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

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.

Contributions

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.

Contributions

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.

Contributions

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.

Contributions

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.