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Fordham Law Review

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Full-Text Articles in Law

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 Six: Transcripts (Including Voir Dire Transcripts), The Honorable John Koeltl, The Honorable Gary Lancaster, The Honorable Randolph Treece, Victor Kovner Nov 2011

Panel Six: Transcripts (Including Voir Dire Transcripts), The Honorable John Koeltl, The Honorable Gary Lancaster, The Honorable Randolph Treece, Victor Kovner

Fordham Law Review

No abstract provided.


Panel Five: Cooperation And Plea Agreements—Judges' Roundtable, The Hnorable Steven Merryday, The Honorable Raymond Dearie, The Honorable Loretta Preska, The Honorable K. Michael Moore Nov 2011

Panel Five: Cooperation And Plea Agreements—Judges' Roundtable, The Hnorable Steven Merryday, The Honorable Raymond Dearie, The Honorable Loretta Preska, The Honorable K. Michael Moore

Fordham Law Review

No abstract provided.


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 Three: Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules' Attempts To Protect Private Identifier Information From Internet Access?, The Honorable Ronald Leighton, Joe Cecil, Michael Ishakian, Edward Felten Nov 2011

Panel Three: Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules' Attempts To Protect Private Identifier Information From Internet Access?, The Honorable Ronald Leighton, Joe Cecil, Michael Ishakian, Edward Felten

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 …


Timing Is Everything: Markets, Loss, And Proof Of Causation In Fraud On The Market Actions, Andrew M. Erdlen Nov 2011

Timing Is Everything: Markets, Loss, And Proof Of Causation In Fraud On The Market Actions, Andrew M. Erdlen

Fordham Law Review

Plaintiffs in securities fraud class actions must prove that defendants’ misconduct caused the investors’ losses. The U.S. Supreme Court’s 2011 decision in Erica P. John Fund, Inc. v. Halliburton Co. reaffirmed that loss causation is a quintessential merits issue that must be decided at trial. In three recent trials, juries have held defendants liable with findings of fact that are inconsistent with the Supreme Court’s doctrinal framework for securities fraud causation. This Note examines these verdicts and encourages the courts to depart from the common law of fraud and tighten the meaning of causation. To do this, courts must adhere …


Fcpa Sanctions: Too Big To Debar?, Drury D. Stevenson, Nicholas J. Wagoner Nov 2011

Fcpa Sanctions: Too Big To Debar?, Drury D. Stevenson, Nicholas J. Wagoner

Fordham Law Review

The Foreign Corrupt Practices Act (FCPA) criminalizes bribery of foreign government officials. The frequency of enforcement actions and severity of fines levied against corporations under the FCPA have significantly increased in the last few years. There is an ongoing problem, however, with the sanctions for FCPA violations: enforcement authorities (the Department of Justice and the Securities and Exchange Commission) and contracting officials have limited themselves to fines, civil penalties, and occasional imprisonment of individual violators. Debarment from future federal government contracts, even temporarily, is an unused sanction for FCPA violations, even though Congress provided for this punishment by statute. Debarment …


The “Right” Redd Framework: National Laws That Best Protect Indigenous Rights In A Global Redd Regime, Stephanie Baez Nov 2011

The “Right” Redd Framework: National Laws That Best Protect Indigenous Rights In A Global Redd Regime, Stephanie Baez

Fordham Law Review

This Note focuses on Reducing Emissions from Deforestation and Forest Degradation (REDD), an international framework that aims to curb carbon emissions by reducing deforestation. While international negotiators discuss the environmental benefits of REDD, which will likely be implemented in the Kyoto Protocol’s post-2012 commitment period, forest-dwelling indigenous communities worry that REDD will destroy their livelihoods. Countries with high deforestation rates, such as Brazil and Indonesia, have already implemented a number of voluntary REDD pilot projects and are currently creating legal frameworks to address the complexities of REDD. This Note compares the legal frameworks of Brazil and Indonesia in terms of …


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.


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.


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.


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.


Foreign Official Immunity And The “Baseline” Problem, Chimène I. Keitner Nov 2011

Foreign Official Immunity And The “Baseline” Problem, Chimène I. Keitner

Fordham Law Review

No abstract provided.


Notes On Official Immunity In Ats Litigation, William R. Casto Nov 2011

Notes On Official Immunity In Ats Litigation, William R. Casto

Fordham Law Review

No abstract provided.


The Supreme Court Assumes Errant Prosecutors Will Be Disciplined By Their Offices Or The Bar: Three Case Studies That Prove That Assumption Wrong, Joel B. Rudin Nov 2011

The Supreme Court Assumes Errant Prosecutors Will Be Disciplined By Their Offices Or The Bar: Three Case Studies That Prove That Assumption Wrong, Joel B. Rudin

Fordham Law Review

No abstract provided.


Asking The Right Questions About Officer Immunity, Richard H. Fallon, Jr. Nov 2011

Asking The Right Questions About Officer Immunity, Richard H. Fallon, Jr.

