N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Evan A. Evans Constitutional Law Competition

“You’re Blocked”: Section 1983 Liability in the Age of Social Media

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On April 25, 2023

In Contributions

by Emma Becker*

With the advent of social media, a digital “town square” was created whereby elected officials and their constituents could interact in new, unforeseen ways. With the creation of this new space, however, came difficult First Amendment questions regarding digital access to officials via social media. When elected officials block constituents from their social media accounts are they acting under “color of state law,” thereby violating the First Amendment rights of those who are blocked? This Contribution argues that to determine whether an elected official is acting under “color of state law” when blocking constituents, courts should undertake a totality of the circumstances analysis, focusing on whether the social media account is swathed in the trappings of the official’s office, and whether the social media account was used as a tool of governance.

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Undo Deference: Reversing the Erosion of Public Employees’ Free Speech Rights

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On September 20, 2022

In Contributions

by Bex Rothenberg-Montz*

Although members of the general public enjoy a right to free speech under the First Amendment, government employees’ speech is more constrained. Courts determine whether a government employee’s speech is protected by balancing the interests of the government and the employee. However, in practice, the deference afforded to the government typically tips the scales. Because courts defer to the government’s interests without requiring substantiating evidence, the government is able to stifle employee speech and erode First Amendment protections for its employees. Consequently, this deference conditions free speech protections upon public employment status. Abandoning this deference will bring First Amendment jurisprudence in line with the principles that animated its enactment.

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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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The Fifth Amendment: No Safe Harbor for First Amendment Retaliation

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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.

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

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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.

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

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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.

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Permitting Around the Constitution: Gun License Process After Heller

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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.

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The Importance of Privacy in Shared Spaces

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On November 3, 2017

In Contributions

by Rachel Lerner*

Does the Fourth Amendment protect a tenant’s privacy in a shared storage unit? Can law enforcement search the whole space if her cotenant consents? In this Contribution, Rachel Lerner (’18) analyzes whether a tenant has a reasonable expectation of privacy in the space and whether it is reasonable for police to search the space upon a third-party’s consent. The Contribution argues that the Fourth Amendment protects a shared storage unit either as curtilage under Dunn or under the Katz test, and law enforcement cannot reasonably search a well-demarcated section of the unit if another cotenant consents.

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 Search, Seizure, and the Smartphone: Rethinking Privacy Protections in the Digital Age

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On April 19, 2017

In Contributions

by Christopher J. Rydberg*

In the digital age, how should privacy concerns constrain police investigations? In this Contribution, Christopher J. Rydberg considers this problem with respect to forcing suspects to unlock smartphones and specificity requirements with respect to smartphone search warrants. Ultimately, the Contribution argues that smartphones are different in kind because of the massive scope of data they contain, and thus historical doctrines of police process will have to change to accommodate the smartphone era.

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Mincing Words: From Padilla to Practice

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On April 15, 2016

In Contributions

by Kartik Sameer Madiraju*

Does an attorney satisfy a resident alien client’s Sixth Amendment right to effective counsel by informing the client of the mere risks of deportation associated with a guilty plea, or must she predict the likelihood of deportation with even greater specificity? Kartik Madiraju (’17) examines this question, presented at the 2016 Evans Constitutional Law Moot, held at the University of Wisconsin. Though the Supreme Court has held that attorneys must inform their clients whether a guilty plea carries a risk of deportation, several of the Circuit Courts of Appeals disagree on how specifically an attorney must characterize the likelihood of that risk. This Contribution argues that the majority interpretation, requiring only that attorneys advise their clients of the mere existence of such a risk, is more consistent with the letter and spirit of Supreme Court precedent, and better reflects the discretionary nature of an Attorney General’s decision to order deportation.

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