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 Journal of Corporate, Financial & Commercial Law
Number of Followers: 2  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1934-2497
Published by Brooklyn Law School Homepage  [4 journals]
  • Revising U.S. Privacy Laws: New Laws are Required to Fill in the Gaps of
           Current and Proposed Legislation to Account for New Technologies and
           Future Emergencies

    • Authors: Marissa Wong
      Abstract: With the ongoing expansion of internet services and increase in cyberattacks, Congress has long recognized the need for comprehensive federal privacy legislation, but no federal legislation has been passed. Currently, the scatter-shot of sector and state-specific privacy laws have proven to be ineffective. The authority of the Federal Trade Commission (FTC) has also been weak. The unexpected occurrence of the COVID-19 pandemic further exposed the dire need for comprehensive federal privacy legislation. Data-collection methods such as facial recognition, immunity passports, and contact tracing leave users’ health and location data vulnerable in the hands of the government and private companies. Technologies such as Zoom have also revealed privacy concerns. Amongst the many state-based privacy laws, the California Consumer Privacy Act (CCPA) is the most comprehensive state law to date. It governs every company that does business with a California company, has California resident customers, or collects any personal data of a California resident. However, this Note will suggest that the CCPA and other state and sector-based regulations still leave loopholes. While there are comprehensive federal privacy bills being proposed, none have been passed due to the inability of the political parties to agree on the issues of preemption and private right of action. This Note will suggest a new approach to federal privacy regulation – a revised private right of action component, a sunset provision for preemption, and a minimization of disparate impact and increased scope of governance in COVID-19-responsive legislation.
      PubDate: Wed, 23 Mar 2022 08:27:38 PDT
       
  • America’s $1.7 Trillion Student Loan Debt Problem: A Story of the
           American Dream, Good Intentions, and Easy Money

    • Authors: Crystal Liu
      Abstract: This Note addresses the student loan debt problem in the United States, the serious risks it poses, and why a multi-level solution is required to tackle this growing problem. With the increasing cost of college tuition and correspondingly greater amounts of student loan debt but slower income growth, the mismatch between loan and repayment capability keeps widening. A multi-level approach is required to tackle the $1.7 trillion (and increasing) student loan debt problem. First, tuition must be reduced because even if all student loan debt were to be wiped out today, the unaffordability of tuition would continue to increase, and the student debt would amass again. Second, current student loan borrowers need assistance with repayment, especially given the current pandemic-induced economic environment. Third, student loans need to be dischargeable in bankruptcy proceedings as a last-resort safety net. Inspiration can be taken from the real estate industry in handling each of these levels.
      PubDate: Wed, 23 Mar 2022 08:27:37 PDT
       
  • Retail Investors: Why Online Investing Platforms Need More Regulation and
           Oversight

    • Authors: Christal McCamy
      Abstract: Retail trading, in the age of the COVID-19 pandemic, has reached impressive and consequential levels, mostly due to the rise in popularity of online investing platforms. These platforms greatly increase the accessibility of the stock market and the ability to create wealth for young investors. However, this recent surge in activity has dramatically affected the stock market in various ways and led to many negative outcomes for retail investors themselves. This Note uses several examples, surrounding the use of the platform Robinhood, to argue for action by the SEC and FINRA to implement additional protections for retail investors who utilize such platforms. Specifically, this Note calls for FINRA to modify its existing rules regarding account opening and approval and to provide a more detailed account approval process. This Note also argues for required education for retail investors looking to access certain complex and high-risk trading products.
      PubDate: Wed, 23 Mar 2022 08:27:37 PDT
       
  • Let the Bots Be Bots: Why the CFAA Must Be Clarified to Prevent the
           Selective Banning of Data Collection Facilitating Private Social Media
           Information Monopolization

    • Authors: W. Connor McRory
      Abstract: In September 2019, the United States Court of Appeals for the Ninth Circuit granted plaintiff-startup hiQ Labs a preliminary injunction allowing it to “bot scrape” off of defendant-social networking service LinkedIn’s public profiles without triggering liability under Section 1030(a)(2)(C) of the Computer Fraud & Abuse Act (CFAA) for accessing a website “without authorization.” Differing judicial interpretations demonstrate the lack of clarity as to the legality of third-party bot scraping against the website owner’s consent, which causes irreparable harm to businesses that rely on such practices to operate, and antitrust issues when website owners like LinkedIn and Facebook can selectively ban third-parties from collecting data on their public websites for their own private gain, while facing no comparable competition. Further, while hiQ Labs received a favorable result in the Ninth Circuit, that decision has since been vacated by the Supreme Court, and hiQ Labs ceased business operations in 2018. Hence, the tumultuous litigation’s fatal business impact on hiQ Labs creates a blueprint for how other social media sites can hamstring smaller private companies’ bot scraping on their sites through lengthy litigation. Thus, this Note proposes that Congress clarify the CFAA by (1) allowing any public social media profile data viewable without a log-in to be free of CFAA liability; and (2) for public profile data that can only be viewed after passing through a log-in threshold, triggering CFAA liability only if the data being collected isn’t accessible after merely creating an account. Therefore, information that can be accessed by anyone with internet access, whether fully public or viewable after easily creating an account on the site, should be deemed public information that private social media companies have no authority to prevent collection of under the CFAA.
      PubDate: Wed, 23 Mar 2022 08:27:37 PDT
       
  • The Means to Ending ENDS: Electronic Nicotine Delivery Systems and
           America’s Youth

