Digital Commons Network^™

May Federal Prosecutors Take Direction From The President?, Bruce Green, Rebecca Roiphe

Articles & Chapters

Suppose the president sought to serve as prosecutor-in-chief telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president's direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president …

Commodifying Consumer Data In The Era Of The Internet Of Things, Stacy-Ann Elvy

Articles & Chapters

Internet of Things (“IOT”) products generate a wealth of data about consumers that was never before widely and easily accessible to companies. Examples include biometric and health-related data, such as fingerprint patterns, heart rates and calories burned. This Article explores the connection between the types of data generated by the IOT and the financial frameworks of Article 9 of the Uniform Commercial Code and the Bankruptcy Code. It critiques these regimes, which enable the commodification of consumer data, as well as laws aimed at protecting consumer data, such as the Bankruptcy Abuse Prevention and Consumer Protection Act, various state biometric …

My Brain Is So Wired; Neuroimaging's Role In Competency Cases Involved Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch

Articles & Chapters

In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas.

There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than a …

'The Pain I Rise Above': How International Human Rights Can Best Realize The Needs Of Persons With Trauma-Related Mental Disabilities, Mehgan Gallagher, Michael L. Perlin

Articles & Chapters

No abstract provided.

'Your Old Road Is/Rapidly Agin': International Human Rights Standards And Their Impact On Forensic Psychologists, The Practice Of Forensic Psychology, And The Conditions Of Institutionalization Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

An earlier version of this paper was presented as the Lynn Stuart Weiss lecture at the American Psychological Association yearly conference, sponsored by the American Psychology-Law Society and the American Psychology Foundation, August 2016, Denver, Colorado.

For years, considerations of the relationship between international human rights standards and the work of forensic psychologists have focused on the role of organized psychology in prisoner abuse at Guantanamo Bay and Abu Ghirab. That issue has been widely discussed and debated, and these discussions show no sign of abating. But there has been virtually no attention given to another issue of international human …

She's Nobody's Child/The Law Can't Touch Her At All': Seeking To Bring Dignity To Legal Proceedings Involving Juveniles, Michael L. Perlin, Alison Lynch

Articles & Chapters

Recent Supreme Court decisions declaring unconstitutional both capital punishment (Roper v. Simmons, 2005) and life without parole (Graham v. Florida, 2010) in cases involving juveniles might lead a casual observer to think that we are now in an era in which dignity of juveniles is privileged in the legal system and in which humiliation and shame are subordinated. This observation, sadly, would be wrong.

Inquiries into a range of issues involving juveniles – commitment to psychiatric institutions; trials in juvenile courts; aspects of criminal procedure that, in many jurisdictions, bar juveniles from raising the incompetency status or the insanity defense; …

Who's Pretending To Care For Him? How The Endless Jail-To-Hospital-To-Street-Repeat Cycle Deprives Persons With Mental Disabilities The Right To Continuity Of Care, Naomi Weinstein, Michael L. Perlin

Articles & Chapters

There is a well-documented “shuttle process” by which individuals committed to psychiatric institutions (having been charged with minor “nuisance”-type criminal offenses) are often stabilized, returned to jail to await trial, and then returned to the hospital following relapse. This shuttling or cycling is bad for many reasons, not least of which is the way that it deprives the cohort of individuals at risk from any meaningful continuity of care. Continuity of care is crucial in order to reduce the rate of incarceration and institutionalization for persons with mental illness. Without this continuity, it is far less likely that any therapeutic …

On Desolation Row: The Blurring Of The Borders Between Civil And Criminal Mental Disability Law, And What It Means To All Of Us, Michael L. Perlin, Deborah Dorfman, Naomi Weinstein

Articles & Chapters

One of the great tensions of mental disability law is the unresolved, trompe d’oeil question of whether it is a subset of the civil law, of the criminal law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental disability law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental disability law-decision making. As mental disability law has matured, a dual …

Panelist: Dedication Ceremony Of The Honorable Robert L. Carter Attorney Lounge, Lewis M. Steel '63

Miscellaneous Materials

Only the transcript of Lewis Steel's speech is available (pages 24-26, and 40-45)

Viewbook 2017, New York Law School

Admissions Viewbooks

To view online version, click here.

