Digital Commons Network^™

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 …

Devils And Angels Of Judicial Integrity, Joseph W. Bellacosa

St. John's Law Review

(Excerpt)

Judicial integrity and the highest standards of conduct are the bedrock principles for any respectable legal structure. History provides heroes who demonstrate punctilious adherence to, and villains who commit gross departures from, the sine qua nons needed for the achievement, or at least advancement towards the fair administration of the rule of law and ideals of justice.

Against this luminous light, a foreboding dark cloud sweeps over from recorded colonial history demonstrating judicial hubris and unbridled zealotry, employed in ways that instead serve personal and predetermined ends by questionable means, unleashed in the abyss of standards and values.

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 …

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 …

Private Solutions To Global Crises, Gregory R. Day

St. John's Law Review

(Excerpt)

The contribution of this Article is both theoretical and practical. Considering that MNCs rarely suffer liability abroad, this Article identifies an emerging, understudied type of international agreement able to hold MNCs responsible for torts in the developing world. On a theoretical level, the research herein identifies situations in which arbitral decisions are superior to judicial rulings. This Article also advances the private dispute resolution literature, which has developed slowly due to arbitration’s private and confidential nature. The works that do discuss arbitration overwhelmingly assume that the process favors corporations, rarely mentioning arbitration’s socially desirable qualities. Thus, this Article offers …

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 …

"No Harm, Still Foul": Unharmed Creditors And Avoidance Of A Debtor's Pre-Petition Transfer Of Exemptible Property, Alyssa Pompei

St. John's Law Review

(Excerpt)

This Note sides with the “no harm, no foul” approach in this debate, arguing that bankruptcy courts should not avoid prepetition transfers of otherwise exempt property under § 548 simply because an exemption was not actually taken and the transfer was instead the alternative path used to shield the property from collection. Part I of this Note explains the constructive fraud and exemption provisions of the Bankruptcy Code, including state opt-out provisions which are particularly applicable to this issue. Part I also discusses the legislative history of federal bankruptcy law with particular focus on the creation of the Bankruptcy …

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 …

When The Court Makes Title Vii Law And Policy: Disparate Impact And The Journey From Griggs To Ricci, Ronald Turner

St. John's Law Review

(Excerpt)

This Article focuses on judicial lawmaking and policymaking in an important area of antidiscrimination law—Title VII of the Civil Rights Act of 1964’s regulatory regime. As enacted in 1964, Title VII only prohibited intentional employment discrimination on the basis of race, color, religion, sex, or national origin. The statute requires a finding that an employer “has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint.” “[Such] ‘disparate treatment’ . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others . . . …

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 …

Bringing More Finality To Finality: Conditional Consent Judgments And Appellate Review, Thomas A. Engelhardt

St. John's Law Review

(Excerpt)

Part I provides background on finality, including an overview of the final judgment rule and other statutory grants of appellate jurisdiction. Part I then discusses consent judgments, including conditional consent judgments. Part II examines the circuit splits with respect to issues of finality and the appealability of consent judgments that reserve a right to appeal. Part III presents arguments for and against strict interpretation and application of the finality requirement regarding consent judgments. Part IV argues for resolving the controversy by adopting a standard by which appellate courts uniformly recognize a consent judgment’s reservation of a right to appeal …

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 …