Politicization in the Federal Judiciary and Its Effect on the Federal Judicial Function
February 28, 2018
During federal judicial confirmation hearings the term “politicization” comes up as a frequent buzzword amongst political pundits and scholars. While the federal judiciary’s increasingly politicization, over the last few decades, is generally accepted this agreed-upon acknowledgment of judicial politicization does not imply agreement as to its value. There are clearly those who view politicization positively, accompanied by an almost equally loud chorus of those decrying it. But, regardless from where pro- or anti-politicization’s arguments proceed both generally view politicization as a question of judicial legitimacy. It is thus the relationship between politicization and the judiciary that this paper seeks to understand.
This paper attempts to define and measure the exact relationship between politicization and the judiciary. If politicization is really about judicial legitimacy, then what measureable affect does politicization have on it? If this connection fails (i.e., is not falsifiable) then what alternate connections can be found between the judiciary and politicization that can be backed up with falsifiable evidence?
Securing Equal Access to the Ballot for Native Americans
February 5, 2018
Native Americans, like other minority groups, face racially motivated disenfranchisement efforts. Watershed victories for equal access to the ballot – including the passage of the Fifteenth Amendment and the Nineteenth Amendment – did not affect Native Americans because they were not considered U.S. citizens until the enactment of the Indian Citizenship Act in 1924. While the Act nominally enfranchised Native Americans, disenfranchisement tactics remained pervasive at the state level. Early disenfranchisement techniques included staples such as literacy tests and laws that prohibited Natives from voting without saying so explicitly (i.e., denying the franchise to “Indians not taxed”). Modern disenfranchisement techniques include everything from gerrymandering to voter harassment and intimidation.
Following the Court’s decision in Shelby County, Native voters have had to rely more heavily on the courts and Congress to combat voter suppression. The Obama Department of Justice (DOJ) offered draft legislation that would increase the number of polling stations available on tribal lands; this legislation has not been introduced. In 2015, Senator Jon Tester introduced a much more comprehensive Native voting rights bill that incorporated DOJ’s suggested language and included provisions aimed at remedying other important voter suppression challenges such as language barriers, harassment and intimidation, and voter identification laws. While Senator Tester’s bill would go much further in combating Native voter suppression than DOJ’s, Tester’s bill might raise federalism concerns that could be fatal. Native voter suppression requires a federal legislative fix. This post reviews the legislative fixes that have been suggested so far, and suggests modifications to help them achieve their policy goals.
Will NYC’s New Pre-trial Risk Assessment Be Race Neutral?
Sainath R. Iyer
November 5, 2017
Pre-trial risk assessment instruments (RAIs) – assessments that help judges make “smarter” bail decisions by quantifying a defendant’s risk of flight and/or threat to public safety – are a relatively new phenomenon. There is fierce debate regarding their role and utility; specifically, how they affect incarceration rates, racial disparities in the criminal justice system, and public safety. At the very least, in some jurisdictions, some have helped reduce the jail population, although others, arguably, at the risk of entrenching racial bias. Given the endemic racial bias in the criminal justice system, this is an important concern, and makes transparency in the development, design, and implementation of RAIs critical.
Why the Civilian Purchase, Use, and Sale of Assault Weapons and Semiautomatic Rifles and Pistols, Along with Large Capacity Magazines, Should Be Banned
Donald L. Flexner
October 19, 2017
Originally published August 23, 2017
In the United States, private citizens can purchase powerful semiautomatic assault weapons and large capacity magazines. In 1994, Congress imposed a ten-year ban on the civilian use of many such weapons. Upon its expiration in 2004, Congress refused to extend the ban despite repeated calls to do so. In the wake of the law’s demise, these dangerous weapons have become widely available to disturbed civilians, gangs, criminals, hate groups, terrorists, and so-called lone wolves. This Article argues that nothing in the Second Amendment guarantees civilian access to the most dangerous weapons, and that the ten-year ban should be renewed by Congress to stem the availability of these dangerous weapons which have caused countless tragedies.
Appendix A: Published Accounts of Deaths and Injuries Caused by Dangerous Firearms
Appendix B: Lower Court Approvals of Gun Regulations Post Heller
Original article available here.
