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Articles 1 - 30 of 140
Full-Text Articles in Law
Transcript – Civil Liberties: The Next 100 Years, Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero, Nadine Strossen
Transcript – Civil Liberties: The Next 100 Years, Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero, Nadine Strossen
Journal of Law and Policy
In honor of Professor Susan Herman’s distinguished academic career and tenure as the ACLU’s president, a panel was held on Friday, October 13, 2023 at Brooklyn Law School and on Zoom to discuss the current state of civil liberties in the United States. The participants also discussed Professor Herman’s new book, Advanced Introduction to US Civil Liberties. The transcription below captures the discussion among Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero,and Nadine Strossen. All panelists have approved of the overall substantive accuracy of this transcription. Any remaining errors in this transcript should be attributed to the Journal of Law …
Taking The Land Back: How To Return Stolen Land To The Indigenous People Of New York State Through Eminent Domain, Devin Nicole Barbaro
Taking The Land Back: How To Return Stolen Land To The Indigenous People Of New York State Through Eminent Domain, Devin Nicole Barbaro
Journal of Law and Policy
From the moment that European colonizers landed in North America hundreds of years ago, land rights have been stripped away from the Indigenous people of this land. Land Back is an activism and advocacy movement to regain land rights for the Tribal Nations across the United States. Returning stolen land to Tribal Nations is a form of reparations for the atrocities the United States has inflicted upon these Nations for hundreds of years. Additionally, land that is managed by Indigenous communities is proven to be more resilient against the detrimental effects of climate change, making the return of land to …
Good Intentions With Bad Consequences: Post-Bruen Gun Legislation In New York, Michal E. Folczyk
Good Intentions With Bad Consequences: Post-Bruen Gun Legislation In New York, Michal E. Folczyk
Journal of Law and Policy
In response to a changing landscape for firearm licensing, New York State adopted training requirements for handgun ownership and sensitive place laws. Prior to obtaining a handgun license, training requirements ensure that applicants will be able to safely use a firearm. Upon obtaining a firearm license, sensitive place laws limit where a licensed individual may or may not bring their firearm, as a preventative measure. A violation of a sensitive place law could not only bring revocation of one’s license to carry a firearm, but also felony charges. Although well-intentioned by New York State, unintended consequences attach. This Note explores …
Shantay You Stay: Keeping Kids At Drag Shows, Zackary W. Harris
Shantay You Stay: Keeping Kids At Drag Shows, Zackary W. Harris
Journal of Law and Policy
Groomers. Pedophiles. Sexual Predators. All these words and phrases represent an age-old campaign by conservatives and right-wing politicians to persecute the LGBTQ+ community and stoke an unfounded fear amongst their base that LGBTQ+ people are harmful to children. In recent years, conservatives have focused these narratives on specific subsets of the LGBTQ+ community, particularly drag artists and performers. This has resulted in a significant backlash against the drag community in the form of protests, violence, and criminalization of drag performers. Rather than turning drag performers into a scapegoat for conservative politicians’ own ineptitude, our society should holistically embrace and support …
Toward “The Most Freedom”: Decriminalizing Sex Work Alleviates Housing Discrimination And Housing Instability Faced By Sex Workers In New York City, Bianca B. Li
Journal of Law and Policy
While sex work has been incrementally decriminalized in New York City, statutes that criminalize some forms of sex work remain good law in New York City and generate potentially life-altering penalties for sex workers who are arrested or convicted under these laws. This leads to complications for sex workers who seek to rent apartments. The New York City Human Rights Law, the City’s anti-discrimination statute, does not offer explicit protection to sex workers against housing discrimination, and two criminal laws penalize property owners for allowing sex work to occur on or near their premises. This Note explores the shortcomings of …
Climate Change And The Death Of The Administrative State?: West Virginia V. Environmental Protection Agency, Davis P. Rosser
Climate Change And The Death Of The Administrative State?: West Virginia V. Environmental Protection Agency, Davis P. Rosser
Journal of Law and Policy
In recent decades, climate change events have surged in both frequency and intensity. Paradoxically, the most vulnerable and economically disadvantaged states, despite contributing the least to global emissions, face the gravest consequences. Developed nations, despite their wealth of resources, have consistently failed to act in the face of this crisis. For example, the recent United States Supreme Court Decision, West Virginia v. Environmental Protection Agency, limited the administrative state’s rulemaking authority and thus, its ability to enact necessary climate policy. This decision, based in the infamous “major questions doctrine,” asserts that administrative agencies must have explicit authority from Congress when …
