Publisher: Brooklyn Law School (Total: 4 journals)   [Sort by number of followers]

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Brooklyn J. of Corporate, Financial & Commercial Law     Open Access   (Followers: 2)
Brooklyn J. of Intl. Law     Open Access   (Followers: 5)
Brooklyn Law Review     Open Access   (Followers: 4)
J. of Law and Policy     Open Access   (Followers: 1)
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Brooklyn Law Review
Number of Followers: 4  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0007-2362
Published by Brooklyn Law School Homepage  [4 journals]
  • Third Time’s the Charm: Remedying the Lack of Uniformity and
           Predictability in Trade Secret Law

    • Authors: Matthew D. Kasner
      Abstract: The current legal framework governing trade secrets in the United States lacks the uniformity and predictability necessary to protect businesses. As a result, trade secret litigation has been on the rise over the course of the last decade. Whilst remote work becomes more ubiquitous, even beyond the COVID-19 pandemic, litigation will continue to increase as businesses are forced to entrust confidential information with remote workers. This note examines the current US trade secret scheme, exposes the current framework’s deficiencies, and suggests a “trade secret formalities model” to make for a more organized and efficient doctrine of law. More specifically, this note analyzes (1) the use of formalities in Russia’s current trade secret regime, and (2) the impact of the formalities system used in traditional US copyright law. In a time when the protection of trade secrets is as vulnerable as ever, change is needed, and formalities are the answer.
      PubDate: Mon, 14 Mar 2022 11:13:49 PDT
  • Lessons COVID-19 Taught: How the Global Pandemic Demonstrated that State
           Healthcare Regulations Can Kill

    • Authors: Devon Allgood
      Abstract: Certificate of Need (CON) laws are designed to lower the cost of healthcare and have been a staple of American law for over half a century. In the most basic sense, CON laws require that medical providers receive the government’s permission to build a new healthcare facility, purchase major medical equipment, add or remove services, and in some cases, change their hours of operation. These requirements are designed to lower the price of healthcare by limiting competition and barring providers from investing in services or equipment that are deemed “unnecessary” by the government, thus preventing these providers from passing the cost of expensive and unused medical equipment to patients. In practice, however, CON laws have increased the cost of healthcare while simultaneously limiting the public’s access to it. New York was the first state to adopt a CON law regime, and to this day has the strictest CON law in the nation. For New Yorkers, the state’s CON law has not only increased costs and decreased access to healthcare services, but the law also effectively hamstrung New York’s ability to adequately deal with the initial waves of the COVID-19 pandemic. Typically, such anticompetitive conduct would be disallowed by antitrust law. Though, because CON laws are government regulations rather than private actions, they enjoy blanket immunity from antitrust scrutiny via the Parker immunity doctrine, despite the clear harm these laws cause consumers. This note calls for the elimination of the Parker antitrust immunity doctrine, arguing that it should be replaced with a rule of reason analytical framework that balances the anticompetitive effects of the law with the legitimate interests of the state, regardless of its status as a government regulation.
      PubDate: Mon, 14 Mar 2022 11:13:49 PDT
  • The Gatekeepers of Research: Why a Data Protection Authority Holds the Key
           to Research in the New York Privacy Acts

    • Authors: Eric B. Green
      Abstract: Biometric data is among the most sensitive of personal data because it is biologically tied and unique to the individual. Nonetheless, biometric data is an invaluable facet of the research that enables progressive scientific, technological, and medical innovation. Because a comprehensive federal data privacy act does not appear to be on the horizon, the torch has been passed to the states to create their own personal data protection regimes. New Yorkers’ personal biometric data is not aptly protected, partially because neither the New York Privacy Act nor the Biometric Privacy Act (collectively, the NY Privacy Acts) have matured to the point of becoming a legislative reality. This note seeks to establish that the NY Privacy Acts, while necessarily restricting data processing practices by businesses that endanger the consumer, fail to clearly define research and the boundaries of a sufficient research exemption from mandated erasure. To protect New Yorkers’ biometric data while simultaneously maximizing the benefits of biometric data to research, this note proposes that the New York legislature should amend the NY Privacy Acts to include a tripartite definition of “research,” inspired by the definitions of the General Data Protection Regulation, the California Consumer Privacy Act and California Privacy Rights Act, with a reasonable degree of added reverence for the “open science” concept. Finally, the New York legislature should mandate the imposition of both a data protection agency and a biometric data subcommittee that would ensure compliance with the elevated privacy standards required for biometric data while determining appropriate exemptions for research, thereby serving as the gatekeepers for research in the Empire State. Without these gatekeepers, New York would be locking up research and throwing away the key.
      PubDate: Mon, 14 Mar 2022 11:13:48 PDT
  • The Promised Land: Blockchain and the Fashion Industry

