Digital Commons Network^™

The Case Against Income Tax Exemption For Nonprofits, Michael Fricke

St. John's Law Review

(Excerpt)

In order to discuss the current state of affairs in the nonprofit world, Part I of this Article addresses how nonprofits are treated under the law and the various income tax exemption defenses that have been proffered over the years. Then, Part II investigates the problems raised by organizations that take advantage of their tax exemption, but decline to use their revenue for their exempt purposes. This problem has been addressed infrequently in academic literature, but Part III reviews other proposed reforms that might affect this issue. Part IV lays out the proposed solution, and Part V examines the …

Copyrightability Of Leed-Certified Buildings: Approaching The Awcpa To Promote Green Architecture, Stephen Accursio Maniscalco

St. John's Law Review

(Excerpt)

Part I of this Note discusses green architecture, the history and structure of the LEED certification system, and the history and structure of the AWCPA. Part II discusses the approaches courts have taken in applying the AWCPA. Finally, Part III explores ways that LEED may affect courts’ analyses. It explains why and how courts may deny copyright protection in many elements of LEED-certified architectural works. It then proposes a reading of the AWCPA that will provide appropriate copyright protection to green buildings that are original in design. This Note argues that courts should not consider green market demands, the …

Putting The "Remedy" Back In The International Child Abduction Remedies Act - Enforcing Visitation Rights For The Left Behind Parent, Nicole Clark

St. John's Law Review

(Excerpt)

This Note argues that the Second Circuit’s approach is more consistent with the aims of the Hague Convention and the needs of children than the Fourth Circuit’s approach and that ICARA does confer jurisdiction upon federal courts to adjudicate claims for the enforcement of visitation rights under the Hague Convention. Part I discusses the background of the Hague Convention and ICARA and how visitation rights fit into each. Part II discusses the split between the Fourth Circuit and the Second Circuit regarding whether ICARA confers jurisdiction upon federal courts over claims for the enforcement of visitation rights. It further …

Out On A Limb: Support For A Limited Version Of Collective Scienter, Matt Mccabe

St. John's Law Review

(Excerpt)

This Note argues that the correct approach to imputing scienter to a corporation by means of the collective scienter theory is through the absurdity analysis taken by the United States Court of Appeals for the Seventh Circuit.

The Strange Career Of Title Vii's § 703(M): An Essay On The Unfulfilled Promise Of The Civil Rights Act Of 1991, Jeffrey A. Van Detta

St. John's Law Review

(Excerpt)

The 1991 CRA, then, held great promise when it responded to the provocation of Price Waterhouse v. Hopkins to address a larger problem—the problem that Francis Vaas identified in 1966. However, the often-invoked canon of statutory construction—start and stop with the text unless it is necessary to go to the legislative history to figure out what an ambiguous text means—has been tossed to the side, and the contextual history of overruling Price Waterhouse has been invoked by normally textualist judges who refuse to believe that Congress actually meant what it wrote. It is upon that sobering reality that we …

It Is Political: Using The Models Of Judicial Decision Making To Explain The Ideological History Of Title Vii, Kate Webber

St. John's Law Review

(Excerpt)

In Part I, this Article details the key features of Title VII’s history, explaining the statute, the significant role the Supreme Court has played in its interpretation, and the history of congressional intervention to override Supreme Court decisions on key issues. Part II reviews the existing evidence for and against an ideological interpretation of Title VII’s case law. Part III introduces the political science models of judicial decision making and applies the models to Title VII. Part III also details the models’ evidence of ideological voting by the Supreme Court and matches this evidence with voting patterns in Title …

Title Vii At 50: The Landmark Law Has Significantly Impacted Relationships In The Workplace And Society, But Title Vii Has Not Reached Its True Potential, Cynthia Elaine Tompkins

St. John's Law Review

(Excerpt)

This Article’s historical chronicle provides a valuable backdrop for an examination of Title VII. Part II analyzes Title VII’s impact on race relations in the workplace and society. While progress has been made in the effort to provide equal opportunities for all workplace employees, Title VII legislation has not eliminated employment discrimination. As Title VII marches toward its sixtieth anniversary, this Article’s final section, Part III, reviews unconscious bias and other current challenges preventing Title VII from reaching its true potential.

