Law Commons^™

What Should Caremark Encompass?, Claire A. Hill, Zohreh Zakiani

Brooklyn Journal of Corporate, Financial & Commercial Law

Under In re Caremark Int’l Inc. Derivative Litig., decided in 1996, directors are required to oversee corporate compliance and can be liable for breaching their fiduciary duties if their oversight efforts do not suffice. Since it was decided, Caremark has been very influential, notwithstanding its high bar to liability. Notably, its influence far exceeds the actual probability that directors would be found liable under the doctrine. Instead, much of Caremark’s force is “soft,” through extra-legal mechanisms such as norms and pressures from various constituencies. Caremark clearly covers oversight for violations of law or regulation. But what, beyond those two things, …

Regulating Compliance Officers, Jennifer M. Pacella

Brooklyn Journal of Corporate, Financial & Commercial Law

Compliance officers are currently an unregulated body and, unlike the legal profession, are not subject to any particular set of professional guidelines that guide their behavior. The lack of a distinct compliance officer profession creates risks relating to heightened potential personal liability and the possibility of merging with another profession that is not exactly compatible with the compliance function. To mitigate these risks, this Article proposes the creation of a professional regulatory system for compliance officers that is industry-specific and self-regulated and discusses the various benefits that would stem from such a system.

Data Scraping For Generative Ai—To What Extent?, Jae Yeon Cecilia Kim

Brooklyn Journal of Corporate, Financial & Commercial Law

Generative AI platforms are developed by scraping data from other platforms. This raises complex copyright infringement issues that are yet to be resolved. Courts have attempted to address these problems using the fair use doctrine, which evaluates four factors to determine whether a use infringes on copyright: (1) the purpose and character of the use, (2) the nature of the use, (3) the amount and substantiality of the copyrighted work’s use, and (4) the impact of the use on the market for the original work. Despite efforts to apply this long-established doctrine, challenges persist, including difficulties in identifying the copyright …

A Call For Statutory Reform: Online Marketplaces That Profit From Product Sales Should Be Held Strictly Liable As Sellers, Mark Anderson

Brooklyn Journal of Corporate, Financial & Commercial Law

Today, Americans purchase roughly 16% of all consumer goods through online marketplaces such as Amazon. While traditional brick-and-mortar retailers that sell defective products are strictly liable for harm caused by those products, online marketplace retailers, which serve analogous roles in defective product sales, can often evade liability entirely. Amazon, for instance, is immune from liability for product defects in more than 60% of sales conducted on its website in almost every state. This Note explains why online marketplaces that profit from defective product sales should be strictly liable for harm those products cause, and why courts often refuse to hold …

How Sovereign Wealth Investment May Fail To Enter The United States Sports Market: Investigating The Governance Restricting Sportswashing, Zachary J. Braverman

Brooklyn Journal of Corporate, Financial & Commercial Law

In recent years, the world of sports has been disrupted by foreign nations engaging in human rights violations, masking their wrongdoings through sport-related investments. This practice, referred to as “sportswashing,” has negative impacts on both the sports industry at large and the individual victims whose suffering is perpetuated. Currently, there is no direct legislation preventing foreign investors from taking over sports franchises in the United States. However, the Committee on Foreign Investment in the United States, the United Nations, and sports leagues’ private regulations, each provide means to resist sportswashing. This Note analyzes the problem of sportswashing, the existing framework …

Nil: How Third-Party Businesses Exploit Collegiate Student-Athletes With Impunity, Matthew Glogower

Brooklyn Journal of Corporate, Financial & Commercial Law

While there are numerous state NIL (name, image, and likeness) laws protecting student-athletes from economic exploitation, there is no federal law which offers universal protection, nationwide, to student-athletes. State NIL laws offer some protections for student-athletes from exploitation by colleges, universities, and boosters, but there is no protection for student-athletes who sign NIL deals with for-profit third-party businesses. These NIL deals, between the student-athlete and third-party businesses, make up the majority of NIL agreements. Section 6 of the proposed College Athlete Economic Freedom Act (“CAEFA”), titled “Enforcement Provisions,” aims to codify federal protection for student-athletes against colleges, universities, and boosters, …

