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Articles 1 - 30 of 125
Full-Text Articles in Law and Politics
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 …
President Or King? What The United States Can Learn From Brazil’S Conviction Of Former President Jair Bolsonaro, Emma Al-Angurli Peltzer
President Or King? What The United States Can Learn From Brazil’S Conviction Of Former President Jair Bolsonaro, Emma Al-Angurli Peltzer
Journal of Law and Policy
In the United States, January 6, 2021, became a defining moment. President Donald Trump’s conduct and the lack of consequences have been indelibly etched into the nation’s political memory. In Brazil, January 8, 2023, marked a similar political rupture, but one that sealed former President Jair Bolsonaro’s fate in a very different legal order. Through a comparison of the Unites States Supreme Court’s decision in Trump v. United States and Brazil’s criminal conviction of former President Bolsonaro, this Note demonstrates how two presidential democracies took sharply different paths when confronted with attacks on their constitutional order. Brazil’s 1988 Constitution, shaped …
Corporate Employment And The First Amendment Shield Against Anti-Dei Legislation, W. Mary Blee
Corporate Employment And The First Amendment Shield Against Anti-Dei Legislation, W. Mary Blee
Brooklyn Journal of Corporate, Financial & Commercial Law
No one would have thought that a Supreme Court ruling striking down affirmative action in higher education would affect private employment. However, the ruling in Students for Fair Admissions v. Harvard did exactly that. Corporate employers’ efforts to foster diversity, equity, and inclusion (DEI) were immediately pushed to the forefront of the political battlefield. In the eyes of Republican lawmakers and politicians, DEI efforts were akin to affirmative action, and therefore unconstitutional in the wake of Harvard. Their solution to this problem involved passing anti-DEI legislation and policies which restricted or eliminated employer’s DEI efforts under the guise of upholding …
The Silent Sound Of Drowning: Human Rights Justifications And Complex Intersectionality, Maria Grahn-Farley
The Silent Sound Of Drowning: Human Rights Justifications And Complex Intersectionality, Maria Grahn-Farley
Brooklyn Journal of International Law
This Article presents a new concept, “Human Rights Justifications,” which captures instances in which states invoke human rights to defend and legitimize their own actions. Human Rights Justifications stand in contrast to cases in which human rights are activated by an individual holding the state accountable for its actions. The difference between when a state and when an individual is the activating subject is that with the former, human rights risk serving the state in legitimizing its actions, instead of serving the individual as a protection from the state. This occurs because, when the state activates human rights, it also …
National Values Matter For Ai: Comparative Analysis Of Ai Regulations In The Us, The Eu, And China, Kaori (Furuya) Kawaguchi
National Values Matter For Ai: Comparative Analysis Of Ai Regulations In The Us, The Eu, And China, Kaori (Furuya) Kawaguchi
Brooklyn Journal of International Law
As artificial intelligence (AI) continues to evolve rapidly, governments worldwide face increasing pressure to regulate it. This Article focuses on regulatory approaches to AI in the United States, the European Union, and China, examining the underlying rationales: why have they taken these approaches? Each jurisdiction’s unique political institutions, historical preferences, and strategic priorities shape its approach to governance. In particular, the values the jurisdiction expects in technology shape its regulation. The US adopts a decentralized, innovation-friendly model rooted in reliance on market and self-regulation in industries with its strong trust in laissez-faire philosophy; the EU asserts global leadership in regulations …
A Middle-Class New Deal: A Call To Action, Angela K. Littwin
A Middle-Class New Deal: A Call To Action, Angela K. Littwin
Brooklyn Journal of Corporate, Financial & Commercial Law
The books featured in the Debt in the Real World Symposium paint compelling portraits of American financial insecurity and distress. The fact that half of U.S. households cannot make ends meet is a devastating development, but it also presents an opportunity for making change because economic insecurity is now an “us” problem rather than a “them” problem. The next step is to organize, and as part of that process, to develop a vision of an economy that works for everyone. The title of one featured book, Michele Dickerson’s forthcoming The Middle Class New Deal, is a strong starting point because …
