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.

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.

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.

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.

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.

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.

The Criminal Legal System Doesn’t Care About Your Mental Illness

Why would a beloved small-town doctor with no history of violence suddenly strangle his father to death? The Other Dr. Gilmer is a gripping account of the search for an answer to this question. It turns out the doctor has a rare neurological disorder that likely caused the killing. If only the diagnosis had come before trial, the author believes, the doctor would not have been convicted of first-degree murder and sentenced to life without parole. That belief is appealing, but naïve. Jails and prisons are full of people with mental illness. Misdiagnosis is not the reason. A close examination of the doctor’s case reveals several doctrinal and structural forces that effectively criminalize mental illness. The doctor’s diagnosis is the key to the medical mystery, but it would not have been a key to the jailhouse door. For many individuals with mental illness, avoiding the criminal legal system entirely is the only way to avoid injustice.

Staying in the Takings Lane: The Compensation Issue in Cedar Point Nursery

The Supreme Court held in Cedar Point Nursery v. Hassid that a California regulation mandating that union organizers have occasional access to privately owned farms was a per se taking because it stripped the farm owners of the right to exclude. This Article focuses on questions that arise if one accepts the Court’s conclusion that the regulation is indeed a taking, including whether to permit or enjoin the taking, how to measure compensable losses, and, more particularly, whether to compensate owners because the regulation makes them more vulnerable to what they see as profit-reducing unionization. This Article argues that owners in Cedar Point Nursery are entitled to compensation only for the loss of rights that physical takings law protects—in cases like this of temporary access mandates, losses that inhere in having to share use of a portion of the property with others. Further, we must deal with the validity of laws limiting the capacity to suppress unionization efforts in their own right.

HIPPA

“HIPPA” does not exist. The real acronym for the 1996 Health Information Portability and Accountability Act is HIPAA—“privacy” is not even in the title. But many have invoked “HIPPA” in seeking to keep their personal health decisions private and autonomous. No doubt a complicated statutory and regulatory regime, HIPAA’s scope is much narrower than the average person understands, applying mainly to health care providers and insurers. But its complexity does not explain the widespread and erroneous expectation that federal law will shield those who want to keep their health information, like vaccination status, to themselves. Asserting a right to confidentiality under “HIPPA” demonstrates a failure to understand the interconnected nature of public health, looking instead to claim an inviolable shield. But those who mock the “HIPPA” invokers fail to appreciate the real costs to health privacy and personal autonomy that the pandemic has engendered. All sides should approach these questions from a perspective of compromise and understanding—not as a conflict of unassailable rights.