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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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Rape Shield Laws and the Social Media Revolution: Discoverability of Social Media—It’s Social Not Private

Law Books

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Rape Shield laws serve a valuable purpose in our society. Before Rape Shield laws, rape victims were forced to prove that they were in fact victims, as opposed to willing participants. To demonstrate that the victim was a willing participant, a defendant was allowed to introduce evidence regarding the victim’s sexual predisposition or prior sexual behavior.

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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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The Eastside Exhibition Rule: The De Minimis Exception for Trifles and Trivialities in Partial Actual Eviction Cases in New York

Gavel 3

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Since at least the early twentieth century, the law in New York has been that the landlord’s physical ouster of a tenant from all or a portion of the premises warranted full rent abatement. This is the case regardless, whether the expulsion is from just one inch or the entire premises.

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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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Are There Still Collateral Consequences in New York After Padilla?

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In Padilla v. Kentucky, the United States Supreme Court ruled that the failure of a criminal defense attorney to properly advise a defendant of the immigration consequences of a guilty plea was a violation of the defendant’s Sixth Amendment right to counsel. Significantly, the Supreme Court stated: “We . . . have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance.’ ”

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

W4PBpBIsOh5ohrZ4QAsL-FRW3oaTkqsoOVdK2OwDy3Q

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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.

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The Influence of a Jewish Education and Jewish Values on a Jewish Judge

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There is no religious test for office in the United States. Jew, Christian, Moslem, or atheist are equal before the law, and enjoy equal opportunity to gain public office. Consequently, how a judge decides a case should not depend on the judge’s religious upbringing, religious identification, or religious values.

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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

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

Prescription Drugs

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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.

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Cyberstalking: A New Phenomenon

Computer Criminal

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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.

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Use of Eminent Domain to Restructure Underwater Loans

Home For Sale

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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.

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

Scales of Justice on Money

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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.

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

Computer

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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.

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Second Circuit Stands on its Head, Affirming Stewart

Scales of Justice and Gavel

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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.

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

Poker

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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.

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Constitutional Law View All →

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 →

Evaluating Candidacy Restrictions: The Implications of New York’s Modified Approach

Gavel with Book

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Appellant Daniel Ross appealed from a decision of the Appellate Division, Second Department which upheld the constitutionality of a residency requirement mandating that the fifth member of the Southold town board, an elected position, reside on Fishers Island. In reaffirming the constitutionality of the statutory provision, the New York Court of Appeals held that the impact of the residency requirement on the Southold residents’ voting rights was incidental and minimal, and as such a rational basis standard of review, rather than a strict scrutiny standard, was appropriate.

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An Effective but Unreported Application of Lafler & Frye

Law Books

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On November 22, 2009 Michael Verni was found wounded inside of his automobile with a firearm between his legs. He later admitted that he owned the firearm and had shot himself, which culminated in his conviction of criminal possession of a weapon in the second degree. Prior to sentencing, Verni motioned the court to set aside the verdict under New York Criminal Procedure Law Section 330.30.

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Prearraignment Lineup Procedures: Are Multiple Lineups Unduly Suggestive or Sufficiently Reliable?

Scales & Gavel

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Pretrial identification procedures are critical stages of the criminal prosecution process. In some cases, a defendant’s guilt or innocence may rest entirely on an eyewitness’s identification. Therefore, it is imperative that criminal defendants are afforded constitutional safeguards, such as the right to counsel and due process of law—to ensure that identification procedures are conducted fairly. This case note will explore concerns raised in the context of suggestive pretrial lineup procedures.

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It’s Reasonable to Expect Privacy when Watching Adult Videos

Gavel 3

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The New York City Police Department organized and conducted a buy-and-bust operation in New York City, resulting in a positive identification of the defendant, subsequent arrest, and simultaneous seizure of certain illegal contraband found on his person. At trial, the defendant sought to suppress both the evidence recovered by law enforcement as well as the identification by the primary undercover officer, alleging that “the police did not act lawfully because he had a reasonable expectation of privacy in the booth.”

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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

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

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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

Download Button

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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

Patent Sign

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

Smartphone

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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.

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