Back to the Future: Copyright’s Temporal Problem

Should the copyright law doctrines of merger and scènes-à-faire be evaluated by courts as bars to copyrightability or as defenses to infringement? Ryan Lawson ('17) engages this question, based on his experience writing for the 40th Edition of the NYU Moot Court Board's Casebook published in December 2016. There is currently a circuit split within the United States Courts of Appeals regarding whether the doctrines of merger -- which exempts from copyright protection ideas that can only be expressed in a single or few ways -- and scènes-à-faire -- which exempts from copyright protection certain ubiquitous, foundational expressive tropes and devices -- should be treated by courts either as bars to copyrightability, or as defenses to infringement. This Contribution argues that, in order to resolve this circuit split while preserving the flexibility and strength of these doctrines, courts should adopt a copyright law test that incorporates considerations from the related trademark doctrine of genericide.

A Catch-22? The Social Distinction Requirement for Asylum

Is the Board of Immigration Appeals' ("BIA") test for determining whether an asylum-seeker qualifies as a refugee too restrictive? Clay Venetis ('17) addresses this question based on his experience at the Asylum and Refugee Law National Moot Court Competition, held at the University of California Davis School of Law in March 2016. In order to obtain protection from persecution on the basis of their membership in a group not specified in the Immigration and Nationality Act (“INA”), asylum-seekers must show that their particular social group possesses "societal distinction" -- recognition by society in general, and not just the alleged government persecutors -- in their country of origin. This Contribution argues that the "societal distinction" requirement creates a "catch-22" that unfairly denies asylum to those who deserve it, and urges courts to adopt a more flexible, case-by-case approach to determining whether an individual qualifies for asylum.

Marden Series: Understanding the Second Amendment After Heller

Do state laws that condition the issuance of concealed carry permits on an applicant's showing of "good cause" unconstitutionally burden those applicants' Second Amendment rights? Sarah Goodfield ('17) explores this question, raised at the 2016 "Fall" Marden Competition, at the New York University School of Law. Generally, "good cause" restrictions require that applicants show some special reason for carrying a concealed weapon. Writing from the perspective of the 2016 "Fall" Marden respondent, this Contribution analyzes "good cause" requirements in their historical and legal context, and ultimately concludes that such restrictions do not burden core Second Amendment rights.

Marden Series: The Simple Path to Protecting Second Amendment Rights

Do state laws that condition the issuance of concealed carry permits on an applicant's showing of "good cause" unconstitutionally burden those applicants' Second Amendment rights? Andy Debbins ('17) addresses this question, raised at the 2016 "Fall" Marden Competition, at the New York University School of Law. Generally, "good cause" restrictions require that applicants show some special reason for carrying a concealed weapon. Writing from the perspective of the 2016 "Fall" Marden petitioner, this Contribution argues that a simple, straight-forward reading of the Second Amendment renders "good cause" restrictions unconstitutional.

Online Databases: Fair Game for Users of Copyrighted Material

Does the fair use doctrine apply to online search results that display excerpts from copyrighted materials? Molly Baltimore (’17) addresses this question based on her experience at the Cardozo BMI Moot Court Competition held in March 2016, and concludes that it should be answered in the affirmative. The fair use doctrine allows secondary users to copy or reproduce other authors’ works without being liable for copyright infringement in certain instances. Ultimately, the Contribution argues that, under an expansive reading of the fair use doctrine, searchable online databases that merely convey information about a copyrighted work can do so in a transformative manner, and without causing real economic harm.

Protecting Prisoners: The Fight on Narrow Tailoring

What evidentiary burden must prisons must satisfy in order to show that its policy restricting an inmate's religious exercise is sufficiently narrowly tailored under Religious Land Use and Institutionalized Persons Act (RLUIPA)? Staci Cox ('17) examines this question, raised at the Touro Law School Moot Court Competition on April 7th, 2016. In assessing whether a prison's policy that restricts religious exercise is sufficiently narrowly tailored under RLUIPA, courts examine the religious exemptions already provided to inmates within the facility; if no exemptions are already provided, courts ask whether the prison could effectuate its policy through less restrictive means, without unduly burdening other inmates or straining prison operations. This contribution argues that, in order to demonstrate that their policies are sufficiently narrowly tailored under RLUIPA, prisons must satisfy a significant evidentiary burden by showing: the frequency with which current exemptions are used, the costs of providing additional exemptions, and the extent would threaten the safety and security of inmates.

Moving Beyond a Symptom-Based Test: Gender Dysphoria and the Family Medical Leave Act

How should courts assess whether employees suffering from symptoms associated with gender dysphoria are entitled to unpaid, job-protected leave under the Family Medical Leave Act (FMLA)? Josh Thorn (’17) explores this question, based on his experience competing at the Wagner Moot Court Competition, held at New York Law School in March 2016. The FMLA limits eligibility for leave to employees with “serious health conditions” preventing the employee from working. This Contribution urges courts to primarily consider whether the treatment required for employees diagnosed with depression and anxiety resulting from gender dysphoria -- and not merely the symptoms of the condition itself -- would prevent the employee from working in determining whether there exists a “serious health condition” under the FMLA.

The New Panopticon: Location Tracking and the Fourth Amendment

Does warrantless, prolonged location tracking violate the Fourth Amendment’s protections against unreasonable searches? Hogan Paschal (’17) examines this question, based on her experience at the 2016 Spong Moot Court Tournament, hosted by William & Mary Law School on February 12-13th, 2016. The location tracking tools employed by Government investigators have become more sophisticated and widespread, often eroding the practical constraints that government resources previously imposed on search power. This Contribution posits a more holistic reading of the Fourth Amendment, that simultaneously acknowledges its historical context and modern investigative challenges. Ultimately, it argues that courts should restore Fourth Amendment safeguards by requiring a warrant as a precursor to the government’s use of prolonged location tracking.

The Baseball Rule is Not a Rule, It’s a Relic

Should stadium owners or operators be liable for injuries to spectators caused by foul balls, or is limiting such liability necessary to protect America’s pastime? Jake Calvert (’17) explores this question, based on his experience at the 2016 Tulane Mardi Gras Sports Law Invitational on February 3rd, 2016. Historically, the baseball rule has limited the duty of care game attendees on the grounds that a more typical negligence analysis would force venue owners and teams to take unreasonable precautions. The Contribution ultimately argues that the baseball rule should be supplanted by more modern notions of tort liability, such as comparative fault, that would account for the specific factors of a particular baseball game injury.

Clarifying the Liability Threshold in Copyright Infringement Claims

Is the test for copyright infringement necessarily vague and ad hoc, as Judge Learned Hand once said, or can the test be made rigorous? Based on his experience in the 2016 Cardozo BMI Moot Court Competition, Aaron Lichter (’17) explores this question by discussing the various copyright infringement tests that courts use to determine liability. Specifically, the “total concept and feel” test assesses copyright infringement based on contextual, abstract concepts rather than specific details such as plot elements or characters. The Contribution concludes that, despite its ambiguity, the “total concept and feel” test provides protections that outweigh potential problems with its vagueness.