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Fordham Law Review

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Alien Language: Immigration Metaphors And The Jurisprudence Of Otherness , Keith Cunningham-Parmeter Nov 2011

Alien Language: Immigration Metaphors And The Jurisprudence Of Otherness , Keith Cunningham-Parmeter

Fordham Law Review

Metaphors tell the story of immigration law. Throughout its immigration jurisprudence, the U.S. Supreme Court has employed rich metaphoric language to describe immigrants attacking nations and aliens flooding communities. This Article applies research in cognitive linguistics to critically evaluate the metaphoric construction of immigrants in the law. Three conceptual metaphors dominate legal texts: immigrants are aliens, immigration is a flood, and immigration is an invasion. In order to gauge the prevalence of these metaphors, the Article engages in a textual analysis of modern Supreme Court opinions and presents original empirical data on the incidence of alienage terminology in federal court …


Justice Through Pragmatism And Process: A Tribute To Judge Denny Chin, Frank H. Wu Nov 2011

Justice Through Pragmatism And Process: A Tribute To Judge Denny Chin, Frank H. Wu

Fordham Law Review

No abstract provided.


Judge Denny Chin: A Student Of The Law, John D. Feerick Nov 2011

Judge Denny Chin: A Student Of The Law, John D. Feerick

Fordham Law Review

No abstract provided.


Listening To Victims , Jayne W. Barnard Nov 2011

Listening To Victims , Jayne W. Barnard

Fordham Law Review

No abstract provided.


Holland V. Florida: A Prisoner’S Last Chance, Attorney Error, And The Antiterrorism And Effective Death Penalty Act’S One-Year Statute Of Limitations Period For Federal Habeas Corpus Review, Marni Von Wilpert Nov 2011

Holland V. Florida: A Prisoner’S Last Chance, Attorney Error, And The Antiterrorism And Effective Death Penalty Act’S One-Year Statute Of Limitations Period For Federal Habeas Corpus Review, Marni Von Wilpert

Fordham Law Review

No abstract provided.


Promoting Residential Integration Through The Fair Housing Act: Are Qui Tam Actions A Viable Method Of Enforcing “Affirmatively Furthering Fair Housing” Violations?, Matthew J. Termine Nov 2011

Promoting Residential Integration Through The Fair Housing Act: Are Qui Tam Actions A Viable Method Of Enforcing “Affirmatively Furthering Fair Housing” Violations?, Matthew J. Termine

Fordham Law Review

No abstract provided.


The Possibility Of Transfer(?): A Comprehensive Approach To The International Criminal Tribunal For Rwanda’S Rule 11bis To Permit Transfer To Rwandan Domestic Courts, Jesse Melman Nov 2011

The Possibility Of Transfer(?): A Comprehensive Approach To The International Criminal Tribunal For Rwanda’S Rule 11bis To Permit Transfer To Rwandan Domestic Courts, Jesse Melman

Fordham Law Review

No abstract provided.


Cftc V. Gibraltar Monetary Corp. And Vicarious Liability Under The Commodity Exchange Act, Jason E. Friedman Nov 2011

Cftc V. Gibraltar Monetary Corp. And Vicarious Liability Under The Commodity Exchange Act, Jason E. Friedman

Fordham Law Review

This Comment analyzes CFTC v. Gibraltar Monetary Corp., a 2009 decision in which the U.S. Court of Appeals for the Eleventh Circuit introduced a control requirement into the Commodity Exchange Act's vicarious liability provision. In so doing, the court rejected the U.S. Commodity Futures Trading Commission's long-held totality of the circumstances approach, in which any one factor, including control, is not dispositive of an agency relationship. This decision has created an undesirable situation in which retail foreign exchange dealers and futures commission merchants need not investigate the character of their introducing entities before retaining them, allowing them to easily avoid …


The Lawyer's “Prisoner's Dilemma”: Duty And Self-Defense In Postconviction Ineffectiveness Claims, Jenna C. Newmark Nov 2011

The Lawyer's “Prisoner's Dilemma”: Duty And Self-Defense In Postconviction Ineffectiveness Claims, Jenna C. Newmark

