N.Y.U. Proceedings – Page 11 – Exploring New Approaches to Unsettled Legal Questions

State Action Analysis in the Age of Social Media: When Facebook and Twitter Become Tools of the State

On February 25, 2019

by Leah Rosenberg*

When does a public official’s private social media account become a tool of governance subject to constitutional analysis? In this Contribution, Leah Rosenberg (’19) argues that public officials who use their personal social media pages to interact with the public and announce policy should be required to protect constituents’ constitutional rights and may not engage in viewpoint discrimination. This Contribution recommends that courts apply a context-specific approach to censorship claims against state officials and that court consider the specific activities challenged by assessing whether state resources and employees were used to take those actions, if the content pertained to government activities or policy, and whether the official was acting as an agent of the state at the time the censorship occurred.

Unblocked: The First Amendment and the Right to Access a State Official’s Social Media

By Editor-in-Chief NYU Moot Court Board

On February 11, 2019

In Contributions

By Maggie Seery*

Does a state official engage in viewpoint discrimination in a state-sponsored forum when they delete a constituent’s comments or block them from their social media pages? In this Contribution, Maggie Seery (’19) discusses the possible constitutional violations an official may make when using social media to interact with the public. Ultimately, this Contribution argues that deleting a comment or blocking a user from a public social media page constitutes unconstitutional viewpoint discrimination.

Ensuring Equality in Employment: A plaintiff alleging sexual orientation discrimination necessarily states a valid sex discrimination claim under Title VII

By Editor-in-Chief NYU Moot Court Board

On February 4, 2019

In Contributions

by Erika Murdoch*

Does a plaintiff alleging sexual orientation discrimination state a valid cause of action under Title VII of the Civil Rights Act of 1964? In this Contribution, Erika Murdock (’19) discusses whether sexual orientation discrimination is encompassed within the language of Title VII after recent EEOC and appellate court cases. Ultimately, this Contribution argues that Title VII’s prohibition of discrimination on the basis of “sex” inherently encompasses sexual orientation as a subset of the sex discrimination it bans.

Fair Use Has Nothing to do with Being Fair

By Editor-in-Chief NYU Moot Court Board

On January 28, 2019

In Contributions

by Yonatan Shefa*

In the context of fair use, should courts factor moral harms into their analyses? In this Contribution, Yonatan Shefa (’19) challenges the applicability – in the context of fair use – of a recent line of research by legal academics who argue that copyright law should grant artists a degree of protection against moral harms since those protections better incentivize creation. This Contribution ultimately argues that courts must not consider moral harms in the fair use scheme absent such a directive by Congress, and that Congress would be ill-advised to effect such a change to the law.

Reconceptualizing the Registration Approach in Anticipation of the Supreme Court’s Decision in Fourth Estate

By Editor-in-Chief NYU Moot Court Board

On December 3, 2018

In Contributions

by Jonathan Wieder*

Should the Copyright Office be able to vet copyright applications before any action for copyright infringement is instituted? This term, in the upcoming case Fourth Estate, the Supreme Court will consider whether “registration” within the meaning of the United States Copyright Act merely mean that the components of the application need to be submitted to the Copyright Office (the “application” approach) or that the Copyright Office has affirmatively approved or refused the application (the “registration” approach). In this Contribution, Jonathan Wieder (’19) discusses the textual and legislative origins and consequences of each approach and the differing circuit interpretations that led to the grant of certiorari in Fourth Estate. Ultimately, this Contribution argues that the registration approach better effectuates congressional policy of vesting the Copyright Office with discretion over copyrightability and balancing protections for all parties to a copyright dispute.

Striking a Balance: Resolving the Conflicts Between Sections 363 and 365 of the Bankruptcy Code

By Editor-in-Chief NYU Moot Court Board

On November 26, 2018

In Contributions

by Gavin Mackie*

The balancing act that is the United States Bankruptcy Code sometimes leads to a tension between sections of the Code that grant rights to debtors and those that provide protections for parties with an interest in the debtor’s property. In this Contribution, Gavin Mackie (’19) explores the conflict between Sections 363(f) and 363(h) and how courts have approached situations where this conflict arises. Ultimately, this Contribution will argue that the possessory rights guaranteed by section 365(h) should be protected in any sale, and that a sale under 363(f) cannot eliminate the lessee’s interest.

The Applicability of the Absolute Priority Rule in the Context of Pre-Plan Settlement Agreements

By Bliss Leonard

On November 19, 2018

In Contributions

by Nathan Gencarella*

Can a bankruptcy court may approve a priority-skipping “gift” settlement in a Chapter 11 proceeding prior to the approval of a final plan over the objection of a disadvantaged class of creditors? In this Contribution, Nathan Gencarella (’19) argues that the principles of the recent Supreme Court decision Czyzewski v. Jevic Holding Corp. necessitate the application of the absolute priority rule to pre-plan settlements in order to preserve the integrity of the Bankruptcy Code’s carefully calibrated priority scheme. Ultimately, this Contribution establishes that this extension of Jevic is re-affirmed by both the dictates of public policy and the underlying text of the statute itself.

All Hands on Deck: Preserving the Humanity of Asylum Through Meaningful Judicial Review

By Daniel Kugler

On November 5, 2018

In Contributions

by Susan Levinson*

How can asylum applicants and their advocates safeguard their rights to a fair, impartial consideration of their claims when the Board of Immigration Appeals has virtually complete discretion in its decisions? In this Contribution, Susan Levinson (’19) argues that the lack of procedural safeguards built into the asylum process, coupled with the Court’s generally deferential, hands-off approach in the immigration context, deprive vulnerable applicants of their right under due process to a fair, impartial consideration of their claims. Ultimately, this Contribution recommends judicial, regulatory, and legislative reforms to protect legitimate asylum claims.

Integrating Care but Increasing Liability? Mitigating Risk in Non-Profit Health System Acquisitions of For-Profit Management Services Organizations

By Editor-in-Chief NYU Moot Court Board

On October 29, 2018

In Contributions

by Victoria Hamscho, Daniel Weinstein, and Ryan Knox*

Non-profit healthcare systems may seek to create an integrated care delivery system by acquiring other healthcare companies. Particular risks arise when nonprofit healthcare systems purchase for-profit management services organizations. In this Contribution, Victoria Hamscho, Daniel Weinstein, and Ryan Knox (’19) call attention to some significant risks non-profit healthcare systems face in acquiring for-profit management services organizations (including fraud and abuse, corporate practice of medicine laws, antitrust violations, and tax violations) and suggest possible means of mitigating these risks.

Immigration and the Second Amendment: Why Undocumented Immigrants Are Entitled to the Fundamental Right to Possess Firearms

By Editor-in-Chief NYU Moot Court Board

On October 22, 2018

In Contributions

by Kathy Buckalew*

Do undocumented immigrants have Second Amendment rights? Can they be categorically banned from possessing firearms? In this Contribution, Kathy Buckalew (’19) examines the constitutionality of a categorical ban on possession of firearms and ammunition by undocumented immigrants. The Contribution argues that undocumented immigrants living in the United States have the same individual right to keep and bear arms for purposes of self-defense as do United States citizens. Therefore, undocumented immigrants cannot be categorically prohibited from possessing firearms absent an affirmative showing by the government that such a prohibition is substantially related to the achievement of an important government interest.

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