Criminal Procedure Commons^™

Myths And Realities In The Sameness/Difference Debate, Rosemary C. Salomone

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Naked Before The Law: Reality Porn And The Capacity To Contract, Benjamin J. Cooper

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal challenges surrounding reality pornography, particularly through the lens of the Girls Gone Wild series, highlighting the tension between First Amendment protections for producers and the rights of participants. It argues that the legal framework governing consent, exploitation, and contractual agreements in this context is unclear and often fails to protect participants, many of whom face severe consequences. The analysis underscores the complexities of balancing public interest, contractual capacity, and the rights of minors in this lucrative yet legally fraught industry.

The Alchemy Of A Moral Discourse About The Biology Of Gender: Historical Sensitivity, Genetic Literacy, And The Will To Imagine A Different Equality, Doriane Lambelet Coleman

Cardozo Journal of Equal Rights & Social Justice

The article explores the intersection of biology, genetics, and gender, emphasizing the need for a cautious and informed approach when integrating scientific findings into legal and social policies. It highlights the historical misuse of science to justify discrimination and advocates for a nuanced understanding that balances genetic insights with ethical considerations. The author proposes moving beyond a one-size-fits-all model of equality to one that accommodates differences, ensuring equitable opportunities for all.

Home Alone: Children Of Incarcerated Mothers In New York City Under The Rockefeller Drug Laws, Aron M. Zimmerman

Cardozo Journal of Equal Rights & Social Justice

The Rockefeller Drug Laws of 1973, among the harshest in the nation, have failed to reduce drug trafficking or abuse and have instead led to unjust outcomes, disproportionately impacting racial minorities and women. These laws, which mandate draconian sentences based solely on drug type and quantity, tie judges' hands and prioritize incarceration over treatment, despite evidence that treatment is more cost-effective and reduces recidivism. Recent reforms offer some progress, but significant systemic changes are needed to address the laws' ongoing harm and restore judicial discretion in sentencing.

Military Spying In The United States: When It Is Not Your Neighbor Knocking At Your Door, Where Do You Turn?, Miriam Schneider

Cardozo Journal of Conflict Resolution

This Note will describe the role of the military in the United States and its relationship to privacy rights. Part I of this Note will describe the historical underpinnings that led to a limited role for the military within the United States territory, beyond defending against attack. Part II will describe the expectations by the courts and legislature for the military. In addition, it will illustrate instances where the military, along with numerous federal agencies, overstepped its traditional, constitutional and legal bounds. Part III will offer the legislature's response to, and its subsequent regulation of, the military and other federal …

Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik

Cardozo Law Review

How ought a democracy select its judges? Critics in Canada, England, and Wales invoke the democratic values of accountability and transparency to call for a diminution in prime ministerial control over judicial appointments. In the United States, Article III of the Constitution's text directs that the President nominate - with the advice and consent of the Senate - life-tenured federal judges. Bitter conflicts about particular nominees have produced many proposals for changes of that system. And in those states that rely on various forms of judicial election, concerns focus on funding and campaigning. In short, both globally and locally, democracies …

Solving The Williams Puzzle, Kyron J. Huigens

Articles

In the 1949 case of Williams v. New York, the United States Supreme Court approved of judicial factfinding as a feature of discretionary sentencing. The Court's more recent ban on judicial factfinding in determinate sentencing systems would seem to apply to discretionary sentencing systems as well, implying that Williams is no longer good law. If a sentencing judge may find facts in the exercise of discretionary sentencing as a matter of due process, then a legislature's attempt to introduce rule-of-law values into sentencing by creating a determinate sentencing regime hardly seems to call for constitutional limitations on judicial factfinding. And …

Hegel's Anti-Spinozism: The Transition To Subjective Logic And The End Of Classical Metaphysics, George Di Giovanni

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach

Articles

The article argues that the criminal justice system's current focus on punishment and procedural efficiency overlooks the transformative potential of remorse and apology in repairing moral and relational harm caused by crime. It advocates for a relational approach that integrates mechanisms like restorative justice and victim-offender mediation to foster healing, reconciliation, and reintegration of offenders into society.

