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Full-Text Articles in Law

Artful Imbalance: How The Us Tax Code And State Trust Laws Enable The Growth Of Inequality Through High-Value Art Collections, Mimi Strauss Mar 2024

Artful Imbalance: How The Us Tax Code And State Trust Laws Enable The Growth Of Inequality Through High-Value Art Collections, Mimi Strauss

Brooklyn Law Review

The United States has become the leading jurisdiction for those who wish to buy and store high-value art and NFTs, pay as few taxes as possible, and ultimately secure their wealth for generations. This “onshore” tax crisis is the result of tax loopholes, money laundering, the securitization of art and NFTs, and the state-by-state trust system. These forms of tax dodging—both legal and illegal—contribute to wealth inequality and deplete the welfare state. As natural disasters and pandemics become ever more present, the United States will rely more heavily on taxes, and that burden should be carried by everyone, not just …

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Taking The Land Back: How To Return Stolen Land To The Indigenous People Of New York State Through Eminent Domain, Devin Nicole Barbaro Dec 2023

Taking The Land Back: How To Return Stolen Land To The Indigenous People Of New York State Through Eminent Domain, Devin Nicole Barbaro

Journal of Law and Policy

From the moment that European colonizers landed in North America hundreds of years ago, land rights have been stripped away from the Indigenous people of this land. Land Back is an activism and advocacy movement to regain land rights for the Tribal Nations across the United States. Returning stolen land to Tribal Nations is a form of reparations for the atrocities the United States has inflicted upon these Nations for hundreds of years. Additionally, land that is managed by Indigenous communities is proven to be more resilient against the detrimental effects of climate change, making the return of land to …

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Same Old Story, New Solution: Force Majeure Deficiencies In The Wake Of Covid-19 And An Unorthodox Approach To Drafting It, Steven H. Dovi May 2023

Same Old Story, New Solution: Force Majeure Deficiencies In The Wake Of Covid-19 And An Unorthodox Approach To Drafting It, Steven H. Dovi

Brooklyn Journal of Corporate, Financial & Commercial Law

On January 20, 2020, the Centers for Disease Control and Prevention reported the first laboratory-confirmed case of the 2019 Novel Coronavirus (COVID-19) on American soil.[1] On March 8, 2021—more than a year later—the United States District Court for the Southern District of New York decided Gap v. Ponte Gadea New York.[2] It ruled, inter alia, that the COVID-19 pandemic, in keeping with the relevant provision’s narrow tailoring, did not amount to a force majeure event and a defense to breach.[3] While seemingly one of the first decisions of its kind in the Southern District, this Note argues that the holding …

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The Development Of The American “Security Interest” And Its Effect On The International Harmonization Of Security Rights, Henry Gabriel Dec 2022

The Development Of The American “Security Interest” And Its Effect On The International Harmonization Of Security Rights, Henry Gabriel

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

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Mezzanine Real Estate Loan Foreclosures: What Is Commercially Reasonable During An Emergency?, Christopher J. Collins Jun 2022

Mezzanine Real Estate Loan Foreclosures: What Is Commercially Reasonable During An Emergency?, Christopher J. Collins

Brooklyn Journal of Corporate, Financial & Commercial Law

Owners of commercial real estate frequently use mezzanine debt as an additional source of financing. In contrast to mortgage loans, which are secured by real property, the collateral for mezzanine real estate loans is the mezzanine borrower’s ownership interest in the entity that owns the property. This ownership interest is considered personal property, and thus foreclosure and disposition of the collateral is governed by the Uniform Commercial Code, which requires foreclosure sales to be “commercially reasonable.” During COVID-19, mortgage loan foreclosures were stayed in New York pursuant to executive order. Despite the fact that, in a practical sense, mezzanine loan …

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The Coming Shift In Shareholder Activism: From “Firm-Specific” To “Systematic Risk” Proxy Campaigns (And How To Enable Them), John C. Coffee, Jr. Dec 2021

The Coming Shift In Shareholder Activism: From “Firm-Specific” To “Systematic Risk” Proxy Campaigns (And How To Enable Them), John C. Coffee, Jr.

