Digital Commons Network^™

Oil And Water: Easements And The Environment, Mckay Cunningham

St. John's Law Review

(Excerpt)

While critical in the country's infancy, encouraging land use and development through legal constructs is less important and arguably detrimental now. Our need to develop wide swaths of wild land has changed; our common law has not. Part I explores the vast wilderness and open spaces of America's infancy and how state and federal government articulated a clear objective to settle and develop "wild lands." Part II tracks the continuing influence of this objective in implied easements, prescriptive easements, and express easements. Part III recognizes the lack of a conservation counterbalance and details several approaches that might curb pro-development …

Where The Heart Is: Amending The Fair Labor Standards Act To Provide Wage And Overtime Pay Protection To Agency-Employed Home Health Aides, Elizabeth Riordan

St. John's Law Review

(Excerpt)

Part I of this Note explores the increasing demand for long-term senior care services and the vital role of home health aides within the direct care industry. Part I also examines the 1974 amendment to the FLSA that created the companionship exemption and illustrates that in using the term "companion" Congress did not intend to exclude workers formally employed by private, for-profit agencies. Part II explores litigation surrounding the companionship exemption, and, in particular, courts' unfavorable treatment of home health aides' claims for overtime pay. Part II also examines the DOL's third party rule, which extends the companionship exemption …

"Show Me The Money": State V. Western Union Financial Services And The Jurisdictional Significance Of Electronic Debts, Anthony Bagnuola

St. John's Law Review

(Excerpt)

Part I discusses the evolution of personal jurisdiction jurisprudence and the difficulties that modern varieties of intangible property pose to established analyses. Specifically, while most jurisdictions have acknowledged the difficulties inherent in assigning a "location" to intangible property, few have attempted to update existing precedent to accommodate modern scenarios.

Part II examines the recent Arizona decision in State v. Western Union Financial Services, Inc., where the Supreme Court of Arizona confronted the "location" of electronic debts as an issue of first impression.

Part III argues for the Harris fiction's relevance in the modern era. The complexities of modern …

Joining Behind Bars: Reconciling Federal Rule Of Civil Procedure 20(A)(1) With The Prison Litigation Act, Erin Kandel

St. John's Law Review

(Excerpt)

This Note explores the courts' competing approaches to cases involving joinder by IFP prisoners and endeavors to resolve this troublesome procedural issue. Part I of this Note reviews the history and purpose of Rule 20(a)(1) of the Federal Rules of Civil Procedure. Part II discusses the legislative history and scope of the PLRA, focusing primarily on the IFP provisions contained in § 1915. Part III examines how courts have used the same four interpretive tools-plain meaning, legislative intent, implied repeals, and public policy arguments-to support three conflicting outcomes in PLRA-Rule 20(a)(1) cases: a per se rule against joinder, joinder …

Speaking For The Dead: Voice In Last Wills And Testaments, Karen J. Sneddon

St. John's Law Review

(Excerpt)

This Article examines voice in wills. First, this Article considers the function of wills and the continued importance of the will in the age of will substitutes. Second, this Article explores the concepts of voice and persona, including the applicability of these terms to wills. Third, this Article analyzes voice in wills by contemplating voice in both non-attorney drafted wills and attorney drafted wills. Fourth, this Article highlights five opportunities that enable the draftsperson to consciously craft a persona that appropriately injects the individual's voice into the will while ensuring that the will continues to be both substantively accurate …

The Supreme Court's Catholic Majority: Doctrine, Discretion, And Judicial Decision-Making, René Reyes

St. John's Law Review

(Excerpt)

The Article is organized as follows. Part I discusses the doctrinal writings of the Catholic Church as they relate to the moral obligations of public actors. As will be seen, these writings lend themselves to an interpretation that suggests a strong role for Catholic moral teaching in all aspects of public life. Part II examines the circumstances in which these writings may be applicable to the decision-making processes of the Supreme Court. Cases involving fundamental rights and liberties are given particular attention in this Section-for these are cases about which Catholic doctrine often has the most to say, and …

(European) Stars Or (American) Stripes: Are The European Court Of Human Rights' Neutrality And The Supreme Court's Wall Of Separation One And The Same?, Andrea Pin

St. John's Law Review

(Excerpt)

This Article traces the different approaches to religious freedom that the European Court of Human Rights ("ECHR") and the United States Supreme Court have adopted. Although it is difficult to summarize the various tests and trends that have been developed by the Supreme Court, this Article highlights some important doctrinal differences between the Supreme Court and the ECHR.

