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Neuroscience And Sentencing, Nancy Gertner
Neuroscience And Sentencing, Nancy Gertner
Fordham Law Review
This symposium comes at a propitious time for me. I am reviewing the sentences I was obliged to give to hundreds of men—mostly African American men—over the course of a seventeen-year federal judicial career. As I have written elsewhere, I believe that 80 percent of the sentences that I imposedwereunfair,unjust,anddisproportionate. EverythingthatIthought was important—that neuroscientists, for example, have found to be salient in affecting behavior—was irrelevant to the analysis I was supposed to conduct. My goal—for which this symposium plays an important part—is to reevaluate those sentences now under a more rational and humane system, this time at least informed by …
Seeing Voices: Potential Neuroscience Contributions To A Reconstruction Of Legal Insanity, Jane Campbell Moriarty
Seeing Voices: Potential Neuroscience Contributions To A Reconstruction Of Legal Insanity, Jane Campbell Moriarty
Fordham Law Review
Part I of this Article explains the insanity defense in the United States. Next, Part II discusses some of the brain-based research about mental illness, focusing on schizophrenia research. Then, Part III looks at traumatic brain injury and the relationship among injury, cognition, and behavior. Finally, Part IV explains how a new neuroscience-informed standard might better inform our moral decision making about legal insanity.
Neuroscience And The Civil/Criminal Daubert Divide, Erin Murphy
Neuroscience And The Civil/Criminal Daubert Divide, Erin Murphy
Fordham Law Review
This Article speculates on the course of neuroscience-as-proof with an eye toward the actual admissibility standards that will govern the acceptance of such evidence by courts, not just as a matter of formal law but also as a function of historical custom. Given the legal system’s spotty record with scientific evidence—which is to say, both the demonstrated willingness of the system to admit unproven “science” or to exclude evidence despite a seemingly adequate scientific foundation—the trajectory of neuroscience in the courts cannot be predicted simply by asking about its scientific legitimacy in the abstract. Rather, an observer must ponder whether …
Too Sick To Be Executed: Shocking Punishment And The Brain, Joel Zivot
Too Sick To Be Executed: Shocking Punishment And The Brain, Joel Zivot
Fordham Law Review
Capital punishment, to be lawfully delivered, must occur without needless cruelty. Cruelty, defined in the setting of punishment, will naturally evolve with the maturation of civil society. Cruel punishment will always be a relative standard, and punishment cannot exceed what is morally shocking. In the setting of public executions, observers and victims share an aspect of the experience of punishment. The inmate has little opportunity to evaluate and report back on cruelty in the moments before death. Once dead, the inmate is necessarily silent on the matter. Empathy allows observers to evaluate punishment as cruel or not. Attempts by the …
Revitalizing Sec Rule 14a-8’S Ordinary Business Exclusion: Preventing Shareholder Micromanagement By Proposal, Stephen M. Bainbridge
Revitalizing Sec Rule 14a-8’S Ordinary Business Exclusion: Preventing Shareholder Micromanagement By Proposal, Stephen M. Bainbridge
Fordham Law Review
Who decides what products a company should sell, what prices it should charge, and so on? Is it the board of directors, the top management team, or the shareholders? In large corporations, of course, the answer is the top management team operating under the supervision of the board. As for the shareholders, they traditionally have had no role in these sort of operational decisions. In recent years, however, shareholders have increasingly used SEC Exchange Act Rule 14a-8 (the so-called “Shareholder Proposal Rule”) to not just manage but even micromanage corporate decisions. The Rule permits a qualifying shareholder of a public …
The Strict Liability In Fault And The Fault In Strict Liability, John C.P. Goldberg, Benjamin C. Zipursky
The Strict Liability In Fault And The Fault In Strict Liability, John C.P. Goldberg, Benjamin C. Zipursky
