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Leonard, Arthur S.

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Other Publications Faculty Scholarship 
10-2024 
U.S. District Judge Orders Indiana Department of Correction to 
Provide Gender-Affirming Surgery for Transgender Individual with 
Severe Gender Dysphoria 
Arthur S. Leonard 
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 Part of the Courts Commons, and the Sexuality and the Law Commons 
October 2024   LGBT Law Notes   5
U.S. District Judge Orders Indiana Department of Correction 
to Provide Gender-Affirming Surgery for Transgender 
Individual with Severe Gender Dysphoria
By Arthur S. Leonard
On September 17, Senior U.S. 
District Judge Richard L. Young, after 
denying a motion to dismiss, granted 
a preliminary injunction ordering 
the defendants to provide gender-
affirming surgery to Ms. Cordellione, 
a transgender woman confined in 
the Indiana prison system, “at the 
earliest opportunity.” Cordellione v. 
Commissioner, Indiana Department of 
Correction, 2024 WL 4333152, 2024 
U.S. Dist. LEXIS 1633316 (S.D. Ind., 
Sept. 17, 2024). Judge Young credited 
the testimony of expert witness Dr. 
Randi Ettner, who had examined Ms. 
Cordellione, that the plaintiff was an 
appropriate candidate for such surgery, 
which Dr. Ettner deemed medically 
necessary. The court concluded as a 
matter of law that an Indiana statute 
adopted in 2023 restricting the state’s 
Department of Correction from 
providing gender-affirming surgery for 
transgender individuals was subject 
to heightened scrutiny and likely 
violated Ms. Cordellione’s 8th and 14th 
(Equal Protection) Amendment rights. 
Enactment of this statute was what 
triggered Ms. Cordellione’s lawsuit, as 
she had been seeking gender-affirming 
surgery for some time and seemed near 
to getting it until IDOC abruptly changed 
its policy in obedience to the new statute. 
Noting that preliminary injunctions in 
the federal system normally extend up 
to 90 days, the judge indicated that he 
would renew this preliminary injunction 
as often as necessary to ensure that Ms. 
Cordellione’s surgery will not be put off 
by the state’s appeals. The state has filed 
an appeal with the 7th Circuit Court of 
Appeals, but as of this writing, neither 
Judge Young nor the 7th Circuit has 
stayed the preliminary injunction.
Ms. Cordellione, age 41, “knew from 
an early age that she was a girl, but she 
did not learn about transgender people 
and possible treatment until she had been 
imprisoned for some time.” She was 19 
years old when she was incarcerated 
upon conviction of murdering her infant 
stepdaughter, and her earliest possible 
release date is December 31, 2027. She 
was diagnosed with gender dysphoria 
by IDOC’s Gender Dysphoria Review 
Committee in 2020 and began receiving 
hormone treatments, as a result of which 
over the past few years her body has 
reconfigured (development of breasts, 
redistribution of body fat) to appear 
feminine, but the continued existence of 
her testicles and penis had caused mental 
anguish and she has made unsuccessful 
attempts to remove them when denied 
surgery. She has socially transitioned, 
using her preferred name and pronouns 
and dressing as a woman to the extent 
possible within the prison environment. 
At the time of her diagnosis, IDOC 
theoretically made gender-affirming 
surgery available, but had not done so 
yet and, as noted above, changed its 
policy when the new law was passed.
Much of the court’s opinion is taken 
up with discussion of expert witnesses 
proffered by the state and the plaintiff’s 
expert witness, Dr. Ettner. Judge Young 
concluded that the state’s experts were 
of limited relevance and qualifications, 
and he specifically ruled against much 
of the testimony offered by Dr. Howard 
Levine, a psychiatrist who has been 
offered as a frequent “expert witness” 
in transgender prison cases put forward 
by the states because of his views 
against providing gender-affirming 
surgery to incarcerated individuals. 
Most courts have rejected much of 
his testimony. Judge Young noted the 
overwhelming weight of professional 
medical associations opining in favor of 
providing such surgery for individuals 
with severe gender dysphoria. He also 
noted the guidelines published by the 
World Professional Association for 
Transgender Health (WPATH), while 
noting that some have challenged 
WPATH’s approach as advocacy 
rather than medical science. For Judge 
Young, the endorsement of WPATH’s 
guidelines by professional medical 
associations and various courts of 
appeals has been sufficient to give it 
expert weight. He also noted decisions 
by various courts of appeals confirming 
his preliminary conclusions on the 8th 
and 14th Amendment issues, although 
it is certainly still rare for a court to 
actually order that such surgery be 
provided, especially in the context of a 
preliminary injunction rather than a full 
merits trial. 
“Inasmuch as Ms. Cordellione has 
received a full evaluation of her need 
for gender-affirming surgery from 
Dr. Ettner and inasmuch as surgery is 
medically necessary to alleviate the 
serious and debilitating symptoms of 
her gender dysphoria, it is appropriate 
for the court to order at this point that 
this surgery be provided to her at the 
earliest opportunity,” wrote Judge 
Young. “This relief is narrowly drawn, 
extends no further than necessary 
to correct the violation of Ms. 
Cordellione’s constitutional rights, and 
is the least intrusive means available 
and necessary to correct this ongoing 
violation. There is no evidence that this 
preliminary injunction will have any 
adverse impact on either public safety 
or the operation of the criminal justice 
system.” However, because getting a 
surgeon with expertise in this highly 
specialized field “may take time,” the 
judge commented, it was his intention to 
renew the preliminary injunction “every 
90 days until the surgery is provided.”
According to material on the case 
docket, IDOC first turned to a surgeon 
specializing in this field, who set out 
criteria and procedures that would likely 
delay the actual surgery until well into 
2025. There is a motion on the docket 
on behalf of plaintiff suggesting that 
IDOC seek other surgeons who might 
be able to do this more expeditiously. 
6   LGBT Law Notes   October 2024
The state filed its appeal to the 7th 
Circuit in mid-October. That court has 
in the past ruled in favor of incarcerated 
transgender people seeking gender-
affirming treatment (hormones), but it 
has not yet specifically ruled in a case 
involving surgery, although dicta from 
prior cases suggest that surgery should 
be available upon credible medical 
evidence of its necessity. So far, the 
Supreme Court has avoided ruling 
on the merits in any cases involving 
gender-affirming care in state or federal 
prisons, and only a handful of states 
theoretically provide such treatment.
The plaintiff is represented by three 
attorneys from the ACLU of Indiana: 
Gavin Minor Rose, Kenneth J. Falk, 
and Stevie J. Pactor. Judge Young was 
nominated by President Bill Clinton to 
the district court and is a former chief 
judge of the district. He assumed senior 
status shortly before this case was 
filed. From the depth and detail of his 
opinion, it appears that this case has 
consumed his interest over the past year, 
during which he has developed a deep 
and empathetic understanding of the 
situation faced by Ms. Cordellione. ■
Arthur Leonard is the Robert F. Wagner 
Professor of Labor & Employment Law 
Emeritus at New York Law School.
U.S. District Court Dismisses 
Constitutional Challenge to Tennessee 
Bathroom Law
By Jason Miranda
As the culture wars rage on, some 
states have dug their heels deeper into 
the quicksand, enacting laws aimed at 
drag shows, gender dysphoria treatment, 
and school curricula. One such state, 
Tennessee, finds itself at the center 
of yet another lawsuit, this time for its 
law restricting students to using the 
bathroom corresponding with their sex 
assigned at birth. On September 4, 2024, 
Chief Judge William L. Campbell, Jr., 
of the U.S. District Court for the Middle 
District of Tennessee granted the state 
defendants’ motion to reconsider, and 
subsequently, their motion to dismiss, in 
a case brought by a transgender girl who 
sought to enjoin enforcement of the law, 
allowing her to use the multi-occupancy 
girls’ restroom at her school. D.H. v. 
Williamson County School Board of 
Education, 2024 U.S. Dist. LEXIS 
158653, 2024 WL 4046581 (M.D. Tenn. 
Sept. 4, 2024).
The plaintiff, D.H., filed this action 
challenging the Tennessee law for 
violation of the Equal Protection Clause 
of the Fourteenth Amendment and 
Title IX of the Education Amendments 
of 1972. The complaint was brought 
against the Williamson County School 
Board of Education as well as the 
Tennessee Department of Education and 
its Commissioner. The court granted the 
defendants’ motion to dismiss the Title 
IX claim but denied them as to the Equal 
Protection Claim, where the defendants 
later filed a motion to reconsider, 
spawning this decision. 
In 2021, Tennessee enacted the 
Tennessee Accommodations for All 
Children Act (the “Act”), which requires 
public schools to provide reasonable 
accommodations to students, teachers, 
or employees who desire greater 
privacy when using multi-occupancy 
restrooms within public schools. The 
Act’s accommodation requirement does 
not extend to a facility that is designated 
for use by members of the opposite sex 
while members of the opposite sex are 
present or could be present and explicitly 
defines “sex” as a person’s “immutable 
biological sex as determined by anatomy 
and genetics existing at the time of 
birth.”
The plaintiff is D.H., a transgender 
female student at a public elementary 
school in Williamson County, Tennessee, 
who was not allowed to use the multi-
occupancy girls’ restroom at her school. 
Instead, D.H. was required to continue 
using the single-occupancy restrooms 
made available to her, which she claims 
isolated her from her classmates and 
stigmatized her on the basis of her sex 
and gender identity. D.H. seeks to enjoin 
enforcement of the Act, allowing her to 
use the multi-occupancy facilities that 
correspond with her gender identity. She 
also seeks to require the defendants to 
correct all school records to reflect her 
female gender.
Before the court was a motion to 
reconsider the court’s previous ruling on 
the Equal Protection claim brought by all 
three defendants. Judge Campbell begins 
the analysis by looking at whether there 
has been a change in controlling law since 
the last decision. The defendants argued 
that the court should reconsider in light 
of the 2023 decision in L.W. v. Skrmetti, 
83 F.4th 460 (6th Cir. 2023), a case in 
which the Sixth Circuit considered 
whether the Due Process and Equal 
Protection clauses prohibited states from 
limiting certain transition treatments for 
minors. Most relevant to the case at hand 
is the L.W. court’s holding that although 
intermediate scrutiny applies to sex-
based discrimination, only rational 
basis review applies to sex-based 
classifications when the challenged 
statute seeks to regulate all relevant 
treatments regardless of sex. The 
court in L.W. also emphasized that the 
Supreme Court has not yet recognized 
transgender status as a suspect class 
and that until that changes, rational 


English

U.S. District Judge Orders Indiana Department of Correction to Provide Gender-Affirming Surgery for Transgender Individual with Severe Gender Dysphoria

