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Articles 121 - 150 of 409
Full-Text Articles in Criminal Law
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 …
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 Fourth Amendment, Csli Tracking, And The Mosaic Theory, Christian Bennardo
The Fourth Amendment, Csli Tracking, And The Mosaic Theory, Christian Bennardo
Fordham Law Review
This Note explores the CSLI debate by analyzing the circuit courts’ decisions, scholars’ disagreement with those decisions, and the alternative approaches offered to protect and evaluate CSLI records. This Note concludes that warrantless CSLI monitoring should be analyzed under the “mosaic theory” of the Fourth Amendment. In support, it argues that this theory best addresses the concerns with CSLI tracking and proposes a standard that courts may use to apply it.
Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff
Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff
Fordham Law Review
Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.
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.
The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister
The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister
Fordham Law Review
In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent …
Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff
Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff
Fordham Law Review
Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.
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 Fourth Amendment, Csli Tracking, And The Mosaic Theory, Christian Bennardo
The Fourth Amendment, Csli Tracking, And The Mosaic Theory, Christian Bennardo
Fordham Law Review
This Note explores the CSLI debate by analyzing the circuit courts’ decisions, scholars’ disagreement with those decisions, and the alternative approaches offered to protect and evaluate CSLI records. This Note concludes that warrantless CSLI monitoring should be analyzed under the “mosaic theory” of the Fourth Amendment. In support, it argues that this theory best addresses the concerns with CSLI tracking and proposes a standard that courts may use to apply it.
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.
The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister
The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister
Fordham Law Review
In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent …
Revisiting Our Administrative System Of Criminal Justice, Benjamin E. Rosenberg
Revisiting Our Administrative System Of Criminal Justice, Benjamin E. Rosenberg
Res Gestae
Nineteen years after Judge Lynch’s piece, "Our Administrative System of Criminal Justice," this Article considers recent developments in the criminal justice system and whether Judge Lynch’s observations have withstood the test of time. It suggests that Judge Lynch’s observation—that our criminal justice system has strayed far from the model of the adversarial system—remains as true today as it was when he made it in 1998. It further explains that developments in the nineteen years since the publication of “Our Administrative System of Criminal Justice” have caused the criminal justice system to stray even further from the adversarial model and in …
Weaver V. Commonwealth Of Massachusetts, Bruce Green, Russell Pearce
Weaver V. Commonwealth Of Massachusetts, Bruce Green, Russell Pearce
Amicus Briefs
No abstract provided.
Who Put The Quo In Quid Pro Quo?: Why Courts Should Apply Mcdonnell ’S “Official Act” Definition Narrowly, Adam F. Minchew
Who Put The Quo In Quid Pro Quo?: Why Courts Should Apply Mcdonnell ’S “Official Act” Definition Narrowly, Adam F. Minchew
Fordham Law Review
Federal prosecutors have several tools at their disposal to bring criminal charges against state and local officials for their engagement in corrupt activity. Section 666 federal funds bribery and § 1951 Hobbs Act extortion, two such statuary tools, have coexisted for the past thirty-six years, during which time § 666 has seen an increasing share of total prosecutions while the Hobbs Act’s share of prosecutions has fallen commensurately. In the summer of 2016, the U.S. Supreme Court decided McDonnell v. United States—a decision that threatens to quicken the demise of Hobbs Act extortion in favor of § 666. If …
Updating The Social Network: How Outdated And Unclear State Legislation Violates Sex Offenders’ First Amendment Rights, Elizabeth Tolon
Updating The Social Network: How Outdated And Unclear State Legislation Violates Sex Offenders’ First Amendment Rights, Elizabeth Tolon
Fordham Law Review
Readily available on computers, phones, tablets, or television, social media has become a necessary platform of expression for many. But, for others, social media is an inaccessible tool whose very use has criminal repercussions. To protect innocent children, many states have enacted legislation restricting sex offenders’ access to social media. Unfortunately, this legislation is often outdated, overly restrictive, and unconstitutional under the First Amendment. North Carolina has recently attracted national attention, as its statute highlights the potential constitutional issues states face in drafting such legislation. To avoid the constitutional concerns that North Carolina faces, state legislators must draft statutes narrowly …
Dishonest Ethical Advocacy?: False Defenses In Criminal Court, Joshua A. Liebman
Dishonest Ethical Advocacy?: False Defenses In Criminal Court, Joshua A. Liebman
Fordham Law Review
This Note examines this dilemma and recent judicial approaches to it. Judges disagree about how guilty criminal defendants should be permitted to mount defenses at trial. Some have forbidden defense counsel from knowingly advancing any false exculpatory proposition. Others have permitted guilty defense attorneys to present sincere or truthful testimony in order to bolster a falsehood. And still others have signaled more general comfort with the idea that an attorney aggressively can pursue an acquittal on behalf of a guilty client. This Note seeks to resolve this issue by parsing the range of false defense tactics available to attorneys and …
Accidental Vitiation: The Natural And Probable Consequence Of Rosemond V. United States On The Natural And Probable Consequence Doctrine, Evan Goldstick
