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.
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.
Do allegations of terrorist conduct along with the accused’s unrelated criminal records, establish probable cause under the Fourth Amendment? In this Contribution, Daniel Kugler (’19) discusses how circuits have approached this and similar questions using the Supreme Court’s totality of the circumstances framework. This Contribution argues that an ex-spouse’s allegations of terrorism—such as stockpiling weapons and posting terrorist propaganda on social media—are insufficient to establish probable cause to search for contraband when accompanied only by the accused’s unrelated criminal records.
When does a public official’s private social media account become a tool of governance subject to constitutional analysis? In this Contribution, Leah Rosenberg (’19) argues that public officials who use their personal social media pages to interact with the public and announce policy should be required to protect constituents’ constitutional rights and may not engage in viewpoint discrimination. This Contribution recommends that courts apply a context-specific approach to censorship claims against state officials and that court consider the specific activities challenged by assessing whether state resources and employees were used to take those actions, if the content pertained to government activities or policy, and whether the official was acting as an agent of the state at the time the censorship occurred.
Does a state official engage in viewpoint discrimination in a state-sponsored forum when they delete a constituent’s comments or block them from their social media pages? In this Contribution, Maggie Seery (’19) discusses the possible constitutional violations an official may make when using social media to interact with the public. Ultimately, this Contribution argues that deleting a comment or blocking a user from a public social media page constitutes unconstitutional viewpoint discrimination.
Does a plaintiff alleging sexual orientation discrimination state a valid cause of action under Title VII of the Civil Rights Act of 1964? In this Contribution, Erika Murdock (’19) discusses whether sexual orientation discrimination is encompassed within the language of Title VII after recent EEOC and appellate court cases. Ultimately, this Contribution argues that Title VII’s prohibition of discrimination on the basis of “sex” inherently encompasses sexual orientation as a subset of the sex discrimination it bans.