Open Access. Powered by Scholars. Published by Universities.®

Administrative Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Brooklyn Law School

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 31 - 60 of 121

Full-Text Articles in Administrative Law

Federal Land Conservation In Rural Areas, Jessica Owley, Jess Phelps Dec 2021

Federal Land Conservation In Rural Areas, Jessica Owley, Jess Phelps

Brooklyn Law Review

Rural land has an important role to play in environmental protection. This Article examines how the federal government works to further the goals of land conservation in rural areas—ranging from farmland to forests and wetlands; from working landscapes to national parks; and from private to public landownership. We note three approaches. The federal government mandates conservation through laws like the Endangered Species Act and the Clean Water Act. The federal government incentivizes conservation through Farm Bill programs and tax incentives. Finally, the federal government facilitates conservation through noncoercive funding, review, and technical assistance programs under the Farm Bill, the National …

Go to article

Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms Dec 2021

Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms

Brooklyn Law Review

The Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues …

Go to article

How Artificial Intelligence Machines Can Legally Become Inventors: An Examination Of And Solution To The Decision On Dabus, Justyn Millamena Dec 2021

How Artificial Intelligence Machines Can Legally Become Inventors: An Examination Of And Solution To The Decision On Dabus, Justyn Millamena

Journal of Law and Policy

With proliferation of Artificial Intelligence research and development, it is foreseeable that these machines will invent many new patentable technologies. However, the United States Patent and Trademark Office recently deemed a patent application incomplete for listing an AI machine as the inventor. If the USPTO’s decision is not corrected, the patent system will be in danger because many fraudulent patent applications that list incorrect inventors will be filed. This would drastically change existing and settled inventorship jurisprudence and might endanger the patent protection over such patents. This Note argues that the USPTO’s reasons for not allowing the Artificial Intelligence machine …

Go to article

The Fight Over Frankenmeat: The Fda As The Proper Agency To Regulate Cell-Based “Clean Meat”, Zoe A. Bernstein Sep 2021

The Fight Over Frankenmeat: The Fda As The Proper Agency To Regulate Cell-Based “Clean Meat”, Zoe A. Bernstein

Brooklyn Law Review

In recent years, concern over the environmental, animal welfare, and human costs of animal agriculture has spurred an increased demand for nonanimal sourced protein. This has led to significant innovation in food technology. As part of this trend, food scientists have developed a process for in-vitro cultivation of meat cells to produce protein that is biologically and nutritionally identical to meat from traditionally raised and slaughtered animal sources, but that involves neither animal agriculture nor animal slaughter. This lab-grown “clean meat” represents a new era in food technology and is already having an effect on the existing meat industry. In …

Go to article

Freedom Without Opportunity: Using Medicare Policy And Cms Mechanisms To Anticipate The Platform Economy’S Pitfalls And Ensure Healthcare Platform Workers Are Fairly Paid, Kim A. Aquino Sep 2021

Freedom Without Opportunity: Using Medicare Policy And Cms Mechanisms To Anticipate The Platform Economy’S Pitfalls And Ensure Healthcare Platform Workers Are Fairly Paid, Kim A. Aquino

Brooklyn Law Review

The rapidly aging population, along with the demand for innovative Medicare delivery models such as bundled payment programs have incentivized the use of technology in healthcare because of its potential to cut costs and improve quality of care. Like many industries embracing technological strides to automate and digitize services, the healthcare industry has welcomed new labor markets like the platform economy to facilitate connections between patients and workers with ease. Along with streamlining connections, the platform economy also promises workers flexibility and autonomy over their own schedule. The platform economy’s promise of freedom, however, is not enough to prevent the …

Go to article

The Rise Of Ada Title Iii: How Congress And The Department Of Justice Can Solve Predatory Litigation, Sarah E. Zehentner Sep 2021

The Rise Of Ada Title Iii: How Congress And The Department Of Justice Can Solve Predatory Litigation, Sarah E. Zehentner

Brooklyn Law Review

The Americans with Disabilities Act (ADA) was enacted in 1990 to afford equal opportunities for individuals with disabilities. Title III of the ADA, specifically, was enacted to afford disabled individuals equal access to places of public accommodation. When the ADA was enacted, the internet was still in its infancy and Congress did not contemplate the need for governing accessibility to websites of public accommodations. Today, the internet has become embedded in virtually every aspect of our lives, yet there are still millions of disabled individuals who are unable to equally access the websites of American businesses. With the ADA being …

Go to article

Shifting Antitrust Laws And Regulations In The Wake Of Hospital Mergers: Taking The Focus Off Of Elective Markets And Centering Health Care, Maya Inka Ureño-Dembar Sep 2021

