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2019

Brooklyn Law School

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Full-Text Articles in Law

Symposium Introduction, William D. Araiza, Joel M. Gora Dec 2019

Symposium Introduction, William D. Araiza, Joel M. Gora

Brooklyn Law Review

On April 12, 2019, scholars gathered at Brooklyn Law School to consider the past, the present, and the future of free speech, and concerns about incitement that militate toward suppression. The speakers provided incisive and timely insight on these important matters—insight that is reflected in the papers published in this symposium issue of the Brooklyn Law Review. This introduction provides an overview of this symposium issue and the questions presented by each article.

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In Defense Of Brandenburg: The Aclu And Incitement Doctrine In 1919, 1969, And 2019, Emerson J. Sykes Dec 2019

In Defense Of Brandenburg: The Aclu And Incitement Doctrine In 1919, 1969, And 2019, Emerson J. Sykes

Brooklyn Law Review

In the United States, full-throated advocacy—even advocacy of violence—is protected by the First Amendment of the Constitution. Few other countries define “incitement to violence” as narrowly, and governments tend to exploit any authority to regulate speech. The ACLU has played a central role in developing America’s speech-protective modern incitement doctrine over the last century, sometimes by representing clients with abhorrent views, including in the landmark Brandenburg v. Ohio. The Brandenburg test sets a high bar for incitement that should be maintained, even with respect to online speech. Calls for increased regulation of speech should not be heeded.

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Assumptions About “Terrorism” And The Brandenburg Incitement Test, Christina E. Wells Dec 2019

Assumptions About “Terrorism” And The Brandenburg Incitement Test, Christina E. Wells

Brooklyn Law Review

The incitement standard announced in Brandenburg v. Ohio, which bars government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity, is one of the most speech-protective tests in the Supreme Court’s jurisprudence. However, terrorist advocacy – glorification of violence, spreading of propaganda, and recruitment of individuals to their cause – is putting pressure on the Brandenburg standard. Scholars have suggested working around Brandenburg’s incitement standard to counter the dangerous influence of terrorist advocacy, especially online advocacy. Although scholars’ concern with the harms of terrorism is understandable, their willingness to alter Brandenburg …

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23andeveryone: Privacy Concerns With Law Enforcement’S Use Of Genealogy Databases To Implicate Relatives In Criminal Investigations, Shanni Davidowitz Dec 2019

23andeveryone: Privacy Concerns With Law Enforcement’S Use Of Genealogy Databases To Implicate Relatives In Criminal Investigations, Shanni Davidowitz

Brooklyn Law Review

The discovery of DNA typing in the 1980s transformed law enforcement’s ability to exonerate innocent suspects, while implicating those who are guilty, with “the power of a silent biological witness at the crime scene.” This transformation, coupled with the new trend of law enforcement’s use of genealogy databases, has created legal issues that police officers, prosecutors, genealogy companies, and policy makers are all currently trying to navigate. The technological advancement comes with serious ethical and privacy concerns, including fear of the establishment of a “genetic panopticon.” General concern exists that if a “genetic panopticon” comes to fruition, the government can …

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Where Are You, Congress?: Silence Rings In Congress As Juvenile Offenders Remain In Prison For Life, Megan R. Pollastro Dec 2019

Where Are You, Congress?: Silence Rings In Congress As Juvenile Offenders Remain In Prison For Life, Megan R. Pollastro

Brooklyn Law Review

Over the last decade, Supreme Court precedent has changed the way courts have sentenced juveniles in the United States. It has failed, however, to clearly establish the proper handling of cases in which juveniles are sentenced to extended periods of time in prison that equate to a de facto sentence of life in prison without parole. Congress has also remained noticeably silent on the issue. Children are not considered mature enough to vote, to drink alcohol, to serve on a jury, and yet, courts treat juvenile offenders as mature enough to pay for their crimes for the remainder of their …

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Of Sustainable Development In Africa: Addressing The (In)Congruence Of Plastic Bag Regulations With International Trade Rules, Regis Y, Simo Dec 2019

