Digital Commons Network^™

Honoring International Obligations In U.S. Trademark Law: How The Lanham Act Protects Well-Known Foreign Marks (And Why The Second Circuit Was Wrong), Lee Ann W. Lockridge

St. John's Law Review

(Excerpt)

In this Article, I argue that the United States does, in fact, provide the required protection under the Lanham Act. Although the implementation is not a model of clarity, current federal law provides protection for well-known foreign marks, allowing owners of well-known foreign marks to seek redress in the United States for infringing acts that occur in the United States. Part II of the Article explains the sources and content of the U.S. treaty obligations to protect well-known foreign marks. Part III sets out a brief account of U.S. judicial decisions related to the protection of well-known marks. Part …

"An Ever Closer Union" In Corporate Identity?: A Transatlantic Perspective On Regional Dynamics And The Societas Europaea, Jodie A. Kirshner

St. John's Law Review

(Excerpt)

The tensions between state and federal, national and regional, play out with specificity in the corporate law arena, instead of remaining a pure policy debate. Companies must continue to operate, experiencing their own economic cycles as the political context changes. If companies demonstrate that increased federalization is beneficial for profit generation and for other stakeholders, they offer support for the idea of the European Union and the goal of regionalization more generally. While regional consolidation reduces transaction costs for companies, it may come at the expense of social welfare more broadly. The development of innovative approaches for organizing areas …

The Trouble With Treaties: Immigration And Judicial Review, Angela M. Banks

St. John's Law Review

(Excerpt)

This Article therefore concludes that greater judicial enforcement of human rights treaties in the United States will not enhance judicial monitoring of deportation decisions. Despite the popularity of this approach within the human rights literature, its effectiveness within a specific State depends upon how treaty compliance is allocated within the State and the frames used to analyze the legal questions at issue. That said, treaty body jurisprudence and foreign treaty-based jurisprudence can demonstrate alternative uses of the tools within our legal tool kit and can thereby encourage Americans to rethink the validity and appropriateness of the frames currently utilized. …

New York's Law Of Tax Malpractice Damages: Balanced Or Biased?, Jacob L. Todres

St. John's Law Review

(Excerpt)

In Part I, Alpert will be discussed. Since New York’s law on the recovery of interest—actually, on the non-recovery of interest—is more definitively established than its position on the non-recovery of additional taxes, interest will be discussed first in Part II and then additional taxes in Part III. A conclusion follows.

Not My Brother's Keeper: Accounting Firms Face Increased Securities Claims For Audits Performed By Affiliates In Other Countries, Bryan J. Hall

St. John's Law Review

(Excerpt)

This Note proceeds in three parts. Part I discusses the development of the modern global structure of accounting firms and analyzes recent district court decisions in which accounting firms have not been held liable for audits performed by affiliated accounting firms. Part I also considers the implications of three Supreme Court decisions that rejected secondary liability under section 10(b) of the Securities Exchange Act. Part II explores the facts leading up to Parmalat’s bankruptcy and the district court’s decision to apply agency and control liability to global and U.S. accounting firms. Part III argues that the court in Parmalat …

Judicial Review Of State Legislation: An Ironic Return To Lochnerian Ideology When Public Sector Labor Contracts Are Impaired, Nila M. Merola

St. John's Law Review

(Excerpt)

This Note argues that, despite its notorious reputation as the case that permitted and encouraged judicial usurpation of the states’ inherent police powers, a return to a Lochnerian level of review of economic legislation is appropriate when state or local legislatures pass laws that substantially impair public sector labor contracts. Part I briefly recaps the Lochner era, beginning with an overview of Lochner itself and culminating in a brief discussion of the criticisms of Lochner. Part II introduces the Contract Clause and demonstrates that the contemporary test for determining whether there has been a Contract Clause violation is similar …

The Second Amendment Under A Government Landlord: Is There A Right To Keep And Bear Legal Firearms In Public Housing?, Jamie L. Wershbale

