N.Y.U. Proceedings – Exploring New Approaches to Unsettled Legal Questions

Too JUUL for School: Evaluating the FDA’s Regulation of Flavored Electronic Nicotine Delivery Systems

On March 20, 2025

by Aster O’Leary^*

In response to what has been dubbed a “youth vaping epidemic,” the Food and Drug Administration (“FDA”) has recently cracked down on non-tobacco-flavored Electronic Nicotine Delivery Systems (“ENDS”), which middle and high school students prefer over tobacco-flavored ENDS products. Recognizing that the ENDS industry is relatively new and constantly evolving, the FDA declined to mandate the inclusion of certain types of scientific studies in its guidance to the industry. However, many flavored ENDS manufacturers feel that the FDA pulled a “surprise switcheroo” when denying many of their Premarket Tobacco Product Applications (“PMTA”).¹ In the denials, the FDA explained that the applications lacked long-term studies and/or controlled investigations that demonstrated that the flavored products were “appropriate for the protection of the public health.”² Additionally, the manufacturers complained that for many of their applications, the FDA refused to consult their marketing plans, which the FDA had previously emphasized were of tantamount importance. This Contribution argues that the FDA did not violate the Administrative Procedure Act (“APA”) by modifying its approach to PMTA review. It first demonstrates denying PMTAs because they lacked long-term studies is permitted under the FDA’s flexible approach to weighing ENDS’ risks and benefits to society as a whole. It then argues that the FDA’s refusal to consult manufacturers’ marketing plans, while arbitrary and capricious, is in most cases harmless error. It concludes by questioning whether the FDA should be tasked with regulating an inherently harmful category of products in the first place.

Shareholder Protection in Tender Offers: An Argument for an SEC-Enforced Negli-gence Standard Under § 14(e)

By Editor-in-Chief NYU Moot Court Board

On March 18, 2025

In Contributions

by Giulia Piccininni *

Federal Courts of Appeals throughout the country have interpreted § 14(e) of the Williams Act to require plaintiffs to make a showing of scienter when alleging entities engaged in tender offers made material misstatements and omissions in connection with tender offers. This long-standing interpretation was interrupted in 2018 when the Ninth Circuit held in Varjabedian v. Emulex Corporation that a showing of mere negligence was enough to plead a § 14(e) claim. The Supreme Court granted certiorari in Varjabedian to resolve the circuit split but ultimately did not issue a decision. The case was further complicated when the defendant and numerous amicus briefs raised an additional issue: whether § 14(e) gives plaintiffs a private right of action at all. This Contribution argues that § 14(e) is currently misinterpreted by a majority of the Courts of Appeals: while § 14(e) does not establish a private right of action, it does provide for SEC enforcement that can proceed under a negligence standard. Since § 14(e)’s prohibition on false or misleading statements does not contain language that necessarily implies scienter, such a showing is not required. At the same time, because § 14(e)’s text does not manifest clear congressional intent to create a private right of action, one does not exist.

Securing Competitive Access: The Role of Supply Agreements in Mitigating Input Foreclosure Risks

By Editor-in-Chief NYU Moot Court Board

On March 13, 2025

In Contributions

by Alexander S. Greenberg*

This Contribution examines the important role that contractual supply agreements can play in addressing input foreclosure risks in vertical mergers. By analyzing the Microsoft/Activision merger and the Illumina/Grail acquisition, this Contribution assesses the efficacy of behavioral remedies such as supply agreements in preserving access to essential market inputs. The discussion highlights the adaptability of supply agreements in dynamic markets and their potential advantages over structural remedies. FTC v. Microsoft Corporation demonstrates how well-crafted supply agreements can facilitate regulatory approval by guaranteeing rivals’ access to crucial inputs. In contrast, the Federal Trade Commission’s rejection of Illumina’s Open Offer in Illumina, Inc. v. FTC underscores the limitations of broad behavioral remedies that fail to adequately prevent secondary harm. This Contribution argues that, when thoughtfully structured, supply agreements can serve as a powerful tool to mitigate vertical foreclosure concerns in rapidly evolving markets.