A Call To Action For Parents' Lawyers In The Family Regulation System: Bearing Witness As Praxis And Practice In The Face Of Structural Injustice, Joshua Michtom
Journal of Law and Policy
In this Essay, a public defender specializing in parent defense argues that the family regulation system is fundamentally unfair to parents, and that this unfairness is perpetuated by closed courtrooms and a lack of public understanding. He calls on lawyers who represent parents in these proceedings to make the practice of public storytelling integral to their work, by reporting the injustices that happen in family regulation courts to a broader audience, and helping clients tell their own stories publicly when they want to. He argues that only when the workings of this system are broadly exposed can policy change and …
State Of Delay: Are Outdated Capital Post-Conviction Defense Tactics Undermining Effectiveness And The Attorney-Client Relationship?, Lyle C. May
Journal of Law and Policy
In 2018, death row prisoner Scott Allen was ordered to undergo a psychiatric evaluation to determine whether he was competent enough to fire his appointed attorneys. The competency hearing was not ordered by Scott’s counsel; rather, a superior court judge did so at the behest of an undisclosed third party. The problem was that Scott Allen had no history or symptoms of an intellectual disability or mental illness, nor was either a mitigatory claim in his appeal. The attorney-client conflict was triggered by Scott’s pro se effort to remove counsel after they ignored his lawful instructions to include potentially exculpatory …
Out Of Captivity: Preventing Captive Audience Meetings In The Age Of National Labor Relations Board Flip-Flopping, Rebecca Gans
Out Of Captivity: Preventing Captive Audience Meetings In The Age Of National Labor Relations Board Flip-Flopping, Rebecca Gans
Journal of Law and Policy
Captive audience meetings are one of the most effective tools available to companies fighting union campaigns. This tactic, despite being inherently coercive, is currently legal. In April 2022, the General Counsel of the National Labor Relations Board released a memorandum stating that the Board intends to consider these mandatory meetings illegal, arguing that the right to refrain embraced by the anti-labor Taft-Hartley Act should be applied here in a pro-labor context. While this ban would be a positive shift in policy for labor rights, due to frequent flip-flopping by the Board, it would almost certainly be undone by the next …
When Permanency Is Permanent Separation: In The Family Regulation System, A Temporary Removal Fast Tracks Terminating Parents' Rights, Alison Peebles
When Permanency Is Permanent Separation: In The Family Regulation System, A Temporary Removal Fast Tracks Terminating Parents' Rights, Alison Peebles
Journal of Law and Policy
The Adoption and Safe Families Act (“ASFA”) is a federal law that creates a mandate for states to move to terminate parents’ rights if a child has been in foster care for fifteen out of the twenty-two most recent months. The federal government then pays states for each adoption over a set threshold amount, which has resulted in terminating over two million children’s parents’ rights and disbursing over four hundred million dollars to states. Black families, Indigenous families, and families of color as well as low-income families disproportionately experience the trauma and harm of permanent family separation. This Note argues …
Studying The Whole Package: The Implications Of Movement Law For Correctional Policymaking, Steph Pettit
Studying The Whole Package: The Implications Of Movement Law For Correctional Policymaking, Steph Pettit
Journal of Law and Policy
The New York State Department of Corrections and Community Supervision 2022 prison package ban placed strict limits on the quantity and quality of care packages that people incarcerated in the state’s prisons can receive. The ban is reflective of the myriad ways in which the movements, associations, and activities of incarcerated individuals are tightly controlled by prison rules and administrative directives. Despite the severe impacts that prison policies have on incarcerated people and their loved ones, neither administrative procedure nor the courts provide significant opportunities for incarcerated people to effectively contest prison policy. State administrative directives are immune to public …
Leave Your Phone At Home: Combatting Data Exploitation In A Post-Dobbs America, Danielle Terracciano
Leave Your Phone At Home: Combatting Data Exploitation In A Post-Dobbs America, Danielle Terracciano
Journal of Law and Policy
This Note comments on the dangers of an under-regulated data privacy sphere and highlights the particularly troubling threats posed to individuals seeking reproductive healthcare. In an ever-digitalizing world, smart phone and device users are subjected to violative data practices, like geofencing and location tracking, without their knowledge or consent. Some data service providers use personal data as a commodity to advance advertising or political objectives. Reproductive healthcare patients are at a heightened risk of exploitation because their personal data may infer or reveal their private healthcare decisions. As the fight for bodily autonomy was upended by the Supreme Court’s decision …
