Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Legislation (27)
- Litigation (27)
- Constitutional Law (24)
- Courts (19)
- Administrative Law (16)
-
- Business Organizations Law (15)
- Other Law (15)
- Civil Procedure (14)
- Civil Rights and Discrimination (14)
- Law and Society (14)
- Torts (14)
- First Amendment (13)
- Jurisprudence (13)
- Law and Economics (13)
- Legal Remedies (13)
- Supreme Court of the United States (12)
- State and Local Government Law (11)
- Agency (10)
- Securities Law (10)
- Banking and Finance Law (9)
- Internet Law (9)
- Law and Gender (9)
- Comparative and Foreign Law (8)
- Consumer Protection Law (8)
- Criminal Law (7)
- Labor and Employment Law (7)
- Privacy Law (7)
- Public Law and Legal Theory (7)
- Keyword
-
- Chevron; Chevron (2)
- Inc. v. Nat. Res. Def. Council (2)
- U.S.A. (2)
- 21st Amendment; Prohibition; marijuana; Dormant Commerce Clause (1)
- Abkhazia (1)
-
- Accountability; Corporate Governance; "Wenze" Accountability; China; Chinese Corporate Governance; Anglo-American Corporate Governance; "Guanxi" (personal connections/ relationships); Cultural Factors and Elements; Cultural Sensitivity; State Owned Enterprises (SOE); Corporate Strategy; Profit Distribution; Decentralization; Hybrid Corporate Governance Model; "Renqing" (reciprocity); Gift Giving; "Mianzi" (face); "Xinren" (trust); Confucianism; G20/OECD's Principles of Corporate Governance; Transparency; Relationology; Cultural Derivatives; Two-Tier Board System; Board Ethics; Information Accuracy; Justification and Explanation Followed by Questioning and Evaluation; Imposition of Consequences; Positive Values; Negative Problems; Harmonious Business Environment (1)
- Administrative proceedings; Dodd-Frank; Securities Regulation; Chamber of Commerce; Fair enforcement; Admissibility of evidence; Hearsay; Discovery; Securities and Exchange Commission (SEC) Rules of Practice; Administrative guidelines; History of the SEC; Securities Exchange Acts of 1933 and 1934; Insider Trading Sanctions Act of 1984 (ITSA); Securities Fraud Enforcement Act of 1988 (ITSFEA); Securities Enforcement Remedies and Penny Stock Reform Act of 1990; Sarbanes-Oxley; Administrative Law Judges (ALJs); Statutory interpretation; Chevron deference; Forum selection; Administrative rulemaking; Code of Federal Regulations (CFR); CFR Rule 360; CFR Rule 233; CFR Rule 320; Pre-hearing length; Depositions (1)
- Adversarial proceeding (1)
- Algeria (1)
- Amazon; Second Restatement of Torts; distribution chain; product defects; injury; consumers; sellers; Section 402a; marketplace; insolvency; internet; product liability; Oberdorf v. Amazon.com; Communications Decency Act; Third Circuit; Third-party sellers; Fullfillment by Amazon; FBA; Business Solutions Agreement; BSA; price parity; third-party vendors; sponsorship; Amazon's choice; Best Seller; Prime; keyword bids; supply chain; Buy Box; FDA; Food and Drug Administration (1)
- And Stockyards Administration; GIPSA; Elizabeth Warren; No-Poach; Joseph Biden; State Attorneys General; Clayton Act; Sherman Act; Donald Trump; Department of Justice; DOJ; Google; Apple; Amazon; White House; Time Warner/AT&T; Pharma; Pay-for-delay; generic drug; Preserve Access to Affordable Generics and Biosimilars Act; Section 5 of the FTC Act; Antitrust Review Act of 2019; Food and Agriculture Concentration and Market Power Review Commission; Reform Bills; Anti-Monopoly and Competition Restoration Act; AMCRA; Congressional Oversite; House Antitrust Caucus; globalization; income inequality; racial justice; NGO (1)
- Angola (1)
- Antitrust Law; Labor Law; Sports Law; Nonstatutory Labor Exemption; Collective Bargaining; Ohio State; NCAA; football; NWSL; Portland Thorns; soccer; Professional Sports; Mandatory Subjects of Bargaining; Rule of Reason; Clarett v. NFL; Moultrie v. National Women’s Soccer League; Mackey v. National Football League; Brown v. Pro Football (1)
- Antitrust; European Union; Regan Revolution; Chicago School of Law and Economics; Campaign Platforms; COVID-19; Super Tuesday; Amy Klobuchar; United States Department of Agriculture; USDA; Office of Competition Advocate; OCA; Federal Trade Commission; FTC; Bernie Sanders; Federal Trade Commission Acts; Grain Inspectors (1)
