Digital Commons Network^™

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 …

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 …

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 …

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 …

What Is Property? Property Is Theft: The Lack Of Social Justice In U.S. Eminent Domain Law, Janet Thompson Jackson

St. John's Law Review

(Excerpt)

The first part of this Article examines private property rights and the tension between individual and governmental interests. The second part explores the ideals and evolution of justice and social justice. This Section gives historical account of justice and social justice to provide a framework for those principles as they relate to eminent domain law. Part III looks at the introduction of social justice into American jurisprudence and addresses two ways in which social justice has been advanced in the United States: through social movements and through legal reform. In this Section, I give examples of how those vehicles …

Church Schisms, Church Property, And Civil Authority, Calvin Massey

St. John's Law Review

(Excerpt)

Part I describes the varied nature of church organizations and the development of the constitutional doctrine that limits civil court involvement in the resolution of church property disputes. Part II explores the religious freedom interests of individuals and local congregations under conditions of religious division, using a Virginia statute that deals with this issue as the lens by which to examine the question. Part III assesses the circumstances under which reliance on internal church governance rules as the criterion for deciding church property may constitute a violation of either of the religion clauses. Part IV states the constitutional principles …

Judicial Independence: Is It Impaired Or Bolstered By Judicial Accountability?, Carmen Beauchamp Ciparick, Bradley T. King

St. John's Law Review

(Excerpt)

Tonight, we will continue the tradition of this stellar program that celebrates our former Dean Bellacosa's many contributions to the law school, the judiciary, and the legal profession. As a result of some brainstorming with Judge Bellacosa and others, I have chosen to continue the discussion of judicial independence and its corollary judicial accountability, and I particularly want to focus on how it is enhanced by an effective system of judicial discipline which we in New York are so very fortunate to enjoy.

Supreme Court Law Clerks' Recollections Of October Term 1951, Including The Steel Seizure Cases, Charles C. Hileman, Abner J. Mikva, James C.N. Paul, Neal P. Rutledge, Marshall L. Small, William H. Rehnquist, Gregory L. Peterson, John Q. Barrett, Ken Gormley

St. John's Law Review

No abstract provided.

The After-Shocks Of Twombly: Will We "Notice" Pleading Changes?, Ettie Ward

St. John's Law Review

(Excerpt)

Part I will briefly discuss the pre-Twombly view of notice pleadings. To some extent, our understanding of what the rules required and what lawyers actually did was a romanticized view of pleading. Actual pleadings were rarely as "barebones" as we imagine. Further, in recent decades, rules, statutes, court decisions, and practical considerations have further eroded the notice pleading construct.

Part II will give a brief synopsis of the Twombly decision and then discuss the majority and dissent's views on pleadings generally.

Part III will examine selected cases post-Twombly and make some general observations and predictions as to …

Supreme Court Law Clerks' Recollections Of Brown V. Board Of Education Ii, Gordon B. Davidson, Daniel J. Meador, Earl E. Pollock, E. Barrett Prettyman Jr., John Q. Barrett

St. John's Law Review

No abstract provided.

Concluding Remarks, Rosemary C. Salomone

St. John's Law Review

(Excerpt)

The topic of our afternoon panel, "Achieving Diversity in the Classroom," grows out of the Supreme Court's most recent landmark decisions on affirmative action. In Gratz v. Bollinger and Grutter v. Bollinger, a severely divided Court affirmed the narrow use of race in university admissions. The Court, however, made clear that institutions could not base their decisions solely on race but must seriously consider "all the ways an applicant might contribute to a diverse educational environment."

Tax Malpractice: Areas In Which It Occurs And The Measure Of Damages--An Update, Jacob L. Todres

St. John's Law Review

(Excerpt)

Primarily, this Article will analyze the tax malpractice cases that have been reported since Malpractice I was published from the vantage of substantive tax law to attempt to ascertain whether certain areas of tax law or certain aspects of tax practice seem to generate more malpractice claims than others. As a secondary inquiry, the Article will discuss the proper measure of damages recoverable on account of such malpractice.

