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Articles 1 - 30 of 88
Full-Text Articles in Contracts
International Commitments Of Japan’S Prefectures With Foreign States: Empirical Patterns, Authority, And Legal Nature, Yuhei Matsuyama
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 …
Analyzing The Legal Enforceability Of Bdsm Contracts Between Sex Workers And Clients, Sam Wise
Analyzing The Legal Enforceability Of Bdsm Contracts Between Sex Workers And Clients, Sam Wise
Journal of Law and Policy
Contracts are the common legal solution provided to those entering into agreements who wish to decrease their liability. However, there is a limit to which communities can take advantage of these legal protections. As previously taboo sexual practices like BDSM become more popular, those seeking to engage in the practices may think it reasonable to enter contracts to protect themselves from potential harm. Those who practice BDSM have indeed often turned to contract creation to memorialize the sexual agreements they have made with each other. Sex workers may especially seek to protect themselves from the harm that could result from …
The Tiger Trap Of Claims-Made-And-Reported Insurance Policies, Vonda Mallicoat Laughlin
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 …
Can The New Literature About Debt Make A Real Difference In The Real World?, Norman I. Silber
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 …
The Starving Artist: What The Us Can Learn From Dutch Artist-Focused Legislation About Equitable Remuneration For Musical Creators, Natalia Perez-Flores
The Starving Artist: What The Us Can Learn From Dutch Artist-Focused Legislation About Equitable Remuneration For Musical Creators, Natalia Perez-Flores
Brooklyn Journal of International Law
The United States (US) is the “leader in [the] creation, distribution, and worldwide licensing of recorded music.” Despite this, the US fails to afford moral rights protections to musical creators. Unlike economic rights, moral rights are not primarily concerned with the economic exploitation of art and instead protect the personal and reputational value of a work. Legislative justifications for copyright protection in the US include providing adequate rewards and appropriate incentives for artistic creation. To accomplish this, copyright law must protect authors’ personal expression, or moral rights, as much as it protects authors’ financial compensation, or economic rights. By focusing …
Uptier Debt Exchange Transactions: A Winner-Take-All Battle In The Leveraged Loan Market, Angela Chang
Uptier Debt Exchange Transactions: A Winner-Take-All Battle In The Leveraged Loan Market, Angela Chang
Brooklyn Law Review
This Note explores the legal implications of uptier debt exchange transactions (UDETs) in the syndicated loan market. These transactions are restructuring strategies that allow distressed companies to exchange existing debt for “superpriority” debt, often to the detriment of excluded creditors. The Bankruptcy Code aims to balance debtor relief with creditor rights, but, as this Note demonstrates, UDETs exploit ambiguities in credit agreements to shift priorities in favor of certain lenders. This Note examines the pivotal case of In re Serta Simmons Bedding, LLC, a decision which highlighted the need for creditors to reassess whether the flexibility of their credit agreements …
A Call For Statutory Reform: Online Marketplaces That Profit From Product Sales Should Be Held Strictly Liable As Sellers, Mark Anderson
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 …
Nil: How Third-Party Businesses Exploit Collegiate Student-Athletes With Impunity, Matthew Glogower
Nil: How Third-Party Businesses Exploit Collegiate Student-Athletes With Impunity, Matthew Glogower
Brooklyn Journal of Corporate, Financial & Commercial Law
While there are numerous state NIL (name, image, and likeness) laws protecting student-athletes from economic exploitation, there is no federal law which offers universal protection, nationwide, to student-athletes. State NIL laws offer some protections for student-athletes from exploitation by colleges, universities, and boosters, but there is no protection for student-athletes who sign NIL deals with for-profit third-party businesses. These NIL deals, between the student-athlete and third-party businesses, make up the majority of NIL agreements. Section 6 of the proposed College Athlete Economic Freedom Act (“CAEFA”), titled “Enforcement Provisions,” aims to codify federal protection for student-athletes against colleges, universities, and boosters, …
After Further Review: Are Ncaa Conferences Now Subject To Antitrust Liability?, Madison Huberman
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 …
“A Tale Of National Disgrace”: Applying The Doctrine Of Unconscionability To Establish The Impermissibility Of Secret Non-Prosecution Agreements, Denna Fraley
Journal of Law and Policy
Crime victims are directly harmed by crime and therefore have a stake in, and should be treated as individual participants in the criminal justice process. In recognition of this, Congress passed the Crime Victims’ Rights Act (“CVRA”) in 2004 to enumerate specific rights afforded to crime victims, including the rights to confer with the prosecutor in the case, to be heard at public court proceedings involving a plea or sentencing, to be informed in a timely manner of a plea bargain or deferred prosecution agreement, and to be treated with fairness and respect. Whether the CVRA extends these rights to …
Unleashing Corporate Entrepreneurship, Bernice A. Grant
Unleashing Corporate Entrepreneurship, Bernice A. Grant
Brooklyn Law Review
Noncompetition agreements (noncompetes), which prohibit employees from launching or working at competitive companies for certain periods, have become increasingly prevalent in the workplace. Employers claim they need noncompetes to protect their trade secrets and other legitimate business interests, but most workers do not have access to trade secrets—and when they do, such secrets can be better protected through confidentiality and intellectual property agreements. In practice, many companies appear to use noncompetes as an employee retention tool, but this is not a legitimate purpose for a noncompete. In addition, noncompetes have a disproportionately negative impact on women, people of color, and …
The Puzzle Of Floating Forum Selection Clauses, Robin J. Effron, John F. Coyle
The Puzzle Of Floating Forum Selection Clauses, Robin J. Effron, John F. Coyle
Faculty Scholarship
No abstract provided.
