Digital Commons Network^™

White Picket Fences & Suburban Gatekeeping: How Long Island’S Land Use Laws Cement Its Status As One Of The Most Segregated Places In America, Jessica Mingrino

St. John's Law Review

(Excerpt)

The average wealth of Black families is one-seventh that of white families in the United States today. Homeownership—the primary avenue through which Americans accumulate personal and generational wealth—is the leading driver of the wealth disparity between white and Black American families, known as the “racial wealth gap.” The systematic and intentional exclusion of Black people from developing communities during the twentieth century largely excluded people of color from the housing boom and denied them the opportunity afforded to white people to multiply their assets. Contrary to widespread belief, however, legislation-backed oppression of Black Americans did not end in the …

Separate And Unequal: Promoting Racial Equity In Public Schools In The United States And South Africa, Paige Sferrazza

St. John's Law Review

(Excerpt)

On January 24, 2022, the Supreme Court of the United States announced that it will hear two cases, against Harvard College and the University of North Carolina, which “rais[e] serious doubts about the future of affirmative action in higher education.” The plaintiff in both cases, Students for Fair Admissions, Inc. (“SFFA”), is a non-profit organization devoted to eradicating affirmative action programs nationwide. Described as the “culmination of a years-long strategy by conservative activists,” these cases represent the first affirmative action challenges to be argued before the Court’s new conservative majority, where they “pose the gravest threats yet” to over …

A Potential Status Update For The Visual Artists Rights Act: The Role Of Social Media Response In Judicial Analysis Of Recognized Stature, Olivia Calamia

St. John's Law Review

(Excerpt)

In 2020, visual artists used the power and reach of social media platforms to share works of art inspired by the Black Lives Matter movement, which experienced renewed vigor following the police murder of George Floyd on May 25, 2020. Many of these works have taken the form of murals painted on city streets, building faces, and other spaces that promote public viewing. Many artists hope that their works will endure long past this moment of social and political reckoning. Manhattan based artist Amir Diop expressed his wishes simply but eloquently: “My hope is that [my art] is a …

Death By Dehumanization: Prosecutorial Narratives Of Death-Sentenced Women And Lgbtq Prisoners, Jessica Sutton, John Mills, Jennifer Merrigan, Kristin Swain

St. John's Law Review

(Excerpt)

At the core of every capital sentencing proceeding is a guarantee that before condemning a person to die, the sentencer must consider the humanity and dignity of the individual facing the ultimate sanction. This principle—that “death is . . . different” and, therefore, requires consideration of the “diverse frailties of humankind”—echoes throughout the United States Supreme Court’s Eighth Amendment jurisprudence. And yet courts are reluctant to remedy the devastating impact of prosecutorial arguments that dehumanize marginalized persons facing the death penalty, condemning these arguments while nevertheless “affirm[ing] resulting convictions based on procedural doctrines such as harmless error.”

These dehumanizing …

Falling Away Into Disease: Disability-Deviance Narratives In American Crime Control, Matt Saleh

St. John's Law Review

(Excerpt)

Who in society is predisposed to crime? Many of us are familiar with cultural narratives that trace criminal behavior to some cognitive defect in the perpetrator. For instance, we might recall the persistent media allusions to Adam Lanza’s Asperger Syndrome after the mass shooting at Sandy Hook Elementary School, despite evidence that individuals on the autism spectrum are, on average, not more likely, and are quite possibly less likely, to commit serious crime in their lifetime. Similarly, popular narratives about the relationship between “mental illness” and violence are pervasive, despite the broad meaning of the terminology and a deeply-misunderstood …

Race, Class, And Second Chances: The Impact Of Multiple Identities On Reentry And Reintegration, S. David Mitchell

St. John's Law Review

(Excerpt)

Race, class, and other identities directly impact the process of reentry and the successful reintegration back into society for individuals who have had prior involvement in the criminal justice system. Collectively, persons convicted of a crime face numerous legal barriers that interfere with or prevent successful reentry and reintegration back into society, such as being prevented from securing housing and obtaining employment among other collateral consequences. For many, the process of reentry and reintegration is made even more difficult because of prior discriminatory policies and practices that were based solely on demographic factors, some of which are innate or …

You Have The Right To Remain Powerless: Deprivation Of Agency By Law Enforcement And The Legal And Carceral Systems, Marco Maldonado, Michael Onah, Jennifer Merrigan

St. John's Law Review

(Excerpt)