Persons Legally Responsible for Children in New York State: A Standard Diverging from Legislative Intent

By Editor-in-Chief NYU Moot Court Board

On March 13, 2025

In Contributions

by Noah Noonan*

The New York Family Court Act defines a “person legally responsible” for child abuse and neglect as a custodian, guardian, or any individual responsible for a child’s care. Matter of Yolanda D., the seminal case on this definition, held that to satisfy the third ‘catch-all’ category, the respondent must be the “functional equivalent” of a parent. Following that decision, New York State Family Courts deciding whether a respondent is a person legally responsible for a child’s care focused on the respondent’s role in the child’s life. Recently, though, the New York Court of Appeals readdressed the issue of how to characterize persons legally responsible in Matter of Trenasia J. The Court in Matter of Trenasia J. nominally applied the holding from Matter of Yolanda D.—that a person legally responsible must be a “functional equivalent” of a parent— but fundamentally changed the nature of this inquiry by allowing the simple existence of a familial relationship to be practically determinative. This Contribution argues that Matter of Trenasia J. improperly diverged from Matter of Yolanda D. and contravened the legislative intent behind the definition of a “person legally responsible.”

The Good Food Bill: The Impact of Federal and State Procurement Law on Implementing Sustainable Agricultural Standards in New York

By Editor-in-Chief NYU Moot Court Board

On February 20, 2025

In Contributions

by Rachel Klein*

The Good Food NY Bill (S.6955/A.7264) (“GFNY”) attempted to amend New York State’s General Municipal Law § 103(1) to allow municipalities and other political subdivisions to award food purchases to qualified purchasers where the price offered is up to 10% higher than the lowest bid and the proposed contract also meets at least one of six “best value” standards. GFNY passed the state legislature last legislative session and was rejected by Governor Kathy Hochul. Despite New York’s historical use of the lowest bidder procurement procedure, through which best value standards cannot be implemented as only price can be considered, this Contribution argues that GFNY’s use of best value is permissible through the formal request for proposals procurement method. GFNY is consistent with recent amendments to New York State law and guidance from the state government permitting the use of request for proposals procurement, which in turn permits use of best value standards. Existing case law and regulatory policy further supports the legality of the best value standards implemented by GFNY.

Wrong All Along: Why Using Deliberate Indifference for Claims by People Incarcerated Awaiting Trial is Unconstitutional

By Editor-in-Chief NYU Moot Court Board

On February 13, 2025

In Contributions

by Megan Haddad*

Almost half a million people in U.S. jails are considered “pretrial detainees”¹—people who are incarcerated while they await trial. Yet even though our criminal system presumes that the pretrial detainee is innocent, for decades federal courts of appeals have assumed that when jail officials fail to protect people detained pretrial, those people are entitled only to the diminished constitutional rights of “a prisoner”—a person who is incarcerated after being convicted. Although some circuit courts have begun to reverse course on this issue in response to Kingsley v. Hendrickson, application of the “prisoner” constitutional standard was always incorrect. This Contribution argues that deliberate indifference—the legal standard announced in Estelle v. Gamble and Farmer v. Brennan, which holds that the prisoner can only establish a constitutional violation by showing officials are deliberately indifferent to a substantial risk of harm—should never have been applied to pretrial detainee claims. This Contribution first describes the difference between the pretrial detainee and prisoner status, including how each corresponds to a different constitutional provision (the Due Process Clause and the Cruel and Unusual Punishments Clause, respectively). It then discusses the deliberate indifference standard, and how it is inextricably linked to the Cruel and Unusual Punishments Clause. Finally, it demonstrates that Supreme Court jurisprudence has always indicated that pretrial detainee claims warrant a different, Due Process Clause-based standard, and urges litigants to use the full picture of pretrial detainee/prisoner jurisprudential history to convince the remaining circuits to abandon the deliberate indifference standard for pretrial detainee claims.

Farmer versus Kingsley: Applying the Subjective Standard to Evaluate Deliberate Indifference Claims Brought by Incarcerated Individuals Awaiting Trial

By Editor-in-Chief NYU Moot Court Board

On February 11, 2025

In Contributions

by Jodi Lessner*

Section 1983 of the United States Code establishes a statutory basis for individuals to sue state and local government officials in federal court for violating their constitutional or federal statutory civil rights. For incarcerated individuals awaiting trial, § 1983 claims brought against corrections officials for unconstitutional conditions of confinement are rooted in the Due Process Clause of the Fourteenth Amendment, as opposed to § 1983 claims for those who have already been convicted, which are rooted in the Eighth Amendment. In Kingsley v. Hendrickson, the Supreme Court ruled that an objective standard should be used to analyze § 1983 claims for excessive force brought under the Fourteenth Amendment by incarcerated individuals awaiting trial. However, claims of deliberate indifference, which contain an inherently subjective component, defy analysis utilizing an objective standard. Therefore, this Contribution argues a subjective standard, as applied to the deliberate indifference claim brought by a convicted individual in Farmer v. Brennan, should also apply to deliberate indifference claims brought by individuals awaiting trial.

