Publisher: Brooklyn Law School (Total: 4 journals)   [Sort alphabetically]

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Brooklyn J. of Intl. Law     Open Access   (Followers: 5)
Brooklyn Law Review     Open Access   (Followers: 4)
Brooklyn J. of Corporate, Financial & Commercial Law     Open Access   (Followers: 2)
J. of Law and Policy     Open Access   (Followers: 1)
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Brooklyn Law Review
Number of Followers: 4  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0007-2362
Published by Brooklyn Law School Homepage  [4 journals]
  • The Rules of the Malpractice Game: Affidavit of Merit Statutes, Erie, and
           the Cautionary Tale of an Overbroad Application of Rule 11

    • Authors: Deanna Arpi Youssoufian
      Abstract: In an effort to combat the rise in potentially frivolous lawsuits against professionals, including physicians, attorneys, and journalists, states have passed malpractice legislation requiring plaintiffs to file an affidavit of merit (AOM) attesting to the validity of their claims. However, these AOM statutes may conflict with Federal Rule of Civil Procedure 11, which provides that “a pleading need not be verified or accompanied by an affidavit” unless a rule or statute states otherwise. This is a classic Erie/choice-of-law problem for federal courts sitting in diversity, which are tasked with applying federal procedural law and state substantive law, and now must determine whether these statutes are substantive or procedural in nature. The circuit courts of appeals are split in deciding whether these AOM statutes apply, particularly in light of Rule 11’s silence on whether its exception pertains to both federal and state rules and statutes, or federal rules and statutes only. This note proposes a solution to the circuit split by reading the exception in Rule 11 as inclusive of state rules and statutes, as per precedent and the Supreme Court’s teachings of federal rule construction, thereby permitting their application in diverse federal courts and avoiding the murky substantive/procedural debate. In doing so, courts not only vindicate valid state interests of protecting professionals from lengthy and costly litigation, but also better promote the aims of Erie/choice-of-law doctrine and preserve crucial federalism and separation of power principles underlying our system of governance.
      PubDate: Wed, 08 Jun 2022 13:15:52 PDT
       
  • Down and Dirty: Remedies and Reparations for Intersected Environmental and
           Reproductive Justice

    • Authors: Mickaela J. Fouad
      Abstract: Pollution is a rampant issue in the United States, ranging from smog-filled air to infertile soil to contaminated water. Yet despite the pervasive nature of pollution, its harms are not equally distributed amongst society. Black, Indigenous, People of Color (BIPOC) communities disproportionately bear the burden of pollution and consequently suffer more harms because of it. Many of the health consequences from pollution are reproductive in nature: proximity to pollution can compromise fertility, cause difficulty in carrying a pregnancy to term and result in birth defects, disabilities, and reproductive cancers. This note focuses on the reproductive consequences of pollution and relies upon the intersection of the established environmental justice and reproductive justice movements to seek solutions. These movements focus on equity, autonomy, and the uplifting of communities. As such, this note’s solutions, which aim to alleviate the injustices of environmental reproductive harms, are also essential elements for racial justice generally. To mitigate and begin correcting the longstanding harms that stem from the systemic subjugation of BIPOC communities, this note posits that federal acknowledgement, expanded healthcare coverage for fertility treatment, and community-based reparations are essential. These are moneyed solutions in large part because the historic subjugation of minority groups in the United States has resulted in the persistent and worsening racial wealth gap. By providing access to healthcare, essential to a racialized problem, as well as funds that will be invested directly into affected communities at community members’ direction, these solutions can help reinstate autonomy, agency, and power in communities that have been done dirty for generations.
      PubDate: Wed, 08 Jun 2022 13:15:51 PDT
       
  • DNA Dystopia: How the National Security Apparatus Could Map the Entire
           Genome of America Without Violating the Fourth Amendment or the
           Constitutional Right to Privacy

