Law Commons^™

Patently Inconsistent: State And Tribal Sovereign Immunity In Inter Partes Review, John Mixon

St. John's Law Review

(Excerpt)

This Note is composed of four parts. Part I reviews the origins, development, and purpose of both tribal and state sovereign immunity, compares the two doctrines, and concludes that the two are functionally the same despite deriving from different historical roots. Part II provides an overview of the history and purpose behind the patent system, the America Invents Act, and IPRs. Part II also analyzes the constitutionality of IPRs, as decided by the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. Part III introduces and addresses the five IPR decisions on state sovereign …

To Knock Or Not To Knock? No-Knock Warrants And Confrontational Policing, Brian Dolan

St. John's Law Review

(Excerpt)

This Note proceeds in three parts. Part I begins by explaining what no-knock warrants are and why they are used. Part I then addresses recent state legislative efforts to reform no-knock warrant use and argues that these efforts, however well-intentioned, are insufficient. Part I will also provide a brief history of how no-knock warrant use developed and gives an overview of the current status of state law regarding no-knock warrants. Part II argues that, contrary to the arguments of no-knock proponents, elimination of no-knock warrants and strict adherence to the knock-and-announce requirement is a more effective way to ensure …

It's Nothing Personal: Why Existing State Laws On Point-Of-Sale Consumer Data Collection Should Be Replaced With A Federal Standard, Kate Mirino

St. John's Law Review

(Excerpt)

Accordingly, this Note proposes a contemporary-minded federal solution to preempt and standardize the various, outmoded state approaches in this field. Part I engages in a historical overview of the development of information privacy law in the United States. Part II provides a summary and comparison of the existing state rules at play. Part III discusses the negative consequences—both to consumers and to businesses—of inconsistent regulation in this area, and explains why a federal solution is necessary. Part IV outlines the parameters of the federal regulation proposed by this Note.

The "Rational Federalist": Synthesizing Necessity And Propriety In The Sweeping Clause, Shane Magnetti

St. John's Law Review

(Excerpt)

This Note will argue that flexibility as to what constitutes a “necessary” law combined with a rigid standard for what makes a law “proper” enables Congress to execute its enumerated powers without overreaching. Part I outlines differing scholarly theories as to the legal origins of the Necessary and Proper Clause. Sections A, B, and C outline the theories that the Clause stems from principles of agency law, administrative law, and corporate law, respectively. Section D examines the implied powers theory of the Clause’s genesis. Next, Part II examines the Supreme Court’s early Necessary and Proper Clause jurisprudence—namely McCulloch v. …

A Warrant Requirement Resurgence? The Fourth Amendment In The Roberts Court, Benjamin J. Priester

St. John's Law Review

(Excerpt)

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the “warrant requirement,” one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. …

A Rebuttal To Kinsler's And To Anderson And Muller's Studies On The Purported Relationship Between Bar Passage Rates And Attorney Discipline, William Wesley Patton

St. John's Law Review

(Excerpt)

Because of the escalating cost of legal education and the recent decline in bar passage rates among ABA approved law schools, some analysts have reasonably attempted to determine the social costs of legal education. Many have attempted to place the blame on segments of the legal education marketplace. The complicated relationships among the policies of providing more access to justice, increasing minority representation in the bar, and protecting the public from shoddy law practice have recently inflamed academic debate. In the rush for assessing blame, some analysts have published empirically flawed reports that have received a great deal of …

State Constitutional Provisions Allowing Juries To Interpret The Law Are Not As Crazy As They Sound, Marcus Alexander Gadson

St. John's Law Review

(Excerpt)

This Article questions that consensus. Joining a larger debate about the jury’s proper role, it argues that, even today, these provisions are a defensible component of a criminal justice system. First, this Article argues that the jury is the entity in the justice system most incentivized to approach legal questions with an eye to what the best interpretation is and not the most politically palatable result. Second, this Article argues that the jury’s ability to deliberate and consider opinions from individuals hailing from a wider variety of backgrounds than those who typically become judges may provide advantages over a …

Protecting Personal Data: A Model Data Security And Breach Notifications Statute, Michael Bloom

St. John's Law Review

(Excerpt)

This Note argues that current law is inadequate to protect consumers in light of the prevalence and severity of data breaches in recent years, and that a unifying federal legislation combining portions of state law and the DSBNA should be enacted. Part I of this Note analyzes the DSBNA for notification requirements when data breaches occur, the requirements for the implementation of security policies, regulatory mechanisms for monitoring compliance with these requirements, and criminal penalties for failing to comply. Part II summarizes the various state laws that exist for notification of data breaches. Part III proposes a model federal …

