Digital Commons Network^™

Strengthening The Criminal Defendant's Right To Counsel, Anne Bowen Poulin

Cardozo Law Review

No abstract provided.

The Next Step In Interpreting Criminal Forfeiture, Avital Blanchard

Cardozo Law Review

No abstract provided.

Looking At The Overlooked: Portraits Of Law School Deans, Peter Goodrich

Articles

The article examines the role of portraits in law schools, arguing that these images are not merely decorative but serve as powerful symbols that shape institutional identity and the legal profession. Despite their ubiquity, these portraits are often overlooked, yet they function as megalographs, inscribing and disseminating the values, history, and authority of the institution. The author contends that these visual elements play a crucial role in the formation of legal identity and the symbolic order of law schools.

Two Constitutional Wrongs Do Not Make A Right: Double Jeopardy And Prosecutorial Misconduct Under The Brady Doctrine, Adam M. Harris

Cardozo Law Review

No abstract provided.

An Unwarranted Disparity: Granting Fast-Track Departures In Non-Fast-Track Districts, Evan W. Bolla

Cardozo Law Review

No abstract provided.

Exploding The Class Action Agency Costs Myth: The Social Utility Of Entrepreneurial Lawyers, Myriam E. Gilles, Gary B. Friedman

Articles

In this article, we challenge the traditional view that entrepreneurial plaintiffs' class action lawyers operating entirely according to their own economic self-interest serve no social utility, or worse yet, tremendous disutility. In seeking to counter this notion, we try to show that the agency costs problem long derided in class action practice is overblown: in the majority of small-claims class actions, there is no legitimate reason to care whether class members are being undercompensated (or compensated at all), nor any reason to worry that entrepreneurial lawyers are being overcompensated. Rather, we assert that the driving force behind class action practice …

Punishment, Prisons, And The Bible: Does "Old Testament Justice" Justify Our Retributive Culture?, Martin H. Pritikin

Cardozo Law Review

No abstract provided.

Keynote Address: Secret Evidence In The Age Of National Security, Adam Liptak

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security and the First Amendment, arguing that while the First Amendment remains a robust protection against government censorship, recent trends threaten press freedom, particularly in protecting confidential sources and accessing information. The author, drawing on personal experience as a media lawyer and reporter, emphasizes the importance of procedural safeguards and judicial oversight to prevent government overreach and ensure transparency.

Whose Life Is It Anyway?, Kam C. Wong

Cardozo Public Law, Policy & Ethics Journal

The article explores the complex ethical, legal, and societal dimensions of the right-to-die debate, emphasizing the need for a nuanced approach that moves beyond simplistic moral framing. It argues that the debate is inherently exploratory and tentative, shaped by cultural and personal values, and calls for a reassessment of existing perspectives to foster creative solutions. The central thesis underscores the inevitability of euthanasia as a societal issue and advocates for balanced policies that respect individual autonomy while addressing broader societal concerns.

Modem Legal Reform In Egypt: Shifting Claims To Legal Authority, Shannon M. Roesler

Cardozo Journal of International and Comparative Law

The article challenges the notion that Egyptian legal reform simply replaced Islamic law with European law, instead presenting it as a complex interplay where Islamic legal theory and European influences coexist. It highlights the dynamic process of integrating Islamic principles into the legal system, emphasizing the historical negotiation between fiqh (Islamic jurisprudence) and siyasa (state governance).

Allocution And The Purposes Of Victim Participation Under The Cvra, Richard A. Bierschbach

Articles

The article examines the interpretive challenges surrounding Section 3771(a)(4) of the Crime Victims' Rights Act (CVRA) of 2004, which grants victims the right to be "reasonably heard" in certain court proceedings. The CVRA aims to integrate victims into the criminal justice system, but its ambiguous language has led to conflicting court interpretations, particularly regarding whether victims have an absolute right to speak at sentencing. The article explores the legislative intent, purposes behind the provision, and the effectiveness of victim participation mechanisms, ultimately advocating for clearer policy guidance to address these ambiguities.

Privileged Evidence And State Security Under The Israeli Law: Are We Doomed To Fail?, Ami Kobo

Cardozo Public Law, Policy & Ethics Journal

The article examines Israel's legal framework for handling privileged evidence in criminal proceedings, particularly in cases involving state security or public interest. It argues that while Israeli law establishes a balancing test to weigh the need for disclosure against security interests, practical implementation often fails, risking miscarriages of justice. The analysis highlights systemic flaws through cases like Livny and Abu Saada, where the failure to disclose critical evidence led to wrongful convictions. The author suggests procedural reforms to enhance the adversarial process and mitigate these risks.

