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Showing papers in "Fordham Urban Law Journal in 1999"


Journal Article
TL;DR: In this paper, the authors discuss how prosecutors should conduct themselves in light of the principle that has traditionally ben thought to define the prosecutor's professional ethos: "the duty to seek justice".
Abstract: This article discusses how prosecutors should conduct themselves in light of the principle that has traditionally ben thought to define the prosecutor’s professional ethos: “the duty to seek justice.” Part I sketches the outlines of this concept, both historically and in its contemporary incarnation. Part II offers two reasons for asking why prosecutors should seek justice. Part III examines alternative justifications for the duty–first, that the duty derives from prosecutors’ extraordinary power, and second, that the duty derives from their role on behalf of a sovereign whose own interest is in achieving justice–and explains why the second provides the more complete justification. Finally, Part IV suggests how this understanding of the defining principle of prosecutorial ethics has implications in cases where prosecutors have convicted innocent individuals, even if in-

15 citations


Journal Article
TL;DR: The authors argue that the public defender should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional responsibility, except for imminent death or serious bodily harm to another.
Abstract: This essay argues that the public defender should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional responsibility, except for imminent death or serious bodily harm to another. Having accepted the responsibility of representing indigent criminal defendants, the public defender is duty-bound to not compromise that responsibility for competing religious obligations. This argument rests on four premises: (1) the public defender occupies a unique position in our legal system, and options available to private interest lawyers or other clients should not be available to the public defender; (2) any deviation from the governing professional constraints in representing a client that stems from conflicting religious belief and harms the client is both professional unethical and immoral; (3) religion is at best equivocal in addressing the propriety of specific actions taken or urged on behalf of clients; and (4) the appropriate role of religion in the work of a public defender is that of individual inspiration, or motivation to work to change the professional code or the criminal jutstice system itself.

9 citations


Journal Article
TL;DR: For a survey of the history of the federal death penalty, see, e.g., this article, where a 161-page article surveys the history and structure of the U.S. death penalty.
Abstract: Little scholarly attention has been devoted to the federal death penalty, and the time is ripe for focus on the topic. Federal criminal statutes carrying possible death penalties have been on the books since the First Congress in 1790. In 1988 a single federal death penalty crime was authorized (for Continuing Criminal Enterprises ["CCE"]), and in 1994 Congress extended a potential death penalty to over 40 existing or new federal crimes. As of January 1, 1999, one hundred and thirty-five defendants had been authorized for federal capital prosecutions, and twenty people were under a federal sentence of death. This 161-page article surveys the history of the federal death penalty and describes the two current federal death penalty statutes and the structures they create; and it provides a detailed description of the U.S. Department of Justice's administration of the federal death penalty. Of greatest interest to administrative lawyers is the latter, in particular its analysis of the operation of the Department's Capital Cases Review Committee, established by Attorney General Reno in 1995. The author served on this Committee during 1996-97, and much of the descriptive and statistical material has not previously been published. He addresses its success in promoting "consistency and fairness," the continuing problem of regional disuniformity, the persistence of racial disparity in the administration of capital punishment despite self-conscious efforts to remove all race identifiers from the review process, and the intractable problem of manipulable written criteria. So long as eligibility for death turns on written statutory factors, he argues, the facts of murder cases can be manipulated by talented writing attorneys to produce a death sentence recommendation, or not, in virtually any murder case.

7 citations


Journal Article
TL;DR: The role of the federal prosecutor in terms of what rules dictate, and where they fall short is discussed in this paper, with a focus on five situations in which federal prosecutors are often expected to operate outside of the rules, including: charging and investigative decisions, discovery, plea bargaining, dealing with the press, and sentencing decisions.
Abstract: This Article discusses the undefined responsibilities of federal prosecutors For purposes of example, the essay focuses primarily on five situations in which federal prosecutors are often expected to operate “outside” of the rules, including: charging and investigative decisions, discovery, plea bargaining, dealing with the press, and sentencing decisions While there are ”rules” in each of these areas, they take a back seat to the discretionary powers prosecutors are expected to exercise wisely when performing their duties In judging whether there has been an appropriate exercise of those powers, it is not the rules that will govern society’s judgment Rather, the collective experience of dedicated and fair-minded prosecutors sets the standards Part I of this Article discusses the role of the federal prosecutor in terms of what rules dictate, and where they fall short Part II provides an analysis of where the law is silent, thereby making prosecutorial discretion imperative by focusing on five scenarios in particular This Article concludes with a proposal of the factors a prosecutor should use in making such decisions

