The Latest from CLR

Note

No Bullying Allowed Here: Adopting a Misuse Doctrine to Defeat Trademark Bullies

Introduction In order to maintain trademark rights, trademark owners are encouraged to enforce and police their trademarks through civil actions. Enforcing trademark rights is encouraged and incentivized by the Lanham Act because failure to do so may result in harsh consequences for…

by Jessica Shechtman

Note

In Satan We Trust: The Satanic Temple’s Ongoing Crusade to Protect Abortion Rights

Introduction In the summer of 2022, the Supreme Court overruled the nearly fifty-year-old precedent of Roe v. Wade, eliminating the constitutional right to an abortion. This was one of several decisions in which the newly minted conservative supermajority undermined what could be…

by Bradley Koberg

Article

Terror and Tenderness in Criminal Law

Introduction Sentencing reductions, executive pardons, prison release programs, and progressive prosecutors have something in common. In word choice and design, they suggest tempering the violence of criminal law in a limited number of cases. The prisoner may be released early based on…

by M. Eve Hanan

Article

Applying Militant Democracy to Defend Against Social Media Harms

Introduction Social media inflict multiple harms on liberal democracy. Online platforms thrive on propagating emotionally inflammatory content that maximizes user engagement. Too often that entails amplifying disinformation, hate speech, online extremism, and deep-seated partisan animosity. Tellingly, as documented in testimony before the…

by Neil Netanel

Article

Shadow Districts

Abstract Redistricting disputes—for congressional, state legislative, and local districts—have proven all-consuming in politics. Litigation over the legality of districts, under both federal and state law, is near constant when decennial redistricting occurs. But largely omitted from redistricting litigation and scholarship, however, are…

by Quinn Yeargain

Article

Privacy Shield 2.0—A New Trans-Atlantic Data Privacy Framework Between the European Union and the United States

Abstract This Article is the first to thoroughly examine the new adequacy decision for the Trans-Atlantic Data Privacy Framework (also known as “Privacy Shield 2.0”), including the relevant events and milestones ultimately leading to its adoption. The European Commission adopted the new…

by Sara Gerke* & Delaram Rezaeikhonakdar*

Note

Bolstering New York’s Tenant Protection Law: Ensuring Retroactive Application Under the Heightened Regina Standard

Introduction Rent regulation laws have long been a cornerstone of the New York City and New York State housing markets, enacted to combat excessive rent increases that risked pricing out low- and middle-income tenants. On June 14, 2019, the New York State…

by Abigail Strange

Note

Wrong Search at the Wrong Time: Keyword Search Warrants and the Fourth Amendment

Introduction On August 5, 2020, five members of a family were killed when their house was set ablaze. Kevin Bui admitted to investigators that he and two other teens burned the house down after his iPhone had been stolen. He used the…

by Nicole Chan

Note

Navigating Campaign Finance Reform Through Publicly Funded Elections on the Local Level

Introduction Despite the Constitution’s silence on the issue of campaign finance, the Supreme Court has had a considerable hand in shaping the campaign finance regulatory structure of the United States. There are countless criticisms of the campaign finance system the Court has…

by Emily Bernstein

Article

Beneficial Conflicts of Interest

Abstract Conflicts of interest exist in both professional and private settings, and everyone experiences them from time to time. If a person harboring a conflict acts on it—meaning the person acts against interests she ought to uphold—innocent parties may be harmed. Accordingly,…

by Anita K. Krug

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The Latest from de•novo

Essay

Reforming Informed Consent to Include Comprehension: A Proposal to Promote Equity in Medical Decision-Making

The ethical goals of the legal doctrine of informed consent are lofty. The law requires that clinicians explain the risks, benefits, and alternatives of proposed treatments to patients, and to respect patient autonomy through voluntary, informed medical decisions aligned with individual values and preferences. Yet in practice, patients often struggle to comprehend the risks and alternatives of a proposed medical intervention. Since investigators began analyzing the sufficiency of informed consent, it has been recognized that the current rules, which focus solely on clinical disclosures, are inadequate in addressing disparities associated with education, race/ethnicity, and age. Despite technically “adequate” disclosures under the legal doctrine of informed consent, patients may consent to major procedures with little substantive grasp of the risks. Shifting the law’s emphasis from disclosures alone to disclosure and comprehension will better align the ethical goals of informed consent with the legal rules that govern it.