Augmenting Our Reality: The (Un)Official Strategy Guide To Providing First Amendment Protection For Players And Designers Of Location-Based Augmented Reality Video Games, Colleen Signorelli

St. John's Law Review

(Excerpt)

Specifically, this Note will argue that the First Amendment applies to location-based augmented reality games in public forums, and, furthermore, the First Amendment protects designers and players of location-based augmented reality games in public forums. This Note will not discuss these location-based games within the context of privacy rights or trespassing, issues that have been written about elsewhere. Part I of this Note will explore the law regarding freedom of speech and freedom of assembly in public forums, and permissible regulations of speech and assembly, including time, place, and manner restrictions and prior restraints, such as permits. Part II …

Sec V. Creditors: Why Sec Civil Enforcement Practice Demonstrates The Need For A Reprioritization Of Securities Fraud Claims In Bankruptcy, Sean Kelly

St. John's Law Review

(Excerpt)

This Note examines how this tension has motivated the SEC to use receiverships as a preferred vehicle to maximize recovery for defrauded security holders and, in the process, create what amounts to an SEC-run bankruptcy proceeding. The use of these receiverships has triggered a high-stakes race to the courthouse among the SEC and creditors, where mere hours can be the difference between millions in recovery and nothing at all. To end this costly race, this Note proposes a solution that seeks to harmonize securities fraud enforcement with bankruptcy law, which starts with revisiting Bankruptcy Code § 510(b) to reprioritize …

Crowdfunding Capital In The Age Of Blockchain-Based Tokens, Patricia H. Lee

St. John's Law Review

(Excerpt)

To illustrate the findings, this Article proceeds like so. Part I provides a brief history of the Reg. CF exemption law and the research findings about investment crowdfunding, generally, and digital tokens, more specifically. Next, Part II provides insights on the current state of offering blockchain-based digital tokens to unsophisticated investors and the silver linings in the data. Finally, Part III provides recommendations for a path forward in Reg. CF. First, the SEC should re-evaluate its regulatory policy in light of the proliferation of blockchain-based token offerings and gaps in funding portals, and provide additional warnings to unsophisticated investors …

To The Head Of The Class? Quantifying The Relationship Between Participation In Undergraduate Mock Trial Programs And Student Performance In Law School, Teresa Nesbitt Cosby

St. John's Law Review

(Excerpt)

This Article seeks to answer the question of whether students who engage in undergraduate mock trial competitions gain a competitive advantage in law school. The Article will examine the pedagogy of experiential learning methods by analyzing how student performance in undergraduate school compares to how these same students perform in law school, and, importantly, whether these students are gainfully employed in a law-related career after law school. This is accomplished by conducting four interviews with Furman alumni who participated in the undergraduate mock trial program during their tenures, and a survey targeting law school students and recent graduates who …

Sex Offenders, Custody And Habeas, Wendy R. Calaway

St. John's Law Review

(Excerpt)

This Article focuses on habeas petitioners under a conviction from state court seeking federal habeas review. First, Part I will discuss the historical context of the writ of habeas corpus and the development of its purpose and scope. Part I also examines the current status of habeas corpus law, recent legislative efforts to limit its reach, and, specifically, the idea of custody as a prerequisite to habeas relief. Part II explores the evolution of the custody requirement both at the Supreme Court and in lower federal courts. In particular, this section looks at how the meaning of custody has …

A Perfect Storm: Religion, Sex, And Administrative Law, Helen M. Alvare

St. John's Law Review

(Excerpt)

In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United …

"The Song Is Ended But The Melody Lingers On": Protecting The Cultural History Of The Great American Songbook In The Face Of The Public Domain, Mollie Galchus

St. John's Law Review

(Excerpt)

Part I of this Note discusses the history of American popular song from the late nineteenth century to the mid-twentieth century, showing how the music of the Great American Songbook is particularly monumental in that its sophistication and conglomeration of different musical influences created a unique American musical framework. Part II discusses the framework of music copyright law, including theories of music copyright law, the evolution of the length of music copyright terms in the United States, and the history of the CTEA. Part III argues that Congress should not extend the duration of music copyright now that the …

Free Speech, Public Safety, & Controversial Speakers: Balancing Universities' Dual Roles After Charlottesville, Elisabeth E. Constantino

St. John's Law Review

(Excerpt)

This Note seeks to develop an approach to hateful and controversial speech that protects First Amendment values and students alike. Part I discusses the legal backdrop and First Amendment tradition that underlies a permissive view of hateful speech on university campuses. Part I also discusses the roots of time, place, and manner regulations and the public forum doctrine, both of which recent legislation invokes. Part II provides a timeline of events that have highlighted the tension between free speech and public safety on campuses. Part II also discusses the eruption of legislation that these events inspired. Finally, Part III …

