NYU Law professor Samuel Estreicher and 3L Klara Nedrelow argue that the International Court of Justice (ICJ) incorrectly imposed provisional measures on Israel regarding its actions in Gaza, as it failed to establish even a preliminary basis for genocide intent required under the Genocide Convention. Professor Estreicher and Ms. Nedrelow contend that South Africa’s allegations lacked plausibility due to the absence of specific intent to destroy the Gazan/Palestinian people, a critical element for genocide, in contrast to previous ICJ rulings that required a higher burden of proof for genocidal intent.
NYU Law professor Samuel Estreicher defends Israel’s right to self-defense against Hamas, arguing that its actions in Gaza comply with international humanitarian law, particularly the principles of military necessity, distinction, and proportionality. Professor Estreicher refutes claims that Israel is an “occupying power” in Gaza and that the right of self-defense does not apply to non-state actors like Hamas, comparing Israel’s military actions to those of the U.S. against al-Qaeda and ISIS.
NYU law professor Samuel Estreicher and JD candidate Alexander Gelfond discuss the Federal Trade Commission’s (FTC) proposed rule to ban all non-compete clauses in employment agreements, examining the agency’s four main justifications: that non-competes reduce workers’ wages, stifle new business and innovation, exploit workers, and are unnecessary for protecting trade secrets. While supportive of a limited ban on non-competes for workers without access to trade secrets, Professor Estreicher and Mr. Gelfond argue that the FTC needs to further justify its proposed nationwide ban, especially considering potential drawbacks like reduced worker training and lower investment in capital assets.
NYU Law professor Samuel Estreicher comments on the U.S. Supreme Court’s recent decision striking down the use of racial preferences in college admissions at Harvard and the University of North Carolina, creating uncertainty about the future of affirmative action in both higher education and employment. Professor Estreicher points out that while the Court opposed the “outright racial balancing” used by the universities, it left room for race-based “make whole” remedies in cases of proven intentional discrimination, raising questions about the permissible extent of race-based remediation and its applicability in various contexts, including employment.
NYU Law Professor Samuel Estreicher comments on a recent decision by the Supreme Court of Illinois holding that the Illinois Biometric Information Privacy Act protections do not apply to union-represented workers because claims under the Privacy Act are preempted by Section 301 of the federal Labor Management Relations Act. Professor Estreicher argues that the court’s decision is in tension with the U.S. Supreme Court’s 1988 decision in Lingle v. Norge Div., Magic Chef, Inc., and its progeny, which provide that adjudication of an employer’s under the CBA does not generally trigger Section 301 preemption.
NYU Law professor Samuel Estreicher and 3L Zachary Garrett comment on a notice of proposed rulemaking by the Federal Trade Commission (FTC) that purports to ban non-compete clauses in employment agreements. Professor Estreicher and Mr. Garrett argue that the authority of the FTC to do so, based on its broad interpretation of Sections 5 and 6(g) of its authorizing statute, is dubious at best.
NYU Law professor Samuel Estreicher and 3L Anuja Chowdhury comment on a recent decision by the U.S. Court of Appeals for the Ninth Circuit interpreting provisions of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA). Professor Estreicher and Ms. Chowdhury explain the Ninth Circuit’s reasoning and conclusion that foreign defendants in TVPA civil actions cannot be found “present” within the meaning of the Act without a showing of either physical presence or purposeful direction of conduct towards the U.S. market.
NYU Law professor Samuel Estreicher and rising 3L Zachary G. Garrett propose two measures to improve the safety of public transportation in New York City. Specifically, Professor Estreicher and Mr. Garrett suggest that (1) stationing at least one police officer at each turnstile (or set of turnstiles), around the clock, and (2) installing weapons screeners at every subway station would reduce violence and crime.
NYU Law professor Samuel Estreicher and attorney Troy Kessler argue that the termination of workers for refusing to receive the COVID-19 vaccine often contravenes federal, state, and city laws. Professor Estreicher and Mr. Kessler point out that relevant law requires employers to carefully consider requests for religious or medical accommodations.
NYU Law professor Samuel Estreicher and 2L Andrew Vaccaro comment on a recent decision by the U.S. Court of Appeals for the Second Circuit suggesting that statutory procedural rights are generally waivable by contract outside of arbitration.
