Digital Commons Network^™

How To Read International Criminal Law: Strict Construction And The Rome Statute Of The International Criminal Court, Caroline Davidson

St. John's Law Review

(Excerpt)

The Article proceeds in four parts. Part I introduces the Rome Statute’s provision on nullum crimen sine lege, focusing in particular on its requirements that judges strictly construe crime definitions, construe ambiguous provisions in favor of defendants, and avoid crime creation by analogy. It offers working definitions for relevant concepts and describes some of the difficulties in applying them, particularly in light of the Rome Statute’s provision setting out the sources of law the court is to consider. Part II asks whether strict construction makes sense in the context of international crimes. It assesses the values that undergird the …

The Long-Arm's Inappropriate Embrace, Lynda Wray Black

St. John's Law Review

(Excerpt)

Arguably, the heart balm torts have outlived their relevance in a society where marriage is no longer a necessary imprimatur for intimate relations, and where broken hearts and failed marriages are the statistical norm. A state’s resolute rejection of the heart balm torts in principle as well as applied to modern domestic relations mores need be checked neither by Constitutional protections of marriage nor by the need for uniformity among sister states. Therefore, one state need not and must not transport its domestic relations public policy across state lines. Mississippi’s expansive jurisdictional embrace of nonresidents, John Daly and Anna …

Gender Inequality In Immigration Law: Why A Parent's Gender Should Not Determine A Child's Citizenship, Alexandra Struzzieri

St. John's Law Review

(Excerpt)

This Note concludes that the distinctions in §§ 1401(a)(7) and 1409(a) impermissibly discriminate on the basis of gender and, therefore, violate the Constitution’s guarantee of equal protection.

Part I provides a background of equal protection principles, including the well-established standard the Supreme Court uses in analyzing gender discrimination claims. Part I also illustrates Supreme Court precedent by discussing three important cases dealing with gender discrimination in the INA. Part II presents §§ 1401(a)(7) and 1409(c) and describes the current split of authority among the circuit courts over the constitutionality of those provisions. Part III details why the gender-based distinctions …

Protecting The Antiterrorism Tools Of American Citizens: Limiting The Application Of Daimler's "At-Home" Test, Alexis Casamassima

St. John's Law Review

(Excerpt)

This Note argues that courts should not apply the Daimler general jurisdiction standard to defendants in ATA civil proceedings, because (1) it was not intended to insulate certain foreign terrorist sponsors from these actions and (2) applying Daimler would seriously undermine the purpose of the ATA’s civil provision. Part I surveys the jurisdictional requirements that must be satisfied to bring foreign defendants into federal court. Part II discusses the position of various courts on the issue of whether foreign defendants in ATA civil actions can be subject to the federal jurisdiction on the basis of Daimler’s standards. Part III …

Inter Partes Review And Federal Litigation: Parallel Proceedings And Inconsistent Results, Stephen N. Kulhanek

St. John's Law Review

(Excerpt)

This Note addresses IPR’s impact on the patent system and what further changes Congress should consider making. Part I discusses the patent system leading up to the enactment of the AIA. Part II explains the details of IPR, its statistics, and an example of IPR in practice. Part III proposes some further alterations Congress could make to help IPR become a more beneficial proceeding.

Precluding Fdcpa Claims In Bankruptcy, Natalie Ko

St. John's Law Review

(Excerpt)

This Note seeks to offer additional justifications and expand upon the Eighth Circuit’s intermediate approach in harmonizing both federal statutes by also extending certain exemptions with the FDCPA to apply to proofs of claim in bankruptcy. Part I examines the relevant legislative intent and procedural aspects of both the Bankruptcy Code and the FDCPA. Part II summarizes the various approaches that courts take to the problem and their rationale behind their decision. Part III considers several justifications for limiting consumer enforcement of the FDCPA in the bankruptcy context. Finally, Part IV proposes that, to synchronize both the FDCPA and …

