Criminal Procedure Commons^™

Plaintiff Anonymity During Civil Litigation Of Childhood Sexual Abuse Cases, Amit Shertzer

Cardozo Law Review

No abstract provided.

Can California Save Its Death Sentences? Will Californians Save The Expense?, Scott W. Howe

Cardozo Law Review

No abstract provided.

Surviving Castle Rock: The Human Rights Of Domestic Violence, Max D. Siegel

Cardozo Journal of Equal Rights & Social Justice

The article critically examines the U.S. Supreme Court's decision in Town of Castle Rock v. Gonzales and its broader implications for domestic violence survivors' rights. It argues that the Court's adherence to a "Negative Constitution," which limits government obligations to citizens, fails to protect vulnerable populations and violates international human rights standards. The article advocates for incorporating international law into U.S. jurisprudence to address systemic failures in responding to domestic violence.

"There Is A World Elsewhere": Preliminary Studies On Alternatives To Interest-Based Bargaining, F. Peter Phillips

Cardozo Journal of Conflict Resolution

We live in an Age of Reason, which our predecessors were pleased to call an Age of Enlightenment. The laws of physics and molecular chemistry, not the appearance of angels to shepherds, define our social expectations. In economics and in politics, we accept the guidance of a collective rationale, an Invisible Hand that, if it doesn't predict, nevertheless records the aggregate of decisions made by millions of social actors, each expressing not the general welfare but their individual self-interest.

Arbitrating Cultural Property Disputes, Elizabeth Varner

Cardozo Journal of Conflict Resolution

Years drag by, vicious allegations fly across the world stage, parties die frustrated. While cultural property disputes are frequently arbitrated internationally, arbitration is not often used in domestic cultural property disputes. One of the paradoxes of cultural property disputes is the need to resolve the issue while not harming the parties' reputation or devaluing the cultural property. While scholars have shown much interest in arbitrating cultural property disputes in the United States, maximizing the potential of arbitration in cultural property disputes has largely been ignored.

Rejecting the acceptability of litigating cultural property disputes in the battlefield of the courtroom, this …

Chinese Use Of Administrative Proceedings To Enforce Intellectual Property Rights: Evaluating And Improving Adr In China, Simeng Han

Cardozo Journal of Conflict Resolution

Since its entry into the World Trade Organization ("WTO") in 2001, China has significantly reformed its legal system in order to enforce its commitment to protecting Intellectual Property ("IP"). Yet, there remains a lingering suspicion of the actual level of Chinese commitment-as indicated by continuous infringement claims from nations such as the United States. With an increasing number of disputes loading the court dockets and putting pressure on judges, and given China's "deep-rooted historical preference for informal and non-adversarial means of dispute resolution," there is enormous potential for further development of ADR in this field. Indeed, the culturally preferable way …

Cyber Crime Control: Will Websites Ever Be Held Accountable For The Legal Activities They Profit From?, Ashley Ingber

Cardozo Journal of Equal Rights & Social Justice

The note examines the evolving legal landscape surrounding the liability of online platforms like Craigslist under Section 230 of the Communications Decency Act (CDA). While Section 230 currently shields Internet Service Providers (ISPs) from civil liability for third-party content, courts are increasingly narrowing its protections, particularly when platforms actively influence or profit from illegal activities. Criminal liability remains a significant exception to Section 230 immunity, and future legal developments may further restrict these protections, balancing free speech with accountability for online platforms.

"U" Stands For Underutilization: The U Visa's Vulnerability For Underuse In The Sex Trafficking Context, Erin Bistricer

Cardozo Journal of Equal Rights & Social Justice

The U Visa, established in 2000 under the Violence Against Women Act (VAWA) reauthorization, was designed to provide legal status to victims of certain crimes, including sex trafficking, without fear of deportation. However, its implementation has been hindered by significant challenges, including delayed regulations, confusion among applicants, and reliance on law enforcement cooperation, which can be a barrier for traumatized victims. While the U Visa offers more flexibility than the T Visa by covering a broader range of crimes and requiring a lower standard of proof, its effectiveness is limited by factors such as annual caps, inadequate state anti-trafficking laws, …

Convenient Scapegoats: Juvenile Confessions And Exculpatory Dna In Cook County, Illinois, Joshua A. Tepfer, Craig M. Cooley, Tara Thompson

Cardozo Journal of Equal Rights & Social Justice

The article examines the pervasive issue of false confessions, particularly among juveniles and mentally challenged individuals, which often lead to wrongful convictions. It underscores the critical role of DNA evidence in exonerating the innocent and highlights the need for systemic reforms in police interrogation practices and prosecutorial oversight. The analysis emphasizes the importance of transparency in evidence handling and the implementation of policies to prevent future injustices.