Of Sustainable Development In Africa: Addressing The (In)Congruence Of Plastic Bag Regulations With International Trade Rules, Regis Y, Simo

Brooklyn Journal of International Law

Several aspects of the trade policies of African countries suffer from neglect in the legal literature. When they are the object of research, the focus is sometimes limited to their participation in the dispute settlement system or on the enforceability of special and differential treatment provisions. While practice displays that African countries have almost never been the target of complaints for a number a reasons, those approaches do not always take into consideration African countries’ domestic measures affecting the flow of goods and services, which could eventually trigger disputes. This paper intends to fill that gap and add to the …

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Global Implementation Of Soda Taxes: Is There A Better Solution For Combatting Obesity?, Lauren Cedeno Dec 2019

Global Implementation Of Soda Taxes: Is There A Better Solution For Combatting Obesity?, Lauren Cedeno

Brooklyn Journal of International Law

As incidences of overweight and obese populations continue to increase around the world, countries are looking for ways to decrease the prevalence of this epidemic. Soda and SSB taxes have increased in prevalence as countries seek to address the health problems associated with consumption of soda and other sugary beverages. This Note explores the implementation of these taxes in Mexico, Europe, and the United States. In analyzing these taxes, this Note seeks to gain a greater understanding of whether these taxes have impacted overweight and obesity rates in the countries and municipalities that have enacted them. This Note argues that …

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Reducing The Governance Gap For Corporate Complicity In International Crimes, Seunghyun Nam Dec 2019

Reducing The Governance Gap For Corporate Complicity In International Crimes, Seunghyun Nam

Brooklyn Journal of International Law

With increasing reports of corporations involved in serious human rights abuses that amount to international crimes, there are greater calls for states to hold these corporations accountable. Still, many obstacles and challenges remain when it comes to holding corporations accountable. Complex corporate structures, the extraterritorial dimension of the abuses, competition among states and businesses, lack of institutional capacity on the part of states, and lack of legal coordination among states collectively create an impunity gap. The case studies of the situation in Burma and the Democratic Republic of Congo involving foreign companies aim to illustrate this governance gap. With growing …

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Chipping Away At Compliance: How Compliance Programs Lose Legitimacy And Its Impact On Unethical Behavior, David Hess Dec 2019

Chipping Away At Compliance: How Compliance Programs Lose Legitimacy And Its Impact On Unethical Behavior, David Hess

Brooklyn Journal of Corporate, Financial & Commercial Law

Employee perceptions of an organization’s compliance program are critical. A program that has lost legitimacy with its employees is not just ineffective, but it creates more harm than good by leading to more unethical behavior. This Article identifies ways in which compliance programs can start to lose legitimacy, explains how that lost legitimacy leads to increased wrongdoing, and then concludes by setting out some basic reforms focused on helping stop this downward spiral and protecting the legitimacy of the compliance function.

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The Oecd Multilateral Tax Instrument: A Model For Reforming The International Investment Regime?, Wolfgang Alschner Dec 2019

The Oecd Multilateral Tax Instrument: A Model For Reforming The International Investment Regime?, Wolfgang Alschner

Brooklyn Journal of International Law

The international tax and investment regimes display striking similarities. They are both based on thousands of bilateral treaties that follow similar principles but differ in fine print. They each facilitate the free flow of international capital by respectively disciplining fiscal and regulatory host state conduct. Finally, they share common historical foundations and have experienced similar periods of rapid diffusion and deep contestation. Yet, while the international tax regime recently accomplished a sweeping reform to solve a decades-old legitimacy crisis, the investment regime is still grappling with its own legitimacy crisis and reform. In 2018, the multilateral tax instrument (MLI) entered …

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Coming To Terms With Wartime Collaboration: Post-Conflict Processes & Legal Challenges, Shane Darcy Dec 2019

Coming To Terms With Wartime Collaboration: Post-Conflict Processes & Legal Challenges, Shane Darcy

