Digital Commons Network^™

Reconsidering Criminal Background Checks: Race, Gender, And Redemption, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Prosecutorial Accountability 2.0, Bruce A. Green, Ellen Yaroshefsky

Faculty Scholarship

No abstract provided.

Reasonable Doubt And Moral Elements, Youngjae Lee

Faculty Scholarship

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …

Criminal Records And Immigration: Comparing The United States And The European Union, Dimitra Blitsa, Lauryn P. Gouldin, James B. Jacobs, Elena Larrauri

Fordham International Law Journal

Because the revolution in information technology has made individual criminal history records more comprehensive, efficient, and retrievable, an individual’s criminal history has become an ever more crucial marker of character and public identity. The broad range of collateral consequences of criminal convictions has become a very salient issue for criminal justice scholars and reformers. A single criminal conviction can trigger thousands of potentially applicable restrictions, penalties, or other civil disabilities. There is no better example of this phenomenon than immigration law and policy, where developments in data storage and retrieval converge with opposition to immigration, especially to immigrants who bear …

Behind Enemy Phone Lines: Insider Trading, Parallel Enforcement, And Sharing The Fruits Of Wiretaps, Alexandra N. Mogul

Fordham Law Review

    Two key trends were present in the successful prosecution of Raj Rajaratnam and his coconspirators in one of the largest insider-trading conspiracies in history: the use of wiretaps to investigate and prosecute insider trading and a joint effort between the Department of Justice (DOJ) and the Securities & Exchange Commission (SEC) to conduct the investigation. Despite the close working relationship between the DOJ and the SEC, the DOJ never disclosed the fruits of the wiretaps to the SEC, presumably due to its belief that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (as amended, the …

Sensationalism Falling Through The Cracks: Why The Legal Profession Must Broaden Ethical Standards For Legal Commentators, A. Augustus Lasala

Fordham Intellectual Property, Media and Entertainment Law Journal

INTRODUCTION Whether it was O.J. Simpson, Casey Anthony, or Scott Peterson, history has shown that Americans love an exciting criminal trial. As a result, in the United States, the coverage and analysis of high-publicity criminal cases is ever-growing, creating many opportunities for attorneys to work in media as legal commentators. The term “legal commentator” has no precise definition, but generally entails attorneys making statements in the media that contain legal analysis. When attorneys speak in the media they simultaneously act in two roles: as a licensed attorney who has professional responsibilities and as a journalist who must meet viewership requirements. …

Fourth Amendment Fiduciaries, Kiel Brennan-Marquez

Fordham Law Review

    Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties—the foundation of the widely reviled “third-party doctrine”—makes little sense in the digital age.

    In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust”—the risk that B will disclose the information to law …

Enforcing Immigration Equity, Jason A. Cade

Fordham Law Review

    Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This Article contextualizes recent executive enforcement actions within this scheme and argues that the Obama Administration’s targeted use of limited enforcement resources and implementation of initiatives such as Deferred Action for …

Alternative Courts And Drug Treatment: Finding A Rehabilitative Solution For Addicts In A Retributive System, Molly K. Webster

Fordham Law Review

    Sentencing drug crimes and treating drug-addicted defendants often stem from contradictory theories of punishment. In the late twentieth century, courts traded rehabilitation for retributive ideals to fight the “War on Drugs.” However, beginning with the Miami-Dade Drug Court, treatment and rehabilitation have returned to the forefront of sentencing policy in traditional and alternative drug courts.

    Jurisdictions have implemented a variety of policies designed to treat addiction as opposed to punishing it. Community courts, such as the Red Hook Community Justice Center in Brooklyn, New York, community-panel drug courts, such as the Woodbury County Community Drug Court in Iowa, and Hawaii’s …

The Uncomfortable Truths And Double Standards Of Bribery Enforcement, Mike Koehler

Fordham Law Review

    In recent years, Foreign Corrupt Practices Act (FCPA) enforcement has become a top priority for the U.S. government, and government enforcement officials have stated that “we in the United States are in a unique position to spread the gospel of anti-corruption” and that FCPA enforcement ensures not only that the United States “is on the right side of history, but also that it has a hand in advancing that history.”

