Digital Commons Network^™

Do Tila Rescission Rights "Survive" Refinancing? How The Housing And Economic Recovery Act Of 2008 Introduces New Solutions To An Old Problem, Stephen K. Wallant

St. John's Law Review

No abstract provided.

Personal Revival Trusts: If You Can't Take It With You, Can You Come Back To Get It?, Igor Levenberg

St. John's Law Review

No abstract provided.

Securities And Exchange Commission's Enhanced Disclosure And New Prospectus Delivery Option For Registered Mutual Funds, Sarah B. Zimmer

St. John's Law Review

No abstract provided.

Jenkins, The Public Concern Test, And The Need For Limiting Principles In Private Citizen Retaliation Claims, Laura Marino

St. John's Law Review

No abstract provided.

Apparently, "No Good Deed Goes Unpunished": The Earmarking Doctrine, Equitable Subrogation, And Inquiry Notice Are Necessary Protections When Refinancing Consumer Mortgages In An Uncertain Credit Market, Kevin M. Baum

St. John's Law Review

No abstract provided.

Finding Terrorists' Intent: Aligning Civil Antiterrorism Law With National Security, Christopher W. Robbins

St. John's Law Review

No abstract provided.

Safer Than The Mattress? Protecting Social Security Benefits From Bank Freezes And Garnishments, John Infranca

St. John's Law Review

No abstract provided.

Government As Patron Or Regulator In The Student Speech Cases, Josh Davis, Josh Rosenberg

St. John's Law Review

No abstract provided.

The People V. Their Legislature: Proposing The Use Of Rule 24 As A Tool To Regulate The "Tyranny Of The Majority" And Ensure The "True Will Of The People" Is Upheld, Adam Scotto

St. John's Law Review

(Excerpt)

This Note considers the outcome in a case where named state official defendants in a similar claim decline to defend the suit, and the sponsors of the initiative are not allowed to intervene. Federal courts are split on the issue of whether to allow intervention as a matter of right to a ballot sponsor under Federal Rule of Civil Procedure 24 (“Rule 24”), the rule governing intervention. The Ninth Circuit Court of Appeals has generally allowed such sponsors to intervene. On the other hand, the Sixth Circuit recently denied the proposed intervention of the sponsor of an anti-affirmative action …

How On Earth Can You Possibly "File" An Oral Complaint?: An Analysis Of The Boundaries Of § 215(A)(3) Of The Fair Labor Standards Act, Scott C. Ross

St. John's Law Review

(Excerpt)

This Note argues that it is necessary to find a balance between the liberal and strict approaches when interpreting the anti-retaliatory provision of the FLSA. Part I of this Note provides background on the FLSA, its retaliatory provision, and a proposed amendment to the retaliatory provision currently before the Senate and House of Representatives. Part II addresses the various arguments the courts of appeals consider to arrive at their conclusion on how to interpret § 215(a)(3), including abiding by the plain language, examining the purpose of the Act, and comparing it to similar anti-retaliation provisions. Though the language is …

Restricting Rico Under Fsia, John D. Corrigan

St. John's Law Review

(Excerpt)

This Note explores two competing interpretations: (1) that so long as the criminal act underlying the civil RICO suit falls within a FSIA exception, the sovereign may not raise immunity, and (2) that absent a grant of criminal jurisdiction, a foreign sovereign is not amenable to suit in a civil RICO claim. This Note asserts that the courts should find foreign sovereigns immune from civil RICO suits.

Exploring the two FSIA interpretations requires an understanding of both statutes. To better understand FSIA’s framework, Part I discusses the underlying theories of immunity that gave rise to its development, as well …

Tick Tock: When Does The Thirty-Day Clock In Rule 4003(B) Begin, Maeghan J. Mcloughlin

St. John's Law Review

(Excerpt)

This Note surveys the competing approaches to the thirty-day limitation and its impact on the rights of both debtors and creditors. It concludes with a proposed solution derived from the bright line approach but extends further to encompass the policies inherent in the Code. Part I provides a background of chapter 7 bankruptcy cases and the applicable Code and Rule provisions that facilitate the estate administration. Part II reviews the conflicting case law and differing interpretations regarding the conclusion of the 341 meeting of creditors. Part III examines the policies, interpretations, and equitable considerations underlying Rule 4003(b). Part III …

Hard Cases Make Good Law: The Intellectual History Of Prior Acquittal Sentencing, Claire Mccusker Murray

St. John's Law Review

(Excerpt)

This Article attempts to answer those questions both historically and theoretically. On a historical level, it traces the heretofore unexamined course of the congressional, judicial, and administrative actions leading from a pre-1970s sentencing regime that viewed any use of extra-trial evidence in sentencing as constitutionally suspect to the 1997 case that embraced prior acquittal sentencing as a foregone conclusion. On a more theoretical level, the Article traces the justification for prior acquittal sentencing to two doctrinal tensions: the differing goals of trials and sentencing and the semiotic gap between acquittal and innocence. As outside forces exerted pressure on those …

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 …

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. …

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.

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 …