Open Access. Powered by Scholars. Published by Universities.®

Civil Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Brooklyn Law School

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 1 - 30 of 102

Full-Text Articles in Civil Law

International Commitments Of Japan’S Prefectures With Foreign States: Empirical Patterns, Authority, And Legal Nature, Yuhei Matsuyama Jun 2026

International Commitments Of Japan’S Prefectures With Foreign States: Empirical Patterns, Authority, And Legal Nature, Yuhei Matsuyama

Brooklyn Journal of International Law

Under international law, sovereign states are the primary subjects of rights and obligations and possess the authority to conclude treaties. Domestic constitutions typically allocate foreign affairs powers to national governments. Nonetheless, subnational governments—including prefectures—regularly engage in international activities. In some federal systems, constituent units are expressly authorized by their constitutions to conclude international agreements. By contrast, the Constitution of Japan vests foreign affairs authority exclusively in the national executive and is silent on the authority of prefectural governments. This Article uncovers and analyzes approximately 180 previously unexamined international commitments concluded by Japanese prefectural governments with foreign states, identified through information …

Go to article

Infliction Of Precarity: Risk, Vulnerability, And Tort Law, Saad Al-Obaidi Jun 2026

Infliction Of Precarity: Risk, Vulnerability, And Tort Law, Saad Al-Obaidi

Journal of Law and Policy

Imposing a risk of harm on someone should be a tort in certain unjustifiable circumstances, regardless of whether the harms at risk materialize. A doctrinal undercurrent exists that supports this proposal concerning latent or delayed harms as legally cognizable injuries. Even though it is a basic moral principle not to put others at risk of harm without justification, courts deny in principle recovery for risks that lack concomitant externalizations in some familiar form of harm, like physical, pecuniary, or emotional damage to the person. This Article argues that tort law should offer recovery for unjustified risk impositions in circumstances that …

Go to article

Speak Up, Pay Up: Why New York Should Enact The Speak Your Truth Act And End The Chilling Effect On Sexual Assault Survivors Following The #Metoo Era, Maya Burnette Jun 2026

Speak Up, Pay Up: Why New York Should Enact The Speak Your Truth Act And End The Chilling Effect On Sexual Assault Survivors Following The #Metoo Era, Maya Burnette

Journal of Law and Policy

Sexual assault is one of the most prevalent forms of violence in the United States. It is also one of the least reported. With criminal and civil avenues often providing little justice, many survivors turned to the public to tell their stories. In the wake of the #MeToo movement, thousands of survivors publicly shared their experiences, prompting significant social and legislative change. Yet many who spoke out faced retaliatory defamation lawsuits filed by alleged abusers to silence them. These suits, commonly known as Strategic Lawsuits Against Public Participation (“SLAPP suits”), pose a substantial threat to survivors’ speech. Despite recent reforms, …

Go to article

Emission Impossible: Challenging The Imposition Of New York City’S Local Law 97, Daniel Lopiccolo Sep 2025

Emission Impossible: Challenging The Imposition Of New York City’S Local Law 97, Daniel Lopiccolo

Brooklyn Journal of Corporate, Financial & Commercial Law

New York City’s Local Law 97 was passed by the City Council in 2019 with the goal of reducing citywide carbon emissions. The law imposes civil penalties on property owners whose buildings fail to comply with carbon emissions limits stipulated by the city. While the law admirably aims to minimize New York’s carbon footprint, its present burden is excessive and disproportionate to the offense committed, making the cost of affording lower and middle-class housing units increasingly untenable for many New Yorkers, especially for property owners in co-op and condo communities. Many such as Glen Oaks Village Owners, Inc., the plaintiffs …

Go to article

Beyond Statutory Loopholes, Qualified Immunity, And Internal Investigations: A Comparative Analysis Of Police Accountability In The United States And The United Kingdom, Kevyn Mcconlogue Jun 2025