Fordham Law Review

Many criminal defendants who face significant sentences and are unsuccessful on appeal petition for collateral habeas corpus relief. One common ground for postconviction relief is that defense counsel was unconstitutionally ineffective before, during, or after trial. This presents an ethical dilemma for those defense attorneys who have withdrawn from representation and are accused of being ineffective. Should an accused lawyer disclose confidential client information to the prosecution in self- defense against these claims? Or should the lawyer, even in the face of attacks on his work, help his former client in substantiating ineffectiveness claims? Lawyers and courts must balance the …


How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, Andrew D. Cohen Nov 2011

How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, Andrew D. Cohen

Fordham Law Review

Criminal adultery bans, despite widespread transgression and lax enforcement, remain on the books in a substantial minority of states. The landmark Lawrence v. Texas decision casts doubt on all state interference with consensual sexual activity among adults, including adultery bans. Additionally, adultery bans on their face implicate the Establishment Clause, due to adultery bans' and marriage's roots in religious doctrine and religiosity. This Note examines the constitutionality of adultery bans after Lawrence v. Texas, and proposes a novel approach to substantive due process analysis that applies Establishment Clause values. In proposing what this Note dubs the "Establishment Clause prism," through …


Just A Soul Whose Intentions Are Good? The Relevance Of A Defendant's Subjective Intent In Defining A “Destructive Device” Under The National Firearms Act Nov 2011

Just A Soul Whose Intentions Are Good? The Relevance Of A Defendant's Subjective Intent In Defining A “Destructive Device” Under The National Firearms Act

Fordham Law Review

This Note addresses the three-way circuit split among the U.S. Courts of Appeals over when, and to what extent, a court may consider a defendant's subjective intent in defining a "destructive device" under the National Firearms Act. The circuit split centers on the Act's ambiguous reference to intent in its definition of a destructive device, which is a statutorily prohibited firearm. After discussing the Act's legislative history and development, this Note considers the role of mens rea in National Firearms Act cases. It next addresses the disagreement among the Courts of Appeals, first detailing three cases that give rise to …


Reconciling Ripley And Joye: A Fact-Sensitive Analysis Of Petition-Year And Pre-Petition-Year Income Tax Claims In Chapter 13 Bankruptcies, Janicelynn J. Asamoto Nov 2011

Reconciling Ripley And Joye: A Fact-Sensitive Analysis Of Petition-Year And Pre-Petition-Year Income Tax Claims In Chapter 13 Bankruptcies, Janicelynn J. Asamoto

Fordham Law Review

Parties to a chapter 13 bankruptcy often contest the status and dischargeability of income tax claims, especially when proofs of claim for these taxes are filed late. Prepetition claims that are filed late may be discharged once the debtor successfully completes a chapter 13 repayment plan. Taxing authorities, however, often allege that these liabilities represent nondischargeable postpetition claims that have "become payable" after the bankruptcy petition was filed. Courts have resolved this issue in conflicting ways: while some have found that taxes "become payable" at the end of the taxable year, most have ruled that the tax return's due date …


The Unforeseen Costs Of Going To Trial: The Vitality Of 212(C) Relief For Lawful Permanent Residents Convicted By Trial, Mark J. Difiore Nov 2011

The Unforeseen Costs Of Going To Trial: The Vitality Of 212(C) Relief For Lawful Permanent Residents Convicted By Trial, Mark J. Difiore

Fordham Law Review

Before 1996, a Lawful Permanent Resident (LPR) who was made deportable by a criminal conviction could apply for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act. This relief, commonly known as "212(c) relief," was repealed in 1996. In 2001, the Supreme Court confronted the issue of whether an LPR with a pre-1996 deportable conviction could apply for 212(c) relief in his later post-repeal removal proceedings. The Court decided that an LPR who pleaded guilty to his pre-1996 conviction could still apply for 212(c) relief following the 1996 repeal. The status of those LPRs who were …


Consider The Source: When The Harasser Is The Boss Nov 2011

Consider The Source: When The Harasser Is The Boss

Fordham Law Review

In Consider the Source, Susan Grover and Kim Piro argue for a change in the analysis that courts apply to determine whether actionable workplace harassment has occurred. They identify a gap in current doctrine, which allows courts to ignore the status of the harasser as co-worker or supervisor. The authors argue that harassment at the hands of a supervisor is necessarily more severe and pervasive than the same harassment by a co- worker. As a result, they recommend that the harasser's identity as a supervisor or co-worker be treated as a necessary consideration when courts assess whether actionable harassment has …


