Digital Commons Network^™

Caging Songwriters In The Compulsory Licensing Framework: A Battle Of Fairness And Equity, Maria Kaganis

St. John's Law Review

(Excerpt)

Imagine it is November 2023, and you log onto Spotify to stream your favorite music. As you do, you notice you now have access to up to fifteen hours of the most popular audiobooks. You really enjoy the addition of audiobooks to Spotify and have used the new feature for months. Come March of 2024, however, you get an email stating that Spotify will be introducing a . . . music-audiobook bundle as part of your current subscription? Is that not what you already had? Shrugging it off, you move on and continue enjoying your music, audiobooks, and podcasts …

Cross-Talk, The Honorable Raymond J. Lohier, John Q. Barrett, Noa Ben-Asher, Margaret E. Mcguinness, Mark L. Movsesian, Michael A. Perino

St. John's Law Review

(Excerpt)

You know what is interesting? This has been on my mind for a long time as my law clerk, Colin, knows. What you have all described in different ways, maybe with the exception of the religious rights case, but I will get to that, is a Supreme Court that either is, or perceives itself to be, unchecked by Congress and at times unchecked by the President, largely for reasons that we can discuss.

Some Brief Thoughts On The Ten Commandments In The Schools, Mark L. Movsesian

St. John's Law Review

(Excerpt)

Thank you, Judge, and I want to thank Eva for inviting me to participate and all of you for being here this afternoon.

My area of scholarly expertise is the Religion Clauses of the First Amendment. That is what I write about. So far, the Supreme Court has not taken any cases on the Religion Clauses this term, which is a little unusual. The Court has decided several important cases in this area in the last decade or so, and maybe the Court has decided to take a break this term. We will see.

But some important church-and-state issues …

Change And Continuity: Foreign Affairs And Procedure At The Supreme Court 2024–25, Margaret E. Mcguinness

St. John's Law Review

(Excerpt)

The 100th anniversary of the founding of the Law School is a wonderful occasion to discuss how research and teaching form us as professors within the St. John’s community. I teach, research, and write about international law, international human rights, diplomacy, and the ways in which international law becomes law in the United States. I also teach civil procedure and international litigation. These two strands of my work allow me to think about the complex interplay between international law and domestic court procedure. I also have professional experience in each of these areas: First, as a career diplomat for …

Respecting Who Legislates: Congresses And Presidents, John Q. Barrett

St. John's Law Review

(Excerpt)

Under the United States Constitution, who legislates? The Constitution says, in plain words, that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” So people who know the Constitution tend to say that “Congress” legislates.

There are two problems with that answer. The first is rhetorical: that summary answer is too disembodied. “Congress,” when it passes a bill, in fact, is many, typically highly respectable, elected Senators and Representatives. At minimum, 269 people—fifty-one Senators (or fifty Senators plus one Vice President of the …

On Being A Scholar And A Teacher In Polarized Times, Michael A. Simons

St. John's Law Review

(Excerpt)

There’s an old expression, sometimes attributed to a Chinese curse, that says “May you live in interesting times.” That expression is very much in the air these days. One hundred years after the founding of our law school, it feels like we are in not just “interesting” but unprecedented times.

Perhaps every era feels unprecedented, but right now our country seems acutely polarized, our legal system seems to be under great stress, and fundamental assumptions we’ve held about the Rule of Law seem to be eroding. And then, to add to that, the assassination of Charlie Kirk and the …

Opening Symposium Remarks: Celebrating 100 Years Of Scholarly Impact At St. John’S Law, Jelani Jefferson Exum

St. John's Law Review

(Excerpt)

Good morning, everyone. It is both an honor and a joy to open today’s symposium—Impact That Endures: Celebrating the Past, Present, and Future of St. John’s Law Faculty Scholarship.

As we gather in this centennial year of St. John’s Law, we have the opportunity to reflect not only on our history but also on our identity. So that means thinking about who we have been, who we are, and then also, who we aspire to be.

“Today’S Video Is Sponsored By: Child Labor” The Need To Expand Federal Child Labor Protections To Online Content Creation, Zayda Torres Barrios

St. John's Law Review

(Excerpt)

The Fantastic Adventures YouTube channel, owned by Machelle Hobson, had grown to almost 800,000 subscribers and over 250 million views by 2019. The channel’s content featured Hobson’s seven adopted children in entertaining weekly ten-to-fifteen-minute skits where they did things like pretend to be superheroes and have lightsaber battles. However, things were not as blissful as they seemed as Hobson was arrested in March 2019—facing thirty child abuse related charges. The police said the children were “malnourished” and had been withdrawn from school for many years to have more time to film videos for their family channel. The probable cause …