Untangling Bankruptcy’S Most Complex Web: Chapter 11 Rule 1111(B) And Subchapter V, Evan Sponder

Brooklyn Journal of Corporate, Financial & Commercial Law

The United States Code Section 1111(b) provides an equitable remedy to debt restructuring for both debtors and creditors in Chapter 11 bankruptcy by allowing the debtor to retain their income-producing assets and repay their creditor(s) through a mutually approved plan. However, section 1111(b) is difficult for courts to apply due to its complex nature, and infrequent application of the section has resulted in limited development of case law interpreting the section. Courts currently interpret 1111(b) elections in Chapter 11 Subchapter V cases to exclude interest accrual; this interpretation establishes an inequitable precedent whereby debtors’ procedural advantages bypass creditor protections during …

I Ain't Afraid Of No Ghost…Kitchen! A New Realm Of Consumer Protection After The Inform Consumers Act, Johanna Silva

Brooklyn Journal of Corporate, Financial & Commercial Law

The effects of the COVID-19 pandemic were pervasive, sparing none from its impact. However, the restaurant industry bore an even greater change and a heavier burden than most. At the height of the pandemic, some 110,000 restaurants shut down. QR codes replaced paper menus, street parking transformed into outdoor dining sheds, and Friday night dinners at the “great spot on the corner” became takeout orders from the couch. Reopening was an unpredictable gamble for restaurant owners, fraught with tiered plans and inconsistent regulations on safe and unsafe dining practices. The desperate search for creative solutions to stay in business propelled …

After Further Review: Are Ncaa Conferences Now Subject To Antitrust Liability?, Madison Huberman

Brooklyn Journal of Corporate, Financial & Commercial Law

Following the Alston decision, the landscape of college athletics has undergone significant transformation. Although the Supreme Court in Alston previously determined that individual conferences lacked power over the relevant market, this is no longer true for all conferences. This note explores the potential antitrust liability facing individual NCAA conferences in the post-Alston era. It reviews the NCAA’s historical context, its member institutions, and the variations in membership across Divisions and sports. The analysis then shifts to the current state of college athletics, including NIL policies, conference realignment, and media rights deals. The note further assesses whether certain conferences are susceptible …

International Compliance Codes: Reflections On Their Significance, James Fanto

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article explores the significance of international compliance codes. After describing compliance and reviewing compliance program activities and structures that have become the standard compliance mode, it looks at major U.S. and international compliance codes that helped establish and reinforce that model. It then explores reasons for the successful international diffusion of compliance, as evidenced by the international compliance codes. It particularly highlights that the compliance codes have followed a well-trodden path of international codes of business practices, which is to present them as a kind of neutral business technology. It discusses the main reason for this presentation, academic criticism …

Emerging Compliance In The Generative Decentralized Era, Nizan Geslevich Packin

Brooklyn Journal of Corporate, Financial & Commercial Law

Is it the end of compliance as we know it? Emerging technologies such as Artificial Intelligence (“AI”), including Generative AI (“GenAI”), and blockchain are reshaping regulatory compliance in the Web 3.0 era. As machine-generated data becomes the norm, traditional models reliant on human oversight are becoming obsolete, necessitating swift adaptation from regulators and industry stakeholders. Historically, compliance was designed to be managed by humans due to the need for critical thinking, ethical considerations, and nuanced decision-making. Yet, in today’s era, this approach is no longer viable. Addressing this need, Regulatory Technology (“RegTech”) has played a key role in modernizing compliance …

A New Governance Framework In Cross-Border Tax Policymaking, Tamir Shanan, Doron Narotzki, Noam Zamir

Brooklyn Journal of Corporate, Financial & Commercial Law

The first tax treaty can probably be traced to the end of the 19th century: the treaty between the Swiss Federal Council (on behalf of the Canton of Vaud) and Great Britain. However, most tax scholars refer to the period following World War I, including the work of the League of Nations, as the formative period in which the international tax regime was founded. In the 1920s, the League of Nations formed a committee of four renowned economists that was asked to formulate a set of rules that would assist states in allocating taxing rights of cross-border income and gains …

The Enduring Relevance Of Congress Despite The Court's Shift To “Ordinary Reader” Statutory Interpretation, Abbe R. Gluck, Laila M. Robbins

