Contributions

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

Numer­ous states have legal­ized mar­i­jua­na both for recre­ation­al and med­i­c­i­nal use. Many of those same states have also tak­en the step of legal­iz­ing gam­bling. In this Con­tri­bu­tion, Antho­ny Cruz (’22) exam­ines the legal issues that result when two heavi-ly reg­u­lat­ed indus­tries like the cannabis and gam­ing indus­tries over­lap. State-based pro­hi­bi­tions on gam­ing licensees par­tic­i­pat­ing in the cannabis mar­ket, both by statute and by reg­u­la­tion, present issues of statu­to­ry con­struc­tion in light of con­flict-ing leg­isla­tive sig­nals; issues of admin­is­tra­tive due process against a back­drop of per­pet­u­al­ly evolv­ing state and fed­er­al guide­lines on con­trolled sub­stances; and issues of intrastate federalism.

Contributions

The Eighth Amend­ment pro­hibits cru­el and unusu­al pun­ish­ments. But prov­ing an Eighth Amend­ment vio­la­tion based on dan­ger­ous or unfit prison con­di­tions is dif­fi­cult because it requires a show­ing of sub­jec­tive cul­pa­bil­i­ty on the part of prison offi­cials. Fed­er­al courts have grown increas­ing­ly aware of the harm­ful nature of soli­tary con­fine­ment, par­tic­u­lar­ly for juve­niles, the men­tal­ly ill, and inmates with spe­cial med­ical needs. In this Con­tri­bu­tion, Jane M. Mahan (’22) argues that the place­ment of vul­ner­a­ble inmates in soli­tary con­fine­ment for a peri­od exceed­ing fif­teen con­sec­u­tive days should be per se uncon­sti­tu­tion­al under the Eighth Amendment.

Contributions

The First Amendment’s Reli­gion Claus­es pro­vide that “Con­gress shall make no law respect­ing the estab­lish­ment of reli­gion, or pro­hibit­ing the free exer­cise there­of .…” The Reli­gion Claus­es clear­ly pro­hib­it both the Fed­er­al and state gov­ern­ments from estab­lish­ing an offi­cial state reli­gion or hin­der­ing reli­gious prac­tice to such an extent that it results in a con­sti­tu­tion­al infringe­ment. How­ev­er, the Supreme Court has long acknowl­edged that absent those two clear com­mands “there is room for play in the joints” when address­ing the con­sti­tu­tion­al­i­ty of gov­ern­ment action that impli­cates reli­gious belief. Does a tax ben­e­fit that pro­vides a finan­cial ben­e­fit to a lim­it­ed class of reli­gious employ­ees and their employ­ers vio­late the Estab­lish­ment Clause? In this Con­tri­bu­tion, Alec Soghomon­ian (‘22) argues that the Par­son­age Exemp­tion, found in 26 U.S.C. § 107(2) of the Unit­ed States tax code, unlaw­ful­ly pro­vides a ben­e­fit to reli­gious employ­ees and employ­ers because it does not extend to sim­i­lar­ly sit­u­at­ed non-reli­gious institutions.

Contributions

In copy­right law, an artist does not sign away the copy­right to an art­work sim­ply by allow­ing the art­work to appear in an art gallery. How­ev­er, where par­ties agree in writ­ing that a work is a “work made for hire” and where a work is a “con­tri­bu­tion to a col­lec­tive work,” the com­mis­sion­ing party—and not the artist—is the copy­right own­er. In this Con­tri­bu­tion, Michael Glad­stone (’22) argues that in at least one case, an art gal­lerist could own the copy­right in an artist’s work: where the work was specif­i­cal­ly com­mis­sioned for use in a per­ma­nent art installation.

Contributions

Law enforce­ment agen­cies are increas­ing­ly seek­ing to com­pel the dis­clo­sure of pass­words from the own­ers of pass­word-pro­tect­ed encrypt­ed devices, such as cell phones. Does the gov­ern­ment have the right to com­pel this dis­clo­sure? In this Con­tri­bu­tion, Diego Wright (‘22) argues that the Fifth Amend­ment right against self-incrim­i­na­tion pro­tects an indi­vid­ual from being forced to dis­close their pass­code when ana­lyzed under the “fore­gone con­clu­sion” doc­trine unless the gov­ern­ment can demon­strate they already know the tes­ti­mo­ni­al com­mu­ni­ca­tions tac­it in the act of pro­vid­ing the passcode.

Contributions

Only human beings have been rec­og­nized as inven­tors under the Patent Act. This is large­ly because patents are only grant­ed to inven­tors capa­ble of “con­cep­tion.” Until recent­ly, it was an agreed upon fact that no non-human enti­ties are been capa­ble of per­form­ing the men­tal acts required of con­cep­tion. How­ev­er, advance­ments in arti­fi­cial intel­li­gence (“AI”) tech­nol­o­gy have cast seri­ous doubt on this posi­tion. Thus, the ques­tion has arisen; can an arti­fi­cial intel­li­gence  be rec­og­nized as the inven­tor of a patent? In this con­tri­bu­tion, Delon Lier (‘21) con­sid­ers whether the USPTO was cor­rect in deter­min­ing that the Patent Act and Fed­er­al Cir­cuit prece­dent fore­clos­es the pos­si­bil­i­ty of AI enti­ties being rec­og­nized as inven­tors. Ulti­mate­ly, this con­tri­bu­tion argues that while the USPTO was cor­rect to reject inven­tor­ship under the text of the Patent Act, it was incor­rect in deter­min­ing that any future AI would fail the Fed­er­al Circuit’s legal stan­dard of “con­cep­tion.”

