Featured View All →

Choose Your Own Path: A Defendant’s Constitutional Right to Legal Representation

Scales & Gavel

By

Recently, the New York Court of Appeals reviewed two cases, People v. Crampe and People v. Wingate, which were consolidated for a determination on whether defendants properly waived their right to legal counsel.

Read More →

The Federal Retreat from Protecting Defendants from Tainted Show-Up Identifications and the Superiority of New York’s Approach

Gavel 3

By

Manuel Chuyn, the defendant, was charged with two counts of third degree assault and one count of second degree burglary. The defendant moved to reopen a Wade hearing to determine whether three eye witnesses’ pretrial show-up identifications of the defendant should be suppressed. The defendant further moved to have each witness testify at the hearing, if reopened.

Read More →

One Less Juror: A Defendant’s Right to Juror Substitution

Gavel on Lawbook

By

Recently, the Appellate Division, Second Department reviewed People v. McDuffie to determine whether defendant had properly submitted a jury substitution waiver, and thus, properly waived his right to a jury trial. n McDuffie, defendant was brought up on charges of second-degree murder and criminal possession of a weapon.

Read More →

Consumer Contracts Law as a Special Branch of Contract Law—The Israeli Model

Contract

By

This Article highlights the distinction between many of the rules governing consumer contracts and those governing general contracts. The rules governing consumer contracts differ considerably from those governing general contracts, and it has even been suggested that these differences justify the classification of consumer contracts as a special branch of contract law.

Read More →

Is New York Achieving More Reliable and Just Convictions when the Admissibility of a Suggestive Pretrial Identification is at Issue?

Gavel

By

In People v. Delamota, the New York Court of Appeals held a pretrial photo array was unduly suggestive and therefore in violation of the defendant’s due process rights. The court held that the photo array was suggestive because the civilian interpreter used during the identification knew the defendant prior to the pretrial photo array and influenced the victim’s identification.

Read More →

The Doctor Will See You Now: An Argument for Amending the Licensing Process for Handguns in New York City

Constitution with Gun

By

With events such as the 2007 Virginia Tech Massacre, the 2011 shooting of Congresswoman Gabrielle Giffords, and the more recent shootings at the Empire State Building, in Aurora, Colorado, and at Sandy Hook Elementary, gun control is often thrust into the limelight. Much debate and discussion ensues, but until recently, very little action has ever taken place.

Read More →

The Blueprint: Critiques of the Fingerprint and Abandonment Paradigms Utilized to Reject an Expectation of Privacy in DNA

Gavel with Book 2

By

The defendant, Vernon B., was charged with one count of criminal possession of a weapon in the fourth degree. On November 10, 2011, a police officer allegedly observed the defendant throwing a bag from the window of a residence, and upon inspection, he found the bag contained a loaded 9mm pistol, which subsequently tested positive for male DNA.

Read More →

Locked Glove Compartments: Searchable or Stash Spots?

Gavel with Book

By

It is imperative that law enforcement officers are cognizant of and act within the bounds of their authority when stopping a vehicle as a result of a minor traffic violation. Courts at both the federal and state levels are inundated with constitutional challenges related to searches and seizures occurring subsequent to lawful traffic stops.

Read More →

Online Exclusive View All →

Bilski v. Kappos, Mayo v. Prometheus, and CLS Bank v. Alice Corp.: The Death of the Machine-or-Transformation Test and the Effects on Software Patent Prosecution

Patent Stamp

By

The Machine-or-Transformation test served as the primary test used by the courts to determine whether patent claims were drawn to statutory subject matter under § 101 of the Patent Act, until the Supreme Court’s decisions in Bilski v. Kappos and Mayo v. Prometheus rendered the test useless.

Read More →

The Internet System For Tracking Over-Prescribing (I-STOP) Act

Prescription Drugs

By

On June 11, 2012, the New York State Legislature unanimously passed the Internet System for Tracking Over-Prescribing (I-STOP) Act. I-STOP will create an online “real-time” system for practitioners and pharmacists to report and track controlled substances.

Read More →

Cyberstalking: A New Phenomenon

Computer Criminal

By

Shawn Sayer began an intimate relationship with a woman while living in Maine. After their relationship ended in January 2006, Sayer began to stalk and harass his former girlfriend. Subsequently, the Maine Superior Court convicted Sayer for stalking the victim, and she obtained an order of protection against him in February 2008.