Texas Two-Stepping With Bad Faith: Dismissing Solvent Corporate Debtor Filings Under Chapter 11, Megan Russelman

St. John's Law Review

(Excerpt)

A majority of corporate bankruptcies occur within the scope of a Chapter 11 reorganization, as the process allows a debtor to retain control over most business operations and act in place of the trustee. Most frequently, a debtor will file for Chapter 11 when they are facing debts they are unable or unwilling to repay when due. However, given the absence of an insolvency requirement in the Bankruptcy Code, some corporations utilize a Chapter 11 bankruptcy filing to handle their debts even if they are not entirely insolvent. Many corporations that have taken advantage of solvent debtor filings have …

Defining The Undefined: Reimagining The “Undue Hardship” Standard In Light Of Its Harmonious Interpretation, C. Sam D’Alba

St. John's Law Review

(Excerpt)

Part I of this Note provides background on the student loan crisis and the history of the nondischargeability of student loan debt. Part II of this Note examines the DOJ’s Guidance on litigating “undue hardship,” the intra-circuit criticism of the Brunner framework, and the need for harmony in understanding “undue hardship” in light of other authority governing student loans. Part III of this Note argues for a shift in the analysis of “undue hardship” based on practical guidance from the DOJ, the DOE, and the courts. This shift focuses on the subjectivities of each bankruptcy case and the need …

Ladies First? The Tax Code Says Otherwise Tax Policy And The Cost Of Economic Dependence, Doron Narotzki, Tamir Shanan

St. John's Law Review

(Excerpt)

First, inclusion and equity policies—such as anti-discrimination laws, affordable childcare, or education access—increase people’s participation in the labor market and thus increase federal and state revenues. Second, ultimately, tax law is not just a mechanism for raising revenue. It actively shapes economic and social realities. By acknowledging the ways in which it has reinforced outdated structures, we can also recognize its untapped potential. If designed differently, tax policy could—and should—serve as more than just a fiscal tool. It could foster economic autonomy, address inequalities, better reflect the needs of a changing society which includes, among other factors, a transition …

The Takings Clause And The Environment, Timothy M. Harris

St. John's Law Review

(Excerpt)

Congress and state legislatures have been slow to address growing cries for increased environmental protections. Climate change and the attendant sea-level rise, wetland protections, cleanup of hazardous substances, and protections for species listed under the Endangered Species Act often require extensive regulation of private lands to be effective. The political will to implement environmentally conscious regulations varies with election cycles and social mores, but there is a legal—constitutional—impediment that overrides these political winds. The Fifth Amendment’s Takings Clause frequently creates an insurmountable budgetary obstacle to broad land use restrictions that may otherwise be implemented to protect the environment.

Government …

The Authoritarian Semiotics Of The New Campus Mask Bans, Rob Kahn

St. John's Law Review

(Excerpt)

In 2024, students took part in protests for and against Israel’s military actions in Gaza. Some protests were disruptive and violent— most were not. In response, calls arose across the country to ban masks. In New York, a broad organization of civil rights groups called for a statewide mask ban under the hashtag #UnmaskHateNY, while New York Governor Kathy Hochul—with the support of New York City Mayor Eric Adams—called for a mask ban on the New York City subways. There were also calls in North Carolina and Los Angeles for new, or enhanced, mask bans. Meanwhile, Ohio’s Attorney General …

From Sidewalks, Streets, And Parks To Social Media: How Should Courts Apply The Public Forum Doctrine In The Digital Age?, Laurel Wanger

St. John's Law Review

(Excerpt)

This Note examines the circuit split over whether government officials’ social media pages constitute public forums and analyzes how the Supreme Court settled the doctrinal uncertainty in Lindke v. Freed. Part I presents context for this issue by explaining the origins of the public forum doctrine, the ways in which government officials use social media as a means of interacting with their constituents, and the circuit split regarding the proper test to be used when deciding these issues. Part II provides an overview of the majority test used by the Second, Fourth, Eighth, Ninth, and Eleventh Circuits, and …

It’S “Purposeful” For A Reason: Amb Media And Purposeful Availment In The Internet Age, Levi C. Griesing

St. John's Law Review

(Excerpt)

This Note argues that the Sixth Circuit’s ruling in AMB Media II expands the scope of personal jurisdiction to a degree that prevents fairness and due process for out-of-state defendants. Thus, this Note argues that the purposeful availment inquiry for cases involving generally-available commercial websites should include a targeting requirement—that there must first be an action to solicit business taken on behalf of the defendant in the forum state. Part I will review the goals of the personal jurisdiction doctrine and a brief history of purposeful availment cases before and after the Internet age. Part II will discuss AMB …