Journal of Law and Policy

Has Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court’s new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism’s perspective, from an “insider” perspective focused on Congress’s textual choices, to an “outsider” perspective based on how “ordinary people” read statutes. The Court’s self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars—including first-generation textualists—had for a century focused …

The Broad Church Of Modern Textualism, Nicole Steitz, Brian G. Slocum, Kevin Tobia

Journal of Law and Policy

Nearly thirty years ago, Justice Scalia’s Tanner lectures branded Holy Trinity Church v. United States (1892) as the anti-textualist archetype, a decision trumping the text’s plain meaning with a suspect judicial investigation of the law’s purpose or spirit. And so Holy Trinity seemed, until Gales and Solan’s groundbreaking empirical study supported an alternative reading of the key statutory term (“labor or service”) that would avoid this conflict between text and purpose. Taking inspiration from Gales and Solan, we reconsider Holy Trinity using the precepts of modern textualism, with its increased emphasis on context, pragmatics, anti-literalism, legal meaning, holistic meaning, non-compositionality, …

Driving Corporate Environmental Responsibility With Tax Incentives And Carbon Taxation, Riya Dhall

Journal of Law and Policy

In response to the worsening global climate crisis, this Note examines the potential role of tax policy in encouraging corporate environmental responsibility. Focusing on tax incentives and a proposed federal carbon tax, it explores how strategic tax measures could drive corporations to mitigate their environmental impact. Through an analysis of economic and regulatory measures, such as cap-and-trade and excise taxes, alongside recent legislation like the Inflation Reduction Act, this Note assesses the potential of tax credits and carbon taxes to reduce corporate emissions. It further discusses the emergence of benefit corporations, specifically B Corp certified companies, such as Patagonia and …

The Pet Fish Canon, William N. Eskridge Jr.

Journal of Law and Policy

Inspired by the work of the late Professor Larry Solan, this article proposes that judges recognize as one of the textualist canons of statutory construction a “pet fish” canon. Such a canon would posit that when an ordinary reader would understand two or more words to yield a meaning that is different than the sum of the two words defined separately, the statutory interpreter should not disaggregate them. The Roberts Court has already followed such a linguistic precept in some statutory cases, and this article proposes that the Court recognize this as a canon considered at least as seriously as …

Grammar & Syntax Arguments On The Roberts Court, Anita S. Krishnakumar

Journal of Law and Policy

In his excellent book, The Language of Judges, Professor Solan demonstrates how judges use grammatical or linguistic arguments to avoid acknowledging statutory ambiguity—and how they often get the grammar or linguistics wrong. Since his book was published, textualism has become the dominant interpretive approach on the U.S. Supreme Court—and we have seen increasingly prominent battles involving grammatical devices and rules. This comment takes Professor Solan’s analysis as a jumping off point to evaluate how grammar and linguistic arguments are employed on the modern Supreme Court, in the age of textualism. The comment offers a brief empirical and doctrinal assessment of …

Silent Suffering: Demanding Individual Accountability For Sexual Assault Against Disabled Children In School Environments, Stephanie Flores

Journal of Law and Policy

Disabled children are among the most vulnerable in society, particularly in school environments where they depend on the actions and care of others for their safety. These children face significantly higher risks of sexual abuse than their non-disabled peers, and school officials' negligence can exacerbate this danger. Despite the prevalence of such cases, the Fifth Circuit's refusal to recognize school officials’ liability under the state-created danger doctrine, as seen in Fisher v. Moore, deprives disabled children of adequate legal recourse under 42 U.S.C. § 1983. The decision holds that school officials cannot be held personally liable for the peer-inflicted sexual …

Growing Rich Off The Fruits Of Private Incarceration, Joseph Hennessy

Journal of Law and Policy

Mass incarceration is a uniquely American phenomenon. With roots in chattel slavery, modern mass incarceration truly exploded in the latter half of the 20th Century. As Reagan-era politicians advocated for fiscal conservatism on the one hand and heavy-handed responses to crime on the other, private prison pioneers saw an opportunity to derive profit from society’s most vulnerable. Today, private prisons house as much as half of some states’ total prison population, and private prison corporations have demonstrated an insatiable desire to expand their reach. This Note explores the unique social vulnerability of privately incarcerated people through a statutory and judicial …