The Influence Of Justice Thurgood Marshall On The Development Of Title Vii Jurisprudence, Wendy B. Scott, Jada Akers, Amy White

St. John's Law Review

(Excerpt)

This Article highlights Justice Marshall’s influence on the development of Title VII jurisprudence. Part I presents a brief overview of Justice Marshall’s personal and professional life before becoming a Justice to show how his experience influenced the development of his judicial philosophy. Part II summarizes the Court’s approach to some of the issues left unresolved by Congress in the initial passage of Title VII. Specifically, it explores how the Court determined what would constitute a violation of Title VII and standards of pleading and proof. Part III examines the changes in the Court’s jurisprudence before Justice Marshall retired from …

Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute?, Marcia L. Narine

St. John's Law Review

(Excerpt)

This Article provides a blueprint for how Congress can accept Justice Ginsburg’s challenge to protect workers, particularly in precarious economic times when employees cannot easily switch jobs and in an era in which the vast majority of workers do not have the protection of a collective bargaining agreement. Not only should Congress redefine “supervisor,” but Congress should also consider a related underlying factor that was not raised in the Vance case—the issue of workplace bullying. If workplace bullying were a viable cause of action, Maetta Vance likely would have prevailed in a state that entitled her to relief because …

The Future Of Workplace Affirmative Action After Fisher, Rebecca K. Lee

St. John's Law Review

(Excerpt)

The Supreme Court’s decision on race-conscious affirmative action in Fisher, along with the Fifth Circuit’s ruling in Fisher on remand, importantly preserves the validity of affirmative action programs in state decisionmaking if the programs meet certain criteria under strict scrutiny and satisfy full judicial review. Although Fisher arose in the higher education context, its application extends to the public setting more generally and thus would also apply to the public sector workplace under the Constitution, making it permissible for public sector employers to use race-conscious affirmative action in hiring and promoting employees. The approach taken in Fisher also …

In Defense Of Mcdonnell Douglas: The Domination Of Title Vii By The At-Will Employment Doctrine, Chuck Henson

St. John's Law Review

(Excerpt)

The purpose of this Article is to describe the actual relationship between the Doctrine and Title VII as implemented in the Court’s disparate treatment decisions. Title VII and the Doctrine are not separate forces warring with each other. The at-will employment doctrine guided the Court’s Title VII disparate treatment jurisprudence, giving the maximum possible latitude to employers because that was the Eighty-eighth Congress’s intent.

Past As Prologue In The Affirmative Action Jurisprudence Of The Supreme Court: Reflections On Fisher V. University Of Texas At Austin And Schuette V. Coalition To Defend Affirmative Action, David L. Gregory, Sarah Mannix

St. John's Law Review

(Excerpt)

This Article critically analyzes the dimensions and likely ramifications of Fisher and Schuette. The principle of pragmatic political proportionality eschews the wholly ideological extremist views that would either utterly vitiate affirmative action or deeply embed it as a substantially obsolete elitist residue of endless recalibrating. Instead, this Article subscribes to Lincolnian practical wisdom supplemented with a healthy dose of plain common sense. Enlightened political leadership should seek achievable pragmatic proportionality as the guiding principle controlling access to public institutions of higher education and, consequently, entry into the professions.

Debunking Unequal Burdens, Trivial Violations, Harmless Stereotypes, And Similar Judicial Myths: The Convergence Of Title Vii Literalism, Congressional Intent, And Kantian Dignity Theory, Peter Brandon Bayer

St. John's Law Review

(Excerpt)

The line of argument is not complex. Part I explicates the unequal burden doctrine and its link to the predecessor theory of “mutable characteristics.” Part II offers the aforementioned statutorily formal argument, disproving unequal burden theory through an examination of Title VII’s plain language and structure in light of modern Supreme Court precedents addressing Title VII’s ban against stereotyping. This analysis places special emphasis on 42 U.S.C. § 2000e-2(m), in which Congress clarified that plaintiffs prevail when discriminatory animus merely is a “motivating factor” rather than the “but-for cause” of the defendants’ conduct.

Although not the lengthiest discussion herein …

Values, Questions, And Methods In Intellectual Property, Jeremy N. Sheff

St. John's Law Review

(Excerpt)

Intellectual property (“IP”) scholarship has a unique distinction among legal academic disciplines: some of its practitioners question whether the subject of their study ought to exist. We should pause to consider how remarkable this is. Constitutional law scholars usually do not question whether political communities should be governed by constitutions. Criminal law scholars generally accept that the state ought to be able to define and punish crimes. Contract law scholars do not question that some promises should be enforceable in court. To be sure, in each of these disciplines there are hotly debated questions over the appropriate scope and …

Protecting The Consumer: Ensuring Uniformity In The Federal Courts When Named Plaintiffs Assert Claims Against Unpurchased Products, Michael G. Lewis

St. John's Law Review

(Excerpt)

This Note determines that whether a named plaintiff has standing to assert claims relating to unpurchased products is a question of class standing and is therefore a question for the Rule 23 class certification stage of litigation. However, in certain situations, a named plaintiff’s claims against unpurchased products should not survive a defendant’s motion to dismiss. Accordingly, this Note proposes a test to determine when the claim should survive. At the motion to dismiss stage of litigation, a named consumer protection class action plaintiff’s claims relating to products purchased by unnamed members of the putative class should survive defendant’s …

