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.
by Kartik Sameer Madiraju
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
By Susanna Griffith
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
By Isaac Weingram
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. 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. 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. Continue Reading
By David Clements
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, 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. 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.”
By Rahul Hari
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.
By Alec Webley
There is, I suppose appropriately, something childish about the student speech cases to arise since Tinker v. Des Moines Community School District 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 Wormer look like Albus Dumbledore. The Tinkers, in short, acted like adults and the Supreme Court was ready for at least some purposes to treat them accordingly.