DigitalCommons@NYLS 
Other Publications Faculty Scholarship 
10-2024 
Legislative / Law & Society / International Law | Notes 
Arthur S. Leonard 
Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs 
October 2024   LGBT Law Notes   37
court by President Barack Obama, 
but hers was one of several late-term 
nominations that were approved in 
committee and never received a floor 
vote. Then she was renominated by 
Trump as part of a deal on a bipartisan 
slate of judges. Her nomination was not 
considered to be controversial. 
LEGISLATIVE & 
ADMINISTRATIVE NOTES
By Arthur S. Leonard 
CALIFORNIA / SAN FRANCISCO – 
A pair of out gay Board of Supervisor 
members have been working to revise 
local laws to encourage a revival of 
gay bathhouses in San Francisco. Gay 
bathhouses were effectively phased 
out through public health regulations 
in response to the AIDS epidemic, but 
District 8 Supervisor Rafael Mandelman 
and District 6 Supervisor Matt Dorsey 
are co-sponsoring legislation that will 
go one step beyond the reforms that 
Mandelman achieved a few years ago 
that theoretically allowed bathhouses to 
reopen. Under the proposed legislation, 
bathhouses will once again be able to 
rent cubicles that can be locked from 
the inside and will not be required to 
maintain a daily register of patrons. 
Mandelman says that these local law 
provisions have stood in the way of the 
San Francisco Police Department being 
able to license new bathhouses. “It’s 
encouraging that there are entrepreneurs 
who are actually trying to open these 
venues, although it is frustrating that 
we keep finding new barriers in their 
way,” Mandelman told the local Fox 
News television station. City planning 
code regulations have already been 
amended to allow bathhouses to open 
in traditionally “gay neighborhoods” 
such as the Castro and the Tenderloin. 
The gay supervisors hope to restore 
San Francisco’s place as a capitol of 
gay sexuality now that preventive 
medications have drastically reduced the 
health dangers associated with gay sex. 
“The South of Market neighborhood 
I represent has a long and storied 
history with these establishments,” 
said co-sponsor Dorsey, who is the 
Board’s only openly HIV+ member. 
“With hindsight, we now know that 
restrictions adopted decades ago at 
(the) advent of the AIDS crisis likely 
deprived at-risk communities of sex-
positive spaces where information about 
safer sex practices might have saved 
lives. From PrEP and antiretroviral 
therapy to dramatically enhanced viral 
suppression, ‘U=U’ (Undetectable = 
untransmittable) and more. It’s past time 
for anti-bathhouse restrictions to go.”
CALIFORNIA – Governor Gavin 
Newsom signed the “California Freedom 
to Read Act” which forbids state-funded 
public libraries from removing or 
refusing to purchase material based on 
the “views, ideas, or opinions” contained 
therein. Libraries are required to have a 
written and publicly accessible collection 
development policy, and such policy 
must be submitted to the policy office of 
the State Librarian by the beginning of 
2026. Materials may not be excluded or 
placed in a limited access status solely 
based on “the race, nationality, gender 
identity, sexual orientation, religion, 
disability, political affiliation, or any 
other characteristic … or the economic 
status” of a subject, author, or perceived 
or intended audience. The law also bars 
punishment of library staff members 
for refusing to violate its terms. The 
governor had previously signed a bill in 
September 2023 forbidding schools from 
banning LGBTQ+-inclusive books. 
LAW & SOCIETY NOTES
By Arthur S. Leonard
DELAWARE – Delaware State Senator 
Sarah McBride, a transgender woman, 
won the Democratic primary for 
Delaware’s only seat in the U.S. House 
of Representatives. Delaware was 
characterized as a “deep blue” state by 
the Associated Press in reporting this 
historic victory, which seems likely to 
make McBride the first out transgender 
member of the U.S. Congress. Democrats 
have held the Delaware House seat 
continuously since 2010. McBride has 
written a memoir in which she recounts 
coming out as trans in a Facebook post 
when she was a senior at American 
University, where she had been president 
of the student government. In 2012, she 
was the first out trans woman to intern 
at the White House, in 2016 the first out 
trans woman to speak at the Democratic 
National Convention, and in 2020, the 
first to be elected to any State Senate in 
the nation. 
INTERNATIONAL NOTES
By Arthur S. Leonard
TAIWAN – Taiwan News reported 
on September 19 that Taiwan will 
recognize same-sex marriages between 
Taiwanese and Chinese couples, so 
“cross-strait” same-sex couples will 
be able to register their marriages in 
Taiwan. The Interior Ministry released 
a press release reporting that this change 
has been approved by the Cabinet. This 
will make it possible for such couples 
to go to any country that allows the 
performance of same-sex marriages and 
then register their marriages in Taiwan 
to receive full marital recognition there. 
THAILAND – On September 24, King 
Maha Vajiralongkorn signed into law 
the marriage equality bill that opens up 
marriage for same-sex couples for the 
first time on the mainland of Southeast 
Asia, reported France24.com. Two other 
countries in Asia recognize same-sex 
marriages: Taiwan and Nepal. The law 
was passed in June by the parliament, 
and will go into effect 120 day after 
signing, in January 2025. The new law 
uses gender-neutral nouns instead of 
LEGISLATIVE/LAW & SOCIETY/INT’L notes


Legislative / Law & Society / International Law | Notes

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Pishvaian ’25, Lilly

DigitalCommons@NYLS 
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12-5-2024 
Empowering Small Businesses With Legal Tools 
Lilly Pishvaian ’25 
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Since 1891
WE ARE NEW YORK’S LAW SCHOOL
Mangrove Business Academy in Flatbush, Brooklyn, is an open 
workspace, learning annex, and cultural development center 
that supports local creative producers, makers, workers, and 
entrepreneurs. On November 21, four students from New York 
Law School (NYLS) visited Mangrove to give a presentation helping 
small business owners learn their options for legally safeguarding 
their businesses. Emilie Delannes-Molka ’25 and Mina Kim ’25 
represented the PTO Trademark Clinic, while Stephen Navitsky 
’25 and I represented the Nonprofit and Small Business Clinic; 
both clinics are part of The Plumeri Center for Small Business 
Empowerment.
Each clinic gave a one-hour presentation, providing an overview of 
key topics and answering a range of questions from the audience.
The small business owners are enrolled in a 12-week course that 
offers hands-on training to help them navigate the challenges of 
starting and managing a business. They meet weekly to discuss 
business planning, management, and operations. We had the 
opportunity to guide them through the legal concerns they need to 
consider when starting their ventures.
As members of the Nonprofit and Small Business Clinic with 
Professor Jae Hyung Ryu, Stephen and I focused on the business 
side of things, including choosing a business entity, the formation 
process, contractual concerns, and a new federal regulation known as 
the Corporate Transparency Act (CTA). When we asked how many of 
them had already formed an LLC, more than half raised their hands. 
Many of them were already familiar with the CTA. The audience was 
very engaged, asking thoughtful questions that really tested our 
understanding of the material. It felt less like a presentation and more 
like a conversation with like-minded individuals.
Emilie and Mina covered the importance of trademarks, including 
the different types, how to uniquely identify a business, and the 
process of filing with the U.S. Patent and Trademark Office (USPTO). 
Unsurprisingly, the audience was very interested and even sparked a 
discussion about how off-brand cereal companies might be allowed 
to use similar marks to name-brand companies. Throughout the 
session, participants continued to ask specific questions about how 
the information applied to their own businesses.
At the end of the presentation, the audience expressed their 
gratitude with a round of applause. As the daughter of an immigrant 
entrepreneur, this experience was particularly meaningful to me. 
I felt I was giving back to people who, like my father once did, are 
navigating the learning curve and excitement of starting a new 
venture.
Since the presentation, we’ve already heard from a prospective client 
who could benefit from the legal services offered by New York Law 
School’s clinics. This experience was incredibly rewarding, and I hope 
future NYLS students continue to collaborate with the Mangrove 
Business Academy in the years to come.
Empowering Small Businesses 
With Legal Tools
Lilly Pishvaian ’25  •  Published December 5, 2024
Lilly Pishvaian ’24 and Stephen Navitsky ’25 presenting at the Mangrove 
Business Academy.
Members of the NYLS Nonprofit and Small Business Clinic and the 
Trademark Clinic pose with Mangrove Business Academy entrepreneurs after 
giving presentations addressing small business legal matters.
Experiential Learning at New York Law School
Experiential learning is an integral part of the NYLS 
education. Through our top-tier programs, we offer students 
the opportunity to turn theory into practice: Starting in their 
first year, students participate in counseling, interviewing, 
and negotiating exercises in their foundational Legal Practice 
course. During their upper-level years, students may select 
from a wide array of experiential learning courses to hone 
their lawyering skills. Together with a comprehensive legal 
education, these experiential offerings prepare our students 
for careers in advocacy.


