Fordham Law Review

http://ir.lawnet.fordham.edu/flr/

List of Papers (Total 3,962)

Can Neuroscience Help Predict Future Antisocial Behavior?

Part I of this Article reviews the tools currently available to predict antisocial behavior. Part II discusses legal precedent regarding the use of, and challenges to, various prediction methods. Part III introduces recent neuroscience work in this area and reviews two studies that have successfully used neuroimaging techniques to predict recidivism. Part IV discusses some...

A Glimpse Inside the Brain’s Black Box: Understanding the Role of Neuroscience in Criminal Sentencing

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...

How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence

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...

Neuroscience and Criminal Law: Have We Been Getting It Wrong for Centuries and Where Do We Go from Here?

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.

Correctional Change Through Neuroscience

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...

Fair or Foul?: SEC Administrative Proceedings and Prospects for Reform Through Removal Legislation

This Article catalogues the long list of criticisms of the Commission’s administrative proceedings. It also evaluates data describing the outcome of litigated matters and finds that, with the exception of insider trading cases, the Commission has an exceptionally high and statistically indistinguishable record of success in administrative and federal court proceedings alike. The...

Insta-Appropriation: Finding Boundaries for the Second Circuit’s Fair Use Doctrine After Campbell

Copyright law’s current fair use landscape is riddled with unclear standards and old considerations forced upon new media. This is especially problematic in the context of digital appropriation of art from online social media platforms—an issue highlighted by Richard Prince’s exhibit “New Portraits,” in which he appropriated strangers’ Instagram photos for his own profit. Unless...

Shining the Light a Little Brighter: Should Item 303 Serve as a Basis for Liability Under Rule 10b-5?

This Note discusses a securities disclosure issue stemming from a split between the Second Circuit and the Ninth Circuit. The question presented is whether failure to comply with a disclosure requirement created by Item 303 of Regulation S-K can provide a basis for liability under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The Ninth Circuit held that...

Bank Liability Under the Antiterrorism Act: The Mental State Requirement Under § 2333(a)

This Note specifically addresses the jurisdictional split on the mental state requirement necessary to hold a defendant liable under the ATA. This Note explores the current judicial interpretations of the statute and concludes that, as the statute stands, the Second Circuit best interprets the mental state requirement for § 2333(a) claims predicated on a violation of material...

Supervised Release, Sex-Offender Treatment Programs, and Substantive Due Process

This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release. The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is...

Securities and Financial Regulation in the Second Circuit

The Second Circuit has long been the country’s preeminent court in the field of securities and financial regulation. The reputation of the Second Circuit in the realm of securities has been so great that other courts, including the Supreme Court, often mention by name the particular judges that decided a given Second Circuit precedent to justify their reliance on that decision...

Threats Against America: The Second Circuit as Arbiter of National Security Law

For nearly 100 years, the U.S. Court of Appeals for the Second Circuit has been a leading force in defining and resolving the uniquely thorny issues that arise at the intersection of individual liberty and national security. The court’s decisions in this arena are characterized by its willingness to tackle difficult questions and its skill in balancing the needs of the government...

The Second Circuit and the Development of Intellectual Property Law: The First 125 Years

The Second Circuit has had a profound impact on copyright law. Judge Learned Hand’s decision in Nichols v. Universal Pictures Corp. helped define for later generations the fundamental idea/expression dichotomy. The transformative use doctrine has not been without its critics, but other leading decisions have helped write the rules of the road for the e-commerce era, both in the...

Antitrust Jurisprudence in the Second Circuit

A running thread through Second Circuit antitrust jurisprudence is a willingness to examine market participants’ real-world conduct and the consequences of that conduct in seeking out the balance between incentivizing robust competition and protecting the market—and ultimately consumers—from distortions caused by anticompetitive conduct. This Article collects and describes...

The Second Circuit and Social Justice

This Article highlights just a few areas of law as illustrations of the Second Circuit’s jurisprudence in dealing with claims of marginalized and subordinated individuals and groups. In the area of civil rights, this Article focuses on sexual harassment law and prisoners’ rights. In the area of public benefits, this Article focuses on public assistance and the disability benefit...

White Collar Crime

This Article will address six different areas of white collar law and procedure: (1) fraud, (2) the Racketeer Influenced & Corrupt Organizations Act (RICO), (3) conspiracy, (4) public corruption, (5) white collar practice, and (6) sentencing. Many of the cases profiled in this Article have driven legal and cultural developments far beyond the federal courts, including the cases...

Free Speech and Civil Liberties in the Second Circuit

Much of the development of First Amendment law in the United States has occurred as a result of American courts rejecting well-established principles of English law. The U.S. Supreme Court has frequently rejected English law, permitting far more public criticism of the judiciary than would be countenanced in England, rejecting English libel law as being insufficiently protective...

Introduction: Constraint, Authority, and the Rule of Law in a Federal Circuit Court of Appeals

Congress’ Evarts Act, signed into law in 1891, created a new Article III federal court designed almost exclusively to sit as an intermediate appellate court in between the federal trial courts and the U.S. Supreme Court. Congress created the new Evarts Act appellate courts to relieve pressure on the Supreme Court’s growing workload and to create a less arbitrary system of appeals...

Introduction from the Editors of Volume 84

The U.S. Court of Appeals for the Second Circuit has always held special significance for the Fordham Law Review’s student members. Ennobled by the examples of Fordham Law School and Fordham Law Review alumni Judge Irving Kaufman, Judge William Mulligan, Judge Joseph McLaughlin, and, most recently, Judge Denny Chin, the student members of the Fordham Law Review strive to impact...

Up the Chute, Down the Ladder: Shifting Priorities Through Structured Dismissals in Bankruptcy

In a structured dismissal of a Chapter 11 bankruptcy case, a bankruptcy court approves case dismissal alongside a stakeholder agreement as to the manner in which the estate is to be dealt with once the case has been dismissed. Such orders are controversial in that they are not explicitly authorized through the U.S. Bankruptcy Code (“the Code”) and are especially controversial...

Keeping Shareholder Activism Alive: A Comparative Approach to Outlawing Dead Hand Proxy Puts in Delaware

Current trends in shareholder activism have brought to light the competing interests of management and stockholders. With a rise in shareholder activism, firms are continuing to include change in control provisions, known as proxy puts, in their debt agreements to counter activist success. Recent litigation regarding the use of these provisions has created a debate as to whether...

No Misrepresentation Needed: Excepting Discharge for Actual Fraud Under 11 U.S.C. § 523 Without Misrepresentation

Imagine buying a game from a seller and promising to repay him at a later date. However, instead of repayment, you decide to give the game to your friend, who in turn allows you to use it. Then your friend declares bankruptcy to discharge the price of the game from his debts, thus allowing you both to use it without paying. This repayment runaround is the issue that the First and...

Collateral Damage: When Should the Determinations of Administrative Adjudications Have Collateral Estoppel Effect in Subsequent Adjudications?

Collateral estoppel is an equitable doctrine under which a court gives issue-preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances, the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which...