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Articles 1 - 30 of 208
Full-Text Articles in Business Organizations Law
Postcolonial Private Law, Debadatta Bose
Postcolonial Private Law, Debadatta Bose
Brooklyn Law Review
This Article provides the missing normative foundation by linking dynamic due process and rigorous rational basis to deliberative democracy. Rigorous rational basis, in essence, requires that majorities offer what deliberative democracy calls publicly accessible reasons—those capable of engaging fellow citizens across lines of difference—for restrictions on liberties. Courts, from this perspective, legitimately referee inevitable democratic conflicts in our pluralistic society. A Court that helps restore reasoned and productive politics cannot come soon enough.
Though They Be But Young, They Are Fierce: Generation Z Is Leading The Way Toward A New Model Of Corporate Lawyering, Tania N. Shah
Though They Be But Young, They Are Fierce: Generation Z Is Leading The Way Toward A New Model Of Corporate Lawyering, Tania N. Shah
Brooklyn Journal of Corporate, Financial & Commercial Law
Since over a century ago, when Dodge v. Ford affirmed shareholder primacy as the central purpose of the corporation, and half a century since Milton Friedman argued that the only responsibility of business is to increase its profits, corporate law has reinforced a narrow tradition of fiduciary duty. But as that framework begins to broaden, a new generation of lawyers—Generation Z—enters the profession just as corporate governance is being redefined. The rise of benefit corporations—statutory entities legally required to pursue public benefit alongside profit—signals a meaningful shift in how corporate purpose is understood. Many Gen Zers came of age as …
Esg-Based Litigation: A Solution To Social Media Companies’ Immunization From Liability For Human Trafficking On Their Platforms, Grace Dore
Brooklyn Journal of Corporate, Financial & Commercial Law
Social media platforms have transformed communication, but they have also become a critical tool for human traffickers, who use them to recruit victims, maintain control, and facilitate illegal activities. Despite this, social media companies have largely avoided legal accountability due to the broad immunity provided by Section 230 of the Communications Decency Act (“CDA”), which courts have interpreted to shield platforms from lawsuits arising from user activity. Congress has sought to address this gap through legislation such as the Trafficking Victims Protection Act (“TVPA”) and the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”). However, these efforts …
Regulatory Whiplash: The Sec’S Proxy Advisor Reversal And A Delaware-Inspired Sliding Scale Framework For Judicial Review, Alexandra Pellegrino
Regulatory Whiplash: The Sec’S Proxy Advisor Reversal And A Delaware-Inspired Sliding Scale Framework For Judicial Review, Alexandra Pellegrino
Brooklyn Journal of Corporate, Financial & Commercial Law
The Securities and Exchange Commission’s 2020 regulation of proxy advisory firms, and its abrupt 2022 recission, triggered a consequential circuit split that exposes a deeper tension in administrative law: how courts should review agency reversals in regulatory environments where stability and adaptability are both essential. In National Association of Manufacturers v. Securities Exchange Commission, the Fifth Circuit invalidated the recission for failing to adequately address reliance interests and prior factual findings. In contrast, the Sixth Circuit in Chamber of Commerce v. Securities Exchange Commission upheld the agency’s reversal under a more deferential interpretation of Federal Communications Commission v. Fox Television …
Governing Artificial Intelligence: A Dual-Board Solution To The Corporate Oversight Crisis, Harrison Carter
Governing Artificial Intelligence: A Dual-Board Solution To The Corporate Oversight Crisis, Harrison Carter
Brooklyn Law Review
Corporate governance structures have proven fundamentally inadequate for managing the unprecedented challenges of artificial intelligence development, as demonstrated by OpenAI's dramatic 2023 governance crisis and the broader failure of both traditional and hybrid corporate forms to balance massive capital requirements with public safety concerns. Current approaches create three critical failures: structural accountability gaps between boards and management, distorted power dynamics from concentrated capital needs, and an inability to enforce safety commitments against commercial pressure. While companies like Anthropic have attempted innovative private solutions through benefit corporation structures and specialized trusts, these voluntary mechanisms ultimately prove inadequate against the extraordinary pressures …
Safeguarding Creditors' Interest In China's Debtor-In-Possession (Dip) Model: Enhancing Director Accountability For Effective Corporate Reorganization, Tianqi (Alicia) Ding
Safeguarding Creditors' Interest In China's Debtor-In-Possession (Dip) Model: Enhancing Director Accountability For Effective Corporate Reorganization, Tianqi (Alicia) Ding
Brooklyn Journal of International Law
In recent years, China has increasingly adopted the Debtor-in-Possession (DIP) model in corporate reorganization, allowing directors to retain control of the debtor’s operations during bankruptcy proceedings. From 2019 to 2025, the use of the DIP model among listed companies rose substantially, reflecting a policy preference for efficiency, continuity of management, and the perceived advantages of director familiarity with business operations. While the DIP model may improve restructuring efficiency, it also concentrates decision-making power in directors who face limited personal accountability, thereby exposing creditors to heightened risk during insolvency. China’s existing legal framework inadequately addresses this risk. The Company Law defines …