Interpreting Rule 23: A Legal Basis For Incentive Awards In Class Action Lawsuits, Chris Battaglia

St. John's Law Review

(Excerpt)

This Note first explores the methodologies that the Supreme Court utilizes to interpret the Federal Rules of Civil Procedure and then applies these methodologies to interpret Rule 23. It argues that the Court has demonstrated two different viable strategies to interpret the Rules: (1) applying basic principles of statutory interpretation analysis and (2) giving effect to the policy and purpose surrounding the Rule. This Note concludes that both of these methodologies can be applied to Rule 23, and that as applied, both support the position that Rule 23 authorizes courts to legally grant incentive awards to named plaintiffs in …

Disposing Of Misdemeanors: An Empirical Perspective, Cynthia Alkon, Jonathan Marshall, Kyle Chrisman, Lydia Sidhom

St. John's Law Review

(Excerpt)

This Article will begin by discussing why misdemeanors matter and the importance of examining these cases to better understand how the criminal legal system is functioning or not. Next, in Section III, we will discuss the importance of plea bargaining, both how it works in practice and the concerns surrounding this process. We will then turn, in Section IV, to a discussion of why it matters to have better data so that the players in the system are better informed about how the legal system actually works. Better data contributes to transparency, which can help improve the general public’s …

Packing Our Way To Balance: A Necessary Correction For The Supreme Court, Robert E. Wagner

St. John's Law Review

The Supreme Court is in turmoil. It has the lowest recorded approval rating in its history. Multiple decisions over the past decade made by Justices nominated by a single political party, that the majority of the country viewed as political in nature, have tarnished the reputation of what was once a beacon of justice and impartiality. The Court is increasingly seen as a partisan institution with political actors rather than the fair and honest arbiter America needs it to be. In addition to dramatically unpopular decisions, the Court has suffered increasingly hostile and political machinations in its nominating process. This …

Gilded Executive Privilege: The Unstated Evidentiary Rule In Trump V. United States, Matthew D. Woodham, Ramona C. Albin

St. John's Law Review

(Excerpt)

In Trump v. United States, the Supreme Court of the United States held that a former President has absolute immunity from criminal prosecution for official acts within his core constitutional powers, presumptive immunity for all other official acts, and no immunity for private conduct undertaken while in office. Although the Court granted certiorari to address an immunity question, it then strayed into an evidentiary one in holding certain official acts evidence to be categorically inadmissible in the prosecution of private conduct. This Article interrogates the evidentiary foundation for this lesser-explored aspect of the Trump opinion and the danger …

Dual-Purpose Communications And The Modern Attorney's Need For Circuit Court Uniformity, Kipp Garrett

St. John's Law Review

(Excerpt)

In January 2023, the Supreme Court of the United States heard oral arguments in In re Grand Jury regarding the proper and applicable test to determine whether attorney-client privilege can be invoked in dual-purpose communications between a business and its legal counsel. Attorneys across the country were hoping the Court would provide an answer, ending the three-way circuit split concerning the appropriate test. Unfortunately, the Court ultimately dismissed certiorari as “improvidently granted” without an explanation. As a result, there are three major tests that federal courts use to decide whether communications between businesses and their legal counsel are protected: …

Cruel, As Usual: Application Of The Eighth Amendment To The Use Of Juvenile Criminal Records In Higher Education Admissions, Rabab Alajmi

St. John's Law Review

(Excerpt)

This Note addresses the systemic barrier to societal reintegration faced by juvenile offenders applying to enroll in higher education. Specifically, this Note will examine whether, in light of the Fifth Circuit’s recent Hopkins v. Hosemann decision, Eighth Amendment protections against cruel and unusual punishments should be extended to college applicants with juvenile criminal records who have completed their sentences. This Note argues that the Eighth Amendment reasoning in the Hopkins decision should be applied to higher education institutions who consider an applicant’s juvenile criminal record where the applicant has already completed their sentence. While the Hopkins decision concerned “the …

Vestigial Fiscal Constitutions, Joe Schomberg

St. John's Law Review

(Excerpt)

This Article examines the history and original intent of fiscal constitutions in the United States, providing helpful context for their usefulness today. It argues that, due to the rigidity of states’ fiscal constitutions, they are ultimately ineffective at preventing state and local governments from incurring more and more debt. Ultimately, it suggests that the weakness of state fiscal constitutions is a result of their functionality being overtaken by increased efficiencies in the capital markets and Tiebout-Tullock markets. Our state fiscal constitutions have suffered the same fate as our wisdom teeth or appendixes—they have become less useful and less relied …

"Intolerable" Inquiries, Zachary R. Cormier

St. John's Law Review

(Excerpt)

A growing majority of courts have broadly accepted travel-plan questions (and their follow-up questions) as a qualifying category of traffic-mission inquiries under Rodriguez, leaving officers with a clear pathway from pretextual traffic stop—to extended discussion about vehicle occupant activities outside the traffic violation—to drug dog sniff—to vehicle search. A closer analysis of Rodriguez, however, precludes such passage through the heart of its traffic-mission rule. This Article will demonstrate that travel-plan questioning cannot qualify alongside the roadway safety checks identified by Rodriguez in its traffic-mission inquiry list because such checks provide direct information about another safety-related traffic violation …

Table Of Contents

St. John's Law Review

No abstract provided.

