Law Commons^™

Personal Injury Victims As Insurance Collection Agents: Erisa Preemption Of State Antisubrogation Laws, Jonathan P. Connery

Journal of Law and Policy

The Employee Retirement Income Security Act (ERISA) was enacted in 1974 to protect the pension rights of employees nationwide. However, due to its broad preemptive powers, ERISA has since developed into a tool used by health insurers to recover millions of dollars in tort damages meant to benefit employees with ERISA health plans. This practice, known as subrogation, has been met with legislative backlash in the form of state antisubrogation statutes, which attempt to limit the enforceability of subrogation clauses found in almost all ERISA health plans. However, many courts have held that ERISA preempts these antisubrogation statutes, thereby affirming …

Judge Judith Kaye At Skadden, Arps, Barry H. Garfinkel

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Making Corporate Law More Communitarian: A Proposed Response To The Roberts Court's Personification Of Corporations, Robert M. Ackerman, Lance Cole

Brooklyn Law Review

Both Citizens United and Hobby Lobby are notable for the Roberts Court’s personification of the corporation. In Citizens United, the United States Supreme Court expanded corporate speech rights in a political context; in Hobby Lobby, it accorded religious rights to corporations in an unprecedented manner. This article explains how the Court’s expansion of corporate personification has ignored both traditional corporate law doctrine regarding shareholder primacy and the fundamental distinction in corporate law between the corporate entity and the shareholders who control it.

The article takes a communitarian approach to corporate law analysis, recognizing that corporations play useful roles …

The Need For An International Convention On Data Privacy: Taking A Cue From The Cisg, Morgan Corley

Brooklyn Journal of International Law

In light of the invalidation of the U.S.-EU Safe Harbor, along with the increase in sales of personal data as a commodity, data privacy has become a major concern amongst different nations. The lack of harmonization of data-privacy laws around the world continues to pose obstacles to the free flow of data across national borders. The free flow of data is, nonetheless, essential the international economy. As a result, nations continue to work together to try to create mechanisms by which data can be transferred across borders in a secure manner. This Note examines the current state of data-privacy law …

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 …

The Case For Lgbt Equality: Reviving The Political Process Doctrine And Repurposing The Dormant Commerce Clause, Terri R. Day, Danielle Weatherby

Brooklyn Law Review

As a reaction to the Supreme Court’s historic marriage equality decision earlier this summer, many Southern state legislators opposing the trend toward LGBT-protective laws have proposed legislation that would essentially prohibit municipalities from carving out new antidiscrimination protections for the LGBT community. Conservative Senator Bart Hester spearheaded the passing of one of these “anti” antidiscrimination laws in Arkansas, and states like Texas, West Virginia, Michigan, and Oklahoma are not far behind. These “Hester-type laws” are strikingly similar to the Colorado amendment struck down by the Romer v. Evans Court 20 years ago. Both the Colorado amendment and the new wave …

A Tribute To Chief Judge Judith S. Kaye, Hon. Janet Difiore

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Reflections On Opportunity In Life And Law, Judith S. Kaye

Brooklyn Law Review

This essay was written by Judge Kaye in the fall of 2015 for the Brooklyn Law Review. She reflects on her life, her time on the bench, and the significance of New York’s Constitutional Convention. Through the lens of dual constitutionalism and her own life story, Judge Kaye opines on the opportunities in life and law that are not to be missed.

Perpetual Twilight: How The Usda's Change To The Sunset Process Violates The Organic Foods Production Act Of 1990, Valentina Lumaj

Brooklyn Law Review

In 1990, Congress enacted the Organic Foods Production Act of 1990 (OFPA) in response to consumer and industry demands for uniform standards in organic production. The drafters recognized that the basic tenet of the legislation was that organic foods would be produced without the use of synthetic materials, but they left room for minimal exceptions in the National List of Allowed and Prohibited Substances (the National List). The National List enumerates the exemptions for synthetic substances, as well as prohibitions of natural substances, such as arsenic, in organic production. In September 2013, the USDA amended the Sunset Process, which is …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Journal of Law and Policy

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science, and commerce. These two cases exemplified the debate regarding domestic surrogacy—a debate that has now been raging for decades. A new ethical and legal debate …

Standing Up For Their Data: Recognizing The True Nature Of Injuries In Data Breach Claims To Afford Plaintiffs Article Iii Standing, Andrew Braunstein

