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Articles 1 - 30 of 168
Full-Text Articles in Litigation
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 …
Infliction Of Precarity: Risk, Vulnerability, And Tort Law, Saad Al-Obaidi
Infliction Of Precarity: Risk, Vulnerability, And Tort Law, Saad Al-Obaidi
Journal of Law and Policy
Imposing a risk of harm on someone should be a tort in certain unjustifiable circumstances, regardless of whether the harms at risk materialize. A doctrinal undercurrent exists that supports this proposal concerning latent or delayed harms as legally cognizable injuries. Even though it is a basic moral principle not to put others at risk of harm without justification, courts deny in principle recovery for risks that lack concomitant externalizations in some familiar form of harm, like physical, pecuniary, or emotional damage to the person. This Article argues that tort law should offer recovery for unjustified risk impositions in circumstances that …
Speak Up, Pay Up: Why New York Should Enact The Speak Your Truth Act And End The Chilling Effect On Sexual Assault Survivors Following The #Metoo Era, Maya Burnette
Journal of Law and Policy
Sexual assault is one of the most prevalent forms of violence in the United States. It is also one of the least reported. With criminal and civil avenues often providing little justice, many survivors turned to the public to tell their stories. In the wake of the #MeToo movement, thousands of survivors publicly shared their experiences, prompting significant social and legislative change. Yet many who spoke out faced retaliatory defamation lawsuits filed by alleged abusers to silence them. These suits, commonly known as Strategic Lawsuits Against Public Participation (“SLAPP suits”), pose a substantial threat to survivors’ speech. Despite recent reforms, …
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 …
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 …
Curbing Common Benefit Fees, Matthew Lyness
Curbing Common Benefit Fees, Matthew Lyness
Brooklyn Law Review
Multidistrict litigation (MDL) courts routinely use common benefit orders and fee assessments to compensate the attorneys who generate work product that benefits the broader plaintiff class. Courts’ largely unguided approach to setting assessment percentages—often justified through invocation of a court’s inherent authority—leaves participating counsel uncertain about their eventual recovery, invites arbitrary midstream changes, and risks windfalls unconnected to the actual utility of common benefit work product. This Note argues that in order to guarantee the continued efficiency of the MDL system, judges should adopt a standardized fee assessment framework that is predictable from the outset and proportionate to the ultimate …
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 …
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 …
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 …
Who Owns Your Adventure? A Need For Legislative Clarity For Streamed Performances Of Video Games, Harrison Busalacchi
Who Owns Your Adventure? A Need For Legislative Clarity For Streamed Performances Of Video Games, Harrison Busalacchi
Brooklyn Journal of Corporate, Financial & Commercial Law
Video games contain copyrighted material that could easily be infringed upon by people streaming a performance of them playing the game. However, the streamers can protect themselves from infringement liability by transforming the content in some form or fashion such that their performance constitutes “fair use” of the copyrighted material. This is often accomplished by the streamer providing commentary while playing the game or adding a small video of themselves in the corner of the stream so that the viewers can see the streamers’ reactions to the content. With artificial intelligence seeing exponential growth in the past couple of years …
Emission Impossible: Challenging The Imposition Of New York City’S Local Law 97, Daniel Lopiccolo
Emission Impossible: Challenging The Imposition Of New York City’S Local Law 97, Daniel Lopiccolo
Brooklyn Journal of Corporate, Financial & Commercial Law
New York City’s Local Law 97 was passed by the City Council in 2019 with the goal of reducing citywide carbon emissions. The law imposes civil penalties on property owners whose buildings fail to comply with carbon emissions limits stipulated by the city. While the law admirably aims to minimize New York’s carbon footprint, its present burden is excessive and disproportionate to the offense committed, making the cost of affording lower and middle-class housing units increasingly untenable for many New Yorkers, especially for property owners in co-op and condo communities. Many such as Glen Oaks Village Owners, Inc., the plaintiffs …
A Quarter Century After The Products Liability Restatement: Reflections, Aaron D. Twerski
A Quarter Century After The Products Liability Restatement: Reflections, Aaron D. Twerski
Brooklyn Law Review
A quarter century has passed since the adoption by the American Law Institute of the Products Liability Restatement. It is time to reflect on whether it has influenced the courts. At the time of its adoption there was considerable controversy with regard to several sections. Some sections were not controversial. There was little disagreement that a plaintiff may draw a res ipsa like inference of product defect. Nor was there disagreement that if a product was in violation of statute that the product was defective per se. Two sections were highly controversial. The Restatement held that a product could not …