    However, the FCPA is not the only statute in the federal criminal code concerning bribery. Rather, the FCPA was modeled in large part after the U.S. domestic bribery statute, and …

Criminal Corruption: Why Broad Definitions Of Bribery Make Things Worse, Albert W. Alschuler

Fordham Law Review

    Although the law of bribery may look profoundly underinclusive, the push to expand it usually should be resisted. This Article traces the history of two competing concepts of bribery—the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, when applied to officials other than unelected judges, “intent to influence” is now an untenable standard. This standard cannot be taken literally. This Article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read …

The Admissibility Of Hearsay Evidence In New York State Sex Offender Civil Commitment Hearings After State V. Floyd Y.: Finding A Balance Between Promoting The General Welfare Of Sexual Assault Victims And Providing Due Process Of Law, Brittany K. Dryer

Fordham Law Review

    In twenty states throughout the country, the government may petition for the civil commitment of detained sex offenders after they are released from prison. Although processes differ among the states, the government must generally show at a court proceeding that a detained sex offender both suffers from a mental abnormality and is dangerous and that this combination makes a detained sex offender likely to reoffend. At such court proceedings, both the government and the respondent will present evidence to either the court or the jury on these issues. As in most court proceedings, hearsay evidence is inadmissible at sex offender …

Should Prosecutors Blog, Post, Or Tweet?: The Need For New Restraints In Light Of Social Media, Emily Anne Vance

Fordham Law Review

    Prosecutors' extrajudicial speech is not a new problem. Indeed, prosecutors' out-of-court statements to the press and the public at large have been of concern for over a century. Consequently, ethical rules and standards have been implemented to protect defendants from undue reputational harm and to strike a balance between trial participants' right to free speech and defendants' right to due process. Although these rules and standards are periodically revised, they have not yet accounted for the differences between traditional media-for which the rules and standards were written-and social media. Recently, however, prosecutors have used social media to discuss pending cases …

Hail Marriage And Farewell, Ethan J. Leib

Fordham Law Review

    My conclusion in what follows is that, notwithstanding much rhetoric in the opinion, states have some room to rethink marriage in light of marriage equality. And with some intellectual jujitsu, this opening to rethink the state’s place in relational ordering gives marriage-skeptics another bite at the apple to get something they wanted all along: to decenter the largely religious, gendered, and bourgeois institution of marriage. Justice Kennedy’s opinion has the unfortunate result of reaffirming marriage at the top of a relational hierarchy, yet there are surely other ways we can have civil rights and equality for gay people without marriage …

2015-2016 Fordham Law School Faculty Bibliography, Fordham Law School Library

Faculty Bibliography

No abstract provided.

Stein Center News - June 2015, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

Stein Center For Law And Ethics Annual Report 2014 To 2015, Sherri Levine

Annual Reports

No abstract provided.

Commuting Life Without Parole Sentences: The Need For Reason And Justice Over Politics, Jing Cao

SJD Dissertations

In the last thirty years, life without parole (LWOP) sentences have flourished in the United States. Of course the very reason for a LWOP sentencing scheme is to incarcerate the convicted defendant until death. But under the Pardon Clause of the Constitution, as well as under state laws granting the Governor the pardoning power, inmates serving LWOP sentences might be eligible for early release by commutations. On the one hand, the possibility of clemency could be regarded as an impermissible loophole that could be used on a case-by-case basis to undermine the certainty of a LWOP sentencing system. On the …

When Is Fear For One's Life Race-Gendered? An Intersectional Analysis Of The Bureau Of Immigration Appeals's In Re A-R-C-G- Decision, Ange-Marie Hancock

Fordham Law Review

    In August 2014, the U.S. Board of Immigration Appeals (BIA) handed down a breakthrough decision, In re A-R-C-G-, permitting courts to consider domestic violence as a gendered form of persecution in a home country and thus grounds for asylum in the United States. Along with two other 2014 decisions, In re W-G-R- and In re M-E-V-G-, this case represented a marked shift from prior BIA decisions, which for fifteen years had interpreted sections 208(a) and 241(b)(3) of the Immigration and Naturalization Act more narrowly, thus excluding claims of home country abuse as reasonable grounds to grant asylum. Specifically, …

The Modern Day Scarlet Letter, Ifeoma Ajunwa

Fordham Law Review

    American society has come to presuppose the efficacy of the collateral legal consequences of criminal conviction. But little attention has been paid to their effects on the reintegration efforts of the formerly incarcerated and, in particular, formerly incarcerated women. An 1848 case, Sutton v. McIlhany, affirmed collateral legal consequences as constituting an important part of criminal punishment. More recent cases, such as Turner v. Glickman, in which a class of people convicted of drug crimes were subsequently denied food stamps and other government benefits, have upheld the constitutionality of imposing these legal penalties on an individual even after …

"I Do For My Kids": Negotiating Race And Racial Inequality In Family Court, Tonya L. Brito, David J. Pate Jr., Jia-Hui Stefanie Wong

Fordham Law Review

    Socio-legal scholarship examining issues of access to justice is currently experiencing a renaissance. Renewed inquiry into this field is urgently needed. Studies confirm that only 20 percent of the legal needs of low- income communities are met and that the vast majority of unrepresented litigants are low income, creating what some call a “justice gap” that has become even more urgent in recent years. State tribunals that deal with high-stakes issues particularly relevant to low-income residents, such as family courts and housing courts, are seeing an increasing number of litigants, the majority of whom are unrepresented.

