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Articles 121 - 150 of 607
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Deceptively Simple: Framing, Intuition, And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty
Deceptively Simple: Framing, Intuition, And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty
Fordham Law Review
This Article explains how courts have skirted the reliability problem of FCM evidence and argues that judges perceive the question of FCM evidence to be a simple problem that cross-examination can solve. Relying on insights from cognitive science to help explain the resistance of the courts to FCM evidence challenges, the Article urges courts to recognize the complexity of FCM evidence and refocus on the danger such evidence poses for continued wrongful conviction. By framing the admissibility of FCM evidence as an “easy” question, courts are relying on heuristics—that is, shortcuts—to solve complex problems. As this Article explains, using heuristics …
Symposium On Forensic Expert Testimony, Daubert, And Rule 702, Daniel J. Capra
Symposium On Forensic Expert Testimony, Daubert, And Rule 702, Daniel J. Capra
Fordham Law Review
No abstract provided.
The Myth Of The Reliability Test, Brandon L. Garret, Chris Fabricant
The Myth Of The Reliability Test, Brandon L. Garret, Chris Fabricant
Fordham Law Review
The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing. This Article examines whether Rule 702 is in fact functioning as a reliability test, focusing on forensic evidence used in criminal cases …
The Critical Role Of Statistics In Demostrating The Reliability Of Expert Evidence, Karen Kafadar
The Critical Role Of Statistics In Demostrating The Reliability Of Expert Evidence, Karen Kafadar
Fordham Law Review
Federal Rule of Evidence 702, which covers testimony by expert witnesses, allows a witness to testify “in the form of an opinion or otherwise” if “the testimony is based on sufficient facts or data” and “is the product of reliable principles and methods” that have been “reliably applied.” The determination of “sufficient” (facts or data) and whether the “reliable principles and methods” relate to the scientific question at hand involve more discrimination than the current Rule 702 may suggest. Using examples from latent fingerprint matching and trace evidence (bullet lead and glass), I offer some criteria that scientists often consider …
The Duty To Investigate And The Availability Of Expert Witnesses, Stephen A. Saltzburg
The Duty To Investigate And The Availability Of Expert Witnesses, Stephen A. Saltzburg
Fordham Law Review
To assess the likelihood that the proposed rule will assure better representation for criminal defendants, this Article proceeds as follows: Part I provides a general review of the effective assistance of counsel standard. Next, Part II focuses on the specific duty of defense counsel to investigate. Part III then examines the constitutional right of indigent criminal defendants to have expert assistance at government expense. Part IV proceeds to examine proposed Rule 707 and argues that it will not accomplish its purpose unless criminal defendants and their counsel have access to expert resources that match those relied upon by the government. …
The Intuitive Appeal Of Explainable Machines, Andrew D. Selbst, Solon Barocas
The Intuitive Appeal Of Explainable Machines, Andrew D. Selbst, Solon Barocas
Fordham Law Review
Algorithmic decision-making has become synonymous with inexplicable decision-making, but what makes algorithms so difficult to explain? This Article examines what sets machine learning apart from other ways of developing rules for decision-making and the problem these properties pose for explanation. We show that machine learning models can be both inscrutable and nonintuitive and that these are related, but distinct, properties. Calls for explanation have treated these problems as one and the same, but disentangling the two reveals that they demand very different responses. Dealing with inscrutability requires providing a sensible description of the rules; addressing nonintuitiveness requires providing a satisfying …
Implicit Racial Biases In Prosecutorial Summations: Proposing An Integrated Response, Praatika Prasad
Implicit Racial Biases In Prosecutorial Summations: Proposing An Integrated Response, Praatika Prasad
Fordham Law Review
Racial bias has evolved from the explicit racism of the Jim Crow era to amore subtle and difficult-to-detect form: implicit racial bias. Implicit racial biases exist unconsciously and include negative racial stereotypes andassociations. Everyone, including actors in the criminal justice system who believe themselves to be fair, possess these biases. Although inaccessible through introspection, implicit biases can easily be triggered through language. When trials involve Black defendants, prosecutors’ summations increasingly include racial themes that could trigger jurors’ implicit biases, lead to the perpetuation of unfair stereotypes, and contribute to racial injustice and disparate outcomes. This Note examines and critiques the …
Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile
Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile
Fordham Law Review
