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Articles 1 - 26 of 26
Full-Text Articles in Other Law
Where In The World: Protecting Indigenous Textiles In Guatemala Through Geographical Indications, Lucie Couillard Sosa
Where In The World: Protecting Indigenous Textiles In Guatemala Through Geographical Indications, Lucie Couillard Sosa
Brooklyn Journal of International Law
There is a current movement by indigenous weavers in Guatemala to protect their textile designs due to the harm caused by the absence of the weavers’ intellectual property ownership over the designs and patterns. The exploitation and appropriation of their designs by domestic and international companies has hurt weavers’ livelihoods and has led to culturally inappropriate and insensitive uses of religious and traditional patterns. Conventional intellectual property law (copyright, trademark, and patent law) fails to protect indigenous peoples’ intellectual property rights. A key weakness within conventional intellectual property law is the emphasis and focus on individuality of the creation process. …
Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past
Brooklyn Journal of International Law
So-called “conversion therapy” consists of dangerous practices that inflict detrimental, long-lasting effects on its victims. As a form of sexual orientation or gender identity or gender expression change efforts, conversion therapy is fostered by global homophobia and transphobia. Despite formal public rejection and scientific discreditation, conversion therapy providers across the world continue to target LGBTQ+ individuals, predominately under the guise of offering health care services or obeying religious practices. The following piece compares conversion therapy in three countries with recently introduced LGBTQ+ legislation––(1) Ghana; (2) Canada; and (3) the United States (U.S.)–––in order to identify factors furthering conversion therapy and …
Corpus Linguistics And The Law: Extending The Field From A Statistical Perspective, Stefan Th. Gries
Corpus Linguistics And The Law: Extending The Field From A Statistical Perspective, Stefan Th. Gries
Brooklyn Law Review
During the last 5–10 years, corpus-linguistic applications have slowly become more widespread in matters of legal interpretation; specifically, we see more court cases in which corpus-linguistic data are brought to bear on the (original) ordinary/public meaning of expressions in legal texts (in briefs and judicial opinions), but also more academic research focusing on if/how corpus-linguistic methods can shed light on the plain/ordinary meaning of words in a legal text.While this development is welcome, it also comes with shortcoming/risks, some of which are now hotly debated in recent and forthcoming law review articles. In particular, there is a whole family of …
Big Data And Accuracy In Statutory Interpretation, Brian G. Slocum
Big Data And Accuracy In Statutory Interpretation, Brian G. Slocum
Brooklyn Law Review
Scholarship is increasingly devoted to improving the “accuracy” of statutory interpretations, but accuracy is a contingent concept dependent on interpretive perspective. If, for instance, a scholar focuses on the language production of the legislature, she may seek to improve the methodology of statutory interpretation through a more sophisticated understanding of the legislative process. Thus, the scholar may argue that one can assess the reliability of the different types of legislative history by focusing on the actors and processes that produce them. Conversely, a scholar might focus on the language comprehension of some speech community, such as the one comprised of …
Hypothesis Testing Ordinary Meaning, Daniel Keller, Jesse Egbert
Hypothesis Testing Ordinary Meaning, Daniel Keller, Jesse Egbert
Brooklyn Law Review
Corpus linguistic tools promise to make determinations of the ordinary meaning (OM) of a word or phrase in a statute more objective, replicable, and transparent. However, significant questions remain as to how corpora may best be employed in the process of determining OM. In this paper, we argue that objectivity, replicability, and transparency are bolstered when legal practitioners take a hypothesis testing approach to determining ordinary meaning. In this approach, the corpus (a large collection of authentic texts) is treated as a sample of data which the practitioner may use to draw inductive inferences about the meaning of the term …
What Counts As Data?, Anya Bernstein
What Counts As Data?, Anya Bernstein
Brooklyn Law Review
We live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in …
Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar
Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar
Brooklyn Journal of International Law
The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …
A Keystroke Causes A Tornado: Applying Chaos Theory To International Cyber Warfare Law, Daniel Garrie, Masha Simonova
A Keystroke Causes A Tornado: Applying Chaos Theory To International Cyber Warfare Law, Daniel Garrie, Masha Simonova
Brooklyn Journal of International Law
Cyber warfare today finds itself on the front page of the news daily. It is increasingly apparent that the cyber domain demands more guidance, with leaders opting for the deployment of cyber capabilities to bypass kinetic warfare norms. Proposed solutions abound, but none adequately address the specific features of cyber warfare that set it apart from traditional kinetic warfare. This Article argues that a new legal framework is necessary to properly address this problem, and such a doctrine should incorporate principles of chaos theory. Chaos theory is a branch of mathematics dealing with complex systems, with the most well-known example …
Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj
Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj
Brooklyn Journal of International Law
