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

Coordination Without Conversation: Reciprocal Data-Pooling and Algorithmic Price-Fixing Under Section 1

On September 4, 2026

by Malcolm Girand*

Section 1 of the Sherman Act reaches only concerted action, whereas parallel outcomes that reflect independent business judgment remain lawful. The proliferation of shared algorithmic pricing tools has strained that line, and courts have divided over what a plaintiff must plead to establish an unlawful agreement. Some have dismissed these claims at the threshold, treating the absence of a clearly alleged agreement as dispositive and requiring allegations that virtually negated independent explanations at the pleading stage. This Contribution argues that such an approach misreads Bell Atlantic Corp. v. Twombly, importing an evidentiary demand associated with trial and summary judgment into Rule 12. It further argues that courts should recognize reciprocal algorithmic data-pooling—competitors contributing their own nonpublic, competitively sensitive, current data to a common pricing system that uses those data in generating recommendations for known rivals, with each contributor aware of the reciprocal arrangement—as a plus factor to infer agreement from parallel conduct. Because such reciprocal algorithmic data-pooling is difficult to explain as ordinary unilateral conduct and strongly suggests mutual assurance, it ordinarily suffices—joined with parallel conduct and the remaining elements of the claim—to support a plausible inference of agreement and reach discovery.

Geofence Warrants After Chatrie: A Proposal for a Model Warrant

By Annemarie Ardy

On August 31, 2026

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by Charles Kim*

The Supreme Court’s decision in Chatrie v. United States fundamentally altered the constitutional landscape governing so-called “geofence warrants” by holding that when the government acquires comprehensive location history data, it must first obtain a warrant which satisfies the Fourth Amendment’s probable cause and particularity requirements. But Chatrie left a critical question unanswered: how would a constitutionally valid geofence warrant meet those requirements? This Contribution argues that the warrant at issue in Chatrie fell short because it authorized an increasingly intrusive search while leaving nearly every consequential decision to law enforcement officers rather than a neutral magistrate. Although anonymization of location data can substantially mitigate the privacy concerns associated with its disclosure, it is meaningful only if accompanied by safeguards that prevent premature de-anonymization. Building on these principles, this Contribution proposes a model geofence warrant that would require renewed judicial authorization before each expansion of the search. By restoring judicial oversight, the model warrant better reconciles legitimate law enforcement needs with the Fourth Amendment’s historical commitment to protecting privacy from unbounded government discretion.

Testifying by Fingerprint: Why the Government Can’t Force You to Unlock Your Phone

By Annemarie Ardy

On August 29, 2026

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by Annemarie Ardy*

Cell phones have become ubiquitous in modern life; they are often carried everywhere and used to facilitate nearly every activity. Yet their incredible convenience is a double-edged sword: when searched by law enforcement, the wealth of information contained on a cell phone can paint a more intimate and fine-grained portrait of a person’s life than 24/7 surveillance. Passcodes and biometric scanners—mechanisms that permit a user to unlock a device through its recognition of the user’s face or fingerprint—stand in the government’s way, but only so long as courts do not permit the government to compel people to unlock their phones. Although the compulsion of a passcode clearly violates the Fifth Amendment’s Self-Incrimination Clause, courts have split on the question of whether compulsion of biometric scanning receives similar protections. This Contribution argues that courts should treat the use of biometric scanners as categorically testimonial and therefore protected by the Self-Incrimination Clause. Biometric scanners convey information that is classically testimonial, and to hold otherwise would pose unacceptable risks to personal privacy.

The Johnson Amendment After Catholic Charities: The Return of Larson v. Valente Strict Scrutiny

By Annemarie Ardy

On August 29, 2026

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by Christopher Cokinos*

The Supreme Court’s decision in Larson v. Valente established that laws creating explicit preferences among religious denominations must be analyzed under strict scrutiny for Establishment Clause violations. For more than four decades after Larson was handed down, the Court left many questions open as to what an explicit denominational preference was and whether Larson strict scrutiny was even a viable test. However, following Catholic Charities v. Wisconsin Labor and Industrial Review Commission, where the Supreme Court used the Larson strict scrutiny analysis as the core of its decision, the vitality of Larson is clear. With this newfound life, both the government and religious organizations are hoping to strike down the Johnson Amendment: a ban on direct political participation by 501(c)(3) organizations, including churches. This Contribution argues that such a challenge to the Johnson Amendment does not fit within the Larson doctrine, since, although Larson is rather unclear in its applicability and whether strict scrutiny is the operative test, the Johnson Amendment is not a denominational preference as contemplated by the relatively thin Larson body of case law.

Public Forums and Private Firearms: The Application of the First Amendment to the Second Amendment

By Editor-in-Chief NYU Moot Court Board

On May 19, 2026

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by Réka Illei*

In 2008 with District of Columbia v. Heller, the Supreme Court began its overhaul of Second Amendment jurisprudence and left lower courts in a state of limbo on how to evaluate permissible state restrictions on firearm possession. In 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, the Court affirmed the right to carry a firearm for self-defense outside of the home. At the same time, the Court left open the notion of “sensitive places,” such as schools and government buildings, in which firearm restrictions may be more permissible under the Second Amendment. In the years since, states have attempted to regulate firearm possession in parks under the Bruen historical analogue framework. Still, Bruen provides little to lower courts regarding how to properly identify if a location is a sensitive place for the purposes of relaxing Second Amendment protections. Meanwhile, First Amendment jurisprudence has established a forum analysis for the similar purpose of evaluating rights-restricting speech regulations, which is familiar to and faithfully applied by courts across the country. This Contribution argues that courts should appropriate the First Amendment forum framework for the Second Amendment analysis of sensitive places and historical analogues as established by Bruen.