Panel Report: Issues In Article Iii Courts, Debra A. Livingston

Cardozo Public Law, Policy & Ethics Journal

The article explores the challenges Article III courts face in balancing national security interests with procedural due process when handling cases involving classified information, particularly in terrorism-related prosecutions. It examines the logistical, constitutional, and evidentiary issues arising from the use of secret evidence, raising questions about the adequacy of current legal frameworks and the potential need for alternative procedural mechanisms.

Introduction, Ellen Yaroshefsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the growing use of secret evidence in various legal contexts, particularly in the post-9/11 era, and explores the tension between national security concerns and fundamental legal principles such as due process, transparency, and the adversary system. It highlights the need to balance these competing interests while ensuring the integrity of legal proceedings. The symposium and subsequent articles analyze the implications of secret evidence across investigative stages, military tribunals, Article III courts, and immigration proceedings, as well as its impact on First Amendment rights and investigative journalism.

Panel Report: National Security Secrecy In The Courts: A Comparative Perspective From Israel And Ireland, Peter Raven-Hansen

Cardozo Public Law, Policy & Ethics Journal

The article examines how democratic nations, including Israel, Ireland, and the United States, balance national security secrecy with the rule of law in terrorism prosecutions. It highlights the challenges of using secret evidence in criminal trials while maintaining fair procedures, comparing the legal frameworks and practices of these countries. The analysis reveals common issues, such as the tension between protecting sensitive information and ensuring defendants' rights, and underscores the need for transparency and procedural integrity in terrorism cases.

The Slow Erosion Of The Adversary System: Article Iii Courts, Fisa, Cipa And Ethical Dilemmas, Ellen C. Yaroshefsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the increasing reliance on secret evidence in U.S. legal proceedings, particularly in post-9/11 national security and terrorism cases, facilitated by the Classified Information Procedures Act (CIPA) and the Foreign Intelligence Surveillance Act (FISA). This trend undermines the adversarial system by denying defendants access to relevant information, raising ethical concerns for defense attorneys, and potentially eroding constitutional rights. The author advocates for reforms to balance national security with civil liberties, emphasizing the need for judicial vigilance and legislative changes to address these issues.

Civil Commitment Of Sexually Violent Predators: The Search For A Limiting Principle, Aman Ahluwalia

Cardozo Public Law, Policy & Ethics Journal

The article challenges the legal and empirical justifications for civil commitment of sexually violent predators, arguing that current standards, such as mental abnormality and lack of control, are overly broad and lack robust empirical support. It contends that recidivism rates for sex offenders are not significantly higher than those of other offenders, undermining the rationale for civil commitment. The analysis advocates for a more nuanced approach to incapacitation, emphasizing criminal law solutions over medicalized commitments.

Reconciling The Booker Conflict: A Substantive Sixth Amendment In A Real Offense Sentencing System, Bertrall L. Ross Ii

Cardozo Public Law, Policy & Ethics Journal

The article examines the tension between the Sixth Amendment right to a jury trial and real offense sentencing, arguing that this conflict is not inevitable and can be reconciled. It advocates for a system where the jury plays a substantive role in checking judicial discretion during sentencing, ensuring constitutional protections while allowing judges to individualize sentences based on real offense factors. The proposed framework moves beyond the separation of functions model, integrating the jury into sentencing decisions to balance retributive punishment with constitutional safeguards.

2006 Commencement Exercises, Benjamin N. Cardozo School Of Law

Commencement

Order of Exercises

Processional:

Herbert C. Dobrinsky, Vice President for University Affairs, Yeshiva University; Herald

Michael E. Herz, Professor of Law, Benjamin N. Cardozo School of Law; Head Marshal

Presiding:

Morton Lowengrub, Vice President for Academic Affairs, Yeshiva University; Chief Marshal

Richard M. Joel, President, Yeshiva University

National Anthem:

Cantor Ira W. Heller, Class of 2008

Invocation:

Rabbi Ozer Glickman, Adjunct Professor, Benjamin N. Cardozo School of Law

Welcome:

Kathryn O. Greenberg, Chair, Board of Directors, Benjamin N. Cardozo School of Law; Class of 1982

Remarks:

David Rudenstine, Vice President for Legal Education, Yeshiva University; Dean, Benjamin N. Cardozo School …

"Why Don't You Take Another Look At Number Three?": Investigator Knowledge And Its Effects On Eyewitness Confidence And Identification Decisions, Melissa B. Russano, Jason J. Dickinson, Sarah M. Greathouse, Margaret Bull Kovera

Cardozo Public Law, Policy & Ethics Journal

The article examines the impact of investigator knowledge on eyewitness identification and confidence, highlighting the potential for bias and the importance of implementing double-blind lineup procedures to mitigate such influences. It emphasizes the need for further research and policy changes to enhance the reliability of eyewitness testimony.