The Evolution of Insider Trading
Daniel M Wiesenfeld
October 5, 2017
In Salman v. United States, 137 S. Ct. 420 (2016), the Supreme Court resolved a circuit split on a key insider trading issue. The Salman Court affirmed the Ninth Circuit’s conviction of a tipee who traded on a relative’s inside information, broadening the scope of insider trading. The Court’s path to this decision has been long and bears review for those in white collar practice.
Defamation 2.0: Updating the Communications Decency Act of 1996 for the Digital Age
May 25, 2016
Twenty years ago, President Bill Clinton signed the Communications Decency Act (“CDA”) into law as Title V of the landmark Telecommunications Act of 1996. The statute restricts the transmission of obscene material on the Internet and, secondarily, defines who is subject to liability for unlawful content posted online. Congress carefully drafted the bill to reflect concerns about the law’s effects on the Internet’s growth and development, and to avoid chilling online speech and activity. The CDA, as enacted, immunizes websites and Internet service providers against liability for republishing tortious and otherwise unlawful content. In doing so, it dramatically departs from the common-law rules that govern defamation liability offline. The Internet of 2016, however, bears little resemblance to the Internet of 1996. The concerns that shaped the CDA no longer justify such a hands-off approach to tortious online speech; and as applied to today’s worldwide web, the statute creates problematic incentives, outcomes, and policy concerns. This Article examines the ways in which the CDA fails to account for critical features of the Internet as the medium has evolved since 1996, and then presents proposals as to how the statute might be updated to better suit the needs of today’s digital age.
Declining Controversial Cases: How Marriage Equality Changed the Paradigm
November 21, 2015
Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality cases as its example. It argues that reputational factors, in addition to legal and political considerations, play a role in determining whether attorneys general will defend their states’ laws when they may have a basis for declining to do so. Moreover, the impact of nondefense goes beyond the directly connected litigation and can have negative ramifications for the public’s perception of the legal system and for the functioning of direct democracy.
Navigating the Policy Landscape to Bring Autonomous Vehicle Legislation to Your State
Kurt M. Gosselin
September 4, 2015
At an economic cost of nearly $300 billion, more than 5.5 million car accidents result in over 30,000 fatalities on American roadways each year. Advocates of automated vehicle (“AV”) technology view self-driving cars as a solution for reducing both the number and severity of accidents. Using AV technology on public roadways currently exists in a legal gray area as there is no national consensus on the legality of AV technology. However, NHTSA recently published guidance on the topic, many states are considering legislation to authorize the operation of these vehicles, and a few states have already passed legislation permitting the testing of automated vehicles. Building from NHTSA guidance and current state legislative and regulatory activity, this Note analyzes the interests involved in state-based regulation of autonomous vehicle testing and proposes a model plan for enacting a regulatory regime for AV technology.
Open Access for Parents to an Education Network (OPEN): An Open-Data Policy to Improve the Effectiveness and Equal Utilization of School Choices and Open Enrollment Options Across the Education Landscape
Robin C. Burrell
July 27, 2015
This white paper was selected as the winning entry for the 2015 NYU Journal of Legislation & Public Policy Legislation Competition, and aims to explain to advocates and provide them tools to use when talking to legislators about the attached draft bill. The Legislation Competition asked participants to develop and submit model state legislation to address a specific policy issue identified by the Legislation Competition Committee and further submit a white paper to supplement the draft bill. Entries were reviewed by the chairs of the Legislation Competition Committee who rated entries on criteria such as originality, creativeness, quality of submission, and viability of proposal.
Waiver of the Privilege Against Self-Incrimination in Congressional Investigations: What Congress, Witnesses, and Lawyers Can Learn from the IRS Scandal
May 8, 2015
“I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.” These few sentences uttered by Lois Lerner, the former head of the IRS Tax Exempt Organizations Division, ignited a debate among criminal law scholars over whether Lerner waived her Fifth Amendment privilege against self-incrimination. This Article analyzes what constitutes a waiver of the privilege against self-incrimination in the context of congressional investigations and asserts that Lois Lerner likely waived her right to remain silent. An examination of Lerner’s testimony before the House Oversight Committee illustrates that the issue of Fifth Amendment waivers in congressional hearings is complicated and highly fact-specific. Thus, this Article proposes measures that Congress should adopt to ensure that complex questions regarding waiver do not arise in future congressional hearings. In addition, this Article offers guidance to lawyers who represent clients in congressional investigations by suggesting how witnesses should invoke their right to remain silent in congressional hearings.