Beyond Statutory Loopholes, Qualified Immunity, And Internal Investigations: A Comparative Analysis Of Police Accountability In The United States And The United Kingdom, Kevyn Mcconlogue

Brooklyn Journal of International Law

While the landscape of policing in the United States and United Kingdom appear different today, their shared roots of enslavement and racism fostered a culture of impunity for police officers in both countries. With community skepticism and public discontent with law enforcement continuing to rise in the United States, the investigative and procedural roadblocks in the way of holding police officers accountable for misconduct must come to an end. In an effort to facilitate conversations about progressive police reform and eventual abolition, this Note compares the modern American and British police accountability systems and the avenues through which victims of …

Go to article

A Quarter Century After The Products Liability Restatement: Reflections, Aaron D. Twerski May 2025

A Quarter Century After The Products Liability Restatement: Reflections, Aaron D. Twerski

Brooklyn Law Review

A quarter century has passed since the adoption by the American Law Institute of the Products Liability Restatement. It is time to reflect on whether it has influenced the courts. At the time of its adoption there was considerable controversy with regard to several sections. Some sections were not controversial. There was little disagreement that a plaintiff may draw a res ipsa like inference of product defect. Nor was there disagreement that if a product was in violation of statute that the product was defective per se. Two sections were highly controversial. The Restatement held that a product could not …

Go to article

Into The Twilight Zone: Reverse Citizenship Discrimination, Damage Caps, And Escalating Incoherence, William R. Corbett May 2025

Into The Twilight Zone: Reverse Citizenship Discrimination, Damage Caps, And Escalating Incoherence, William R. Corbett

Brooklyn Law Review

Federal employment discrimination law has become such an asymmetrical and largely incoherent body of law that those who find themselves in its midst can feel as though they have entered another realm or dimension—the “twilight zone.” The role of Section 1981 (42 U.S.C. § 1981) in federal employment discrimination law poses some significant mysteries and problems. The statute was enacted as part of the Civil Rights Act of 1866 to ensure the rights of recently liberated slaves, and it was amended in 1870. One of the rights guaranteed by Section 1981 is the right to make and enforce contracts on …

Go to article

Redefining The Scope Of Anti-Discrimination Law: Illuminating Colorism As A Basis For Discrimination Claims By Black Entertainers, Tolulope F. Odunsi-Nelson May 2025

Redefining The Scope Of Anti-Discrimination Law: Illuminating Colorism As A Basis For Discrimination Claims By Black Entertainers, Tolulope F. Odunsi-Nelson

Brooklyn Law Review

This Article critically examines the pervasive issue of colorism within the entertainment industry and its profound impact on dark-skinned Black entertainers. Anti-Black colorism is discrimination against Black people with darker skin tones and Afrocentric features (i.e. darker eye color, kinkier hair, broader nose, fuller lips). Tracing the historical roots of colorism from the colonial era to contemporary times, the Article emphasizes how societal preferences for Eurocentric features and anti-Black racism have created and perpetuated a hierarchy that disadvantages darker-skinned individuals. It analyzes the underrepresentation and pay disparities faced by dark-skinned Black actors and actresses. It details the industry’s preference for …

Go to article

A Yellow Light For New York’S Red Flag Law In Criminal Prosecutions: Contextualizing The Fruits Of New York Extreme Risk Protection Orders, Isabella Glassman May 2025

A Yellow Light For New York’S Red Flag Law In Criminal Prosecutions: Contextualizing The Fruits Of New York Extreme Risk Protection Orders, Isabella Glassman

Brooklyn Law Review

Public concern over gun violence grabs the news headlines, highlighting mass shootings at schools and suicide rates, amongst other gun-related problems. Twenty-three states in the United States turned to red flag laws to proactively address these gun violence issues. New York is one such state. The crux of New York’s Red Flag Law is the extreme risk protection order (ERPO), which is a civil court order that prevents respondents to ERPO proceedings from possessing or attempting to possess a firearm, rifle, or shotgun for up to one year. This civil court order, however, could slip into the realm of criminal …

