The Right Against Self-Incrimination in the Digital Age

Posted on by Editor-in-Chief NYU Moot Court Board
Law enforcement agencies are increasingly seeking to compel the disclosure of passwords from the owners of password-protected encrypted devices, such as cell phones. Does the government have the right to compel this disclosure? In this Contribution, Diego Wright (‘22) argues that the Fifth Amendment right against self-incrimination protects an individual from being forced to disclose their passcode when analyzed under the “foregone conclusion” doctrine unless the government can demonstrate they already know the testimonial communications tacit in the act of providing the passcode.

The Fifth Amendment: No Safe Harbor for First Amendment Retaliation

Posted on by Editor-in-Chief NYU Moot Court Board
This Contribution examines whether compliance with the Fifth Amendment should shield a federal condemnation action from a First Amendment retaliation claim. Hannah Beattie (’21) argues that the rationales for carving out safe harbors for government action to be free from First Amendment scrutiny if in compliance with the Fourth Amendment do not extend to the Fifth Amendment context. Ultimately, this Contribution concludes that an individual should be able to raise a First Amendment retaliation defense to a condemnation action, even if the government complied with the Fifth Amendment.

Inverting the Scope-of-the-Project Rule: Determining When Government Pre-Condemnation Announcements Should Change the Default Rule for Just Compensation

Posted on by Editor-in-Chief NYU Moot Court Board
The Fifth Amendment prohibits the taking of private property “without just compensation,” but the optimal method of determining the precise amount of money that will justly compensate the property owner is not always clear. The general rule has been to set compensation at the fair market value of the property at the time the government takes it, with certain exceptions. In this Contribution, Timothy Lyons (’21) argues that when the government makes a well-publicized pre-condemnation announcement, it may be appropriate to compensate the owner based on the property’s value at the time of the announcement rather than its value at the time of the taking.

Rethinking Qualified Immunity: Making America Accountable Again

Posted on by Michael Klurfeld
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.

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

Posted on by MCB Staff Editor
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.

Reexamining the “Germaneness” Test for Limited Purpose Public Figures

Posted on by Harry Grabow
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.

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

Posted on by MCB Staff Editor
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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