Missing Strugglers: Debt’S Reach, Bankruptcy’S Limits, And A Proxy For Who’S Left Out, Dalié Jiménez
Missing Strugglers: Debt’S Reach, Bankruptcy’S Limits, And A Proxy For Who’S Left Out, Dalié Jiménez
Brooklyn Journal of Corporate, Financial & Commercial Law
This essay uses Debt’s Grip as a point of departure to examine how debt operates as a system of social control in the United States. While the book offers a vivid portrait of those who file for bankruptcy, it also gestures toward a broader reality: millions of financially distressed individuals who never access relief. Drawing on legal scholarship and political theory, this Essay argues that debt disciplines individuals, fragments solidarity, and undermines democratic agency. It proposes a new metric—the ratio of debt collection lawsuits to bankruptcy filings—as a proxy for unmet need, revealing a population of “missing strugglers” visible to …
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 …
Interdisciplinary Research Is Hard And Other Lessons From Debt’S Grip, Pamela Foohey, Robert M. Lawless, Deborah Thorne
Interdisciplinary Research Is Hard And Other Lessons From Debt’S Grip, Pamela Foohey, Robert M. Lawless, Deborah Thorne
Brooklyn Journal of Corporate, Financial & Commercial Law
This symposium spotlights recent book-length treatments of household finance. Its organizers asked us to write an essay that would add to our recently published book, Debt’s Grip. At first, we were at a loss. The book documents what it means to live in financial precarity after decades of risk shifting onto households in the United States. We had spent a couple of years writing the book, which in turn is built on over a decade of teamwork in data collection. If we had something more to say, we would have said it in the book. For those looking for new …
Democratic Integrity Under Threat: Confronting Disinformation With Legislative And Structural Reforms, Sophia Brociner
Democratic Integrity Under Threat: Confronting Disinformation With Legislative And Structural Reforms, Sophia Brociner
Journal of Law and Policy
In the modern digital era, disinformation has evolved from a political strategy into a fundamental threat to democratic governance. This Note contends that the absence of comprehensive federal legislation addressing political disinformation on social media has compromised both the integrity of elections and the public’s trust in government institutions. By analyzing the disinformation campaigns that shaped the 2016, 2020, and 2024 presidential elections, this Note demonstrates how false and AI-generated content, amplified by both foreign and domestic actors, has manipulated voters, deepened political polarization, and destabilized public confidence in democratic processes. The discussion examines how rapid technological development, insufficient regulatory …
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 …
The Dubious Role Of Institutional Investors In Driving The Green Transition: Legal And Economic Constraints, Giovanni Strampelli
The Dubious Role Of Institutional Investors In Driving The Green Transition: Legal And Economic Constraints, Giovanni Strampelli
Brooklyn Journal of Corporate, Financial & Commercial Law
There is a well-established trend that the process of transition to a sustainable economic growth model marked by the pursuit of environmental, social and governance (“ESG”) objectives has large companies at its center, which are considered an essential hub for this purpose given their weight in the global economy. In this context, the role of shareholders, especially institutional investors, plays an important role. Indeed, it is widely recognized that they, having an increasing prominence in the shareholder base of large, listed companies, can push these public companies to adopt more virtuous conduct in the areas of, among others, environmental protection …
Regulating Misdemeanors In China, Enshen Li
Regulating Misdemeanors In China, Enshen Li
Brooklyn Journal of International Law
China has arguably entered an era of misdemeanors. Perceived as offenses punishable by a sentence of three years’ imprisonment or less, misdemeanors have reportedly taken up the majority of criminality in China over the past two decades. This shift in criminal dynamics has precipitated a pressing need for structural changes in the state’s criminal legal system, with calls for reform oriented toward decriminalization as a tailored dispositional channel for petty offenders showing a lower level of criminal culpability. This Article offers a critical scrutiny of China’s prevailing decriminalization initiatives for reducing the penalties and collateral consequences of misdemeanors. Situating these …