Contributions

This Con­tri­bu­tion exam­ines whether an artist can claim copy­right pro­tec­tion over art they cre­at­ed with the assis­tance of an arti­fi­cial intel­li­gence pro­gram. Nao­mi Per­la (’21) argues that such works sat­is­fy the “orig­i­nal work of author­ship” require­ment pur­suant to 17 U.S.C. § 102(a), there­by grant­i­ng copy­right pro­tec­tion to the artist. The require­ments of both author­ship and orig­i­nal­i­ty are sat­is­fied due to the artist’s cre­ative choic­es that are large­ly reflect­ed in the fin­ished pieces. More­over, the Copy­right Act is meant to expand to include new works of art so that artists are con­sis­tent­ly incen­tivized to cre­ate for the ben­e­fit of the public.

Contributions

Nego­ti­at­ing a plan of reor­ga­ni­za­tion is the most con­se­quen­tial aspect of a Chap­ter 11 bank­rupt­cy process for both debtors and cred­i­tors. The bal­ance of pow­er in that nego­ti­a­tion process is prin­ci­pal­ly defined by the require­ments for vot­ing and plan approval which are laid out in sec­tion 1129(a) of the Bank­rupt­cy Code. Courts are divid­ed as to whether, in a case where a class of claims is pro­posed to be impaired under a joint, mul­ti­debtor plan, sec­tion 1129(a)(10) of the Bank­rupt­cy Code re-quires accep­tance from at least one impaired class of claims of any one debtor (the “per plan” approach) or, alter­na­tive­ly, accep­tance from one impaired class of claims of each debtor (the “per debtor” approach). In this Con­tri­bu­tion, Elaine Ander­sen (’21) argues that the “per plan” approach bet­ter com­ports with the text, con­text, and pur­pose of the section.

Contributions

In this Con­tri­bu­tion, Emi­ly Kaplan (’21) address­es the pro­pri­ety of sum­ma­ry judg­ment when a casi­no patron rais­es a vol­un­tary intox­i­ca­tion defense to con­tract­ing. Courts around the coun­try rec­og­nize the vol­un­tary intox­i­ca­tion defense in a casi­no con­text, which requires the casi­no patron to prove his and the casi­no employ­ees’ states of mind. In gen­er­al, sum­ma­ry judg­ment is typ­i­cal­ly not appro­pri­ate in cas­es involv­ing state of mind because whether a par­ty had the req­ui­site state of mind will be a ques­tion of fact. This has even more weight in the vol­un­tary intox­i­ca­tion con­text, where a court will rarely be able to decide as a mat­ter of law whether a casi­no patron was suf­fi­cient­ly intox­i­cat­ed to ren­der the patron unable to under­stand the nature and con­se­quences of his action, or whether the casi­no knew or had rea­son to know of that intox­i­ca­tion. Both deter­mi­na­tions are required to pre­vail on a vol­un­tary intox­i­ca­tion defense. More­over, it would be a poor pol­i­cy choice to allow casi­nos to prof­it off of their over­ly intox­i­cat­ed patrons. This arti­cle does not address the pro­pri­ety of allow­ing a vol­un­tary intox­i­ca­tion defense in the casi­no con­text, but as long as the defense is rec­og­nized, it can­not be mere­ly illu­so­ry; patrons must have the abil­i­ty to pre­vail, at least to tri­al. There­fore, casi­nos should gen­er­al­ly not be able to use sum­ma­ry judg­ment as a tool to prof­it off of intox­i­cat­ed casi­no patrons.

Contributions

Despite decades of Fed­er­al Cir­cuit prece­dent, a clear def­i­nite­ness rubric for func­tion­al patent claims cov­er­ing soft­ware inven­tions remains eva­sive. Ques­tions per­sist on what con­sti­tutes suf­fi­cient struc­ture to absolve these claims of means-plus-func­tion treat­ment. The lev­el of algo­rith­mic speci­fici­ty required to ensure def­i­nite­ness for claims that are draft­ed in means-plus-func­tion form is sim­i­lar­ly abstruse. In this Con­tri­bu­tion, Zachary Hadd (’21) argues that even soft­ware-spe­cif­ic “struc­ture” is best inter­pret­ed under the means-plus-func­tion frame­work and that accord­ing def­i­nite­ness to any­thing less than step-by-step algo­rith­mic de-tail is not only unjus­ti­fied, but ulti­mate­ly incon­sis­tent with Fed­er­al Cir­cuit precedent.