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Brooklyn Journal of Corporate, Financial & Commercial Law

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Full-Text Articles in Commercial Law

The Tiger Trap Of Claims-Made-And-Reported Insurance Policies, Vonda Mallicoat Laughlin May 2026

The Tiger Trap Of Claims-Made-And-Reported Insurance Policies, Vonda Mallicoat Laughlin

Brooklyn Journal of Corporate, Financial & Commercial Law

Insurance policies contain notification requirements. A typical requirement is that notice be provided of a claim, or of an incident likely to lead to a claim, promptly or within a certain number of days of the occurrence. A claims-made-and-reported policy generally has this type of notification requirement but further requires that notice of a claim be provided within the coverage dates of the policy or within a set number of days following the policy’s expiration date. Over the years, the claims-made-and-reported form has reached popularity in regard to certain types of liability coverage. As exemplified by the case of President …

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Property, Recognition, And The Problem Of The Term “Debtor”: Rethinking Eligibility In Chapter 15 Cross-Border Insolvency, Jonathan Lent May 2026

Property, Recognition, And The Problem Of The Term “Debtor”: Rethinking Eligibility In Chapter 15 Cross-Border Insolvency, Jonathan Lent

Brooklyn Journal of Corporate, Financial & Commercial Law

Congress knows how to draft a property requirement. There is no such requirement for a Chapter 15 debtor to seek recognition of its foreign proceeding, yet there is a circuit split on the issue. In 2005, Congress enacted Chapter 15 through the Bankruptcy Consumer Protection and Consumer Act (“BAPCPA”). The Second Circuit in In re Barnet held that section 109(a), along with its property requirement, applies in a Chapter 15 case through section 103(a), which provides that Chapter 1 of the bankruptcy code applies to Chapter 15. The Eleventh Circuit, in In re Al Zawawi, relying on jurisprudence decided under …

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Balancing A Circular Economy With Brand Protection: How Luxury Fashion Houses Can Regulate Upcycling Through Trademark Licensing, Olivia Dinkins Dec 2025

Balancing A Circular Economy With Brand Protection: How Luxury Fashion Houses Can Regulate Upcycling Through Trademark Licensing, Olivia Dinkins

Brooklyn Journal of Corporate, Financial & Commercial Law

The growing demand for sustainable fashion, particularly among younger consumers, has led to a surge in upcycling practices that repurpose pre-existing materials, often featuring luxury brand trademarks. While upcycling may support a circular economy and artistic innovation, it poses complex legal challenges for trademark owners, especially concerning consumer confusion, dilution, and the use of counterfeit materials. This Note explores the intersection of trademark law and sustainability in the luxury fashion sector, highlighting the tension between environmental responsibility and intellectual property protection. This Note first analyzes the way various courts have confronted these issues and the limitations of doctrines like first …

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Myth Busters: A Review Of “Debt’S Grip”, Susan Block-Lieb Dec 2025

Myth Busters: A Review Of “Debt’S Grip”, Susan Block-Lieb

Brooklyn Journal of Corporate, Financial & Commercial Law

Debt’s Grip follows a long line of literature that looks to combat legal and cultural myths about consumer debt and consumer bankruptcy with quantitative and qualitative analysis on these topics. Who files for bankruptcy and why? Fighting longstanding myths is tough work, but Pamela Foohey, Robert M. Lawless and Deborah Thorne have marshalled a strong set of tools, and strong intellectual allies, to support this epic battle.

