N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: 2026-2027

Publications from the 2026–2027 academic year

Misclassification and Mandatory Detention

By

On October 13, 2026

In Contributions

Download PDF

by Carrie Mannino*

In its upcoming term, the Supreme Court will decide whether ICE has the authority to detain without bond all noncitizens who have entered the country without legal admission even if they have lived in the United States for decades. Sections 1225 and 1226 of U.S. Code Title 8 outline the detention procedures for noncitizens. Historically, § 1225 has been interpreted to apply to noncitizens who are apprehended when they are just entering the country, while § 1226 has been interpreted to apply to noncitizens who are apprehended within the country. In 2025, ICE announced a new interpretation of § 1225, asserting that it mandates the detention of all noncitizens in the country who were not officially admitted, regardless of how long they have been in the United States. This is a radical change from long-standing practice and a mischaracterization of the statute. Subjecting all noncitizens who have not undergone immigration inspection to mandatory detention is not authorized by the statute’s text or legislative history, and such an interpretation poses significant constitutional concerns. Courts across the country have heard challenges to this new interpretation of § 1225 and have split over the issue, leading the Supreme Court to grant certiorari earlier this month. The majority of district and circuit courts have reached the correct conclusion: Section 1225, with its mandatory detention provision, should only apply to noncitizens who have not yet entered the country, and Section 1226, which permits bond hearings, should apply to noncitizens living in the country.

Read More

The First Amendment Case Against Social Media Algorithm Regulation

By

On October 13, 2026

In Contributions

Download PDF

by Jacob Pasternack *

State and federal governments have increasingly sought to regulate social media companies’ algorithm design to address concerns about content amplification and potential social media addiction. However, such efforts face significant First Amendment obstacles. This Contribution argues that current and proposed algorithmic laws are constitutionally dubious for four reasons: (1) Moody v. NetChoice’s protection of content-curation likely extends to companies’ decisions about all algorithmic recommendation systems, which involve human editorial judgments in training data selection and algorithm design; (2) algorithmic code possesses expressive purpose and constitutes protected speech; (3) despite platforms’ commercial objectives, their decisions about their algorithms do not qualify as commercial speech warranting lesser judicial scrutiny; and (4) “addictive” features remain presumptively protected speech.

Read More

Nothing Certain Except Death and Illegal Taxes: How the Tax Anti-Injunction Act Violates Due Process

By

On October 13, 2026

In Contributions

Download PDF

by Andy Gorordo*

The Tax Anti-Injunction Act (“TAIA”) bars federal courts from hearing suits “for the purpose of restraining the assessment or collection of any tax.” In place of pre-enforcement equitable remedies, Congress has supplied an exclusively post-deprivation regime of administrative and judicial remedies designed to afford the Internal Revenue Service protection from burdensome litigation. But these avenues provide no meaningful opportunity for taxpayers to avert irreparable harm suffered from illegally collected taxes, a consequence seriously at odds with the Fifth Amendment’s Due Process Clause. The very heart of due process is the opportunity to be heard at a meaningful time, which for irreparable injuries can only be prior to government enforcement. The Supreme Court’s long history of interpreting the TAIA has been defined by attempts to harmonize the statute with the Due Process Clause, but with little success. This Contribution argues that the Supreme Court’s no-alternative-remedy exception announced in South Carolina v. Regan should be extended to allow plaintiffs to bring suits for equitable injunctive relief, notwithstanding the TAIA, whenever they can demonstrate a substantial likelihood of irreparable injury. The Court’s recurring need to carve out exceptions to the TAIA signals that the current doctrine is fundamentally unworkable, and an expanded Regan exception, grounded in the Court’s historical equitable approach to the TAIA’s statutory predecessor, offers a sensible off-ramp.

Read More

Keeping the Door Open: Why There Is No Categorical Corporate Immunity to the Alien Tort Statute

By

On October 13, 2026

In Contributions

Download PDF

by Ben Salinger*

The Alien Tort Statute (“ATS”) permits foreign nationals to file lawsuits in United States district courts for violations of international law, but the statute is silent on the types of parties they can sue. The Supreme Court has held that foreign corporations cannot be sued under the ATS. However, the Court has left open the question of whether the same immunity extends to domestic corporations, and a circuit split has emerged on that issue. The Second and Ninth Circuits treat corporate liability as a “judicially created” cause of action beyond what Congress authorized in the ATS, and, accordingly, they analyze whether there is an established norm in international law of imposing liability on corporations that could justify creating a new “corporate liability” cause of action. The Fourth and D.C. Circuits, on the other hand, view corporate liability as a question of defendant identity, allowing corporations to be held liable so long as it is permitted by the ATS itself and the United States Constitution. This Contribution argues that the Supreme Court should adopt the Fourth and D.C. Circuits’ domestic law approach and hold that domestic corporations are not categorically immune from ATS liability for three reasons. First, the domestic law approach best reflects the Court’s own ATS jurisprudence; second, the statute’s text, purpose, and founding era history compel a rejection of categorical corporate immunity; and finally, explicit adoption of this approach preserves an important pathway to relief for victims of corporate human rights abuses in the wake of the Court’s recent decision in Cisco Systems, Inc. v. Doe I.