Defendants In The Dark: How The Jencks Act Is Incompatible With The Adversarial Legal System, Eli J. Esakoff
Defendants In The Dark: How The Jencks Act Is Incompatible With The Adversarial Legal System, Eli J. Esakoff
Journal of Law and Policy
The Jencks Act is a McCarthy Era law that prohibits compelling the disclosure of any statement made by a government witness in a federal criminal prosecution until after the witness has testified at trial. Passed in 1957 in response to the Supreme Court’s decision in Jencks v. United States, the Act’s life in Congress was “nasty, brutish, and short.” In prosecuting its anti-communist “witch hunts” of the era, the government strove to keep hidden as much of its case against those accused as possible. Against this backdrop of the desire for secrecy, the Supreme Court held that a criminal defendant …
Public Service Loan Forgiveness? How Improvements To A Student Debt Cancellation Program Can Help To Deliver Gideon's Promise, Jane Fox, Winston Berkman-Breen
Public Service Loan Forgiveness? How Improvements To A Student Debt Cancellation Program Can Help To Deliver Gideon's Promise, Jane Fox, Winston Berkman-Breen
Journal of Law and Policy
Student debt is a generational crisis facing forty-five million Americans today. Among those with the highest rates of student loan debt are attorneys and among attorneys, those working in public interest have been hit particularly hard as they carry these same high debt rates yet earn low salaries. While student debt has run roughshod over Americans seeking higher education for almost forty years, another crisis has ravaged Americans who are swept up in the criminal legal system. Mass incarceration and mass policing have sent millions to prisons and jails and separated millions of parents and children through family courts. Often …
Unending Reform: Police Resistance To Consent Decrees And Federal Monitors, Finn Mayock
Unending Reform: Police Resistance To Consent Decrees And Federal Monitors, Finn Mayock
Journal of Law and Policy
The murder of George Floyd and the subsequent protests that engulfed the United States in 2020 reignited public attention towards the violent and discriminatory practices of police departments across the country. While methods of reforming these institutions were debated with new vigor, the federal courts have been quietly overseeing efforts to obtain constitutionally compliant policing in numerous cities for decades. Using legal tools such as consent decrees and monitors, the Department of Justice has enlisted the assistance of federal courts to ensure that police practices are in congruence with the Constitution. As pervasive police violence against black and brown people …
Weathering The Storm: Establishing Internally Displaced People’S Right To Affordable Housing In The Wake Of Natural Disasters, Raina Hasan
Journal of Law and Policy
In 2020, natural disasters caused more internal displacement than war; floods, storms, and wildfires caused thirty million new displacements globally, and 1.7 million in the U.S. alone. The data and history suggest that masses of people will be displaced every year and will face housing insecurity without any formal acknowledgement of their unique plight or a guarantee that internally displaced persons (“IDPs”) will have protected rights. This Note proposes that, considering the worsening climate crisis leading to more frequent and severe natural disasters, the U.S. should codify the rights of internally displaced people as laid out in the United Nations’ …
Protecting The ‘Unwanted’: How And Why We Should Defend Former Gang Members In Their Pursuit Of Asylum, Anjani P. Shah
Protecting The ‘Unwanted’: How And Why We Should Defend Former Gang Members In Their Pursuit Of Asylum, Anjani P. Shah
Journal of Law and Policy
This Note discusses the flaws in the tripartite analysis to determine whether an asylum seeker satisfies the protected ground of “membership in a ‘particular social group’” (“PSG”). An applicant seeking a PSG determination must prove: (1) “immutability,” (2) “social distinction,” and (3) “particularity.” This Note argues that when PSG asylum claims are denied and appealed to the Board of Immigration Appeals (“BIA”), the BIA has incoherently tangled what is actually required in order to compel an affirmative PSG determination. One group of asylum seekers that has been significantly disadvantaged by this tripartite test is former gang members. This Note argues …
What Counts As ‘Racist Enough?’: A Clearer Standard For New Trials When Jurors Demonstrate Racial Bias, Priyadarshini Das
What Counts As ‘Racist Enough?’: A Clearer Standard For New Trials When Jurors Demonstrate Racial Bias, Priyadarshini Das
Journal of Law and Policy
The no-impeachment rule, Federal Rule of Evidence 606(b), necessitates that jurors keep their deliberations secret. However, in the 2017 Supreme Court case Peña-Rodriguez v. Colorado, the Court created a racial bias exception to the no-impeachment rule. This exception allows jurors to notify the court when “one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” This Note argues that this standard is too narrow because it fails to consider several situations of racial bias, like implicit bias. The ineffectiveness of this exception is demonstrated …
Hacking Copyright: Holding Cops Accountable For Abusing Youtube’S Copyright Filter System, Tyler Bloom
Hacking Copyright: Holding Cops Accountable For Abusing Youtube’S Copyright Filter System, Tyler Bloom