6 citations


Journal Article
TL;DR: In this paper, the authors argue that the dangers inherent in the present situation justify the imposition of controls over the exercise of prosecutorial discretion in the decision whether to seek the death penalty.
Abstract: The most important variable affecting whether a defendant will be subject to the death penalty is often the particular ideology of the district attorney of a respective county. More subtle forms of arbitrariness, such as bias based upon race, gender and class, also pervade the process. Arguing that the dangers inherent in the present situation justify the imposition of controls over the exercise of prosecutorial discretion in the decision whether to seek the death penalty, Part I presents the nature and scope of prosecutorial discretion judicial review of that discretion and the influence that individual prosecutors can have in the exercise of such discretion in the context of the death penalty. Part II examines previously proffered controls of prosecutorial discretion and considers the appropriateness of utilizing these controls to limit the exercise of discretion in the decision whether to seek the death penalty. Part III asserts that within our current criminal justice system, potential controls must focus on improving the decision-making process in which discretion is exercised. This Note concludes that a single statewide inter-office death penalty committee is the most appropriate control of the exercise of prosecutorial discretion in such a critical decision.

6 citations




Journal Article
Brownrigg A1
TL;DR: It is concluded that a balancing test is needed to govern the release of genetic data, specifically with regard to the BRCA mutation.
Abstract: The vows of the Hippocratic Oath which include a vow to abstain from sharing a patient’s personal information remains an important tenet of medical care today. Physician-patient confidentiality even abstains sharing information with patients’ families. However, when medical information affects the health of the patient’s relatives, many medical professionals assert that they have a duty to share the information, with or without the patient’s consent, particularly in the context of children of patients with genetic diseases and disorders, where forewarning may significantly decrease the risks or increase prevention of the effects of the disease or disorder. Currently, while physicians respect for patients’ privacy compels them to refrain from sharing medical information with anyone, physicians must notify health officials when innocent third parties are at risk of certain diseases, most notably this conflict appears recently with HIV-positive individuals, but it may, in the near future, create a similar dilemma with the advent of better genetic testing methods. While physicians currently have no duty to warn children of genetic of, for example, BRCA gene mutations that pose a higher risk of breast cancer, it examines legislation, regulations, and court decisions regarding a physician’s duty to warn family members of genetic disease. The article concludes that a balancing test is needed to govern the release of genetic data, specifically with regard to the BRCA mutation.

4 citations


Journal Article
TL;DR: In this paper, the authors take on the challenge of describing some of the ways in which values often defined as "personal" or "religious" can be integrated into the practice of law at a large firm.
Abstract: This Essay takes on the challenge of describing some of the ways in which values often defined as “personal” or ”religious” can be integrated into the practice of law at a large firm. Part I describes some of the aspects of big firm practice that make it particularly difficult to integrate religious and personal values which may give meaning to one’s work. Part II suggests that such meaning can be found through a religious vision of what it means to be a person, which includes a sense of obligation to serve the common good. Part III explores how this concept might interface with the ideals, duties and culture of the legal profession. Part IV extends this analysis to the context of a practice that serves big business. Finally, Part V ponders how such a notion may be applied in the specific context of a big firm litigation practice. The Essay concludes with hope that the profession will make room for the substantive contribution that lawyers with religious vision of the human person and of the common good can bring to the public discourse and the practice of law, even in the context of a big firm practice.

