordham Lawyer, No. 24 - Spring 2025, Fordham Law Alumni Association, Fordham Law School

Fordham Lawyer

Fordham Lawyer magazine was first published in 1988 and continued through 2004. It returned in 2011 under Dean Michael M. Martin. The magazine shines a spotlight on faculty research, the Law School community, and the accomplishments of our alumni. No issues were published between 2004 and 2011.

Properly Partitioning Prejudice: Analyzing Mixed Brady And Napue Claims, Patrick Scariano

Fordham Law Review

Due process affords criminal defendants the right to receive evidence possessed by the government that would aid in their defense. This right was codified in Brady v. Maryland. Brady’s lesser-known ancestor is Napue v. Illinois, which gave defendants the right to a new trial if the government knowingly offered perjured testimony in their original trial. The U.S. Supreme Court has held that these rights are critical to support verdicts worthy of confidence necessary to ensure due process.

Unfortunately, defendants victimized by misconduct are often affected by multiple violations of their rights. Courts have developed ways to examine …

Can Prosecutors’ Offices Preserve Public Confidence In Their Nonpartisanship—And, If So, How?, Bruce A. Green, Rebecca Roiphe

Fordham Law Review

No abstract provided.

Doing Justice With Empathy: Black Prosecutors In The Age Of Mass Incarceration, Kevin Woodson

Fordham Law Review

No abstract provided.

A World-Threatening Feeling: Grief, Moral Injury, And Institutional Loss In Rural Courts, Michele Statz

Fordham Law Review

No abstract provided.

Jockeying For The Reigns Of Our National Banking System: Florida “Fair Access” “Anti-Esg” Legislation Saddles Federal Regulators And National Banks With Preemption Fight, Meghan Mcalary

Fordham Urban Law Journal

No abstract provided.

Integrating Healing Justice Into Worker Cooperative Counseling, Julian M. Hill

Fordham Urban Law Journal

No abstract provided.