Mooting News

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.

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Contributions

by Kar­tik Sameer Madi­raju1Kartik Sameer Madi­raju is a 2L Root-Tilden-Kern Scholar at New York Uni­ver­sity School of Law. This piece is a com­men­tary on the 2016 Prob­lem at the Evans Con­sti­tu­tional Law Moot held in Madison, Wis­con­sin. The issue in the prob­lem dealt with whether advis­ing a res­i­dent alien that his guilty plea would sub­ject him to a risk of depor­ta­tion was suf­fi­cient advice under Padilla v. Ken­tucky, and con­sis­tent with the effec­tive assis­tance of coun­sel require­ment of the Sixth Amend­ment. The views expressed in this arti­cle do not nec­es­sar­ily rep­re­sent the views of the author on this point of law. Rather, this arti­cle is a dis­til­la­tion of one side of an argu­ment assigned to the team the author rep­re­sented at the Evans Con­sti­tu­tional Moot Court Competition.

Attor­neys hold extra­or­di­nary pow­ers within the legal sys­tem, not the least of which is the nearly (though not totally) dis­pos­i­tive nature of the advice they give to their clients. In com­plex dis­putes involv­ing statutes that are not wel­come to easy inter­pre­ta­tion by the courts them­selves, let alone defen­dants or plain­tiffs, attor­neys act as the gate­keeper to the infor­ma­tion that will help indi­vid­u­als make deci­sions about their legal issues. In con­trast, where the advice of an attor­ney will deter­mine whether a defen­dant per­forms, say, either one hun­dred or one hun­dred and fifty hours of com­mu­nity ser­vice, ambigu­ous or even erro­neous advice appears less dam­ag­ing. Con­tinue Read­ing

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Contributions

By Susanna Grif­fith1This arti­cle reflects my expe­ri­ence in the 2016 Spong Moot Court Com­pe­ti­tion, hosted by William & Mary Law School. The prob­lem was about a for­mer employee of the Cen­ter for Dis­ease Con­trol and Pre­ven­tion who, in the course of his work as a data ana­lyst, dis­cov­ered infor­ma­tion about a poten­tially dan­ger­ous pathogen. He pro­posed that the Cen­ter for Dis­ease Con­trol and Pre­ven­tion (CDC) release the infor­ma­tion to the pub­lic, and when his pro­posal was rejected and he was trans­ferred to another depart­ment, he accessed and released the infor­ma­tion any­way. The fact pat­tern raised the ques­tion of whether this employee—who accessed the infor­ma­tion using validly obtained cre­den­tials, yet in vio­la­tion of use restric­tions and direct instruc­tions from his employer—could be con­victed under the Com­puter Fraud and Abuse Act, 18 U.S.C. § 1030, for access­ing data “with­out autho­riza­tion” or “exceed[ing] autho­rized access.”

Today, some of the most sev­ere threats to com­puter data­bases come from the inside. Employ­ees who receive access to expan­sive employer data­bases and sub­se­quently act con­trary to the inter­ests of their employer cre­ate a unique cyber-security threat.<fn>See Richard Power, Cur­rent and Future Dan­ger: A CSI Primer on Com­puter Crime and Infor­ma­tion War­fare 4, 6, 36, 3d ed. 1998, cited in Mary M. Calkins, Note, They Shoot Tro­jan Horses, Don’t They? An Eco­nomic Analy­sis of Anti-Hacking Reg­u­la­tory Mod­els, 89 Geo. L.J. 171, 175 n. 17 (2000).</fn> But cir­cuits are split as to whether and how the Com­puter Fraud and Abuse Act—the pri­mary statute gov­ern­ing cyber crime and online fraud—should be applied in cases aris­ing from employee mis­use and mis­ap­pro­pri­a­tion of data. Con­tinue Read­ing

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Contributions

By Isaac Wein­gram 1The fol­low­ing arti­cle stems from my expe­ri­ence in the 2016 Global Antitrust Insti­tute Invi­ta­tional moot court com­pe­ti­tion. One of the ques­tions pre­sented, as part of the com­pe­ti­tion, was whether U.S. antitrust law should move to a total wel­fare stan­dard. As a part of that dis­cus­sion, I explored the effi­cien­cies defense to see if it rep­re­sented a move­ment toward a total wel­fare stan­dard. While I con­cluded that the effi­cien­cies defense pre­serves the cur­rent con­sumer wel­fare stan­dard, I also noticed sev­eral weak­nesses in the effi­cien­cies defense, which are dis­cussed below.