Brooklyn Journal of International Law

The phenomenon of collaboration during wartime is as old as war itself. During situations of armed conflict, civilians or combatants belonging to one party to the conflict frequently provide assistance to the opposing side in various ways, such as by disclosing valuable information, defecting and fighting for the enemy, engaging in propaganda, or providing administrative support to an occupying power. Such acts of collaboration have been punished harshly, with violent retribution often directed at alleged collaborators during armed conflict, while states and at times non-state actors have prosecuted and punished collaboration as treason or related offenses in times of war. …

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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 …

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Kicking The Law: The Effects Of Fifa Regulations On A World Cup Host Country’S Legislative Process In Regards To Intellectual Property Protection, Nicole-Amanda Brandofino Dec 2019

Kicking The Law: The Effects Of Fifa Regulations On A World Cup Host Country’S Legislative Process In Regards To Intellectual Property Protection, Nicole-Amanda Brandofino

Brooklyn Journal of International Law

Brand protection is highly sought after by large organizations that seek to monetize valuable intellectual property. At the international level, treaties such as the TRIPS Agreement allow for protection amongst signatory nations. As a leader in the international sports field, FIFA has capitalized on its well-known brand throughout the world through the selling of merchandise and licensing to influential third parties. With the occurrence of the World Cup every four years, FIFA strives to uphold the high revenue it earns through its wide intellectual property portfolio. As the World Cup host country prepares for the tournament, it must abide by …

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Sovereign Immunity For Russia's Rocket Engines? Enforcing The "Yukos" Award, Evan Drake Dec 2019

Sovereign Immunity For Russia's Rocket Engines? Enforcing The "Yukos" Award, Evan Drake

Brooklyn Journal of International Law

In 2003 Yukos Oil Company was once the largest oil company in Russia, and its oligarch CEO was Russia’s richest man. By 2007 Yukos had been dissolved, its CEO arrested, and its assets acquired by Russian state oil giants Rosneft and Gazprom. The fall of Yukos triggered what may be the largest arbitral dispute of all time. In 2014, the former shareholders of Yukos successfully won a $50 billion award against Russia for violations of the Energy Charter Treaty – by far the largest in history. Now the shareholders need to collect. This Note examines how Yukos could enforce its …

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The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger Dec 2019

The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger

Brooklyn Journal of International Law

Germany has the strictest genetic engineering laws in the world and bans virtually all kinds of embryonic gene editing. Since the invention of CRISPR, however, embryonic gene editing is more precise, and the possibilities of curing genetic diseases are more real than ever. This Note will argue for the right to embryonic gene editing through an analysis of German constitutional privacy and right to life jurisprudence. Ultimately, this Note argues for a right to procreate under German law that is backed by the state’s affirmative duty to encourage and protect life. When the technology is available, German Law should not …

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Third-Party Funding: The Road To Compatibility In International Arbitration, Vienna Messina Dec 2019

Third-Party Funding: The Road To Compatibility In International Arbitration, Vienna Messina

Brooklyn Journal of International Law

Third-party funding in global commerce and dispute resolution has gained considerable traction in the last few decades. The rise in complex international arbitration cases has encouraged a demand for third-party funding arrangements since the disputes involve large amounts of money in addition to high legal costs. This Note explores the implications of third-party funding on the practice of international arbitration, particularly with the expansion of arbitral institutions’ doctrinal rules to address the use of third-party funding. Much of the pre-existing research and literature highlights the issues that third-party funding poses in international arbitration proceedings, but fails to consider a broader, …

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Looking To The United Kingdom To Overhaul New York State’S Paid Family Leave Law And Close The Global Gender Gap, John Pietruszka Dec 2019

Looking To The United Kingdom To Overhaul New York State’S Paid Family Leave Law And Close The Global Gender Gap, John Pietruszka

Brooklyn Journal of International Law

The World Economic Forum estimates that mitigating gender-based disparities in the area of economic participation could lead to substantial economic benefits for the global economy. However, the international system of sovereign states requires this effort be piecemeal, as each state must set priorities to achieve greater gender parity within its own economic, political, and cultural contexts. The United States, by virtue of being the largest economy in the world by nominal GDP, undoubtedly has one of the largest roles to play in the effort to mitigate this global problem. Nonetheless, it lags behind other nation-states in several key areas that …