St. John's Law Review

(Excerpt)

This Article examines the right to bear arms under a residential government landlord, collecting legal scholarship and decisional law as a guide for future litigation efforts and public housing policy in the aftermath of Heller and McDonald. Part I overviews public housing in the United States. Part II concisely presents the Second Amendment, focusing on the holding in Heller and discusses incorporation under McDonald. Part III discusses the state of the law leading up through Heller, as well as HUD policies and congressional inclinations regarding firearms in public housing. Part IV explores the post-Heller constitutionality …

No Pain, No Gain: The Criminal Absence Of The Efficient Capital Markets Theory From Insider Trader Sentencing, Nicholas P. Pellicani

St. John's Law Review

(Excerpt)

This Note argues that, for purposes of criminal insider trading sentencing, courts should look to the date that the information was disclosed to determine the amount of the defendant’s gains. This point in time simultaneously signifies the conclusion of the offense and the market’s valuation of the information initially traded on. Part I will discuss the statutory prohibition on insider trading and its corresponding sentencing formula. Part II will focus on the current approaches adopted for measuring gains of insider trading in criminal sentencing, as well as other forms of securities fraud violations. Part III will identify the presence …

Keeping The Flies Out Of The Ointment: Restricting Objectors To Class Action Settlements, Bruce D. Greenberg

St. John's Law Review

(Excerpt)

This Article proposes changes in the way courts evaluate objections and the persons who bring them. It also suggests a return to fundamental principles of the law governing attorney fees for objector counsel. Restricting objector counsel fees would reduce their incentive to file groundless objections, by limiting fee awards to only those who raise valid problems with a settlement that the courts would not otherwise perceive. Reducing the ability of objectors, particularly professional objectors, to obtain a fee will concomitantly lessen the frequency of their objections, thus benefiting class members by reducing delays in the implementation of appropriate settlements.

The Benefits Of Alternative Dispute Resolution In Common Interest Development Disputes, Christopher Baum

St. John's Law Review

(Excerpt)

Because litigation is expensive and time-consuming, both common interest development boards and unit owners suffer when parties bring their disputes to court. Alternative dispute resolution (“ADR”) is an important solution. This Article will examine the rise of common interest development ownership, the increase in conflicts in common interest developments, the disadvantages of traditional litigation, the advantages of ADR, and the various forms of ADR in other jurisdictions.

Tax Authority As Regulator And Equity Holder: How Shareholders' Control Rights Could Be Adapted To Serve The Tax Authority, Ilya Beylin

St. John's Law Review

(Excerpt)

If taxes served solely the goal of generating revenues, the tax authority could simply be granted nonvoting common shares in every corporation and rely on assertive shareholders to safeguard its interest.14 As is, however, taxes are designed to do more than raise revenues—they are also used to encourage congressionally favored behavior.15 In other words, the tax authority as interest holder does not only care about how much the taxpayer earns but also about how the taxpayer earns it. As a result, the interests of shareholders and the tax authority are not always aligned, as the latter operates under statutory …

Survival Of The Fittest: An Examination Of The Louisiana Science Education Act, Robert E. Morelli

St. John's Law Review

(Excerpt)

This Note asserts that the Louisiana Science Education Act is likely to be found unconstitutional under the Establishment Clause of the United States Constitution. Part I will examine the progression and development of the failed creationist challenges to evolution, as well as provide the relevant framework used by the courts to evaluate Establishment Clause challenges to public school curricula. Part II will set out the social context and history of the LSEA itself. Part III will then proceed to examine the LSEA and its background under the framework established in Part I to show that it is unconstitutional.

A Proposal For Regulation Of The Government-Sponsored Enterprises, Thomas Combs

St. John's Law Review

(Excerpt)

This Note proposes various amendments to HERA designed to prevent a repeat of the subprime crisis. First, HERA should be amended to prevent the GSEs from lobbying the executive or legislative branches of government. This will likely have the effect of increasing government control over the GSEs. And because the FHFA has already suspended the GSEs’ lobbying activity, this is not a new suggestion, but one that has already resulted in substantial positive effects.

