Open Access. Powered by Scholars. Published by Universities.®

Digital Commons Network™

Open Access. Powered by Scholars. Published by Universities.®

Fordham Law School

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 991 - 1020 of 1757

Full-Text Articles in Entire DC Network

Supermajoritarianism And The American Criminal Jury, Ethan J. Leib Jan 2005

Supermajoritarianism And The American Criminal Jury, Ethan J. Leib

Faculty Scholarship

I argue in this article that supermajority decision rules would be more appropriate than unanimity or majority rule for criminal jury convictions and that majority decision rules would be more appropriate than either unanimity or supermajoritarian rules for acquittals. I first summarize some of the advantages and disadvantages of various decision rules as a matter of general democratic theory. I next outline the arguments made for various decision rules in the context of the criminal jury. Finally, I offer an argument for supermajoritarian requirements for conviction rooted in our general constitutional commitment to supermajoritarianism. I present a coherentist account for …


Criminal Law In A Post-Freudian World, Deborah W. Denno Jan 2005

Criminal Law In A Post-Freudian World, Deborah W. Denno

Faculty Scholarship

Freudian psychoanalytic theory has greatly influenced the modern definition of criminal culpability. Indeed, much of the language of key criminal statutes, cases, and psychiatric testimony is framed by psychoanalytic concepts. This impact is particularly evident in the Model Penal Code's mens rea provisions and defenses, which were developed in the 1950s and 1960s, a time of Freudian reign in the United States. For contemporary criminal law, however, this degree of psychoanalytic presence is troublesome. Freudian theory is difficult to apply to group conflicts and legal situations, and the theory emphasizes unconscious (rather than conscious) thoughts. The rising new science of …


Rights Myopia In Child Welfare, Clare Huntington Jan 2005

Rights Myopia In Child Welfare, Clare Huntington

Faculty Scholarship

For decades, legal scholars have debated the proper balance of parents' rights and children's rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents' rights nor children's rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict rather than collaboration between the state and families. In lieu of a solely rights-based …


Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan Jan 2005

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan

Faculty Scholarship

This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they …


Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein Jan 2005

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …


National Security Versus Defense Counsel's "Need To Know": An Objective Standard For Resolving The Tension, Rachel S. Holzer Jan 2005

National Security Versus Defense Counsel's "Need To Know": An Objective Standard For Resolving The Tension, Rachel S. Holzer

Fordham Law Review

No abstract provided.


Choosing Balance: Congressional Powers And The Partial-Birth Abortion Ban Act Of 2003, Alissa Schecter Jan 2005

Choosing Balance: Congressional Powers And The Partial-Birth Abortion Ban Act Of 2003, Alissa Schecter

Fordham Law Review

No abstract provided.


Sliding Down A Slippery Slope? The Future Use Of Administrative Subpoenas In Criminal Investigations, Risa Berkower Jan 2005

Sliding Down A Slippery Slope? The Future Use Of Administrative Subpoenas In Criminal Investigations, Risa Berkower

Fordham Law Review

No abstract provided.


A View From The Bench: Why Judges Fail To Protect Trust And Confidence In The Lawyer-Client Relationship—An Analysis And Proposal For Reform, Lindsay R. Goldstein Jan 2005

A View From The Bench: Why Judges Fail To Protect Trust And Confidence In The Lawyer-Client Relationship—An Analysis And Proposal For Reform, Lindsay R. Goldstein

Fordham Law Review

No abstract provided.


It's The Prosecution's Story, But They're Not Sticking To It: Applying Harmless Error And Judicial Estoppel To Exculpatory Post-Conviction Dna Testing Cases , Hilary S. Ritter Jan 2005

It's The Prosecution's Story, But They're Not Sticking To It: Applying Harmless Error And Judicial Estoppel To Exculpatory Post-Conviction Dna Testing Cases , Hilary S. Ritter

Fordham Law Review

No abstract provided.


Bearing The Cross, Tom Lininger Jan 2005

Bearing The Cross, Tom Lininger

Fordham Law Review

No abstract provided.


Historical Roots Of Regional Sentencing Variation, The Symposium, Ian Weinstein Jan 2005

Historical Roots Of Regional Sentencing Variation, The Symposium, Ian Weinstein

Faculty Scholarship

I am a law professor and a criminal defense lawyer, not a historian. It is with some trepidation that I stand before you to suggest that our very persistent regional sentencing variations have roots in the political struggles of Reformation England and the cultures of the subgroups that populated the first American colonies. I rely upon others for the historical proof, as you will see, but I think I do have standing to argue to you that we should consider whether or not there is room, even in federal sentencing, to account for deeply embedded regional variations in our basic …


Fordham Lawyer, Vol. 7 No. 2 - Fall 2004, Fordham Law School Sep 2004

Fordham Lawyer, Vol. 7 No. 2 - Fall 2004, 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.


