Touro College: Digital Commons @ Touro Law Center
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Felix Frankfurter: Liberal Lawyer, Conservative Justice
Full text linkThe Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation
Blocking Faith: How American Muslims Are Chilled Through the New Anti-Muslim Statutes and the Security Agencies’ Surveillance in the Era of Digital Policing
Full text linkThis Article explores the legal repercussions resulting from the new wave of anti-Muslim statutes and the state monitoring operations on American Muslims’ First Amendment rights. This Article argues that the U.S. government security agencies’ surveillance operations (actions) that target American Muslims’ religious activities and the new anti-Muslim statutes (laws) established in various states are clear violations of Muslim Americans’ First Amendment rights
Sign Your Name on the Dotted Line . . . Is Netflix’s Squid Game Something More than Mere Child’s Play?
Full text linkPrior to watching Netflix’s hit show, Squid Game, I was proud to say that I was someone who was a true connoisseur of reality television. Like millions of Americans who tune in to their favorite “trash TV” show, I would always look forward to turning on my TV at the end of a long day, sitting back in my pajamas, and binge-watching my favorite reality television shows. And, unlike many viewers, I was not ashamed to say this was one of my favorite hobbies. However, after watching Squid Game, my passion for reality television also grew into a concern for the potential welfare of the various participants. Although the show is highly dramatized in its portrayal of the harm done to participants in a competition-based reality program, Squid Game provides a useful springboard for discussion to see what could possibly happen if we continue to allow executives and networks to do as they like (without regard for the welfare of their participants) . . . all for the sake of drawing in ratings and maintaining the attention of viewers. This article examines the multitude of potential legal issues involved in reality television show participation through an exploration of the various abuses done to both Squid Game and “real life” reality TV participants. Then, after evaluating the near unconscionability of real-life reality television arrangements, this Article will provide two solutions that could even out the playing field between networks/producers/executives and participants: (1) adoption of the Ofcom duty of care standard in reality television contracts that the UK implemented in December 2020 and (2) permitted unionization of reality television participants in order to ensure more effective bargaining
The Categorical Imperative: In Search of the Mythical Perfect Privilege Log So Devoutly to Be Wished
Full text linkThough evidentiary privilege is amongst the most perplexing fields of the law, privilege logs are assuredly amongst the most vexing. With vastly increased discovery in the age of electronically stored information, the burdens incurred by individually articulating claims of privilege on every document have grown gargantuan. In desperate search of efficiencies, many commentators and courts have looked to “categorical” privilege logs that assert claims over generic groups of similar material rather than over each item seriatim. Disputes, however, have remained distressingly acrimonious, as these new categorical logs have proven no cure-all for the fundamental divergence of interests between litigants in pitched battle. Nonetheless, the furious debate over the merits and demerits of categorization offers glimmers of hope for a less rancorous and more fruitful future for privilege logs, if not for discovery practice as a whole
Is Jacobson v. Massachusetts Viable After a Century of Dormancy? A Review in the Face of COVID-19
Full text linkThe COVID-19 pandemic has stretched us into the vast unknowns, emotionally, logically, politically, and legally. Relying on their police power, governments inched into the darkness of the powers’ fullest extent, leaving many to wonder whether the exercise of this power was constitutional. This Article examines the extent of the police power that both the federal and state governments have, and how Jacobson v. Massachusetts1 was the “silver bullet” for governments across the United States. Further, this Article provides an overview of police power, and the status of COVID-19 mandates. This Article additionally examines quarantine case law and provides an analysis of Jacobson. Finally, this Article discusses Jacobson’s efficacy and future. While the rationale of Jacobson has in some instances been limited, its reasoning has in other ways been expanded, as seen in its application with respect to rationalizing COVID-19 mandates in the interest of protecting the public’s welfare
Subjectively Speaking, the Applicable Standard for Deficient Medical Treatment of Pretrial Detainees Should Be One of Objective Reasonableness
Full text linkThere is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights of pretrial detainees. These circuits are under the impression that pretrial detainees have the same rights as convicted individuals, which is not the case, as pretrial detainees in fact have greater protections under the Fourteenth Amendment of the United States Constitution. The subjective standard falls short of protecting pretrial detainees and deprives them of rights derived under the Fourteenth Amendment, as the subjective standard stems from the Eighth Amendment, which is inapplicable to pretrial detainees as these individuals have yet to be convicted. The Supreme Court had the opportunity to resolve this issue but declined to do so. The Supreme Court should resolve this issue by applying the objective test to pretrial detainees’ inadequate medical care claims brought under § 1983, which would not impede or diminish the rights of pretrial detainees that are guaranteed by the Fourteenth Amendment
Community Caretaking Exception Saves Lives . . . the Supreme Court Disagrees
Full text linkAs many are aware, the Fourth Amendment protects the people against unreasonable searches and seizures. A warrant is necessary for said activities. While there are a few exceptions to the warrant requirement, the Supreme Court recently held that the community caretaking exception does not extend to the home. Extending this exception to the home would allow police officers to enter and engage in functions that are unrelated to the investigation of a crime. Essentially, this exception would allow police to aid individuals and prevent serious, dangerous situations to protect the community. This Note discusses why the Supreme Court erred in its decision to deny the extension of the community caretaking exception to the home. Further, it argues how denying the extension of this exception to the home could prevent police from being able to intervene and help individuals in need in situations that do not rise to the criteria of an “emergency” which would fall under the exigent circumstances exception