N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Disclosure Duties as Public Policy?: Setting Aside Arbitration Decisions Under New York State Law

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On April 16, 2018

In Contributions

by John Muller*

In 2008, federal trial and appellate courts found against the NFL Players Association on the appeal of an arbitrator’s decision on the grounds that the league and policy administrators had breached their fiduciary duties to players. The trial court held that the steroid policy’s strict liability regime precluded any breach of fiduciary duties, and the Eighth Circuit found on appeal that plaintiffs had failed to offer authority under New York law for a public policy encouraging the performance of fiduciary duties. Did the NFL case get it right? In this Contribution, John Muller (’19) argues that to preserve New York’s public policy, courts should set aside the result of arbitration under a collective bargaining agreement on state common law grounds in these breach of fiduciary duty cases.

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Always a Monopoly, Never a Monopolist: Why Antitrust is the Wrong Regulatory Scheme for Protecting Competition in Technical Standards

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On April 9, 2018

In Contributions

by Randi Brown*

When patent holders gain standard-essential status, should antitrust law treat the monopoly conferred on them like every other monopoly? In this Contribution, Randi Brown (’19) argues that the best approach to such monopolies is not to expose them to antitrust scrutiny, but instead to allow contract and patent remedies to maintain the benefits to competition and innovation afforded by standardization.

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Is This What We Bargained For?: Allowing the Preemption of State Law through Collective Bargaining Agreements

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On March 29, 2018

In Contributions

by Micaela Heery*

Can a term in a collective bargaining agreement displace state law under any circumstance? How should a court balance the need for consistent, nationwide labor standards with constitutional concerns for preserving States’ police powers? In this Contribution, Micaela Heery (’19) offers an analytical framework for resolving these preemption issues under the Labor Management Relations Act. This Contribution argues that the right legal analysis must consider both whether a claim arises independently of the collective bargaining agreement and whether preemption would be appropriate given Congress’ power over interstate commerce and notions of state sovereignty.

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Everywhere at Once: The Tinker Framework and Off-Campus, Online Speech

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On February 23, 2018

In Contributions

by Avery Medjuck*

May a school restrict a student’s online speech without violating the First Amendment? In this Contribution, Avery Medjuck (’18) explains how the omnipresence of digital communication challenges the Tinker framework for determining when a school administrator can lawfully restrict speech. This Contribution argues that only a test that considers the intent of the student speaker can adequately balance students’ free speech rights against administrators’ need to protect the school environment.

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License Denied: Some State Occupational Licensing Laws Might be Unconstitutional Under the Equal Protection Clause

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On February 18, 2018

In Notes

by Maya Danaher*

Are state occupational licensing laws that prohibit certain people convicted of crimes from receiving Emergency Medical Technician (EMT) licenses unconstitutional under the Equal Protection Clause of the Fourteenth Amendment? In this Contribution, Maya Danaher (’18) discusses the constitutional issues arising from state licensing laws that withhold EMT licensure from people convicted of crimes. Ultimately, this Contribution argues that the Equal Protection Clause prohibits such state laws.

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Dead on Deferral?: Whether to Prosecute Companies That Fail to Comply with DPAs

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On February 7, 2018

In Notes

by Brittney Nagle*

What actions should prosecutors and regulators take following a financial institution’s failure to meet the terms of a Deferred Prosecution Agreement? In this Contribution, Brittney Nagle (’18) analyzes the options and remedies that U.S. prosecutors and regulators can pursue to promote accountability in the financial sector. This Contribution ultimately argues that they should pursue a combination of criminal charges against the institutions and actions to disgorge top executives of bonuses and other discretionary income.

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Sustaining Academic Freedom: The Need to Redefine the Threshold Question in First Amendment Claims Brought by Public University Professors

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On February 1, 2018

In Contributions

by Emily Several*

Can a public university terminate a professor for speech made related to the university? In this Contribution, Emily Several (’18) analyzes the scope of public employees’ First Amendment rights with regard to speech made in their personal and professional capacities. This Contribution ultimately argues that the Supreme Court should establish an exception to the threshold requirement set in Garcetti v. Ceballos in order to preserve academic freedom on public university campuses.

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Caveat Utilitor: A Tort Regime for Outer Space

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On January 26, 2018

In Contributions

by Jason A. Driscoll*

Is damage to a lunar mining facility actionable under the Outer Space Treaty when the facility is built on the surface of the Moon and made entirely from lunar rock? In this Contribution, Jason A. Driscoll (’18) analyzes a wrinkle in the law of outer space, contemplating whether the current outer space tort regime protects damage to property crafted entirely from materials mined in outer space. The Contribution argues that the current regime does not protect and cannot account for the unprecedented, though possible, practice of manufacturing objects in outer space using extraterrestrial materials.

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Rethinking Qualified Immunity: Making America Accountable Again

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On January 18, 2018

In Contributions

by Victoria del Rio-Guarner*

Should the qualified immunity doctrine be revisited to better allow civilians to sue government officials for violations of fundamental rights? In this Contribution, Victoria del Rio-Guarner (’18) discusses how the Supreme Court’s decisions in Harlow v. Fitzgerald and Pearson v. Callahan essentially rendered qualified immunity to Section 1983 claims unqualified. This Contribution argues that qualified immunity doctrine should be recalibrated in order to better fulfill its underlying purpose while not disabling Section 1983 claims.

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Don’t Depart From Deterrence: The Exclusionary Rule And Warrants Based On Tainted Evidence

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On December 13, 2017

In Contributions

by Savannah Ashby*

Should the Fourth Amendment exclusionary rule apply when an officer acts in good faith in the execution of a warrant based on tainted evidence? In this Contribution, Savannah Ashby (’18) discusses the differing ways in which Courts of Appeals have applied the good faith exception to the exclusionary rule in situations where the warrant is based on tainted evidence. Ultimately, this Contribution argues that the good faith exception to the exclusionary rule should not apply to evidence obtained in execution of a warrant based on tainted evidence as it more consistent with the goal of the exclusionary rule: deterring officers from committing Fourth Amendment violations.

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