N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Modern Governance Demands a Functionalist Approach in Evaluating Private Delegations

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On May 6, 2026

In Contributions

by Sydnie Caster*

Although the Supreme Court has not invalidated a private delegation since 1936, debate around the constitutionality of private delegations has persisted among scholars and courts. Circuit courts are split regarding the constitutionality of the private delegation in the Horseracing Integrity and Safety Act (“HISA”). The debate regarding the constitutionality of HISA is rooted in a broader discussion about the legality of private delegations in relation to separation of powers principles. There are two principal theories of separation of powers: functionalism and formalism. The functionalist approach focuses on how government works in practice, weighing the overall balance of power between branches of government. The formalist approach focuses on the text of the Constitution and endorses strict separation of roles for each branch of government. This Contribution argues that courts should adopt a functionalist approach to evaluating private delegations in order to preserve the flexibility and expertise necessary for effective modern governance, while ensuring political accountability and preventing self-interested regulation by private entities.

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Reviewing Government-Approved Commodity Advertising under the APA

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On April 28, 2026

In Contributions

by Joey Schnide* 

Commodity checkoff boards, or quasi-governmental entities created by statute to research and promote agricultural commodities, are responsible for well-known advertising campaigns like “Got Milk?” and “Beef, it’s what’s for dinner.” Checkoff boards must have all advertisements pre-approved by the United States Department of Agriculture (“USDA”). When the USDA pre-approves commodity checkoff advertisements containing misleading claims, ordinary false-advertising remedies such as the Lanham Act and state torts cannot overcome the barriers to seeking relief imposed by doctrines of sovereign immunity and government speech. This Contribution argues that, to correct this accountability gap, courts should permit review of USDA’s approval decisions under the Administrative Procedure Act (“APA”). Since USDA approvals constitute final agency action and are thus reviewable under § 704 of the APA, producers who have been harmed by false or misleading advertisements should be able to seek judicial orders setting those approvals aside. Recognizing the permissibility of APA review would not unduly expand liability for commodity checkoff boards; rather, it would merely enforce limits Congress has already imposed through statute.

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Protecting the FTCA: Why Federal Employees Do Not Have Discretion to Violate the Constitution

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On April 24, 2026

In Contributions

by Sabrina Ruch*

The Federal Tort Claims Act (“FTCA”) is a limited waiver of sovereign immunity that provides a cause of action for individuals to recover for negligent or wrongful acts by federal employees within the scope of their employment. However, Congress provided for certain exceptions to this waiver, including the discretionary function exception, which shields federal employees from liability for claims arising out of actions taken in their discretion. This includes making a policy-based decision within the scope of their employment. Circuit courts are divided over whether a federal employee’s conduct can fall within the discretionary function exception when the plaintiff plausibly alleges that the employee’s actions violated the Constitution. The proper understanding of the discretionary function exception is that it does not shield employees from liability when their actions are alleged to be unconstitutional because federal employees do not have the discretion to violate the Constitution. To hold otherwise would be contrary to the plain meaning of discretion, the Supreme Court’s understanding of discretion in other contexts, and Congress’s intent when passing the FTCA and crafting its exceptions.

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Time Off, Not Time Out: Leaves of Absence as Reasonable Accommodations Under the ADA

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On April 22, 2026

In Contributions

by Tristan Sirls*

The Americans with Disabilities Act of 1990 (“ADA”) prohibits employers from discriminating against their employees with disabilities through a variety of means, including by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” Circuit courts are divided, however, on whether leaves of absence qualify as reasonable accommodations under the statute. While several circuits approach leaves of absence on an individualized basis, the Seventh Circuit in Byrne v. Avon Products found that “not working is not a means to perform [a] job’s essential functions” and adopted a categorical rule barring leaves of absence from qualifying as reasonable accommodations. This Contribution argues that the Seventh Circuit’s categorical ban on leaves of absence as reasonable accommodations is inconsistent with the ADA’s text, contrary to Supreme Court precedent, and unnecessary as a practical matter. Courts must instead evaluate leaves of absence like any other potential accommodation: through an individualized inquiry that considers the burdens that a grant or denial would impose on all parties.

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If It Takes a Village: The Case for Tri-Parent Standing Under Domestic Relations Law Section 70

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On April 20, 2026

In Contributions

by William Kanellopoulos*

As same-sex marriage became legally recognized nationally and assisted reproduction technologies developed, the law has adapted to protect parent-child relationships that exist outside traditional models. A logical step in this evolution is recognizing that three individuals may simultaneously have standing to seek custody when they intentionally conceive and raise a child together. This Contribution argues that New York state courts should interpret Domestic Relations Law Section 70 to permit tri-parentage arrangements because doing so (1) aligns with the statute’s plain language and purpose, (2) reflects established precedent protecting parent-child bonds, and (3) honors the reasonable expectations of families who have structured their lives around a non-traditional, three-parent model.