Federal Constitutional Childcare Parents, Jeffrey A. Parness

St. John's Law Review

(Excerpt)

Why are the requisites for federal constitutional child caretakers largely left to state lawmakers? Both Supreme Court and congressional explanations, when offered, fail to justify the extreme deference and the resulting significant interstate variations as to who is a parent for federal constitutional parental childcare purposes. These very broad variations in who possesses fundamental federal constitutional rights are unique to the childcare setting, causing many problems for children and those who care for them. These problems would be mitigated if child caretakers, like the criminally accused, gun owners, and abortion seekers, were more precisely defined by federal lawmakers. The …

A Constitutional Case For Appointed Counsel In Immigration Proceedings: Revisiting Franco-Gonzalez, Johan Fatemi

St. John's Law Review

(Excerpt)

This Article argues that had the Franco-Gonzalez court evaluated the plaintiffs’ constitutional claims by applying the classic Mathews v. Eldridge due process balancing test supplemented by more recent United States Supreme Court jurisprudence, the Franco-Gonzalez court would have arrived at an identical conclusion regarding the categorical right to appointed counsel for individuals with mental disabilities. This Article further argues that the legal rationales for the putative successful constitutional claim in Franco-Gonzalez can be used to extend civil Gideon to other classes of vulnerable immigrant groups in removal proceedings, including detained noncitizen women and children like Marisol and Jennifer.

Truth In Advertising: Applying Commercial Speech Regulations To The Secondary Dissemination Of Scientific Research Publications, Cody Corliss

St. John's Law Review

(Excerpt)

Part I of this Article examines the Lanham Act generally and the Act’s regulation of commercial speech. Part II reviews the interplay between the Lanham Act and the First Amendment protections afforded to scientific inquiry and scientific publication. It then examines the secondary dissemination of scientific findings, arguing that a third party’s dissemination of the scientific findings or a press release quoting those findings constitutes commercial speech that should be regulated by the Lanham Act. This Article explores how the recent ONY decision has the potential to chill Lanham Act litigation, and it argues that future decisions following ONY …

When The Ends Do Not Justify The Means: The Application Of Statistical Sampling To Determine Liability In False Claims Act Cases, Christina Vlahos

St. John's Law Review

(Excerpt)

Thus, this Note argues that the use of statistical sampling to determine liability in False Claims Act cases constitutes a violation of a defendant’s constitutional right to Due Process under the Fifth Amendment. Part I of this Note provides some historical context for the False Claims Act and discusses its contemporary application as a tool for the federal government to recover funds that were disbursed to fraudulent claimants. Part II examines earlier False Claims Act cases in which statistical sampling was assessed as a tool for evidentiary analysis. It also examines a recent False Claims Act trial in which …

Article Ii Complications Surrounding Sec-Employed Administrative Law Judges, Thomas C. Rossidis

St. John's Law Review

(Excerpt)

This Note argues, first, that SEC ALJs are inferior officers pursuant to Article II’s Appointments Clause, and second, that SEC ALJs’ multilevel tenure protection is constitutional. Because Supreme Court precedent determined that inferior officers are “established by Law,” hold statutory duties and compensation, exercise “significant authority,” and operate under the supervision of an officer appointed by the President with the consent of the Senate, SEC ALJs are inferior officers, rather than mere employees. Furthermore, since the Supreme Court also concluded that inferior officers are endowed with removal protection as it is “deem[ed] best for the public interest,” notwithstanding the …

Human Development As An Intellectual Property Metric, J. Janewa Osei-Tutu

St. John's Law Review

(Excerpt)

This Essay argues that human development should be adopted as a metric for IP because it is a useful and relevant metric, and one that can be invoked under both the natural rights and utilitarian frameworks. Metric, as used here, refers to a method for measuring the effects of IP laws.

