N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Testifying by Fingerprint: Why the Government Can’t Force You to Unlock Your Phone

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On August 29, 2026

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by Annemarie Ardy*

Cell phones have become ubiquitous in modern life; they are often carried everywhere and used to facilitate nearly every activity. Yet their incredible convenience is a double-edged sword: when searched by law enforcement, the wealth of information contained on a cell phone can paint a more intimate and fine-grained portrait of a person’s life than 24/7 surveillance. Passcodes and biometric scanners—mechanisms that permit a user to unlock a device through its recognition of the user’s face or fingerprint—stand in the government’s way, but only so long as courts do not permit the government to compel people to unlock their phones. Although the compulsion of a passcode clearly violates the Fifth Amendment’s Self-Incrimination Clause, courts have split on the question of whether compulsion of biometric scanning receives similar protections. This Contribution argues that courts should treat the use of biometric scanners as categorically testimonial and therefore protected by the Self-Incrimination Clause. Biometric scanners convey information that is classically testimonial, and to hold otherwise would pose unacceptable risks to personal privacy.

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The Johnson Amendment After Catholic Charities: The Return of Larson v. Valente Strict Scrutiny

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On August 29, 2026

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by Christopher Cokinos*

The Supreme Court’s decision in Larson v. Valente established that laws creating explicit preferences among religious denominations must be analyzed under strict scrutiny for Establishment Clause violations. For more than four decades after Larson was handed down, the Court left many questions open as to what an explicit denominational preference was and whether Larson strict scrutiny was even a viable test. However, following Catholic Charities v. Wisconsin Labor and Industrial Review Commission, where the Supreme Court used the Larson strict scrutiny analysis as the core of its decision, the vitality of Larson is clear. With this newfound life, both the government and religious organizations are hoping to strike down the Johnson Amendment: a ban on direct political participation by 501(c)(3) organizations, including churches. This Contribution argues that such a challenge to the Johnson Amendment does not fit within the Larson doctrine, since, although Larson is rather unclear in its applicability and whether strict scrutiny is the operative test, the Johnson Amendment is not a denominational preference as contemplated by the relatively thin Larson body of case law.

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Public Forums and Private Firearms: The Application of the First Amendment to the Second Amendment

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On May 19, 2026

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by Réka Illei* 

In 2008 with District of Columbia v. Heller, the Supreme Court began its overhaul of Second Amendment jurisprudence and left lower courts in a state of limbo on how to evaluate permissible state restrictions on firearm possession. In 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, the Court affirmed the right to carry a firearm for self-defense outside of the home. At the same time, the Court left open the notion of “sensitive places,” such as schools and government buildings, in which firearm restrictions may be more permissible under the Second Amendment. In the years since, states have attempted to regulate firearm possession in parks under the Bruen historical analogue framework. Still, Bruen provides little to lower courts regarding how to properly identify if a location is a sensitive place for the purposes of relaxing Second Amendment protections. Meanwhile, First Amendment jurisprudence has established a forum analysis for the similar purpose of evaluating rights-restricting speech regulations, which is familiar to and faithfully applied by courts across the country. This Contribution argues that courts should appropriate the First Amendment forum framework for the Second Amendment analysis of sensitive places and historical analogues as established by Bruen.

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Closing the Liability Loophole: Why Contracting Out Constitutional Violations Does Not Immunize State Actors Under Section 1983

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On May 18, 2026

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by Alessandra Quattrocchi*

Section 1983 operates as the foremost method of rights vindication for individuals in jails and prisons across the country, allowing incarcerated individuals to sue for the plethora of constitutional violations they suffer while in confinement. But the text of the statute only affirms liability for state actors. Amidst the rise in prison privatization, the Supreme Court carved out circumstances in which private actors can be held liable under § 1983. Nevertheless, the Court has yet to consider whether in such cases the relevant state actor is equally liable for the wrongs perpetuated by the private parties it chose to enter contractual arrangements with. When the state contracts out constitutional duties in jails and prisons, any ensuing rights violations that constitute the policy or custom of the contracted private actor become enshrined in state action. In turn, this Contribution argues that the state actor that sanctioned the contract can and should be held directly liable under § 1983 for the unconstitutional conduct of the private actor that was contracted to perform a constitutional duty for the local incarcerated population.

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Modern Governance Demands a Functionalist Approach in Evaluating Private Delegations

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On May 6, 2026

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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

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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

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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

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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

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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

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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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