NYU Law professor Samuel Estreicher and 3L Ryan Amelio comment on the unusual move by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) decision to require employee vaccinations for employers with a total of 100 or more employees. Estreicher and Amelio explain why it is unclear whether the Agency has authority to mandate vaccinations and testing.
NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Susan Yorke discuss a decision by the U.S. Court of Appeals for the Ninth Circuit in which the appellate court reinstated California AB 51, which prohibits employers from conditioning employment on an applicant’s waiver of various rights, including the right to litigate. The authors note that the ruling creates a circuit split and may even be at odds with recent Supreme Court case law.
Elena J. Voss, associate general counsel at The Metropolitan Museum of Art, and NYU Law professor Samuel Estreicher, dissect an opinion by the Office of Legal Counsel that squarely answers in the negative the question whether the Emergency Use Authorization status of COVID-19 vaccines precludes public or private entities from mandating those vaccines. Ms. Voss and Professor Estreicher point out that while the OLC opinion is neither binding nor authoritative, it is well-reasoned and indicative of the Biden administration’s view on this topic and can provide some assurance to employers who wish to implement a vaccine mandate.
NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel comment on a case the U.S. Supreme Court will hear next term that presents the question what role, if any, federal courts should play in facilitating discovery in foreign arbitrations. The authors argue that while the case seems to turn on a simple matter of statutory interpretation, the case may shed new light on how the current Court approaches traditional interpretive tools.
NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on the U.S. Supreme Court’s recent decision in Nestlé v. Doe, in which the Court held that mere “corporate activity” within the United States is not enough to satisfy the general presumption against the extraterritorial application of federal law. Professor Estreicher and Ku point out that questions about the scope of future ATS claims or corporate liability may never be resolved if the vast majority of ATS claims are dismissed as a result of the Court’s reinvigorated extraterritoriality test.
NYU law professor Samuel Estreicher and adjunct professor Zachary Fasman comment on the U.S. Supreme Court’s decision earlier this week in NCAA v. Alston, in which the Court held that the NCAA’s attempt to limit compensation to student athletes to preserve their amateur status is subject to the normal rule of reason analysis applied in antitrust cases. Professors Estreicher and Fasman note that the effect of conflicting and competing state name, image and likeness (NIL) regulation on the consumer market—the market at the core of the Court’s analysis in Alston—remains to be seen.
NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku argue that, with regard to recent armed hostilities in the Gaza Strip, Israel’s use of force likely conformed to applicable international laws of war and was legally justified, whereas Hamas’s actions repeatedly violated the core, bedrock principle that civilians cannot be targeted. Professors Estreicher and Ku point out that the presently known facts support the conclusion that Israel complied with customary international law, codified in the 1949 Geneva Conventions and their subsequent protocols: use of force is limited to (1) situations of military necessity; (2) where the use of force makes a distinction between combatants and non-combatants; and (3) where the use of force is proportionate to the concrete military objective sought to be achieved.
NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel describe the uncertainty surrounding whether Uber and Lyft drivers are subject to the Federal Arbitration Act. The authors note the split of authority across the nation and note that, depending on the outcome of litigation in the Second, Third, and Eleventh Circuits, the question may soon come before the U.S. Supreme Court to resolve.
NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by a Pre-Trial Chamber of the International Criminal Court (ICC) ruling that the ICC’s jurisdiction extends to territory occupied by Israel during the 1967 Six Day War, namely, the West Bank, Gaza, and East Jerusalem. Professors Estreicher and Ku argue that the tenuous and legally unpersuasive nature of the ICC’s jurisdictional assertion in this case, as well as similarly aggressive findings over U.S. activities in Afghanistan, will only further weaken the tribunal’s overall international legitimacy going forward.
NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by the U.S. Supreme Court, holding that the doctrine of sovereign immunity bars claims based on Nazi-era expropriation of Jewish property. Professors Estreicher and Ku argue that the unanimous decision in that case, Germany v. Philipp reflects a now-solid trend of Roberts Court decisions limiting the reach of U.S. law and jurisdiction to stay within the territory of the United States while also avoiding controversial and unsettled interpretations of international law.