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.

Contributions

In the dig­i­tal age, how should pri­va­cy con­cerns con­strain police inves­ti­ga­tions? In this Con­tri­bu­tion, Christo­pher J. Ryd­berg con­sid­ers this prob­lem with respect to forc­ing sus­pects to unlock smart­phones and speci­fici­ty require­ments with respect to smart­phone search war­rants. Ulti­mate­ly, the Con­tri­bu­tion argues that smart­phones are dif­fer­ent in kind because of the mas­sive scope of data they con­tain, and thus his­tor­i­cal doc­trines of police process will have to change to accom­mo­date the smart­phone era. 

Contributions

Can antitrust law be made rig­or­ous in how it ana­lyzes whether a firm is harm­ing com­pe­ti­tion in a mar­ket? Jonathan Het­tle­man (’18) tack­les this ques­tion, which was at the cen­ter of the 2017 Prob­lem at the Glob­al Antitrust Institute’s Invi­ta­tion­al Moot Court Com­pe­ti­tion in Wash­ing­ton, D.C. His­tor­i­cal­ly, EU law imposed height­en duties on firms con­sid­ered “dom­i­nant,” with­out look­ing to the mar­ket effects of par­tic­u­lar actions. By look­ing to recent devel­op­ments in how EU law con­sid­ers rebate schemes, this Con­tri­bu­tion argues that antitrust law should con­tin­ue to build on the bur­geon­ing effects-based approach to deter­min­ing whether a firm’s con­duct fore­clos­es com­pe­ti­tion.

Contributions

If a bak­er has a reli­gious objec­tion to same-sex mar­riage, would a law that doesn’t allow him to refuse to sell to a same-sex cou­ple for their wed­ding vio­late his First Amend­ment rights? In this Con­tri­bu­tion, Jesse Klinger tack­les the prob­lem of whether pub­lic accom­mo­da­tions laws — laws that pro­hib­it dis­crim­i­na­tion in the pro­vi­sion of goods and ser­vices — imper­mis­si­bly com­pel a per­son to speak. The Con­tri­bu­tion exam­ines the Supreme Court’s com­pelled speech prece­dents and argues that mes­sage attri­bu­tion is the key issue. In par­tic­u­lar, because pub­lic accom­mo­da­tions laws are con­tent-neu­tral, a speaker’s First Amend­ment rights are vio­lat­ed only if one would attribute a par­tic­u­lar mes­sage to the provider of the goods or ser­vices in ques­tion.

Contributions

Should the copy­right law doc­trines of merg­er and scènes-à-faire be eval­u­at­ed by courts as bars to copy­righta­bil­i­ty or as defens­es to infringe­ment? Ryan Law­son (’17) engages this ques­tion, based on his expe­ri­ence writ­ing for the 40th Edi­tion of the NYU Moot Court Board’s Case­book pub­lished in Decem­ber 2016. There is cur­rent­ly a cir­cuit split with­in the Unit­ed States Courts of Appeals regard­ing whether the doc­trines of merg­er — which exempts from copy­right pro­tec­tion ideas that can only be expressed in a sin­gle or few ways — and scènes-à-faire — which exempts from copy­right pro­tec­tion cer­tain ubiq­ui­tous, foun­da­tion­al expres­sive tropes and devices — should be treat­ed by courts either as bars to copy­righta­bil­i­ty, or as defens­es to infringe­ment. This Con­tri­bu­tion argues that, in order to resolve this cir­cuit split while pre­serv­ing the flex­i­bil­i­ty and strength of these doc­trines, courts should adopt a copy­right law test that incor­po­rates con­sid­er­a­tions from the relat­ed trade­mark doc­trine of gene­r­i­cide.

Contributions

Is the Board of Immi­gra­tion Appeals’ (“BIA”) test for deter­min­ing whether an asy­lum-seek­er qual­i­fies as a refugee too restric­tive? Clay Venetis (’17) address­es this ques­tion based on his expe­ri­ence at the Asy­lum and Refugee Law Nation­al Moot Court Com­pe­ti­tion, held at the Uni­ver­si­ty of Cal­i­for­nia Davis School of Law in March 2016. In order to obtain pro­tec­tion from per­se­cu­tion on the basis of their mem­ber­ship in a group not spec­i­fied in the Immi­gra­tion and Nation­al­i­ty Act (“INA”), asy­lum-seek­ers must show that their par­tic­u­lar social group pos­sess­es “soci­etal dis­tinc­tion” — recog­ni­tion by soci­ety in gen­er­al, and not just the alleged gov­ern­ment per­se­cu­tors — in their coun­try of ori­gin. This Con­tri­bu­tion argues that the “soci­etal dis­tinc­tion” require­ment cre­ates a “catch-22” that unfair­ly denies asy­lum to those who deserve it, and urges courts to adopt a more flex­i­ble, case-by-case approach to deter­min­ing whether an indi­vid­ual qual­i­fies for asy­lum.