The charges against Philadelphia Police Officer Phillip Nordo read like an episode of The Shield. The grand jury presentment, should you have the stomach for it, is closer to Law & Order: Special Victims Unit. For over twenty years, Officer Nordo groomed, sexually assaulted, and used crime reward funds to pay off vulnerable men in Philadelphia. Whether in his transport van, prison visiting rooms, or police interrogation rooms, he regularly exploited his unfettered access to and absolute control over vulnerable individuals. Though he was not convicted until 2022, the communities he stalked and preyed upon knew exactly …

A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Donna Coker, Thalia González

St. John's Law Review

(Excerpt)

The persistent criminalization and pathologizing of Black youth in the U.S. educational system is a fundamental driver for their entry into the criminal legal system. Despite decades of evidence of the far-reaching harms of the “school-to-prison pipeline” and, more recently, demands from Black Lives Matter activists to defund school police, the role of schools in criminalizing Black girls has been left out of mainstream academic discourse. This occurs even though Black girls experience some of the most subjective and discriminatory practices in schools and evidence of an upward trend in discipline disparities since the mid-2000s. For Black girls with …

Volume 95, 2021, Number 4

St. John's Law Review

No abstract provided.

The Wills Of Covid-19: The Technological Push For Change In New York Trusts And Estates Law, Olivia Visconti

St. John's Law Review

(Excerpt)

Sirens filled the crisp, cool air of early March 2020 as COVID- 19 overtook the United States. New York City, once a metropolis of busy human interaction, became an epicenter of isolation, anxiety, and fear as the pandemic swept across the city and state of New York. While quarantining at home, New Yorkers addressed their to-do lists: they cleaned out cluttered rooms and finally fixed leaky sinks and drafty windows. Many New Yorkers also worried about the ever-present threat of falling ill; so they decided to execute their wills. Should something happen to them, they wanted to ensure their …

Protecting Fair Use From Algorithms, Internet Platforms, And The Copyright Office: A Critique Of The § 512 Study, Mary Kate Sherwood

St. John's Law Review

(Excerpt)

In 1994, the Supreme Court of the United States held that a musical group’s parody of a well-known song could be fair use, which is a noninfringing use of copyrighted content. In 2006, the Second Circuit found that an artist’s use of copyrighted photographs in his own artwork constituted fair use. In 2016, the Ninth Circuit found that a video of a child dancing to a short clip of a copyrighted Prince song could be fair use. But in 2022, a creator who attempts to share her fair use of copyrighted material online may not have recourse to the …

Funding Faith: The Paycheck Protection Program's Establishment Clause Violation, Brenna Jean O'Connor

St. John's Law Review

(Excerpt)

In the early months of 2020, COVID-19 had a swift and profound impact on public health, the economy, state and local governments, and businesses across the United States. In response, on March 27, 2020, the United States Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to protect the American people from the worsening public health crisis and mitigate the resulting economic downturn. Additionally, within the CARES Act, Congress established the Paycheck Protection Program (“PPP”), which expanded the Small Business Administration’s (“SBA”) authority to guarantee forgivable loans to eligible small businesses. Among other prerequisites, the PPP …

Big Tech Is Why I Have (Anti)Trust Issues, Sophie Copenhaver

St. John's Law Review

(Excerpt)

“There is a cost to bigness, even if it’s not passed onto the consumer.” Antitrust laws were once an effective tool to break up companies that had grown too large. However, subsequent rulings have altered their original meaning, and they are no longer useful in regulating large technology companies such as Amazon, Facebook, and Google. This Note will argue that judicial interpretation of antitrust laws should no longer be governed by the consumer welfare standard. Rather, judges should apply a two-part test, focusing on the market power and any anticompetitive business practices of the defendant corporation.

The Watercooler Is Safer Than The Schoolyard: Lower Courts Dismissal Of Peer Sexual Harassment Under Title Ix Is Especially Failing Our Students In The “#Metoo” World, Christine Tamer

St. John's Law Review

(Excerpt)

While the term #MeToo was first coined in 2006, the movement came to the forefront of American life in October 2017 when actress Alyssa Milano tweeted, “if you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” Since then, the #MeToo movement has exposed the fact that sexual harassment remains all too common and has pushed for change in the legal procedures that have failed victims. In the #MeToo world, sexual harassment is “finally getting the public attention it has long deserved” and the public has come together to deem it—in one word—unacceptable.

