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Articles 61 - 90 of 607
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No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, Andrew Manuel Crespo
No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, Andrew Manuel Crespo
Fordham Law Review
The American penal system is a system of massive, racially unjust incarceration. It is also, to quote the U.S. Supreme Court, a “system of pleas.” The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths. Mass incarceration is a predictable result. But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point. That Achilles’ heel is exposed once we see people facing prosecution not as isolated individuals but …
Progressive Prosecutors Are Not Trying To Dismantle The Master’S House, And The Master Wouldn’T Let Them Anyway, Paul Butler
Progressive Prosecutors Are Not Trying To Dismantle The Master’S House, And The Master Wouldn’T Let Them Anyway, Paul Butler
Fordham Law Review
The first thing to note about Audre Lorde’s famous phrase “the master’s tools will never dismantle the master’s house” is that it cannot literally be true. If tools can dismantle the master’s house, the master’s own tools would be good as anyone’s. The main problem would not be that the tools don’t work, but rather how to get them to the people who most need the master’s house dismantled—the enslaved ones. But the considerable work that the phrase does in social justice movements and critical theory is figurative rather than literal. It is usually intended as a rebuke of liberal …
The First Step Act And Individualized Review: Must Judges Apply The 18 U.S.C. 3553(A) Factors To Section 404 Petitioners?, Kielan Barua
The First Step Act And Individualized Review: Must Judges Apply The 18 U.S.C. 3553(A) Factors To Section 404 Petitioners?, Kielan Barua
Fordham Law Review
In 2010, the U.S. Congress amended the notorious mandatory minimum sentencing structure for crack cocaine offenses in response to the decades of harm it had caused. As the amendment was not retroactive, Congress passed the First Step Act of 2018 to allow prisoners incarcerated before 2010 to petition their original sentencing court for discretionary relief based on the new penalties. However, what exactly these courts must do when deciding whether to grant relief has divided the circuits. Some circuits require an up-to-date consideration of defendants’ individual mitigating circumstances and whether their sentences are the minimum necessary to satisfy the purposes …
Opening The Safety Valve: A Second Look At Compassionate Release Under The First Step Act, Michael T. Hamilton
Opening The Safety Valve: A Second Look At Compassionate Release Under The First Step Act, Michael T. Hamilton
Fordham Law Review
Under federal law, judges are generally prohibited from changing a sentence once it has been imposed. Compassionate release, to put it simply, provides a “safety valve” against this general principle, allowing federal judges to reduce a prisoner’s sentence when it is warranted by “extraordinary and compelling reasons.” For the past thirty years, statutory and bureaucratic roadblocks made compassionate release an unlikely avenue for prisoners to receive sentence reductions. With the passage of the First Step Act of 2018, the U.S. Congress made the first significant changes to the compassionate release statute in decades, permitting defendants for the first time to …
Bargaining For Abolition, Zohra Ahmed
Bargaining For Abolition, Zohra Ahmed
Fordham Law Review
What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories. Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes. The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor to keep …
Colloquium: Subversive Lawyering: Foreword, Bennett Capers, Bruce A. Green
Colloquium: Subversive Lawyering: Foreword, Bennett Capers, Bruce A. Green
Fordham Law Review
Is there such a thing as subversive lawyering? And if so, what is it? These are the questions that motivate this colloquium issue. To be sure, other, similar terms exist and have been explicated. Movement lawyering. Rebellious lawyering. Resistance lawyering. Indeed,we were particularly inspired by Daniel Farbman’s article Resistance Lawyering, in which he uncovers the stories of abolitionist lawyers who, confronting the Fugitive Slave Act of 1850, “employed every means at their disposal to frustrate, delay, and dismantle the system within which they were practicing.” But still, we wondered if subversive lawyering might be something different. Something akin to resistance …
Who Tells Their Stories?: Examining The Role, Duties, And Ethical Constraints Of The Victim’S Attorney Under Model Rule 3.6, Ksenia Matthews
Who Tells Their Stories?: Examining The Role, Duties, And Ethical Constraints Of The Victim’S Attorney Under Model Rule 3.6, Ksenia Matthews
Fordham Law Review
In U.S. criminal proceedings, the prosecution typically presents the victim’s story. However, as part of the victims’ rights movement, victims are striving to make their voices heard and tell their stories in their own words. Yet, despite the growing role victims occupy in criminal proceedings and the rights afforded to victims by the Crime Victims’ Rights Act and its state counterparts, victims still remain nonparties in criminal proceedings. As victims increasingly retain private lawyers to help navigate criminal proceedings and represent their interests, it is important to understand how these lawyers fall within the traditional two-party adversary system. Limited by …
The Criminalization Of Foreign Relations, Steven Arrigg Koh
The Criminalization Of Foreign Relations, Steven Arrigg Koh
Fordham Law Review
Overcriminalization has rightly generated national condemnation among policymakers, scholars, and practitioners alike. And yet, such scholarship often assumes that the encroachment of criminal justice stops at our borders. This Article argues that our foreign relations are also at risk of overcriminalization due to overzealous prosecution, overreaching legislation, and presidential politicization—and that this may be particularly problematic when U.S. criminal justice supplants certain nonpenal U.S. foreign policies abroad. This Article proposes three key reforms—presidential distancing, prosecutorial integration, and legislative de-escalation—to assure a principled place for criminal justice in foreign relations.