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How And Why To Be A Strategic Debtor, Chrystin Ondersma Dec 2025

How And Why To Be A Strategic Debtor, Chrystin Ondersma

Brooklyn Journal of Corporate, Financial & Commercial Law

Shame and fear prevent many Americans who need debt relief from seeking it. Americans who struggle with debt should reject fear and shame and should instead feel empowered and entitled to seek relief in bankruptcy. Almost every American will need to take on debt at some point. We’re expected to use credit to acquire educations, homes, cars, and appliances—even medical care. Americans do not incur debt strategically, but rather as a matter of survival. In Dignity Not Debt, I argued that human dignity, not profits, should guide policymakers, and that our collective goal should be to end both survival debt …

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Can The New Literature About Debt Make A Real Difference In The Real World?, Norman I. Silber Dec 2025

Can The New Literature About Debt Make A Real Difference In The Real World?, Norman I. Silber

Brooklyn Journal of Corporate, Financial & Commercial Law

Thank you for inviting me to participate in this symposium organized around a group of new books about “Debt in the Real World.” My discussion in Part I considers from a historical perspective the place these books occupy as part of a long tradition of consumer reform which has combined popular literature with scholarship to promote change. Part II then explores themes common to this new wave. Part III closes by arguing that as in earlier periods the new wave can make headway notwithstanding attacks on governmental interventions; that there may be space in our political geography for some of …

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Power, Tools, And Process: Some Reflections On Bankruptcy Minimalism, Edward J. Janger Dec 2025

Power, Tools, And Process: Some Reflections On Bankruptcy Minimalism, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In Unjust Debts: How Our Bankruptcy System Makes America More Unequal, Melissa Jacoby offers a brilliant and sweeping indictment of the way in which bankruptcy law is currently practiced in the United States. As she puts it, “This book is a story of falling out of love. With a law.” Like me, Professor Jacoby came of professional age, at the close of the first age of the Bankruptcy Code. Enacted in 1978, we both learned the statute in the mid-1990s, at a time when the transformative power of the 1978 Code was reaching its peak. On the business side, corporations …

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Wine Unwelcome: The Constitutional Contours Of Wine Regulation, Alexander Fallone Sep 2025

Wine Unwelcome: The Constitutional Contours Of Wine Regulation, Alexander Fallone

Brooklyn Journal of Corporate, Financial & Commercial Law

Wine retail shops face a dizzying labyrinth of state laws that severely restrict their ability to ship wine to out-of-state consumers. While the dormant Commerce Clause would normally strike down laws that impose restrictions on interstate commerce, wine (and alcoholic beverages) must contend with Section Two of the Twenty-first Amendment, which gives the states control over the importation and distribution of wine intending to be consumed within their borders. Court of Appeals cases interpreting Supreme Court precedent on the tension between the dormant Commerce Clause and Section Two have practically stripped the dormant Commerce Clause of any power. This Note …

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Show Me The Money: Approaches To Anti-Money Laundering Compliance For Digital Assets, Mollie Rouan Sep 2025

Show Me The Money: Approaches To Anti-Money Laundering Compliance For Digital Assets, Mollie Rouan

Brooklyn Journal of Corporate, Financial & Commercial Law

The European Union’s Markets in Crypto-Assets Regulation (“MiCA”) created a harmonized framework to regulate digital asset issuance and services that were not already covered by existing regulations. Notably, MiCA requires virtual asset providers to adhere to the Financial Action Task Force Recommendation 16 (“FATF”), also known as the Travel Rule. Though the Travel Rule has existed for almost 20 years, its application to crypto asset transfers is entirely new. The purpose of the Travel Rule is to detect and prevent money laundering and terrorist financing, but its application to cryptocurrency wallet transactions is criticized for being overly burdensome and invasive …

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Who Owns Your Adventure? A Need For Legislative Clarity For Streamed Performances Of Video Games, Harrison Busalacchi Sep 2025

Who Owns Your Adventure? A Need For Legislative Clarity For Streamed Performances Of Video Games, Harrison Busalacchi

Brooklyn Journal of Corporate, Financial & Commercial Law

Video games contain copyrighted material that could easily be infringed upon by people streaming a performance of them playing the game. However, the streamers can protect themselves from infringement liability by transforming the content in some form or fashion such that their performance constitutes “fair use” of the copyrighted material. This is often accomplished by the streamer providing commentary while playing the game or adding a small video of themselves in the corner of the stream so that the viewers can see the streamers’ reactions to the content. With artificial intelligence seeing exponential growth in the past couple of years …