Brooklyn Journal of Corporate, Financial & Commercial Law

This article distinguishes two types of shareholder activism: (1) firm-specific activism, which has a long history and focuses on changes at a specific target company, and (2) systematic risk activism, which seeks to reduce the systematic risk in a portfolio and thereby benefit diversified investors. Typically, such a systematic risk campaign may force a portfolio company to internalize negative externalities to benefit the other companies in the portfolio (such as by reducing carbon emissions or undertaking climate risk reforms). But, systematic risk activism faces an inherent difficulty: the party that leads this campaign and invests in the target company may …

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Mutual Fund Stewardship And The Empty Voting Problem, Jill E. Fisch Dec 2021

Mutual Fund Stewardship And The Empty Voting Problem, Jill E. Fisch

Brooklyn Journal of Corporate, Financial & Commercial Law

When Roberta Karmel wrote the articles that are the subject of this symposium, she was skeptical of the potential value of shareholder voting and the emerging involvement of institutional investors in corporate governance. In the ensuring years, both the increased role and engagement of institutional investors and the heightened importance of shareholder voting offer new reasons to take Professor Karmel’s concerns seriously. Institutional investors have taken on a broader range of issues from diversity and political spending to climate change and human capital management, and their ability to influence corporate policy on these issues has become more significant. The broadened …

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The Case For An International Solution To The Restitution Of Cultural Property: Morality, Legality And Righting Western Wrongs, Ariana Catarisano Dec 2021

The Case For An International Solution To The Restitution Of Cultural Property: Morality, Legality And Righting Western Wrongs, Ariana Catarisano

Brooklyn Journal of International Law

In 2020, the conversation surrounding the return of cultural property acquired during the colonial era was given new life after the world watched as Black Lives Matter activists exposed systemic racial injustice in the United States. Thousands of objects currently sit in western museums under the guise of sharing these cultures and civilizations with the world, but this brings little comfort to communities suffering the genocidal consequences of colonialism. As formerly colonized nations battle the western world for the return of their cultural property, success is often dictated by a combination of power, money, and the ability to turn the …

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Looking Forward: Professor Roberta Karmel’S Prescient Views On The Transformation Of Self-Regulatory Organizations And Of The Securities Market Structure At The Turn Of The Last Century, James A. Fanto Dec 2021

Looking Forward: Professor Roberta Karmel’S Prescient Views On The Transformation Of Self-Regulatory Organizations And Of The Securities Market Structure At The Turn Of The Last Century, James A. Fanto

Brooklyn Journal of Corporate, Financial & Commercial Law

This essay examines Professor Roberta Karmel’s scholarship on the transformation of self-regulatory organizations (SROs) and the securities market structure, a transformation that occurred at the turn of the last century. It explains how she examined the events from the perspective of a lawyer who had a rich knowledge of the history of the SROs, the securities markets, and their regulation and how she provided a practical understanding of the way these markets worked. It points out that, rather than offering an overarching theory that would explain all of these developments and that would guide regulators and legislators in SRO and …

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Not So Fair Use: The Shortcomings Of Current Copyright Law In Music Sampling, Marissa Brown May 2021

Not So Fair Use: The Shortcomings Of Current Copyright Law In Music Sampling, Marissa Brown

Brooklyn Journal of Corporate, Financial & Commercial Law

The current enforcement method of the fair use doctrine is not suitable to handle the ever-evolving music industry. The fair use doctrine allows a copyright protected work to be used without getting it approved by the original owner of the work. This is seen often in music sampling. Music sampling is extremely prevalent in today’s music industry; however, federal court is currently the only arena that sampling disputes can be resolved in. This has led to inconsistencies across circuits, unfairness, and exacerbated the backlog of the federal court docket. While many have pointed out both the inefficiency and unfairness of …

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Qualified Opportunity Funds: Private Equity Exemptions From Public Responsibility, Audrey E. Abate May 2021

Qualified Opportunity Funds: Private Equity Exemptions From Public Responsibility, Audrey E. Abate

Brooklyn Journal of Corporate, Financial & Commercial Law

The historic Tax Cuts and Jobs Act (TCJA), passed and signed into law in 2017, included a pilot program of a new kind of tax advantage: the Qualified Opportunity Zone. The obscure provision has since spawned novel investment vehicles, called Qualified Opportunity Funds, through which qualified individuals and entities participate in what are often significant tax advantages, including deferral of capital gains for up to ten years. Because Qualified Opportunity Funds have come into existence so recently, regulation has been slow to catch up to the ways in which this tax program is rapidly attracting capital from private equity, investment …

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Looking For A Silver Lining: How The Covid-19 Pandemic Forced New York To Reckon With Its Affordable Housing Crisis, Daniel Finnegan May 2021

Looking For A Silver Lining: How The Covid-19 Pandemic Forced New York To Reckon With Its Affordable Housing Crisis, Daniel Finnegan

