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

“Partially Protected” Speech: Why the Flawed Logic of Free Speech Coalition v. Paxton Limits its Holding

On October 31, 2025

by Orly Salik*

The Supreme Court ruled in Free Speech Coalition v. Paxton that a statute requiring individuals to verify their ages before accessing sexually explicit content triggers, and satisfies, intermediate scrutiny. Employing a novel form of First Amendment analysis, the Court found that because access to sexually explicit content is protected as to adults, but not as to children, this form of speech on the whole is only “partially protected.” This Contribution argues that the majority’s new rule, applying intermediate rather than strict scrutiny to “partially protected” speech, in fact limits the scope of Paxton’s applicability. The case should not be construed as providing a broad mandate for age verification laws across the internet because, unlike most other online content, sexually explicit material is a narrow category of speech that is excluded from First Amendment protections for minors. A broader reading of the decision would contravene existing precedent regarding the speech rights of minors and impermissibly lower the standard of constitutional review for any speech deemed inappropriate for children. Thus, Paxton must not be read to endorse the use of intermediate scrutiny for any other restriction on material harmful to minors.

The Federal Trade Commission’s Generalized Rulemaking Authority

By Editor-in-Chief NYU Moot Court Board

On September 29, 2025

In Contributions

by Lisa Tarasyuk*

The Federal Trade Commission is vested with the power to make rules with legislative effect when regulating unfair methods of competition. That includes the power to issue a Non-Compete Clause Rule, a rule that voids non-compete clauses nationally. The Commission’s authority to issue such a rule is conveyed by the plain text of 15 U.S.C. §§ 45(a)(2) and 46(g) and confirmed by the Federal Trade Commission Act’s scheme and subsequent amendments. The rule does not offend the Major Questions Doctrine because the authorizing provisions are clear, as is Congress’s intent for the Commission to intervene in trade. The Commission is thus vested with the authority to issue substantive rules when regulating unfair methods of competition, including through the Non-Compete Clause Rule.

Clarifying Crypto: The Case for Restoring Due Process in Crypto Regulation

By Editor-in-Chief NYU Moot Court Board

On September 12, 2025

In Contributions

by Seung Hyun Shin*

The current legal framework governing digital assets, or cryptocurrency, is fractured and uncertain, infringing on due process rights by depriving industry participants of fair notice of when and whether federal securities law applies. Regulatory treatment can vary significantly depending on the features of the digital asset, the agency asserting jurisdiction, the judge presiding over the action, and the prevailing state of the crypto market. These inconsistencies, coupled with the Securities and Exchange Commission’s reliance on enforcement rather than rulemaking, have left cryptocurrency industry participants without clear guidance. Because the Securities Act of 1933 lacks explicit language addressing digital assets, Congress must intervene. By amending the Securities Act to clarify the classification and regulatory treatment of cryptocurrencies, Congress can restore due process rights and provide the interpretive clarity that courts and regulators alike have struggled to produce.

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

By Editor-in-Chief NYU Moot Court Board

On April 29, 2025

In Contributions

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.

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