Criminal Law Commons^™

Enforcing Compliance With Constitutionally-Required Disclosures: A Proposed Rule, Emmet G. Sullivan

Cardozo Law Review de•novo

To provide a striking example of the need for a federal disclosure rule, in Part I, I briefly summarize a report on the discovery abuses that occurred in the case of United States v. Theodore F. Stevens. In Part II, I describe efforts beginning in 2003 to amend Rule 16. In Part III, I provide an overview of the local district court disclosure rules and standing orders nationwide. Part III also provides the proposed rule now being considered for adoption by the United States District Court for the District of Columbia.

Parental Kidnapping: An Epidemic That Is Escalating, Michael Samson

Cardozo Journal of Equal Rights & Social Justice

The note examines the complex legal and emotional challenges surrounding international parental child abduction, emphasizing the limitations of existing legal frameworks like The Hague Convention and the need for a more comprehensive approach to address this growing issue. It highlights the psychological and jurisdictional complexities involved, particularly when countries like China and Russia are not signatories to the Convention. The analysis advocates for stronger enforcement mechanisms, international cooperation, and preventive measures to protect children and families affected by such abductions.

Why Ban "Assault Weapons"?, James B. Jacobs

Cardozo Law Review

No abstract provided.

Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act, Joseph A. Goldstein

Cardozo Law Review

No abstract provided.

Beyond The Visiting Room: A Defense Counsel Challenge To Conditions In Pretrial Confinement, Amber Baylor

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

No Law And No Order: Local, State And Federal Government Responses To The United States Rape Kit Backlog Crisis, Glenne Ellen Fucci

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Corporate Conspiracy Vacuum, J. S. Nelson

Cardozo Law Review

In the absence of charges available for traditional conspiracy, public and judicial frustration with agents' lack of accountability has led to the distortion of alternative doctrines in efforts to impose liability on what should have been traditional conspiracy prosecutions. This paper examines those efforts and their impact on these alternative doctrines.

For Whom The Data Tolls: A Reunified Theory Of Fourth And Fifth Amendment Jurisprudence, Bryan H. Choi

Cardozo Law Review

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and "possessed" simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross-purposes. The privacy community has already sounded the alarm on the "third-party doctrine," which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have …

Public Danger, James Dawson

Cardozo Law Review

This Article provides the first account of the term "public danger," which appears in the Grand Jury Clause of the Fifth Amendment. Drawing on historical records from the seventeenth and eighteenth centuries, the Article argues that the proper reading of "public danger" is a broad one. On this theory, "public danger" includes not just impending enemy invasions, but also a host of less serious threats (such as plagues, financial panics, jailbreaks, and natural disasters). This broad reading is supported by constitutional history. In 1789, the first Congress rejected a proposal that would have replaced the phrase "public danger" in the …

Holding The Line: Customs And Border Protection's Expansion Of The Border Search Exception And The Ensuing Destruction Of Interior Fourth Amendment Rights, Hannah Robbins

Cardozo Law Review

No abstract provided.

Corporate Rights And Individual Interests: The Corporate Right To Privacy As A Bulwark Against Warrantless Government Surveillance, Kayla Robinson

Cardozo Law Review

No abstract provided.

Empowering Employees To Prevent Fraud In Nonprofit Organizations, John M. Bradley

Cardozo Public Law, Policy & Ethics Journal

This Article examines the significant problem of fraud within nonprofit organizations and demonstrates that current anti-fraud measures do not adequately reflect the important role employees play in perpetuating or stopping fraudulent activity. Psychological and organizational behavior studies have established the importance of (1) participation and (2) peers in shaping the behavior of individuals within the organizational context. This Article builds on that research and establishes that to successfully combat fraud, organizations must integrate employees into the design, implementation, and enforcement of anti-fraud strategy and procedures. Engaged, empowered employees will be less likely to commit fraud and more likely to dissuade …

Adequacy Of Notice Under Cafra: Resolving Constitutional Due Process Challenges To Administrative Forfeitures, Rebecca Hausner

Cardozo Law Review

No abstract provided.

Overcriminalizing Speech, Michal Buchhandler-Raphael

Cardozo Law Review

Recent years have seen a significant expansion in the criminal justice system's use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

A Contagion Of Fear: Post-9/11 Alarm Expands Executive Branch Authority And Sanctions Prosecutorial Exploitation Of America's Privacy, Carol M. Bast, Cynthia A. Brown

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Midnight In The Garden Of Ne Bis In Idem: The New Urgency For An International Enforcement Mechanism, Thomas J. Bussen

Cardozo Journal of International and Comparative Law

The article examines the challenges posed by the global proliferation of antibribery laws, particularly the Foreign Corrupt Practices Act (FCPA) and similar international laws, which have led to overlapping prosecutions of multinational companies (MNCs) for the same offenses. This phenomenon, termed "da mihi quoque" or "me too" prosecutions, results in significant financial and reputational costs for companies. The article argues that while these laws aim to combat corruption, their broad jurisdictional reach and uneven enforcement may inadvertently harm economic opportunities and governance systems in developing countries. It advocates for a more coordinated and balanced approach to enforcement to address these …

Prosecuting Generals For War Crimes: The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Cardozo Journal of International and Comparative Law

The article examines the evolving concept of "specific direction" in accomplice liability for war crimes under international law, highlighting the conflicting approaches of the ICTY and ICC. It advocates for the ICC to adopt a clear, intent-based standard to ensure accountability and consistency, avoiding the ambiguities of "specific direction."

