Exploring New Approaches to Unsettled Legal Questions

Category: Contributions Page 3 of 14

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.

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.

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