Accidental Vitiation: The Natural And Probable Consequence Of Rosemond V. United States On The Natural And Probable Consequence Doctrine, Evan Goldstick
Fordham Law Review
Recently, the Court decided Rosemond v. United States. In Rosemond, the Court had to determine the requisite mental state for aiding and abetting a particular federal crime. While the Court had the opportunity to weigh in on the natural and probable consequence doctrine in Rosemond, it declined to do so in footnote 7. This Note reviews the natural and probable consequence doctrine, its reception by courts and commentators, and the Court’s holding in Rosemond. This Note then applies the holding of Rosemond to several federal cases that employed the doctrine to determine whether, despite footnote 7, …
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 …
Johnson V. Kelley, Bruce Green
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 …
Foreword, Deborah W. Denno
Foreword, Deborah W. Denno
Fordham Law Review
This Foreword provides an overview of Criminal Behavior and the Brain: When Law and Neuroscience Collide, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Neuroscience and Law Center. While the field of neuroscience is vast—generally constituting “the branch of the life sciences that studies the brain and nervous system”— this symposium focused on the cutting-edge ties between neuroscience evidence and the different facets of criminal law. Such an intersection invited commentary from an expert group on a wide span of topics, ranging from the historical underpinnings between law and neuroscience to the …
Correctional Change Through Neuroscience, Arielle R. Baskin-Sommers, Karelle Fonteneau
Correctional Change Through Neuroscience, Arielle R. Baskin-Sommers, Karelle Fonteneau
Fordham Law Review
Currently, the U.S. criminal justice system is under intense scrutiny. High- profile cases question the appropriateness of specific types of evidence, decision making in sentencing, and the treatment of convicted offenders. Clearly, these issues are not new. And, as has been historically the case, the justice system looks toward science for assistance in addressing and redressing problems with the delivery of justice.
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.
Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg
Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg
Fordham Law Review
This Article seeks to advance discussions about the potential implications for justice policy of recent neuroscientific, psychological, and sociological research on young adults. In doing so, we emphasize the importance of not exaggerating either the empirical findings or their policy relevance. The available research does not indicate that individuals between the ages of eighteen and twenty are indistinguishable from younger adolescents in attributes relevant to criminal offending and punishment. Thus, we are skeptical on both scientific and pragmatic grounds about the merits of the proposal by some advocates that juvenile court jurisdiction should be categorically extended to age twenty-one. But …
Neuroscience And Criminal Law: Have We Been Getting It Wrong For Centuries And Where Do We Go From Here?, Elizabeth Bennett
Neuroscience And Criminal Law: Have We Been Getting It Wrong For Centuries And Where Do We Go From Here?, Elizabeth Bennett
Fordham Law Review
Moral responsibility is the foundation of criminal law. Will the rapid developments in neuroscience and brain imaging crack that foundation—or, perhaps, shatter it completely? Although many scholars have opined on the subject, as far as I have discovered, few come from a front-line perspective.
A Perspective On The Potential Role Of Neuroscience In The Court, Ruben C. Gur, Oren M. Gur, Arona E. Gur, Alon G. Gur
A Perspective On The Potential Role Of Neuroscience In The Court, Ruben C. Gur, Oren M. Gur, Arona E. Gur, Alon G. Gur
Fordham Law Review
This Article presents some lessons learned while offering expert testimony on neuroscience in courts. As a biomedical investigator participating in cutting-edge research with clinical and mentoring responsibilities, Dr. Ruben Gur, Ph.D., became involved in court proceedings rather late in his career. Based on the success of Dr. Gur and other research investigators of his generation, who developed and validated advanced methods for linking brain structure and function to behavior, neuroscience findings and procedures became relevant to multiple legal issues, especially related to culpability and mitigation. Dr. Gur found himself being asked to opine in cases where he could contribute expertise …
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 …
How Prosecutors And Defense Attorneys Differ In Their Use Of Neuroscience Evidence, Deborah W. Denno
How Prosecutors And Defense Attorneys Differ In Their Use Of Neuroscience Evidence, Deborah W. Denno
Fordham Law Review
Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence. For example, according to some commentators, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility for their offenses. In contrast, the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society. This “double- edged sword” view of neuroscience evidence is important for flagging concerns about the law’s construction of criminal responsibility and punishment: it demonstrates that the same …
A Glimpse Inside The Brain’S Black Box: Understanding The Role Of Neuroscience In Criminal Sentencing, Bernice B. Donald, Erica Bakies
A Glimpse Inside The Brain’S Black Box: Understanding The Role Of Neuroscience In Criminal Sentencing, Bernice B. Donald, Erica Bakies
Fordham Law Review
This Article begins by discussing what neuroscience and the smaller associated field of study, neuropsychology, are and what they can tell us about an individual. It then recounts a brief history of sentencing in the United States. Additionally, it expounds on how the legal system currently utilizes neuroscience in the courts, noting specifically the ways in which neuroscience can be presented during the sentencing phase of trial. Finally, it discusses the use of neuroscience as a mitigating factor during sentencing and how judges can use neuroscience to combat their implicit biases.