    • Authors: Shlomit Yanisky-Ravid et al.
      Abstract: Despite being a highly creative industry, the fashion industry lacks effective intellectual property (IP) protection in the United States. This article posits that, in the midst of the digital era, blockchain technology, particularly smart contracts, can remedy the failure of IP laws to protect fashion designs and create efficiencies that may dramatically improve the industry. Therefore, if the fashion industry were to adopt a blockchain-based platform, enabled by smart contracts, it could address many of the current challenges stemming from a lack of sufficient IP protection. This article explores the features of blockchain technology, including NFTS, and the application to the fashion industry. It explains how blockchain technology can be used to create a crypto-legal structure of endogenous quasi-legal protections administered through a decentralized system of self-executing smart contracts, which together can fill the gaps in the existing IP regime. This article further addresses how adopting such technology would improve creators’ control over their designs, the distribution chains, fee collection, and the fight against infringement, while effectively creating a more efficient and transparent industry. These conclusions are based on and justified by the theory of law and economics. Finally, the article urges the first ones to adopt this technology, or those in desire of a competitive advantage, to adopt blockchain technology, and discusses the hurdles that will arise in implementing such a system. It concludes with an assessment of how blockchain-based smart contracts will affect various players in the industry.
      PubDate: Mon, 14 Mar 2022 11:13:47 PDT
  • How Public Health Informed Lawmaking Would Address the Rising Synthetic
           Opioid Death Toll

    • Authors: Jennifer S. Bard
      Abstract: The sharply rising deaths associated with use of synthetic opioids in the United States highlight the failure of a legislative strategy focused on reducing the availability of prescription opioids. However, since synthetic opioids prescribed for pain relief have never been a major contributor to either developing opioid dependence or dying from opioid use, it is not surprising that these measures have not only failed to reduce deaths, but have also caused considerable harm to people in need of pain relief. Yet reversing them and taking a public health approach focused on preventing the most serious harms associated with synthetic opioids is hampered by the failure of the US legal system to adopt public health methods when legislating to address threats to the public’s health. Specifically, legislative initiatives are doomed to fail when they lack processes of setting legislative goals based on scientific evidence, reviewing the effectiveness of legislation in achieving these goals, or implementing changes when the goals are not being met. This article identifies why the current method of using the legal system to address public health problems has made it so difficult to address the unacceptably high number of deaths associated with use of synthetic opioids and suggests how a different approach to law making could prevent future deadly failures.
      PubDate: Mon, 14 Mar 2022 11:13:47 PDT
  • Credibility in Empirical Legal Analysis

    • Authors: Hillel J. Bavli
      Abstract: Empirical analysis is central in both legal scholarship and litigation, but it is not credible. Researchers can manipulate data to arrive at any conclusion they wish to obtain. A practice known as data fishing—searching for and selectively reporting methods and results that are favorable to the researcher—entirely invalidates a study’s results by giving rise to false positives and false impressions. Nevertheless, it is prevalent in law, leading to false claims, incorrect verdicts, and destructive policy. In this article, I examine the harm that data fishing in empirical legal research causes. I then build on methods in the sciences to develop a framework for eliminating data fishing and restoring confidence in empirical analysis in legal scholarship and litigation. This framework—which I call DASS (an acronym for Design, Analyze, Scrutinize, and Substantiate)—is designed to be simple, flexible, and practical for application in legal settings. It provides a concrete method for researchers to use to safeguard against data fishing and for consumers of empirical analysis to use to evaluate a researcher’s empirical claims. Finally, after describing the DASS framework and its application in various legal settings, I consider its implications for the “hired-gun” problem and other difficulties related to the reliability of expert evidence.
      PubDate: Mon, 14 Mar 2022 11:13:46 PDT
  • White Supremacy’s Police Siege on the United States Capitol