Revisiting the FISA Court Appointment Process
Douglas E. Lindner
April 9, 2015
The Foreign Intelligence Surveillance Act (FISA) courts are the only active Article III courts without full-time judges directly appointed by the President. The Chief Justice unilaterally chooses generalist judges to serve as part-time FISA judges. Proceedings are classified and only the government is represented, so the only legal or technical arguments against any surveillance request are the ones judges raise themselves. This Essay argues that the FISA court appointment process lacks democratic legitimacy, threatens the separation of powers, undermines the ideological balance of the judiciary, and asks too much of generalist judges. The author concludes that, whatever the wisdom of the FISA courts’ decisions, they belong in the hands of permanent, specialist judges appointed by the President and confirmed by the Senate.
Tenant Screening in an Era of Mass Incarceration: A Criminal Record is No Crystal Ball
Merf Ehman & Anna Reosti
March 3, 2015
This article focuses on Washington landlord liability in the tenant screening context and increasing housing access for rental applicants with criminal records. Part I examines the concept of foreseeability as it pertains to potential landlord liability for renting to an applicant with a criminal record whose actions harm another tenant. Part II surveys the relevant sociological research on the relation-ship between a criminal record and the ability to meet the obligations of tenancy. Based upon this review, we conclude that there is no empirical evidence establishing a relationship between a criminal record and an unsuccessful tenancy. Part III posits that since research demonstrates that a criminal record is not a reliable indicator for future tenant behavior, it should not serve as a proxy to determine future tenant dangerousness. Washington landlords should not be liable for future harm to tenants based solely upon renting to an applicant with a criminal record. Refusing to hold landlords liable in this way, would increase housing opportunities for this population which in turn will reduce recidivism thereby increasing public safety and promoting the rehabilitation of people with a criminal history.
Comment: Young v. UPS, the Pregnancy Discrimination Act, and the Future of Pregnancy Discrimination Law
Katharine M. Deabler
December 1, 2014
Women who continue to work during pregnancy need legal protections to prevent discrimination. While the Pregnancy Discrimination Act strives to protect women from adverse employment actions stemming from pregnancy discrimination, a lack of clarity in the relevant case law has undermined the statute. This comment explores Young v. UPS, a case that will be heard by the Supreme Court this term. Young presents the Court with an opportunity to clarify the statute and enable the law to better protect working women.
Shop ‘Til You Drop: Forums and Federalism in New York’s Class Action Procedure
Max I Raskin
November 21, 2014
In the wake of the Supreme Court’s decision in Shady Grove Orthopedics Associates v. Allstate Ins. Co., some have proposed that New York repeal § 901(b) of its class action certification statute in order to establish uniformity with the Federal Rules of Civil Procedure’s analogue, Rule 23. This article argues against repeal of § 901(b) in order to further New York’s sovereign calculus of determining what is best for the state. The New York legislature made a considered determination to bar certification where statutory penalties were available—acquiescing to the ukase of the Judicial Conference of the United States undermines this determination.
Responding to: Oscar G. Chase, Living in the Shadow: Class Actions in New York After Shady Grove, 2014 N.Y.U. Journal of Legis. & Pub. Pol’y Quorum 114 (2014).