Property Is A Two-Way Street: Personal Copyright Use And Implied Authorization Nov 2011

Property Is A Two-Way Street: Personal Copyright Use And Implied Authorization

Fordham Law Review

When we use the Internet, we know that copyright law limits our freedom. We know, for example, that downloading popular music is legally risky. Those who want to get moralistic about it argue that illegal downloading violates a "property" right of the copyright holder. But what about our property rights in our computers? Even if copyright is a form of property, it maintains a parallel existence as an intrusion upon property rights. This intrusion is increasingly a part of daily life, as copyright's literal scope sweeps broadly enough to threaten a range of everyday activities that social norms rega rd …


From Eugenics To The “New” Genetics: “The Play's The Thing”, Karen H. Rothenberg Nov 2011

From Eugenics To The “New” Genetics: “The Play's The Thing”, Karen H. Rothenberg

Fordham Law Review

No abstract provided.


Preemption, Patchwork Immigration Laws, And The Potential For Brown Sundown Towns, Maria Marulanda Nov 2011

Preemption, Patchwork Immigration Laws, And The Potential For Brown Sundown Towns, Maria Marulanda

Fordham Law Review

The raging debate about comprehensive immigration reform is ripe ground to overhaul federal exclusivity in the immigration context and move toward a cooperative federal and state-local model. The proliferation of immigration-related ordinances at the state and local level reflects “lawful” attempts to enforce immigration law to conserve limited resources for citizens and legal residents. Although the federal immigration statutes contemplate state and local involvement, the broad federal preemption model used to analyze immigration laws displaces many state-local ordinances, resulting in frustration at the inability to enforce the community’s resolve that is manifested through violence against Latino immigrants. Broad federal preemption …


Reconciling Originalism And The History Of The Public Use Clause, Emily A. Johnson Nov 2011

Reconciling Originalism And The History Of The Public Use Clause, Emily A. Johnson

Fordham Law Review

The history of the Fifth Amendment’s Takings Clause is virtually nonexistent. For at least the last century, the U.S. Supreme Court has interpreted its public use language broadly, allowing takings for the purposes of rectifying urban blight, facilitating land redistribution, and most recently, in Kelo v. City of New London, promoting economic benefit. In that case, Justice Thomas dissented vigorously, arguing that the Kelo Court had strayed from the original meaning of public use and urging it to return to requiring actual use by the public when property is condemned. In light of Justice Thomas’s argument that the Court had …


A World Without Internet: A New Framework For Analyzing A Supervised Release Condition That Restricts Computer And Internet Access, Gabriel Gillett Nov 2011

A World Without Internet: A New Framework For Analyzing A Supervised Release Condition That Restricts Computer And Internet Access, Gabriel Gillett

Fordham Law Review

This Note explores whether a condition of supervised release that restricts computer and Internet access violates the doctrine of unconstitutional conditions. Although a circuit split has developed regarding the scope of a permissible restriction, as Courts of Appeals have been inundated with cases challenging the validity of these technology restrictions, no court has yet viewed these limits through the lens of the doctrine of unconstitutional conditions. This Note begins with a discussion of the First Amendment and the theory of unconstitutional conditions, tracing their respective developments in cases relating to prisoners, speech, and the Internet age. Next, it synthesizes the …


Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva Orenstein Nov 2011

Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva Orenstein

Fordham Law Review

In 2004, Crawford v. Washington, authored by Justice Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment’s Confrontation Clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully. Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the murder …


Panel Four: Cooperation And Plea Agreements—Professors & Practitioners, The Hnorable Steven Merryday, Caren Myers Morrison, Gerald Shargel, Barbara Sale Nov 2011

Panel Four: Cooperation And Plea Agreements—Professors & Practitioners, The Hnorable Steven Merryday, Caren Myers Morrison, Gerald Shargel, Barbara Sale

Fordham Law Review

No abstract provided.


Panel Two: Should There Be Remote Public Access To Court Filings In Immigration Cases?, The Honorable Robert Hinkle, David Mccraw, Daniel Kanstroom, Eleanor Acer Nov 2011

Panel Two: Should There Be Remote Public Access To Court Filings In Immigration Cases?, The Honorable Robert Hinkle, David Mccraw, Daniel Kanstroom, Eleanor Acer

Fordham Law Review

No abstract provided.


