N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: 2015–2016

Publications from the 2015–2016 academic year

Mincing Words: From Padilla to Practice

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On April 15, 2016

In Contributions

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.

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

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On April 13, 2016

In Contributions

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.

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The Status and Viability of the Efficiencies Defense in Antitrust Law

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On April 10, 2016

In Contributions

by Isaac Weingram*

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.

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Reexamining the “Germaneness” Test for Limited Purpose Public Figures

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On April 4, 2016

In Contributions

by David Clements*

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.

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Rejecting the Split Personality Prosecutor

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On April 4, 2016

In Contributions

by Rahul Hari*

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.

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The Dean Wormer Test: Good Faith as a Keystone of Student Speech First Amendment Jurisprudence

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On March 28, 2016

In Contributions

by Alec Webley*

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.

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