Media Consolidation & Political Polarization: Reviewing The National Television Ownership Rule, Mary R. Hornak
Media Consolidation & Political Polarization: Reviewing The National Television Ownership Rule, Mary R. Hornak
Fordham Law Review
Local television plays an important role in the democratic society. The medium is viewed as being trustworthy, and it is accessible and uniquely situated to report on matters of local interest. Among other roles, the Federal Communications Commission (FCC) regulates firms’ ownership interests in the media through regulations that permit a certain degree of consolidation at both the local and national levels. Since 1996, Congress has mandated that the FCC regularly review broadcast media ownership regulations. Originally, this requirement mandated biennial review. In 2004, however, Congress revised the mandate, requiring review on a quadrennial basis and excluding from such review …
Compulsory Voting And Black Citizenship, Ekow N. Yankah
Compulsory Voting And Black Citizenship, Ekow N. Yankah
Fordham Law Review
Protesting Black votes is part of our history of rejecting Black Americans as legitimate wielders of political power and contesting the fullness of Black citizenship. Obviously, hostility toward viewing Black Americans as deserving of the rights owed to other Americans is present in nearly every aspect of American life. But, among the oldest and most contentious hostilities—from the Civil War to Reconstruction to the Civil Rights Movement to contemporary voter suppression efforts—has been the resistance against Black votes. Any opportunity to quell this locus of racial animus calls for urgent address. Particularly, at this moment, when long-standing prophylactic measures such …
An Uncertain Participant: Victim Input And The Black Box Of Discretionary Parole Release, Noah Epstein
An Uncertain Participant: Victim Input And The Black Box Of Discretionary Parole Release, Noah Epstein
Fordham Law Review
Little is understood about the parole release process, as state parole boards predominately operate with incredible discretion and keep their deliberations and rationales hidden from public view. Even less is understood about the intersection of the inscrutable parole release decision-making process and victim rights. As the victim rights movement mobilized in the 1970s, victims, instead of remaining passive witnesses, came to wield significant influence over the release decision process. Today, victim participation in parole proceedings is increasing as most parole boards proclaim how important victims’ voices are and, in turn, actively incorporate victim input into their release calculus. Yet, it …
Lgbtqia+ Public Accomodation Cases: The Battle Between Religious Freedom And Civil Rights, Jamie Reinah
Lgbtqia+ Public Accomodation Cases: The Battle Between Religious Freedom And Civil Rights, Jamie Reinah
Fordham Law Review
Protections for LGBTQIA+ Americans have greatly expanded since the U.S. Supreme Court recognized marriage equality in Obergefell v. Hodges, but the debate about whether business owners can refuse to serve LGBTQIA+ couples on religious grounds has grown more bitterly divided. The free exercise of religion is a fundamental constitutional right, and it is strongly protected at both the federal and state levels. At the same time, LGBTQIA+ couples are protected from receiving unequal treatment in public places under state antidiscrimination laws. The clash between religion and LGBTQIA+ rights has culminated in a line of cases that present difficult questions …
Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway
Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway
Fordham Law Review
Domestic violence is a global issue, but in the United States it is especially lethal. Hundreds of women are shot and killed in the United States by intimate partners every year. Federal and state legislatures have enacted laws that focus on the issue of domestic violence and gun violence. In 1996, Congress passed the Lautenberg Amendment to the Gun Control Act of 1968, which permanently prohibits individuals convicted of domestic violence misdemeanors from possessing firearms. Twenty-nine states and the District of Columbia have also enacted laws that mirror the Lautenberg Amendment. In many jurisdictions, misdemeanor domestic violence convictions carry a …
Collaterally Attacking The Prison Litigation Reform Act's Application To Meritorious Prisoner Civil Litigation, Melissa Benerofe
Collaterally Attacking The Prison Litigation Reform Act's Application To Meritorious Prisoner Civil Litigation, Melissa Benerofe
Fordham Law Review
Earlier this year, the Prison Litigation Reform Act (PLRA) reached its twenty-fifth birthday, reinvigorating discussion on its effects on people in prison and the U.S. criminal justice system more broadly. This Note examines how the PLRA deters and obstructs prisoners’ ability to file meritorious civil rights lawsuits regarding the conditions of their confinement. The PLRA does so primarily through four of its provisions, which this Note refers to as the “access provisions.” The access provisions include: (1) the exhaustion of administrative remedies; (2) the filing fee provision; (3) the three-strikes rule; and (4) limitations on attorney’s fees. This Note argues …
