N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Title II of the ADA & Public School Removals

by Ains­ley McMa­hon*

Under the Indi­vid­u­als with Dis­abil­i­ties Edu­ca­tion Improve­ment Act (“IDEA”), stu­dents with dis­abil­i­ties are enti­tled to a “free appro­pri­ate pub­lic edu­ca­tion” pro­vid­ed by the state. Some states, such as Geor­gia, have imposed dis­crim­i­na­to­ry pro­grams that remove stu­dents with dis­abil­i­ties from schools alto­geth­er. For extreme pro­grams such as these, advo­cates are pur­su­ing ADA antidis­crim­i­na­tion claims to achieve a high­er stan­dard of edu­ca­tion for these stu­dents, par­tic­u­lar­ly where IDEA pro­tec­tions prove insuf­fi­cient. Recent cas­es in Geor­gia indi­cate that these ADA claims may be a viable option for pro­tect­ing dis­abil­i­ty rights and ensur­ing dis­abil­i­ty jus­tice in pub­lic schools. 

The Odd Man Out: How The Oddities of The Debtor-in-Possession Mechanism Suggest That § 547(c)(4)(B)’s Otherwise Unavoidable Transfers Must Be Pre-Petition

by August Meny*

In Chap­ters 7, 13, and some Chap­ter 11 bank­rupt­cies, an admin­is­tra­tive pay­ment under § 503(b)(9) made by a trustee would not con­sti­tute an “oth­er­wise unavoid­able trans­fer” under § 547(c)(4)(B), mean­ing that cred­i­tors can use both § 503(b)(9) and a § 547(c)(4) defense to pro­tect their trans­fers. How­ev­er, the unique role of debtors-in-pos­ses­sion in some Chap­ter 11 bank­rupt­cies has led some courts to inter­pret § 503(b)(9) as fore­clos­ing the § 547(c)(4) defense under (c)(4)(B) when a debtor-in-pos­ses­sion makes the trans­fer. This Con­tri­bu­tion argues that this dif­fer­en­tial treat­ment of § 547(c)(4)(B) in Chap­ter 11 bank­rupt­cies involv­ing debtors-in-pos­ses­sion erro­neous­ly strays from the prin­ci­ple that debtors-in-pos­ses­sion should be treat­ed the same as trustees, and that § 547(c)(4)(B) should be read to apply only to pre-peti­tion trans­fers across all major forms of bankruptcy.

Protecting the Pious: Why the Ministerial Exception Should Not Categorically Bar Hostile Work Environment Claims

by Jes­si­ca Danesh­var* 

Reli­gious orga­ni­za­tions are con­sti­tu­tion­al­ly pro­tect­ed from undue bur­den from the gov­ern­ment. This pro­tec­tion has been extend­ed to laws that shield employ­ees from employ­er dis­crim­i­na­tion. This “min­is­te­r­i­al excep­tion” is an affir­ma­tive defense reli­gious orga­ni­za­tions uti­lize in response to employ­ment dis­crim­i­na­tion claims made by min­is­ters. The Supreme Court has found that such an excep­tion is appro­pri­ate in a case of employ­ee ter­mi­na­tion, how­ev­er cir­cuits have split on whether the excep­tion cre­ates a cat­e­gor­i­cal bar against all types of employ­ment dis­crim­i­na­tion claims, includ­ing hos­tile work envi­ron­ment claims. This Con­tri­bu­tion argues that the min­is­te­r­i­al excep­tion as applied to hos­tile work envi­ron­ment claims that do not involve tan­gi­ble employ­ment action should be applied spar­ing­ly on a case-by-case basis to safe­guard reli­gious orga­ni­za­tions from uncon­sti­tu­tion­al gov­ern­ment inter­fer­ence while also pro­tect­ing employ­ee rights.

Federal Abortion Legislation: Looking to Dobbs, State Legislation, and the Commerce Clause to Chart a Path Forward

by Soleil Ball Van Zee *

The Supreme Court’s deci­sion in Dobbs v. Jack­son Women’s Health Orga­ni­za­tion opened the door to states indi­vid­u­al­ly reg­u­lat­ing, con­trol­ling, and crim­i­nal­iz­ing abor­tion and abor­tion-relat­ed care. In the emerg­ing state leg­isla­tive patch­work, con­flicts between state laws demon­strate the increas­ing need for fed­er­al abor­tion leg­is­la­tion to ensure uni­for­mi­ty and halt inter­state con­sti­tu­tion­al lit­i­ga­tion before it begins. This Con­tri­bu­tion pro­pos­es a frame­work for fed­er­al abor­tion leg­is­la­tion that can pro­tect long-stand­ing prin­ci­ples of fed­er­al­ism in this new age.

Old Laws in Modern Times: How a 1961 Law Could Mean Game Over for Online Sports Betting

by Eliz­a­beth Lewis*

The Fed­er­al Wire Act pro­hibits the use of any “wire com­mu­ni­ca­tion facil­i­ty for the trans­mis­sion in inter­state or for­eign com­merce of bets or wagers or infor­ma­tion assist­ing in the plac­ing of bets or wagers on any sport­ing event or con­test.” While, in prac­tice, this law has been sparse­ly used to pros­e­cute ille­gal bet­ting oper­a­tions that cross state or nation­al lines, a recent wave of states legal­iz­ing online gam­bling has brought to light the Act’s poten­tial applic­a­bil­i­ty to all fed­er­al­ly con­trolled wires, even those with­in a sin­gle state. This Con­tri­bu­tion argues that the Wire Act has the poten­tial to reach near­ly all online sports gam­bling, and, giv­en the clear trend towards state legal­iza­tion, should be revised either to explic­it­ly exempt gam­bling legal­ized by states, or, con­verse­ly, should be lim­it­ed to apply only to ille­gal off­shore gam­bling oper­a­tions, which may be more dif­fi­cult for states them­selves to regulate.

