How should the law determine whether a true threat was made with intent sufficient to not merit First Amendment protection? In this Contribution, Ben Lazarus (’18) analyzes the different approaches circuit courts have taken to answer this question. This Contribution argues that an objective test for what constitutes a threat is most in line with the Supreme Court’s precedents and reasoning when confronting threatening speech.
Does the Fourth Amendment protect a tenant’s privacy in a shared storage unit? Can law enforcement search the whole space if her cotenant consents? In this Contribution, Rachel Lerner (’18) analyzes whether a tenant has a reasonable expectation of privacy in the space and whether it is reasonable for police to search the space upon a third-party’s consent. The Contribution argues that the Fourth Amendment protects a shared storage unit either as curitlage under Dunn or under the Katz test, and law enforcement cannot reasonably search a well-demarcated section of the unit if another cotenant consents.
Does a board of directors’ power to direct a corporation allow it to tie its own hands in the course of negotiating debt agreements? In this Contribution, Caitlin Millat (’18) analyzes the problem of dead-hand proxy puts under Delaware law, considering whether these provisions are ever allowed, and if they are, under what standard of scrutiny they should be reviewed. This contribution argues that dead-hand proxy put provisions should be evaluated under the business judgment rule, not the Unocal enhanced scrutiny standard.
Should a board of directors of a parent company owe fiduciary duties not just to its shareholders, but also to the shareholders of companies involved in limited partnerships with one of its subsidiaries? In this Contribution, Natalie Noble (’18) discusses the implications of In re USACafes, L.P. Litigation, in which the Delaware Chancery Court held that the board of directors of a corporation engaged in a limited partnership owe fiduciary duties to the limited partnership and the limited partners. This Contribution argues that the USACafes doctrine should be abandoned because it discourages freedom of contract, dissuades investors from financing new enterprises, and contravenes bedrock doctrines of corporate law.
Should musicians be free to use samples from the work of others in there songs without having to pay for them, or should sampled artists have a right to get paid for their work? In this Contribution, Lee Nisson (’18) unpacks the copyright issues around digital sampling of music, exploring the doctrine of de minimis use. Despite the artistic merits of sampling in music, the Contribution argues that all sampling constitutes copyright infringement.
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.
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.
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.
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.
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.