N.Y.U. Proceedings

On November 15, 2017

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.

Truly Threatening: Intent Requirements for First Amendment Protection

On November 10, 2017

by Ben Lazarus*

How should the law determine whether a true threat was made with intent sufficient to not merit First Amendment protection? In this Contribution, Ben Lazarus (’18) analyzes the different approaches circuit courts have taken to answer this question. This Contribution argues that an objective test for what constitutes a threat is most in line with the Supreme Court’s precedents and reasoning when confronting threatening speech.

The Importance of Privacy in Shared Spaces

On November 3, 2017

by Rachel Lerner*

Does the Fourth Amendment protect a tenant’s privacy in a shared storage unit? Can law enforcement search the whole space if her cotenant consents? In this Contribution, Rachel Lerner (’18) analyzes whether a tenant has a reasonable expectation of privacy in the space and whether it is reasonable for police to search the space upon a third-party’s consent. The Contribution argues that the Fourth Amendment protects a shared storage unit either as curtilage under Dunn or under the Katz test, and law enforcement cannot reasonably search a well-demarcated section of the unit if another cotenant consents.

The Future of Dead-Hand Proxy Puts in Delaware: Alive and Well or Dead on Arrival?

By Ryan Knox

On October 11, 2017

by Caitlin Millat*

Does a board of directors’ power to direct a corporation allow it to tie its own hands in the course of negotiating debt agreements? In this Contribution, Caitlin Millat (’18) analyzes the problem of dead-hand proxy puts under Delaware law, considering whether these provisions are ever allowed, and if they are, under what standard of scrutiny they should be reviewed. This contribution argues that dead-hand proxy put provisions should be evaluated under the business judgment rule, not the Unocal enhanced scrutiny standard.

Challenging USACafes Liability of a Fiduciary Entity’s Controllers

On October 11, 2017

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.

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

On September 30, 2017

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.

The Prudence of Finality: Equitable Mootness and Involuntary Creditors

On September 15, 2017

by Cyrus B. Kornfeld*

Incentivizing Chapter 11: Why A Non-Debtor Discharge Is Within the Authority of the Bankruptcy Courts and in the Best Interest of Creditors

On September 15, 2017

by Chelsea Ireland*

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

On April 19, 2017