Touro Law Review BLOG

Summary:

On the last day of the 2025-26 term, the Supreme Court issued its decision in United States v. Barbara, the birthright citizenship case. As has been long settled, under the Fourteenth Amendment, with limited exceptions, any child born in the United States is a citizen of the United States. Chief Justice John Roberts’s majority opinion decisively upheld the district court’s judgment invalidating President Donald J. Trump’s executive order seeking to restrict the scope of birthright citizenship. 

Chief Justice Roberts’ opinion was joined by four other justices regarding the Fourteenth Amendment and five other justices regarding federal nationality law. Ultimately, six justices wrote opinions in the case. In this Touro Law Review podcast, Professor Rachel Rosenbloom analyzes the Court’s decision and explains the significance of each justice’s opinion.

Learn more about Professor Rosenbloom:

Rachel Rosenbloom is a Professor of Law at Northeastern University Law School, where she teaches and writes in the area of immigration law and policy. Professor Rosenbloom’s scholarship has focused on the intersection of criminal law and immigration law, the possibilities and limits of transnational legal advocacy in advancing the rights of deportees, and the role of race and immigration in the historical development of US citizenship law. Professor Rosenbloom authored an amicus brief in Trump v. Barbara. Her most recent article is entitled “Litigating Birthright Citizenship In The Shadow Of World War II: The Continuing Relevance Of A Forgotten Case” and can be found on SSRN.

Prior to joining the law faculty, Professor Rosenbloom was a fellow at the Center for Human Rights and International Justice at Boston College, where she was the supervising attorney for the center’s Post-Deportation Human Rights Project. Her legal career includes practicing union-side labor law at the Boston firm Segal Roitman. From 2002 to 2004, she served as a law clerk to the Hon. Morris E. Lasker in U.S. District Court.

Summary:

Every law student engages with the Constitution, the Bill of Rights, and the Civil War Amendments in the Constitutional Law course. Few, however, know the story of two seventeenth-century ships that sailed from Europe and landed in America and subsequently shaped the way in which the Founders and their successors understood the nation’s history.

Professor David S. Reynolds explores this history in his most recent book, Two Ships: Jamestown 1619, Plymouth 1620, and the Struggle for the Soul of America. Two Ships tells the story of the arrival of the White Lion in 1619, which brought the first enslaved Africans to Virginia, and of the Mayflower in 1620, which carried the Pilgrims to Plymouth. As Reynolds recounts, the ships became dueling symbols in the American imagination.

In his discussion with Associate Dean Rodger Citron, Reynolds tells the story of each vessel’s voyage and explains how they became linked in the history of the colonies and then the United States. As Reynolds explains, one of the most striking features of Two Ships is how the history of the two ships has been cast and recast in response to the political and cultural context of each era. The discussion concludes with Reynolds’ thoughts on what this history means for the United States as we approach the 250th anniversary of the Declaration of Independence.

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Learn more about Professor Reynolds:

David S. Reynolds is a Distinguished Professor at the City University of New York (CUNY) Graduate Center, holding appointments across the English, History, and Biography & Memoir programs. An award-winning historian, he has authored or edited 17 books exploring the intersections of American literature, politics, and culture. His landmark titles include the Bancroft Prize-winning Walt Whitman’s America, the Lincoln Prize-winning Abe: Abraham Lincoln in His Times, and Beneath the American Renaissance, winner of the Christian Gauss Award.

By: Cynara Hermes McQuillan

1. Introduction

The South Carolina Supreme Court’s reversal of disgraced South Carolina attorney Alex Murdaugh’s double murder conviction is not a declaration of Murdaugh’s innocence, or a rejection of the vast evidence presented at trial. Instead, it highlights a fundamental constitutional principle: even the most high-profile prosecution must be tried before an impartial jury. That means, as the court explained, “an impartial jury untainted by external forces bent on influencing the jury toward a biased verdict.”[1]

Unfortunately, per the court, Colleton County Clerk of Court Rebecca Hill’s misconduct—which included making comments to jurors about Murdaugh’s credibility and defense—“placed her fingers on the scales of justice, thereby denying Murdaugh his right to a fair trial by an impartial jury,” thereby leaving the court with “no choice” but to reverse the conviction and remand for a new trial.