Part I of this Essay will provide a brief overview of some of the reasons for the dissatisfaction with current IP law before making the connection between IP and human development in Part II. Part III explains how human development can be adapted as a metric for IP …

A Call For Strengthening The Role Of Comparative Legal Analysis In The United States, Irene Calboli

St. John's Law Review

(Excerpt)

This Essay highlights the importance of comparative legal analysis with particular emphasis on the role that this methodology could play for intellectual property scholarship in the United States. In particular, the theme of this Symposium aims at addressing “values,” “questions,” and “methods” in intellectual property law. In line with this theme, this Essay would like to make the case that comparative legal analysis could play a more prominent role as a scholarly methodology in the U.S. legal academy in the field of intellectual property. In turn, this could have a relevant impact on the questions addressed by scholars and …

A Futile Endeavor: Defining "Scandalous" In The Bankruptcy Code, Bradley Simon

St. John's Law Review

(Excerpt)

This Note addresses the various, sometimes contradictory, approaches courts have taken in interpreting what constitutes scandalous material under § 107(b)(2) of the Code. Part I traces the right of public access to documents and records in bankruptcy courts to its common-law and First Amendment origins and discusses why transparency is particularly important in the bankruptcy context. Part II addresses the split of authority among the circuit courts regarding the appropriate way to define scandalous, focusing on the United States Court of Appeals for the First Circuit’s “truthfulness and relevance” approach, the Eighth Circuit’s “context-sensitive” approach, and the Ninth Circuit’s …

The Copyright Protectability Of Architectural Works: The Eleventh Circuit Walks A Thin Line, Thomas Commons

St. John's Law Review

(Excerpt)

Part I of this Note discusses the history of copyright legislation in the United States regarding architectural works, as well the applicability of copyright law generally. Part II discusses the circuit split between the Eleventh and Second Circuits with regard to how much protection architectural works should be afforded. Part III analyzes the benefits and shortcomings of both approaches and how other courts should ultimately adopt the Second Circuit’s approach. This Note argues that the Second Circuit’s approach is supported not only by statutory language and legislative history, but also by public policy and constitutional considerations, as well.

Starships And Enterprise: Private Spaceflight Companies' Property Rights And The U.S. Commercial Space Launch Competitiveness Act, Stephen Dimaria

St. John's Law Review

(Excerpt)

This Note utilizes SLCA as a focal point to discuss the potential of domestic regulation that grants private companies property rights in harvested outer space resources and how, if at all, these rights can exist within the boundaries of current international obligations. First, it outlines current international obligations in space law, delving into the treaties governing space law and analagous obligations in Antarctica and the deep sea. Second, this Note discusses how SLCA meets those guidelines and where it falls short. This Part draws on the Roman law principles of res nullius and res communis, the supporting sections …

Product Recalls: Why Is Tort Law Deferring To Agency Inaction?, Jill Wieber Lens

St. John's Law Review

(Excerpt)

Part I of this Article explores tort law’s treatment of agency standards and regulations regarding determinations of product defectiveness, the propriety of post-sale warnings, and whether to punish the manufacturer with punitive damages. Part II then explains how tort law treats agency determinations—and lack thereof—on product recalls. This Part explains how tort law’s narrow standards for liability defer to agency orders to determine the reasonableness of a product recall and how that deference is illogical and inconsistent with negligence per se principles. Part II also concludes that product recalls are not so special so as to deserve special treatment …

"Reasonable" Police Mistakes: Fourth Amendment Claims And The "Good Faith" Exception After Heien, Karen Mcdonald Henning

St. John's Law Review

(Excerpt)

Given Heien’s distinction between the standard under the Fourth Amendment and the standard for qualified immunity, we are left after Heien with the conclusion that the concept of “objectively reasonable” conduct varies depending on the type of claim the Court is addressing. In particular, Heien leaves open both the question of what constitutes a reasonable mistake of law for Fourth Amendment purposes and the question of how that answer relates to the good faith exception to the exclusionary rule. This Article explores these questions. Part I examines how the Court has increased its tolerance of police mistakes, both in …

Beware The Friends You Keep And The Places You Sleep: The Fourth Amendments Limited Protection Over Visitors And Their Belongings, Alysha C. Preston

