Digital Commons Network^™

Doubting Thomas And Questioning Stare Decisis Under The Roberts Court, Wilfred U. Codrington Iii

St. John's Law Review

(Excerpt)

“[S]tare decisis is ‘not an inexorable command.’ ” Frankly, every time I read these words in a judicial opinion of late, I shudder. And, in fact, it seems like I am reading these words— and shuddering—with increasing regularity.

First off, of course it is not. At times, the Supreme Court has sanctioned manifest injustices in the law. The prime example is the Court’s 1896 decision in Plessy v. Ferguson, which sustained racial segregation under the Fourteenth Amendment. With the blessing of the judiciary, this interpretation of the Reconstruction Constitution supported a regime of racial segregation until, more than …

On Stealth Overruling, Tyler Rose Clemons

St. John's Law Review

(Excerpt)

From Loper Bright v. Raimondo to Dobbs v. Jackson Women’s Health Organization, the Roberts Court has shown itself more than willing to overturn longstanding pillars of American jurisprudence explicitly. While such cases and other pathbreaking opinions have understandably garnered the lion’s share of attention, the Court has also demonstrated an increased willingness to tweak, modify, or even functionally overrule doctrines without expressly stating that it is doing so. I call this phenomenon “stealth overruling.”

A Conversation About Stare Decisis, The Honorable Debra Ann Livingston, John Q. Barrett

St. John's Law Review

(Excerpt)

John Q. Barrett (“JQB”)

Chief Judge Debra Ann Livingston, welcome back to St. John’s.

The Chief Judge has been a friend to us for many years. It is an honor to host someone of her talent and someone in her position: the Chief Judge of the U.S. Court of Appeals for the Second Circuit.

We’re going to have a conversation for the first part of the program, about judging, her work, and stare decisis.

But first, we need to meet you and hear a little bit about your background—where you are from—and the path that took you to the …

Taking Stock Of Stare Decisis, St. John's Law Review Editorial Board

St. John's Law Review

(Excerpt)

This issue of the St. John’s Law Review contains remarks first presented at the Law Review’s Spring 2025 symposium. In A Conversation About Stare Decisis, St. John’s University School of Law Professor John Q. Barrett is in conversation with Hon. Debra Ann Livingston, Chief Judge of the United States Court of Appeals for the Second Circuit, about what stare decisis means to her and how the doctrine guides her judging. This is then followed by Essays from a diverse group of constitutional law scholars on the state of stare decisis. Finally, in Cross-Talk, the essayists have a …

A Rendezvous In Outer Space Law: The Challenge Of Establishing Binding Regulations For Dual-Use Capabilities, Chelsea Merrill

St. John's Law Review

(Excerpt)

When the Soviet Union launched Sputnik in 1957, it was not only a significant leap forward in the Space Race with the United States, but also the catalyst for a series of international treaties that would serve as the foundations of outer space law. In the last decade, the world has seen similar technological leaps in the commercial sector. Elon Musk’s SpaceX has launched spacecraft with all civilian crews while Jeff Bezos and Richard Branson aim to expand the market for commercial space flights. Lockheed Martin is one of many companies looking to offer commercial services for maintaining satellites …

Ai Inventorship: Recognizing The True Inventors Requires Change, Nicholas Scambia

St. John's Law Review

(Excerpt)

The Analytical Engine was conceived almost two hundred years ago—a general-purpose programmable computing engine which had essential features resembling a modern-day computer. While truly a marvel for its time, the Analytical Engine lacked the ability to perform functions on its own, as it was only able to do tasks for which it was programmed.

