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Articles 1 - 30 of 101
Full-Text Articles in Law
Emerging Technologies And Perfection Of Security Interests: A Financial University Of Uncertainty, Elizabeth M. Wagenbach
Emerging Technologies And Perfection Of Security Interests: A Financial University Of Uncertainty, Elizabeth M. Wagenbach
Brooklyn Law Review
Since the founding of Bitcoin in 2009, digital assets, such as cryptocurrency, have exploded in popularity. Cryptocurrency has been associated with stories of immense profit and immense loss. The lucky transactors have been able to capitalize on the price fluctuations of cryptocurrency, while the unlucky transactors became victims of the same volatility, losing tremendous amounts of money. The novelty and ingenuity of cryptocurrency has been coupled with mass confusion to transactors and regulators alike. These early days of cryptocurrency have been characterized by a sort of regulatory tug of war that is a direct result of confusion of what cryptocurrency …
Situating Bystanders Within Strict Products Liability, Mark A. Geistfeld
Situating Bystanders Within Strict Products Liability, Mark A. Geistfeld
Brooklyn Journal of Corporate, Financial & Commercial Law
"The largely neglected role of bystanders within products liability is reflected in the extensive scholarship of Professor Aaron Twerski—the rightly celebrated honoree of this symposium. Within Twerski’s vast body of impressive publications, his limited discussions of bystanders align with the widely held assumption that, aside from the problems they pose for the consumer expectations test, bystanders do not merit much attention within the context of products liability. Bystander injuries are much more important than is commonly recognized; one must focus on them to adequately identify the conditions under which consumer-choice doctrines properly limit tort liability. Because the varied rules of …
It's Finally Time For A National Data Privacy Law: A Discussion Of The American Data Privacy And Protection Act (Adppa), Erin J. An
Brooklyn Journal of Corporate, Financial & Commercial Law
Millions of Americans face unprecedented privacy risks related to their data, often without their awareness. With the increasing value of consumer data and its growing utilization by businesses, there is a growing demand for greater transparency and privacy protections. As of 2023, no comprehensive federal law governs data privacy in the United States, leaving citizens with limited protections. Introduced to Congress on June 21, 2022, the American Data and Privacy Protection Act (ADPPA) successfully passed the House of Representatives Committee on Energy and Commerce, making it the furthest a national comprehensive data privacy bill has progressed through the federal legislative …
Rise Of The Machines: The Future Of Intellectual Property Rights In The Age Of Artificial Intelligence, Sofia Vescovo
Rise Of The Machines: The Future Of Intellectual Property Rights In The Age Of Artificial Intelligence, Sofia Vescovo
Brooklyn Law Review
Artificial intelligence (AI) is not new to generating outputs considered suitable for intellectual property (IP) protection. However, recent technological advancements have made it possible for AI to transform from a mere tool used to assist in developing IP to the mind behind novel artistic works and inventions. One particular AI, DABUS, has done just so. Yet, while technology has advanced, IP law has not. This note sets out to provide a solution to the legal concerns raised by AI in IP law, specifically in the context of AI authorship and inventorship. The DABUS test case offers a model framework for …
Kneecapping Scalping: Ending The Predatory Scourge Plaguing E-Commerce Using Unfair Practice Frameworks, Zachary Michael Elvove
Kneecapping Scalping: Ending The Predatory Scourge Plaguing E-Commerce Using Unfair Practice Frameworks, Zachary Michael Elvove
Brooklyn Law Review
Concert goers and sports fans are no longer the only people forced to pay absurdly marked up prices. From baby formula to video game consoles, scalping dominates the sale of goods online. Yet existing frameworks for antiscalping—specifically their relentless focus on tickets, bots, and hidden fees—fundamentally fail to address the parasitic profiteering that underpins scalping in the modern economy. We cannot understand the scope of harms posed by pernicious online resale if we focus purely on the minutiae of ticket markets and technological exploitation—the sheer number of industries affected by scalping and size of the market failure it causes demand …
Beyond Consumer Protection: Standardized Stablecoins Disclosure As Information Infrastructure, Shuping Li
Beyond Consumer Protection: Standardized Stablecoins Disclosure As Information Infrastructure, Shuping Li
Brooklyn Journal of International Law
This article argues for standardized disclosure for stablecoins regulation. Information disclosure has long been considered a primary tool for consumer protection. Stablecoin issuers should disclose honestly and responsibly about the qualification of themselves, as well as the value, quantity, and operational mechanism of their stablecoins. Such disclosure can prevent issuers from taking advantage of information asymmetries for consumer exploitation or fraud. It is then up to the consumers to make informed investment or consumption decisions. More importantly, this paper argues that the fundamental role of information disclosure is to form a knowledge base for financial regulation and policymaking. The importance …
Commercial Law Harmonization: The Role Of The United States, Hal Burman
Commercial Law Harmonization: The Role Of The United States, Hal Burman
Brooklyn Journal of Corporate, Financial & Commercial Law