- Applicant (1)
- Artificial Intelligence; AI; Deepfakes; Nonconsensual Sexual Deepfakes; Vulnerable Populations; Law and Technology; Regulations; Civil Liability; Strict Liability; Legislation (1)
- Atlantic City (1)
- Attorney-client privielge; In-house consel; Content of communication; Role of In-House consel; Non-legal functions; Protected Attorney-Client communications discoverable; Business advice; Purpose and content of speech (1)
- Attorney’s fees; Bankruptcy attorneys; Bankruptcy Reform Act of 1978; Baker Botts v. ASARCO; L.L.C.; Fee applications; Prejudicial treatment; United States Trustee; Bankruptcy Code Section 330; Bankruptcy Code Section 328; Administrative expense; Reasonable fees; Actual and necessary services; Supreme Court; Fee-defense litigation; Frivolous litigation; Quantum meruit; Lodestar Method; Hindsight approach; Hybrid approach; Statutory interpretation; Underlying benefit; Enhanced fees; The American Rule; Fee-shifting; Bad faith exception to the American Rule; Higher standard (1)
- Bangladesh (1)
- Bankruptcy Law; Stern v. Marshall; Executive Benefits Insurance Agency v. Arkison; Wellness International Network; Ltd. V. Sharif; Supreme Court; Federal Bankruptcy Rule 7012(b); Balancing test; Core claims and non-core claims; Jurisdiction; Competency; Implied consent; Federal Judgeship Act of 1984; Non-Article III Courts; Northern Pipeline Construction Co. v. Marathon Pipe Line Co.; Statutory authority; Counterclaims; Adjuncts of district courts; Stern Claim; Stern Gap; Intermediary claims; Knowing and voluntary; Legislative history; Private or Public rights (1)
- Battle of the experts (1)
- Big data; Securities and Exchange Commission; SEC; securities law; securities regulation; geo-location; data mine; alternative data; information technology; IT; Investment Advisers Act; Securities Exchange Act; Elon Musk; Tesla; Puerto Rico; capital; assets under management; AUM; Department of Justice; DOJ; Rule 10b5; material (1)
- Canada; Ghana; United States; LGBTQ+; Conversion Therapy; Religious Conversion Therapy; Sexual Orientation and Gender Identity Change Efforts; Lesbian; Gay; Bisexual; Transgender; Queer; 2-Spirit; Intersex; Homosexuality; Sexuality; Sexual Orientation; Gender Identity; Gender Expression; Gender Binary; Gender-Based Discrimination; Anti-LGBTQ+; Homophobia; Transphobia; LBGTQ+ Rights; Human Rights; International Human Rights; The Criminal Offenses Act (1960) (Ghana); The Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill; Bill C-6 An Act to Amend the Criminal Code (Conversion Therapy); Bill C-4 An Act to Amend the Criminal Code (Conversion Therapy); The Prohibition of Medicaid Funding for Conversion Therapy Act (2019); The Therapeutic Fraud Prevention Act (2021) (1)
- Casino (1)
- Chechnya (1)
- Chevron deference (1)
- Christie (1)
- Circuit courts (1)
- Circuit split (1)
- Publication Year
- Publication
- Publication Type
Articles 31 - 60 of 102
Full-Text Articles in Civil Law
An Unreasonable Presumption: The National Security/Foreign Affairs Nexus In Immigration Law, Anthony J. Demattee, Matthew J. Lindsay, Hallie Ludsin
An Unreasonable Presumption: The National Security/Foreign Affairs Nexus In Immigration Law, Anthony J. Demattee, Matthew J. Lindsay, Hallie Ludsin
Brooklyn Law Review
For well over a century, immigration has occupied a constitutionally unique niche within US public law. Noncitizens in immigration proceedings are routinely denied constitutional guarantees, including due process and equal protection, that apply in virtually every other legal setting. Courts justify their extraordinary deference to the government by invoking a presumptive nexus between immigration, on the one hand, and national security and foreign affairs, on the other. Critically, courts cite the national security/foreign affairs nexus regardless of whether the specific regulation or enforcement action under review has any plausible bearing on those interests. This article is the first to demonstrate …
The Phantasm Of Principle, Wilfred Codrington Iii
The Phantasm Of Principle, Wilfred Codrington Iii
Faculty Scholarship
No abstract provided.
Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past
Brooklyn Journal of International Law
So-called “conversion therapy” consists of dangerous practices that inflict detrimental, long-lasting effects on its victims. As a form of sexual orientation or gender identity or gender expression change efforts, conversion therapy is fostered by global homophobia and transphobia. Despite formal public rejection and scientific discreditation, conversion therapy providers across the world continue to target LGBTQ+ individuals, predominately under the guise of offering health care services or obeying religious practices. The following piece compares conversion therapy in three countries with recently introduced LGBTQ+ legislation––(1) Ghana; (2) Canada; and (3) the United States (U.S.)–––in order to identify factors furthering conversion therapy and …
A Firm Pillar Of Local Justice: The Failures Of The New York Town And Village Justice Courts Supporting Statewide Adoption Of The District Court Model, Noah Sexton
Journal of Law and Policy
Town and village justice courts have been the center of municipal law, both civil and criminal, since the mid-nineteenth century. However, in the modern world, they have become corrupt, poorly managed institutions, creating issues involving procedural integrity and civil rights. In order to remedy these failures and modernize the New York State Unified Court System, state legislators must look to the district court model as it currently exists in Nassau and Eastern Suffolk Counties. The district court model offers several benefits, including the imposition of educational and experiential requirements for judges, the creation of internal and external oversight institutions, the …
Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport
Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport
Brooklyn Journal of Corporate, Financial & Commercial Law
This short (approx. 5,000 words) essay, which forms the basis of a keynote address to the Federal Bar Association that I’m doing next month, discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills. One note, though: my writing style is informal and distinctive in that regard (especially …
A Rejection Of Absolutist Duties As A Barrier To Creditor Protection: Facilitating Directorial Decisivness Surrounding Insolvency Through The Business Judgment Rule, Philip Gavin
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article draws attention to the difficulties that directors may face when seeking to discharge their duties as a corporation approaches insolvency, in particular when directors must discern the point at which a corporation has become insolvent. It argues that discretion allowed to directors by the business judgment rule will be crucial to overcoming these difficulties. To do this, this article examines the nature of duties owed by directors both before and after insolvency, and accepts the stance taken by Delaware courts in recent years towards an expansive understanding of a corporation’s interests upon insolvency. It then considers unresolved issues …
Proxy Advisors As Issue Spotters, Douglas Sarro
Proxy Advisors As Issue Spotters, Douglas Sarro
Brooklyn Journal of Corporate, Financial & Commercial Law
When institutional investors hire proxy advisors to prepare reports on matters up for vote at public company shareholder meetings, are they interested primarily in acquiring a bottom-line recommendation on how to vote, on which they can then blindly rely? Or in acquiring information that will help them make their own voting decisions? Supporters of controversial reforms introduced by the Securities and Exchange Commission (SEC) in 2019 and 2020 gravitate toward the former position, arguing that reform is needed to discourage undue reliance on proxy advisor recommendations. Opponents gravitate toward the latter position, arguing that additional regulation generally is unnecessary given …
Reducing Conflicts Of Interest: A "Glass-Steagall" Split Of Advisory And Consulting Services Of Proxy Advisory Firms, Austin Manna
Reducing Conflicts Of Interest: A "Glass-Steagall" Split Of Advisory And Consulting Services Of Proxy Advisory Firms, Austin Manna
Brooklyn Journal of Corporate, Financial & Commercial Law
This Note explores a solution to the potential problem with proxy advisory firms that involves an inherent conflict of interest arising from the structure of two services—advisory and consulting services—offered at certain proxy advisory firms in the United States. The solution proposed in this paper applies a Glass-Steagall framework to breakup these two services of the proxy advisory firms. In theory, this would eliminate the inherent conflicts of interest.
Looking For A Silver Lining: How The Covid-19 Pandemic Forced New York To Reckon With Its Affordable Housing Crisis, Daniel Finnegan
Looking For A Silver Lining: How The Covid-19 Pandemic Forced New York To Reckon With Its Affordable Housing Crisis, Daniel Finnegan
Brooklyn Journal of Corporate, Financial & Commercial Law
Since the Great Depression, the United States government has failed to find an adequate remedy to a nationwide housing shortage amongst low- and moderate-income individuals and families. The COVID-19 public health crisis has exacerbated this ongoing, nation-wide housing crisis, and has highlighted the racial inequities present in our housing market. Furthermore, it has pushed New York State’s residential housing market into a uniquely precarious position. Dramatic legislation is required at the state level to address the housing crisis caused by the massive growth in income-insecure and housing-insecure individuals that resulted from the pandemic, as well as the widespread departure of …
Police Reform Through A Power Lens, Jocelyn Simonson
Police Reform Through A Power Lens, Jocelyn Simonson
Faculty Scholarship
No abstract provided.
