Legislation Commons^™

Lowering The Threshold: How Far Has The Americans With Disabilities Act Expanded Access To The Courts In Employment Litigation?, Curtis D. Edmonds

Journal of Law and Policy

The purpose of the Americans with Disabilities Act Amendments Act (“ADAAA”) was to restructure and clarify the definition of the legal term “disability” in the Americans with Disabilities Act of 1990 (“ADA”). One of the three prongs of the ADA’s definition of disability is “a physical or mental impairment that substantially limits one or more major life activities of such individual.” The ADAAA was the result of a compromise reached after thirteen weeks of negotiations between representatives of the business and disabilities communities over its provisions. Like many other compromises, the ADAAA did not leave either side fully satisfied. Almost …

The Foreign Emoluments Clause: Protecting Our National Security Interests, Deborah Samuel Sills

Journal of Law and Policy

Classical republican ideals played an important role in the formation of our country. Guided by these ideals, several provisions were included in the Constitution to protect the United States from these harms, including the Emoluments Clause. This Clause prohibits United States officials from accepting certain types of benefits from foreign nations, except with Congress's consent. It protects our national interests by ensuring that federal officials remain free from improper pressures from foreign states and act for the welfare of our country. This provision promotes transparency and accountability and helps guard against corrupt influences that could undermine, and even destroy, a …

Beyond Walls And Fences: Exploring The Legal Geography Of Gated Communities In Mixed Spaces, Manal Totry-Jubran

Journal of Law and Policy

In the last three decades, a new type of physical seclusion has appeared around the world: the gating and walling of urban and suburban spatial residences. This phenomenon, led mainly by dominant socio-economic groups, is referred to as “gated communities.” This article focuses on the legal challenges that gated communities raise in ethnocratic societies that share a legacy of segregation and of unequal distribution of land. The main argument is that, due to this legacy, the legality of gated communities and walls that separate communities generate legal debates that goes beyond classic legal claims of rights violations of non-residents of …

Fighting For Fair Fares In New York City Through Civil Society Enforcement Of Title Vi, Sara Amri

Journal of Law and Policy

Low-income New Yorkers rely heavily on public transportation to travel around the city. However, riding the New York City subway system is becoming increasingly unaffordable. New York City’s Metropolitan Transit Authority (MTA) has set forth plans to implement semiannual fare increases. No alleviation has been provided, however, to New Yorkers living at or below the federal poverty level, despite the discounts provided to other groups regardless of their income. The inability to travel can have a devastating impact on the upward mobility of poor New Yorkers, and, alarmingly, fare increases appear to have a disparate impact on low-income people of …

How The 1 Percent Pays Taxes; How The 99 Percent Could: The Subchapter T Worker Cooperative Tax Loophole, Michael Haber

Journal of Law and Policy

The ratification of the Sixteenth Amendment to the United States Constitution granted Congress the right to tax income “from whatever source derived.” Since its inception, the tax code has become long and complicated, filled with broad taxation rules and innumerable exceptions. Over time, the tax code has been amended with the stated purpose of promoting “fairness, efficiency, and enforceability.” However, the complexity of the tax code has led to abuse of “tax loopholes” by wealthy taxpayers who want to avoid paying their fair share of taxes. While abuse is likely to continue, as legislators remain intent on lowering taxes on …

Equitable Relief For Private Rico Plaintiffs: Using Donziger To Remedy Courthouse Corruption, Anna Hanke

Journal of Law and Policy

In Chevron Corp. v. Steven Donziger, the Southern District of New York granted Chevron an injunction against Donziger under the Racketeer Influenced and Corrupt Organizations (RICO) Act, preventing the enforcement of an Ecuadorean judgment against it in the United States. This Note discusses the circuit court split on whether injunctive relief may be granted in a civil RICO suit, arguing that injunctive relief is an available remedy within the statute’s plain meaning, legislative intent, and evolving jurisprudence of civil RICO. The Note applies the Donziger interpretation of RICO to a case of a similarly corrupted judgment, Caperton v. A.T. Massey …

Ballot Selfies: Balancing The Right To Speak Out On Political Issues And The Right To Vote Free From Improper Influence And Coercion, Isidora Koutsoulias

Journal of Law and Policy

Courts and legislatures face the difficult task of balancing individual First Amendment rights with other basic freedoms, a task that has become increasingly challenging with the advent of new technology. The emergence of the ballot selfie has caused a legal uproar due to the perception that it may compromise the sanctity of the electoral process and the secret ballot process by facilitating vote buying and coercion. Consequently, several states have enacted laws that prohibit most or all ballot selfies. However, many individuals have rightfully protested these laws as an unreasonable restraint on freedom of speech. This Note argues that although …