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The First Amendment And The Imminence Of Harm, Floyd Abrams Dec 2019

The First Amendment And The Imminence Of Harm, Floyd Abrams

Brooklyn Law Review

Noted First Amendment litigator Floyd Abrams engages questions about the past, the present and the future of free speech directly by considering the key words from Justice Holmes’s canonical formulation for the constitutional standard governing regulation of incitement speech—the requirement that any danger justifying such speech regulation must be “clear and present.” Mr. Abrams asks what types of “danger” are sufficiently “present” to provide that justification, using as examples the Communist teachings at issue in Dennis v. United States and The Progressive magazine’s publication of plans for constructing a hydrogen bomb. While Mr. Abrams reaches no hard and fast conclusion …

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Words We Fear: Burning Tweets & The Politics Of Incitement, Rachel E. Vanlandingham Dec 2019

Words We Fear: Burning Tweets & The Politics Of Incitement, Rachel E. Vanlandingham

Brooklyn Law Review

The United States government has long wrestled with the link between speech and violence, periodically employing speculative claims of potential violence and law-breaking to suppress political speech in times of national insecurity. By the late 1960s, however, the Supreme Court fully operationalized the First Amendment’s premise that most government speech suppression is antithetical to self-government, individual autonomy, equality, and liberty. The Court therefore, required immediacy of potential violence before the government could punish speech advocating such illegality, but left private actors free to censor and suppress speech. Today, social media companies, at the behest of the government, are doing what …

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Brandenburg And Terrorism In The Digital Age, David S. Han Dec 2019

Brandenburg And Terrorism In The Digital Age, David S. Han

Brooklyn Law Review

This essay explores the tension between the longstanding Brandenburg standard and the current technological context—one in which abstract advocacy of terrorist conduct, widely and cheaply disseminated through the internet and channeled through social media, has contributed to a number of devastating attacks such as the Orlando nightclub shooting, the Boston marathon bombings, and the shootings in San Bernardino. It does so through the lens of the Supreme Court’s recent decision in Carpenter v. United States—a Fourth Amendment case that similarly dealt with the collision between the longstanding constitutional righThis essay explores the tension between the longstanding Brandenburg standard and the …

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"Incitement Lite" For The Nonpublic Forum, Leslie Gielow Jacobs Dec 2019

"Incitement Lite" For The Nonpublic Forum, Leslie Gielow Jacobs

Brooklyn Law Review

The incitement exception set out in Brandenburg v. Ohio defines the authority of the government, acting in its sovereign capacity, to impose criminal punishment on speakers because the content of their advocacy may persuade listeners to commit crimes. Nonpublic forum managers have much greater flexibility than the government-as-sovereign to restrict the private speakers they invite onto their property because the content of their speech may persuade listeners to engage in harmful conduct. In nonpublic forum management, speakers experience no sanctions and, unlike the government-as-sovereign, nonpublic forum managers may close their forums to all private speakers to avoid unwanted speech. This …

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#Losingthethread: Recognizing Assembly Rights In The New Public Forum, Liz Grefrath Dec 2019

#Losingthethread: Recognizing Assembly Rights In The New Public Forum, Liz Grefrath

Brooklyn Law Review

The specter of banishment from the vibrant public forum of social media to the empty streets and deserted sidewalks is a matter of increasing political, social, and cultural importance. Today, nearly every government official maintains a social media presence on Facebook or Twitter, generally to promote initiatives, share ideological positions, engage constituents, and tangle with critics. Privacy controls and content moderation tools, however, offer government officials tantalizing opportunities to discretely and effectively muffle disapproval, stifle dissent, and shield themselves from criticism on their public social media pages through “blocking” features. Courts are just starting to grapple with the First Amendment …

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“Hey Alexa, Do Consumers Really Want More Data Privacy?”: An Analysis Of The Negative Effects Of The General Data Protection Regulation, Katherine M. Wilcox Dec 2019

