N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Applicability of the PSLRA Automatic Discovery Stay in State Courts

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On October 18, 2022

In Contributions

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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Falsifying a Social Security Number Is Not Morally Turpitudinous

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On October 6, 2022

In Contributions

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.

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Preserving the Bivens Doctrine in the Fourth Amendment Context

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On October 4, 2022

In Contributions

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.

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

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On September 22, 2022

In Contributions

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.

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

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On September 20, 2022

In Contributions

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.

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

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On September 15, 2022

In Contributions

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.

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

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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.

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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

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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.

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The Prison Mailbox Rule and Represented Appellants

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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.

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

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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.

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