Beyond Statutory Loopholes, Qualified Immunity, And Internal Investigations: A Comparative Analysis Of Police Accountability In The United States And The United Kingdom, Kevyn Mcconlogue
Brooklyn Journal of International Law
While the landscape of policing in the United States and United Kingdom appear different today, their shared roots of enslavement and racism fostered a culture of impunity for police officers in both countries. With community skepticism and public discontent with law enforcement continuing to rise in the United States, the investigative and procedural roadblocks in the way of holding police officers accountable for misconduct must come to an end. In an effort to facilitate conversations about progressive police reform and eventual abolition, this Note compares the modern American and British police accountability systems and the avenues through which victims of …
America’S Rampant Gun Epidemic: How 3d Printers Are Only Adding Fuel To The Fire, Haley Lustbader
America’S Rampant Gun Epidemic: How 3d Printers Are Only Adding Fuel To The Fire, Haley Lustbader
Journal of Law and Policy
The assassination of the United Healthcare CEO in December of 2024 captivated national attention, specifically over the killer’s use of a homemade three dimensional (“3D”) printed gun. The use of 3D printing poses a breadth of opportunity for useful and valuable innovation across a variety of fields, such as allowing advancements in medical technology. However, with technology expansion comes associated risk and, in this case, that risk is the potential for increased presence of illegal firearms. Anyone with access to a 3D printer can download the necessary files and print weapon parts to create their own unregistered, untraceable firearms, including …
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 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 …
What Should Caremark Encompass?, Claire A. Hill, Zohreh Zakiani
What Should Caremark Encompass?, Claire A. Hill, Zohreh Zakiani
Brooklyn Journal of Corporate, Financial & Commercial Law
Under In re Caremark Int’l Inc. Derivative Litig., decided in 1996, directors are required to oversee corporate compliance and can be liable for breaching their fiduciary duties if their oversight efforts do not suffice. Since it was decided, Caremark has been very influential, notwithstanding its high bar to liability. Notably, its influence far exceeds the actual probability that directors would be found liable under the doctrine. Instead, much of Caremark’s force is “soft,” through extra-legal mechanisms such as norms and pressures from various constituencies. Caremark clearly covers oversight for violations of law or regulation. But what, beyond those two things, …
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, …
The Pet Fish Canon, William N. Eskridge Jr.
The Pet Fish Canon, William N. Eskridge Jr.
Journal of Law and Policy
Inspired by the work of the late Professor Larry Solan, this article proposes that judges recognize as one of the textualist canons of statutory construction a “pet fish” canon. Such a canon would posit that when an ordinary reader would understand two or more words to yield a meaning that is different than the sum of the two words defined separately, the statutory interpreter should not disaggregate them. The Roberts Court has already followed such a linguistic precept in some statutory cases, and this article proposes that the Court recognize this as a canon considered at least as seriously as …
Grammar & Syntax Arguments On The Roberts Court, Anita S. Krishnakumar
Grammar & Syntax Arguments On The Roberts Court, Anita S. Krishnakumar
Journal of Law and Policy
In his excellent book, The Language of Judges, Professor Solan demonstrates how judges use grammatical or linguistic arguments to avoid acknowledging statutory ambiguity—and how they often get the grammar or linguistics wrong. Since his book was published, textualism has become the dominant interpretive approach on the U.S. Supreme Court—and we have seen increasingly prominent battles involving grammatical devices and rules. This comment takes Professor Solan’s analysis as a jumping off point to evaluate how grammar and linguistic arguments are employed on the modern Supreme Court, in the age of textualism. The comment offers a brief empirical and doctrinal assessment of …
Growing Rich Off The Fruits Of Private Incarceration, Joseph Hennessy
Growing Rich Off The Fruits Of Private Incarceration, Joseph Hennessy
Journal of Law and Policy
