Law Commons^™

Examining Patent Eligibility, Charles Duan

St. John's Law Review

(Excerpt)

A firestorm of debate has surrounded the Supreme Court of the United States’s 2014 decision Alice Corp. Pty. Ltd. v. CLS Bank International on the doctrine of patentable subject matter eligibility under 35 U.S.C. § 101. As the Court’s leading articulation of doctrine, which generally excludes from patenting abstract ideas, laws of nature, and natural phenomena, Alice has been criticized as unpredictably vague and overly constrictive of patentability, with the effect of “decimating” patents, innovation, technological investment, and even the United States’ competitiveness against other nations. To support these criticisms and calls for reform, scholars and practitioners have frequently …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

St. John's Law Review

(Excerpt)

Half a century ago, Joseph Davis Farrar sued six defendants for seventeen million dollars. Farrar had owned and operated a school for troubled teens, and after one of the students died, the State of Texas obtained a temporary injunction that closed the school. Farrar alleged that the defendants—including William P. Hobby, Jr., the lieutenant governor of Texas—had violated his civil rights in connection with the closure. After ten years of litigation, a jury ruled in favor of five of the six defendants, but it “found that Hobby had ‘committed an act or acts under color of state law that …

Education And Democracy From Brown To Plyler, Nicholas Espíritu

St. John's Law Review

(Excerpt)

Judicial review has often been cast in terms of democratic legitimacy. Democratic legitimacy is often linked to whether it institutes the will of the people through majoritarian rule and whether it creates processes for reevaluation of these prior decisions by newly constituted majorities. Judicial review of majoritarian decisions has often been criticized as a overriding or circumventing of these democratic processes. Beginning with Brown v. Board of Education, the Warren Court adopted a resolution of the “counter-majoritarian difficulty” of judicial review by tacitly accepting Justice Stone’s formulation from footnote four of United States v. Carolene Products and engaging …

Opening Remarks, Shoba Sivaprasad Wadhia

St. John's Law Review

(Excerpt)

Thank you. I am honored to be here. And there is no more fitting way to honor Michael than around the 40th anniversary of Plyler v. Doe.

This case centered on Texas statute § 21.031, which on its face, permitted the local school districts to exclude noncitizen children who entered the United States without immigration status or to charge admission for the same. The questions before the Court were: (1) whether a noncitizen under the statute who is present in the state without legal status is a “person” and therefore in the jurisdiction of the state within the meaning …

“You Don’T Bring Me Flowers Anymore”: President Clinton, Paula Jones, And Why Courts Should Expand The Definition Of “Adverse Employment Action” Under Title Vii’S Anti-Retaliation Provision, Lawrence Rosenthal

St. John's Law Review

(Excerpt)

Anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”) prohibit discrimination based on individuals’ protected characteristics. In addition to prohibiting this type of status-based discrimination, these statutes also prohibit employers from retaliating against employees who assert their rights under the statutes or who assist others in asserting their rights.

Over the past several years, retaliation charges filed with the Equal Employment Opportunity Commission (“EEOC”) have made up an increasingly high percentage of all charges filed with the agency. Specifically, …

“The Past Got Broken Off”: Classifying “Indian” In The Indian Child Welfare Act, Lucia Kello

Journal of Civil Rights and Economic Development

(Excerpt)

In her 1993 novel, Pigs in Heaven, Barbara Kingsolver chronicles the story of an American Indian child, Turtle, and her young, white, adoptive mother, Taylor Greer. In what has been criticized as a controversial imagined fact pattern, Kingsolver writes that while stopped in a parking lot in the middle of the night, Taylor is approached by an American Indian woman holding a baby. Rather mysteriously, the woman informs Taylor that the baby’s mother died and the baby was being abused, upon which Taylor notes that “it looked like someone had been hurting [the woman] too.” After placing the …

In Defense Of Moses, Tamar Meshel

St. John's Law Review

(Excerpt)

