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Articles 1 - 10 of 10
Full-Text Articles in Administrative Law
Not So Fair Use: The Shortcomings Of Current Copyright Law In Music Sampling, Marissa Brown
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 …
The Political Face Of Antitrust, Spencer Weber Waller, Jacob E. Morse
The Political Face Of Antitrust, Spencer Weber Waller, Jacob E. Morse
Brooklyn Journal of Corporate, Financial & Commercial Law
The last twenty years have brought antitrust back to the fore as a political issue of greater salience. Several booms and busts in the economy have highlighted the issue of corporate power in the economy and the political system. The growing influence and aggressiveness of the European Union and other jurisdictions’ competition laws have highlighted the relative retreat in the United States. Political movements in the United States have brought issues of corporate power and its abuse back into the public limelight and with them a greater political salience for antitrust in the election cycle of 2020.
Two Politicizations Of U.S. Antitrust Law, Frank Pasquale, Jacqueline Green
Two Politicizations Of U.S. Antitrust Law, Frank Pasquale, Jacqueline Green
Brooklyn Journal of Corporate, Financial & Commercial Law
Critics have accused the Trump Department of Justice (DOJ) and Trump-appointee-chaired Federal Trade Commission (FTC) of populism, deviating from the more technocratic standards that governed agency interventions during the Bush and Obama eras. The broad brush of politicization has been applied to the administration's handling of a wide variety of topics, ranging from marijuana and media mergers, to landmark lawsuits against Google and Facebook. But a more discerning eye is necessary here. The concept of the political has both authoritarian and democratic registers. The federal Google and Facebook antitrust cases reflected the democratization of high technology antitrust. Meanwhile, troublingly authoritarian …
A Bridge Too Far: A Critical Analysis Of The Securities And Exchange Commission's Approach To Equity Market Regulation, John Polise
Brooklyn Journal of Corporate, Financial & Commercial Law
Using the framework articulated by Thomas S. Kuhn in his book, The Structure of Scientific Revolutions, this Article traces the evolution of equity market regulation in terms of its epistemological foundations and operative paradigms. It examines the SEC’s growth from a more passive partner with the securities industry to being an aggressive and perhaps overly intrusive arbiter of equity market operations. This Article identifies two distinct paradigms of securities regulation—the “Self-Regulatory Paradigm” and the “Micro-Intervention Paradigm.” The Self-Regulatory Paradigm and the Micro-Intervention Paradigm are not compatible, and this Article explains how the intellectual dissonance between them ultimately allowed the Micro-Intervention …
Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano
Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano
Brooklyn Journal of Corporate, Financial & Commercial Law
The foreign tax credit, which saves U.S. taxpayers from paying both foreign and domestic income taxes on the same income, is critical to facilitating global commerce. However, as savvy taxpayers discover increasingly complicated ways to abuse the foreign tax credit regime through the structuring of business transactions, courts have become increasingly skeptical of the validity of those transactions. Using the economic substance doctrine, a common law doctrine codified in 2010 at I.R.C. § 7701(o), courts will disallow tax benefits stemming from a transaction that is not profitable absent its tax benefits, and which the taxpayer had no incentive to undertake …
The Legal Climate On Climate Change: The Fate Of The Epa's Clean Power Plan After Michigan And Uarg, Israel Katz
The Legal Climate On Climate Change: The Fate Of The Epa's Clean Power Plan After Michigan And Uarg, Israel Katz
Brooklyn Journal of Corporate, Financial & Commercial Law
One of the centerpieces of the United States’ effort to combat climate change is the Environmental Protection Agency’s (EPA) controversial Clean Power Plan, which consists of the first-ever federal regulations requiring states to achieve massive carbon dioxide emissions reductions from existing fossil fuel-fired power plants. The regulations operate by setting interim and final emissions target dates for states to ultimately reach an aggregate 32% reduction in carbon emissions by the year 2030. This Note argues that the current regulations will not survive judicial scrutiny, because the U.S. Supreme Court has moved away from traditional administrative deference in instances where an …
Full Disclosure: Moving Beyond Disclosure Regulations To Affirmative Regulation Of Executive Compensation, Christopher Saverino
Full Disclosure: Moving Beyond Disclosure Regulations To Affirmative Regulation Of Executive Compensation, Christopher Saverino
Brooklyn Journal of Corporate, Financial & Commercial Law
In the period following the financial crisis of 2008, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), which compelled the Securities and Exchange Commission (SEC) to engage in substantial rulemaking. The Dodd-Frank mandate in Section 953(b) required the SEC to promulgate a rule, which it eventually finalized and is currently known as Pay Ratio Disclosure. Historically, SEC rulemaking has received great deference when rules are judicially challenged. However, following the passage of Dodd-Frank, the D.C. Circuit Court of Appeals has begun to grant less deference to SEC rulemaking where it has found that the SEC has …
Abuse Of The Hatch-Waxman Act: Mylan's Ability To Monopolize Reflects Weaknesses, Kieran Meagher
Abuse Of The Hatch-Waxman Act: Mylan's Ability To Monopolize Reflects Weaknesses, Kieran Meagher
Brooklyn Journal of Corporate, Financial & Commercial Law
The Drug Price Competition and Patent Term Restoration Act of 1984, better known as the Hatch-Waxman Act, is intended to lower the average price paid by consumers for prescription drugs. The Hatch-Waxman Act attempts to do so by simplifying the application process for generic drug manufacturers, allowing generic drug applications to circumvent the lengthy FDA testing and approval process that brand-name manufacturers must undergo. Though the Hatch-Waxman Act has successfully created a clear path to the market for generic drugs, it contains loopholes that allow brand name and generic companies to engage in practices aimed at maximizing monopoly profits, effectively …
The Question Concerning Technology In Compliance, Sean J. Griffith
The Question Concerning Technology In Compliance, Sean J. Griffith
Brooklyn Journal of Corporate, Financial & Commercial Law
In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures.
Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Rizwaan J. Mokal
Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Rizwaan J. Mokal
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.