N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Protecting the FTCA: Why Federal Employees Do Not Have Discretion to Violate the Constitution

By

On April 24, 2026

In Contributions

by Sabrina Ruch*

The Federal Tort Claims Act (“FTCA”) is a limited waiver of sovereign immunity that provides a cause of action for individuals to recover for negligent or wrongful acts by federal employees within the scope of their employment. However, Congress provided for certain exceptions to this waiver, including the discretionary function exception, which shields federal employees from liability for claims arising out of actions taken in their discretion. This includes making a policy-based decision within the scope of their employment. Circuit courts are divided over whether a federal employee’s conduct can fall within the discretionary function exception when the plaintiff plausibly alleges that the employee’s actions violated the Constitution. The proper understanding of the discretionary function exception is that it does not shield employees from liability when their actions are alleged to be unconstitutional because federal employees do not have the discretion to violate the Constitution. To hold otherwise would be contrary to the plain meaning of discretion, the Supreme Court’s understanding of discretion in other contexts, and Congress’s intent when passing the FTCA and crafting its exceptions.

Read More

Time Off, Not Time Out: Leaves of Absence as Reasonable Accommodations Under the ADA

By

On April 22, 2026

In Contributions

by Tristan Sirls*

The Americans with Disabilities Act of 1990 (“ADA”) prohibits employers from discriminating against their employees with disabilities through a variety of means, including by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” Circuit courts are divided, however, on whether leaves of absence qualify as reasonable accommodations under the statute. While several circuits approach leaves of absence on an individualized basis, the Seventh Circuit in Byrne v. Avon Products found that “not working is not a means to perform [a] job’s essential functions” and adopted a categorical rule barring leaves of absence from qualifying as reasonable accommodations. This Contribution argues that the Seventh Circuit’s categorical ban on leaves of absence as reasonable accommodations is inconsistent with the ADA’s text, contrary to Supreme Court precedent, and unnecessary as a practical matter. Courts must instead evaluate leaves of absence like any other potential accommodation: through an individualized inquiry that considers the burdens that a grant or denial would impose on all parties.

Read More

If It Takes a Village: The Case for Tri-Parent Standing Under Domestic Relations Law Section 70

By

On April 20, 2026

In Contributions

by William Kanellopoulos*

As same-sex marriage became legally recognized nationally and assisted reproduction technologies developed, the law has adapted to protect parent-child relationships that exist outside traditional models. A logical step in this evolution is recognizing that three individuals may simultaneously have standing to seek custody when they intentionally conceive and raise a child together. This Contribution argues that New York state courts should interpret Domestic Relations Law Section 70 to permit tri-parentage arrangements because doing so (1) aligns with the statute’s plain language and purpose, (2) reflects established precedent protecting parent-child bonds, and (3) honors the reasonable expectations of families who have structured their lives around a non-traditional, three-parent model.

Read More

Personal Property in Purgatory: Why the Fourth Amendment Should Police Government Hoarding

By

On April 16, 2026

In Contributions

by Mia Bravo*

The Supreme Court has not yet adopted a legal standard to regulate what happens when the government seizes personal property and retains it for an extended period without a legally valid justification. Circuit courts are split on the correct doctrinal bucket to place this unsettling pattern of behavior. While some courts think a Due Process or Takings analysis is suitable, neither standard fits with current Supreme Court precedent, produces appropriate incentives for individual officers, or sufficiently compensates aggrieved parties. On the other hand, a Fourth Amendment standard offers the most effective and doctrinally sound path forward. The Fourth Amendment reasonability framework is firmly grounded in constitutional text, history, and precedent and provides a workable means to stop constitutional harms inflicted by the government’s prolonged, unjustified retention of personal property.

Read More

From Aspirin to Rolls Royce: Upholding Expressive Freedoms in the Wake of Rising Trademark Rights

By

On April 14, 2026

In Contributions

by Keon Park*

With the rise of the modern trademark that veers into the realm of constitutional speech rights, circuit courts have adopted varying approaches to balance competing trademark interests and free speech protections. The majority approach to striking this judicial balance among circuit courts is governed by the Rogers test, a threshold inquiry that, if met, almost invariably calls for dismissal of trademark infringement claims for expressive works. However, the Supreme Court in Jack Daniel’s Properties Inc. v. VIP Products LLC partially ruled against the use of the Rogers test for marks used to identify the source of a product. While circuit courts have continued to apply Rogers in other contexts, several have called for an alternate approach, questioning Rogers’ validity as a whole. But given the rise of non-traditional purposes of trademarks in the modern era of advertising where brands such as Rolls-Royce are associated with quality rather than solely signifying the maker of the car, courts should continue to use the Rogers balancing test to protect the expressive speech rights of the general public.