Gay Panic, Gay Victims, And The Case For Gay Shield Laws, J. Kelly Strader, Molly Selvin, Lindsey Hay

Cardozo Law Review

In a highly publicized "gay panic" case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and eye makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first-degree murder, McInerney asserted a heat of passion defense based upon King's alleged sexual advances. The jury deadlocked, with a majority accepting McInerney's defense.

Drawing largely upon qualitative empirical research, this Article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases …

The Divisibility Of Crime, Jessica A. Roth

Articles

Near the end of the Supreme Court's 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies. Descamps represents the Court's most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction "counts" for purposes of applying …

Letting Innocence Suffer: The Need For Defense Access To The Law Enforcement Dna Database, Jason Kreag

Cardozo Law Review

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants' innocence post-conviction. This Article fills that void by identifying …

The Case For Prosecuting Arms Traffickers In The International Criminal Court, Leigh Rome

Cardozo Law Review

No abstract provided.

The Intracorporate Conspiracy Trap, J. S. Nelson

Cardozo Law Review

In the recent case of Commonwealth v. Lynn, Pennsylvania prosecuted a Roman Catholic priest who had not abused children himself but who, to protect the archdiocese that employed him, covered up information about priests who had abused children and reassigned the priests to new parishes. This case was the first of its kind to bring criminal charges against an official of the Church solely for how he supervised the careers of priests to protect his employer.

Because the intracorporate conspiracy doctrine prohibits it, the state - as is now typical of both state and federal jurisdictions around the country …

Hijacking Justice: Assessing The Emergency Driven Analysis Of Confrontation Clause Jurisprudence, Steven C. Berlowitz

Cardozo Law Review

No abstract provided.

Death By Discovery, Delay, And Disempowerment: Legal Authority For Arbitrators To Provide A Cost-Effective And Expeditious Process, Tracey B. Frisch

Cardozo Journal of Conflict Resolution

Whether warranted or not, despite statistics to the contrary, arbitration in recent years has become a punching bag for criticism that it has begun to mirror the type of scorched earth discovery practices and delays seen in litigation. Why is this? Is it because parties are not actively participating in the arbitration process and instead have allowed their outside counsels to use the litigationstyle discovery and delay tactics with which counsel feel most comfortable? Maybe. Do parties themselves want protracted discovery and a drawn out arbitration process? Some, perhaps. Has arbitration become a victim of its own success, attracting more …

Reorienting Restorative Justice: Initiating A New Dialogue Of Rights Consciousness, Community Empowerment And Politicization, Thalia González

Cardozo Journal of Conflict Resolution

For the last three decades scholars have explored the practice of restorative justice as a crime control mechanism in a multitude of settings. Much of the discourse has focused on restorative justice as an alternative to traditional punitive and retributive criminal justice processes. Whether restorative or punitive, criminal justice processes that seek to address harm are not apart, above, or outside social, cultural and political relations. This Article seeks to initiate a new dialogue of justice and argues that the ontology of restorative justice should to be viewed to include a liberatory moment of politicization focused on promoting equality and …

Judicial Conflict Resolution (Jcr): A New Jurisprudence For An Emerging Judicial Practice, Michal Alberstein

Cardozo Journal of Conflict Resolution

In the past few decades, the role of judges has changed dramatically, yet its nature has remained largely unexplored. To date, most cases settle or reach plea-bargaining, and the greater part of judges' time is spent on managing cases and encouraging parties to reach consensual solutions. Adjudication based on formal rules is a rare phenomenon which judges mostly avoid. This Article argues that the various Conflict Resolution methods, which are used outside the courtroom, as alternatives to adjudication, could have a strong and positive influence, both theoretical and practical, on judicial activities inside the courts. Theoretically, the Article develops a …

Repatriation Of Korean Cultural Property Looted By Japan-Can A Sincere Apology Resolve The Centuries-Old Korea/Japan Disputes?, Melissa (Youngjae) Koo

Cardozo Journal of Conflict Resolution

This Note will focus on the disputes between Korea, both North and South Korea, and Japan surrounding Korean cultural property looted by Japan and will explore concrete solutions for resolving such issues through alternative dispute resolution-more specifically, an apology. It will consider two predominant exampies of cultural property looting, which occurred during Japanese invasions of Korea-first, at the end of the sixteenth century and, the second, from 1910 to 1945. Additionally, Japan has frequently been characterized as being a "significant market" for stolen cultural property. It is reported that there are at least 34,157 objects of Korean origin in Japan, …

Biometric Passwords And The Privilege Against Self-Incrimination, Kara Goldman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Trade Secret Hacking, Online Data Breaches, And China’S Cyberthreats, Peter K. Yu

Cardozo Law Review de•novo

Taking advantage of the forum provided by this timely Symposium, this Article closely examines the ongoing debate on China’s sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary data from U.S. businesses. Part I outlines the five common narratives that have thus far been advanced to recount this widely criticized effort. Sensing the narratives’ negative overtones, Part II offers five modest suggestions on how a more positive debate can be constructed to help identify ways to reduce online hacking and data breaches as well as to enhance the protection of trade secrets and …

Why Instrumentalism Matters, Kyron J. Huigens

Articles

Alon Harel argues that the acts of a public official acting with "fidelity of deference," are "necessary," "non-contingent," "intrinsic," "constitutive," integrative," "expressive," or "inherent" features of legal punishment. Accordingly, he calls his argument "noninstrumental." This can be taken as an argument for logical necessity, definition, extension, or modest or immodest conceptual necessity. Only the last interpretation fits Harel's text, but such an argument fails because instrumentality is necessarily present in any event in the natural world, including punishment. Harel does not say which aspects of natural instrumentality he means to exclude from his argument, or how, or why.