Part I of this Article briefly surveys the dynamic role of the U.S. Constitution and of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention"). This Part sets the groundwork for the comparison between the jurisprudence …

When The State Is Evil: Biblical Civil (Dis)Obedience In South Africa, Joel A. Nichols, James W. Mccarty Iii

St. John's Law Review

(Excerpt)

A close reading of the New Testament, though, reveals that there is not one uniform answer to this question. The New Testament does not prescribe one appropriate stance for Christians to take against the civil authorities. Rather, there appear to be alternate (or perhaps various) stances that are permitted, depending on the exigencies of the time and the various circumstances. To explore this thesis, Part I explores biblical texts in Acts-Jude that speak to the relationship between Christians and the civil government, with a particular focus upon Acts 5:28 and Romans 13:1-7. Part II, which is the heart of …

Rlt: A Preliminary Examination Of Religious Legal Theory As A Movement, Samuel J. Levine

St. John's Law Review

(Excerpt)

Toward that goal, this Article looks briefly at certain aspects of Critical Legal Studies, Law and Economics, and Empirical Legal Studies. For the purposes of this preliminary analysis of RLT, this Article will adopt somewhat simplified models of these movements, focusing on some of their central features, including critiques that have been leveled against them. In turn, this Article will explore similar elements of RLT in an effort to evaluate the potential status and standing of RLT as a legal movement.

Disestablishment Without Impartiality: A Case-Study Examination Of The Religious Clauses In The Nigerian Constitution, Simeon O. Ilesanmi

St. John's Law Review

(Excerpt)

The absence of an effective legal channel through which civil disagreements can be justly resolved is one reason, among many, that Nigerians have not bothered to challenge the government for its involvement in what is ostensibly beyond its allotted responsibility. This does not mean that there are no judges and lawyers in Nigeria; in fact, the doctrine of separation of powers is writ large in the country's governmental structures. However, the judiciary has functioned more like an extension of, and sometimes a lackey for, the executive and legislative branches than an independent coequal branch. While the symbolisms may be …

Law Asks For Trust, Nathan S. Chapman

St. John's Law Review

(Excerpt)

This Article offers a reading of chapters 1 and 2 of the book of Genesis, informed by concerns for the social effects of law. Part I considers the implications of God's method of creating the world by speech in the first chapter of Genesis. Part II turns to God's prohibition against eating the fruit of the tree of the knowledge of good and evil. The content of the prohibition and the nature of the threatened penalty suggest that the prohibition is a rule against disobedience generally, paradigmatic of a general claim by God to be the ruler. With the …

Religion, Human Rights, And Post-Secular Legal Theory, Zachary R. Calo

St. John's Law Review

(Excerpt)

The idea of human rights embodies the moral outlook and aspirations of modernity. It is through the language of human rights that political obligations are established and articulated, and it is through the language of human rights that an account of human nature and personhood is given meaning and form. The language of human rights is our common moral vocabulary. As Michael Perry writes, "the morality of human rights-that is, the morality that grounds the law of human rights-has become the dominant morality of our time; indeed, unlike any morality before it, the morality of human rights has become …

Nonpublic Reasons And Political Paradigm Change, Ian Bartrum

St. John's Law Review

(Excerpt)

The first Part of this Article discusses the historical conception of the liberty of conscience, argues that this idea was the central theoretical justification for the religion clauses at the time of the founding, and suggests that we can plausibly read the constitutional text as protecting the right to debate and vote for nonpublic reasons. Part II sketches Rawls's arguments and argues that-the language of duty notwithstanding-these arguments basically appeal to consequentalist kinds of reasons. It then presents an original structural account of the value of nonpublic reasons in political discourse, and looks to both Thomas Kuhn and the …

Separation Of Church And State In Japan: What Happened To The Conservative Supreme Court?, Keisuke Mark Abe

St. John's Law Review

(Excerpt)

This Article first introduces the Japanese constitutional scheme as it relates to separation of church and state and explains the case law governing this area. It then compares this constitutional scheme with the new approach taken in Kikuya. Following the discussion about the Japanese Supreme Court's recent willingness to break with precedent in high-profile cases involving constitutional issues, it concludes with a suggestion that the development is best understood as an example of the judiciary's self-conscious efforts to rectify unconstitutional governmental practice in light of the progress of globalization. Indicating that the Japanese Supreme Court is prepared to fulfill …

Nonestablishment, Standing, And The Soft Constitution, Steven D. Smith

St. John's Law Review

(Excerpt)

It is not usual for legal scholars working in establishment clause jurisprudence-and it is especially not usual for me-to say nice things about what the Supreme Court has done to the subject. But that is what I mean to do today. I don't want to be too agreeable or cheerful, though, so this time, although commending the Court, I am going to take issue with the commentators. More specifically, I want to praise a recent development that most commentators seem to deplore-namely, the Court's recent practice of using the slightly disreputable doctrine of standing as a device to avoid …

Introduction To Symposium: Religious Legal Theory, Mark L. Movsesian

St. John's Law Review

(Excerpt)