St. John's Law Review

(Excerpt)

This Note concludes that the Arizona Supreme Court correctly applied the possession test and strongly urges the Supreme Court to address the issue and follow in Arizona’s footsteps. The possession test not only provides the best guidance for both officers and courts, but also provides the most precision and clarity. More importantly, this approach aligns with current Supreme Court case law and conforms to established Fourth Amendment principles. Holding otherwise would gravely undermine policy, disregard current precedents, and undervalue the sole purpose for the Fourth Amendment’s existence: to protect one’s reasonable expectation of privacy. Part I examines the scope …

Technical Difficulties: Why A Broader Reading Of Graham And Miller Should Prohibit De Facto Life Without Parole Sentences For Juvenile Offenders, Daniel Jones

St. John's Law Review

(Excerpt)

This Note argues that the spirit of the trilogy prohibits courts from sentencing juvenile offenders, regardless of their crime(s), to de facto life sentences. This Note maintains that the Eighth Amendment of the United States Constitution and the relevant case law render de facto life sentences unconstitutional. Part I examines the history of juvenile sentencing laws and concludes that many of the laws currently in place are based on a misguided fear that juveniles are more culpable than adult offenders. Part I also examines the relevant Supreme Court Eighth Amendment jurisprudence as well as the competing theoretical arguments used …

Important Is Not Important Enough: Forcibly Medicating Defendants For Sentencing Using The Important Interest Standard, Sarah Viebrock

St. John's Law Review

(Excerpt)

This Note analyzes whether the Government’s interest in sentencing is the same as its interest in trial, and whether the “important interest” standard is a high enough threshold for the Government when it seeks to forcibly medicate a defendant for sentencing. This Note will conclude that because of the procedural alternatives to forcible medication at sentencing, the functional differences between trial and sentencing, and the spirit of the Supreme Court’s decision in Sell, the Government should be required to demonstrate a compelling, rather than an important, interest when it seeks to forcibly medicate a defendant for sentencing.

Part …

I Swear! From Shoptalk To Social Media: The Top Ten National Labor Relations Board Profanity Cases, Christine Neylon O'Brien

St. John's Law Review

(Excerpt)

This Article curates and analyzes ten recent cases where the NLRB decided whether or not § 7 protected employee swearing, with a view toward defining the implications of these decisions for employers and employees in terms of employer rules and discipline, and employee rights and limits thereon. The Article outlines the NLRB’s role and perspective in cases where employees are disciplined or discharged for engaging in profanity at work and/or on social media when the conduct in question is otherwise protected concerted activity. The Article summarizes the facts in each case while analyzing the legal framework that the NLRB …

Confidence Schemes: Theft Loss Deductions, Restitution, And Public Policy, Steven F. Friedell

St. John's Law Review

(Excerpt)

This Article focuses on some of these problems in the field of federal income tax. It suggests that when part of the IRC appears to direct a particular outcome, courts are prone to error when they override that command by imposing a penalty based on the judges’ moral condemnation of a party’s behavior. It would be better for courts to employ the statute’s intrinsic set of public policies to guide their decision making. In some instances, the results will not change because of other overlooked provisions in the statute. However, adherence to the legislature’s balance of conflicting interests will …

The Error In Applying The Language Conduit-Agency Theory To Interpreters Under The Confrontation Clause, Gregory J. Klubok

St. John's Law Review

(Excerpt)

Part I of this Note explains the origins of the Confrontation Clause and recent Supreme Court jurisprudence on the topic. Part II of this Note explains the current split of authority among the United States Courts of Appeals on whether interpreters who translate at police interrogations are subject to the Confrontation Clause. Part III of this Note explains why the language conduit-agency theory is inherently incompatible with the Confrontation Clause and why the government should have to call the interpreter who translated a defendant’s statements at a police interrogation to the stand if it wants to introduce the interpreter’s …