4 citations


Journal Article
TL;DR: In this article, the authors examine the impact of federal and state laws on the siting of group homes, particularly in the context of discrimination against the disabled, namely the Federal Fair Housing Act, the Rehabilitation Act and the Americans with Disabilities Act.
Abstract: Group homes represent a non-traditional alternative to single family living. The advent of the group home has taken place since the 1970s for a number of reasons, namely, due to a severe shortage in affordable housing, particularly for newly employed young adults and the elderly, due to public policy considerations calling for deinstitutionalization of the developmentally disabled and mentally ill, and finally due to a growing need for congregate type living arrangements for other special needs populations. Part I of the article explores the framework of the New York State zoning authority and the methods by which municipalities regulate the siting of group homes. Part II discusses the preemptory effect and limitations of the Pavadan Law in the siting of group homes Part III examines the impact of federal laws on the siting of group homes, particularly in the context of discrimination against the disabled, namely the Federal Fair Housing Act, the Rehabilitation Act and the Americans with Disabilities Act. Part IV summarizes the effect of federal and state legislation on local land-use regulation pertaining to group homes. Finally, the article concludes that dispite continuing the notion of “Not In My Back Yard” (NIMBY), group home advocates have developed a solid foundation to challenge discriminatory zoning laws and practices that resulte in the exclusion of group homes from communities.

3 citations


Journal Article
TL;DR: This article explored the ethics of writing amicus briefs as they relate to defamation and privacy issues by focusing on two specific cases, Rice v. Paladin and Khawar v. Globe, International.
Abstract: This Article explores the ethics of writing amicus briefs as they relate to defamation and privacy issues by focusing on two specific cases, Rice v. Paladin and Khawar v. Globe, International. It begins with a history of amicus curaie briefs, followed by a discussion of the two cases. In Paladin, a family sued a publishing company arguing that a book it published aided and abetted a murder. In Khawar, a photo was wrongly placed in a book and was subsequently printed in a newspaper. In both cases, amicus briefs were submitted on the part of the defendants from large media corporations, prompting public outrage over the defense of seemingly indefensible actions. The Article examines both sides of the argument, and ultimately argues that that media lawyers should continue to submit such briefs, despite some public outrage.

Journal Article
TL;DR: In this article, the authors focus on the life and legacy of Francis Perkins, a twentieth century champion of woman's and worker's rights, and examine her work as a reformer and as Secretary of Labor under Franklin Roosevelt, specifically on the issues of woman rights, education, social services and working conditions for poor.
Abstract: This Article focuses on the life and legacy of Francis Perkins, a twentieth century champion of woman’s and worker’s rights. It examines her work as a reformer and as Secretary of Labor under Franklin Roosevelt, specifically on the issues of woman’s rights, education, social services and working conditions for poor. By focusing on specific legislation she helped enact, such as the Social Security Act and laws regarding working conditions, the Article ultimately seeks to portray Perkins as the most influential person to urban America in the twentieth century.

Journal Article
TL;DR: In this article, the authors discuss how, in their traditional role, federal prosecutors have limited their function to case-processing and accordingly reduced their natural ability to fashion effective crime-fighting techniques.
Abstract: Part I of this Article discusses how, in their traditional role, federal prosecutors have limited their function to case-processing and accordingly reduced their natural ability to fashion effective crimefighting techniques. Part II explores how certain features of the prosecutor’s function make him well-placed to act as the federal agencies’ strategic thinker. Finally, the Article suggests how the strategic potential of the prosecutor’s role could be realized.

Journal Article
TL;DR: In this article, the authors argue that the state should not wholly limit its involvement in arbitral processes; the courts do and should have a substantial role in determining the enforceability of arbitration agreements and awards in a few select contexts.
Abstract: As compared with the formal pleadings, massive discovery, aggressive motion practice, and endless appeals of litigation, arbitration is undoubtedly more efficient as a dispute resolution mechanism. However, efficiency is only one of many advantages of arbitration. Arbitration empowers disputing parties, promotes individual autonomy and cooperation, and curtails the power of government in the process. Still, the state should not wholly limit its involvement in arbitral processes; the courts do and should have a substantial role in determining the enforceability of arbitration agreements and awards in a few select contexts. Overall, courts should enforce arbitration agreements and only limit enforceability that are vulnerable to contract defenses like fraud, duress or illegality. Courts should also monitor arbitration to ensure that arbitrators properly enforce the intent of the contracting parties, and if they fail at this task, there may be necessary judicial review for errors of law. However, the state should be hestitent to tamper with arbitration processes beyond this point. This approach maximizes individual autonomy and cooperation while minimizing governmental interference.