Fordham Law Review
Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under the heading of “the strict liability in fault.” We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing. Through an examination of this odd corner of tort …
Voluntary Dismissal Of Time-Barred Claims, Danielle Calamari
Voluntary Dismissal Of Time-Barred Claims, Danielle Calamari
Fordham Law Review
Both state and federal courts have procedural rules that allow a plaintiff to voluntarily dismiss a claim without prejudice and then to refile it within the applicable statute-of-limitations period. However , a plaintiff’ s right to this procedural avenue is not absolute, and courts maintain broad discretion in deciding whether to dismiss a claim with or without prejudice. If a court allows a plaintiff to voluntarily dismiss a time-barred claim without prejudice, the plaintiff may be able to refile the claim in a jurisdiction with a longer statute of limitations. As a result, the defendant loses the ability to assert …
Lonely Too Long: Redefining And Reforming Juvenile Solitary Confinement, Jessica Lee
Lonely Too Long: Redefining And Reforming Juvenile Solitary Confinement, Jessica Lee
Fordham Law Review
Solitary confinement is a frequently used penal tool in all fifty states against all types of offenders. However, since its development in the 1800s, solitary confinement has been found to have damaging psychological effects. Juvenile inmates in particular suffer the greatest psychological damage from solitary confinement because their brains are still in a developmental state. This has led many to propose various reforms that would either end or limit the use of solitary confinement for those under the age of eighteen. However, new neurological studies on brain development show that inmates between the ages of eighteen and twenty-five also suffer …
The Second Circuit And The Development Of Intellectual Property Law: The First 125 Years, Kenneth A. Plevan
The Second Circuit And The Development Of Intellectual Property Law: The First 125 Years, Kenneth A. Plevan
Fordham Law Review
The Second Circuit has had a profound impact on copyright law. Judge Learned Hand’s decision in Nichols v. Universal Pictures Corp. helped define for later generations the fundamental idea/expression dichotomy. The transformative use doctrine has not been without its critics, but other leading decisions have helped write the rules of the road for the e-commerce era, both in the copyright and trademark contexts, as well as the right of publicity, albeit a creation of state statutory law, is generally considered an area of intellectual property and is covered in this article. Law school catalogs usually include trade secret law within …
Bank Liability Under The Antiterrorism Act: The Mental State Requirement Under § 2333(A), Olivia G. Chalos
Bank Liability Under The Antiterrorism Act: The Mental State Requirement Under § 2333(A), Olivia G. Chalos
Fordham Law Review
This Note specifically addresses the jurisdictional split on the mental state requirement necessary to hold a defendant liable under the ATA. This Note explores the current judicial interpretations of the statute and concludes that, as the statute stands, the Second Circuit best interprets the mental state requirement for § 2333(a) claims predicated on a violation of material support laws. This Note proposes, however, that Congress should amend the ATA to clarify the state-of-mind requirement and should only allow for a cause of action where a bank manifests heightened culpability through intentional wrongdoing in the provision of financial services to foreign …
The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert
The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert
Fordham Law Review
This Article highlights just a few areas of law as illustrations of the Second Circuit’s jurisprudence in dealing with claims of marginalized and subordinated individuals and groups. In the area of civil rights, this Article focuses on sexual harassment law and prisoners’ rights. In the area of public benefits, this Article focuses on public assistance and the disability benefit programs of the Social Security Act.