In 1925, Congress enacted a short statute to make arbitration agreements in maritime transactions and interstate commerce “valid, irrevocable, and enforceable.” Yet the Federal Arbitration Act’s (FAA) simple objective of facilitating the resolution of disputes outside of the courtroom has proven much easier to declare than to implement in practice. In the century since its enactment, the FAA has become a frequently litigated statute and the subject of 59 opinions of the Supreme Court, the majority of which have reversed lower courts’ interpretations of the Act. The Supreme Court’s FAA jurisprudence has not only been abundant but also controversial. …

Activist Extremist Terrorist Traitor, J. Richard Broughton

St. John's Law Review

(Excerpt)

Abraham Lincoln had a way of capturing, rhetorically, the national ethos. The “house divided.” “Right makes might” at Cooper Union. Gettysburg’s “last full measure of devotion” and the “new birth of freedom.” The “mystic chords of memory” and the “better angels of our nature.” “[M]alice toward none,” “charity for all,” and “firmness in the right.” But Lincoln not only evaluated America’s character; he also understood the fragility of those things upon which the success of the American constitutional experiment depended, and the consequences when the national ethos was in crisis. Perhaps no Lincoln speech better examines the threats to …

Statutory Interpretation And Agency Disgorgement Power, Caprice Roberts

St. John's Law Review

(Excerpt)

In recent decades, the Supreme Court has showed enhanced interest in equitable principles and remedies. What began as periodic cases featuring one jurist’s idiosyncratic and sometimes misguided interpretations has manifested a broader, significant trend. A consequential theme emerges across varied cases: a revival in the Court’s emphasis on the jurisprudence of equitable remedies. The Court’s recent and current docket continues this momentum. Scholars are tracking the developments and advocating for a system of equity; focusing on historical constraints and federal equity power; and generating a restitution revival.

What happens when obstacles foreclose claims and threaten to leave parties without …

Funding Faith: The Paycheck Protection Program's Establishment Clause Violation, Brenna Jean O'Connor

St. John's Law Review

(Excerpt)

In the early months of 2020, COVID-19 had a swift and profound impact on public health, the economy, state and local governments, and businesses across the United States. In response, on March 27, 2020, the United States Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to protect the American people from the worsening public health crisis and mitigate the resulting economic downturn. Additionally, within the CARES Act, Congress established the Paycheck Protection Program (“PPP”), which expanded the Small Business Administration’s (“SBA”) authority to guarantee forgivable loans to eligible small businesses. Among other prerequisites, the PPP …

Original(Ism) Sin, G. Alex Sinha

St. John's Law Review

(Excerpt)

During President Trump’s term in office, the Senate confirmed nearly 250 of his federal judicial nominees, including 3 to the Supreme Court of the United States. That number amounts to nearly a third of the federal judiciary’s roughly 800 active members. By and large, the judges nominated by President Trump purport to apply some form of originalist constitutional interpretation or construction, though the subject of originalism featured perhaps most prominently at the confirmation hearings for Amy Coney Barrett, whom President Trump nominated in October of 2020 to replace Justice Ruth Bader Ginsburg. Whatever one thinks of the vast literature …

The Suspension Clause After Department Of Homeland Security V. Thuraissigiam, Jonathan Hafetz

St. John's Law Review

(Excerpt)

In June 2020, in Department of Homeland Security v. Thuraissigiam, the Supreme Court of the United States rejected a constitutional challenge to Congress’s decision to eliminate habeas corpus jurisdiction over legal challenges to expedited removal orders by noncitizens in federal detention.

