N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Constitutional Law Page 1 of 5

Geofence Warrants After Chatrie: A Proposal for a Model Warrant

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On August 31, 2026

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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.

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

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On August 29, 2026

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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.

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Public Forums and Private Firearms: The Application of the First Amendment to the Second Amendment

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On May 19, 2026

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by Réka Illei* 

In 2008 with District of Columbia v. Heller, the Supreme Court began its overhaul of Second Amendment jurisprudence and left lower courts in a state of limbo on how to evaluate permissible state restrictions on firearm possession. In 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, the Court affirmed the right to carry a firearm for self-defense outside of the home. At the same time, the Court left open the notion of “sensitive places,” such as schools and government buildings, in which firearm restrictions may be more permissible under the Second Amendment. In the years since, states have attempted to regulate firearm possession in parks under the Bruen historical analogue framework. Still, Bruen provides little to lower courts regarding how to properly identify if a location is a sensitive place for the purposes of relaxing Second Amendment protections. Meanwhile, First Amendment jurisprudence has established a forum analysis for the similar purpose of evaluating rights-restricting speech regulations, which is familiar to and faithfully applied by courts across the country. This Contribution argues that courts should appropriate the First Amendment forum framework for the Second Amendment analysis of sensitive places and historical analogues as established by Bruen.

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Protecting the FTCA: Why Federal Employees Do Not Have Discretion to Violate the Constitution

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On April 24, 2026

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by Sabrina Ruch*

The Federal Tort Claims Act (“FTCA”) is a limited waiver of sovereign immunity that provides a cause of action for individuals to recover for negligent or wrongful acts by federal employees within the scope of their employment. However, Congress provided for certain exceptions to this waiver, including the discretionary function exception, which shields federal employees from liability for claims arising out of actions taken in their discretion. This includes making a policy-based decision within the scope of their employment. Circuit courts are divided over whether a federal employee’s conduct can fall within the discretionary function exception when the plaintiff plausibly alleges that the employee’s actions violated the Constitution. The proper understanding of the discretionary function exception is that it does not shield employees from liability when their actions are alleged to be unconstitutional because federal employees do not have the discretion to violate the Constitution. To hold otherwise would be contrary to the plain meaning of discretion, the Supreme Court’s understanding of discretion in other contexts, and Congress’s intent when passing the FTCA and crafting its exceptions.

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Personal Property in Purgatory: Why the Fourth Amendment Should Police Government Hoarding

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On April 16, 2026

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by Mia Bravo*

The Supreme Court has not yet adopted a legal standard to regulate what happens when the government seizes personal property and retains it for an extended period without a legally valid justification. Circuit courts are split on the correct doctrinal bucket to place this unsettling pattern of behavior. While some courts think a Due Process or Takings analysis is suitable, neither standard fits with current Supreme Court precedent, produces appropriate incentives for individual officers, or sufficiently compensates aggrieved parties. On the other hand, a Fourth Amendment standard offers the most effective and doctrinally sound path forward. The Fourth Amendment reasonability framework is firmly grounded in constitutional text, history, and precedent and provides a workable means to stop constitutional harms inflicted by the government’s prolonged, unjustified retention of personal property.

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The Tucker Act and the First Amendment: Core Constitutional Claims Do Not Belong in the Court of Federal Claims

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On April 3, 2026

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by Wiatt Hinton*

Since October 7th, 2023, protests and encampments nationwide have forced schools to reconsider their balance between free speech and anti-harassment policies. In response to these protests, the Trump administration cut billions of dollars in federal funding from universities to extract settlements and impose speech policies favorable to the administration. Universities subsequently filed suit to reclaim their funding, bringing claims that, inter alia, the Trump administration violated their First Amendment rights. Instead of fighting these First Amendment claims head-on, the Trump administration delayed the conflict by seeking to shift the venue from federal district courts to the Court of Federal Claims pursuant to the Tucker Act. Although the Supreme Court has adopted a broad interpretation of the Tucker Act in Administrative Procedure Act claims, its reasoning there should not apply to First Amendment claims. This Contribution argues that a proper reading of the Tucker Act strips the CFC of jurisdiction over First Amendment claims because they are not money-mandating and because the CFC lacks the equitable power needed to remedy these violations. With this construction, the Trump administration can no longer escape liability for their suppressive policies and universities can restore their academic freedom.