This Foreword provides an overview of Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Center on Race, Law & Justice. Even fifty years later, Loving provides ample foundation for an inquiry into the operation of race and racial inequality in the United States, which touches on the queries outlined above, as well as many others. In our view, a symposium focused on Loving makes a significant contribution by deepening scholarly analysis of that decision and by explicating the kinds of …
A Voice For One, Or A Voice For The People: Balancing Prosecutorial Speech Protections With Community Trust, Immanuel Kim
A Voice For One, Or A Voice For The People: Balancing Prosecutorial Speech Protections With Community Trust, Immanuel Kim
Fordham Law Review
Prosecutors, as representatives of the public in the criminal justice system, are the sole advocates for “the People” in a criminal case. Thus, prosecutors are expected to maintain a particular level of integrity that would ensure a fair and just representation of the People. Despite this expectation, the wide discretionary authority prosecutors hold makes it virtually impossible to regulate their conduct. Furthermore, the First Amendment of the U.S. Constitution protects many expressions of viewpoints, and such protections extend—albeit to a limited degree—to prosecutors, thereby giving them even more discretion in how they decide to handle their own cases. Nonetheless, the …
American Equal Protection And Global Convergence, Holning Lau, Hillary Li
American Equal Protection And Global Convergence, Holning Lau, Hillary Li
Fordham Law Review
Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First, the Court has begun to blur the line that it previously drew between facial discrimination and disparate impact. Second, the Court has begun to collapse its previously established tiered standards for reviewing discrimination. These two trajectories combine to produce a third trajectory of change: by …
Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn
Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn
Fordham Law Review
Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure—confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The contents of this draft …
Adjudication In The Age Of Disagreement, John Fabian Witt
Adjudication In The Age Of Disagreement, John Fabian Witt
Fordham Law Review
In the time I have here with you today I would like to offer the beginnings of an answer. It does not lie in the distance between the court’s traditions and Manton’s conduct. That would be too easy. At base, I think the answer lies in something far more subtle and interesting: the relationship between acentral tradition of the Second Circuit and one of the great questions we face as a society today. That question is how to deal with disagreement.
Bathroom Laws As Status Crimes, Stephen Rushin, Jenny Carroll
Bathroom Laws As Status Crimes, Stephen Rushin, Jenny Carroll
Fordham Law Review
A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals. By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize it. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would …
Asset Forfeiture And Attorneys’ Fees: The Zero-Sum Game, Adam R. Cohen
Asset Forfeiture And Attorneys’ Fees: The Zero-Sum Game, Adam R. Cohen
Fordham Law Review
The history of asset forfeiture law spans almost as long as the history of the United States. However, in the last thirty years, the number of crimes for which asset forfeiture can be levied has grown exponentially both on the federal and state levels. As a result, a growing number of defendants face asset forfeiture. When these criminal defendants seek legal representation, they place their attorneys in a difficult legal and ethical position. Asset forfeiture has developed in such a way that the criminal defense attorney cannot provide her client with zealous advocacy if the attorney seeks to retain her …
Reflections On The Challenge Of Inez Moore: Family Integrity In The Wake Of Mass Incarceration, Ann Cammett
Reflections On The Challenge Of Inez Moore: Family Integrity In The Wake Of Mass Incarceration, Ann Cammett
Fordham Law Review
The U.S. Supreme Court case Moore v. City of East Cleveland has long been celebrated as affirming constitutional rights related to family integrity. The Moore holding specifically confirmed the Court’s obligation to scrutinize housing ordinances that regulate a traditional family’s household composition. By comparison and extension, one might assume that alternative family formations would trigger similar scrutiny, but the Court has been loath to extend these protections. Apart from the Court’s failure to increase protections beyond traditional extended families, an interesting phenomenon has gone largely unexplored in this jurisprudential framework. In the wake of late twentieth-century mass incarceration, lawmakers and …
John Moore Jr.: Moore V. City Of East Cleveland And Children’S Constitutional Arguments, Nancy E. Dowd
John Moore Jr.: Moore V. City Of East Cleveland And Children’S Constitutional Arguments, Nancy E. Dowd
Fordham Law Review
This Article is divided into three parts. First, I retell the story of Moore from John Jr.’s perspective and frame his potential claims. Second, I explore constitutional arguments under existing doctrine, using contemporary equal protection and substantive due process analyses. Finally, I suggest how a children’s rights perspective might be even more persuasive as a strategy for John Jr. as well as for achieving opportunity and equality on behalf of contemporary children living amid and affected by structural inequalities that impact their developmental capacity.