Read More →

Use of Eminent Domain to Restructure Underwater Loans

Home For Sale

By

The Inland Empire, a region of California consisting of San Bernardino and Riverside Counties, is just one of the many areas throughout the United States whose economy has deteriorated since the housing crisis began in 2007. As of May 2012, the unemployment rate throughout the region was nearly 12% — roughly 1.5 times higher than the national average.

Read More →

Unreasonable Attorney Fees: Queens County Supreme Court Reduces Attorney Fee Request by 45% for Excessiveness, Bill Padding, and Inefficiency

Scales of Justice on Money

By

In Francis v. Atlantic Infiniti, Ltd., plaintiff’s attorneys made a motion for reimbursement of reasonable attorney’s fees and costs in the sum of $102,560.60, pursuant to New York’s LEMON LAW. The underlying action involved the purchase of a used Infiniti QX4 car with major mechanical problems that were not timely remedied by the defendant.

Read More →

People v. Kent: Controversial Court of Appeals Decision Creates Loophole in Child Pornography Laws

Computer

By

On May 8, 2012, the New York Court of Appeals handed down a supremely controversial decision concerning the ability to prosecute for the possession of child pornography. In People v. Kent, the State’s high court effectively created a dangerous loophole in the penal law for those who pursue child pornography on the Internet.

Read More →

Poker: A Game of Skill or a Game of Chance?

Poker

By

On August 21, 2012, in the United States District Court for the Eastern District of New York, Judge Jack Weinstein ruled that poker is a game of skill that is not covered under the federal Illegal Gambling Business Act (“IGBA”). Issuing a 120-page decision, Judge Weinstein reversed the jury conviction of Lawrence Dicritina (“Defendant”), finding that Congress did not clearly intend to criminalize poker when it passed the IGBA.

Read More →

Second Circuit Stands on its Head, Affirming Stewart

Scales of Justice and Gavel

By

Lynne Stewart, graduate of Rutgers School of Law, once had a prominent career as a civil rights attorney. She participated in many high-profile cases, representing members of the mafia and the Black Liberation Army, but most recently found herself on trial for federal crimes.

Read More →

Constitutional Law View All →

Choose Your Own Path: A Defendant’s Constitutional Right to Legal Representation

Scales & Gavel

By

Recently, the New York Court of Appeals reviewed two cases, People v. Crampe and People v. Wingate, which were consolidated for a determination on whether defendants properly waived their right to legal counsel.

Read More →

The Federal Retreat from Protecting Defendants from Tainted Show-Up Identifications and the Superiority of New York’s Approach

Gavel 3

By

Manuel Chuyn, the defendant, was charged with two counts of third degree assault and one count of second degree burglary. The defendant moved to reopen a Wade hearing to determine whether three eye witnesses’ pretrial show-up identifications of the defendant should be suppressed. The defendant further moved to have each witness testify at the hearing, if reopened.

Read More →

One Less Juror: A Defendant’s Right to Juror Substitution

Gavel on Lawbook

By

Recently, the Appellate Division, Second Department reviewed People v. McDuffie to determine whether defendant had properly submitted a jury substitution waiver, and thus, properly waived his right to a jury trial. n McDuffie, defendant was brought up on charges of second-degree murder and criminal possession of a weapon.

Read More →

The Doctor Will See You Now: An Argument for Amending the Licensing Process for Handguns in New York City

Constitution with Gun

By

With events such as the 2007 Virginia Tech Massacre, the 2011 shooting of Congresswoman Gabrielle Giffords, and the more recent shootings at the Empire State Building, in Aurora, Colorado, and at Sandy Hook Elementary, gun control is often thrust into the limelight. Much debate and discussion ensues, but until recently, very little action has ever taken place.

Read More →

Locked Glove Compartments: Searchable or Stash Spots?

Gavel with Book

By

It is imperative that law enforcement officers are cognizant of and act within the bounds of their authority when stopping a vehicle as a result of a minor traffic violation. Courts at both the federal and state levels are inundated with constitutional challenges related to searches and seizures occurring subsequent to lawful traffic stops.

Read More →

Qualified Immunity Developments: Not Much Hope Left For Plaintiffs

Scales & Gavel

By

This Article highlights important developments in the qualified immunity defense to Section 1983 claims. The focus is on recent Supreme Court decisions and the fallout from such decisions in the lower courts.