Brooklyn Journal of Corporate, Financial & Commercial Law

Since the Great Depression, the United States government has failed to find an adequate remedy to a nationwide housing shortage amongst low- and moderate-income individuals and families. The COVID-19 public health crisis has exacerbated this ongoing, nation-wide housing crisis, and has highlighted the racial inequities present in our housing market. Furthermore, it has pushed New York State’s residential housing market into a uniquely precarious position. Dramatic legislation is required at the state level to address the housing crisis caused by the massive growth in income-insecure and housing-insecure individuals that resulted from the pandemic, as well as the widespread departure of …

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Libertad For All? Why The Helms-Burton Act Is An Empty Promise Of “Freedom” For The Cuban People., Cristina L. Lang Dec 2020

Libertad For All? Why The Helms-Burton Act Is An Empty Promise Of “Freedom” For The Cuban People., Cristina L. Lang

Brooklyn Law Review

After the Cuban Revolution, the Castro government nationalized the property of many American nationals, which served as a justification for the Kennedy administration’s decision to institute a general economic embargo on Cuba. This embargo was officially codified in the late 1990s in the Cuban Liberty and Democratic Solidarity (Libertad) Act, enacted by President Bill Clinton. Title III of this Act was suspended since its enactment. By creating a private cause of action for American nationals to sue “traffickers” of their improperly nationalized Cuban property, Title III aims to deter foreign investment into Cuba and compensate American citizens whose Cuban property …

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Wills Speak, Katheleen Guzman Jun 2020

Wills Speak, Katheleen Guzman

Brooklyn Law Review

Legal maxims calcify. It is often unclear whether a given saying – particularly a catchy one that seems to make perfect sense – was always and remains actual law, or whether at some point its iteration and confident reiteration alchemized a useful shortcut into something much more. Such is the case for the aphorism that “no will speaks until the death of its maker,” which is pervasive but incomplete. Wills speak upon execution all the time. They simply don’t speak as conveyance. Candidly recognizing the determinism of the maxim invites fresh inquiry over the nature of the expectancy. If wills …

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Inequality In The Sharing Economy, Gregory M. Stein Jun 2020

Inequality In The Sharing Economy, Gregory M. Stein

Brooklyn Law Review

The rise of the sharing economy benefits consumers and providers alike. Consumers can access a wider range of goods and services on an as-needed basis and no longer need to own a smaller number of costly assets that sit unused most of the time. Providers can engage in profitable short-term ventures, working on their own schedule and enjoying many new opportunities to supplement their income. Sharing economy platforms often employ dynamic pricing, which means that the price of a good or service varies in real time as supply and demand change. Under dynamic pricing, the price of a good or …

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Qap Out: Why The Federal Government Should Require More From How States Allocate Low-Income Housing Tax Credits, Connor Blancato May 2020

Qap Out: Why The Federal Government Should Require More From How States Allocate Low-Income Housing Tax Credits, Connor Blancato

Journal of Law and Policy

Prohibitively high land acquisition and construction costs block affordable housing developers from using the Low-Income Housing Tax Credit program in high opportunity areas. Policymakers must study the history of housing policy in the United States and realize that the LIHTC program works because it suitably balances previously problematic private-market competition, federalism concerns, and compliance issues. Federal lawmakers can look to Qualified Allocation Plans drafted by individual states as a way to encourage the construction of affordable housing without upsetting this equilibrium. To encourage such development, the federal government can require states, in determining tax credit allocations through QAPs, to give …

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Living Landmarks: Equipping Landmark Protection For Today’S Challenges, Kyle Campion May 2020

Living Landmarks: Equipping Landmark Protection For Today’S Challenges, Kyle Campion

Journal of Law and Policy

The past few decades have brought tremendous change to New York City as gentrification continues its march through many of the city’s neighborhoods. This change has transformed formerly neglected neighborhoods into highly desired locations. While these changes have introduced potential benefits to the transformed areas, they have also put immense economic pressure on important local establishments, such as diners, bars, and other informal gathering spaces that played an important role in their communities before the neighborhoods became “hot.” Increasingly, this pressure has resulted in the shuttering of many such local establishments. Their disappearance represents not only a loss of an …

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Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Marriage Bans, Suzianne D. Painter-Thorne Apr 2020

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Marriage Bans, Suzianne D. Painter-Thorne

Brooklyn Law Review

While marriage equality is thought to be the law of the land, that is not necessarily true for members of nearly a dozen Indian tribes that continue to prohibit same-sex marriage. Whether a tribe permits same-sex marriage rests on the tribes’ inherent authority to govern their own internal affairs. Acting pursuant to that inherent authority, many tribes were leaders on the issue of marriage equality, legalizing same-sex marriage when most states prohibited such marriages. Other tribes, however, like the Navajo Nation, limit marriages to “one man and one woman.” As a consequence, a married Indian couple may have their marriage …