Why A Disability Rights Tribunal Must Be Premised On Therapeutic Jurisprudence Principles, Michael L. Perlin, Mehgan Gallagher

Articles & Chapters

The authors have previously written about the need for a disability rights tribunal in Asia (DRTAP) along with an information center (DRICAP) as part of that tribunal so that litigants can easily access the controlling domestic case law, statutes and regulations of the participating nations.

We believe a successful DRTAP must be premised on therapeutic jurisprudence (TJ) principles, and that its creation would be hollow without dedicated and knowledgeable lawyers representing the population in question. In accordance with TJ principles, it must incorporate “voice, validation and voluntary participation” to insure that litigants have a sense of voice or a chance …

Life's Hurried Tangled Road: A Therapeutic Jurisprudence Analysis Of Why Dedicated Counsel Must Be Assigned To Represent Persons With Mental Disabilities In Community Settings, Alison Lynch, Michael L. Perlin

Articles & Chapters

This paper will be published as part of a symposium issue of Behavioral Sciences and Law.

Although counsel is now assigned in all jurisdictions to provide legal representation to persons facing involuntary civil commitment, such counsel is rarely available to persons with mental disabilities in other settings outside the hospital. In this paper, we strongly urge that such representation also be made available to this population in community settings. The scope of this representation must include any involvement with the criminal justice system that currently does not fall within the scope of indigent counsel assignment decisions such as Gideon v. …

The Global Jurist As Pedagogue? Ronald Dworkin In Post-Junta Argentina, Ruti G. Teitel

Articles & Chapters

On the 30th anniversary of Argentina's Junta trials, this article reflects on their enduring significance and the tensions raised by the exercise of transitional justice in the post-Junta period. It analyses the dilemmas raised by the exercise of justice in conditions of political flux by looking at the distinct role played by public philosophers, in particular, Ronald Dworkin.

2017 Commencement Program, New York Law School

Commencement Programs

Click here to view online.

Strategic Plan Progress And Outcomes (2017), New York Law School

Strategic Plan and Initiatives

No abstract provided.

New York Law School Magazine, Vol. 36, No. 2 (2017), New York Law School

New York Law School Magazine

Features:

Bookshelf: Professor David Schoenbrod’s DC Confidential: Inside the Five Tricks of Washington

Answering the Call: NYLS leads the way in a new era of immigration law

Ready to Launch: Five students reflected on beginning their final year at NYLS

Tolling For The Aching Ones Whose Wounds Cannot Be Nursed’: The Marginalization Of Racial Minorities And Women In Institutional Mental Disability Law, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Individuals with mental disabilities have traditionally been and continue to be subjected to rights violations and pervasive discrimination because of their mental disabilities. Seen as “the other,” individuals who are racial minorities and/or are women are marginalized to an even greater extent than other persons with mental disabilities in matters related to civil commitment and institutional treatment (especially involving theright to refuse medication).

It is impossible to examine these questions critically without coming to grips with the ways that expert testimony — testimony that is essential and necessary in all these cases — is infected with bias that leads to …

Mental Disability Law: Cases And Materials, 3rd Ed (2017), Michael L. Perlin, Heather Ellis Cucolo, Alison Lynch

Books

This comprehensive casebook covers all areas of civil commitment law, institutional rights law, community rights law, sex offenders law, and the Americans with Disabilities Act. Mental Disability Law also explores all aspects of the criminal process, including all criminal competencies, the insanity defense, trial practice issues, sentencing and the death penalty. It is the only casebook available that considers the important factors that have shaped mental disability law — sanism, pretextuality, heuristics and false “ordinary common sense.” The third edition includes expanded new sections on therapeutic jurisprudence and international human rights law.

Leaning In On Television, Corie Rosen Felder

NYLS Law Review

No abstract provided.

A Reflection On Hcc V. Sale: A Conversation Between The Honorable Sterling Johnson, Jr. And Professor Brandt Goldstein, The Honorable Sterling Johnson Jr.

NYLS Law Review

No abstract provided.

