Law Commons^™

Closing The Data Gap: Protecting Biometric Information Under The Biometric Information Privacy Act And The California Consumer Protection Act, Eva-Maria Ghelardi

St. John's Law Review

(Excerpt)

Between May and June of 2014, Stacy Rosenbach bought her son, Alexander, a Six Flags season pass online. She submitted Alexander’s personal information and read that Alexander would complete the sign-up process at the park. No details described what the sign-up process would entail.

After showing his online receipt at Six Flags, Alexander was brought to an office to provide the customary thumb scan. Alexander’s thumb scan, along with the season pass card, was required to permit him to enter the various rides. He was not given any information about how his thumb scan would be stored or used …

Arbitrating Security Class Actions: The Limits Of Forum Selection Bylaws, Paul Schochet

St. John's Law Review

No abstract provided.

An Immigration Innovation: A Comparative Analysis Of The American Diversity Visa Lottery Program And The Canadian Points-Based System, Jennifer Hopkins

St. John's Law Review

(Excerpt)

United States immigration policy has historically been a strategy for national growth. Congress passed the Immigration Act of 1990 to stimulate further growth by increasing immigration opportunities. This substantial immigration reform created the Diversity Visa (“DV”) lottery program, which administers 50,000 lawful permanent residence visas annually. These visas are drawn randomly from a pool of applicants from countries with low rates of immigration to the United States.

Donald J. Trump pushed for major immigration reform beginning on his first day in office, including the repeal of the DV program and the development of a points-based system modeling the current …

Nazi Germany's Race Laws, The United States, And American Indians, Robert J. Miller

St. John's Law Review

(Excerpt)

Most Americans would be shocked to learn that in the 1920s and 1930s Adolf Hitler and Nazi scholars, lawyers, and officials were studying United States law while developing Germany’s policies and laws concerning Jews and the conquest of Eastern Europe. Most Americans would also be surprised that, as the leaders of the Third Reich were turning racist ideas into official German policies, Nazis were carefully studying United States federal Indian law and state laws that discriminated against Indian nations and American Indians.

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 …

Shareholder Wealth Maximization: A Schelling Point, Martin Edwards

St. John's Law Review

(Excerpt)

Imagine a reality television game show where two contestants begin the game in two different places in New York City. The object of the game is for the two contestants to find each other, but they do not know anything about each other and they have no way of communicating. If they succeed, both contestants win a prize. If they fail, they get nothing. With no ability to explicitly bargain over the meeting, the parties have to make an educated guess about what the other person is most likely to do. Most people, confronted with this sort of tacit …

Free Speech Has Gotten Very Expensive: Rethinking Political Speech Regulation In A Post-Truth World, John A. Barrett, Jr.

St. John's Law Review

(Excerpt)

Protecting free speech has been a foundational principle of American democracy since the nation’s founding. A core element of free speech has long been a prohibition on regulating political speech. The principle behind this protection holds that citizens are free to make whatever political pronouncements they wish and that their speech shall remain free from government suppression. Even within the limited exceptions to unfettered political speech, like defamation or libel, the speech is not banned but may merely result in liability. A premise underlying this view is that competing viewpoints, by being made available to us all, will allow …

Manning, Powell, And The Habitual Misunderstanding Of Addiction, Matt Dean

St. John's Law Review

(Excerpt)

Bryan Manning, a homeless resident of Roanoke, Virginia, has been arrested and prosecuted more than thirty times for drinking or possessing alcohol. Although alcohol is generally legal in Virginia, Mr. Manning was forbidden for many years to “possess” it, “consume” it, or “purchase” it. On at least one occasion, police arrested him merely for “smelling like alcohol.” On another occasion, he was arrested because he happened to be shopping in a Walmart where alcoholic beverages were sold. For decades, Virginia law permitted a state circuit court to issue a civil order declaring an individual to be “an habitual drunkard” …

Staying True To Nsmia: A Roadmap For Successful State Fiduciary Rules After Reg Bi, Maria E. Vaz Ferreira

St. John's Law Review

(Excerpt)

As Americans, there is hardly anything we value more than freedom. Being “free to choose” is the core guarantee through which we pursue our livelihood and succeed at happiness. The more choices, the better. But what if we we are supposed to choose blindly? In our postindustrial society, we often feel overwhelmed by the myriad choices we must make simply to get through our daily lives. To inform our choices, we rely on assumptions. More importantly, we rely on each other.