Functional Statehood In Contemporary International Law, William Thomas Worster
Functional Statehood In Contemporary International Law, William Thomas Worster
Brooklyn Journal of International Law
The international community lacks a form of territorial-based, international legal personality distinct from statehood, and yet, non-state, territorial entities of varying degrees of autonomy or independence need to function within the international community in some form. Some of these entities cannot be recognized as states because their creation violates jus cogens norms, though others are not recognized based on an assessment that they may not fully qualify as a state or that there are political reasons to refuse recognition. However, existing states still need to engage with these territorial quasi-states through the only paradigm the international community has—statehood. For example, …
It’S 1919 Somewhere: What Tennessee Wine & Spirits Retailers Association V. Thomas Means For The National Hangover Of The Twenty-First Amendment, The Dormant Commerce Clause, And Federal Legalization Of Intoxicating Substances., Evan W. Saunders
Brooklyn Law Review
The United States has a drinking problem; or rather, an alcohol problem. In the aftermath of Prohibition and the passage of the Twenty-First Amendment, the Supreme Court has struggled to settle upon an overarching regulatory system for alcohol that is amenable to both the federal government and the states. Most recently, in Tennessee Wine and Spirits Retailers Association v. Thomas, the Court further asserted that alcohol should be treated just like any other good under the Dormant Commerce Clause. This note examines the Court’s Twenty-First Amendment jurisprudence leading up to Tennessee Wine, and suggests an alternate interpretation of the amendment …
Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar
Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar
Brooklyn Journal of International Law
The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …
Libertad For All? Why The Helms-Burton Act Is An Empty Promise Of “Freedom” For The Cuban People., Cristina L. Lang
Libertad For All? Why The Helms-Burton Act Is An Empty Promise Of “Freedom” For The Cuban People., Cristina L. Lang
Brooklyn Law Review
After the Cuban Revolution, the Castro government nationalized the property of many American nationals, which served as a justification for the Kennedy administration’s decision to institute a general economic embargo on Cuba. This embargo was officially codified in the late 1990s in the Cuban Liberty and Democratic Solidarity (Libertad) Act, enacted by President Bill Clinton. Title III of this Act was suspended since its enactment. By creating a private cause of action for American nationals to sue “traffickers” of their improperly nationalized Cuban property, Title III aims to deter foreign investment into Cuba and compensate American citizens whose Cuban property …
The Modern Pay For Play Model: Laws That Protect Student-Athletes' Fundamental Right To Commercialze Their Names, Images, And Likeness, Paul A. Schwabe Jr.
The Modern Pay For Play Model: Laws That Protect Student-Athletes' Fundamental Right To Commercialze Their Names, Images, And Likeness, Paul A. Schwabe Jr.
Brooklyn Journal of Corporate, Financial & Commercial Law
In O’Bannon v. NCAA, the United States District Court for the Northern District of California entered a permanent injunction against the National Collegiate Athletic Association enjoining the collegiate sports governing body from enforcing limits on student-athlete compensation derived from the use of their name, images, and likenesses rights. The court concluded that NCAA rules unreasonably restrained trade in violation of the Sherman Anti-Trust Act, however, neither the court nor the NCAA laid out a framework for lawfully implementing these new economic rights to student-athletes. Since that ruling, only one state’s legislature, California, has attempted to pass legislation to prevent the …
Cyber-Insecurity: The Reasonableness Standard In Internet Of Things Device Regulation And Why Technical Standards Are Better Equipped To Combat Cybercrime, Chynna Rose Foucek
Cyber-Insecurity: The Reasonableness Standard In Internet Of Things Device Regulation And Why Technical Standards Are Better Equipped To Combat Cybercrime, Chynna Rose Foucek
Brooklyn Journal of Corporate, Financial & Commercial Law
While the Internet of Things (IoT) has created an interconnected world via phones, laptops, and even household devices, it is not infallible. As cyber-attacks increase in frequency, affecting companies of all sizes and industries, IoT device manufacturers have become particularly vulnerable, due in large part to the fact that many companies fail to implement adequate cybersecurity protocols. Mass data breaches occur often. However, these companies are not held accountable due to the use of the reasonableness standard in existing cybersecurity legislation, which is flexible and malleable. In 2019, the California Legislature enacted a cybersecurity law specific to IoT device manufacturers. …
The Political Face Of Antitrust, Spencer Weber Waller, Jacob E. Morse
The Political Face Of Antitrust, Spencer Weber Waller, Jacob E. Morse
Brooklyn Journal of Corporate, Financial & Commercial Law
The last twenty years have brought antitrust back to the fore as a political issue of greater salience. Several booms and busts in the economy have highlighted the issue of corporate power in the economy and the political system. The growing influence and aggressiveness of the European Union and other jurisdictions’ competition laws have highlighted the relative retreat in the United States. Political movements in the United States have brought issues of corporate power and its abuse back into the public limelight and with them a greater political salience for antitrust in the election cycle of 2020.