Empowering Small Businesses With Legal Tools

Goodyear, Michael

FALL 2024   31
T
wenty-one-year-old college student Shane hopes to 
write a song for his boyfriend. In the past, Shane would 
have had to wait for inspiration to strike, but now he 
can use generative articial intelligence to get a head start. 
Shane decides to use Anthropic’s AI chat system, Claude, to 
write the lyrics. Claude dutifully complies and creates the 
words to a love song. Shane, happy with the result, adds notes, 
rhythm, tempo, and dynamics. He sings the song and his 
boyfriend loves it. Shane even decides to post a recording to 
YouTube, where it garners 100,000 views. 
But Shane did not realize that this song’s lyrics are similar 
to those of “Love Story,” Taylor Swi’s hit 2008 song. Shane 
must now contend with copyright law, which protects original 
creative expression such as music. Copyright grants the rights 
owner the exclusive rights to reproduce, perform, and create 
derivatives of the copyrighted work, among other things. If 
others take such actions without permission, they can be 
liable for damages up to $150,000. So Shane could be on the 
hook for tens of thousands of dollars for copying Swi’s song. 
Copyright law has surged into the news in the past few 
years as one of the most important legal challenges for 
generative AI tools like Claude—not for the output of these 
tools but for how they are trained. Over two dozen pending 
court cases grapple with the question of whether training 
generative AI systems on copyrighted works without 
compensating or getting permission from the creators is 
lawful or not. Answers to this question will shape a 
burgeoning AI industry that is predicted to be worth  
$1.3 trillion by 2032. 
Yet there is another important question that few have 
asked: Who should be liable when a generative AI system 
creates a copyright-infringing output? Should the user 
be on the hook? Shane only requested a generic love 
song, not “Love Story” or one like it. What about the 
provider of the AI tool? It is not in Anthropic’s interest for 
Claude to produce an infringing song, and the company 
likely took measures to avoid infringing outputs. 
I propose that neither option is desirable. Instead, the 
AI system itself—as a ctitious legal person—should be the 
copyright infringer. Any human liability for infringement 
should be determined on a more nuanced secondary liability 
basis. While this is a viable approach under copyright doctrine, 
it also suggests that we can more broadly reimagine the 
role of AI as the perpetrator to respond to the unique legal 
conundrums posed by increasingly autonomous systems.
Who caused the machine to infringe?
Some AI-generated outputs will undoubtedly infringe copyright. 
Scholars including Matthew Sag, James Grimmelmann, and 
Timothy Lee have already shown how generative AI systems 
can produce images that infringe on copyrighted content 
such as Peanuts’ cartoon beagle Snoopy, Nintendo’s Italian 
plumber hero Mario, and Banksy’s iconic Girl with Balloon 
mural. In March, the Guangzhou Internet Court in China 
issued the rst ruling involving copyright infringement and 
generative AI, nding that the output at issue infringed the 
copyright for Japanese superhero Ultraman. (In that case, the 
court found the AI provider liable for the infringing output.)
MICHAEL P. GOODYEAR
Who Is Responsible for AI 
Copyright Infringement?
32   ISSUES IN SCIENCE AND TECHNOLOGY
perspectives
e question of who should be liable is especially 
challenging because AI systems are black boxes. Developers 
and users are not able to precisely predict or explain why 
a particular output occurs. e US Copyright Oce has 
rejected copyright registrations for AI-generated works on 
the basis that, due to the black box, the AI system—not the 
developer or user—is creating the specic expressive output. 
e US Patent and Trademark Oce has similarly rejected 
the notion that an AI system can be an inventor for purposes 
of patent law. e unpredictability and semiautonomous 
nature of AI has led many commentators to suggest that 
a paradigm shi in the law is needed for the AI era.
is is not the rst time copyright law has encountered 
dicult questions of liability in the face of emerging 
technologies. From the printing press to search engines, 
complex machines have posed new questions for 
who should be liable for resulting infringements. In 
most cases, if infringement occurred, the infringer 
has usually been obvious. Whether it was the painter 
of the art, author of the book, or copier of the music, 
there’s been a clear line from infringer to infringement. 
In these corporeal infringement cases, the identity of 
the infringer was a foregone conclusion because the 
infringement occurred by the person’s own hand.
As machines became more complex, however, multiple 
parties became involved in the copying of copyrighted 
works, which deed this straightforward understanding 
of liability. For example, posting infringing content online 
involved the user who posted the content, their internet 
service provider, the website to which it was posted, and 
the internet service provider for that website. A remote 
digital video recording device for taping television programs 
required both the system that facilitated the recording and 
the user who selected the specic programming for later 
viewing. In these and other mechanical infringement cases, 
courts introduced a new term to copyright law: volition. 
Volition asks who willed or caused the infringement to 
occur—or, as one court put it, “who actually presses the 
button”? Although volition was always part of copyright 
law in the background, courts had to bring it to the fore to 
address the complications of mechanical infringement. With 
the aid of volition, courts in both these examples determined 
that the user was the infringer because the user—not the 
service provider—caused the infringement to occur.
Users or developers?
I propose that infringement carried out through generative 
AI—which I term articial infringement—is merely the 
third stage in this liability evolution. Courts can use the 
volition requirement, which helped them solve the liability 
challenges of mechanical infringement, to determine who 
should be held liable for AI-generated infringements as 
well.
ere are scenarios where it seems fairly likely the user 
or the developer caused the AI system to infringe. Users 
may have specically tried to make the AI system generate 
infringing outputs or have even engaged in adversarial 
machine learning aimed at circumventing the system’s 
safeguards against infringement. It is also possible that the 
developer of the AI system oered a system that is almost 
guaranteed to infringe most of the time, either due to 
malintent or poor design.
But in most articial infringement cases, it will be 
dicult to show that a human acted with volition. e 
creation and launch of an AI system involves many 
individuals. Most providers of AI systems actively seek 
to limit instances of infringing outputs. is is why, for 
example, you cannot prompt some generative AI systems to 
create an output in the style of well-known artists such as 
Pablo Picasso or Salvador Dalí. Users also generally do not 
intend infringing works to be generated or, like Shane, are 
unaware when outputs are infringing.
We could ignore this complex reality and make the 
AI system provider or user automatically liable for all 
infringements. But this is undesirable for several reasons. 
First, such a rule would ignore legal precedent that, without 
some causation or intent, providers are generally not liable 
merely for oering a product or automatic service that 
has substantial noninfringing uses. Second, the Copyright 
Oce has already refused to register copyrights in AI-
generated outputs because the developer and user do not 
have sucient control over the expression, which also forms 
the basis for the infringement. ird, imposing liability 
on developers for all resulting infringements despite their 
best intentions could deter new market entrants, inhibiting 
robust competition and solidifying the positions of wealthy 
market leaders such as OpenAI and Meta. Finally, absolute 
liability would not necessarily deter infringement because 
of the lack of precise control over the AI black box. 
The AI system itself—as a ctitious legal person—should be the 
copyright infringer. Any human liability for infringement should be 
determined on a more nuanced secondary liability basis. 
FALL 2024   33
perspectives
AI systems as copyright infringers
A proper volition analysis instead suggests a novel solution: 
courts should consider the AI system, as an articial 
legal person, to be the infringer. e AI system is what is 
determining the expression in a particular output. While the 
developer provides the infrastructure and the user the prompt, 
the actual determination of whether an output will contain 
infringing content is made inside the AI black box. e AI 
system is not human, of course, but it is not unprecedented 
for the law to confer legal personhood on other nonhuman 
entities, including corporations and pet animals. Similarly, the 
law could confer legal personhood on the AI system so it can 
be held liable for copyright infringement. is legal ction 
would make the AI system the direct copyright infringer.
Holding the AI system liable does not mean that there 
is no liability for the developer or user, or that copyright 
owners cannot recover for infringements because the AI 
system does not have nancial resources. Developers or users 
can be secondarily liable for the AI system through their 
own actions. e law oen holds other parties liable for the 
wrongs of another. For example, employers are responsible for 
actions their employees carry out in their line of work. Online 
service providers are liable for copyright infringement when 
they know of a specic infringement and do not remove it. 
In the AI context, the developer could be held liable 
if they knew about and “materially contributed” to the 
infringement. is could take the form of what I term a 
notice-and-revision test. Under this test, if the developer 
learns of a specic infringement problem (say, Shane’s 
lyrics), it would then be obligated to take remedial action to 
prevent similar infringements from reoccurring. Providers 
or users could also be on the hook if they induced or 
encouraged the AI system to infringe. ese approaches 
look to whether the developer or user intended infringement 
to occur or be furthered, rather than imposing absolute 
direct liability or a type of principal-agent relationship that 
would also result in absolute liability for infringements.
AI liability reimagined
By reimagining the AI system as the copyright infringer, 
courts would not only be faithful to the law but can also 
have a more nuanced discussion about who else should be 
held responsible when generative AI infringes. is achieves 
the purpose of the law by deterring foreseeable, unlawful 
conduct. e approach would punish bad actors rather than 
imposing de facto liability for the mere provision or use of 
an AI system that also has noninfringing uses. And it has the 
added benet of tting within the historical arc of copyright 
law remaining exible enough to adapt to new technologies. 
While making the AI system the direct infringer is 
appropriate under copyright doctrine, this proposal can 
have broader policy implications for thinking about legal 
liability in the AI era. AI oers tantalizing benets, but at 
the cost of control. To realize the promise of a technology 
that is valuable precisely because of its increasing autonomy, 
courts need to consider shiing away from always imposing 
strict liability on providers or users. Providers can arguably 
only do so much to prevent harmful outputs ex ante, or 
before they happen—although tools such as information 
lattice learning, which attempt to map the black box, 
could help trace why a particular output occurs. Industry 
practices, including ltering certain prompts or outputs 
and reducing the percentage of outputs that reproduces a 
particular piece of training data, are important practices 
for countering AI-generated harms. However, a provider 
cannot predict and evaluate every potential user prompt 
and output in advance. is lack of predictability is 
exacerbated by the iterative nature of machine learning. 
Shiing the focus of law to enable ex post measures, such 
as notice-and-revision, may avoid imposing unduly high 
costs on would-be market entrants while still holding 
human actors liable when they are ill-intentioned.
Such an equilibrium between absolute and nuanced 
liability may require creative lawyering as well as judging. My 
proposal for copyright law would require a novel application 
of direct liability and a renement of secondary liability. 
is allows copyright law to remain exible and adapt to AI 
and other emerging technologies, which will continue to 
evolve and strain the bounds of copyright and other areas 
of the law. It also puts intent front and center by punishing 
AI providers and users for engaging in bad-faith actions 
that facilitate infringement. Together, this strikes a balance 
between regulating and encouraging new technologies that is 
ultimately aimed at benetting society.  
 
Michael P. Goodyear is an acting assistant professor 
at New York University School of Law and a fellow at 
NYU’s Engelberg Center on Innovation Law & Policy. 
The AI system is not human, of course, but it is not unprecedented for 
the law to confer legal personhood on other nonhuman entities, 
including corporations and pet animals.


Who Is Responsible for AI Copyright Infringement?