Into The Twilight Zone: Reverse Citizenship Discrimination, Damage Caps, And Escalating Incoherence, William R. Corbett
Into The Twilight Zone: Reverse Citizenship Discrimination, Damage Caps, And Escalating Incoherence, William R. Corbett
Brooklyn Law Review
Federal employment discrimination law has become such an asymmetrical and largely incoherent body of law that those who find themselves in its midst can feel as though they have entered another realm or dimension—the “twilight zone.” The role of Section 1981 (42 U.S.C. § 1981) in federal employment discrimination law poses some significant mysteries and problems. The statute was enacted as part of the Civil Rights Act of 1866 to ensure the rights of recently liberated slaves, and it was amended in 1870. One of the rights guaranteed by Section 1981 is the right to make and enforce contracts on …
The Opioid Litigation’S Challenge For Tort Theory, Alexander B. Lemann
The Opioid Litigation’S Challenge For Tort Theory, Alexander B. Lemann
Brooklyn Law Review
Tort litigation related to the opioid crisis has spanned several decades and led to tens of billions of dollars in liability. While several important opioid cases remain pending in various stages of litigation, it is now possible to sketch a basic outline of the results: individual plaintiffs sued opioid manufacturers on a variety of theories, seeking redress for the harms resulting from their addictions. They all lost. Following a pattern established by the tobacco litigation thirty years earlier, public plaintiffs, including city, county, and tribal governments, then filed their own suits, principally on public nuisance theories. These cases were much …
Redefining The Scope Of Anti-Discrimination Law: Illuminating Colorism As A Basis For Discrimination Claims By Black Entertainers, Tolulope F. Odunsi-Nelson
Redefining The Scope Of Anti-Discrimination Law: Illuminating Colorism As A Basis For Discrimination Claims By Black Entertainers, Tolulope F. Odunsi-Nelson
Brooklyn Law Review
This Article critically examines the pervasive issue of colorism within the entertainment industry and its profound impact on dark-skinned Black entertainers. Anti-Black colorism is discrimination against Black people with darker skin tones and Afrocentric features (i.e. darker eye color, kinkier hair, broader nose, fuller lips). Tracing the historical roots of colorism from the colonial era to contemporary times, the Article emphasizes how societal preferences for Eurocentric features and anti-Black racism have created and perpetuated a hierarchy that disadvantages darker-skinned individuals. It analyzes the underrepresentation and pay disparities faced by dark-skinned Black actors and actresses. It details the industry’s preference for …
Implicit Bias Within The Primary Assumption Of Risk Doctrine, Tracy Catapano-Fox
Implicit Bias Within The Primary Assumption Of Risk Doctrine, Tracy Catapano-Fox
Brooklyn Law Review
This Article addresses the efficacy of the primary assumption of risk doctrine, and the improper extension of the doctrine to vitiate a plaintiff’s ability to obtain recourse in personal injury cases. When the New York legislature enacted the comparative negligence standard in 1975, it essentially revoked the applicability of the primary assumption of risk doctrine as a defense in tort litigation. However, the courts continued to apply the primary assumption of risk doctrine in tort cases involving sports or physical activity, analyzing it as an element of a defendant’s duty and serving as a complete bar to recovery for plaintiffs …
The Case For Abolishing The Civil Character-Evidence Rule, Steven Goode
The Case For Abolishing The Civil Character-Evidence Rule, Steven Goode
Brooklyn Law Review
The Federal Rules of Evidence were enacted fifty years ago. The Advisory Committee charged with drafting the rules successfully reformed a good number of common-law rules and failed in its attempts to reform others. But it did not even attempt significant reform of one of the most troublesome rules—the character-evidence rule. Indeed, it declined to seriously consider even a very modest proposal to reform the way the character-evidence rule applies in civil cases. Those espousing change, it declared, “have not met the burden of persuasion.” This Article takes up that challenge. I argue that Rule 404’s categorical exclusion of character …
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, …
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 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 …
Unintended Consequences: The New Test For Interlocutory Mandatory Injunctions, Jeff Berryman
Unintended Consequences: The New Test For Interlocutory Mandatory Injunctions, Jeff Berryman
Brooklyn Law Review
Interlocutory mandatory injunctions can be an important remedy during the pendency of a trial. With its decision in R. v. Canadian Broadcasting Corp, the Supreme Court of Canada revised its test for an interlocutory mandatory injunction, holding that it should require a higher threshold and be therefore harder to obtain than an interlocutory prohibitive injunction. This higher threshold requires that the applicant demonstrate a strong prima facie case that it will succeed at trial based on law and evidence. This change adds uncertainty to the process, ultimately complicating and adding costs to litigation.
