Mission Impossible? The Case for Municipal Tort Liability Reform in a Post-Valdez World

This Note examines the nearly impossible standard for municipal tort liability in New York and proposes that judicial remedies still hold the potential for reform. Part I of this Note contextualizes the Valdez decision by evaluating the history of state accountability and prior federal and state case law building up to Valdez. Part II examines the Valdez majority’s reasoning with a critical lens, focusing on major flaws in the legal standard, and discusses the subsequent application of Valdez. The Valdez majority failed to adequately consider the harsh ramifications of narrowing tort liability for survivors of domestic violence, as it rendered orders of protection virtually meaningless if plaintiffs harmed by negligent officers could not realistically seek redress. Part III then makes comparisons to other state approaches to municipal liability and contends that judicial remedies can still ameliorate the effects of the Valdez holding. Although Valdez is currently still good law, the potential for judicial remedy leaves hope that perhaps municipal tort liability reform is not an impossible mission.

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.

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.

Confidentiality over Privacy

This Article carefully untangles a complex web of confidentiality and privilege laws that are implicated by the collection, use, disclosure, and sale of reproductive health data post-Dobbs. After describing both common and anticipated fact patterns involving reproductive health information, this Article applies health information confidentiality laws, including the federal HIPAA Privacy Rule, state hospital licensing laws, state medical practice acts, state medical record privacy acts, state consumer data protection laws, recently introduced data protection legislation, and evidentiary privilege laws, to these fact patterns.

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.

Pregnancy Advance Directives

This Article considers the need for a similar Pregnancy Advance Directive to safeguard the interests of a pregnant patient who faces life-threatening circumstances but has lost decisional capacity.
Part I of this Article provides a general introduction to the various types of advance directives available in the United States, including their goals and limitations. Part II provides a detailed overview of pregnancy restrictions, including comparisons of the substantive restrictions, procedural issues, and rationales for restricting the application of advance directives during pregnancy. Part III offers a critical analysis of both the scholarship addressing pregnancy restrictions and the litigation seeking to challenge the restrictions, demonstrating that the existing legal framework has not been satisfactory in resolving the issues—a situation that will only be exacerbated by the Supreme Court’s recent decision to overrule Roe v. Wade.
Part IV offers an alternative. Taking a cue from those who advocate for the creation of special advance directives for early-stage Alzheimer’s patients, it is time to consider the creation of a Pregnancy Advance Directive: a targeted medical form addressing a patient’s wishes in the case of decisional incapacity during pregnancy, which could be completed only after the patient has become pregnant. Although it would not answer those critics who prioritize the interests of the fetus above all, it would address the concerns of those who fear prior directives may no longer reflect the new circumstances of pregnancy. It would also have the salutary effect of encouraging physicians to discuss these issues with their pregnant patients, leading to deeper consideration of the concerns and establishing a more detailed record in the event such a difficult decision must be made.

Contextualizing Corruption: Foreign Financing Bans and Campaign Finance Law

In Bluman v. FEC, the court held that foreign nationals could be prohibited from making even independent expenditures because such expenditures risked inappropriately influencing the choices made by American voters. The result in Bluman is correct, but the court’s reasoning is wrong. Foreign financing bans are constitutional not because foreign speech may “inappropriately” influence voters, but for the same reason all successful restrictions on political speech are constitutional: because of the risk they pose to the appearance or actuality of corrupting the conduct of public officials. The sense of indebtedness or ingratiation independent expenditures can induce in elected officials may be a contextually appropriate part of responsive self-government when done by domestic actors but has no place in the interactions between elected officials and foreign financiers and is well within the power of Congress to prevent.

Right for Any Reason

The chances of winning an appeal in federal court are slim. One reason for that is an array of rules of appellate review that “stack the deck” in favor of the appellee and the lower court’s judgment. One such rule of review is “right for any reason,” the rule that an appellee may defend a lower court’s judgment on any grounds supported by the record—even grounds that the lower court rejected or ignored. The judgment may be right, even if the reasons are wrong. In 1924, the Supreme Court described the rule as “settled”—and felt no need to cite authority to support it—because the Court and other appellate courts had been applying the rule for nearly a century already, and commentators recognized the rule as a common feature of appellate review. This Article explains how “right for any reason” mitigates the strict technicality of writ-of-error analysis and promotes judicial economy by avoiding needless remand and relitigation where the outcome of a case is certain. Useful as this rule of review is in promoting judicial economy, however, it sometimes conflicts with other fundamental aspects of appellate review—including the principle that an appellate court is a court of review, not first view, and the principle of party presentation. To minimize such conflicts (because they cannot be avoided entirely), this Article argues that federal appellate courts should apply “right for any reason” as a discretionary, not a mandatory, rule of review; should not apply the rule when the appellee waived the alternative ground for affirmance; should raise alternative grounds sua sponte only in exceptional circumstances; and ordinarily should not consider alternative grounds that were not raised in the lower court in the first instance.

Bond Conditions as Fourth Amendment Seizures

Pretrial release conditions are burdensome and engender tangible
costs to the individuals who are required to adhere to them.
Furthermore, federal courts’ failure to recognize these conditions as
Fourth Amendment seizures has far-reaching implications, particularly
on the falsely accused. Where federal courts are faced
with the question of whether a pretrial release condition is a seizure under
the Fourth Amendment, they should, at minimum, adhere to a baseline
threshold and find that any restriction on or compulsion to travel, in
conjunction with a requirement to appear in court, constitutes a Fourth
Amendment seizure. In cases that fall below this threshold, federal courts
should not automatically dismiss these claims, but instead, they should
employ an analytical framework that examines each case on a factspecific, case-by-case basis, owing significant weight to the degree of
intrusion on the individual’s liberty.

Can Artists Recapture Their Copyrights in Musical Compositions That Have Been Lost to the Public Domain? Skidmore v. Led Zeppelin Applied

In light of the holding in Skidmore, this Note will analyze whether pre-1978 musical compositions, which are governed by the Copyright Act of 1909, have lost portions that were not committed to paper in the form of a deposit copy to the public domain. In line with the Ninth Circuit’s rationale, this Note will argue that all portions of these pre-1978 musical compositions that have not been memorialized in deposit copies have been surrendered to the public domain, and therefore copyright owners do not have rights to them. This Note will also argue that musicians are essentially left with no legal remedies to recapture copyrights in the portions of musical compositions that they have already lost to the public domain, unless Congress has the ability to legislatively overrule Skidmore. In reaching these conclusions, Part I will begin with a brief explanation of some foundational copyright law basics, including descriptions of the Copyright Acts of 1909 and 1976, as well as the fundamental differences between musical compositions and sound recordings. Then, Part II will discuss the Copyright Act of 1909’s influence on the ruling in Skidmore. Moving forward from the ruling in Skidmore, Part III will discuss whether artists can in any way recapture the copyrights they have lost to the public domain due to not memorializing all portions of a musical composition in the deposit copy. Additionally, Part III will discuss the constitutional powers of Congress under the Intellectual Property Clause and whether Congress has the power to legislatively reverse the Ninth Circuit’s holding in Skidmore. However, as the Conclusion will indicate, there is likely no way to recapture copyrights that have already been lost to the public domain, which will ultimately have the effect of fulfilling the Intellectual Property Clause’s purpose of promoting creativity and the arts.