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Personal Property in Purgatory: Why the Fourth Amendment Should Police Government Hoarding

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On April 16, 2026

In Contributions

by Mia Bravo*

The Supreme Court has not yet adopted a legal standard to regulate what happens when the government seizes personal property and retains it for an extended period without a legally valid justification. Circuit courts are split on the correct doctrinal bucket to place this unsettling pattern of behavior. While some courts think a Due Process or Takings analysis is suitable, neither standard fits with current Supreme Court precedent, produces appropriate incentives for individual officers, or sufficiently compensates aggrieved parties. On the other hand, a Fourth Amendment standard offers the most effective and doctrinally sound path forward. The Fourth Amendment reasonability framework is firmly grounded in constitutional text, history, and precedent and provides a workable means to stop constitutional harms inflicted by the government’s prolonged, unjustified retention of personal property.

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From Aspirin to Rolls Royce: Upholding Expressive Freedoms in the Wake of Rising Trademark Rights

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On April 14, 2026

In Contributions

by Keon Park*

With the rise of the modern trademark that veers into the realm of constitutional speech rights, circuit courts have adopted varying approaches to balance competing trademark interests and free speech protections. The majority approach to striking this judicial balance among circuit courts is governed by the Rogers test, a threshold inquiry that, if met, almost invariably calls for dismissal of trademark infringement claims for expressive works. However, the Supreme Court in Jack Daniel’s Properties Inc. v. VIP Products LLC partially ruled against the use of the Rogers test for marks used to identify the source of a product. While circuit courts have continued to apply Rogers in other contexts, several have called for an alternate approach, questioning Rogers’ validity as a whole. But given the rise of non-traditional purposes of trademarks in the modern era of advertising where brands such as Rolls-Royce are associated with quality rather than solely signifying the maker of the car, courts should continue to use the Rogers balancing test to protect the expressive speech rights of the general public.

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The Tucker Act and the First Amendment: Core Constitutional Claims Do Not Belong in the Court of Federal Claims

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On April 3, 2026

In Contributions

by Wiatt Hinton*

Since October 7th, 2023, protests and encampments nationwide have forced schools to reconsider their balance between free speech and anti-harassment policies. In response to these protests, the Trump administration cut billions of dollars in federal funding from universities to extract settlements and impose speech policies favorable to the administration. Universities subsequently filed suit to reclaim their funding, bringing claims that, inter alia, the Trump administration violated their First Amendment rights. Instead of fighting these First Amendment claims head-on, the Trump administration delayed the conflict by seeking to shift the venue from federal district courts to the Court of Federal Claims pursuant to the Tucker Act. Although the Supreme Court has adopted a broad interpretation of the Tucker Act in Administrative Procedure Act claims, its reasoning there should not apply to First Amendment claims. This Contribution argues that a proper reading of the Tucker Act strips the CFC of jurisdiction over First Amendment claims because they are not money-mandating and because the CFC lacks the equitable power needed to remedy these violations. With this construction, the Trump administration can no longer escape liability for their suppressive policies and universities can restore their academic freedom.

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From Alvarez to AI: False Speech and Political Deepfakes

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On March 30, 2026

In Contributions

By Mara Clemons*

Political deepfakes occupy the outer limits of First Amendment protection by combining political expression with uniquely persuasive deception. Their capacity to mislead voters erodes trust in authentic media and challenges the traditional assumption that false political speech can be reliably corrected through the marketplace of ideas. Recent judicial treatment of state-level deepfake regulations illustrates the narrow constitutional space available for regulation. Statutes regulating political deepfakes should not receive strict scrutiny protection when analyzed by courts for First Amendment violations because the defining harm arises not from the communication of false ideas, but from the deliberate deception of speaker identity. By falsely representing who is speaking, deepfakes distort the informational cues that enable voters to assess credibility and accountability, placing them outside the core category of traditional political speech that the First Amendment is intended to protect. Regulations of political deepfakes target this deceptive mechanism, rather than suppressing ideas or viewpoints, and should therefore be evaluated under intermediate scrutiny.

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Lanham-Strung: How the Supreme Court Misunderstood the Proper Scope of Extraterritorial Liability under the Lanham Act

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On March 26, 2026

In Contributions

by Lyndsey Garbee*

 The presumption against extraterritoriality is a canon of construction meant to limit U.S. laws to matters of domestic concern. However, the Supreme Court has held that this presumption can be overcome when domestic conduct occurs that is relevant to the statute’s focus. In Abitron v. Hetronics, the Supreme Court found that the relevant conduct for purposes of the Lanham Act, which regulates trademark rights and liabilities, is domestic use of the infringing mark in commerce. However, the Lanham Act only prohibits uses in commerce that are likely to cause consumer confusion. Based on the text of the Lanham Act, the Court’s extraterritoriality precedent, and the purpose of the Lanham Act, this Contribution argues that the proper analysis of the extraterritorial application of the Lanham Act turns not on domestic use in commerce, but on whether such use is likely to cause domestic consumer confusion.

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