Law Commons^™

Kennedy's Last Term: A Report On The 2017-2018 Supreme Court, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

(Excerpt)

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of …

A Rash Decision In Sunnyslope: Confusion Lingers Over Collateral Valuation, Michael D. Manzo

St. John's Law Review

(Excerpt)

This Comment argues that the Ninth Circuit’s Sunnyslope decision misconstrued the Rash Court’s holding and is divorced from the text and structure of the Code. Rash does not provide a brightline rule that answers valuation questions in cramdowns; it offers a flexible standard that is compatible with the Code’s protections for both debtors and secured creditors. Further, this Comment also argues that Sunnyslope could have been answered not as a valuation issue, but as a lien priority issue. In any event, the Ninth Circuit completely missed the mark in interpreting the Supreme Court’s holding in Rash and in understanding …

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

Endangered Deference: Separation Of Powers And Judicial Review Of Agency Interpretation, Kathryn M. Baldwin

St. John's Law Review

(Excerpt)

This Note proceeds in four parts: Part I consists of a brief history of the development of agency deference doctrine. Part II examines the decline of deference from the perspective of all three branches of government: the overuse by the executive agency that catalyzed deference’s denouement, the underuse by the United States Supreme Court and renewed separation of powers challenges, and the parallel assault from Congress under the pending SOPRA. Part III addresses the proposed de novo review standard and highlights the deficiencies in that solution, emphasizing instead the tools that Congress already employs to meaningfully check agency interpretations. …

Attempting To Engage In Socially Coherent Dialogue About Religious Liberty And Equality, Alan Brownstein

Journal of Civil Rights and Economic Development

(Excerpt)

Most book reviews reflect the reviewer’s final conclusions about the author’s finished work. This review is more of a snapshot of the lengthy dialogue I have been engaged in for several months with Nelson Tebbe, the author of the book being reviewed. The symposium conference organized by the St. John’s Journal of Civil Rights and Economic Development in September 2016, invited several church-state scholars to comment on a draft manuscript of Nelson Tebbe’s forthcoming book, Religious Freedom in an Egalitarian Age. However, the book was not fully completed when this multi-participant dialogue began.

"We Are All Textualists Now": The Legacy Of Justice Antonin Scalia, Judge Diarmuid F. O'Scannlain

St. John's Law Review

(Excerpt)

One of my favorite extra-judicial activities is meeting with law students, and it is a pleasure to be with you today. But it is a special privilege to come back to the Jamaica campus of St. John’s College from which I graduated 60 years ago, long before the Law School had moved here from Schermerhorn Street in Brooklyn, and when there was only one building on this former golf course.

I was honored to call Justice Scalia a role model and friend. What I hope to convey to you today, however, is the effect Justice Scalia’s tenure on the …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Faculty Publications

(Excerpt)

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural …

Faith-Based Emergency Powers, Noa Ben-Asher

Faculty Publications

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a leading legal strategy in the Culture Wars. This strategy involves carving faith-based exceptions to rights of women and LGBT people. The concept of Faith-Based Emergency Powers is developed in this Article through an analogy to the “War on Terror.” In the War on Terror, conservatives typically have taken the position that judges, legislators, and the public must defer to the President and the executive branch in matters involving national security. This argument …