Vicarious Snitching: Crime, Cooperation, And "Good Corporate Citizenship", Michael A. Simons

St. John's Law Review

(Excerpt)

This Article will examine corporate cooperation and the difficulties it can create for corporate decision-makers. Part I describes the principles of vicarious guilt that give prosecutors the power to demand corporate cooperation. Part II examines how prosecutors exercise their discretion in deciding whether to charge corporations with crimes. In Part III, the Article examines the cooperators. Just as a corporation's guilt is only vicarious, so too its cooperation can be only vicarious. In the end, it is not the corporation that cooperates, but its officers and directors-the men and women who make decisions for the corporation. For these vicarious …

Reciprocal Dealing: A Rebirth?, Edward D. Cavanagh

St. John's Law Review

(Excerpt)

This article will examine the retooled reciprocity theory and the anticompetitive potential of reciprocal dealing practices under the law of (1) mergers, (2) monopolization, and (3) tying.

Legal Dimensions Of Educational Vouchers, Rosemary C. Salomone

St. John's Law Review

(Excerpt)

This panel brings together four experts in the field of law and education, each presenting interesting and individual views on the legal and policy dimensions of the educational voucher question. All of them have thoughtfully written on this topic while some have played a role in key litigation and legislative efforts. Their insights shed light on the contentious questions underlying what has become one of the most heated debates in education today.

Disclosure As Consumer Protection: Unit Purchasers' Need For Additional Protections, Vincent Di Lorenzo

St. John's Law Review

(Excerpt)

Part One of this Article studies the embrace of full disclosure as the legislative approach to protect unit purchasers. The findings are that the embrace was without much forethought. In addition, this approach has prevented the imposition of substantive protections by administrative regulation. Finally, the legislature has not subsequently reconsidered its approach, and instead has become path dependent.

Part Two explores the deficiencies of a pure disclosure approach in protecting unit purchasers. The New York experience since 1985 is the focus of the study. The findings are that the statute permits the unit purchaser to be placed at risk, …

Deciding The Stop And Frisk Cases: A Look Inside The Supreme Court's Conference, John Q. Barrett

St. John's Law Review

No abstract provided.

The Civil Justice Reform Act Of 1990 And The 1993 Amendments To The Federal Rules Of Civil Procedure: Can Systematic Ills Afflicting The Federal Courts Be Remedied By Local Rules?, Edward D. Cavanagh

St. John's Law Review

(Excerpt)

This Article examines and analyzes (1) the wisdom of addressing pervasive problems in the federal civil practice system through local rules and (2) the likely combined impact of the CJRA and the 1993 Amendments on litigation in the federal courts. As discussed below, the plans to be implemented in each district pursuant to the CJRA will engraft yet another layer of local rules on top of a system that is already saturated with rules. Plans currently in effect in some districts have already generated much confusion and uncertainty among members of both the bench and bar. The confusion and …

Antitrust In The Second Circuit, Edward D. Cavanagh

St. John's Law Review

(Excerpt)

The Second Circuit has played a significant role in the development of the substantive law of antitrust. To be sure, most of the important antitrust precedents have emanated from the United States Supreme Court. This is precisely what Congress intended when it enacted the Expediting Act, which permitted direct appeals from district courts to the Supreme Court in government initiated actions. However, the repeal of the Expediting Act, coupled with the Supreme Court's arcane case selection process and the practical limitations on the Court's ability to hear cases, has shifted much of the burden of hearing and deciding antitrust …

The Litigator's Dilemma: Waiver Of Core Work Product Used In Trial Preparation, Ettie Ward

St. John's Law Review

(Excerpt)

This Article focuses on the protection from disclosure accorded to opinion or core work product when it is used, as intended, in pretrial preparation of cases. It is this use of opinion or core work product that brings the litigator to a dilemma. There are no explicit or "bright line" guides to advise the litigator when the use of such work product to prepare witnesses or the case will result in compelled disclosure of the materials to one's adversary. Thus, the litigator must either forego use of such materials to prepare his case, even if it adversely affects that …

Multistate Taxation Of Depositories: An Analysis Of Legislation Proposed By The American Bar Association, Jacob L. Todres

St. John's Law Review

(Excerpt)

In May, 1979, the Council of the American Bar Association Taxation Section established a joint task force, consisting of members from the Committee on Banking and Savings Institutions and the Committee on State and Local Taxation, to review the subject of multistate taxation of depositories. The Council thought that this was an especially propitious time for such a review, since the 1976 legislation had just opened an entirely new area of taxation for the states. It was hoped that recommendations might result, the implementation of which might prevent the confusion inherent in the multistate taxation of industry from being …