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Articles 1 - 30 of 145
Full-Text Articles in Courts
Child Abuse In The Foster Care System: Articulating A New Standard Of Negligence For Civil Actions Against State Foster Agencies, Isabel Loughlin
Child Abuse In The Foster Care System: Articulating A New Standard Of Negligence For Civil Actions Against State Foster Agencies, Isabel Loughlin
Brooklyn Law Review
The foster care system falls under the domain of each state’s family courts. State foster care agencies oversee the removal of children from their homes, the placement of children in temporary foster homes, and the process of reunification with the birth family if possible. This system is meant to protect children from abuse, but far too often foster care agencies fail in their duty to monitor the wellbeing of children after they are placed in a foster home. There is a crisis of child abuse within the foster care system, and the only avenue for recourse for children who have …
Tenuous Appointments: The President's Claimed Power To Remove Court-Appointed Interim United States Attorneys, Jonathan S. Ross
Tenuous Appointments: The President's Claimed Power To Remove Court-Appointed Interim United States Attorneys, Jonathan S. Ross
Brooklyn Law Review
Section 546(d) of Title 28 of the United States Code authorizes a district court to appoint an interim United States Attorney during any vacancy of more than 120 days. The provision has been in place since 1863 and, for most of that time, Presidents have made no attempt to remove court-appointed interim U.S. Attorney through means other than the nomination and confirmation of a replacement. That changed initially in 2020, when President Trump attempted to remove Geoffrey Berman of the Southern District of New York. In 2025, the President went further, removing nine court-appointed interim U.S. Attorneys. These moves, unprecedented, …
From Self-Representation To Smart Representation: How Ai & Self-Help Services Can Strengthen Pro Se Litigation, John W. Park
From Self-Representation To Smart Representation: How Ai & Self-Help Services Can Strengthen Pro Se Litigation, John W. Park
Journal of Law and Policy
The American legal system has long struggled with the gap between those who can afford counsel and those who cannot, leaving millions of pro se litigants to navigate complex civil proceedings alone and lose at staggering rates. Yet, over decades of incremental reform, existing self-help infrastructure has failed to keep pace with the growing pro se crisis or the rapid technological advancement that now gives represented parties an unprecedented advantage. Meanwhile, law firms and attorneys increasingly harness law firm tailored AI programs that are generally unavailable to the unrepresented litigant. This technological asymmetry has transformed an already significant capability gap …
G.I. Joe Behind Bars: Analyzing Military Sentencing Data, Sentencing Guidelines, And Court-Martial Reform, Sam Libby
Journal of Law and Policy
The National Defense Authorization Act for Fiscal Year 2022 required the military to restructure its court-martial sentencing procedures to more closely resemble those utilized in federal civilian court. Previously, either judges or court-martial panel members themselves determined an appropriate sentence based on their collective intuition without the aid of specific guidelines. Critics have argued that leaving sentencing in the hands of inexperienced panel members has led to large disparities between servicemembers, especially compared to federal court where the United States Sentencing Guidelines are the lodestar. All the while, no comprehensive dataset exists for researchers to determine the extent of variation …
Two Strikes And A Prisoner’S Out: The Supreme Court’S Bad Call In Lomax V. Ortiz-Marquez, Molly Guptill Manning
Two Strikes And A Prisoner’S Out: The Supreme Court’S Bad Call In Lomax V. Ortiz-Marquez, Molly Guptill Manning
Journal of Law and Policy
Since 1892, federal legislation has provided for the waiver of court filing fees so indigent plaintiffs can access the courts. In 1996, the Prison Litigation Reform Act amended the law. Citing an explosion in the number of prisoner filings (and ignoring the commensurate explosion in the size of the prisoner population), Congress sought to disincentivize prisoners from filing federal actions by denying them an outright waiver and instead requiring them to pay filing fees in installments. It also added a “three strikes” rule. Under the latter provision, if a prisoner files three or more actions or appeals that are dismissed …
