St. John’s Law Review最新文献

Social Justice and Deposit Return Calculations: A Study of Success and Failure in Commercial Law Reform 社会正义与存款返还计算:商法改革的成败研究

St. John’s Law Review Pub Date : 2020-01-09 DOI: 10.2139/ssrn.3252083

William H. Widen

引用次数: 0

The Parable of the Forms 形式的寓言

St. John’s Law Review Pub Date : 2019-08-21 DOI: 10.2139/SSRN.3178122

Samuel L. Bray

引用次数: 1

A Warrant Requirement Resurgence? The Fourth Amendment in the Roberts Court 权证要求卷土重来?罗伯茨法院的第四修正案

St. John’s Law Review Pub Date : 2018-09-21 DOI: 10.2139/SSRN.3253108

B. Priester

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引用次数: 2

Sex Offenders, Custody and Habeas 性犯罪者，监护和人身保护

St. John’s Law Review Pub Date : 2018-08-18 DOI: 10.2139/SSRN.3234043

Wendy Calaway

{"title":"Sex Offenders, Custody and Habeas","authors":"Wendy Calaway","doi":"10.2139/SSRN.3234043","DOIUrl":"https://doi.org/10.2139/SSRN.3234043","url":null,"abstract":"Habeas Corpus is lauded as the ultimate bastion of protection for individual liberty. It is often the last opportunity criminal defendants have at their disposal to unshackle themselves from a criminal conviction or sentence. Despite the rhetoric surrounding habeas corpus, legislative efforts to limit access to habeas review are well known and have become pervasive. However, at least one aspect of these limitations has traditionally been given very liberal interpretation by the courts. The requirement that the habeas petitioner be in custody in order to be eligible for habeas review has been given broad definition. The courts have not required that an individual be physically held in order to satisfy the custody requirement. In a series of cases, the courts have determined that everything from parole, to probation, to an OR bond pending trial satisfy the statutory requirement of custody. However, the courts have uniformly refused to extend this liberal interpretation of custody to individuals subject to statutory sex offender requirements. This Article argues that the requirements imposed on sex offenders are at least as onerous and burdensome as those imposed on parolees, probationers and those on bond awaiting trial. In many cases, the sex offender requirements are considerably more arduous. The Article discusses the history and evolution of the custody requirement and its application to sex offender cases. Using specific examples of cases where individuals subject to the sex offender requirements have suffered tangible and intangible restrictions on liberty and have failed to obtain relief in the courts, the Article argues that the courts have failed to consider the actual implications of these restrictions. Social science research on the collateral consequences of sex offender requirements is reviewed. The Article concludes that courts should re-examine the application of the custody doctrine to sex offenders, acknowledging the actual effects these restrictions have on the liberty interests of the individuals.","PeriodicalId":163253,"journal":{"name":"St. John’s Law Review","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130715628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Ethical Quandaries: The Holocaust Expropriated Art Recovery Act and Claims for Works in Public Museums 伦理困境:大屠杀征用艺术恢复法案和对公共博物馆作品的索赔

St. John’s Law Review Pub Date : 2017-02-10 DOI: 10.2139/SSRN.2915276

Charles Cronin

引用次数: 1

Private Solutions to Global Crises 私人解决全球危机

St. John’s Law Review Pub Date : 2015-03-27 DOI: 10.2139/SSRN.2586371

G. Day

{"title":"Private Solutions to Global Crises","authors":"G. Day","doi":"10.2139/SSRN.2586371","DOIUrl":"https://doi.org/10.2139/SSRN.2586371","url":null,"abstract":"Corporations rarely suffer liability for violations of human rights. This is because most abuses occur in developing countries where local authorities cannot, or refuse, to prosecute multinational companies. The courts of western nations also seldom hear human rights cases because disputes arising from foreign events can implicate serious sovereignty and jurisdictional issues. Several international regimes governing human rights exist but similarly lack authority to sanction abuses. In turn, human rights observers assert that, without the threat of liability, little compels transnational companies to adopt socially responsible behaviors.However, an effective and particularly unlikely means to redress corporate abuses has emerged despite receiving only scant attention. A new generation of contracts and international agreements are using arbitration as a means to enforce human rights. The oddity of this solution is that most popular and scholarly writings consider arbitration to be overwhelmingly biased towards corporations. But, in actuality, the arbitral process overcomes most of the obstacles that have frustrated prior human rights litigants. So if arbitration now offers a remedy to victims in the developing world, this article asks, not only what has changed, but why might arbitration be better able than courts of law to resolve human rights cases?Supported by interviews with prominent lawyers and practitioners, this article pursues several goals. The first is to bring attention to an emerging legal phenomenon that could alter the nature of transnational tort litigation, human rights enforcement, and international arbitration. In fact, several notable organizations — such as the United Nations, International Labor Organization, and the International Olympic Committee — are parties to, or are considering ratifying, agreements and contracts merging human rights and arbitration. And on a theoretical level, this article finds that arbitration is better structured than courts of law to hear certain disputes, including human rights violations. In turn, private solutions might be the best, or possibly the only, means to redress foreign corporate torts.","PeriodicalId":163253,"journal":{"name":"St. John’s Law Review","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127236255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

