N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Author: Harry Grabow

Fitting Administrative Law Judges into Appointments Clause Jurisprudence (and Determining the Proper Forum to Do So)

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On October 14, 2016

In Contributions

by Jor­dan Gary*

Are Admin­is­tra­tive Law Judges (ALJs) infe­ri­or offi­cers of the Unit­ed States under the Appoint­ments Clause of the Con­sti­tu­tion, ren­der­ing the Secu­ri­ties and Exchange Com­mis­sion’s (SEC) pro­ce­dure for appoint­ing ALJs uncon­sti­tu­tion­al? Pro­ce­du­ral­ly, how could a respon­dent in an SEC admin­is­tra­tive action make such a chal­lenge? Jor­dan Gary (’17) explores this ques­tion, as pre­sent­ed in the 2016 Kauf­man Moot Court Com­pe­ti­tion at Ford­ham Law School. Supreme Court doc­trine places a demand­ing bur­den on plain­tiffs seek­ing to cir­cum­vent SEC admin­is­tra­tive process­es. Addi­tion­al­ly, the SEC is nei­ther bound by, nor required to defer to, ini­tial ALJ deter­mi­na­tions in reach­ing its ulti­mate deter­mi­na­tion with­in a pro­ceed­ing. As a result, this Con­tri­bu­tion argues that, as a mat­ter of both law and pol­i­cy, Arti­cle III dis­trict courts should not have sub­ject-mat­ter juris­dic­tion over con­sti­tu­tion­al claims chal­leng­ing SEC admin­is­tra­tive pro­ce­dure, and that SEC ALJs do not con­sti­tute infe­ri­or offi­cers under the Appoint­ments Clause of the Constitution.

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Arbitraging Judicial Interpretation of the Delaware General Corporation Law

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On October 10, 2016

In Contributions

by Nathaniel Kiechel*

Are investors pre­clud­ed from engag­ing in appraisal arbi­trage under Delaware law, if its shares are reti­tled under the “street name” of a dif­fer­ent Depos­i­to­ry Trust Com­pa­ny par­tic­i­pant before the effec­tive date of a merg­er? Nate Kiechel (’17) exam­ines this ques­tion, as pre­sent­ed in the 2016 Annu­al Ruby R. Vale Inter­school Moot Court Com­pe­ti­tion, held at Widen­er Uni­ver­si­ty Delaware Law School. Delaware’s statu­to­ry def­i­n­i­tion of “stock­hold­er” has failed to account for tech­no­log­i­cal advances in under­ly­ing mar­ket sys­tems, cre­at­ing uncer­tain­ty for appraisal arbi­trage investors. This Con­tri­bu­tion argues that these arbi­trageurs should be per­mit­ted to retain their right to the appraisal rem­e­dy despite under­ly­ing process­es that may result in their shares being reti­tled, and urges the Delaware Gen­er­al Assem­bly to adopt a def­i­n­i­tion of “stock­hold­er” that bet­ter reflects these process­es and accords with the cor­re­spond­ing def­i­n­i­tion in fed­er­al secu­ri­ties laws.

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Mincing Words: From Padilla to Practice

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On April 15, 2016

In Contributions

by Kar­tik Sameer Madi­ra­ju*

Does an attor­ney sat­is­fy a res­i­dent alien client’s Sixth Amend­ment right to effec­tive coun­sel by inform­ing the client of the mere risks of depor­ta­tion asso­ci­at­ed with a guilty plea, or must she pre­dict the like­li­hood of depor­ta­tion with even greater speci­fici­ty? Kar­tik Madi­ra­ju (’17) exam­ines this ques­tion, pre­sent­ed at the 2016 Evans Con­sti­tu­tion­al Law Moot, held at the Uni­ver­si­ty of Wis­con­sin. Though the Supreme Court has held that attor­neys must inform their clients whether a guilty plea car­ries a risk of depor­ta­tion, sev­er­al of the Cir­cuit Courts of Appeals dis­agree on how specif­i­cal­ly an attor­ney must char­ac­ter­ize the like­li­hood of that risk. This Con­tri­bu­tion argues that the major­i­ty inter­pre­ta­tion, requir­ing only that attor­neys advise their clients of the mere exis­tence of such a risk, is more con­sis­tent with the let­ter and spir­it of Supreme Court prece­dent, and bet­ter reflects the dis­cre­tionary nature of an Attor­ney General’s deci­sion to order deportation.