On November 5, 2010, the St. John's Center for Law and Religion proudly hosted the annual Religious Legal Theory Conference. The event, now in its second year and to be shared among different universities, brought together scholars from around the world to discuss this year's theme, "Religion in Law, Law in Religion." The Center chose this theme in order to include papers on traditional church-state issues-"Religion in Law"-as well as papers addressing the role that law plays in various religious traditions-"Law in Religion." In addition, because contemporary law and religion scholarship has moved beyond strictly domestic-law questions, and takes …

Assumption Of Risk In New York: The Time Has Come To Pull The Plug On This Vexatious Doctrine, Danielle Clout

St. John's Law Review

(Excerpt)

This Note urges the Court of Appeals to abolish the unworkable doctrine of assumption of risk once and for all. Part I of this Note gives a general overview of the doctrine of assumption of risk. It explores the theoretical underpinnings behind the doctrine and gives a comprehensive view of assumption of risk as it has developed and been applied in New York. Part II discusses the difficulties the term "assumption of risk" causes throughout the legal system. In addition to discussing some widely-accepted views of the inherent complications of the doctrine, it discusses the specific challenges that arise …

Get Your Factas Straight: The Application Of Facta's Truncation Provision To Online Transactions, Rebecca J. Sayles

St. John's Law Review

(Excerpt)

This Note argues that FACTA's truncation provision should apply to online transactions and e-mail receipts as currently written, but recognizes the necessity of limiting the potentially devastating liability that online merchants would face for a technical violation of the provision in a class action lawsuit. Part I of this Note explores FACTA's statutory landscape, paying particular attention to the truncation and statutory damages provisions. Part II analyzes the conflicting viewpoints that have arisen through attempts to apply FACTA's truncation provision to online transactions. Finally, Part III argues that an interpretation of the truncation provision that does not make it …

Fourth Amendment Implications Of Interviewing Suspected Victims Of Abuse In School, Jennifer Kwapisz

St. John's Law Review

(Excerpt)

This Note argues that in-school interviews of children regarding child abuse constitute seizures under the Fourth Amendment and that such seizures are unconstitutional absent a warrant, consent, or exigent circumstances. Part I of this Note provides a basic background of Fourth Amendment seizures and discusses the Fourth Amendment's role in the context of child abuse investigations. Part II examines the controversy surrounding in-school interviews of suspected child abuse victims and the implications of such interviews for children's Fourth Amendment rights. Part III proposes a rule for in-school interviews consistent with Fourth Amendment principles. It also demonstrates how such a …

Underwriting Credit Cards, Overwriting Congress, And Rewriting Family Law: The Treatment Of Household Income In Consumer Lending, Margaret Ryznar

St. John's Law Review

(Excerpt)

Part I of this Article begins by considering the origins of the Board's rule-reviewing the legal and economic frameworks governing them. Part II then examines the position of families and women in this framework, noting that many other fields of law take an opposite approach and treat spouses as a single economic unit. Part III, in addition to highlighting the constitutional concerns regarding the Board's rule, concludes that there is no value in barring women from the credit market-only high costs-and argues that the amended rule should instead recognize the non-income-earning spouse's financial participation in the household.

From Four Part Tests To First Principles: Putting Free Speech Jurisprudence Into Perspective, Joshua D. Rosenberg, Joshua P. Davis

St. John's Law Review

(Excerpt)

In Part I of this Article, we set out some of the most commonly used tests and doctrines in free speech cases, and discuss how they are applied. These tests include: (1) forum analysis; (2) employee speech; (3) determination of the kind of restriction placed on speech-(a) time, place, or manner, (b) content, (c) viewpoint, or (d) secondary effects; and (4) determination of whether the speech is protected, unprotected, or somehow protected but less so than other speech.

For each doctrine and set of tests, we examine the basic determinations that must be made before application and the purposes …

Republican Revolutionaries And Tea Party Patriots: A Public Choice Analysis Of Congressional Term Limits, Keith J. Larson

St. John's Law Review

(Excerpt)

While there is a vast body of literature contemplating the impact term limits might have on the lawmaking process, little attention has been focused on why lawmakers would decide to back passage of this procedural tool. And yet this is the pivotal question, given that Congress is the only legislative body authorized to send a proposed constitutional amendment to the states for ratification. This Article attempts to fill this gap in the literature. Using public choice theory and empirical data, this Article develops a model that allows us to better predict when, if ever, members of Congress might act …

Applying Michigan V. Summers To Off-Premises Seizures: The "As Early As Practicable" Standard, David Torreblanca

St. John's Law Review

(Excerpt)