Introduction: Constraint, Authority, And The Rule Of Law In A Federal Circuit Court Of Appeals, John Fabian Witt
Introduction: Constraint, Authority, And The Rule Of Law In A Federal Circuit Court Of Appeals, John Fabian Witt
Fordham Law Review
Congress’ Evarts Act, signed into law in 1891, created a new Article III federal court designed almost exclusively to sit as an intermediate appellate court in between the federal trial courts and the U.S. Supreme Court. Congress created the new Evarts Act appellate courts to relieve pressure on the Supreme Court’s growing workload and to create a less arbitrary system of appeals for litigants in the federal trial courts. These twin goals of reducing the Supreme Court’s workload and establishing a meaningful right of appeal produced a set of circuit courts of appeals with a distinctively constrained new role. This, …
Free Speech And Civil Liberties In The Second Circuit, Floyd Abrams
Free Speech And Civil Liberties In The Second Circuit, Floyd Abrams
Fordham Law Review
Much of the development of First Amendment law in the United States has occurred as a result of American courts rejecting well-established principles of English law. The U.S. Supreme Court has frequently rejected English law, permitting far more public criticism of the judiciary than would be countenanced in England, rejecting English libel law as being insufficiently protective of freedom of expression and holding that even hateful speech directed at minorities receives the highest level of constitutional protection. The Second Circuit has played a major role in the movement away from the strictures of the law as it existed in the …
White Collar Crime, Robert J. Anello, Miriam L. Glaser
White Collar Crime, Robert J. Anello, Miriam L. Glaser
Fordham Law Review
This Article will address six different areas of white collar law and procedure: (1) fraud, (2) the Racketeer Influenced & Corrupt Organizations Act (RICO), (3) conspiracy, (4) public corruption, (5) white collar practice, and (6) sentencing. Many of the cases profiled in this Article have driven legal and cultural developments far beyond the federal courts, including the cases of Leona Helmsley, one of New York’s most prominent real estate moguls; the “Mafia Commission,” a take-down of the bosses of the Five Families of La Cosa Nostra; and Abscam, a massive sting operation created by the federal government to expose corrupt …
Antitrust Jurisprudence In The Second Circuit, Saul P. Morgenstern, Jennifer B. Patterson, Terri A. Mazur
Antitrust Jurisprudence In The Second Circuit, Saul P. Morgenstern, Jennifer B. Patterson, Terri A. Mazur
Fordham Law Review
A running thread through Second Circuit antitrust jurisprudence is a willingness to examine market participants’ real-world conduct and the consequences of that conduct in seeking out the balance between incentivizing robust competition and protecting the market—and ultimately consumers—from distortions caused by anticompetitive conduct. This Article collects and describes rulings that reflect such themes in Second Circuit antitrust jurisprudence. The court’s long history in this substantive space, its likely continued exposure to critical antitrust questions, and the importance of this area of the law to our national economy assure that others will be examining and shedding further light on the Second …
Threats Against America: The Second Circuit As Arbiter Of National Security Law, David Raskin
Threats Against America: The Second Circuit As Arbiter Of National Security Law, David Raskin
Fordham Law Review
For nearly 100 years, the U.S. Court of Appeals for the Second Circuit has been a leading force in defining and resolving the uniquely thorny issues that arise at the intersection of individual liberty and national security. The court’s decisions in this arena are characterized by its willingness to tackle difficult questions and its skill in balancing the needs of the government with the rights of the accused to ensure fundamental fairness in the ages of espionage and terror.
Securities And Financial Regulation In The Second Circuit, Karen Patton Seymour
Securities And Financial Regulation In The Second Circuit, Karen Patton Seymour
Fordham Law Review
The Second Circuit has long been the country’s preeminent court in the field of securities and financial regulation. The reputation of the Second Circuit in the realm of securities has been so great that other courts, including the Supreme Court, often mention by name the particular judges that decided a given Second Circuit precedent to justify their reliance on that decision. Many courts have long looked to its jurisprudence for guidance in deciding novel or complex securities law issues. This article tracks the Second Circuit’s significant role in developing civil enforcement mechanisms for federal securities laws and making criminal prosecution …
Introduction From The Editors Of Volume 84, Hopi Costello, Matthew Geyer, Brandon Ruben
Introduction From The Editors Of Volume 84, Hopi Costello, Matthew Geyer, Brandon Ruben
Fordham Law Review
The U.S. Court of Appeals for the Second Circuit has always held special significance for the Fordham Law Review’s student members. Ennobled by the examples of Fordham Law School and Fordham Law Review alumni Judge Irving Kaufman, Judge William Mulligan, Judge Joseph McLaughlin, and, most recently, Judge Denny Chin, the student members of the Fordham Law Review strive to impact our profession at its highest levels. It is thus with great pleasure and pride that four current students on the Fordham Law Review join this intellectual lineage by contributing the notes written for this commemorative issue, eaching tackles recent …
Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein
Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein
Fordham Law Review
This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release. The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is narrowly tailored to serve a compelling government interest. Because there are a number of viable, less intrusive alternatives, PPG testing as it stands today is not narrowly tailored enough to serve a compelling government interest.