Razor Slashed Prices: The Applicability Of Patent Exhaustion To Sales For Below Cost, Daniel Huttle

St. John's Law Review

(Excerpt)

This Note addresses whether this expansion of patent exhaustion is necessary or justified. Part I provides a background on the relevant doctrines and concepts implicated by the LifeScan decision. This Part begins with a discussion on the history and development of the patent exhaustion doctrine under the common law. This Part also introduces the antitrust concept of tying and how it relates to patent misuse. Part II considers whether patent exhaustion should be applied to both goods distributed for no cost and goods sold below the cost to produce. Part III analyzes the anticompetitive potential of refusing to extend …

Valdez V. City Of New York: The "Death Knell" Of Municipal Tort Liability?, Alisa M. Benintendi

St. John's Law Review

(Excerpt)

This Note contends that the Court of Appeals erred in narrowing the scope of municipal tort liability in Valdez. Focus is on the Court of Appeals’ affirmation of its regressive analysis in McLean v. City of New York and mistaken reliance upon its earlier decision in Cuffy v. City of New York. To illustrate the Court of Appeals’ unwavering adherence to Valdez, this Note examines the court’s decisions in Metz v. State and Coleson v. City of New York. Part I discusses the history and purpose of sovereign immunity from tort liability, New York’s waiver …

Postjudgment Cost Shifting: Electronic Discovery And 28 U.S.C § 1920(4), Samantha J. Kwartler

St. John's Law Review

(Excerpt)

This Note argues that the circuit courts should adopt a loose narrow interpretation of § 1920(4), like the Federal Circuit did in CBT Flint Partners, LLC v. Return Path, Inc., and tax only a limited number of the electronic discovery services rendered in document production. Part I of this Note examines § 1920(4)’s statutory history and its application in federal court. Part II discusses the varying approaches taken by each side of the circuit split. Finally, Part III argues for implementation of a loose narrow interpretation because it more appropriately comports with other provisions of the Federal Rules …

Let The Judge Speak: Reconsidering The Role Of Rehabilitation In Federal Sentencing, Madeline W. Goralski

St. John's Law Review

(Excerpt)

This Note contends that the importance of rehabilitation as a valid and necessary principle of punishment is overlooked in § 3582(a) of the SRA and further argues that a judge should be permitted to consider rehabilitation when deciding to sentence a defendant to a term of imprisonment, so long as rehabilitation is not a dominant factor in coming to that decision. Part I outlines the principles of punishment and the rise and decline of the rehabilitative system of punishment in the United States. It also discusses the importance of rehabilitation and how society could benefit from a system that …

Triggerman: Maintaining The Distinction Between Deliberate Violence And Conspiracy Under The Armed Career Criminal Act, Elizabeth A. Tippett

St. John's Law Review

(Excerpt)

This Note argues that conspiracies to commit violent felonies are not violent felonies under § 924(e)(2)(B)(i) because, while criminals may participate in conspiracies in the hopes of accomplishing the underlying offense, conspiracies are distinct crimes and do not categorically have elements of threatened, attempted, or actual use of physical force. Part I of this Note describes relevant legal history behind the ACCA, the applicable law, and the process courts use to determine whether criminals are subject to the fifteen-year mandatory minimum. Part II analyzes the approaches represented in the circuit split. Part III demonstrates how relevant legislative history, case …

A Case For Weakening Patent Rights, Lucas S. Osborn, Joshua M. Pearce, Amberlee Haselhuhn

St. John's Law Review

(Excerpt)

In Part I, this Article introduces the new and emerging technologies, including the Internet, cloud computing, three-dimensional (“3D”) printing, and synthetic biology, which will bring this radical change. Part II provides an overview of the innovation cycle, including the stages of basic research, inventing and prototyping, product development, marketing, and distribution. It also describes, in detail, how these new technologies are dramatically lowering the costs and risks of all stages in the innovation cycle.

Part III considers how lawmakers might adapt patent law to account for the new age of innovation and its lower costs of innovation. This Article …