Closing the Liability Loophole: Why Contracting Out Constitutional Violations Does Not Immunize State Actors Under Section 1983

By Editor-in-Chief NYU Moot Court Board

On May 18, 2026

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by Alessandra Quattrocchi*

Section 1983 operates as the foremost method of rights vindication for individuals in jails and prisons across the country, allowing incarcerated individuals to sue for the plethora of constitutional violations they suffer while in confinement. But the text of the statute only affirms liability for state actors. Amidst the rise in prison privatization, the Supreme Court carved out circumstances in which private actors can be held liable under § 1983. Nevertheless, the Court has yet to consider whether in such cases the relevant state actor is equally liable for the wrongs perpetuated by the private parties it chose to enter contractual arrangements with. When the state contracts out constitutional duties in jails and prisons, any ensuing rights violations that constitute the policy or custom of the contracted private actor become enshrined in state action. In turn, this Contribution argues that the state actor that sanctioned the contract can and should be held directly liable under § 1983 for the unconstitutional conduct of the private actor that was contracted to perform a constitutional duty for the local incarcerated population.

Modern Governance Demands a Functionalist Approach in Evaluating Private Delegations

By Editor-in-Chief NYU Moot Court Board

On May 6, 2026

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by Sydnie Caster*

Although the Supreme Court has not invalidated a private delegation since 1936, debate around the constitutionality of private delegations has persisted among scholars and courts. Circuit courts are split regarding the constitutionality of the private delegation in the Horseracing Integrity and Safety Act (“HISA”). The debate regarding the constitutionality of HISA is rooted in a broader discussion about the legality of private delegations in relation to separation of powers principles. There are two principal theories of separation of powers: functionalism and formalism. The functionalist approach focuses on how government works in practice, weighing the overall balance of power between branches of government. The formalist approach focuses on the text of the Constitution and endorses strict separation of roles for each branch of government. This Contribution argues that courts should adopt a functionalist approach to evaluating private delegations in order to preserve the flexibility and expertise necessary for effective modern governance, while ensuring political accountability and preventing self-interested regulation by private entities.

Reviewing Government-Approved Commodity Advertising under the APA

By Editor-in-Chief NYU Moot Court Board

On April 28, 2026

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by Joey Schnide*

Commodity checkoff boards, or quasi-governmental entities created by statute to research and promote agricultural commodities, are responsible for well-known advertising campaigns like “Got Milk?” and “Beef, it’s what’s for dinner.” Checkoff boards must have all advertisements pre-approved by the United States Department of Agriculture (“USDA”). When the USDA pre-approves commodity checkoff advertisements containing misleading claims, ordinary false-advertising remedies such as the Lanham Act and state torts cannot overcome the barriers to seeking relief imposed by doctrines of sovereign immunity and government speech. This Contribution argues that, to correct this accountability gap, courts should permit review of USDA’s approval decisions under the Administrative Procedure Act (“APA”). Since USDA approvals constitute final agency action and are thus reviewable under § 704 of the APA, producers who have been harmed by false or misleading advertisements should be able to seek judicial orders setting those approvals aside. Recognizing the permissibility of APA review would not unduly expand liability for commodity checkoff boards; rather, it would merely enforce limits Congress has already imposed through statute.

Protecting the FTCA: Why Federal Employees Do Not Have Discretion to Violate the Constitution

By Editor-in-Chief NYU Moot Court Board

On April 24, 2026

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by Sabrina Ruch*

The Federal Tort Claims Act (“FTCA”) is a limited waiver of sovereign immunity that provides a cause of action for individuals to recover for negligent or wrongful acts by federal employees within the scope of their employment. However, Congress provided for certain exceptions to this waiver, including the discretionary function exception, which shields federal employees from liability for claims arising out of actions taken in their discretion. This includes making a policy-based decision within the scope of their employment. Circuit courts are divided over whether a federal employee’s conduct can fall within the discretionary function exception when the plaintiff plausibly alleges that the employee’s actions violated the Constitution. The proper understanding of the discretionary function exception is that it does not shield employees from liability when their actions are alleged to be unconstitutional because federal employees do not have the discretion to violate the Constitution. To hold otherwise would be contrary to the plain meaning of discretion, the Supreme Court’s understanding of discretion in other contexts, and Congress’s intent when passing the FTCA and crafting its exceptions.

Time Off, Not Time Out: Leaves of Absence as Reasonable Accommodations Under the ADA

By Editor-in-Chief NYU Moot Court Board

On April 22, 2026

In Contributions

by Tristan Sirls*

The Americans with Disabilities Act of 1990 (“ADA”) prohibits employers from discriminating against their employees with disabilities through a variety of means, including by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” Circuit courts are divided, however, on whether leaves of absence qualify as reasonable accommodations under the statute. While several circuits approach leaves of absence on an individualized basis, the Seventh Circuit in Byrne v. Avon Products found that “not working is not a means to perform [a] job’s essential functions” and adopted a categorical rule barring leaves of absence from qualifying as reasonable accommodations. This Contribution argues that the Seventh Circuit’s categorical ban on leaves of absence as reasonable accommodations is inconsistent with the ADA’s text, contrary to Supreme Court precedent, and unnecessary as a practical matter. Courts must instead evaluate leaves of absence like any other potential accommodation: through an individualized inquiry that considers the burdens that a grant or denial would impose on all parties.

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