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Articles 1 - 30 of 51
Full-Text Articles in Public Law and Legal Theory
International Commitments Of Japan’S Prefectures With Foreign States: Empirical Patterns, Authority, And Legal Nature, Yuhei Matsuyama
International Commitments Of Japan’S Prefectures With Foreign States: Empirical Patterns, Authority, And Legal Nature, Yuhei Matsuyama
Brooklyn Journal of International Law
Under international law, sovereign states are the primary subjects of rights and obligations and possess the authority to conclude treaties. Domestic constitutions typically allocate foreign affairs powers to national governments. Nonetheless, subnational governments—including prefectures—regularly engage in international activities. In some federal systems, constituent units are expressly authorized by their constitutions to conclude international agreements. By contrast, the Constitution of Japan vests foreign affairs authority exclusively in the national executive and is silent on the authority of prefectural governments. This Article uncovers and analyzes approximately 180 previously unexamined international commitments concluded by Japanese prefectural governments with foreign states, identified through information …
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 …
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 …
How And Why To Be A Strategic Debtor, Chrystin Ondersma
How And Why To Be A Strategic Debtor, Chrystin Ondersma
Brooklyn Journal of Corporate, Financial & Commercial Law
Shame and fear prevent many Americans who need debt relief from seeking it. Americans who struggle with debt should reject fear and shame and should instead feel empowered and entitled to seek relief in bankruptcy. Almost every American will need to take on debt at some point. We’re expected to use credit to acquire educations, homes, cars, and appliances—even medical care. Americans do not incur debt strategically, but rather as a matter of survival. In Dignity Not Debt, I argued that human dignity, not profits, should guide policymakers, and that our collective goal should be to end both survival debt …
Can The New Literature About Debt Make A Real Difference In The Real World?, Norman I. Silber
Can The New Literature About Debt Make A Real Difference In The Real World?, Norman I. Silber
Brooklyn Journal of Corporate, Financial & Commercial Law
Thank you for inviting me to participate in this symposium organized around a group of new books about “Debt in the Real World.” My discussion in Part I considers from a historical perspective the place these books occupy as part of a long tradition of consumer reform which has combined popular literature with scholarship to promote change. Part II then explores themes common to this new wave. Part III closes by arguing that as in earlier periods the new wave can make headway notwithstanding attacks on governmental interventions; that there may be space in our political geography for some of …
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 …
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 …
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 …
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 …
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 …
I Ain't Afraid Of No Ghost…Kitchen! A New Realm Of Consumer Protection After The Inform Consumers Act, Johanna Silva
I Ain't Afraid Of No Ghost…Kitchen! A New Realm Of Consumer Protection After The Inform Consumers Act, Johanna Silva
Brooklyn Journal of Corporate, Financial & Commercial Law
The effects of the COVID-19 pandemic were pervasive, sparing none from its impact. However, the restaurant industry bore an even greater change and a heavier burden than most. At the height of the pandemic, some 110,000 restaurants shut down. QR codes replaced paper menus, street parking transformed into outdoor dining sheds, and Friday night dinners at the “great spot on the corner” became takeout orders from the couch. Reopening was an unpredictable gamble for restaurant owners, fraught with tiered plans and inconsistent regulations on safe and unsafe dining practices. The desperate search for creative solutions to stay in business propelled …
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 …
Clemency For The Common Good: An Argument To Release Incarcerated Persons In The General Public Interest, Deborah M. Ahrens
Clemency For The Common Good: An Argument To Release Incarcerated Persons In The General Public Interest, Deborah M. Ahrens
Brooklyn Law Review
During the height of the COVID-19 pandemic, we were reminded of several terrible truths about the modern mass incarceration state: namely, that it collects vulnerable people, places them in conditions where they are unable to protect themselves against many forms of ordinary and extraordinary risks, incubates suffering amongst them, and then spreads that suffering to surrounding communities. The ghastly consequences of these realities during the COVID pandemic led to piecemeal efforts to release moderate numbers of incarcerated people for public policy reasons largely unrelated to the kinds of individualized factors that have traditionally motivated most acts of clemency. This Article …
False Start On Nil: Public And Private Law Should Treat College Athletes Like Any Other Student, Jodi Balsam
False Start On Nil: Public And Private Law Should Treat College Athletes Like Any Other Student, Jodi Balsam
Faculty Scholarship
No abstract provided.