Today, artificial intelligence (“AI”) has become increasingly popular and powerful and is projected to keep growing. AI demonstrated its autonomous strength to the whole world on national TV when IBM’s Watson competed on Jeopardy!, beating the game show’s legends Ken Jennings and Brad Rutter. Since …

Barred From The Profession, Mischaracterized As Unfit By Law, Julia Mizutani

St. John's Law Review

(Excerpt)

There is growing recognition that the bar examination can have racial and social effects when determining who can be an admitted and barred attorney in the United States. This Essay explores the history and current racialized issues with the other portion of bar admission—the character and fitness process. The simultaneously rigid and fluid definition and subjective enforcement of “good moral character” is only one example of how the law continues to reproduce and maintain racial and class hierarchy by creating barriers to entry. This Essay does not come to any direct conclusions or specific solutions. This Essay is a …

Do You Know Where Your Trademark Is? How The Fourth Circuit’S Interpretation Of The Anticybersquatting Consumer Protection Act Correctly Protects Trademark Owners Online, Alexa Blandeburgo

St. John's Law Review

(Excerpt)

This Note argues that the Fourth Circuit correctly held that “registration” encompasses both the initial and subsequent registration of a domain name under the ACPA. The Ninth Circuit’s narrow interpretation oversimplified the complexity of domain name ownership and thereby created a narrow loophole for cybersquatters to evade liability. Part I of this Note provides an overview of cybersquatting and the statutory framework that practitioners used prior to the enactment of the ACPA. Part II of this Note compares the ACPA and the UDRP and why a trademark owner would choose one avenue for relief as opposed to the other. …

Lie-Ability: A Technical Analysis Of The Application Of Section 230 Immunity To Chatbot Outputs, Abigail Drummond

St. John's Law Review

(Excerpt)

This Note argues that under the material contribution test for determining service provider liability under Section 230(c), software developers are likely covered under the CDA for civil and criminal liability for chatbot and other generative AI outputs. Part I will review the legislative purpose and subsequent case law of Section 230(c) of the CDA. Part I will also discuss the material contribution test, the prevailing standard for determining service provider liability developed by the Ninth Circuit and generally adopted across federal courts. Part II will provide an overview of how chatbots work and present the state of chatbot regulation …

The Missing Caselaw Of Reverse-Payment Settlements, Michael A. Carrier, Edward Bank

St. John's Law Review

In 2013, the Supreme Court issued one of the most important antitrust rulings in the past generation. In FTC v. Actavis, the Court held that agreements by which brand drug firms pay generics to delay entering the market could violate antitrust law.

Some have criticized the Court for not providing sufficient guidance on the type of analysis courts should apply to settlements involving “reverse payments” (in which patentees pay infringers to delay entry in contrast to more typical agreements by which alleged infringers pay patentees to enter). For example, in his dissent in Actavis, Chief Justice Roberts wrote: …

Guaranteeing The Press, Jacob M. Schriner-Briggs

St. John's Law Review

A vibrant press is vital to meaningful self-government. Indeed, the indispensability of investigative journalism to democracy raises the stakes of the news industry’s ongoing collapse. Many of the country’s most prominent outlets are shedding jobs as local operations shutter entirely. The downstream effects of this market contraction frustrate the informed exercise of popular sovereignty.

Because journalism is a public good in the economic sense, the state must intervene to provision it. To this end, scholars have generally endorsed one of two legal bases for government action. The first argues that the First Amendment can constitutionalize press-favoring market interventions. The second …

Gender Sidelining In Schools And The Scourge Of Single Sex School Leadership, Kelley King, Jessica Fink

St. John's Law Review

Concerns about unequal gender representation have plagued virtually every workplace in recent decades. In countless professions, even those in which women comprise a majority of the workforce, leadership positions are dominated by men. Often, the inability of women to rise within the professional hierarchy stems not only from overt acts of sex discrimination, but also from more subtle and nuanced bias in the workplace—bias referred to in other research as “gender sidelining.” This sidelining seems particularly paradoxical when it arises in professions in which women already have been funneled due to their gender—including the education sphere. In this way, the …

West Virginia’S Major Questions: Agency Deference, Nondelegation, And The Epa, Julian Klein

St. John's Law Review

(Excerpt)

In the landmark case Chevron v. Natural Resources Defense Council, the Supreme Court established that deference is shown to an agency’s reasonable construction of a statute where Congress has not directly addressed the precise issue. Since the 1984 decision, the Supreme Court had consistently applied the Chevron standard to EPA actions. It was not until West Virginia that the Court invoked the seldom used major questions doctrine to determine whether the EPA’s actions were legal.

