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Our Administrative System Of Criminal Justice, Gerard E. Lynch

Fordham Law Review

    To commemorate our founding in 1914, the Board of Editors has selected six influential pieces published by the Law Review over the past 100 years and will republish one piece in each issue.

    The fourth piece selected by the Board is Our Administrative System of Criminal Justice, an article written by Gerard E. Lynch that is among the most cited works in the Law Review’s history.  This article illustrates how the practice of plea bargaining blurs the boundaries between adversarial and inquisitorial criminal justice systems.

   Judge Lynch now sits on the Second Circuit having eventually succeeded the late …

Centennial Dedication: A Brief History Of The Fordham Law Review, Editors

Fordham Law Review

    The Board of Editors for Volume 83 thanks the former editors and staff of the Fordham Law Review, first published in the fall of 1914, for the century-long tradition of excellence achieved through their service.

Should The Medium Affect The Message? Legal And Ethical Implications Of Prosecutors Reading Inmate-Attorney Email, Brandon P. Ruben

Fordham Law Review

    The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate- attorney email.

    This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all …

Naming Men As Men In Corporate Legal Practice: Gender And The Idea Of “Virtually 24/7 Commitment” In Law, Richard Collier

Fordham Law Review

This Article seeks to reframe and turn the conversation about gender equity in the legal profession on its head, taking up Hannah Brenner’s recent call to reconceptualize problems and rethink solutions around gender equity in the profession. It does so by moving beyond the frame of the retention of women and exploring selected aspects of the gendered practices of men in relation to this notion of the ideal legal professional in large transnational “city” law firms. The Article traces how particular ideas about men and gender are, on closer examination, implicated in a broader recasting of lawyer professionalism within the …

Can Criminal Law Do Without Moralism?, Review Of Crime And Punishment: A Concise Moral Critique By Hyman Gross, Youngjae Lee

Faculty Scholarship

This is a review of Hyman Gross, Crime and Punishment: A Concise Moral Critique (Oxford: Oxford University Press, 2012).

Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff

Faculty Scholarship

As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control. In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try …

Local Judges And Local Government, Ethan J. Leib

Faculty Scholarship

This interview-based empirical study explores how local judges view themselves and their crosscutting roles in local and state government. In particular, it considers local judges’ relationships with the public that elects them, the executive and legislative branches of their localities, and the larger statewide judicial bureaucracy of which they are a very large but somewhat disconnected part. The Article reports on the results of interviews with local judges at the county, town, and village levels — and suggests some broader lessons for scholars, officials, and policymakers interested and active in local government law and politics. Those who study local government …

The Myth Of The Double- Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno

Faculty Scholarship

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience …

The Politics Of Narrative: Law And The Representation Of Mexican Criminality, Deborah Weissman

Fordham International Law Journal

No abstract provided.

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …

The Rise Of The Security State, Wang Yuhua, Carl F. Minzner

Faculty Scholarship

Over the past two decades, the Chinese domestic security apparatus has expanded dramatically. “Stability maintenance” operations have become a priority for local Chinese authorities. We argue that the birth of these trends dates to the early 1990s, when central Party authorities adopted new governance models that differed dramatically from those that of the 1980s. They increased the bureaucratic rank of public security chiefs within the Party apparatus, expanded the reach of the Party political-legal apparatus into a broader range of governance issues, and altered cadre evaluation standards to increase the sensitivity of local authorities to social protest. We show that …

Marriage As Black Citizenship?, Robin A. Lenhardt

Faculty Scholarship

The narrative of black marriage as citizenship enhancing has been pervasive in American history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to celebrate the 150th anniversary of Thirteenth Amendment, this Article argues that this narrative is one that we should resist. The complete story of marriage is one that involves racial subordination and caste. Even as the Supreme Court stands to extend marriage rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a legitimate frame for black loving relationships — gay or straight. Nonmarriage might do just as much, if not …

Legal Discourse And Racial Justice: The Urge To Cry ‘Bias!, Bruce A. Green

Faculty Scholarship

One who is convinced that a judge wrongly decided a case may sometimes be tempted to accuse the judge of bias, referring to unconscious social-group stereotypes and/or cognitive biases that fall under the rubric of “implicit biases.” The rhetoric is problematic, however, for various reasons. One is that the term “bias” in this context may be misunderstood to mean something different and unintended – either a disqualifying bias under judicial conduct rules or a conscious prejudice. Another is that, even if the intended meaning is clear, a judge’s implicit biases cannot fairly be inferred from a single wrong decision. To …

The War On Drugs And Prison Growth: Limited Importance, And Limited Legislative Options, John F. Pfaff

Faculty Scholarship

No abstract provided.

