Law Commons^™

Rigid Rideshares And The Driver Flexibility Myth, Seth Goldstein

St. John's Law Review

(Excerpt)

In 2018, Uber, Lyft, and similar organizations spent $224 million to ensure that Proposition 22 ("Prop. 22") passed in California, reclassifying gig workers as independent contractors, but with some rights not typically guaranteed to independent contractors. Through the most expensive ballot measure in U.S. history at that point, Uber and Lyft argued that to preserve flexibility for drivers, they must remain as independent contractors under the law. However, Prop. 22 did not increase driver benefits nor provide any assurances of flexibility. Many workers in California "regret casting their ballots for Prop. 22" and "feel deceived" by Uber and Lyft. …

Protecting Unsanctioned Street Art Under The Visual Artists Rights Act Of 1990, Thomas Goddard

St. John's Law Review

(Excerpt)

Before 2013, artists and art enthusiasts would flock to a dilapidated building in Long Island City to view and engage with a vast collection of graffiti and street art murals. The site was filled with over two decades' worth of murals created by legendary street artists such as "Blade" and "Lady Pink." The building, with artists having free reign to paint on the walls of the 200,000 square foot space, became a mecca for graffiti and public art. The community would come in droves to experience the vibrant art and watch performances by rappers and dancers from around the …

The (Un)Fair Credit Reporting Act: How Courts Have Undermined The Protections Of The Fcra, Jagjot Singh

St. John's Law Review

(Excerpt)

In 2001, George Saenz ("Saenz") incurred a medical bill amounting to $512.31. Thereafter, Saenz failed to make timely payments, and the bill went into debt collection. The debt was sold to NCO Financial Systems, Inc. ("NCO"), a creditor, and "NCO accepted a compromise payment [amount] of $333 [as] full satisfaction." In 2003, Saenz requested a copy of his credit report from Trans Union, a credit reporting agency. The report listed the $512.31 debt as outstanding, in error, which Saenz disputed. Trans Union initiated an automated consumer dispute verification ("ACDV") procedure, a system that compares the credit reporting agency's data …

A Simple Solution To An Infinite Problem: Curbing Arbitration Provisions That Exceed The Scope Of The Federal Arbitration Act, Michael Russo

St. John's Law Review

(Excerpt)

In 2012, Diana Mey opened a new cell phone line with AT&T Mobility LLC ("Mobility"), the AT&T, Inc. ("AT&T") subsidiary responsible for AT&T's mobile services business in the United States. This required Mey to enter into the AT&T Wireless Customer Agreement, which contained an arbitration clause covering "all disputes and claims" "arising out of or relating to any aspect of the relationship[.]" Further, it applied as between each party's respective "subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or Devices under this or prior Agreements …

Low-Income Litigants In The Sandbox: Court Record Data And The Legal Technology A2j Market, Claire Johnson Raba

St. John's Law Review

(Excerpt)

Katrina was a community college student with two children, trying to juggle work, childcare, and school. During class in the spring of 2018, her phone buzzed incessantly. She looked down to see a message from her roommate saying a process server had shown up at the house to deliver a summons and complaint, naming Katrina in a lawsuit filed in county court by a debt collection company she had never heard of. Katrina turned to the internet for help and found herself overwhelmed with advertisements that began to pop up in her social media feeds trying to get her …

Problems With Authority, Amy J. Griffin

St. John's Law Review

(Excerpt)

Judicial decision-making rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Because weight-of-authority rules are largely informal and almost entirely unwritten, we lack a comprehensive account of their content. This raises serious questions—sounding in due process and access to justice—about whether judicial decision-making rests ultimately on judges’ arbitrary and unexamined preferences rather than transparent and deliberative processes. These norms of authority are largely invisible to many, including parties appearing before the courts. They govern the …

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 …

Rigid Rideshares And Driver Monitoring, Seth D. Goldstein

Student Scholarship

(Excerpt)

Since 2018, Uber has submitted applications for numerous patents that use algorithms to “define” safety. These patents “calculate” safety through multiple factors, including crime reports and statistics, news databases, academic databases of reports of violent conflicts in a location, the car’s condition, how often the driver swerves, and “social media.” These machine-learning models attempt to predict “the likelihood that a driver will be involved in dangerous driving or interpersonal conflict.” Drivers are generally outraged by these patents and have commented that these recorded metrics will be “used to manipulate and influence” driver behavior. There is merit to this fear. …

Lethal Immigration Enforcement, Abel Rodríguez

Faculty Publications

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures …

Keep Your Fingerprints To Yourself: New York Needs A Biometric Privacy Law, Brendan Mcnerney

St. John's Law Review

(Excerpt)