by Valerie Gutmann Koch

Essay

Against Gap-Filling

Legal scholars delight in gap-filling. They frequently claim that their works have identified a gap in the literature and to have filled (or begun filling) that gap. However, all too often, these same papers fail to explain why the gap needed to be filled at all. Indeed, despite a robust tradition of meta-scholarship, the legal literature is largely devoid of a theory of academic gap-filling. This essay fills that gap, arguing that gap-filling for the sake of gap-filling is an error for three interconnected reasons. First, gaps might exist for a good reason. Second, concern with gap-filling is often a misguided attempt to address other issues that are tangential to legal scholarship. Finally, focusing on gaps is incredibly limiting. Instead, this essay suggests that legal scholars should focus on exploring questions that interest them, regardless of whether that exploration leads them to a “gap.”

by Noah C. Chauvin

Article

Revisiting the Disability Integration Presumption

The Individuals with Disabilities Education Act’s (IDEA) predecessor established a legal presumption in favor of educating all students with disabilities in an integrated, “least restrictive environment” (LRE) to the “maximum extent appropriate.” Yet, the precise meaning of this statutory presumption remains unsettled, which has led to mounting special education disputes in federal court. This Article addresses a less developed area of IDEA litigation: namely, how federal courts should interpret this statutory presumption in light of the disproportionate placement of students with the most significant cognitive disabilities in separate settings.

by Chris Yarrell

Student Note

Digital Purgatory and the Rights of the Dead: Protecting Against Digital Disinterment in the Age of Artificial Intelligence

In the age of synthetic media, software such as OpenAI’s DALL-E or ChatGPT can generate novel pieces of art and increase the overall supply for society. Deepfakes may allow our favorite performers and personalities to entertain us forever. Though this may be wonderful in some regards, there are also downsides. This Note will attempt to show that the existing patchwork of rights of publicity statutes and case law are inadequate to protect citizens from online harms in the age of synthetic media. Particularly, this Note will focus on postmortem right of publicity interests and protections because a robust market for the likenesses of deceased personalities exists and will likely grow in the age of synthetic media. This Note will then propose key features of a federal postmortem right of publicity statute that would realign federal protection with the interests the right was initially intended to protect—namely, the right to privacy and control over the use(s) of one’s likeness.

by Greyson Cohen

Student Note

A Means to an End: A Way To Curb Bias-Based Policing in New York City

Conversations about destructive policing, violence, and questionable law enforcement practices have been a focus in social media in recent years. However, housing status is often a neglected, yet important, protected category that should be considered in conversations about the impact race, class, socioeconomic status, and other factors have on policing. This Note argues that since the NYPD has found alternate, less invasive means of accomplishing their objectives, NYPD officers who operate in Police Service Areas located on NYCHA property, are in violation of New York City Administrative Code Section 14-151 for targeting NYCHA residents, based on housing status, and therefore should be removed. Instead of watching and waiting for a NYCHA resident to commit the smallest infraction, police officers will be more inclined to arrive when absolutely necessary and, therefore, can devote their time to more important work.

by Garanique Williams

Student Note

Zoned In: How Residence Restrictions Lead to the Indefinite and Unconstitutional Detention of New Yorkers Convicted of Sex Crimes

Despite the New York Court of Appeals majority holding in People ex rel. Johnson, New York’s policy of detaining individuals beyond their maximum sentence because they are unable to procure SARA-compliant housing is plainly unconstitutional. The policy violates sex offenders’ fundamental right to be released from prison after serving their sentence. Further, the policy fails to meet even the most relaxed form of judicial review because the state has not shown that it benefits public safety. Indeed, there is virtually no evidence proving that this policy serves to protect the public at all, and a growing body of research shows that restrictive residence constraints create hardships that lead to recidivism. Finally, the policy violates sex offenders’ Eighth Amendment rights because it punishes them for being homeless, a status imposed upon them by the sex offender statute itself.

