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

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.

Contributions

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.

Contributions

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.

Contributions

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.

Contributions

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.

Contributions

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.

Contributions

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.

Contributions

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.

Contributions

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.

Contributions

Can an employ­ee who has accessed com­put­er data­base infor­ma­tion in vio­la­tion of use restric­tions and direct instruc­tions from his employ­er be con­vict­ed under the Com­put­er Fraud and Abuse Act for access­ing data “with­out autho­riza­tion” or “exceed[ing] autho­rized access”? Susan­na Grif­fith (’17) reflects on this ques­tion, based on her expe­ri­ence at the 2016 Spong Moot Court Tour­na­ment, host­ed by William & Mary Law School. Her Con­tri­bu­tion dis­cuss­es the legal land­scape and cir­cuit split regard­ing the applic­a­bil­i­ty of the statute to employ­ees who have vio­lat­ed use restric­tions and direc­tives from employ­ers. The Con­tri­bu­tion argues that the nar­row, code-based view is prefer­able as the clear­ly con­sti­tu­tion­al read­ing that also com­ports with stan­dards of excel­lence in the field of cyber-secu­ri­ty.