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Data Scraping For Generative Ai—To What Extent?, Jae Yeon Cecilia Kim Dec 2024

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 …

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A Call For Statutory Reform: Online Marketplaces That Profit From Product Sales Should Be Held Strictly Liable As Sellers, Mark Anderson Dec 2024

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 …

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Untangling Bankruptcy’S Most Complex Web: Chapter 11 Rule 1111(B) And Subchapter V, Evan Sponder Dec 2024

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 …

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I Ain't Afraid Of No Ghost…Kitchen! A New Realm Of Consumer Protection After The Inform Consumers Act, Johanna Silva Dec 2024

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 …

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After Further Review: Are Ncaa Conferences Now Subject To Antitrust Liability?, Madison Huberman Dec 2024

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 …

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Situating Bystanders Within Strict Products Liability, Mark A. Geistfeld Dec 2023

Situating Bystanders Within Strict Products Liability, Mark A. Geistfeld

Brooklyn Journal of Corporate, Financial & Commercial Law

"The largely neglected role of bystanders within products liability is reflected in the extensive scholarship of Professor Aaron Twerski—the rightly celebrated honoree of this symposium. Within Twerski’s vast body of impressive publications, his limited discussions of bystanders align with the widely held assumption that, aside from the problems they pose for the consumer expectations test, bystanders do not merit much attention within the context of products liability. Bystander injuries are much more important than is commonly recognized; one must focus on them to adequately identify the conditions under which consumer-choice doctrines properly limit tort liability. Because the varied rules of …

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It's Finally Time For A National Data Privacy Law: A Discussion Of The American Data Privacy And Protection Act (Adppa), Erin J. An Dec 2023

It's Finally Time For A National Data Privacy Law: A Discussion Of The American Data Privacy And Protection Act (Adppa), Erin J. An

Brooklyn Journal of Corporate, Financial & Commercial Law

Millions of Americans face unprecedented privacy risks related to their data, often without their awareness. With the increasing value of consumer data and its growing utilization by businesses, there is a growing demand for greater transparency and privacy protections. As of 2023, no comprehensive federal law governs data privacy in the United States, leaving citizens with limited protections. Introduced to Congress on June 21, 2022, the American Data and Privacy Protection Act (ADPPA) successfully passed the House of Representatives Committee on Energy and Commerce, making it the furthest a national comprehensive data privacy bill has progressed through the federal legislative …

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Limiting 28 U.S.C. § 1782: A Changed Landscape For Discovery In Private Commercial Arbitration Abroad, Jazmyne R. Barto May 2023

Limiting 28 U.S.C. § 1782: A Changed Landscape For Discovery In Private Commercial Arbitration Abroad, Jazmyne R. Barto

Brooklyn Journal of Corporate, Financial & Commercial Law

For decades 28 U.S.C. § 1782 has been used by foreign entities looking to compel discovery in the United States for use in commercial arbitration proceedings abroad. Despite the statute being in force since 1948, many federal courts were unsure of whether § 1782 could actually be used in international private commercial arbitration. The Supreme Court tried and failed to clarify the statute’s scope in 2004, leading to a circuit court split as to §1782’s applicability. Looking to end the controversy once and for all, during the Summer of 2022, the Supreme Court clearly stated that § 1782 might not …

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Part Ii: Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger May 2023

Part Ii: Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

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Neil Cohen’S Contribution To Uniform Secured Finance Law, Spyridon V. Bazinas May 2023

Neil Cohen’S Contribution To Uniform Secured Finance Law, Spyridon V. Bazinas

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article discusses Neil Cohen’s contribution to uniform secured finance law and, in particular, to the UNCITRAL Model Law on Secured Transactions. It does so by focusing on the misgivings Neil Cohen had expressed before, and his reflections on those misgivings after, the preparation of the Model Law. The discussion presents Neil Cohen as is generally known, as a distinguished scholar, but also as he is known to his friends and colleagues, as a person with rare qualities.