    • Authors: Elias Rios III
      Abstract: Over the past decade, scientific advances have allowed genetic testing to become accessible to consumers. Direct-to-consumer (DTC) DNA testing companies can analyze your DNA sample so you can learn about your family’s origins or whether you are genetically predisposed to a specific disease or disorder. Consumers can then send these analyzed files to third-party databases that aggregate genetic data for specific purposes, like helping law enforcement solve cold cases. Recently, the Department of Defense alerted servicemembers that DTC DNA tests were a national security threat. Simply put, when the national security apparatus finds a threat, it proactively seeks to neutralize the threat, as seen in the 1960s and 1970s when crushing domestic protestors and at the beginning of the twenty-first century during the “War on Terror.” This note explores whether genetic information stored with DTC DNA testing companies or third-party databases is in fact a national security threat. This note brings attention to what would occur if US intelligence operations began to seize the DNA data of Americans, highlighting how the federal judiciary is ill-equipped to adjudicate DNA data, the biological essence of each person. This note then seeks to assess whether constitutional protections for genetic data could be judicially crafted by adapting the Fourth Amendment expectation of privacy or extending the larger constitutional right to privacy to the realm of genetic data. In finding shortcomings to these prospects, a legislative solution is the only alternative. This note also assesses European privacy laws and state-based initiatives or viable alternatives to the present situation. Ultimately, a federal law should be crafted that protects consumer’s genetic privacy, balances a private right of action with regulatory enforcement, and incentivizes DTC DNA companies and third-party websites to promote more secure methods so genetic data cannot be deemed a potential national security threat.
      PubDate: Wed, 08 Jun 2022 13:15:50 PDT
       
  • The Victim/Offender Overlap and Criminal System Reform

    • Authors: Cynthia Godsoe
      Abstract: Victimization makes people more likely to harm others, and vice versa. In short, “hurt people hurt people.” This victim/offender overlap is especially pronounced in sexual and violent offenses. Unfortunately, the criminal law continues to imagine victims and offenders in two different and mutually exclusive categories, each rigidly defined and morally laden. I first encountered this phenomenon while representing teenagers termed “crossover youth” due to their being both in the foster care system and the juvenile criminal system, and was surprised to find so little on this topic in the criminal law literature. Beginning to fill this gap is an important topic for this symposium on “The Role of the ‘Victim’ in the Criminal Legal System.” This blind spot, and the concomitant failure to address the root causes and cyclical nature of violence, perpetuates a racialized narrative of individual culpability and a stark moral binary between those who harm and those who are harmed, while also impeding meaningful change. In this article, I posit some explanations for the persistence of the legal construct of the victim/offender binary, before arguing that the overly reductionist, and arguably false, binary masks the complexity of violence, as well as its often cyclical nature. Recognizing the overlap exposes the normative and contingent nature of what is criminalized, complicates traditional rationales for punishment, including retribution and deterrence, and strengthens calls for a different approach to preventing and redressing harm.
      PubDate: Wed, 08 Jun 2022 13:15:49 PDT
       
  • Balancing Efficiency and the Public Interest: A Comparative Analysis of
           Force Majeure Defaults in Government Contracting

    • Authors: Alexandra L. Noetzel
      Abstract: Exemplified by the COVID-19 pandemic, contractual force majeure provisions can serve to protect contracting parties but can also place the risk of nonperformance on parties if the specific elements of the provision cannot be met. The current federal regulations governing government procurement in the United States lack the proper blend of uniformity and flexibility necessary to promote efficient contracting and risk assessment for both federal contractors and government agencies. Specifically, the current force majeure-like provision within the Federal Acquisition Regulation—the excusable delay provision—struggles to perfect this balance and puts government contractors in an unstable position of risk and decreased bargaining. This note examines the current US Federal Acquisition Regulation and its force majeure provision, compares the US provision with that of Canada’s federal regulatory framework, and suggests an adoption of the Canadian provision’s language to make for a more efficient and balanced US provision. More specifically, this note argues that a modified version of the US force majeure provision will continue to insulate the federal government from the risks that could adversely affect not only the national economy but also the public welfare and local economies, while also placing contractors in a less hostile and more efficient contracting environment.
      PubDate: Wed, 08 Jun 2022 13:15:49 PDT
       