Journal of Law and Policy

Over the last several years, data breaches have become increasingly more common, due in no small part to the failures of organizations charged with storing and protecting personal data. Consumers whose data has fallen victim to these breaches are more often turning to federal courts in attempts to be made whole from the loss of their information, whether simple credit card information or, as breaches become more sophisticated, social security information, medical and financial records, and more. These consumers are often being turned away from the courthouse, however, due to a failure of many federal courts to find that the …

Constitutions As Counter-Curses: Revenue Allocation And The Resource Curse, Tom Brower

Journal of Law and Policy

The resource curse—the paradoxical relationship between natural resource abundances and poorer economic growth, weaker political institutions, and higher levels of conflict—remains one of the most confounding issues in international development. Although the literature has proffered a plethora of institutional solutions to the resource curse, they have been vexed by a common theme: their unsuccessful implementation in developing countries without the proper institutional foundations that act as a bulwark against policy reversal and the perpetuation of rent-seeking behavior. This Article introduces constitutionally protected natural resource revenue allocation institutions as a superior mechanism for a state to allocate rents from natural resources. …

Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard

Journal of Law and Policy

The unpredictability of the Supreme Court’s dormant Commerce Clause (“DCC”) jurisprudence continues to draw trenchant criticism from commentators and the Justices themselves, as the Court remains unable to explain which state taxes and subsidies impede interstate commerce. We show that these problems can be resolved by a Commerce Neutrality framework requiring that state taxes and subsidies provide a combined treatment of inbound and outbound transactions at least as favorable as their treatment of intrastate transactions. This simple test has an economic foundation because taxes and subsidies that violate it create incentives to engage in intrastate rather than interstate transactions. The …

Trying To Fit A Square Peg Into A Round Hole: Why Title Ii Of The Americans With Disabilities Act Must Apply To All Law Enforcement Services, Michael Pecorini

Journal of Law and Policy

Police use of force has been subject to greater scrutiny in recent years in the wake of several high-profile killings of African Americans. Less attention, however, has been paid to the increasingly routine violent encounters between police and individuals with mental illness or intellectual and development disabilities (“I/DD”). This is particularly problematic, as police have become the de-facto first responders to these individuals and far too often police responses to these individuals result in tragedy.

This Note argues that the Americans with Disabilities Act requires law enforcement to provide reasonable accommodations during their interactions with and seizures of individuals with …

Not Yet Enough: Why New York's Sexual Assault Law Does Not Provide Enough Protection To Complainants Or Defendants, Nicolo Taormina

Journal of Law and Policy

Title IX requires colleges to investigate and adjudicate allegations of sexual assault between students. New York State has recently passed a new law called “Enough is Enough,” which strengthens Title IX’s requirements. However, neither Title IX nor “Enough is Enough” provides strict guidelines for the procedures colleges must use when adjudicating complaints. This means that colleges across New York employ different procedures and offer different sets of rights to their students. After examining federal and state law, some examples of college procedures and the effects they have on students, this Note concludes that “Enough is Enough” must be amended to …

Thailand's Ban On Commercial Surrogacy: Why Thailand Should Regulate, Not Attempt To Eradicate, Allison L. Zimmerman

Brooklyn Journal of International Law

International commercial surrogacy is when a person or couple from one country hires a surrogate in a different country. In recent years, this form of reproductive tourism has been a booming industry in Thailand due to the lack of meaningful regulation, relatively low cost, and unavailability in other countries. After a string of scandals involving Thai surrogacy arrangements arose, however, the Thai government enacted the Protection for Children Born Through Assisted Reproductive Technologies Act (the “ART Act”), prohibiting Thai commercial surrogacy from serving foreign clients, and only allowing Thai heterosexual couples to make use of surrogacy arrangements. As a result, …

Public Antitrust Enforcement Of Resale Price Maintenance In China: A Crusade Or Discrimination?, Jingmeng Cai

Brooklyn Journal of International Law

In recent years, a growing number of international observers and companies have expressed concerns that China may be using its new antitrust laws to discriminate against multinational companies. China’s antitrust decisionmakers, however, have taken pains to deny such criticisms. This article focuses on Resale Price Maintenance (RPM) to argue that these concerns are not always based in reality. After examining almost all of the decisions made public regarding RPM by the Chinese antitrust agency, the National Development and Reform Commission (NDRC), this article analyzes the following three factors that have shaped how the NDRC enforces antitrust laws in China. First, …