Journal of Law and Policy
This Note both explores the mechanisms and incentive structures that make “copyright hacking” possible and explains the legal system’s failure to provide recourse for victims of successful “copyright hacks” by police officers. Because the DMCA has failed to keep pace with the internet’s exponential growth, OSPs, such as YouTube, have developed filtering systems that can be exploited to “copyright hack” users and ultimately suppress their speech. A victim of “copyright hacking” by a police officer currently has no recourse; the doctrine of qualified immunity functionally precludes them from suing for violating their First Amendment rights. This Note proposes two possible …
Ice Transfers And The Detention Archipelago, Sabrina Balgamwalla
Ice Transfers And The Detention Archipelago, Sabrina Balgamwalla
Journal of Law and Policy
This article examines transfers as an understudied but critical dimension of the immigration detention system. Transfers regularly take detainees in immigration custody from public to private facilities, across state lines, and beyond the jurisdiction of individual courts. Immigration and Customs Enforcement (“ICE”) has virtually unlimited authority to use transfers strategically to further agency goals of immigration enforcement. For individual detainees, transfers shape outcomes in their immigration cases. Noncitizens are regularly funneled into detention centers in legal jurisdictions generally hostile to claims for relief. Transfers also regularly send detainees to facilities in isolated, rural communities, where they are more likely to …
When Sexual Assault Becomes Incident To Military Service, Lauren C. Brady
When Sexual Assault Becomes Incident To Military Service, Lauren C. Brady
Journal of Law and Policy
For seventy-two years, federal courts have barred military servicemembers who are survivors of sexual assault from recovery under the Federal Tort Claims Act (FTCA). The Feres doctrine, promulgated from the Supreme Court case Feres v. United States, became the foundation for federal courts’ decisions that sexual assault is incident to one’s service in the military. Courts’ over-deference to the military has enabled a system that turns a blind eye to perpetrators and abusive environments on bases. However, the Ninth Circuit recently turned the tide in FTCA cases, holding in Spletstoser v. Hyten that military sexual assault survivors should be permitted …
Administrative Deference And The Social Security Administration: Survey And Analysis, Nicholas M. Ohanesian
Administrative Deference And The Social Security Administration: Survey And Analysis, Nicholas M. Ohanesian
Journal of Law and Policy
The purpose of this article is to examine the role of administrative deference when decisions of the Social Security Administration are reviewed by federal courts. The concept of administrative deference to administrative agencies in federal courts goes back to the 1930’s during the rise of the New Deal—with the high-water mark reached by the Supreme Court in Chevron v. National Resources Defense Council. Since this point, there has been a growing chorus calling to re-examine or outright roll back the deference owed to these agencies when their decisions are reviewed in federal court. Prior to rewriting the standards, this article …
Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams
Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams
Journal of Law and Policy
American veterans are often plagued by psychological and physical injuries, among other hardships, which, when unaddressed, can lead to substance abuse, criminal behavior, and suicide. As public awareness of the difficulties that American veterans face was growing, the problem-solving court movement was also gaining momentum. Largely inspired by therapeutic jurisprudence, an interdisciplinary framework that sees the law as a way to reach therapeutic outcomes, problem-solving courts seek to identify the root causes of criminal behavior and address those causes in ways that promote rehabilitation and reduce recidivism. Veterans Treatment Courts (“VTCs”) emerged when veterans advocacy intersected with the problem-solving court …
Book Review: The Mighty Roe Has Fallen (Probably): A Call To Action As An Antidote To Despair, Loreen Peritz
Book Review: The Mighty Roe Has Fallen (Probably): A Call To Action As An Antidote To Despair, Loreen Peritz
Journal of Law and Policy
Reviewing CONTROLLING WOMEN: WHAT WE MUST DO NOW TO SAVE REPRODUCTIVE FREEDOM. By Kathryn Kolbert & Julie Kay. New York, NY: Hachette Books, 2021. 304 pp., $29.00
Determining Marriage Length In Support Calculations: Should Cohabitation Count?, Mark Strasser
Determining Marriage Length In Support Calculations: Should Cohabitation Count?, Mark Strasser
Journal of Law and Policy
Many states have sought to make spousal support awards more predictable by linking them to marital length. States doing so must decide whether to include premarital cohabitation within the calculation determining marriage duration, which for many couples will significantly affect the ultimate determination. This Article discusses some of the difficulties in achieving consistency and predictability in marital length determinations, focusing on how the supreme courts in Massachusetts and North Dakota have sacrificed those goals in their attempts to achieve what they likely thought to be more equitable results in individual cases.
Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta
Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta
Journal of Law and Policy
The Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and …
America’S Constant Crisis Of Care: The Case For Passing A National Direct Care Ratio For Nursing Homes, Marissa Espinoza
America’S Constant Crisis Of Care: The Case For Passing A National Direct Care Ratio For Nursing Homes, Marissa Espinoza
Journal of Law and Policy
For decades, the conditions in America’s nursing homes have been the subject of bombshell media reporting, governmental investigations, and public outrage. Longstanding issues—such as chronic staffing shortages and inadequate infection control measures—were laid bare as the COVID-19 pandemic tore through nursing homes, exposing society’s most vulnerable populations—the elderly and the sick—to appalling living conditions. Amid horrifying media reports documenting life inside nursing homes, and in response to mounting public outrage, legislators sprang into action. The most aggressive policy proposed was a direct care ratio, which caps the profits that nursing home owners can extract from facilities by mandating a minimum …
No Pact With The Devil: Defending & Strengthening New York City’S Permanent Affordability Commitment Together (Pact) - P3, Madeline Martinez
No Pact With The Devil: Defending & Strengthening New York City’S Permanent Affordability Commitment Together (Pact) - P3, Madeline Martinez
Journal of Law and Policy
Faced with the dual threats of a federal receivership and a growing deficit of federal appropriations, in 2018, New York City Mayor Bill DeBlasio enrolled the New York City Housing Authority (“NYCHA”) into the Permanent Affordability Commitment Together (“PACT”). PACT would allow NYCHA to convert its federal Section 9 funding streams into federal Section 8 vouchers and permit the local public housing authority to enter public-private partnerships with private developers. This move would infuse NYCHA with an additional $12.8 billion in funding to counteract its roughly $31.8 billion deficit. However, immediately after the mayor unveiled his plans to pursue PACT, …
United States V. Donziger: How The Mere Appearance Of Judicial Impropriety Harms Us All, Jackie Kushner
United States V. Donziger: How The Mere Appearance Of Judicial Impropriety Harms Us All, Jackie Kushner
Journal of Law and Policy
In 2011, environmentalist lawyer Steven Donziger was sued in a retaliatory lawsuit by the oil company Chevron, following his securement of a multibillion-dollar award against the company for its environmental harms in Ecuador. In a case rife with judicial impropriety, Donziger was ultimately charged with criminal contempt of court and his charges were prosecuted by a private attorney. These suits exemplify the growing problem of powerful corporations using legal tactics to retaliate against activists and undermine the legitimacy of the legal system. Federal judges contribute to the problem by misusing the extensive power they hold in distinguishing criminal from civil …
The Historical Diagnosis Criterion Should Not Apply: Reasonable Accommodations In Standardized Testing For Individuals With A Later Diagnosis Of Adhd, Denise Elliot
Journal of Law and Policy
There is a growing number of adults being diagnosed with ADHD who were not diagnosed in childhood, misdiagnosed, or primarily exhibited symptoms in adulthood. Notably, most of the later diagnoses of ADHD in adults are individuals pursuing some level of higher education. Some of the reasons posited for this increase in ADHD diagnoses in higher education may be attributed to increased workloads, decreased structural and community supports, misdiagnosis in childhood, masking, and racial and socioeconomic factors that overlook subpopulations like children of color, female-presenting, and gender-nonbinary children with ADHD. Unfortunately, testing agencies that administer college entrance exams, graduate school entrance …