  • Rotten Social Background and Mass Incarceration: Who Is a Victim'

    • Authors: Steven Zeidman
      Abstract: Despite the theoretical right to be heard at different junctures in the criminal legal system, in practice, the right is unsecured for many accused and convicted of various offenses. Criminal defendants are rarely heard at trial, upon sentencing, or at parole board interviews to determine eligibility for release. Consequently, these individuals are not able to offer explanations for their behavior. This is particularly harmful given the role that “severe environmental deprivation” or, sometimes controversially referred to as “rotten social background,” plays in criminal behavior. Research now indicates that societal shortcomings, including a lack of healthcare, education, and employment opportunities, combined with hyperaggressive policing and draconian sentencing for law violations, play a significant role in criminality. In other words, individual traits are not the driver of criminal behavior. Yet, the inability of those involved in the system to share evidence of their social background, and the refusal of actors in the system to view these factors as significantly mitigating, if not excusing, means that the problem is only swept under the rug. This essay aims to expose the explicit and implicit silencing of criminal defendants and the concomitant erasure of societal fault in criminal behavior and thus, in mass incarceration.
      PubDate: Wed, 08 Jun 2022 13:15:48 PDT
       
  • What Are Victim Impact Statements For'

    • Authors: Susan A. Bandes
      Abstract: In Payne v. Tennessee, the US Supreme Court upheld the admission of victim impact statements (VIS) on the ground that they provide valuable information to the sentencer. In the three decades since, two additional rationales for VIS have become ascendant: most prominently, a therapeutic rationale, and more recently, a public education rationale. In this article, I expand upon my critiques of the informational and therapeutic rationales in light of a growing body of empirical evidence about how VIS affect both sentencers and crime victims. Focusing on the powerful and viral VIS delivered at the Larry Nassar guilty plea hearings and the Brock Turner trial, I consider whether VIS can be defended as a vehicle for informing the public about the impact of crime—particularly crimes that are underenforced or poorly understood. I conclude that ultimately the current VIS regime arises from and reinforces an individualistic model of crime that is not well-suited to illuminating the scope or consequences of criminal behavior, particularly in multi-victim cases like those of Larry Nassar. More generally, I argue that there are fairer and more robust models for achieving the informational, healing, and educative goals that victim impact statements are meant to serve, and that these models may well require decoupling those goals from the narrow ambit of the criminal justice system.
      PubDate: Wed, 08 Jun 2022 13:15:47 PDT
       
  • Parole, Victim Impact Evidence, and Race

    • Authors: Alexis Karteron
      Abstract: Parole offers the possibility of release for a substantial number of incarcerated people in the United States, the world’s largest jailer, but is seriously understudied. In particular, the role of victims and race in the parole decision-making process deserves attention. Decades of research has shown that the “race-of-victim effect” leads to more punitive sentences when white victimhood is at issue. In the parole context, the ubiquity of victim impact statements and the emotional responses they trigger raise the likelihood that the “race-of-victim effect” plagues parole decision-making as well. This essay calls for greater data collection and scrutiny into the role of race and victim impact evidence in the parole decision-making process.
      PubDate: Wed, 08 Jun 2022 13:15:47 PDT
       
  • Defense Counsel’s Cross Purposes: Prior Conviction Impeachment of
           Prosecution Witnesses

    • Authors: Anna Roberts
      Abstract: A broad scholarly coalition supports the prohibition or diminution of the impeachment of criminal defendants with their convictions. Yet scholars should pay more attention to the flipside arrangement: impeachment of prosecution witnesses by defense counsel. First, because those engaged in reform efforts need to resolve the competing interests: constitutional arguments on behalf of the defense, but, on the other hand, concerns about a tool that (regardless of the nature of the witness) risks reinforcing biases and stereotypes. Second, because the impossibility of adequate resolution is itself important to note. Whether one considers the conflicting values of rule-makers deciding whether to regulate this, or the conflicting values of defense attorneys deciding whether to deploy it, the intractability underscores the appeal of abolitionist visions.
      PubDate: Wed, 08 Jun 2022 13:15:46 PDT
       
