Digital Commons Network^™

Social Justice And Deposit Return Calculations: A Study Of Success And Failure In Commercial Law Reform, William H. Widen

St. John's Law Review

(Excerpt)

This Article proceeds as follows: Part I describes case law which uses a “penalty” interpretation for § 2-718(2) and (3). Part II describes case law in which courts do not apply a penalty. Part III offers a penalty-free interpretation for § 2-718(2) and (3) that remains true to the statutory language. These three parts make extensive use of numerical examples and explanations. Although the presentation may seem dense in parts, an appreciation of the numbers is essential to understanding both the problem and the solution.

Part IV describes the drafting history of § 2-718(2) and (3) to support the …

Stingray Cell-Site Simulator Surveillance And The Fourth Amendment In The Twenty-First Century: A Review Of The Fourth Amendment In An Age Of Surveillance, And Unwarranted, Harvey Gee

St. John's Law Review

(Excerpt)

This Review discusses two timely and insightful books examining the changing relationship between privacy and the Fourth Amendment in the digital era. Part I discusses the tensions between the need to protect privacy rights and the slowly evolving legal landscape during a time of rapidly changing technology, to introduce David Gray’s The Fourth Amendment in an Age of Surveillance. His book explains how the Fourth Amendment, though embattled, can have a prominent role in twenty-first century discussions of privacy, technology, and surveillance. Gray’s analysis is engaged to broaden the conversation about Stingray technology. This section analyzes a sampling of …

Unlimited Data Search Plan: Warrantless Border Search Of Mobile Device Data Likely Unconstitutional For Violating The Fundamental Right To Informational Privacy, Atanu Das

St. John's Law Review

(Excerpt)

Part I of this Article discusses a case in which a United States citizen was subject to an unconstitutional warrantless border search of his mobile device data. Part II explains the history and current state of Supreme Court jurisprudence of the border search exception doctrine. Part III explains the way in which Supreme Court jurisprudence finds the right to informational privacy for mobile device data to be a fundamental right. Part IV discusses the reluctance of some legal commentators to find that a governmental intrusion on the right to informational privacy is subject to strict scrutiny. Part V finds …

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. …

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 …

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 …

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 …

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 …

Evaluating New York's Notice Of Claim Requirements: Why Naming Individual Municipal Employees Is Not Essential, Daniel Randazzo

St. John's Law Review

(Excerpt)

This Note argues that the approach adopted by the Fourth Department in Goodwin—that General Municipal Law § 50-e does not require the naming of individual municipal employees— is the correct approach in terms of the text of the statute and the purpose behind the statute, as well as policy and practical implications. This Note is comprised of four parts. Part I illustrates the importance of the notice of claim requirement and introduces the text of New York General Municipal Law § 50- e(2). Part II provides a synopsis of the case law on both sides of this issue, …

If It Is Broken, You Should Not Fix It: The Threat Fair Repair Legislation Poses To The Manufacturer And The Consumer, Marissa Macaneney

St. John's Law Review

(Excerpt)

This Note argues that fair repair legislation is not fair for manufacturers, and suggests that legislators look to a solution that has proved workable in an analogous context in the automobile repair industry. Part I outlines the history of the electronic device repair market and discusses the proposed state legislation. It concludes that federal copyright law is insufficient, current state proposals are flawed, and that a different solution is necessary. Part II will discuss alternate solutions in the automobile industry, legislation tailored to the agriculture industry, and recent concessions by a well-known manufacturer. Part III will propose a standardized …

The Crazy Maze Of Food Labeling And Food Claims Laws, Patrick Meyer

St. John's Law Review

(Excerpt)

This Article critiques the role of the FDA in providing consumers with accurate and relevant food label information, identifies impediments in the pursuit of its mission, and offers solutions to those impediments.

Part I of this Article traces the history of U.S. food labeling and health claims laws. Current food laws and their regulation have developed over time. The first federal legislation was passed in the early 1900s. The food laws of today have certainly been influenced by past food laws, which were largely a reaction to societal events. A brief summary of the historical development of our nation’s …

Resolving The Conflict Between The Temporarily Unavailable Juror And New York's Mandatory 24-Hour Limit On The Separation Of Jurors During Deliberations, Michael Pasinkoff

St. John's Law Review

(Excerpt)

Allowing defendants to move for and obtain mistrials based upon a delay in resuming jury deliberations does nothing to render the process fairer or to protect any right of a defendant. Granting these applications in the absence of prejudice to a defendant wastes scarce and valuable judicial resources, requires the state to unnecessarily retry a case, and makes witnesses again take time from their lives to testify in court. Indeed, in many cases, a defendant is afforded a tactical advantage by forcing the state to retry the case. There are of course occasions when the law accepts conferring a …

Volume 61, Spring 1987, Number 3

St. John's Law Review

No abstract provided.

Volume 59, Summer 1985, Number 4

St. John's Law Review

No abstract provided.

A Rash Decision In Sunnyslope: Confusion Lingers Over Collateral Valuation, Michael D. Manzo

St. John's Law Review

(Excerpt)

This Comment argues that the Ninth Circuit’s Sunnyslope decision misconstrued the Rash Court’s holding and is divorced from the text and structure of the Code. Rash does not provide a brightline rule that answers valuation questions in cramdowns; it offers a flexible standard that is compatible with the Code’s protections for both debtors and secured creditors. Further, this Comment also argues that Sunnyslope could have been answered not as a valuation issue, but as a lien priority issue. In any event, the Ninth Circuit completely missed the mark in interpreting the Supreme Court’s holding in Rash and in understanding …

Increasing Investor Protection Through Improving Hedge Fund Valuation, Deirdre Farrell

St. John's Law Review

(Excerpt)

This Note examines the current hedge fund regulations in the United States and in Europe, and proposes ways for regulators to improve hedge fund valuation in the United States to increase investor protection. Although valuation issues affect all pooled investment vehicles that invest in illiquid, difficult-to-value assets, this Note focuses only on the valuation systems of hedge funds.

Part I gives an overview of hedge funds in general—their structure and the major stakeholders involved. Part II summarizes the valuation process and its associated issues. Part III describes recent regulatory changes in the United States affecting hedge funds, including the …

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

Endangered Deference: Separation Of Powers And Judicial Review Of Agency Interpretation, Kathryn M. Baldwin

St. John's Law Review

(Excerpt)

This Note proceeds in four parts: Part I consists of a brief history of the development of agency deference doctrine. Part II examines the decline of deference from the perspective of all three branches of government: the overuse by the executive agency that catalyzed deference’s denouement, the underuse by the United States Supreme Court and renewed separation of powers challenges, and the parallel assault from Congress under the pending SOPRA. Part III addresses the proposed de novo review standard and highlights the deficiencies in that solution, emphasizing instead the tools that Congress already employs to meaningfully check agency interpretations. …