Digital Commons Network^™

A Futile Endeavor: Defining "Scandalous" In The Bankruptcy Code, Bradley Simon

St. John's Law Review

(Excerpt)

This Note addresses the various, sometimes contradictory, approaches courts have taken in interpreting what constitutes scandalous material under § 107(b)(2) of the Code. Part I traces the right of public access to documents and records in bankruptcy courts to its common-law and First Amendment origins and discusses why transparency is particularly important in the bankruptcy context. Part II addresses the split of authority among the circuit courts regarding the appropriate way to define scandalous, focusing on the United States Court of Appeals for the First Circuit’s “truthfulness and relevance” approach, the Eighth Circuit’s “context-sensitive” approach, and the Ninth Circuit’s …

A Balancing Act: Fourth Amendment Protections And The Reasonable Scope Of Government Investigatory Access To E-Mail Accounts, Joseph P. Gryzlo

St. John's Law Review

(Excerpt)

Part I of this Note examines the Fourth Amendment particularity requirement, explains how it relates to the breadth of probable cause, and surveys how these concepts have been applied in the electronic context. Part II assesses the issue of the breadth of probable cause regarding e-mail accounts in particular and reviews the different approaches the district courts have taken in addressing this issue, as well as other proposed solutions that may be implemented in accordance with these approaches. Lastly, Part III proposes a resolution to the controversy, balancing the competing interests of privacy and the government’s investigatory needs, and …

The Copyright Protectability Of Architectural Works: The Eleventh Circuit Walks A Thin Line, Thomas Commons

St. John's Law Review

(Excerpt)

Part I of this Note discusses the history of copyright legislation in the United States regarding architectural works, as well the applicability of copyright law generally. Part II discusses the circuit split between the Eleventh and Second Circuits with regard to how much protection architectural works should be afforded. Part III analyzes the benefits and shortcomings of both approaches and how other courts should ultimately adopt the Second Circuit’s approach. This Note argues that the Second Circuit’s approach is supported not only by statutory language and legislative history, but also by public policy and constitutional considerations, as well.

Confidentiality And Attorney Client Privilege In The Internet Age: How To Handle Employer Monitoring Of Employee Email, Anthony Biondo

St. John's Law Review

(Excerpt)

This Note argues for the use of an objective element that focuses on the experience from the perspective of the user. The subjective element of the analysis remains unchanged, but a court will be asked to consider whether the client’s subjective belief was objectively reasonable from their perspective as a user of the Internet. This test avoids the issue of requiring clients to consider the path their electronic communication takes through the Internet by focusing on their perspective as a user of the Internet. Given the seemingly private nature of email, this analysis starts with a strong presumption that …

Starships And Enterprise: Private Spaceflight Companies' Property Rights And The U.S. Commercial Space Launch Competitiveness Act, Stephen Dimaria

St. John's Law Review

(Excerpt)

This Note utilizes SLCA as a focal point to discuss the potential of domestic regulation that grants private companies property rights in harvested outer space resources and how, if at all, these rights can exist within the boundaries of current international obligations. First, it outlines current international obligations in space law, delving into the treaties governing space law and analagous obligations in Antarctica and the deep sea. Second, this Note discusses how SLCA meets those guidelines and where it falls short. This Part draws on the Roman law principles of res nullius and res communis, the supporting sections …

Community Rights To Public Art, Cathay Y. N. Smith

St. John's Law Review

(Excerpt)

Property owners generally have the right to destroy their own property. This Article argues, however, that certain property is so connected to a community’s identity that the community’s right to preserve its heritage may trump a property owner’s right to destroy. This Article explores existing, yet underutilized, legal solutions a community may use or adapt to preserve public art when that art has become a part of its cultural heritage. Finally, recognizing that preservation has its limits, and that without destruction there will be no space for creation, this Article ultimately sets forth some questions that present challenges to …

Product Recalls: Why Is Tort Law Deferring To Agency Inaction?, Jill Wieber Lens

St. John's Law Review

(Excerpt)

Part I of this Article explores tort law’s treatment of agency standards and regulations regarding determinations of product defectiveness, the propriety of post-sale warnings, and whether to punish the manufacturer with punitive damages. Part II then explains how tort law treats agency determinations—and lack thereof—on product recalls. This Part explains how tort law’s narrow standards for liability defer to agency orders to determine the reasonableness of a product recall and how that deference is illogical and inconsistent with negligence per se principles. Part II also concludes that product recalls are not so special so as to deserve special treatment …

