N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Author: Michael Klurfeld

Reaffirming the ADA’s Promise: Disability Accommodation During Arrests

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On May 14, 2018

In Contributions

by Andrew Bre­land*

How should police offi­cers take into account the dif­fer­ent needs of a per­son with dis­abil­i­ties dur­ing an arrest? In this Con­tri­bu­tion, Andrew Bre­land (’18) exam­ines the role of the Amer­i­cans with Dis­abil­i­ties Act in gov­ern­ing arrests and inves­ti­ga­tions by police of per­sons with dis­abil­i­ties. Ulti­mate­ly, this Con­tri­bu­tion argues that the ADA’s rea­son­able accom­mo­da­tion require­ment mod­i­fies what search­es and seizures of indi­vid­u­als with dis­abil­i­ties are con­sid­ered rea­son­able under the Fourth Amendment.

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Permitting Around the Constitution: Gun License Process After Heller

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On April 23, 2018

In Contributions

by Deepa Devanathan*

To what extent can state actors lim­it an indi­vid­u­al’s Sec­ond Amend­ment right after Dis­trict of Colum­bia v. Heller? In this Con­tri­bu­tion, Deepa Devanathan (’19) argues that to prop­er­ly bal­ance Sec­ond Amend­ment rights with a State’s need to pro­tect peo­ple from gun vio­lence, gun per­mit schemes that cov­er both open car­ry and con­cealed car­ry must include a pro­ce­dur­al right to appeal per­mit denials and “good cause” require­ments to get permits.

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Is This What We Bargained For?: Allowing the Preemption of State Law through Collective Bargaining Agreements

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On March 29, 2018

In Contributions

by Micaela Heery*

Can a term in a col­lec­tive bar­gain­ing agree­ment dis­place state law under any cir­cum­stance? How should a court bal­ance the need for con­sis­tent, nation­wide labor stan­dards with con­sti­tu­tion­al con­cerns for pre­serv­ing States’ police pow­ers? In this Con­tri­bu­tion, Micaela Heery (’19) offers an ana­lyt­i­cal frame­work for resolv­ing these pre­emp­tion issues under the Labor Man­age­ment Rela­tions Act. This Con­tri­bu­tion argues that the right legal analy­sis must con­sid­er both whether a claim aris­es inde­pen­dent­ly of the col­lec­tive bar­gain­ing agree­ment and whether pre­emp­tion would be appro­pri­ate giv­en Con­gress’ pow­er over inter­state com­merce and notions of state sovereignty.

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Rethinking Qualified Immunity: Making America Accountable Again

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On January 18, 2018

In Contributions

by Vic­to­ria del Rio-Guarn­er*

Should the qual­i­fied immu­ni­ty doc­trine be revis­it­ed to bet­ter allow civil­ians to sue gov­ern­ment offi­cials for vio­la­tions of fun­da­men­tal rights? In this Con­tri­bu­tion, Vic­to­ria del Rio-Guarn­er (’18) dis­cuss­es how the Supreme Court’s deci­sions in Har­low v. Fitzger­ald and Pear­son v. Calla­han essen­tial­ly ren­dered qual­i­fied immu­ni­ty to Sec­tion 1983 claims unqual­i­fied. This Con­tri­bu­tion argues that qual­i­fied immu­ni­ty doc­trine should be recal­i­brat­ed in order to bet­ter ful­fill its under­ly­ing pur­pose while not dis­abling Sec­tion 1983 claims.

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Buyers Beware: Lower Prices Can be Harmful to Consumers