Shining The Light A Little Brighter: Should Item 303 Serve As A Basis For Liability Under Rule 10b-5?, Lauren M. Mastronardi
Shining The Light A Little Brighter: Should Item 303 Serve As A Basis For Liability Under Rule 10b-5?, Lauren M. Mastronardi
Fordham Law Review
This Note discusses a securities disclosure issue stemming from a split between the Second Circuit and the Ninth Circuit. The question presented is whether failure to comply with a disclosure requirement created by Item 303 of Regulation S-K can provide a basis for liability under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The Ninth Circuit held that such violation does not provide a basis for liability. Conversely, in Stratte-McClure v. Morgan Stanley, the Second Circuit explicitly disagreed with the Ninth Circuit and concluded that this violation may serve as a basis for liability. This …
Insta-Appropriation: Finding Boundaries For The Second Circuit’S Fair Use Doctrine After Campbell, Anna Schuler
Insta-Appropriation: Finding Boundaries For The Second Circuit’S Fair Use Doctrine After Campbell, Anna Schuler
Fordham Law Review
Copyright law’s current fair use landscape is riddled with unclear standards and old considerations forced upon new media. This is especially problematic in the context of digital appropriation of art from online social media platforms—an issue highlighted by Richard Prince’s exhibit “New Portraits,” in which he appropriated strangers’ Instagram photos for his own profit. Unless this situation is remedied, digital content creators will effectively lose their statutory copyright protections. Thus, when considering digital appropriation cases, courts should require a transformation of content rather than purpose, should elevate the weight of the fourth statutory factor, and should reinstate the “comment upon” …
The Currency Of Taxation, Tsilly Dagan
The Currency Of Taxation, Tsilly Dagan
Fordham Law Review
In its canonical rendition, income taxation aspires to achieve the sometimes-conflicting goals of maximizing social welfare and promoting distributive justice. We do not usually think about tax law as participating in the formation of our identities, shaping the ways in which we perceive ourselves, or influencing how we interact with others. I argue, however, that income tax is a powerful social instrument that plays an important role in the construction of our identities and interactions with one another. Income tax law, I claim, simultaneously reflects and shapes our identities, self-perceptions, and social interactions in various contexts, including within our families …
The Decline In Tax Adviser Professionalism In American Society, John S. Dzienkowski, Robert J. Peroni
The Decline In Tax Adviser Professionalism In American Society, John S. Dzienkowski, Robert J. Peroni
Fordham Law Review
In Part I, this Article briefly examines the debate over the proper role of the tax professional in representing clients. Part II discusses whether tax professionals owe special duties to the tax system. Part III analyzes how the tax professionals’ involvement in several waves of tax shelter abuses is in sharp contrast to the high-minded rhetoric of the tax ethics debate. This part also discusses changes in the legal and accounting professions that have contributed to the current state of taxpayer representation. This Article advocates for the position that tax professionals owe a duty to the tax system and such …
Up The Chute, Down The Ladder: Shifting Priorities Through Structured Dismissals In Bankruptcy, Bethany K. Smith
Up The Chute, Down The Ladder: Shifting Priorities Through Structured Dismissals In Bankruptcy, Bethany K. Smith
Fordham Law Review
In a structured dismissal of a Chapter 11 bankruptcy case, a bankruptcy court approves case dismissal alongside a stakeholder agreement as to the manner in which the estate is to be dealt with once the case has been dismissed. Such orders are controversial in that they are not explicitly authorized through the U.S. Bankruptcy Code (“the Code”) and are especially controversial where the accompanying agreement seeks to distribute estate property in contravention of the priority scheme laid out in § 507 of the Code. Where the agreement violates this so-called waterfall payment method, bankruptcy courts are faced with difficult questions: …
