Digital Commons Network^™

Connections 2022: A Free Guide For Formerly Incarcerated People, Kate Heenan

Reentry Resources

No abstract provided.

Global Scripts In Transnational Legal Orders And Governance, Susan Block-Lieb

Faculty Scholarship

Global scripts—the rules, norms, and standards in international texts, and the tacit assumptions that surround and give meaning to them—exist on numerous issues (finance, trade, economic development, climate change, education, human rights, and gender equality), at every level of engagement (international, national, local), and at every phase of recursive norm construction and contestation. Case studies involving global scripts appear across a wide range of scholarship—considering sociological, anthropological, or sociolegal perspectives, or on international political economy, international organizations, international relations, or law and development—but because they are focused on one piece of the puzzle at a time, variation exists regarding the …

Mala Prohibita, The Wrongfulness Constraint, And The Problem Of Overcriminalization, Youngjae Lee

Faculty Scholarship

The wrongfulness constraint, as a principle of criminalization, is supposed to preclude criminalization in the absence of wrongfulness. Crimes that look especially problematic from the perspective of the wrongfulness constraint are mala prohibita offenses. The aim of this Essay is to consider the question whether the wrongfulness constraint can serve as an effective tool to curb overcriminalization by looking at the case of mala prohibita offenses. This Essay defends the following propositions. First, because of the availability of an array of tools to defend various mala prohibita offenses as satisfying the wrongfulness constraint, it is often not a straightforward matter …

Bargaining For Abolition, Zohra Ahmed

Fordham Law Review

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories. Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes. The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor to keep …

Language Barriers And Cultural Incompetency In The Criminal Legal System: The Prejudicial Impacts On Lep Criminal Defendants, Sarah Moya

Fordham Urban Law Journal

No abstract provided.

Remaking Public Defense In An Abolitionist Framework: Non-Reformist Reform And The Gideon Problem, Eli Salamon-Abrams

Fordham Urban Law Journal

No abstract provided.

Multiunit Housing And Cannabis: Good Laws Make Good Neighbors, Daniel G. Orenstein

Fordham Urban Law Journal

No abstract provided.

The Regulatabilization Of Cannabis, Donald J. Kochan

Fordham Urban Law Journal

No abstract provided.

Taking The Initiative: Marijuana Law Reform And Direct Democracy, Tamar Todd

Fordham Urban Law Journal

No abstract provided.

Marijuana Use By Employees: Drug-Free Policies And The Changing Legal Landscape, Kerry Cork

Fordham Urban Law Journal

No abstract provided.

How State Reforms Have Mellowed Federal Enforcement Of Marijuana Prohibition, Douglas A. Berman, Alex Fraga

Fordham Urban Law Journal

No abstract provided.

Crushing The Soul Of Federal Public Defenders: The Plea Bargaining Machine’S Operation And What To Do About It, Walter I. Gonçalves, Jr.

Fordham Urban Law Journal

No abstract provided.

Expert Testimony On False Confessions: An Old Psychological Problem With New Challenges In New York Courts, Alysia Lo

Fordham Urban Law Journal

No abstract provided.

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Still Against Prosecutors, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Cooperation With United Nations Atrocity Inquiries, Michael Ramsden

Fordham International Law Journal

No abstract provided.

Legitimizing Lies, Courtney M. Cox

Faculty Scholarship

Lies are everywhere today. This scourge of misinformation raises difficult questions about how the law can and should respond to falsehoods. Legal discourse has traditionally focused on the law’s choice between penalizing and tolerating lying. But this traditional framing vastly oversimplifies the law’s actual and potential responses. Using trade secrets as a case study, this Article shows that the law sometimes accepts lies as a legitimate option for fulfilling legal requirements and may even require lies in increasingly common circumstances.

Commonly supposed legal and moral commitments against lying do not undermine this reality. To the contrary, the Article reveals that …

Housing The Decarcerated: Covid-19, Abolition & The Right To Housing, Norrinda Brown

Faculty Scholarship

The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court’s ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As …

Predicting Cybersecurity Incidents Through Mandatory Disclosure Regulation, Aniket Kesari

Faculty Scholarship

Cybersecurity risk is an increasingly common concern for organizations
that collect and maintain vast troves of data. In 2011, the United States
Securities and Exchange Commission (SEC) provided guidelines for how
publicly traded companies should convey these risks to potential investors. But
does this mandatory disclosure regime effectively serve this purpose in the
cybersecurity context? This Article uses machine learning and natural language
processing techniques to analyze firms’ mandatory risk disclosure statements,
predict which firms are at the greatest risk of suffering cybersecurity incidents,
and evaluate how well disclosure meets the goals of the broad regulatory
regime. More broadly, this …

Free-Ing Criminal Justice, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Bringing Up The Bodies, I. Bennett Capers

Faculty Scholarship

No abstract provided.

