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Articles 1 - 17 of 17
Full-Text Articles in Conflict of Laws
Rethinking International Armed Conflict: Legal Challenges In The Age Of Hybrid Warfare, Oleksandr Havryshuk, Roman Hryshchenko
Rethinking International Armed Conflict: Legal Challenges In The Age Of Hybrid Warfare, Oleksandr Havryshuk, Roman Hryshchenko
Brooklyn Journal of International Law
The binary classification of armed conflicts under international humanitarian law (IHL) — distinguishing international armed conflicts (IACs) from non-international armed conflicts (NIACs) — was forged in the aftermath of World War II and increasingly fails to capture the realities of twenty-first century warfare. Hybrid tactics, cyber operations, the proliferation of private military companies (PMCs), the expanding role of non-state actors, and the near-disappearance of formal declarations of war have eroded the analytical utility of the existing framework, generating legal uncertainty and weakening protections for affected populations. This Article critically examines the conceptual foundations of IAC as set out in Common …
Navigating The Legal Waters Of Privatized Commodities And Human Rights: An Exploration Of The Tension Between Water As A Human Right And Water As Investment Property Under International Law, Ella Capen
Brooklyn Journal of International Law
This Note examines the clash between domestic law and international law within the context of Chile’s 2022 modification to the 1981 Water Code as the country transitions from treating water as a privatized commodity to water as a public good. Chile’s 1981 Water Code emerged against the backdrop of a neoliberal economic regime and privatization scheme enabled by the United States and enforced by dictator Augusto Pinochet. This Note reveals the potential difficulties in unraveling established economic and legal foundations, and the conflicts between bilateral investment treaties and local legislation that mutually govern property rights. By examining Chile’s domestic Law …
Chapter 9 Bankruptcy: The Solution That Causes Problems, Peter C. Alexander
Chapter 9 Bankruptcy: The Solution That Causes Problems, Peter C. Alexander
Brooklyn Journal of Corporate, Financial & Commercial Law
There is a little-known form of bankruptcy called a “Chapter 9,” reserved for insolvent cities, villages, and other municipalities. Occasionally, one reads about a city or a county that has filed for Chapter 9 relief, like Detroit, Michigan, or Orange County, California; however, it is very hard to file a Chapter 9 case, in part, because existing law requires a municipality to obtain permission from its home state before it can file for relief in the U.S. Bankruptcy Court. An additional constraint is that the only option municipalities have when seeking bankruptcy relief is to file a Chapter 9 because …
Does The Loss Of Chance Doctrine Have A Chance In International Sport Arbitration?, Dmitry A. Pentsov
Does The Loss Of Chance Doctrine Have A Chance In International Sport Arbitration?, Dmitry A. Pentsov
Brooklyn Journal of International Law
The Article analyzes whether and, if so, how, the loss of chance doctrine providing the basis for claims against person who deprived victims of a chance of occurrence of a certain result or decreased this chance could be used in international sport arbitration at the Court of Arbitration for Sport (CAS). It provides a comparative analysis of applicability of this doctrine under English law, French law, and the law of the State of New York to sport competitions and outlines potential problems of utilizing this doctrine in the CAS arbitration through domestic law based on choice-of-law rules. The Article argues …
The Rules Of The Malpractice Game: Affidavit Of Merit Statutes, Erie, And The Cautionary Tale Of An Overbroad Application Of Rule 11, Deanna Arpi Youssoufian
The Rules Of The Malpractice Game: Affidavit Of Merit Statutes, Erie, And The Cautionary Tale Of An Overbroad Application Of Rule 11, Deanna Arpi Youssoufian
Brooklyn Law Review
In an effort to combat the rise in potentially frivolous lawsuits against professionals, including physicians, attorneys, and journalists, states have passed malpractice legislation requiring plaintiffs to file an affidavit of merit (AOM) attesting to the validity of their claims. However, these AOM statutes may conflict with Federal Rule of Civil Procedure 11, which provides that “a pleading need not be verified or accompanied by an affidavit” unless a rule or statute states otherwise. This is a classic Erie/choice-of-law problem for federal courts sitting in diversity, which are tasked with applying federal procedural law and state substantive law, and now must …
Hong Kong’S Extradition Bill: Implications & Ramifications, Grace Wang
Hong Kong’S Extradition Bill: Implications & Ramifications, Grace Wang
Brooklyn Journal of International Law
Since June 2019, millions of people in Hong Kong protested against the proposed extradition bill, which would permit the HKSAR government to extradite anyone residing, visiting, or passing through Hong Kong to mainland China with which it has no formal extradition agreement with. This Note will argue that the proposed extradition bill not only created a legal loophole in the existing system by removing legislative scrutiny and judicial oversight, but also violated international human rights law in light of mainland China’s record of serious human rights violation. Instead, the HKSAR and PRC governments should cooperate to create an impartial special …
Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker
Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker
Brooklyn Journal of International Law
Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …
Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane
Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane
Brooklyn Journal of International Law
The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …
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, …
The Devious Debtor: 11 U.S.C. § 523(A)(2)(B) And The Need For A More Equitable Outcome, Torie Levine
The Devious Debtor: 11 U.S.C. § 523(A)(2)(B) And The Need For A More Equitable Outcome, Torie Levine
Brooklyn Journal of Corporate, Financial & Commercial Law
Section 523(a)(2)(A) of the Bankruptcy Code prohibits debtors from discharging debts for money, property, services, or credit obtained by false pretenses, a false representation, or actual fraud other than a statement respecting the debtor’s financial condition. Under § 523(a)(2)(B), if those debts are obtained by a statement respecting the debtor’s financial condition, then the statement must be in writing for the debt to be discharged. A conflict among the circuit courts arose as to whether a statement about a single asset can be a statement respecting the debtor’s financial condition. The majority of the courts applied a narrow interpretation to …
Have Prenup, Will Travel: Why England’S Law On Marital Agreements Has Attracted Forum Shoppers And How The Courts Can Fight Back, Karina Vanhouten
Have Prenup, Will Travel: Why England’S Law On Marital Agreements Has Attracted Forum Shoppers And How The Courts Can Fight Back, Karina Vanhouten
Brooklyn Journal of International Law
This Note examines the English judiciary’s reluctance to fully accept marital agreements, and the disruptive effect this has in the global legal arena. In our increasingly international world, the fundamental events of family life—marriage, divorce, and death—often no longer occur in the same jurisdiction. In recent years, prospective divorcées from around the globe have flocked to England to take advantage of the country’s matrimonial law, which generally favors the party seeking to invalidate or minimize a marital agreement. This forum-shopping phenomenon is problematic because English courts regularly disregard foreign marital agreements that would be valid and binding in other jurisdictions, …
Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli
Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli
Brooklyn Journal of Corporate, Financial & Commercial Law
Risks associated with incentive misalignment are liable to seriously jeopardize the effectiveness of bank resolution, when not properly contained. This Article considers the management of misaligned incentives between regulators that are found in a vertical relationship of public governance. Using the EU legal framework of bank resolution as its case study, this Article explores the effectiveness of the quasi-enforcement powers of the Single Resolution Board (SRB) and, where relevant, of the European Banking Authority (EBA) as an incentive realignment legal technique. Two principal difficulties are identified: on the one hand, the problematic interinstitutional dynamic of the SRB and the EBA …
Credit Discrimination Based On Gender: The Need To Expand The Rights Of A Spousal Guarantor Under The Equal Credit Opportunity Act, Allen Abraham
Credit Discrimination Based On Gender: The Need To Expand The Rights Of A Spousal Guarantor Under The Equal Credit Opportunity Act, Allen Abraham
Brooklyn Journal of Corporate, Financial & Commercial Law
This Note focuses on the definition of “applicant” as defined in the Equal Credit Opportunity Act (ECOA) and Regulation B. Specifically, this Note explores the expanded protections offered by the ECOA to spousal guarantors, after the Federal Reserve Board (FRB) expanded the definition of “applicant” by promulgating Regulation B. However, after a circuit split, where the Eighth Circuit, in Hawkins v. Community Bank of Raymore, held that a guarantor was not an “applicant” per the ECOA’s definition and the Sixth Circuit, in RL BB Acquisition, LLC v. Bridgemill Commons Development Group, LLC, followed Regulation B’s expansion of the definition of …
Another Bite At The Apple For Trade Secret Protection: Why Stronger Federal Laws Are Needed To Protect A Corporation's Most Valuable Property, Alissa Cardillo
Another Bite At The Apple For Trade Secret Protection: Why Stronger Federal Laws Are Needed To Protect A Corporation's Most Valuable Property, Alissa Cardillo
Brooklyn Journal of Corporate, Financial & Commercial Law
Trade secrets are one of a corporation’s most valuable assets. However, they lack adequate protection under federal law, leaving them vulnerable to theft and misappropriation. As technology advances, it becomes easier and less time consuming for individuals and entities to access and steal trade secrets to a corporation’s detriment. Most often these thefts involve stealing trade secrets in an intangible form. Current legislation fails to adequately protect intangible trade secrets, leaving them vulnerable to theft. An amendment to the National Stolen Property Act that encompasses intangible trade secrets would close a loophole that currently exists relating to intangible assets, allowing …
Auctioning For Loyalty: Selection And Monitoring Of Class Counsel, Alex Stein, Alon Harel
Auctioning For Loyalty: Selection And Monitoring Of Class Counsel, Alex Stein, Alon Harel
Faculty Scholarship
No abstract provided.
Neumeier V. Kuehner: Where Are The Emperor's Clothes?, Aaron Twerski
Neumeier V. Kuehner: Where Are The Emperor's Clothes?, Aaron Twerski
Faculty Scholarship
No abstract provided.
Common Sense And Conflict Of Laws: A Welcome Change, Aaron Twerski
Common Sense And Conflict Of Laws: A Welcome Change, Aaron Twerski
Faculty Scholarship
No abstract provided.