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.
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.
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.
Does the Supreme Court’s decision in Carpenter v. United States constrain the government’s warrantless use of pole cameras to surveil people it suspects are engaging in criminal activity? In this contribution, Jack Derewicz (’21) argues that the Carpenter opinion does not implicate this particular investigatory technique because pole cameras do not retroactively collect the type of information that, when aggregated, present the government with information it could not have otherwise obtained.
This Contribution examines whether a bar can discriminate on the basis of gender in its bartender hiring practices. Matthew Peterson (’21) argues that Title VII’s bona fide occupational qualification (“BFOQ”) exception should not shield bars from gender discrimination liability. The text and purpose of Title VII command a narrow interpretation of the BFOQ exception, and a bar catering to preferences for female bartenders is precisely the type of undesirable hiring practice that Title VII seeks to prohibit. The “essence” of a bar is making and distributing drinks, and the completion of these tasks does not depend upon the gender of a bartender. Courts should not permit bars to justify such discrimination with claims of supporting “authentic entertainment.” Unlike an actor or dancer, whose core job function is performance, a bartender’s primary responsibility is providing service.
For decades, the private right of action for securities fraud has been narrowed, both by Congress and in the courts. In this Contribution, Charles Bloom (’21) considers the extent to which the Supreme Court’s most recent decision in a securities fraud case reverses that trend. Ultimately, this Contribution will argue that the Court has permissibly expanded private liability for securities fraud, closing certain loopholes created by its earlier precedents.
Do Section 10(b) the Exchange Act and SEC Rule 10b‑5 apply to securities transactions entered into in the United States where the security is not sold on a national exchange and is valued based on the price of a different security not sold within the United States? In this Contribution, William Bristow (’21) discusses the implications of Morrison v. National Australia Bank Ltd., where the Supreme Court held that the Exchange Act does not apply extraterritorially and thus only applies to domestic securities transactions. This Contribution argues that Morrison’s “transactional test” establishes a sufficient condition for the application of the Exchange Act, not a necessary condition.
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. In this Contribution, Shrivats Sanganeria (’21) argues 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.