Clicking Away Consent: Establishing Accountability And Liability Apportionment In Direct-To-Consumer Healthcare Artificial Intelligence, Stephanie L. Lee
Clicking Away Consent: Establishing Accountability And Liability Apportionment In Direct-To-Consumer Healthcare Artificial Intelligence, Stephanie L. Lee
Brooklyn Law Review
Artificial Intelligence (AI) and machine learning are making sweeping changes across all industries, and health care is no exception. AI promises to revolutionize patient treatment with the development of algorithm-driven tools to improve efficiency in clinical care. As alluring as machine-driven learning may be given its potentialities, however, the incorporation of AI into the healthcare field has also been received with trepidation. This fear is understandable given the lack of transparency to the public surrounding the exact mechanisms for creating algorithms and the reasoning followed by the software. Indeed, AI in the healthcare system is aptly known as “black-box medicine.” …
Sec V. Panuwat: The Federal Pursuit Of Shadow Trading, Kayla Kershen
Sec V. Panuwat: The Federal Pursuit Of Shadow Trading, Kayla Kershen
Brooklyn Journal of Corporate, Financial & Commercial Law
In 2021, the SEC filed a complaint against a biopharmaceutical executive, Matthew Panuwat, for trading on material non-public information in violation of both the federal securities laws and his employer’s company policies. However, because the subject of the confidential information was not his employer, but a similarly situated peer company, Panuwat’s conduct constitutes “shadow trading.” The SEC’s enforcement, and the Northern District of California’s subsequent approval, indicate that company insiders may face liability for shadow trading. However, as written, the SEC arguably bases its attachment of federal liability on the company policies that Panuwat was bound by and violated. This …
Part Ii: Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
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.
Neil Cohen’S Contribution To Uniform Secured Finance Law, Spyridon V. Bazinas
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.
Reforming The Law Reform Ecosystem, Timothy Schnabel
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 …
Same Old Story, New Solution: Force Majeure Deficiencies In The Wake Of Covid-19 And An Unorthodox Approach To Drafting It, Steven H. Dovi
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 …
Commercial Law Harmonization: The Role Of The United States, Hal Burman
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 …
Frustrating Morals: Is There An Implied Reverse Morals Clause In Publishing Agreements?, Matthew L. Fulton
Frustrating Morals: Is There An Implied Reverse Morals Clause In Publishing Agreements?, Matthew L. Fulton
Brooklyn Journal of Corporate, Financial & Commercial Law
In response to the #MeToo movement and the widespread condemnation of public figures for misconduct, book publishers adopted a standard contract provision used in other entertainment industries called a morals clause. Morals clauses allow a publisher to terminate the agreement if the author is subject to public condemnation. Although these provisions provide robust protection for publishers, these one-sided clauses provide no such protection for authors if publishers are subject to similar condemnation. Although authors may not have the leverage to negotiate reciprocal morals clauses, some authors may have an implied reverse morals clause through the frustration of purpose defense to …
Contract Logic, Naveen Thomas
Rational Contract Design, Naveen Thomas
Contracting Against Slavery: Corporate Accountability For Human Rights Supply Chain Violations, Alexandra Hyken
Contracting Against Slavery: Corporate Accountability For Human Rights Supply Chain Violations, Alexandra Hyken
Brooklyn Journal of International Law
The United States Supreme Court decision in Nestlé USA, Inc. v. Doe effectively closed the door for forced laborers in the global supply chain to sue corporations headquartered in the United States for aiding and abetting in their human trafficking under the Alien Tort Statute. At the same time, however, the European Union and Canada are passing legislative measures that increase corporate accountability for human rights supply chain violations. This note argues that, in light of the Nestlé decision, contracts can be an effective mechanism for corporate accountability in the United States and that multi-national corporations will be incentivized to …
Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
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.
Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger
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 …
Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck
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.
Failed Efforts At Harmonization Of Securities Regulation, Roberta S. Karmel
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.
Flow Of Commerce, Flow Of Traffic, Carl S. Bjerre
Flow Of Commerce, Flow Of Traffic, Carl S. Bjerre
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
The Development Of The American “Security Interest” And Its Effect On The International Harmonization Of Security Rights, Henry Gabriel
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.
Balancing Efficiency And The Public Interest: A Comparative Analysis Of Force Majeure Defaults In Government Contracting, Alexandra L. Noetzel
Balancing Efficiency And The Public Interest: A Comparative Analysis Of Force Majeure Defaults In Government Contracting, Alexandra L. Noetzel
Brooklyn Law Review
Exemplified by the COVID-19 pandemic, contractual force majeure provisions can serve to protect contracting parties but can also place the risk of nonperformance on parties if the specific elements of the provision cannot be met. The current federal regulations governing government procurement in the United States lack the proper blend of uniformity and flexibility necessary to promote efficient contracting and risk assessment for both federal contractors and government agencies. Specifically, the current force majeure-like provision within the Federal Acquisition Regulation—the excusable delay provision—struggles to perfect this balance and puts government contractors in an unstable position of risk and decreased bargaining. …