Second, the Act should require the GSEs to focus on the core mortgage market, making affordable housing just a small part of their overall business. …

Barely Legal: Vagueness And The Prohibition Of Pornography As A Condition Of Supervised Release, Michael Smith

St. John's Law Review

(Excerpt)

Part I of this Note will discuss the current sentencing scheme in the federal system. It will discuss the goals of sentencing under the U.S. Sentencing Guidelines (the “Sentencing Guidelines” or “Guidelines”) and the discretion given to judges in imposing appropriate sentences, as well as some procedural safeguards. Additionally, Part I will discuss the process of supervised release, including how judges impose conditions and the process for revoking supervised release if a probationer violates a condition. Part II of this Note will discuss the circuit split over the imposition of a general ban on legal adult pornography. Finally, Part …

Bad Faith Fee-Shifting In Federal Courts: What Conduct Qualifies?, Jacob Singer

St. John's Law Review

(Excerpt)

This Note explores how the federal circuits interpret the bad faith exception differently and recommends that the exception must apply to both prelitigation and litigation conduct to serve the policies of the American rule and the bad faith exception. Part I sets out the history underpinning the American rule. Part II sets forth the rule’s bad faith exception and the policies underlying the exception. It then distinguishes the common-law bad faith exception from Rule 11 fee-shifting. Part III introduces three Supreme Court cases that have established the parameters of the bad faith exception. It then examines the varying ways …

Enforcing Rights: A Case For Private Rights Of Action Under Section 253 Of The Federal Telecommunications Act Of 1996, James E. Lippert

St. John's Law Review

(Excerpt)

Part I of this Note provides background on the meaning of section 253 and the current law regarding private rights of action. It also briefly discusses the unique problems presented for private rights of action where the underlying legislation is passed pursuant to the Spending Clause—which was at issue in Gonzaga. Part II discusses whether the circuit courts allow telecommunications providers a private right of action under section 253. Some pre-Gonzaga courts granted a private right of action for telecommunications providers when a state or local government exceeded its safe harbor to manage a public right-of way under …

Vice Presidential Secrecy: A Study In Comparative Constitutional Privilege And Historical Development, Roy E. Brownell Ii

St. John's Law Review

(Excerpt)

Ultimately, this Article concludes that, while Vice Presidents have become embroiled in ever more frequent contests over information, VPP has not been officially invoked. Nonetheless, episodes involving Vice Presidents Humphrey, Agnew, Rockefeller, and Cheney all to varying degrees seem to have implicitly recognized that such a privilege exists; in this vein, they would appear to have “reserved the right” for future Vice Presidents to make such an assertion. At a broader level, the growing frequency of these clashes over the past several decades demonstrates the growing significance of the vice presidency over time and the position’s greater involvement in …

Putting Melendez-Diaz On Ice: How Autopsy Reports Can Survive The Supreme Court's Confrontation Clause Jurisprudence, George M. Tsiatis

St. John's Law Review

(Excerpt)

This Note examines how the Supreme Court’s holding in the Melendez-Diaz case has impacted autopsy reports as evidentiary tools in criminal cases. Part I offers some background on autopsy reports and forensic pathology, discusses key evidentiary rules, and the history of the Sixth Amendment’s Confrontation Clause leading up to Melendez-Diaz. Part II explores the breadth and consequences of Melendez-Diaz, particularly as they impact autopsy reports. Part III analyzes how autopsy reports differ fundamentally from many other types of forensic reports, notably because of policy issues they implicate. Finally, Part IV defines and presents the “lean rule” as …

Feres And The Privacy Act: Are Military Personnel Records Protected?, Eric Juergens

St. John's Law Review

(Excerpt)

