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Still an Issue: The Taking Issue at 40

Gavel 4

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In 1973, the Council on Environmental Quality published a seminal report by Fred Bosselman, David Callies and John Banta: “The Taking Issue: A Study of the Constitutional Limits of Governmental Authority to Regulate the Use of Privately-Owned Land Without Paying Compensation to the Owners.”

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

Scales & Gavel

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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.

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

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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.

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

Gavel on Lawbook

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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.

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

Contract

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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.

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

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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.

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

Constitution with Gun

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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.

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

Gavel with Book 2

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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.

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Constitutional Law View All →

Neutral Discrimination – Selective Enforcement of Religiously Neutral Laws and the First Amendment

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The First Amendment to the United States Constitution protects, among other things, the Free Exercise of Religion. Since its establishment, the Free Exercise Clause has been interpreted, scrutinized, and altered in its application.

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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.

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Locked Glove Compartments: Searchable or Stash Spots?

Gavel with Book

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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.

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Qualified Immunity Developments: Not Much Hope Left For Plaintiffs

Scales & Gavel

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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.

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

Gavel on Lawbook

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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.

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Contracts View All →

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.

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The Banking Contract as a Special Contract: The Israeli Approach

Scales of Justice and Gavel

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The banker-customer relationship is a contractual relationship based on a contract between the parties. As a contractual relationship, it is governed by contract law. However, contract law does not provide the customer with the protection he or she requires against the bank. Therefore, the Israeli courts have adopted a unique approach in determining that the banking contract is a special contract—a fiduciary contract. Under a fiduciary contract, the bank, as a fiduciary, is subject to a fiduciary duty vis-à-vis the beneficiary, the customer. The fiduciary duty imposes a very high standard of behavior on the bank, much higher than the standard imposed on it under contract law. By adopting a fiduciary approach, the customer is granted very wide protection against the bank.

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Penalty Clauses as Remedies: Exploring Comparative Approaches to Enforceability

Law Books

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Commercial agreements often provide for “fixed sums” payable upon a specified breach. The common law distinguishes between provisions for “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as punitive. In contrast, such agreements are generally enforced in civil law jurisdictions, without any distinction between liquidated damages and penalties—though they may be reduced if excessive, even as penalties. In contrast, this same split between the civil and common law jurisdictions can be found in the treatment of specific relief, with the former presumptively granting such “ordinary” relief, subject to a narrowly cabined set of exceptions, and the latter granting such relief only under certain limited “extraordinary” circumstances.

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Party Sophistication and Value Pluralism in Contract

Contract

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In a previous article, Contract Law, Party Sophistication and the New Formalism, I documented a trend in United States case law and scholarship that fashions a “dichotomy between sophisticated and unsophisticated parties.” That article set out to explain the trend as a theoretical compromise between formalism and realism in the face of a resurgence of formalism (the “new formalism”). For sophisticated parties, “freedom of contract” and literalism have come to trump all normative concerns. For unsophisticated parties, fairness concerns outweigh the principle of autonomy. However, as I noted in the previous article, the “new formalism” may not be formalism at all because it retains normative concerns. Indeed, the shift in legal thought may be more appropriately and simply characterized as embracing pluralism. This piece will place observations about party sophistication within recent scholarship discussing pluralist conceptions of contract doctrine and suggest that the focus on sophistication is a means to order contract law’s competing values.

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Putting the CISG Where it Belongs: In the Uniform Commercial Code

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[T]his Comment will propose that the UCC itself should be amended to include explicit language that Article 2 does not apply to a sale of goods contract when a buyer and seller have their principal place of business in two different contracting states under the CISG. [...]

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Party Sophistication and Value Pluralism in Contract

Contract

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“Pluralism” is not readily defined. The term here is intended to refer to “value pluralism.” Broadly, in the words of Isaiah Berlin, this is recognition of “the fact that human goals are many, not all of them commensurable, and in perpetual rivalry with one another.” As applied to contract law, pluralist theories “advert to autonomy, efficiency, morality, social norms, policy, experience, and other values to explain and justify contract doctrines.”

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The Privatization of Civil Justice: An Exposition on New York’s Prompt Payment Law and its Imposition of Mandatory Arbitration

Construction Site

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In a world of constant flux and fluctuation, one rule generally remained invariable: arbitration required the mutual assent of both parties. It seems, however, that all good and simple things come to an end. In 2009, the New York State legislature amended the Prompt Payment Law with the objective of establishing a default rule that prescribes the manner with which providers of construction services are compensated for the work and services they provide.

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Intellectual Property View All →

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

Scales of Justice

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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.

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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

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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.

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Mickey Mouse in the Year 2023: What Happens Now?

Mickey Mouse

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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.

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

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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 [...]

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

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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.

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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

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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.

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

Tribute Band

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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.

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