Panel One: General Discussion On Privacy And Public Access To Court Files, The Honorable Reena Raggi, Daniel J. Capra, Joel Reidenberg, Ronald Hedges Nov 2011

Panel One: General Discussion On Privacy And Public Access To Court Files, The Honorable Reena Raggi, Daniel J. Capra, Joel Reidenberg, Ronald Hedges

Fordham Law Review

No abstract provided.


Federal Rule Of Evidence 703: The Back Door And The Confrontation Clause, Ten Years Later, Ian Volek Nov 2011

Federal Rule Of Evidence 703: The Back Door And The Confrontation Clause, Ten Years Later, Ian Volek

Fordham Law Review

Federal Rule of Evidence 703 allows experts to form opinions using information that is not admitted at trial, and even on evidence that is inadmissible. In 2000, Rule 703 was amended to emphasize that it did not serve as an exception to the other rules of evidence. When experts rely on inadmissible evidence, the evidence can only be disclosed for the limited purpose of assisting the jury to evaluate the expert’s opinion, and only if the probative value of the evidence substantially outweighs its prejudicial effect. This Note reviews the application of Rule 703 before and after the 2000 amendment. …


Broken Borders, Broken Laws: Aligning Crime And Punishment Under Section 2l1.1(B)(7) Of The U.S. Sentencing Guidelines, Genevieve Quinn Nov 2011

Broken Borders, Broken Laws: Aligning Crime And Punishment Under Section 2l1.1(B)(7) Of The U.S. Sentencing Guidelines, Genevieve Quinn

Fordham Law Review

Despite the intensifying militarization of the United States’ borders, roughly 4,000 undocumented immigrants attempt to cross into the U.S. each day. Increased border security has not stopped the flow; rather, it has diverted migrants’ journeys into the most perilous stretches of borderlands and coastlines. In response, migrants increasingly rely on human smugglers to guide them across the border, even in the face of the well-known risks of injury and death. Under section 2L1.1(b)(7) of the U.S. Sentencing Guidelines, defendants convicted of smuggling illegal immigrants are subject to a sentence enhancement for any bodily injury or death that occurs. The Guidelines …


The Intersection Of Tort And Environmental Law: Where The Twains Should Meet And Depart, Mark Latham, Victor E. Schwartz, Christopher E. Appel Nov 2011

The Intersection Of Tort And Environmental Law: Where The Twains Should Meet And Depart, Mark Latham, Victor E. Schwartz, Christopher E. Appel

Fordham Law Review

The explosion of environmental statutes over the past forty years, giving rise to the field of environmental law, has created a critical and evolving question in our legal system as to how this comparatively new field of law intersects with the common law of torts. Defining the proper role of tort law in remedying environmental injuries is an important matter of public policy; the answer will determine what the tort system can and cannot achieve, inform what it should and should not achieve, and clarify which common law enforcement areas are actually voids. This information assists the judiciary on its …


The Lone Miscreant, The Self-Training Prosecutor, And Other Fictions: A Comment On Connick V. Thompson, Susan A. Bandes Nov 2011

The Lone Miscreant, The Self-Training Prosecutor, And Other Fictions: A Comment On Connick V. Thompson, Susan A. Bandes

Fordham Law Review

No abstract provided.


Avoiding Permanent Limbo: Qualified Immunity And The Elaboration Of Constitutional Rights From Saucier To Camreta (And Beyond), Michael T. Kirkpatrick, Joshua Matz Nov 2011

Avoiding Permanent Limbo: Qualified Immunity And The Elaboration Of Constitutional Rights From Saucier To Camreta (And Beyond), Michael T. Kirkpatrick, Joshua Matz

Fordham Law Review

No abstract provided.


Frankfurter’S Champion: Justice Powell, Monell, And The Meaning Of “Color Of Law”, David Jacks Achtenberg Nov 2011

Frankfurter’S Champion: Justice Powell, Monell, And The Meaning Of “Color Of Law”, David Jacks Achtenberg

Fordham Law Review

No abstract provided.


Measuring Pearson In The Circuits, Ted Sampsell-Jones, Jenna Yauch Nov 2011

Measuring Pearson In The Circuits, Ted Sampsell-Jones, Jenna Yauch

Fordham Law Review

No abstract provided.