The Proceedings of the NYU Moot Court Board, or just “Proceedings,” is the online journal of the NYU Moot Court Board, documenting new approaches to unsettled legal questions proceeding from moot court activities, particularly law student competitions.
Proceedings aims to realize for the wider legal community a benefit of mooting that has hitherto accrued only to participants. As most appellate lawyers know, one of the best ways to refine a theory of a case or an area of law is to argue about it, either with colleagues or before law school professors. But student Moot Court competitions, which consider some of the most interesting and intractable problems in law, generate hundreds of hours of formal, inquisitorial analysis of those problems by professors, practitioners, and judges (not to mention reams of legal writing)–and then, too often, the results are thrown away when the competition is over.
No longer. Proceedings is the journal where lawyers and law students can publish their “test results” from the legal laboratory of mooting that tests both old and new approaches to unsettled areas of law. It aims to realize mooting’s potential not only as a valuable educational exercise, but as a productive forum for legal research.
How should courts assess whether employees suffering from symptoms associated with gender dysphoria are entitled to unpaid, job-protected leave under the Family Medical Leave Act (FMLA)? Josh Thorn (’17) explores this question, based on his experience competing at the Wagner Moot Court Competition, held at New York Law School in March 2016. The FMLA limits eligibility for leave to employees with “serious health conditions” preventing the employee from working. This Contribution urges courts to primarily consider whether the treatment required for employees diagnosed with depression and anxiety resulting from gender dysphoria — and not merely the symptoms of the condition itself — would prevent the employee from working in determining whether there exists a “serious health condition” under the FMLA.
Does warrantless, prolonged location tracking violate the Fourth Amendment’s protections against unreasonable searches? Hogan Paschal (’17) examines this question, based on her experience at the 2016 Spong Moot Court Tournament, hosted by William & Mary Law School on February 12-13th, 2016. The location tracking tools employed by Government investigators have become more sophisticated and widespread, often eroding the practical constraints that government resources previously imposed on search power. This Contribution posits a more holistic reading of the Fourth Amendment, that simultaneously acknowledges its historical context and modern investigative challenges. Ultimately, it argues that courts should restore Fourth Amendment safeguards by requiring a warrant as a precursor to the government’s use of prolonged location tracking.
Should stadium owners or operators be liable for injuries to spectators caused by foul balls, or is limiting such liability necessary to protect America’s pastime? Jake Calvert (’17) explores this question, based on his experience at the 2016 Tulane Mardi Gras Sports Law Invitational on February 3rd, 2016. Historically, the baseball rule has limited the duty of care game attendees on the grounds that a more typical negligence analysis would force venue owners and teams to take unreasonable precautions. The Contribution ultimately argues that the baseball rule should be supplanted by more modern notions of tort liability, such as comparative fault, that would account for the specific factors of a particular baseball game injury.
Is the test for copyright infringement necessarily vague and ad hoc, as Judge Learned Hand once said, or can the test be made rigorous? Based on his experience in the 2016 Cardozo BMI Moot Court Competition, Aaron Lichter (’17) explores this question by discussing the various copyright infringement tests that courts use to determine liability. Specifically, the “total concept and feel” test assesses copyright infringement based on contextual, abstract concepts rather than specific details such as plot elements or characters. The Contribution concludes that, despite its ambiguity, the “total concept and feel” test provides protections that outweigh potential problems with its vagueness.
Are Administrative Law Judges (ALJs) inferior officers of the United States under the Appointments Clause of the Constitution, rendering the Securities and Exchange Commission’s (SEC) procedure for appointing ALJs unconstitutional? Procedurally, how could a respondent in an SEC administrative action make such a challenge? Jordan Gary (’17) explores this question, as presented in the 2016 Kaufman Moot Court Competition at Fordham Law School. Supreme Court doctrine places a demanding burden on plaintiffs seeking to circumvent SEC administrative processes. Additionally, the SEC is neither bound by, nor required to defer to, initial ALJ determinations in reaching its ultimate determination within a proceeding. As a result, this Contribution argues that, as a matter of both law and policy, Article III district courts should not have subject-matter jurisdiction over constitutional claims challenging SEC administrative procedure, and that SEC ALJs do not constitute inferior officers under the Appointments Clause of the Constitution.
Are investors precluded from engaging in appraisal arbitrage under Delaware law, if its shares are retitled under the “street name” of a different Depository Trust Company participant before the effective date of a merger? Nate Kiechel (’17) examines this question, as presented in the 2016 Annual Ruby R. Vale Interschool Moot Court Competition, held at Widener University Delaware Law School. Delaware’s statutory definition of “stockholder” has failed to account for technological advances in underlying market systems, creating uncertainty for appraisal arbitrage investors. This Contribution argues that these arbitrageurs should be permitted to retain their right to the appraisal remedy despite underlying processes that may result in their shares being retitled, and urges the Delaware General Assembly to adopt a definition of “stockholder” that better reflects these processes and accords with the corresponding definition in federal securities laws.
May bankruptcy courts assume “related to” jurisdiction under 28 U.S.C. § 1334(b) over a post-confirmation successor liability suit when the estate’s assets have already been disbursed? Michael Murray (’17) examines this question, based on his experience at the 2016 Duberstein Moot Court Competition, sponsored by St. John’s University School of Law. His Contribution analyzes the legal landscape of “related to jurisdiction” in bankruptcy courts. Ultimately, the Contribution proposes that the Seventh Circuit has adopted the clearest interpretation of the statute and reasonably limits “related to” jurisdiction to disputes in which either the debtor is a party or the dispute affects the amount or distribution of the debtor’s estate.
Does a high school men’s baseball team regulation governing player hairstyles violate players’ Due Process or Equal Protection rights? Matt Olsen (’17) examines this question, based on his experience at the 2016 Tulane Mardi Gras Sports Law Invitational Competition. His Contribution discusses the Seventh Circuit’s ruling in Hayden v. Greensburg School Community Corporation, the sole circuit court case to address the constitutionality of extracurricular athletic grooming regulations in the context of an Equal Protection claim. Although the adoption of the holding by other courts remains to be seen, the Contribution concludes that the ruling could serve as a powerful means to strike down personal appearance regulations based on gender stereotypes.
Do passports and Consular Reports of Birth Abroad constitute conclusive proof of U.S. citizenship such that the State Department’s revocation of these documents is not impermissibly retroactive? Sonya Chung (’17) and Zi Lin (’17) examine this question, based on their experience as writers of the problem for the New York University School of Law 2016 Immigration Law Competition. Their Contribution discusses the state of the law surrounding passports and CRBAs as evidence of citizenship and their revocability. The Contribution argues that courts should allow individuals to use these documents as conclusive proof of citizenship and that the State Department’s power to correct its own errors should be circumscribed carefully in cases where there has been extended reliance on citizenship rights.
Does an attorney satisfy a resident alien client’s Sixth Amendment right to effective counsel by informing the client of the mere risks of deportation associated with a guilty plea, or must she predict the likelihood of deportation with even greater specificity? Kartik Madiraju (’17) examines this question, presented at the 2016 Evans Constitutional Law Moot, held at the University of Wisconsin. Though the Supreme Court has held that attorneys must inform their clients whether a guilty plea carries a risk of deportation, several of the Circuit Courts of Appeals disagree on how specifically an attorney must characterize the likelihood of that risk. This Contribution argues that the majority interpretation, requiring only that attorneys advise their clients of the mere existence of such a risk, is more consistent with the letter and spirit of Supreme Court precedent, and better reflects the discretionary nature of an Attorney General’s decision to order deportation.