Corporate Law's Forgotten Constituents: Reimagining Corporate Lawyering In Routine Business Contexts, Melissa E. Romanovich
Corporate Law's Forgotten Constituents: Reimagining Corporate Lawyering In Routine Business Contexts, Melissa E. Romanovich
Fordham Law Review
Although they are artificial entities, corporations are operated, managed, and represented by people. Sometimes, these people have personal interests at stake—interests that are separate and distinct from the corporation’s interests and that arise from these people acting in their corporate roles. These personal interests and related potential liabilities range from employment concerns and civil liability to criminal prosecution and imprisonment. Until now, however, the law has determined that, in most situations, a corporation’s lawyer neither represents the corporation’s constituents nor their personal interests. The corporate lawyer, therefore, has the challenging role of discharging the proper ethical and legal obligations to …
If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll
If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll
Fordham Law Review
No abstract provided.
Transgender Inmates’ Right To Gender Confirmation Surgery, Marissa Luchs
Transgender Inmates’ Right To Gender Confirmation Surgery, Marissa Luchs
Fordham Law Review
The Eighth Amendment prohibits cruel and unusual punishment. It ensures that the state’s power to punish is exercised within the bounds of evolving standards of human decency. At the time of its enactment in 1791, the Eighth Amendment merely protected against torture and other physically barbarous treatments. However, as society’s standards of decency changed, so too did the scope of the Eighth Amendment. Today, among other protections, the Eighth Amendment mandates that prisons provide inmates with adequate conditions of confinement. This includes an obligation on the part of the prison to provide adequate medical care. But a great deal of …
Local Offenses, Brenner M. Fissell
Local Offenses, Brenner M. Fissell
Fordham Law Review
Criminal law is generally thought to exist within two jurisdictional levels: federal and state. Neglected in the legal mind, and in legal scholarship, is the vast body of criminal law promulgated by local governments. While one should ask “what” is being criminalized by cities, towns, and villages, one should also ask “how” these offenses are written. The offense-drafting practices reflected in state criminal law have been extensively studied, but this has never been attempted for local offenses. This Article undertakes that task. After surveying a large number of local criminal codes, this Article concludes that local offenses routinely fail to …
Secret Faits Accomplis: Declination Decisions, Nonprosecution Agreements, And The Crime Victim’S Right To Confer, Zulkifl M. Zargar
Secret Faits Accomplis: Declination Decisions, Nonprosecution Agreements, And The Crime Victim’S Right To Confer, Zulkifl M. Zargar
Fordham Law Review
The state’s monopoly power over the institution of prosecution is a feature as familiar as any in the American criminal justice system. That the criminal proceeding is between the state and the defendant leaves little doubt as to the identities of the victimized interest and the offender. But, in avenging societal harm alone, the criminal process treats another victim—the crime victim— as an outcast. Beginning in the 1970s, the victim’s rights movement mobilized to address this institutional neglect, and, by most accounts, it has triumphed. Federal and state victim’s rights laws now empower victims to attend criminal proceedings, deliver impact …
Access To Justice And Dispute Resolution Across Cultures, Sukhsimranjit Singh
Access To Justice And Dispute Resolution Across Cultures, Sukhsimranjit Singh
Fordham Law Review
There is a saying in the United States: the justice one receives is the justice one can afford. All too often, this saying proves true for both lower- and middle-class individuals. For the greatly impoverished, the access to justice crisis is twofold: part of the problem is knowing when to seek legal help and another is ensuring adequate delivery of legal assistance on request. Middle- class individuals face a different challenge, as they surpass the income threshold for free civil public legal aid but cannot afford the rising costs of conventional litigation. The problem persists across different cultures. This Article …
Convictions As Guilt, Anna Roberts
Convictions As Guilt, Anna Roberts
Fordham Law Review
A curious tension exists in scholarly discourse about the criminal legal system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, for example, and the subordination of the defense. On the other hand, scholars often discuss people who have criminal convictions in a way that appears to assume crime commission. This apparent assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding …
To “Otherwise Make Unavailable”: Tenant Screening Companies’ Liability Under The Fair Housing Act’S Disparate Impact Theory, Shivangi Bhatia
