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Full-Text Articles in Law

“Moral Conviction” Plus “Joint Sanctions”: The Judgment-Defaulter Blacklist System In China, Ding Chunyan Aug 2023

“Moral Conviction” Plus “Joint Sanctions”: The Judgment-Defaulter Blacklist System In China, Ding Chunyan

Brooklyn Journal of International Law

Although there has been literature generally discussing China’s social credit system, little research carefully examines the nature and logic of the judgment-defaulter blacklist system, from which the broader blacklist system under the social credit system originated. This article reveals that China’s judgment-defaulter blacklist system pragmatically utilizes a strategic combination of “moral conviction” and “joint sanctions” to remedy the failure of the judiciary to perform its duty of judgment enforcement and the ineffectiveness of the legal approaches to enhancing judgment enforcement. The judgment-defaulter blacklist system runs parallel to the existing legal system and will likely impose double punishment on discredited judgment …


Boeing, Boeing, Gone: General Jurisdiction Over Corporations, Principal Place Of Business, And A Second Look At The Total Activities Test, Robert Ellis Stengel Dec 2022

Boeing, Boeing, Gone: General Jurisdiction Over Corporations, Principal Place Of Business, And A Second Look At The Total Activities Test, Robert Ellis Stengel

Brooklyn Law Review

In 2011’s Goodyear Dunlop Tires Operations, S.A. v. Brown, the United States Supreme Court redefined the contours of corporate personal jurisdiction, radically curtailing the “doing business” jurisdiction that previously predominated. Since then, corporations are only subject to general jurisdiction where they are “fairly regarded as at home,” a domicile test effectively limited to two locations: (1) the state in which the corporation is incorporated and (2) the state in which the corporation has its “principal place of business.” However, the Supreme Court has never explicitly defined the term “principal place of business” for personal jurisdiction purposes. The Court has addressed …


Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams Jun 2022

Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams

Journal of Law and Policy

American veterans are often plagued by psychological and physical injuries, among other hardships, which, when unaddressed, can lead to substance abuse, criminal behavior, and suicide. As public awareness of the difficulties that American veterans face was growing, the problem-solving court movement was also gaining momentum. Largely inspired by therapeutic jurisprudence, an interdisciplinary framework that sees the law as a way to reach therapeutic outcomes, problem-solving courts seek to identify the root causes of criminal behavior and address those causes in ways that promote rehabilitation and reduce recidivism. Veterans Treatment Courts (“VTCs”) emerged when veterans advocacy intersected with the problem-solving court …


The Rules Of The Malpractice Game: Affidavit Of Merit Statutes, Erie, And The Cautionary Tale Of An Overbroad Application Of Rule 11, Deanna Arpi Youssoufian May 2022

The Rules Of The Malpractice Game: Affidavit Of Merit Statutes, Erie, And The Cautionary Tale Of An Overbroad Application Of Rule 11, Deanna Arpi Youssoufian

Brooklyn Law Review

In an effort to combat the rise in potentially frivolous lawsuits against professionals, including physicians, attorneys, and journalists, states have passed malpractice legislation requiring plaintiffs to file an affidavit of merit (AOM) attesting to the validity of their claims. However, these AOM statutes may conflict with Federal Rule of Civil Procedure 11, which provides that “a pleading need not be verified or accompanied by an affidavit” unless a rule or statute states otherwise. This is a classic Erie/choice-of-law problem for federal courts sitting in diversity, which are tasked with applying federal procedural law and state substantive law, and now must …


The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev Dec 2021

The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev

Journal of Law and Policy

In this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One …


The Debate Over Disclosure In Third-Party Litigation Finance: Balancing The Need For Transparency With Efficiency, Alec J. Manfre Sep 2021

The Debate Over Disclosure In Third-Party Litigation Finance: Balancing The Need For Transparency With Efficiency, Alec J. Manfre

Brooklyn Law Review

The market for third-party litigation financing (TPLF) in the United States is facing unprecedented growth and popularity. The ever-increasing complexity and cost of legal disputes, especially in the commercial context, has made third-party financing an invaluable resource for both litigants in need of capital and investors seeking to diversify their portfolios with nontraditional assets. However, as the market continues to boom, so does the risk that TPLF will be used unethically. Critics of the industry are calling on regulators at both the state and federal levels to implement comprehensive disclosure requirements for TPLF at the outset of all civil litigation …


“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias Jun 2021

“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

 Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.  The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.  With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.


