N.Y.U. Proceedings – Exploring New Approaches to Unsettled Legal Questions

No Talking (or Thinking) in Class: How Bans on Critical Race Theory in the Classroom Unconstitutionally Silence Students

On April 29, 2025

by Galia Pino^*

The Supreme Court has long maintained that students have a First Amendment right to speech and, relatedly, the freedom to receive information in K-12 public school classrooms. Despite public officials’ attempts to ban critical race education in classrooms, these fundamental rights cannot be infringed upon absent a legitimate pedagogical concern. Even though Critical Race Theory (CRT) originates in the legal academy, state legislation purporting to ban CRT actually censors K-12 education on racial injustice, historical oppression, the American slavery system, and more. While communities have mounted challenges to these laws on a variety of grounds, including vagueness, incorrect identification of CRT, and speech rights of educators, this Contribution argues that the bans infringe on students’ First Amendment rights. It first outlines the framework of First Amendment rights in public school classrooms and assesses how state actors may reasonably restrict speech there. It focuses on the pedagogical concerns courts have deemed legitimate enough to constitutionally limit First Amendment rights, highlighting how political ideology or partisanship are not appropriate justifications. It then applies that framework to selected state laws banning CRT and demonstrates that neither the topics those bans purport to cover, nor the actual curricula they target, can be properly limited based on a theory of legitimate pedagogical concern. Therefore, this Contribution argues that bans on CRT—even as it is defined by recent state laws—censor students’ right to speech and violate their right to receive information.

The Legal Ambiguity of Daily Fantasy Sports: Skill, Chance, and the Case for the Predominant Purpose Test

By Editor-in-Chief NYU Moot Court Board

On April 24, 2025

In Contributions

by Gloria Siyue Zheng*

Daily Fantasy Sports (“DFS”) has sparked novel questions regarding whether it constitutes illegal gambling. Games of chance are subject to both state and federal gambling laws from which games of skill are typically exempt. However, determining whether DFS falls within the category of chance-based gambling or skill-based competition has proven difficult. Courts remain divided on whether to apply the material elements test, which considers a game to constitute gambling if chance plays any significant role, or the predominant purpose test, which evaluates whether skill outweighs chance to determine whether a game constitutes gambling. This Contribution contends that courts should adopt the predominant purpose test, as it introduces greater consistency and objectivity in an inherently challenging legal determination. Analyzing both tests in the context of DFS highlights the flaws of the material elements test, which produces inconsistent classifications of gambling.

Revisiting Jefferson Parish in Light of Microsoft and Contemporary Understandings of Tying Arrangements

By Editor-in-Chief NYU Moot Court Board

On April 24, 2025

In Contributions

by Daniel Rossman*

The Supreme Court currently analyzes tying arrangements under the modified per se rule from Jefferson Parish Hospital v. Hyde. Under this standard, a court should conduct an in-depth inquiry into a firm’s market power and condemn arrangements that tie two products together. Because Jefferson Parish is a “per se” rule, defendants cannot justify their actions with procompetitive explanations. This Contribution argues that Jefferson Parish’s per se rule against tying arrangements ought to be replaced by the rule of reason for three reasons. First, the per se rule fails to consider the efficiencies that can be associated with tying. Second, contemporary understandings of tying arrangements no longer justify the per se rule. Finally, the benefit of the Jefferson Parish per se rule is undercut by its four-step framework. Instead, courts should adopt the rule of reason which would allow them to assess the potential efficiencies created through tying arrangements.

When “Deny” Doesn’t Mean “Deny”: The Origins of the Common Law FMLA Inter-ference Test

By Editor-in-Chief NYU Moot Court Board

On April 22, 2025

In Contributions

by Anders M. Greene-Crow*

Although the Family and Medical Leave Act (“FMLA”) plainly states that employers may not “interfere [with], restrain, or deny” employee benefits, some circuits have impermissibly narrowed this prohibition by only permitting plaintiffs who have been outright denied benefits to proceed with claims alleging violations of this provision. However, the common law test these courts cite to, which defines interference for FMLA purposes, does not justify this narrowing approach. This Contribution argues that the common law test uses “deny” as a shorthand for various forms of interference with employee benefits, including those which stop short of an actual denial of benefits. Courts cannot use this common law test to justify narrowing the statute because the test’s history and purpose do not support doing so.