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Summary:

Every law student learns about New York Times Co. v. Sullivan in their Constitutional Law course. In 1964, the Supreme Court revised First Amendment law by holding that a public official must show “actual malice” in order to prevail on a libel claim—that is, the public official must show that a defamatory statement was false and that the speaker made the statement knowing that it was false or “with reckless disregard of whether it was false or not.” But not every student knows the fascinating civil rights history behind this seminal case. Professor Samantha Barbas recounts that history in Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, published in 2023. In this podcast with Associate Dean Rodger Citron, Barbas discusses the research that inspired her to write the book, the historical context in which Sullivan and other libel cases were litigated, and Justice William Brennan’s role in writing the opinion for a unanimous court.

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Learn more about Professor Barbas:

Samantha Barbas, a legal historian and award-winning author, is the Aliber Family Chair in Law at the University of Iowa College of Law faculty in 2024. Barbas is a prominent scholar and presenter of legal and media history—with a focus on journalism, privacy, defamation, and the First Amendment—and the award-winning author of seven full-length books. Barbas received the Public Scholar Award from the National Endowment for the Humanities in 2020. Her most recent book, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (University of California Press), made The New Yorker’s list of the best books of 2023, among other critical accolades.  Barbas earned her law degree from Stanford University in 2010 and holds a PhD in history from the University of California, Berkeley. After law school, she clerked for Judge Richard Clifton, United States Court of Appeals, Ninth Circuit, then was a member of the University at Buffalo School of Law until 2024.

Summary:

The Supreme Court’s decision this year in the tariffs case, Learning Resources, Inc. v. Trump, involved an important test of the scope of the President’s power. Professor Peter Shane discusses the Court’s ruling setting aside President Donald Trump’s tariffs under the International Emergency Economic Powers Act (IEEPA) by a six-three vote. Significantly, Professor Shane explains, the Court engaged in an extensive debate over the application of the major questions doctrine (MQD).

Under the MQD, as Professor Shane has written, government officials who undertake novel, “unheralded” administrative initiatives of unusual economic and political significance must be able to cite statutes that authorize their initiatives “clearly.” In Learning Resources, three justices in the majority said the MQD applies and supports ruling against the President and three said the MQD was not needed for such a ruling. Ultimately, seven justices wrote opinions in the case, and much of the discussion was about the MQD.

The conversation then turns to an article Professor Shane recently wrote in the Washington Monthly about how the Supreme Court’s decision in Learning Resources could be applied to a legal challenge to a recent change in civil service rules by the Office of Personnel Management (OPM) that could enable the at-will firing of any government career professional whose work affects government policymaking. (See How the Supreme Court’s Tariff Ruling Could Save the Civil Service | Washington Monthly.) It’s an intriguing suggestion, and the discussion concludes with Professor Shane explaining how the Court could rule in such a case.

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Learn more about Peter M. Shane:

Peter M. Shane is a leading scholar in U.S. constitutional and administrative law, with a special focus on the American presidency and the separation of powers. Currently Professor Shane is a Distinguished Scholar in Residence and Adjunct Professor of Law at New York University Law School. He also is Professor and Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at the Ohio State University’s Moritz College of Law, where he regularly taught courses in constitutional and administrative law, law and the presidency, and subjects at the intersection of law, democracy, and new media.
A Contributing Writer to Washington Monthly, Professor Shane is also the author of over seventy law review articles and book chapters, as well as nine books, including leading casebooks in both administrative law and separation of powers law. A graduate of Harvard College and Yale Law School, Professor Shane clerked for the Hon. Alvin B. Rubin of the U.S. Court of Appeals for the Fifth Circuit. He served as an attorney-adviser in the U.S. Department of Justice Office of Legal Counsel and as an assistant general counsel in the Office of Management and Budget before entering full-time teaching in 1981 at the University of Iowa.

