Meaningful or Meaningless? The Temporal Scope of the Constitutional Right of Access to Courts for Incarcerated Litigants

This Note will advocate for the position taken by the Third and Seventh Circuits that incarcerated individuals’ right to affirmative assistance in accessing legal materials extends past the pleading stage to all stages of civil rights claims and post-conviction criminal appeals. U.S. Supreme Court precedent supports this position, and judicial clarity on this issue is required to best protect the constitutional right of access in light of significant existing barriers to incarcerated litigants’ access to courts.

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.

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.”

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.

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.