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Articles 1 - 30 of 76
Full-Text Articles in Law
The Inaugural Brooklyn Lecture On International Business Law: “Isds: The Wild, Wild West Of International Practice”, George Kahale Iii
The Inaugural Brooklyn Lecture On International Business Law: “Isds: The Wild, Wild West Of International Practice”, George Kahale Iii
Brooklyn Journal of International Law
The lecture was delivered on April 3, 2018 at Brooklyn Law School and was sponsored by the Dennis J. Block Center for the Study of International Business Law and the Brooklyn Journal of International Law.
Rethinking Isds, George Kahale Iii
Rethinking Isds, George Kahale Iii
Brooklyn Journal of International Law
The author is Chairman of Curtis, Mallet-Prevost, Colt & Mosle LLP and has acted as lead counsel for respondent states in many investor-state arbitrations, including several of the cases referred to herein. His article won the 2019 Burton Award for Distinguished Legal Writing.
Conflicts Of Interest And Law-Firm Structure, Cassandra Burke Robertson
Conflicts Of Interest And Law-Firm Structure, Cassandra Burke Robertson
St. Mary's Journal on Legal Malpractice & Ethics
Business and law are increasingly practiced on a transnational scale, and law firms are adopting new business structures in order to compete on this global playing field. Over the last decade, global law firms have merged into so-called “mega-brands” or “mega-firms”—that is, associations of national or regional law firms that join together under a single brand worldwide. For law firms, the most common mega-firm structure has been the Swiss verein, though the English “Company Limited by Guarantee” structure is growing in popularity as well, as is the similar “European Economic Interest Grouping.” All of these structures allow related entities to …
Legal Malpractice Claims: What The Data Indicate, Vincent R. Johnson
Legal Malpractice Claims: What The Data Indicate, Vincent R. Johnson
St. Mary's Journal on Legal Malpractice & Ethics
Abstract forthcoming
Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files
Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files
St. Mary's Journal on Legal Malpractice & Ethics
Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.
Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …
Ethical Cannabis Lawyering In California, Francis J. Mootz Iii
Ethical Cannabis Lawyering In California, Francis J. Mootz Iii
St. Mary's Journal on Legal Malpractice & Ethics
Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous …
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
St. Mary's Journal on Legal Malpractice & Ethics
The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …
Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner
Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner
Genocide Studies and Prevention: An International Journal
Henry Rousso warned that the engagement of historians as expert witnesses in trials, particularly highly politicized proceedings of mass crimes, risks a judicialization of history. This article tests Rousso’s argument through analysis of three quite different case studies: the Frankfurt Auschwitz trial; the Extraordinary Chambers in the Courts of Cambodia; and the International Crimes Tribunal in Bangladesh. It argues that Rousso’s objections misrepresent the Frankfurt Auschwitz trial, while failing to account for the engagement of historical expertise in mass atrocity trials beyond Europe. Paradoxically, Rousso’s criticisms are less suited to the European context that represents his purview, and apply more …
The Equifax Data Breach And The Resulting Legal Recourse, Caitlin Kenny
The Equifax Data Breach And The Resulting Legal Recourse, Caitlin Kenny
Brooklyn Journal of Corporate, Financial & Commercial Law
What happens when one’s sensitive information falls into the wrong hands? With the twenty-first century’s advancement of technology comes the increasing problem of data breaches wherein sensitive information is exposed. On September 7, 2017, Equifax, one of three major United States credit reporting agencies announced one of the largest data breaches in the history of the United States. The data breach affected approximately 145 million consumers and subsequently a wave of consumer class actions followed. This Note clarifies why class action lawsuits and arbitration are not viable legal remedies for massive data breaches where entities like credit reporting agencies are …
Recalibrating Cy Pres Settlements To Restore The Equilibrium, Michael J. Slobom
Recalibrating Cy Pres Settlements To Restore The Equilibrium, Michael J. Slobom
Dickinson Law Review (2017-Present)
Class action settlement funds become “non-distributable” when class members fail to claim their share of the settlement or the cost of distribution exceeds the value of individual claims. Before 1974, parties had two options for disposing of non-distributable funds: escheatment to the state or reversion to the defendant. Both options undermine unique objectives of the class action—namely, compensating small individual harms and deterring misconduct.