    • Authors: Vida B. Johnson
      Abstract: On January 6, 2021, law enforcement failed the people and the institutions it was supposed to protect. This article explores how white supremacy and far-right extremism in policing contributed to the insurrection at the Capitol. Police officers enabled the siege of the Capitol, participated in the attack, and failed to take seriously the threat posed by white supremacists and other far-right groups. The debacle is emblematic of the myriad problems in law enforcement that people of color, scholars, and those in the defund and abolitionist movements have been warning about for years. Police complicity in the attack on the Capitol has shown that the infiltration of police departments by white supremacists and far-right extremists has made the country less safe. This article illustrates how these problems in policing, exposed on January 6, harm people of color, and proposes solutions to reform policing in the United States.
      PubDate: Mon, 14 Mar 2022 11:13:46 PDT
  • A Lineage of Family Separation

    • Authors: Anita Sinha
      Abstract: Family separation is a practice rooted in US history. In order to comprehensively examine the most recent execution of separating children from their parents under the Trump Administration’s “zero tolerance” policy, we need to follow and understand this history. That is what this Article does. Examining the separation histories of enslaved, Indigenous, and immigrant families, it offers critical context of a reoccurring practice that has had devastating effects largely on communities of color, and across generations. By contextualizing the separation of migrant families crossing the US-Mexico border under zero tolerance, this Article identifies narratives that consistently rely on xenophobia and racism to justify a practice that otherwise is extreme in its inhumanity. These justification narratives are juxtaposed with counterstories that resist and challenge the separation of families, including by humanizing those impacted and articulating the profound harm it causes to children, parents, and communities. These stories have been told through first-hand narratives, Congressional testimonies, statistical studies, media reports, and facts and allegations in lawsuits. Systemic change, however, has been elusive. In the case of Indigenous family separation, legislation enacted to cease the practice failed to bring about substantial change and has been diluted by persistent legal challenges. Historical family separation practices against enslaved and immigrant families have been replaced with systems that separate families for prolonged times or permanently. These include the present-day US criminal legal and immigration systems, where the government separates children from their parents on a substantial scale as a collateral consequence of mass incarceration and widespread detention and deportation, with little to no scrutiny. The zero tolerance policy combined deliberate with collateral family separation, as its overall objective was to deter migration but by deliberately separating migrant families to accomplish this goal. The advocacy to put an end to the policy was impressive in its rapid response, historical breadth, and numerical scope. The outrage that ended zero tolerance, however, has not extended to the persisting and pervasive separation of families in the US immigration system generally, and in the US criminal legal system. In an effort to understand why, this Article details the histories of family separation in the United States, identifying the justifications and counternarratives that contributed to their execution, and to their end. In doing so, it highlights reoccurring themes in the justifications for separating children from their parents and, often, communities. It posits that narratives describing the harm caused by separating families are a powerful element of putting the practices to an end. These narratives, however, have emerged successfully in specific socio-political contexts that rendered them compelling enough to overcome the justifications for specific family separation policies throughout US history. The opportunity for narratives to challenge in any significant way how the US immigration and criminal legal systems carry on a practice that constitutes modern family separation has yet to transpire. History shows us that the counterstories urging the valuation of family integrity need to be aligned with a societal will to challenge systems that, through racialized justifications, separate mostly marginalized children from their parents.
      PubDate: Mon, 14 Mar 2022 11:13:45 PDT
  • Paging Doctor Robot: Medical Artificial Intelligence, Tort Liability, and
           Why Personhood May Be the Answer