by Rebecca Tunis

Student Note

Remotely Relevant: Addressing Employment-Based Immigration Worksite Location Requirements in the Remote Workspace

The worksite location requirements for the PERM process for immigrant visas and LCAs for specialty occupation nonimmigrant visas have lost their relevance during the revolution of the white-collar remote workspace within the United States under current DOL guidelines. Although on its face foreign nationals working outside the office appears to be a novel legal issue, remote work within the United States has been an insurmountable hurdle in the immigration space since telework gained popularity in the late twentieth century. It is possible to apply for both kinds of visas for telework, but adherence to the Farmer Memo appears to be unsustainable. It would be in the interest of employers—especially influential Silicon Valley tech companies who are some of the largest employers of foreign nationals—to modify the current guidelines to save costs on audits and appeals, and to retain their employees’ valid immigration status.

by Rachel Refkin

Essay

On the Lawfulness of Awards to Class Representatives

When class actions are settled or the class prevails on the merits, successful class representatives are often net losers: their individual recovery does not cover the opportunity costs and other losses they have incurred in representing the class. For that reason among others, they frequently receive an award on top of their relief as class members. The federal courts of appeals had unanimously approved these awards until recently, when the Eleventh Circuit relied on two nineteenth-century cases to hold that they are always unlawful. That decision is now the subject of a cert petition. The Eleventh Circuit got it wrong. Class settlements provide independent authority for awards to class representatives, despite otherwise applicable constraints on courts’ remedial authority. In relying on nineteenth-century case law, moreover, the court drew an ill-conceived analogy between a class representative and a creditor in a railroad reorganization. Worse, it ignored a more convincing analogy suggested by the very case law on which it relied: an analogy between class representatives and trustees under which awards to class representatives are lawful.

by Benjamin Gould

Article

Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness

The law of property is in some areas dangerously out of step with people’s innate expectations. The idea that property law is behaviorally or biologically determined has been explored in scholarly literature in both law and psychology, although perhaps not as thoroughly as it should be. This Article looks at four categories of property, in increasing order of divergence between behavioral expectations and law. This lack of congruence inevitably creates tension. Where there is high congruence, as with personal and real property, discontent focuses on the allocation of property rather than on its fundamental nature. Where there is less congruence, as in the cases of intellectual property and especially one’s person and reputation, the underlying legitimacy of the legal regime is called into question. This questioning of the legitimacy of the regime has been especially marked since the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. While this is not an article about Dobbs, the section on property in one’s person necessarily reflects the impact of the Supreme Court’s regrettable decision.

by Aaron Schwabach

Article

A Taxing Mistake

Citibank made front page news for reasons it would rather have avoided when it mistakenly transferred $900 million of its own money to creditors of Revlon. When Citibank discovered the error the next day, it asked (initially politely then less so) for the creditors to return the mistaken payment. Several creditors refused and Citibank was forced to initiate litigation to attempt to get the money returned. This litigation is ongoing, but the first round of the battle was won by the lenders when a federal district court ruled that they had a legal right to retain Citibank’s mistaken payment under the “discharge for value” defense. This Article briefly reviews the facts and the opinion of that case. On appeal, the Second Circuit reversed that decision and held for Citibank thereby requiring the lenders to return Citibank’s money. This piece also reviews that opinion. The primary and original contribution of the piece, however, is to discuss the tax aspects of all the possible outcomes. While some tax consequences are straightforward, there are several interesting and less certain tax results that could apply to all three parties (Citibank, Revlon, and the lenders). This Article will explain those possibilities and review the tax doctrines that will apply once Citibank’s litigation has concluded.

by Jeffrey H. Kahn

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