Fordham Lawyer, Vol. 7 No. 1 - Summer 2004, Fordham Law School Jun 2004

Fordham Lawyer, Vol. 7 No. 1 - Summer 2004, 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.


Housing Gideon: The Right To Counsel In Eviction Cases , Rachel Kleinman Jan 2004

Housing Gideon: The Right To Counsel In Eviction Cases , Rachel Kleinman

Fordham Urban Law Journal

While the legal system recognizes an indigent’s constitutional right to counsel in a criminal trial the same is not true with respect to civil cases. This Comment examines this legal reality by focusing specifically on an indigent’s inability to gain access to counsel within the confines of eviction proceedings. The author lays out the arguments for both those who favor recognizing an indigent’s right to counsel in eviction proceedings and those opposed to recognizing that right. Ultimately, absent an indigent’s access to counsel in these civil cases, their ability to have any sort of meaningful access to justice is seriously …


Conference Report: New York City's Criminal Courts Are We Achieving Justice?, Martha Rayner Jan 2004

Conference Report: New York City's Criminal Courts Are We Achieving Justice?, Martha Rayner

Fordham Urban Law Journal

On October 18, 2003, more than one hundred professionals from the five boroughs of New York City came together to identify, evaluate, and begin to solve some of the complex problems embedded in the culture, operations, and practice in New York City's Criminal Courts. The conference planners focused on five problems that have undermined the pursuit of justice in New York City’s Criminal Court system for decades. The first group, Arraignment Norms, Practices and Culture, targeted professionalism and justice at the first and often last court appearance for people arrested and charged with misdemeanor crimes in New York City. The …


Too Little, Too Late: Ineffective Assistance Of Counsel, The Duty To Investigate, And Pretrial Discovery In Criminal Cases, Jenny Roberts Jan 2004

Too Little, Too Late: Ineffective Assistance Of Counsel, The Duty To Investigate, And Pretrial Discovery In Criminal Cases, Jenny Roberts

Fordham Urban Law Journal

Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, criminal discovery result in a much more limited flow of information. Many commentators, for many years, have called for the liberalization of criminal discovery statutes and rules. Indeed, some states have heeded the call. But about a dozen states follow the highly restrictive federal rule, which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to …


The International Criminal Court: A New And Necessary Institution Meriting Continued International Support, Judge Philippe Kirsch Jan 2004

The International Criminal Court: A New And Necessary Institution Meriting Continued International Support, Judge Philippe Kirsch

Fordham International Law Journal

This Article highlights some of the key features of the ICC, and concludes by outlining the support it will need in striving to create a world in which devastating actions are properly addressed and punished. Part I of this Note describes the history of the ICC. Part II discusses the crimes within the Court's jurisdiction. Part III further discusses jurisdiction. Part IV reviews the procedure of the court. Part V concerns the current status of the Court.


Universal Jurisdiction In Abstentia, Ryan Rabinovitch Jan 2004

Universal Jurisdiction In Abstentia, Ryan Rabinovitch

Fordham International Law Journal

The purpose of this Article is to provide some clarification of universal jurisdiction in absentia. It begins with a brief overview of the state of international law on the issue, centering on the decision of the minority judges who treated it in the Arrest Warrant decision, and discuss the applicable principles of international law, international treaties, and custom. It then briefly examines whether allowing States to exercise universal jurisdiction in absentia is consistent with the historical and philosophical justifications for the existence of universal jurisdiction generally. The final section of the Article discusses the policy implications of such an exercise.


Past As Prologue: Reconciling Recidivism And Culpability , Michael Edmund O'Neill, Linda Drazga Maxfield, Miles D. Harer Jan 2004

Past As Prologue: Reconciling Recidivism And Culpability , Michael Edmund O'Neill, Linda Drazga Maxfield, Miles D. Harer

Fordham Law Review

No abstract provided.


Donating Debt To Society: Prosecutorial And Judicial Ethics Of Plea Agreements And Sentences That Include Charitable Contributions, Sylvia Shaz Shweder Jan 2004

Donating Debt To Society: Prosecutorial And Judicial Ethics Of Plea Agreements And Sentences That Include Charitable Contributions, Sylvia Shaz Shweder

Fordham Law Review

No abstract provided.


