Exploring New Approaches to Unsettled Legal Questions

Category: Contributions Page 2 of 13

You Vote What You Eat? Assessing the Constitutionality of Prohibitions on Food Distribution to Voters

by Shara Safer*

A con­tro­ver­sial Geor­gia law, the Elec­tion Integri­ty Act of 2021, pro­hibits non-prof­it orga­ni­za­tions from hand­ing out food or water to indi­vid­u­als wait­ing in line to vote. This Con­tri­bu­tion argues that the law con­sti­tutes an uncon­sti­tu­tion­al restric­tion on free speech in a pub­lic forum.

Barred from Birthright: The Constitutional Case for American Samoan Citizenship

by Tess Saper­stein*

Unlike those born in any oth­er Unit­ed States ter­ri­to­ry, Amer­i­can Samoans are sad­dled with the ambigu­ous legal sta­tus of “nation­als, but not cit­i­zens, of the Unit­ed States.” Amer­i­can Samoans have repeat­ed­ly sued, argu­ing that they are enti­tled to birthright cit­i­zen­ship. How­ev­er, the Court of Appeals for the Dis­trict of Colum­bia and the Tenth Cir­cuit have denied their claims, rely­ing on the Insu­lar Cas­es, a series of ear­ly twen­ti­eth cen­tu­ry Supreme Court deci­sions deal­ing with ter­ri­to­ries acquired as a result of the Span­ish-Amer­i­can War. Nonethe­less, the mod­ern Court has repeat­ed­ly expressed its reluc­tance to extend the log­ic of the Insu­lar Cas­es because of their racist under­pin­nings. This Con­tri­bu­tion argues for the Court to over­turn the Insu­lar Cas­es and grant Amer­i­can Samoans birthright citizenship.

Applicability of the PSLRA Automatic Discovery Stay in State Courts

by Cather­ine Willis*

The Pri­vate Secu­ri­ties Lit­i­ga­tion Reform Act (“PSLRA”), 15 U.S.C. § 77z‑1(b)(1), pro­vides that dis­cov­ery should be auto­mat­i­cal­ly stayed in Secu­ri­ties Act actions at the motion to dis­miss stage. Though Secu­ri­ties Act claims may be brought in either state or fed­er­al courts, courts are divid­ed over whether the PSLRA dis­cov­ery stay applies in both state and fed­er­al court or sole­ly applies in fed­er­al court. This Con­tri­bu­tion argues that the PSLRA dis­cov­ery-stay pro­vi­sion should apply in any action under the Secu­ri­ties Act, regard­less of venue.

Falsifying a Social Security Number Is Not Morally Turpitudinous

by Claire Lisker*

A con­vic­tion for a “crime involv­ing moral turpi­tude” ren­ders an undoc­u­ment­ed immi­grant inel­i­gi­ble for can­cel­la­tion of removal, a dis­cre­tionary form of relief that the Attor­ney Gen­er­al may grant to indi­vid­u­als who have remained in the Unit­ed States for ten or more years. This Con­tri­bu­tion argues that fal­si­fy­ing a Social Secu­ri­ty num­ber, as crim­i­nal­ized under 42 U.S.C. § 408(a)(7)(B), is not a crime involv­ing moral turpitude.

Preserving the Bivens Doctrine in the Fourth Amendment Context

by Tina LaRitz*

The Bivens doc­trine allows plain­tiffs who suf­fer con­sti­tu­tion­al vio­la­tions at the hands of fed­er­al offi­cers to claim mon­e­tary dam­ages from fed­er­al courts, absent the statu­to­ry recog­ni­tion of such a right. Recent jurispru­dence has increas­ing­ly sought to lim­it this right in a show of judi­cial con­ser­vatism at the expense of deserv­ing plain­tiffs. This Con­tri­bu­tion argues that the Bivens doc­trine must be pre­served broad­ly with­in the Fourth Amend­ment unrea­son­able search context.

Gatekeeping or Gaslighting? How Courts Mislead Juries by Excluding Expert Testimony on the Accuracy of Eyewitness Identifications

by Zoe Farkas*

His­tor­i­cal­ly, eye­wit­ness iden­ti­fi­ca­tions have been con­sid­ered the gold stan­dard of tri­al evi­dence. There’s lit­tle that’s more con­vinc­ing than a wit­ness on the stand con­fi­dent­ly point­ing at a defen­dant and pro­claim­ing, under oath, “that’s the one!” How­ev­er, over the last half cen­tu­ry it has become clear that eye­wit­ness iden­ti­fi­ca­tion may actu­al­ly be one of the most fal­li­ble evi­den­tiary tools, despite com­mon mis­con­cep­tions of its accu­ra­cy. Even in the face of grow­ing research demon­strat­ing the unre­li­a­bil­i­ty of eye­wit­ness iden­ti­fi­ca­tion, courts have been slow to allow experts to tes­ti­fy to that unre­li­a­bil­i­ty in the court­room. Judges instead bar them as unqual­i­fied or unhelp­ful under Fed­er­al Rule of Evi­dence 702. This Con­tri­bu­tion argues that these experts are not only qual­i­fied and help­ful, but absolute­ly essen­tial to help juries ful­fill their fact-find­er duties.

