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2017

Brooklyn Law School

Brooklyn Law Review

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Articles 1 - 30 of 34

Full-Text Articles in Law

Paradoxes Of “Decarbonization”, David B. Spence Jan 2017

Paradoxes Of “Decarbonization”, David B. Spence

Brooklyn Law Review

Scholars and policymakers continue to debate the shape of a post-carbon world, and how fast the United States can “decarbonize” its energy sector. Recent trends—including the reduced costs of renewables, regulatory and market pressure on coal-fired power, and successful integration of large amounts of wind power into the grid—have fed optimism about the possibility of rapid and “deep” decarbonization. Unfortunately, however, encouraging ever-more substitution of renewables for fossil fuels creates unintended consequences—paradoxes—that stem in part from two sometimes unavoidable and under-appreciated truths. First, the three attributes we value in the electricity system—cost, reliability and environmental performance—are in tension with one …

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Breaking Energy Path Dependencies, Amy L. Stein Jan 2017

Breaking Energy Path Dependencies, Amy L. Stein

Brooklyn Law Review

Of the many barriers to clean energy development discussed in the literature, the power of the status quo is not normally one of them. Yet beyond the need for more transmission lines, the need to decouple electricity sales from revenue, or the need to amend our environmental laws to more fully capture the externalities of energy, efforts to develop clean energy are faced with over a century of institutional “stickiness” associated with the legal and regulatory framework governing energy. This article explores how path dependency theories can inform the practical legal efforts to overcome such stickiness, identifying the troublesome approaches …

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The Political Economy Of Decarbonization: A Research Agenda, Eric Biber, Nina Kelsey, Jonas Meckling Jan 2017

The Political Economy Of Decarbonization: A Research Agenda, Eric Biber, Nina Kelsey, Jonas Meckling

Brooklyn Law Review

Addressing climate change entails daunting policy challenges for nations seeking to decarbonize their energy systems. Current policies are inadequate to achieve the necessary reductions in greenhouse gas emissions in major part because of political resistance to more aggressive policies. Academic policy research to date has primarily focused on what policies are economically optimal, or on what is politically feasible in the short-term. But given the long-term nature of the problem and the scale of the policy challenges, an essential question is how to improve the political landscape for aggressive climate policies over time. In this paper we outline a research …

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Field Of Visions: Interorganizational Challenges To The Smart Energy Transition In Washington State, Scott Frickel, Daniela Wühr, Christine Horne, Meghan Elizabeth Kallman Jan 2017

Field Of Visions: Interorganizational Challenges To The Smart Energy Transition In Washington State, Scott Frickel, Daniela Wühr, Christine Horne, Meghan Elizabeth Kallman

Brooklyn Law Review

The smart grid promises an efficient, reliable, and sustainable energy system. Smart meters provide machine-to-machine communication capacity and are key elements of the smart grid. Smart meters allow utilities to improve system efficiency and reliability and allow electricity users to closely monitor, fine-tune, and reduce energy consumption and costs. For these and other reasons, positive expectations for the smart grid and smart meters run high among policymakers, regulators, engineering and computer science professionals, industrialists, environmentalists, and others. Even so, different organizations and stakeholders define and understand the technology in different ways. For some actors smart meters are a tool for …

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Climate Change And Legitimate Governance: Land Use And Transportation Law And Policy In California, Thomas D. Beamish, Ryken Grattet, Debbie Niemeier Jan 2017

Climate Change And Legitimate Governance: Land Use And Transportation Law And Policy In California, Thomas D. Beamish, Ryken Grattet, Debbie Niemeier

Brooklyn Law Review

The primary challenge of addressing climate change lies in it requiring a rethinking and even reorganization of fundamental societal institutions that define much of contemporary life. In this paper, we examine an innovative effort to address climate change through regional land-use and transportation policy. We focus on the activities of a Metropolitan Planning Organization (MPO)—a novel governance structure that coordinates transportation funding between federal, state, and local governments. In 2008, the California senate mandated that the state’s seventeen MPOs implement the Sustainable Communities Strategies Act (SB 375), an effort to align transportation and land-use planning with the state’s ambitious Global …