Reliance is central in the world of financial investments. Financial products are increasingly complex, and investors need specialized …

Bargaining Without The Blindfold: Adapting Criminal Discovery Practice To A Plea-Based System, Alex Karambelas

St. John's Law Review

(Excerpt)

In 2015, Terrell Gills was arrested on charges related to a Dunkin’ Donuts robbery in Queens, based on a partial DNA match. His attorney’s investigation yielded news articles about two other Dunkin’ Donuts robberies in the same area, which took place in the same week. In the eighteen months following his arraignment, Mr. Gills was incarcerated at Rikers Island because he was unable to afford his $10,000 bail. During that period, Mr. Gills’s attorney made repeated requests for information related to the other two robberies. It was not until four days before trial that the prosecution disclosed reports from …

Can A Person's "Slate" Ever Really Be "Cleaned"? The Modern-Day Implications Of Pennsylvania's Clean Slate Act, Kimberly E. Capuder

St. John's Law Review

(Exceprt)

In 2006, Khalia was arrested for a “low-level counterfeiting charge.” While Khalia was innocent and never convicted for the charged offense, she still had a criminal record. Because she was concerned that future employers would “view her as a thief,” she never applied to any of her dream jobs. But once Khalia’s arrest record was automatically sealed, she finally had enough confidence to send in a job application to a prestigious consulting firm, and was offered the position. Khalia believes that her newly sealed criminal record “means a future without judgment.” And this future without judgment was made possible …

Why Liberalism Persists: The Neglected Life Of The Law In The Story Of Liberalism's Decline, Kenneth L. Townsend

St. John's Law Review

(Excerpt)

Liberalism is in decline in the West. Past political divides that pitted classically liberal conservatives against moderate to progressive political liberals are giving way to a new landscape in which a liberal consensus simply cannot be assumed. From the left, socialist and identity-based critiques of liberalism have called into question core liberal assumptions regarding procedural justice, the division between public and private realms, and the rights of individuals. From the right, an increasingly vocal group of conservatives is questioning classical liberalism’s commitment to limited government, a free market, and individual rights in favor of a vision of political community …

Disruption To Disorder: The Case Study Of For-Profit Legal Education In Riaz Tejani's Law Mart, Andrew W. Jurs

St. John's Law Review

(Excerpt)

Rarely a day goes by without headlines hailing new approaches to legal education, from mild changes to major modifications to the existing order. These new approaches range from minor tweaks to major overhauls and, in recent years, have included innovations such as formative assessment, flipped classrooms, two-year JD programs, tiered licensing, GRE admissions, online education, and refocusing on practice skills or professionalism—to name a few. Our era of disruption is a time to stop and reflect upon an earlier story of legal education experimentation, namely the rise and eventual collapse of for-profit legal education. It is a story outlined …

Property As Rent, Faisal Chaudhry

St. John's Law Review

(Excerpt)

What is property? Over the course of the past two decades, legal scholars have reopened this question in a highly visible and often fractious way. On one side of the renewed debate are those who have sought to restore an object-centered model of property as an in rem right to exclude; on the other are those who have sought to reorient the old adage that property is a “bundle of sticks” toward a new emphasis on property’s role in forging social relations and democratic community. Sometimes known as a split between the “ownership” versus “progressive property” models, as fruitful …

Robert Jackson's Critique Of Trump V. Hawaii, William R. Casto

St. John's Law Review

(Excerpt)

Over seventy years ago, United States Supreme Court Justice Robert H. Jackson accurately predicted the Supreme Court’s decision in Trump v. Hawaii. As he foresaw, the Court rubberstamped a President’s purposeful discrimination against a minority religion. This brief Essay explains Trump using Jackson’s critique of judicial review in national-security cases. The Essay also uses Trump to examine a flaw—probably structural—in the constitutional theory of process jurisprudence. The Trump case involved the Court’s construction of congressional legislation apparently limiting the President’s authority, but the present Essay does not address that aspect of the opinion.

New York's Approach To Faulty Work And The Term “Occurrence” In Commercial General Liability Insurance Policies, Richard M. Hauser Jr.

St. John's Law Review

(Excerpt)

Imagine the following scenario: A large power plant hires a global construction firm to produce eight reactors designed to remove toxic pollutants from exhaust that the plant releases into the atmosphere. The reactors are large and extremely complicated pieces of machinery, so the construction company subcontracts the manufacturing and installation of their internal components to multiple different subcontractors. Shortly after the power plant puts three of the reactors into operation, plant supervisors discover cracking and fracturing in the reactors caused by a defect in an internal gas riser manufactured by a subcontractor. The damage to those reactors is so …

So You Want To Be An Author: A Comparative Analysis Of The Authorial Rights Awarded To Performers, Daniel Gomez

St. John's Law Review

(Excerpt)

In his classic 1980 song “On the Road Again,” Willie Nelson articulates that “the life [he] love[s] is making music with [his] friends.” This affinity for the life of a traveling performer likely has little to do with his authorial rights under the Copyright Act. However, as this Note demonstrates, Mr. Nelson indeed benefited from favorable authorial rights when compared to other types of performers, beyond the rights he acquired as the song’s writer. Specifically, the current law around the default authorial rights of performers provides greater protection to performers of sound recordings than it affords to visual and …

Revoking Supervised Release In The Age Of Legal Cannabis, Zachary J. Weiner

St. John's Law Review

(Excerpt)

Supervised release—part of the original sentence following a guilty verdict—is a system by which federal probation officers monitor prisoners released from federal prison. In imposing supervised release, sentencing judges set conditions that each supervisee must comply with, or risk reincarceration at the discretion of the sentencing judge. Certain conditions of supervised release are prescribed by statute and others are crafted by judges.