On November 6, 2018, Kosovo imposed a 10 percent tariff on products imported from Serbia and Bosnia and Herzegovina. Later that month, on November 28, 2018, after Kosovo was denied membership in the International Criminal Police Organization, Kosovo increased the custom tariffs on Serbian and Bosnian goods from 10 to 100 percent. These actions resulted in a standstill of the European Union–mandated Belgrade-Pristina dialogue—a dialogue seeking to normalize the relations between the two states. Having the tumultuous history shared by Kosovo and Serbia as a backdrop, this Note analyzes the international agreements Kosovo is party to, specifically the Central European …
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 …
The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger
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 …
Forging Taiwan’S Legal Identity, Margaret K. Lewis
Forging Taiwan’S Legal Identity, Margaret K. Lewis
Brooklyn Journal of International Law
The legal system in Taiwan is undergoing a transformation. Over a hundred years since the founding of the Republic of China and over thirty years since the end of martial law on Taiwan, a new legal identity is being forged. Public criticism of “dinosaur” judges and esoteric debates among law-trained elites have galvanized efforts to create a more inclusive discussion surrounding legal reforms. Taiwan is facing the challenge of moving from dinosaurs to dynamism. This Article argues that transparency, clarity, and participation both are animating principles of the current reform debate and are beginning to emerge as characteristics of Taiwan’s …
Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves
Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves
Brooklyn Journal of International Law
In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region (HKSAR), the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong (Government) may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in …
A Third Way Of Thinking About Cultural Property, Lucas Lixinski
A Third Way Of Thinking About Cultural Property, Lucas Lixinski
Brooklyn Journal of International Law
The article argues that the dichotomy between nationalism and internationalism with respect to cultural property, while formative, has outlived its utility, and in many respects compromised the viability of the public good it aims to safeguard. Focused on the example of cultural property in international law, this article argues for more community-centric forms of governance, beyond the interests of states and an undefined “international.” It extrapolates the lessons from cultural property to other forms of resource governance in international law.
Roots Of Revolution: The African National Congress And Gay Liberation In South Africa, Joseph S. Jackson
Roots Of Revolution: The African National Congress And Gay Liberation In South Africa, Joseph S. Jackson
Brooklyn Journal of International Law
South Africa’s post-apartheid constitutions were the first in the world to contain an explicit prohibition of discrimination on grounds of sexual orientation, and that prohibition established the foundation for marriage equality and broad judicial and legislative protection of gay rights in South Africa. The source of this gay rights clause in the South African Constitution can be found in the African National Congress’s decision to include such a clause in the ANC’s A Bill of Rights for a New South Africa, published when the apartheid government of South Africa was still in power. This article traces the story of that …
“Why Did Constantinople Get The Works? That’S Nobody’S Business But The Turks.” A New Approach To Cultural Property Claims And Geographic Renaming Under The 1970 Unesco Convention, Kasey Theresa Mahoney
“Why Did Constantinople Get The Works? That’S Nobody’S Business But The Turks.” A New Approach To Cultural Property Claims And Geographic Renaming Under The 1970 Unesco Convention, Kasey Theresa Mahoney
Brooklyn Journal of International Law
The landscape of cultural property and cultural heritage discourse is continually evolving, and the traditional means of regulating disputes must not only be adapted to the current climate but proactively address foreseeable future concerns. This Note explores the Republic of Turkey’s increasing litigiousness with regard to its reparation claims and, further, considers the notion of culture as geographic boundaries transform over the course of time. This Note will analyze the leading international cultural property treaty, the 1970 UNESCO Convention, and recommend UNESCO adopt two mandates to curb the chilling effect current litigation has had on the preservation and dissemination of …
The Need For A Shared Responsibility Regime Between State And Non-State Actors To Prevent Human Rights Violations Caused By Cyber-Surveillance Spyware, Anna W. Chan
Brooklyn Journal of International Law
Technology has undoubtedly contributed to the field of human rights. Internet connection and a smartphone has enabled activists to call out political leaders, shine light on human atrocities and organize mass protests through social media platforms. This has resulted in many authoritarian governments spending large amounts of their resources to purchase cyber-surveillance spyware systems from multi-national corporations to closely monitor and track their citizens for any signs of dissidence. Such technology has enabled authoritarian regimes to commit human right violations ranging from invasion of privacy, arbitrary arrest, arbitrary detention, torture and even murder. Despite the uncovering of such questionable transactions …
Safeguarding Democracy In Europe: A Bulwark Against Hungary’S Subversion Of Civil Society, Hannah J. Sarokin
Safeguarding Democracy In Europe: A Bulwark Against Hungary’S Subversion Of Civil Society, Hannah J. Sarokin
Brooklyn Journal of International Law
Spurred in large part by a mounting humanitarian crisis in Syria, the 2015 migrant crisis exposed deeply rooted fractures within the European Union regarding refugee resettlement. While the European Union worked to develop a synchronized response to the influx of refugees and asylees, Hungary defiantly sought to close its borders. In doing so, the Hungarian government targeted not only those seeking refuge, but its own civil society. In a series of opaque and overtly punitive legislative acts passed in the summer of 2018, Hungary criminalized any civil society activities that facilitate or assist with immigration. This Note will analyze the …
