N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Category: Contributions Page 1 of 19

Antitrust and Serial Sham Litigation: The Case for a Narrow Universal Test

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On December 29, 2025

In Contributions

by Malory Weigel*

The First Amendment protection to petition the government has led the Supreme Court to recognize certain actions by firms as immunized under antitrust laws. The Noerr-Pennington Doctrine protects from antitrust scrutiny a firm who petitions the government, via Congress, courts, or administrative agencies, to take action against its competitors. The Supreme Court has identified an important exception to this immunity: sham litigation. However, the Court has yet to define a clear test to evaluate allegations of a scheme of repetitious sham litigation by a firm against its competitors. While the majority of circuit courts faced with the question have adopted a dual-test system wherein one strict, defendant-friendly standard applies for evaluating allegations of singular sham litigation and a separate flexible, plaintiff-friendly standard applies for allegations of serial sham litigation, this Contribution argues that the same strict test should apply for both singular and serial sham litigation. Applying a universal, strict test to all allegations of sham litigation is consistent with prior actions of the Supreme Court and Congress, aligns with traditional antitrust jurisprudence, ensures the protection of fundamental freedoms, and presents fewer application obstacles.

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Sex, Stigma, and the Best Interests Standard: Demanding Causation in Custody Adjudication

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On December 5, 2025

In Contributions

by Lana Davidoff*

In making custody determinations, a court’s only goal is evaluating and effectuating the child’s best interest. This Contribution argues that courts making child custody decisions must treat a parent’s sexual conduct with greater consistency and analytical rigor. Although the “best interests of the child” standard requires courts to weigh factors like parental fitness, stability, and capacity to provide care, the analysis of sex addiction within this framework remains fragmented and often distorted by moral judgment. This Contribution contends that sex addiction should only be considered by courts making custody determinations through a structured inquiry that distinguishes between diagnosis and conduct, resists moralistic reasoning, and requires a causal nexus between the conduct and potential or actual harm. By reframing courts’ consideration of sex addiction in custody determinations with regard to parenting capacity, courts will be better equipped to protect children’s welfare without encroaching on parents’ liberty.

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Search by Geofence Warrant: Why Location Sharing Does Not Relinquish Fourth Amendment Rights

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On December 4, 2025

In Contributions

by Lily Van Petten*

This Contribution argues that the sweeping data retrievals conducted via geofence warrants constitute Fourth Amendment searches for purposes of constitutional protections. The Fourth Circuit’s en banc decision in United States v. Chatrie avoided a definitive holding as to whether these investigatory tools pass constitutional muster. The court merely affirmed the district court’s holding that despite the occurrence of a Fourth Amendment violation, evidence would not be suppressed in the defendant’s criminal trial due to the good faith efforts of the investigating officers. The Fourth Circuit should have conclusively held that law enforcement’s use of a geofence warrant constitutes a search because individuals have a reasonable expectation of privacy in their location data under the Supreme Court’s decision in Carpenter v. United States, regardless of the fact that users share that data with third parties. As a result, a particularized search warrant stating probable cause must be obtained for each stage of data acquisition facilitated by a geofence warrant.

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Confusion, Not Transformation: A Trademark Approach to the Right of Publicity

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On December 1, 2025

In Contributions

by Samantha O’Connell*

Originating in common law privacy torts, the right of publicity now protects the economic and reputational value of identity instead. However, current holdings by courts have produced vague and inconsistent standards, particularly in the age of AI-generated deepfakes. This Contribution argues that the right of publicity should be re-oriented from copyright-inspired frameworks, such as the transformative use test, toward the trademark-based analysis established in Rogers v. Grimaldi which is centered on misattribution of source. A trademark-inspired analysis of right of publicity cases would yield more consistent results while more clearly targeting the core harms of this tort: misappropriation of goodwill and unjust enrichment. By emphasizing consumer perception over subjective aesthetic judgment, the Rogers test fills loopholes in the current doctrine that infringers might exploit, safeguards valuable social commentary, and better equips courts to address new forms of identity exploitation in digital media.

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Zimmer Radio and the Future of Media Ownership: Evidence-Based Modernization Without Deregulation

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On November 29, 2025

In Contributions

by Danielle Resheff*

The Eighth Circuit’s recent decision in Zimmer Radio of Mid-Missouri Inc. v. FCC provides a crucial opportunity to advocate for a nuanced and targeted approach to media regulation—one that rejects outdated restrictions like the Federal Communications Commission’s (“FCC”) “Top-Four Prohibition” without embracing wholesale abandonment of structural safeguards. While the Eighth Circuit correctly identified that the FCC’s rules fail to account for the competitive realities of modern media—such as multicast streaming—this finding should not be misconstrued as a mandate for complete deregulation of television ownership limits—such as the national audience cap. This Contribution argues that abandoning the long-standing 39 percent national audience cap, a rule designed to prevent excessive media consolidation and protect localism, would be a dangerous overcorrection. Instead of a deregulatory race to the bottom, the Zimmer Radio decision compels a more sophisticated path: one that modernizes the rules to reflect technological advancements, like multicast streaming, while steadfastly retaining foundational regulations that ensure the continued viability of diverse, local new broadcasting operations. This approach acknowledges that a healthy media ecosystem requires both the flexibility to innovate and the structural limitations necessary to protect the public interest.