While …

Original(Ism) Sin, G. Alex Sinha

St. John's Law Review

(Excerpt)

During President Trump’s term in office, the Senate confirmed nearly 250 of his federal judicial nominees, including 3 to the Supreme Court of the United States. That number amounts to nearly a third of the federal judiciary’s roughly 800 active members. By and large, the judges nominated by President Trump purport to apply some form of originalist constitutional interpretation or construction, though the subject of originalism featured perhaps most prominently at the confirmation hearings for Amy Coney Barrett, whom President Trump nominated in October of 2020 to replace Justice Ruth Bader Ginsburg. Whatever one thinks of the vast literature …

Bring On The Chicken And Hot Oil: Reviving The Nondelegation Doctrine For Congressional Delegations To The President, Loren Jacobson

St. John's Law Review

(Excerpt)

The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties. Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” the Supreme Court of the United States …

Hidden Figures: Wage Inequity And Economic Insecurity For Black Women And Other Women Of Color, Cassandra Jones Havard

St. John's Law Review

(Excerpt)

One hundred years after women secured the right to vote, wage inequality remains prevalent in the United States. The gender wage gap, or pay inequity based solely on sex, arguably, is a measure of the current failure of full and equal participation by women in American society. The gender wage gap exists despite federal legislation designed to further wage equality. In fact, a difference as small as two cents over a lifetime costs a woman approximately $80,000. Currently, it is predicted that for a majority of white women, the pay parity will be attained between 2059–2069. However, Black women …

The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz

St. John's Law Review

(Excerpt)

Prosecutors are widely considered to be the most powerful actors in the criminal justice system. And federal prosecutors are particularly feared. While some recent scholarship casts doubt on the power of prosecutors, the prevailing wisdom is that prosecutors run the show, with judges falling in line and doing as prosecutors recommend.

This Article does not challenge the proposition that prosecutors are indeed quite powerful, particularly with respect to sentencing. There are many structural advantages built into the system that combine to give prosecutors enormous influence over sentences. For example, prosecutors have considerable power to bring a slew of charges …

Volume 95, 2021, Number 3

St. John's Law Review

No abstract provided.

Comments On ‘Whiteness As Contract’, Marissa Jackson Sow

Journal of Civil Rights and Economic Development

(Excerpt)

Thank you so much, Jay, and thank you everyone for being here this morning. It’s an honor to be able to join you [now] even before I join you formally and it’s an equal honor to share this morning with professors Huq and Whitlow. I have looked up to and been in conversation with professor Huq specifically; to find out that we are co-panelists and also will be teaching contracts together is very inspiring indeed.

So, what I will try to do in the brief time that we have is talk a little bit about Whiteness as Contract, …

The Real Estate State And Group-Differentiated Vulnerability To Premature Death: Exploring The Political-Economic Roots Of Covid-19’S Racially Disparate Deadliness In New York City In The Spring Of 2020, John Whitlow

Journal of Civil Rights and Economic Development

(Excerpt)

In May 2020, after several bleak months in which Covid-19 took the lives of thousands of New York City’s most vulnerable residents, a vigil was held in Corona Plaza, Queens, to honor the sixty-seven members of Make the Road New York whose time was cut short by the virus. At the event, State Senator Jessica Ramos spoke of the disproportionate toll Covid-19 has taken on working class, immigrant New Yorkers: “[t]hese communities are on the frontlines without adequate protections and have been left to grapple with extreme food insecurity, . . . evictions, and unemployment . . . .” …

The Farcical Samaritan’S Dilemma, André Douglas Pond Cummings

Journal of Civil Rights and Economic Development

(Excerpt)

This article explores one of the foundational pillar theories of Law and Economics and specifically Public Choice Theory as espoused by Nobel Laureate James M. Buchanan: the “Samaritan’s Dilemma.” Using the Biblical parable of the Good Samaritan, Buchanan imagines a “dilemma” faced by the Good Samaritan when encountering a beaten and bloodied man left to die on the road to Jericho. Using Game Theory, Buchanan constructs a moral quandary that the man from Samaria must necessarily resolve within himself in deciding ultimately whether to lend aid to the beaten man left to die.