Shifting Antitrust Laws And Regulations In The Wake Of Hospital Mergers: Taking The Focus Off Of Elective Markets And Centering Health Care, Maya Inka Ureño-Dembar

Brooklyn Law Review

Access to health care requires access to a care center and access to comprehensive health care services. Rampant hospital mergers are uniquely poised to reduce both the number of hospitals, requiring patients to travel further, and the services provided within a newly merged hospital, namely reproductive health services. This phenomenon is clearly seen through the merging of secular and nonsecular hospitals, which often result in patients being forced to travel much further for reproductive health care. In the United States’ current model, health care is not a right, but is treated as a commodity. As such, it is governed by …

Go to article

Left/Right: Managing The Coming Clash Between Congressional Rights Enforcement And Judicial Doctrine, William D. Araiza Aug 2021

Left/Right: Managing The Coming Clash Between Congressional Rights Enforcement And Judicial Doctrine, William D. Araiza

Faculty Scholarship

No abstract provided.

Go to article

Throw The Book At Them: Why The Ftc Needs To Get Tough With Influencers, Christopher Terry, Eliezer Joseph Silberberg, Stephen Schmitz Jun 2021

Throw The Book At Them: Why The Ftc Needs To Get Tough With Influencers, Christopher Terry, Eliezer Joseph Silberberg, Stephen Schmitz

Journal of Law and Policy

The Federal Trade Commission is an administrative agency that has traditionally been aggressive when deploying its delegated authority. At the core of these actions is the FTC’s interpretive definition of deception as based upon a reasonable consumer standard. Specifically, the commission has regularly used Section 5(a) of the FTC Act, in tandem with its interpretive definition of deception, as a sword in a variety of contexts, including enforcement actions for deceptive advertising, endorsements, and claim substantiation against a range of industries. These include successfully brought actions or consent decrees obtained in enforcement proceedings against powerful economic entities, including Google and …

Go to article

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 …

Go to article

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 …

Go to article

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 …

Go to article

Reducing Conflicts Of Interest: A "Glass-Steagall" Split Of Advisory And Consulting Services Of Proxy Advisory Firms, Austin Manna May 2021

Reducing Conflicts Of Interest: A "Glass-Steagall" Split Of Advisory And Consulting Services Of Proxy Advisory Firms, Austin Manna

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note explores a solution to the potential problem with proxy advisory firms that involves an inherent conflict of interest arising from the structure of two services—advisory and consulting services—offered at certain proxy advisory firms in the United States. The solution proposed in this paper applies a Glass-Steagall framework to breakup these two services of the proxy advisory firms. In theory, this would eliminate the inherent conflicts of interest.

Go to article

Let's Stop Playing Games: Why Better Congressional Interaction Is Required To Protect Young Gamers, Dominick Tarantino May 2021

Let's Stop Playing Games: Why Better Congressional Interaction Is Required To Protect Young Gamers, Dominick Tarantino

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the predatory nature of video game microtransactions, the serious risks they pose, and why an improved plan of legislative intervention is necessary to protect young, vulnerable video game consumers. With loot box microtransactions driving a flourishing industry that has reached unprecedented levels of success, adequate consumer protection cannot properly be achieved through self-regulation. Senator Josh Hawley’s Protecting Children from Abusive Games Act is a step in the right direction, but its broad language will result in unintended consequences that can cripple the entire industry. Revising the bill’s language will protect the intended young consumer and allow for …

Go to article

Regents: Resurrecting Animus/Renewing Discriminatory Intent, William Araiza Jan 2021

Regents: Resurrecting Animus/Renewing Discriminatory Intent, William Araiza

Faculty Scholarship

No abstract provided.

Go to article

The Regulatory Production Of Vaccine Hesitancy, Eugene Mccarthy Dec 2020

The Regulatory Production Of Vaccine Hesitancy, Eugene Mccarthy

Brooklyn Law Review

This article argues that U.S. vaccine law produces the “anti-vax” movement. The anti-vax movement is a growing problem, as more than half of American parents have concerns about vaccinating their children. Remarkably, these “vaccine-hesitant” individuals tend to be highly educated, wealthy, and experienced parents. Three legal structures cause vaccine hesitancy: strict immunization mandates, lax regulatory oversight, and blanket limited liability for vaccine manufacturers. The United States stands alone with regard to its vaccine mandates—no other developed democracy requires its citizens to receive such a large number of childhood vaccines. Meanwhile, the law permits financial conflicts of interest in vaccine approval …

Go to article

The Political Face Of Antitrust, Spencer Weber Waller, Jacob E. Morse Dec 2020

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.