Living in the Shadow: Class Actions in New York After Shady Grove
Oscar G. Chase
November 21, 2014
In Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., the Supreme Court wrestled with conflicting state and federal rules governing class action certification in a diversity case. Section 901(b) of New York’s Civil Procedure Law and Rules prohibits certification of class actions in which the plaintiff seeks to recover a “penalty,” unless specifically authorized by statute. Federal Rule of Civil Procedure 23 has no such limitation. Plaintiffs brought a class action in federal district court to recover statutory interest pursuant to a New York law that imposed an interest rate on insurers who delayed payments. The interest payments were considered a “penalty” for the purposes of § 901(b). Thus, a class action was not available in New York state court, but the case could proceed in the federal court if Federal Rule 23 applied. The Supreme Court held in Shady Grove that the federal rule governed and that the class action could proceed. Consequently, future claims based on statutory penalties will qualify as class actions in federal but not in New York courts. Because the typical penalty recoveries authorized by New York law are too small to support individual actions, this article argues that the resulting inequitable treatment of claimants is unfair and violates the spirit of Erie and its progeny. New York should repeal § 901(b) in its entirety, or should decide on a statute-by-statute basis which, if any, should remain extant.
Comment: Elonis, True Threats, and the Ontology of Facebook
Alessandra N. Baniel-Stark
October 31, 2014
Elonis v. United States, which will be argued before the Supreme Court this December, raises the question of the applicable standard for determining whether speech is a true threat. Of particular interest in Elonis is how the Court will interpret appellant’s speech, which took place on Facebook and often took the form of quoted rap lyrics. This Comment argues that, despite changes the Internet has wrought in how speech is delivered, the appropriate standard for determining whether speech is a true threat is an objective one, as such a standard best addresses the concerns that gave rise to the true threats exception. This Comment further discusses some of the challenges courts have faced in properly conceiving of rap music and urges that a particular view of rap not be enshrined as a matter of Supreme Court jurisprudence.
Why We Need a Comprehensive Recording Fraud Registry
Randall K. Johnson
September 9, 2014
This essay argues for a modest expansion of the Nationwide Mortgage Licensing System and Registry (NMLS) in order to detect and deter more recording fraud. It does so, initially, by explaining why this online registry limits mortgage fraud. The essay later describes how the NMLS could detect or deter other crimes, such as deed fraud and lien fraud. Lastly, it deals with concerns about a Comprehensive Recording Fraud Registry.
Model Fairness and Advocacy for Interested Recipients (FAIR) Act: Ensuring Fair and Balanced Treatment of Americans Participating in Social Security Act Programs Through Legal Representation and Counsel
Cerin M. Lindgrensavage
August 28, 2014
This white paper was selected as the winning entry for the 2014 NYU Journal of Legislation & Public Policy Legislation Competition, and aims to explain to advocates and provide them tools to use when talking to legislators about the attached draft bill. The Legislation Competition asked participants to develop and submit model state legislation to address a specific policy issue identified by the Legislation Competition Committee and further submit a white paper to supplement the draft bill. Entries were reviewed by the chairs of the Legislation Competition Committee who rated entries on criteria such as originality, creativeness, quality of submission, and viability of proposal. The first section is a quick “leave behind” one-page document to help advocates briefly explain the issue the bill is trying to address, why the issue matters, and a describe the proposed law. The rest of the white paper provides additional information, including an example of how the bill might actually work, should it become law.
Racializing Abortion: Standing and the Equal Protection Challenge to Sex-Selective Abortion Statutes
Joshua D. Lee
July 10, 2014
Several states have recently enacted statutes prohibiting the provision of an abortion on the basis of a fetus’s sex (so-called sex-selective abortions). These statutes—which impose criminal sanctions on medical professionals who knowingly perform a sex-selective abortion—were justified under the pretense of allegedly curbing the sex-selective practices of Asian cultures, though critics were quick to point out that bill sponsors provided scant or no evidence of sex-selective abortions actually occurring. The statutes—at least one of which has been challenged in federal court—has, according to some, had the effect of unfairly stigmatizing Asian-Americans by relying on “invidious and unfounded” stereotypes, which are memorialized in the legislative history of the statutes. This Essay examines the equal protection challenge to these statutes, as well as the standing obstacle that the plaintiffs must overcome.
Should Counsel for a Non-Party Deponent be a “Potted Plant”?