Roiphe, Rebecca

DigitalCommons@NYLS 
Articles & Chapters Faculty Scholarship 
2024 
Cars, Bars, and the Delivery of Legal Services 
Rebecca Roiphe 
New York Law School, rebecca.roiphe@nyls.edu 
Follow this and additional works at: https://digitalcommons.nyls.edu/fac_articles_chapters 
Recommended Citation 
Roiphe, Rebecca, "Cars, Bars, and the Delivery of Legal Services" (2024). Articles & Chapters. 1746. 
https://digitalcommons.nyls.edu/fac_articles_chapters/1746 
This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has 
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more information, please contact camille.broussard@nyls.edu, farrah.nagrampa@nyls.edu. 
Legal Profession
The Journal of Things We Like (Lots)
https://legalpro.jotwell.com
Cars, Bars, and the Delivery of Legal Services
Author : Rebecca Roiphe
Date : April 11, 2024
Nora Freeman Engstrom & James Stone, Auto Clubs and the Lost Origins of the Access-to-Justice Crisis,
134 Yale L. J. __ (forthcoming 2024), availible at SSRN (March 14, 2024).
Imagine a world in which you call AAA for roadside assistance after a fender bender and you can ask to
be transferred to a lawyer to help you with your insurance claim. In their article, Auto Clubs and the Lost
Origins of the Access toJustice Crisis, Nora Freeman Engstrom and James Stone bring back a past when
this was reality and offer a vision for a future in which not only drivers but also others in need of legal
services can find a fast, effective, and inexpensive solution to their problems.
Engstrom and Stone trace the origin of the contemporary unauthorized practice of law rules to disputes
about auto clubs, staffed with lawyers, who helped members with an array of legal problems related to
cars and roads. They draw on archival material to bring the reader back to a very different legal
landscape. It is not always easy to use history in legal scholarship. If you aren't engaged in an originalist
interpretation of the Constitution or a statute, it is often not entirely clear how history can be relevant to
a contemporary legal problem. The story that Engstrom and Stone tell, however, is so clearly useful. It
helps expose the strict unauthorized practice of law rules as a contingent product of a self-interested
bar interfering with the market, not a benevolent effort to protect the public from inept lawyering. By
unearthing this dispute, Engstrom and Stone not only expose the selfish motivations behind the rules
but also help us imagine a different future. By painting such a vivid portrait of a lost era of law practice,
the authors make our contemporary approach seem less natural and inevitable, freeing the reader to
follow a more creative path to the future of the profession.
The automobile, invented in the late 1800s, transformed the social, cultural, and natural landscape of
the country. As the authors explain, cars were part of a general transformation from the rugged
individualism of an agrarian past to a more interrelated world in which individuals were forced to rely on
one another. Auto clubs emerged in the late nineteenth century amidst this shift both to lobby for better
highways and road regulations and to protect the legal rights of drivers. In addition to roadside
assistance, free maps, and travel advice, members' dues entitled drivers to legal advice. Some clubs
operated like law firms with salaried lawyers on staff. Others contracted with outside lawyers who would
help members when they encountered legal problems. The clubs provided an array of legal advice
about regulations and liability. Some defended members when they were accused of auto-related
crimes.
The auto club lawyers protected the rights of their members and the public safety of the roads more
generally. As an early example of impact litigation, auto club lawyers even used individual cases to help
secure the rights of motorists. Engstrom and Stone unearth an example in which the auto clubs helped
individuals fight tickets from speed traps, exposing a corrupt alliance between magistrates, local police,
and politicians. Auto club lawyers also did investigatory work for prosecutors and even engaged in
public prosecution of wrongdoers. Their approach to civil claims resolution was complex and often
involved informal negotiation, and arbitration. The legal work spanned personal injury cases, complaints
against mechanics, and low-dollar property damages.
Bar associations soon took notice and began to mobilize to protect lawyers from competition.
1/3
Legal Profession
The Journal of Things We Like (Lots)
https://legalpro.jotwell.com
Unauthorized practice of law rules had been around for decades, but they were largely unused until the
mid-1920s when lawyers reinvented them to protect their turf. While the definition of the "practice of
law" was contested, these rules had never been used to go after duly licensed lawyers for practicing
law. Yet, Engstrom and Stone explain how the bar refashioned the rules to prohibit lawyers who worked
for an organization that provided non-law-related services from practicing law, what we would now call
multidisciplinary practice or nonlawyer ownership of law firms. This effort on the part of the bar was a
direct response to the growing popularity of auto-clubs and other similar arrangements, like bank
lawyers writing wills for customers. The concern was not nonlawyers practicing law but rather innovative
working relationships, which we would now call multi-disciplinary practice.
In the late 1920s and early 30s, bar associations invented the idea that the obligation of lawyers to their
clients should be direct, that the involvement of or even their proximity to the delivery of legal services
could corrupt the sanctity of the bond and undermine the lawyer's . In 1930, the American Bar
Association introduced a canon stating that lawyers' work should never be controlled by a lay agency or
organization. Shortly after this, it constituted the "Committee on the Unauthorized Practice of Law,"
whose mission was, in part, to shut down auto clubs and similar organizations that provided legal
services to the public. State bars soon followed suit. The auto clubs won the battles in some lower
courts because the bars did not introduce any evidence that consumers were harmed, a fact that was
reiterated later as these cases made their way to the Supreme Court.
While the Supreme Court cases are better known and occupy pages in professional responsibility
casebooks, they take on a new light after reading the history of the battles. While the Court in the 1930s
drew on the First Amendment to protect the ability of some of these organizations to provide legal
services to their members, bar associations did not back down. They continued to push the limits of
these rulings. And as the authors point out, the auto clubs were already lost in the dustbin of history - a
potentially efficient way to provide legal services now a casualty of the bar's self-interested campaign.
Under the pressure of state court injunctions, corporations and organizations largely gave up on
providing legal services to their members. By 1938, just a decade after the bar had launched its
campaign against the auto clubs, the authors explain that it was largely accepted that corporations
cannot practice law.
Engstrom and Stone chronicle how the bar waged this war in state after state, how the successful
crusade against auto clubs was used as a roadmap to pursue banks, realty owners' associations, title
companies and other organizations. The litigation not only crippled this efficient approach to the
delivery of legal services, it resulted in the birth of the inherent powers doctrine and solidified the
control of courts over lawyer regulation. This side-effect of the bar's efforts gives a glimpse of how a
more publicly accountable form of lawyer regulation could have emerged. The possibility inspires the
reader to imagine a more accessible and affordable profession and a starkly different market for legal
services. By demonstrating how the turn to courts as primary or even sole regulator of the profession
was a chance result of the bar's self-interested effort to dismantle competition rather than an inevitable
part of the American legal system, Engstrom and Stone masterfully open up the possibility of more
creative approaches in the future.
The authors end on a familiar note - the expected last section of a law review article with lessons
learned and a path forward. But what makes this article so exceptional is that the history has truly
changed the readers mindset by the time they reach this final part. States are currently experimenting
with new ways to provide legal services, throwing away restrictive rules and reinventing the meaning of
the unauthorized practice of law. By providing the history of the auto clubs in such detail, Engstrom and
Stone have made these efforts seem not only possible but also necessary. The access-to-justice crisis is
not a natural consequence of American capitalism, it is, in fact, the opposite - a result of a desperate
and selfish bar's effort to interfere in the market with no proof that doing so serves any real public good.
2/3
Legal Profession
The Journal of Things We Like (Lots)
https://legalpro.jotwell.com
Given this understanding, state bars have the obligation to address this problem and seek to unravel
the web of restrictions that have given rise to it
Cite as: Rebecca Roiphe, Cars, Bars, and the Delivery of Legal Services, JOTWELL (April 11, 2024)
(reviewing Nora Freeman Engstrom & James Stone, Auto Clubs and the Lost Origins of the Access-to-
Justice Crisis, 134 Yale L. J. _ (forthcoming 2024), availible at SSRN (March 14, 2024)),
httnc-//lonalnrn intwpll com/ra;r--harc-andi-thP-doilivorv-of-lonal-cprvriros/
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Cars, Bars, and the Delivery of Legal Services