Part I provides an overview of the Fourth Amendment’s protection against unreasonable searches and seizures, first discussing general Fourth Amendment principles, then analyzing the Supreme Court’s Summers decision. Part II addresses the circuit split over extending Summers where the occupant of the premises has left the property. Part II discusses the approaches taken by the four circuits that have applied, and the two circuits that have declined to apply, Summers to off-premises detainments. Part III argues that the circuits that have extended Summers where officers have detained occupants off premises are correct. It asserts that such detainments are reasonable …

Malicious Content On The Internet: Narrowing Immunity Under The Communications Decency Act, Joanna Schorr

St. John's Law Review

(Excerpt)

This Note argues that the scope of CDA § 230, which provides immunity to Internet Service Providers in defamation suits for content posted by third-party users, should be narrowed in circumstances where a website actively solicits malicious content from its users. Part I discusses gossip websites and blogs that are currently immunized by § 230 and analyzes social issues that result from the broad interpretation of the CDA. Part II briefly discusses the law of defamation, followed by a discussion of the policies behind the CDA’s enactment, and the statute’s current scope in regard to defamation suits. Part III …

The Battle Over Combat: A Practical Application Of The Combatant Activities Exception To The Federal Tort Claims Act, Michael Kutner

St. John's Law Review

(Excerpt)

Under both circuits’ interpretations, the government may be shielded from liability for injuries resulting from activities that could have been more safely performed without compromising national defense. This Note takes the position that in light of the inadequacies of both the Ninth and D.C. Circuits’ interpretations of the combatant activities exception, a new approach is needed that will strike an appropriate balance between the government’s interest in defending the nation unencumbered by the threat of tort liability and the rights of injured parties to recover.

The Proper Borders Of Padilla: Courts Must Avoid Over-Expansion Of Sixth Amendment Claims, Terrence Regan

St. John's Law Review

(Excerpt)

This Note proposes a new method of Sixth Amendment analysis. This analysis is consistent with the Court’s decision in Padilla v. Kentucky and its other Sixth Amendment precedent. It also responds to concerns that criminal defendants are treated fairly, on the one hand, and that the criminal justice system is not overburdened by an undermined plea system, on the other. This Note argues that the focus of the “competence prong” of the ineffective assistance test must be focused on the attorney’s knowledge and his action in relation to that knowledge. When an attorney knows—or reasonably should know—that a collateral …

A Better Public Performance Analysis For Digital Music Locker Storage, Michael Walker Jr.

St. John's Law Review

(Excerpt)

Part I of this Note discusses the shift in musical formats from physical, tangible items to digital, intangible files and provides an overview of the different digital locker storage services presently available to consumers. It then addresses data deduplication technology, and explains why it should not affect the public performance analysis. Part II examines the relevant copyright law statutory provisions, case law construing the public performance right, and the unique copy analysis. Part III briefly reviews the unique copy analysis as applied in a recent case involving a digital music locker provider. Part III also argues that courts should …

International Issues In The Regulation Of Financial Advice: A United Kingdom Perspective--The Retail Distribution Review And The Ban On Commission Payments To Financial Intermediaries, Gerard Mcmeel

St. John's Law Review

(Excerpt)

The value added by financial intermediaries and salespersons is recognized by the often sizeable commissions paid by life insurers and other financial product providers to them when a deal is done. Given that the legal position is that independent financial intermediaries are the agents of investors, and not the product providers, this has always been difficult to reconcile with principles of fiduciary law. In particular, the potential for a conflict of interest is obvious. One solution is a regime of disclosure, although the extent of disclosure necessary has been much debated. The United Kingdom appears to have traditionally followed …

H.R. 4624: The Pitfalls Of A Self-Regulatory Organization For Investment Advisers And Why User Fees Would Better Accomplish The Goal Of Investment Adviser Accountability, David G. Tittsworth

St. John's Law Review

(Excerpt)

As demonstrated by a Boston Consulting Group (“BCG”) report, the costs of user fees would be significantly less than the costs of SRO oversight. Further, if an investment adviser SRO were mandated, the resulting new oversight responsibilities would require the SEC to expend significant additional resources. In summary, the IAA strongly believes that there are better answers than the option presented by H.R. 4624. Now that the bill has been defeated, the IAA strongly urges Congress to consider other—and better—options.

Rethinking U.S. Investment Adviser Regulation, Anita K. Krug

St. John's Law Review

(Excerpt)

Now, in the aftermath of Dodd-Frank’s enactment and the SEC’s associated bout of rulemaking, one might think that the Advisers Act’s regulatory regime is a workable and effective one, equipped to address—and address efficiently—the investor-protection risks that the twenty-first-century investment adviser industry produces. In fact, however, Dodd-Frank did not touch— and, indeed, Dodd-Frank’s crafters indicated no awareness of— many of the Advisers Act’s longstanding troubles. Additionally, the changes Dodd-Frank brought about have their own considerable deficiencies. As this Article contends, the U.S. investment adviser regulatory regime, now seventy-four years old, is in need of more than a few statutory …