N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

FRE 801(d)(2) and the Sovereign as a Party

by Mac McCall*

Out-of-court statements are routinely introduced into evidence for their truth against criminal defendants under the aegis of the admissions doctrine. At the same time, many courts refuse to apply the doctrine with equal severity in admitting similar statements against the government as a prosecuting party. Some courts insist that the doctrine is uniquely inapplicable against governmental parties,1 while others require proponents of such evidence to clear heightened hurdles for admission. State and federal courts should bring order and equity to this corner of evidence law by adhering to the following three principles. First, the admissions doctrine is just as conceptually applicable to governments as any other party. Second, the legislatively articulated rules of evidence are sufficient to govern questions of admissibility for this kind of evidence without the assistance of extraneous judicially imposed restrictions. Finally, courts should take note of functional and formal realities in determining the extent of the “opposing party” when the government is in play.

Striking “the Average Person as Quite Strange”: Why the Supreme Court Should Not Heed Justice Alito’s Concerns if It Chooses to Take Up the Issue of Acquitted-Conduct Sentencing

by Lindsay Campbell*

The Supreme Court recently denied certiorari in McClinton v. United States—a case which would have required the Court to consider whether the use of acquitted conduct in sentencing violates criminal defendants’ rights under the Constitution. This piece considers and responds to Justice Alito’s concurrence in the Court’s denial, arguing that Justice Alito misconstrues the constitutional issues presented by Petitioner’s claims. Specifically, he inaccurately conflates acquitted conduct and uncharged conduct; he overemphasizes the role stare decisis would play in the Court’s ruling; and he expresses concerns over the workability of criminal sentencing absent the use of acquitted conduct—concerns which only serve to highlight the unconstitutionality of the United States’ present sentencing scheme. If the Supreme Court were to take up this issue, Justice Alito’s considerations should not bar the Court from finding that the use of acquitted conduct in sentencing violates criminal defendants’ right to due process under the Fifth Amendment and their right to a trial by jury under the Sixth Amendment.

Resisting the Essentialist Trap: Title IX, School Bathrooms, and Nonbinary Identities in a Post-Bostock World

by Zachary Kasdin*

Should courts extend the protections of Title IX of the Civil Rights Act to protect not only transgender students who identify within the binary genders “male” or “female,” but also to nonbinary, gender-nonconforming (“GNC”), and intersex students? In this Contribution, Zachary Kasdin (’24) analyzes the two leading doctrinal approaches to the question of whether a school discriminates against a transgender student “because of sex” when it denies that student access to whichever bathroom aligns with their gender identity. He then argues that, despite some difficulties, both approaches leave room for nonbinary, GNC, and intersex students to bring compelling Title IX claims in the school bathroom-access context.

Press to Unlock: How Biometric Phone Locks Endanger Fifth Amendment Rights and Individual Privacy

by Aaron Chow*

Today, nearly every individual carries at all times an extremely detailed account of their personal lives: the contents of their cell phone. Due to recent advances in biometric scanning technology, cell phones can now be unlocked with a mere touch of a finger. Federal courts are currently divided on whether law enforcement may compel these fingerprint scans in order to access the potentially incriminating contents of an accused’s cell phone. Because a vast majority of Fifth Amendment jurisprudence predates the advent of modern cell phones, it is ill-equipped to address the risk of self-incrimination and privacy violations that fingerprint locks create. This Contribution argues that federal courts must adapt historical precedent in order to prevent unconstrained cell phone searches and to safeguard Fifth Amendment rights.

Revisiting Corporate Personhood in Hobby Lobby

by Celia Garrett*

In Burwell v. Hobby Lobby, the Supreme Court allowed closely held for-profit corporations to claim religious exemptions from the Patient Protection and Affordable Care Act contraception mandate, allowing these companies to omit certain contraceptive methods from their employer-provided health insurance plans. In downplaying the personhood controversy and the degree of the Court’s departure from established legal principles in its opinion, the majority conceals the extent of the debate and disagreement over this issue—and the extent of legal arguments and precedent to the contrary, as diligently explained in the amicus briefs supporting the government. This Contribution serves to revive and emphasize that discussion, as well as add to the ongoing debate on corporate personhood and human rights.