Mass incarceration is a uniquely American phenomenon. With roots in chattel slavery, modern mass incarceration truly exploded in the latter half of the 20th Century. As Reagan-era politicians advocated for fiscal conservatism on the one hand and heavy-handed responses to crime on the other, private prison pioneers saw an opportunity to derive profit from society’s most vulnerable. Today, private prisons house as much as half of some states’ total prison population, and private prison corporations have demonstrated an insatiable desire to expand their reach. This Note explores the unique social vulnerability of privately incarcerated people through a statutory and judicial …
The Good Officer: President Trump, General Milley, And The “Necessity” Of Constitutional Fidelity, John C. Dehn
The Good Officer: President Trump, General Milley, And The “Necessity” Of Constitutional Fidelity, John C. Dehn
Brooklyn Law Review
Actions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital …
The Politics Of Constitutional Dignity Jurisprudence, Daniel Haefke
The Politics Of Constitutional Dignity Jurisprudence, Daniel Haefke
Brooklyn Law Review
This Article traces the politics of (human) dignity in US constitutional law. It reveals that the notion has undergone a conservative shift, which has resulted from Supreme Court Justices increasingly unleashing dignity’s dormant conservative potential. Legal scholars arguing for prominently including the notion in constitutional jurisprudence reflect the belief that adopting the language of dignity would push the Supreme Court to be more sensitive to progressive political demands. This progressive constitutional dignity optimism is historically plausible yet conceptually misguided. It is historically plausible considering the legacy of constitutional dignity in previous opinions of the Court. As the Article expounds, the …
Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan
Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan
Brooklyn Law Review
While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to …
Nationwide Injunctions And The Administrative State, Russell L. Weaver
Nationwide Injunctions And The Administrative State, Russell L. Weaver
Brooklyn Law Review
Where an administrative regulation is deemed by a court to be illegal, unconstitutional, or otherwise invalid, courts sometimes issue nationwide injunctions. In other words, instead of holding that the regulation cannot be applied to the individuals before the court, the court prohibits the agency from applying the regulation anywhere in the country, including to others not before the court. This article explores the debate surrounding the appropriateness of nationwide injunctions. While at first glance such injunctions may seem to make sense, they can have serious consequences, including risk of abuse and forum shopping, amplification of erroneous decisions, and the negative …
Thai Drug Offenses And Narcotic Charges: Tracing Thailand’S Drug Control And Capital Punishment History, Jonathan Hasson, Carolyn Hoyle
Thai Drug Offenses And Narcotic Charges: Tracing Thailand’S Drug Control And Capital Punishment History, Jonathan Hasson, Carolyn Hoyle
Brooklyn Journal of International Law
The Article examines Thailand's political economy of drugs and use of sanctions, including capital punishment, using a historical approach. It traces Thailand's nation building and emergence as a global hub for illicit drugs against the backdrop of European and US interventions since the colonial era. The Article reveals how Western concepts and discourses were appropriated by Thai elites to advance local agendas while suppressing democratic movements. The Article explores how the drug trade became entangled with government corruption, militarization, and extrajudicial state violence which often targeted ethnic minorities. In light of recent cannabis policy changes, the Article considers the historical …
Is Usmca Good For Mexican Labor? A Preliminary Analysis Of Usmca And Labor Market Outcomes In Mexico, Diego Marroquín Bitar
Is Usmca Good For Mexican Labor? A Preliminary Analysis Of Usmca And Labor Market Outcomes In Mexico, Diego Marroquín Bitar
Brooklyn Journal of International Law
The United States-Mexico-Canada Agreement (USMCA) introduced significant labor provisions aimed at bolstering labor rights and promoting union democracy, representing a departure from its predecessor, the North America Free Trade Agreement (NAFTA). This paper examines USMCA’s potential benefits and limitations on labor, arguing that the trade agreement’s effectiveness in improving labor conditions in Mexico may be limited. By primarily benefitting export-oriented firms, USMCA leaves a significant portion of Mexico’s workforce untouched. Moreover, USMCA's new wage requirements, intended to raise labor standards, may paradoxically increase production costs for formal firms, potentially lowering overall productivity. This paper underscores the persistent formal-informal labor divide …