"Reasonable" Police Mistakes: Fourth Amendment Claims And The "Good Faith" Exception After Heien, Karen Mcdonald Henning

St. John's Law Review

(Excerpt)

Given Heien’s distinction between the standard under the Fourth Amendment and the standard for qualified immunity, we are left after Heien with the conclusion that the concept of “objectively reasonable” conduct varies depending on the type of claim the Court is addressing. In particular, Heien leaves open both the question of what constitutes a reasonable mistake of law for Fourth Amendment purposes and the question of how that answer relates to the good faith exception to the exclusionary rule. This Article explores these questions. Part I examines how the Court has increased its tolerance of police mistakes, both in …

Volume 90, Summer 2016, Number 2

St. John's Law Review

No abstract provided.

Transformativeness In The Age Of Mass Digitization, Marie-Alexis Valente

St. John's Law Review

(Excerpt)

This Note examines and ultimately argues against the expansion of transformativeness in verbatim-copying cases, given the implications it will have as more copyrighted works are digitized. Part I discusses the background and objectives of the Copyright Act, the fair use exception, and the rise of the transformativeness subfactor. Part II provides a summary of some predigitization fair use cases to establish some basic principles about how courts have ruled on transformativeness. Part III examines relevant cases recently decided on the question of transformativeness in the context of mass digitization. Part IV critiques the ways courts have arrived at their …

Beware The Friends You Keep And The Places You Sleep: The Fourth Amendments Limited Protection Over Visitors And Their Belongings, Alysha C. Preston

St. John's Law Review

(Excerpt)

This Note concludes that the Arizona Supreme Court correctly applied the possession test and strongly urges the Supreme Court to address the issue and follow in Arizona’s footsteps. The possession test not only provides the best guidance for both officers and courts, but also provides the most precision and clarity. More importantly, this approach aligns with current Supreme Court case law and conforms to established Fourth Amendment principles. Holding otherwise would gravely undermine policy, disregard current precedents, and undervalue the sole purpose for the Fourth Amendment’s existence: to protect one’s reasonable expectation of privacy. Part I examines the scope …

Technical Difficulties: Why A Broader Reading Of Graham And Miller Should Prohibit De Facto Life Without Parole Sentences For Juvenile Offenders, Daniel Jones

St. John's Law Review

(Excerpt)

This Note argues that the spirit of the trilogy prohibits courts from sentencing juvenile offenders, regardless of their crime(s), to de facto life sentences. This Note maintains that the Eighth Amendment of the United States Constitution and the relevant case law render de facto life sentences unconstitutional. Part I examines the history of juvenile sentencing laws and concludes that many of the laws currently in place are based on a misguided fear that juveniles are more culpable than adult offenders. Part I also examines the relevant Supreme Court Eighth Amendment jurisprudence as well as the competing theoretical arguments used …

Important Is Not Important Enough: Forcibly Medicating Defendants For Sentencing Using The Important Interest Standard, Sarah Viebrock

St. John's Law Review

(Excerpt)

This Note analyzes whether the Government’s interest in sentencing is the same as its interest in trial, and whether the “important interest” standard is a high enough threshold for the Government when it seeks to forcibly medicate a defendant for sentencing. This Note will conclude that because of the procedural alternatives to forcible medication at sentencing, the functional differences between trial and sentencing, and the spirit of the Supreme Court’s decision in Sell, the Government should be required to demonstrate a compelling, rather than an important, interest when it seeks to forcibly medicate a defendant for sentencing.

Part …

The Preclusion Of § 1983 Claims By The Age Discrimination In Employment Act Following Hildebrand V. Allegheny County, Erin L. Donnelly

St. John's Law Review

(Excerpt)

This Note maintains that the Supreme Court should resolve the circuit split by affirming the Hildebrand court’s decision. Part I of this Note discusses the background of the ADEA and § 1983, including each legislation’s purpose, legislative history, and provisions. Part I concludes with a discussion of the doctrine of implied preclusion. Part II presents the circuit split by discussing the way the courts have analyzed this issue prior to Fitzgerald and how subsequent courts have decided the issue in light of Fitzgerald. Part III asserts that the ADEA precludes equal protection claims through § 1983 because of …

I Swear! From Shoptalk To Social Media: The Top Ten National Labor Relations Board Profanity Cases, Christine Neylon O'Brien

St. John's Law Review

(Excerpt)