This Note contends that Uhl and Cummings are actually in harmony, and therefore, the Feres doctrine should apply to bar some claims under the Privacy Act, but not others. Claims by military personnel under the Privacy Act should be barred when the records are released solely within the military structure because the release is truly “incident to service” and invokes the rationales of the Feres doctrine. In cases where the military releases a serviceperson’s records to persons outside the military, however, the rationales of Feres are not applicable and should not bar recovery. Part I explores the background of …

A Fashion Forward Approach To Design Protection, Laura Fanelli

St. John's Law Review

(Excerpt)

This Note emphasizes that despite limited legal protection available to fashion designers through existing intellectual property law, design piracy remains an overwhelming threat to American fashion design. The implementation of design legislation will promote the innovation of designers whose progress and success help to sustain this important American industry. Current legislation in the EU presents a valuable model in developing the ideal framework of design protection. This Note argues that the IDPPPA is a step in the right direction; however, alterations are needed to obtain the perfect fit.

Part I of this Note provides background on the limited legal …

Who May We Detain And How: Lessons From Post 9/11 Enemy Combatant Jurisprudence For New York's Civil Commitment Of Sex Offenders, Samantha Alessi

St. John's Law Review

(Excerpt)

Part I of this Note discusses the passage and provisions of the New York Sex Offender Management and Treatment Act. It also provides a brief discussion of the two Supreme Court cases directly addressing civil confinement of sex offenders. Part II analyzes how the 9/11 enemy combatant cases can be used to determine the constitutionality of the New York statute. Part III considers some actual and potential challenges to the New York law, with responses drawn from the reasoning of the Supreme Court’s detainee cases.

Putting The "Mandatory" Back In The Mandatory Detention Act, Mani S. Walia

St. John's Law Review

(Excerpt)

This Article’s disagreement with the courts is over a serious issue. Granting bail to a person convicted of one of these three serious crimes could lead to him harming an individual in the community.

Part I explains the current statutory framework. Part II, details Congress’s motivation to enact the two Bail Reform Acts, details the Acts’ histories, and explains their provisions. Next, Part III delineates the statutory-interpretation principles that courts must follow to determine what § 3143(a)(2) and § 3145(c) provide. Part IV argues why courts should reserve § 3145(c) exclusively for courts of appeals. And finally, Part V …

The Financial Meltdown Of 2008 And The Government's Intervention: Much Needed Relief Or Major Erosion Of American Corporate Law? The Continuing Story Of Bank Of America, Citigroup, And General Motors, Janet E. Kerr

St. John's Law Review

(Excerpt)

This Article explores these questions and more with respect to the current role the government is playing in three corporations—Bank of America, General Motors, and Citigroup— and the relevant issues raised within corporate law. Specifically, this Article discusses whether boards of directors may have acted in such a way that potentially breaches traditional fiduciary duties—duties of due care, loyalty, and good faith—and whether the business judgment rule still protects these boards when they were pressured by the government. Furthermore, this Article also explores whether there were violations under Rule 10b-5 of the Securities Exchange Act of 1934, the duty …

Gangs Of New York Are Terrorists? The Misapplication Of The New York Antiterrorism Statute Due To The Lack Of Comprehensive Gang Legislation, Chantal Tortoroli

St. John's Law Review

(Excerpt)

Part I of this Note details the background of the New York antiterrorism statute. It explains the relevant legislative history, as well as the structure and wording of the statute. Part II explores the controversial application of the New York antiterrorism statute to a gang member in the Bronx, setting out the arguments for and against its application, made by the Bronx District Attorney's Office and Morales, respectively.