Staying True to Title VII: Finding a Solution that Both Accommodates Religion and Is Reasonable

By Editor-in-Chief NYU Moot Court Board

On April 22, 2025

In Contributions

by Rachel Schwartz*

Title VII of the Civil Rights Act prohibits discrimination on the basis of religion by requiring employers to accommodate their employees whose religious observances conflict with their job duties. The text of the statute states that an employer must offer a “reasonable accommodation” to such employees, but it fails to define the term precisely. In a single sentence in Ansonia Board of Education v. Philbrook, the Supreme Court suggested that a reasonable religious accommodation must eliminate the conflict between religious practices and employment requirements. Based on this precedent, as well as the plain meaning and purpose of Title VII, this Contribution argues that the proper understanding of a reasonable religious accommodation requires a two-part analysis, first asking whether the accommodation eliminates the conflict and second, examining whether it is reasonable. Importantly, such an approach ensures that religious employees are accommodated and yet it is not too onerous for employers due to additional language in Title VII that protects employers from having to provide reasonable religious accommodations where doing so will result in undue hardship on the conduct of their business.

Tester Standing: Why Precedent Requires that Disabled ADA Testers Can Establish Standing Under Either Informational or Stigmatic Theories of Injury

By Editor-in-Chief NYU Moot Court Board

On April 22, 2025

In Contributions

by Morgan Hale*

This Contribution argues that disability testers challenging non-compliant websites under the Americans with Disabilities Act (“ADA”) have Article III standing by analogizing to Fair Housing Act (“FHA”) testers in Havens Realty Corp. v. Coleman. Despite the Supreme Court’s increasingly restrictive standing jurisprudence, the broad statutory language of the ADA parallels that of the FHA, preserving a private right of action for ADA testers. By challenging the notion that testers’ voluntary encounters with discrimination undermine their injury, this Contribution asserts that both informational and stigmatic harms remain cognizable injuries under the ADA for testers. The ADA has the unique goal of addressing both animus-based and ability-based discrimination resulting from unaccommodating goods and services. To eradicate ability-based discrimination and ensure that people with disabilities can fully and equally partake in society, the availability of accessibility information is paramount. Moreover, when people with disabilities encounter unaccommodating goods or services, they are injured with equivalent stigmatic force as individuals facing animus-based discrimination. Thus, recognizing tester standing through informational and stigmatic theories of harms is essential to achieving the ADA’s aim of eradicating systemic disability discrimination.

Bristol-Myers Squibb’s Impact on Collective Actions: Why the Tide Should Shift from Fischer and Towards Waters

By Editor-in-Chief NYU Moot Court Board

On April 15, 2025

In Contributions

by Isabelle Wechsler*

Despite the current weight of case law suggesting otherwise, the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California (“BMS”) should not apply to Fair Labor Standards Act (“FLSA”) collective actions. This Contribution argues that federal courts hearing FLSA claims are not required to exercise personal jurisdiction over defendants with respect to out-of-state opt-in FLSA plaintiffs’ claims. This Contribution first provides a brief background on the Supreme Court’s decision in BMS and describes how lower courts have uniformly limited BMS’s application to class actions but not FLSA collective actions. It then compares the text and history of FLSA collective actions and class actions to demonstrate that the same reasoning used to limit BMS’s application to class actions should extend FLSA collective actions. It also shows that FLSA-specific arguments, particularly in relation to mass actions, support this conclusion. Finally, this Contribution demonstrates that even if federal courts are required to exercise personal jurisdiction over FLSA opt-in plaintiffs’ claims, a proper reading of Federal Rule of Civil Procedure 4(k) reveals only Fifth Amendment, not Fourteenth Amendment, Due Process restrictions apply, and thus out-of-state opt-in plaintiffs’ claims remain within the reach of a federal court’s jurisdiction.