“Hey Alexa, Do Consumers Really Want More Data Privacy?”: An Analysis Of The Negative Effects Of The General Data Protection Regulation, Katherine M. Wilcox

Brooklyn Law Review

Recent news articles discuss the flooding of email inboxes with lengthy terms and condition updates, viral videos of Mark Zuckerberg’s public Cambridge Analytica hearing before Congress, and the phenomenon of internet advertisements appearing for items that consumers merely searched for on Google a day prior. Effective as of May 25, 2018, the European Union’s General Data Protection Regulation (GDPR) established a framework that sets legal standards targeted at businesses and other data collectors to dramatically increase data privacy protections for citizens of the EU. Consumers, however, do not seem to appreciate these increased protections, as they rarely read the updated …

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Compliance Officers: Personal Liability, Protections, And Posture, Jennifer M. Pacella Dec 2019

Compliance Officers: Personal Liability, Protections, And Posture, Jennifer M. Pacella

Brooklyn Journal of Corporate, Financial & Commercial Law

This Symposium Article will explore the evolving nature of the regulatory and enforcement landscape as it pertains to compliance officers, specifically regarding their susceptibility to personal liability. It will examine the posture of compliance officers in three contexts: i) as a possible target for enforcement activity by regulators; ii) as a quasi-professional subject to a current regime of “non-regulation”; and iii) as an employee in need of ample whistleblower protections, each of which create implications for a compliance officer’s risk of personal liability and protections as a constituent of the organization monitored. After considering the current guidance surrounding enforcement activity …

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Social Responsibility Regulation And Its Challenges To Corporate Compliance, Stephen Kim Park Dec 2019

Social Responsibility Regulation And Its Challenges To Corporate Compliance, Stephen Kim Park

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article addresses the intersection of corporate social responsibility and corporate compliance. In this context, the focus of this Article is on regulation that seeks to enhance socially responsible corporate conduct and its implications for the compliance function. Social responsibility regulation raises operational concerns for companies, including problems associated with assessing social performance, the proliferation and fragmentation of legal obligations, and the contested nature of the social issues that it addresses. As laws mandating socially responsible corporate conduct continue to grow in number and expand in scope, corporations will increasingly need to acknowledge and respond to these challenges.

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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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Pharmaceutical Drug Pricing: The Internet As A Solution For This Health Issue Turned Financial Issue, Thomas P. Kelly Dec 2019

Pharmaceutical Drug Pricing: The Internet As A Solution For This Health Issue Turned Financial Issue, Thomas P. Kelly

Brooklyn Journal of Corporate, Financial & Commercial Law

Over the course of five decades, American annual expenditure on pharmaceutical drugs has increased by more than $350 billion. This drastic increase has led many patients to struggle to afford their necessary, and potentially life-saving, medications. Today’s high pharmaceutical prices are largely due to the fact that name-brand drug manufacturers have few restrictions on how much they can charge for their products. Additionally, name-brand manufacturers are able to monopolize the manufacture of their drugs because patent laws prevent other manufacturers from using the formula of these drugs for two decades. To combat these high prices, this Note proposes a partnership …

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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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Artificial Intelligence & Artificial Prices: Safeguarding Securities Markets From Manipulation By Non-Human Actors, Daniel W. Slemmer Dec 2019

Artificial Intelligence & Artificial Prices: Safeguarding Securities Markets From Manipulation By Non-Human Actors, Daniel W. Slemmer

Brooklyn Journal of Corporate, Financial & Commercial Law

Securities traders are currently competing to use Artificial Intelligence (A.I.) in order to make more profitable decisions in the marketplace. While A.I. provides superior abilities in recognizing market patterns, its complexity can obscure its decision-making process beyond human comprehension. Problematically, the current securities laws prohibiting manipulation of securities prices rest liability for violations on a trader’s intent. In order to prepare for A.I. market participants, both courts and regulators need to accept that human concepts of decision-making will be inadequate in regulating A.I. behavior. However, the wealth of case law in the market manipulation doctrine need not be cast aside. …

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