N.Y.U. Proceedings – Exploring New Approaches to Unsettled Legal Questions

The Good Food Bill: The Impact of Federal and State Procurement Law on Implementing Sustainable Agricultural Standards in New York

On February 20, 2025

by Rachel Klein*

The Good Food NY Bill (S.6955/A.7264) (“GFNY”) attempted to amend New York State’s General Municipal Law § 103(1) to allow municipalities and other political subdivisions to award food purchases to qualified purchasers where the price offered is up to 10% higher than the lowest bid and the proposed contract also meets at least one of six “best value” standards. GFNY passed the state legislature last legislative session and was rejected by Governor Kathy Hochul. Despite New York’s historical use of the lowest bidder procurement procedure, through which best value standards cannot be implemented as only price can be considered, this Contribution argues that GFNY’s use of best value is permissible through the formal request for proposals procurement method. GFNY is consistent with recent amendments to New York State law and guidance from the state government permitting the use of request for proposals procurement, which in turn permits use of best value standards. Existing case law and regulatory policy further supports the legality of the best value standards implemented by GFNY.

Wrong All Along: Why Using Deliberate Indifference for Claims by People Incarcerated Awaiting Trial is Unconstitutional

By Editor-in-Chief NYU Moot Court Board

On February 13, 2025

In Contributions

by Megan Haddad*

Almost half a million people in U.S. jails are considered “pretrial detainees”¹—people who are incarcerated while they await trial. Yet even though our criminal system presumes that the pretrial detainee is innocent, for decades federal courts of appeals have assumed that when jail officials fail to protect people detained pretrial, those people are entitled only to the diminished constitutional rights of “a prisoner”—a person who is incarcerated after being convicted. Although some circuit courts have begun to reverse course on this issue in response to Kingsley v. Hendrickson, application of the “prisoner” constitutional standard was always incorrect. This Contribution argues that deliberate indifference—the legal standard announced in Estelle v. Gamble and Farmer v. Brennan, which holds that the prisoner can only establish a constitutional violation by showing officials are deliberately indifferent to a substantial risk of harm—should never have been applied to pretrial detainee claims. This Contribution first describes the difference between the pretrial detainee and prisoner status, including how each corresponds to a different constitutional provision (the Due Process Clause and the Cruel and Unusual Punishments Clause, respectively). It then discusses the deliberate indifference standard, and how it is inextricably linked to the Cruel and Unusual Punishments Clause. Finally, it demonstrates that Supreme Court jurisprudence has always indicated that pretrial detainee claims warrant a different, Due Process Clause-based standard, and urges litigants to use the full picture of pretrial detainee/prisoner jurisprudential history to convince the remaining circuits to abandon the deliberate indifference standard for pretrial detainee claims.

Farmer versus Kingsley: Applying the Subjective Standard to Evaluate Deliberate Indifference Claims Brought by Incarcerated Individuals Awaiting Trial

By Editor-in-Chief NYU Moot Court Board

On February 11, 2025

In Contributions

by Jodi Lessner*

Section 1983 of the United States Code establishes a statutory basis for individuals to sue state and local government officials in federal court for violating their constitutional or federal statutory civil rights. For incarcerated individuals awaiting trial, § 1983 claims brought against corrections officials for unconstitutional conditions of confinement are rooted in the Due Process Clause of the Fourteenth Amendment, as opposed to § 1983 claims for those who have already been convicted, which are rooted in the Eighth Amendment. In Kingsley v. Hendrickson, the Supreme Court ruled that an objective standard should be used to analyze § 1983 claims for excessive force brought under the Fourteenth Amendment by incarcerated individuals awaiting trial. However, claims of deliberate indifference, which contain an inherently subjective component, defy analysis utilizing an objective standard. Therefore, this Contribution argues a subjective standard, as applied to the deliberate indifference claim brought by a convicted individual in Farmer v. Brennan, should also apply to deliberate indifference claims brought by individuals awaiting trial.