Undo Deference: Reversing the Erosion of Public Employees’ Free Speech Rights

by Bex Rothen­berg-Montz*

Although mem­bers of the gen­er­al pub­lic enjoy a right to free speech under the First Amend­ment, gov­ern­ment employ­ees’ speech is more con­strained. Courts deter­mine whether a gov­ern­ment employee’s speech is pro­tect­ed by bal­anc­ing the inter­ests of the gov­ern­ment and the employ­ee. How­ev­er, in prac­tice, the def­er­ence afford­ed to the gov­ern­ment typ­i­cal­ly tips the scales. Because courts defer to the government’s inter­ests with­out requir­ing sub­stan­ti­at­ing evi­dence, the gov­ern­ment is able to sti­fle employ­ee speech and erode First Amend­ment pro­tec­tions for its employ­ees. Con­se­quent­ly, this def­er­ence con­di­tions free speech pro­tec­tions upon pub­lic employ­ment sta­tus. Aban­don­ing this def­er­ence will bring First Amend­ment jurispru­dence in line with the prin­ci­ples that ani­mat­ed its enactment. 

“All Obligations”: The Consequences of Rejecting a Commercial Lease in Bankruptcy

by Kevin Lis­se­more*

11 U.S.C. § 365 grants a bank­rupt­cy trustee or debtor in pos-ses­sion the pow­er to reject execu­to­ry con­tracts and unex­pired com­mer­cial leas­es. Sub­sec­tion (d)(3) spec­i­fies that, while the bank­rupt par­ty is decid­ing to assume or reject a lease, the trustee must “time­ly per­form all the oblig­a­tions of the debtor” under the lease. This sub­sec­tion has giv­en rise to sig­nif­i­cant lit­i­ga­tion when a debtor opts to reject their lease in the mid­dle of a rental peri­od, par­tic­u­lar­ly where the lease makes the entire period’s rent due in advance on the first day of the peri­od. The land­lord and bank­rupt par­ties in this sit­u­a­tion dis­agree about what a bank­rupt par­ty is oblig­at­ed to pay: the entire rent for the final rental peri­od or a pro­rat­ed cost that cov­ers the peri­od pri­or to the rejec­tion. How­ev­er, the plain text of the statute only embraces the for­mer inter­pre­ta­tion. Beyond the clear tex­tu­al basis, addi­tion­al inter­pre­tive resources like the statu­to­ry pur­pose and prefer­able pol­i­cy out­comes also align with this inter­pre­ta­tion, result­ing in an unde­ni­able inter­pre­ta­tion in favor of landlords.

West Flagler Associates v. Haaland: An Attempt to Game the Indian Gaming Regulatory Act

by Matthew Dorf­man*

In 2021, the Semi­nole Tribe of the State of Flori­da and the State of Flori­da signed a gam­ing com­pact that was tac­it­ly approved by Sec­re­tary of the Inte­ri­or Deb Haa­land. The com­pact allowed the Semi­nole Tribe to oper­ate an online sports gam­bling appli­ca­tion through­out the State by deem­ing the loca­tion of all gam­ing activ­i­ty as hav­ing tak­en place exclu­sive­ly on Native lands. This Con­tri­bu­tion argues that the mean­ing of the word “on” as derived from ordi­nary usage and from usage under sim­i­lar statu­to­ry cir­cum­stances pre­cludes the per­spec­tive adopt­ed by the Semi­nole Tribe and the State of Flori­da, and thus requires the Sec­re­tary of the Inte­ri­or to reject the gam­ing compact.

Forcing a “Low-Tech Peg” into a “Cutting-Edge Hole”: Why Applying the Pre-Digital Age Foregone Conclusion Exception to Smartphones Would Impermissibly Narrow the Fifth Amendment

by Heather Glober­man*

The major­i­ty of courts are in agree­ment that the implied admis­sions from a per­son being forced to pro­duce a cell­phone passcode—that the evi­dence sought exists and is authen­tic, and that the phone’s own­er pos­sessed that evidence—are tes­ti­mo­ni­al and there­fore pro­tect­ed by the Fifth Amend­ment priv­i­lege against self-incrim­i­na­tion. But can the gov­ern­ment force this pro­duc­tion regard­less by argu­ing for the appli­ca­tion of the fore­gone con­clu­sion excep­tion to the priv­i­lege, a doc­trine that the Supreme Court has nev­er applied out­side of an ana­logue busi­ness or tax con­text? In this Con­tri­bu­tion, Heather Glober­man (‘22) argues that both Supreme Court prece­dent and prac­ti­cal con­sid­er­a­tions fore­stall the extreme nar­row­ing of the Fifth Amend­ment that would fol­low such an appli­ca­tion of the fore­gone con­clu­sion excep­tion to a mod­ern, per­son­al, and dig­i­tal context.

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