The Price Is Rights: Getting The United Arab Emirates Up To International Speed In The Labor Law Department, Janae C. Cummings
The Price Is Rights: Getting The United Arab Emirates Up To International Speed In The Labor Law Department, Janae C. Cummings
Brooklyn Journal of International Law
Despite a rapidly growing economy and a tremendous accumulation of wealth, the United Arab Emirates has facilitated many human rights abuses against migrant workers from impoverished countries throughout the world. The UAE’s system of recruitment, payment and living conditions put already vulnerable populations in considerably worse economic conditions by exploiting their labor and creating significant barriers to challenging the unjust employment system. After being sold on the idea that migrating to the UAE would bring a semblance of economic advancement, many migrants find themselves in inhumane working conditions and debt from having to pay excessive amounts of money to recruitment …
Chancing The Arm To Save The Face: The Fight For Irish Gaelic Recognition And Ending The Stormont Deadlock, Samantha F. Sigelakis-Minski
Chancing The Arm To Save The Face: The Fight For Irish Gaelic Recognition And Ending The Stormont Deadlock, Samantha F. Sigelakis-Minski
Brooklyn Journal of International Law
Since January 2017, the Northern Irish government has been shut down, with both the Executive and Assembly collapsed and the two major political coalitions deadlocked. Since then, civil servants with no major decision-making power have largely run the government. One of the deadlock’s major battlegrounds is whether there should be legislation in Northern Ireland mandating that Gaeilge, or Irish Gaelic, be treated as a language of equal status to that of English. This Note explores this issue and argues that the right to equal language protections is founded in the right to one’s cultural identity, and as such should be …
Pursuing A Universal Threshold For Regulating Incitement To Discrimination, Hostility Or Violence, Rebecca Meyer
Pursuing A Universal Threshold For Regulating Incitement To Discrimination, Hostility Or Violence, Rebecca Meyer
Brooklyn Journal of International Law
The International Covenant on Civil and Political Rights (ICCPR) recognizes that although the right to freedom of expression is essential, it is not absolute. The ICCPR prohibits speech that incites to discrimination, hostility, or violence. The provision prohibiting such speech is important to protect individuals and communities. Yet, not all countries are adequately enforcing its mandate. Such countries are letting inciting speech spread and, in some instances, violence has ensued. Conversely, some countries are taking enforcement too far, using the criminalization of inciting speech as a tool to silence political dissent. In light of the divergent interpretations—each problematic in its …
Private Prisons And The Need For Greater Transparency: Private Prison Information Act, Libbi L. Vilher
Private Prisons And The Need For Greater Transparency: Private Prison Information Act, Libbi L. Vilher
Brooklyn Journal of Corporate, Financial & Commercial Law
Private prisons are not subject to the same regulations as government prisons. Particularly, private prisons are exempt from the requirements set forth in the Freedom of Information Act and its state equivalents, which provide that the public has an enforceable right to request certain records from government agencies. Numerous efforts made by members of Congress to enact the Private Prison Information Act, a bill that would subject private prisons to disclosure laws found in the Freedom of Information Act, have been unsuccessful. Such efforts to strip the veil of secrecy that shades private prisons from public scrutiny are especially important …
Exploiting Latin American Microfinance Deregulation: One Borrower At A Time, Karlamaria Cabral
Exploiting Latin American Microfinance Deregulation: One Borrower At A Time, Karlamaria Cabral
Brooklyn Journal of Corporate, Financial & Commercial Law
Microfinance seeks to eradicate poverty through the economic growth and development that results when seed capital is given to microenterprises. In 2015, Latin America’s microfinance loan portfolio totaled $40 billion USD and included more than twenty-two million borrowers. Due to the current state of microfinance in the region—abusive lending practices and betraying the original goal and purpose of eradicating poverty—this Note advocates for a regional regulatory body, such as the Latin American Microfinance Association, that would develop and assist Latin American countries to implement model legal frameworks that increase client protection, create licensing requirements, establish interest rate caps, and recognize …
Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker
Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker
Brooklyn Journal of International Law
The current state of international law is one of deep confusion over the role of state practice and opinio juris within the customary element. The debate between adherents of “modern custom” versus those of “traditional custom” has resulted in deep uncertainty and confusion. New theories of customary international law have proved inadequate in clarifying the current state of the field. Confusions over the meanings and relationships between state practice and opinio juris aside, current approaches are all also flawed due to a heavily state-centric bias that fails to take into account the very real affects that norm-generating transnational actors have …
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Brooklyn Journal of International Law
In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …
Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee
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 …