By Derek Skuzenski, PhD

I. INTRODUCTION

The New York State Court of Appeals case of In re NYP Holdings, Inc. v. New York City Police Department, which was decided on February 20, 2025, is a momentous decision. 2 The cornerstone of this case is based on two pieces of critical, yet controversial, legislation. 3 Many may argue that New York Public Officers Law sections 84-90 is an essential component which safeguards democracy. This law is also known as New York’s Freedom of Information Law (“FOIL”).

FOIL was first enacted in 1974 to enhance public trust in the state and local government. 4 FOIL’s policy consideration is that the public is vested with an inherent right to know and obtain information about their government and its officials. The legislative declaration in section 84 states that:

“The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government . . . . The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.

FOIL, as well as the retroactive nature of remedial legislation is the focus of the case. In re NYP Holdings, Inc. v. New York City Police Department, a reporter from the New York Post submitted FOIL requests to the New York City Police Department (“NYPD”) requesting disciplinary records for 144 police officers and received only one of the files requested. FOIL provides a mandate for public
agencies to produce documents requested by the public. 6 The law also sets the maximum fee structure and timeframe to produce these documents. 7 The law further provides that “a person who willfully conceals or destroys a record to prevent its public inspection is guilty of a violation.” 8 These components of FOIL were likely included to ensure the public was not deterred from exercising their rights to obtain documents because of excessive fees or long delays.

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By Harrison Stern

I. INTRODUCTION

There will always be those who attempt to take advantage of another’s hard work. Whether it is the member of a group who does not contribute to a class assignment and receives an A, or an employee who takes credit for a co-worker’s proposal, some will find a way to achieve tremendous results by doing the least amount of work possible. In the realm of intellectual property law, the Lanham Act protects the hard work of innovators by allowing them to register their trademarks with the U.S. government to cement their places in their respective industries. However, the protections provided pursuant to the Lanham Act are currently being undermined by “trademark trolls.” The modus operandi of “trolls” is to acquire trademarks in order to charge fees to those who are responsible for growing and developing the mark. For example, if someone trademarks the word “red,” subsequent companies and other junior users including Red Robin, Red Vines, and Red Bull, may have to pay a fee for a license to continue to use their trademarks, or else they would need to spend time and resources to create adequate substitutions. However, the junior users could receive the license, but they would need to pay the “troll.” This impedes innovators by unscrupulously forcing them to pay the “troll” for using the mark, or stopping them from using the mark, which costs time and resources. If the United States Patent and Trademark Office (USPTO) is truly serious about combating the rise of “trolls” in the trademark industry, it must make significant changes to how trademark protection is granted.

The USPTO needs a more in-depth approach to review trademark applicants to ensure that the registered trademark is actually being used in trade and commerce, instead of simply registering one word, by establishing strict guidelines for satisfying the “use in commerce requirement” and revising the “intent to use” method of trademark registration. Part II of this paper will examine the U.S. trademark registration process and the current legal precedent for cases regarding trademark infringement by trademark owners who are not presently utilizing their trademarks for commercial use. Part III will explain how “trolls” are able to circumvent the USPTO’s “first-to-use” trademark
requirements in the digital age. Part IV will then analyze how “trolls” outside of the United States are able to register trademarks in “first-tofile” jurisdictions. Part V will discuss the impact that “trolls” have on productivity in multiple industries. Part VI will explain how a registration system based on an ITU and bona fide use in commerce allows trolls to disrupt the trademark industry. Finally, Part VII will offer methods to combat “trolls” and protect the developers of new trademarks. Overall, this paper will argue that the trademark authorities of each nation must establish stringent requirements for applicants to prove actual use of their desired marks for goods and services in commerce to prevent “trolls” from taking advantage of aspiring innovators.

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