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The Status and Viability of the Efficiencies Defense in Antitrust Law

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On April 10, 2016

In Contributions

by Isaac Wein­gram*

Is the “effi­cien­cies” defense to an antitrust claim a prac­ti­cal option for defen­dants in merg­er cas­es, and, if so, are courts well equipped to suc­cess­ful­ly eval­u­ate its mer­its? Isaac Wein­gram (’17) exam­ines this ques­tion, pre­sent­ed by the 2016 Glob­al Antitrust Insti­tute Invi­ta­tion­al, held at George Mason Uni­ver­si­ty. The effi­cien­cies defense pro­vides that, to rebut the con­cern that the anti-com­pet­i­tive effects of a merg­er would harm con­sumers, com­pa­nies may show that reduc­tions in pro­duc­tion costs or gains in inno­va­tion from a merg­er will ulti­mate­ly ben­e­fit con­sumers in the form of low­er prices or high­er qual­i­ty goods and ser­vices. This Con­tri­bu­tion argues that, first, though sev­er­al Cir­cuit Courts of Appeals have sig­naled an open­ness to hear­ing the effi­cien­cies defense, chal­lenges asso­ci­at­ed with meet­ing its demand­ing stan­dard ren­ders the defense an imprac­ti­cal option for merg­er defen­dants; sec­ond, even if it were a viable prac­ti­cal option, courts are unlike­ly to accu­rate­ly cal­cu­late and eval­u­ate the effi­cien­cy gains at the cen­ter of the defense.

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Reexamining the “Germaneness” Test for Limited Purpose Public Figures

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On April 4, 2016

In Contributions

by David Clements*

What stan­dard should be applied to lim­it­ed pur­pose pub­lic fig­ures – indi­vid­u­als that are pub­lic fig­ures only due to their involve­ment in a par­tic­u­lar pub­lic con­tro­ver­sy – who bring defama­tion claims, when the alleged defam­a­to­ry remarks are unre­lat­ed to the plaintiff’s pur­pose for being a pub­lic fig­ure? David Clements (’17) exam­ines this ques­tion, pre­sent­ed at the Spring 2016 Mar­den Moot Court Com­pe­ti­tion, held at New York Uni­ver­si­ty School of Law. The “ger­mane­ness test” employed by sev­er­al Cir­cuit Courts of Appeal deter­mines the extent of First Amend­ment pro­tec­tions a defen­dant in a defama­tion suit receives: a chal­lenged state­ment ger­mane to the con­tro­ver­sy for which a defama­tion claimant is a pub­lic fig­ure receive more pro­tec­tion than a state­ment unre­lat­ed to that con­tro­ver­sy. This Con­tri­bu­tion urges the Supreme Court to revis­it this ger­mane­ness test, as applied to lim­it­ed pur­pose pub­lic fig­ures, for three rea­sons: first, allow­ing lim­it­ed pur­pose pub­lic fig­ures to recov­er dam­ages for neg­li­gent defama­tion would cause a chill­ing effect on the press; sec­ond, engag­ing in a inten­sive inves­ti­ga­tion into whether cer­tain com­ments are “ger­mane” to a par­tic­u­lar plaintiff’s pur­pose as a pub­lic con­sti­tutes a pre­sump­tive­ly uncon­sti­tu­tion­al con­tent-based analy­sis of speech; third, the dis­tinc­tion between lim­it­ed pur­pose and gen­er­al pur­pose pub­lic fig­ures is no longer applic­a­ble due to tech­no­log­i­cal advance­ment and the height­ened access to self-help chan­nels that even lim­it­ed pur­pose pub­lic fig­ures now possess.

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