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Brooklyn Law School

2021

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Full-Text Articles in Law

A Call To Replace The Apa’S Notice-And-Comment Exemption For Guidance Documents, Crystal M. Cummings Dec 2021

A Call To Replace The Apa’S Notice-And-Comment Exemption For Guidance Documents, Crystal M. Cummings

Brooklyn Law Review

Section 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note …

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Putting A Finger On Biometric Privacy Laws: How Congress Can Stitch Together The Patchwork Of Biometric Privacy Laws In The United States, Eliza Simons Dec 2021

Putting A Finger On Biometric Privacy Laws: How Congress Can Stitch Together The Patchwork Of Biometric Privacy Laws In The United States, Eliza Simons

Brooklyn Law Review

The use of biometric identification in the consumer industry has grown immensely over the last decade and is projected to continue growing at an even faster rate. As private entities abandon password-based security systems and opt for the more secure, convenient, and cost-effective method of using biometric data, individuals are worried how that information will be protected. Although the right to privacy has always been valued in the United States, Congress has yet to specifically address biometric privacy. This note sets the legal landscape of privacy law, through the lens of biometric privacy, by surveying four categories of privacy law: …

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Section 230 And The Problem Of Social Cost, Stanley M. Besen, Philip L. Verveer Dec 2021

Section 230 And The Problem Of Social Cost, Stanley M. Besen, Philip L. Verveer

Journal of Law and Policy

This Article employs, with certain modifications, the framework developed in Ronald Coase’s classic article, “The Problem of Social Cost,” to analyze the current debate over Section 230 of the Communications Decency Act. This provision absolves interactive computer services, also known as platforms, from liability when they disseminate materials that cause “harm” to third parties, “harm” that can take the form of compensable damage of a sort found in ordinary tort cases but also can include broader injuries to social order and cohesion in the form of such things as hate speech and misinformation. The Article begins by pointing out that, …

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The Patient Assistance Problem, Daniel O’Brien Lichtenauer Dec 2021

The Patient Assistance Problem, Daniel O’Brien Lichtenauer

Journal of Law and Policy

Implemented in January 2006 as a voluntary enrollment supplement to standard Medicare plans, Medicare Part D coverage subsidizes the cost of prescription drugs for participants. However, significant gaps in coverage exist for those suffering from rare diseases that require costly drugs. Pharmaceutical companies seek to remove the powerful market force of patient price sensitivity by directly sponsoring or substantially funding “patient assistance programs” that help cover out-of-pocket costs. While pharmaceutical donors insist that their goal is strictly altruistic, the reality is that many of these programs offer a financial windfall for drug makers because they help funnel patients towards new …

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Big Dreams And Pyramid Schemes: The Ftc’S Path To Improving Multi-Level Marketing Consumer Protections In Light Of Amg Capital Management And The 2016 Herbalife Settlement, Camille H. Mangiaratti Dec 2021

Big Dreams And Pyramid Schemes: The Ftc’S Path To Improving Multi-Level Marketing Consumer Protections In Light Of Amg Capital Management And The 2016 Herbalife Settlement, Camille H. Mangiaratti

Journal of Law and Policy

Multi-level marketing, also known as “MLM,” is a type of sales business that relies on both sales to consumers and recruitment of sellers into the company’s tiered commission structure. MLMs are wildly and enduringly popular, especially because they claim to be a flexible and easy source of income for people who need it most. However, almost everyone who joins an MLM will lose money, and many MLMs are illegal pyramid schemes. Millions of Americans are harmed by MLMs every year. Despite this, the government does very little to punish MLMs who lie to prospective participants about their odds of success. …

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Remedies For Government Breach: Lessons From The United States And A Zone Of Appealable Remedies For Southeast Asia, Benjamin D. Black Dec 2021

Remedies For Government Breach: Lessons From The United States And A Zone Of Appealable Remedies For Southeast Asia, Benjamin D. Black

Brooklyn Law Review

Though international investment treaties may supplant domestic contract law in cross-border government contracts, their limited use in Southeast Asia informs the continued importance of clear remedies for a government breach of contract under domestic law. As investment from China’s Belt and Road Initiative continues to flow into the region, private parties require clear rules and remedies when a government breaches a contract. This note argues that the lack of clear and codified public contract law in Southeast Asia presents a substantial risk to private contractors and that the extreme variance in public contract law is detrimental to both parties involved. …

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The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev Dec 2021

The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev

Journal of Law and Policy

In this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One …

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On The Outer Reaches Of The Marketplace Of Ideas: The Weaponization Of Title Vi Against Palestinian College Activists, Gavriella Fried Dec 2021

On The Outer Reaches Of The Marketplace Of Ideas: The Weaponization Of Title Vi Against Palestinian College Activists, Gavriella Fried

Journal of Law and Policy

On U.S. college campuses, Palestinian rights activists who are critical of Israel risk legal consequences. Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, or national origin in any program receiving federal funds. Over the past two decades, at least eighteen Title VI complaints have been filed against U.S. colleges and universities, alleging that Palestinian rights activists’ political expression is a form of anti-Semitism. In December 2019, President Trump promulgated Executive Order 13,899, which formally extended Title VI protections to Jews and directed enforcement agencies to investigate allegations of anti-Semitism using guidance that includes …

