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Jurisprudence Commons

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2016

Brooklyn Law School

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Articles 1 - 23 of 23

Full-Text Articles in Jurisprudence

Protecting Hatred Preserves Freedom: Why Offensive Expressions Command Constitutional Protection, Andrew P. Napolitano Dec 2016

Protecting Hatred Preserves Freedom: Why Offensive Expressions Command Constitutional Protection, Andrew P. Napolitano

Journal of Law and Policy

The First Amendment is not the guardian of taste. Instead, the U.S. Constitution wholeheartedly protects freedom of thought and expression, even if generated and defined by hatred, as long as that expression does not produce immediate lawless violence. Although free speech may lead to tenuous relationships or uncomfortable debates, it must be defended unconditionally. Too many politicians and lawmakers believe that the freedom of speech protected by the First Amendment attaches only to those ideas and expressions that they approve of; this is not so. This article argues that the Founders intended the First Amendment's free speech principle as a …


Freedom Of Speech And Equality: Do We Have To Choose?, Nadine Strossen Dec 2016

Freedom Of Speech And Equality: Do We Have To Choose?, Nadine Strossen

Journal of Law and Policy

As a lifelong activist on behalf of both equality and free speech, I am convinced, based on actual experience, that these core values are mutually reinforcing, and not, as some have argued, in tension with each other. Moreover, I am convinced that this is true even for offensive or hateful speech that affronts our most cherished beliefs. However, defining hateful or offensive speech is inherently arbitrary and subjective, which raises concerns about what speech should be restricted, and how. Empowering government to punish hateful or offensive expresson necessarily vests officials with enormous discretionary power, which will inevitably lead to arbitrary …


Where's The Fire?, Burt Neuborne Dec 2016

Where's The Fire?, Burt Neuborne

Journal of Law and Policy

Freedom of speech is priceless, but distressingly fragile. Life, and law, would be much simpler if we could react to free speech's importance and fragility by granting it absolute legal protection. Since, however, absolute protection of speech is not—and should not be—a serious option, we face the legal realist challenge of erecting a First Amendment legal structure capable of providing real-world protection to highly controversial speech, often by weak speakers, without closing the door to government regulation. Given the uncertainty inherent in applying fact-dependent complex rules in protean factual settings, many potential speakers would avoid being drawn into unpredictable and …


A Balancing Act For American Universities: Anti-Harassment Policy V. Freedom Of Speech, Bridget Hart Dec 2016

A Balancing Act For American Universities: Anti-Harassment Policy V. Freedom Of Speech, Bridget Hart

Journal of Law and Policy

Legal scholars, educational administrators, journalists, and students have all witnessed a rise in students being disciplined by university officials for speech and conduct deemed inappropriate for college campuses. In endeavoring to explain this trend, some academics point to the disconnect between the Department of Education and university administrators regarding the legal standards for campus anti-harassment policies. The lack of clarity regarding what constitutes harassment on college campuses has resulted in the punishment of students by universities for speech and conduct that is normally considered to be protected speech under the First Amendment. This note first provides an overview of the …


When You Come To A Fork In The Road, Take It: Unifying The Split In New York's Analysis Of In-House Attorney-Client Privilege, Thomas O'Connor Dec 2016

When You Come To A Fork In The Road, Take It: Unifying The Split In New York's Analysis Of In-House Attorney-Client Privilege, Thomas O'Connor

Journal of Law and Policy

As one surveys the vast and ever-changing landscape of law and litigation, few things stand out as so unanimously exalted and carefully guarded as the privilege protecting attorney-client communications. Yet there is today a surprising lack of uniformity and predictability in the reasoning by which New York courts determine whether a communication made by in-house counsel to its corporate client will – or will not – enjoy the protection of that privilege. Rather than follow a single and predictable analysis to resolve the question, New York courts have oscillated between one line of decisions focusing primarily on the purpose of …


The Academy, Campaign Finance, And Free Speech Under Fire, Bradley A. Smith Dec 2016

The Academy, Campaign Finance, And Free Speech Under Fire, Bradley A. Smith

Journal of Law and Policy

This article discusses the issue of campaign finance and the impact money has on the political process in the country. The author suggests campaign finance regulations that curb the current threat it poses to the system, as well as the First Amendment itself. Lastly, the author discusses the impact academics have had on the debate and this decline in support of free speech that has resulted from the debate.


