Law Commons^™

The Shortcomings Of New York's Long-Arm Statute: Defamation In The Age Of Technology, Robert D. Nussbaum

St. John's Law Review

(Excerpt)

This Note suggests that the New York legislature amend New York's long-arm statute so that it no longer excludes the tort of defamation as a basis for long-arm jurisdiction. Part I provides a brief background and history of jurisdiction and longarm statutes in general. It also focuses on New York's statute more specifically. Part II focuses on the arguments for excluding acts of defamation from long-arm jurisdiction and compares New York's statute to those of other states. Finally, Part III examines the different policy reasons for changing the statute and argues that such a change will not offend Due …

Crimes Involving Moral Turpitude: In Search Of A Moral Approach To Immoral Crimes, Patrick J. Campbell

St. John's Law Review

(Excerpt)

This Note seeks to demonstrate that the term "moral turpitude" is sufficiently ambiguous to warrant judicial deference to the Attorney General's opinion in Silva-Trevino. Part I explains the origins of "crimes involving moral turpitude" as grounds for removal and inadmissibility, and how courts have historically defined which crimes fit within this category. Even though courts do not dispute the general definition of moral turpitude, this Note explains how legislation that centers on subjective issues like morality is inherently ambiguous. Part II explains the shortfalls of the approach derived from case law prior to Silva-Trevino, largely because of …

Business And Commercial Litigation In Federal Courts (3d Ed.), Edited By Robert L. Haig, James M. Wicks

St. John's Law Review

(Excerpt)

The BCL is comprehensive, up-to-date, and very user-friendly. The practice aids, strategic considerations, checklists, and forms all make this set of books a "must-have" for every business litigator who is or will be going to federal court. Even as law libraries seem to be moving toward cutting book subscriptions, if one were to subscribe to only a single set of practice-based books, this should be it.

Fragmenting The Community: Immigration Enforcement And The Unintended Consequences Of Local Police Non-Cooperation Policies, Natashia Tidwell

St. John's Law Review

(Excerpt)

Part I traces the historical roots of the relationship between local police and federal immigration authorities, beginning with the changes in enforcement strategy precipitated by the September 11, 2001 attacks and leading up to the launch of S-Comm. The federal government's increased reliance on local police to supplement its internal enforcement efforts has raised several Tenth Amendment concerns as the states struggle to define the proper scope of their "inherent authority" to act in immigration matters, with officials in some so-called sanctuary cities insisting that their inherent authority to enforce federal immigration law is commensurate with the sovereign right …

Payment Systems, Consumer Tragedy, And Ineffective Remedies, Marc L. Roark

St. John's Law Review

(Excerpt)

This Article engages how those social considerations interact with commercial contracting principles and payments policies to recommend an over-arching narrative of fairness. At the core is the desire to create balance amongst the competing interests, while recognizing the role that risk and access should play in defining the legal remedies available to consumers. To do so, the Article attempts to understand the competing interests represented by different constituents of SVPs, including consumers and merchants. In particular, the Article attempts to tell a story of two different types of consumers. The first is one whom we might not care much …

The Community Reinvestment Act: Guilty, But Not As Charged, Raymond H. Brescia

St. John's Law Review

(Excerpt)

With the goals of assessing the state of the research on the CRA and drawing some insights into what reforms this research suggests, this Article proceeds as follows. Part I provides an overview of the CRA's structure and reach. Part II provides an overview of the impact of the financial crisis on low- and moderate-income communities, particularly communities of color. Part III assesses the current state of the research, with particular emphasis on the NBER report described above. Part IV identifies the disconnect between the CRA's reach and its goals given the current state of banking and makes suggestions …

The Electronic Document Retention System Ate My Homework: Gross Negligence And The Rebuttable Presumption Of Prejudice Within The Doctrine Of Spoliation In Federal Courts, Tristan Evans-Wilent

St. John's Law Review

(Excerpt)

This Note argues against imposing such a rebuttable presumption where the spoliating party acted with gross negligence. Part I provides a general background of the doctrine of spoliation and its application to electronic information. Part II examines the three different approaches taken by the federal circuits to whether gross negligence should trigger a rebuttable presumption that the spoliated evidence was prejudicial to the spoliating party. Finally, Part III argues that courts should not allow gross negligence to trigger a rebuttable presumption that the spoliated evidence was prejudicial to the spoliating party.