The Revolution Of The Commercial Space Industry: Why Current Laws Must Be Replaced Before American Business Expands To The Moon And Beyond, Drew M. Fryhoff
The Revolution Of The Commercial Space Industry: Why Current Laws Must Be Replaced Before American Business Expands To The Moon And Beyond, Drew M. Fryhoff
Brooklyn Journal of Corporate, Financial & Commercial Law
Space, the final frontier. Resting at the rim of the Earth, an endless void full of opportunity awaits those who are willing to take a leap of faith. Historically, only national space programs have been capable of orchestrating expeditions to outer space. However, American aerospace companies now rival governmental entities in their abilities to operate beyond the Earth’s atmosphere. State-of-the-art developments in aerospace technology have positioned the American commercial space sector to become more productive than national space programs in the years to come. Unfortunately, the potential of the American commercial space sector is severely hindered under the Treaty on …
Alternative Data And Insider Trading: Are Investment Managers Assleep At The Wheel On Big Data Use?, William Montemarano
Alternative Data And Insider Trading: Are Investment Managers Assleep At The Wheel On Big Data Use?, William Montemarano
Brooklyn Journal of Corporate, Financial & Commercial Law
The rapid rise of “big data” has transformed the way that professional investors make investment decisions. In addition, the intersection of the United States federal securities laws and the use of “big data” to inform securities trading lies in uncharted waters. The nuanced and factually-dependent securities laws are far behind industry practices, and the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) have remained largely silent on the issue to date. This Note argues that this combination of murky laws and rapidly evolving business practices gives rise to legal and regulatory risk, and that investment managers leveraging …
The Heavy Hand Of Amazon: A Seller Not A Neutral Platform, Edward J. Janger, Aaron D. Twerski
The Heavy Hand Of Amazon: A Seller Not A Neutral Platform, Edward J. Janger, Aaron D. Twerski
Brooklyn Journal of Corporate, Financial & Commercial Law
Since the adoption of Section 402A of the Second Restatement of Torts, every party in a product’s distribution chain has been potentially liable for injuries caused by product defects. Consumers who buy from reputable sellers are almost always guaranteed to have a solvent defendant if injured by a product defect. Amazon, though responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates third-party sales to consumers. With two significant exceptions, most courts have sided with Amazon and concluded that Amazon is not …
Protecting Health Information In Utero: A Radical Proposal, Luke Isaac Haqq
Protecting Health Information In Utero: A Radical Proposal, Luke Isaac Haqq
Journal of Law and Policy
This Article introduces an underappreciated space in which protected health information (“PHI”) remains largely unprotected, a fact that will become only more problematic as clinical medicine increasingly turns to genomics. The past decade has seen significant advances in the prevention of birth defects, especially with the introduction of clinical preconception, prenatal, and neonatal genomic sequencing. Parental access to the results of embryonic and fetal clinical sequencing is critical to reproductive autonomy; results can provide parents with important considerations in determining whether to seek or avoid conception, as well as in deciding whether to carry a pregnancy to term. The information …
Sex, Trump, And Constitutional Change, Elizabeth Schneider, Helen Hershkoff
Sex, Trump, And Constitutional Change, Elizabeth Schneider, Helen Hershkoff
Faculty Scholarship
No abstract provided.