https://digitalcommons.nyls.edu/community_news/1067/thumbnail.jp

Sonenshein, Julia

DigitalCommons@NYLS 
NYLS Community News History & Archives 
8-22-2023 
The Art of Law at NYLS 
Julia Sonenshein 
Follow this and additional works at: https://digitalcommons.nyls.edu/community_news 
THE ART OF LAW AT NYLS
Since 1891
WE ARE NEW YORK’S LAW SCHOOL
Entering New York Law School’s 
Abbey Hall, students, faculty, and 
visitors alike are treated to the 
School’s contemporary architecture 
integrated with its original, art deco 
buildings. A walk through the lobby 
reveals soaring ceilings, expansive 
windows, and open spaces with 
room to breathe. But the campus 
is made especially unique by its art 
collection — one that spans painting, 
drawing, sculpture, printmaking, and 
so much more.
It’s a perhaps surprising choice for a law school, but a series 
of conversations with NYLS administrators, faculty members, 
students, donors, and artists reveal a natural partnership between 
the study of law and the appreciation and practice of art.
“Being a good lawyer involves helping people,” says William 
P. LaPiana, Dean of Faculty, “and to do that, you need to have 
empathy and sympathy and compassion. Every single piece of 
art on our walls directly portrays different aspects of the human 
experience and many portray New York.”
“We’re not in a gallery, but when we see them as we go about 
our days, they remind us that life is big,” he says. “I couldn’t even 
begin to quantify how different it would be to have blank walls.”
The law is, after all, an art form — one with bounds and 
constraints, but with ample room for creativity nonetheless. 
(LaPiana likens it to creating art works within the constraints of 
a style or genre — and the creativity comes in when artists and 
lawyers expertly push against limits.)
The School’s collection includes a broad array of artists working 
in a variety of mediums, including a collection of Keith Haring 
prints, a display of photographs featuring the Tuskegee Airmen, a 
lithograph by Louise Bourgeois, and paintings by Paul Jenkins and 
Katharina Grosse, among many others.
In 2011, NYLS received a donation of work by Emilio Sanchez from 
the Emilio Sanchez Foundation — Linda Sosnowitz ’73 worked 
By Julia Sonenshein  •  Published August 22, 2023
WE ARE NEW YORK’S LAW SCHOOL
with her law partner Erik Stapper, trustee of the Foundation, to 
bring Sanchez’s work to NYLS. It was a pencil drawing of the 
Manhattan Bridge by Sanchez that to her seemed ideal for the 
new NYLS building. After Stapper and the collection’s curator, Ann 
Koll, visited the campus, they decided that NYLS was a perfect 
home — not only for that piece but for all the pieces now placed 
throughout our campus. Because of the generosity and foresight 
of the Foundation, NYLS holds one of the largest and most 
important collections of Sanchez’s work in the country. Especially 
meaningful is a painting of the World Trade Center before 2001: 
“The School’s proximity to Ground Zero and its resilient recovery 
from the 9/11 events made a compelling case for the gift,” 
Sosnowitz said at the time of the donation.
Sanchez’s oeuvre is directly in line with the NYLS ethos: 
Sanchez, born in Cuba, loved New York City — particularly Lower 
Manhattan. Our pieces, which most often depict buildings or 
landmarks, are “extraordinarily meaningful,” LaPiana says. “They 
show the background in which all of our study and work and 
advocacy happens — it’s common to us all. Any one of us could 
walk through those canvases.”
Faculty and alumni pieces hang on our walls too, including pieces 
from Theodore Dwight 125th Anniversary Professor of Law, 
Emeritus, David Chang; Deborah Koncelik Held ’76; Distinguished 
Adjunct Professor of Law Lawrence Lederman; Colette T. Katz ’07; 
and Trustee Professor of Law, Emeritus, David Schoenbrod.
Each artist donated their work with a relationship to NYLS in mind. 
Lederman, whose photographs were recently published in DuPont 
Gardens of the Brandywine Valley says that “the photographs on 
the wall are a message to my students (and all the students in the 
school who know that I teach there) that the study and practice of law 
does not diminish your other intellectual skills and talents. Indeed, 
it enhances them. You can be a lawyer, a teacher, and an artist. You 
can embrace all your talents and enjoy them and, while doing so, 
contribute to the sensibility and humanity of your community.”
“How wonderful to have one of my paintings hanging on the 
walls of my alma mater, a place of empowerment,” says Deborah 
Koncelik Held ’76. “My law school experience felt like reaching 
for the heavens. Called ‘Ascending,’ the painting evokes the same 
spirit. And NYLS itself was poised for growth from a single building 
to the grand and impressive city law school it has since become. 
The energy and excitement among us first-year law students as 
we crowded into that charming historic Tribeca building’s elevators 
(operated by humans who knew our names and faces) was like an 
electric charge. We were about to arise and take possession of the 
power that knowledge of the law promised, and it was thrilling.”
The students’ academic lives are much enriched by learning 
and studying in a setting filled with art. “It was a privilege to be 
surrounded by an eclectic and important body of work,” says 
Hanoch Sheps ’13, who worked to create a catalog of the School’s 
collection. Working with the collection on the catalog “afforded 
great insight into the history the collection, shedding new light 
on the deep commitment to not only the academic success of 
NYLS’s students but also the extensive philanthropy of countless 
alumni like Arthur Abbey ’59 and Diane Abbey,” he says. Sheps 
now practices art law as counsel at Mazzola Lindstrom LLP (and 
studied for the bar exam at the Metropolitan Museum of Art), and 
Sheps sees a definite correlation between art and study.
“The themes presented in the NYLS collection cover a range of 
topics studied by the students: immigration and pursuit of the 
‘American Dream’ in Cuban-American Emilio Sanchez’s work, 
advocacy and representation on myriad issues including LGBTQI+ 
highlighted by works from Keith Haring and Louise Bourgeois, first 
amendment and constitutional rights depicted by photojournalism, 
and much more. It certainly is a different ‘issue spotting’ exercise 
than law students typically do, but I challenge every student to take in 
the art around the lecture halls, libraries, and corridors and to discern 
the deeper meaning of the art and what it represents,” Sheps says.
Current student and Art Co-Chair for the NYLS Media, 
Entertainment, and Fashion Law Association Nina Rice ’24 
agrees. “Law school can be very stressful, but taking a moment 
to appreciate the art can be both a calming and grounding 
experience. I also find that the collection encourages a sense of 
pride amongst the NYLS community and seeing the art on our 
hallways reminds me of all the students who have come before 
me and will come after me.”
Deborah Koncelik Held ’76 (right), Dean Anthony W. Crowell (left), and 
guests celebrate at the unveiling of Held’s artwork “Ascending.”
Distinguished Adjunct Professor of Law Lawrence Lederman poses with 
two prints from his nature photography series.
WE ARE NEW YORK’S LAW SCHOOL
Within the classrooms — often adorned with pieces from the 
School’s collection — students can study the actual practice of art 
law and learn what it takes to be a lawyer in the art world. NYLS 
Adjunct Professor Hartley Waltman ’88 — general counsel of the 
Americas for Phillips auction house and an artist in his own right 
— teaches the course as an overview of the multifaceted practice.
“It’s an amalgam of corporate law, insurance law, uniform, Uniform 
Commercial Code, contracts, litigation, endangered species 
law, and on and on,” he says. Lawyers in the art field will need 
a particularly expansive toolkit. Professor Waltman teaches each 
discretely, and he doesn’t shy away from philosophical questions 
about the practice. “What does the law do?” he asks his students. 
It may be initially about protecting artists, but what about dealers? 
Galleries? Agents? Auction houses? Collectors?
What are the ethical issues they might face, like issues of 
repatriation? Or endangered species law? Professor Waltman 
takes students through real-world cases to determine how best to 
approach these thorny issues.
Professor Waltman is also keen to introduce students to the 
unique and vital world in which they’ll be working should they 
choose to pursue art. “I love the people in the art world, because 
they are all such individuals,” Waltman says.
“They might have a fascination with porcelain, but not just any 
porcelain. It might be Chinese export porcelain or 19th-century 
French porcelain. They are so specific, and they love it. They love 
seeing beautiful things.” It’s an opportunity to be surrounded by 
creativity and new ways of thinking.
“The people are fascinating, and objects are just brilliant to look at 
every day, and the issues every day are different.”
The newest addition to the NYLS collection is a set of four 
sculptures depicting goddesses by Colette T. Katz ’07. They can 
be interpreted as a nod to our student body, which represents 
women at a rate higher than most law schools, says Associate 
Dean and Vice President for Institutional Advancement, and Chief 
Development Officer Jeff Becherer.
“Growing our collection has been somewhat organic,” Becherer 
says, with gifts, commissions, and estates. It’s a representation of 
the variety of people who have traveled through the School’s halls 
and sat in its classrooms who generously give something to the 
next generation of NYLS students.
“New York Law School is located in the most significant cultural 
center of the world, and our collection allows the Law School to 
participate actively in that culture. Further, the collection’s diversity, 
much like our student body, is vast and embodies all aspects of 
New York.”
“Much like law, art is a reflection of community values, ideas, and 
aspirations,” says Dean and President Anthony W. Crowell. “NYLS’s 
extraordinary collection aims to inspire our students, faculty, and 
graduates to be agents of change using our city as a canvas on which 
to create and achieve their visions for a better and more just world.”
From left to right: Nyasha Foy ’12, Aimee Scillieri ’04, and Alexander 
Stark ’14
NYLS Alumni Represent Sotheby’s
Sotheby’s is one of the world’s largest brokers of art, jewelry, 
and collectibles. The multinational organization has outposts 
in 40 countries, and today, Sotheby’s is known for dealing in 
the highest echelon of the art world. NYLS alumni — Nyasha 
Foy ’12, Rebecca Lockwood ’11, Aimee Scillieri ’04, and 
Alexander Stark ’14  — represent a broad swath of posts at 
Sotheby’s, and we spoke to them about learning at NYLS and 
advice for students.
Alexander Stark ’14, Vice President, Associate General 
Counsel, Sotheby’s
“I was able to take Art Law while I was at NYLS, and that course 
sparked an interest in the subject. I discovered that “art law” 
encompasses several legal fields I was interested in — like 
contracts and intellectual property — and coupled these fields 
with a tangible subject matter. This stuck with me throughout my 
career at a law firm, and when a position at Sotheby’s became 
open, I knew that it would be a great opportunity for me.
My advice to law students is to begin building a professional 
network as early as you’re able. Building a strong professional 
network can be challenging given the demands of being a law 
student, but it is important to set aside the time to do so. Meet 
students and lawyers, attend law-related events, and learn from 
the professionals that you surround yourself with.”
Nyasha Foy ’12, Vice President, Assistant General Counsel, 
NFTs, Sotheby’s
“As an in-house transactional lawyer, the most helpful parts of 
law school were the practical and skills-based classes that I took 
at NYLS, such as IP Licensing and Drafting, and Negotiation, 
Counseling and Interviewing, as well as participating as a student 
leader to host industry-related events. While the substantive 
classes are absolutely essential, the skills-based courses and 
experiences offered me the opportunity to apply and discuss 
my substantive knowledge in real world settings — not only to 
think like a lawyer, but to start the process of actually becoming 
a lawyer, too. I have spent most of my career in-house, and 
my success is in part because I had already gone through the 
exercises to develop my skills to be a trusted legal partner for my 
business clients as a student at NYLS.
My advice to students is to map out your law school legal career 
by drafting a mock résumé. During the first semester of my 1L 
year, I drafted a 3L version of my résumé: how I wanted my 
résumé to look by the time I graduated. This roadmap helped me 
to focus on my “north star” and the types of opportunities that I 
wanted to pursue as a student.”
Find more NYLS stories at news.nyls.edu.
WE ARE NEW YORK’S LAW SCHOOL
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The Art of Law at NYLS