David L. Ferstendig & Oscar G. Chase
May 19, 2014
It has long been the practice in New York that non-party deponents may be represented at depositions and that counsel may object to questions counsel believes are improper. In 2010, however, the New York State Appellate Division, Fourth Department ruled in Thompson v. Mather that counsel for a non-party may not make objections and, in effect, is a mere “potted plant” at the deposition. Under Thompson, counsel may not object even to protect a privilege or to strike a plainly improper question that would cause substantial prejudice if answered. Although only the Fourth Department has ruled in this manner, the case is binding on all lower courts throughout the state absent a contrary decision by another Appellate Division Department, an overruling by the Court of Appeals, or a legislative correction. This article analyzes practical considerations and ethical dilemmas implicated by this ruling. The article concludes that the ruling rests on an improper interpretation of New York Civil Practice Law and Rules, flies in the face of established practice, is impractical, and raises serious ethical dilemmas for counsel representing a non-party at a deposition. The authors urge the Court of Appeals, which is set to decide this issue in the October, 2014 term, to reject the Fourth Department ruling and hold that important protections provided by counsel to party deponents are available to counsel for non-parties. Alternatively, the authors recommend legislation be enacted to achieve that end.
Applying “Corrective Measures” to the ADA: Looking Beyond the Glasses Exception
Eric C. Yarnell
May 11, 2014
Individuals with disabilities often take medications, wear prostheses, or employ methods to help alleviate the effects of their disabilities. Collectively, these are commonly known as “mitigating measures.” Under the amended Americans with Disabilities Act (ADA), when a court determines whether someone is disabled, the court cannot take the effects of his or her mitigating measures into account. However, the amended ADA does permit courts to consider the corrective effects of “ordinary eyeglasses or contact lenses” when making disability determinations. This Article argues that the ADA’s sole exception for corrective lenses is inappropriate as currently written. Most seriously, the current statutory language is deficient because it does not provide a framework through which changes in science or technology may be taken into account. In time, other mitigating measures might become as cheap, as common, and as effective as glasses are today. This Article proposes that the ADA’s isolated exception for corrective lenses be replaced with a general exception framework and test. Specifically, when determining whether an impairment substantially limits a major life activity, mitigating measures should be taken into account for any measure (1) that provides assured, total, and relatively permanent control of all symptoms; (2) that is reasonably inexpensive to use; and (3) whose use would not be viewed as socially stigmatizing from the perspective of the reasonable observer.
Pension Forfeiture and Prosecutorial Policy-Making
March 14, 2014
The U.S. Attorney’s Office for the Southern District of New York recently announced the adoption of new policies designed to forfeit the pensions of New York state and local officials convicted of federal corruption charges. In this article, Gary Stein analyzes the SDNY’s new pension forfeiture policies in light of the long-established doctrine that the power to prescribe the punishments for federal crimes belongs exclusively to Congress. No federal statute expressly authorizes pension forfeiture as a punishment for corrupt state and local officials, and general federal forfeiture law — the principal legal basis underlying the SDNY’s new policies — does not appear to authorize forfeiture either, as pension benefits cannot, at least in the majority of cases, logically be viewed as the “proceeds” of a corrupt official’s wrongdoing. Tracing the development of pension forfeiture legislation at the federal and New York levels, the article also argues that the SDNY’s approach conflicts with congressional intent and with principles of federalism. Further, since general forfeiture law is mandatory rather than discretionary, the SDNY approach is incapable of balancing competing interests in a manner that legislation is able to accomplish. For all these reasons, the article concludes, the SDNY’s new pension forfeiture policies exceed the limits of permissible policy-making by federal prosecutors.
Irreparable Harm to Whom? Parsing Utah’s Odd Argument
March 10, 2014
In Kitchen v. Herbert, a federal judge in Utah struck down Amendment 3 to the state’s constitution, which prohibited same-sex couples from marrying. Utah rushed to stay the decision pending appeal, which would prevent same-sex couples from marrying in the interim. Although both the District Court and Court of Appeals denied the state’s request, the Supreme Court granted the stay—but not until nearly 1,300 same-sex couples had already married in Utah. In arguing in favor of a stay, Utah posited that same-sex couples would suffer an irreparable harm in the form of “dignitary losses” if they were to marry and then, when the District Court’s decision was eventually overturned on appeal, have their marriage taken away from them. This article critiques the curious logic behind the state’s argument, as well as the state’s earnestness in its concern for dignitary losses considering its decision, after the Supreme Court granted the stay, not to recognize the legal validity of the 1,300 same-sex marriages that had taken place. In the recent wave of similar challenges to same-sex marriage prohibitions taking place in many states around the country, and due to the subsequent stay requests that will surely follow, the author hopes to provide guidance to both judges and the legal community as to how to approach “dignitary loss” arguments made by states.