The modern field of transnational commercial law harmonization began in the United States in the mid-1960s; the international basis of that began in the mid-1940s. Before that, a limited number of areas of private international law (PIL) had active participation of US interests, such as maritime law. US participation internationally effectively began in the middle 1960s. Developments parallel to commercial law have been significant in the areas of applicable law, jurisdiction, commercial arbitration, family law, and other fields – all important areas of transnational law, but beyond the scope of this symposium. Each of these areas of law, while affecting …
Limiting 28 U.S.C. § 1782: A Changed Landscape For Discovery In Private Commercial Arbitration Abroad, Jazmyne R. Barto
Limiting 28 U.S.C. § 1782: A Changed Landscape For Discovery In Private Commercial Arbitration Abroad, Jazmyne R. Barto
Brooklyn Journal of Corporate, Financial & Commercial Law
For decades 28 U.S.C. § 1782 has been used by foreign entities looking to compel discovery in the United States for use in commercial arbitration proceedings abroad. Despite the statute being in force since 1948, many federal courts were unsure of whether § 1782 could actually be used in international private commercial arbitration. The Supreme Court tried and failed to clarify the statute’s scope in 2004, leading to a circuit court split as to §1782’s applicability. Looking to end the controversy once and for all, during the Summer of 2022, the Supreme Court clearly stated that § 1782 might not …
Part Ii: Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Part Ii: Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Neil Cohen’S Contribution To Uniform Secured Finance Law, Spyridon V. Bazinas
Neil Cohen’S Contribution To Uniform Secured Finance Law, Spyridon V. Bazinas
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article discusses Neil Cohen’s contribution to uniform secured finance law and, in particular, to the UNCITRAL Model Law on Secured Transactions. It does so by focusing on the misgivings Neil Cohen had expressed before, and his reflections on those misgivings after, the preparation of the Model Law. The discussion presents Neil Cohen as is generally known, as a distinguished scholar, but also as he is known to his friends and colleagues, as a person with rare qualities.
Reforming The Law Reform Ecosystem, Timothy Schnabel
Reforming The Law Reform Ecosystem, Timothy Schnabel
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article outlines a series of reforms that would make global law reform efforts more effective and efficient. These efforts currently occur primarily in three multilateral organizations (UNCITRAL, UNIDROIT, and the Hague Conference). The member states of these organizations could easily increase coordination—even to the point of de facto consolidation of the organizations’ work—and could increase the attention given to selecting projects and promoting instruments. Additionally, the U.S. government could organize plurilateral law reform efforts outside these organizations and draw on U.S. domestic law reform efforts to identify new topics for work. Finally, non-government actors could themselves coordinate across the …
Same Old Story, New Solution: Force Majeure Deficiencies In The Wake Of Covid-19 And An Unorthodox Approach To Drafting It, Steven H. Dovi
Same Old Story, New Solution: Force Majeure Deficiencies In The Wake Of Covid-19 And An Unorthodox Approach To Drafting It, Steven H. Dovi
Brooklyn Journal of Corporate, Financial & Commercial Law
On January 20, 2020, the Centers for Disease Control and Prevention reported the first laboratory-confirmed case of the 2019 Novel Coronavirus (COVID-19) on American soil.[1] On March 8, 2021—more than a year later—the United States District Court for the Southern District of New York decided Gap v. Ponte Gadea New York.[2] It ruled, inter alia, that the COVID-19 pandemic, in keeping with the relevant provision’s narrow tailoring, did not amount to a force majeure event and a defense to breach.[3] While seemingly one of the first decisions of its kind in the Southern District, this Note argues that the holding …
Entire Fairness Or Bust: The Burst Of The 2020-2021 Spac Bubble, Nicole Lynch
Entire Fairness Or Bust: The Burst Of The 2020-2021 Spac Bubble, Nicole Lynch
Brooklyn Journal of Corporate, Financial & Commercial Law
Special Purpose Acquisition Companies (SPACs) have skyrocketed in recent years as an alternative for taking private companies public through an initial public offering (IPO). SPACs are blank-check companies that raise capital through public exchanges for the “special purpose” of acquiring a privately held company. Once acquired, the private company will take the SPAC’s place on the public exchange, effectively accomplishing the same thing as a traditional IPO but without all the onerous reporting requirements and upfront costs. For these reasons, SPACs have become the next big thing in securities markets despite being around since the 1990s. Throughout 2020 and 2021, …
Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
The Internet Is For Porn…Or Is It? Fair Access To Financial Services And The Need For Onlyporn Legislation, Emily Pollak
The Internet Is For Porn…Or Is It? Fair Access To Financial Services And The Need For Onlyporn Legislation, Emily Pollak
Brooklyn Journal of Corporate, Financial & Commercial Law
Historically, the pornography industry has been the target of countless attempts to delegitimize sex work, but it still endures as a legal industry. Nevertheless, financial service providers such as banks and third-party payment processors have circumvented providing the industry fair access to their services, under vague pretexts such as reputational risk. While porn is not the only marginalized industry affected by unfair treatment from financial service providers, it is among the most targeted. This note gives context to this issue and provides that access to the global marketplace should not be limited by financial institutions functioning as de facto legislators, …
Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck
Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger
Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
The “Second” Restatements and the Uniform Commercial Code have shaped the sensibility of lawyers and law students for the last half century. Both projects were anti-formal at their core, articulating pragmatic principles to guide judicial decision making without necessarily determining the outcome. Recent jurisprudence interpreting the Restatements, as well as efforts to update both sets of instruments, have taken a formalist turn. As examples, this essay will consider judicial interpretations of § 402A of the Restatement (Second) of Torts where internet platforms like Amazon are involved. Then it will consider the tortured and recently concluded experience in connection with the …
Failed Efforts At Harmonization Of Securities Regulation, Roberta S. Karmel
Failed Efforts At Harmonization Of Securities Regulation, Roberta S. Karmel
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article is based on a speech made by Professor Karmel at the Brooklyn Journal of Corporate, Financial, & Commercial Law annual symposium in May 2022 titled “Commercial Law Harmonization: Past as Prologue,” analyzing the work done in the past half-century to balance commercial law. The symposium also celebrated the career of Neil B. Cohen of Brooklyn Law School for his teaching and participation in law reform efforts.
Achieving Law Reform Sometimes Requires A Strong Defense, William H. Henning
Achieving Law Reform Sometimes Requires A Strong Defense, William H. Henning
Brooklyn Journal of Corporate, Financial & Commercial Law
In 2019, a joint drafting committee authorized by the Uniform Law Commission and the American Law Institute began work on a sweeping set of amendments to the official text of the Uniform Commercial Code (UCC) that address issues arising from emerging technologies. The amendments were approved by the sponsoring organizations at their 2022 annual meetings, and efforts are already underway to gain uniform nationwide enactment by state legislatures. The most significant changes to the UCC consist of a new Article 12 dealing with digital assets and amendments to Article 9 that facilitate the leveraging of these assets. Also in 2019, …
Flow Of Commerce, Flow Of Traffic, Carl S. Bjerre
Flow Of Commerce, Flow Of Traffic, Carl S. Bjerre
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
The Development Of The American “Security Interest” And Its Effect On The International Harmonization Of Security Rights, Henry Gabriel
The Development Of The American “Security Interest” And Its Effect On The International Harmonization Of Security Rights, Henry Gabriel
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
The Uncitral Model Law And Secured Transactions Law Reform, Louise Gullifer
The Uncitral Model Law And Secured Transactions Law Reform, Louise Gullifer
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Standing In The Ether: Constitutional Standing In Data Breach Cases After Mcmorris, Andrew Ridge
Standing In The Ether: Constitutional Standing In Data Breach Cases After Mcmorris, Andrew Ridge
Brooklyn Journal of Corporate, Financial & Commercial Law
For some time, circuit courts have been ostensibly divided over the power of plaintiffs to maintain claims for injuries sustained from data breaches based merely on an increased risk of injury. However, in McMorris v. Carlos Lopez & Assocs., LLC, 995 F.3d 295 (2d Cir. 2021), the Second Circuit denied the existence of the circuit split, instead contending that its three-factor balancing test for determining standing for risk of future injury in data breach cases could be reconciled with the positions of both clusters of circuits. The three factors are “(1) whether the plaintiffs’ data has been exposed as the …
The Dark Side Of E-Commerce: The Negative Effects Of E-Commerce On The Environment, Flora Ho
The Dark Side Of E-Commerce: The Negative Effects Of E-Commerce On The Environment, Flora Ho
Brooklyn Journal of Corporate, Financial & Commercial Law
E-commerce has many advantages for both consumers and sellers, but its process has taken a toll on the environment. In this Note, I discuss two integral aspects of the e-commerce process that contribute to climate change: (1) air pollution from delivery vehicles, and (2) the use of non-sustainable packaging. I will provide insight into the U.S. environmental laws currently in place that regulate greenhouse gas emissions and other contributors to climate change, such as the Clean Air Act and the Solid Waste Disposal Act, while highlighting how these laws are minimal at best. I argue that the U.S. government should …
Third Time’S The Charm: Remedying The Lack Of Uniformity And Predictability In Trade Secret Law, Matthew D. Kasner
Third Time’S The Charm: Remedying The Lack Of Uniformity And Predictability In Trade Secret Law, Matthew D. Kasner
Brooklyn Law Review
The current legal framework governing trade secrets in the United States lacks the uniformity and predictability necessary to protect businesses. As a result, trade secret litigation has been on the rise over the course of the last decade. Whilst remote work becomes more ubiquitous, even beyond the COVID-19 pandemic, litigation will continue to increase as businesses are forced to entrust confidential information with remote workers. This note examines the current US trade secret scheme, exposes the current framework’s deficiencies, and suggests a “trade secret formalities model” to make for a more organized and efficient doctrine of law. More specifically, this …
The Coming Shift In Shareholder Activism: From “Firm-Specific” To “Systematic Risk” Proxy Campaigns (And How To Enable Them), John C. Coffee, Jr.