https://digitalcommons.nyls.edu/community_news/1065/thumbnail.jp

DigitalCommons@NYLS 
NYLS Community News History & Archives 
1-31-2024 
Alumni Spotlight: Andrew C. Kassner '83 
Julia Sonenshein 
Follow this and additional works at: https://digitalcommons.nyls.edu/community_news 
Since 1891
WE ARE NEW YORK’S LAW SCHOOL
Alumni Spotlight:
Andrew C. Kassner ’83
 Julia Sonenshein  •  Published January 31, 2024
Our Alumni Spotlight Series highlights some of the most exciting, ambitious, and successful 
members of our alumni community — NYLS graduates who are making real differences in New York 
City and beyond.
In our first installment of 2024, we caught up with Andrew C. Kassner ’83, whose 40-year career in 
bankruptcy law and firm management included one of the largest law firm mergers in American history.
“If you asked me to do physics, that would 
have been a problem.”
Kassner didn’t come from a long line of lawyers — his father was 
the first lawyer in the family. But his “intelligent, hard-driving” father 
gave him a look into life as a lawyer, and Kassner had a set of skills 
and passions that fit right in. He always enjoyed reading and writing 
and was a strong and skilled communicator. Critical thinking and 
problem-solving were necessary challenges for his brain, too. They 
came easily to him, he says. “If you asked me to do physics, that 
would’ve been a problem,” he says, with a laugh. “My oldest son is 
a physicist, and I have no idea where he got that from.”
Besides those skills and interests, so much of what drove Kassner 
— which continues today — is a voracious curiosity. In college, 
Kassner worked part-time in a storied Philadelphia law firm’s 
library, which allowed Kassner time to follow his curiosity. “I was 
supposed to insert update pamphlets into the case books, but 
often I would sit in the library and just read the cases. I might not 
have fully understood it then, but I read them anyway. They’d tell 
you the facts and review the law. They’d tell you the decision.” It 
was early exposure to the path he would eventually take.
Different campus, same quality instruction.
When Kassner arrived at New York Law School from the University 
of Pennsylvania in the early 80s, it was a different place than it 
is today. “It was heavily weighted with night students,” he says, 
and like today, many students already had first careers before 
pursuing their law degrees. The School’s footprint was much 
smaller though, and the neighborhood was different too. Kassner 
remembers a long-ago shuttered run-down bar around the corner 
where his friends hosted his surprise bachelor party in 1983.
Kassner remembers the exceptional caliber of the professors and 
how much students benefited from their instructors’ outside-the-
classroom practices, like Kassner’s entertainment law professor 
who represented Blondie, ACDC, and other rock bands in the 
1980s. “I had great teachers,” he says. “Many had a lot of real-
world practice experience, and they were quality law professors.”
“I learned how to get on my feet. I learned 
how to be in front of judges. I learned how to 
be pragmatic.”
Instead of following the traditional path of many of his peers and 
joining a big law firm, Kassner clerked at a smaller firm where 
the partners afforded him tremendous responsibility. It was there 
that he first explored what would become his niche: bankruptcy 
law, now known as restructuring, which at the time was not the 
popular field it is today. He was offered an associate job while still 
working part-time as a student.
Looking back, Kassner sees a critical element of that first job that 
he carried with him over his career: the necessity of investing in 
talent development. It’s a massive challenge for law firms today, 
he says. At big law firms today, associates struggle to get the real 
hands-on experience that Kassner had at that smaller firm, where 
his team was just him and a partner. Once he was admitted to the 
bar, Kassner was handling hearings — usually more than one — in 
State and Federal District Court almost every day. “I learned how 
to get on my feet. I learned how to be in front of judges. I learned 
how to interact with clients and how to be pragmatic,” he says. 
Critically, Kassner had mentorship and sponsorship — a too-often 
overlooked keystone of talent development.
WE ARE NEW YORK’S LAW SCHOOL
“There’s nothing better than winning when 
you’re part of a team”
After relocating to Philadelphia, one day, a man named Joe 
Dworetzky asked Kassner to join him after a lunch at a sushi 
bar. Dworetzky was a top bankruptcy lawyer in Philadelphia and 
headed the bankruptcy practice at Drinker Biddle & Reath, one of 
the old-line top Philadelphia firms. He made Kassner an offer to 
join the firm and work alongside him. Kassner accepted.
Dworetzky was a “brilliant lawyer, who put incredible effort into 
his practice and enjoyed the law,” and he offered Kassner critical 
mentorship — a value Kassner took with him over his career. 
Today, being called a person’s mentor and sponsor is “the biggest 
compliment I can get,” he says. Dworetzky and Kassner would talk 
strategy and the law, and then Dworetzky would send Kassner 
off to handle the matter. The responsibility and trust gave Kassner 
exceptional experience and confidence. “He also had my back 
when things were tough, and sometimes they were.”
“I believe that although today law firms spend massive resources 
on formal training programs and development, back in my time as 
an associate the way to become an excellent lawyer was to learn 
from an excellent lawyer,” he says, and that mentorship still makes 
the difference today between being a legal technician and being a 
truly stellar lawyer.
Being part of Dworetzky’s team also brought him satisfaction and 
fulfillment in his new role. “There are a lot of lawyers out there 
who practice as silos. They hold all their work close to them; 
they want to make sure they have the origination credits and are 
the sole contact with clients,” he says. “And let’s face it. I love 
winning. Winning is fun. But there’s nothing better than winning 
when you’re part of a team. When you win as part of a team, it 
just lifts everyone up.” That applies to the practice of law, but it 
also applies to management of an organization.
“You have to keep changing to stay the same.”
In 1993, when Kassner was a second-year partner, he was asked 
to step into a new role: replacing Dworetzky, who left the firm 
to become Philadelphia’s city solicitor under Mayor Ed Rendell, 
as the head of the firm’s bankruptcy practice. It was his first 
experience with firm management, which would become a major 
part of his career with the passage of time.
As a manager, Kassner realized that one needs to lead by 
example, develop teams and talent, and focus on collaboration 
while also delegating responsibility to team members. He also 
became responsible for a concerted effort of talent acquisition and 
understanding what potential applicants want in the workplace 
and their careers. “People want to be at a firm that they feel proud 
of, where they do really good work, and they feel like they’re being 
valued and part of a team,” he says.
Kassner became active in the firm’s recruitment efforts. He was 
named the firmwide hiring committee chair, and he introduced 
major changes to the structure and process of the firm’s hiring 
system. These changes were necessary for the firm to evolve with 
changing times to maintain its status of getting excellent talent 
and being a top tier firm: “You have to keep changing to stay the 
same,” he says.
“It’s a talent business.”
By 2005, Kassner had been at the firm for almost 20 years 
and was on the firm’s board, the firm’s partner compensation 
committee, and was still the head of his practice group. The firm 
was in the process of selecting a new leader when Kassner 
received a call from Alfy Putnam, who proposed they lead the firm 
together with Putnam as Chair and Kassner as Executive Partner. 
In that role, Kassner oversaw the firm’s business operations and 
lead the firm’s strategic planning committee in developing the 
firm’s updated strategic plan that would take Drinker Biddle from 
being a regional firm to a national firm.
“My vision was pretty simple. Philadelphia is an amazing city, 
but law is a talent business. And if you want top investment 
management lawyers, you need to go to New York, Chicago, 
and Washington, where many of them are located, in large legal 
markets. And a national litigation practice requires a real presence 
in California.” So, the firm put in place a strategic growth plan, 
and Kassner and his colleagues expanded the firm’s footprint into 
markets where clients required support and talent was located, 
doing mergers with other firms and acquiring groups. By 2015, the 
firm was 550 lawyers strong, with offices in Chicago, Dallas, Los 
Angeles, New York, Philadelphia, Washington, and elsewhere. And 
when Putnam’s term was up in 2015, Kassner stepped into the 
role as Chair.
Left to right: Andrew C. Kassner ’83; Susan Hinkson ‘98, LL.M. ‘12; and Dean 
Anthony W. Crowell
Andrew C. Kassner ’83 speaking at the New York Law School Dean’s 
Leadership Council Retreat.
WE ARE NEW YORK’S LAW SCHOOL
Find more NYLS stories at news.nyls.edu.
“Lawyers vote with their feet.”
With the firm now operating as a national firm, Kassner started to 
consider further growth, and  opportunities for a bigger expansion, 
which ultimately ended up involving one of the industry’s largest 
law firm mergers. The merger involved two similarly sized venerable 
AmLaw100 firms, both organized with 13 practice groups, the four 
biggest of which were the same in both firms. The geographies 
were compatible too, and with the firms’ combined footprint, they 
were poised to become a AmLaw50 firm.
Of greater importance, the cultures between the firms were also 
a fit: Both focused on relationships and collaboration, which was 
critical. “The business case was compelling, but if people didn’t 
really get along and didn’t believe in it, it would be a mess,” he says.
The merger was a “very heavy lift,” he says, and joining two 
firms with over 500 lawyers apiece into one firm with over 1,200 
professionals and 2,500 people across 20 offices and three countries 
took two full years to hammer out, led by Kassner and Tom Froehle, 
his Faegre Baker Daniels counterpart, and teams from both firms.
The new firm became Faegre Drinker Biddle & Reath on February 
1, 2020, and unbeknownst to them at the time, the leadership 
had to integrate two large law firms into one during the pandemic. 
But four years later, “I’m really proud that the merger has been 
a success,” he says. “Lawyers vote with their feet, and we’re 
getting access to even better talent, which is what I wanted. The 
firm is now poised for the next stage of growth.”
“This merger was not the end, it was the 
beginning.”
“One of the hardest things for a law firm to do is move to the next 
generation and succession,” Kassner says, and after over 18 years 
in management, Kassner and Froehle decided that it was time to 
step back. In April 2023, Kassner took the role of Chair Emeritus 
and Gina M. Kastel became the firm’s Chair.
“Emeritus means you are available to help when asked,” Kassner 
says, and he now focuses on the restructuring sector, the 
relationships he’s spent decades developing, and his particular 
area of interest: growth. “This merger was not the end, it was the 
beginning,” he says. He sees a field full of competition — both 
with Gen Z’s different needs and expectations, the changing 
landscape of the American workforce, and the evolving needs of 
clients. Now, firms are tasked with answering the same questions 
in a different world: How are you going to acquire and develop 
talent? How are you going to make partners feel attached? “One 
of my biggest sayings is I don’t just want to be a hotel for lawyers. 
I want to be in a partnership. It’s about the people in every way.”


Alumni Spotlight: Andrew C. Kassner \u2783

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Law School, New York

DigitalCommons@NYLS 
NYLS Community News History & Archives 
1-29-2024 
Our Journey to the Birthplace of the Environmental Justice 
Movement 
New York Law School 
Follow this and additional works at: https://digitalcommons.nyls.edu/community_news 
Since 1891
WE ARE NEW YORK’S LAW SCHOOL
As part of our work as student advocates in New York Law 
School’s (NYLS) Civil Rights and Disability Justice Clinic, we 
represent community groups challenging the construction and 
operation of a fracked gas pipeline, known to residents as the 
“North Brooklyn Pipeline,” through Brooklyn neighborhoods that 
are disproportionately made up of people of color. In August 
2021, students in the clinic, along with our co-counsel at the 
National Center for Law and Economic Justice, filed a federal 
administrative complaint against the New York State Department 
of Environmental Conservation and the New York State 
Department of Public Service under Title VI of the Civil Rights 
Act of 1964 alleging that the construction and operation of the 
pipeline, which was built without the community’s knowledge 
or environmental review, was racially discriminatory and violates 
various New York state and local environmental laws. The U.S. 
Environmental Protection Agency (EPA) and the U.S. Department 
of Transportation (DOT) accepted the complaint for investigation.
Our work in the clinic this year builds on the work of our clients 
and previous clinic students as the EPA and DOT continue 
their investigation of our complaint. As part of our ongoing 
environmental justice work, it’s important that we study the 
history and key legal cases of the movement in the United States, 
which is why, in our seminar, we read about the people of Warren 
County, North Carolina’s opposition to and ultimately successful 
campaign for the cleanup of a toxic landfill in what came to be 
known as the birthplace of the environmental justice movement. 
So, it was especially exciting for us when we had the opportunity 
to travel with the clinic’s director, Professor Britney Wilson, to 
Durham, North Carolina for the Summit on Climate, Environmental 
Justice, Racism, and the Law in November 2023.
Attending the summit was a great and informative experience. The 
summit gathered community advocates and lawyers from nonprofit 
organizations across the country who are battling environmental 
justice issues in their own areas. The purpose was to share our 
experiences and provide tips, resources, and any advice.
We attended panel discussions about different aspects of 
environmental justice. Brianna attended an inspiring panel on the 
role of the law and the courts that stressed the importance of not 
losing hope even when decisions may not go the way we want. 
Rebecca learned about other issues in the environmental justice 
space and additional areas where impact litigation can make a 
difference. Ashley delved deeper into current issues relating to 
energy distribution at a panel about how that can affect minority 
communities and the environment.
Thoughts on the Summit Experience
Rebecca Bliss ’25
The Summit allowed us to take our casework into the advocacy 
space and discuss and hear from other advocates working on 
similar cases or with more experience navigating impact litigation. 
The experience of discussing our cases with other advocacy 
groups and issue-centered advocates allowed us to step outside 
of the day-to-day tasks of casework and classwork and see the 
more significant role that the law plays in grassroots advocacy. 
It was interesting to hear advocacy groups speak about their 
successes and failures in their grassroots mobilization. It helped 
to inform my perspective on our clients and their next steps. The 
summit also provided a test to our understanding of our casework. 
Throughout the weekend, individuals would ask us about our 
cases and the laws at issue, and it allowed me to test my 
understanding in explaining it to others outside of the legal team.
Ashley Finney-Wortman ’25
I thought it was interesting as a law student to listen in a space 
where most of the audience had specialties in activism or 
environmental causes and try to understand some of the solutions 
they were seeking. It was interesting to compare our case with 
other environmental issues some of the people at the summit 
are going through and even to speak and have people ask me 
questions. I also appreciated being able to have open conversations 
about race and the environment in a safe space. I went into this 
summit with a broad knowledge of what environmental justice law 
was, and I came out of it with a better understanding of it and how 
some activists and lawyers will try to fight it.
Our Journey to the Birthplace 
of the Environmental Justice 
Movement
Rebecca Bliss ’25, Ashley Finney-Wortman ’25, and Brianna 
Kuriakose ’24  •  Published January 29, 2024Left to right: Rebecca Bliss ’25, Ashley Finney-Wortman ’25, and Brianna Kuriakose ’24
  