Reasonable Precaution for the Individual 个人的合理预防措施

St. John’s Law Review Pub Date : 2014-02-26 DOI: 10.2139/SSRN.2060539

Dov A. Waisman

{"title":"Reasonable Precaution for the Individual","authors":"Dov A. Waisman","doi":"10.2139/SSRN.2060539","DOIUrl":"https://doi.org/10.2139/SSRN.2060539","url":null,"abstract":"This Article offers a new answer to a hotly-debated question in legal theory, one that has important implications for accident law. When a firm engages in a socially beneficial activity that exposes workers, consumers, or bystanders to a risk of death or serious bodily harm — e.g., building a skyscraper, manufacturing prescription drugs, or operating a nuclear power plant — what level of precaution is the firm morally required to exercise? How, in other words, should the reasonable level of precaution be determined in a case of this type? In a series of provocative essays, Professor Barbara Fried has recently argued that standard cost-benefit analysis represents the “only game in town” when it comes to answering this question. Though cost-benefit analysis’s reliance on interpersonal aggregation — its summing of costs and benefits across individuals — has long been faulted for failing to respect the separateness of persons, Fried contends that there is simply no workable alternative for sorting permissible practices of risk imposition from impermissible ones. Responding to Fried’s challenge, this Article introduces a new interpretation of reasonable precaution — the individualized feasibility principle — that focuses on costs and risks to each affected individual, rather than on costs and risks considered in the aggregate. This principle holds that, when engaging in a significantly risky but socially beneficial activity, an actor is morally obligated to invest in safety precaution until the lesser of the following two points is reached: (i) the point at which further expenditure on safety would threaten the long-term survival of the activity; or (ii) the point at which further expenditure would reduce the well-being of each person responsible for bearing precaution costs by more than it would increase the expected well-being of each person exposed to the risk. Because it does a better job of accommodating widely-held intuitions in important types of cases, the individualized feasibility principle deserves to be considered alongside aggregative standards in the ongoing quest for a comprehensive theory of reasonable precaution.","PeriodicalId":163253,"journal":{"name":"St. John’s Law Review","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127897268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Overcoming Our Global Disability in the Workforce: Mediating the Dream 克服劳动力中的全球残疾:调解梦想

St. John’s Law Review Pub Date : 2012-04-10 DOI: 10.2139/SSRN.2295094

Elayne E. Greenberg

{"title":"Overcoming Our Global Disability in the Workforce: Mediating the Dream","authors":"Elayne E. Greenberg","doi":"10.2139/SSRN.2295094","DOIUrl":"https://doi.org/10.2139/SSRN.2295094","url":null,"abstract":"The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons With Disabilities (\"CRPD\") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively addresses the biases about individuals with disabilities in the workplace. Among the recommendations to achieve meaningful compliance the CRPD advises Supporting States to modify their existing mediation and conciliation programs within their human rights institutions to meet the CRPD imperative.This Article focuses on the challenges of designing such effective, culturally sensitive mediation and conciliation programs to resolve global workplace discrimination against individuals with disabilities. with disabilities.in order to make the spirit and intent of the CRPD a reality, Supporting States now have the opportunity to address a history of systemic discrimination towards individuals with disabilities and begin implementing responsive mediation and conciliation forums to constructively address such discrimination. A central part of this habilitative effort, Supporting States must address the attitudinal biases that abound against individuals with disabilities, especially among employment recruiters, employers, employees, and even lawyers representing aggrieved clients, all individuals who are instrumental in implementing the CRPD mandates. Unless these biases in all their cultural variants are addressed, enforcement efforts, such as the establishment of mediation and conciliation programs, will be neutered.","PeriodicalId":163253,"journal":{"name":"St. John’s Law Review","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114479330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias 在学院的位置:法律教师招聘和社会经济偏见

