N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Category: Contributions Page 3 of 17

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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A Second Bite at the Apple: Why Acquitted-Conduct Sentencing Must be Addressed by SCOTUS

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On March 13, 2024

In Contributions

by Natalie Lalama*

The United States Supreme Court recently passed on deciding the constitutionality of the use of acquitted conduct in federal sentencing by denying certiorari in McClinton v. United States. The Court denied certiorari in deference to the United States Sentencing Commission, which has recently collected public comment on proposals to amend the practice of acquitted-conduct sentencing. This Contribution argues that the amendments put forward by the Sentencing Commission are insufficient to address the significant constitutional questions raised by acquitted-conduct sentencing because they do not address root causes of procedural unfairness. These amendments do not rectify the unfairness inherent in giving the government a second bite at the apple, increasing the trial penalty for defendants, or the stigma and bias defendants face in sentencing. Acquitted-conduct sentencing as a practice contravenes the Due Process Clause of the Fifth Amendment; therefore, the Supreme Court is much better situated to determine this pressing constitutional question. 

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

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On January 17, 2024

In Contributions

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.

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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

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On November 29, 2023

In Contributions

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.

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

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On November 28, 2023

In Contributions

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.

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

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On November 22, 2023

In Contributions

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.

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Revisiting Corporate Personhood in Hobby Lobby

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On November 20, 2023

In Contributions

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.

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

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On November 15, 2023

In Contributions

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.

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