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On November 15, 2017

In Contributions

by Megan Hare*

Does a bun­dled dis­count offered by a dom­i­nant firm in the mar­ket vio­late Sec­tion 2 of the Sher­man Antitrust Act? Megan Hare (’18) address­es this ques­tion based on her expe­ri­ence at the 2017 Glob­al Antitrust Insti­tute Moot Court Com­pe­ti­tion. Antitrust doc­trine strong­ly favors aggres­sive pric­ing and oth­er dis­count schemes that encour­age com­pe­ti­tion with­in a giv­en mar­ket. Bun­dled dis­counts fall square­ly with­in the pro­com­pet­i­tive pric­ing schemes praised by the Supreme Court’s antitrust doc­trine. These rebates com­pel firms to com­pete for con­sumers, there­by allow­ing con­sumers to pay low­er prices for prod­ucts than they oth­er­wise would pay with­out such mar­ket com­pe­ti­tion. This Con­tri­bu­tion argues, how­ev­er, that bun­dled dis­counts may be anti­com­pet­i­tive and unlaw­ful under the Sher­man Act when unjus­ti­fi­ably used by a dom­i­nant firm to gain addi­tion­al mar­ket share or to main­tain the firm’s exist­ing mar­ket power.

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Challenging USACafes Liability of a Fiduciary Entity’s Controllers

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On October 11, 2017

In Contributions

by Natal­ie Noble*

Should a board of direc­tors of a par­ent com­pa­ny owe fidu­cia­ry duties not just to its share­hold­ers, but also to the share­hold­ers of com­pa­nies involved in lim­it­ed part­ner­ships with one of its sub­sidiaries? In this Con­tri­bu­tion, Natal­ie Noble (’18) dis­cuss­es the impli­ca­tions of In re USACafes, L.P. Lit­i­ga­tion, in which the Delaware Chancery Court held that the board of direc­tors of a cor­po­ra­tion engaged in a lim­it­ed part­ner­ship owe fidu­cia­ry duties to the lim­it­ed part­ner­ship and the lim­it­ed part­ners. This Con­tri­bu­tion argues that the USACafes doc­trine should be aban­doned because it dis­cour­ages free­dom of con­tract, dis­suades investors from financ­ing new enter­pris­es, and con­tra­venes bedrock doc­trines of cor­po­rate law.

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Sampling A Song Without a License? Yeah, That’s Still Illegal

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On September 30, 2017

In Contributions

by Lee Nis­son*

Should musi­cians be free to use sam­ples from the work of oth­ers in their songs with­out hav­ing to pay for them, or should sam­pled artists have a right to get paid for their work? In this Con­tri­bu­tion, Lee Nis­son (’18) unpacks the copy­right issues around dig­i­tal sam­pling of music, explor­ing the doc­trine of de min­imis use. Despite the artis­tic mer­its of sam­pling in music, the Con­tri­bu­tion argues that all sam­pling con­sti­tutes copy­right infringement.

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 Search, Seizure, and the Smartphone: Rethinking Privacy Protections in the Digital Age

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On April 19, 2017

In Contributions

by Christo­pher J. Ryd­berg*

In the dig­i­tal age, how should pri­va­cy con­cerns con­strain police inves­ti­ga­tions? In this Con­tri­bu­tion, Christo­pher J. Ryd­berg con­sid­ers this prob­lem with respect to forc­ing sus­pects to unlock smart­phones and speci­fici­ty require­ments with respect to smart­phone search war­rants. Ulti­mate­ly, the Con­tri­bu­tion argues that smart­phones are dif­fer­ent in kind because of the mas­sive scope of data they con­tain, and thus his­tor­i­cal doc­trines of police process will have to change to accom­mo­date the smart­phone era.

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Growing Pains in EU Antitrust Enforcement

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On April 12, 2017

In Contributions

by Jonathan Het­tle­man*

Can antitrust law be made rig­or­ous in how it ana­lyzes whether a firm is harm­ing com­pe­ti­tion in a mar­ket? Jonathan Het­tle­man (’18) tack­les this ques­tion, which was at the cen­ter of the 2017 Prob­lem at the Glob­al Antitrust Insti­tute’s Invi­ta­tion­al Moot Court Com­pe­ti­tion in Wash­ing­ton, D.C. His­tor­i­cal­ly, EU law imposed height­en duties on firms con­sid­ered “dom­i­nant,” with­out look­ing to the mar­ket effects of par­tic­u­lar actions. By look­ing to recent devel­op­ments in how EU law con­sid­ers rebate schemes, this Con­tri­bu­tion argues that antitrust law should con­tin­ue to build on the bur­geon­ing effects-based approach to deter­min­ing whether a fir­m’s con­duct fore­clos­es competition.

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