In Thuraissigiam, U.S. border patrol stopped the petitioner, Vijayakumar Thuraissigiam, a Sri Lankan national of Tamil ethnicity, shortly after he crossed the U.S.-Mexico border without inspection or an entry document. The petitioner asserted that he was fleeing persecution in his home country and sought asylum in the United States. The asylum officer concluded that Thuraissigiam had …

The (Unnoticed) Revitalization Of The Doctrine Of Equivalents, Daryl Lim

St. John's Law Review

(Excerpt)

Over the past century, few patent issues have been considered so often by the Supreme Court of the United States as the doctrine of equivalents (“DOE”). This judge-made rule deals with a question that lies at the heart of patent policy—what is the best way to define property rights in an invention? The doctrine gives patentees an opportunity to ensnare an accused device that does not literally infringe a patent claim if the accused device is substantially similar to each claim limitation. Patentees enjoy this advantage, but it comes at a cost to the public, who must face the …

Nature Deserves Rights, Too: The Case For A ‘Rights Of Nature’ Constitutional Amendment, Michelle Mandler

Journal of Civil Rights and Economic Development

(Excerpt)

Picture this: Every day, millions of Americans enjoy the great outdoors. People of all ages dive into cool, blue oceans and babbling rivers across the United States. Others visit local and National parks, hiking steep mountains and running through green fields sprinkled with tall trees and sweet-smelling flowers in every color. They pick and snack on apples and berries along their paths, breathing in the crisp outdoor air. Birds soar overhead. Insects buzz and flutter through the breeze. Sunshine gleams down upon the earth.

Now, picture this: The surrounding environment is actually deteriorating— silently suffering—and harming these people all …

Locked Out: Sora, Sara And The Need For Defense Counsel Advisals And Judicial Plea Colloquies On Sex Offense-Related Housing Consequences, Matthew Cleaver

Journal of Civil Rights and Economic Development

(Excerpt)

On May 20, 2014, Miguel Gonzalez became eligible for conditional release from prison, having served over two years of his two-and-a-half-year sentence for statutory rape. Instead of releasing Gonzalez, the New York Department of Corrections and Community Supervision (DOCCS) confined Gonzalez for an additional seven and a half months after his initial release date and over four months after his maximum sentence. On February 4, 2015, DOCCS finally released Gonzalez from New York’s Woodbourne Correctional Facility. The sole reason for Gonzalez’s additional confinement was his failure to secure housing that complied with the residency restrictions placed on individuals convicted …

Winston Churchill On The American Constitution, Gerard N. Magliocca

St. John's Law Review

(Excerpt)

Though best known for leading Britain during World War II, Winston Churchill was a keen observer of constitutional law. Most of his insights concerned the unwritten conventions of the British Constitution, but Churchill also commented extensively on the American Constitution. Intellectual curiosity and a desire to forge a closer alliance between Great Britain and the United States were at the root of Churchill’s interest in the institutions of what he called “The Great Republic.” As with all things Churchill, his observations on our Constitution were sometimes inspiring, sometimes illuminating, and sometimes noxious.

This Article provides the first comprehensive analysis …

Shedding Tiers: A New Framework For Equal Protection Jurisprudence, Danielle Stefanucci

St. John's Law Review

(Excerpt)

This Note argues that the Supreme Court of the United States should reconsider the tiers of scrutiny framework that courts use to evaluate equal protection claims. The Supreme Court has recognized government classifications on the bases of race and gender to be suspect and to merit heightened judicial scrutiny. However, any governmental classification among people is subject to review under the Equal Protection Clause. The class itself is not suspect; the basis for the classification, like race or gender, is treated by courts as more or less suspect.

However, employing the tiers of scrutiny no longer makes sense in …

Guess Who? Reducing The Role Of Juries In Determining Libel Plaintiffs' Identities, Nat Stern

St. John's Law Review

(Excerpt)

During the nomination hearings for now-Justice Brett Kavanaugh, considerable attention was drawn to a high school friend’s memoir featuring a fellow student named “Bart O’Kavanaugh.” By the memoir’s account, “O’Kavanaugh” in one episode blacked out—apparently from alcohol—on his return from a party. For any number of possible reasons, Justice Kavanaugh did not bring a libel suit against the book’s author. If he had, however, a crucial threshold issue—preceding questions of falsity and intent—would have been whether the memoir’s portrayal of “O’Kavanaugh” amounted to a false depiction of Kavanaugh himself. In the parlance of defamation doctrine, Justice Kavanaugh would have …