Fordham Law Review

No abstract provided.


Unsupportable And Unjustified: A Critique Of Absolute Prosecutorial Immunity, Margaret Z. Johns Nov 2011

Unsupportable And Unjustified: A Critique Of Absolute Prosecutorial Immunity, Margaret Z. Johns

Fordham Law Review

No abstract provided.


Taking Supremacy Seriously: The Contrariety Of Official Immunities, Donald L. Doernberg Nov 2011

Taking Supremacy Seriously: The Contrariety Of Official Immunities, Donald L. Doernberg

Fordham Law Review

No abstract provided.


Editors’ Foreword Nov 2011

Editors’ Foreword

Fordham Law Review

No abstract provided.


Elusive Empowerment: Compensating The Sex Trafficked Person Under The Trafficking Victims Protection Act, Theodore R. Sangalis Oct 2011

Elusive Empowerment: Compensating The Sex Trafficked Person Under The Trafficking Victims Protection Act, Theodore R. Sangalis

Fordham Law Review

Globally, hundreds of thousands-perhaps millions-are being forced or coerced into commercial sex acts. In the United States, this sex trafficking problem has become a lucrative illegal industry, and it is quickly growing. In response, Congress passed the Trafficking Victims Protection Act of 2000 (TVPA) to eradicate the industry by prosecuting the perpetrators, protecting the victims, and preventing the practice. Through several reauthorizations, one federal strategy that has emerged is compensating the victims through mandatory criminal restitution and civil remedies. Collection of restitution damages has been lacking, however, and no civil suit filed for sex trafficking survivors has reached the merits. …


Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher Oct 2011

Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher

Fordham Law Review

Recent advances in brain imaging technologies allow researchers to "peer inside" a defendant's brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. Scholars and commentators alike continue to debate the merits, detriments, and general admissibility of functional neuroimaging evidence in the criminal context. Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without evaluating them under the appropriate admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically …


Bringing An End To The Trend: Cutting Judicial "Approval" And "Rejection" Out Of Non-Class Mass Settlement, Alexandra N. Rothman Oct 2011

Bringing An End To The Trend: Cutting Judicial "Approval" And "Rejection" Out Of Non-Class Mass Settlement, Alexandra N. Rothman

Fordham Law Review

In March 2010, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York rejected a mass settlement between the City of New York and the 9/11 first responders and rescue workers. The settlement was not a class action but some ten thousand individual cases aggregated for efficiency purposes. Nonetheless, Judge Hellerstein, invoking the spirit of Rule 23(e) of the Federal Rules of Civil Procedure, which provides for judicial approval of class action settlement, decided that the initial settlement was not enough, and sent the parties back to the negotiating table. There, the parties reached …


Protecting The Erisa Whistleblower: The Reach Of Section 510 Of Erisa, Adam B. Gartner Oct 2011

Protecting The Erisa Whistleblower: The Reach Of Section 510 Of Erisa, Adam B. Gartner

Fordham Law Review

Congress passed the Employee Retirement Income Security Act of 1974 (ERISA) to ensure the protection of private employee benefits. In doing so, Congress created uniform national standards for the administration of private employee benefit plans. Section 510 of ERISA affords some protection to whistleblowers who report ERISA violations. There is uncertainty, however, about whether section 510 protects a whistleblower who complains directly to his or her employer, or whether protection is limited to an individual who makes a report externally. Some circuit courts have held that section 510 protects all ERISA whistleblowers, while others have held that section 510's protections …


O Sonia, Where Art Thou?: Why Justice Sotomayor's Silent "Opinion" Should Serve As Shady Grove's Holding, Craig T. Cagney Oct 2011

O Sonia, Where Art Thou?: Why Justice Sotomayor's Silent "Opinion" Should Serve As Shady Grove's Holding, Craig T. Cagney

Fordham Law Review

Since the Supreme Court decided the case in 1938, Erie Railroad Co. v. Tompkins has limited the application of the Federal Rules of Civil Procedure. By changing shape, Erie has eluded the Court's attempts to curb its influence for most of the past century. Only recently, in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., did the Court manage to apply a Federal Rule over Erie's contrary command to apply state law, but that decision so divided the Court that no one opinion enjoyed the support of five Justices. The resulting confusion among the lower courts over which should …


Private Ordering With Shareholder Bylaws, D. Gordon Smith, Matthew Wright, Marcus Kai Hintze Oct 2011

Private Ordering With Shareholder Bylaws, D. Gordon Smith, Matthew Wright, Marcus Kai Hintze

Fordham Law Review

In this Article, we propose legal reforms to empower shareholders in public corporations. Currently,most shareholders participate in corporate governance in three ways: they vote, they sell, and they sue. We would expand the menu for shareholders in public corporations by enabling them to contract using shareholder bylaws. We contend that such private ordering will improve shareholder monitoring of managers and create laboratories of corporate governance that benefit the entire corporate governance system.