Imagine walking into a store, picking something up, and just walking out. No longer is this shoplifting, it is legal. In 2016, Amazon introduced their “Just Walk Out” technology in Seattle. “Just Walk Out” uses cameras located throughout the store to monitor shoppers, document what they pick up, and automatically charge that shoppers’ Amazon account when they leave the store. Recently, Amazon started selling “Just Walk Out” technology to other retailers. Since then, retailers have become increasingly interested in collecting and using customers’ “biometric identifiers and information.” Generally, “biometrics” is used to refer to “measurable human biological and behavioral …

One Test To Rule Them All: Retiring The Dual Standard For Fictional Character Copyrightability In The Ninth Circuit, Kiersten Daly

St. John's Law Review

(Excerpt)

From Captain Jack Sparrow sailing on the Black Pearl in Pirates of Caribbean to Frodo Baggins trekking through Mordor in Lord of the Rings, well-developed characters are vital to the success of a story. Iconic characters like Captain Jack and Frodo Baggins have each developed a cult following as a result of their interesting storylines and character development. The instant recognition and nostalgia associated with such iconic characters has motivated companies to monetize their likenesses. Whether it is car companies recreating the Batmobile or the recent trend in creating story-based pop-up shops, there is a lot of value …

Title Seven Ate Nine? Extending Bostock's Meaning Of "Sex" From Title Vii To Title Ix, Julia L. Shea

St. John's Law Review

(Excerpt)

When JayCee Cooper walked out onto the platform at a women’s powerlifting competition for the first time, “everything else fell away: her years-long internal struggle over her gender identity, her decision to leave men’s sports when she began transitioning, her doubts that she would ever feel safe if she returned to competitions.” Powerlifting was JayCee’s way of feeling empowered in her own life, but after signing up for more competitions, she was told she could no longer compete because of a discriminatory policy that barred transgender women. Transgender athletes play sports for the same reasons as anyone else, including …

Unaccompanied Children And The Need For Legal Representation In Immigration Proceedings, Sejal Singh

St. John's Law Review

(Excerpt)

An unaccompanied child is defined as someone who enters the United States under the age of eighteen, without lawful status, and without an accompanying parent or legal guardian. Despite the term’s implication, many children do not enter the country alone but are either separated from their family members at the border or left by smugglers or other migrants near the border. The number of unaccompanied minors plunged in early 2020 due to border closures and restrictions amid the COVID-19 pandemic; however, a recent surge has led to a strain on government resources and a backlog of cases in immigration …

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 …

Border Enforcement As State-Created Danger, Jenny-Brooke Condon, Lori A. Nessel

St. John's Law Review

(Excerpt)

A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of …

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 …

Introduction, Rosemary Salomone

St. John's Law Review

(Excerpt)

This issue of the St. John’s Law Review includes several Articles that were initially presented at the Law Review’s Fall 2022 virtual symposium. The symposium commemorated the 40th anniversary of the Supreme Court’s landmark decision in Plyler v. Doe as a starting point for discussing current immigration law in the United States. It was dedicated in memory of Professor Michael A. Olivas, who held the William B. Bates Distinguished Chair in Law (Emeritus) and was the Director of the Institute for Higher Education Law and Governance at the University of Houston Law Center. Professor Olivas, a passionate advocate of …

In Memoriam

St. John's Law Review

(Excerpt)

The editors of the St. John’s Law Review respectfully dedicate this issue to Professor Olivas.

This Isn't A Reality Show: How Social Media Livestreams Of High-Profile Criminal Trials May Violate One's Right To A Fair Trial, Ryan Fenn

St. John's Law Review

(Excerpt)

Since the invention of television in 1927, the American legal system faced drastic changes. In 1935, the first trial was broadcast to the public in the case of Bruno Hauptmann. During the trial, “[e]laborate telegraph equipment” was installed in the courtroom, with “sound and motion picture equipment . . . plainly visible in the [courtroom] balcony.” From 1935 on, broadcasting technology has been utilized in the courtroom to convey the inner workings of certain courts to the public, which has stimulated debate over whether the use of this technology is conducive to a fair trial under the Sixth and …

Spacs, Forward-Looking Statements, And Rule 419: Is Sec Rulemaking Needed?, Nicholas Vota

St. John's Law Review

(Excerpt)

On October 8, 2020, FirstMark Horizon Acquisition Corp. (“FirstMark” or “Company”) closed an initial public offering (“IPO”) of 41,400,000 units. Each unit was priced at $10.00 and “consist[ed] of one share of Class A common stock of the Company . . . and one-third of one redeemable warrant of the Company.” Each whole warrant provided its holder with the right to purchase “one share of Class A [c]ommon [s]tock for $11.50 per share.” FirstMark generated $414,000,000 in connection with the IPO. These funds were then placed in a trust account and maintained by a trustee.