The Cost Of Comfort: Protecting A Criminal Defendant’S Constitutional Rights When Child Witnesses Request Comfort Accommodations, Angela Nascondiglio

NYLS Law Review

No abstract provided.

Ankle Monitors For Everyone: The Plight Of Eyewitness Identifications In Louisiana, Quinn Rapp-Ellis

NYLS Law Review

No abstract provided.

United States V. Ermoian, Anisa Bartholomew

NYLS Law Review

No abstract provided.

Rights-Based And Tech-Driven: Open Data, Freedom Of Information, And The Future Of Government Transparency, Beth Simone Noveck

Articles & Chapters

Open data policy mandates that government proactively publish its data online for the public to reuse. It is a radically different approach to transparency than traditional right-to-know strategies as embodied in Freedom of Information Act (FOIA) legislation in that it involves ex ante rather than ex post disclosure of whole datasets. Although both open data and FOIA deal with information sharing, the normative essence of open data is participation rather than litigation. By fostering public engagement, open data shifts the relationship between state and citizen from a monitorial to a collaborative one, centered around using information to solve problems together. …

A Contextual Approach To Harmless Error Review, Justin Murray

Articles & Chapters

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …

God Said To Abraham/Kill Me A Son: Why The Insanity Defense And The Incompetency Status Are Compatible With And Required By The Convention On The Rights Of Persons With Disabilities And Basic Principles Of Therapeutic Jurisprudence, Michael L. Perlin

Articles & Chapters

Interpretations of the General Comments to the Convention on the Rights of Persons with Disabilities (CRPD) — that command the abolition of the insanity defense and the incompetency status — make no theoretical or conceptual sense, disregard the history of how society has treated persons with serious mental disabilities who are charged with crime, and will lead to predictable torture of this population in prison, at the hands of both prison guards and other prisoners. Such interpretation also flies in the face of every precept of therapeutic jurisprudence. Support of this position exhibits a startling lack of understanding of the …

Rethinking Prosecutors' Conflicts Of Interest, Bruce Green, Rebecca Roiphe

Articles & Chapters

Conflicts of interest are endemic to almost all prosecutors’ discretionary decisions, and are the source of many instances of misconduct and abuse. Prosecutors’ decisions are riddled with complex motivations, beliefs, and interests that potentially divert them from their duty to do justice. Understood as any personal belief or interest that could interfere with the prosecutors’ ability to serve the public interest, conflicts of interest threaten to undermine the efficacy and legitimacy of the criminal justice system. The traditional regulatory system barely addresses the problem and could never effectively do so. Drawing on experimentalism, which mandates that local actors design and …

The Duty To Charge In Police Use Of Excessive Force Cases, Rebecca Roiphe

Articles & Chapters

Responding to the problems of mass incarceration, racial disparities in justice, and wrongful convictions, scholars have focused on prosecutorial overcharging. They have, however, neglected to address undercharging the failure to charge in entire classes of cases. Undercharging can similarly undermine theefficacy and legitimacy of the criminal justice system. While few have focused on this question in thedomestic criminal law context, international law scholars have long recognized the social and structural cost for nascent democratic states when they fail to charge those responsible for the prior regime’s human rights abuses. This sort of impunity threatens the rule of law and misses …

The Insanity Defense: Nine Myths That Will Not Go Away, Michael L. Perlin

Articles & Chapters

Writing about the insanity defense over a quarter of a century ago, the author of this chapter stated: "Until we 'unpack' the empirical and social myths that underlie our misconceptions about the insane and the insanitydefense and hold us in a paralytic thrall, we cannot begin to move forward." Some five years later, he began a full-length book on the insanity defense by alleging, "Our insanity defense jurisprudence is incoherent." Five years after that, he concluded that "we as a society remain fixated on the insanity defense as a symbol of all that is wrong with the criminal justice system …

New York Law School Magazine, Vol. 36, No. 1, New York Law School

New York Law School Magazine

Features:

Field & Campus: Dispatches from 185 West Broadway

On the Record: Excerpts from recent faculty writing

“I Am New York Law School”: Portraits of recent alumni and 1Ls

Honor Roll of Donors: Our tribute to those whose support means so much

To view online version, click here.