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 …
Summary Eviction Proceedings As A Debt Collection Tool: How Landlords Use Serial Eviction Filings To Collect Rent, Grace Vetromile
Summary Eviction Proceedings As A Debt Collection Tool: How Landlords Use Serial Eviction Filings To Collect Rent, Grace Vetromile
Brooklyn Law Review
This note explores how landlords use housing court as a debt collection tool, impacting the rights of tenants and their ability to fairly adjudicate claims in summary eviction proceedings. Disparities in the number of evictions that are filed, as compared to evictions that are ultimately executed, indicate that landlords do not always use eviction proceedings to kick out a tenant, but rather as a method of debt collection. Using these proceedings in this manner affects a tenant’s ability to defend against eviction, even when the tenant has meritorious claims that their landlord did not provide a habitable apartment. This note …
Nonparty Litigation Holds: Clear To Implement. Complex To Lift., Alexis Bianco-Burrill
Nonparty Litigation Holds: Clear To Implement. Complex To Lift., Alexis Bianco-Burrill
Brooklyn Law Review
Legal holds have long been used by parties, and nonparties alike, as a fundamental tool to preserve information that could be needed in litigation. There are a breadth of statutes, case law, and scholarly work clarifying when a party has the duty to preserve documents and therefore issues legal holds under federal law, as well as when nonparties share this same duty. Although the question of when to issue a legal hold has a clear answer, the problem of when a nonparty can lift a litigation hold is much more complex. Often, nonparties who have been requested to preserve documents …
A New Private Law Of Policing, Cristina Carmody Tilley
A New Private Law Of Policing, Cristina Carmody Tilley
Brooklyn Law Review
American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …
Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam
Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam
Brooklyn Law Review
Historically, federal courts have used the “adverse employment action” test in Title VII disparate treatment, disparate impact, and retaliation cases to determine whether a plaintiff has suffered adequate harm. This note argues that this approach is fundamentally flawed. At the outset, the test is a judicial power grab with no support in the statutory language. What is more, it fails to uphold the plain policy purposes for Title VII by largely ignoring evidence of discriminatory acts in the workplace that Congress sought to prevent in passing the statute. Consequently, Title VII plaintiffs get the short end of the stick with …
Balancing Preservation With Growth: How Less Judicial Deference To Decisions Made By The Landmarks Preservation Commission Can Save New York City, Amy Cushman
Brooklyn Law Review
The New York City Landmarks Law of 1965, envisioning the preservation of historical treasures, empowered the New York City Landmarks Preservation Commission (LPC) with the authority to designate and regulate landmarks and historic districts. Originally established in response to public outcry over the loss of iconic architectural structures, the LPC aimed to safeguard the city's cultural, social, and architectural legacy. However, this note contends that recent LPC decisions, particularly the issuance of Certificates of Appropriateness for luxury residential construction involving partial demolition of landmarks, betray the original preservation goals. Delving into the legal recourse available under the New York Civil …
Full Moon Or Full Fraud? A Proposed Method For Interpreting Emojis Under Rule 10b-5, Sophie Abrams
Full Moon Or Full Fraud? A Proposed Method For Interpreting Emojis Under Rule 10b-5, Sophie Abrams
Brooklyn Law Review
In the wake of the COVID-19 pandemic, many Americans who were stuck at home turned to social media forums in search of community and investing advice. Fifteen million (and counting) of them found community in r/wallstreetbets, a group on Reddit that banded together to drive up the prices of “meme stocks.” Bed Bath and Beyond was one stock that piqued retail investors’ interest after seeing billionaire investor Ryan Cohen take a 10 percent stake and activist role in the company. However, Cohen ended up being a large disappointment to his retail investor fans, as he subsequently sold off his stake …
Plea Bargains, Prosecutorial Breach, And The Curious Right To Cure, Michael D. Cicchini
Plea Bargains, Prosecutorial Breach, And The Curious Right To Cure, Michael D. Cicchini
Brooklyn Law Review
When the prosecutor breaches a plea bargain—e.g., by recommending prison instead of the agreed-upon probation—the defendant is entitled to a remedy: either sentencing in front of a different judge or plea withdrawal. However, if defense counsel objects to the breach, the prosecutor may halfheartedly change the recommendation to probation. Most courts have held that to be an effective “cure”—even when the judge then sentences the defendant to prison, as the prosecutor originally recommended. The right to cure, which was intended for commercial sales contracts, fails miserably in the plea-bargain context. In the above example, the attempted cure is too late, …