In a filing submitted …

Theft Of The American Dream: New York City's Third-Party Transfer Program, Joseph Mottola

St. John's Law Review

(Excerpt)

On September 5, 2018, Paul Saunders discovered a notice on the front door of his mother’s home: it stated that the property, a Brooklyn brownstone owned by the family for over forty years, now belonged to a company called Bridge Street. His mother, seventy-four-year-old retired nurse Marlene Saunders, had been notified several months earlier that her home, valued at two million dollars, was in danger of being foreclosed because she owed New York City (the “City”) $3,792 in unpaid water charges. Her son had already paid the water bill, but when he contacted the water department, he discovered that …

Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise

St. John's Law Review

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.

Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …

“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, …

Property And Prosperity, A Demythifying Story, Xiaoqian Hu

St. John's Law Review

(Excerpt)

Economic development is fundamentally a property law story. Prominent thinkers―from Adam Smith and Jeremy Bentham, to Douglass North and Richard Posner―tell us that protection of private property rights is essential for economic growth and wealth accumulation. Clear and freely alienable property rights reduce transaction costs and allow private bargaining to produce efficient results. Property rights allow owners to internalize the costs and benefits of their own behavior, reduce production costs, and encourage innovation. Secure property rights protect owners from arbitrary confiscation by the government, foster owner expectations, and facilitate investment, trade, and the development of financial markets. The idea …

Disinformation And The First Amendment: Fraud On The Public, Wes Henricksen

St. John's Law Review

(Excerpt)

Following the 2020 presidential election, the losing candidate, Donald Trump, along with most of the Republican Party, spread the false claim that the election had been stolen by Democrats. Joe Biden, so the claim went, had not been legitimately elected, and was therefore an illegitimate President and needed to be removed. This profitable falsehood6 became known as the “Big Lie.” It was not only baseless, but it was in fact made in spite of and in direct conflict with the overwhelming evidence debunking it. This did not stop people from believing it. Millions bought into the Big Lie, which …

The Law Of Equitable Distribution: When Is Domestic Violence More Than Just A Factor In Divorce?, Ada Tonkonogy

Journal of Civil Rights and Economic Development

(Excerpt)

Imagine you are married. After many years there are problems in your marriage. Some of these issues are beyond your control. You find out that your spouse is cheating on you. You plan to come home from work and confront your spouse about their infidelities. You even begin to think about the divorce process, confronting the concerns raised in your mind. I’ll be okay. I have a great career, I have worked my entire life, and I have saved. I will be okay.

That night you approach your spouse. After an argument breaks out, you tell your spouse that …

Camera-Enforced Streets: Creating An Anti-Racist System Of Traffic Enforcement, Katie O'Brien

Journal of Civil Rights and Economic Development

(Excerpt)

On July 10, 2015, Sandra Bland was pulled over while driving in Prairie View, Texas, for failure to signal a lane change after moving to allow a trooper’s vehicle to pass her car. As the stop progressed, the trooper ordered Bland to get out of her car. When she refused, the trooper threatened to “yank [Bland] out” of her car and “light [her] up” with his taser. After Bland left her vehicle, Trooper Encinia handcuffed her, wrestled her to the ground, and kneeled on her. He later falsely claimed that Bland assaulted him. Three days later, police found Bland …

Policy Over Publicity: Evaluating Andrew Cuomo's 'Outrageoulsy Ambitious And Irrefutably Smart' Education Spending Dilemma, Colin Mckillop

Journal of Civil Rights and Economic Development

(Excerpt)

For low- and middle-income high school students in New York, the prospect of attending college, especially on a full-time basis, has become increasingly bleak in recent years; tuition and other attendance costs continue to grow without a rise in education quality, “sixty-one percent of students graduate with college debt,” and debt held at graduation is increasing at “almost double the rate of inflation.” Thus, such students and their families were likely ecstatic on January 3, 2017, when Andrew Cuomo, the former Governor of New York, held an aggrandizing press conference to highlight the “1st signature proposal of his 2017 …

State Criminal Laws Could Be A Light In The Dark For The Hidden Victims Of Forced Marriage, Rebekah Marcarelli

Journal of Civil Rights and Economic Development

(Excerpt)

“There’s something you need to know about me . . . I am dead,” said Fraidy Reiss, a survivor of an abusive forced marriage, as she stood alone on a stage, speaking to a crowd. “I know what you’re thinking, [I don’t] look particularly dead . . . you might want to tell that to my family [because] they declared me dead almost thirteen years ago.”

Reiss, who founded the organization Unchained at Last to help forced marriage victims like herself, grew up in an ultra-Orthodox Jewish community in Brooklyn. Right after finishing high school, Reiss was asked to …