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 …
Property, Recognition, And The Problem Of The Term “Debtor”: Rethinking Eligibility In Chapter 15 Cross-Border Insolvency, Jonathan Lent
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 …
A Case For United States V. Connolly: The Forgotten Posterchild Of Protecting Corporate Employees’ Rights During Internal Investigations And Why It Should Be The Standard, Not The Exception, William Marment
Brooklyn Journal of Corporate, Financial & Commercial Law
In May 2019, United States v. Connolly provided a benchmark for government involvement in corporate internal investigations. The decision curtailed the close, and oftentimes coercive nature of the relationship between the prosecutor and corporate counsel conducting internal investigations on a corporation’s behalf. It drew a line between the government improperly outsourcing its investigation to the target corporation and when an employee’s statements are not fairly attributable to government prosecutors, and thus not compelled. The Connolly Court ruled that statements from counsel-led employee interviews, conducted under the threat of termination, were fairly attributable to the government and thus improperly compelled. Those …
Regulatory Whiplash: The Sec’S Proxy Advisor Reversal And A Delaware-Inspired Sliding Scale Framework For Judicial Review, Alexandra Pellegrino
Regulatory Whiplash: The Sec’S Proxy Advisor Reversal And A Delaware-Inspired Sliding Scale Framework For Judicial Review, Alexandra Pellegrino
Brooklyn Journal of Corporate, Financial & Commercial Law
The Securities and Exchange Commission’s 2020 regulation of proxy advisory firms, and its abrupt 2022 recission, triggered a consequential circuit split that exposes a deeper tension in administrative law: how courts should review agency reversals in regulatory environments where stability and adaptability are both essential. In National Association of Manufacturers v. Securities Exchange Commission, the Fifth Circuit invalidated the recission for failing to adequately address reliance interests and prior factual findings. In contrast, the Sixth Circuit in Chamber of Commerce v. Securities Exchange Commission upheld the agency’s reversal under a more deferential interpretation of Federal Communications Commission v. Fox Television …
Tapping Out Of The Wiretap: Whether Consumers Have A Reasonable Expectation Of Privacy Against Internet Tracking Technology, Ashley Faranesh
Tapping Out Of The Wiretap: Whether Consumers Have A Reasonable Expectation Of Privacy Against Internet Tracking Technology, Ashley Faranesh
Brooklyn Journal of Corporate, Financial & Commercial Law
The California Invasion of Privacy Act (CIPA), a statute born in an era of rotary phones and analog surveillance, is now at the heart of a legal crisis over internet tracking and privacy. Plaintiffs have increasingly weaponized the CIPA against online businesses that use standard Web-tracking tools, triggering a wave of litigation that stretches the statute far beyond its intended purpose. This Note argues that such application misreads the legislative intent behind the CIPA and risks destablizing core structures of the internet economy and financially crippling online businesses. Courts applying literal interpretations are undermining the CIPA’s purpose by conflating commonplace …
Turbulence In The Courts: Jetblue Suffers From Faulty Antitrust Actions, Rudolph Veiga
Turbulence In The Courts: Jetblue Suffers From Faulty Antitrust Actions, Rudolph Veiga
Brooklyn Journal of Corporate, Financial & Commercial Law
Recently, the Department of Justice has become the leading force behind antitrust challenges against airline alliances and mergers. Unfortunately, it is difficult for someone to determine when the department will challenge an airline joint venture because the department has not consistently challenged all alliances or mergers over the last few years. JetBlue Airways defended itself against two different antitrust challenges by the department—one against the Northeast Alliance with American Airlines, and one against the acquisition of Spirit Airlines—and JetBlue lost both. The Department of Justice did not challenge the merger of Alaska Airlines and Hawaiian Airlines, which was finalized just …
Myth Busters: A Review Of “Debt’S Grip”, Susan Block-Lieb
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.