Contributions

Do state laws that con­di­tion the issuance of con­cealed car­ry per­mits on an applicant’s show­ing of “good cause” uncon­sti­tu­tion­al­ly bur­den those appli­cants’ Sec­ond Amend­ment rights? Sarah Good­field (’17) explores this ques­tion, raised at the 2016 “Fall” Mar­den Com­pe­ti­tion, at the New York Uni­ver­si­ty School of Law. Gen­er­al­ly, “good cause” restric­tions require that appli­cants show some spe­cial rea­son for car­ry­ing a con­cealed weapon. Writ­ing from the per­spec­tive of the 2016 “Fall” Mar­den respon­dent, this Con­tri­bu­tion ana­lyzes “good cause” require­ments in their his­tor­i­cal and legal con­text, and ulti­mate­ly con­cludes that such restric­tions do not bur­den core Sec­ond Amend­ment rights.

Contributions

Do state laws that con­di­tion the issuance of con­cealed car­ry per­mits on an applicant’s show­ing of “good cause” uncon­sti­tu­tion­al­ly bur­den those appli­cants’ Sec­ond Amend­ment rights? Andy Deb­bins (’17) address­es this ques­tion, raised at the 2016 “Fall” Mar­den Com­pe­ti­tion, at the New York Uni­ver­si­ty School of Law. Gen­er­al­ly, “good cause” restric­tions require that appli­cants show some spe­cial rea­son for car­ry­ing a con­cealed weapon. Writ­ing from the per­spec­tive of the 2016 “Fall” Mar­den peti­tion­er, this Con­tri­bu­tion argues that a sim­ple, straight-for­ward read­ing of the Sec­ond Amend­ment ren­ders “good cause” restric­tions uncon­sti­tu­tion­al.

Contributions

Does the fair use doc­trine apply to online search results that dis­play excerpts from copy­right­ed mate­ri­als? Mol­ly Bal­ti­more (’17) address­es this ques­tion based on her expe­ri­ence at the Car­do­zo BMI Moot Court Com­pe­ti­tion held in March 2016, and con­cludes that it should be answered in the affir­ma­tive. The fair use doc­trine allows sec­ondary users to copy or repro­duce oth­er authors’ works with­out being liable for copy­right infringe­ment in cer­tain instances. Ulti­mate­ly, the Con­tri­bu­tion argues that, under an expan­sive read­ing of the fair use doc­trine, search­able online data­bas­es that mere­ly con­vey infor­ma­tion about a copy­right­ed work can do so in a trans­for­ma­tive man­ner, and with­out caus­ing real eco­nom­ic harm. 

Contributions

What evi­den­tiary bur­den must pris­ons must sat­is­fy in order to show that its pol­i­cy restrict­ing an inmate’s reli­gious exer­cise is suf­fi­cient­ly nar­row­ly tai­lored under Reli­gious Land Use and Insti­tu­tion­al­ized Per­sons Act (RLUIPA)? Staci Cox (’17) exam­ines this ques­tion, raised at the Touro Law School Moot Court Com­pe­ti­tion on April 7th, 2016. In assess­ing whether a prison’s pol­i­cy that restricts reli­gious exer­cise is suf­fi­cient­ly nar­row­ly tai­lored under RLUIPA, courts exam­ine the reli­gious exemp­tions already pro­vid­ed to inmates with­in the facil­i­ty; if no exemp­tions are already pro­vid­ed, courts ask whether the prison could effec­tu­ate its pol­i­cy through less restric­tive means, with­out undu­ly bur­den­ing oth­er inmates or strain­ing prison oper­a­tions. This con­tri­bu­tion argues that, in order to demon­strate that their poli­cies are suf­fi­cient­ly nar­row­ly tai­lored under RLUIPA, pris­ons must sat­is­fy a sig­nif­i­cant evi­den­tiary bur­den by show­ing: the fre­quen­cy with which cur­rent exemp­tions are used, the costs of pro­vid­ing addi­tion­al exemp­tions, and the extent would threat­en the safe­ty and secu­ri­ty of inmates.

Contributions

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