Editorial Discretion and Doxing: Possibilities for Social Media Regulation After Moody v. NetChoice, LLC

By Editor-in-Chief NYU Moot Court Board

On December 26, 2024

In Contributions

by Patience T. Adegboyega*

As technology continues to advance, legislatures are understandably concerned about maintaining the safety of their citizens. Doxing, the act of publicly releasing another’s information online, poses a threat to public safety. However, any legislation targeting doxing will have to be mindful to not infringe on the First Amendment rights of internet providers. In Moody v. NetChoice, LLC., the United States Supreme Court held that editorial discretion—the constitutionally protected right of older forms of media like newspapers to decide what speech they will or will not disseminate—also applies to social media platforms. This Contribution first lays out the framework courts use to analyze First Amendment speech issues, explores the meaning of editorial discretion, and demonstrates that doxing statutes targeting social media platforms may struggle to overcome First Amendment challenges based on editorial discretion. It then proposes a law that could address a platform’s response to doxing without triggering editorial discretion protections. Alternatively, it argues that even if such doxing regulation infringed on editorial discretion, states’ legitimate interests in enacting such legislation sufficiently outweigh the platform’s right to editorial discretion. While this Contribution does not explore it fully, it also recognizes that Section 230 of the Communications Decency Act of 1996 poses an additional barrier for the proposed doxing regulation if it survives constitutional scrutiny.

Boxing Out Racial Gerrymandering Claims: When Legislative Privilege and Discriminatory Intent Standards Collide

By Editor-in-Chief NYU Moot Court Board

On December 2, 2024

In Contributions

by Benjamin Lerude*

Courts have long recognized that legislative privilege—an evidentiary rule that allows legislators to avoid compelled disclosure of evidence related to aspects of the lawmaking process—is qualified, not absolute. This qualification enables plaintiffs to gain access to the evidence necessary to hold state legislatures accountable for laws predicated upon unconstitutional bias. However, two recent developments, operating in tandem, threaten to block plaintiffs from challenging biased legislation in the redistricting context: first, lower courts are expanding legislative privilege to obscure more of the state lawmaking process, and second, the Supreme Court has imposed new requirements for racial gerrymandering claims that demand from plaintiffs a heightened understanding of that process. In other words, voting rights plaintiffs are now expected to possess detailed knowledge of the motivations underpinning state legislation while some courts are simultaneously expanding legislative privilege to block them from acquiring that knowledge. This Contribution exposes this untenable position and argues that, in a legal system that already requires plaintiffs to prove discriminatory legislative intent to realize their civil rights, plaintiffs must have a viable means of piercing the veil of legislative secrecy. The longstanding qualifications and exceptions to legislative privilege must be maintained. Otherwise, state legislatures will be free to act with impunity, unbeholden to the constraints of the Constitution, and at great cost to their constituents.

Closing the Loophole: A Case for the Narrow Interpretation of ‘Corruptly’ in 18 U.S.C. § 1512(c)

By Editor-in-Chief NYU Moot Court Board

On December 2, 2024

In Contributions

by Cole Fanning-Haag*

In the wake of the Enron scandal, Congress enacted the Sarbanes–Oxley Act of 2001 to strengthen federal criminal laws against corporate crime and fraud. In part, the Act created 18 U.S.C. § 1512(c), which makes it a crime to “corruptly” obstruct an official proceeding. Given the breadth and power of this statute, questions have arisen about the proper interpretation of “corruptly” and two primary answers have been put forth. This Contribution argues for the narrower interpretation: that acting “corruptly” requires that the defendant act with intent to obtain an unlawful benefit. Not only does this reflect the term’s longstanding meaning, but it also better reflects the structure of the statute, avoids supercharging relatively minor crimes into felonies with significant punishments, and more closely adheres to the statute’s purpose.

Cautious Derogation: Why States Should Not Be Permitted to Recover Under Gambling Loss Recovery Acts