Riding The Wave Or Drowning?: An Analysis Of Gender Bias And Twombly/Iqbal In Title Ix Accused Student Lawsuits, Bethany A. Corbin
Riding The Wave Or Drowning?: An Analysis Of Gender Bias And Twombly/Iqbal In Title Ix Accused Student Lawsuits, Bethany A. Corbin
Fordham Law Review
This Article offers the first empirical analysis of dismissal trends in reverse Title IX cases and highlights that most courts erroneously dismiss these lawsuits at the 12(b)(6) stage. Through a misinterpretation of plausibility pleading, these courts hold that accused perpetrators have not shown causal evidence of discrimination at the outset of the lawsuit. This prodismissal approach, however, violates Swierkiewicz v. Sorema N.A.’s proclamation complaint. This Article proposes a more flexible causal pleading scheme that satisfies Twombly, Iqbal, and Swierkiewicz and ensures accused perpetrators receive their day in court. Alternatively, this Article argues for limited predismissal discovery in …
Thinking Outside The Box: Reforming Commercial Discrimination Doctrine To Combat The Negative Consequences Of Ban-The-Box Legislation, Nina Kucharczyk
Thinking Outside The Box: Reforming Commercial Discrimination Doctrine To Combat The Negative Consequences Of Ban-The-Box Legislation, Nina Kucharczyk
Fordham Law Review
This Note suggests a new approach to address the unintended consequences of ban-the-box legislation. The solution to combat unconscious discrimination during the hiring process is not to eliminate ban- the-box laws entirely; instead, lawmakers must modernize and strengthen Commercial discrimination doctrine to empower racial minorities who suspect discrimination and to ensure employers are critically analyzing their hiring processes.
Jail Isolation After Kingsley: Abolishing Solitary Confinement At The Intersection Of Pretrial Incarceration And Emerging Adulthood, Deema Nagib
Fordham Law Review
In 2015, the U.S. Supreme Court held that allegations of excessive use of force in pretrial detention are subject to an objective standard. However, it is unclear whether the objective standard extends to claims arising out of different factual circumstances. The Second Circuit’s recent decision in Darnell v. Pineiro to extend Kingsley v. Hendrickson to conditions-of- confinement cases provides hope. This Note argues that Kingsley should extend to solitary confinement litigation—particularly the isolation of emerging adults in pretrial detention. Solitary confinement is a widespread practice in the criminal justice system, but the implications of its use in pretrial detention have …
Constraining Monitors, Veronica Root
Constraining Monitors, Veronica Root
Fordham Law Review
Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III discusses implications of this Article’s findings. Specifically, it discusses concerns regarding the disclosure of information, the boundaries of the relationship between a monitor and other parties, and the ways a monitor’s identity might be utilized as a sanctioning mechanism. …
Mens Rea And Methamphetamine: High Time For A Modern Doctrine Acknowledging The Neuroscience Of Addiction, Meredith Cusick
Mens Rea And Methamphetamine: High Time For A Modern Doctrine Acknowledging The Neuroscience Of Addiction, Meredith Cusick
Fordham Law Review
Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important distinctions between the effects of acute intoxication and addiction. These findings have implications for the broader doctrine of mens rea and, specifically, the intoxication doctrines. This Note argues for the adoption of an addiction doctrine that acknowledges the effect of addiction on mens rea that is distinct from doctrines of intoxication.
Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas
Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas
Fordham Law Review
The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …
Civil Trials: A Film Illusion?, Taunya L. Banks
Civil Trials: A Film Illusion?, Taunya L. Banks
Fordham Law Review
As Judge Elrod’s comments suggest, the most well-known courtroom film classics, like 12 Angry Men, Anatomy of a Murder, or Witness for the Prosecution are about criminal trials. This fact may be unimportant because the distinction between criminal and civil trial films often is lost on the general public. Unanswered is whether the distinction between criminal and civil trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular. This question is the focus of this Article.
Mens Rea And Methamphetamine: High Time For A Modern Doctrine Acknowledging The Neuroscience Of Addiction, Meredith Cusick
Mens Rea And Methamphetamine: High Time For A Modern Doctrine Acknowledging The Neuroscience Of Addiction, Meredith Cusick
Fordham Law Review
Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important distinctions between the effects of acute intoxication and addiction. These findings have implications for the broader doctrine of mens rea and, specifically, the intoxication doctrines. This Note argues for the adoption of an addiction doctrine that acknowledges the effect of addiction on mens rea that is distinct from doctrines of intoxication.
Civil Trials: A Film Illusion?, Taunya L. Banks
Civil Trials: A Film Illusion?, Taunya L. Banks
Fordham Law Review
As Judge Elrod’s comments suggest, the most well-known courtroom film classics, like 12 Angry Men, Anatomy of a Murder, or Witness for the Prosecution are about criminal trials. This fact may be unimportant because the distinction between criminal and civil trial films often is lost on the general public. Unanswered is whether the distinction between criminal and civil trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular. This question is the focus of this Article.
Constraining Monitors, Veronica Root
Constraining Monitors, Veronica Root
Fordham Law Review
Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III discusses implications of this Article’s findings. Specifically, it discusses concerns regarding the disclosure of information, the boundaries of the relationship between a monitor and other parties, and the ways a monitor’s identity might be utilized as a sanctioning mechanism. …
Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas
Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas
Fordham Law Review
The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …
The Robert L. Levine Distinguished Lecture: A Conversation With Justice Ruth Bader Ginsburg And Professor Aaron Saiger, Ruth Bader Ginsburg, Aaron Saiger
The Robert L. Levine Distinguished Lecture: A Conversation With Justice Ruth Bader Ginsburg And Professor Aaron Saiger, Ruth Bader Ginsburg, Aaron Saiger
Fordham Law Review
PROFESSOR AARON SAIGER: It’s a signal honor for Fordham Law School and a personal honor for me and a pleasure to have Justice Ginsburg here tonight. We want to thank you for coming. I think I will not reiterate all of the thanks Dean Diller has offered, except to say that we are very grateful to the Levine family and deeply indebted to the students of the Law Review who have made tonight happen. The format of the evening is as follows: I will ask questions and the Justice will answer them.
Foreword: Moore Kinship, Robin A. Lenhardt, Clare Huntington
Foreword: Moore Kinship, Robin A. Lenhardt, Clare Huntington
Fordham Law Review
Forty years ago, Mrs. Inez Moore, a widowed black mother and grandmother of little means, secured a victory that likely seemed improbable to many. Without any money, but with the assistance of a team of dedicated Legal Aid attorneys, she took her lawsuit challenging an East Cleveland, Ohio, zoning ordinance that made it a crime for her to live with her grandson all the way to the U.S. Supreme Court and won. The ordinance permitted certain extended family configurations to reside together within the city’s limits, but it prohibited Inez’s family arrangement. Just by bringing her infant grandson John Jr., …
A Legal And Ethical Puzzle: Defense Counsel As Quasi Witness, Elizabeth Slater
A Legal And Ethical Puzzle: Defense Counsel As Quasi Witness, Elizabeth Slater
Fordham Law Review
The U.S. criminal justice system is built on the concept of an adversarial trial. The defense and prosecution present competing narratives to a neutral audience that judges whether the prosecution has proved its case beyond a reasonable doubt. In this context, defense counsel is expected to be a zealous advocate for the defendant, providing the most effective representation possible in light of the evidence presented by the government. However, there are occasions outside of trial where defense counsel’s traditional role changes and she is asked to disclose, not to the jury, but to the court, personal opinions and knowledge about …