NewYorkUniversity
LawReview

Online Features

2024

Suing for a Bit(coin) of Justice—Class Actions and the Role of Technology in Morrison Extraterritoriality Analysis

Edmund H.S. Brose

In the wild west of crypto, courts are slowly coming to realize that crypto assets present novel questions of law that challenge core assumptions of United States securities law. This online feature argues that a more comprehensive understanding of blockchain technology counsels courts to apply the antifraud provisions of the federal securities laws extraterritorially. Such a move will economize judicial capacity, deter fraud, and protect U.S. investors. Instead of relying on a nodular analysis, courts should look to the policy rationales of the Court’s Morrison decision, as well as the Second Circuit’s Absolute Activist opinion, to lead out of the jurisdictional morass of locating crypto transactions. In addition to relying on enumerated factual allegations laid out in Absolute Activist, courts should find that transactions occur where the parties are physically located rather than where the physical structure that underlies the crypto network is located. Further, they should utilize a plus factor of whether the company has marketed the product into a jurisdiction. As a result, courts can dispense with legal fiction and preserve the aims of the Morrison ruling. As private class actions only continue to increase in number, the time to develop a consistent and encompassing rationale is now.

2023
Online Symposium

“Will the Meaning of the Second Amendment Change . . . ?”: Party Presentation and Stare Decisis in Text-and-History Cases

Haley N. Proctor

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, more Second Amendment challenges will turn on courts’ answers to factual questions about history—answers courts may formulate based on the historical evidence compiled by the parties to the dispute. These answers will become precedents that tell us what types of regulations the Second Amendment does and does not permit. What happens to those precedents when new historical evidence comes to light? This Essay argues that the Court should be willing to revisit its precedents when historical evidence demonstrates error in an earlier decision. Revisiting erroneous precedents coheres with the Bruen Court’s theory of constitutional meaning, and it answers the dissent’s concern about the imperfect nature of the historical inquiry that occurs in litigation.

“A Map Is Not the Territory”: The Theory and Future of Sensitive Places Doctrine

Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing location-based prohibitions should focus as much on the why as the where. Instead of simply isolating each location and considering the historical pedigree of gun restrictions in that place, judges should evaluate the reasons behind the sensitive places doctrine itself. We aim to recenter these first order questions to avoid haphazard doctrinal development that threatens to leave Second Amendment law incoherent and unpredictable.

Judges developing the doctrine will need to avoid several hazards. Among them: pitching historical analogies too narrowly, neglecting sensitive location mobility, and excessively focusing on locational features rather than regulatory justifications. Whatever values ultimately underpin the doctrine, they should direct the shape of location-based challenges. Whether the doctrine is grounded in safeguarding the exercise of other constitutional rights, protecting the vulnerability of specific populations, recognizing the inhibited judgment or discretion of those gathered, or other values altogether, this Essay shows why justificatory and constitutional foundations must be set before the doctrinal structure is completely built.

Finding a Common Thread: Enacting Federal Legislation to Curb Greenwashing in the Fashion Industry and Protect American Consumers

Elena M. Boushee

The fashion industry is at an environmental crossroads. United States consumers are demanding increased transparency from fashion companies regarding their impact on the environment. While consumer interest in sustainable fashion is on the rise, there is a simultaneous increase in demand for more clothing at lower price points. Despite industry and consumer focus on sustainability, there is no uniform, standardized rating system or certification scheme that provides consumers with clarity or certainty regarding environmental claims. This leaves consumers swimming in a sea of competing claims based on differing methodologies, left to sort out for themselves which claims are true and which are misleading.

To solve this growing problem, the United States government should legislatively mandate fashion companies doing business in the United States to meet specific minimum standards in order to be able to make claims about the environmental impact of their operations.

This Act should draw from the Higg Index to create a standardized framework for gathering and processing environmental impact data. It should also draw from the OEKO-TEX labeling system to allow consumers to view sustainability data at the point of purchase. The FTC should be empowered to enforce the provisions of this Act.

The Full Faith and Credit Clause and the Puzzle of Abortion Laws

Diego A. Zambrano, Mariah E. Mastrodimos, Sergio F.Z. Valente

In 2021, Texas adopted a powerful antiabortion statute—known as S.B.8—that bars anyone from performing abortions in the state of Texas after approximately six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, S.B.8 relies entirely on private lawsuits. In response, California enacted A.B. 1666, which prohibits its courts from serving as a venue for S.B.8 claims or enforcing S.B.8 judgments. California’s statutory response, however, faces tricky challenges under the Full Faith and Credit Clause (FFC) of the U.S. Constitution. And, more generally, the clash between S.B.8 and A.B. 1666 raises larger questions about conflict of laws, constitutional rights, and horizontal federalism.

Grappling with A.B. 1666’s constitutionality directly, this Essay argues that the statute probably complies with the Full Faith and Credit Clause. California has a strong argument for the constitutionality of A.B. 1666’s venue provision under the public policy exception to the FFC. And California has a weaker, but still colorable, argument in support of the statute’s judgment enforcement bar under the FFC’s penal judgment exception. The central question going forward is whether courts will interpret the Full Faith and Credit Clause in a flexible manner—allowing for capacious exceptions—or apply a tight leash to state legislative schemes. Indeed, state clashes like this one continue to matter even after Dobbs overturned Roe v. Wade because states will attempt to use private civil claims to go beyond criminal law on topics like abortion, guns, and LGBTQ rights.