Collateral Damage: When Should The Determinations Of Administrative Adjudications Have Collateral Estoppel Effect In Subsequent Adjudications?, Matthew Faust
Fordham Law Review
Collateral estoppel is an equitable doctrine under which a court gives issue-preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances, the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which circumstances the determinations of administrative adjudications should have collateral estoppel effect in subsequent administrative adjudications. There has been little clear and consistent reasoning in lower federal courts about when collateral estoppel should apply in administrative adjudications, and administrative agencies vary widely in their application of collateral …
The Semantics Of Sin Tax: Politics, Morality, And Fiscal Imposition, Bruce G. Carruthers
The Semantics Of Sin Tax: Politics, Morality, And Fiscal Imposition, Bruce G. Carruthers
Fordham Law Review
In this Article, I consider how negative social meanings can be projected through public revenue systems and propose to examine the link between taxation and representation in a new light.7 First, I discuss how social meanings are attached to money and then explain how, through the use of earmarking, this works in the case of tax revenues. I next briefly review the history of sin taxes at both the state and federal levels. Finally, I use computational linguistic methods to suggest that the fiscal significance of sin taxes, and their cultural significance, are loosely coupled.
Framing Middle-Class Insecurity: Tax And The Ideology Of Unequal Economic Growth, Martha T. Mccluskey
Framing Middle-Class Insecurity: Tax And The Ideology Of Unequal Economic Growth, Martha T. Mccluskey
Fordham Law Review
This Article first explains how the prevailing discourse frames federal tax support for the middle class as either consumption or redistribution, both of which appear to be essentially unproductive and potentially destructive. Second, this Article examines the expansion of state and local tax support for elite private capital. In contrast to tax support favoring the middle class, this upper-class support is accepted widely as necessary for productive economic development. Operating below the radar of prominent tax debates, this state and local tax policy reveals more starkly and perversely how prevailing views of tax rationalize inequality and austerity. This Article concludes …
A Copyright Right Of Publicity, Reid Kress Weisbord
A Copyright Right Of Publicity, Reid Kress Weisbord
Fordham Law Review
This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a “transformative use” of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging …
Read This Note Or Else!: Conviction Under 18 U.S.C. § 875(C) For Recklessly Making A Threat, Maria A. Brusco
Read This Note Or Else!: Conviction Under 18 U.S.C. § 875(C) For Recklessly Making A Threat, Maria A. Brusco
Fordham Law Review
What does it mean to make a threat, and under what circumstances can a speaker be convicted for making one? This Note examines these questions in light of Elonis v. United States, a Supreme Court case decided in June 2015. There, the Court held that when a speaker subjectively intends a statement be taken as a threat or knows that it will be taken as a threat, she may be convicted under 18 U.S.C. § 875(c). The Court did not decide whether a speaker who recklessly makes a threat may be convicted under the statute. This Note argues that …
The Corruption Of Liberal And Social Democracies, Timothy K. Kuhner
The Corruption Of Liberal And Social Democracies, Timothy K. Kuhner
Fordham Law Review
Thomas Piketty repeats throughout Capital in the Twenty-First Century that today’s levels of inequality are not inevitable, much less natural, and has connected the state of democracy worldwide to rising economic inequality. Wealth transfers from the state to the private sector, wealth transfers from labor to capital, and tax laws favorable to the concentration of wealth require that the participatory and representative facets of democracy be kept in check. Beyond suitable material conditions, the growth and maintenance of inequality necessitates a justificatory ideology. This Article explores the possibility that the laws of political finance can help connect the dots. Legal …