Free Agency: The Constitutionality Of Methods That Influence A Presidential Elector’S Ability To Exercise Personal Judgment, Zachary J. Shapiro

Journal of Law and Policy

When the Constitution of the United States went into effect on March 4, 1789, it established a new, hybrid form of government. As such, it created a complex and multifaceted process of electing our nation’s chief executive. Most notably, it granted states the power to choose a slate of presidential electors to debate the qualifications of the candidates selected by the voters. In recent history, however, certain states have established laws that severely limit the ability of presidential electors to exercise their right to vote for the candidates that they believe to be the best choice to sit in the …

Lowering The Threshold: How Far Has The Americans With Disabilities Act Expanded Access To The Courts In Employment Litigation?, Curtis D. Edmonds

Journal of Law and Policy

The purpose of the Americans with Disabilities Act Amendments Act (“ADAAA”) was to restructure and clarify the definition of the legal term “disability” in the Americans with Disabilities Act of 1990 (“ADA”). One of the three prongs of the ADA’s definition of disability is “a physical or mental impairment that substantially limits one or more major life activities of such individual.” The ADAAA was the result of a compromise reached after thirteen weeks of negotiations between representatives of the business and disabilities communities over its provisions. Like many other compromises, the ADAAA did not leave either side fully satisfied. Almost …

The Foreign Emoluments Clause: Protecting Our National Security Interests, Deborah Samuel Sills

Journal of Law and Policy

Classical republican ideals played an important role in the formation of our country. Guided by these ideals, several provisions were included in the Constitution to protect the United States from these harms, including the Emoluments Clause. This Clause prohibits United States officials from accepting certain types of benefits from foreign nations, except with Congress's consent. It protects our national interests by ensuring that federal officials remain free from improper pressures from foreign states and act for the welfare of our country. This provision promotes transparency and accountability and helps guard against corrupt influences that could undermine, and even destroy, a …

Beyond Walls And Fences: Exploring The Legal Geography Of Gated Communities In Mixed Spaces, Manal Totry-Jubran

Journal of Law and Policy

In the last three decades, a new type of physical seclusion has appeared around the world: the gating and walling of urban and suburban spatial residences. This phenomenon, led mainly by dominant socio-economic groups, is referred to as “gated communities.” This article focuses on the legal challenges that gated communities raise in ethnocratic societies that share a legacy of segregation and of unequal distribution of land. The main argument is that, due to this legacy, the legality of gated communities and walls that separate communities generate legal debates that goes beyond classic legal claims of rights violations of non-residents of …

Fighting For Fair Fares In New York City Through Civil Society Enforcement Of Title Vi, Sara Amri

Journal of Law and Policy

Low-income New Yorkers rely heavily on public transportation to travel around the city. However, riding the New York City subway system is becoming increasingly unaffordable. New York City’s Metropolitan Transit Authority (MTA) has set forth plans to implement semiannual fare increases. No alleviation has been provided, however, to New Yorkers living at or below the federal poverty level, despite the discounts provided to other groups regardless of their income. The inability to travel can have a devastating impact on the upward mobility of poor New Yorkers, and, alarmingly, fare increases appear to have a disparate impact on low-income people of …

How The 1 Percent Pays Taxes; How The 99 Percent Could: The Subchapter T Worker Cooperative Tax Loophole, Michael Haber

Journal of Law and Policy

The ratification of the Sixteenth Amendment to the United States Constitution granted Congress the right to tax income “from whatever source derived.” Since its inception, the tax code has become long and complicated, filled with broad taxation rules and innumerable exceptions. Over time, the tax code has been amended with the stated purpose of promoting “fairness, efficiency, and enforceability.” However, the complexity of the tax code has led to abuse of “tax loopholes” by wealthy taxpayers who want to avoid paying their fair share of taxes. While abuse is likely to continue, as legislators remain intent on lowering taxes on …

Equitable Relief For Private Rico Plaintiffs: Using Donziger To Remedy Courthouse Corruption, Anna Hanke

Journal of Law and Policy

In Chevron Corp. v. Steven Donziger, the Southern District of New York granted Chevron an injunction against Donziger under the Racketeer Influenced and Corrupt Organizations (RICO) Act, preventing the enforcement of an Ecuadorean judgment against it in the United States. This Note discusses the circuit court split on whether injunctive relief may be granted in a civil RICO suit, arguing that injunctive relief is an available remedy within the statute’s plain meaning, legislative intent, and evolving jurisprudence of civil RICO. The Note applies the Donziger interpretation of RICO to a case of a similarly corrupted judgment, Caperton v. A.T. Massey …

Free Agency: The Constitutionality Of Methods That Influence A Presidential Elector’S Ability To Exercise Personal Judgment, Zachary J. Shapiro