There's Not Enough Cement And Too Much Air In That Concrete: Addressing The Weakness Of The Supreme Court's Concrete Injury Analysis, Sidney Balaban

St. John's Law Review

(Excerpt)

“Zombie” debt collectors—third-party entities who purchase from creditors and attempt to collect on debts that have passed the statute of limitations periods—have become a particular nuisance and source of distress to the unsuspecting consumer. A serious problem arises in some states, such as Illinois, which allow for the limitations period to restart if the debtor began making payments again or promised to make payments, giving nefarious debt collectors the chance to trick consumers into renewed legal liability—a true zombification. Fortunately, in 1978, Congress passed the Fair Debt Collection Practices Act (“FDCPA” or “the Act”) to “eliminate abusive debt collection …

Modern Challenges To Mandatory Immigration Detention: Building Constitutional Walls Around Statutory Expansions, Timothy Zurcher

St. John's Law Review

(Excerpt)

Pierre Michel arrived in the United States from Haiti at three years old as a Lawful Permanent Resident (“LPR”). After developing substance abuse issues in his adolescence, Michel received several nonviolent criminal convictions and was detained in contemplation of his deportation. Nearly two years later, Michel was finally released after successfully petitioning for Cancellation of Removal. Michel had no opportunity to obtain his freedom sooner, despite his clear eligibility for relief. Like Michel, in 2003, student Sylvester Owino pled guilty to second-degree robbery without understanding the immigration consequences of his conviction. After serving over two years in prison, Owino …

Wake Up: How Application Of Garcetti To Public Educator Speech Harms Educators And Students Through The Lens Of Florida's Individual Freedom Act, Lindsay Mccarthy

St. John's Law Review

(Excerpt)

Nearly twenty of the nation’s states have enacted some kind of law that limits the teaching of controversial topics like race, gender, and politics. Within the last three years, these laws have become more commonplace as social movements like Black Lives Matter and #MeToo have brought topics like systemic racism and gender inequality to the nation’s attention. As the country becomes more polarized, state legislatures—typically conservative ones—have resorted to these censorship laws to fight back against the perceived indoctrination of children. The state that has gained the most notoriety for such laws is Florida. In 2022, Florida passed a …

Cross-Talk, Alicia Bannon, John Q. Barrett, Tyler Rose Clemons, Wilfred U. Codrington Iii, Mark C. Niles

St. John's Law Review

(Excerpt)

John Q. Barrett (“JQB”)

We now enter the exciting segment of the program called cross-talk.

Tyler Rose Clemons (“TRC”)

One of the things that this conversation has brought up for me is whom is the Court overturning precedent on behalf of? What interest? Whose interest is it that the Court is acting to vindicate when it says we got it wrong before, and it is so important that we get it right that we are willing to take this supposedly drastic remedy of overturning our own precedent?

What I was thinking about immediately during Judge Livingston’s remarks was West …

Stare Decisis And The 1l Classroom: Can Legal Reasoning Be Taught Without Judicial Respect For Precedent?, Mark C. Niles

St. John's Law Review

(Excerpt)

I began my career as a law professor in 1998 and, in every year but one, since then I have taught at least one first-year required law school course. I have taught Civil Procedure each of these years and some version of a required Constitutional Law course in about half of them. I want to say just a little bit about stare decisis and its importance in our legal system from the perspective of a law professor teaching first-year students.

I have found that although teaching Civil Procedure involves a focus on a range of substantive issues including judicial …

Stare Decisis And Zombie Laws, Alicia Bannon

St. John's Law Review

(Excerpt)

In recent years, the Supreme Court has shown little interest in stare decisis—the principle that courts should honor precedent—as an animating value in constitutional interpretation. This has put many fundamental rights in a vulnerable posture. This Essay focuses on one underappreciated dimension of the decline in respect for stare decisis as it relates to fundamental rights: the relationship between stare decisis and what I will call, and what others have called, “zombie laws.”

Zombie laws are laws that were rendered inoperative by courts but never rescinded; for example, an abortion ban that became unenforceable after Roe v. Wade. …