    • Authors: Benedict See
      Abstract: Artificial intelligence (AI) is a part of everyday life. From our phones, to social media accounts, to online shopping, AI is present and enhances our daily experiences. One area where AI has a heavy (and an increasing) presence is the medical industry. Just as humans make mistakes, so does AI. However, when a human doctor makes a mistake, they can be sued for malpractice, but when AI makes a mistake, who is to be held responsible' Because tort law was designed with humans in mind, it may be hard to apply to medical AI, who’s “black box” algorithms make their thoughts and decisions hard to decipher. This note examines current American tort law and suggests that the current tort regime is inadequate when applied to medical AI. This note suggests adopting a framework similar to that proposed by the European Parliament in 2017, in which medical AI could be granted quasi personhood and insured directly, alleviating the burden of determining liability and allowing victims to seek redress right away.
      PubDate: Tue, 08 Feb 2022 09:38:59 PST
  • Punishing Drug Use During Pregnancy: Is It Time to “Just Say
           No” to Fetal Rights'

    • Authors: Danika E. Gallup
      Abstract: In family courts throughout the country, civil neglect and abuse petitions are routinely brought against individuals based on their drug use during pregnancy. While some may be quick to justify such state interventions in the name of child protection based on the presumption that drug use always harms fetuses in utero and the child once it is born, this note questions the propriety of such justifications. While drug use during pregnancy may result in detrimental health outcomes, the theoretical underpinning of this premise has been dramatically distorted due to racist and classist assumptions that permeate child protective schemes. Medical research suggests that harm to the child resulting from in utero exposure to substances has been vastly overstated due in large part to the pervasive rhetoric of the war on drugs, “crack babies,” and the vilification of Black motherhood. Furthermore, punishing individuals for drug use during pregnancy in the name of fetal protection highlights the law’s recent tendency to afford legal protections to fetuses, often at the expense of their mothers’ privacy and reproductive liberty interests. Thus, the justifications for state intervention (i.e., preventing harm to the child) must be carefully scrutinized. Otherwise, family courts, despite their purported rehabilitative and non-punitive purpose, are simply carrying out state-sanctioned family separation, the trauma of which cannot be overstated. About half the states consider drug use during pregnancy as child abuse or neglect per se under their child-welfare statutes. The remaining states either have no specific requirement or require a showing of harm to the child caused by the parent’s drug use before a finding of neglect or abuse can be made. This note focuses on New York State’s approach, which requires a showing of harm to the child caused by drug use during pregnancy. While preferable to state approaches which permit such a finding without any showing of harm, New York caselaw suggests ample room for improvement. First, New York must promulgate clear standards for establishing harm to the child. New York also cannot ignore the harm of the most drastic and invasive of its interventions—removal of the infant—in its analysis. New York must establish clear guidelines for drug testing and subsequent reporting of pregnant women. Finally, to truly work in the best interests of children and families and to best align with its “rehabilitative” purpose, New York family courts must reject a punitive approach and should prioritize interventions supporting maternal health and recovery.
      PubDate: Tue, 08 Feb 2022 09:38:58 PST
  • TRANSCRIPT: The Roberts Court and Free Speech Symposium

    • Authors: Michael T. Cahill et al.
      Abstract: On April 9, 2021, the Brooklyn Law Review gathered a panel of First Amendment scholars for a symposium on the Roberts Court's free speech jurisprudence. This transcript captures the panelists' diverse perspectives on the free speech themes highlighted by the Roberts Court's free speech jurisprudence.
      PubDate: Tue, 08 Feb 2022 09:38:57 PST
  • Broken PROMESA: Why the United States Should Abandon Its Use of the
           Territories Clause to Control the Local Affairs of Puerto Rico