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Grassroots Innovation Systems For The Post-Carbon World: Promoting Economic Democracy, Environmental Sustainability, And The Public Interest, Shobita Parthasarathy Jan 2017

Grassroots Innovation Systems For The Post-Carbon World: Promoting Economic Democracy, Environmental Sustainability, And The Public Interest, Shobita Parthasarathy

Brooklyn Law Review

This article uses a sociotechnical systems approach to advocate for an alternative way of thinking about the role of innovation in international development efforts, specifically those focused on environmental sustainability and a post-carbon world. This approach views technology and society as inextricably linked, highlighting how particular values, norms, individual rights and responsibilities, social practices and relationships, and aspects of political culture are embedded in the design, development, implementation, and use of technology. Using the example of clean cookstoves, this article argues that technologies customarily deployed to achieve international development goals are embedded in particular values, assumptions, and social structures that …

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Fairness In The Low-Carbon Shift: Learning From Environmental Justice, Uma Outka Jan 2017

Fairness In The Low-Carbon Shift: Learning From Environmental Justice, Uma Outka

Brooklyn Law Review

This article looks to the environmental justice movement for how it can inform the current transitional moment in the energy sector. As policy and market forces solidify a low-carbon trajectory, this article argues there is a unique and time-sensitive context for justice concerns in the energy transition. The decades-long failure to substantiate legal protections for environmental justice underscores the importance of building into legal structures as they emerge in the evolving energy regulatory landscape. Change is happening quickly and discordant notions of fairness are competing for validation in the energy policy space. This article highlights examples of competing fairness claims …

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Domestic Violence Law, Abusers’ Intent, And Social Media: How Transaction-Bound Statutes Are The True Threats To Prosecuting Perpetrators Of Gender-Based Violence, Megan L. Bumb Jan 2017

Domestic Violence Law, Abusers’ Intent, And Social Media: How Transaction-Bound Statutes Are The True Threats To Prosecuting Perpetrators Of Gender-Based Violence, Megan L. Bumb

Brooklyn Law Review

The rapid expansion of social media has brought with it a new platform for perpetrators of domestic violence to assert power and control over their victims. The statutes presently used to prosecute abusers fail to protect victims from social media threats and to punish abusers for making those threats. Using the Supreme Court’s 2015 decision in Elonis v. United States, this note proposes a straightforward solution to a multifaceted problem—how to better protect victims of domestic violence from social media threats while maintaining abusers’ First Amendment rights. The answer is not mere clarification of the true threat doctrine; it is …

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Finally, A True Elements Test: Mathis V. United States And The Categorical Approach, Rebecca Sharpless Jan 2017

Finally, A True Elements Test: Mathis V. United States And The Categorical Approach, Rebecca Sharpless

Brooklyn Law Review

The fate of defendants facing lengthy federal sentence enhancements often turns on what the U.S. Supreme Court calls the categorical approach. The approach controls whether a federal defendant might face an additional decade or longer in prison based solely on having prior convictions of a certain type. At a time when many question the wisdom of mass incarceration, the Court has taken great care to delimit the circumstances in which a federal sentencing judge can lengthen sentences based on recidivism. The categorical approach also governs most immigration cases involving deportation for a crime. As Congress has cut back deportation defenses …

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Clicks And Tricks: How Computer Hackers Avoid 10b-5 Liability, Ryan H. Gilinson Jan 2017

Clicks And Tricks: How Computer Hackers Avoid 10b-5 Liability, Ryan H. Gilinson

Brooklyn Law Review

This note argues that computer hackers who sell inside information instead of trading on it themselves, referred to in the note as hacker-sellers, avoid liability under Section 10(b) of the Securities Exchange Act and SEC Rule 10b-5. Rule 10b-5 criminalizes the use of a manipulative or deceptive device “in connection with the purchase or sale of any security.” Hacker-sellers fall outside the scope of this rule for two reasons. First, the type of hacking employed by hacker-sellers is not always “deceptive,” and only the forms of hacking which deceive the computer into thinking an authorized user is seeking access are …