Law and Economics, born in the …

Integrating A Racial Capitalism Framework Into First-Year Contracts: A Pathway To Anti-Capitalist Lawyering, Chaumtoli Huq

Journal of Civil Rights and Economic Development

(Excerpt)

Nationwide protests against police brutality in the summer of 2020, coupled with the high rates of COVID-19 deaths among Black, Indigenous, and People of Color (BIPOC), has brought to the foreground the role of the legal system in upholding structural racism and economic inequality. This renewed focus spotlighted our legal education: what are law schools doing as the institutions that educate future lawyers to be anti-racist, so they can, in turn, create a legal profession that is anti-racist? Being anti-racist is making conscious choices to fight racism in all its forms: individual, interpersonal, institutional, and structural. Being anti-racist also …

Foreword: Racial Capitalism As Legal Analysis, Jay Hedges

Journal of Civil Rights and Economic Development

(Excerpt)

In 2010, the Journal of Legal Commentary was renamed the Journal of Civil Rights & Economic Development (JCRED) to reflect its status as the official journal of the Ron Brown Center for Civil Rights here at St. John’s University School of Law. From then on, the Journal has been dedicated to exploring issues of social, racial, and economic justice in the law. Thus, JCRED is situated to be a publication that breaches the divide that has held so much power over legal scholarship through the years. That divide is the segregation of issues of Public Law and Private Law, …

Volume 35, Spring 2022, Issue 2

Journal of Civil Rights and Economic Development

No abstract provided.

Changes To Material Adverse Effect Clauses Following Major Events: Evidence From Covid-19, Vincent Scala

St. John's Law Review

(Excerpt)

In November 2019, LVMH Moët Hennessey Louis Vuitton, the world’s leading luxury goods company, announced plans to acquire Tiffany & Company, the prominent American jeweler. The transaction was reported to be worth more than $16 billion, which would have been the largest deal ever in the luxury goods industry. Following the announcement, LVMH’s chief executive officer stated that Tiffany would “thrive for centuries to come.” Nearly ten months later, the acquisition was in shambles as the parties squared off in a legal battle in the Delaware Court of Chancery. The companies were driven to litigation over anxieties about the …

Personal Foul: The Exploitation Of Ncaa Student-Athletes’ Publicity Rights, Jordan Pamlanye

St. John's Law Review

(Excerpt)

In 2017, Donald De La Haye, a Division I football player for the University of Central Florida of the National Collegiate Athletic Association (“NCAA”), was deemed ineligible for NCAA participation due to his successful YouTube channel, “Deestroying.” De La Haye was a kicker for the University of Central Florida’s (“UCF”) football team. At the time, his YouTube channel had over 90,000 subscribers and almost 5,000,000 views. The NCAA found De La Haye ineligible because he was compensated for videos that included aspects of his life as an NCAA athlete—a violation of the NCAA bylaws.

The consequences of this decision …

Categorically Caged: The Case For Extending Early Release Eligibility To Inmates With Violent Offense Convictions, Jenna M. Codignotto

St. John's Law Review

(Excerpt)

Susan Farrell faced both physical and sexual abuse from her husband before he was killed in 1989. Although Ms. Farrell maintained her innocence and urged that it was her son who killed her husband, she was convicted of first-degree murder and conspiracy charges, resulting in a life sentence without parole. After serving thirty years of her sentence at the Michigan Department of Corrections, Ms. Farrell’s tragic life met a no less tragic end. In April 2020, one month after COVID-19 was declared a pandemic, Ms. Farrell seized in her cell for forty-five minutes before dying from the virus. She …

Book Review: Commercial Litigation In New York State Courts (5th Ed.) Edited By Robert L. Haig, Kathryn C. Cole

St. John's Law Review

(Excerpt)

Every New York commercial litigator needs as an arrow in her quiver Commercial Litigation in New York State Courts (“Treatise”). Now in its Fifth Edition, this renowned Treatise not only analyzes in-depth the procedural law and the substantive commercial law of New York, but it is replete with invaluable “nuggets of wisdom” and critical guidance for the “attainment of objectives” during a litigation for both plaintiffs and defendants. What began as a three volume resource first published in 1995, the Treatise now boasts ten volumes, 156 chapters (28 of which have been added since the Fourth Edition), and has …

Contract Law & Racial Inequality: A Primer, Danielle Kie Hart

St. John's Law Review

(Excerpt)

America was founded on institutionally recognized and supported oppression, namely, slavery and conquest. So, the fact that the inequality spawned by this oppression continues to exist today should surprise absolutely no one. That said, the extent of the racialized social and economic inequality that pervades American society today is being exposed in horrifying and glaring detail, as a result of the COVID-19 pandemic.

African Americans, the Latinx community, indigenous communities, and immigrants are at much greater risk of getting sick and dying from COVID-19 because of now widely-acknowledged systemic health and social inequality and inequity. More specifically, in July …