Police Racial Violence: Lessons From Social Psychology, L. Song Richardson

Fordham Law Review

    The recent rash of police killing unarmed black men has brought national attention to the persistent problem of policing and racial violence. These cases include the well-known and highly controversial death of Michael Brown in Ferguson, Missouri, as well as the deaths of twelve-year-old Tamir Rice in Cleveland, Ohio; Eric Garner in Staten Island, New York; John Crawford III in Beavercreek, Ohio; Ezell Ford in Los Angeles, California; Dante Parker in San Bernardino County, California; and Vonderrit D. Myers Jr. in St. Louis, Missouri. Data reported to the FBI indicate that white police officers killed black citizens almost twice a …

Critical Race Science And Critical Race Philosophy Of Science, Paul Gowder

Fordham Law Review

    Over several decades, feminist philosophy of science has revealed the ways in which much of science has proceeded from “mainstream” assumptions that privilege men and other hierarchically superordinate groups and existing socially constructed conceptions of gender. In doing so, it has produced a research program that, while rooted in the post- Kuhnian philosophy and sociology of science that has been taken up by many students of scientific method more generally, has been used to critique great swathes of modern science and to reveal both the biases of the mainstream, and the transformative potential of a science that proceeds from the …

Taking A Stand?: An Initial Assessment Of The Social And Racial Effects Of Recent Innovation In Self-Defense Laws, Mario L. Barnes

Fordham Law Review

    Perhaps, not surprisingly, the controversy over the rise of self-defense reforms in the United States that have come to be known as ―Stand Your Ground‖ (SYG) laws, began with a story about colors. This Article principally applies an empirical method and critical race theory (eCRT) lens to explore whether these reformed statutes, which generally have authorized greater use of force within the context of self-defense, deter crime and differentially affect Whites, Blacks, and other racial groups.

When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber

Fordham Law Review

    Focusing on criminal law and procedure in particular, this Article seeks to expose various tensions in critical race theorizing and progressive theorizing more broadly, offer some suggestions for a unifying methodology of critical criminal law analysis, and discuss where empirical study might fit into this new program. Progressive (critical race and feminist) theorizing on criminal law is not only subject to the competing frames of critique and formalism, it also exists within an overarching American criminal law culture that can eclipse both concerns over rights violations and structural injustice. The U.S. penal system has become a “peculiar institution” and a …

No Harm, No Foul? "Attempted" Invasion Of Privacy And The Tort Of Intrusion Upon Seclusion, Eli A. Meltz

Fordham Law Review

    The tort of intrusion upon seclusion protects individuals from unwanted invasions into their personal space and personal affairs. While courts differ as to the precise definition and scope of this tort, at the most basic level, a claim for intrusion upon seclusion alleges that the defendant has unreasonably interfered with the plaintiff’s legitimate interest in maintaining some degree of privacy in his or her personal affairs. This Note analyzes an interesting issue that has emerged concerning the application of this tort: Should a defendant be held liable when he or she has attempted to observe the plaintiff in a private …

Fordham Lawyer, No. 8 - Spring 2015, 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.

Ban The Box: A Call To The Federal Government To Recognize A New Form Of Employment Discrimination, Christina O'Connell

Fordham Law Review

    As the number of Americans with criminal histories grows significantly, states and cities across the nation have reacted by adopting ban-the-box laws. Ban-the-box laws received their name because they ban the criminal history box on initial hiring documents. The goal of the ban-the-box movement is to promote job opportunities for persons with criminal records by limiting when an employer can conduct a background check during the hiring process and encouraging employers to take a holistic approach when assessing an applicant's fit for a position.

    There is no federal ban-the-box law, but states have taken varying approaches to adopting ban-the-box statutes. …

Richard E. Glossip V. Kevin J. Gross, Bruce Green, Faith Gay

Amicus Briefs

No abstract provided.

Stein Center News - March 2015, Stein Center For Law And Ethics

Stein Center News

No abstract provided.