Go to article

A Stronger Future For Family Law Arbitration: Enhancing The Uniform Family Law Arbitration Act To Shield The Vulnerable, Jayden Solomon May 2025

A Stronger Future For Family Law Arbitration: Enhancing The Uniform Family Law Arbitration Act To Shield The Vulnerable, Jayden Solomon

Journal of Law and Policy

The rising popularity of alternative dispute resolution (“ADR”) methods, particularly arbitration, has transformed family law practices, offering more accessible and efficient means of resolving disputes. This Note explores the critical role of the Uniform Family Law Arbitration Act (“UFLAA”) in safeguarding vulnerable populations, specifically children and domestic violence survivors, within the arbitration process. While the UFLAA offers important protections, these measures should serve as a starting point rather than a benchmark for ensuring these safeguards. This Note advocates for the integration of more robust protections within the UFLAA to better protect these individuals throughout arbitration. It examines the history of …

Go to article

Unveiling The Underbelly Of Artificial Intelligence: The Inadequacies Of The Legal System With Regard To Victims Of Nonconsensual Sexual Deepfakes, Zilana Lee May 2025

Unveiling The Underbelly Of Artificial Intelligence: The Inadequacies Of The Legal System With Regard To Victims Of Nonconsensual Sexual Deepfakes, Zilana Lee

Journal of Law and Policy

Artificial intelligence-powered deepfake technology has ushered a new era of digital sexual abuse, allowing for the seamless fabrication of explicit images that violate bodily autonomy with alarming realism. With little more than a photograph scraped from social media, individuals can use AI tools to fabricate hyper-realistic nude images and pornographic videos of people without their consent. These nonconsensual sexual deepfakes are rapidly spreading online, often going viral before victims are even aware of their existence. The technology can affect anyone, but women and girls remain disproportionately targeted. Recent incidents involving minors highlight both the reach and severity of this harm. …

Go to article

Implicit Bias Within The Primary Assumption Of Risk Doctrine, Tracy Catapano-Fox Apr 2025

Implicit Bias Within The Primary Assumption Of Risk Doctrine, Tracy Catapano-Fox

Brooklyn Law Review

This Article addresses the efficacy of the primary assumption of risk doctrine, and the improper extension of the doctrine to vitiate a plaintiff’s ability to obtain recourse in personal injury cases. When the New York legislature enacted the comparative negligence standard in 1975, it essentially revoked the applicability of the primary assumption of risk doctrine as a defense in tort litigation. However, the courts continued to apply the primary assumption of risk doctrine in tort cases involving sports or physical activity, analyzing it as an element of a defendant’s duty and serving as a complete bar to recovery for plaintiffs …

Go to article

The Case For Abolishing The Civil Character-Evidence Rule, Steven Goode Feb 2025

The Case For Abolishing The Civil Character-Evidence Rule, Steven Goode

Brooklyn Law Review

The Federal Rules of Evidence were enacted fifty years ago. The Advisory Committee charged with drafting the rules successfully reformed a good number of common-law rules and failed in its attempts to reform others. But it did not even attempt significant reform of one of the most troublesome rules—the character-evidence rule. Indeed, it declined to seriously consider even a very modest proposal to reform the way the character-evidence rule applies in civil cases. Those espousing change, it declared, “have not met the burden of persuasion.” This Article takes up that challenge. I argue that Rule 404’s categorical exclusion of character …

Go to article

Silent Suffering: Demanding Individual Accountability For Sexual Assault Against Disabled Children In School Environments, Stephanie Flores Dec 2024

