Law Commons^™

The “Especially Heinous” Aggravator: Sharpshooter Bonuses Do Not Belong In Capital Sentencing Law, Taylor Lopa

St. John's Law Review

(Excerpt)

In capital cases, the jury is often left with the onerous decision about whether to impose the death penalty. To help jurors make sentencing decisions, judges will instruct them on how to apply the law. As one juror summarized, “[The judge told us] that we were to make our decision on the basis of his instructions and the law, not what we felt, not what we thought ought to be.” Because of jury instructions like this, jurors know that they must base sentencing decisions on the law rather than their personal beliefs. But what happens when the law itself …

Vulnerability As A Launching State: Why The United States Should Adopt Explicit Indemnification Procedures In Response To The Growth Of The Commercial Space Industry, Mollie Carney

St. John's Law Review

(Excerpt)

This Note argues that the current United States launch license requirements should be amended to include explicit indemnification procedures, should the United States be held liable for damages as a Launching State under the Liability Convention. Part I of this Note examines the evolution of the space industry from a field marked by Cold War tensions to one that is dominated by private industry, and the risks that are associated with the rapid growth of the commercial space industry. Part II will explain the current legal regime by (1) setting a framework of liability generally, (2) examining the Liability …

Imperialism In The Making Of U.S. Law, Nina Farnia

St. John's Law Review

(Excerpt)

This Article proceeds in two parts. In Part I, “U.S. Foreign Policy as Racial Policy,” I identify the four key policy pillars of U.S. imperialism: militarism, unilateral coercive measures, foreign aid, and the deployment of the dollar. I then pivot to a brief history of U.S. imperialism in the Middle East, highlighting the geographic and racial specificities that influence the ideological and legal contours of U.S. imperialism. I end this section with an analysis of The Public Report of the Vice President’s Task Force on Combatting Terrorism (1985), which was a defining document in the making of anti-terrorism law …

Assessing A Cooperative Writing Process In An Undergraduate Legal Writing Course, James A. Croft

St. John's Law Review

(Excerpt)

I teach legal writing to undergraduate students, and I primarily do so by cooperatively writing with them, using instructional time to work through the students’ writing assignments as a class. I arrived at this process organically over several years. When I first started teaching, I was surprised by the disconnect between my expectations regarding student writing and student performance. To attempt to close that gap, I began going through parts of the research and writing process cooperatively with my students in class, and increasing the amount of work that we did together each semester until, in the semester assessed …

The Last Lecture: State Anti-Slapp Statutes And The Federal Courts, Charles W. Adams, Mbilike M. Mwafulirwa

St. John's Law Review

(Excerpt)

An old proverb says that “when the student is ready[,] the teacher appears.” In this collaborative effort, a civil procedure law professor has partnered with his former student to address one of the most challenging topics to confront the federal courts in recent times: whether state anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” Anti-SLAPP statutes are a spate of state legislation of recent vintage, designed “to give more breathing space for free speech about contentious public issues” and to “try to decrease the ‘chilling effect’ of …

Is There A Constitutional Common Good?, R. George Wright

Journal of Catholic Legal Studies

(Excerpt)

Identifying and pursuing some widely shared idea of the common good seems central to a sustainable constitutional order. This may seem especially true in an era of deep political division. The problem, though, is that such political division may indeed heighten the need for recognizing and promoting a shared constitutional common good, while, at the same time, preventing such an identification and pursuit of any such common good. What is needed is a way to disrupt this vicious circle. This Article is an illustration of the operation of this vicious circle and, more optimistically, a proffering of the means …

Marianist Law Schools: Demonstrating The Courage To Be Catholic, David A. Grenardo

Journal of Catholic Legal Studies

(Excerpt)

Only two Marianist law schools exist in the United States. Both University of Dayton School of Law (UDSL) and St. Mary’s University School of Law (St. Mary’s Law School) proudly embrace their Catholic and Marianist traditions in promoting their schools. For instance, St. Mary’s Law School, the only Catholic law school in Texas, openly advertises its commitment to welcome and serve “students of all faiths and uphold the Marianist tradition of hospitality, openness and the family spirit.” Similarly, UDSL’s online published materials state unequivocally: “In the Catholic, Marianist spirit, many of our students participate in pro bono activities and …

Technology's War On Terror: The Need For Platform Accountability In The Wake Of A National Security Crisis, Meagan Schantz

Journal of Civil Rights and Economic Development

(Excerpt)

January 6, 2021. A day that “will live forever in infamy.” That day marked the first breach of the United States Capitol Building since 1814—and the second breach ever in American history (the first was during the War of 1812). Five people lost their lives that day and many more were injured in an unprecedented attack on American democracy. Yet, social media records show that “there were no surprises” as to what insurrectionists did on that infamous day.

The plan to “storm the Capitol” began on less-trafficked social media sites, the “darker or more-obscure corners of the internet,” including …

Giving Heroes Their Shields: Providing More Immunity To The Healthcare Industry During The Covid-19 Pandemic, Gabriella Levine

Journal of Civil Rights and Economic Development

(Excerpt)

The year is 2022. We are experiencing a global pandemic and economic uncertainty. And while traffic might have improved, as many work remotely and socially distance, everything else is unknown as people are face-to-face with death. The future has never looked bleaker.

As of September 12, 2022, there were 1,044,461 Coronavirus (“COVID-19”) related deaths and 94,973,074 reported COVID-19 cases in the United States (“U.S.”). The effects of COVID-19 impacted people who contracted the disease, family members who lost someone, and people at risk who have been in isolation for over one year.

Another group that has been heavily affected …

Why Bigger Is Not Always Better: Dodd-Frank & Its Impact On Small Banks & Businesses, Sarah King

Journal of Civil Rights and Economic Development

(Excerpt)

Imagine that the year is 2006. Along with partners and investors, you have just taken one of the biggest risks of your life and founded a small business. Specifically, your business acts as a broker of financial instruments known as energy derivatives; it matches buyers and sellers of futures, options, and other derivatives, and a portion of the money made from the trade is collected as a fee for your services. For the most part, the business runs smoothly. You’re rarely stressed, your customers are satisfied with your services, and you and your co-workers make good money.

Imagine that …

The Right To Bear 3d-Printed Firearms: Problems Created By Modern Gunsmithing, Chelsea Karen

Journal of Civil Rights and Economic Development

(Excerpt)

Picture a typical Friday evening at London’s St. Pancras train station with travelers trying to get away for the weekend. You board a train leaving for Paris after going through a vigorous safety check, which includes walking through a metal detector and having your bag scanned. You finally take a seat in a crowded train car when you notice a man standing at the front of the car holding what appears to be a child’s toy gun. It’s clunky, plastic, and crude-looking in that it seems it would fall apart if the man attempted to pull the trigger. In …

Small Business Relief In The Time Of Covid-19: Deservingness Judgments Lead The Ppp To Failure, Blair Hendricks

Journal of Civil Rights and Economic Development

(Excerpt)

In 2020, going to the grocery store or getting a bite to eat looked a little different than usual: normal outings in 2020 required masks and temperature checks, among other safety precautions. As if patronizing businesses was not difficult enough, operating a business in 2020 could have been downright tragic. In December 2020, Steven Klein, the owner of Vision Lanes Bowling Alley, posted a tribute on his Facebook page to his beloved business. The following is an excerpt from that post:

This is NOT a political post. My sources are telling me an extension is going to be announced. …

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 …