The Equifax Data Breach And The Resulting Legal Recourse, Caitlin Kenny
The Equifax Data Breach And The Resulting Legal Recourse, Caitlin Kenny
Brooklyn Journal of Corporate, Financial & Commercial Law
What happens when one’s sensitive information falls into the wrong hands? With the twenty-first century’s advancement of technology comes the increasing problem of data breaches wherein sensitive information is exposed. On September 7, 2017, Equifax, one of three major United States credit reporting agencies announced one of the largest data breaches in the history of the United States. The data breach affected approximately 145 million consumers and subsequently a wave of consumer class actions followed. This Note clarifies why class action lawsuits and arbitration are not viable legal remedies for massive data breaches where entities like credit reporting agencies are …
Ab(Ju)Dication: How Procedure Defeats Civil Liberties In The War On Terror, Susan Herman
Ab(Ju)Dication: How Procedure Defeats Civil Liberties In The War On Terror, Susan Herman
Faculty Scholarship
No abstract provided.
Accountability In Corporate Governance In China And The Impact Of Guanxi As A Double-Edged Sword, Andrew Keay, Jingchen Zhao
Accountability In Corporate Governance In China And The Impact Of Guanxi As A Double-Edged Sword, Andrew Keay, Jingchen Zhao
Brooklyn Journal of Corporate, Financial & Commercial Law
Accountability is an essential aspect of corporate governance and it has been argued that the “wenze” system of accountability in China comes very close to the accountability systems developed in Anglo-American corporate governance. This Article examines the role of cultural factors, namely guanxi and its derivatives, in corporate governance in China to determine what effect, if any, these cultural factors have on the operation and development of the “wenze” system in large listed companies. The Article specifically considers whether the cultural elements affect accountability, and if so, how and to what extent. It also explores whether these cultural factors are …
When You Come To A Fork In The Road, Take It: Unifying The Split In New York's Analysis Of In-House Attorney-Client Privilege, Thomas O'Connor
When You Come To A Fork In The Road, Take It: Unifying The Split In New York's Analysis Of In-House Attorney-Client Privilege, Thomas O'Connor
Journal of Law and Policy
As one surveys the vast and ever-changing landscape of law and litigation, few things stand out as so unanimously exalted and carefully guarded as the privilege protecting attorney-client communications. Yet there is today a surprising lack of uniformity and predictability in the reasoning by which New York courts determine whether a communication made by in-house counsel to its corporate client will – or will not – enjoy the protection of that privilege. Rather than follow a single and predictable analysis to resolve the question, New York courts have oscillated between one line of decisions focusing primarily on the purpose of …
Dashboard Compliance: Benefit, Threat, Or Both?, James Fanto
Dashboard Compliance: Benefit, Threat, Or Both?, James Fanto
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article poses the basic question that is reflected in its title and that was the subject of the conference where the Article was initially presented: whether technology poses any threats to the mission of compliance and the position of compliance officers, whether it is just another useful tool for them, or whether it is something of both. It begins by explaining the origin of compliance in broker-dealers and investment advisers and its important current position in those firms. It then discusses why compliance officers have always been drawn to technology, particularly to keep up with the business sides of …
Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard
Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard
Brooklyn Journal of Corporate, Financial & Commercial Law
The Securities and Exchange Commission (SEC or Commission) appears to be on the verge of requiring investment advisers to undergo third party examinations. One justification for the rulemaking is that the Commission lacks sufficient resources to examine advisers frequently enough. Another is to create indirectly a self-regulatory organization (SRO) for investments advisers. Both may leave a rulemaking particularly vulnerable to challenge as arbitrary and capricious under the Administrative Procedures Act. This Article considers three novel grounds on which a rulemaking may be successfully challenged. Congress has repeatedly rejected SEC requests to provide additional funding for examinations or to create an …
The Question Concerning Technology In Compliance, Sean J. Griffith
The Question Concerning Technology In Compliance, Sean J. Griffith
Brooklyn Journal of Corporate, Financial & Commercial Law
In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures.
Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon
Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon
Brooklyn Journal of Corporate, Financial & Commercial Law
Privacy has come to the forefront of the technology world as third party hackers are constantly attacking companies for their customers’ data. With increasing instances of compromised customer information, the Federal Trade Commission (FTC) has been bringing suit against companies for inadequate data security procedures. The FTC’s newfound authority to bring suit regarding cybersecurity breaches, based on the Third Circuit’s decision in FTC v. Wyndham Worldwide Corp., is a result of inaction—Congress has been unable to pass sufficient cybersecurity legislation, causing the FTC to step in and fill the void in regulation. In the absence of congressional action, this self-proclaimed …