N.Y.U. Proceedings – Page 10 – Exploring New Approaches to Unsettled Legal Questions

Fear of Needles or Guilty Conscience? The Fourth Amendment and the Use of BAC Test Refusal Evidence in DUI Prosecutions

On March 2, 2021

by Max Baumbach*

When a motorist is arrested on suspicion of intoxicated driving, the government cannot compel him to submit to a blood draw without a warrant or warrant exception, nor can it make his refusal to submit to a blood draw a crime. But can the government use the refusal as evidence of guilt in a subsequent DUI prosecution on the basis of an implied consent statute? In this Contribution, Max Baumbach (’21) argues that the Fourth Amendment prohibits the use of blood test refusal evidence in a DUI prosecution where the test itself would have been unlawful to conduct in the first instance.

The Fifth Amendment: No Safe Harbor for First Amendment Retaliation

By Editor-in-Chief NYU Moot Court Board

On February 22, 2021

In Contributions

by Hannah Beattie*

This Contribution examines whether compliance with the Fifth Amendment should shield a federal condemnation action from a First Amendment retaliation claim. Hannah Beattie (’21) argues that the rationales for carving out safe harbors for government action to be free from First Amendment scrutiny if in compliance with the Fourth Amendment do not extend to the Fifth Amendment context. Ultimately, this Contribution concludes that an individual should be able to raise a First Amendment retaliation defense to a condemnation action, even if the government complied with the Fifth Amendment.

Two Swords for Bankruptcy’s Gordian Knot: Making Sense of Section 365

By Editor-in-Chief NYU Moot Court Board

On February 16, 2021

In Contributions

by Benjamin S. Winter*

Observers generally agree that the assumption of executory contracts by debtors in possession in Chapter 11 proceedings promotes the purposes of the Bankruptcy Code and accords with Congress’ intent. Yet courts have been riven by the question of whether the plain text of section 365 allows the practice. This Contribution argues that courts forbidding assumption of executory contracts by debtors in possession have misdirected the focus of their textual analysis. Close examination of an overlooked phrase within section 365 and of the interactions between sections 365 and 1107 provides two independent textual bases for courts to read the Code in keeping with congressional intent.

Does the Supreme Court’s Decision in Carpenter v. United States Implicate the Government’s Use of Pole Cameras?

By Editor-in-Chief NYU Moot Court Board

On February 8, 2021

In Contributions

by Jack Derewicz*

Does the Supreme Court’s decision in Carpenter v. United States constrain the government’s warrantless use of pole cameras to surveil people it suspects are engaging in criminal activity? In this contribution, Jack Derewicz (’21) argues that the Carpenter opinion does not implicate this particular investigatory technique because pole cameras do not retroactively collect the type of information that, when aggregated, present the government with information it could not have otherwise obtained.

Maintaining the Narrow Scope of the Bona Fide Occupational Qualification: Rejecting Gender Discrimination in Bartender Hiring

By Editor-in-Chief NYU Moot Court Board

On February 2, 2021

In Contributions

by Matthew A. Peterson*

This Contribution examines whether a bar can discriminate on the basis of gender in its bartender hiring practices. Matthew Peterson (’21) argues that Title VII’s bona fide occupational qualification (“BFOQ”) exception should not shield bars from gender discrimination liability. The text and purpose of Title VII command a narrow interpretation of the BFOQ exception, and a bar catering to preferences for female bartenders is precisely the type of undesirable hiring practice that Title VII seeks to prohibit. The “essence” of a bar is making and distributing drinks, and the completion of these tasks does not depend upon the gender of a bartender. Courts should not permit bars to justify such discrimination with claims of supporting “authentic entertainment.” Unlike an actor or dancer, whose core job function is performance, a bartender’s primary responsibility is providing service.

Determining the Scope of Primary Liability in Securities Fraud Litigation

By Editor-in-Chief NYU Moot Court Board

On January 26, 2021

In Contributions

by Charles Bloom*

For decades, the private right of action for securities fraud has been narrowed, both by Congress and in the courts. In this Contribution, Charles Bloom (’21) considers the extent to which the Supreme Court’s most recent decision in a securities fraud case reverses that trend. Ultimately, this Contribution will argue that the Court has permissibly expanded private liability for securities fraud, closing certain loopholes created by its earlier precedents.

Necessary or Sufficient? The Applicability of the Exchange Act to Domestic Securities Transactions Under Morrison v. National Australia Bank Ltd.

By Editor-in-Chief NYU Moot Court Board

On January 21, 2021

In Contributions

by William Bristow*

Do Section 10(b) the Exchange Act and SEC Rule 10b-5 apply to securities transactions entered into in the United States where the security is not sold on a national exchange and is valued based on the price of a different security not sold within the United States? In this Contribution, William Bristow (’21) discusses the implications of Morrison v. National Australia Bank Ltd., where the Supreme Court held that the Exchange Act does not apply extraterritorially and thus only applies to domestic securities transactions. This Contribution argues that Morrison’s “transactional test” establishes a sufficient condition for the application of the Exchange Act, not a necessary condition.

Inverting the Scope-of-the-Project Rule: Determining When Government Pre-Condemnation Announcements Should Change the Default Rule for Just Compensation

By Editor-in-Chief NYU Moot Court Board

On October 20, 2020

In Contributions

By Timothy Lyons*

The Fifth Amendment prohibits the taking of private property “without just compensation,” but the optimal method of determining the precise amount of money that will justly compensate the property owner is not always clear. The general rule has been to set compensation at the fair market value of the property at the time the government takes it, with certain exceptions. In this Contribution, Timothy Lyons (’21) argues that when the government makes a well-publicized pre-condemnation announcement, it may be appropriate to compensate the owner based on the property’s value at the time of the announcement rather than its value at the time of the taking.

Seizures Conducted Absent Physical Force: Momentary Compliance Versus Submission

By Editor-in-Chief NYU Moot Court Board

On October 5, 2020

In Contributions

by Dean S. Acheson*

This Contribution examines whether police have effectuated a Fourth Amendment seizure by show of authority when an individual flees from a momentary encounter. Dean S. Acheson (’21) argues that, under Fourth Amendment precedent, pre-flight compliance does not constitute submission to a show of authority in a police interaction that consists of answering brief questions and engaging in evasive behavior.

Are Drug-Free Workplace Policies Discriminatory?

By Editor-in-Chief NYU Moot Court Board

On September 22, 2020

In Contributions

by Tian Lei*

Do state laws that prohibit employers from discriminating against employees on the basis of medical marijuana cardholder status effectively protect cardholder employees? In this Contribution, Tian Lei (’21) argues that when courts recognize and legitimize employers’ interest in maintaining drug-free work-place policies, cardholder employees become especially vulnerable to adverse employment action. This Contribution establishes that drug-free workplace policies often leave cardholder employees with a choice between their health and their job and that the scope and legitimacy of such policies must be interrogated if the law is to protect medical marijuana cardholders from employment discrimination.

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