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“Lucky” Adnan Syed: Comprehensive Changes To Improve Criminal Defense Lawyering And Better Protect Defendants’ Sixth Amendment Rights, Meredith J. Duncan Jan 2017

“Lucky” Adnan Syed: Comprehensive Changes To Improve Criminal Defense Lawyering And Better Protect Defendants’ Sixth Amendment Rights, Meredith J. Duncan

Brooklyn Law Review

Almost twenty years ago, seventeen years old and accused of murder, Adnan Syed was deprived of his Sixth Amendment right to the effective assistance of counsel at trial and sentenced to life in prison. The reality is that Syed is just another casualty of the criminal justice system’s tolerance of poor defense lawyering. The substandard quality of legal representation highlighted in Syed’s case continues to harm countless defendants nationwide, and the promise of effective assistance of counsel for the accused remains unfulfilled due to a combination of factors. This article suggests comprehensive changes to certain aspects of the criminal justice …

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Wearables And Personal Health Data: Putting A Premium On Your Privacy, Alexandra Troiano Jan 2017

Wearables And Personal Health Data: Putting A Premium On Your Privacy, Alexandra Troiano

Brooklyn Law Review

Recently, insurance companies have gained greater insight into their policyholders’ health habits by incentivizing them to take steps towards a healthier lifestyle through the use of wearable devices. This note addresses the recent trend of insurance companies that offer discounts to policyholders who use Fitbits, or other wearable wristbands, to track and report health information. At first glance, this idea seems like a win-win for insurance companies and policyholders–insurance companies can reduce risk by encouraging healthier habits for their policyholders, and policyholders receive discounts on their health insurance. Despite this synergy, however, this type of program threatens personal privacy, particularly …

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Reevaluating Attorney-Client Privilege In The Age Of Hackers, Anne E. Conroy Jan 2017

Reevaluating Attorney-Client Privilege In The Age Of Hackers, Anne E. Conroy

Brooklyn Law Review

The news story is now familiar: hackers breach a security system and post internal, confidential information online for anyone with an Internet connection to comb through. This digital version of whistleblowing, called “hacktivism,” is attractive to the media, which has leaned on broad First Amendment protections to widely cover the confidential communications revealed by hackers. These hacks also provide attorneys with enticing opportunities to look through previously confidential files. But as ethics and evidentiary rules stand, it is not clear if an attorney may view the files, let alone use them as evidence in litigation. That companies are hacked is …

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Cannibal Cop Out: The Computer Fraud And Abuse Act, Lenity, Quasi-Strict Liability, Draconian Punishment And A Surgical Solution, Charles S. Wood Jan 2017

Cannibal Cop Out: The Computer Fraud And Abuse Act, Lenity, Quasi-Strict Liability, Draconian Punishment And A Surgical Solution, Charles S. Wood

Brooklyn Law Review

The Second Circuit has recently joined in a longstanding circuit split regarding the interpretation of the phrase “exceeds authorized access” under the Computer Fraud and Abuse Act (CFAA). The split centers around whether an otherwise authorized computer user who violates usage restrictions has exceeded authorized access. In United States v. Valle, the Second Circuit answered the question in the negative. Upon finding the phrase to be ambiguous, the Second Circuit invoked lenity, and therefore narrowly construed their interpretation in the defendant’s favor. This note argues that the Second Circuit was correct to apply lenity as the plain meaning of the …

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Wiping The Slate… Dirty: The Inadequacies Of Expungement As A Solution To The Collateral Consequences Of Federal Convictions, Alexia Lindley Faraguna Jan 2017

Wiping The Slate… Dirty: The Inadequacies Of Expungement As A Solution To The Collateral Consequences Of Federal Convictions, Alexia Lindley Faraguna