Journal of Law and Policy

When the Constitution of the United States went into effect on March 4, 1789, it established a new, hybrid form of government. As such, it created a complex and multifaceted process of electing our nation’s chief executive. Most notably, it granted states the power to choose a slate of presidential electors to debate the qualifications of the candidates selected by the voters. In recent history, however, certain states have established laws that severely limit the ability of presidential electors to exercise their right to vote for the candidates that they believe to be the best choice to sit in the …

Where's The Fire?, Burt Neuborne

Journal of Law and Policy

Freedom of speech is priceless, but distressingly fragile. Life, and law, would be much simpler if we could react to free speech's importance and fragility by granting it absolute legal protection. Since, however, absolute protection of speech is not—and should not be—a serious option, we face the legal realist challenge of erecting a First Amendment legal structure capable of providing real-world protection to highly controversial speech, often by weak speakers, without closing the door to government regulation. Given the uncertainty inherent in applying fact-dependent complex rules in protean factual settings, many potential speakers would avoid being drawn into unpredictable and …

Protecting Hatred Preserves Freedom: Why Offensive Expressions Command Constitutional Protection, Andrew P. Napolitano

Journal of Law and Policy

The First Amendment is not the guardian of taste. Instead, the U.S. Constitution wholeheartedly protects freedom of thought and expression, even if generated and defined by hatred, as long as that expression does not produce immediate lawless violence. Although free speech may lead to tenuous relationships or uncomfortable debates, it must be defended unconditionally. Too many politicians and lawmakers believe that the freedom of speech protected by the First Amendment attaches only to those ideas and expressions that they approve of; this is not so. This article argues that the Founders intended the First Amendment's free speech principle as a …

Freedom Of Speech And Equality: Do We Have To Choose?, Nadine Strossen

Journal of Law and Policy

As a lifelong activist on behalf of both equality and free speech, I am convinced, based on actual experience, that these core values are mutually reinforcing, and not, as some have argued, in tension with each other. Moreover, I am convinced that this is true even for offensive or hateful speech that affronts our most cherished beliefs. However, defining hateful or offensive speech is inherently arbitrary and subjective, which raises concerns about what speech should be restricted, and how. Empowering government to punish hateful or offensive expresson necessarily vests officials with enormous discretionary power, which will inevitably lead to arbitrary …

A Balancing Act For American Universities: Anti-Harassment Policy V. Freedom Of Speech, Bridget Hart

Journal of Law and Policy

Legal scholars, educational administrators, journalists, and students have all witnessed a rise in students being disciplined by university officials for speech and conduct deemed inappropriate for college campuses. In endeavoring to explain this trend, some academics point to the disconnect between the Department of Education and university administrators regarding the legal standards for campus anti-harassment policies. The lack of clarity regarding what constitutes harassment on college campuses has resulted in the punishment of students by universities for speech and conduct that is normally considered to be protected speech under the First Amendment. This note first provides an overview of the …

When You Come To A Fork In The Road, Take It: Unifying The Split In New York's Analysis Of In-House Attorney-Client Privilege, Thomas O'Connor

Journal of Law and Policy

As one surveys the vast and ever-changing landscape of law and litigation, few things stand out as so unanimously exalted and carefully guarded as the privilege protecting attorney-client communications. Yet there is today a surprising lack of uniformity and predictability in the reasoning by which New York courts determine whether a communication made by in-house counsel to its corporate client will – or will not – enjoy the protection of that privilege. Rather than follow a single and predictable analysis to resolve the question, New York courts have oscillated between one line of decisions focusing primarily on the purpose of …

The New York Pharmaceutical Cost Transparency Act: How A Narrow View Of The Prescription Drug Pricing Puzzle Renders A Well-Intentioned Bill Irrational, John G. Curran

Brooklyn Law Review

Pricing prescription pharmaceuticals is a complex process that entails the consideration of a multitude of factors, not the least of which is the research and development expenditure exhausted by drug makers to gain FDA approval. While public sentiment has increasingly turned against the pharmaceutical industry due to its perceived greed as manifested in the high cost of its drugs, the intricacies of pricing such unique products is rarely discussed. A recently proposed New York state bill, the Pharmaceutical Cost Transparency Act (the NYPCTA), continues this unfortunate trend, by requiring companies to disclose the R&D costs of newly approved drugs in …

If We Don’T Bring Them To Court, The Terrorists Will Have Won: Reinvigorating The Anti-Terrorist Act And General Jurisdiction In A Post-Daimler Era, Stephen J. Digregoria