“People who aren’t really reporters at all, who have no professional qualifications”: Defining a Journalist and Deciding Who May Claim The Privileges
Jonathan Peters & Edson C. Tandoc, Jr.
October 8, 2013
In July, a federal appeals court ruled that a New York Times reporter must testify in the criminal trial of a former CIA officer accused of improperly disclosing classified information. In May, the DOJ confirmed it had obtained months of phone records of AP reporters and a “portfolio of information” about a Fox News correspondent. Criticism from the press and public was swift, and in response, the administration attempted to reassure the press that it would not be conscripted into the service of law enforcement. President Obama urged Congress to reintroduce a federal shield bill that would allow reporters to refuse to testify about their sources. The bill’s fate is uncertain, and it has generated a debate about the definition of a journalist. Innovations in technology have created new channels for people to communicate, complicating the effort to define a journalist. This article explicates the concept of journalist, drawing from the scholarly, legal, and industry domains. The authors hope to contribute to the ongoing debate about who may claim the legal privileges for journalists.
Substantial, Purposeful, or Material? Defining the Contours of Support for Terrorism
Paul John DeSena
July 12, 2013
Section 1021 of the 2012 National Defense Authorization Act controversially allows individuals who provide “substantial support” to terrorist organizations to be detained “until the end of the hostilities.” The Court of Appeals for the Second Circuit is currently considering a case involving its interpretation. In this Comment, Paul John DeSena analyzes the interpretation of related terms, such as “material support,” and argues that the Second Circuit should follow the lead of a prior district court decision, Gherebi v. Obama, and cabin the meaning of “substantial support” to those who directly participate in or are members of terrorist organizations.
A Response to Professors Adler and Siegel Addressing the Constitutionality of the REINS Act
Sally Katzen with Julian Ginos
April 15, 2013
Professor Sally Katzen responds to Professors Adler and Siegel, both of whom claim that the proposed REINS Act would be upheld as constitutional. Professor Katzen casts doubt on this position by offering a competing interpretation of the Act and of executive power under existing Congressional delegations of regulatory authority. Particularly, the REINS Act impermissibly interferes with the President’s duty to “take care that the laws be faithfully executed” by resurrecting a form of the legislative veto rejected by the Supreme Court in INS v. Chadha.
Responding to: Jonathan Adler, Placing “REINS” on Regulations: Assessing the Proposed REINS Act, 16 N.Y.U. J. Legis. & Pub. Pol’y 1 (2013) and Jonathan Siegel, The REINS Act and the Struggle to Control Agency Rulemaking, 16 N.Y.U. J. Legis. & Pub. Pol’y 131 (2013).
The Two-Year Law Degree: Undesirable But Perhaps Unavoidable
April 3, 2013
Professor Gillers responds to Professor Estreicher’s proposal for a two-year law degree that will qualify a graduate to take the bar examination. Professor Gillers states that while two years of law school may be sufficient to practice many types of legal work, it will put two-year graduates at a professional disadvantage. The lower knowledge base of two-year graduates will make them less attractive candidates in an already tight job market. Furthermore, even if New York allows a two-year degree to qualify for the bar exam, it will limit two-year graduates to practicing in New York only, as reciprocity from other states is not expected.
Responding to: Samuel Estreicher, The Roosevelt-Cardozo Way: The Case for Bar Eligibility After Two Years of Law School, 15 N.Y.U. J. Legis. & Pub. Pol’y 599 (2012).
Foreword: An Introduction to Quorum
Julia F. Bell and Britton A. Kovachevich
April 3, 2013
Quorum is cited as a consecutively paginated, annual volume: 2014 N.Y.U. J. Legis. & Pub. Pol’y Quorum 1.