This Note will explore key issues arising from the Court’s recent decision in West Virginia, including the major questions doctrine and its …

Get Educated: Ask, Tell, And Say Gay, Matthew Oster

St. John's Law Review

(Excerpt)

On July 6, 1999, Private Barry Winchell was murdered in his sleep by a fellow soldier for dating a transgender woman. Superiors were aware that Private Winchell was being harassed for dating a transgender woman but took no action to stop it. U.S. Department of Defense Directive 1304.26, commonly referred to as “Don’t Ask, Don’t Tell” (“DADT”), was the policy for the United States military for nearly two decades beginning in 1993. A policy meant to protect “unit cohesion” instead itself engendered hatred and violence among servicemembers. Unfortunately, government-sanctioned discrimination against the LGBTQ+ community did not end with the …

Regulatory Personhood: The Elixir For Redundancy Between The Sec And The Pcaob, Sarah J. Williams

St. John's Law Review

(Excerpt)

This Article analyzes enforcement activity against public company auditors during the agencies’ coexistence for the purpose of unmasking the alleged villainous duplication, budgetary waste, and agency in-fighting that was purportedly created by Congress when it endowed the PCAOB with enforcement powers already existing in the SEC’s arsenal. The Article examines enforcement cases brought by the SEC and the PCAOB against accounting firms and accountants associated with such firms that relate to poor performance in conducting public company audits during the period in which both agencies were in existence. Such research bears upon the effectiveness of the current system of …

Power, Responsibility, And Judicial Deference To Police Expertise In Fourth Amendment Decisionmaking, Nicholas A. Kahn-Fogel

St. John's Law Review

(Excerpt)

Courts have long deferred to police expertise in Fourth Amendment decisionmaking, most prominently in their application of the reasonable-person standard in assessments of probable cause and reasonable suspicion. Scholars have often bemoaned such deference as an abdication of the judicial obligation to make independent determinations of Fourth Amendment reasonableness. Nonetheless, the Supreme Court of the United States and lower courts are unlikely to abandon their view of police officers as possessing elevated knowledge, skill, experience, and perceptual abilities that merit judicial consideration in the evaluation of Fourth Amendment probabilities. On the other hand, the Court has tended to assume …

Post West Virginia V. Epa The Administrative State’S Door Is Still Ajar, Jaclyn Lopez

St. John's Law Review

(Excerpt)

The Supreme Court’s decision in West Virginia v. EPA, which carves out a new rulemaking standard for Congress and federal agencies, may be as significant for its articulation of the Major Questions Doctrine (“MQD”) as it is for its treatment of Article III standing and jurisprudential mootness. This Essay examines lower courts’ subsequent treatment of West Virginia v. EPA to add dimension to the inquiry of whether the new MQD has upended the administrative state or if it is merely another arrow in the quiver for judges that prefer a weaker federal government or nondelegation altogether. It also …

A More Modest Major Questions Doctrine Rooted In The Appointments Clause, Yonatan Gelblum

St. John's Law Review

(Excerpt)

In this Essay, I explore how this constitutional mandate might guide courts adjudicating disputes that arise when agencies interpret ambiguous statutes in a manner granting them powers beyond those expressly vested by Congress. In Part I, I explain when such agency assertions of authority may implicate Appointments Clause limits on office creation. I also demonstrate how the test of Shoemaker v. United States, which assesses whether expanding an officer’s authority creates a new office for Appointments Clause purposes by adding duties not “germane” to existing duties, provides a standard for judicial review of such claims. Agency claims to …