Brooklyn Law Review

Criminal justice reform discussions routinely permeate political and societal media forums. Many proponents of reform highlight the concern that significant collateral consequences plague ex-offenders and prohibit them from resuming a meaningful place in society. Specifically, scholars focus on the lack of employment opportunities for ex-offenders as the most salient and detrimental collateral consequence. Some academics argue the expansion of expungement of criminal records would rectify the lack of employment opportunities to this group, and correct the general societal imbalance ex-offenders face. Wiping away an ex-offender’s past transgression is seen as a public act of forgiveness that removes the possibility of …

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Environmental Injustice And The Pursuit Of A Post-Carbon World: The Unintended Consequences Of The Clean Air Act As A Cautionary Tale For Solar Energy Development, Shannon Elizabeth Bell Jan 2017

Environmental Injustice And The Pursuit Of A Post-Carbon World: The Unintended Consequences Of The Clean Air Act As A Cautionary Tale For Solar Energy Development, Shannon Elizabeth Bell

Brooklyn Law Review

Most policy decisions aimed at improving the environment have been conceived and implemented without attention to issues of environmental justice, creating what sociologist Julian Agyeman calls an “equity deficit” in the discourse and practice of environmental sustainability. This article presents the unintended consequences of the Clean Air Act (CAA) and its amendments as a cautionary tale for what can happen when environmental regulations are enacted without adequately considering environmental justice concerns. Although the CAA has been responsible for much good in the United States as a whole—including significant reductions in acid rain and health-harming pollutants—it has also brought significant harm …

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Delaware’S Ban On Fee-Shifting: A Failed Attempt To Protect Shareholders At The Expense Of Officers And Directors Of Public Corporations, Ryan S. Starstrom Jan 2017

Delaware’S Ban On Fee-Shifting: A Failed Attempt To Protect Shareholders At The Expense Of Officers And Directors Of Public Corporations, Ryan S. Starstrom

Brooklyn Law Review

In 2014, the Delaware Supreme Court issued its opinion in ATP Tour, Inc. v. Deutscher Tennis Bund, which held that non-stock Delaware corporations may validly enact fee-shifting provisions in their bylaws and certificate of incorporation. Subsequently, the Delaware Legislature, fearing that the ATP Tour decision would extend to stock corporations, amended Title 8 of the Delaware Code (DGCL) Sections 102(f) and 109(b). These amendments provide for a blanket prohibition of fee-shifting provisions in a Delaware corporation’s certificate of incorporation or bylaws, respectively, in regard to “internal corporate claims.” Such a prohibition eliminates the possibility for a Delaware corporation to enact …

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The Political Process Argument For Overruling Quill, Edward A. Zelinsky Jan 2017

The Political Process Argument For Overruling Quill, Edward A. Zelinsky

Brooklyn Law Review

Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? A careful assessment of the federal political process suggests that the Supreme Court itself should overturn Quill in the Court’s role as guardian of the states against federal commandeering. A combination of factors underlay this conclusion: the tactical advantage that Quill bestows in the political process upon the internet and mail order industries, the importance of the states in the structure of federalism, the centrality of sales taxes to the financing of state government, the severe impediment which Quill and its physical presence test impose upon the collection of …

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Life Cycle Analysis And Transportation Energy, Alexandra B. Klass, Andrew Heiring Jan 2017

Life Cycle Analysis And Transportation Energy, Alexandra B. Klass, Andrew Heiring

Brooklyn Law Review

As government actors and the private sector attempt to decarbonize the economy, the role of life cycle analysis (also know as life cycle assessment or LCA) has become increasingly important. In this essay, we explore the use of life cycle analysis in the transportation sector to assess its influence in federal and state policy efforts to move to a low-carbon energy future. We first define life cycle analysis and explain its use in evaluating the environmental impacts of all stages of a product from production, to use, to disposal. We then review the use of life cycle analysis in considering …

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Stranded Costs And Grid Decarbonizaiton, Emily Hammond, Jim Rossi Jan 2017