The Restatement Of The Law, Children And The Law: A Blueprint For Reforming The Child Welfare System, Clare Huntington

Faculty Scholarship

As part of the special issue on the foster care system, this essay challenges the assumption that all the children who are in foster care should be in foster care. The essay first describes the familiar—and still persuasive—argument that foster care does not serve the interests of most children and families. It then brings a new lens to bear on this argument by describing the work of the American Law Institute's Restatement of the Law, Children and the Law, which provides a blueprint for shrinking the child welfare system and promoting child well-being.

Replies To Commentators, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in …

Disclosures For Equity, Atinuke O. Adediran

Faculty Scholarship

This Article addresses how to increase funding to nonprofit organizations that are led by minorities or serve communities of color and how to hold corporations and private foundations who make public commitments to fund these organizations accountable for those commitments. The Article makes two policy recommendations to address these problems, while engaging with Supreme Court jurisprudence on mandatory disclosures to ensure that the proposals are narrowly tailored to institutional donors and include an opt-out provision so as not to chill the constitutional protection of the freedom of association. The first is for charities to publicly disclose their institutional donors in …

The Challenge Of Radical Reform In Pluralist Democracies, Aditi Bagchi

Faculty Scholarship

Martijn Hesselink proposes a new European charter of private law that would correct the deficiencies in private law identified by Katharina Pistor. While Hesselink aims to achieve radical reform by way of radical democracy, this article argues that radical democracy is unlikely to realise a radically progressive vision of private law. Citizens of wealthy, post-industrial democracies lack certainty about both the material consequences of reform and the demands of justice. Because their caution renders them averse to far-reaching, bundled reform packages, public discourse in post-industrial societies as we find them is more likely to produce incremental than radical substantive reform.

Colloquium: Subversive Lawyering: Foreword, Bennett Capers, Bruce A. Green

Fordham Law Review

Is there such a thing as subversive lawyering? And if so, what is it? These are the questions that motivate this colloquium issue. To be sure, other, similar terms exist and have been explicated. Movement lawyering. Rebellious lawyering. Resistance lawyering. Indeed,we were particularly inspired by Daniel Farbman’s article Resistance Lawyering, in which he uncovers the stories of abolitionist lawyers who, confronting the Fugitive Slave Act of 1850, “employed every means at their disposal to frustrate, delay, and dismantle the system within which they were practicing.” But still, we wondered if subversive lawyering might be something different. Something akin to resistance …

Lawyers And The Lies They Tell, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of their fiduciary relationships with courts and clients. For instance, states can sanction lawyers for some speech inside a courtroom that would be protected if uttered by a non-lawyer. This Article explores whether lawyers’ free speech rights should also be different from those of other speakers when lawyers, acting on their own behalf, participate in political discourse. Applying the current First Amendment framework, the authors question the bar’s assumption that, simply because lawyers are subject to rules of professional conduct, courts can …

Who Tells Their Stories?: Examining The Role, Duties, And Ethical Constraints Of The Victim’S Attorney Under Model Rule 3.6, Ksenia Matthews

Fordham Law Review

In U.S. criminal proceedings, the prosecution typically presents the victim’s story. However, as part of the victims’ rights movement, victims are striving to make their voices heard and tell their stories in their own words. Yet, despite the growing role victims occupy in criminal proceedings and the rights afforded to victims by the Crime Victims’ Rights Act and its state counterparts, victims still remain nonparties in criminal proceedings. As victims increasingly retain private lawyers to help navigate criminal proceedings and represent their interests, it is important to understand how these lawyers fall within the traditional two-party adversary system. Limited by …

The Criminalization Of Foreign Relations, Steven Arrigg Koh

Fordham Law Review

Overcriminalization has rightly generated national condemnation among policymakers, scholars, and practitioners alike. And yet, such scholarship often assumes that the encroachment of criminal justice stops at our borders. This Article argues that our foreign relations are also at risk of overcriminalization due to overzealous prosecution, overreaching legislation, and presidential politicization—and that this may be particularly problematic when U.S. criminal justice supplants certain nonpenal U.S. foreign policies abroad. This Article proposes three key reforms—presidential distancing, prosecutorial integration, and legislative de-escalation—to assure a principled place for criminal justice in foreign relations.

Media Consolidation & Political Polarization: Reviewing The National Television Ownership Rule, Mary R. Hornak

Fordham Law Review

Local television plays an important role in the democratic society. The medium is viewed as being trustworthy, and it is accessible and uniquely situated to report on matters of local interest. Among other roles, the Federal Communications Commission (FCC) regulates firms’ ownership interests in the media through regulations that permit a certain degree of consolidation at both the local and national levels. Since 1996, Congress has mandated that the FCC regularly review broadcast media ownership regulations. Originally, this requirement mandated biennial review. In 2004, however, Congress revised the mandate, requiring review on a quadrennial basis and excluding from such review …