N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Category: Contributions Page 2 of 16

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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Section 230 of the Communications Decency Act: Balancing a Free Market Approach with Taking Responsibility

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On April 15, 2024

In Contributions

by Sasha Kliger*

Section 230 of the Communications Decency Act of 1996 confers broad immunity to interactive websites and social media companies for content third parties post on their platforms. This immunity, however, is not unbounded. In section 230, Congress included several exceptions to immunity, including an exception for intellectual property claims, section 230(e)(2). The broad wording of the intellectual property exception has led to confusion among circuits regarding what type of intellectual property claim should remain allowed under section 230: namely, whether state law claims and right of publicity claims qualify as laws pertaining to intellectual property as described in the statute. This Contribution argues that a close look at the language of the statute demonstrates that both types of claims should remain viable against social media companies, despite the general immunity outlined in section 230.

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Roger That: Evaluating First Amendment Limits to Trademark Infringement in the Aftermath of VIP Products

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On April 10, 2024

In Contributions

by Noelle Higginson*

Trademark law allows producers of commercial goods to identify and differentiate their goods in the market by a specific mark. In this way, trademark law protects producers and consumers alike: A recognizable mark, exclusively used by a single producer, allows consumers to make informed choices about what goods to purchase and allows producers to benefit from the fruits of their labor—when they make good products, consumers associate their mark with that good reputation. Trademark infringers—those who use a confusingly similar mark to the trademark holder’s mark—interfere with that goal. However, certain products like works of art or parody that intentionally refer to another entity often must use the other’s trademark (or something similar) to achieve their purpose. These alleged infringers therefore risk trademark liability for the sake of artistic expression. The difficulty for courts is determining when the use of a mark in art or parody might defeat an infringement claim or vice versa. That determination is the province of the Rogers framework as recently considered by the Supreme Court in Jack Daniel’s Properties, Inc. v. VIP Products, LLC.1 This Contribution (i) assesses the Rogers v. Grimaldi2 framework’s application in two recent cases in lower federal courts and (ii) considers how courts can factor in First Amendment principles even when, following the VIP Products holding, Rogers does not apply.

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To Release or Not to Release: Investigating the Legality of Non-Consensual Third-Party Releases in Bankruptcy

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On April 8, 2024

In Contributions

by Justin Simms*

Perhaps the most pressing question in American bankruptcy law has been posed by the Purdue Pharma L.P. (“Purdue”) bankruptcy: do bankruptcy courts possess the authority to approve non-consensual releases of direct claims held by third parties against non-debtor affiliates as part of a Chapter 11 plan of reorganization? The complexity and practical import of this question, as well as the Bankruptcy Code’s ambiguity on the topic of non-consensual third-party releases, have caused a divide in the federal judiciary. After the Court of Appeals for the Second Circuit approved Purdue’s proposed plan of reorganization in May 2023, the United States Supreme Court granted certiorari. This Contribution argues that bankruptcy courts lack the authority to approve releases of direct claims held by third parties against non-debtor affiliates on statutory, jurisdictional, and constitutional grounds.

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Lending a Helping or Harmful Hand? Why Federal Magistrate Judges Should Not Accept Felony Guilty Pleas

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On April 3, 2024

In Contributions

by Mariana Lopez*

Magistrate judges perform a crucial role in the federal judiciary system by reducing the administrative burden on Article III judges. Courts, however, remain divided on the scope of magistrates’ duties, and importantly, whether they have  final decision-making authority to accept felony guilty pleas under Rule 11 of the Federal Rules of Criminal Procedure. Vesting this duty in a magistrate judge violates the Federal Magistrates Act, which allows district judges to delegate “additional duties as are not inconsistent with the Constitution and the laws of the United States.”1 The weightiness of this task, the Federal Rules of Criminal Procedure, and the separation of powers doctrine enshrined in the Constitution should prohibit magistrate judges from accepting guilty pleas, regardless of a criminal defendant’s consent, and require magistrates to submit a report and recommendation to an Article III judge who may then accept the plea. As the consequences of a felony verdict weigh heavily on defendants and our judicial system, this task should remain in the hands of a constitutionally endorsed Article III Judge.

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Understanding Issue Classes: A Case for Why They Should Be Used and How Best to Do It

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On April 1, 2024

In Contributions

by Rachel Greene*

Issue classes are a form of aggregate litigation wherein courts certify only specific claims or elements within those claims for class treatment. While issue classes have not always been a popular tool, plaintiffs’ attorneys today should take seriously the protections this device can afford their clients and consider pursuing issue classes over alternative aggregate litigation tools, such as multi-district litigation. This Contribution argues that issue classes should be a more widely used aggregate litigation device and outlines the mechanics of its use.

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The Threat of Geofence Warrants: Why Courts Should Deem Geofence Warrants Unconstitutional Under the Fourth Amendment

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On March 27, 2024

In Contributions

by Shirin Asgari*

Circuit courts are currently split on the constitutionality of geofence warrants. Geofence warrants grant law enforcement officers the power to access personal user data collected and stored by tech giants, such as Apple and Google. This Contribution considers the Fourth Amendment implications of geofence warrants and argues that such warrants are unconstitutional. First, given the Supreme Court’s previous reasoning under Carpenter v. United States,1 individuals have a reasonable expectation of privacy to their location information and other highly personal information attached to their accounts. Second, the nature of geofence warrants makes it impossible to establish probable cause over all individuals whose information is seized and searched beyond mere proximity, in violation of existing Supreme Court precedent established in Ybarra v. Illinois.2 Lastly, geofence warrants lack particularity and give law enforcement officers unbridled discretion to search an individual’s information, in clear violation of the Fourth Amendment.

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Keeping States Out of Bingo: How the Federal Interest in Indian American Sovereignty Protects Tribes’ Rights to Gamble Online

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On March 25, 2024

In Contributions

by Matan Skolnik*

It is “a principal goal of Federal Indian policy . . . to promote tribal economic development, tribal self-sufficiency, and strong tribal government.”1 Accordingly, states’ authority to intervene in the activities of Indian American tribes on tribal land is limited. An often-disputed area of this discussion pertains to tribal gaming. Federal law provides that only state laws that prohibit a game—not those that merely regulate one—are enforceable in tribal territories. But does a state law that prohibits online gaming constitute a prohibition such that the law can be enforced on tribal land, or does it merely regulate the manner in which the game can be played? This contribution argues that such a law would be a regulation, unenforceable on tribal land, and that public policy benefits support that result.

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