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.
The Fifth Amendment prohibits the taking of private property “without just compensation,” but the optimal method of determining the precise amount of money that will justly compensate the property owner is not always clear. The general rule has been to set compensation at the fair market value of the property at the time the government takes it, with certain exceptions. In this Contribution, Timothy Lyons (’21) argues that when the government makes a well-publicized pre-condemnation announcement, it may be appropriate to compensate the owner based on the property’s value at the time of the announcement rather than its value at the time of the taking.
This Contribution examines whether police have effectuated a Fourth Amendment seizure by show of authority when an individual flees from a momentary encounter. Dean S. Acheson (’21) argues that, under Fourth Amendment precedent, pre-flight compliance does not constitute submission to a show of authority in a police interaction that consists of answering brief questions and engaging in evasive behavior.
Do state laws that prohibit employers from discriminating against employees on the basis of medical marijuana cardholder status effectively protect cardholder employees? In this Contribution, Tian Lei (’21) argues that when courts recognize and legitimize employers’ interest in maintaining drug-free work-place policies, cardholder employees become especially vulnerable to adverse employment action. This Contribution establishes that drug-free workplace policies often leave cardholder employees with a choice between their health and their job and that the scope and legitimacy of such policies must be interrogated if the law is to protect medical marijuana cardholders from employment discrimination.
The federalist model of separation of powers often sets up protracted conflict over the extent to which the federal government is able to preempt the actions of states. Among the growing arenas for such preemption disputes is the field of controlled substances, which the federal government regulates under the Controlled Substances Act (“CSA”). However, several state legislatures have challenged the federal government’s preemptive authority by creating medical marijuana cardholder systems, where individuals can register for a card to obtain and consume medical marijuana. Any such state medical marijuana laws (“SMML”) that were modeled this way would prevent cardholders from being discriminated against by their employers, and shield doctors who prescribe medical marijuana from criminal liability. This article will demonstrate that any such state statute should be preempted under a theory of obstacle preemption, for the state would have affirmatively authorized conduct that Congress prohibited with the CSA, thus frustrating the purpose of the federal legislation.
Can plaintiffs bring state law claims of negligence per se based only on alleged violations of the Health Insurance Portability and Accountability Act (HIPAA)? In this Contribution, Ryan Knox (’19) discusses the interaction of HIPAA with state negligence claims and the legal and policy reasons challenging these private claims. This Contribution ultimately argues that negligence per se claims under state law should not be permitted to be brought when based only on alleged HIPAA violations.
Does the Second Amendment protect an absolute right to carry a firearm in public places for self-defense? In this Contribution, Michael Treves (’19) reviews the text and history of the Second Amendment and Supreme Court precedent, and assesses the application of the Second Amendment outside of the home. Ultimately, this Contribution argues that the “core” of the Second Amendment does not extend outside of the home, and thus public carry laws do not regulate conduct within the scope of the Second Amendment.
To what extent can a SEP holder can discriminate in how it licenses to suppliers without violating its FRAND commitment? In this Contribution, Arielle Koppell (’19) considers whether and how SEP holders can discriminate in licensing. Ultimately, this Contribution argues that a SEP holder should be able to arrange differential licensing terms for vertically integrated and non-vertically integrated licensee counterparts require its licensees to purchase tied non-SEP components when those non-SEP components are functionally related.
When does the use of the Exchange Act cross the line into forbidden extraterritoriality? In this contribution, Mathews R. de Carvalho (’19) examines recent federal court decisions which try to develop a body of law under which Section 10(b) might be applied to parties outside the United States without contravening the presumption against extraterritoriality. This Contribution argues that one approach taken by circuit courts – the irrevocable liability test – represents the most faithful application of the Supreme Court’s dictates in Morrison v. National Australia Bank Ltd.
Are plaintiffs who raise hybrid claims for unseaworthiness under the common law of admiralty and negligence under the Jones Act ineligible to obtain prejudgment interest? In this Contribution, Nate Blevins (’19) discusses the interaction of admiralty common law and the Jones Act—along with the Federal Employers Liability Act incorporated therein—that has led to a circuit split on this issue. Ultimately, this Contribution argues that, contrary to the rule in most circuits, a plaintiff who prevails on both counts of a hybrid claim should be eligible for prejudgment interest.
Must interpreters be available for cross examination under the Confrontation Clause? In this Contribution, Caleb Younger (’19) discusses the conduit theory in light of the Supreme Court’s decision in Crawford v. Washington and subsequent lower court findings. Ultimately, this Contribution argues that the Crawford Court properly interpreted the Sixth Amendment and that the language conduit theory fails under both Supreme Court jurisprudence and the Constitutional text.