Predators In Paradise: Puerto Rico's Recent Sex Offender Problems And The Federal Government's Ill Suited Solutions, Adan Soltren

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges and implications of implementing the Adam Walsh Act (2006) in Puerto Rico, particularly its Sex Offender Registration and Notification Act (SORNA) provisions. It highlights Puerto Rico's noncompliance with SORNA due to its less stringent sex offender laws and the economic and policy concerns surrounding full adoption. The analysis critiques SORNA's one-size-fits-all approach, especially its treatment of juvenile offenders, and proposes tailored solutions for Puerto Rico to address these issues while maintaining public safety.

Cartoons Aren't Real People, Too: Does The Regulation Of Virtual Child Pornography Violate The First Amendment And Criminalize Subversive Thought?, Keisha April

Cardozo Journal of Equal Rights & Social Justice

The note argues that the government's regulation of virtual child pornography, particularly under the Obscene Visual Representations of the Sexual Abuse of Children (OVR) provision of the PROTECT Act, raises significant First Amendment concerns. While the provision aims to protect children, it criminalizes depictions that do not involve real children, undermining free expression. The analysis critiques the OVR provision's overbreadth and vagueness, asserting that it chills artistic expression and fails to serve a compelling government interest. The note advocates for narrowing the provision to focus on actual harm rather than fictional depictions.

Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam

Articles

No abstract provided.

A Mosaic Shield: Maynard, The Fourth Amendment, And Privacy Rights In The Digital Age, Erin Smith Dennis

Cardozo Law Review

No abstract provided.

Student Victims Or Student Criminals? The Bookends Of Sexting In A Cyber World, Todd A. Demitchell, Martha Parker-Magagna

Cardozo Public Law, Policy & Ethics Journal

The article argues that criminalizing sexting as child pornography unfairly victimizes adolescents, contradicting the purpose of laws intended to protect minors. It advocates for a balanced approach that addresses the harm caused by sexting without imposing felony charges, which can have lifelong consequences. The analysis emphasizes that zero-tolerance policies and strict legal responses are ineffective and unjust, as they fail to consider the context of adolescent behavior and the unintended consequences of criminalization.

The Manual Scavenging Problem: A Case For The Supreme Court Of India, Samuel D. Permutt

Cardozo Journal of International and Comparative Law

The note addresses the persistent issue of manual scavenging in India, a practice where predominantly Dalit women and girls clean human waste under deplorable conditions. Despite legal prohibitions, the practice continues due to caste-based discrimination and inadequate sanitation infrastructure. The author argues that the Supreme Court of India, through Public Interest Litigation (PIL), can effectively tackle this issue by implementing a three-step solution to eradicate manual scavenging.

Up Against The Wall: A Guide To The Effective Screening Of Former Government Attorneys In New York, Shira Mizrahi

Cardozo Public Law, Policy & Ethics Journal

The note examines New York Rule of Professional Conduct 1.11, which governs conflicts of interest for former government attorneys transitioning to private practice. It highlights the rule's strict requirements for screening to prevent conflicts and the "appearance of impropriety" standard, which allows courts to disqualify firms even without evidence of wrongdoing. The analysis critiques the rule's effectiveness, particularly in small firms, and proposes reforms to balance public trust, client interests, and attorneys' career mobility.

Restoring Restitution: The Role Of Proximate Causation In Child Pornography Possession Cases Where Restitution Is Sought, Dennis F. Dibari

Cardozo Law Review

No abstract provided.

Alternative Elements, Jessica A. Roth

Articles

The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of the offense beyond a reasonable doubt. Yet what the elements of any given offense are is not as clear as one might expect. Frequently, criminal statutes—especially federal statutes—describe an array of prohibited conduct, leaving ambiguous whether …

United States V. Ubs Ag: Has The United States Successfully Cracked The Vault To Swiss Banking Secrecy?, Eric M. Victorson

Cardozo Journal of International and Comparative Law

The article examines the legal and diplomatic efforts of the United States to combat tax evasion by American citizens using Swiss bank accounts, focusing on the landmark case of United States v. UBS AG. It highlights how the U.S. successfully challenged Switzerland's banking secrecy laws through treaty revisions and legal actions, ultimately achieving greater transparency and setting a precedent for international tax enforcement.