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Reforming The Law Reform Ecosystem, Timothy Schnabel May 2023

Reforming The Law Reform Ecosystem, Timothy Schnabel

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article outlines a series of reforms that would make global law reform efforts more effective and efficient. These efforts currently occur primarily in three multilateral organizations (UNCITRAL, UNIDROIT, and the Hague Conference). The member states of these organizations could easily increase coordination—even to the point of de facto consolidation of the organizations’ work—and could increase the attention given to selecting projects and promoting instruments. Additionally, the U.S. government could organize plurilateral law reform efforts outside these organizations and draw on U.S. domestic law reform efforts to identify new topics for work. Finally, non-government actors could themselves coordinate across the …

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Same Old Story, New Solution: Force Majeure Deficiencies In The Wake Of Covid-19 And An Unorthodox Approach To Drafting It, Steven H. Dovi May 2023

Same Old Story, New Solution: Force Majeure Deficiencies In The Wake Of Covid-19 And An Unorthodox Approach To Drafting It, Steven H. Dovi

Brooklyn Journal of Corporate, Financial & Commercial Law

On January 20, 2020, the Centers for Disease Control and Prevention reported the first laboratory-confirmed case of the 2019 Novel Coronavirus (COVID-19) on American soil.[1] On March 8, 2021—more than a year later—the United States District Court for the Southern District of New York decided Gap v. Ponte Gadea New York.[2] It ruled, inter alia, that the COVID-19 pandemic, in keeping with the relevant provision’s narrow tailoring, did not amount to a force majeure event and a defense to breach.[3] While seemingly one of the first decisions of its kind in the Southern District, this Note argues that the holding …

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Commercial Law Harmonization: The Role Of The United States, Hal Burman May 2023

Commercial Law Harmonization: The Role Of The United States, Hal Burman

Brooklyn Journal of Corporate, Financial & Commercial Law

The modern field of transnational commercial law harmonization began in the United States in the mid-1960s; the international basis of that began in the mid-1940s. Before that, a limited number of areas of private international law (PIL) had active participation of US interests, such as maritime law. US participation internationally effectively began in the middle 1960s. Developments parallel to commercial law have been significant in the areas of applicable law, jurisdiction, commercial arbitration, family law, and other fields – all important areas of transnational law, but beyond the scope of this symposium. Each of these areas of law, while affecting …

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Entire Fairness Or Bust: The Burst Of The 2020-2021 Spac Bubble, Nicole Lynch May 2023

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, …

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Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger Dec 2022

Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

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Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger Dec 2022

Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

The “Second” Restatements and the Uniform Commercial Code have shaped the sensibility of lawyers and law students for the last half century. Both projects were anti-formal at their core, articulating pragmatic principles to guide judicial decision making without necessarily determining the outcome. Recent jurisprudence interpreting the Restatements, as well as efforts to update both sets of instruments, have taken a formalist turn. As examples, this essay will consider judicial interpretations of § 402A of the Restatement (Second) of Torts where internet platforms like Amazon are involved. Then it will consider the tortured and recently concluded experience in connection with the …

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Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck Dec 2022

Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

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Failed Efforts At Harmonization Of Securities Regulation, Roberta S. Karmel Dec 2022

Failed Efforts At Harmonization Of Securities Regulation, Roberta S. Karmel

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article is based on a speech made by Professor Karmel at the Brooklyn Journal of Corporate, Financial, & Commercial Law annual symposium in May 2022 titled “Commercial Law Harmonization: Past as Prologue,” analyzing the work done in the past half-century to balance commercial law. The symposium also celebrated the career of Neil B. Cohen of Brooklyn Law School for his teaching and participation in law reform efforts.

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Flow Of Commerce, Flow Of Traffic, Carl S. Bjerre Dec 2022

Flow Of Commerce, Flow Of Traffic, Carl S. Bjerre

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

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The Development Of The American “Security Interest” And Its Effect On The International Harmonization Of Security Rights, Henry Gabriel Dec 2022

The Development Of The American “Security Interest” And Its Effect On The International Harmonization Of Security Rights, Henry Gabriel

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

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