This Article curates and analyzes ten recent cases where the NLRB decided whether or not § 7 protected employee swearing, with a view toward defining the implications of these decisions for employers and employees in terms of employer rules and discipline, and employee rights and limits thereon. The Article outlines the NLRB’s role and perspective in cases where employees are disciplined or discharged for engaging in profanity at work and/or on social media when the conduct in question is otherwise protected concerted activity. The Article summarizes the facts in each case while analyzing the legal framework that the NLRB …

Confidence Schemes: Theft Loss Deductions, Restitution, And Public Policy, Steven F. Friedell

St. John's Law Review

(Excerpt)

This Article focuses on some of these problems in the field of federal income tax. It suggests that when part of the IRC appears to direct a particular outcome, courts are prone to error when they override that command by imposing a penalty based on the judges’ moral condemnation of a party’s behavior. It would be better for courts to employ the statute’s intrinsic set of public policies to guide their decision making. In some instances, the results will not change because of other overlooked provisions in the statute. However, adherence to the legislature’s balance of conflicting interests will …

Devils And Angels Of Judicial Integrity, Joseph W. Bellacosa

St. John's Law Review

(Excerpt)

Judicial integrity and the highest standards of conduct are the bedrock principles for any respectable legal structure. History provides heroes who demonstrate punctilious adherence to, and villains who commit gross departures from, the sine qua nons needed for the achievement, or at least advancement towards the fair administration of the rule of law and ideals of justice.

Against this luminous light, a foreboding dark cloud sweeps over from recorded colonial history demonstrating judicial hubris and unbridled zealotry, employed in ways that instead serve personal and predetermined ends by questionable means, unleashed in the abyss of standards and values.

Volume 90, Spring 2016, Number 1

St. John's Law Review

No abstract provided.

The Error In Applying The Language Conduit-Agency Theory To Interpreters Under The Confrontation Clause, Gregory J. Klubok

St. John's Law Review

(Excerpt)

Part I of this Note explains the origins of the Confrontation Clause and recent Supreme Court jurisprudence on the topic. Part II of this Note explains the current split of authority among the United States Courts of Appeals on whether interpreters who translate at police interrogations are subject to the Confrontation Clause. Part III of this Note explains why the language conduit-agency theory is inherently incompatible with the Confrontation Clause and why the government should have to call the interpreter who translated a defendant’s statements at a police interrogation to the stand if it wants to introduce the interpreter’s …

Razor Slashed Prices: The Applicability Of Patent Exhaustion To Sales For Below Cost, Daniel Huttle

St. John's Law Review

(Excerpt)

This Note addresses whether this expansion of patent exhaustion is necessary or justified. Part I provides a background on the relevant doctrines and concepts implicated by the LifeScan decision. This Part begins with a discussion on the history and development of the patent exhaustion doctrine under the common law. This Part also introduces the antitrust concept of tying and how it relates to patent misuse. Part II considers whether patent exhaustion should be applied to both goods distributed for no cost and goods sold below the cost to produce. Part III analyzes the anticompetitive potential of refusing to extend …

Valdez V. City Of New York: The "Death Knell" Of Municipal Tort Liability?, Alisa M. Benintendi

St. John's Law Review

(Excerpt)

This Note contends that the Court of Appeals erred in narrowing the scope of municipal tort liability in Valdez. Focus is on the Court of Appeals’ affirmation of its regressive analysis in McLean v. City of New York and mistaken reliance upon its earlier decision in Cuffy v. City of New York. To illustrate the Court of Appeals’ unwavering adherence to Valdez, this Note examines the court’s decisions in Metz v. State and Coleson v. City of New York. Part I discusses the history and purpose of sovereign immunity from tort liability, New York’s waiver …

Postjudgment Cost Shifting: Electronic Discovery And 28 U.S.C § 1920(4), Samantha J. Kwartler

St. John's Law Review

(Excerpt)

This Note argues that the circuit courts should adopt a loose narrow interpretation of § 1920(4), like the Federal Circuit did in CBT Flint Partners, LLC v. Return Path, Inc., and tax only a limited number of the electronic discovery services rendered in document production. Part I of this Note examines § 1920(4)’s statutory history and its application in federal court. Part II discusses the varying approaches taken by each side of the circuit split. Finally, Part III argues for implementation of a loose narrow interpretation because it more appropriately comports with other provisions of the Federal Rules …

Let The Judge Speak: Reconsidering The Role Of Rehabilitation In Federal Sentencing, Madeline W. Goralski

St. John's Law Review

(Excerpt)