Protecting The Fifth Amendment: The Residual Clause In The Mandatory Guidelines Is Void For Vagueness, Olivia M. Tourgee

St. John's Law Review

(Excerpt)

The first part of this Note will address the specific problem the Mandatory Guidelines present. First, the Mandatory Guidelines will be defined, and the mandatory and binding nature of these Mandatory Guidelines will be explored in depth. Second, this Note will explain the significance of the Supreme Court’s opinion in Booker that declared the Mandatory Guidelines unconstitutional. Third, this Note will evaluate Beckles, where the Supreme Court held that the Advisory Guidelines were not subject to vagueness challenges. Thus, the first part of this Note will set the stage for the problem that the Mandatory Guidelines present.

The second …

Inaccessible Websites Are Discriminating Against The Blind: Why Courts, Websites, And The Blind Are Looking To The Department Of Justice For Guidance, Elizabeth Sheerin

St. John's Law Review

(Excerpt)

This Note argues that Title III of the ADA should extend to websites and mobile applications as “places of public accommodation” and suggests a framework to determine which accommodations should be adopted to make websites accessible to people with visual disabilities. Specifically, it calls on Congress and the DOJ to fix this hole in the law and ensure the Act protects all persons with disabilities, as it was intended to. Part I will introduce the ADA, including its legislative history and amendments, and then will describe the standards private agencies have developed to make the Internet accessible to those …

Digital Pro Bono: Leveraging Technology To Provide Access To Justice, Kathleen Elliott Vinson, Samantha A. Moppett

St. John's Law Review

(Excerpt)

Part I of this Article explores the United States justice system’s failure to adequately serve all people irrespective of wealth and position. Next, Part II discusses the ABA’s call to leverage technology to increase access to justice. Part III explores ABA Free Legal Answers Online, the program that the ABA pioneered to help confront the justice gap in the United States. Subsequently, Part IV illustrates how law schools can leverage technology to increase access to justice for low-income communities while providing pro bono opportunities for attorneys and students in their state. This Part highlights Massachusetts as an example of …

Ethical Quandaries: The Holocaust Expropriated Art Recovery Act And Claims For Works In Public Museums, Charles Cronin

St. John's Law Review

(Excerpt)

The unusual circumstances surrounding the recent return of the Geldorp portrait to a public museum gives rise to the issue this Article covers: whether the status of claimants and defendants in Holocaust-era art claims as public entities or private citizens implicates ethical issues that should bear on the disposition of these cases, and if so, to what extent.

Part I considers the origins of these claims during WWII, and the temporal legal obstacles they may encounter many years after the events that engendered them. Part II discusses the recently enacted Holocaust Expropriated Art Recovery Act of 2016 (“HEAR”), which …

In Lieu Of Moral Rights For Ip-Wronged Music Vocalists: Personhood Theory, Moral Rights, And The Wppt Revisited, Tuneen E. Chisolm

St. John's Law Review

(Excerpt)

The Introduction of this Article has identified some of the noneconomic harms of concern. Part I summarizes and compares copyright ownership, control, and existing protections for authors of music compositions and sound recordings under the Copyright Act. It also summarizes pertinent music industry practices that impact third party use of recorded vocalist performances. Part II provides a foundation for understanding the nature of legal protections for creative works and the philosophical underpinnings of copyright law and moral rights, comparing utilitarianism and natural rights theory to personhood theory. It also provides a brief explanation of moral rights. Part III looks …

Cost-Benefit Analysis And Human Rights, William J. Aceves

St. John's Law Review

(Excerpt)

This Article considers whether cost-benefit analysis can provide the human rights movement with the answers it seeks. It offers an instrumentalist and empirical approach to complement the normative arguments that are most often used by the human rights movement. If human rights could be fully monetized, states could consider the full range of benefits that arise from protecting rights and the costs that occur when rights are violated. This approach could provide states with a more accurate methodology for making decisions that affect human rights. In fact, protecting human rights may prove to be costeffective, particularly when second order …

Establishment Of The Antitrust Division Of The U.S. Department Of Justice, Gregory J. Werden

St. John's Law Review

(Excerpt)

To fill in the knowledge gaps, this Article proceeds largely in reverse chronological order. First, it reviews Order No. 2507 and related circumstances, finding clear and convincing evidence that the Order did not create the Antitrust Division. Next, the Article examines the prior tenure of AG Cummings, finding clear and convincing evidence that the Antitrust Division existed before Roosevelt became President and Cummings became AG, and that Cummings lowered the standing of the Antitrust Division within the DOJ prior to issuing Order No. 2507. Finally, the Article scours the prior history of the DOJ and determines that the Antitrust …