Eyewitness Identification, Democratic Deliberation, And The Politics Of Science, Andrew E. Taslitz

Cardozo Public Law, Policy & Ethics Journal

The article examines the intersection of social science and legal policy in eyewitness identification, focusing on the role of prosecutors and the American Bar Association (ABA) Eyewitness Resolution. It argues that while social science provides critical insights to improve identification accuracy, the translation of these insights into legal policy involves normative judgments that balance competing values, such as protecting the innocent and ensuring public safety. The author critiques the limitations of internal deliberative processes within law enforcement and prosecutorial offices, advocating for more transparent and inclusive deliberative structures to address systemic errors and promote justice.

Improving Eyewitness Identifications: Hennepin County's Blind Sequential Lineup Pilot Project, Amy Klobuchar, Nancy K. Mehrkens Steblay, Hilary Lindell Caligiuri

Cardozo Public Law, Policy & Ethics Journal

The article examines the effectiveness of Hennepin County's blind sequential lineup pilot project in improving eyewitness identification accuracy. By implementing a protocol where photos are shown one at a time by an administrator unaware of the suspect, the study aims to reduce misidentifications and enhance the reliability of eyewitness testimony in criminal investigations.

Designs For Immunity: A Comparison Of The Criminal Prosecution Of United States Presidents & Italian Prime Ministers, Brianne Biggiani

Cardozo Journal of International and Comparative Law

The note examines the differing approaches of the United States and Italy in granting criminal prosecution immunity to their leaders, emphasizing the role of institutional strength and historical context. It argues that while the U.S. policy of temporary presidential immunity is justifiable due to its robust checks and balances, Italy's weaker governance structure and history of corruption make similar immunity measures inappropriate. The analysis highlights the importance of tailoring legal frameworks to a nation's specific political and cultural conditions.

Introduction, Barry Scheck

Cardozo Public Law, Policy & Ethics Journal

The symposium aims to reform eyewitness identification procedures by fostering dialogue between law enforcement, social scientists, and legal experts. It seeks to address the high rates of mistaken identifications and improve the accuracy and reliability of eyewitness testimony through scientific research and practical implementations. The event highlights the human impact of wrongful convictions and explores evidence-based solutions to prevent such injustices.

Transcript Of Penny Beerntsen's Speech, Penny Beerntsen

Cardozo Public Law, Policy & Ethics Journal

The transcript recounts Penny Beernsten's harrowing experience of being assaulted and mistakenly identifying Steven Avery as her assailant, leading to his wrongful conviction and imprisonment for 18 years. The speech underscores the fallibility of eyewitness testimony and the devastating consequences of such errors in the criminal justice system. It highlights the importance of reforming eyewitness identification procedures and the role of DNA evidence in exonerating the wrongly convicted.

A Sample Of Witness, Crime, And Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, Brian L. Cutler

Cardozo Public Law, Policy & Ethics Journal

The article examines the impact of estimator variables on eyewitness identification accuracy, focusing on six key factors: own-race bias, exposure duration, masking of hair and hairline cues, weapon focus, eyewitness stress, and passage of time. It argues that these variables significantly influence identification accuracy and are not merely matters of common sense, emphasizing the need for expert testimony and education for legal professionals.

Keynote Address: Reforming Eyewitness Identification, Thomas P. Sullivan

Cardozo Public Law, Policy & Ethics Journal

The article addresses the critical issue of eyewitness identification errors in criminal investigations, highlighting their role in wrongful convictions. It advocates for reform through improved identification procedures, particularly the sequential lineup method, and emphasizes the need for public and professional education on the fallibility of eyewitness testimony.

Police Identification Procedures: A Time For Change, Kenneth Patenaude

Cardozo Public Law, Policy & Ethics Journal

The article argues that eyewitness testimony, despite its influence, is often unreliable and a leading cause of wrongful convictions. The author, Lt. Kenneth Patenaude, details his involvement with the Department of Justice in developing the NIJ Guide to improve eyewitness evidence handling. The guide provides best practices aimed at reducing misidentifications and ensuring more reliable evidence in legal proceedings.

Must We Trade Rights For Security? The Choice Between Smart, Harsh, Or Proportionate Security Strategies In Canada And Britain, Kent Roach

Cardozo Law Review

No abstract provided.

Partial Ban On Plea Bargains, Oren Gazal-Ayal

Cardozo Law Review

The influence of the plea bargaining system on innocent defendants is fiercely debated. Many scholars call for a ban on plea bargaining, arguing that the practice coerces innocent defendants to plead guilty. Proponents of plea bargaining respond that even an innocent defendant is better off when he chooses to plea bargain in order to assure a lenient result, if he concludes that the risk of wrongful trial conviction is too high. They claim that since plea bargaining is only an option, it cannot harm the defendant whether he is guilty or innocent. This paper argues that both supporters and opponents …