Emergency Removals Without A Court Order: Using The Language Of Emergency To Duck Due Process, Jane Brennan Dec 2020

Emergency Removals Without A Court Order: Using The Language Of Emergency To Duck Due Process, Jane Brennan

Journal of Law and Policy

For a brief moment during the recent September democratic presidential debate, the ugly underbelly of the child welfare system unexpectedly took center stage. When asked about what responsibility Americans need to take to repair the legacy of slavery, the former vice president responded by propagating a myth that Black parents do not know how to parent. Former Vice President Joe Biden said “[w]e bring social workers into homes and parents to help them deal with how to raise their children. It’s not that they don’t want to help. They don’t—they don’t know quite what to do.” What exactly is it …


Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte Dec 2020

Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte

Journal of Law and Policy

Imagine you are a spouse and caregiver of a severely injured post-9/11 veteran. Your spouse served in the Marine Corps, with several deployments to Iraq. During their last deployment, your spouse sustained a severe traumatic brain injury and suffers from post-traumatic stress disorder. Due to these injuries, they need consistent care throughout the day. Thankfully, upon their return, the VA provided a caregiver program that allowed you to step away from your job and focus on caring for your spouse full time. As part of this program, you received a caregiver stipend of $2,400 per month, healthcare, and support from …


An Unbroken Thread: African American Exclusion From Jury Service, Past And Present, Alexis Hoag Oct 2020

An Unbroken Thread: African American Exclusion From Jury Service, Past And Present, Alexis Hoag

Faculty Scholarship

No abstract provided.


Virtual Pretrial Jurisdiction For Virtual Contacts, Max D. Lovrin Jun 2020

Virtual Pretrial Jurisdiction For Virtual Contacts, Max D. Lovrin

Brooklyn Law Review

Personal jurisdiction is a threshold requirement for any civil court’s constitutional exercise of adjudicative authority over a defendant, and one of civil procedure’s most fundamental concepts. The Supreme Court is acutely aware of difficulties facing personal jurisdiction doctrine in an evolving world and the need for jurisprudential solutions to those problems. But recent inconsistent trends in Supreme Court personal jurisdiction jurisprudence have served to further complicate the doctrine. Such overcomplication often leads to unpredictability, which both increases expenses for litigants and creates additional work for the already overburdened federal civil docket. This problem is exacerbated when litigation arises out of …


The Criminal, Regulatory, And Civil Issues Surrounding Intellectual Property And Cybersecurity, Ernest Edward Badway, Christie Mcguinness Jun 2020

The Criminal, Regulatory, And Civil Issues Surrounding Intellectual Property And Cybersecurity, Ernest Edward Badway, Christie Mcguinness

Brooklyn Journal of Corporate, Financial & Commercial Law

Cyber-attacks have affected all organizations and individual consumers. Dissemination of relevant information and attention to strong information security practices is an important tool in fighting this cyber “pandemic.” Additionally, the legal and regulatory liability companies face from cyber-attacks as well as general strategies and practical solutions companies may implement to protect against cyber-intrusions and respond effectively in the event of an attack are considered. There are many iterations of cyber-crime, and we address the various methods cybercriminals use and the many ways cyber-attacks can take place, as well as the entities and victims affected. Moreover, the legal liability and regulatory …


Putting The Notice Back Into Pleading, Robin Effron Feb 2020

Putting The Notice Back Into Pleading, Robin Effron

Faculty Scholarship

No abstract provided.


How Much Do Expert Opinions Matter? An Empirical Investigation Of Selection Bias, Adversarial Bias, And Judicial Deference In Chinese Medical, Chunyan Ding Dec 2019

How Much Do Expert Opinions Matter? An Empirical Investigation Of Selection Bias, Adversarial Bias, And Judicial Deference In Chinese Medical, Chunyan Ding

Brooklyn Journal of International Law

This article investigates the nature of the operation and the role of expert opinions in Chinese medical negligence litigation, drawing on content analysis of 3,619 medical negligence cases and an in-depth survey of judges with experience of adjudicating medical negligence cases. It offers three major findings: first, that both parties to medical negligence disputes show significant selection bias of medical opinions, as do courts when selecting court-appointed experts; second, expert opinions in medical negligence litigation demonstrate substantial adversarial bias; third, courts display very strong judicial deference to expert opinions in determining medical negligence liability. This article fills the methodological gap …


Between Scylla And Charybdis: Maritime Liens And The Bankruptcy Code, Ian T. Kitts Dec 2019

Between Scylla And Charybdis: Maritime Liens And The Bankruptcy Code, Ian T. Kitts

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal courts have had trouble fitting maritime law into the bankruptcy scheme created by the Bankruptcy Code (the Code). Particularly troublesome have been vessel-arrest proceedings that are underway when the vessel’s owner files for bankruptcy. Prior to the enactment of the Code, courts applied the doctrine of custodia legis to decide whether the admiralty or the bankruptcy court would administer the vessel. Since the Code was enacted, courts have generally held that the bankruptcy court gained control. A recent Ninth Circuit decision, however, split with other circuits and seems to have revived custodia legis. This Note argues that the Ninth …


Malice Maintenance Is “Runnin’ Wild”: A Demand For Disclosure Of Third-Party Litigation Funding, Anusheh Khoshsima Jun 2018

Malice Maintenance Is “Runnin’ Wild”: A Demand For Disclosure Of Third-Party Litigation Funding, Anusheh Khoshsima

Brooklyn Law Review

Third-party funding (TPLF) is when a nonparty, who does not have a direct stake in the litigation, funds a lawsuit. There are varying motivations that drive TPLF arrangements—including investors offering loans to receive a portion of the settlement or public interest groups sponsoring impact litigation. This note discusses a specific mode of TPLF that is motivated by a personal interest in the lawsuit rather than monetary gain, referred to as “malice maintenance.” At common law, maintenance was prohibited to prevent powerful and wealthy individuals form taking advantage of the court system. The majority of states today, however, permit at least …


Ousted: The New Dynamics Of Privatized Procedure And Judicial Discretion, Robin Effron Jan 2018

Ousted: The New Dynamics Of Privatized Procedure And Judicial Discretion, Robin Effron

Faculty Scholarship

No abstract provided.


Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger Dec 2017

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.


#Worstplaintiffever: Popular Public Shaming And Pseudonymous Plaintiffs, Jayne S. Ressler Jul 2017

#Worstplaintiffever: Popular Public Shaming And Pseudonymous Plaintiffs, Jayne S. Ressler

Faculty Scholarship

No abstract provided.


Ab(Ju)Dication: How Procedure Defeats Civil Liberties In The War On Terror, Susan Herman Jan 2017

Ab(Ju)Dication: How Procedure Defeats Civil Liberties In The War On Terror, Susan Herman

Faculty Scholarship

No abstract provided.


Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, Drita Dokic Jan 2017

Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, Drita Dokic

Brooklyn Journal of Corporate, Financial & Commercial Law

The Dodd-Frank Wall Street Reform and Consumer Protection Act created, among other things, the Financial Stability Oversight Council (FSOC), an entity within the U.S. Department of the Treasury tasked with assessing and mitigating financial risk. Financial institutions with over $50 billion in assets are automatically deemed “systemically important.” However, under the Dodd-Frank Act, FSOC has the authority to designate non-bank companies engaged in financial activity as systemically important as well. Once designated as a systemically important financial institution (SIFI), these companies are subject to enhanced regulation and supervision by the Federal Reserve. Because the costs associated with such enhanced regulation …


The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi Dec 2016

The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission (SEC) plays an extremely important role within the securities industry—it oversees the financial markets, protects consumers, and maintains market efficiency. One of the most important (and recently one of most criticized) responsibilities of the SEC is its duty to enforce the securities laws and punish violators. During the past two decades, and especially after the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, the SEC’s Division of Enforcement has grown substantially and has utilized administrative enforcement proceedings at an increasing rate. However; this utilization has been occurring without any substantial …


New Rules Of War In The Battle Of The Experts: Amending The Expert Witness Disqualification Test For Conflicts Of Interest, Nina A. Vershuta Jan 2016

New Rules Of War In The Battle Of The Experts: Amending The Expert Witness Disqualification Test For Conflicts Of Interest, Nina A. Vershuta

Brooklyn Law Review

In civil litigation, the big business of retaining experts has raised concerns about the integrity of the adversarial process and undermined the role that expert testimony plays at trial. Due to a rising demand for expert testimony, it is common for the same expert to testify for opposing clients. When a client hires an expert who has been previously retained by that client’s adversary, a conflict of interest arises. Such experts may share confidential information with their new client to the detriment of the former client—triggering the expert disqualification test for conflicts of interest. Most state and federal courts do …


Psychological Harm And Constitutional Standing, Rachel Bayefsky Jan 2016

Psychological Harm And Constitutional Standing, Rachel Bayefsky

Brooklyn Law Review

When do psychological or emotional harms count as “injury-in-fact” for the purposes of satisfying Article III standing requirements, and when should they? Courts have wrestled with whether to grant standing, for example, to family members of a man killed by the police who argued that as relatives of the deceased, they had suffered emotional pain; members of an animal-welfare organization who claimed they had undergone “sleeplessness, depression, and anger” when they were unable to visit an elephant at the zoo; and members of a Catholic organization who challenged a city resolution criticizing the Catholic Church’s stance on adoption by same-sex …


Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney Jan 2016

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …


Perfect Plaintiffs, Cynthia Godsoe Oct 2015

Perfect Plaintiffs, Cynthia Godsoe

Faculty Scholarship

No abstract provided.


Revisiting The Integration Of Law And Fact In Contemporary Federal Civil Litigation, Elizabeth M. Schneider Jul 2015

Revisiting The Integration Of Law And Fact In Contemporary Federal Civil Litigation, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.


Procedure As Substance, Elizabeth M. Schneider Jan 2015

Procedure As Substance, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.


From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga Jan 2015

From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga

Brooklyn Journal of International Law

Over the last seven decades, there has been a global proliferation of international and regional human rights tribunals. But with no coercive power to enforce their judgments, these international tribunals rely either on the good faith of the State parties or on the political process for the implementation of their remedial orders. This nonjudicial approach to enforcement has showed its limits, as most State parties are noncompliant with international judgments to the detriment of human rights victims. This article recommends a new approach involving the judicialization of the post-adjudicative stage of international proceedings as an avenue to increase the enforceability …


Atlantic Marine And The Future Of Forum Non Conveniens, Robin Effron Jan 2015

Atlantic Marine And The Future Of Forum Non Conveniens, Robin Effron

Faculty Scholarship

No abstract provided.