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

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.

Contributions

Crim­mi­gra­tion is the inter­sec­tion of immi­gra­tion law and crim­i­nal law. At this inter­sec­tion, offi­cials are widen­ing the net of deportable offens­es at an alarm­ing rate to make immi­grants more sus­cep­ti­ble to removal. The “crime involv­ing moral turpi­tude” pro­vi­sion of the Immi­gra­tion and Nation­al­i­ty Act has been one means by which offi­cials have arbi­trar­i­ly expand­ed the rea­sons why a per­son may be deport­ed out of the Unit­ed States. But is the moral turpi­tude pro­vi­sion in 8 U.S.C. § 1227(a)(2)(A)(i) of the Immi­gra­tion and Nation­al­i­ty Act—used to jus­ti­fy deport­ing “crim­i­nal aliens,” includ­ing law­ful per­ma­nent residents—void for vague­ness pur­suant to the Fifth Amend­ment? In this Con­tri­bu­tion, Kameron John­ston (’21) argues that the recent Supreme Court deci­sions John­son v. Unit­ed States and Ses­sions v. Dimaya require that the exact­ing vague­ness test used in crim­i­nal con­texts be applied to immi­gra­tion law as well. Final­ly, this Con­tri­bu­tion demon­strates that the moral turpi­tude pro­vi­sion has pro­voked unpre­dictabil­i­ty and judi­cial con­fu­sion that sim­ply can­not be rec­on­ciled with the fair notice and enforce­ment stan­dards that due process demands.

Contributions

Fail­ure-to-warn claims in prod­ucts lia­bil­i­ty suits face spe­cial prob­lems in prov­ing cau­sa­tion. Many courts have respond­ed by estab­lish­ing a rebut­table pre­sump­tion that a plain­tiff would have read and heed­ed an ade­quate warn­ing if it had been pro­vid­ed. In this Con­tri­bu­tion, Jes­si­ca Christy (’21) con­sid­ers argu­ments that this “heed­ing pre­sump­tion” ulti­mate­ly under­mines the well-being of con­sumers, and con­cludes that such con­cerns are best addressed by rig­or­ous­ly defin­ing “warn­ing defect,” not by abol­ish­ing the pre­sump­tion of causation.

Contributions

When a motorist is arrest­ed on sus­pi­cion of intox­i­cat­ed dri­ving, the gov­ern­ment can­not com­pel him to sub­mit to a blood draw with­out a war­rant or war­rant excep­tion, nor can it make his refusal to sub­mit to a blood draw a crime. But can the gov­ern­ment use the refusal as evi­dence of guilt in a sub­se­quent DUI pros­e­cu­tion on the basis of an implied con­sent statute? In this Con­tri­bu­tion, Max Baum­bach (’21) argues that the Fourth Amend­ment pro­hibits the use of blood test refusal evi­dence in a DUI pros­e­cu­tion where the test itself would have been unlaw­ful to con­duct in the first instance.

Contributions

This Con­tri­bu­tion exam­ines whether com­pli­ance with the Fifth Amend­ment should shield a fed­er­al con­dem­na­tion action from a First Amend­ment retal­i­a­tion claim. Han­nah Beat­tie (’21) argues that the ratio­nales for carv­ing out safe har­bors for gov­ern­ment action to be free from First Amend­ment scruti­ny if in com­pli­ance with the Fourth Amend­ment do not extend to the Fifth Amend­ment con­text. Ulti­mate­ly, this Con­tri­bu­tion con­cludes that an indi­vid­ual should be able to raise a First Amend­ment retal­i­a­tion defense to a con­dem­na­tion action, even if the gov­ern­ment com­plied with the Fifth Amendment.

Contributions

Observers gen­er­al­ly agree that the assump­tion of execu­to­ry con­tracts by debtors in pos­ses­sion in Chap­ter 11 pro­ceed­ings pro­motes the pur­pos­es of the Bank­rupt­cy Code and accords with Con­gress’ intent. Yet courts have been riv­en by the ques­tion of whether the plain text of sec­tion 365 allows the prac­tice. This Con­tri­bu­tion argues that courts for­bid­ding assump­tion of execu­to­ry con­tracts by debtors in pos­ses­sion have mis­di­rect­ed the focus of their tex­tu­al analy­sis. Close exam­i­na­tion of an over­looked phrase with­in sec­tion 365 and of the inter­ac­tions between sec­tions 365 and 1107 pro­vides two inde­pen­dent tex­tu­al bases for courts to read the Code in keep­ing with con­gres­sion­al intent.