N.Y.U. Proceedings

On October 21, 2016

by Aaron Lichter*

Is the test for copyright infringement necessarily vague and ad hoc, as Judge Learned Hand once said, or can the test be made rigorous? Based on his experience in the 2016 Cardozo BMI Moot Court Competition, Aaron Lichter (’17) explores this question by discussing the various copyright infringement tests that courts use to determine liability. Specifically, the “total concept and feel” test assesses copyright infringement based on contextual, abstract concepts rather than specific details such as plot elements or characters. The Contribution concludes that, despite its ambiguity, the “total concept and feel” test provides protections that outweigh potential problems with its vagueness.

Fitting Administrative Law Judges into Appointments Clause Jurisprudence (and Determining the Proper Forum to Do So)

On October 14, 2016

by Jordan Gary*

Are Administrative Law Judges (ALJs) inferior officers of the United States under the Appointments Clause of the Constitution, rendering the Securities and Exchange Commission’s (SEC) procedure for appointing ALJs unconstitutional? Procedurally, how could a respondent in an SEC administrative action make such a challenge? Jordan Gary (’17) explores this question, as presented in the 2016 Kaufman Moot Court Competition at Fordham Law School. Supreme Court doctrine places a demanding burden on plaintiffs seeking to circumvent SEC administrative processes. Additionally, the SEC is neither bound by, nor required to defer to, initial ALJ determinations in reaching its ultimate determination within a proceeding. As a result, this Contribution argues that, as a matter of both law and policy, Article III district courts should not have subject-matter jurisdiction over constitutional claims challenging SEC administrative procedure, and that SEC ALJs do not constitute inferior officers under the Appointments Clause of the Constitution.

Arbitraging Judicial Interpretation of the Delaware General Corporation Law

On October 10, 2016

by Nathaniel Kiechel*

Are investors precluded from engaging in appraisal arbitrage under Delaware law, if its shares are retitled under the “street name” of a different Depository Trust Company participant before the effective date of a merger? Nate Kiechel (’17) examines this question, as presented in the 2016 Annual Ruby R. Vale Interschool Moot Court Competition, held at Widener University Delaware Law School. Delaware’s statutory definition of “stockholder” has failed to account for technological advances in underlying market systems, creating uncertainty for appraisal arbitrage investors. This Contribution argues that these arbitrageurs should be permitted to retain their right to the appraisal remedy despite underlying processes that may result in their shares being retitled, and urges the Delaware General Assembly to adopt a definition of “stockholder” that better reflects these processes and accords with the corresponding definition in federal securities laws.

The Buck Stops Here: The Limits of Bankruptcy Court Jurisdiction Post-Confirmation

On September 30, 2016

by Michael Murray*

May bankruptcy courts assume “related to” jurisdiction under 28 U.S.C. § 1334(b) over a post-confirmation successor liability suit when the estate’s assets have already been disbursed? Michael Murray (’17) examines this question, based on his experience at the 2016 Duberstein Moot Court Competition, sponsored by St. John’s University School of Law. His Contribution analyzes the legal landscape of “related to jurisdiction” in bankruptcy courts. Ultimately, the Contribution proposes that the Seventh Circuit has adopted the clearest interpretation of the statute and reasonably limits “related to” jurisdiction to disputes in which either the debtor is a party or the dispute affects the amount or distribution of the debtor’s estate.

Long Hair, Don’t Care: An Analysis of Gender-Specific School Athletic Regulations & The Equal Protection Clause

On September 30, 2016

by Matthew Olsen*

Does a high school men’s baseball team regulation governing player hairstyles violate players’ Due Process or Equal Protection rights? Matt Olsen (’17) examines this question, based on his experience at the 2016 Tulane Mardi Gras Sports Law Invitational Competition. His Contribution discusses the Seventh Circuit’s ruling in Hayden v. Greensburg School Community Corporation, the sole circuit court case to address the constitutionality of extracurricular athletic grooming regulations in the context of an Equal Protection claim. Although the adoption of the holding by other courts remains to be seen, the Contribution concludes that the ruling could serve as a powerful means to strike down personal appearance regulations based on gender stereotypes.

So You Think You’re a Citizen? How a United States Citizen Can Be Stripped of His Citizenship

On September 1, 2016

by Sonya Chung and Zi Lin*

Do passports and Consular Reports of Birth Abroad constitute conclusive proof of U.S. citizenship such that the State Department’s revocation of these documents is not impermissibly retroactive? Sonya Chung (’17) and Zi Lin (’17) examine this question, based on their experience as writers of the problem for the New York University School of Law 2016 Immigration Law Competition. Their Contribution discusses the state of the law surrounding passports and CRBAs as evidence of citizenship and their revocability. The Contribution argues that courts should allow individuals to use these documents as conclusive proof of citizenship and that the State Department’s power to correct its own errors should be circumscribed carefully in cases where there has been extended reliance on citizenship rights.

Mincing Words: From Padilla to Practice

On April 15, 2016

by Kartik Sameer Madiraju*

Does an attorney satisfy a resident alien client’s Sixth Amendment right to effective counsel by informing the client of the mere risks of deportation associated with a guilty plea, or must she predict the likelihood of deportation with even greater specificity? Kartik Madiraju (’17) examines this question, presented at the 2016 Evans Constitutional Law Moot, held at the University of Wisconsin. Though the Supreme Court has held that attorneys must inform their clients whether a guilty plea carries a risk of deportation, several of the Circuit Courts of Appeals disagree on how specifically an attorney must characterize the likelihood of that risk. This Contribution argues that the majority interpretation, requiring only that attorneys advise their clients of the mere existence of such a risk, is more consistent with the letter and spirit of Supreme Court precedent, and better reflects the discretionary nature of an Attorney General’s decision to order deportation.

Hacking from the Inside-Out: Can the CFAA Impose Liability on Employees who Misuse Employer Data?

On April 13, 2016

by Susanna Griffith*

Can an employee who has accessed computer database information in violation of use restrictions and direct instructions from his employer be convicted under the Computer Fraud and Abuse Act for accessing data “without authorization” or “exceed[ing] authorized access”? Susanna Griffith (’17) reflects on this question, based on her experience at the 2016 Spong Moot Court Tournament, hosted by William & Mary Law School. Her Contribution discusses the legal landscape and circuit split regarding the applicability of the statute to employees who have violated use restrictions and directives from employers. The Contribution argues that the narrow, code-based view is preferable as the clearly constitutional reading that also comports with standards of excellence in the field of cyber-security.

The Status and Viability of the Efficiencies Defense in Antitrust Law

On April 10, 2016