The Inadequacy of Brandenburg’s Imminence: Incitement Regulation in the Internet Era

by Matthew Uvas*

Cer­tain class­es of speech are deemed to be so dan­ger­ous that they fall out­side of the pro­tec­tions of the First Amend­ment. Reg­u­la­tion of one such class, incite­ment, seeks to pre­vent speech which would encour­age law­less and vio­lent action. The mod­ern test for whether speech qual­i­fies as incite­ment hinges upon whether the speech is like­ly to pro­duce immi­nent law­less action. How­ev­er, when hate­ful or vio­lent speech is spread online, there may be a delay from when a post is made to when some­one sees it and responds vio­lent­ly. There­fore, in these cas­es, immi­nence may not be an appro­pri­ate mea­sure for iden­ti­fy­ing incite­ment lan­guage online. This Con­tri­bu­tion argues that his­to­ry, case law, and oth­er First Amend­ment jurispru­dence sug­gests shift­ing focus to con­text rather than immi­nence when reg­u­lat­ing online incitement.

Greenwashing and Section 11: Why Current Securities Laws Are Ill-Equipped to Handle Environmental Claims

by Christo­pher Menen­dez*

Sec­tion 11 of the Secu­ri­ties Act of 1933 impos­es lia­bil­i­ty on issuers of secu­ri­ties for state­ments that are found to be mate­ri­al­ly mis­lead­ing, which are state­ments con­tain­ing the type of infor­ma­tion a rea­son­able investor would find sig­nif­i­cant when mak­ing an invest­ment deci­sion. In con­junc­tion with the ris­ing salience of cli­mate issues and con­cern about “green­wash­ing,” there has been a push by some investors to bring sec­tion 11 claims based on the pro­fessed, but ulti­mate­ly unsuc­cess­ful, com­mit­ments of com­pa­nies to com­bat cli­mate change. How­ev­er, these claims are unlike­ly to be suc­cess­ful in com­bat­ting green­wash­ing, as sus­tain­abil­i­ty issues are not nor­mal­ly the sort of infor­ma­tion that courts pre­sume investors con­sid­er mate­r­i­al. This Con­tri­bu­tion argues that sec­tion 11 is ill-suit­ed to address cli­mate-based mis­state­ments and encour­ages the adop­tion of rules the Secu­ri­ties and Exchange Com­mis­sion has recent­ly pro­posed to more effec­tive­ly cov­er cli­mate disclosures.

Immutable Skills: The Validity of Career-Based Asylum Categories

by Nathaniel Brod­sky*

Fed­er­al asy­lum law requires that all “par­tic­u­lar social groups,” the per­se­cut­ed iden­ti­ty upon which an asy­lum claim is based, demon­strate three qual­i­ties: immutabil­i­ty, par­tic­u­lar­i­ty, and social dis­tinc­tion. While courts have his­tor­i­cal­ly reject­ed careers as par­tic­u­lar social groups, since peo­ple can change jobs and that char­ac­ter­is­tic is there­fore not immutable, this Con­tri­bu­tion argues that a more pro­fes­sion­al­ized career—based on the past expe­ri­ence of acquir­ing spe­cial­ized skills—is a valid par­tic­u­lar social group under asy­lum law precedent.

Disparate Impact Claims and Federal Disability Discrimination Law

by Eliz­a­beth Schwartz*

Togeth­er, the Amer­i­cans with Dis­abil­i­ties Act and Sec­tion 504 of the Reha­bil­i­ta­tion Act pro­vide fed­er­al pro­tec­tions for indi­vid­u­als with dis­abil­i­ties in a wide vari­ety of con­texts. How­ev­er, while par­ties can pur­sue a pri­vate right of action under these statutes, cir­cuit courts are split on whether to rec­og­nize dis­parate-impact dis­crim­i­na­tion claims. This Con­tri­bu­tion argues that Supreme Court prece­dent and statu­to­ry pur­pose require that dis­parate impact claims be cognizable.

The Constitutionality of Policing Technology: Evaluating Network Investigative Techniques Under Fourth Amendment Search Doctrine

by Madi­son Gon­za­lez*

Courts review the con­sti­tu­tion­al­i­ty of dig­i­tal sur­veil­lance tech­nolo­gies in crim­i­nal inves­ti­ga­tions under Fourth Amend­ment search doc­trine. In order to con­sti­tute a search, a law enforce­ment prac­tice must either vio­late an individual’s rea­son­able expec­ta­tion of pri­va­cy or con­sti­tute a phys­i­cal tres­pass on pri­vate prop­er­ty. In this Con­tri­bu­tion, Madi­son Gon­za­lez (’23) argues that the use of a Net­work Inves­tiga­tive Tech­nique (“NIT”) to col­lect an Inter­net Pro­to­col (“IP”) address direct­ly from an individual’s com­put­er is a Fourth Amend­ment search under either test.

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