“Major Questions” Malarkey: An Arbitrary And Capricious New Doctrine For Vetoing Controversial Agency Rules, Lars Noah

St. John's Law Review

(Excerpt)

In 2022, after years of hinting at the idea, the United States Supreme Court officially adopted the “major questions” doctrine in West Virginia v. EPA. Commentators have already spilled plenty of ink trying to make sense of what this might portend, but so far seemingly everyone has accepted at face value the Court’s framing of the issue that it confronted in that case. This essay offers a slightly different perspective on the decision and suggests that closer attention to the precise nature of the question posed therein might reveal a distinctive flaw at the heart of the majority’s newfangled …

Climate Change, Democracy, And The Major Questions Doctrine, Joshua Ulan Galperin

St. John's Law Review

(Excerpt)

This brief Essay progresses in four parts. I will first argue that climate change is impacting the Court’s decisionmaking. Next, I will show that the significance of climate change as a modern political issue has caused the Court to downplay the statutory arrangement Congress created in the Clean Air Act. Third, I will suggest that the Court is not genuinely failing to appreciate the design of the Clean Air Act. Instead, the Court is aware of that design and feels the design goes beyond a constitutionally acceptable delegation of legislative power. Confronting the Nondelegation Doctrine head-on, however, would force …

Black Hole Of Administrative Law: The Threat Of An Ever-Expanding Major Questions Doctrine To The Judiciary, Fred B. Jacob

St. John's Law Review

(Excerpt)

Below, this essay explores how an aggressive major questions doctrine could extend its reach to judicial interpretation and the implications of doing so. Indeed, had the Court applied the major questions doctrine to its own judicial holdings in seminal cases such as Bostock v. Clayton County or Allen v. Milligan, it would have flunked. This is also true for West Virginia’s creation of the doctrine itself, which claimed newfound authority to transform administrative law despite Congress’s significant legislative attention to agency rulemaking.

Expansion of the major questions doctrine to cases arising in the courts’ original jurisdiction would …

Time Traveling With The Foreclosure Abuse Prevention Act: New York’S New Law And The Constitutionality Of Retroactivity, Jessica A. Dimattia

St. John's Law Review

(Excerpt)

This Note argues that the Foreclosure Abuse Prevention Act should be interpreted to apply retroactively and that retroactivity is constitutional. Part I will survey the history of the foreclosure crisis that led to the abusive litigation tactics that made FAPA necessary. Part II will analyze the most notable provisions of FAPA which have given effect to the legislature’s intent in passing FAPA. Finally, Part III will examine the constitutionality of retroactive legislation and review the validity of arguments surrounding FAPA’s retroactivity

Who Gets The Short End Of The Stick?: The Impact Of The 2023 Merger Guidelines On Companies, Workers, And The Labor Market, Alfred J. Polizzotto

St. John's Law Review

(Excerpt)

This Note argues that although the introduction of additional criteria of analysis of a merger on the labor market is positive for consumers, workers, employees, and the overall public, the 2023 Guidelines insufficiently balance the effects of a merger for both workers and consumers and fail to consider all relevant factors within the labor market, such as inflation rates and distinguishing between wage and non-wage benefits. Instead, the 2023 Guidelines should balance the implications for each interested group to provide a more accurate decision as to the merits of a merger.

Part I of this Note will provide background …

Beyond The Sidelines: Recognizing A Coach’S Role In Sports Under New York’S Primary Assumption Of Risk Doctrine, Christopher J. Colbert

St. John's Law Review

(Excerpt)

This Note explores the New York Court of Appeals’s development of its primary assumption of risk doctrine. Ultimately, this Note argues that the New York Court of Appeals should adopt the Supreme Court of California’s recognition that the role of a coach is different than the relationship between coparticipants. Part I provides an overview of the origins of tort law in the sports context by examining New York and California’s common law assumption of risk doctrines. Part II analyzes how the New York Court of Appeals developed its primary assumption of risk doctrine differently than the Supreme Court of …