To balance the undermining effects of escheatment and reversion, courts incorporated the charitable trust doctrine of cy pres into the class action settlements context. Cy pres distributions direct non-distributable settlement funds to charities whose work aligns …
The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky
The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky
Dickinson Law Review (2017-Present)
The Federal Arbitration Act (FAA) enables parties to obtain quick and final resolution to disputes without incurring the costs, delays, and occasional publicity of litigation. Indeed, section 10 of the FAA enumerates four specific grounds on which courts may vacate arbitral awards: corruption, fraud, impartiality, and misconduct or incompetence. Yet over the past 60 years, a debate has raged over the existence of an additional ground: the arbitrator’s manifest disregard of the law.
The Supreme Court first enounced this standard in dicta in its 1953 decision in Wilko v. Swan. Over next four decades, every federal circuit court slowly …
Visibly (Un)Just: The Optics Of Grand Jury Secrecy And Police Violence, Nicole Smith Futrell
Visibly (Un)Just: The Optics Of Grand Jury Secrecy And Police Violence, Nicole Smith Futrell
Dickinson Law Review (2017-Present)
Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police …
Community Land Trusts: A Promising Alternative For Affordable Housing, Stacey Janeda Pastel
Community Land Trusts: A Promising Alternative For Affordable Housing, Stacey Janeda Pastel
Florida State University Journal of Land Use and Environmental Law
No abstract provided.
Can Equitable Estoppel "Do The Right Thing" In Sovereignty Land Disputes?, Ricardo Reyes
Can Equitable Estoppel "Do The Right Thing" In Sovereignty Land Disputes?, Ricardo Reyes
Florida State University Journal of Land Use and Environmental Law
No abstract provided.
Natural Resource Damages: Restitution As A Mechanism To Slow Destruction Of Florida's Natural Resources, James S. Matson, Ph.D., J. Allison Defoor, Ii
Natural Resource Damages: Restitution As A Mechanism To Slow Destruction Of Florida's Natural Resources, James S. Matson, Ph.D., J. Allison Defoor, Ii
Florida State University Journal of Land Use and Environmental Law
No abstract provided.
Health Care Referrals Out Of The Shadows: Recognizing The Looming Threat Of The Texas Patient Solicitation Act And Other Illegal Remuneration Statutes, Trenton Brown
St. Mary's Law Journal
Abstract forthcoming
Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby
Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby
The Scholar: St. Mary's Law Review on Race and Social Justice
On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.
There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply with 8 U.S.C. …
Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo
Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming
Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon
Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming
Too Little Too Late: The Infeasibility Of Osha's Silica Standards In The Oil Industry, Cali M. Franks
Too Little Too Late: The Infeasibility Of Osha's Silica Standards In The Oil Industry, Cali M. Franks
St. Mary's Law Journal
Abstract forthcoming
Holding Ridesharing Companies Accountable In Texas, Martha Alejandra Salas
Holding Ridesharing Companies Accountable In Texas, Martha Alejandra Salas
St. Mary's Law Journal
Abstract forthcoming
Avian Jurisprudence And The Protection Of Migratory Birds In North America, Marshall A. Bowen
Avian Jurisprudence And The Protection Of Migratory Birds In North America, Marshall A. Bowen
St. Mary's Law Journal
Abstract forthcoming
The Texas Standards For Appellate Conduct: An Annotated Guide And Commentary, Gina M. Benavides, Joshua J. Caldwell
The Texas Standards For Appellate Conduct: An Annotated Guide And Commentary, Gina M. Benavides, Joshua J. Caldwell
St. Mary's Journal on Legal Malpractice & Ethics
The legal profession is bound by ethical rules that govern and guide our conduct and actions as lawyers. One of the under-appreciated, but profoundly important set of guidelines is the Texas Standards for Appellate Conduct. These Standards serve as an excellent practice guide for appellate practitioners and appellate courts and as a model code of conduct for the Bar as a whole.
The goal of this Article is to dissect the Texas Standards for Appellate Conduct and provide useful commentaries for the readers to better appreciate and understand each element of the Standards. The commentaries provide direct case examples and …
Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson
Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson
St. Mary's Journal on Legal Malpractice & Ethics
A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty.