To “Otherwise Make Unavailable”: Tenant Screening Companies’ Liability Under The Fair Housing Act’S Disparate Impact Theory, Shivangi Bhatia
Fordham Law Review
Tenant screening companies present information to housing providers on prospective tenants’ criminal and eviction histories in the form of background screening reports. These screening reports disproportionately impact racial and gender minorities. Two opposing views exist on whether courts should interpret the Fair Housing Act to cover the discriminatory practices and policies of tenant screening companies. Some believe that background screening reports are a vital part of the housing industry, while others criticize them for their inaccurate, misleading, and discriminatory nature. This Note proposes that, moving forward, courts should interpret § 3604(a) and § 3604(b) of the Fair Housing Act to …
Loss Of Self-Control, Dual-Process Theories, And Provocation, Michal Buchhandler-Raphael
Loss Of Self-Control, Dual-Process Theories, And Provocation, Michal Buchhandler-Raphael
Fordham Law Review
Contemporary understanding of the provocation defense views the “loss of self-control” theory as the cornerstone of this partial excuse. In considering whether to reduce murder charges to manslaughter, juries and judges rely on this theory to determine if the defendant lost self-control after experiencing intense emotional arousal and if a reasonable person would have also likely lost self-control in similar circumstances. This Article questions this conventional wisdom by examining the various flaws embedded in provocation’s loss of self-control theory. It argues that the theory is both over- and underinclusive. It is overinclusive because it provides a basis for mitigation in …
The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz
The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz
Fordham Law Review
This Essay offers an unconventional approach to detering prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is comparable to …
Policing Procedural Errors In The Lower Criminal Courts, Justin Murray
Policing Procedural Errors In The Lower Criminal Courts, Justin Murray
Fordham Law Review
The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …
A Public Concern: Protecting Whistleblowers Under The First Amendment, Steven Still
A Public Concern: Protecting Whistleblowers Under The First Amendment, Steven Still
Fordham Law Review
The United States has just witnessed an impeachment debate which may have far-reaching ramifications for our democratic institutions. These hostilities began with an anonymous whistleblower complaint from a government employee, disclosing what he or she believed were illegal activities directed by President Donald J. Trump. Ever since, discussion of whistleblowers has taken on greater salience in the news cycle. Today, there are a number of whistleblower statutes that protect employees who disclose knowledge of their employer’s illicit activities from workplace retaliation. Although whistleblowing is not unique to government workers, these individuals have an added layer of protection afforded to them …
Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit
Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit
Fordham Law Review
Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on American Bar Association Model Rule of Professional Conduct 8.4(g), which regulates professional misconduct, this Article argues that ethics rules may, under certain conditions, deter the exclusionary practices of legal actors. Part I examines the specific history, evolution, and application of revised Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …
Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon
Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon
Fordham Law Review
Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well. In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes. Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use. A handful of newly elected “progressive prosecutors” have expressed interest in applying …
Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin
Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin
Fordham Law Review
In the extensive litigation over bar admission in federal district courts, courts have upheld state bar membership requirements. Nevertheless, the changes to legal practice flowing from the COVID-19 pandemic—the disconnection between workplace and residence, the ability to meet and to hold court proceedings by video, and the unjustifiability of charging clients time and travel for brief, perfunctory in-person meetings and conferences that could be handled effectively and expeditiously online—will make these questions ever more serious
Access To Algorithms, Hannah Bloch-Wehba
Access To Algorithms, Hannah Bloch-Wehba
Fordham Law Review
Federal, state, and local governments increasingly depend on automated systems—often procured from the private sector—to make key decisions about civil rights and liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed. Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision-making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision-making: the law of access to …