The Law And Ethics Of Ai Creativity, Haochen Sun

St. John's Law Review

(Excerpt)

This Article comprises three parts. In Part I, after demonstrating that creativity is a social process, I explore the ethical principles of originality, attribution, and authenticity of creative activities. In Part II, I scrutinize the opacity of AI systems in the collection, utilization, and generation of works, highlighting the need for a greater focus on the legal and social problems arising from these black box processes. Lastly, in Part III, I explore why the ethical principles of originality, attribution, and authenticity should govern AI creativity, and how they would lead to the adoption by AI companies of filtering and …

The Blockbuster Amendment To Cplr 2106 Permitting Any Person To Submit An Affirmation In Lieu Of An Affidavit, Patrick M. Connors

St. John's Law Review

(Excerpt)

Traditionally, the affidavit has been the foremost source of proof on motions in New York State courts. Effective January 1, 2024, New York Civil Practice Law and Rules (“CPLR”) 2106 was substantially amended to allow any person to submit an affirmation in lieu of an affidavit, “with the same force and effect.” This is the most significant change to the CPLR in the twenty-first century and will impact many areas of civil procedure.

As those who have already grappled with the amendment to CPLR 2106 know, there are now numerous issues relating to the legislation that will need to …

Fusing To Combat Slavery: Third-Party Politics In The Pre-Civil War North, Corey M. Brooks, Beau C. Tremitiere

St. John's Law Review

This Article examines how antislavery third parties used electoral fusion—the practice by which a candidate can appear as the nominee of multiple political parties—to mobilize antislavery political power in the 1840s and 1850s. Highlighting several striking and consequential examples of how Liberty, Free Soil, and early Republican partisans cross-nominated candidates also supported by another party, this Article sheds light on a pivotal chapter in the long and important history of this electoral tactic. The critical role electoral fusion played at key points in American political history casts further doubt on the legitimacy of contemporary state anti-fusion restrictions, whose constitutionality is …

The False Promise Of Breaking Patents To Lower Drug Prices, Adam Mossoff

St. John's Law Review

The Biden Administration, congressional leaders, and academic commentators have argued that patents cause high drug prices. They have proposed price controls as a solution. They allege that two federal statutes authorize the government to impose price controls on drug patents to lower drug prices: 28 U.S.C. § 1498 and the Bayh-Dole Act.

Neither § 1498 nor the Bayh-Dole Act authorize price controls on patents. Section 1498 is an eminent domain statute that applies only when a patent is used by and for the federal government, such for the military or by the U.S. Postal Service. The Bayh-Dole Act promotes the …

The Constitutional Problems With Delegating Legislative Power To College Sports, Sam C. Ehrlich

St. John's Law Review

(Excerpt)

Part I of this Article discusses the current landscape of college sports, discussing why the NCAA has sought federal litigation to better control the industry and what legislative efforts are underway to potentially grant those wishes. Part II then reviews case law that defines the contours of the private non-delegation doctrine, focusing on the Amtrak litigation and National HBPA and how those two strings of cases place NCAA-related legislative efforts in constitutional peril. Part III will then closely review the currently proposed legislation that would, if passed, grant regulatory power to the NCAA or a new private entity, …

Bend, Don’T Break: Promoting Interagency Collaboration To Enhance Economic Sanctions As A Foreign Policy Tool, Carson Sugg

St. John's Law Review

(Excerpt)

The U.S. government’s sanctions measures and related enforcement actions for violations are ascending to new levels— both in number and scope. The Executive branch contends that additional authority is necessary to adequately undertake these initiatives, which are a response to proliferating exigent global situations. The requests face opposition from members of Congress and legal scholars, who argue that the current sanctions regime disproportionally favors the Executive at a cost to both individuals and the co-equal branches. The push and pull of these stances suggest that a review of the current regime is due.

This Note argues that economic sanctions …