Stranded Costs And Grid Decarbonizaiton, Emily Hammond, Jim Rossi

Brooklyn Law Review

Energy law is well equipped to facilitate the transition to a decarbonized grid. Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each transition for the energy system. The current transition to …

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Legal Pathways To Deep Decarbonization: Lessons From California And Germany, John C. Dernbach Jan 2017

Legal Pathways To Deep Decarbonization: Lessons From California And Germany, John C. Dernbach

Brooklyn Law Review

In the December 2015 Paris Agreement, nations of the world agreed to reduce their net greenhouse gas emissions to zero by the second half of the century. For developed countries, accomplishing that goal requires a reduction of carbon dioxide emissions by more than 80% from 1990 levels by 2050. As ambitious and even unachievable as that goal may seem, some developed countries have already made considerable progress in conceptualizing and even adopting legal approaches for achieving decarbonization. This paper describes the approaches being taken in two major developed country jurisdictions—California and Germany—and suggest lessons from that experience that could be …

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Regulation A-Plus’S Identity Crisis: A One-Size-Fits-None Approach To Capital Formation, Zachary Naidich Jan 2017

Regulation A-Plus’S Identity Crisis: A One-Size-Fits-None Approach To Capital Formation, Zachary Naidich

Brooklyn Law Review

This note considers whether, and in what ways, Regulation A-Plus will change how businesses access growth capital. It concludes that Regulation A-Plus is a largely unnecessary addition to the already existing range of funding options. The Regulation is poised to change how firms access capital but is unlikely to increase total access or fundraising. Further, this change is unlikely to promote financial health. The note ultimately concludes that regulators should focus on improving existing mechanisms and not attempt to introduce a new and unnecessary one.

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Pricing Justice: The Wasteful Enterprise Of America's Bail System, Liana M. Goff Jan 2017

Pricing Justice: The Wasteful Enterprise Of America's Bail System, Liana M. Goff

Brooklyn Law Review

This note contributes to the growing national consensus about the need to reduce the population of low-income defendants who are detained pretrial due to their inability to afford bail. It documents the efforts undertaken by certain state actors to mitigate the harmful consequences of wealth-based pretrial systems and critiques the so-called alternatives to cash bail—namely, supervised release programs. This note suggests that lawmakers eliminate the role of finances and incarceration in pretrial procedure altogether and recommends an approach to criminal procedure that is based not only on heuristic methods of measuring cost and benefit but also normative principles of good …

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The Conundrum Of Voluntary Intoxication And Sex, Michal Buchhandler-Raphael Jan 2017

The Conundrum Of Voluntary Intoxication And Sex, Michal Buchhandler-Raphael

Brooklyn Law Review

Research shows that a significant number of sexual assaults occur after victims have consumed an excessive amount of intoxicants, rendering them substantially impaired and incapable of opposing nonconsensual sexual acts. Existing sexual assault statutes mostly criminalize sexual acts with involuntarily intoxicated people, namely when the defendant administered the intoxicants to the victim. Most of these statutes, however, do not directly prohibit sexual intercourse with voluntarily intoxicated victims whose intoxication was self-inflicted. While general prohibitions against sexual intercourse with physically and mentally incapacitated individuals may be used to prosecute sexual assaults of intoxicated victims, they offer only an incomplete solution to …

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Fueling The Terrorist Fires With The First Amendment: Religious Freedom, The Anti-Lgbt Right, And Interest Convergence Theory, Kyle C. Velte Jan 2017

Fueling The Terrorist Fires With The First Amendment: Religious Freedom, The Anti-Lgbt Right, And Interest Convergence Theory, Kyle C. Velte

Brooklyn Law Review

This article argues that there is a connection between formal equality for LGBT Americans and the United States’ foreign policy and national security interests. It makes that connection utilizing Professor Derek Bell’s interest convergence paradigm. It argues that the new agenda of the American Religious Right is one that seeks to assert quasi-theocratic and anti-Establishment positions in litigation as well as in its promulgation of anti-LGBT laws. This agenda is cloaked in the garb of “religious freedom,” but the Religious Right’s definition of “religious freedom” is one that runs counter to our long-standing understanding of that principle as one that …