Journal Article
TL;DR: Safir as mentioned in this paper proposed a proposal by New York City Police Commissioner Howard Safir to expand New York's DNA database, which would allow the police to obtain DNA from anyone arrested for a recordable crime.
Abstract: This Article discusses a proposal by New York City Police Commissioner Howard Safir to expand New York’s DNA Database. The proposal would allow the police to obtain DNA from anyone arrested for a recordable offense. The Article describes how DNA is used by law enforcement from the molecular level to DNA databases. The Article then describes Safir’s proposal, including the controversy surrounding Fourth Amendment privacy concerns and fears of potential misuse of the DNA information by law enforcement. Despite these concerns, in light of New York’s recidivism rates, crime trends, administrative costs, and investigative efficiency, the Article argues that Safir’s plan is effective law enforcement tool that does not overly intrude on Fourth Amendment rights.

Journal Article
TL;DR: Brandeis is the presiding eminence in the story of the encounter of Jewish with the American legal order as discussed by the authors, who manifests in his person both sides of this extraordinary flourishing.
Abstract: Louis D. Brandeis is the presiding eminence in the story of the encounter of Jewish with the American legal order. In the centuries since Brandeis started practicing law, Jews have flourished exceedingly in both the legal professional mainstream (practitioners, judiciaries, academics) and the public interest sector. Can this extravagant participation in both hemispheres of the world of American lawyering be explained by something unique to the Jewish tradition or experience? This Essay addresses that question by focusing on Brandeis, who manifests in his person both sides of this extraordinary flourishing. Brandeis seems a felicitous path to understanding, not because he is typical, but because he is archetypical. He has become a cultural marker, a touchstone to be emulated, praised, and claimed as an ancestor by proponents of many different legal projects. But can he be understood in terms of Jewish tradition and experience?

Journal Article
TL;DR: In this article, the authors describe four models for courses teaching Jewish law in American law schools, outlining their advantages and disadvantages, and a synthesis of the previous three models, aiming to help students understand the relevance of Jewish law to a broad range of legal issues.
Abstract: There has been a “religious lawyering movement,” where religion has gained increased prominence in the legal profession and academia. This essay discusses one aspect of the movement, Jewish law in the American law school curriculum. The author describes four models for courses teaching Jewish law in American law schools, outlining their advantages and disadvantages. The first model teaches Jewish law in comparative law. The course would compare and contrast the substantive areas of law in both Jewish and American law. The second model teaches Jewish law in international law. By focusing on the impact of Jewish law on Israel’s legal system, students will view the application of Jewish law in on a modern secular nation. The third model would examine Jewish law with little, if any, reference to other legal systems. The fourth model is a synthesis of the previous three models, aiming to help students appreciate the relevance of Jewish law to a broad range of legal issues.

Journal Article
TL;DR: The smart growth movement as mentioned in this paper aims to make urban areas more attractive to live and work in, creating both investment and jobs, by increasing citizen participation in development decisions and encouraging a constructive dialogue regarding development on individual neighborhoods.
Abstract: Written by a former mayor of Seattle, this Article describes the “smart growth” movement as a way to sustain the livability of large urban centers in the twenty-first strategy. It describes some of the problems facing urban areas experiencing population growth, namely traffic, rising housing prices and a scarcity of open space. The ”smart growth” movement seeks to address these problems in a cost efficient and environmentally friendly manner. Specifically, it seeks to do so through increased citizen participation in development decisions an constructive dialogue regarding development on individual neighborhoods. Ultimately, the goal of the movement is to make urban areas more attractive to live and work in, creating both investment and jobs. The Article also describes some of the community sacrifices required by the movement, including lowdensity residential neighborhoods, dependence on the automobile, and the separation of the middle and upper income households from the urban poor.