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“Fair Enough”? Revising The Yellowstone Injunction To Fit New York’S Commercial Leasing Landscape And Promote Judicial Economy, Gabriel W. Block Dec 2019

“Fair Enough”? Revising The Yellowstone Injunction To Fit New York’S Commercial Leasing Landscape And Promote Judicial Economy, Gabriel W. Block

Brooklyn Journal of Corporate, Financial & Commercial Law

The Yellowstone injunction is an equitable remedy that tolls any applicable cure period and gives tenants a better opportunity to maintain their leasehold when they have defaulted under their lease. The remedy is available to commercial tenants in New York City and to commercial and residential tenants throughout the State. This Note examines the Yellowstone injunction in the context of New York City’s commercial tenants, who employ it most frequently and benefit most from its protections. This Note examines the development and application of the Yellowstone injunction and proposes changing the doctrine to exclude cases of monetary defaults and expired …

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Discounts For Fractional Ownership Of Real Property Are Accepted, So Why Haven’T The Irs And Courts Accepted Discounts For Fractional Ownership Of Artwork?, Maren N. Eisenmesser Dec 2019

Discounts For Fractional Ownership Of Real Property Are Accepted, So Why Haven’T The Irs And Courts Accepted Discounts For Fractional Ownership Of Artwork?, Maren N. Eisenmesser

Brooklyn Journal of Corporate, Financial & Commercial Law

In 2014, the Fifth Circuit held that Mr. Elkins’s estate was entitled to apply a fractional ownership discount to determine the taxable value of the undivided interest in artwork. The estate received a $14 million refund plus interest. The Internal Revenue Code directs taxpayers to value the items in a gross estate at their fair market value. Fractional ownership adds another problem in the valuation of an estate’s interest property. In general, courts have accepted fractional ownership discounts for real property. In contrast, courts have been reluctant to apply a fractional ownership discount for artwork. This Note will argue that …

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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 …

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Shoring Up The Hear Act: Proposed Amendments To Federal Legislation Designed To Assist Heirs And Claimants Of Nazi-Looted Art, Alexander Hull Dec 2019

Shoring Up The Hear Act: Proposed Amendments To Federal Legislation Designed To Assist Heirs And Claimants Of Nazi-Looted Art, Alexander Hull

Journal of Law and Policy

From 1933 to 1945, Nazi German forces executed a mass campaign of property confiscation, stealing as many as 600,000 pieces of art, including paintings, tapestries and sculptures from museums and private collections across Europe. It is estimated that some 300,000 pieces of art are still missing or are currently in the possession of someone other than the so-called “true” owner, based on reviews of Nazi documentation conducted by the Jewish Restitution Organization. While Nazi art looting has been regarded as “dehumanizing,” “self-advancing” and concomitant with the Nazi regime’s larger genocidal crusade, restitution in this context has been framed as a …

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A Third Way Of Thinking About Cultural Property, Lucas Lixinski Jul 2019

A Third Way Of Thinking About Cultural Property, Lucas Lixinski

Brooklyn Journal of International Law

The article argues that the dichotomy between nationalism and internationalism with respect to cultural property, while formative, has outlived its utility, and in many respects compromised the viability of the public good it aims to safeguard. Focused on the example of cultural property in international law, this article argues for more community-centric forms of governance, beyond the interests of states and an undefined “international.” It extrapolates the lessons from cultural property to other forms of resource governance in international law.

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“Why Did Constantinople Get The Works? That’S Nobody’S Business But The Turks.” A New Approach To Cultural Property Claims And Geographic Renaming Under The 1970 Unesco Convention, Kasey Theresa Mahoney Jul 2019

“Why Did Constantinople Get The Works? That’S Nobody’S Business But The Turks.” A New Approach To Cultural Property Claims And Geographic Renaming Under The 1970 Unesco Convention, Kasey Theresa Mahoney

Brooklyn Journal of International Law

The landscape of cultural property and cultural heritage discourse is continually evolving, and the traditional means of regulating disputes must not only be adapted to the current climate but proactively address foreseeable future concerns. This Note explores the Republic of Turkey’s increasing litigiousness with regard to its reparation claims and, further, considers the notion of culture as geographic boundaries transform over the course of time. This Note will analyze the leading international cultural property treaty, the 1970 UNESCO Convention, and recommend UNESCO adopt two mandates to curb the chilling effect current litigation has had on the preservation and dissemination of …

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Things Fall Apart (Next Door): Discriminatory Maintenance And Decreased Home Values As The Next Fair Housing Battleground, Michelle Y. Ewert Jun 2019