Go to article

Two Politicizations Of U.S. Antitrust Law, Frank Pasquale, Jacqueline Green Dec 2020

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 …

Go to article

Door Shut And Ears Plugged: How Consumer Reporting Casts Identity Theft Victims Out Of Financial Society And How The Law Can Be Harmonized To Bring Them Back In, Ryan Bolger Dec 2020

Door Shut And Ears Plugged: How Consumer Reporting Casts Identity Theft Victims Out Of Financial Society And How The Law Can Be Harmonized To Bring Them Back In, Ryan Bolger

Brooklyn Journal of Corporate, Financial & Commercial Law

Consumer Reporting Agencies (CRAs) are the gatekeepers to the American economy. As the chief informants for prospective lenders, landlords, and employers, they exert immense power over the day-to-day decisions of who gets what. Despite these high stakes, the CRAs run consumer reporting as an automated electronic process that causes a lot of reporting errors, disqualifying consumers from essential goods, services, and opportunities. This is painfully true in the context of identity theft, where perverse incentives pollute the integrity of consumer reporting, piling undue harm onto identity theft victims. The law provides a remedy for this problem, but circuit courts are …

Go to article

The Hunt For Loot: Proposed Solutions To More Effectively Regulate Addictive Gambling Mechanics In Video Games, Andrew Brewer Dec 2020

The Hunt For Loot: Proposed Solutions To More Effectively Regulate Addictive Gambling Mechanics In Video Games, Andrew Brewer

Journal of Law and Policy

Over the past decade, more and more video game developers have embraced “loot boxes” as a lucrative source of revenue. But recent concerns over the potential harms of loot boxes, particularly to children, have raised questions about their use and prompted attempts to regulate them throughout the world. This Note explores recent attempts—both foreign and domestic—to regulate loot boxes and proposes new solutions based on those strategies’ shortcomings. By carefully and competently defining terms and exceptions, and providing for more aggressive oversight of agency regulatory efforts, federally-crafted loot box legislation can more effectively protect children from predatory gambling mechanics in …

Go to article

Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte Dec 2020

Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte

Journal of Law and Policy

Imagine you are a spouse and caregiver of a severely injured post-9/11 veteran. Your spouse served in the Marine Corps, with several deployments to Iraq. During their last deployment, your spouse sustained a severe traumatic brain injury and suffers from post-traumatic stress disorder. Due to these injuries, they need consistent care throughout the day. Thankfully, upon their return, the VA provided a caregiver program that allowed you to step away from your job and focus on caring for your spouse full time. As part of this program, you received a caregiver stipend of $2,400 per month, healthcare, and support from …

Go to article

How Single-Candidate Super Pacs Changed The Game And How To Change It Back: Adopting A Presumption Of Coordination And Fixing The Fec’S Gridlock, Sarah E. Adams Jun 2020

How Single-Candidate Super Pacs Changed The Game And How To Change It Back: Adopting A Presumption Of Coordination And Fixing The Fec’S Gridlock, Sarah E. Adams

Brooklyn Law Review

A series of Supreme Court decisions chipping away at campaign finance regulations, particularly the regulation of expenditure-only groups, has resulted in a proliferation of single-candidate Super PACs. While purportedly independent of the candidate, in reality, single-candidate Super PACs operate as an extension of the candidate’s own campaign team. This note argues that single-candidate Super PACs, now operating as fundamental extensions of candidates’ campaigns, pose quid pro quo corruption risks by acting as surrogates for donors who have maxed out on contributions made directly to a candidate. This note will prove that curbing the proliferation of candidate Super PAC coordination, and …

Go to article

Debugging Irs Notice 2014-21: Creating A Viable Cryptocurrency Taxation Plan, Alex Ankier Jun 2020

Debugging Irs Notice 2014-21: Creating A Viable Cryptocurrency Taxation Plan, Alex Ankier

Brooklyn Law Review

In 2014, the Internal Revenue Service (IRS) issued Notice 2014-21 in an attempt to address issues with cryptocurrency taxation, essentially reaching the conclusion that cryptocurrency must be treated like property for purposes of taxation. In the time since the IRS pronouncement, several academics have called for an alternative treatment known as “currency treatment.” Each treatment inadequately addresses the comprehensive issues surrounding cryptocurrency because they offer wholesale treatment to nuanced issues with valid concerns from each side. To truly allow this emerging industry to flourish and gain societal acceptance, artful policymaking is required. This note provides an example of such policymaking. …

