Time Traveling with the Foreclosure Abuse Prevention Act: New York’s New Law and the Constitutionality of Retroactivity

(Excerpt) This Note argues that the Foreclosure Abuse Prevention Act should be interpreted to apply retroactively and that retroactivity is constitutional. Part I will survey the history of the foreclosure crisis that led to the abusive litigation tactics that made FAPA necessary. Part II will analyze the most notable provisions of FAPA which have given effect to the legislature’s intent in passing FAPA. Finally, Part III will examine the constitutionality of retroactive legislation and review the validity of arguments surrounding FAPA’s retroactivit

One Person, Endless Data: Prohibiting Personal Political Viewpoint Data Processing to Combat Voter Suppression

(Excerpt) Polarization in American politics and elections continues to rise, due in no small part to advancing digital marketing technologies co-opted by political actors. In 2016, Cambridge Analytica, a political consulting firm, spearheaded right-wing populist campaigns to political victory in the United States and United Kingdom. The firm reconfigured commercial data processing methods to process personal political viewpoint data (“PPVD”) and perform “psychological manipulation.” While the firm has since dissolved, such practices are still used to manipulate American elections. The European Union (“EU”), also in 2016, enacted the General Data Protection Regulation (“GDPR”). As a comprehensive data privacy reform, GDPR, in part, prohibited PPVD processing. In so doing, GDPR proscribed the techniques Cambridge Analytica used to lead the Brexit movement and Donald Trump to electoral victories. Permitting political campaigns to process PPVD allows them to manipulate voters and suppress turnout in elections. GDPR is a comprehensive defense against a novel threat to the principle of democratic self-government. American data privacy regulations are virtually nonexistent. The EU, unlike the United States, accounted for PPVD processing in its comprehensive data privacy reform package with a specific prohibition. As the world’s largest economy, the United States must also specifically prohibit PPVD processing to combat increasingly effective methods of voter manipulation and suppression. GDPR offers the terms of such a prohibition. To repair the damaged integrity in their elections, the United States must prohibit PPVD processing to combat increasingly effective methods of voter manipulation and suppression. Luckily, GDPR demonstrates a path forward. With minimal modification, Congress can adopt GDPR’s PPVD processing prohibition to protect voter data. This Note first examines contemporary data processing techniques and how those techniques—including microtargeting, the premier data processing methodology—are used to manipulate voters. Later, this Note highlights the perceived efficacy and public opinion surrounding those practices. Further comment is made on the anachronistic data privacy landscape in the United States. Then, this Note suggests adoption of the most relevant provisions of GDPR necessary to protect self-determination in American elections. This Note concludes by reiterating the import of personal political data and underscoring the exigence of the recommended prohibitions

Regulatory Personhood: The Elixir For Redundancy Between the SEC and the PCAOB

(Excerpt) This Article analyzes enforcement activity against public company auditors during the agencies’ coexistence for the purpose of unmasking the alleged villainous duplication, budgetary waste, and agency in-fighting that was purportedly created by Congress when it endowed the PCAOB with enforcement powers already existing in the SEC’s arsenal. The Article examines enforcement cases brought by the SEC and the PCAOB against accounting firms and accountants associated with such firms that relate to poor performance in conducting public company audits during the period in which both agencies were in existence. Such research bears upon the effectiveness of the current system of auditor oversight and informs future efforts to clone this regulatory structure in other areas of securities regulation. Regulatory overlap has, in particular instances, led to deleterious effects. For example, the Department of Justice and the Federal Trade Commission have publicly clashed in the area of antitrust law enforcement. This Article finds no evidence of ineffective duplication of enforcement efforts that would be symptomatic of in-fighting between the SEC and the PCAOB. In fact, it identifies a synergistic allocation of disciplinary activity regarding regulated auditors. This Article asserts this relationship works well because the SEC has a widely recognized proprietary interest in particular enforcement cases, described herein as regulatory personhood, that endows it with a right to exclude its audit co-regulator from such cases. Regulatory personhood nullifies competitiveness and political agenda promotion that would otherwise exist as an output of corporate action theories. This Article employs property law theory as a legal implement to allocate shared enforcement authority effectively between agencies. This Article proceeds in five parts. Part I explores the allocation of regulatory responsibility for policing auditors of public companies, both before and after the passage of the Sarbanes-Oxley Act of 2002. Part II analyzes SEC and PCAOB enforcement activity with respect to public company audit performance during their co-existence. It identifies a system of complementary, not duplicative, enforcement pursuits. Part III discusses legal theory relating to the effective exercise of enforcement authority, and the implications of overlapping jurisdiction. Part IV identifies regulatory personhood as a component of oversight that counteracts the potentially deleterious effects of shared regulatory responsibility between the Board and the SEC. Part V warns that regulatory personhood promotes efficiency in enforcement activity, but produces adverse collateral effects that impact other aspects of auditor oversight

