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

By

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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