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Property As A Management Institution, Lynda L. Butler Jan 2017

Property As A Management Institution, Lynda L. Butler

Brooklyn Law Review

The institution of property serves an important management function for society, guiding the use of resources among its members by delegating to the owner the power to decde how and when to use a resource. Under the dominant American approach, this delegation involves recognizing broad decision-making powers in the individual property owner. Grounded in an exclusion-based view of property, the dominant approach recognizes each property owner as a gatekeeper, with important in rem rights that bind all others—even those not in a direct relationship with the owner. Over time, courts and other lawmakers have developed doctrines and rules of law …

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Who Let The Dogs Out—And While We’Re At It, Who Said They Could Sniff Me?: How The Unregulated Street Sniff Threatens Pedestrians’ Privacy Rights, Jacey Lara Gottlieb Jan 2017

Who Let The Dogs Out—And While We’Re At It, Who Said They Could Sniff Me?: How The Unregulated Street Sniff Threatens Pedestrians’ Privacy Rights, Jacey Lara Gottlieb

Brooklyn Law Review

The Fourth Amendment affords United States citizens the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Throughout the last two centuries, the Supreme Court has developed extensive case law that has created a somewhat formulaic approach to determining whether one’s Fourth Amendment rights have been violated—namely, the “reasonable expectation of privacy” test. The Court has applied this test to afford the home, vehicle, airport, and the pedestrian all varying levels of privacy rights, and has upheld most of these respective levels of privacy in the context of the police canine sniff. The …

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An Exception To The Derivative Rule: Allowing Mutual Fund Investors To Bring Suits Directly, Jamie D. Kurtz Jan 2017

An Exception To The Derivative Rule: Allowing Mutual Fund Investors To Bring Suits Directly, Jamie D. Kurtz

Brooklyn Law Review

Mutual funds differ greatly from traditional corporations in the way they are formed and operated. Despite these differences, courts apply the same rules for derivative shareholder litigation to both types of entities. While these rules make sense and were mostly created with corporations in mind, courts have generally been unwilling to consider mutual funds’ unique characteristics in determining whether to allow direct litigation from shareholders. This note explores those unique characteristics and the usual policy reasons for requiring derivative litigation. It concludes that in most cases these unique characteristics make a derivative suit nearly impossible to sustain. Further, the normal …

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“Big Brother” In The Private Sector: Privacy Threats Under The Faa’S New Civilian Drone Regulations, Sean M. Nolan Jan 2017

“Big Brother” In The Private Sector: Privacy Threats Under The Faa’S New Civilian Drone Regulations, Sean M. Nolan

Brooklyn Law Review

The Federal Aviation Administration’s (FAA) recent promulgation of civilian drone regulations triggered the growth of a new consumer industry. As this industry grows, so do the privacy threats it presents. Drones with advanced technological capabilities can record and store a wide range of data, without the consent of the data’s source. Privileged information captured by drones—whether for innocent purposes or not—is in turn vulnerable to misappropriation, as civilian drones are far from hack-proof. Despite the likely privacy implications of large-scale drone legalization, the FAA’s new regulations do not include any privacy protections. This note provides a criticism of the FAA’s …

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The Community Politics Of Domestic Violence, Deborah M. Weissman Jan 2017

The Community Politics Of Domestic Violence, Deborah M. Weissman

Brooklyn Law Review

Gender violence has long been identified as a crisis of epidemic proportions that defies facile solution. Despite decades of intellectual and practical engagement, law reform, and notwithstanding increased social services and public health interventions, the rates of gender violence have not appreciably declined. The field of domestic violence advocacy is itself in a crisis, and it has been difficult to discern the best way forward. Reliance on the criminal justice system has tended to fracture the domestic violence movement even as it marginalized itself from disenfranchised populations. This article offers a case study of an incident that occurred between the …

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