Government Speech Doctrine—Legislator-Led Prayer's Saving Grace, Daniel M. Vitagliano

St. John's Law Review

(Excerpt)

This Note argues that Lund was decided incorrectly in part because the Fourth Circuit failed to analyze the type of speech at issue before assessing the constitutionality of the prayer practice. This Note is composed of four parts. Part I surveys the Supreme Court’s legislative prayer jurisprudence—Marsh and Town of Greece. Part II outlines Lund and Bormuth, and the Fourth and Sixth Circuits’ dissimilar applications of the Supreme Court’s precedent. Part III argues that courts must first classify legislative prayers as either government or private speech before assessing whether a prayer practice violates the Establishment Clause. It further argues …

Free Exercise Standing: Extra-Centrality As Injury In Fact, Brendan T. Beery

St. John's Law Review

(Excerpt)

Part I of this Article surveys standing doctrine generally and tackles the problem of psychic insult—what might fairly, in some cases, be characterized as hurt feelings—as an injury. Part II addresses the special problems of finding concrete and palpable injuries in religion cases, noting that it is more difficult to identify such injuries in Establishment Clause cases than in free exercise cases. When free exercise is viewed as dynamic and kinetic, free exercise injuries are discernible and concrete: they occur when a person is forced to participate in religious undertakings or express beliefs against his or her will, or …

Brett Kavanaugh Vs. The Exonerated Central Park Five: Exposing The President's "Presumption Of Innocence" Double Standard, Sofia Yakren

Journal of Civil Rights and Economic Development

(Excerpt)

In the service of Justice Brett Kavanaugh’s confirmation to the United States Supreme Court, the President of the United States (and Republican Senators) both misappropriated and further eroded the already compromised concepts of due process and presumption of innocence. This Essay uses the prominent “Central Park Five” case in which five teenagers of color were wrongly convicted of a white woman’s widely-publicized beating and rape to expose the President’s disparate use of the presumption along race and status lines. This narrative is consistent with larger systemic inequities that leave poor black and brown criminal defendants less likely to benefit …

Hearing Women: From Professor Hill To Dr. Ford, Stephanie M. Wildman

Journal of Civil Rights and Economic Development

(Excerpt)

One of the recent traumas, another skirmish in today’s civilian conflict over what kind of society America will be, arose from Dr. Christine Blasey Ford’s testimony about sexual assault she had endured. Her composed, measured statement during the nowJustice Brett Kavanaugh confirmation hearing exemplified bravery in the face of adversity. The Senate and the nation’s response to her testimony underscored the high stakes in the ongoing ideological conflict, beyond the obvious prize of a Supreme Court seat. Constituents in the current ideological battle had differing reactions to Ford’s testimony and to this hearing, reflecting a range of views about …

"I Still Like Smear": The Senate Judiciary Committee's Obstructing Politics Surrounding The Kavanaugh Hearing And A Solution To The Chaos That Ensued, Frank J. Tantone

Journal of Civil Rights and Economic Development

(Excerpt)

The incredible events and raucous behavior by members of the Committee that colored Justice Kavanaugh’s confirmation process rose to a level of intensity and virulence never seen before in this specific area of American government and politics. Nevertheless, the most analogous situation that somewhat closely reflects the events that transpired in 2018 occurred seventeen years earlier. President George H.W. Bush, on July 1, 1991, nominated then District of Columbia Circuit Court Judge, Clarence Thomas, to replace Justice Thurgood Marshall on the Supreme Court. Thomas’s confirmation hearing was also opposed from the outset but by civil rights and feminist organizations …

How The Boogeyman Saved Brett Kavanaugh, Cathren Page

Journal of Civil Rights and Economic Development

(Excerpt)