Who Counts as Extraordinary? Allowing Foreign College Athletes to Receive O-1 Visas

By Kristian Lundberg*

As college students across a variety of sports enjoy their new freedom to profit from their names, images, and likenesses, one group of student-athletes remains left out of this $1 billion industry: F-1 visa holders. Because F-1 visas restrict opportunities for student employment, foreign college athletes may begin to look to the O-1 visa—bestowed upon immigrants of “extraordinary ability”—to benefit from the new name, image, and likeness (“NIL”) regime. The O-1 visa would not restrict its holder from entering the NIL market, but obtaining such a visa has required meeting stringent evidentiary burdens that many professional athletes have failed to overcome. This Contribution highlights the benefits of NIL rights for college athletes and suggests a rethinking of the O-1 “extraordinary ability” visa to level the playing field by allowing foreign college athletes to participate in the NIL market on par with their domestic peers.

An Exception that Swallows the Rule: Limiting the Automobile Exception to Prohibit Warrantless Searches of Electronic Data in Cars

by Lucy Sundelson*

The Supreme Court has long held that under the Fourth Amendment to the Constitution, “warrantless searches are per se unreasonable,” except in a few limited circumstances.1 One exception to the rule is the automobile exception, which allows police to conduct a warrantless search of a vehicle and its contents with probable cause. Over time, the automobile exception has expanded beyond its original purpose, allowing police to search cars and their contents indiscriminately, and its modern application threatens to swallow the warrant requirement altogether. Computer technology offers an opportunity for courts to limit the breadth of the automobile exception and ensure it remains faithful to the purpose of the Fourth Amendment: given the profoundly private information computers and cell phones store, courts must hold that the exception does not extend to such devices. While the Court has not ruled directly on this issue, two recent decisions dealing with other exceptions to the warrant requirement make clear that the Justices agree electronic data must be handled differently than other belongings in the Fourth Amendment context. Courts should use these decisions to prohibit the warrantless search of cell phones and other similar electronic devices, even when they are found within cars.

Museums’ Right to License Images in the Public Domain

by Sophia Cianfrani*

Copyright protection may be extended to original works and photographs of three-dimensional works, but courts in the United States and elsewhere have declined to extend such protection to photographs of two-dimensional works. Nonetheless, many museums erroneously claim to own the copyright to photographs of objects in their collections that are in the public domain and license these images for a profit. This Contribution argues that, rather than attempting to license these non-copyrightable photographs, museums, especially those that are 501(c)(3) nonprofits, should make their collections accessible and free to the public through an open access program, which would serve the benefit of the public and better comply with the scope of copyright law.

Protecting Innovation by Private Companies in Partnership with Government Agencies

By Heather Walker*

To encourage innovation, the government may provide a private company with an equipment authorization to develop new technology or create rules and regulations encouraging such development. However, private companies risk losing money on their innovations if the government later revokes an equipment authorization or changes a project unless the government compensates them. Although the Constitution prevents the government from taking property without providing just compensation, in order for the Takings Clause to apply, what was taken has to be deemed property in the first place. Where the government has passed rules and regulations to incentivize a specific private company to invest and develop innovative technology, the authorizations and created property should be found to be a property interest that can support a takings claim. By recognizing these interests as property interests, companies will be more inclined to partner with and support innovation that deals with pressing problems as they know they are guaranteed a certain level of protection.

Deterring Private Prosecution: Why Current Jurisprudence Does Not Permit a Direct Cause of Action Against Secondary Violators of Rule 10b-5

By Rudra Reddy*

In Section 10(b) of the Securities Exchange Act of 1934 makes it unlawful to “use or employ . . . any manipulative or deceptive device or contrivance” in violation of the Securities Exchange Commission’s (“SEC”) rules. The Supreme Court has recognized the right of private plaintiffs to bring claims against primary violators of § 10(b). However, only the SEC is permitted to bring claims against persons who provide “substantial assistance” to primary violators. This Contribution addresses the potential liability under Rules 10b-5(a) and (c) of a specific category of defendants who fall somewhere between primary and secondary violators—those who neither “make” nor distribute false or misleading statements themselves but ask an employee to distribute such statements to investors. Consistent with the plain text of § 10(b) and Rule 10b-5, Supreme Court precedent, and congressional intent, this Contribution argues that primary liability should not be extended to junior managers.

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