Race, Dignity, And The Right To Marry, Robin A. Lenhardt

Fordham Law Review

Justice Kennedy’s majority opinion in Obergefell v. Hodges asserts legal marriage’s capacity to afford same-sex couples a measure of “equal dignity” and belonging too long denied. In this Essay, I ask whether there is any reason to believe that marriage could do the same for African Americans. Could broader entrance into marriage, as some conservatives suggest, provide Blacks—gay and straight—a measure of belonging that has been frustratingly elusive, even as the nation prepares to celebrate the one hundred and fiftieth anniversary of the Thirteenth Amendment’s ratification?

Actual Innocence In New York: The Curious Case Of People V. Hamilton, Benjamin E. Rosenberg

Res Gestae

It is rare for a case from the New York Appellate Division to be as significant as People v. Hamilton. The case, however, was the first New York appellate court decision to hold that a defendant might vacate his conviction if he could demonstrate that he was “actually innocent” of the crime of which he was charged. Although the precedential force of the decision is limited to the Second Department, trial courts throughout the state are required to follow Hamilton unless or until the appellate court in their own Department rules on the issue. Courts throughout the state are …

Stein Center News - December 2014, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

The Special Skills Of Advocacy, Warren E. Burger

Fordham Law Review

    To commemorate our founding in 1914, the Board of Editors has selected six influential pieces published by the Law Review over the past 100 years and will republish one piece in each issue.

    The third piece selected by the Board is The Special Skills of Advocacy, a lecture delivered by the late Chief Justice Warren E. Burger that is among the most cited works in the Law Review’s history. Speaking at Fordham Law School on November 26, 1973, Chief Justice Burger advocated for law schools to better prepare students for skillful courtroom advocacy, declaring that “[w]e must acknowledge, …

The Court As Gatekeeper: Preventing Unreliable Pretrial Ediscovery From Jeopardizing A Reliable Fact-Finding Process, Daniel K. Gelb

Fordham Law Review

No abstract provided.

Workplace Discrimination As A Public Health Issue: The Necessity Of Title Vii Protections For Volunteers, Elizabeth R. Langton

Fordham Law Review

What constitutes an employee is a recurring issue in U.S. employment law, especially with respect to volunteers.  Under Title VII, an employee is defined as “an individual employed by an employer.”  The U.S. Supreme Court has found that this definition is circular and explains nothing.  Given the vague statutory definition of “employee,” circuit courts are split over the correct test to determine employee status for the purposes of Title VII.

Workplace discrimination is especially toxic because the majority of the adult population spends its waking hours at work.  Thus far, courts have been focused on the individual nature of workplace …

The Case For Ehearsay, Jeffrey Bellin

Fordham Law Review

No abstract provided.

Architects Of Justice: The Prosecutor’S Role And Resolving Whether Inadmissible Evidence Is Material Under The Brady Rule, Blaise Niosi

Fordham Law Review

In Brady v. Maryland, the U.S. Supreme Court held that the prosecution has a constitutional duty to disclose evidence favorable to the defendant’s guilt or punishment upon request.  The Court’s subsequent expansion of its holding in Brady has formed the “Brady rule,” which requires the prosecution to learn of and to disclose to the defendant all material exculpatory and impeachment information.  The Court defined “material” as information that would cause a reasonable probability of a different trial outcome had it been disclosed.

Currently, a circuit court split exists regarding whether evidence is material for purposes of the Brady …

Balancing “Aggression” And Compassion In International Law: The Crime Of Aggression And Humanitarian Intervention, Alexander H. Mccabe

Fordham Law Review

    There is a problematic overlap between bona fide humanitarian intervention and the crime of aggression. Under international law, the crime of aggression is defined so vaguely that it potentially could be applied to try leaders who seek to stop documented mass atrocities with armed force. This Note seeks a resolution to that overlap: a path that would allow those who would plan and engage in bona fide humanitarian intervention to be exempt from prosecution for aggression. The Note first examines the genealogy of the crime of aggression. It then analyzes several possible solutions to policing aggression without unduly deterring humanitarian …

Stein Center News - September 2014, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

Fordham Lawyer, No. 7 - Fall 2014, 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.

Stein Center News - June 2014, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

Stein Center For Law And Ethics Annual Report 2013 To 2014, Sherri Levine

Annual Reports

No abstract provided.

Anyone Can “Think Like A Lawyer”: How The Lawyers’ Monopoly On Legal Understanding Undermines Democracy And The Rule Of Law In The United States, Bridgette Dunlap

Fordham Law Review

No abstract provided.

Federal Enforcement Of Police Reform, Stephen Rushin

Fordham Law Review

    Congress passed 42 U.S.C. § 14141 in an effort to combat police misconduct and incentivize proactive reform in local law enforcement agencies. The statute gives the U.S. Attorney General the power to initiate structural reform litigation against local police departments engaged in a pattern or practice of unconstitutional behavior. While academics initially praised the law’s passage, many have since worried that the Department of Justice (DOJ) has not effectively administered the measure. Little research has analyzed how the DOJ has used its authority to initiate structural police reform. Using a combination of qualitative and quantitative methods, I fill this gap …

Fordham Lawyer, No. 6 - Spring 2014, 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.