Nato Allies On The Brink Of War: The Cause For Implement-Ing A Dispute Resolution Mechanism Within The North Atlantic Treaty, Samantha Solomotis
Nato Allies On The Brink Of War: The Cause For Implement-Ing A Dispute Resolution Mechanism Within The North Atlantic Treaty, Samantha Solomotis
Brooklyn Journal of International Law
NATO is the largest peacekeeping military alliance in the world and is not yet done growing. Recent events in Ukraine have reinforced the importance of NATO as a defensive alliance. New threats, both internal and external, are emerging. Intra-alliance conflicts over ideological agreements, border disputes, and member contributions put the fate of the organization at risk. To retain its strength as it grows, NATO must develop stronger cohesion between member states to ensure effectiveness and prevent dissolution. This Note uses the recently reignited conflict between Greece and Turkey—NATO members and belligerent neighbors—to demonstrate the pressing need and peacekeeping utility of …
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 …
Puerto Rican Presidential Voting Rights: Why Precedent Should Be Overturned, And Other Options For Suffrage, Sigrid Vendrell-Polanco
Puerto Rican Presidential Voting Rights: Why Precedent Should Be Overturned, And Other Options For Suffrage, Sigrid Vendrell-Polanco
Brooklyn Law Review
The United States has continued to hold Puerto Rico as a colony, much like the British empire did the US colonies, and has given it no clear path to incorporation, statehood, or independent sovereignty. It has also denied its citizens the right to vote for their president and have voting representation in Congress. Current case law regarding Puerto Rican presidential voting rights and voting representation in Congress rests on precedent that dates almost as far back as its acquisition—the infamous Insular Cases. This case law is inconsistent with prior precedent, constitutional principles, and does not account for Puerto Rico’s contributions …
Democratizing New York’S Eminent Domain Regime, Gregory Wagner
Democratizing New York’S Eminent Domain Regime, Gregory Wagner
Brooklyn Law Review
Since the Supreme Court’s landmark eminent domain decision in Kelo v. City of New London, forty-three states have amended their eminent domain laws to constrain their own eminent domain powers. New York, however, was not one of them. In Goldstein v. N.Y. State Urban Development Corp., New York’s highest court decided firmly in favor of the state’s broad eminent domain powers, yet counseled New York lawmakers to act to legislatively limit the state’s unbridled eminent domain authority. Again, New York did not do so—allowing an eminent domain regime that leads to systemic deprivation of public participation to remain fully in …
Public Participation In The Constitution-Making Process: The Afghan Experiment, Shamshad Pasarlay
Public Participation In The Constitution-Making Process: The Afghan Experiment, Shamshad Pasarlay
Brooklyn Journal of International Law
This Article explores the public participation process conducted during the drafting of Afghanistan’s 2004 Constitution. It examines scores of questionnaires, public comments, written submissions and minutes of town hall meetings that the framers used to gather public opinion and input. The Article highlights that the makers of the 2004 Constitution of Afghanistan designed and implemented an extensive public participation process, but public opinion did not have a real impact on constitutional outcomes. Instead, the content of the constitution was settled by the political elites whose agreement was needed for constitutional ratification. Drawing on this case study, the paper suggests that …
The Gospel Of Federalism: How The Deification Of Political Ideology Impedes The United States’ Abortion Law Scheme, Nicole Jakobson
The Gospel Of Federalism: How The Deification Of Political Ideology Impedes The United States’ Abortion Law Scheme, Nicole Jakobson
Brooklyn Journal of International Law
In 2022, the United States Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which ended the federal abortion protection established under Roe v. Wade. The Court reasoned that abortion restriction is properly regulated by state governments, and thus a federal abortion law scheme is unconstitutional. In substance, the Court was safeguarding the enduring political and legal principle of federalism. This Note draws a comparison between the United States’ treatment of federalism and foreign jurisdictions’ treatment of religion within the context of abortion. This Note argues that the United States’ preoccupation with federalism is analogous to appeals to religion in …
Addressing The Toll Of Truth Telling, Inga N. Laurent
Addressing The Toll Of Truth Telling, Inga N. Laurent
Brooklyn Law Review
