N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Is Theft Truly a Dishonest Act?

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On October 15, 2024

In Contributions

By Tommaso Morrione*

Rule 609 of the Federal Rules of Evidence governs the impeachment of witnesses with their past criminal convictions. Under Rule 609(a)(2), a court must admit a conviction for impeachment purposes if establishing the elements of the crime “required proving — or the witness’s admitting — a dishonest act or false statement.” Historically, some courts admitted misdemeanor theft convictions under Rule 609(a)(2); however, in 2006 the rule was amended to only admit convictions with a statutory element of deceit. While this amendment should exclude theft-based crimes from Rule 609(a)(2)’s automatic admission, the text of the amended rule still does not explicitly preclude their admission. This Contribution analyzes the arguments for and against the admission of theft-based crimes under Rule 609(a)(2), and ultimately concludes that these crimes should not be automatically admissible under the rule. While the text of Rule 609(a)(2) may be ambiguous, legislative history and policy rationales underscore that theft-based crimes are not sufficiently probative of testimonial dishonesty to be automatically admissible under the rule. Finally, this Contribution puts forward possible solutions that may provide clarity and finality regarding Rule 609(a)(2) and the admission of theft-based crimes.

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On Display: Inspecting the Server Test

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On October 15, 2024

In Contributions

by Max Day*

The Copyright Act provides owners an exclusive right to display their copyrighted works to the public. Despite this seemingly straightforward provision, courts disagree on how the display right applies to images and videos subject to unauthorized embedding on the internet. Since 2007, the Ninth Circuit has read the Copyright Act to impose no infringement liability on a website that embeds copyrighted works so long as the underlying copy of the works exists on an authorized host server. Though this reading of the Act—dubbed the “server test”—derives from a technically accurate understanding of how embedding technology works, its impact is faithless to legislative intentions and sound copyright policy. This Contribution first highlights various arguments for rejecting the server test and affording copyright owners more definite protection for the works they share online. Then, this Contribution puts forward legal alternatives to the unconditional server test, such as sublicensing agreements, the Digital Millennium Copyright Act, and fair use doctrine. Unlike the server test, these alternatives stem from express Copyright Act provisions and provide favorably balanced protections for limited instances of unauthorized embedding.

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A Tool for Judicial Traffic Control: The Pragmatic Case for Why Heck Dismissals Ought Not Always Count as PLRA Strikes

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On September 24, 2024

In Contributions

by Austin Upshaw *

Since Congress passed the Prison Litigation Reform Act (PLRA) in 1996, courts have struggled to harmonize one of its key provisions—the ‘three-strikes rule’—with the Heck bar, a rule derived from Heck v. Humphrey, which prevents district courts from reaching the merits of Section 1983 claims that attack the validity of a conviction before that conviction has been overturned on appeal or through collateral proceedings. The PLRA’s three-strikes rule provides that if an incarcerated person has had three or more of their suits dismissed for failing to state a claim, they can no longer proceed in forma pauperis. Denial of in forma pauperis effectively prevents indigent incarcerated people from accessing relief in federal court. The crux of the Heck issue is a procedural one: is every Heck dismissal equivalent to a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)? The current circuit split mainly concerns whether Heck created a pleading requirement Section 1983 plaintiffs must plead and prove, or whether it is a waivable affirmative defense. But that focus is misplaced because a Heck-barred complaint can be properly dismissed under 12(b)(6) regardless of whether it is a pleading requirement or an affirmative defense. The better way to resolve the issue is on pragmatic, policy-driven grounds. The Heck bar is best treated as a ripeness doctrine that district courts can bypass at their sound discretion. If Heck is treated as a tool for judicial traffic control, rather than a rigid jurisdictional bar, district courts can ensure meritorious claims are not wrongfully treated as ‘strikes’ under the PLRA.

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The Free Exercise Clause and School Funding: Why a State’s Exclusion of Jewish Orthodox Schools from Funding Does Not Violate the First Amendment

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On September 17, 2024

In Contributions

by Edward Stein*

Recent disputes over government’s exclusion of religious private schools from public funding shine new light on the Free Exercise Clause of the First Amendment, which commands that the government “shall make no law . . . prohibiting the free exercise” of religion. The Individuals with Disabilities Education Act (“IDEA”) offers states federal funds to assist in educating children with disabilities. The question remains whether a state government’s exclusion of Jewish Orthodox schools from IDEA funding triggers strict scrutiny under the Free Exercise Clause. This Contribution argues that exclusion of Jewish Orthodox schools from IDEA funding does not impose a sufficiently substantial burden on the religious exercise of Jewish Orthodox schools or their students’ families, and thus does not trigger strict scrutiny. First, this Contribution situates this issue by explaining the difference between direct and indirect burdens. Second, it distinguishes Jewish Orthodox parents from prior free exercise claimants to show that they do not face a substantial burden. Finally, it contends that Jewish Orthodox schools are also not subject to a substantial burden because they face a permissible use-based exclusion.

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Filtering Out the Noise: Does the APA Prevent Use of AI/ML tools in Agency Review of Public Comment?

