N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: 2021–2022 Page 1 of 2

Publications from the 2021–2022 academic year

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

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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.

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

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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.

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

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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.

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

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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.

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

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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.

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

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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.

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The Fourth Amendment in the Digital Era: Applying the Private Search Doctrine to Flash Drives and Other Electronic Media Storage Devices

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On March 28, 2022

In Contributions

by William G. Walant*

There is currently a circuit court split as to how the private search doctrine, a judicially-created framework under the Fourth Amendment, applies in the context of electronic media storage devices, such as flash drives—either via a “narrow approach” or a “broad approach.” Without further guidance from the Supreme Court, police officers in some jurisdictions are effectively given authority to end-run around the Fourth Amendment. In this Contribution, William Walant (‘22) argues that the Supreme Court should adopt the “narrow approach,” which focuses on the unique nature of digital media devices. This focus is embraced in Riley v. California and is consistent with the private search doctrine’s underlying principles. However, unlike as has been suggested by some recent scholarship, the private search doctrine need not be altered to fit electronic media storage devices, and the narrow approach does not create insurmountable and undesirable consequences. Instead, by adopting a narrow approach, the private search doctrine can be preserved while reaching a positive outcome for society: an officer, absent exigent circumstances or other exceptions, will be incentivized to obtain a warrant to examine the contents of an electronic device handed over by a private party.

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