Revival Or Revolution: U.S. Trust's Role In The Contracts Clause Circuit Split, Michael Cataldo

St. John's Law Review

(Excerpt)

This Note argues that U.S. Trust's Contracts Clause test created ambiguities that have spawned varying and conflicting approaches in the circuits. This Note also argues that U.S. Trust's failure to advance the Framers' original intent and departure from precedent has created the doctrinal disagreement that feeds the circuit split. Part I presents the history of the Contracts Clause from the Constitutional Convention up to the decision in U.S. Trust. Part II emphasizes the negative consequences of U.S. Trust's novel approach by detailing the varying approaches the circuits have taken in applying the ambiguous dual standards set out in …

Unfair Practices And Practicing Attorneys: Should The Fair Debt Collection Practices Act Apply To Communications Between Debt Collectors And Debtors' Attorneys?, Yosefa A. Englard

St. John's Law Review

(Excerpt)

This Note proceeds in three parts. Part I discusses the history of the Act and Congress's intent behind its enactment. Part I also analyzes some of the Act's provisions relating to debt collectors. Part II examines in detail the three current approaches taken by the circuit courts for determining the applicability of the Act to communications between debt collectors and debtors' attorneys. Part III argues that none of the current approaches appropriately resolves the issue. Additionally, Part III proposes a simple two-step inquiry for courts to employ when attempting to resolve whether communications toward a debtor's attorney are actionable …

Reexamining School Liability And The Viability Of A Special Relationship Claim In The Aftermath Of Deshaney V. Winnebago County Department Of Social Services, Anita Binayifaal

St. John's Law Review

(Excerpt)

This Note focuses on whether a school deprives a student of a constitutional due process right to bodily integrity and security and thus violates section 1983-when the school fails to adequately protect the student from harm. At the center of this discussion is the special relationship exception that DeShaney carved out. Part I briefly discusses the Fourteenth Amendment, due process, and section 1983 claims. It then examines the facts and holding of DeShaney, which have shaped the boundaries of school system liability.3 1 Part II discusses the majority approach taken by circuit courts in determining the proper duty …

From Peer-To-Peer Networks To Cloud Computing: How Technology Is Redefining Child Pornography Laws, Audrey Rogers

St. John's Law Review

(Excerpt)

This Article traces the history of the child pornography laws and sentencing policy in Part I. Part II explains the technologies that have caused some of the current controversies, and then Part III describes how these technologies have blurred the offenses. Finally, Part IV makes suggestions as to how the law could better reflect technology and comport with a refined harm rationale. Courts, legal scholars, and medical experts have explained the harm includes the sexual abuse captured in the images and the psychological injury the victim endures knowing the images are being viewed. This Article further develops the harm …

Into The Amazon: Clarity And Transparency In Ftc Section 5 Merger Doctrine, Christina C. Ma

St. John's Law Review

(Excerpt)

Part I of this Article provides a description of the enforcement procedures available to the DOJ and the FTC and of the existing standards guiding enforcement. Part II discusses how agency settlements and greater court deference to the agencies has changed the landscape of merger enforcement, raising transparency and accountability concerns. These concerns are magnified within the FTC because of its administrative proceeding and section 5 powers, ultimately providing the FTC with greater opportunity to shape merger law. Despite the expansive discretion available to the FTC, section 5 case law is sparse. Part III tracks early attempts to broaden …

Due Date: Enforcing Surrogacy Promises In The Best Interest Of The Child, Browne C. Lewis

St. John's Law Review

(Excerpt)

This Article is not meant to debate whether surrogacy contracts should be legal. The purpose of this Article is to address situations where the surrogate reneges on her promise and attempts to keep the child. In particular, this Article deals with the adjudication of maternity after the surrogate has breached the agreement by failing to turn the child over to the intended parent or parents. This Article is divided into four parts. Part I discusses the current ways courts resolve breaches of surrogacy contracts. Part II evaluates the appropriateness of legal remedies like damages and specific performance when a …

The Indefinite Quarantine: A Public Health Review Of Chronic Inconsistencies In Sexually Violent Predator Statutes, Isaac D. Buck

St. John's Law Review

(Excerpt)

This Article undertakes this public health review in five parts. Part I considers the general structure of SVP statutes, noting the reasoning behind the enactment and implementation of these statutes. Part II focuses the analysis on examples of three different types of SVP statutes' limiting criteria by considering SVP laws from New Jersey, Wisconsin, Virginia, and California. Part III compares the preventive detentions of SVP commitment and quarantine. Part IV applies quarantine principles to the SVP framework, and, after concluding that SVP statutes, as currently configured, do not sufficiently withstand this public health critique, Part V proposes solutions.