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 …

Go to article

The Major Questions Doctrine’S Domain, Todd Phillips, Beau J. Baumann May 2024

The Major Questions Doctrine’S Domain, Todd Phillips, Beau J. Baumann

Brooklyn Law Review

In West Virginia v. EPA, the Supreme Court elevated the major questions doctrine to new heights by reframing it as a substantive canon and clear statement rule rooted in the separation of powers. The academic response has missed two unanswered questions that will determine the extent of the doctrine’s domain. First, how will the Court apply the doctrine to a range of different regulatory schemes? The doctrine has so far only been applied to nationwide legislative rules that are both (1) economically or politically significant and (2) transformative. It is unclear whether the doctrine applies to alternative modes of regulation …

Go to article

Unintended Consequences: The New Test For Interlocutory Mandatory Injunctions, Jeff Berryman May 2024

Unintended Consequences: The New Test For Interlocutory Mandatory Injunctions, Jeff Berryman

Brooklyn Law Review

Interlocutory mandatory injunctions can be an important remedy during the pendency of a trial. With its decision in R. v. Canadian Broadcasting Corp, the Supreme Court of Canada revised its test for an interlocutory mandatory injunction, holding that it should require a higher threshold and be therefore harder to obtain than an interlocutory prohibitive injunction. This higher threshold requires that the applicant demonstrate a strong prima facie case that it will succeed at trial based on law and evidence. This change adds uncertainty to the process, ultimately complicating and adding costs to litigation.

Go to article

Nationwide Injunctions And The Administrative State, Russell L. Weaver May 2024

Nationwide Injunctions And The Administrative State, Russell L. Weaver

Brooklyn Law Review

Where an administrative regulation is deemed by a court to be illegal, unconstitutional, or otherwise invalid, courts sometimes issue nationwide injunctions. In other words, instead of holding that the regulation cannot be applied to the individuals before the court, the court prohibits the agency from applying the regulation anywhere in the country, including to others not before the court. This article explores the debate surrounding the appropriateness of nationwide injunctions. While at first glance such injunctions may seem to make sense, they can have serious consequences, including risk of abuse and forum shopping, amplification of erroneous decisions, and the negative …

Go to article

Summary Eviction Proceedings As A Debt Collection Tool: How Landlords Use Serial Eviction Filings To Collect Rent, Grace Vetromile May 2024

Summary Eviction Proceedings As A Debt Collection Tool: How Landlords Use Serial Eviction Filings To Collect Rent, Grace Vetromile

Brooklyn Law Review

This note explores how landlords use housing court as a debt collection tool, impacting the rights of tenants and their ability to fairly adjudicate claims in summary eviction proceedings. Disparities in the number of evictions that are filed, as compared to evictions that are ultimately executed, indicate that landlords do not always use eviction proceedings to kick out a tenant, but rather as a method of debt collection. Using these proceedings in this manner affects a tenant’s ability to defend against eviction, even when the tenant has meritorious claims that their landlord did not provide a habitable apartment. This note …

Go to article

Clarett, Moultrie, And Applying The Nonstatutory Labor Exemption To Professional Sports’ Draft Eligibility Rules, Mathew Santoyo May 2024

Clarett, Moultrie, And Applying The Nonstatutory Labor Exemption To Professional Sports’ Draft Eligibility Rules, Mathew Santoyo

Brooklyn Law Review

Collective bargaining is the mechanism by which major sports leagues and their players unions have negotiated the terms and conditions of employment for many decades. One standard provision of these collective bargaining agreements is a draft eligibility rule governing the conditions by which prospective athletes are eligible for the league’s entry draft. These collective bargaining agreements exists at the intersection of two somewhat discordant areas of law: antitrust and labor law. Under antitrust law, Congress enacted a policy favoring competition and prohibiting unreasonable restraints on trade. On the other hand, under labor law, Congress enacted a policy favoring collective bargaining. …

Go to article

Nonparty Litigation Holds: Clear To Implement. Complex To Lift., Alexis Bianco-Burrill May 2024

Nonparty Litigation Holds: Clear To Implement. Complex To Lift., Alexis Bianco-Burrill

