Touro Law Review BLOG

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.

Read or download the full text of the article below.

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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Summary:

The Erie doctrine delights Civil Procedure professors and often bedevils law students. On this Touro Law Review podcast, Touro’s Civil Procedure faculty explore and explain the doctrine in their discussion of the Supreme Court’s recent decision in Berk v. Choy. Professor John Quinn summarizes the case, Professor Laura Dooley explains Justice Ketanji Brown Jackson’s concurring opinion, and Professor Deseriee Kennedy discusses the aims of the Erie doctrine and how Berk furthers them. Professor Rodger Citron moderates the discussion, in which the professors also talk about how they plan to use Berk when teaching Civil Procedure.

Learn More About the Guests:

Laura Dooley has been teaching about the civil justice system for 30 years. She has published widely in top-tier academic journals including the flagship journals at NYU, Vanderbilt, Cornell, and Illinois, among many others.  Her work has been cited by both federal courts and the popular press, including the Wall Street Journal and most recently Vice News. 

Deseriee Kennedy teaches Civil Procedure, Family Law, and Domestic Violence Law. She is a co-author of the seminal treatise on New York Domestic Violence Law that is updated yearly and published by Thomas-Reuters. Her scholarship has been published in the Georgetown Journal of Legal Ethics, Arizona State Law Journal, Missouri Law Review, the Southern California Review of Law and Women’s Studies, the Journal of Race, Gender and Class, among other journals.

John Quinn is dedicated to bridging theory and practice in legal education. He joined the Touro faculty full-time in August 2023 as an Assistant Professor of Legal Process and recently transitioned to the tenure track as an Assistant Professor of Law. He teaches Civil Dispute Resolution & Procedure, Evidence, Appellate Advocacy and related courses and serves as co-advisor to Touro Law’s Moot Court program.

Summary:

On January 21, 2026, the Supreme Court will hear oral argument in Trump v. Cook, one of two cases pending before the Court involving challenges to the President’s exercise of his Article II removal power. Cook arises from President Trump’s attempt to fire Federal Reserve Governor Lisa Cook, which, thus far, has been preliminarily enjoined by a federal district court in Washington, D.C. The district court stated, “Cook has made a strong showing that her purported removal was done in violation of the Federal Reserve Act’s ‘for cause’ provision.”

The other removal case before the Supreme Court is Trump v. Slaughter, which involves the termination of Commissioner Rebecca Slaughter of the Federal Trade Commission and was argued before the Court in December 2025. The issue in this case is whether the President has the authority to dismiss Commissioner Slaughter “at will” – that is, for any reason, including a policy disagreement – despite Congress’s restricting the President’s authority to remove a commissioner and a 1935 Supreme Court decision upholding that restriction.

The cases raise interesting and important questions about separation of powers doctrine, the President’s removal power, and Congress’s role in creating administrative agencies. Perhaps the most important question in Cook is whether, if at all, the Federal Reserve differs from other agencies regarding the President’s removal power.

Professor Ilan Wurman discusses the issues raised by both cases in this podcast discussion with Associate Dean Rodger Citron. Among other things, Wurman explains why he believes the Federal Reserve is not different from other agencies but discusses why a number of justices – perhaps a majority – may not agree with him.

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Learn More About Ilan Wurman:

Ilan Wurman is the Julius E. Davis Professor of Law at the University of Minnesota, where he teaches administrative law and constitutional law. He previously taught at Arizona State University. He writes primarily on the Fourteenth Amendment, administrative law, separation of powers, and constitutionalism. His academic writing has appeared in the Yale Law Journal, the Stanford Law Review, the University of Chicago Law Review, the University of Pennsylvania Law Review, the Virginia Law Review, the Duke Law Journal, the Minnesota Law Review, the Notre Dame Law Review, and the Texas Law Review among other journals. 

Professor Wurman practices law with the firm Tully Bailey. He has litigated a variety of administrative law and constitutional law cases, including cases involving COVID-19 restrictions, transmission lines, and Appointments Clause challenges. He also devised winning public nuisance theories to force city governments to address the increasingly challenging public camping crises throughout the country.

By Christina Mohan

I. INTRODUCTION

This paper will take an extensive dive into the history of discrimination and criminalization against the lesbian, gay, bisexual, transgender, and queer (“LGBTQ+”) community. This paper will discuss several critical ideologies, all of which contribute to the wrongful convictions of countless individuals in this community. This includes key concepts such as the national hysteria of satanic rituals of abuse against children, the perception of homophobia in the criminal justice system, and the impact of intersectionality, focusing on the combination of race with LGBTQ+ identity.

The case of the “San Antonio Four” highlights each of these concepts and its powerful effect on wrongful convictions. In 1998, Elizabeth Ramirez, Cassandra Rivera, Kristie Mayhugh, and Anna Vasquez were wrongfully convicted in the Bexar County Criminal District Court located in San Antonio, Texas, for sexually aggravated assault and indecency with a child. All four Latina women were tried and convicted for child sexual abuse against Ramirez’s two nieces, V.L. and S.L. who were nine and seven years old at the time of the allegations. Ramirez was sentenced to thirty-seven and a half years, while Rivera, Mayhugh, and Vasquez were sentenced to fifteen years. This article will address the grave and unjust errors in the case which included: (1) false or misleading forensic evidence; and (2) perjury or false accusations. Additionally, this article will highlight prescriptive measures designed to help prevent similar miscarriages of justice such as the establishment of the Timothy Cole Advisory Panel, the Texas Criminal Justice Integrity Unit, and the Junk Science Writ. Lastly, this article will dive into the legal issues that presented obstacles in this case for the four women to obtain monetary damages, prior to their exoneration in 2016.

Read or download the full text of the article below.

By Tiffani Cao

I. INTRODUCTION

In an era with a multitude of environmental concerns, the intricate interplay of plastic production, plastic disposal systems, and the overarching issues of climate change have emerged as a pressing global challenge. While plastic provides versatility, convenience, and
durability, its hidden costs pose an alarming predicament. These costs contribute to greenhouse gas emissions and exacerbate climate change.

Exploring further how plastic contributes to climate change through production and disposal reveals that the material generates a cascade of greenhouse gases. These include carbon dioxide, methane, and nitrous oxide, all of which detrimentally impact our planet’s climate balance. The emissions associated with plastic are not limited to its production but also extend to its end-of-life management system. The disposal of plastic through recycling, incineration, and landfills releases an abundance of these potent pollutants, compounding the challenges posed by climate change.

While these challenges are often examined separately, this research highlights the urgency of addressing the connections between plastic and climate change to create a sustainable and eco-friendly environment. It investigates the synergy between plastic production, disposal practices, and the broader climate crisis, underscoring the interdependence of these issues.

Additionally, this research paper delves into several key recommendations or potential solutions, including the creation of a comprehensive global treaty or policy for regulating plastic pollution, promoting zero-waste policies and embracing a circular economy, banning single-use plastics, ending plastic subsidies, and mandating the extended producer responsibility policy. These measures are explored to develop more comprehensive and effective strategies to address the environmental crises of our time, reduce plastic pollution, and mitigate climate change. By implementing these measures, we can transition towards a future where plastic is either holistically eliminated or serves its intended purpose without compromising the health of our planet and the well-being of current and future generations.

Read or download the full text of the article below.