Read More

Coordination Without Conversation: Reciprocal Data-Pooling and Algorithmic Price-Fixing Under Section 1

By

On September 4, 2026

In Contributions

Download PDF

by Malcolm Girand*

Section 1 of the Sherman Act reaches only concerted action, whereas parallel outcomes that reflect independent business judgment remain lawful. The proliferation of shared algorithmic pricing tools has strained that line, and courts have divided over what a plaintiff must plead to establish an unlawful agreement. Some have dismissed these claims at the threshold, treating the absence of a clearly alleged agreement as dispositive and requiring allegations that virtually negated independent explanations at the pleading stage. This Contribution argues that such an approach misreads Bell Atlantic Corp. v. Twombly, importing an evidentiary demand associated with trial and summary judgment into Rule 12. It further argues that courts should recognize reciprocal algorithmic data-pooling—competitors contributing their own nonpublic, competitively sensitive, current data to a common pricing system that uses those data in generating recommendations for known rivals, with each contributor aware of the reciprocal arrangement—as a plus factor to infer agreement from parallel conduct. Because such reciprocal algorithmic data-pooling is difficult to explain as ordinary unilateral conduct and strongly suggests mutual assurance, it ordinarily suffices—joined with parallel conduct and the remaining elements of the claim—to support a plausible inference of agreement and reach discovery.

Read More

Geofence Warrants After Chatrie: A Proposal for a Model Warrant

By

On August 31, 2026

In Contributions

Download PDF

by Charles Kim*

The Supreme Court’s decision in Chatrie v. United States fundamentally altered the constitutional landscape governing so-called “geofence warrants” by holding that when the government acquires comprehensive location history data, it must first obtain a warrant which satisfies the Fourth Amendment’s probable cause and particularity requirements. But Chatrie left a critical question unanswered: how would a constitutionally valid geofence warrant meet those requirements? This Contribution argues that the warrant at issue in Chatrie fell short because it authorized an increasingly intrusive search while leaving nearly every consequential decision to law enforcement officers rather than a neutral magistrate. Although anonymization of location data can substantially mitigate the privacy concerns associated with its disclosure, it is meaningful only if accompanied by safeguards that prevent premature de-anonymization. Building on these principles, this Contribution proposes a model geofence warrant that would require renewed judicial authorization before each expansion of the search. By restoring judicial oversight, the model warrant better reconciles legitimate law enforcement needs with the Fourth Amendment’s historical commitment to protecting privacy from unbounded government discretion.

Read More

Testifying by Fingerprint: Why the Government Can’t Force You to Unlock Your Phone

By

On August 29, 2026

In Contributions

Download PDF

by Annemarie Ardy*

Cell phones have become ubiquitous in modern life; they are often carried everywhere and used to facilitate nearly every activity. Yet their incredible convenience is a double-edged sword: when searched by law enforcement, the wealth of information contained on a cell phone can paint a more intimate and fine-grained portrait of a person’s life than 24/7 surveillance. Passcodes and biometric scanners—mechanisms that permit a user to unlock a device through its recognition of the user’s face or fingerprint—stand in the government’s way, but only so long as courts do not permit the government to compel people to unlock their phones. Although the compulsion of a passcode clearly violates the Fifth Amendment’s Self-Incrimination Clause, courts have split on the question of whether compulsion of biometric scanning receives similar protections. This Contribution argues that courts should treat the use of biometric scanners as categorically testimonial and therefore protected by the Self-Incrimination Clause. Biometric scanners convey information that is classically testimonial, and to hold otherwise would pose unacceptable risks to personal privacy.

Read More

The Johnson Amendment After Catholic Charities: The Return of Larson v. Valente Strict Scrutiny

By

On August 29, 2026

In Contributions

Download PDF

by Christopher Cokinos*

The Supreme Court’s decision in Larson v. Valente established that laws creating explicit preferences among religious denominations must be analyzed under strict scrutiny for Establishment Clause violations. For more than four decades after Larson was handed down, the Court left many questions open as to what an explicit denominational preference was and whether Larson strict scrutiny was even a viable test. However, following Catholic Charities v. Wisconsin Labor and Industrial Review Commission, where the Supreme Court used the Larson strict scrutiny analysis as the core of its decision, the vitality of Larson is clear. With this newfound life, both the government and religious organizations are hoping to strike down the Johnson Amendment: a ban on direct political participation by 501(c)(3) organizations, including churches. This Contribution argues that such a challenge to the Johnson Amendment does not fit within the Larson doctrine, since, although Larson is rather unclear in its applicability and whether strict scrutiny is the operative test, the Johnson Amendment is not a denominational preference as contemplated by the relatively thin Larson body of case law.

Read More

Powered by WordPress & Theme by Anders Norén