Producing Democratic Vibrancy, K. Sabeel Rahman Dec 2016

Producing Democratic Vibrancy, K. Sabeel Rahman

Journal of Law and Policy

Professor Rahman gives his thoughts and opinions on the impact of Citizens' United v. FEC and the growth of the First Amendment debate since. The comment analyzes the normative udnerstanding of democracy and the ongoing debate campaifgn finance have. Professor Rahman concludes by suggesting that the debate is wrongly focused on the indivudals being consumers of politcal speech rather than the producers of it.


The Core Of An Unqualified Case For Judicial Review: A Reply To Jeremy Waldron And Contemporary Critics, Alexander Kaufman, Michael B. Runnels Dec 2016

The Core Of An Unqualified Case For Judicial Review: A Reply To Jeremy Waldron And Contemporary Critics, Alexander Kaufman, Michael B. Runnels

Brooklyn Law Review

No abstract provided.


Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson Dec 2016

Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2011 Supreme Court case Stern v. Marshall defined which claims bankruptcy courts had the authority to adjudicate, but it’s complicated holding left lower courts perplexed. Specifically, the Stern decision created “Stern claims”—claims that bankruptcy courts have the statutory, but not the constitutional, authority to adjudicate. Subsequent cases, such as Executive Benefits Insurance Agency v. Arkison and Wellness International Network, Ltd. v. Sharif, have grappled with whether Stern claims should be treated as “core” claims, which bankruptcy courts can enter final judgments on, or “non-core” claims, which bankruptcy courts can only enter final judgments on if the litigating parties consent. …


Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii Jan 2016

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …


Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi Jan 2016

Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi

Brooklyn Law Review

In the federal criminal justice system, plea bargaining remains the predominant method for disposing of cases. An important provision in most plea agreements consists of the waiver of the defendant’s right to appeal the conviction or sentence. This note explores the constitutional, contractual, and policy implications of a recent Third Circuit decision that would allow specific performance as a remedy where a defendant’s only breach of the plea agreement consists of filing an appeal arguably precluded by an appellate waiver provision. This note argues that the approach taken by the Third Circuit in United States v. Erwin could effectively preclude …


Reflections On Opportunity In Life And Law, Judith S. Kaye Jan 2016

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.


A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine Jan 2016

A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine

Brooklyn Journal of Corporate, Financial & Commercial Law

Optimism is an indispensable element of effective salesmanship. It is therefore quite natural for the directors of public companies to want to optimistically tout the potential long-term benefits of investing in their companies. After all, directors of public companies must be empowered to attract the attention and money of American investors. But what happens if these long-term projections fail to come true? Who is to blame for long-term projections that are simply unrealistic? A doctrine called the “bespeaks caution” doctrine has emerged in order to govern these inquiries, and holds that these optimistic forward-looking statements are legally immunized provided that …


A Tribute To Judge Kaye, Nicholas W. Allard Jan 2016

A Tribute To Judge Kaye, Nicholas W. Allard

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.


Personal Injury Victims As Insurance Collection Agents: Erisa Preemption Of State Antisubrogation Laws, Jonathan P. Connery Jan 2016

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 …


Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney Jan 2016

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …


For Judith S. Kaye, Susan N. Herman Jan 2016

For Judith S. Kaye, Susan N. Herman

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.


Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard Jan 2016

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 …


The Making Of A Judge's Judge: Judith S. Kaye's 1987 Cardozo Lecture, Henry M. Greenberg Jan 2016

The Making Of A Judge's Judge: Judith S. Kaye's 1987 Cardozo Lecture, Henry M. Greenberg

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.


Judge Judith Kaye At Skadden, Arps, Barry H. Garfinkel Jan 2016

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.


A Tribute To Chief Judge Judith S. Kaye, Hon. Janet Difiore Jan 2016

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.


Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee Jan 2016

Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee

Brooklyn Journal of Corporate, Financial & Commercial Law

In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other …


Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli Jan 2016

Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli

Brooklyn Journal of Corporate, Financial & Commercial Law

Risks associated with incentive misalignment are liable to seriously jeopardize the effectiveness of bank resolution, when not properly contained. This Article considers the management of misaligned incentives between regulators that are found in a vertical relationship of public governance. Using the EU legal framework of bank resolution as its case study, this Article explores the effectiveness of the quasi-enforcement powers of the Single Resolution Board (SRB) and, where relevant, of the European Banking Authority (EBA) as an incentive realignment legal technique. Two principal difficulties are identified: on the one hand, the problematic interinstitutional dynamic of the SRB and the EBA …