Go to article

A Taxonomy Of Cryptocurrency Enforcement Actions, Peter J. Henning Jun 2020

A Taxonomy Of Cryptocurrency Enforcement Actions, Peter J. Henning

Brooklyn Journal of Corporate, Financial & Commercial Law

This article looks at how the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) have pursued cases involving cryptocurrencies. A number of prosecutions have been brought against defendants who misled investors into believing that they were obtaining cryptocurrencies when in fact there were simply false statements and schemes to defraud, such as Ponzi schemes. When a company has attempted to issue a cryptocurrency to investors, the SEC has relied on Section 5(a) and 5(c) of the Securities Act of 1933 to require that issuers file a registration statement with the Commission. This is not an easy process …

Go to article

The Criminal, Regulatory, And Civil Issues Surrounding Intellectual Property And Cybersecurity, Ernest Edward Badway, Christie Mcguinness Jun 2020

The Criminal, Regulatory, And Civil Issues Surrounding Intellectual Property And Cybersecurity, Ernest Edward Badway, Christie Mcguinness

Brooklyn Journal of Corporate, Financial & Commercial Law

Cyber-attacks have affected all organizations and individual consumers. Dissemination of relevant information and attention to strong information security practices is an important tool in fighting this cyber “pandemic.” Additionally, the legal and regulatory liability companies face from cyber-attacks as well as general strategies and practical solutions companies may implement to protect against cyber-intrusions and respond effectively in the event of an attack are considered. There are many iterations of cyber-crime, and we address the various methods cybercriminals use and the many ways cyber-attacks can take place, as well as the entities and victims affected. Moreover, the legal liability and regulatory …

Go to article

“Estonia’S Gift To The World”: The Implementation Of A Blockchain Protocol For Corporate Governance In New York, Sydney Lauren Abualy Jun 2020

“Estonia’S Gift To The World”: The Implementation Of A Blockchain Protocol For Corporate Governance In New York, Sydney Lauren Abualy

Brooklyn Journal of Corporate, Financial & Commercial Law

The traditional procedures of corporate governance are not designed to resolve issues related to close outcomes of corporate votes, empty voting practices, the proxy voting protocol, verification of shareholder identities, and access to corporate records. Blockchain technology allows all corporate shareholders to participate in corporate governance more conveniently, with increased transparency, on a secure network. Estonia sought to revolutionize corporate governance by facilitating the development of a blockchain based e-voting protocol for shareholders of companies listed on the Tallinn Stock Exchange to vote in shareholder meetings. After unsuccessful attempts, New York stands well behind other states, such as Delaware, in …

Go to article

Unmasking The Villain: Exposing Scammers’ Identities To Defeat Harmful Calls, Katherine Teng Jun 2020

Unmasking The Villain: Exposing Scammers’ Identities To Defeat Harmful Calls, Katherine Teng

Brooklyn Journal of Corporate, Financial & Commercial Law

Since 1991, Congress has attempted to limit unwanted phone calls through legislative efforts. However, past and current laws remain ineffective as scam call complaints continue to increase while the harm of these calls remains severe. Currently, the laws affecting telecommunication regulation focus on reactive measures rather than preventative solutions. Most recently, Congress has passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, which will require telecommunication companies to implement SHAKEN/STIR technology to end scam calls before they reach consumers. While this is the most progressive legislation addressing scam calls, this Note will suggest that phone numbers be registered to …

Go to article

Saving Small Business From The Big Impact Of Data Breach: A Tiered Federal Approach To Data Protection Law, Nadia Udeshi Jun 2020

Saving Small Business From The Big Impact Of Data Breach: A Tiered Federal Approach To Data Protection Law, Nadia Udeshi

Brooklyn Journal of Corporate, Financial & Commercial Law

Small businesses provide a significant positive impact on the American economy. However, the current fragmented federal and state data protection and breach notification legal scheme puts the viability of small businesses at risk. While the probability of data breaches occurring continues to increase, small businesses lack the financial and technological resources to contend with the various state and federal laws that impose different monetary penalties and remedial requirements in the event of such breaches. To preserve the viability of small businesses, Congress should enact a centralized, multi-tiered federal data protection and breach notification framework that preempts state laws, imposes minimum …

Go to article

The Institutional Design Of Community Control, K. Sabeel Rahman, Jocelyn Simonson Jun 2020

The Institutional Design Of Community Control, K. Sabeel Rahman, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Go to article

Reconsidering Confidential Settlements In The #Metoo Era, Minna J. Kotkin Jan 2020

Reconsidering Confidential Settlements In The #Metoo Era, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Go to article

First Prev Next Last