Property Rights Or Obstacles To Progress?: The Fundamental Flaws In Takings Jurisprudence, Liam Higgins

Journal of Law and Policy

New York boasts some of the strongest protections for tenants out of all jurisdictions throughout the country. Chief among these laws is the state Rent Stabilization Law (“RSL”). Among other protections, the RSL has limited excessive rent increases on regulated apartments, granted tenants a right of renewal so that they could remain in their homes, and permitted family members to take over the tenancy of their loved ones upon their passing. The RSL has been amended several times throughout its history, each time providing more or less protections depending on the administration at the time. Recently, in 2019, the New …

The Equal Pay Game Changer: Using Mandatory Reporting To Encourage Corporations In The Sports Ecosystem To Increase Investment In Women’S Sports, Caroline Strauss

Journal of Law and Policy

In 2016, the United States Women’s National Team began a lengthy fight for equal pay by filing a complaint with the Equal Employment Opportunity Commission. In 2019, the fight continued when the team sued the United States Soccer Federation for gender discrimination. When the court granted summary judgment to the U.S. Soccer Federation on their Equal Pay Act claim, it closed the door for the team to achieve equal pay through a public law remedy. The tedious fight came to an end with a settlement which guaranteed that the U.S. Men’s and Women’s National Teams would be paid equally. Although …

The Case For Stronger Scrutiny Of The Deductibility Of Crypto Losses, Vincent Ooi

Research Collection Yong Pung How School Of Law

My paper, The Case for Stronger Scrutiny of the Deductibility of Crypto Losses, which was recently published by The Journal of Tax Administration, discusses the issue of crypto losses and risks to the tax base. It submits that tax authorities and national legislatures should step up their scrutiny of the deductibility of crypto losses and proposes some ways in which this can be done in practice.

Redressing Judicial Misbehavior: An Integrated Approach To Judicial Immunity, Nancy Amoury Combs

Faculty Publications

Immunities generate intense public interest and controversy. Whether it is the sweeping presidential immunity that former President Trump has claimed or the qualified immunity that rogue police invoke to evade financial responsibility for their brutality, immunities stand as a highly contested aspect of the American legal system. Judicial immunity incites similar controversy. American judges possess absolute immunity from civil suits for their judicial acts, so victims are barred from seeking civil compensation, even against judges who engage in purposeful or malicious misconduct from the bench. For decades scholars have sought to curtail absolute judicial immunity, but they have overlooked a …

United States Environmental Protection Agency Response To The Ofiice Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

EPA response to OSTP memo, 2022: Public Access Plan (December 2024)

United States Fish And Wildlife Service Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

FWS response to OSTP memo, 2022: Public Access Plan (December 2024)

United States Department Of Defense Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

DOD response to OSTP memo, 2022: Public Access Plan (December 2024)

Acf Response To Ostp Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

ACF response to OSTP memo, 2022: Public Access Plan (December 2024)

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

Faculty Publications

There is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work …

Law And Equity On Appeal, Aaron-Andrew P. Bruhl

Faculty Publications

Most lawyers know that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity, but fewer are familiar with the development of federal appellate procedure. Here too there is a story of the merger of two distinct systems. At common law, a reviewing court examined the record for errors of law after the final trial judgment. In the equity tradition, an appeal was a rehearing of the law and the facts that aimed at achieving justice and did not need to await a final judgment. Unlike the story of federal trial procedure, …

Follow The Bloody Brick Road: Bleeding Kansas And The Emancipation Proclamation, Margaret Hu

William & Mary Bill of Rights Journal

To help illuminate Balkin’s project of Memory and Authority, this brief Essay considers a slice of American memory from Kansas’ historical archives and other primary sources, and examines its unique role in the Civil War. Specifically, it excavates the influence of Kansas’ leaders as advisors to President Abraham Lincoln. Prior to and during the Civil War, Lincoln relied upon the guidance of senior leaders from Kansas on matters ranging from guarding the White House, war strategies, the recruitment of former enslaved persons to the war effort, and the issuance of the Emancipation Proclamation as a part of an effective …