Too JUUL for School: Evaluating the FDA’s Regulation of Flavored Electronic Nicotine Delivery Systems

By Editor-in-Chief NYU Moot Court Board

On March 20, 2025

In Contributions

by Aster O’Leary^*

In response to what has been dubbed a “youth vaping epidemic,” the Food and Drug Administration (“FDA”) has recently cracked down on non-tobacco-flavored Electronic Nicotine Delivery Systems (“ENDS”), which middle and high school students prefer over tobacco-flavored ENDS products. Recognizing that the ENDS industry is relatively new and constantly evolving, the FDA declined to mandate the inclusion of certain types of scientific studies in its guidance to the industry. However, many flavored ENDS manufacturers feel that the FDA pulled a “surprise switcheroo” when denying many of their Premarket Tobacco Product Applications (“PMTA”).¹ In the denials, the FDA explained that the applications lacked long-term studies and/or controlled investigations that demonstrated that the flavored products were “appropriate for the protection of the public health.”² Additionally, the manufacturers complained that for many of their applications, the FDA refused to consult their marketing plans, which the FDA had previously emphasized were of tantamount importance. This Contribution argues that the FDA did not violate the Administrative Procedure Act (“APA”) by modifying its approach to PMTA review. It first demonstrates denying PMTAs because they lacked long-term studies is permitted under the FDA’s flexible approach to weighing ENDS’ risks and benefits to society as a whole. It then argues that the FDA’s refusal to consult manufacturers’ marketing plans, while arbitrary and capricious, is in most cases harmless error. It concludes by questioning whether the FDA should be tasked with regulating an inherently harmful category of products in the first place.

Shareholder Protection in Tender Offers: An Argument for an SEC-Enforced Negli-gence Standard Under § 14(e)

By Editor-in-Chief NYU Moot Court Board

On March 18, 2025

In Contributions

by Giulia Piccininni *

Federal Courts of Appeals throughout the country have interpreted § 14(e) of the Williams Act to require plaintiffs to make a showing of scienter when alleging entities engaged in tender offers made material misstatements and omissions in connection with tender offers. This long-standing interpretation was interrupted in 2018 when the Ninth Circuit held in Varjabedian v. Emulex Corporation that a showing of mere negligence was enough to plead a § 14(e) claim. The Supreme Court granted certiorari in Varjabedian to resolve the circuit split but ultimately did not issue a decision. The case was further complicated when the defendant and numerous amicus briefs raised an additional issue: whether § 14(e) gives plaintiffs a private right of action at all. This Contribution argues that § 14(e) is currently misinterpreted by a majority of the Courts of Appeals: while § 14(e) does not establish a private right of action, it does provide for SEC enforcement that can proceed under a negligence standard. Since § 14(e)’s prohibition on false or misleading statements does not contain language that necessarily implies scienter, such a showing is not required. At the same time, because § 14(e)’s text does not manifest clear congressional intent to create a private right of action, one does not exist.

Securing Competitive Access: The Role of Supply Agreements in Mitigating Input Foreclosure Risks

By Editor-in-Chief NYU Moot Court Board

On March 13, 2025

In Contributions

by Alexander S. Greenberg*

This Contribution examines the important role that contractual supply agreements can play in addressing input foreclosure risks in vertical mergers. By analyzing the Microsoft/Activision merger and the Illumina/Grail acquisition, this Contribution assesses the efficacy of behavioral remedies such as supply agreements in preserving access to essential market inputs. The discussion highlights the adaptability of supply agreements in dynamic markets and their potential advantages over structural remedies. FTC v. Microsoft Corporation demonstrates how well-crafted supply agreements can facilitate regulatory approval by guaranteeing rivals’ access to crucial inputs. In contrast, the Federal Trade Commission’s rejection of Illumina’s Open Offer in Illumina, Inc. v. FTC underscores the limitations of broad behavioral remedies that fail to adequately prevent secondary harm. This Contribution argues that, when thoughtfully structured, supply agreements can serve as a powerful tool to mitigate vertical foreclosure concerns in rapidly evolving markets.

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