Editor-in-Chief NYU Moot Court Board – Page 7

by Bex Rothenberg-Montz^*

Although members of the general public enjoy a right to free speech under the First Amendment, government employees’ speech is more constrained. Courts determine whether a government employee’s speech is protected by balancing the interests of the government and the employee. However, in practice, the deference afforded to the government typically tips the scales. Because courts defer to the government’s interests without requiring substantiating evidence, the government is able to stifle employee speech and erode First Amendment protections for its employees. Consequently, this deference conditions free speech protections upon public employment status. Abandoning this deference will bring First Amendment jurisprudence in line with the principles that animated its enactment.

“All Obligations”: The Consequences of Rejecting a Commercial Lease in Bankruptcy

By Editor-in-Chief NYU Moot Court Board

On September 15, 2022

In Contributions

by Kevin Lissemore*

11 U.S.C. § 365 grants a bankruptcy trustee or debtor in pos-session the power to reject executory contracts and unexpired commercial leases. Subsection (d)(3) specifies that, while the bankrupt party is deciding to assume or reject a lease, the trustee must “timely perform all the obligations of the debtor” under the lease. This subsection has given rise to significant litigation when a debtor opts to reject their lease in the middle of a rental period, particularly where the lease makes the entire period’s rent due in advance on the first day of the period. The landlord and bankrupt parties in this situation disagree about what a bankrupt party is obligated to pay: the entire rent for the final rental period or a prorated cost that covers the period prior to the rejection. However, the plain text of the statute only embraces the former interpretation. Beyond the clear textual basis, additional interpretive resources like the statutory purpose and preferable policy outcomes also align with this interpretation, resulting in an undeniable interpretation in favor of landlords.

West Flagler Associates v. Haaland: An Attempt to Game the Indian Gaming Regulatory Act

By Editor-in-Chief NYU Moot Court Board

On September 13, 2022

In Contributions

by Matthew Dorfman*

In 2021, the Seminole Tribe of the State of Florida and the State of Florida signed a gaming compact that was tacitly approved by Secretary of the Interior Deb Haaland. The compact allowed the Seminole Tribe to operate an online sports gambling application throughout the State by deeming the location of all gaming activity as having taken place exclusively on Native lands. This Contribution argues that the meaning of the word “on” as derived from ordinary usage and from usage under similar statutory circumstances precludes the perspective adopted by the Seminole Tribe and the State of Florida, and thus requires the Secretary of the Interior to reject the gaming compact.

Forcing a “Low-Tech Peg” into a “Cutting-Edge Hole”: Why Applying the Pre-Digital Age Foregone Conclusion Exception to Smartphones Would Impermissibly Narrow the Fifth Amendment

By Editor-in-Chief NYU Moot Court Board

On June 6, 2022

In Contributions

by Heather Globerman*

The majority of courts are in agreement that the implied admissions from a person being forced to produce a cellphone passcode—that the evidence sought exists and is authentic, and that the phone’s owner possessed that evidence—are testimonial and therefore protected by the Fifth Amendment privilege against self-incrimination. But can the government force this production regardless by arguing for the application of the foregone conclusion exception to the privilege, a doctrine that the Supreme Court has never applied outside of an analogue business or tax context? In this Contribution, Heather Globerman (‘22) argues that both Supreme Court precedent and practical considerations forestall the extreme narrowing of the Fifth Amendment that would follow such an application of the foregone conclusion exception to a modern, personal, and digital context.

The Prison Mailbox Rule and Represented Appellants

By Editor-in-Chief NYU Moot Court Board

On May 31, 2022

In Contributions

by Rose Kent*

The prison mailbox rule, as codified in Federal Rule of Appellate Procedure 4(c), states that an incarcerated litigant’s notice of appeal is considered timely filed if it is deposited in the prison’s internal mailing system on or before the filing deadline. The Supreme Court introduced this rule in the context of a pro se prisoner, and it remains unclear whether represented prisoners may also benefit from the rule. In this Contribution, Rose Kent (’22) argues that Rule 4(c) applies to all incarcerated people, regardless of whether they are represented by counsel.

Pleading the Fifth in State Regulatory Proceedings Concerning State-Sanctioned Medical Marijuana Use

By Editor-in-Chief NYU Moot Court Board

On May 4, 2022

In Contributions

by Andrew Wells*

To date, thirty-six states have legalized the possession and use of medical marijuana. However, marijuana possession—regardless of use—is still a federal crime under the Controlled Substances Act (21 U.S.C. § 811). This discrepancy means that an individual legally using medical marijuana under state law can still be prosecuted for violating federal law. In this Contribution, Andrew Wells (’22) argues that Fifth Amendment privilege invocation is proper in such circumstances because the Fifth Amendment protects individuals against compelled disclosures that would create the possibility of prosecution.

