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 …

Hiding Behind The Veil Of Ambiguity: Why Courts Should Apply The Plain Meaning Of The Dodd-Frank Whistleblower Provisions, Daniel Gilpin

St. John's Law Review

(Excerpt)

This Note argues that a plain reading of the statute—as championed by the Fifth Circuit—is correct in that an individual qualifies as a whistleblower only when she reports a violation to the SEC. Part I provides a history and background of modern antiretaliation whistleblower legislation. Part I also discusses the circumstances surrounding the passage of Dodd-Frank, the text of the whistleblower provisions, and the relevant SEC regulations. Part II outlines the recent case law on the issue of who qualifies as a Dodd-Frank whistleblower. Part III argues that only individuals who report to the SEC qualify as Dodd-Frank whistleblowers …

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 …

Against Utilitarian Fundamentalism, Robert P. Merges

St. John's Law Review

(Excerpt)

I make three points in this Essay. First, that the idea of “faith-based IP” is misleading. The thrust of the “faith-based” critique is that (1) nonempirical reasoning is inherently suspect; (2) any theory that is not strictly empirical is based on fundamental commitments that are resistant to counterarguments, particularly empirically based counterarguments; and (3) as a consequence, nonempirically based theories of IP are beyond the pale of scholarly discourse, because those who advocate these theories operate in the realm of religious belief—“faith,” in its pejorative sense—rather than hard-headed reason. I counter each of these points and argue that the …

What Is Ip For? Experiments In Lay And Expert Perceptions, Gregory N. Mandel

St. John's Law Review

(Excerpt)

This Essay develops in three parts. Part I explores the incentives, natural rights, and expressive bases for IP law as well as the implications of these bases for creators and users of IP works. Part II reports the results of several studies on IP perceptions among lay individuals and IP attorneys. Part III discusses the implications of the results for the functioning and the perceived legitimacy of the IP system.

A Crisis Of Faith & The Scientific Future Of Patent Theory, Oskar Liivak

St. John's Law Review

(Excerpt)

The current reward via exclusion framing is deeply problematic. Once we start down that road, where the very purpose is to distort private decision making, we have sealed our fate and we are heading for unresolvable indeterminism. Our inability to prove or disprove the utilitarian balance for such a system was preordained by our framing. With “artificial” inducement as the stated goal, important utilitarian metrics are taken off the table. The price system is not available to measure and justify the patent system because we have purposefully distorted it. It is no wonder that patent controversy has not been …

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 …

Copyright And Cognition: Musical Practice And Music Perception, Olufunmilayo B. Arewa

St. John's Law Review

(Excerpt)

Beyoncé’s release raises questions concerning the adequacy of common narratives about the music industry, consumers, and creators in the digital era, as well as dominant assumptions about musical practice. Changing music industry digital era landscapes also have implications for intellectual property frameworks, which touch upon many aspects of industry practice in addition to consumer and creator access. Many have emphasized the threat of unauthorized uses to argue for stronger intellectual property protection. This Essay uses current digital era debates about music creation and consumption as a starting point to consider underlying dominant assumptions about musical practice and the implications …

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 …

A Balancing Act: Fourth Amendment Protections And The Reasonable Scope Of Government Investigatory Access To E-Mail Accounts, Joseph P. Gryzlo

St. John's Law Review

(Excerpt)

Part I of this Note examines the Fourth Amendment particularity requirement, explains how it relates to the breadth of probable cause, and surveys how these concepts have been applied in the electronic context. Part II assesses the issue of the breadth of probable cause regarding e-mail accounts in particular and reviews the different approaches the district courts have taken in addressing this issue, as well as other proposed solutions that may be implemented in accordance with these approaches. Lastly, Part III proposes a resolution to the controversy, balancing the competing interests of privacy and the government’s investigatory needs, and …

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 …

Community Rights To Public Art, Cathay Y. N. Smith

St. John's Law Review

(Excerpt)

Property owners generally have the right to destroy their own property. This Article argues, however, that certain property is so connected to a community’s identity that the community’s right to preserve its heritage may trump a property owner’s right to destroy. This Article explores existing, yet underutilized, legal solutions a community may use or adapt to preserve public art when that art has become a part of its cultural heritage. Finally, recognizing that preservation has its limits, and that without destruction there will be no space for creation, this Article ultimately sets forth some questions that present challenges to …

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 …

Transformativeness In The Age Of Mass Digitization, Marie-Alexis Valente

St. John's Law Review

(Excerpt)

This Note examines and ultimately argues against the expansion of transformativeness in verbatim-copying cases, given the implications it will have as more copyrighted works are digitized. Part I discusses the background and objectives of the Copyright Act, the fair use exception, and the rise of the transformativeness subfactor. Part II provides a summary of some predigitization fair use cases to establish some basic principles about how courts have ruled on transformativeness. Part III examines relevant cases recently decided on the question of transformativeness in the context of mass digitization. Part IV critiques the ways courts have arrived at their …

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 …

The Preclusion Of § 1983 Claims By The Age Discrimination In Employment Act Following Hildebrand V. Allegheny County, Erin L. Donnelly

St. John's Law Review

(Excerpt)

This Note maintains that the Supreme Court should resolve the circuit split by affirming the Hildebrand court’s decision. Part I of this Note discusses the background of the ADEA and § 1983, including each legislation’s purpose, legislative history, and provisions. Part I concludes with a discussion of the doctrine of implied preclusion. Part II presents the circuit split by discussing the way the courts have analyzed this issue prior to Fitzgerald and how subsequent courts have decided the issue in light of Fitzgerald. Part III asserts that the ADEA precludes equal protection claims through § 1983 because of …