Power, Tools, And Process: Some Reflections On Bankruptcy Minimalism, Edward J. Janger
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 …
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 …
Wine Unwelcome: The Constitutional Contours Of Wine Regulation, Alexander Fallone
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 …
Court Appointed Monitorships: Effective Remedy Or Modern Misstep?, Jean Joun
Court Appointed Monitorships: Effective Remedy Or Modern Misstep?, Jean Joun
Brooklyn Journal of Corporate, Financial & Commercial Law
When a corporate entity or organization violates the law, there are several remedies the courts may enforce against the bad actor. Most common are damages—both compensatory and punitive—and injunctive relief. The class of injunctive relief that most are familiar with is the kind that restrains the bad actor from a conduct or behavior. However, courts in certain instances may decide, either on their own volition or after being asked to consider such a remedy by a prosecuting entity, to appoint a compliance monitor with the function of ensuring that the bad actor continues traversing a legally sound path. Although court-ordered …
Social (In)Securities: Should Mass Communication Via Social Media Give Rise To Seller Liability Under Section 12(A) Of The Securities Act? A Proposal To Reconcile The Emerging Circuit Split After Pino, Anika Austin
Brooklyn Law Review
The internet and social media have not only changed the way we shop, communicate, and seek information, but has also profoundly transformed the financial industry, reshaping how we seek and receive financial advice. Moving away from traditional advisor-client interactions, younger, digital-savvy generations favor seamless online experiences in every aspect of their lives. The rise of user-friendly trading applications and pandemic-driven online engagement has further accelerated this trend, introducing both opportunities and risks for users and those offering financial advice. The use of social media in promoting investments raises concerns about market manipulation, inadequate investor protections, and the application of outdated …
A Stronger Future For Family Law Arbitration: Enhancing The Uniform Family Law Arbitration Act To Shield The Vulnerable, Jayden Solomon
A Stronger Future For Family Law Arbitration: Enhancing The Uniform Family Law Arbitration Act To Shield The Vulnerable, Jayden Solomon
Journal of Law and Policy
The rising popularity of alternative dispute resolution (“ADR”) methods, particularly arbitration, has transformed family law practices, offering more accessible and efficient means of resolving disputes. This Note explores the critical role of the Uniform Family Law Arbitration Act (“UFLAA”) in safeguarding vulnerable populations, specifically children and domestic violence survivors, within the arbitration process. While the UFLAA offers important protections, these measures should serve as a starting point rather than a benchmark for ensuring these safeguards. This Note advocates for the integration of more robust protections within the UFLAA to better protect these individuals throughout arbitration. It examines the history of …
Shaping A More Equitable Election System: A Canadian Approach To Solving The Voting Rights Crisis In America, Michelle Gutowski
Shaping A More Equitable Election System: A Canadian Approach To Solving The Voting Rights Crisis In America, Michelle Gutowski
Journal of Law and Policy
In 1965, the Voting Rights Act was passed, ushering in a new era of voting freedom. The Act brought an end to many of the overtly discriminatory practices that had persisted for nearly two centuries. Over time, however, states began to introduce more subtle and complex voting regulations that gradually undermined the gains achieved through the civil rights movement. In 2021, the Supreme Court dismantled an essential safeguard for voters, significantly weakening the protections the Act once guaranteed. This erosion of protections is largely attributable to a single doctrinal standard within the Act, known as the totality of the circumstances …
The Fall From Standing: How The Courts Have Diverged From Financial Standing Standards, Shouatshen Adoree Yang
The Fall From Standing: How The Courts Have Diverged From Financial Standing Standards, Shouatshen Adoree Yang
Brooklyn Law Review
The Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA) enable consumers to sue credit reporting and debt collection agencies for engaging in abusive practices such as reporting false information or continuous harassment. In order for a lawsuit to be heard, consumers must have constitutional standing, and thus, must have suffered a particularized and concrete injury. However, it may be difficult for consumers to allege a concrete injury given that credit and debt issues often result in harm that is intangible and difficult to categorize. While the Supreme Court has classified financial, intangible injuries as concrete …
Do Bankruptcy Judges Belong In Chambers? Rethinking Inherent Civil Contempt Power In Bankruptcy, Abigail B. Willie
Do Bankruptcy Judges Belong In Chambers? Rethinking Inherent Civil Contempt Power In Bankruptcy, Abigail B. Willie
Brooklyn Law Review
In recent years, the Supreme Court of the United States has recognized limitations on the adjudicatory authority of the bankruptcy judge in certain contexts. In the face of this seeming erosion in the previously presumed power of the bankruptcy judge, the time is ripe to consider areas in which a bankruptcy judge’s adjudicatory authority may be further challenged. Inherent civil contempt power is one such area. Contempt power in the bankruptcy context has been murky since the creation of the non-Article III bankruptcy court in 1978. While today, courts generally agree that bankruptcy judges possess (at least some) inherent civil …
Conflicting Canons Of Construction: The Aftermath In Veterans’ Law, Carlissa R. Carson
Conflicting Canons Of Construction: The Aftermath In Veterans’ Law, Carlissa R. Carson