Brooklyn Law Review

Legal holds have long been used by parties, and nonparties alike, as a fundamental tool to preserve information that could be needed in litigation. There are a breadth of statutes, case law, and scholarly work clarifying when a party has the duty to preserve documents and therefore issues legal holds under federal law, as well as when nonparties share this same duty. Although the question of when to issue a legal hold has a clear answer, the problem of when a nonparty can lift a litigation hold is much more complex. Often, nonparties who have been requested to preserve documents …

Go to article

When Life Takes Your Lemons: Resolving The Legislative Prayer Debate In School Board Settings In Light Of Kennedy V. Bremerton School District, Jordan Halper May 2024

When Life Takes Your Lemons: Resolving The Legislative Prayer Debate In School Board Settings In Light Of Kennedy V. Bremerton School District, Jordan Halper

Brooklyn Law Review

The COVID-19 pandemic fanned the flames of a fire that had been slowly but steadily burning since 2016, arming the loudest warriors of America’s endless culture war with a slew of new divisive issues. Virtually overnight, parental rights groups began capitalizing on the frustration in their communities in order to spur political change, training their ire toward public schools. What began as a crusade against mask mandates and vaccines manifested into a well-funded effort by ultraconservative groups to undermine the public education system as a whole. Against this backdrop, the legislative prayer exception—which was meant to sanction the practice of …

Go to article

Agency Deference After Loper: Expertise As A Casualty Of A War Against The “Administrative State”, Michael M. Epstein May 2024

Agency Deference After Loper: Expertise As A Casualty Of A War Against The “Administrative State”, Michael M. Epstein

Brooklyn Law Review

Chevron deference has been a foundational principle for administrative law for decades. Chevron provided a two-step analysis for determining whether an agency would be given deference in its decision-making. This deferential test finds its legitimacy on the grounds of agency expertise and accountability. However, when the Supreme Court of the United States granted certiorari in Loper Bright Enterprise v. Raimondo, it positioned itself to potentially overrule or severely limit Chevron. An overruling of Chevron would place judicial deference to administrative agency decisions in peril by allowing courts to substitute their own views over the informed opinions of agency experts. This …

Go to article

Affirmatively Furthering Health Equity, Mary Crossley Mar 2024

Affirmatively Furthering Health Equity, Mary Crossley

Brooklyn Law Review

Pervasive health disparities in the United States undermine both public health and social cohesion. Because of the enormity of the healthcare sector, government action, standing alone, is limited in its power to remedy health disparities. This article proposes a novel approach to distributing responsibility for promoting health equity broadly among public and private actors in the healthcare sector. Specifically, it recommends that the Department of Health and Human Services issue guidance articulating an obligation on the part of all recipients of federal healthcare funding to act affirmatively to advance health equity. The Fair Housing Act’s requirement that recipients of federal …

Go to article

A New Private Law Of Policing, Cristina Carmody Tilley Mar 2024

A New Private Law Of Policing, Cristina Carmody Tilley

Brooklyn Law Review

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …

Go to article

Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam Mar 2024

Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam

Brooklyn Law Review

Historically, federal courts have used the “adverse employment action” test in Title VII disparate treatment, disparate impact, and retaliation cases to determine whether a plaintiff has suffered adequate harm. This note argues that this approach is fundamentally flawed. At the outset, the test is a judicial power grab with no support in the statutory language. What is more, it fails to uphold the plain policy purposes for Title VII by largely ignoring evidence of discriminatory acts in the workplace that Congress sought to prevent in passing the statute. Consequently, Title VII plaintiffs get the short end of the stick with …

Go to article

Democratizing New York’S Eminent Domain Regime, Gregory Wagner Jan 2024

Democratizing New York’S Eminent Domain Regime, Gregory Wagner

Brooklyn Law Review

Since the Supreme Court’s landmark eminent domain decision in Kelo v. City of New London, forty-three states have amended their eminent domain laws to constrain their own eminent domain powers. New York, however, was not one of them. In Goldstein v. N.Y. State Urban Development Corp., New York’s highest court decided firmly in favor of the state’s broad eminent domain powers, yet counseled New York lawmakers to act to legislatively limit the state’s unbridled eminent domain authority. Again, New York did not do so—allowing an eminent domain regime that leads to systemic deprivation of public participation to remain fully in …