By Editor-in-Chief NYU Moot Court Board

On November 5, 2024

In Contributions

by Luke Pluta-Ehlers*

For the bulk of American history, most forms of gambling have been illegal or heavily regulated. To further deter unlawful gambling, 30 states have passed Loss Recovery Acts (“LRAs”), which allow the loser of an illegal gambling transaction to sue the winner. Some states’ LRAs go further, allowing a third party to sue for doubled or tripled damages if the loser does not bring suit. One such state is Kentucky. In 2020, the Kentucky Supreme Court decided Commonwealth ex rel. Brown v. Stars Interactive Holdings, ruling that the state of Kentucky qualified as “any other person” and could thus sue for treble damages under the state’s LRA. The court reasoned that because the state has exclusive domain over prosecuting criminal cases, the state should not be presumed excluded from the group of persons with standing to sue under the LRA. This Contribution argues that the appellate court decision overturned by the Kentucky Supreme Court better handled the novel question of whether a state can sue under an LRA. The appellate court’s approach was more in line with the cautious manner in which other courts have interpreted who can sue and be sued under penal qui tam gambling statutes. Further, this Contribution argues that permitting a state to sue under an LRA is a troubling grant of authority, as it allows the state to delegate and pursue enforcement of its criminal laws under the more generous standard of a civil lawsuit. This Contribution briefly discusses the history of LRAs, compares the holdings of the Kentucky appellate court and Supreme Court, and explains why the appellate court better examined the state’s role in law enforcement via a penal LRA.

Nothing to Latch Onto: Trademark Law’s Unpredictability in Laches Defenses Calls for a Statute of Limitations

By Editor-in-Chief NYU Moot Court Board

On October 29, 2024

In Contributions

by Max Schneider*

Trademark ownership is on the rise, and with it comes an increase in trademark infringement claims under the Lanham Act. This uptick may be in part because the Lanham Act does not have a statute of limitations. Alleged infringers therefore, often raise the laches defense. Under a laches defense, if the trademark owner unreasonably delays in asserting their claim, and the delay unduly prejudices the alleged infringer, then courts may find that the infringement suit is time-barred, or they may say the equities weigh in favor of letting the case proceed. While an equitable doctrine like laches balances the harms in each case, it opens the door for far more infringement suits that may otherwise have been clearly time-barred by a statute of limitations. Given the sharp increase in infringement suits, more and more defendants are asserting laches defenses. This Contribution suggests that Congress should amend the Lanham Act to include a statute of limitations. Doing so would create uniformity across areas of intellectual property law, provide concrete notice to trademark owners, reduce infringement suits that crowd courts, and alleviate inconsistent rulings that muddle the meanings of “unreasonable” and “prejudice.”

Fishers Meet Fischer: How Fischer May Help Loper Bright Weaken the Administrative State

By Editor-in-Chief NYU Moot Court Board

On October 29, 2024

In Contributions

by Joshua Averbach*

On June 28, 2024, the United States Supreme Court decided two controversial, seemingly unrelated cases: Fischer v. United States and Loper Bright Enterprises v. Raimondo. Fischer narrowly interprets a federal criminal obstruction statute, vacating the convictions of some January 6 insurrectionists and weakening the related prosecution of Donald Trump. Loper Bright overturned Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., a landmark case requiring courts to defer to reasonable agency interpretations of ambiguous statutes. This Contribution will discuss how Loper Bright weakens the administrative state by expanding courts’ ability to strike down agency action. It argues that Fischer stands for a narrow brand of statutory interpretation that may bolster the regulatory challenges made possible by Loper Bright.

Is Theft Truly a Dishonest Act?

By Editor-in-Chief NYU Moot Court Board

On October 15, 2024

In Contributions

By Tommaso Morrione*

Rule 609 of the Federal Rules of Evidence governs the impeachment of witnesses with their past criminal convictions. Under Rule 609(a)(2), a court must admit a conviction for impeachment purposes if establishing the elements of the crime “required proving — or the witness’s admitting — a dishonest act or false statement.” Historically, some courts admitted misdemeanor theft convictions under Rule 609(a)(2); however, in 2006 the rule was amended to only admit convictions with a statutory element of deceit. While this amendment should exclude theft-based crimes from Rule 609(a)(2)’s automatic admission, the text of the amended rule still does not explicitly preclude their admission. This Contribution analyzes the arguments for and against the admission of theft-based crimes under Rule 609(a)(2), and ultimately concludes that these crimes should not be automatically admissible under the rule. While the text of Rule 609(a)(2) may be ambiguous, legislative history and policy rationales underscore that theft-based crimes are not sufficiently probative of testimonial dishonesty to be automatically admissible under the rule. Finally, this Contribution puts forward possible solutions that may provide clarity and finality regarding Rule 609(a)(2) and the admission of theft-based crimes.

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