Brooklyn Law Review

Prior to the Supreme Court's recent general personal jurisdiction decisions in Daimler AG v. Bauman and Goodyear Dunlop Tires Operations S.A. v. Brown American terror victims, injured in terror attacks abroad, were able to bring their attackers and those who sponsor them into United States courts for relief. Specifically, groups like the Palestine Liberation Organization (the PLO) and the Palestinian Authority (the PA) had a history of being sued by American victims of terror. In the course of these suits, the PLO and the PA were regularly found subject to the personal jurisdiction of U.S. courts under a theory of …

“Hello…It’S Me. [Please Don’T Sue Me!]” Examining The Fcc’S Overbroad Calling Regulations Under The Tcpa, Marissa A. Potts

Brooklyn Law Review

Americans have received unwanted telemarketing calls for decades. In response to a rapid increase in pre-recorded calls made using autodialer devices, Congress enacted the Telephone Consumer Protection Act (TCPA) in 1992. The TCPA imposes restrictions on calls made to consumers’ residences and wireless phones using autodialer devices, even if they are not telemarketing calls. Congress appointed the Federal Communications Commission (FCC) to prescribe rules and regulations to enforce the TCPA. In 2015, the FCC released an order that defined autodialer more broadly under the statute. Consequently, devices that have the potential to become autodialers in the future, even if they …

The Question Concerning Technology In Compliance, Sean J. Griffith

Brooklyn Journal of Corporate, Financial & Commercial Law

In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures.

Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon

Brooklyn Journal of Corporate, Financial & Commercial Law

Privacy has come to the forefront of the technology world as third party hackers are constantly attacking companies for their customers’ data. With increasing instances of compromised customer information, the Federal Trade Commission (FTC) has been bringing suit against companies for inadequate data security procedures. The FTC’s newfound authority to bring suit regarding cybersecurity breaches, based on the Third Circuit’s decision in FTC v. Wyndham Worldwide Corp., is a result of inaction—Congress has been unable to pass sufficient cybersecurity legislation, causing the FTC to step in and fill the void in regulation. In the absence of congressional action, this self-proclaimed …

Preserving Human Agency In Automated Compliance, Onnig H. Dombalagian

Brooklyn Journal of Corporate, Financial & Commercial Law

As technology transforms financial services, so too must it transform the regulation of financial markets and intermediaries. The imperative of real-time, prophylactic regulation increasingly compels reallocation of regulatory and compliance budgets to surveillance and enforcement technology. At the same time, in light of the well-known weaknesses of automated systems, securities firms (and their regulators) must temper investment in automation with efforts to augment the agency of compliance professionals. This symposium contribution considers how investment in the professional development of compliance personnel can better integrate automated tools within established compliance and supervisory structures and thereby advance regulatory and operational objectives.

Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2011 Supreme Court case Stern v. Marshall defined which claims bankruptcy courts had the authority to adjudicate, but it’s complicated holding left lower courts perplexed. Specifically, the Stern decision created “Stern claims”—claims that bankruptcy courts have the statutory, but not the constitutional, authority to adjudicate. Subsequent cases, such as Executive Benefits Insurance Agency v. Arkison and Wellness International Network, Ltd. v. Sharif, have grappled with whether Stern claims should be treated as “core” claims, which bankruptcy courts can enter final judgments on, or “non-core” claims, which bankruptcy courts can only enter final judgments on if the litigating parties consent. …

Precedent In Statutory Interpretation, Lawrence Solan

Faculty Scholarship

No abstract provided.

The New Governance And The Challenge Of Litigation Bylaws, Jill E. Fisch

Brooklyn Law Review

Corporate governance mechanisms designed to ensure that managers act in shareholders’ interest have evolved dramatically over the past 40 years. “Old governance” mechanisms such as independent directors and performance-based executive compensation have been supplemented by innovations that give shareholders greater input into both the selection of directors and ongoing operational decisions. Issuer boards have responded with tools to limit the exercise of shareholder power both procedurally and substantively. This article terms the adoption and use of these tools, which generally take the form of structural provisions in the corporate charter or bylaws, the “new governance.”

Delaware law has largely taken …

Perpetual Twilight: How The Usda's Change To The Sunset Process Violates The Organic Foods Production Act Of 1990, Valentina Lumaj

Brooklyn Law Review

In 1990, Congress enacted the Organic Foods Production Act of 1990 (OFPA) in response to consumer and industry demands for uniform standards in organic production. The drafters recognized that the basic tenet of the legislation was that organic foods would be produced without the use of synthetic materials, but they left room for minimal exceptions in the National List of Allowed and Prohibited Substances (the National List). The National List enumerates the exemptions for synthetic substances, as well as prohibitions of natural substances, such as arsenic, in organic production. In September 2013, the USDA amended the Sunset Process, which is …