Can You Understand This Message? An Examination Of Hurley V. Irish-American Gay, Lesbian & Bisexual Group Of Boston's Impact On Spence V. Washington, Sandy Tomasik

St. John's Law Review

(Excerpt)

This Note analyzes the effect that Hurley had on the Spence factors and suggests that the particularized requirement has been lowered. This is the best approach to encouraging speech while balancing other important interests. Part I discusses the development of the freedom of speech, from protecting the spoken and written word to protecting expressive conduct. Part II outlines the different approaches taken by the circuit courts in deciding whether conduct is protected as speech and, in particular, what effect Hurley had on Spence. Part III critically analyzes each of these approaches and concludes that the Eleventh Circuit’s approach …

Breaking Bad Science: Due Process As A Vehicle For Postconviction Relief When Convictions Are Based On Unreliable Scientific Evidence, Vincent P. Iannece

St. John's Law Review

(Excerpt)

This Note argues that due process requires a new trial when scientific evidence necessary to the conviction becomes so unreliable as to call the validity of the jury’s verdict into question. Part I of this Note discusses how scientific evidence is admitted, the procedure for a convicted defendant’s postconviction relief once that evidence is deemed unreliable, and the constitutional protections that a convicted defendant is afforded under the Due Process Clause of the Fourteenth Amendment. Part II of this Note examines the divide among appellate courts as to whether the Due Process Clause requires a new trial when a …

Culture Shifting At Warp Speed: How The Law, Public Engagement, And Will & Grace Led To Social Change For Lgbt People, Stacey L. Sobel

St. John's Law Review

(Excerpt)

This Article concludes that in order for culture shifting to occur, there has to be active engagement in advocacy on multiple fronts. The pace of cultural change would have been significantly slower if advocates had not pursued litigation, legislation, and public engagement strategies. Rule shifting and culture shifting would also have occurred more slowly but for the vigorous efforts of LGBT equality opponents. The competing advocacy efforts on both sides of LGBT issues have resulted in lawsuits and laws limiting the rights of the LGBT community in some instances and granting rights in others. These advocacy efforts created a …

The Justice Element Of Promissory Estoppel, Orit Gan

St. John's Law Review

(Excerpt)

The contribution of this Article is threefold. First, it critiques the current case law for ignoring and neglecting the justice element of promissory estoppel. This goes against the specific wording of section 90 of the Restatement (Second) of Contracts and also against promissory estoppel’s rationale and purpose. Contrary to this approach, this Article suggests a robust justice element based on a theory of distributive justice.

Second, a more robust justice element will make the doctrine of promissory estoppel more meaningful. This will result in better protecting reliance, furthering trust and cooperation among parties, empowering disadvantaged parties, and making the …

Marrying Up: The Unsettled Law Of Immigration Marriage Fraud And The Need For Uniform Statutory Guidelines, Michael Virga

St. John's Law Review

(Excerpt)

This Note argues that courts should interpret § 1325(c) as applicable to anyone who enters a marriage with any intent of evading immigration laws, regardless of any other underlying motivations. Part I examines the motivations for and prevalence of immigration marriage fraud, as well as the historical context in which the statute in question was drafted. Part II analyzes the unsettled landscape of § 1325(c)'s interpretation and application, in addition to the competing arguments for the respective tests. Part III argues for the universal adoption of the Evade the Law standard, premised on the need for plain meaning statutory …

Homosexuality In High School: Recognizing A Student's Right To Privacy, Bari Nadworny

St. John's Law Review

(Excerpt)

This Note argues that high school officials disclosing information about a student's sexual orientation without the student's permission is a violation of the student's constitutional right to informational privacy. Part I examines the Supreme Court's informational privacy jurisprudence. This Part also examines the circuit court opinions that have contributed to the law in this area regarding personal sexual matters. Part II examines the current split of authority between the Third Circuit Court of Appeals, which has held that such a privacy right exists, and the Fifth Circuit Court of Appeals, which has held that it does not. Part III …

Willful Ignorance, Culpability, And The Criminal Law, Alexander F. Sarch

St. John's Law Review

(Excerpt)

The overriding aim of this Article is to shore up the normative basis for the willful ignorance doctrine and to clarify what is needed to arrive at a version of this doctrine that adequately respects its normative foundations.