Read More →

Are You Satisfied with Your Representation?—The Sixth Amendment Right to Effective Assistance of Counsel

Gavel on Lawbook

By

A criminal defendant’s right to counsel has been embedded in our nation’s history for centuries. The right is codified in the Sixth Amendment of the Constitution and exists as the bedrock of our criminal justice system. Like many other transactions in our society, the assistance of counsel is a service that is provided by one individual to another. This service is essential due to the gravity of the penalties that a criminal defendant may face when accused of a crime.

Read More →

The Plight of Bi-National Same-Sex Couples in America

W4PBpBIsOh5ohrZ4QAsL-FRW3oaTkqsoOVdK2OwDy3Q

By

Independently, immigration and same-sex marriage are contentious issues in the United States. However, the effect these issues have on each other is seldom considered in mainstream debates over either issue. The Immigration and Nationality Act (“INA”) imposes numerical quotas on the number of aliens permitted to immigrate into the United States. Immigrant visas are allocated in accordance with a preference system, which limits eligibility to categories established by the INA.

Read More →

Intellectual Property View All →

Determining the Location of Injury for New York’s Long Arm Statute in an Infringement Claim

Scales of Justice

By

The Internet’s explosive growth has pressed the courts to address novel issues and revisit some well-settled ones. In particular, the Internet’s universal accessibility and revolutionary communication capabilities have necessitated the development of new mechanisms to determine jurisdiction. Additionally, doubt has been cast over the effectiveness of copyright and trademark protections, as the Internet has contributed to dramatic increases in infringement. As a result, courts seem intent on focusing on the Internet in personal jurisdiction and copyright infringement analyses, thereby shifting attention from important factors and leaving some issues unsettled.

Read More →

Bilski v. Kappos, Mayo v. Prometheus, and CLS Bank v. Alice Corp.: The Death of the Machine-or-Transformation Test and the Effects on Software Patent Prosecution

Patent Stamp

By

The Machine-or-Transformation test served as the primary test used by the courts to determine whether patent claims were drawn to statutory subject matter under § 101 of the Patent Act, until the Supreme Court’s decisions in Bilski v. Kappos and Mayo v. Prometheus rendered the test useless.

Read More →

Mickey Mouse in the Year 2023: What Happens Now?

Mickey Mouse

By

There comes a time in the life of an expression, which is both copyrighted and trademarked, when the copyright will expire but the trademark will still exist. Consider a person wanting to use that expression, which would now be available for public use, but using it in a way that may infringe on the trademark owner’s rights or may tarnish the trademark owner’s reputation.

Read More →

Buying a Digital Download? You May Not Own the Copy You Purchase

Download Button

By

Recent Ninth Circuit decisions in which the court examined the traditional notion that ownership of an authorized copy of a copyrighted work transfers when that copy is first publicly distributed by the copyright owner may have oppressive effects for consumers of digital downloads. Historically, upon this first distribution, also known as a first sale, the owner of the copy is able [...]

Read More →

Strict Interpretation of 35 U.S.C. § 112 Requires Universities to Examine Their Patenting Methods

Patent Sign

By

The purpose of this paper is to explore recent interpretations of patent law doctrines by the courts and how these interpretations affect the scope and validity of patents covering fundamental university technologies. Many of these interpretations have the goal of increasing the quantity and quality of information disclosed in a patent, a significant issue for early stage technology.

Read More →

If It’s Not Ripped, Why Sew It? An Analysis of Why Enhanced Intellectual Property Protection for Fashion Design is in Poor Taste

Fashion Design

By

This Comment focuses solely on “knock-offs,” which are low-cost imitations of original designs. Knock-offs do not violate any law currently in place in the United States. In fact, some stores make their living by providing inspired or low-cost imitations of an original design to the masses who wish to fit in and be “in style,” but who cannot afford the original creation.

Read More →

Imitation is the Sincerest Form of Flattery, But is it Infringement? The Law of Tribute Bands

Tribute Band

By

This comment explores the current law governing tribute bands and the legal ramifications of these bands on the rights of the original artists, including potential copyright infringement, trademark infringement and right of publicity claims. The artists, to whom these bands pay tribute, are not appropriately compensated under the current licensing system and lack any control over their tribute band counterparts’ exploitation of their works and personae.

Read More →

“Good Artists Borrow, Great Artists Steal” – Apple v. Samsung and Trade Dress in the Smartphone Era

Smartphone

By

It would be impossible to apply any standard trade dress analysis broadly to a smartphone because a smartphone has two distinct elements to protect, the product design and the interface design.

Read More →