(More) Legal Guardrails for a Unicorn Crackdown

Alexander I. Platt

The explosive growth of private markets and the proliferation of “unicorns,” private startups valued at $1 billion or more, has pushed the U.S. Securities and Exchange Commission (SEC) away from the center of the action and towards the periphery. In 2021, the SEC announced plans to reassert its jurisdiction by forcing unicorns to go public. But those plans fizzled. By the end of last year, the legality of the maneuver had been called into question and key proponents had left the Commission, leaving the unicorn crackdown seemingly on ice.

Now the regulator is back with a new plan to reclaim its throne. In January 2023, one Commissioner proposed inventing a new mandatory periodic disclosure regime just for unicorns. Under this plan, the agency would amend Regulation D, the rule that allows unicorns and many other private companies to raise capital without going public, to require unicorns to disclose audited financial statements and to provide independent attestations regarding the issuer’s internal controls over financial reporting, both at the time of offering and on an “ongoing” basis thereafter—just as public companies are required to do under the Securities Exchange Act of 1934.

This paper questions the legality of this proposal. I show that the SEC likely lacks legal authority to impose ongoing disclosure obligations on private companies not linked to any particular offering or transaction or to condition particular private offering-related disclosure obligations on issuer size. For the second time in two years, an SEC Commissioner has proposed a regulatory overhaul to fundamentally redraw the lines between public and private companies. And for the second time in two years, that proposal appears to fall outside of the agency’s legal authority.

Copyright and Copying Rights

Guy A. Rub

Federal copyright law limits the copying of certain informational goods. But can state laws, and in particular state contract law, also do that? Until recently, the dominant approach was that they could. However, two recent Second Circuit decisions seem to suggest that only copyright law is allowed to do it. In other words, the Second Circuit assumes that copyright law is the only law that can regulate copying.

The Essay argues that the Second Circuit’s approach, while shared by several other courts, is wrong. It is in tension with the text and history of the Copyright Act and with the desirable relationship between federal IP law and state commercial law. This relationship is best described as symbiotic, but the Second Circuit has put those laws on a collision course. In doing so, the Second Circuit has ignored the practices of multiple industries and the ways in which copyright law and contract law work together. Indeed, state laws, in general, and contract law, in particular, have always regulated copying. Those rights and those contracts play a crucial role in our economy. Holding them unenforceable, as the Second Circuit did, might therefore disrupt well-established legal mechanisms without promoting identifiable federal policies.

Representation of United States Territories on the Federal Courts of Appeals

Anthony M. Ciolli

Many aspects of the relationship between the United States and its territories are inherently undemocratic. This Essay draws attention to one: the continued and systematic discrimination against United States territories in the appointment of judges to the federal courts of appeals. This failure not only contributes to the well-known diversity crisis within the federal judiciary but also to the stagnation in the development of the law of the territories as well as the persistent second-class treatment of the territories and their people under the United States Constitution as interpreted by the federal courts.  Unlike larger and more difficult issues such as voting rights, territorial representation on the federal courts of appeals could be achieved through a simple amendment to 28 U.S.C. § 44(c) or by the president exercising his discretion to reject the unofficial custom of filling vacant circuit court judgeships with judges who hail from the same state as their prior occupants.

Legal Empowerment is Abolition: A Response to the Symposium on Critical Legal Empowerment

Jhody Polk, Tyler Walton

This Essay is a joint endeavor of two authors equal in dignity, aligned in purpose, and, at one point, radically separated in social position. We hope that it will accomplish many things: locate the work of jailhouse lawyers within abolitionist frameworks, enunciate the role of jailhouse lawyers as community paralegals, and advocate for recognition and valuation of jailhouse lawyers as key members of the American legal ecosystem. However, if all this Essay articulates is a well-communicated theory on the path from our currently deplorable system of incarceration towards justice, we fall short of our ultimate goal.

Reflections on Fees and Fines as Stategraft: A Response to A Theory of Stategraft

Rebekah Diller, Mitali Nagrecha, Alicia Bannon

In A Theory of Stategraft, Bernadette Atuahene advances the concept of “stategraft” to describe situations in which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.” This Essay delineates the ways in which criminal legal system fees and fines can be characterized as stategraft and explores the value of this concept for social movements. In many ways, the stategraft frame, with its focus on illegality, fits well with much of the litigation and advocacy against unconstitutional fees-and-fines practices that have occurred over the last decade. Exposing illegal practices such as the operation of debtors’ prisons laid the groundwork for a more fundamental critique of the use of the criminal legal system as a revenue generator for the state. The Essay cautions, however, against relying too heavily on illegality to describe what is wrong with fees-and-fines regimes in light of courts’ reluctance to impose robust legal protections against state practices that saddle those who encounter law enforcement with debt. Relying on an illegality critique may make it harder to attack entrenched practices that courts are inclined to bless as legal and obscure more fundamental dynamics of predation and regressive revenue redistribution. At this juncture, calling attention to these structural issues is likely to be more fruitful both as an organizing tactic and as a description of the harms posed by fees and fines.

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