Death Of A Salesman: The Rise & Unfortunate Potential Demise Of The Full-Time Life Insurance Salesman, Robert M. Rosh

St. John's Law Review

(Excerpt)

This Article traces the economic and regulatory rise and potential future regulatory demise of the full-time life insurance salesman. It outlines why these salesmen and many of the products that they offer are beneficial to American society, and why public policies should promote both the profession and the products sold by full-time life insurance salesmen. Finally, it suggests some modest regulatory reforms that would promote life insurance sales and the salesmen who make them.

Professional Responsibility And Liability Aspects Of Vereins, The Swiss Army Knife Of Global Law Firm Combinations, Douglas R. Richmond, Matthew K. Corbin

St. John's Law Review

(Excerpt)

Looking ahead, Part II of this Article provides a general overview of the verein model and its governing charter. Part III highlights a variety of ethical considerations for lawyers in verein member firms that are subject to ethics rules based on the Model Rules of Professional Conduct. These include lawyers' obligation to communicate to clients the relationships between the verein and its member firms, the imputation of conflicts of interest between member firms, and fee-splitting among member firms. Part IV discusses previous efforts to hold vereins and their member firms vicariously liable for the misconduct of another member firm. …

The Constitutionality Of Lengthy Term-Of-Years Sentences For Juvenile Non-Homicide Offenders, Rebecca Lowry

St. John's Law Review

(Excerpt)

Part I discusses the development of the Court's ' kids are different" decisions. Part II argues that the rationale behind Graham applies not only to life-without-parole sentences but also to lengthy term-of-years sentences for juvenile non-homicide offenders. Part III suggests a constitutional mandate as to when states must provide a meaningful opportunity for release and explores other legislative action states can employ to comply with Graham.

Suspicious Suspect Classes - Are Nonimmigrants Entitled To Strict Scrutiny Review Under The Equal Protection Clause?: An Analysis Of Dandamudi And Leclerc, John Harras

St. John's Law Review

(Excerpt)

Part I of this Note provides the background necessary to understand the different alienage classifications, equal protection jurisprudence, and the confusion in the Supreme Court's alienage equal protection precedent. Part II describes the differences of opinion among the circuit courts on the application of the Equal Protection Clause to nonimmigrants. Part III argues, in greater detail, that nonimmigrants are not a suspect class for the reasons stated above.

A Picture Says A Thousand Words: Applying Foia's Exemption 7(C) To Mug Shots, Rebecca Rosedale

St. John's Law Review

(Excerpt)

This Note argues that Exemption 7(C) of the Freedom of Information Act ("FOIA"), which exempts from disclosure information compiled for law enforcement purposes that "could reasonably be expected to constitute an unwarranted invasion of personal privacy," should be categorically applied to mug shots. Part I of this Note explores the recognition of a privacy right and the regulation of public records in the United States, with a focus on FOIA. Part II discusses the conflicting viewpoints held by the circuit courts that have decided whether or not Exemption 7(C) applies to mug shots. Each court analyzed whether a personal …

Let Ghosts Be Ghosts, Toni L. Mincieli

St. John's Law Review

(Excerpt)

Part I of this Note discusses the rise of pro se status in civil matters, specifically in immigration proceedings, and how courts and the legal community have responded with limited scope representation, including ghostwriting. Part II discusses in detail the controversy surrounding ghostwriting. It also illustrates how ghostwriting is, fortunately, beginning to gain acceptance. Lastly, Part III urges the acceptance of ghostwriting in immigration proceedings. It explains why ghostwriting is essential to immigrants and how the arguments put forth against the practice are not applicable to immigration proceedings.

Constitutional Remedies: Reconciling Official Immunity With The Vindication Of Rights, Michael L. Wells

St. John's Law Review

(Excerpt)

Part I makes the crucial point that compensation is a tool and not a distinct goal of tort liability. With civil recourse theory as a guidepost, Part II argues that one of the aims of constitutional tort law is vindication of the plaintiffs rights. Civil recourse principles teach that vindication may be at least partly achieved even when immunity blocks compensation. Part III shows how the Court's failure to distinguish vindication from compensation has unnecessarily impeded the vindication of rights. Two important official immunity cases-Camreta v. Greene and Pearson v. Callahan -illustrate the missed opportunities and show how …

Decoupling The Law Of Will-Execution, Mark Glover

St. John's Law Review

(Excerpt)

This Article proceeds in four parts. Part I explains the context of reform, including the traditional law of will-execution, the criticism of strict compliance, and the reform movement. Next, by explaining the purpose of testamentary formality, Part II serves as the foundation for decoupling the analysis of will formalities from the analysis of strict compliance. Part III completes the process of decoupling the law of will-execution by examining the purpose of strict compliance. Finally, Part IV explores the implications that the recognition of the independent purposes of will formalities and strict compliance has for the law of wills. Specifically, …