Duress Is Not A Justification, Kyron J. Huigens

Articles

No abstract provided.

Unchecked And Imbalanced? A Critical Reading Of The U.S. Constitution, Madeleine Severin

Cardozo Law Review

No abstract provided.

Law, Terrorism, And Social Movements: The Tension Between Politics And Security In Germany's Anti-Terrorism Legislation, Shawn Boyne

Cardozo Journal of International and Comparative Law

The article explores Germany's approach to combating terrorism from the late 1960s to the 1980s, emphasizing the interplay between security measures and civil liberties. It argues that political power struggles, rather than the terrorist threat itself, often drove antiterrorism legislation. The analysis highlights how laws such as the Berufsverbot and criminal code revisions were used to suppress dissent, leading to public backlash and eventual reforms. In contrast to the U.S., which framed its post-9/11 response as war, Germany maintained judicial oversight and avoided suspending constitutional rights. Public opinion played a pivotal role in shaping these policies, ultimately fostering a stronger …

Donating "Blood Money": Fundraising For International Terrorism By United States Charities And The Government's Efforts To Constrict The Flow, Montgomery E. Engel

Cardozo Journal of International and Comparative Law

The note examines the U.S. government's use of blocking orders against charitable organizations suspected of supporting terrorism, arguing that while such orders are effective in disrupting terrorist financing, they raise significant concerns about due process, transparency, and the equitable treatment of Muslim-American donors. The author advocates for a shift toward criminal prosecution as a more effective and equitable strategy, balancing national security with civil liberties.

Fletcher's Rethinking: A Memoir, Kyron J. Huigens

Articles

No abstract provided.

The Death Penalty: Conceptual And Empirical Issues, Jason Borenstein

Cardozo Public Law, Policy & Ethics Journal

The article argues that the death penalty in the United States is plagued by significant conceptual and empirical flaws, particularly regarding its reliability and fairness. The author advocates for a moratorium on the death penalty until these issues are addressed, emphasizing the risk of executing innocent individuals and the lack of sufficient safeguards in capital proceedings. While not calling for outright abolition, the article contends that the current system is too flawed to continue without substantial reforms.

State Of Israel V. Haggai Yosef, Jacob Turkel, Ayala Procaccia, Esther Hayut

Translated Opinions

Facts: In an action for damages for wrongful arrest and prosecution, the plaintiffs wished to summon as a witness the person who had been the prosecutor in the criminal proceedings. The prosecutor had, in the meanwhile, become a judge. The District Court decided that the judge should be summoned to testify. The State asked for leave to appeal this decision, and leave was granted.

Held: A judge may not be summoned to testify on a matter relating to his judicial role, but on a matter unrelated to his judicial role, he may be summoned, and his testimony should be given …

Pleas For Dna Testing: Why Lawmakers Should Amend State Post-Conviction Dna Testing Statutes To Apply To Prisoners Who Pled Guilty, Daina Borteck

Cardozo Law Review

No abstract provided.

Loose Not The Floodgates, Benjamin J. Cooper

Cardozo Journal of Equal Rights & Social Justice

The article examines the implications of the Supreme Court's decision in Lawrence v. Texas, which struck down sodomy laws, arguing that while the ruling was necessary, it raises concerns about the broader regulation of sexual conduct outside marriage. The author contends that such laws, despite rare enforcement, serve societal functions, including protecting marriage and providing moral boundaries that deter harmful behavior, particularly among young people.

Lawrence V. Texas: When "Profound And Deep Convictions" Collide With Liberty Interests, Nancy J. Knauer

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's landmark decision in Lawrence v. Texas, which overturned Bowers v. Hardwick and invalidated a Texas sodomy law criminalizing same-sex intimacy. The author argues that Lawrence not only advanced individual liberty interests but also marked a significant shift in the legal and cultural recognition of homosexuality, moving beyond earlier frameworks that criminalized or marginalized gay individuals. The decision reflects broader societal changes in understanding same-sex relationships and challenges the use of moral disapproval as a basis for legal restrictions on consensual adult conduct.

