Law Commons^™

A License To Discriminate? 303 Creative V. Elenis And Where The Supreme Court May Go, Christopher J. Manettas

Touro Law Review

No abstract provided.

“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder

Touro Law Review

In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …

The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi

Touro Law Review

The Supreme Court is set to hear a case that threatens the bedrock of America’s democracy, and it is not clear how it will shake out. The cumbersomely named “Independent State Legislature Theory” is at the heart of the case Moore v. Harper, which is before the Supreme Court this term. The theory holds that state legislatures should be free from the ordinary bounds of state judicial review when engaged in matters that concern federal elections. Despite being defeated a myriad of times at the Supreme Court, the latest challenge stems from a legal battle over North Carolina’s redistricting maps. …

Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black

Touro Law Review

There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights …

Community Caretaking Exception Saves Lives . . . The Supreme Court Disagrees, Gabriella Lorenzo

Touro Law Review

As many are aware, the Fourth Amendment protects the people against unreasonable searches and seizures. A warrant is necessary for said activities. While there are a few exceptions to the warrant requirement, the Supreme Court recently held that the community caretaking exception does not extend to the home. Extending this exception to the home would allow police officers to enter and engage in functions that are unrelated to the investigation of a crime. Essentially, this exception would allow police to aid individuals and prevent serious, dangerous situations to protect the community. This Note discusses why the Supreme Court erred in …

“It’S The End Of The World As We Know It” –Redrafting Amendment To Federal Rule Of Criminal Procedure 26 To Allow Remote Testimony, Alisson Sandoval

Touro Law Review

During the COVID-19 pandemic, when society fought an aggressive and deadly virus, our connection to the outside world became predominantly virtual. Videoconference technology became essential in state and federal civil judicial proceedings. In light of the unprecedented challenges presented by the pandemic and its long-lasting impact on the criminal justice system, this Article argues for amending Federal Rule of Criminal Procedure 26 to permit remote witness testimony when a witness is unavailable.

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron

Touro Law Review

No abstract provided.

Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff

Touro Law Review

The Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation.

John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson

Touro Law Review

This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.

Lost In The Thicket, Brad Snyder

Touro Law Review

As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.

The Legacy Of Brown V. Board Of Education: Achieving Student Body Diversity In All Levels Of Education, Nancy L. Zisk

Touro Law Review

This Article addresses the legal standard by which school admissions programs may be judged and validated as school districts struggle to achieve student body diversity. As the Supreme Court recognized in its seminal decision, Brown v. Board of Education, education “is the very foundation of good citizenship.” Twenty years after that case was decided, Thurgood Marshall, who had argued that separate was not equal in the Brown case, observed as a Justice of the Court that “unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Because achieving student body …

Is There A Fundamental Right To Privacy When An Educational Institution Requires A Student To Disclose Proof Of His Or Her Vaccination Status?, Mary D. Fatscher

Touro Law Review

In 2020, the coronavirus disease (“COVID-19”) dominated the world. Although the public has progressively become more informed about the disease and how to safeguard itself, challenges persist as there is still much unknown. Aside from wearing masks, social distancing, and despite its undetermined consequences, the COVID-19 vaccination has emerged as a primary solution to substantially reducing the incidence and severity of the virus in our country. Many COVID-19 vaccine mandates were initiated once three pharmaceutical and biotechnology companies including Pfizer-BioNTech, Moderna, and Johnson & Johnson received Emergency Use Authorization from the Food and Drug Administration (“FDA”).

A Named Inventor Of A Patent Should Be Expanded To Include Artificial Intelligence, Min Li

Touro Law Review

Why should patent inventors be limited to only natural persons under the current United States patent law? In fact, the present US patent law should be expanded to allow an Artificial Intelligence (“AI”) to be a named inventor of a patent. This would incentivize patent owners to use AI to produce more inventions that would benefit the public. There is no negative impact to expand the current US patent law. Many scholars, law professors, and practitioners believe that the patent law (or intellectual property law in general) is outdated due to the massive growth of modern technology. This Note argues …

Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber

Touro Law Review

We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …

How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat

Touro Law Review

There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …

This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell

Touro Law Review

This note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

“I Was Just A Kid”: Addressing The Collateral Consequences Of A Juvenile Record On Employment, Lauren Wray

Touro Law Review

There is a common myth that juvenile records are confidential, when in fact only nine states fully prohibit public access to juvenile records. Landlords, employers, and educators in a majority of states may ask questions about a juvenile’s record. Studies have shown that employers are less likely to hire an applicant who has a juvenile delinquency, and that many employers may not be able to differentiate between a juvenile and adult record. This Note reviews the intersectional flaws of the New York juvenile justice system and the New York labor laws. Specifically, it evaluates policies New York has implemented with …

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.

Debunking “De Minimis” Violations Of Prisoners’ Religious Rights: Further Problems With The Supreme Court’S “Hands Off” Approach, Samantha Sparacino

Touro Law Review

Circuits are split as there continues to be an inconsistent application of Supreme Court doctrine stemming from the notion of the separation of church and the state. Imprisonment does not strip a wrongdoer of his constitutionally guaranteed rights and protections. Some Circuits have held that a minor, or de minimis, interpretation of an inmate’s religious rights can constitute a substantial burden under the Religious Land Use and Institutionalized Persons Act. In the absence of clear direction from the Supreme Court, I propose that courts should refrain from determining the value of a religious belief or practice as it relates …

Charles Reich, New Dealer, John Q. Barrett

Touro Law Review

No abstract provided.

Rights And Obligations: Commemorating The 30th Anniversary Of The Americans With Disabilities Act Of 1990, Sharon Shapiro-Lacks

Touro Law Review

No abstract provided.

Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn

Touro Law Review

No abstract provided.

Comic Books, The First Amendment, And The “Best Test” For Right Of Publicity Issues, Rachel Silverstein

Touro Law Review

No abstract provided.

The State Of The State Action Doctrine: A Search For Accountability, Jordan Goodson

Touro Law Review

The state action doctrine is notoriously confusing and contradictory. It is also a weak mechanism for enforcing the constitutional accountability of both State and private actors. Many solutions to the doctrine's varied issues have been posed, but as of yet its problems have not been resolved. In fact, they continue to worsen, as increasing privatization combines with the doctrine's restrictions to narrow constitutional liability to the point of potential nullity. This article examines the doctrine's failures through the specific lens of accountability, demonstrating through analysis of recent caselaw how the doctrine — along with creating confusion and countless circuit splits …

Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron

Touro Law Review

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

My Body, My Choice: Biblical, Rabbinic, And Contemporary Halakhic Responses To Abortion, Adena Berkowitz

Touro Law Review

Since the Supreme Court grounded the right to an abortion in a constitutional right to privacy, legal and societal debate has continued around the status of a fetus in utero, a woman’s countervailing claims, and the interests of states and society as a whole. As American courts have faced an issue that intertwines legal, moral, and philosophical questions, so too the halakhic process confronts analogous complexities. The main line of Jewish tradition makes a much-needed contribution to the discussion of abortion. Without sharing the view that the fetus is from conception fully a person, it stops short of a complete …

Of Arms And The Militia: Gun Regulation By Defining “Ordinary Military Equipment”, Edward J. Curtis

Touro Law Review

Recent mass shootings have placed pressure on Congress and state legislatures to regulate semi-automatic rifles and handguns in the interest of public safety. However, the Second Amendment provides that, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. There is no obvious public safety exception.

Semi-automatic rifles, handguns, and other kinds of arms can be regulated more effectively by defining the “ordinary military equipment” militia members are expected to provide. This may be accomplished using the rationale employed by the United States …