Editorial Discretion and Doxing: Possibilities for Social Media Regulation After Moody v. NetChoice, LLC

By Editor-in-Chief NYU Moot Court Board

On December 26, 2024

In Contributions

by Patience T. Adegboyega*

As technology continues to advance, legislatures are understandably concerned about maintaining the safety of their citizens. Doxing, the act of publicly releasing another’s information online, poses a threat to public safety. However, any legislation targeting doxing will have to be mindful to not infringe on the First Amendment rights of internet providers. In Moody v. NetChoice, LLC., the United States Supreme Court held that editorial discretion—the constitutionally protected right of older forms of media like newspapers to decide what speech they will or will not disseminate—also applies to social media platforms. This Contribution first lays out the framework courts use to analyze First Amendment speech issues, explores the meaning of editorial discretion, and demonstrates that doxing statutes targeting social media platforms may struggle to overcome First Amendment challenges based on editorial discretion. It then proposes a law that could address a platform’s response to doxing without triggering editorial discretion protections. Alternatively, it argues that even if such doxing regulation infringed on editorial discretion, states’ legitimate interests in enacting such legislation sufficiently outweigh the platform’s right to editorial discretion. While this Contribution does not explore it fully, it also recognizes that Section 230 of the Communications Decency Act of 1996 poses an additional barrier for the proposed doxing regulation if it survives constitutional scrutiny.

Boxing Out Racial Gerrymandering Claims: When Legislative Privilege and Discriminatory Intent Standards Collide

By Editor-in-Chief NYU Moot Court Board

On December 2, 2024

In Contributions

by Benjamin Lerude*

Courts have long recognized that legislative privilege—an evidentiary rule that allows legislators to avoid compelled disclosure of evidence related to aspects of the lawmaking process—is qualified, not absolute. This qualification enables plaintiffs to gain access to the evidence necessary to hold state legislatures accountable for laws predicated upon unconstitutional bias. However, two recent developments, operating in tandem, threaten to block plaintiffs from challenging biased legislation in the redistricting context: first, lower courts are expanding legislative privilege to obscure more of the state lawmaking process, and second, the Supreme Court has imposed new requirements for racial gerrymandering claims that demand from plaintiffs a heightened understanding of that process. In other words, voting rights plaintiffs are now expected to possess detailed knowledge of the motivations underpinning state legislation while some courts are simultaneously expanding legislative privilege to block them from acquiring that knowledge. This Contribution exposes this untenable position and argues that, in a legal system that already requires plaintiffs to prove discriminatory legislative intent to realize their civil rights, plaintiffs must have a viable means of piercing the veil of legislative secrecy. The longstanding qualifications and exceptions to legislative privilege must be maintained. Otherwise, state legislatures will be free to act with impunity, unbeholden to the constraints of the Constitution, and at great cost to their constituents.

Closing the Loophole: A Case for the Narrow Interpretation of ‘Corruptly’ in 18 U.S.C. § 1512(c)

By Editor-in-Chief NYU Moot Court Board

On December 2, 2024

In Contributions

by Cole Fanning-Haag*

In the wake of the Enron scandal, Congress enacted the Sarbanes–Oxley Act of 2001 to strengthen federal criminal laws against corporate crime and fraud. In part, the Act created 18 U.S.C. § 1512(c), which makes it a crime to “corruptly” obstruct an official proceeding. Given the breadth and power of this statute, questions have arisen about the proper interpretation of “corruptly” and two primary answers have been put forth. This Contribution argues for the narrower interpretation: that acting “corruptly” requires that the defendant act with intent to obtain an unlawful benefit. Not only does this reflect the term’s longstanding meaning, but it also better reflects the structure of the statute, avoids supercharging relatively minor crimes into felonies with significant punishments, and more closely adheres to the statute’s purpose.

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