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On September 17, 2024

In Contributions

by Emmett Tabor*

At times, administrative agencies encounter an overwhelming volume of public comments during the rulemaking process. The review of these comments, as mandated by the Administrative Procedure Act (APA), can delay the implementation of regulations and place a significant burden on resource-scarce agencies. The integration of Artificial Intelligence (AI) and Machine Learning (ML) tools into the comment review process offers a promising solution to expedite notice-and-comment rulemaking. At the same time, the use of these “black box” solutions may trigger legal challenges for potentially violating the procedural requirements of the APA. This Contribution explores three anticipated legal considerations for agency use of AI/ML tools in the review of public comment: (1) disclosure requirements under APA section 553(b); (2) obligations to “consider” public comments under APA section 553(c); and (3) the rule of prejudicial error under APA section 706. Despite these concerns, this Contribution argues that incorporation of AI/ML tools into the agency comment review process is compatible with the APA.

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When Idling Is No Longer Idle Time: Regulating Fair Compensation for Rideshare Drivers

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On June 4, 2024

In Contributions

by Sania Chandrani*

As jurisdictions decide how to properly compensate rideshare app drivers on platforms like Uber and Lyft, they consider whether these workers are properly categorized as independent contractors or employees. With the designation of “employee” comes the protections of the Fair Labor Standards Act (“FLSA”)—minimum wage and hour regulations. Of their obligations as would-be employers, platforms contend that paying employees for time spent waiting to pick up a rider is untenable for their business model. This Contribution suggests that as states develop regulations that qualify drivers for some employee protections, courts will apply the same balancing test they do for employees when determining whether drivers’ wait time is compensable. After analyzing the prominent factors considered by courts, this Contribution argues that platforms exaggerate their concerns. Because only parts of drivers’ “idling time” would be compensable per the FLSA, regulations bringing drivers closer to employee status would not trigger a windfall for plaintiffs, but rather fairly compensate workers for time spent waiting for passengers using rideshare platforms.

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Addressing Harms to Children’s Privacy and Safety Online

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On May 15, 2024

In Contributions

by Lindsey Schwartz*

The drastic expansion in collection of consumer personal data and concerning trends in children’s health and safety, correlated with their increased time spent online, further revealed the inadequacy of current regulatory protections and motivated a recent wave of children’s privacy and online safety legislation. As a result, companies are challenging the regulations’ constitutionality, primarily in the form of alleged First Amendment violations. This Contribution argues that, despite a recent court decision finding otherwise, the California Age-Appropriate Design Code regulates children’s privacy largely within the bounds of the First Amendment, while concurrently identifying the provisions of the Code that may be constitutionally uncertain. Finally, this Contribution proposes alternative options for age-appropriate design codes that would more easily survive First Amendment scrutiny while still protecting children’s privacy interests.

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Armed Against AI: How Victims of Nonconsensual Deepfake Pornography Can Bring a Federal Civil Cause of Action That Withstands First Amendment Challenges

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On May 14, 2024

In Contributions

by Brittany Bruner*

Nonconsensual deepfake pornography (“NDFP”) damages victims and leaves people without the ability to control how they are intimately portrayed. To date, no federal statute explicitly addresses NDFP, but Congress recently passed 15 U.S.C. § 6851, a civil statute that addresses nonconsensual pornography (“NCP”). This Contribution argues that 15 U.S.C. § 6851 applies to NDFP and that NCP and NDFP should be considered First Amendment exceptions and, therefore, should not be protected speech. This statute provides an avenue by which to create these exceptions. Finally, even if NCP and NDFP are not deemed First Amendment exceptions, applying the statute to NDFP passes strict and intermediate scrutiny.

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Carey after Dobbs: Minors’ Continuing Birth Control Rights and the Impermissibility of Parental Veto Power

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On May 13, 2024

In Contributions

by Linda Kate Gilbreath*

Since Carey v. Population Services International,1 minors under the age of sixteen have had constitutional protections for their access to contraceptives. Protections for adults’ access to contraception remain without question after Dobbs v. Jackson Women’s Health Organization,2 which explicitly limited its holding to the removal of abortion rights. On its face, Carey seems to have predicated minors’ right to access contraception on their then-existing right to access abortion services as part of their authority to make decisions to bear or beget a child. This Contribution argues that minors’ access to contraception is still protected. If we view “bear or beget” as a bundle of sticks, Dobbs took away the abortion stick. It did not take away the whole bundle—even for minors. Furthermore, states requiring that minors either meet strict categories of eligibility or get parental consent to access contraceptives impermissibly infringe on minors’ constitutional right to access contraception and would not pass strict scrutiny.

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To Equalize Voters or Representation? How One Person, One Vote Jurisprudence Accommodates for Both Representational and Voter Equality

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On April 29, 2024

In Contributions

by Alexi Comella*

Nearly sixty years ago in Reynolds v. Sims,1 the Supreme Court held that the Equal Protection Clause requires state and local legislative districts to be apportioned on a population basis. In other words, districts must contain equal populations. The Court has grounded this rule in advancing both voter equality and representational equality. Representational equality—the notion that each elected official should represent the same number of people—easily follows from Reynolds. However, voter equality—the idea that each district should have the same number of voters—seems to be in tension with this principle. Two districts with the same number of people may have different numbers of voters. Yet Reynolds raises voter equality as a rationale for its population apportionment rule. These seemingly contradictory justifications raise the question as to whether states may apportion their legislative districts according to a metric other than total population in order to achieve voter equality at the expense of representational equality. Such other metrics may include voter eligible population or the number of registered voters in a jurisdiction. This Contribution argues that the tension between voter equality and representational equality that pervades one person, one vote jurisprudence is already accommodated on the state and local level through the Court’s departure from requiring exact mathematic equality among those district populations.

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