Things Fall Apart (Next Door): Discriminatory Maintenance And Decreased Home Values As The Next Fair Housing Battleground, Michelle Y. Ewert

Brooklyn Law Review

Banks that once preyed on communities of color through predatory lending now drive property values down by failing to adequately maintain foreclosed properties they own in those neighborhoods. Declining home values are especially destructive in communities of color because the family home is often a household’s most significant asset and, thus, the key to accumulating wealth and creating opportunity. This article argues that neighboring homeowners whose property values have declined as a result of banks’ discriminatory maintenance of foreclosed properties have standing to sue those banks under the Fair Housing Act (FHA). This article explores historic barriers to homeownership in …

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Dismantling Mid-Century Urban Renewal: A Community-Based Approach For The Future Of New York City, Alia Soomro May 2019

Dismantling Mid-Century Urban Renewal: A Community-Based Approach For The Future Of New York City, Alia Soomro

Brooklyn Law Review

Despite more than half a century since urban renewal programs were first established throughout the United States, these urban development programs are still negatively associated with the destruction of communities, displacement, and poor urban planning practices. While many jurisdictions continue to utilize state urban renewal legislation, few of these jurisdictions have actually addressed the future of urban renewal programs. This note focuses on urban renewal in New York City, where many of these plans are about to expire, and asks whether urban renewal programs—with its infamous history—can be utilized in an equitable and sustainable way. Analyzing Local Law No. 40 …

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Domestic Asset Protection Trusts: A Debtor's Friend And Creditor's Foe, Nora Hood May 2019

Domestic Asset Protection Trusts: A Debtor's Friend And Creditor's Foe, Nora Hood

Brooklyn Journal of Corporate, Financial & Commercial Law

In 1997, Alaska enacted the first law in the United States legalizing Domestic Asset Protection Trusts (DAPTs), also referred to as self-settled asset protection trusts, as valid legal entities. Under traditional trust law, a debtor cannot shield assets from creditors by placing them in a trust for his or her own benefit. Alaska’s statute allowing DAPTs calls the traditional rule into question. This Note will examine use of DAPTs in the United States, including whether or not the recently amended Uniform Voidable Transaction Act would consider any transfer to a DAPT voidable per se, and discuss an approach that intends …

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Better Left Forgotten: An Argument Against Treating Some Social Media And Digital Assets As Inheritance In An Era Of Platform Power, Shelly Kreiczer-Levy, Ronit Donyets-Kedar May 2019

Better Left Forgotten: An Argument Against Treating Some Social Media And Digital Assets As Inheritance In An Era Of Platform Power, Shelly Kreiczer-Levy, Ronit Donyets-Kedar

Brooklyn Law Review

Restraining technological platforms’ power has become one of the main concerns of our era. The control over cyberspace and data ownership are among the key issues addressed in the literature. Yet, the ongoing vigorous debate surrounding the inheritance of digital assets remains surprisingly oblivious of the platform’s involvement in shaping memory and continuity. Current legal scholarship and legislation ask whether social network profiles are inheritable property; they balance the user’s privacy and wishes against family members’ interests, without addressing or even considering the corporate power at play. This article argues that we are constantly asking the wrong questions. Instead of …

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Air Banned And Barred: Why New York City's Affordable Housing Crisis Has No Room For Short-Term Rentals, Wilson Chow May 2019

Air Banned And Barred: Why New York City's Affordable Housing Crisis Has No Room For Short-Term Rentals, Wilson Chow

Brooklyn Journal of Corporate, Financial & Commercial Law

In August 2018, New York City passed a law that required short-term rental websites to disclose information about their users who host in the city. Airbnb, the largest short-term rental company, filed suit with hopes of having short-term rentals legalized. The law stems from the city’s efforts to amelioerate its affordable housing crisis. With over 8.5 million residents living in a tight housing market, New York City should not allow home owners or rental tenants to commercialize their property into de facto hotels that will likely provide accommodations to tourists. This Note will examine the recent law’s impact on New …

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A Wall Of Hate: Eminent Domain And Interest-Convergence, Philip Lee Jan 2019

A Wall Of Hate: Eminent Domain And Interest-Convergence, Philip Lee

Brooklyn Law Review

Through the power of eminent domain, President Donald Trump is seeking to take properties owned by private landowners and Native American tribes, including people’s homes and businesses, to build a continuous physical wall along the two thousand-mile border between the United States and Mexico. He has even partially shut down the government for the longest period in history in order to pressure Congress to fund his wall. Substantial evidence suggests that this massive government condemnation scheme will not effectuate Trump’s primary purpose: to stop illegal immigration. If Trump succeeds, then potentially thousands of people from all racial backgrounds will lose …

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