Brooklyn Law Review
Until June 28, 2024, when the United States Supreme Court overturned decades of administrative law precedent, veterans' law judges, veterans, and practitioners alike would gather in the administrative law arena to watch an unpredictable battle: Chevron vs. Gardner. The outcome of bouts between these heavyweights was as unexpected as the plot twist in an M. Night Shyamalan film. As a result, our nation’s veterans were defeated. Federal courts tended to apply either Chevron (agency deference) or Gardner (veteran friendliness) and courts rarely mentioned both canons of construction in the same opinion. It was difficult to predict which canon of construction …
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 …
What Really Is “Objectionable Conduct” In New York Co-Ops? Navigating A Board Deferential Standard Of Review Post-Pullman, Jenna Tammaro
What Really Is “Objectionable Conduct” In New York Co-Ops? Navigating A Board Deferential Standard Of Review Post-Pullman, Jenna Tammaro
Brooklyn Law Review
Home is where the heart is, and in the United States, home ownership is an integral part of the American dream. A place to call home offers emotional safety as well as financial security. Property ownership can even mark the start of generational wealth. Since a home is something that can mean so much to so many, the loss of one’s home is an unimaginable fear. The risk becomes even greater when the odds are stacked against homeowners, particularly for cooperative corporation (co-op) shareholders in New York. Co-op proprietary leases exploit the risk of loss for these owners. Most proprietary …
Performative Actions And Profits: A New Test For Delaware Derivative Oversight Claims, Joshua Dana
Performative Actions And Profits: A New Test For Delaware Derivative Oversight Claims, Joshua Dana
Brooklyn Law Review
One of the most important aspects of Delaware corporate law is the duty of oversight, which requires corporate directors and officers to establish and maintain reasonable oversight systems at their companies. In determining whether a director or officer has breached their duty of oversight, courts apply the bad-faith standard. This Note contends that the bad-faith standard is an ineffective way to hold corporate directors and officers accountable for their lack of oversight because under the bad-faith standard, courts are unable to distinguish nonmeaningful performative action that is merely intended to create the illusion of good-faith oversight from true good-faith action. …
The Geopolitics Of Group Referrals To The International Criminal Court And Its Implications On The Court's Legitimacy And Credibility, Dr. Destaw A. Yigzaw
The Geopolitics Of Group Referrals To The International Criminal Court And Its Implications On The Court's Legitimacy And Credibility, Dr. Destaw A. Yigzaw
Brooklyn Journal of International Law
Under the Rome Statute, situations are referred to the International Criminal Court (“ICC” or “Court”) either by a state party or the Security Council. In recent years, however, referrals from both sources have become difficult to come by. Instead, there is an evolving practice of referrals by a coalition of third states parties (“group referrals”). Yet, a group referral as a trigger mechanism does not have an explicit textual basis under the Rome Statute (“Statute” or “ICC Statute”). There is no rationale for it either, since a referral by a single state party is all that is needed to trigger …
Data Scraping For Generative Ai—To What Extent?, Jae Yeon Cecilia Kim
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 …
A New Governance Framework In Cross-Border Tax Policymaking, Tamir Shanan, Doron Narotzki, Noam Zamir
A New Governance Framework In Cross-Border Tax Policymaking, Tamir Shanan, Doron Narotzki, Noam Zamir
Brooklyn Journal of Corporate, Financial & Commercial Law
The first tax treaty can probably be traced to the end of the 19th century: the treaty between the Swiss Federal Council (on behalf of the Canton of Vaud) and Great Britain. However, most tax scholars refer to the period following World War I, including the work of the League of Nations, as the formative period in which the international tax regime was founded. In the 1920s, the League of Nations formed a committee of four renowned economists that was asked to formulate a set of rules that would assist states in allocating taxing rights of cross-border income and gains …
The Enduring Relevance Of Congress Despite The Court's Shift To “Ordinary Reader” Statutory Interpretation, Abbe R. Gluck, Laila M. Robbins
The Enduring Relevance Of Congress Despite The Court's Shift To “Ordinary Reader” Statutory Interpretation, Abbe R. Gluck, Laila M. Robbins
Journal of Law and Policy
Has Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court’s new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism’s perspective, from an “insider” perspective focused on Congress’s textual choices, to an “outsider” perspective based on how “ordinary people” read statutes. The Court’s self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars—including first-generation textualists—had for a century focused …
The Broad Church Of Modern Textualism, Nicole Steitz, Brian G. Slocum, Kevin Tobia
The Broad Church Of Modern Textualism, Nicole Steitz, Brian G. Slocum, Kevin Tobia
Journal of Law and Policy
Nearly thirty years ago, Justice Scalia’s Tanner lectures branded Holy Trinity Church v. United States (1892) as the anti-textualist archetype, a decision trumping the text’s plain meaning with a suspect judicial investigation of the law’s purpose or spirit. And so Holy Trinity seemed, until Gales and Solan’s groundbreaking empirical study supported an alternative reading of the key statutory term (“labor or service”) that would avoid this conflict between text and purpose. Taking inspiration from Gales and Solan, we reconsider Holy Trinity using the precepts of modern textualism, with its increased emphasis on context, pragmatics, anti-literalism, legal meaning, holistic meaning, non-compositionality, …