"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill
"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill
St. Mary's Journal on Legal Malpractice & Ethics
U.S. attorneys often hire consulting experts who potentially never get named as testifying experts. The same practice is evident in Australia, where the colloquial distinction is between a “clean” and a “dirty” expert, the latter being in the role of a consultant who is considered a member of the client’s “legal team.” A “clean” expert named as a witness is then called “independent,” signaling that he or she is not an advocate. In contrast to the U.S. discourse concerning consulting and testifying experts, focused on discovery issues, the conversation in Australia betrays immediate ethical concerns that both (i) explain why …
The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell
The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell
St. Mary's Journal on Legal Malpractice & Ethics
This Article addresses an issue courts across the country continue to struggle with: When are ethics rules appropriately considered enforceable substantive obligations, and when should they only be enforceable through the disciplinary process? The question is complicated by the ethics rules themselves. Paragraph 20 of the Scope section of the Model Rules of Professional Conduct includes seemingly contradictory guidance; it states the Rules are not to be used to establish civil liability, but also that they can be “some evidence” of a violation of a lawyer’s standard of care. Most states have adopted this paradoxal Paragraph 20 language. Consequently, courts …
Rape By Fraud: Eluding Washington Rape Statutes, Michael Mullen
Rape By Fraud: Eluding Washington Rape Statutes, Michael Mullen
Seattle University Law Review
Existing Washington law does not sufficiently safeguard its citizens from “rape by fraud,” an action whereby a person obtains sexual consent and has sexual intercourse of any type by fraud, deception, misrepresentation, or impersonation. Rape by fraud is a form of sexual predation not always prosecutable under existing Washington law. In recent years, twelve states have adopted expanded rape by fraud statutory provisions. Presently, Washington’s rape statutes lack the expansive rape by fraud statutory language adopted by these twelve states. A recent sexual scam in Seattle has revealed holes in Washington’s rape statutes. This Note examines the history of rape …
Freelance Isn’T Free: The High Cost Of New York City’S Freelance Isn’T Free Act On Hiring Parties, Caitlin M. Baranowski
Freelance Isn’T Free: The High Cost Of New York City’S Freelance Isn’T Free Act On Hiring Parties, Caitlin M. Baranowski
Brooklyn Journal of Corporate, Financial & Commercial Law
Recently, the New York City Council enacted the Freelance Isn’t Free Act (FIFA) to protect freelancers from non-payment. Among FIFA’s protections is the requirement that hiring parties provide a written contract to freelancers for any work exceeding $800 over a 120-day period. As the nation’s first legislation ensuring freelancers’ rights, FIFA marks a major turning point in the development of protections for the gig economy’s growing independent workforce. While its purpose is laudable and necessary, this Note argues that FIFA is currently too ambiguous. To resolve FIFA’s ambiguity, this Note recommends, at the very least, amending FIFA to include: 1) …
Investor-State Dispute Settlement: Is There A Better Alternative?, Emily Osmanski
Investor-State Dispute Settlement: Is There A Better Alternative?, Emily Osmanski
Brooklyn Journal of International Law
As the world has transitioned from national; isolated economies with localized issues into a globalized and interconnected economy with cross-border disputes; the law has struggled to keep up. Recent trade negotiations have highlighted the difficulty states face in promoting trade; while also creating a fair; accessible; and equitable forum for producers and consumers with nationalities touching every area of the globe. For several decades; Investor-State Dispute Settlement (ISDS) has been in place to address claims brought by foreign investors against the host states. External improvements have helped support foreign direct investment and the ISDS model of dispute resolution; such as …
Charting A New Course In Cuba? Why The Time Is Now To Settle Outstanding American Property Claims, Marco Antonio Dueñas
Charting A New Course In Cuba? Why The Time Is Now To Settle Outstanding American Property Claims, Marco Antonio Dueñas
Brooklyn Journal of International Law
The recent warming of relations between the United States and Cuba offered generations of Cubans; Americans; and Cuban Americans renewed hope for normalized relations. One obstacle—satisfactory resolution of property claims—stands in the way; which dates back to the Cuban government’s nationalization of all U.S. assets on the island. The Cuban Liberty and Democratic Solidarity Act of 1996 (the “Helms-Burton Act”) predicates resolution of these decades-old property claims by the Cuban government as an essential condition for the full resumption of economic and diplomatic relations between the two neighbors. Separated by only ninety miles of Caribbean Sea; but more than a …