    • Authors: Julia R. Cummings
      Abstract: Puerto Rico’s sovereignty status is an anomaly. Since the United States acquired the island in 1898, the federal government has treated Puerto Ricans differently compared to residents of its other acquired territories. The United States also exerts significant control over Puerto Rico’s local affairs, most recently through the enactment and enforcement of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) in response to the current debt crisis in Puerto Rico. This note assesses the validity of the federal government’s use of the territories clause to control local Puerto Rican affairs, examining the complex history between the United States and Puerto Rico. It suggests that the federal government relinquished its authority to invoke such powers through the passage of Public Law 600, which vested Puerto Ricans with the right to “constitutional self-governance.” This note also suggests an alternative approach to addressing the current debt crisis while giving Puerto Ricans democratic power over the debt restructuring process.
      PubDate: Tue, 08 Feb 2022 09:38:57 PST
  • The Law of License Plates and Other Inevitabilities of Free Speech Context

    • Authors: William D. Araiza
      Abstract: This article, written for a symposium on Ronald Collins’s and Professor David Hudson’s catalogue of the Roberts Court’s First Amendment free speech jurisprudence, reconsiders the longstanding tension between rigid free speech rules and more contextual standards. It examines that debate by considering a set of relatively recent free speech cases in which the Court ostensibly adopted rigid rules, but in doing so arguably cloaked its reliance on more contextual factors by manipulating those rules. In cases dealing with national security and judicial electoral speech, the Court manipulated the strict scrutiny the Court insists applies to nearly every content-based speech restriction by, respectively, hiding the formal statement of the standard it was applying and applying strict scrutiny in a decidedly non-strict way. In deciding a compelled speech case involving a state requirement that anti-abortion pregnancy clinics post notices about the state’s provision of low-cost abortion services, the Court flirted with extending the content-neutrality rule to nearly all compelled speech situations, but provided a vague and unexplained carve-out to that all-but announced rule. Finally, in deciding a case involving a state specialty license plate program, the Court adopted a rigid government speech/private speech binary rather than recognizing that the program featured elements of both government and private speech. This critique is not intended to deny the appropriateness of rigid First Amendment rules. However, the Roberts Court’s expansion of those rules’ domain threatens to erase any recognition of the context -specificity that plays a necessary role in any coherent, transparent, and truly principled system of First Amendment adjudication. Justice White, writing the majority opinion in a 1981 First Amendment case involving restrictions on billboards, pithily observed, “we deal here with the law of billboards.” So too, it may behoove the Court to develop a law of specialty license plates—and many other context-specific doctrines as well.
      PubDate: Tue, 08 Feb 2022 09:38:56 PST
  • Free Speech Still Matters

    • Authors: Joel M. Gora
      Abstract: In its first ten years, the Roberts Court proved to be the most speech protective Court in a generation, if not in our history; however, in the intervening five years, the Court has faced intense pressures, ranging from heightened criticism of its First Amendment jurisprudence to seismic changes in the makeup of the Court to very real proposals for court “packing.” Despite these powerful forces, the Roberts Court has surprisingly stayed true to its commitment to—and guardianship of—the First Amendment. Nevertheless, in the face of modern political correctness and cancel culture, free speech has rarely been in a more precarious position. In looking back at these last five years of the Roberts Court’s First Amendment jurisprudence and in assessing the modern threats to free speech, this article argues that what we need to establish, or perhaps re-establish, is a “culture of free speech,” where discussion and debate is encouraged, and diversity of thought valued.
      PubDate: Tue, 08 Feb 2022 09:38:55 PST
  • INTRODUCTORY REMARKS: The Roberts Court and the First Amendment: An

    • Authors: Geoffrey R. Stone
      Abstract: On April 9, 2021, Geoffrey R. Stone delivered the following introductory remarks at The Roberts Court and Free Speech Symposium at Brooklyn Law School. An adaptation of Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century Lead Article (2008), Dean Stone detailed the history of the pre-Roberts Court First Amendment jurisprudence and laid the foundation for the symposium’s scholarly discourse.
      PubDate: Tue, 08 Feb 2022 09:38:54 PST
  • The Anti-Free Speech Movement