Race And Ethnicity, Race And Social Justice: Rawlsian Considerations, Tommie Shelby Jan 2004

Race And Ethnicity, Race And Social Justice: Rawlsian Considerations, Tommie Shelby

Fordham Law Review

No abstract provided.


Access To Justice: Some Comments, Lawrence M. Friedman Jan 2004

Access To Justice: Some Comments, Lawrence M. Friedman

Fordham Law Review

No abstract provided.


Access To Justice: Again, Still, Deborah L. Rhode Jan 2004

Access To Justice: Again, Still, Deborah L. Rhode

Fordham Law Review

No abstract provided.


Of Course A Land Use Regulation That Fails To Substantially Advance Legitimate State Interests Results In A Regulatory Taking, Rs Radford Jan 2004

Of Course A Land Use Regulation That Fails To Substantially Advance Legitimate State Interests Results In A Regulatory Taking, Rs Radford

Fordham Environmental Law Review

No abstract provided.


Completing The Mandates Of The Ad Hoc International Criminal Tribunals: Lessons From The Nuremberg Process?, Daryl A. Mundis Jan 2004

Completing The Mandates Of The Ad Hoc International Criminal Tribunals: Lessons From The Nuremberg Process?, Daryl A. Mundis

Fordham International Law Journal

On September 2, 2004, the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) filed a formal request for the transfer of the Ademi & Norac case to Croatia, pursuant to Rule 11 bis of the ICTY Rules of Procedure and Evidence (“ICTY RPE”). With this filing, the Prosecutor took an important and positive step towards giving effect to the completion strategy of the ICTY. This Article will discuss the steps taken by the ICTY and its sister institution, the International Criminal Tribunal for Rwanda (“ICTR”), to fulfill their mandates by focusing only on the most senior perpetrators …


Should Public Relations Experts Ever Be Privileged Persons?, Deniza Gertsberg Jan 2004

Should Public Relations Experts Ever Be Privileged Persons?, Deniza Gertsberg

Fordham Urban Law Journal

This Comment addresses the issue of whether, and under what circumstances, a lawyer’s communications with a public relations expert, whose advice is only valuable to the extent that it is communicated fully and freely with the attorney, will be protected by the attorney-client privilege. This Comment focuses on the role of public relations firms in the criminal law context, where constitutional concerns often arise. The author begins by laying out the history and background of the attorney-client privilege, and how the defense lawyer’s role has changed as a result of the rise of mass media. The Comment then goes on …


When Two Become One: Views On Fletcher's "Two Patterns Of Criminality", Deborah W. Denno Jan 2004

When Two Become One: Views On Fletcher's "Two Patterns Of Criminality", Deborah W. Denno

Faculty Scholarship

George Fletcher's Rethinking Criminal Law (“Rethinking”) is the ultimate cut-to-the-chase treatise. The book does not belabor the frailties of existing criminal law, but rather predicts an overhaul of much of its doctrine. This essay marks a tribute to Rethinking's influence by examining two of the book's well known “patterns of criminality”: (1) “manifest criminality,” which proposes that crimes are acts that any “objective” observer would clearly recognize as illegal without knowing anything about the mental state of the person committing those acts, and, in stark contrast, (2) “subjective criminality,” which suggests that crimes are consciously intended and experienced only by …


Econometric Analyses Of U.S. Abortion Policy: A Critical View, Jonathan Klick Jan 2004

Econometric Analyses Of U.S. Abortion Policy: A Critical View, Jonathan Klick

Fordham Urban Law Journal

This article surveys, in non-technical language, various econometric studies on the correlation between changes in access to abortion (whether through legalization, increased public funding, increased safety, etc.) and social phenomena such as sexual activity, crime, and opportunities for women. It argues that many econometrics-based abortion studies are contentious, often yielding varying results depending on the stakes of those commissioning the studies, and often too technical to be useful to policy-makers. As a result of these shortcomings, the author calls for methodological soundness and publication for a more general audience for those social scientists who want to enter the reproductive rights …


Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reenty Into Criminal Defense Lawyering, Michael Pinard Jan 2004

Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reenty Into Criminal Defense Lawyering, Michael Pinard

Fordham Urban Law Journal

Over the past two decades, public defender offices across the country have broadened the range of defense services provided to indigent clients. These expanded services, some of which involve representing clients on related non-criminal matters such as housing and public benefits, are included in what is now commonly referred to as "holistic representation."' This form of representation strives to encompass the various underlying issues that often lead to clients’ experiences with the criminal justice system, with the aim of addressing those circumstances and preventing future criminal involvement. Holistic representation signals a paradigmatic shift in defense philosophy and ideology and has …