  • Blame the Victim: How Mistreatment by the State Is Used to Legitimize
           Police Violence

    • Authors: Tamara Rice Lave
      Abstract: The surprising thing about George Floyd is not that he was killed by the police. What is remarkable is that the officer who killed him was charged, convicted, and sentenced to more than twenty-two years in prison. This article examines the institutional mechanisms that support police violence against Black people. In the process, it illuminates the insidious ways in which state actors exploit structural social, economic, and health mistreatment to legitimize police violence. After exploring these issues, this article provides suggestions to reform our institutions in a manner that will bring about meaningful and lasting change.
      PubDate: Wed, 08 Jun 2022 13:15:45 PDT
       
  • Protecting the Constitution While Protecting Victims: Challenges to Pro Se
           Cross-Examination

    • Authors: Katharine L. Manning
      Abstract: Defendants have constitutional rights to cross-examine witnesses and to represent themselves. But when these rights are combined, they can have devastating effects on crime victims. All too often, defendants use the rights in a last-ditch effort to harass, bully, and intimidate the crime’s victims, sometimes leading to a dismissal of charges altogether, as victims withdraw their testimony to avoid personal cross-examination by the defendant. It does not have to be this way. Numerous courts have allowed standby counsel to conduct cross-examination of the victim within constitutional constraints. This article explores the limitations courts have imposed on pro se cross-examination to protect victims from harassment and retraumatization.
      PubDate: Wed, 08 Jun 2022 13:15:45 PDT
       
  • Should Victims’ Views Influence Prosecutors’ Decisions'

    • Authors: Bruce A. Green et al.
      Abstract: This article seeks to promote a conversation about how prosecutors, particularly in misdemeanor cases with identifiable victims, should take account of what victims want, including what they regard as the just result. The criminal law assumes that victims want retribution, which means incarcerating offenders, and prosecutors’ offices largely accept that premise. We argue that in a process that generally is weighted toward punishment and excessive use of state power, prosecutors should ascertain victims’ actual views and take them into account as a counterweight. That is, when prosecutors would otherwise pursue a misdemeanor prosecution, they should generally defer to victims’ informed and reasoned preferences for nonprosecution and noncarceral resolutions. The article draws on the recent experience of one of the coauthors, a public defender in Prince George’s County, Maryland.
      PubDate: Wed, 08 Jun 2022 13:15:44 PDT
       
  • Giving Meaning to the Apostrophe in Victim[’]s Rights

    • Authors: Margaret Garvin
      Abstract: There is a lack of consistency in how courts interpret the use or placement of an apostrophe on “victim.” While this may seem like a minor grammatical or typological error, it has a tremendous effect on victim’s rights, as it virtually erases the victim due to the confusion over the ownership of said rights. This essay analyzes how the placement of the apostrophe, in cases dealing with subpoenas duces tecum, have led courts to interpret victim rights in multiple ways, but all with the same outcome—excluding the actual victim from consideration. This causes the actual victims, even when the court does hold that they have ownership of their rights, to be denied true agency over those rights. This essay proposes how to close the gap between mere rights ownership and true victim agency by requiring counsel for victims of crimes.
      PubDate: Wed, 08 Jun 2022 13:15:43 PDT
       
  • FOREWORD: The Role of the “Victim” in the Criminal Legal
           System

    • Authors: Kate Mogulescu
      Abstract: On September 24, 2021, the Brooklyn Law Review brought together scholars looking at the role of the “victim” in the criminal legal system. Of consideration were the following questions: Who is labeled a victim and how does that impact outcomes and process' Where does the issue of victimization emerge, how is it received and what should the system’s response be' Who gets a voice' And when' Does the existing victim-offender binary further exacerbate a criminal legal system build on misogyny, xenophobia, and white supremacy' The series of articles and essays that make up this issue reflect the symposium’s multidimensional discussion and interrogate the way the legal system recognizes, or fails to recognize, those who have experienced harm.
      PubDate: Wed, 08 Jun 2022 13:15:42 PDT
       
 
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