The Shag-A-Delic Supreme Court: "Anal Sex," "Mystery," "Destiny," And The "Transcendent" In Lawrence V. Texas, Richard D. Mohr

Cardozo Journal of Equal Rights & Social Justice

The article critiques Justice Anthony Kennedy's majority opinion in Lawrence v. Texas for its lack of clarity and robust constitutional framework. While the decision overturned Texas's sodomy law, the author argues that Kennedy's reasoning conflated liberty and equality rights, relied on vague language, and failed to establish a clear legal standard, undermining its potential to provide strong protection for LGBTQ+ rights.

Challenging Dissent: The Ontology And Logic Of Lawrence V. Texas, Jami Weinstein, Tobyn Demarco

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's decision in Lawrence v. Texas, which invalidated a Texas antisodomy statute criminalizing homosexual conduct. The Court held that the statute failed rational basis review and rejected the promotion of majoritarian sexual morality as a legitimate state interest. The decision reflects a broader recognition of the fundamental right to make autonomous, private, consensual, adult sexual choices. The analysis critiques Justice Scalia's dissent, arguing that his fears about the end of morals legislation are unfounded and that laws based solely on moral disapproval lack a rational basis.

The Free Speech Coalition & Adult Entertainment: An Inside View Of The Adult Entertainment Industry, Its Leading Advocate & The First Amendment, Clay Calvert, Robert Richards

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Sexual Assault Crisis In The United States Air Force Academy, Colleen Dalton

Cardozo Journal of Equal Rights & Social Justice

The note examines the systemic crisis of sexual assault at the United States Air Force Academy, highlighting how military culture, legal frameworks, and institutional failures perpetuate this issue. It argues that comprehensive legal and cultural reforms are necessary to address the pervasive gender discrimination and retaliation against victims. The analysis emphasizes the need for Congress to modernize the Uniform Code of Military Justice and for the military to adopt a model that promotes gender equality and accountability.

Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal evolution from *Bowers v. Hardwick* to Lawrence v. Texas, highlighting how the latter marked a pivotal shift in recognizing LGBTQ+ rights by emphasizing personal autonomy and dignity. It underscores the significance of narrative strategies in shaping judicial decisions, particularly in *Lawrence*, where the plaintiffs' personal stories influenced the Court's ruling.

On Aristotelian Criminal Law: A Reply To Duff, Kyron J. Huigens

Articles

No abstract provided.

Ethical Issues In Defending A Terrorism Case: Stuck In The Middle, Joshua L. Dratel

Cardozo Public Law, Policy & Ethics Journal

The article discusses the ethical and legal challenges faced by criminal defense attorneys in terrorism cases, particularly focusing on the impact of Special Administrative Measures (SAMs), the Foreign Intelligence Surveillance Act (FISA), and the Classified Information Procedures Act (CIPA). These measures create significant barriers to effective legal representation, undermining the constitutional rights of defendants and the attorney-client relationship. The author argues that these practices not only impair the defense in terrorism cases but also risk encroaching on civil liberties in ordinary criminal cases.

Ethical Issues In Defending A Terrorism Case: How Secrecy And Security Impair The Defense Of A Terrorism Case, Joshua L. Dratel

Cardozo Public Law, Policy & Ethics Journal

The article discusses the unique ethical and legal challenges faced by criminal defense attorneys in terrorism cases, particularly highlighting the impact of Special Administrative Measures (SAMs), the Foreign Intelligence Surveillance Act (FISA), and the Classified Information Procedures Act (CIPA). These laws and regulations, expanded post-September 11, 2001, create significant barriers to effective representation, undermining the attorney-client relationship and constitutional protections. The article emphasizes how these measures not only complicate terrorism cases but also risk bleeding into other areas of criminal law, eroding civil liberties more broadly.

Criminal Statutes Of Limitations: An Obstacle To The Prosecution And Punishment Of Child Sexual Abuse, Jodi Leibowitz

Cardozo Law Review

No abstract provided.

Civil Rights Plaintiffs And John Doe Defendants: A Study In Section 1983 Procedure, Howard M. Wasserman

Cardozo Law Review

No abstract provided.

Dignity And Desert In Punishment Theory, Kyron J. Huigens

Articles

No abstract provided.