Exploring New Approaches to Unsettled Legal Questions

Author: MCB Staff Editor

The Buck Stops Here: The Limits of Bankruptcy Court Jurisdiction Post-Confirmation

by Michael Mur­ray*

May bank­rupt­cy courts assume “relat­ed to” juris­dic­tion under 28 U.S.C. § 1334(b) over a post-con­fir­ma­tion suc­ces­sor lia­bil­i­ty suit when the estate’s assets have already been dis­bursed? Michael Mur­ray (’17) exam­ines this ques­tion, based on his expe­ri­ence at the 2016 Duber­stein Moot Court Com­pe­ti­tion, spon­sored by St. John’s Uni­ver­si­ty School of Law. His Con­tri­bu­tion ana­lyzes the legal land­scape of “relat­ed to juris­dic­tion” in bank­rupt­cy courts. Ulti­mate­ly, the Con­tri­bu­tion pro­pos­es that the Sev­enth Cir­cuit has adopt­ed the clear­est inter­pre­ta­tion of the statute and rea­son­ably lim­its “relat­ed to” juris­dic­tion to dis­putes in which either the debtor is a par­ty or the dis­pute affects the amount or dis­tri­b­u­tion of the debtor’s estate.

Long Hair, Don’t Care: An Analysis of Gender-Specific School Athletic Regulations & The Equal Protection Clause

by Matthew Olsen*

Does a high school men’s base­ball team reg­u­la­tion gov­ern­ing play­er hair­styles vio­late play­ers’ Due Process or Equal Pro­tec­tion rights? Matt Olsen (’17) exam­ines this ques­tion, based on his expe­ri­ence at the 2016 Tulane Mar­di Gras Sports Law Invi­ta­tion­al Com­pe­ti­tion. His Con­tri­bu­tion dis­cuss­es the Sev­enth Circuit’s rul­ing in Hay­den v. Greens­burg School Com­mu­ni­ty Cor­po­ra­tion, the sole cir­cuit court case to address the con­sti­tu­tion­al­i­ty of extracur­ric­u­lar ath­let­ic groom­ing reg­u­la­tions in the con­text of an Equal Pro­tec­tion claim. Although the adop­tion of the hold­ing by oth­er courts remains to be seen, the Con­tri­bu­tion con­cludes that the rul­ing could serve as a pow­er­ful means to strike down per­son­al appear­ance reg­u­la­tions based on gen­der stereotypes.

So You Think You’re a Citizen? How a United States Citizen Can Be Stripped of His Citizenship

by Sonya Chung and Zi Lin*

Do pass­ports and Con­sular Reports of Birth Abroad con­sti­tute con­clu­sive proof of U.S. cit­i­zen­ship such that the State Department’s revo­ca­tion of these doc­u­ments is not imper­mis­si­bly retroac­tive? Sonya Chung (’17) and Zi Lin (’17) exam­ine this ques­tion, based on their expe­ri­ence as writ­ers of the prob­lem for the New York Uni­ver­si­ty School of Law 2016 Immi­gra­tion Law Com­pe­ti­tion. Their Con­tri­bu­tion dis­cuss­es the state of the law sur­round­ing pass­ports and CRBAs as evi­dence of cit­i­zen­ship and their revo­ca­bil­i­ty. The Con­tri­bu­tion argues that courts should allow indi­vid­u­als to use these doc­u­ments as con­clu­sive proof of cit­i­zen­ship and that the State Department’s pow­er to cor­rect its own errors should be cir­cum­scribed care­ful­ly in cas­es where there has been extend­ed reliance on cit­i­zen­ship rights.

Hacking from the Inside-Out: Can the CFAA Impose Liability on Employees who Misuse Employer Data?

by Susan­na Grif­fith*

Can an employ­ee who has accessed com­put­er data­base infor­ma­tion in vio­la­tion of use restric­tions and direct instruc­tions from his employ­er be con­vict­ed under the Com­put­er Fraud and Abuse Act for access­ing data “with­out autho­riza­tion” or “exceed[ing] autho­rized access”? Susan­na Grif­fith (’17) reflects on this ques­tion, based on her expe­ri­ence at the 2016 Spong Moot Court Tour­na­ment, host­ed by William & Mary Law School. Her Con­tri­bu­tion dis­cuss­es the legal land­scape and cir­cuit split regard­ing the applic­a­bil­i­ty of the statute to employ­ees who have vio­lat­ed use restric­tions and direc­tives from employ­ers. The Con­tri­bu­tion argues that the nar­row, code-based view is prefer­able as the clear­ly con­sti­tu­tion­al read­ing that also com­ports with stan­dards of excel­lence in the field of cyber-security.

Rejecting the Split Personality Prosecutor

by Rahul Hari*

Can the excul­pa­to­ry tes­ti­mo­ny of a wit­ness before a grand jury be entered against the gov­ern­ment under the “For­mer Tes­ti­mo­ny” excep­tion to the ban on hearsay? Rahul Hari (’16) exam­ines this ques­tion, pre­sent­ed at the 2015 Nation­al Moot Court Com­pe­ti­tion. For excul­pa­to­ry tes­ti­mo­ny pro­vid­ed by a wit­ness before the grand jury to be admis­si­ble at a sub­se­quent tri­al in which the same wit­ness is no longer avail­able to tes­ti­fy, the pro­po­nent of that evi­dence must show that the pros­e­cu­tor had a sim­i­lar motive in devel­op­ing that witness’s tes­ti­mo­ny at the grand jury stage as she would have had if the wit­ness were now avail­able to tes­ti­fy at tri­al. This Con­tri­bu­tion argues that the broad inter­pre­ta­tion of “sim­i­lar motive,” as employed by a major­i­ty of the Cir­cuit Courts of Appeals, adheres to the text of the Fed­er­al Rules of Evi­dence, more accu­rate­ly cap­tures the mul­ti­ple motives a pros­e­cu­tor might have in ques­tion­ing a wit­ness, and pro­tects against pros­e­cu­to­r­i­al abuse.

The Dean Wormer Test: Good Faith as a Keystone of Student Speech First Amendment Jurisprudence

by Alec Web­ley*

Does a school dis­trict vio­late the First Amend­ment when they ban stick­ers read­ing “Screw Hate, Don’t Dis­crim­i­nate,” and if so, how? Alec Web­ley (’16) exam­ines this ques­tion, pre­sent­ed at the 2015 Seigen­thaler First Amend­ment Moot Court Com­pe­ti­tion at Van­der­bilt Uni­ver­si­ty. Supreme Court doc­trine rec­og­nizes that a school or edu­ca­tor may sup­press stu­dent speech – speech that, in oth­er con­texts, would receive First Amend­ment pro­tec­tions – that is “lewd,” and there­fore incon­sis­tent with a school’s edu­ca­tion­al mis­sion. This Con­tri­bu­tion cri­tiques this lewd­ness test as imper­mis­si­bly vague, con­tent-based, and over­broad, and pro­pos­es an alter­na­tive method through which schools could pro­duc­tive­ly address and sanc­tion “lewd” speech.

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