WE ARE NEW YORK’S LAW SCHOOL
Brianna Kuriakose ’24
Meeting different people who are passionate about their own 
projects from all over the country invigorated me in my work 
for the pipeline case. The people we met reminded me of the 
community advocates we have been working with who are 
incredibly passionate about their communities and the harm that 
is befalling them. I think the summit was a great collaborative 
space. It felt like the people there had a sigh of relief because it no 
longer felt like they were alone in these battles. My main takeaway 
from the conference is that there is strength in numbers. We see 
a lot of groups dealing with similar issues regarding marginalized 
communities bearing the brunt of environmental atrocities, and 
I think that if we mobilize together and combine our efforts it 
will draw more attention across the board. I think this real-world 
experience was a great way for us to understand that this kind of 
work is not easy and that it takes time, patience, and resilience.
Overall, the three of us thoroughly enjoyed the summit in North 
Carolina. We met great people, learned a lot, and even bonded 
with our classmates over fried green tomatoes and hushpuppies. 
We plan to use what we’ve learned as we continue our work in 
the clinic.
Find more NYLS stories at news.nyls.edu.
Experiential Learning at New York Law School’s Plumeri 
Center 
Experiential learning is an integral part of the NYLS education. 
The Plumeri Center is NYLS’s home for experiential learning, 
and the Center houses our many clinics, including the Asylum 
Clinic. Through our top-tier programs, we offer students the 
opportunity to turn theory into practice: Starting in their first 
year, students participate in counseling, interviewing, and 
negotiating exercises in their foundational Legal Practice 
course. During their upper-level years, students may select 
from a wide array of experiential learning courses to hone 
their lawyering skills. Together with a comprehensive legal 
education, these experiential offerings prepare our students 
for careers in advocacy.


Our Journey to the Birthplace of the Environmental Justice Movement

Wice, Jeffrey M.

DigitalCommons@NYLS 
Redistricting Roundtable Updates NY Census and Redistricting Institute 
9-16-2024 
September 16 Elections, Census & Redistricting Update 
Jeffrey M. Wice 
Follow this and additional works at: https://digitalcommons.nyls.edu/redistricting_roundtable_updates 
 
 
 
 
 
N.Y. ELECTIONS, CENSUS & REDISTRICTING UPDATE 
 
N.Y. VOTING RIGHTS ACT LITIGATION 
 
Orange County: Clarke et al. v. Town of Newburgh 
 
In January, three Black and three Hispanic residents of Newburgh filed this lawsuit, 
claiming the town’s at-large election system for Town Board elections has prevented 
Black and Hispanic residents from electing candidates of their choice, thus violating 
the N.Y. Voting Rights Act.  
 
On September 9, the court released an order that granted Samuel Davis admission 
pro hac vice to represent the plaintiffs. The court also signed a stipulation and order 
for the production and exchange of confidential information. The parties agreed upon 
the terms in the stipulation and order before filing with the court on September 6.  
 
On September 10, counsel for the plaintiffs served the defendants with the Note of 
Issue and Certificate of Readiness (for trial). The plaintiffs request declaratory relief 
and claim special preference under Election Law § 216, which makes the lawsuit 
subject to expedited pretrial and trial proceedings and automatic calendar preference 
as a result. 
 
On September 13, a letter/correspondence with the judge was filed. Counsel for the 
plaintiffs (Abrams Fensterman, LLP and the Harvard Law School Election Law Clinic) 
requested that the recently scheduled trial date of November 1, 2024, be moved to 
November 12, 2024. Counsel for the plaintiffs cited obligations arising from 
November 5, or Election Day. Counsel stated that they expect to “still be able to 
complete the trial by November 22.” The defendants took no position on this request. 
 
On September 13, a letter/correspondence with the court was also filed. Judge 
Vazquez-Doles denied this request from the plaintiffs’ counsel. The trial will continue 
as previously scheduled on November 1, 2024. 
 
Westchester County: Serratto et al. v. Town of Mount Pleasant 
 
This lawsuit was filed in January by the Mount Pleasant Hispanic community. The 
suit asserts that the Town’s use of an at-large method of election, where all voters 
elect the Town Supervisor and all four Town Board members, led to racially polarized 
voting and prevented Hispanic voters from electing the candidate of their choice.  
 
On September 12, the Town filed a memorandum of law in opposition to the 
plaintiffs’ motion for summary judgment. This memo was accompanied by a 
response and counterstatement to the plaintiffs’ statement of material facts, an 
affirmation in support of the defendants’ memorandum, and exhibits 1 through 3.  
 
 
 
The Town’s memorandum first alleges that the NYVRA is unconstitutional because it 
lacks “judicially manageable” standards and violates the federal and state Equal 
Protection Clauses.  
 
The memorandum then focuses on three main arguments as to why the plaintiffs 
cannot show a right to summary judgment under the NYVRA: (1) The plaintiffs have 
not shown polarized voting in the town as a matter of law; (2) The plaintiffs cannot 
prove an “alternative benchmark election process” would likely allow Hispanic voters 
to elect the candidate of their choice better than the current at-large system; and (3) 
The plaintiffs fail to produce sufficient evidence that Hispanic voters in Mount 
Pleasant lack the ability to elect candidates of their choice under the totality of the 
circumstances.  
 
For the third argument, the defendants include eleven sub-arguments which allege 
the types of evidence that the plaintiffs lack. The memo argues there is no evidence 
of: (1) Discrimination against Hispanic residents; (2) Hispanic-candidate losses in 
Town elections; (3) Any procedures that enhance alleged dilution; (4) Lack of access 
to the ballot for Town Board; (5) Disparities in campaign contributions; (6) Hispanics 
voting at lower rates than whites in all elections; (7) Alleged socioeconomic 
disparities being caused by any Town policy or impacting Hispanic electoral 
opportunity;  (8) Hispanic residents being disadvantaged in other ways; (9) Racial 
appeals in political campaigns; or (10) Lack of responsiveness by the Town. The 
eleventh and final sub-argument states that Mount Pleasant’s “legitimate reasons for 
an at-large system,” which has “existed for as long as anyone can remember.”  
 
On September 12, the plaintiffs also filed a memorandum of law in opposition to the 
defendants’ motion for summary judgment. This memo sets forth seven arguments in 
response: (1) The plaintiffs argue that the NYVRA is a straightforward VRA that sets 
forth “familiar elements” to prove liability for vote dilution claims, including a 
“comprehensible” framework with “two well-defined claims” and “two recognizable 
elements.” 
 
The plaintiffs also argue that: (2) The NYVRA does not violate the state or federal 
Equal Protection Clauses; (3) The defendants are barred from challenging the 
constitutionality of the NYVRA; (4) The case is not moot because the defendants’ 
argument regarding a change to even-year elections is wrong; (5) The plaintiffs have 
standing to allege vote dilution; (6) There is “extensive evidence” of racially polarized 
voting, such as reports from experts that were hired by the Town; and (7) There is 
“ample evidence” that the electoral influence of Hispanic voters is impaired under the 
totality of the circumstances. 
 
On September 12, a letter/correspondence to the judge was filed. The ACLU of 
Southern California, ACLU of Northern California, and Campaign Legal Center 
submitted an Amici Curiae brief in opposition to the defendants’ motion for summary 
judgment, arguing that the NYVRA incorporates key provisions from other state 
VRAs and that the NYVRA does not violate the U.S. Constitution for numerous 
reasons.  
 
 
 
On September 12, as part of the same motion, the plaintiffs filed a response to the 
defendants’ “statement of allegedly undisputed material facts” and an affirmation in 
opposition to the defendants’ motion for summary judgment.  
 
ELECTIONS 
 
Federal Court Rejects RFK, Jr. Presidential Appeal  
 
The Southern District Federal District Court rejected a motion to stop or enjoin the 
New York State Board of Elections to keep Robert F. Kennedy, Jr.  on the New York 
presidential ballot because Kennedy’s supports could not demonstrate any likely 
constitutional injury. The case is Team Kennedy v. Berger et al. 
 
On May 21, 2024, Kennedy supporters filed this action challenging New York 
Election Law provisions governing the time and manner for collecting signatures to 
secure the nomination and access to the November ballot under the First and 
Fourteenth Amendments. On May 31 and June 10, Voter-Objectors filed petitions in 
two separate state actions to invalidate Kennedy’s nominating petition based on 
deficiencies in the Kennedy’s residency and signature requirements, mainly because 
Kennedy listed his place of residence in Katonah, New York when he only owned 
real property in California and Massachusetts. After a state court granted the petition 
that was later upheld on appeal, the Kennedy supporters then filed an emergency 
request for a preliminary injunction on August 22, asking the federal Southern District 
to prohibit the State Board of Elections from enforcing the state court’s decision and 
to order the election board to keep Kennedy on the ballot. 
 
In an opinion by Judge Andrew L. Carter, Jr., the Southern District ultimately denied 
the Kennedy supporters request because they could. Not demonstrate a likelihood of 
success on a constitutional injury. The court applies the “Anderson-
Burdick” framework test when evaluating a constitutional challenge to state election 
laws.  Under this standard, the court looks to the severity of restrictions on the First 
and Fourteenth Amendment rights and then weighs the burdens imposed on the 
plaintiff against the State’s interests.  
 
