Contributions

Do state laws that con­di­tion the issuance of con­cealed car­ry per­mits on an applicant’s show­ing of “good cause” uncon­sti­tu­tion­al­ly bur­den those appli­cants’ Sec­ond Amend­ment rights? Andy Deb­bins (’17) address­es this ques­tion, raised at the 2016 “Fall” Mar­den Com­pe­ti­tion, at the New York Uni­ver­si­ty School of Law. Gen­er­al­ly, “good cause” restric­tions require that appli­cants show some spe­cial rea­son for car­ry­ing a con­cealed weapon. Writ­ing from the per­spec­tive of the 2016 “Fall” Mar­den peti­tion­er, this Con­tri­bu­tion argues that a sim­ple, straight-for­ward read­ing of the Sec­ond Amend­ment ren­ders “good cause” restric­tions uncon­sti­tu­tion­al.

Contributions

Does the fair use doc­trine apply to online search results that dis­play excerpts from copy­right­ed mate­ri­als? Mol­ly Bal­ti­more (’17) address­es this ques­tion based on her expe­ri­ence at the Car­do­zo BMI Moot Court Com­pe­ti­tion held in March 2016, and con­cludes that it should be answered in the affir­ma­tive. The fair use doc­trine allows sec­ondary users to copy or repro­duce oth­er authors’ works with­out being liable for copy­right infringe­ment in cer­tain instances. Ulti­mate­ly, the Con­tri­bu­tion argues that, under an expan­sive read­ing of the fair use doc­trine, search­able online data­bas­es that mere­ly con­vey infor­ma­tion about a copy­right­ed work can do so in a trans­for­ma­tive man­ner, and with­out caus­ing real eco­nom­ic harm.

Contributions

What evi­den­tiary bur­den must pris­ons must sat­is­fy in order to show that its pol­i­cy restrict­ing an inmate’s reli­gious exer­cise is suf­fi­cient­ly nar­row­ly tai­lored under Reli­gious Land Use and Insti­tu­tion­al­ized Per­sons Act (RLUIPA)? Staci Cox (’17) exam­ines this ques­tion, raised at the Touro Law School Moot Court Com­pe­ti­tion on April 7th, 2016. In assess­ing whether a prison’s pol­i­cy that restricts reli­gious exer­cise is suf­fi­cient­ly nar­row­ly tai­lored under RLUIPA, courts exam­ine the reli­gious exemp­tions already pro­vid­ed to inmates with­in the facil­i­ty; if no exemp­tions are already pro­vid­ed, courts ask whether the prison could effec­tu­ate its pol­i­cy through less restric­tive means, with­out undu­ly bur­den­ing oth­er inmates or strain­ing prison oper­a­tions. This con­tri­bu­tion argues that, in order to demon­strate that their poli­cies are suf­fi­cient­ly nar­row­ly tai­lored under RLUIPA, pris­ons must sat­is­fy a sig­nif­i­cant evi­den­tiary bur­den by show­ing: the fre­quen­cy with which cur­rent exemp­tions are used, the costs of pro­vid­ing addi­tion­al exemp­tions, and the extent would threat­en the safe­ty and secu­ri­ty of inmates.

Contributions

How should courts assess whether employ­ees suf­fer­ing from symp­toms asso­ci­at­ed with gen­der dys­pho­ria are enti­tled to unpaid, job-pro­tect­ed leave under the Fam­i­ly Med­ical Leave Act (FMLA)? Josh Thorn (’17) explores this ques­tion, based on his expe­ri­ence com­pet­ing at the Wag­n­er Moot Court Com­pe­ti­tion, held at New York Law School in March 2016. The FMLA lim­its eli­gi­bil­i­ty for leave to employ­ees with “seri­ous health con­di­tions” pre­vent­ing the employ­ee from work­ing. This Con­tri­bu­tion urges courts to pri­mar­i­ly con­sid­er whether the treat­ment required for employ­ees diag­nosed with depres­sion and anx­i­ety result­ing from gen­der dys­pho­ria — and not mere­ly the symp­toms of the con­di­tion itself — would pre­vent the employ­ee from work­ing in deter­min­ing whether there exists a “seri­ous health con­di­tion” under the FMLA.

Contributions

Does war­rant­less, pro­longed loca­tion track­ing vio­late the Fourth Amendment’s pro­tec­tions against unrea­son­able search­es? Hogan Paschal (’17) exam­ines this ques­tion, based on her expe­ri­ence at the 2016 Spong Moot Court Tour­na­ment, host­ed by William & Mary Law School on Feb­ru­ary 12–13th, 2016. The loca­tion track­ing tools employed by Gov­ern­ment inves­ti­ga­tors have become more sophis­ti­cat­ed and wide­spread, often erod­ing the prac­ti­cal con­straints that gov­ern­ment resources pre­vi­ous­ly imposed on search pow­er. This Con­tri­bu­tion posits a more holis­tic read­ing of the Fourth Amend­ment, that simul­ta­ne­ous­ly acknowl­edges its his­tor­i­cal con­text and mod­ern inves­tiga­tive chal­lenges. Ulti­mate­ly, it argues that courts should restore Fourth Amend­ment safe­guards by requir­ing a war­rant as a pre­cur­sor to the government’s use of pro­longed loca­tion track­ing.

Contributions

Should sta­di­um own­ers or oper­a­tors be liable for injuries to spec­ta­tors caused by foul balls, or is lim­it­ing such lia­bil­i­ty nec­es­sary to pro­tect America’s pas­time? Jake Calvert (’17) explores this ques­tion, based on his expe­ri­ence at the 2016 Tulane Mar­di Gras Sports Law Invi­ta­tion­al on Feb­ru­ary 3rd, 2016. His­tor­i­cal­ly, the base­ball rule has lim­it­ed the duty of care game atten­dees on the grounds that a more typ­i­cal neg­li­gence analy­sis would force venue own­ers and teams to take unrea­son­able pre­cau­tions. The Con­tri­bu­tion ulti­mate­ly argues that the base­ball rule should be sup­plant­ed by more mod­ern notions of tort lia­bil­i­ty, such as com­par­a­tive fault, that would account for the spe­cif­ic fac­tors of a par­tic­u­lar base­ball game injury.

Contributions

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.

Contributions

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.

Contributions

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.

Contributions

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.