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 …

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Rizwaan J. Mokal

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Unilateral Non-Colonial Secession And The Criteria For Statehood In International Law, Glen Anderson

Brooklyn Journal of International Law

The following article examines the interactions between the right of peoples to unilateral non-colonial (“UNC”) secession and the criteria for statehood in international law. In this respect a three-point thesis is developed. First, it is argued that the law of self-determination has resulted in a less strict application of the criteria for statehood based on effectiveness, particularly the effective government criterion. This means that a state created by UNC secession pursuant to the law of self-determination will not have its statehood called into question if lacks an effective government. Second, it is argued that the declaratory approach to recognition is …

The Right To No: The Crime Of Marital Rape, Women's Human Rights, And International Law, Melanie Randall, Vasanthi Venkatesh

Brooklyn Journal of International Law

More than half of the world’s countries do not explicitly criminalize sexual assault in marriage. While sexual assault in general is criminalized in these countries, sexual assault perpetrated by a spouse is entirely legal. The human rights violations inhere in acts of violence against women are now well recognized. Yet somehow marital rape is a particular form of gendered violence that has escaped both criminal law sanctions and human rights approbation in a great number of the world’s nations.

This silence in the law creates legal impunity for men who sexually assault or rape the women who are their wives …

Reservations And The Cisg: The Borderland Of Uniform International Sales Law And Treaty Law After Thirty-Five Years, Ulrich G. Schroeter

Brooklyn Journal of International Law

No abstract provided.

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

Biosimilar Naming: A Call For Uniformity In A Complex Field, Jacqueline Genovese

Brooklyn Journal of International Law

Recombinant technology has opened a pathway for a means of producing a variety of therapeutic proteins and generating the growth of the biopharmaceutical industry. Further, due the patent expirations of a number of biologics in the coming years, there has been an increased interest in the development of generic biologics, also known as biosimilars, and a widespread push for biosimilar FDA approval in the United States. While the pressure for the expansion of biosimilar approval is warranted, the FDA must be cautious when implementing regulatory guidelines. Since biologics differ greatly from small-molecule drugs, biologics have a distinct approval process. The …

Retroactivity In The 1970 Unesco Convention: Cases Of The United States And Australia, Katarzyna Januszkiewicz

Brooklyn Journal of International Law

As the current trend of returning looted artifacts to their countries of origin continues to grow, the need for stricter law enforcement and a reevaluation of the 1970 UNESCO Convention and its application has become apparent. Recently, museums and national governments worldwide have engaged in a repatriation dialogue through mutual cooperation with foreign institutions, rather than international litigation, which is both a long and expensive process. This is a result of both a shifting public opinion towards museums, and the growing awareness of the countries of origin regarding the value of their looted cultural heritage. Looted artifacts continue to flood …

The Scottish Independence Referendum And The Principles Of Democratic Secession, Benjamin Levites

Brooklyn Journal of International Law

On September 18, 2014, Scottish voters decided whether to sever the 307 years of unity between Scotland and the United Kingdom in an independence referendum. While the voters ultimately rejected independence, the process by which the Scots accomplished this historic exercise will inform further democratic secession movements.

This Note examines the significant implications of Scotland’s independence referendum by assessing the history of independence referendums and the present scope of relevant international law. The formative history of the independence referendum and modern precedential examples established the requirements for democratic secession. In turn, the Scottish independence referendum, in the context of evolving …

Liberte, Egalite, Fraternite: The United Nations Declaration Of The Rights Of Indigenous Peoples Fails To Protect Hopi Katsinam From The Auction Block In France, Samantha K. Nikic

Brooklyn Journal of International Law

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) compels member states to take action in order to protect the rights of the world’s 370 million indigenous peoples, including the right to their cultural property. Notwithstanding the UNDRIP’s robust set of protections, its status as a nonbinding piece of international law remains its ultimate and most fatal flaw. France was an enthusiastic supporter of the UNDRIP at ratification, but has effectively abandoned their position. French auction houses and courts have allowed for sales of Native American sacred property to proceed despite the objections of the Hopi Tribe. In …