Go to article

Balancing Chevron, Skidmore, And Major Questions: A Novel Framework For Judicial Deference To Agency Legal Interpretations, Charles A. Bower Jan 2024

Balancing Chevron, Skidmore, And Major Questions: A Novel Framework For Judicial Deference To Agency Legal Interpretations, Charles A. Bower

Brooklyn Law Review

The Supreme Court’s decision in West Virginia v. EPA is a watershed moment for administrative law. For the first time, the Court explicitly invoked the Major Questions Doctrine by name in a majority opinion. The usage of the Major Questions Doctrine is important on its own, but equally important is the fact that the longstanding Chevron doctrine played no part in the majority’s analysis. The absence of Chevron doctrine in West Virginia in favor of the Major Questions Doctrine continues a trend where the Court has been relying on Chevron less often. The threats the Chevron faces do not appear …

Go to article

Balancing Preservation With Growth: How Less Judicial Deference To Decisions Made By The Landmarks Preservation Commission Can Save New York City, Amy Cushman Jan 2024

Balancing Preservation With Growth: How Less Judicial Deference To Decisions Made By The Landmarks Preservation Commission Can Save New York City, Amy Cushman

Brooklyn Law Review

The New York City Landmarks Law of 1965, envisioning the preservation of historical treasures, empowered the New York City Landmarks Preservation Commission (LPC) with the authority to designate and regulate landmarks and historic districts. Originally established in response to public outcry over the loss of iconic architectural structures, the LPC aimed to safeguard the city's cultural, social, and architectural legacy. However, this note contends that recent LPC decisions, particularly the issuance of Certificates of Appropriateness for luxury residential construction involving partial demolition of landmarks, betray the original preservation goals. Delving into the legal recourse available under the New York Civil …

Go to article

Full Moon Or Full Fraud? A Proposed Method For Interpreting Emojis Under Rule 10b-5, Sophie Abrams Jan 2024

Full Moon Or Full Fraud? A Proposed Method For Interpreting Emojis Under Rule 10b-5, Sophie Abrams

Brooklyn Law Review

In the wake of the COVID-19 pandemic, many Americans who were stuck at home turned to social media forums in search of community and investing advice. Fifteen million (and counting) of them found community in r/wallstreetbets, a group on Reddit that banded together to drive up the prices of “meme stocks.” Bed Bath and Beyond was one stock that piqued retail investors’ interest after seeing billionaire investor Ryan Cohen take a 10 percent stake and activist role in the company. However, Cohen ended up being a large disappointment to his retail investor fans, as he subsequently sold off his stake …

Go to article

Order Of Protection Or Deportation? How Civil Orders Of Protection Entangle Noncitizens And Their Families In The Immigration And Criminal Legal Systems, Creating The Harm That They Were Intended To Prevent., Sarah E. Corsico Dec 2023

Order Of Protection Or Deportation? How Civil Orders Of Protection Entangle Noncitizens And Their Families In The Immigration And Criminal Legal Systems, Creating The Harm That They Were Intended To Prevent., Sarah E. Corsico

Brooklyn Law Review

A civil protection order can act as an important form of relief for an individual experiencing violence; however, it can also bring extreme complications and consequences for noncitizens. Unlike its intended purpose as a remedy separate from punitive state systems, civil protection orders can replicate the harm of the criminal legal system for noncitizens—barring someone from gaining immigration status, delaying applications, impacting international travel, and at its worst, resulting in deportation. Despite the high stakes nature of these proceeding, for the most part, there is no right to assigned counsel in civil protection order cases. As a result, many individuals …

Go to article

Next Last