Barbarians At The Gate Or Angels At The Crossroads? Examining The Impact Of The Uk Green Taxonomy On Private Equity Firms, Melek Redzheb, Fatjon Kaja
Barbarians At The Gate Or Angels At The Crossroads? Examining The Impact Of The Uk Green Taxonomy On Private Equity Firms, Melek Redzheb, Fatjon Kaja
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article explores whether the UK Green Taxonomy will foster sustainable corporate governance in private equity-backed portfolio companies. We explore how the Taxonomy will address the greenwashing problem that plagues financial markets, including the private equity industry. Our analysis suggests that general partners will have a twofold response to the new reforms. In the short term, they will seek to address the social concerns of limited partners by negatively screening unsustainable companies and cherry-picking more sustainable ones (the so-called “exit” strategy). In the long term, however, they will adopt a dynamic strategy to transform unsustainable targets into sustainable enterprises on …
The Dubious Role Of Institutional Investors In Driving The Green Transition: Legal And Economic Constraints, Giovanni Strampelli
The Dubious Role Of Institutional Investors In Driving The Green Transition: Legal And Economic Constraints, Giovanni Strampelli
Brooklyn Journal of Corporate, Financial & Commercial Law
There is a well-established trend that the process of transition to a sustainable economic growth model marked by the pursuit of environmental, social and governance (“ESG”) objectives has large companies at its center, which are considered an essential hub for this purpose given their weight in the global economy. In this context, the role of shareholders, especially institutional investors, plays an important role. Indeed, it is widely recognized that they, having an increasing prominence in the shareholder base of large, listed companies, can push these public companies to adopt more virtuous conduct in the areas of, among others, environmental protection …
Court Appointed Monitorships: Effective Remedy Or Modern Misstep?, Jean Joun
Court Appointed Monitorships: Effective Remedy Or Modern Misstep?, Jean Joun
Brooklyn Journal of Corporate, Financial & Commercial Law
When a corporate entity or organization violates the law, there are several remedies the courts may enforce against the bad actor. Most common are damages—both compensatory and punitive—and injunctive relief. The class of injunctive relief that most are familiar with is the kind that restrains the bad actor from a conduct or behavior. However, courts in certain instances may decide, either on their own volition or after being asked to consider such a remedy by a prosecuting entity, to appoint a compliance monitor with the function of ensuring that the bad actor continues traversing a legally sound path. Although court-ordered …
Harmonizing Esg: Standardizing Rating Agency Processes To Rectify The Esg Framework, Christina Philippides
Harmonizing Esg: Standardizing Rating Agency Processes To Rectify The Esg Framework, Christina Philippides
Brooklyn Law Review
Greta Gerwig’s Barbie film did not merely revive a cultural icon. It highlighted the intersection of brand loyalty, consumer behavior, and corporate culture, which, in turn, revealed a broader trend in investment strategies. As consumers increasingly seek to make investments in companies that align with their values, investors are similarly drawn to firms with strong environmental, social, and governance (ESG) practices. Increasing investor focus on corporate practices has given rise to ESG investing, where investment decisions are influenced by a company’s commitment to sustainability and ethical governance. Despite ESG-driven investments directly correlating with boosts in corporate valuation and market performance, …
Performative Actions And Profits: A New Test For Delaware Derivative Oversight Claims, Joshua Dana
Performative Actions And Profits: A New Test For Delaware Derivative Oversight Claims, Joshua Dana
Brooklyn Law Review
One of the most important aspects of Delaware corporate law is the duty of oversight, which requires corporate directors and officers to establish and maintain reasonable oversight systems at their companies. In determining whether a director or officer has breached their duty of oversight, courts apply the bad-faith standard. This Note contends that the bad-faith standard is an ineffective way to hold corporate directors and officers accountable for their lack of oversight because under the bad-faith standard, courts are unable to distinguish nonmeaningful performative action that is merely intended to create the illusion of good-faith oversight from true good-faith action. …
Human Rights Due Diligence At The Intersection Of Corporate Compliance And Corporate Purpose, Stephen Kim Park
Human Rights Due Diligence At The Intersection Of Corporate Compliance And Corporate Purpose, Stephen Kim Park
Brooklyn Journal of Corporate, Financial & Commercial Law
The concept of human rights due diligence (“HRDD”) is one part of a broad and diverse range of approaches to address the responsibilities of business to society. Through laws requiring that companies identify and address their adverse impacts on workers, communities, and the environment, HRDD expands the role of corporate compliance in making companies accountable for the welfare of stakeholders. This Article addresses the implications of HRDD laws on how corporations operationalize corporate purpose and examines the barriers posed by corporate compliance practices to meaningfully—rather than cosmetically—enhance responsible business conduct.
