N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Category: Contributions Page 5 of 17

A SLAPP in the Face: How State Anti-SLAPP Statutes Can Still Apply in Federal Courts Exercising Diversity Jurisdiction

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On April 18, 2023

In Contributions

by Conner Kozisek*

A Strategic Lawsuit Against Public Participation (“SLAPP”) is a meritless lawsuit designed to chill constitutionally protected speech, thereby posing a dangerous threat to First Amendment rights. To challenge the chilling effects of SLAPP suits, more than 30 states and the District of Columbia have adopted anti-SLAPP legislation, many of which create a special motion to strike a claim based on a defendant’s speech in furtherance of their First Amendment rights. Because there is no federal anti-SLAPP legislation, the federal judiciary is divided on whether anti-SLAPP laws should apply in federal courts exercising diversity jurisdiction, especially in the wake of the Court’s fractured opinion in Shady Grove Orthopedic Associates v. Allstate Insurance Co. This Contribution argues that federal courts sitting in diversity should apply the approach set forth in Justice Stevens’s Shady Grove concurrence to recognize the potential substantive rights created by or protected through anti-SLAPP legislation.

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Title II of the ADA & Public School Removals

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On March 14, 2023

In Contributions

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.

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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

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On March 9, 2023

In Contributions

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.

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

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On March 2, 2023

In Contributions

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.

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

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On December 8, 2022

In Contributions

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.

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

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On December 6, 2022

In Contributions

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.

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

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On December 1, 2022

In Contributions

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.

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

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On November 29, 2022

In Contributions

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.

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Immutable Skills: The Validity of Career-Based Asylum Categories

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On November 22, 2022

In Contributions

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.

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Disparate Impact Claims and Federal Disability Discrimination Law

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On November 17, 2022

In Contributions

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.

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