N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

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

By

On September 13, 2022

In Contributions

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.

Read More

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

On June 6, 2022

In Contributions

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.

Read More

The Prison Mailbox Rule and Represented Appellants

By

On May 31, 2022

In Contributions

by Rose Kent*

The prison mailbox rule, as codified in Federal Rule of Appellate Procedure 4(c), states that an incarcerated litigant’s notice of appeal is considered timely filed if it is deposited in the prison’s internal mailing system on or before the filing deadline. The Supreme Court introduced this rule in the context of a pro se prisoner, and it remains unclear whether represented prisoners may also benefit from the rule. In this Contribution, Rose Kent (’22) argues that Rule 4(c) applies to all incarcerated people, regardless of whether they are represented by counsel.

Read More

Pleading the Fifth in State Regulatory Proceedings Concerning State-Sanctioned Medical Marijuana Use

By

On May 4, 2022

In Contributions

by Andrew Wells*

To date, thirty-six states have legalized the possession and use of medical marijuana. However, marijuana possession—regardless of use—is still a federal crime under the Controlled Substances Act (21 U.S.C. § 811). This discrepancy means that an individual legally using medical marijuana under state law can still be prosecuted for violating federal law. In this Contribution, Andrew Wells (’22) argues that Fifth Amendment privilege invocation is proper in such circumstances because the Fifth Amendment protects individuals against compelled disclosures that would create the possibility of prosecution.

Read More

The Role of the Rule of Lenity and the Canon of Constitutional Avoidance in Interpreting the Computer Fraud and Abuse Act

By

On May 2, 2022

In Contributions

by Rachel Sang*

The Computer Fraud and Abuse Act (“CFAA”), enacted in 1986, is a federal law that proscribes certain behavior involving unauthorized access to computers. Over time, a circuit split developed regarding the meaning of the CFAA’s “Access Provision.” The Supreme Court resolved this circuit split in its recent decision Van Buren v. United States. In this Contribution, Rachel Sang (’22) argues that although both the majority opinion and the dissent in Van Buren provide convincing textual interpretations of the statute, policy considerations, the rule of lenity, and constitutional concerns weigh in favor of the majority’s construction of the CFAA.

Read More

A Growing Need for Data Privacy Protection: Federal Preemption in the Data Privacy Arena

By

On April 28, 2022

In Contributions

by Mark Vandenberg*

Data privacy is a burgeoning concern for the United States because federal telecommunications law was last meaningfully updated in 1996. The sheer amount of data collected about people’s private lives—which is now often publicly available—was simply unimaginable to lawmakers at that time. In the face of federal inaction on this problem, states have begun to move forward with their own data privacy protection laws, leading to questions regarding federal preemption. In this Contribution, Mark Vandenberg (’22) argues that neither field nor conflict preemption stand in the way of states working to protect their citizens with more robust data privacy laws and regulations.

Read More

The Cruel and Unusual Nature of Denying Self-Identity: The Eighth Amendment and Gender Confirmation Surgery

By

On April 25, 2022

In Contributions

by Virginia Su*

This Contribution examines whether the denial of Gender Confirmation Surgery to a transgender inmate suffering from severe gender dysphoria constitutes cruel and unusual punishment under the Eighth Amendment. Virginia Su (’22) argues that, under Eighth Amendment precedent, the denial of medically necessary gender confirmation surgery constitutes deliberately indifferent conduct by prison officials.

Read More

Automatic Repeal? The Automatic Stay and the Federal Arbitration Act in Bankruptcy Proceedings

By

On April 21, 2022

In Contributions

by Lorenzo Antonio Hoppe Villegas*

While the Bankruptcy Code’s automatic stay halts actions against debtors who have declared bankruptcy, the Federal Arbitration Act (“FAA”) may nonetheless require debtors to resolve disputes with their creditors in arbitration. In this Contribution, Lorenzo Villegas (’22) argues that the passage of 11 U.S.C. § 362 and related judicial code provisions does not impliedly repeal the Federal Arbitration Act (“FAA”). Therefore, arbitration agreements between creditors and debtors who have filed a Chapter 11 bankruptcy petition are valid and enforceable in the face of the Bankruptcy Code’s automatic stay in some circumstances.

Read More

COVID Era Regulations in the Absence of Federal Coordination: How the Dormant Commerce Clause Can Co-Exist with Effective State Contact Tracing Regulations

By

On April 11, 2022

In Contributions

by Kenneth R. Brown*

Contact tracing emerged during the beginning of the COVID-19 pandemic as an important tool to reduce the spread of COVID-19. The use of cell phone applications provides a method to effectively trace potential exposures since most individuals carry cell phones that can easily gather the necessary data. The federal government has thus far failed to introduce its own regulations regarding the large volume of data that can be collected during contact tracing efforts or attempt to help coordinate the regulations of the individual states to ensure consistency; paving the way for a patchwork system of rules to govern, as each state is left to formulate its own method to protect the health and privacy of its residents. However, due to the volume of interstate travel and difficulty of restricting application usage based on state borders, states must be careful not to run afoul of the so-called “Dormant Commerce Clause” of the United States Constitution. In this Contribution, Kenneth Brown (’22) argues that it is possible for a state to effectively regulate con-tact tracing applications without violating the Constitution.

Read More

Gatekeepers or Not Gatekeepers? A Simple, Coherent Approach to Assigning Underwriter Liability to Financial Advisors in Direct Listings

By

On April 4, 2022

In Contributions

by Graham Ellis*

Section 11 of the Securities Act imposes liability for damage caused by untrue or misleading information in Resale Registration Statements on underwriters. The exact scope of the statutory definition of underwriter, particularly its category of “participants,” is subject to a circuit split. Thus, whether financial advisors in direct listings are liable is an open question. In this Contribution, Graham Ellis (’22) argues that the courts should not adopt a categorical rule of inclusion or exclusion related to financial advisor underwriter status, but instead, should formulate an ad hoc analysis that emphasizes Congress’s initial purpose of assigning liability to ‘gatekeepers’ in securities transactions. This test should inquire into whether the financial advisor to the transaction acted as a conduit between the issuing company and the investing public, and whether the financial advisor publicly vouched for the accuracy of the registration statement.

Read More

Page 10 of 20

Previous

Next

Powered by WordPress & Theme by Anders Norén