The Blockbuster Amendment to CPLR 2106 Permitting Any Person to Submit an Affirmation in Lieu of an Affidavit

(Excerpt) Traditionally, the affidavit has been the foremost source of proof on motions in New York State courts. Effective January 1, 2024, New York Civil Practice Law and Rules (“CPLR”) 2106 was substantially amended to allow any person to submit an affirmation in lieu of an affidavit, “with the same force and effect.” This is the most significant change to the CPLR in the twenty-first century and will impact many areas of civil procedure. As those who have already grappled with the amendment to CPLR 2106 know, there are now numerous issues relating to the legislation that will need to be addressed by the courts. This is due largely to the fact that the legislature chose not to amend any of the other sixty-two provisions in the CPLR that reference an “affidavit.” Given that the current composition of New York State’s representative bodies is not sufficiently concerned with real procedural reform, we cannot expect any responsible legislative action to be taken to remedy the problem. Therefore, application of the statute in numerous contexts will be left largely to the courts, after lawyers attempt to persuade them with their proposed interpretations. This Article attempts to provide courts and attorneys with an analysis of the new CPLR 2106 and its interplay with several other provisions in the CPLR. The piece examines some early caselaw from the federal and state trial courts in New York, and several appellate division decisions interpreting the statute. Our focus is on the issues that judges and lawyers will most likely confront in applying and using the statute, and there are many. The examination is well worth the effort, as there is an abundance of cases in which a party’s rights have been lost, jeopardized, or compromised because of a defective affidavit or affirmation. The piece also makes recommendations regarding the legislative proces

West Virginia v. EPA: Maybe A Big Deal, But Maybe Not

(Excerpt) In West Virginia v. EPA, the Supreme Court held that the Environmental Protection Agency (“EPA”) lacked statutory authority to enact the Clean Power Plan, an EPA rule that encouraged coal-fired power plants to use non-coal sources of energy. The Court’s decision relied on the “major questions doctrine.” Under this doctrine, even if an unclear statute does not directly prohibit an administrative agency’s action, courts will reject an agency’s action when it is “asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” Because the major questions doctrine is itself unclear, a variety of commentators suggested that the Court’s decision radically limits environmental regulation or even the administrative state generally. The West Virginia v. EPA majority opinion, however, is quite narrowly written. By emphasizing the unique facts of the case, the Court gave itself ample discretion to distinguish its decision in future cases. It logically follows that the Court’s decision is not the end of greenhouse gas regulation or environmental regulation generally—at least not yet. Part I of this Essay briefly summarizes the West Virginia case. Part II focuses on the details of the majority opinion of that case, showing how the Court emphasized the unique facts of the case. Part III suggests that federal jurisprudence under the Takings Clause of the Fifth Amendment is analogous

Protecting the Anti-Oppression Legacy of Obergefell After Dobbs

(Excerpt) This Article contributes to the task of revitalizing Justice Kennedy’s analysis after its absence from Dobbs by explaining the inadequacies not only of the Glucksberg substantive due process test, but also of the Court’s interpretation of the Equal Protection Clause. The flaws in equal protection doctrine include the Court’s overly narrow view of which groups are entitled to protection as “suspect classifications” and its failure to address unintentional government support of systemic discrimination. When these gaps in equal protection doctrine are viewed together with the gaps in the Glucksberg test for substantive due process, the need for Justice Kennedy’s anti-oppression approach becomes even more clear than an isolated consideration of due process would suggest. The Article also adds specificity to Justice Kennedy’s approach by proposing a new framework for its application that is built on precedent and that seals the gaps in Fourteenth Amendment jurisprudence without spilling over into the wild west of judicial policymaking of concern to conservatives. Its third contribution is to ground Justice Kennedy’s approach in textual and originalist arguments of the type that several Justices sitting on the Court currently seem to favor. Part I of the Article covers the Glucksberg test and uses Bowers v. Hardwick, the Court’s since-reversed opinion upholding anti-sodomy laws, and the recent opinion in Dobbs to identify the problematic aspects of the test’s focus on historical analysis of rights. Part II explains why equal protection doctrine fails as a possible alternative to substantive due process that could adequately protect identity groups from government-supported oppression. Part III explains the promising new path that Justice Kennedy’s opinion in Obergefell laid out to address the gaps in the Glucksberg test and equal protection doctrine. It also explains the failure of the majority opinion in Dobbs to apply Obergefell’s analysis. Part IV defends Obergefell’s anti-oppression approach to due process by grounding it in textualist and originalist arguments regarding the Fourteenth Amendment. Part V attempts to remedy the lack of a specific framework for Obergefell’s approach that can respond to conservative criticisms by using Obergefell and other Court opinions to derive boundaries. Part VI establishes that despite its silent repudiation of Obergefell’s analysis, Dobbs leaves room for the proposed framework. It also explains the relevance of the framework to recent legislative initiatives affecting the queer community