Law Commons^™

Bend, Don’T Break: Promoting Interagency Collaboration To Enhance Economic Sanctions As A Foreign Policy Tool, Carson Sugg

St. John's Law Review

(Excerpt)

The U.S. government’s sanctions measures and related enforcement actions for violations are ascending to new levels— both in number and scope. The Executive branch contends that additional authority is necessary to adequately undertake these initiatives, which are a response to proliferating exigent global situations. The requests face opposition from members of Congress and legal scholars, who argue that the current sanctions regime disproportionally favors the Executive at a cost to both individuals and the co-equal branches. The push and pull of these stances suggest that a review of the current regime is due.

This Note argues that economic sanctions …

Loosen Up: The Follies Of Strict Construction As Applied To A Statutory Tribal Sovereign Immunity Waiver, Joseph M. Raimondi

St. John's Law Review

(Excerpt)

On February 9, 2020, Brian Coughlin attempted suicide, leading to an eleven-day stint at the hospital. He was experiencing “overwhelming stress, anxiety and lack of hope for a better life.” He had recently filed for bankruptcy, which normally triggers a stay that prevents creditors from engaging in “any act to collect, assess, or recover a claim against the debtor . . . .” However, one of Coughlin’s creditors, associated with a Native American tribe —the Lac Du Flambeau Band of Lake Superior Chippewa Indians (“the Band”)—believed that it did not have to comply with the stay by virtue of …

Utah V. Strieff And Teaching Analysis, Lisa A. Tucker

St. John's Law Review

(Excerpt)

In Utah v. Strieff, the Supreme Court considered whether the Fourth Amendment required suppression of evidence obtained in an unlawful investigatory stop when police discovered that the person stopped was subject to lawful arrest based on an unrelated outstanding warrant. The majority opinion, written by Justice Clarence Thomas, held that suppression was not required in such a case; the dissent by Justice Sotomayor argued that it should be.

These two legal opinions took jarringly different approaches to determining a question of law, one that disproportionately impacts people of color, who are statistically most likely to be unlawfully stopped …

Document Subpoenas And The Moral Dilemma At The Heart Of The Privilege Against Self Incrimination, John W. Nields Jr.

St. John's Law Review

(Excerpt)

This Article will show that document subpoenas will nearly always compel “testimony.” This is so because the subpoena recipient is legally required to disclose to the party issuing the subpoena each and every document she has that is called for by the subpoena; and because, as Wigmore points out, the party issuing the subpoena will get the incriminating documents it seeks only if the subpoena recipient responds truthfully, disclosing every such incriminating document she has. And this means that the subpoena is compelling “testimony.”

That is the core teaching of the Hubbell decision in which the Court cites …

After The Age Of Discretion: Policing And Privacy In A World Of Automated Roadway Enforcement, Trayce Hockstad, Lawrence Cappello

St. John's Law Review

(Excerpt)

Our Fourth Amendment attempts to harmonize in fifty-eight words the tenuous, antagonistic relationship between privacy and public safety. These two values appear to be deadlocked in a contentious legal orbit, leaving behind them a trail of fascinating but foreboding jurisprudence in American law. The fundamental need of individuals for spaces of seclusion from government surveillance has endured a slow siphoning of its constitutional protection by the encroaching definition of the “public” and the perceived need to police every person and place that may be considered so. Nowhere has this proven truer than our nation’s roadways. As the judicial system …

2024 Sprizzo Award Program, James D. Herschlein, Robert A. O’Hare Jr., Richard P. Donoghue

St. John's Law Review

On June 18, 2024, the Manhattan Chapter of the St. John’s University School of Law’s Alumni Association awarded the 2024 Sprizzo Award, named for the late United States District Judge John E. Sprizzo ’59, to Richard P. Donoghue ’92, former Principal Associate Deputy Attorney General of the U.S., former U.S. Attorney for the Eastern District of New York, and now a partner in Pillsbury Winthrop Shaw Pittman LLP.

The program began with introductions by James Herschlein and Robert O’Hare, followed by remarks by Richard Donoghue. They have been lightly edited for publication here.

Venality: A Strangely Practical History Of Unremovable Offices And Limited Executive Power, Jed Handelsman Shugerman

Notre Dame Law Review

The Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.

This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. Moreover, this Article explains why it was widely understood …

A Remedy-Centered Approach To Antitrust, John O. Mcginnis, Grace Stippich

Notre Dame Law Review

This Article advocates for a remedy-centered approach to antitrust law, placing remedial concerns at the forefront of antitrust analysis. It asserts that the limits of effective remedies should fundamentally shape the scope of antitrust liability. Drawing on the “nirvana fallacy” from economic theory, the Article argues that antitrust should only intervene when a judicial remedy can reliably improve upon market conditions. If no such remedy exists, liability should not be imposed. The Article further demonstrates how remedial considerations already play a significant, if often unrecognized, role in antitrust doctrines, including the definitions of “agreement,” monopolists’ duties to deal, and the …

