N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: 2017–2018 Page 2 of 3

Publications from the 2017–2018 academic year

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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The Element in the Room: Requiring Probable Cause of Every Element of a Crime

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On December 6, 2017

In Contributions

by Kimberly La Fronz*

When conducting a warrantless search or seizure, must a police officer have probable cause for all elements of the crime, including mens rea? In this Contribution, Kimberly La Fronz (’18) discusses what the circuits include in their totality of the circumstances analysis to determine probable cause. This Contribution argues that in order to effect a warrantless arrest a police officer must have probable cause with respect to every element of the crime in order to effect a warrantless arrest and must not ignore exonerating evidence in their totality of the circumstances analysis.

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Discharging the Debt of a Third-Party Non-Debtor is Within the Authority of the Bankruptcy Courts

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On December 2, 2017

In Contributions

by Chelsea Ireland*

Is discharging the liability of a third-party non-debtor within the authority of the bankruptcy courts? In this Contribution, Chelsea Ireland (’18) addresses the circuit split as to whether bankruptcy courts can confirm reorganization plans that discharge the acquiring company’s liability to a class of creditors. This Contribution will argue that the discretion to discharge the liability of a third-party non-debtor is within the authority bankruptcy courts.

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Rights on ICE: A Determination Delayed is Due Process Denied

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On November 28, 2017

In Contributions

by Sharon Turret*

How long may Immigration and Customs Enforcement detain a noncitizen before he or she must go before a judge? In this Contribution, Sharon Turret (’18) analyzes the Due Process Clause issues with a “reasonableness” test for length of detention and the need for a bright-line rule. This Contribution argues that the Due Process Clause requires a bright-line rule that the length of detention be presumed unreasonable after six months. That very bright-line rule is now before the Supreme Court in Jennings v. Rodriguez.

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Buyers Beware: Lower Prices Can be Harmful to Consumers

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On November 15, 2017

In Contributions

by Megan Hare*

Does a bundled discount offered by a dominant firm in the market violate Section 2 of the Sherman Antitrust Act? Megan Hare (’18) addresses this question based on her experience at the 2017 Global Antitrust Institute Moot Court Competition. Antitrust doctrine strongly favors aggressive pricing and other discount schemes that encourage competition within a given market. Bundled discounts fall squarely within the procompetitive pricing schemes praised by the Supreme Court’s antitrust doctrine. These rebates compel firms to compete for consumers, thereby allowing consumers to pay lower prices for products than they otherwise would pay without such market competition. This Contribution argues, however, that bundled discounts may be anticompetitive and unlawful under the Sherman Act when unjustifiably used by a dominant firm to gain additional market share or to maintain the firm’s existing market power.

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Truly Threatening: Intent Requirements for First Amendment Protection

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On November 10, 2017

In Contributions

by Ben Lazarus*

How should the law determine whether a true threat was made with intent sufficient to not merit First Amendment protection? In this Contribution, Ben Lazarus (’18) analyzes the different approaches circuit courts have taken to answer this question. This Contribution argues that an objective test for what constitutes a threat is most in line with the Supreme Court’s precedents and reasoning when confronting threatening speech.

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