With a ban on affirmative action in college admissions, a finding of fraud against former President Trump in a civil case, and challenges to Congress’s power to tax, the year 2023 brought no shortage of legal drama.
But those weren’t the only recent cases that could have a big impact in the years to come. For insight on other 2023 cases with big potential consequences, including litigation still making its way through lower courts, we asked four NYU Law experts which cases they have watched most closely this year, on topics ranging from antitrust in tech to gun control for people found guilty of domestic abuse.
Moore v. Harper
“This was the Supreme Court case about the so-called ‘independent state legislature’ theory,” says Richard Pildes, Sudler Family Professor of Constitutional Law. “The issue was whether state legislatures, when regulating national elections, are free from all the legal constraints that would normally apply to the exercise of their authority. In particular, the issue was whether state constitutions can impose constraints on state legislatures when they regulate federal elections.”
The case first arose in North Carolina after the 2020 US Census, when the state gained an additional seat in the U.. House of Representatives. When state legislators redrew congressional district maps, the North Carolina Supreme Court intervened, finding that the new districts were gerrymandered to unfairly favor Republican candidates. Republicans argued that the state supreme court had no right to intervene, and the case was brought before the Supreme Court of the United States.
“The case had the potential to be highly destabilizing of American elections. I testified to Congress about the lack of significant historical support for the theory and about the array of consequences that would follow were the Court to accept the theory,” says Pildes.
On June 27, 2023 the US Supreme Court ruled that the North Carolina state legislature would have to allow the state supreme court to review congressional district maps. “Fortunately,” Pildes notes, “the Court soundly rejected most of the independent state legislature theory. The Court did, however, leave the door open a bit to a much weaker version of this theory. As I wrote about in The New York Times shortly after the decision came down, it remains uncertain whether the space left for this weaker version of this theory is extremely small or not.”
American Alliance for Equal Rights v. Fearless Fund
“The American Alliance for Equal Rights (AAER)—which was founded by Edward Blum, the conservative activist behind the Students for Fair Admissions (SFFA) decision—is suing Fearless Fund under Section 1981, claiming that the venture capital fund's grant program for Black women entrepreneurs is racial discrimination in contracting,” says assistant professor of law Brittany Farr.
Last year, the SFFA won a Supreme Court ruling that effectively banned affirmative action at US universities.
“Section 1981 of the Civil Rights Act was explicitly designed to protect the contract and property rights of free and newly freed Black Americans. And it's actually one of the few places in constitutional and statutory law that race is explicitly mentioned,” explains Farr.
“American Alliance for Equal Rights v. Fearless Fund is interesting to me for two reasons,” Farr says. “One, it is a test of just how far the anti-affirmative action reasoning of SFFA will be able to go, and two, it is putting race and contracts in conversation with one another in a way that goes against how contracts as a subject is usually understood—i.e. race-neutral, means”
On September 30, 2023, the US Court of Appeals for the Eleventh Circuit ruled in favor of the AAER, and prohibited the Fearless Fund from closing its grant application window or picking a grant recipient for the time being. “We respectfully disagree with this Court’s decision, appreciate the important points raised by the dissent, and look forward to further appellate review,” Alphonso David, president and CEO of the Global Black Economic Fund, told Bloomberg Law.
United States v. Rahimi
“Rahimi is a case about whether the federal law makes it a criminal offense to allow someone to have a gun who is under a domestic order of protection,” says Barry Friedman, Jacob D. Fuchsberg Professor of Law. The Texas case, now before the Supreme Court, calls for the Court to decide whether it will uphold a 30-year old federal law preventing people subject to domestic violence restraining orders from owning firearms.
Zackey Rahimi was issued a restraining order in 2020 after assaulting his ex-girlfriend and then firing a gun at a person who witnessed the incident. The same year, Rahimi was investigated for his involvement in several shootings, and was ultimately convicted of unlawful firearm possession. He was sentenced to 73 months in prison.
But while Rahimi was serving his sentence, the Supreme Court set a new standard for gun regulation in New York State Rifle & Pistol Association, Inc. v. Bruen. “Before Bruen, courts tended to look at whether the state’s interest in the regulation outweighed the individual’s interest in possessing a firearm. In Bruen, the Supreme Court adopted a test that basically asks whether there is a ‘history and tradition’ of whatever regulation is of issue,” says Friedman. “Under Bruen, unless the government can show that the particular gun restriction was common in 1791, the law likely will be struck down.” That shift could implicate a lot of laws, long thought constitutional, such as the federal law banning convicted felons from possessing firearms. “It’s not clear that in 1791, when we adopted the Second Amendment, that we took guns away from felons,” adds Friedman.
After the Court’s 2022 decision in Bruen, Zackey Rahimi appealed his case, asserting that the legislation that banned him from owning a firearm violated his Second Amendment rights. “What's interesting about Rahimi is the extent to which it's actually going to undercut the Supreme Court's new focus on history and traditions,” says Friedman. "Justice Barrett, when she was on the US Court of Appeals [for the Seventh Circuit], took the position that not all convicted felons could be deprived of possessing firearms, but only those who were ‘dangerous.’ But if dangerousness is the issue, not ‘history and tradition,’ then courts will have to start to examine the state’s interest in regulating guns, the very thing the Bruen majority said it would no longer do.”
The Court heard oral arguments in United States v. Rahimi on November 7, 2023, and a decision is expected by June 2024.
United States v. Google LLC and Federal Trade Commission v. Meta Platforms, Inc.
“I'm watching two pathbreaking federal digital monopolization cases: the Justice Department's suit against Google and the FTC's suit against Meta,” says assistant professor of law Daniel Francis JSD ’20.
The Google suit, brought by the US Department of Justice and various states, accuses the tech giant of engaging in practices to impede its search rivals’ access to vital distribution channels. The suit alleges that Google unfairly squashed competition by paying billions of dollars to developers, including Apple, LG, and Samsung, in exchange for default search engine status on these companies’ devices.The ongoing case requires a judge to figure out whether Google’s practices amount to anticompetitive mischief or simply tough competition on the merits from a market leader.
“On the one hand, there’s generally nothing wrong with companies—even monopolists—paying partners to distribute and promote their products,” says Francis. “And it’s hard to believe that the world would be any better without default options. On the other hand, though, it’s clear that harm can result when a monopolist’s rivals are shut out from reaching distribution or customers. So: are these practices causing harm or not? And if so, what’s the remedy? We’ll find out when the judge rules—and probably after an appeal!”
And the Meta litigation promises to confront one of antitrust’s thorniest puzzles: when it’s illegal to buy a company that isn’t yet a strong rival but could become one. The FTC alleges—in a case that Francis worked on while working at the federal agency from 2018 to 2021—that Instagram and WhatsApp constituted such potential competitive threats, and that it was accordingly illegal for Meta to buy them.
“Few frontiers of merger law are more controversial than the law of nascent and potential competitor acquisitions,” Francis explains. “The Supreme Court hasn’t decided a substantive merger case in decades, so lower courts have been left to figure things out as best they can. That means the law is far from clear. But we’re about to learn a whole lot more about where the line is.”
These decisions are likely to mark a coming-of-age for digital antitrust. “Antitrust experts have been theorizing for years about how the law should handle practices like payment-for-default status and acquisitions of upstart rivals”, Francis adds. “These two cases will give us some answers at last. And, like the Microsoft litigation did 25 years ago, they will set the ground rules for the next era of US antitrust law."
Posted on December 18, 2023