    • Authors: Robert Corn-Revere
      Abstract: What does it mean for the Supreme Court, under Chief Justice John Roberts, to be “good” when it comes to the First Amendment' First Amendment lawyer Robert Corn-Revere tackles this question, by looking at the history of censorship in the United States. Through a historical lens, Mr. Corn-Revere examines the arguments for regulating “bad” speech in order to promote “good” speech, and analogizes this approach to the work of early American censors like Anthony Comstock. This article examines how the history of censorship has shaped First Amendment law, and ultimately through his analysis, Mr. Corn-Revere identifies several examples of what constitutes censorship through an intriguing line of hypotheticals entitled “You Might Be a Censor If . . . .”
      PubDate: Tue, 08 Feb 2022 09:38:54 PST
  • The Roberts Court—Its First Amendment Free Expression Jurisprudence:

    • Authors: Ronald K.L. Collins et al.
      Abstract: The decisional law of the First Amendment is an area of law formulated, for the most part, by the high court of the land. At the same time, the study of free speech is equally a study in political philosophy and law. Supreme Court justices have left their mark on the First Amendment free speech doctrine and have made names for themselves in the process. This study explores the impact of Chief Justice John Roberts and the Roberts Court on the free speech doctrine. By examining the case law in this area and the justices and lawyers who craft it, this study paints a picture of the current status of the doctrine and provides insight on its future development.
      PubDate: Tue, 08 Feb 2022 09:38:53 PST
  • FOREWORD: The Free Speech Record of the Roberts Court

    • Authors: William D. Araiza
      Abstract: On April 9, 2021, scholars gathered at Brooklyn Law School to consider the free speech themes highlighted by a catalogue of the Roberts Court’s free speech jurisprudence. The speakers provided incisive and timely insight on these themes—insight that is reflected in the catalogue and accompanying papers published in this symposium issue of the Brooklyn Law Review. This introduction provides an overview of this symposium issue and the questions presented by each article and essay.
      PubDate: Tue, 08 Feb 2022 09:38:52 PST
  • A Call to Replace the APA’s Notice-and-Comment Exemption for
           Guidance Documents

    • Authors: Crystal M. Cummings
      Abstract: Section 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note offers new empirical evidence of the benefits and trade-off of the overlay approach through a case study of a preadoption notice-and-comment mandate for binding guidance documents that Congress enacted for the Federal Transit Administration in 2005. The case study demonstrated that overlays cannot fully address the root problem of agencies circumventing notice-and-comment for binding rules so long as the § 553(b)(A) exemptions remains law. This note calls for Congress to replace the APA exemption with clear direction to agencies on the appropriate circumstances for issuing rules without notice-and-comment and offers four suggestions for such a replacement provision: (1) exempt documents based on their practical impacts, (2) define the characteristics and limits of exempt documents, (3) allow the public to petition an agency to reconsider its designation of a document as exempt, and (4) add teeth to address noncompliance.
      PubDate: Mon, 31 Jan 2022 11:11:55 PST
  • Putting a Finger on Biometric Privacy Laws: How Congress Can Stitch
           Together the Patchwork of Biometric Privacy Laws in the United States

    • Authors: Eliza Simons
      Abstract: The use of biometric identification in the consumer industry has grown immensely over the last decade and is projected to continue growing at an even faster rate. As private entities abandon password-based security systems and opt for the more secure, convenient, and cost-effective method of using biometric data, individuals are worried how that information will be protected. Although the right to privacy has always been valued in the United States, Congress has yet to specifically address biometric privacy. This note sets the legal landscape of privacy law, through the lens of biometric privacy, by surveying four categories of privacy law: (1) Federal privacy laws in general; (2) state privacy laws in general, specifically the California Consumer Privacy Act (CCPA); (3) state biometric-specific privacy laws; and (4) a federal biometric privacy law. The fourth category is what is missing from the current regulatory scheme. This note identifies issues with state biometric privacy laws, including unclear definitions of biometric privacy and Article III standing. Ultimately, this note concludes that a federal biometric privacy law should be modeled after the CCPA, but narrowed to biometric information.
      PubDate: Mon, 31 Jan 2022 11:11:54 PST
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