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Redefining The Safe Third Country Exception Of The Immigration And Nationality Act In The Wake Of Trump, Daniel E. Rabbani Dec 2021

Redefining The Safe Third Country Exception Of The Immigration And Nationality Act In The Wake Of Trump, Daniel E. Rabbani

Brooklyn Law Review

The U.S. Immigration and Nationality Act lays out when an asylum seeker has the right to apply for asylum in the United States. This right is not available, however, when an asylum seeker passes through a designated Safe Third Country. A Safe Third Country is an internationally used concept that, pursuant to an international agreement, requires refugees to seek asylum in the first safe country that they step foot in. As the Safe Third Country exception on the Immigration and Nationality Act stands now, there are no guidelines on how to evaluate whether a country is in fact safe. This …

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An Analysis Of The Patent Linkage System And Development Of The Biosimilar Industry In Taiwan, Jerry I-H Hsiao Dec 2021

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 …

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The Case For An International Solution To The Restitution Of Cultural Property: Morality, Legality And Righting Western Wrongs, Ariana Catarisano Dec 2021

The Case For An International Solution To The Restitution Of Cultural Property: Morality, Legality And Righting Western Wrongs, Ariana Catarisano

Brooklyn Journal of International Law

In 2020, the conversation surrounding the return of cultural property acquired during the colonial era was given new life after the world watched as Black Lives Matter activists exposed systemic racial injustice in the United States. Thousands of objects currently sit in western museums under the guise of sharing these cultures and civilizations with the world, but this brings little comfort to communities suffering the genocidal consequences of colonialism. As formerly colonized nations battle the western world for the return of their cultural property, success is often dictated by a combination of power, money, and the ability to turn the …

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Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker Dec 2021

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

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Copystrikes And Meme Bans: Social Media And Copyright Protections In The Digital Age, Angelina Sanchez Dec 2021

Copystrikes And Meme Bans: Social Media And Copyright Protections In The Digital Age, Angelina Sanchez

Brooklyn Journal of International Law

Social media is a pervasive and ever-present aspect of many peoples’ lives. Its use permeates nearly every aspect of our existence – there truly is an app for everything. Most notably, social media operates internationally both in scope and usage allowing for the creation of an astounding global society that shares cultures and perspectives in a way unprecedented in human history. Never before have societies been as interconnected as they are now. Unfortunately, such interconnectedness comes with the issue of globalizing enforcement of copyright laws. Infringement runs rampant online and forces creators to struggle against a seemingly faceless foe in …

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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 …

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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 …

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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 …

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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 …

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A Firm Pillar Of Local Justice: The Failures Of The New York Town And Village Justice Courts Supporting Statewide Adoption Of The District Court Model, Noah Sexton Jun 2021

A Firm Pillar Of Local Justice: The Failures Of The New York Town And Village Justice Courts Supporting Statewide Adoption Of The District Court Model, Noah Sexton

Journal of Law and Policy

Town and village justice courts have been the center of municipal law, both civil and criminal, since the mid-nineteenth century. However, in the modern world, they have become corrupt, poorly managed institutions, creating issues involving procedural integrity and civil rights. In order to remedy these failures and modernize the New York State Unified Court System, state legislators must look to the district court model as it currently exists in Nassau and Eastern Suffolk Counties. The district court model offers several benefits, including the imposition of educational and experiential requirements for judges, the creation of internal and external oversight institutions, the …

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“A Dollar Ain’T Much If You’Ve Got It”: Freeing Modern-Day Poll Taxes From Anderson-Burdick, Lydia Saltzbart Jun 2021

“A Dollar Ain’T Much If You’Ve Got It”: Freeing Modern-Day Poll Taxes From Anderson-Burdick, Lydia Saltzbart

Journal of Law and Policy

How much should it cost to vote in the United States? The answer is clear from the Supreme Court’s landmark opinion in Harper v. Virginia State Board of Elections—nothing. Yet more than fifty years later, many U.S. voters must jump over financial hurdles to access the franchise. These hurdles have withstood judicial review because the Court has drifted away from Harper and has instead applied the more deferential Anderson-Burdick analysis to modern poll tax claims—requiring voters to demonstrate how severely the cost burdens them. As a result, direct and indirect financial burdens on the vote have proliferated. Millions of voters …

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Business Interruption Insurance In The Time Of Covid-19: Who Should Foot The Bill?, Paul Mchugh Jun 2021

Business Interruption Insurance In The Time Of Covid-19: Who Should Foot The Bill?, Paul Mchugh

Journal of Law and Policy

COVID-19-related business closures led to thousands of business interruption insurance claims and lawsuits across the country. However, throughout the history of business interruption policies, obstacles such as virus exclusions and “physical damage” requirements have been added in response to prior pandemics and catastrophic losses. These exclusions and requirements have led to many hurdles and outright denials for those seeking payment on their policies. So, then, can business owners still find some economic refuge in these policies? Despite outright denials in many courts, at least a handful of federal judges as well as a number of members of Congress seem to …

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