The Coming Shift In Shareholder Activism: From “Firm-Specific” To “Systematic Risk” Proxy Campaigns (And How To Enable Them), John C. Coffee, Jr.
Brooklyn Journal of Corporate, Financial & Commercial Law
This article distinguishes two types of shareholder activism: (1) firm-specific activism, which has a long history and focuses on changes at a specific target company, and (2) systematic risk activism, which seeks to reduce the systematic risk in a portfolio and thereby benefit diversified investors. Typically, such a systematic risk campaign may force a portfolio company to internalize negative externalities to benefit the other companies in the portfolio (such as by reducing carbon emissions or undertaking climate risk reforms). But, systematic risk activism faces an inherent difficulty: the party that leads this campaign and invests in the target company may …
An Analysis Of The Patent Linkage System And Development Of The Biosimilar Industry In Taiwan, Jerry I-H Hsiao
An Analysis Of The Patent Linkage System And Development Of The Biosimilar Industry In Taiwan, Jerry I-H Hsiao
Brooklyn Journal of International Law
In 2019, as an effort to join the Trans-Pacific Partnership (TPP) Agreement (now Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)), Taiwan has implemented the patent linkage system which covers both small molecule generic drugs and large molecule biosimilar into the Pharmaceutical Affair Act. The system modeled after the U.S.’s patent linkage system designed for small molecule drugs under the Hatch Waxman Act (HWA). Based on the experience of the patent linkage system under the HWA, biosimilar industry representatives in Taiwan contended that the adoption of the patent linkage system will be detrimental to the development of local industry. By …
Personal Insolvency In China: Necessities, Difficulties, And Possibilities, Rebecca Parry, Haizheng Zhang, Jiahui Fu
Personal Insolvency In China: Necessities, Difficulties, And Possibilities, Rebecca Parry, Haizheng Zhang, Jiahui Fu
Brooklyn Journal of International Law
There has long been demand for personal insolvency laws in China, yet such laws have hitherto been unavailable, in part due to ideological resistance. In more recent years there has been an increase in borrowing by individuals, which has led to increased calls for honest but unfortunate debtors to be able to obtain a fresh start. Yet there is significant public mistrust of defaulting debtors and in particular there is a shadow cast by those termed the Lao Lai that has led many to question the desirability of such a reform. There has also been a need for change in …
Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel
Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel
Brooklyn Law Review
Corpus linguistics presents an exciting tool for improving interpretation of documentary language. But it would be a mistake to overvalue the tool or to use it as grounds for ejecting consideration of other data from the interpretative task. While properly operationalized corpus linguistics analysis represents an advancement over traditional textualism, it remains subject to the same problems that plague excessively rigid textualism that refuses to give consideration to contextual evidence of meaning. To be most effective in achieving accurate and just interpretative results, corpus linguistics, like traditional reading of documentary language, requires context. This includes not only the context of …
A Rejection Of Absolutist Duties As A Barrier To Creditor Protection: Facilitating Directorial Decisivness Surrounding Insolvency Through The Business Judgment Rule, Philip Gavin
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article draws attention to the difficulties that directors may face when seeking to discharge their duties as a corporation approaches insolvency, in particular when directors must discern the point at which a corporation has become insolvent. It argues that discretion allowed to directors by the business judgment rule will be crucial to overcoming these difficulties. To do this, this article examines the nature of duties owed by directors both before and after insolvency, and accepts the stance taken by Delaware courts in recent years towards an expansive understanding of a corporation’s interests upon insolvency. It then considers unresolved issues …