What Should Caremark Encompass?, Claire A. Hill, Zohreh Zakiani
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
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.
Nil: How Third-Party Businesses Exploit Collegiate Student-Athletes With Impunity, Matthew Glogower
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, …
International Compliance Codes: Reflections On Their Significance, James Fanto
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 …
Driving Corporate Environmental Responsibility With Tax Incentives And Carbon Taxation, Riya Dhall
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 …
Growing Rich Off The Fruits Of Private Incarceration, Joseph Hennessy
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 …
The Equal Pay Game Changer: Using Mandatory Reporting To Encourage Corporations In The Sports Ecosystem To Increase Investment In Women’S Sports, Caroline Strauss
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 …
Impact Ipsa Loquitur: A Reverse Hand Rule For Consumer Finance, Edward Janger, Susan Block-Lieb
Impact Ipsa Loquitur: A Reverse Hand Rule For Consumer Finance, Edward Janger, Susan Block-Lieb
Faculty Scholarship
No abstract provided.
Equity For Intermediaries: The Resolution Of Financial Firms In Bankruptcy And Bank Resolution, Edward Janger
Equity For Intermediaries: The Resolution Of Financial Firms In Bankruptcy And Bank Resolution, Edward Janger
Faculty Scholarship
No abstract provided.
Mythical Adverse Effect, Naveen Thomas
Whom Is Corporate Esg Integration For?, Ryan Brennan
Whom Is Corporate Esg Integration For?, Ryan Brennan
Brooklyn Journal of International Law
Notions of corporate social responsibility (CSR) and more recently, environmental, social, and governance (ESG) have found their way into the boardrooms of the world’s largest corporations. The prominence of this trend has revived the timeless debate over the true function of for-profit business. Traditional theory calls for a corporation to maximize shareholder’s profits—a view known as “shareholder primacy.” A competing contemporary school of thought finds that corporate purpose naturally extends beyond generating return on the investment of a given shareholder to reflect social objectives and the many dependent constituents of a business. As it stands, US corporate law tracks the …
Corporate Compliance's Achilles Heel, Miriam Baer
Corporate Compliance's Achilles Heel, Miriam Baer
Faculty Scholarship
No abstract provided.
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, …
Square-Peg Frauds, Miriam Baer
Protecting Corporations From Discrimination Under The Convention On The Elimination Of Racial Discrimination, William Thomas Worster
Protecting Corporations From Discrimination Under The Convention On The Elimination Of Racial Discrimination, William Thomas Worster
Brooklyn Journal of International Law
This article argues that legal persons derive rights under the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and can enforce those rights by individual or inter-state complaint. It uses the case study of media corporations, following from the recent judgment by the International Court of Justice (ICJ) in the litigation between Qatar and the UAE over the application of CERD to the treatment of the Al Jazeera media corporation. However, the implications of this study apply to all private corporations and non-governmental organizations (NGOs). The CERD protects against certain forms of racial, ethnic and national origin …
Forecasting The How And Why Of Corporate Crime's Demise, Miriam H. Baer
Forecasting The How And Why Of Corporate Crime's Demise, Miriam H. Baer
Faculty Scholarship
No abstract provided.
Golden Shares And Social Enterprise, Naveen Thomas
Golden Shares And Social Enterprise, Naveen Thomas
Faculty Scholarship
No abstract provided.
How Discretionary Decision-Making Impacts The Financial Performance And Legal Disclosures Of S&P 500 Funds, Bernard S. Sharfman, Vincent Deluard
How Discretionary Decision-Making Impacts The Financial Performance And Legal Disclosures Of S&P 500 Funds, Bernard S. Sharfman, Vincent Deluard
Brooklyn Law Review
When investment funds track the S&P 500, the index becomes more than just a list of 500 companies. The focus then becomes the financial and regulatory issues that arise from the discretionary decision-making power of the Index Committee that governs the S&P 500. Based on our empirical research and analysis, this article recommends a new principal risk disclosure under SEC Form N-1A, which we refer to as “selection risk,” to be included in the statutory and summary prospectuses of investment funds that track the S&P 500. This type of risk results when the Index Committee uses its discretionary decision-making power …