This Note contends that the importance of rehabilitation as a valid and necessary principle of punishment is overlooked in § 3582(a) of the SRA and further argues that a judge should be permitted to consider rehabilitation when deciding to sentence a defendant to a term of imprisonment, so long as rehabilitation is not a dominant factor in coming to that decision. Part I outlines the principles of punishment and the rise and decline of the rehabilitative system of punishment in the United States. It also discusses the importance of rehabilitation and how society could benefit from a system that …

Triggerman: Maintaining The Distinction Between Deliberate Violence And Conspiracy Under The Armed Career Criminal Act, Elizabeth A. Tippett

St. John's Law Review

(Excerpt)

This Note argues that conspiracies to commit violent felonies are not violent felonies under § 924(e)(2)(B)(i) because, while criminals may participate in conspiracies in the hopes of accomplishing the underlying offense, conspiracies are distinct crimes and do not categorically have elements of threatened, attempted, or actual use of physical force. Part I of this Note describes relevant legal history behind the ACCA, the applicable law, and the process courts use to determine whether criminals are subject to the fifteen-year mandatory minimum. Part II analyzes the approaches represented in the circuit split. Part III demonstrates how relevant legislative history, case …

A Case For Weakening Patent Rights, Lucas S. Osborn, Joshua M. Pearce, Amberlee Haselhuhn

St. John's Law Review

(Excerpt)

In Part I, this Article introduces the new and emerging technologies, including the Internet, cloud computing, three-dimensional (“3D”) printing, and synthetic biology, which will bring this radical change. Part II provides an overview of the innovation cycle, including the stages of basic research, inventing and prototyping, product development, marketing, and distribution. It also describes, in detail, how these new technologies are dramatically lowering the costs and risks of all stages in the innovation cycle.

Part III considers how lawmakers might adapt patent law to account for the new age of innovation and its lower costs of innovation. This Article …

The Case Against Income Tax Exemption For Nonprofits, Michael Fricke

St. John's Law Review

(Excerpt)

In order to discuss the current state of affairs in the nonprofit world, Part I of this Article addresses how nonprofits are treated under the law and the various income tax exemption defenses that have been proffered over the years. Then, Part II investigates the problems raised by organizations that take advantage of their tax exemption, but decline to use their revenue for their exempt purposes. This problem has been addressed infrequently in academic literature, but Part III reviews other proposed reforms that might affect this issue. Part IV lays out the proposed solution, and Part V examines the …

Private Solutions To Global Crises, Gregory R. Day

St. John's Law Review

(Excerpt)

The contribution of this Article is both theoretical and practical. Considering that MNCs rarely suffer liability abroad, this Article identifies an emerging, understudied type of international agreement able to hold MNCs responsible for torts in the developing world. On a theoretical level, the research herein identifies situations in which arbitral decisions are superior to judicial rulings. This Article also advances the private dispute resolution literature, which has developed slowly due to arbitration’s private and confidential nature. The works that do discuss arbitration overwhelmingly assume that the process favors corporations, rarely mentioning arbitration’s socially desirable qualities. Thus, this Article offers …

Volume 89, Winter 2015, Number 4

St. John's Law Review

No abstract provided.

Copyrightability Of Leed-Certified Buildings: Approaching The Awcpa To Promote Green Architecture, Stephen Accursio Maniscalco

St. John's Law Review

(Excerpt)

Part I of this Note discusses green architecture, the history and structure of the LEED certification system, and the history and structure of the AWCPA. Part II discusses the approaches courts have taken in applying the AWCPA. Finally, Part III explores ways that LEED may affect courts’ analyses. It explains why and how courts may deny copyright protection in many elements of LEED-certified architectural works. It then proposes a reading of the AWCPA that will provide appropriate copyright protection to green buildings that are original in design. This Note argues that courts should not consider green market demands, the …

Prosecuting Child Soldiers: The Call For An International Minimum Age Of Criminal Responsibility, Brittany Ursini

St. John's Law Review

(Excerpt)

This Note discusses the current state of international law on the MACR and proposes a solution that balances the protection of child soldiers with the rights of the victims harmed by their unlawful conduct. Part I of this Note provides a brief background of child soldiers and closely examines the relevant international law addressing the criminal responsibility of child soldiers. Part II illustrates the deficiencies of current international law and describes how the deficiencies affect and contribute to the competing arguments regarding a MACR. Part III discusses the need for an international MACR. Finally, Part IV proposes an international …