If a defendant violates the terms of supervised release by possessing cannabis products, the statutory regime provides the sentencing judge with two options: revoke the defendant’s supervised release and reincarcerate her or, alternatively, release the defendant from …

Nothing Is Inevitable: A Rejection Of The Inevitable Disclosure Doctrine Under The Defend Trade Secrets Act, Jacqueline R. Mancini

St. John's Law Review

(Excerpt)

Until June 2013, Manish Desai worked for Molon Motor and Coil Corporation (“Molon”) as Head of Quality Control. In June of that year, Desai left Molon to take a position with a competitor of Molon, Nidec Motor Corporation (“Nidec”). Molon brought suit against Nidec for trade secret misappropriation and alleged that Desai copied confidential information onto a flash drive before his departure. Based on these allegations, Molon argued not only that Desai unlawfully disclosed its trade secrets but also that “Nidec used and continues to use that information.” Molon brought suit under the federal Defend Trade Secrets Act and …

A Separation Of Powers Analysis Of Forum Non Conveniens’ Adequate Available Forum, Jason S. Palmer

St. John's Law Review

(Excerpt)

“Boehner snubs [White House], invites Netanyahu to address Congress.” These words, or words remarkably similar, headlined newspapers all around the United States on January 21, 2015. Without consulting President Obama, House Speaker John Boehner invited Israeli Prime Minister Benyamin Netanyahu to address a joint session of Congress in opposition to the White House’s overtures to Iran with respect to its nuclear program. Speaker Boehner extended the invitation in apparent response to President Obama’s State of the Union Address, in which he informed Congress that any further economic sanctions bill against Iran at that time would be detrimental to ongoing …

Loopholes For The Affluent Bankrupt, David R. Hague

St. John's Law Review

(Excerpt)

Recent bankruptcy cases are exposing a problem. Affluent individuals filing for bankruptcy are treated more favorably under the Bankruptcy Code than those debtors with little to no means of financial sustenance or income. Did Congress intend this result? The legislative history is unclear. But one thing seems certain: The United States Bankruptcy Code contains a set of loopholes that appear to be designed for the well-to-do segment of society. Courts throughout the United States are either overlooking these provisions or simply condoning their utilization under the defensible conviction that the Bankruptcy Code permits it.

In this Article, I argue …

The Limits Of Permissible Judicial Campaign Speech In New York, Vito M. Destefano

St. John's Law Review

(Excerpt)

In December 2018, New York’s Advisory Committee on Judicial Ethics (“ACJE”), which I proudly served on for ten years, issued Opinion 17-28, concerning an inquiry by a judicial candidate as to whether he or she could respond to a candidate questionnaire prepared by the New York State Right to Life Committee (“RTL questionnaire”). In the RTL questionnaire, the candidate is asked a series of questions concerning the candidate’s personal beliefs on abortion, the beginning of life, Roe v. Wade, the definition of personhood, the New York and United States Constitutions, and so on. Each question asking for the …

Maximizing Intellectual Property: Optimality, Synchronicity, And Distributive Justice, David Blankfein-Tabachnick

St. John's Law Review

(Excerpt)

This Article addresses the distributive structure of intellectual property and innovation policy and the foundational role it plays in distributive justice. Distributive accounts of law are undergoing a renaissance; an unprecedented paradigm shift away from the wealth-maximizing approach to law and legal theory and toward a distributive view. In line with this shift, this Article breaks new ground in providing a needed framework for a distributive theory of intellectual property law and innovation policy and articulates an appealing, egalitarian alternative to wealth- or welfare-maximizing accounts of intellectual property and innovation policy. In doing so, this Article diagnoses and serves …

Special Education No Man's Land, Adrián E. Alvarez

St. John's Law Review

(Excerpt)

Since 2014, unaccompanied immigrant children have migrated to the United States in staggering numbers. The vast majority come from the Northern Triangle countries of Central America—El Salvador, Guatemala, and Honduras—and many are fleeing some of the highest homicide rates in the world. Immigration lawyers have highlighted many problems with the federal regime that cares for these children before they are released to family members or other adults living in the United States while their immigration cases move forward. Yet there is one group of unaccompanied minors that is not even on the radar of many advocates: unaccompanied children with …