Part III argues that the statute was inappropriately applied against a New York City gang member, an application which was permissible due to vague terms within the statute. By clarifying certain …

Court V. Arbitrator: Who Should Decide Whether Prelitigation Conduct Waves The Right To Compel An Arbitration Agreement?, Michael P. Scharpf

St. John's Law Review

(Excerpt)

While acknowledging that Supreme Court clarification will ultimately be needed to resolve the confusion created by the Howsam decision, this Note concludes by recommending that waiver by prelitigation conduct be decided by the arbitrator. Part I of this Note provides the historical relationship between courts and the arbitration process prior to Howsam. Part II discusses the Howsam decision. Part III examines the circuit court split over waiver that has developed as a result of Howsam. Part IV analyzes the Sixth Circuit's decision in Chronimed and finds that the court incorrectly held that waiver by prelitigation conduct was …

Checking Executive Disregard, John T. Pierpont Jr.

St. John's Law Review

(Excerpt)

Part I of this Note more precisely defines executive disregard, its confluence with signing statements, and distinguishes executive disregard from executive discretion. Part II, through an analysis of the Constitution's text, case law, precedent, and policy, argues that executive disregard is a constitutionally impermissible act when the President disregarding the statute also signed it into law. Part III discusses the merits of a limited theory of executive disregard in the instances where the disregarding President did not sign the bill into law. Part IV discusses Senator Specter's bill and proposes further checks on executive disregard, specifically that Congress grant …

Giving An Inch, Then Taking A Mile: How The Government's Unrestricted Recovery Of Conditional Medicare Payments Destroys Plaintiffs' Chances At Compensation Through The Tort System, Nicole Miklos

St. John's Law Review

(Excerpt)

This Note argues that the government's recovery of conditional Medicare payments should be limited to those settlement proceeds designated for past medical expenses, calling for a reconciliation of the government's financial interests and the plaintiffs compensatory interests in the tort system. Part I of this Note discusses the evolution of Medicare's and Medicaid's role as public medical insurance programs. This Part also examines the confusion regarding the extent of the government's reimbursement rights. Part II addresses the Supreme Court's recent decision in Arkansas Department of Health & Human Services v. Ahlborn, which held that Medicaid reimbursements are limited …

Spendthrift Trust: An Alternative To The Nba Age Rule, Susan Mcaleavey

St. John's Law Review

(Excerpt)

This Note argues that the NBA Age Rule has created a problem for which a legal solution exists: the adoption of a spendthrift trust system. The NBA Age Rule fails to achieve the NBA's goal of protecting amateur players. Instead, it merely limits potential and growth for both the NBA and aspiring players. Part I details the history and rationale behind the NBA Age Rule. Part II analyzes the inefficiency of the NBA Age Rule and demonstrates how the NBA Age Rule unfairly denies amateur players the opportunity to play in the NBA. Part III outlines a spendthrift trust …

Political Advertisements In The Era Of Fleeting Indecent Images And Utterances, Lavonda N. Reed-Huff

St. John's Law Review

(Excerpt)

Part I of this Article describes the statutory conflict. This Part explains each of the rules and includes a detailed discussion of recent broadcast indecency actions including the indecency cases recently decided by the U.S. Court of Appeals and the U.S. Supreme Court. Part II addresses cases specifically involving political broadcast advertisements in which the courts granted immunity or excepted broadcasters of political advertisements from punishment under the indecency prohibition. Part III specifically evaluates the recent political advertisements containing sexually suggestive material, including the anti-Ford and anti-Arcuri advertisements. This Part addresses how courts have handled earlier claims of offensive …

Incompetence To Maintain A Divorce Action: When Breaking Up Is Odd To Do, Douglas Mossman, Amanda N. Shoemaker

St. John's Law Review

(Excerpt)

Given the increasing possibility that divorce petitions may be initiated by individuals like Mr. Doe, this Article suggests that domestic relations law should recognize a distinct, potential form of legal incompetence: incompetence to maintain a divorce action. In Part II, we review the social and legal trends just mentioned that may make incompetence to divorce a more likely phenomenon in the twenty-first century than would have been the case in previous times. Part III explains what types of psychiatric conditions might generate the mental problems experienced by Mr. Doe; conditions that might profoundly affect a sufferer's judgment about certain …