The Kiyemba Paradox: Creating A Judicial Framework To Eradicate Indefinite, Unlawful Executive Detentions, Samuel Chow

Cardozo Journal of International and Comparative Law

The article examines the Supreme Court's evolving role in reviewing detentions related to national security, particularly focusing on the writ of habeas corpus. It argues that while the Court has expanded habeas protections, significant limitations remain, especially in ordering release into the United States. The author contends that for habeas to be meaningful, courts must have the authority to grant "functional release," balancing individual liberty against executive powers. The analysis highlights key cases like Boumediene v. Bush, Munaf v. Geren, and Kiyemba v. Obama, which reveal the challenges in preventing indefinite detentions and the need for clearer …

The Shadow Bargainers, Ronald F. Wright, Jenny Roberts, Betina Cutaia Wilkinson

Cardozo Law Review

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate. This Article looks into the bargaining part of plea bargaining. It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.” This is a theory that some defenders embrace and others reject. Describing the factors they believe …

Clemency For Our Children, Anthony C. Thompson

Cardozo Law Review

This Article proposes the use of the executive's clemency power to pardon or commute the sentences of a class of petitioners: children sentenced to life without the possibility of parole (LWOP). The history of executive clemency reveals that the intent behind this unique power was to offer the executive branch a final check in the criminal justice system to redress errors or to enhance fairness. The clemency power - exercised through pardons or commutations - allows the executive branch either to absolve individuals of wrongdoing given an assessment of the circumstances or to redress the relative disparity or undue severity …

Smith And Women's Equality, Leslie C. Griffin

Cardozo Law Review

No abstract provided.

Employment Division V. Smith At The Supreme Court: The Justices, The Litigants, And The Doctrinal Discourse, Marci A. Hamilton

Cardozo Law Review

No abstract provided.

Addressing Human Trafficking Along The United States-Mexico Border: The Need For A Bilateral Partnership, Rocio Garza

Cardozo Journal of International and Comparative Law

The note argues that human trafficking along the U.S.-Mexico border is a complex issue rooted in economic disparities, weak legal frameworks, and the challenges of distinguishing trafficking from smuggling. It advocates for a bilateral partnership between the United States and Mexico to address the transnational nature of the crime, emphasizing the need for coordinated efforts in prosecution, victim protection, and prevention.

The International Control Of Illegal Drugs And The U.N. Treaty Regime: Preventing Or Causing Human Rights Violations?, Daniel Heilmann

Cardozo Journal of International and Comparative Law

The international drug control regime, established to preserve human health and welfare, faces criticism for prioritizing criminalization and punishment over education, harm reduction, and human rights. The regime's prohibition-oriented approach, while comprehensive, is challenged by modern human rights standards and the evolving illegal drug market. The article examines whether the regime remains effective and aligned with contemporary human rights principles, emphasizing the need to balance control measures with human rights protections.

The Impact Of Ashcroft V. Iqbal On Pleading, Alexander A. Reinert

Articles

The article critically examines the Supreme Court’s decision in *Ashcroft v. Iqbal*, which extended the plausibility pleading standard to all civil actions, and argues that this ruling has led to significant inconsistencies in lower court applications, raised Seventh Amendment concerns, and potentially excluded meritorious cases from judicial review. The analysis emphasizes the need for clarity and uniformity in pleading standards while proposing reforms to align the plausibility standard with constitutional and procedural fairness principles.

Guns, Crime Control, And A Systemic Approach To Federal Sentencing, David E. Patton

Cardozo Law Review

Recent scholarship about the role of sentencing reform in reducing high levels of incarceration has focused on evidence-based, offender-specific solutions, such as how to better assess offenders' risk of recidivism and their amenability to diversionary programs. This Article proposes a new, systemic approach. In particular, it suggests that in cases where the primary rationale for steep sentences is crime reduction, as opposed to retributive notions of harm and blameworthiness, judges ought to engage in an evidence-based examination of how the government is making "use" of the sentences it seeks in its law enforcement efforts. And where the government's efforts fall …

Such Visible Fiction: The Expansion Of Scott V. Harris To Prisoner Eighth Amendment Excessive Force Claims, Nina Frank

Cardozo Law Review

No abstract provided.

Is The "Post" In Post-Racial The "Blind" In Colorblind?, Ian F. Haney López

Cardozo Law Review

No abstract provided.