A Collective Good: Disability Diversity As A Value In Public Sector Collective Bargaining Agreements, Carrie Griffin Basas

St. John's Law Review

(Excerpt)

Part I of this Article explains why disability is a helpful lens and reviews the theoretical underpinnings of the roles of contracts, such as CBAs, in setting workplace dynamics and generating "informal laws." Part II describes the methodology used in this study of CBAs. Part III is a taxonomy of the models of disability-framing and workplace dynamics that the CBAs reflect. Part IV presents a new framework for envisioning how the corrective, civil rights vision of the Idealist model might transform workplaces for all workers-marginalized or empowered, public or private-and, therefore, transform labor and employment law. In other words, …

New York's Property Condition Disclosure Act: Extensive Loopholes Leave Buyers And Sellers Of Residential Real Property Governed By The Common Law, Philip Lucrezia

St. John's Law Review

No abstract provided.

Article 2 Of The Uniform Commercial Code And Consumer Protection: The Refusal To Experiment, Caroline Edwards

St. John's Law Review

No abstract provided.

Rethinking The Corporation (And Race) In America: Can Law (And Professionalization) Fix "Minor" Problems Of Externalization, Internalization, And Governance?, Steven A. Ramirez

St. John's Law Review

No abstract provided.

The Implied Covenant Of Good Faith In Contract Interpretation And Gap-Filling: Reviling A Revered Relic, Harold Dubroff

St. John's Law Review

No abstract provided.

New York's Post-Verdict Scheme For The Treatment Of Insanity Acquittees: Balancing Public Safety With Rights Of The Mentally Ill, Larry Cunningham

Journal of Civil Rights and Economic Development

(Excerpt)

In this Article, I will explore both the statutory workings of the insanity review system in New York and examine ways in which CPL § 330.20 can be improved. In Part I, I will provide a detailed account of how a typical insanity review moves through the system. In Part II, I will explore the ways in which CPL § 330.20, as currently written, protects both the public and individual rights. In Part III, I will propose modest reforms to improve the law.

Caught In A Time Warp: The Education Rights Of English Language Learners, Rosemary Salomone

Journal of Civil Rights and Economic Development

(Excerpt)

Although the United States has long experience in educating children from immigrant families, the role the home language should play in the education of those who are not proficient in English remains politically charged and unresolved. For the past four decades, since the first infusion of federal funds that support programs for what are now called "English Language Learners," this question has engaged educators, policy makers, and researchers in a heated debate centering on bilingual education versus English-Only instruction. The first approach generally uses the child's home language either as a transitional bridge to learning English or, less commonly, …

Sense And Sentencing: Our Imprisonment Epidemic, Michael A. Simons

Journal of Civil Rights and Economic Development

(Excerpt)

Over the past thirty years, the most important sentencing development has not been the legislative adoption of mandatory guidelines, or the judicial creation of advisory guidelines, or the adoption of a wide variety of guidelines systems in the states, or the widespread elimination of parole, or the abandonment of rehabilitation as a sentencing goal. No, the most important sentencing development has been our rejection of the principal of parsimony: the notion that a sentence should be as long as - but no longer than - necessary to accomplish the goals of punishment. Instead, we have replaced parsimony with severity, …

Social Justice In The Surrogate's Courts, Margaret Valentine Turano

Journal of Civil Rights and Economic Development

(Excerpt)

When the Journal of Civil Rights and Economic Development put out a call to the St. John's faculty for papers for this symposium, I knew I wanted to participate. How interesting, I thought, to view our respective disciplines through the lens of racial, social and economic justice. My area of expertise is Trusts & Estates, and at first blush the link between Trusts & Estates and social justice may seem attenuated, but the Surrogate's Courts are always abuzz with fiduciary issues, where one person is entrusted to safeguard another's interests, and in that context issues of social justice bubble …

Bankruptcy Reform And Economic Recovery, G. Ray Warner

Journal of Civil Rights and Economic Development

(Excerpt)

In 2005, following years of intensive lobbying by the consumer credit industry, the focus of the consumer bankruptcy law was changed from the liberal debtor-focused "fresh start" approach embodied in the 1978 Bankruptcy Code to a creditor-focused "can pay/must pay" approach. Although the shift to a can pay/must pay system started years earlier to address perceived abuses, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") completed that shift by engrafting onto the bankruptcy law a fairly strict and largely objective test for determining a debtor's ability to repay debt and by setting forth channeling rules designed …