N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Constitutional Law Page 3 of 4

Evolving Standards of Decency: Solitary Confinement and the Eighth Amendment

By

On November 22, 2021

In Contributions

by Jane M. Mahan* 

The Eighth Amendment prohibits cruel and unusual punishments. But proving an Eighth Amendment violation based on dangerous or unfit prison conditions is difficult because it requires a showing of subjective culpability on the part of prison officials. Federal courts have grown increasingly aware of the harmful nature of solitary confinement, particularly for juveniles, the mentally ill, and inmates with special medical needs. In this Contribution, Jane M. Mahan (’22) argues that the placement of vulnerable inmates in solitary confinement for a period exceeding fifteen consecutive days should be per se unconstitutional under the Eighth Amendment.

Read More

Religious Accommodation or Unlawful Favoritism? Examining the Constitutionality of the Parsonage Exemption

By

On November 8, 2021

In Contributions

by Alec Soghomonian*

The First Amendment’s Religion Clauses provide that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof . . . .” The Religion Clauses clearly prohibit both the Federal and state governments from establishing an official state religion or hindering religious practice to such an extent that it results in a constitutional infringement. However, the Supreme Court has long acknowledged that absent those two clear commands “there is room for play in the joints” when addressing the constitutionality of government action that implicates religious belief. Does a tax benefit that provides a financial benefit to a limited class of religious employees and their employers violate the Establishment Clause? In this Contribution, Alec Soghomonian (‘22) argues that the Parsonage Exemption, found in 26 U.S.C. § 107(2) of the United States tax code, unlawfully provides a benefit to religious employees and employers because it does not extend to similarly situated non-religious institutions.

Read More

The Right Against Self-Incrimination in the Digital Age

By

On September 20, 2021

In Contributions

by Diego Wright*

Law enforcement agencies are increasingly seeking to compel the disclosure of passwords from the owners of password-protected encrypted devices, such as cell phones. Does the government have the right to compel this disclosure? In this Contribution, Diego Wright (‘22) argues that the Fifth Amendment right against self-incrimination protects an individual from being forced to disclose their passcode when analyzed under the “foregone conclusion” doctrine unless the government can demonstrate they already know the testimonial communications tacit in the act of providing the passcode.

Read More

The Fifth Amendment: No Safe Harbor for First Amendment Retaliation

By

On February 22, 2021

In Contributions

by Hannah Beattie*

This Contribution examines whether compliance with the Fifth Amendment should shield a federal condemnation action from a First Amendment retaliation claim. Hannah Beattie (’21) argues that the rationales for carving out safe harbors for government action to be free from First Amendment scrutiny if in compliance with the Fourth Amendment do not extend to the Fifth Amendment context. Ultimately, this Contribution concludes that an individual should be able to raise a First Amendment retaliation defense to a condemnation action, even if the government complied with the Fifth Amendment.

Read More

Inverting the Scope-of-the-Project Rule: Determining When Government Pre-Condemnation Announcements Should Change the Default Rule for Just Compensation

By

On October 20, 2020

In Contributions

By Timothy Lyons*

The Fifth Amendment prohibits the taking of private property “without just compensation,” but the optimal method of determining the precise amount of money that will justly compensate the property owner is not always clear. The general rule has been to set compensation at the fair market value of the property at the time the government takes it, with certain exceptions. In this Contribution, Timothy Lyons (’21) argues that when the government makes a well-publicized pre-condemnation announcement, it may be appropriate to compensate the owner based on the property’s value at the time of the announcement rather than its value at the time of the taking.

Read More

A Call for Sensible Gun Reform Outside of the Home

By

On April 15, 2019

In Notes

by Michael Treves*

Does the Second Amendment protect an absolute right to carry a firearm in public places for self-defense? In this Contribution, Michael Treves (’19) reviews the text and history of the Second Amendment and Supreme Court precedent, and assesses the application of the Second Amendment outside of the home. Ultimately, this Contribution argues that the “core” of the Second Amendment does not extend outside of the home, and thus public carry laws do not regulate conduct within the scope of the Second Amendment.

Read More

State Action Analysis in the Age of Social Media: When Facebook and Twitter Become Tools of the State

By

On February 25, 2019

In Contributions

by Leah Rosenberg*

When does a public official’s private social media account become a tool of governance subject to constitutional analysis? In this Contribution, Leah Rosenberg (’19) argues that public officials who use their personal social media pages to interact with the public and announce policy should be required to protect constituents’ constitutional rights and may not engage in viewpoint discrimination. This Contribution recommends that courts apply a context-specific approach to censorship claims against state officials and that court consider the specific activities challenged by assessing whether state resources and employees were used to take those actions, if the content pertained to government activities or policy, and whether the official was acting as an agent of the state at the time the censorship occurred.

Read More

Unblocked: The First Amendment and the Right to Access a State Official’s Social Media

By

On February 11, 2019

In Contributions

By Maggie Seery*

Does a state official engage in viewpoint discrimination in a state-sponsored forum when they delete a constituent’s comments or block them from their social media pages? In this Contribution, Maggie Seery (’19) discusses the possible constitutional violations an official may make when using social media to interact with the public. Ultimately, this Contribution argues that deleting a comment or blocking a user from a public social media page constitutes unconstitutional viewpoint discrimination.

Read More

Immigration and the Second Amendment: Why Undocumented Immigrants Are Entitled to the Fundamental Right to Possess Firearms

By

On October 22, 2018

In Contributions

by Kathy Buckalew*

Do undocumented immigrants have Second Amendment rights? Can they be categorically banned from possessing firearms? In this Contribution, Kathy Buckalew (’19) examines the constitutionality of a categorical ban on possession of firearms and ammunition by undocumented immigrants. The Contribution argues that undocumented immigrants living in the United States have the same individual right to keep and bear arms for purposes of self-defense as do United States citizens. Therefore, undocumented immigrants cannot be categorically prohibited from possessing firearms absent an affirmative showing by the government that such a prohibition is substantially related to the achievement of an important government interest.

Read More

Permitting Around the Constitution: Gun License Process After Heller

By

On April 23, 2018

In Contributions

by Deepa Devanathan*

To what extent can state actors limit an individual’s Second Amendment right after District of Columbia v. Heller? In this Contribution, Deepa Devanathan (’19) argues that to properly balance Second Amendment rights with a State’s need to protect people from gun violence, gun permit schemes that cover both open carry and concealed carry must include a procedural right to appeal permit denials and “good cause” requirements to get permits.

Read More

Page 3 of 4

Previous

Next

Powered by WordPress & Theme by Anders Norén