The “effi­cien­cies” or “economies” defense pro­vides a vehi­cle for merg­ing com­pa­nies to con­test alle­ga­tions that a merger will result in anti­com­pet­i­tive effects, which will harm the mar­ket and consumers.3See Oliver E. Williamson, Economies as an Antitrust Defense Revis­ited, 125 U. Pa. L. Rev. 699 (1977). The prin­ci­pal con­cern of courts with merg­ers is that increases in mar­ket con­cen­tra­tion will allow busi­nesses to use their mar­ket power to restrict out­put and increase prices.2See e.g., Hosp. Corp. of Am. v. Fed. Trade Comm’n, 807 F.2d 1381, 1386 (7th Cir. 1986) (explain­ing the con­cerns about coor­di­na­tion among mar­ket par­tic­i­pants as result of increased mar­ket concentration).  An economies defense would allow firms to show that the merger would not have these neg­a­tive effects. Instead, firms would have the oppor­tu­nity to show that a merger would allow the com­pa­nies to reduce pro­duc­tion costs or provide con­sumers with new goods and ser­vices through innovation.4See Williamson, supra note 2, at 699.  Con­tinue Read­ing

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Contributions

By David Clements1The fol­low­ing arti­cle reflects my expe­ri­ence writ­ing the prob­lem for the Spring 2016 Mar­den Moot Court Com­pe­ti­tion, spon­sored by the New York Uni­ver­sity School of Law Moot Court Board. The prob­lem posed two ques­tions: first, whether the domes­tic rela­tions excep­tion to fed­eral juris­dic­tion applies to “aris­ing under” juris­dic­tion, and sec­ond, what stan­dard should be applied to lim­ited pur­pose pub­lic fig­ures who bring defama­tion claims when the alleged defam­a­tory remarks are unre­lated to the plaintiff’s pur­pose for being a pub­lic fig­ure. This arti­cle dis­cusses the lat­ter ques­tion. I would like to express my sin­cer­est grat­i­tude to my fel­low Mar­den Writer Kaitlin Paulson, our Assoc­iate Exec­u­tive Edi­tor Tiana Voeglin, Case­book Exec­u­tive Edi­tor Michael Tra­cht, Mar­den Exec­u­tive Edi­tor Julia Gump­per, Editor-in-Chief Alec Web­ley, and the entire Moot Court Board for their sup­port, ideas, crit­i­cism, and feedback.

First Amend­ment pro­tec­tions of free­dom of speech and of the press often clash with com­mon law defama­tion claims. In New York Times Co. v. Sul­li­van,3376 U.S. 254 (1964). the Supreme Court attempted to strike a bal­ance between two coun­ter­vail­ing inter­ests: the com­mon law’s pro­tec­tion of a defamed person’s rep­u­ta­tion result­ing from false report­ing on the one hand, and First Amend­ment pro­tec­tions of the press and free­dom of speech on the other. The Supreme Court under­stood that it could not impose lia­bil­ity for every false state­ment pub­lished against a pub­lic offi­cial, as inac­cu­ra­cies are inevitable in a free-flowing pub­lic debate.4Id. at 271. Because impos­ing lia­bil­ity for neg­li­gent mis­state­ments would dampen the potency of pub­lic debate and the free­dom of press, the Supreme Court held that a pub­lic offi­cial could only recover “dam­ages for a defam­a­tory false­hood relat­ing to his offi­cial con­duct [if] he proves that the state­ment was made with ‘actual malice’—that is, with knowl­edge that it was false or with reck­less dis­re­gard of whether it was false or not.”2Id. at 279–80.