St. John’s Law Review Pub Date : 2012-02-21 DOI: 10.2139/SSRN.2007934

Michael J. Higdon

{"title":"A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias","authors":"Michael J. Higdon","doi":"10.2139/SSRN.2007934","DOIUrl":"https://doi.org/10.2139/SSRN.2007934","url":null,"abstract":"In the movie Moneyball — based on the nationally bestselling book of the same name — Jonah Hill’s character, Peter Brand remarks, “People are overlooked for a variety of biased reasons and perceived flaws.” Although his character was referring to baseball players, the same could be said of those who attempt to secure jobs as law professors. In fact, many law students are later surprised to learn that their ability to secure a job as a law professor has much less to do with what they have might have done during their legal careers, and more to do with simply the law school from which they graduated. As noted in the recent book Becoming a Law Professor: A Candidate’s Guide: “Like it or not, the data says that the most important aspect [of being a successful applicant] is having received a J.D. from an Ivy League or Ivy League equivalent law school.”I have written this article to, first, voice my criticism of this narrow approach to faculty hiring and, second (and more importantly), to provide what I hope will be a more compelling justification for faculty appointment committees to ease up on the emphasis they place on academic pedigree. Namely, to the extent a law school values having a socioeconomically diverse faculty, hiring exclusively from elite law schools makes achieving that goal more unlikely. After all, numerous studies have revealed that those students who attend the elite law schools are overwhelming representative of the top level of the socioeconomic spectrum.In fact, a recent study by Professor Richard Sander found that “roughly half the students at [the elite law] schools come from the top tenth of the [socioeconomic status spectrum], while only about one-tenth of the students come from the bottom half.” And it is no accident that such a disparity exists. As I explore in the article, it is not lack of intellect that keeps those from lower socio-economic backgrounds out of the elite law schools; instead, it is the lack of “economic inheritance.” As one scholar points out, “It is commonly acknowledged that if a child is born poor, she has less chance of getting ahead than a child born into the upper or upper-middle classes — even if the poor child is just as naturally talented or hard working as her more advantaged peer.” In fact, “statistically, the least academically qualified students from wealthy families have as much chance of going to college as the highest performing kids from low-income families.” As such, hiring faculty members from primarily the elite law schools undermines a law school’s ability to achieve socioeconomic diversity on its faculty and instead helps perpetuate a class-based monopoly within the legal academy — to the detriment of all involved. Specifically, as Dean Kevin A. Johnson recently put it: “Although it is somewhat cliche to say it, law students want and need role models.” For instance, when talking about racial minorities, Dean Johnson states that “the presence of historically underrepresented minoritie","PeriodicalId":163253,"journal":{"name":"St. John’s Law Review","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124860544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws 从点对点网络到云计算:技术如何重新定义儿童色情法律

St. John’s Law Review Pub Date : 2012-02-16 DOI: 10.2139/SSRN.2006664

A. Rogers

{"title":"From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws","authors":"A. Rogers","doi":"10.2139/SSRN.2006664","DOIUrl":"https://doi.org/10.2139/SSRN.2006664","url":null,"abstract":"Child pornography circulating in cyberspace has ballooned into the millions. To punish this flood, the law must accurately delineate culpable conduct. Technology such as peer-to-peer networks has erased the divisions among traders of child pornography, and, therefore, the differentials in punishment have lost their underpinnings. The current sentencing controversy surrounding child pornographers is merely the tip of the iceberg of the larger need to revamp the offenses themselves. This paper provides a framework for a normative critique of the offenses and their sentences. It suggests the law could better reflect technology by comporting with a refined harm rationale that rests on the fundamental injury to the victim’s dignity and privacy. Drawing on comparisons to diverse laws such as the Geneva Convention’s ban on photographs of prisoners of war, this paper states all traders in child pornography violate the rights of the children depicted and therefore inflict harm, albeit at different levels. Accordingly, the paper proposes three categories: producers, traders, and seekers of child pornography with base sentences varying accordingly. Starting at the same base level, the Sentencing Commission could then propose enhancements or departures to distinguish among the traders and their individual culpability.","PeriodicalId":163253,"journal":{"name":"St. John’s Law Review","volume":"143 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115475295","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 10