Journal Article
TL;DR: In this paper, the authors argue that the United States Supreme Court should clarify the issue in favor of mandatory arbitration agreements and require that arbitration proceedings from such agreements incorporate fundamental procedural protections for employees, as opposed to the present scheme in which arbitrators do so only on a voluntary basis.
Abstract: The United States Supreme Court in Alexander v. Gardner-Denver Co. held that an employee could not be forced to arbitrate his discrimination claim against an employer pursuant to his union’s collective bargaining agreement. Subsequent cases viewed Gardner-Denver as prohibiting mandatory arbitration in employment discrimination claims, until the Supreme Court upheld an agreement to submit all statutory discrimination claims to arbitration in Gilmer v. Interstate/Johnson Lane Corp. Gilmer seems to have limited the prohibition of mandatory arbitration in Gardner-Denver to collective bargaining agreements. Subsequently, many lower courts interpret Gilmer as an approval of arbitration clauses in employment agreements, and as such, employers have increasingly included these compulsory arbitration clauses in employment contracts and applications. However, there is still varied treatment of mandatory arbitration clauses by courts. The note explores court decisions which treated subsequent congressional legislation as barring such agreements, additional safeguards imposed by some circuit courts regarding mandatory arbitration agreements, the principal arguments in favor of such agreements, and the countervailing arguments, most represented by the stance of the Equal Employment Opportunity Commission (EEOC). The note concludes by arguing that the United States Supreme Court should clarify the issue in favor of mandatory arbitration agreements, but require that arbitration proceedings from such agreements incorporate fundamental procedural protections for employees, as opposed to the present scheme in which arbitrators do so only on a voluntary basis.


Journal Article
TL;DR: In this article, the authors argue that the practice of law is experiencing a spiritual crisis at both the personal and professional level, and they identify the role that the crisis in our paradigms has played in the crisis our personal and institutional lives.
Abstract: This Essay asserts that the practice of law is experiencing a spiritual crisis at both the personal and professional level. The Essay seeks to determine the role that the crisis in our paradigms has played in the crisis our personal and institutional lives. Although the crisis in our paradigms are not necessarily responsible for all our problems, our institutions and systems can cause us to be estranged from ourselves and that is what is happening today in the practice of law. We, as a profession, are beginning to see the limitations of our old paradigm, with retributive justice as its base, and the promise of newly emerging paradigms, which move towards restorative justice. These new paradigms have the potential to bring us back to our professional roots and to a clearer understanding of the divine purpose of law.


Journal Article
TL;DR: In this article, a lawyer's public proclamation of her beliefs, using the words of her faith, is described, and explained how her faith permeates through her daily life, and is even relevant to her profession as a lawyer.
Abstract: This Essay is a lawyer’s public proclamation of her beliefs, using the words of her faith. She explains how her faith permeates through her daily life, and is even relevant to her profession as a lawyer.

Journal Article
TL;DR: In this paper, the authors argue that while legal work as a vocation may have positive effects for society as a whole, as well as overall benefits for the legal profession, vocation could very well hurt the lawyer "called" to take up this vocation.
Abstract: This Essay argues that while legal work as a vocation may have positive effects for society as a whole, as well as overall benefits for the legal profession, vocation could very well hurt the lawyer “called” to take up such a vocation. A vocation is not simply the application of one’s religious belieft to the practice of law; rather, it is a ”burning fire” in a lawyer’s soul which the lawyer ”cannot contain.” Thus, a lawyer’s vocation becomes an overwhelming priority. Part I of this Essay provides an explanation of the biblical underpinnings of vocation through a discussion of the Hebrew word, dabar. Part II discusses the two skills which lawyers uniquely posses to help them understand the Word of God which any person with a vocation must realize: (1) the ability to use and interpret words and (2) the ability to analyze the world around them. Part III employs the biblical example of Jonah to illustrate that the practice of law as a vocation is a deeply personal and religious event that could be good for God, the common good and public discourse, but not for the individual lawyer. Finally, this Essay concludes that while society indeed reaps the benefits of a lawyer’s vocational skills, the very possession of such skills can, at the same time, cause internal distress.