Across the United States, there are mounting and renewed calls for applying restorative justice principles to deeply entrenched societal ills based on reconciliation, namely in the form of truth and reconciliation commissions (TRCs). Amid our great mobilization, we would be wise to pause, contemplating lessons from lived experiences. Since the 1970s, approximately thirty-five national truth commissions have taken place. In South Africa, Canada, Sierra Leone, and many processes, TRCs have proven adept at cataloguing approved instances of victim and survivors’ (VS) stories and elaborately contextualizing conflict through a new historical lens. Despite the transformative potential of TRCs, they are still …
Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past
Brooklyn Journal of International Law
So-called “conversion therapy” consists of dangerous practices that inflict detrimental, long-lasting effects on its victims. As a form of sexual orientation or gender identity or gender expression change efforts, conversion therapy is fostered by global homophobia and transphobia. Despite formal public rejection and scientific discreditation, conversion therapy providers across the world continue to target LGBTQ+ individuals, predominately under the guise of offering health care services or obeying religious practices. The following piece compares conversion therapy in three countries with recently introduced LGBTQ+ legislation––(1) Ghana; (2) Canada; and (3) the United States (U.S.)–––in order to identify factors furthering conversion therapy and …
Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek
Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek
Brooklyn Journal of International Law
For the past two decades, discourse on terrorism (both global and domestic) has been commonplace throughout the international sphere. Following the attacks on September 11, 2001, many nations have followed suit in launching counterterrorism operations to identify and prevent attacks by both radical groups and lone actors. While the common narrative has focused on “why” terrorist actors commit heinous acts and “how” to best prevent future incidents from emerging, it is important to analyze the legal nuances between prosecuting domestic versus international terrorists. With the rise on “homegrown” domestic lone actors, nations have had to reevaluate and adapt counterterrorism statutes …
Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes
Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes
Brooklyn Journal of International Law
The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …
Data Governance And The Elasticity Of Sovereignty, Roxana Vatanparast
Data Governance And The Elasticity Of Sovereignty, Roxana Vatanparast
Brooklyn Journal of International Law
Traditionally, the world map and territorially bounded spaces have dominated the ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, reflected in traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to the traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is …
Functional Statehood In Contemporary International Law, William Thomas Worster
Functional Statehood In Contemporary International Law, William Thomas Worster
Brooklyn Journal of International Law
The international community lacks a form of territorial-based, international legal personality distinct from statehood, and yet, non-state, territorial entities of varying degrees of autonomy or independence need to function within the international community in some form. Some of these entities cannot be recognized as states because their creation violates jus cogens norms, though others are not recognized based on an assessment that they may not fully qualify as a state or that there are political reasons to refuse recognition. However, existing states still need to engage with these territorial quasi-states through the only paradigm the international community has—statehood. For example, …
Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar
Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar
Brooklyn Journal of International Law
The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …
“A Climate Of Lawlessness”: Upholding A Government’S Affirmative Duty To Protect The Environment Using Deshaney’S Special Relationship Exception, Katherine G. Horner
“A Climate Of Lawlessness”: Upholding A Government’S Affirmative Duty To Protect The Environment Using Deshaney’S Special Relationship Exception, Katherine G. Horner
Journal of Law and Policy
The Industrial Revolution introduced an era of exceptional technological advances. However, it also led to rampant environmental pollution and degradation. The proliferation of toxic pollutants in the air, water and soil has led us to the precipice of an unimaginable future; a future defined by climate change. This Note argues for the use of the special relationship exception, affirmed by the Supreme Court in DeShaney v. Winnebago, in environmental litigation in order to uphold governments’ affirmative duty to protect the environment. As federal and state governments have the sole power to regulate environmental pollution and enforce environmental protections, individuals are …