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Contributions

By Rahul Hari1The fol­low­ing arti­cle is a reflec­tion of opin­ions I formed dur­ing my par­tic­i­pa­tion in the 2015 National Moot Court Com­pe­ti­tion, spon­sored by the New York Bar. On the facts of the fic­tional record, a sophis­ti­cated trader, while at a party hosted by a tech-titan received infor­ma­tion that a much-vaunted pro­duct would be a mar­ket dis­as­ter. Over the week­end, the trader divested all her inter­est in the com­pany releas­ing the pro­duct. In a sub­se­quent grand jury inves­ti­ga­tion, a wit­ness who later became unavail­able due to a med­ical con­di­tion, made a series of com­ments that excul­pated the trader. Nonethe­less, the state­ments were excluded as hearsay and the trader was con­victed of insider trad­ing. While the case was sub­di­vided into two sep­a­rate issues – the first con­sid­er­ing the scope of insider trad­ing tippee lia­bil­ity – this arti­cle focuses on the sec­ond: whether excul­pa­tory state­ments given in a grand jury room can be entered against the Gov­ern­ment, despite the ban on hearsay, under the For­mer Tes­ti­mony exception.

In the grand jury room, the pros­e­cu­tor reigns sov­er­eign. She has the author­ity to sub­poena doc­u­ments, call sum­mary wit­nesses, and ques­tion tar­gets with­out the pres­ence of defense coun­sel. But what hap­pens when that grip loosens; when a wit­ness offers tes­ti­mony that excul­pates the prosecutor’s intended tar­get? Fast-forward to trial, when defense coun­sel attempts to admit the tes­ti­mony under the For­mer Tes­ti­mony excep­tion to the hearsay rule, and the pros­e­cu­tor is left mak­ing a strange argu­ment: she is not the per­son she was in the grand jury room.

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Contributions

By Alec Web­ley1The fol­low­ing Con­tri­bu­tion reflects my expe­ri­ence com­pet­ing in the 2015 Seigen­thaler First Amend­ment Moot Court Com­pe­ti­tion at Van­der­bilt Uni­ver­sity. The case involved a fifteen-year-old, K.E., who wanted to show her sup­port for a local ini­tia­tive that would have out­lawed work­place dis­crim­i­na­tion on the basis of sex­ual ori­en­ta­tion. She and some friends decided to print large, rain­bow stick­ers read­ing “Screw Hate, Don’t Dis­crim­i­nate” and wore them on their shirts. A group of reli­gious stu­dents at the school (and their par­ents) took umbrage at the stick­ers, though there were no phys­i­cal alter­ca­tions. Even­tu­ally the prin­ci­pal elected to ban the stick­ers, cit­ing their dis­rup­tive effect on the edu­ca­tional envi­ron­ment and the “crude” nature of the slo­gans them­selves. K.E. sued under 42 U.S.C. § 1983, claim­ing vio­la­tion of her First Amend­ment right to free speech. The ques­tion pre­sented was: Does a school dis­trict vio­late the First Amend­ment when they ban stick­ers read­ing “Screw Hate, Don’t Dis­crim­i­nate,” and if so, how?

There is, I sup­pose appro­pri­ately, some­thing child­ish about the stu­dent speech cases to arise since Tin­ker v. Des Moines Com­mu­nity School Dis­trict3393 U.S. 503 (1969). was handed down in 1968. In Tin­ker the ACLU chose its plain­tiffs well: quiet, respectable John and Mary Beth engaged in a silent, unob­tru­sive protest on pos­si­bly the most polit­i­cal of polit­i­cal matters—the Viet­nam War—only to be silenced by a dys­pep­tic school admin­is­tra­tion that made Dean Wormer4Animal House (Uni­ver­sal Pic­tures 1978). See also Dean Wormer Quotes, Inter­net Movie Data­base (Feb. 23, 2016), http://www.imdb.com/character/ch0010141/quotes (“The time has come for some­one to put his foot down. And that foot is me.”) look like Albus Dumbledore.2J.K. Rowl­ing, Harry Pot­ter and the Order of the Phoenix (1995) (“By all means con­tinue destroy­ing my pos­ses­sions; I dare­say I have too many.”) The Tin­kers, in short, acted like adults and the Supreme Court was ready for at least some pur­poses to treat them accord­ingly.

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