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When Speaking is Not “Speech”: Sanctioning Conversion Therapy Bans

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On November 28, 2025

In Contributions

by Declan Alvidrez*

Professional conduct often uses or relies on speech, which is why courts may assess government regulations targeting such conduct under the First Amendment’s broad protections. Attacks on restrictions of professional speech—speech by a professional to a client in the course of providing professional services—have challenged courts to analyze the boundaries of First Amendment protections in relation to states’ power to regulate licensed professions. In so doing, courts have struggled with whether to treat professional speech as a distinct category under the First Amendment and how to analyze regulations of professional conduct when the regulated conduct relies on speech. These doctrinal issues are especially salient in constitutional challenges to states’ prohibitions on conversion therapy, because banning this professional conduct necessarily limits the speech associated with its talk therapy method. Nonetheless, this Contribution argues that such prohibitions only warrant assessment under a lower level of constitutional scrutiny because they only incidentally burden speech, and the speech that is burdened is not of the kind that First Amendment jurisprudence is most concerned with protecting.

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From Scarcity to Surplus: Rethinking Red Lion in the Modern Era

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On November 24, 2025

In Contributions

by Jessica Ford* 

The First Amendment protects the freedom of speech and expression of both individual persons and the media. Generally, the Supreme Court analyzes First Amendment challenges to governmental restrictions on the content of speech by applying heightened scrutiny as the mechanism of constitutional review. In Red Lion Broadcasting Co. v. Federal Communications Commission, however, the Court held that some content-based restrictions on speech are acceptable in broadcasting because of the limited availability of spectrum space, or the frequencies in the electromagnetic spectrum used to transmit audio and audiovisual content. This “scarcity rationale” has subjected broadcasters to unique treatment under the First Amendment for decades, but dramatic changes in technology and media consumption, most notably the rise of multicast streaming, cable television, and digital streaming platforms, call its modern-day validity into question. This Contribution reexamines the foundations of Red Lion and argues that the Court’s 1969 reasoning cannot be squared with today’s vastly expanded and distinct media environment.

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The Chilling Effect of Superior Trial Court Lawyers – Ending Per Se Analysis for Group Boycotts Under the Sherman Antitrust Act

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On November 17, 2025

In Contributions

by Cordelia Bell*

Group boycotts are a powerful form of political expression, yet under current antitrust law, participants risk steep fines or even imprisonment if their actions are deemed economically motivated. In FTC v. Superior Court Trial Lawyers Association, the Supreme Court applied per se antitrust liability to a boycott with both economic and political aims—raising serious First Amendment freedom of expression concerns. This Contribution argues that courts should adopt the more flexible, defendant-friendly rule of reason standard for group boycott claims. Not only does this approach better safeguard expressive conduct, but it also aligns with the broader shift in antitrust law from rigid rules to nuanced standards.

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“Partially Protected” Speech: Why the Flawed Logic of Free Speech Coalition v. Paxton Limits its Holding

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On October 31, 2025

In Contributions

by Orly Salik* 

The Supreme Court ruled in Free Speech Coalition v. Paxton that a statute requiring individuals to verify their ages before accessing sexually explicit content triggers, and satisfies, intermediate scrutiny. Employing a novel form of First Amendment analysis, the Court found that because access to sexually explicit content is protected as to adults, but not as to children, this form of speech on the whole is only “partially protected.” This Contribution argues that the majority’s new rule, applying intermediate rather than strict scrutiny to “partially protected” speech, in fact limits the scope of Paxton’s applicability. The case should not be construed as providing a broad mandate for age verification laws across the internet because, unlike most other online content, sexually explicit material is a narrow category of speech that is excluded from First Amendment protections for minors. A broader reading of the decision would contravene existing precedent regarding the speech rights of minors and impermissibly lower the standard of constitutional review for any speech deemed inappropriate for children. Thus, Paxton must not be read to endorse the use of intermediate scrutiny for any other restriction on material harmful to minors.

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The Federal Trade Commission’s Generalized Rulemaking Authority

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On September 29, 2025

In Contributions

by Lisa Tarasyuk*

The Federal Trade Commission is vested with the power to make rules with legislative effect when regulating unfair methods of competition. That includes the power to issue a Non-Compete Clause Rule, a rule that voids non-compete clauses nationally. The Commission’s authority to issue such a rule is conveyed by the plain text of 15 U.S.C. §§ 45(a)(2) and 46(g) and confirmed by the Federal Trade Commission Act’s scheme and subsequent amendments. The rule does not offend the Major Questions Doctrine because the authorizing provisions are clear, as is Congress’s intent for the Commission to intervene in trade. The Commission is thus vested with the authority to issue substantive rules when regulating unfair methods of competition, including through the Non-Compete Clause Rule.

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