Here, the court held that strict scrutiny did not apply because the burden against 
constitutional rights is minimal and nondiscriminatory, meaning that the court is 
giving more deference to the state’s interests as sufficient to justify the restrictions 
imposed by the ballot requirements. The court also held that the residence 
requirement is not a severe burden that falls unequally on independent candidates, 
as “listing [the] correct information about a candidate’s actual residence is far from a 
severe burden that would be constitutionally impermissible.” Additionally, the 
residence requirement applies to all candidates, not just independent candidates, 
showing that it is nondiscriminatory. The state also has a vested interest in 
preventing voter confusion and misinformation, which is a valid state interest to 
justify the residency requirement. While many voters wanted to see Kennedy’s name 
on the ballot, their interest does not outweigh the state’s interest in maintaining the 
integrity of the democratic system and preventing voter misinformation. Because the 
Kennedy supporters failed to demonstrate a likelihood of success on the merits of 
their constitutional claims, the emergency request for preliminary injunction was 
denied. 
 
 
CENSUS 
 
New York State May Include Middle Eastern and North African 
Category in State Databases 
 
While the Biden Administration has approved a proposal for a new census response 
option for "Middle Eastern or North African" identity and a "new Hispanic or Latino" 
option that appears under a reformatted question asking: "What is your race and/or 
ethnicity? New York State is going a step further. New York legislators have passed 
legislation (S.6584C/A9219B) recognizing the Middle Eastern and North African 
community by having the state disaggregate the Middle Eastern or North African 
populations from the White populations when collecting demographic data regarding 
the ancestry or ethnic origin of New York residents. 
 
The MENA category include a variety of Arabic speaking, ethnic, and transnational 
groups including Egyptians, Jordanians, Iranians, and Kurdish. Currently, individuals 
who are of Middle Eastern or North African descent identify in the census as “white”, 
despite many not identifying themselves that way. Many members of the community 
claim there is a lack of representation due to this misidentification. For example, one 
member of the community mentioned how all of his census forms and children’s 
university applications had no category that reflected his cultural identity. Due to the 
lack of data on Middle Eastern and North African Communities, they have exhibited 
higher rates of language needs, housing security, poverty, domestic abuse, and 
health disparities. MENA individuals cannot access support such as language 
assistance and small business loans due to being categorized as “white.”  
 
Groups that provide services or aid to MENA communities cannot adequately assist 
the community due to the lack of data. For example, the Census Bureau estimates 
280,000 New Yorkers are of MENA descent, but other studies show it is close to 
500,000. If the. bill becomes law, many of these issues in the community can be 
remedied. Middle Eastern and North African groups that have been the victims of 
oppression and have not been viewed nor reaped the benefits for being “white” can 
qualify for many minority programs that would benefit them. MENA individuals can 
also advocate to be a protected class and there will be more accurate information in 
how policies and civil rights laws impact members of the community. A MENA 
category can also help address health disparities in the community.  
 
During the COVID-19 pandemic, Arab Americans were disproportionately impacted, 
due to risk factors such as heart disease and diabetes. Knowing this crucial data in 
advance would allow a sufficient allocation of health resources if they had their own 
category. 
 
The inclusion of a Middle Eastern and North African (MENA) category in the census 
is important for the accurate representation of a diverse community that has long 
been misidentified and underserved. By officially recognizing MENA residents as a 
distinct group, policymakers and organizations can address the specific needs of 
these communities, from health disparities to economic support. As New York leads 
the way in this initiative, it can set a precedent for how states can act when federal 
action is uncertain. Ultimately, proper data collection will empower MENA 
 
 
communities, giving them the tools and representation needed to access minority 
programs, advocate for civil rights, and ensure their voices are heard on both local 
and national levels. Governor Kathy Hochul has until December 31 approve the 
legislation. 
 
AROUND THE NATION  
 
Robert F. Kennedy, Jr. to be Removed from North Carolina 
Ballots 
 
The North Carolina Supreme Court has ruled that Robert F. Kennedy, Jr. can have 
his name removed from election ballots in North Carolina, and has also denied an 
appeal from the North Carolina Board of Elections that would have kept Kennedy on 
the ballot. 
 
As stated by the Court in its 4-3 ruling, “it could disenfranchise countless voters who 
mistakenly believe that plaintiff remains a candidate for office” if Kennedy stayed on 
the ballot. However, the Court recognized that printing new ballots will “require 
considerable time and effort by our election officials and significant expense to the 
State.”  
 
The Washington Post reported that local election officials in North Carolina are 
estimating that the preparation of new ballots (without Kennedy’s name) will delay 
the process of mailing out ballots by at least two weeks and cost county offices more 
than $1 million total. 
 
Last month, Kennedy suspended his presidential campaign and endorsed Donald 
Trump. He then requested for his name to be withdrawn from the ballots in ten 
battleground states. Kennedy had stated that he did not want votes for him to swing 
the election in battleground states toward Vice President Kamala Harris. 
 
The North Carolina Board of Elections appealed the State Court of Appeals’ decision 
to the Supreme Court after the court ordered the BOE to reprint mail ballots without 
Kennedy’s name. The BOE argued that Kennedy had not attempted to remove his 
name from the ballots in all states, which “mitigated his right to do so” in North 
Carolina. 
 
Twenty-seven counties had already begun printing ballots and virtually all others had 
finalized proofs when Kennedy suspended his campaign. Three days later, when 
Kennedy’s campaign contacted the North Carolina Board of Elections, more than fifty 
percent of all counties had begun printing ballots.  
 
In a similar case in Michigan, the Michigan Supreme Court ruled against Kennedy’s 
request to remove his name from the ballots. In Michigan, Harris leads Trump by one 
point. In North Carolina, Trump leads Harris by less than one point.  
 
Thank you to the Washington Post for this detailed article. 
 
 
 
ARKANSAS: A federal court has dismissed a 2022 lawsuit that challenged 
Arkansas’s congressional maps. After the 2020 Census, the maps were redrawn by 
a state panel to split Pulaski County, the most populous county in the state, between 
three congressional districts (out of four total). The plaintiffs—six Black Arkansas 
residents, including a state senator and state representative—argued that the new 
congressional maps diluted Black power in Pulaski County. 
 
In June, the U.S. Supreme Court reversed a federal three-judge panel’s prior 
dismissal of this case and returned it to the panel again, but with new instructions. 
The panel instructed the judges to apply a test from Alexander v. South Carolina 
State Conference of the NAACP to determine whether apparent racial 
gerrymandering violated the U.S. Constitution. This new test imposed a higher bar 
for the plaintiffs than the prior one, which the plaintiffs had already failed to clear.  
 
Under the new test, written by Justice Samuel Alito, it is now insufficient to show “a 
plausible inference that race was the ‘predominant factor’ behind the adoption of” a 
new congressional map. Instead, a plaintiff bringing a claim now “must show that the 
State’s redistricting plan ‘has the purpose and effect’ of diluting the minority vote.”  
 
The plaintiffs in this case failed to meet this higher bar, and a federal court has now 
dismissed this 2022 legal challenge for a second time.  
 
FLORIDA: The Florida Supreme Court heard arguments about the constitutionality 
of a congressional redistricting plan that Governor DeSantis pushed through the 
Legislature in 2022. DeSantis had vetoed the congressional map passed by the 
Legislature, which included two alternatives for the disputed district (District 5).  
 
The Black voters, once in one district, are now spread throughout four majority-white 
districts. White Republicans won all North Florida congressional districts in 2022 
after the redistricting plan went into effect.  
 
The plaintiffs alleged that the plan violated a 2010 Florida constitutional amendment 
that prohibited drawing districts that would diminish the ability of minorities to elect 
representatives of their choice. They argue the plan also violated a Florida Supreme 
Court precedent about how to apply the “non-diminishment” provision in the 
constitutional amendment. 
 
In March, a federal 3-judge panel concluded the plaintiffs had not proven that the 
Legislature “acted with race as a motivating factor.” The plaintiffs had alleged in 
federal court that the 2022 map violated the 14th and 15th Amendments because of 
intentional race discrimination. The plaintiffs then brought this case in the Florida 
Supreme Court for violating a Florida constitutional amendment.  
 
The disputed plan will be used in the November 2024 elections. The Supreme Court 
generally takes months to rule in cases after hearing arguments. 
 
UTAH: A Utah judge has ordered the state to void a proposed amendment that was 
set to appear on the November ballot. The amendment would have allowed the 
Legislature to repeal or alter voter-approved ballot initiatives.  
 
 
 
This ruling is a result of a lawsuit filed by voters and voting rights groups, which 
argued that the ballot measure’s language was “unconstitutionally misleading” and 
that the Legislature failed to provide proper notice of the proposed amendment’s 
publication. The plaintiffs argued that the Legislature used “deceptive” ballot 
language to describe the proposed amendment as one that would “clarify” and 
“strengthen” citizens’ rights to enact initiatives, which is not true.  
 
As stated by the judge in Thursday’s ruling, the Legislature “has the duty and the 
obligation to accurately communicate the ‘subject matter’ of the proposed 
amendment to voters and to publish the text of the amendment in a newspaper in 
each county two months before the election. It has failed to do both.” 
 
The amendment will remain on the ballot to ensure Utah can meet its election 
deadlines, but it will now be considered “void” and will be “given no effect.” 
 
 
The N.Y. Elections, Census & Redistricting Institute is supported by grants 
from the New York Community Trust, New York Census Equity Fund, the 
Alfred P. Sloan Foundation, and the New York City Council. This report was 
prepared by Jeff Wice with Ahmed Hussein, Jordan Karpoff & Alexis Marking. 


September 16 Elections, Census & Redistricting Update

February 8, 2024
Randall Kennedy, Michael R. Klein Professor of Law at Harvard Law School and former judicial clerk to Justice Thurgood Marshall, will join Rebecca Roiphe, Joseph Solomon Distinguished Professor of Law, and Professor David Simson for a conversation on Justice.https://digitalcommons.nyls.edu/racial_justice_project_events_flyers/1001/thumbnail.jp

New York Law School

DigitalCommons@NYLS 
Racial Justice Project Event Posters 
2-8-2024 
Black History Month Event: Honoring Judicial Icon Justice 
Thurgood Marshall 
New York Law School 
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N OOL I Racial Justice Project 
BLACK HISTORY MONTH EVENT 
Thursday, February 8, 2024 
4:30 p.m.-6:00 p.m. 
New York Law School 
Auditorium 
185 West Broadway 
New York, NY 10013 
RSVP: www.nyls.edu/RJPrsvp 
Randall Kennedy, Michael R. Klein 
Professor of Law at Harvard Law School and 
former judicial clerk to Justice Thurgood 
Marshall, will join Rebecca Roiphe, 
Joseph Solomon Distinguished Professor 
of Law, and Professor David Simson for a 
conversation on Justice Marshall's visionary 
legal work and legacy. The event will be 
moderated by John Marshall Harlan II 
Professor of Law and Director of the Racial 
Justice Project Penelope Andrews. 
" 