The Role of the Rule of Lenity and the Canon of Constitutional Avoidance in Interpreting the Computer Fraud and Abuse Act

By Editor-in-Chief NYU Moot Court Board

On May 2, 2022

In Contributions

by Rachel Sang*

The Computer Fraud and Abuse Act (“CFAA”), enacted in 1986, is a federal law that proscribes certain behavior involving unauthorized access to computers. Over time, a circuit split developed regarding the meaning of the CFAA’s “Access Provision.” The Supreme Court resolved this circuit split in its recent decision Van Buren v. United States. In this Contribution, Rachel Sang (’22) argues that although both the majority opinion and the dissent in Van Buren provide convincing textual interpretations of the statute, policy considerations, the rule of lenity, and constitutional concerns weigh in favor of the majority’s construction of the CFAA.

A Growing Need for Data Privacy Protection: Federal Preemption in the Data Privacy Arena

By Editor-in-Chief NYU Moot Court Board

On April 28, 2022

In Contributions

by Mark Vandenberg*

Data privacy is a burgeoning concern for the United States because federal telecommunications law was last meaningfully updated in 1996. The sheer amount of data collected about people’s private lives—which is now often publicly available—was simply unimaginable to lawmakers at that time. In the face of federal inaction on this problem, states have begun to move forward with their own data privacy protection laws, leading to questions regarding federal preemption. In this Contribution, Mark Vandenberg (’22) argues that neither field nor conflict preemption stand in the way of states working to protect their citizens with more robust data privacy laws and regulations.

The Cruel and Unusual Nature of Denying Self-Identity: The Eighth Amendment and Gender Confirmation Surgery

By Editor-in-Chief NYU Moot Court Board

On April 25, 2022

In Contributions

by Virginia Su*

This Contribution examines whether the denial of Gender Confirmation Surgery to a transgender inmate suffering from severe gender dysphoria constitutes cruel and unusual punishment under the Eighth Amendment. Virginia Su (’22) argues that, under Eighth Amendment precedent, the denial of medically necessary gender confirmation surgery constitutes deliberately indifferent conduct by prison officials.

Automatic Repeal? The Automatic Stay and the Federal Arbitration Act in Bankruptcy Proceedings

By Editor-in-Chief NYU Moot Court Board

On April 21, 2022

In Contributions

by Lorenzo Antonio Hoppe Villegas*

While the Bankruptcy Code’s automatic stay halts actions against debtors who have declared bankruptcy, the Federal Arbitration Act (“FAA”) may nonetheless require debtors to resolve disputes with their creditors in arbitration. In this Contribution, Lorenzo Villegas (’22) argues that the passage of 11 U.S.C. § 362 and related judicial code provisions does not impliedly repeal the Federal Arbitration Act (“FAA”). Therefore, arbitration agreements between creditors and debtors who have filed a Chapter 11 bankruptcy petition are valid and enforceable in the face of the Bankruptcy Code’s automatic stay in some circumstances.

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Exploring New Approaches to Unsettled Legal Questions

Author: Editor-in-Chief NYU Moot Court Board Page 7 of 12

Undo Deference: Reversing the Erosion of Public Employees’ Free Speech Rights

“All Obligations”: The Consequences of Rejecting a Commercial Lease in Bankruptcy

West Flagler Associates v. Haaland: An Attempt to Game the Indian Gaming Regulatory Act

Forcing a “Low-Tech Peg” into a “Cutting-Edge Hole”: Why Applying the Pre-Digital Age Foregone Conclusion Exception to Smartphones Would Impermissibly Narrow the Fifth Amendment

The Prison Mailbox Rule and Represented Appellants

Pleading the Fifth in State Regulatory Proceedings Concerning State-Sanctioned Medical Marijuana Use

The Role of the Rule of Lenity and the Canon of Constitutional Avoidance in Interpreting the Computer Fraud and Abuse Act

A Growing Need for Data Privacy Protection: Federal Preemption in the Data Privacy Arena

The Cruel and Unusual Nature of Denying Self-Identity: The Eighth Amendment and Gender Confirmation Surgery

Automatic Repeal? The Automatic Stay and the Federal Arbitration Act in Bankruptcy Proceedings