We love to hate these boogeymen. When the societal narrative creates these invisible boogeymen, people can pour their rage against sexual abuse into these faceless antagonists. At the same time, the enraged survivors and protectors avoid conflicts with family, neighbors, colleagues, and social acquaintances who might actually commit or enable sexual abuse. We can dodge sticky questions regarding how a churchgoer, a judge, or an Ivy Leaguer could have committed a heinous act. The survivors can avoid all the victim-blaming backlash, threats of violence, and invalidation that accompanies reporting a sexual offense. Moreover, having less power on their own, …

The Master's Tools Will Never Dismantle The Master's House: Kavanaugh's Confirmation Hearing And The Perils Of Progressive Punitivism, Hadar Aviram

Journal of Civil Rights and Economic Development

(Excerpt)

This essay proceeds in four parts. In Part I, I problematize the idea of the accused’s demeanor as evidence of guilt, remorse, or entitlement, arguing that we tend to overestimate our ability to deduce internal states of mind from people’s behavior and expressions. Part II assesses the potential (or lack thereof) of public performances of reckoning to produce a valuable expression of remorse, discussing the value of contingent apologies. Part III expands the framework to examine the way our politically fractured field responds to partisan efforts to excoriate culprits, arguing that “starting a national conversation” on the basis of …

Patently Inconsistent: State And Tribal Sovereign Immunity In Inter Partes Review, John Mixon

St. John's Law Review

(Excerpt)

This Note is composed of four parts. Part I reviews the origins, development, and purpose of both tribal and state sovereign immunity, compares the two doctrines, and concludes that the two are functionally the same despite deriving from different historical roots. Part II provides an overview of the history and purpose behind the patent system, the America Invents Act, and IPRs. Part II also analyzes the constitutionality of IPRs, as decided by the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. Part III introduces and addresses the five IPR decisions on state sovereign …

The "Rational Federalist": Synthesizing Necessity And Propriety In The Sweeping Clause, Shane Magnetti

St. John's Law Review

(Excerpt)

This Note will argue that flexibility as to what constitutes a “necessary” law combined with a rigid standard for what makes a law “proper” enables Congress to execute its enumerated powers without overreaching. Part I outlines differing scholarly theories as to the legal origins of the Necessary and Proper Clause. Sections A, B, and C outline the theories that the Clause stems from principles of agency law, administrative law, and corporate law, respectively. Section D examines the implied powers theory of the Clause’s genesis. Next, Part II examines the Supreme Court’s early Necessary and Proper Clause jurisprudence—namely McCulloch v. …

A Warrant Requirement Resurgence? The Fourth Amendment In The Roberts Court, Benjamin J. Priester

St. John's Law Review

(Excerpt)

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the “warrant requirement,” one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. …

Striking The Balance: Search Warrants And Encryption Protected Smartphones, Nicholas A. Oliva

Journal of Civil Rights and Economic Development

(Excerpt)

This note’s analysis of searches of encrypted cell phone will be broken down into in three parts. Part I of this note provides context for the balance between individual privacy and law enforcement by reviewing general Fourth Amendment principles and then Supreme Court rulings that apply these principles to cell phones. Part II then details the advancements in cell phone technology, specifically encryption. These new technologies render the data on cell phones inaccessible and lead law enforcement to go beyond search warrants and seek special orders pursuant to the All Writs Act. Part II provides an overview of the …

Sex Offenders, Custody And Habeas, Wendy R. Calaway

St. John's Law Review

(Excerpt)

This Article focuses on habeas petitioners under a conviction from state court seeking federal habeas review. First, Part I will discuss the historical context of the writ of habeas corpus and the development of its purpose and scope. Part I also examines the current status of habeas corpus law, recent legislative efforts to limit its reach, and, specifically, the idea of custody as a prerequisite to habeas relief. Part II explores the evolution of the custody requirement both at the Supreme Court and in lower federal courts. In particular, this section looks at how the meaning of custody has …