Journal Article
TL;DR: In this article, the authors argue that mandatory arbitration agreements within the securities industry have failed to adequately comport with the current status of the nation's sexual harassment and civil rights laws by creating a disparate impact on undermining the statutory rights of women and minorities, and that the arguments in favor of such agreements are outweighed by the inequities and injustice which results from their enforcement.
Abstract: Mandatory arbitration agreements have become standard in the securities industry via the required Form U-4 for anyone seeking a license to buy or sell a security. However, the arbitration agreements generally submits a claimant to a panel of “white males in their sixties,” and often claimants do not fare well before such panels. The article explores the claims of proponents of such agreements, such as the efficiency of resolving the dispute, which allegedly benefits both employers and employees, notions of freedom of contract, and ability to foster employment relationships which otherwise would be difficult to enact. However, the article examines the ”onslaught” of criticism of such agreements as favoring employers, missing remedies which should be available under federal civil rights law, and allegations that such agreements violate intrinsic notions of justice and Title VII of the Civil Rights Act of 1964 because of its disparate impact on vulnerable and minority groups. Ultimately, the article argues that the mandatory arbitration agreements within the securities industry have failed to adequately comport with the current status of the nation’s sexual harassment and civil rights laws by creating a disparate impact on undermining the statutory rights of women and minorities, and that the arguments in favor of such agreements are outweighed by the inequities and injustice which results from their enforcement.

Journal Article
TL;DR: In this paper, the authors focus on the 1949 strike by Catholic workers at Calvary Cemetery in Queens, New York City's largest Catholic cemetery, and examine the relationship between Day and then-Archbishop of New York Francis Spellman, who opposed it.
Abstract: This Article focuses on Dorothy Day, the famous Catholic social activist, and the Catholic Worker, the newspaper she co-founded in 1933. Specifically, it focuses the 1949 strike by Catholic workers at Calvary Cemetery in Queens, New York City’s largest Catholic cemetery. It further examines and the relationships between Day, who supported the strike, and then-Archbishop of New York Francis Spellman, who opposed it. The Article moves beyond this specific incident and examines the example Day and the Catholic Worker provided for people of all faiths, specifically Catholics and their relationship with their Bishop. Finally, the Article seeks to apply the lessons of Dorothy Day to current issues facing Catholics.


Journal Article
TL;DR: The authors argue that a cultural shift has led many Americans to see the law as an arbitrary device, and that this belief is reinforced by lawyers and and perpetuated by law schools, leading to the negative perception of the legal profession.
Abstract: This Article seeks to explain the negative perception the legal profession and lawyers have in the eyes of the American public. Disregarding common answers such as the disproportionate amount of influence lawyers have or high salaries and extravagant lifestyles, this Article argues that a cultural shift has led many Americans to see the law as an arbitrary device. Consequently, this belief is reinforced by lawyers and and perpetuated by law schools, leading to the negative perception of the legal profession. In the process, the Article addresses five main issues: the definition and purpose of the law, the republican theory of lawyering, the realities and effectiveness of modern day law school, whether a republican theory of lawyering is in line with American realities, and prescriptions for the future.

Journal Article
TL;DR: In this article, the authors explore the long and intricate history of federalism, the arrangement between the federal and local governments to serve the people, in the United States, and argue that courts should inquire as to the utility of either the federal or local government regulating a specific matter.
Abstract: This Article explores the long and intricate history of federalism, the arrangement between the federal and local governments to serve the people, in the United States. It begins with the beginnings of federalism in pre-colonial times and continues to discuss how recent Supreme Court decisions have failed to articulate a cohesive test for federalism issues. Ultimately, the Article proposes a method for resolving federalism disputes. This method focuses on the sociopolitical and economic benefits of federalism as the Framers intended. Further, it argues that courts should inquire as to the utility of either the federal or local government regulating a specific matter, and let each level of government do what it does best.