Read More

The Tucker Act and the First Amendment: Core Constitutional Claims Do Not Belong in the Court of Federal Claims

By

On April 3, 2026

In Contributions

by Wiatt Hinton*

Since October 7th, 2023, protests and encampments nationwide have forced schools to reconsider their balance between free speech and anti-harassment policies. In response to these protests, the Trump administration cut billions of dollars in federal funding from universities to extract settlements and impose speech policies favorable to the administration. Universities subsequently filed suit to reclaim their funding, bringing claims that, inter alia, the Trump administration violated their First Amendment rights. Instead of fighting these First Amendment claims head-on, the Trump administration delayed the conflict by seeking to shift the venue from federal district courts to the Court of Federal Claims pursuant to the Tucker Act. Although the Supreme Court has adopted a broad interpretation of the Tucker Act in Administrative Procedure Act claims, its reasoning there should not apply to First Amendment claims. This Contribution argues that a proper reading of the Tucker Act strips the CFC of jurisdiction over First Amendment claims because they are not money-mandating and because the CFC lacks the equitable power needed to remedy these violations. With this construction, the Trump administration can no longer escape liability for their suppressive policies and universities can restore their academic freedom.

Read More

From Alvarez to AI: False Speech and Political Deepfakes

By

On March 30, 2026

In Contributions

By Mara Clemons*

Political deepfakes occupy the outer limits of First Amendment protection by combining political expression with uniquely persuasive deception. Their capacity to mislead voters erodes trust in authentic media and challenges the traditional assumption that false political speech can be reliably corrected through the marketplace of ideas. Recent judicial treatment of state-level deepfake regulations illustrates the narrow constitutional space available for regulation. Statutes regulating political deepfakes should not receive strict scrutiny protection when analyzed by courts for First Amendment violations because the defining harm arises not from the communication of false ideas, but from the deliberate deception of speaker identity. By falsely representing who is speaking, deepfakes distort the informational cues that enable voters to assess credibility and accountability, placing them outside the core category of traditional political speech that the First Amendment is intended to protect. Regulations of political deepfakes target this deceptive mechanism, rather than suppressing ideas or viewpoints, and should therefore be evaluated under intermediate scrutiny.

Read More

Lanham-Strung: How the Supreme Court Misunderstood the Proper Scope of Extraterritorial Liability under the Lanham Act

By

On March 26, 2026

In Contributions

by Lyndsey Garbee*

 The presumption against extraterritoriality is a canon of construction meant to limit U.S. laws to matters of domestic concern. However, the Supreme Court has held that this presumption can be overcome when domestic conduct occurs that is relevant to the statute’s focus. In Abitron v. Hetronics, the Supreme Court found that the relevant conduct for purposes of the Lanham Act, which regulates trademark rights and liabilities, is domestic use of the infringing mark in commerce. However, the Lanham Act only prohibits uses in commerce that are likely to cause consumer confusion. Based on the text of the Lanham Act, the Court’s extraterritoriality precedent, and the purpose of the Lanham Act, this Contribution argues that the proper analysis of the extraterritorial application of the Lanham Act turns not on domestic use in commerce, but on whether such use is likely to cause domestic consumer confusion.

Read More

Rethinking the “Foreign Affairs” Exception: A Case for Why Emergency Tariffs Should Not Be Immune from Nondelegation Scrutiny

By

On March 23, 2026

In Contributions

by Olivia Baldwin*

In February of 2025, President Trump declared a national emergency under the International Emergency Economic Powers Act (“IEEPA”) in order to impose sweeping tariffs on major U.S. trading partners. Exercising such expansive economic authority on the basis of vague statutory language raises serious separation of powers concerns under the nondelegation doctrine. Although the Supreme Court has invalidated statutes on nondelegation grounds only twice, the current Court has signaled renewed interest in enforcing the doctrine. This resurgence raises a critical question: Should the nondelegation canon apply less rigorously when Congress delegates power to the President in matters of foreign affairs? The asserted “foreign affairs” exception, based largely on the Court’s opinion in U.S. v. Curtiss-Wright Exp. Corp. has long insulated such legislative delegations from meaningful scrutiny. However, a foreign affairs exception has no basis in the text of the Constitution and is inappropriate given modern convergence between foreign and domestic matters. This Contribution argues that the nondelegation doctrine should apply with equal force in both foreign and domestic contexts, and that the proper analysis is whether the President possesses independent power over the delegated matter. Using IEEPA as a focal point, this Contribution demonstrates that “foreign affairs” provide no coherent or constitutionally grounded justification for relaxing the nondelegation doctrine.

Read More

Policing by Algorithm: Rethinking the Fourth Amendment in the Age of AI Surveillance

By

On January 5, 2026

In Contributions

by Elysia Wu*

The Fourth Amendment’s protections against unreasonable searches and seizures were developed when law enforcement investigations relied on publicly exposed information and relatively simple, localized data-collection technologies. The rapid adoption of artificial intelligence (“AI”) in law enforcement, however, places increasing strain on these traditional Fourth Amendment protections. Predictive policing software, facial recognition systems, and other algorithmic tools can generate detailed profiles of individuals without a warrant or individualized suspicion, enabling wide-scale police monitoring in a continuous, data-driven way. Treating AI tools as functionally equivalent to traditional policing techniques risks eroding constitutional safeguards and exacerbating existing racial disparities in the criminal legal system. To avoid these harms and ensure that the adoption of AI by law enforcement does not erode the Fourth Amendment’s core protections, courts must find that AI surveillance requires a warrant due to its scale, continuity, and predictive inferences.

Read More

Page 1 of 21

Next

Powered by WordPress & Theme by Anders Norén