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From Alvarez to AI: False Speech and Political Deepfakes

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On March 30, 2026

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By Mara Clemons*

Political deepfakes occupy the outer limits of First Amendment protection by combining political expression with uniquely persuasive deception. Their capacity to mislead voters erodes trust in authentic media and challenges the traditional assumption that false political speech can be reliably corrected through the marketplace of ideas. Recent judicial treatment of state-level deepfake regulations illustrates the narrow constitutional space available for regulation. Statutes regulating political deepfakes should not receive strict scrutiny protection when analyzed by courts for First Amendment violations because the defining harm arises not from the communication of false ideas, but from the deliberate deception of speaker identity. By falsely representing who is speaking, deepfakes distort the informational cues that enable voters to assess credibility and accountability, placing them outside the core category of traditional political speech that the First Amendment is intended to protect. Regulations of political deepfakes target this deceptive mechanism, rather than suppressing ideas or viewpoints, and should therefore be evaluated under intermediate scrutiny.

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Policing by Algorithm: Rethinking the Fourth Amendment in the Age of AI Surveillance

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On January 5, 2026

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by Elysia Wu*

The Fourth Amendment’s protections against unreasonable searches and seizures were developed when law enforcement investigations relied on publicly exposed information and relatively simple, localized data-collection technologies. The rapid adoption of artificial intelligence (“AI”) in law enforcement, however, places increasing strain on these traditional Fourth Amendment protections. Predictive policing software, facial recognition systems, and other algorithmic tools can generate detailed profiles of individuals without a warrant or individualized suspicion, enabling wide-scale police monitoring in a continuous, data-driven way. Treating AI tools as functionally equivalent to traditional policing techniques risks eroding constitutional safeguards and exacerbating existing racial disparities in the criminal legal system. To avoid these harms and ensure that the adoption of AI by law enforcement does not erode the Fourth Amendment’s core protections, courts must find that AI surveillance requires a warrant due to its scale, continuity, and predictive inferences.

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Search by Geofence Warrant: Why Location Sharing Does Not Relinquish Fourth Amendment Rights

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On December 4, 2025

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by Lily Van Petten*

This Contribution argues that the sweeping data retrievals conducted via geofence warrants constitute Fourth Amendment searches for purposes of constitutional protections. The Fourth Circuit’s en banc decision in United States v. Chatrie avoided a definitive holding as to whether these investigatory tools pass constitutional muster. The court merely affirmed the district court’s holding that despite the occurrence of a Fourth Amendment violation, evidence would not be suppressed in the defendant’s criminal trial due to the good faith efforts of the investigating officers. The Fourth Circuit should have conclusively held that law enforcement’s use of a geofence warrant constitutes a search because individuals have a reasonable expectation of privacy in their location data under the Supreme Court’s decision in Carpenter v. United States, regardless of the fact that users share that data with third parties. As a result, a particularized search warrant stating probable cause must be obtained for each stage of data acquisition facilitated by a geofence warrant.

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When Speaking is Not “Speech”: Sanctioning Conversion Therapy Bans

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On November 28, 2025

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by Declan Alvidrez*

Professional conduct often uses or relies on speech, which is why courts may assess government regulations targeting such conduct under the First Amendment’s broad protections. Attacks on restrictions of professional speech—speech by a professional to a client in the course of providing professional services—have challenged courts to analyze the boundaries of First Amendment protections in relation to states’ power to regulate licensed professions. In so doing, courts have struggled with whether to treat professional speech as a distinct category under the First Amendment and how to analyze regulations of professional conduct when the regulated conduct relies on speech. These doctrinal issues are especially salient in constitutional challenges to states’ prohibitions on conversion therapy, because banning this professional conduct necessarily limits the speech associated with its talk therapy method. Nonetheless, this Contribution argues that such prohibitions only warrant assessment under a lower level of constitutional scrutiny because they only incidentally burden speech, and the speech that is burdened is not of the kind that First Amendment jurisprudence is most concerned with protecting.

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