Contributions

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.

Contributions

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.

Contributions

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.

Contributions

Is the “effi­cien­cies” defense to an antitrust claim a prac­ti­cal option for defen­dants in merg­er cas­es, and, if so, are courts well equipped to suc­cess­ful­ly eval­u­ate its mer­its? Isaac Wein­gram (’17) exam­ines this ques­tion, pre­sent­ed by the 2016 Glob­al Antitrust Insti­tute Invi­ta­tion­al, held at George Mason Uni­ver­si­ty. The effi­cien­cies defense pro­vides that, to rebut the con­cern that the anti-com­pet­i­tive effects of a merg­er would harm con­sumers, com­pa­nies may show that reduc­tions in pro­duc­tion costs or gains in inno­va­tion from a merg­er will ulti­mate­ly ben­e­fit con­sumers in the form of low­er prices or high­er qual­i­ty goods and ser­vices. This Con­tri­bu­tion argues that, first, though sev­er­al Cir­cuit Courts of Appeals have sig­naled an open­ness to hear­ing the effi­cien­cies defense, chal­lenges asso­ci­at­ed with meet­ing its demand­ing stan­dard ren­ders the defense an imprac­ti­cal option for merg­er defen­dants; sec­ond, even if it were a viable prac­ti­cal option, courts are unlike­ly to accu­rate­ly cal­cu­late and eval­u­ate the effi­cien­cy gains at the cen­ter of the defense.

Contributions

What stan­dard should be applied to lim­it­ed pur­pose pub­lic fig­ures – indi­vid­u­als that are pub­lic fig­ures only due to their involve­ment in a par­tic­u­lar pub­lic con­tro­ver­sy – who bring defama­tion claims, when the alleged defam­a­to­ry remarks are unre­lat­ed to the plaintiff’s pur­pose for being a pub­lic fig­ure? David Clements (’17) exam­ines this ques­tion, pre­sent­ed at the Spring 2016 Mar­den Moot Court Com­pe­ti­tion, held at New York Uni­ver­si­ty School of Law. The “ger­mane­ness test” employed by sev­er­al Cir­cuit Courts of Appeal deter­mines the extent of First Amend­ment pro­tec­tions a defen­dant in a defama­tion suit receives: a chal­lenged state­ment ger­mane to the con­tro­ver­sy for which a defama­tion claimant is a pub­lic fig­ure receive more pro­tec­tion than a state­ment unre­lat­ed to that con­tro­ver­sy. This Con­tri­bu­tion urges the Supreme Court to revis­it this ger­mane­ness test, as applied to lim­it­ed pur­pose pub­lic fig­ures, for three rea­sons: first, allow­ing lim­it­ed pur­pose pub­lic fig­ures to recov­er dam­ages for neg­li­gent defama­tion would cause a chill­ing effect on the press; sec­ond, engag­ing in a inten­sive inves­ti­ga­tion into whether cer­tain com­ments are “ger­mane” to a par­tic­u­lar plaintiff’s pur­pose as a pub­lic con­sti­tutes a pre­sump­tive­ly uncon­sti­tu­tion­al con­tent-based analy­sis of speech; third, the dis­tinc­tion between lim­it­ed pur­pose and gen­er­al pur­pose pub­lic fig­ures is no longer applic­a­ble due to tech­no­log­i­cal advance­ment and the height­ened access to self-help chan­nels that even lim­it­ed pur­pose pub­lic fig­ures now pos­sess.

Contributions

Can the excul­pa­to­ry tes­ti­mo­ny of a wit­ness before a grand jury be entered against the gov­ern­ment under the “For­mer Tes­ti­mo­ny” excep­tion to the ban on hearsay? Rahul Hari (’16) exam­ines this ques­tion, pre­sent­ed at the 2015 Nation­al Moot Court Com­pe­ti­tion. For excul­pa­to­ry tes­ti­mo­ny pro­vid­ed by a wit­ness before the grand jury to be admis­si­ble at a sub­se­quent tri­al in which the same wit­ness is no longer avail­able to tes­ti­fy, the pro­po­nent of that evi­dence must show that the pros­e­cu­tor had a sim­i­lar motive in devel­op­ing that witness’s tes­ti­mo­ny at the grand jury stage as she would have had if the wit­ness were now avail­able to tes­ti­fy at tri­al. This Con­tri­bu­tion argues that the broad inter­pre­ta­tion of “sim­i­lar motive,” as employed by a major­i­ty of the Cir­cuit Courts of Appeals, adheres to the text of the Fed­er­al Rules of Evi­dence, more accu­rate­ly cap­tures the mul­ti­ple motives a pros­e­cu­tor might have in ques­tion­ing a wit­ness, and pro­tects against pros­e­cu­to­r­i­al abuse.

Contributions

The Pro­ceed­ings of the NYU Moot Court Board, or just “Pro­ceed­ings,” is the online jour­nal of the NYU Moot Court Board, doc­u­ment­ing new approach­es to unset­tled legal ques­tions pro­ceed­ing from moot court activ­i­ties, par­tic­u­lar­ly law stu­dent com­pe­ti­tions.

Pro­ceed­ings aims to real­ize for the wider legal com­mu­ni­ty a ben­e­fit of moot­ing that has hith­er­to accrued only to par­tic­i­pants. As most appel­late lawyers know, one of the best ways to refine a the­o­ry of a case or an area of law is to argue about it, either with col­leagues or before law school pro­fes­sors. But stu­dent Moot Court com­pe­ti­tions, which con­sid­er some of the most inter­est­ing and intractable prob­lems in law, gen­er­ate hun­dreds of hours of for­mal, inquisi­to­r­i­al analy­sis of those prob­lems by pro­fes­sors, prac­ti­tion­ers, and judges (not to men­tion reams of legal writing)–and then, too often, the results are thrown away when the com­pe­ti­tion is over.

No longer. Pro­ceed­ings is the jour­nal where lawyers and law stu­dents can pub­lish their “test results” from the legal lab­o­ra­to­ry of moot­ing that tests both old and new approach­es to unset­tled areas of law. It aims to real­ize mooting’s poten­tial not only as a valu­able edu­ca­tion­al exer­cise, but as a pro­duc­tive forum for legal research.

Contributions

Does a school dis­trict vio­late the First Amend­ment when they ban stick­ers read­ing “Screw Hate, Don’t Dis­crim­i­nate,” and if so, how? Alec Web­ley (’16) exam­ines this ques­tion, pre­sent­ed at the 2015 Seigen­thaler First Amend­ment Moot Court Com­pe­ti­tion at Van­der­bilt Uni­ver­si­ty. Supreme Court doc­trine rec­og­nizes that a school or edu­ca­tor may sup­press stu­dent speech – speech that, in oth­er con­texts, would receive First Amend­ment pro­tec­tions – that is “lewd,” and there­fore incon­sis­tent with a school’s edu­ca­tion­al mis­sion. This Con­tri­bu­tion cri­tiques this lewd­ness test as imper­mis­si­bly vague, con­tent-based, and over­broad, and pro­pos­es an alter­na­tive method through which schools could pro­duc­tive­ly address and sanc­tion “lewd” speech.