N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Author: Editor-in-Chief NYU Moot Court Board Page 8 of 12

Endangered Privilege: Does the Federal Therapist-Patient Testimonial Privilege Contain a “Dangerous Patient” Exception?

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On February 7, 2022

In Contributions

by Miriam Bial*

In Jaffee v. Redmond, the Supreme Court interpreted Rule 501 of the Federal Rules of Evidence to construct a federal therapist-patient testimonial privilege but declined to delineate the full contours of the privilege. In this contribution, Miriam Bial (’22) argues that the federal therapist-patient testimonial privilege does not contain a “dangerous patient” exception as such a carve out would undermine Jaffee’s underlying rationale. The Court recognized the federal therapist-patient testimonial privilege grounded in the public health benefits of encouraging candid therapy seekers as well as respect for state policymaking. Recognizing a “dangerous patient” exception conflicts with these goals without providing discernable evidentiary benefits. Though supporters of the exception have invoked a footnote within Jaffee alongside notions of breach of confidentiality and waiver, those interpretations clash with the holding’s plain language and intent.

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Solitary Confinement Imposed in Response to the COVID-19 Pandemic Entitles Incarcerated Individuals to Procedural Due Process

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On January 31, 2022

In Contributions

by Julia Leff*

After medical experts advised social distancing and quarantining in response to the COVID-19 pandemic, many prisons assigned incarcerated persons to solitary confinement. This situation raises the question of whether an incarcerated individual is entitled to due process when they are placed in indefinite solitary confinement for their medical protection or to prevent the spread of a virus. In this Contribution, Julia Leff (’22) argues that the uncertainty regarding the length of the COVID-19 pandemic is sufficient to provide an incarcerated individual his right to procedural due process under the Fourteenth Amendment.

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How One’s Status as a Medical Marijuana Card Holder Jeopardizes One’s Statutory Eligibility to Hold a Casino License

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On January 17, 2022

In Contributions

by Anthony Cruz*

Numerous states have legalized marijuana both for recreational and medicinal use. Many of those same states have also taken the step of legalizing gambling. In this Contribution, Anthony Cruz (’22) examines the legal issues that result when two heavily regulated industries like the cannabis and gaming industries overlap. State-based prohibitions on gaming licensees participating in the cannabis market, both by statute and by regulation, present issues of statutory construction in light of conflict-ing legislative signals; issues of administrative due process against a backdrop of perpetually evolving state and federal guidelines on controlled substances; and issues of intrastate federalism.

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Evolving Standards of Decency: Solitary Confinement and the Eighth Amendment

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On November 22, 2021

In Contributions

by Jane M. Mahan* 

The Eighth Amendment prohibits cruel and unusual punishments. But proving an Eighth Amendment violation based on dangerous or unfit prison conditions is difficult because it requires a showing of subjective culpability on the part of prison officials. Federal courts have grown increasingly aware of the harmful nature of solitary confinement, particularly for juveniles, the mentally ill, and inmates with special medical needs. In this Contribution, Jane M. Mahan (’22) argues that the placement of vulnerable inmates in solitary confinement for a period exceeding fifteen consecutive days should be per se unconstitutional under the Eighth Amendment.

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Religious Accommodation or Unlawful Favoritism? Examining the Constitutionality of the Parsonage Exemption

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On November 8, 2021

In Contributions

by Alec Soghomonian*

The First Amendment’s Religion Clauses provide that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof . . . .” The Religion Clauses clearly prohibit both the Federal and state governments from establishing an official state religion or hindering religious practice to such an extent that it results in a constitutional infringement. However, the Supreme Court has long acknowledged that absent those two clear commands “there is room for play in the joints” when addressing the constitutionality of government action that implicates religious belief. Does a tax benefit that provides a financial benefit to a limited class of religious employees and their employers violate the Establishment Clause? In this Contribution, Alec Soghomonian (‘22) argues that the Parsonage Exemption, found in 26 U.S.C. § 107(2) of the United States tax code, unlawfully provides a benefit to religious employees and employers because it does not extend to similarly situated non-religious institutions.

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Can an Art Gallerist Own the Copyright in an Art Exhibit? Evaluating the Limiting Principles in the Copyright Act’s Definition of a Collective Work

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On October 18, 2021

In Contributions

by Michael J. Gladstone*

In copyright law, an artist does not sign away the copyright to an artwork simply by allowing the artwork to appear in an art gallery. However, where parties agree in writing that a work is a “work made for hire” and where a work is a “contribution to a collective work,” the commissioning party—and not the artist—is the copyright owner. In this Contribution, Michael Gladstone (’22) argues that in at least one case, an art gallerist could own the copyright in an artist’s work: where the work was specifically commissioned for use in a permanent art installation.

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The Right Against Self-Incrimination in the Digital Age

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On September 20, 2021

In Contributions

by Diego Wright*

Law enforcement agencies are increasingly seeking to compel the disclosure of passwords from the owners of password-protected encrypted devices, such as cell phones. Does the government have the right to compel this disclosure? In this Contribution, Diego Wright (‘22) argues that the Fifth Amendment right against self-incrimination protects an individual from being forced to disclose their passcode when analyzed under the “foregone conclusion” doctrine unless the government can demonstrate they already know the testimonial communications tacit in the act of providing the passcode.

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Inventio Ex Machina: The Patentability of AI Generated Inventions

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On May 18, 2021

In Contributions

by Delon Lier*

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.”

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Expansion of the Copyright Act: The Inclusion of Art Created In-Part by an Artificial Intelligence Program

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On May 5, 2021

In Contributions

by Naomi Perla*

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.

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One Means One: The “Per Plan” Approach to Section 1129(a)(10)

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On April 28, 2021

In Contributions

by Elaine M. Andersen*

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.

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