The Trouble With Classifications, Aziz Z. Huq

Notre Dame Law Review

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

Ad Hoc Constructions Of Penal Statutes, Joel S. Johnson

Notre Dame Law Review

The Supreme Court construed penal statutes in forty-three cases from the 2013 Term through the 2022 Term. In those cases, the Court tended to adopt narrow constructions, a preference consistent with several substantive canons of construction, such as the rule of lenity and the avoidance of constitutional vagueness concerns. Substantive canons were routinely included in party briefs, frequently raised during oral argument, and occasionally explicated in concurring opinions. Yet the Court did not rely on substantive canons in the vast majority of the narrow-construction cases. For example, the Court never firmly relied upon the rule of lenity—the substantive canon most …

The Lost History Of Judicial Restraint, Derek A. Webb

Notre Dame Law Review

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century …

A Uniform Choice? Esas And The State Right To Education, Hadiah C. Mabry

Notre Dame Law Review

Education savings accounts (ESAs) are on the rise. Just since 2023, ESAs have been on the legislative docket in Alabama, Georgia, Iowa, Montana, Ohio, Texas, Tennessee, and Wyoming, with ESAs already active in eleven other states. These programs provide funds directly to parents on a per-child basis which can be used on any number of educational pursuits. While ESAs are relatively young in the world of school choice, they are also the natural outgrowth of a greater push toward educational freedom for parents. They join the ranks of more established programs like school vouchers, tax credits, and charter schools.

Unlike …

Roving Extraterritoriality: The Murky Doctrine On State Laws Regulating Absent Citizens, Leo Schlueter

Notre Dame Law Review

It is generally agreed that sovereigns have the power to punish the crimes of their citizens abroad, at least in some situations. But sovereigns rarely exercise this power, and its contours are not well understood. This is especially true in the context of American federalism. It is unclear to what degree states have retained their sovereign extraterritorial powers, and the Supreme Court has never had occasion to fully explain their limits. Recent political developments, however, make it plausible that the question will soon arise. This Note attempts to provide some insight into the future debate over state criminal extraterritorial jurisdiction …

Clark Memorandum: Fall 2024, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• No Room for Compromise: Religious Polarization in the United States
• A Banking Lawyer’s Perspective on the Kirtland Safety Society Anti-Banking Company
• Hope in Dark Times
• Becoming a Master of Your Thoughts

Cardozo's Perlmutter Center For Legal Justice Helps Vacate Convictions Of Four Men Falsely Accused Of 1991 Murder, Perlmutter Center For Legal Justice At Cardozo Law

Cardozo News 2024

Lorain County, OH, Prosecutor J.D. Tomlinson Moves to Vacate Convictions of Four Men Falsely Accused of 1991 Murder

Defendants Collectively Served More than 100 Years in Prison; Joint Motion for Exoneration by all Parties Follows Rally Last Week for the “Ohio 4” Lorain, OH (December 2, 2024)

Professor Jessica Roth Speaks To Bloomberg About Hunter Biden Pardon, Jessica A. Roth

Cardozo News 2024

Professor Jessica Roth appeared on Bloomberg's Balance of Power to discuss President Joe Biden's recent pardoning of his son, Hunter Biden, why Biden pardoned him and why President Biden decided to pardon his son now.

Tribal Law: It’S Not That Scary, Adam Crepelle

Buffalo Law Review

Tribal law is often presented in a negative light. Indeed, the Supreme Court’s skepticism about tribal law has resulted in severe limitations on tribal jurisdiction. This Article challenges perceptions of tribal law by surveying tribal law. While tribal law does rely on tribal customs, tribal law is largely consistent with mainstream American law. Tribal laws are often modeled on state codes or the Restatement.

This Article contends tribal law mirrors western law for two primary reasons—efficiency and legitimacy. Regarding efficiency, borrowing a western law is easier than creating a law from scratch; plus, many laws are common across cultures. A …

Consumer Voice And Optimal Firm Size, W. C. Bunting

Buffalo Law Review

This Article examines the question: How can a consumer hold a seller to account in an exchange relationship when expectations have not been met? The Article’s first contribution is to recognize that, in the case of small firms, an employer business can provide a higher level of conflict resolution compared to a non-employer business. Unlike a consumer, an employer has the level of control necessary to compel an employee to remedy a product or service failure. Rather than engage in a costly personal confrontation with an employee, a dissatisfied consumer can simply request that the employer make the employee perform …

Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine, Wayne A. Logan

Buffalo Law Review

No abstract provided.

Moral Panic And The First Amendment, Michael L. Smith

Buffalo Law Review

Debates over free speech in the United States frequently see advocates of strong, broad protections at odds with those who argue that unfettered free speech tends to harm society’s most vulnerable. Free speech advocates invoke the marketplace of ideas and argue that the antidote to false or harmful speech is more speech. In response, critics contend that speech itself causes harm and chills counter-speech— effectively excluding marginalized groups, including women and LGBTQ people, from discourse altogether. These critics support limitations on robust free speech doctrine targeting speech that harms marginalized communities.

This Article identifies a significant wrinkle in this narrative: …