    • Authors: Megan C. Feeney
      Abstract: Electronic Nicotine Delivery Systems (ENDS) have risen in prominence amongst smokers and non-smokers as a way to inhale nicotine since their introduction to the United States in 2006. Often sold in a variety of mouth-watering flavors, ENDS are extremely enticing to both adolescents and adults. Though they are marketed as a safer alternative to combustible cigarettes, these devices have created a growing public health epidemic of nicotine addiction among adolescent users. Ultimately acknowledging the issue in 2020, the Food & Drug Administration (FDA) released guidelines to the nicotine industry and banned the sale of certain flavored ENDS. However, this flavor ban is not as extensive as other state and local laws, as it leaves open loopholes for the industry. Therefore, this paper proposes that the FDA, in its official rulemaking capacity, creates a regulation that prohibits the sale of all flavored ENDS (including menthol flavors) in all forms (including disposable and tank-systems).
      PubDate: Wed, 23 Mar 2022 08:27:36 PDT
       
  • When Your Apps Threaten National Security – A Review of the TikTok and
           WeChat Bans and Government Actions Under IEEPA and FIRRMA

    • Authors: Ru Hochen
      Abstract: Personal data can evolve into a national security issue. In August 2020, fears of foreign adversaries’ access to Americans’ personal data prompted President Trump to issue two executive orders that attempted to ban Chinese-owned social media applications TikTok and WeChat in the United States. In the last few years, the U.S. executive branch has acted against foreign entities that implicate national security interests via two primary tools: the presidential power under the International Economic Emergency Powers Act (IEEPA) and a foreign investment screening regime under the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). However, the statutes were enacted before Congress could have envisioned the impact of personal information on national security. IEEPA’s statutory limitations especially make it an ill-fitting tool to regulate software data ownership and acquisitions. This Note will review recent uses of IEEPA and FIRRMA, analyze the legal problems and economic implications of the TikTok-WeChat ban, and propose that FIRRMA serves as a better solution to address data privacy risks posed by software and that further statutory reforms are necessary to better protect the nation’s and people’s interests.
      PubDate: Wed, 23 Mar 2022 08:27:36 PDT
       
  • Looking Forward: Professor Roberta Karmel’s Prescient Views on the
           Transformation of Self-Regulatory Organizations and of the Securities
           Market Structure at the Turn of the Last Century

    • Authors: James A. Fanto
      Abstract: This essay examines Professor Roberta Karmel’s scholarship on the transformation of self-regulatory organizations (SROs) and the securities market structure, a transformation that occurred at the turn of the last century. It explains how she examined the events from the perspective of a lawyer who had a rich knowledge of the history of the SROs, the securities markets, and their regulation and how she provided a practical understanding of the way these markets worked. It points out that, rather than offering an overarching theory that would explain all of these developments and that would guide regulators and legislators in SRO and securities market structure reforms, she pointed out problems and contradictions in the developments that, in her view, would have to be faced and addressed by both Congress and the SEC. The essay first sets out briefly the background to and a timeline for the SRO and securities market transformation and describes how that transformation closely intersects with Roberta’s career as a legal practitioner, a regulator, and a legal academic. It then looks at her scholarly discussion on how the self-regulatory functions of the stock exchanges became the Financial Industry Regulatory Authority (FINRA), where she raised the important question whether self-regulation by broker-dealers continued to exist post-FINRA. The essay explores a possible answer to this question, which Roberta has acknowledged, in a new form of self-regulation—the collaboration between FINRA and those officers in broker-dealers who are responsible for ensuring that they and their employees follow law and regulation, the compliance officers. It next looks at Roberta’s insights on the related subject of the transformation of the stock exchanges and its overall effects upon securities market structure, explaining how she identified for the legal academic audience the forces, including the regulatory ones, that were pushing the exchanges to become public companies and the market fragmentation that resulted from the proliferation of trading venues. It then explains that Roberta took a “wait and see” approach to problems in securities market structure, recommending that securities markets be allowed to develop with their new forms and technology before Congress and the SEC apply to them a major new regulatory framework and that the SEC regulate with a light hand, correcting market problems where necessary, while the outline of a new market structure emerged. The essay concludes by briefly looking at the current securities market from Roberta’s perspective.
      PubDate: Wed, 23 Mar 2022 08:27:35 PDT
       
  • Full of Questions and Wonder: Roberta Karmel's Legacy

    • Authors: Alan R. Palmiter
      Abstract: Roberta Karmel has been perhaps the keenest observer and commentator on the securities industry and its regulation for the past five decades. Her observations about securities regulation—during the SEC’s precocious adolescence and into its young adulthood—have framed the academic inquiry of all of us who have written on the subject during this period. But more valuable to us than her observations have been her questions, full of wonder and penetrating insight. We securities academics, the enterprise of securities regulation, and especially market capitalism, all owe an enormous debt of gratitude to Professor Karmel.
      PubDate: Wed, 23 Mar 2022 08:27:35 PDT
       
  • Mutual Fund Stewardship and the Empty Voting Problem

    • Authors: Jill E. Fisch
      Abstract: When Roberta Karmel wrote the articles that are the subject of this symposium, she was skeptical of the potential value of shareholder voting and the emerging involvement of institutional investors in corporate governance. In the ensuring years, both the increased role and engagement of institutional investors and the heightened importance of shareholder voting offer new reasons to take Professor Karmel’s concerns seriously. Institutional investors have taken on a broader range of issues from diversity and political spending to climate change and human capital management, and their ability to influence corporate policy on these issues has become more significant. The broadened scope of institutional influence raises new questions about the legitimacy of institutional investor engagement. Specifically, mutual funds and other institutional investors are not principals but agents. The exercise of institutional voting power is by fund managers or governance teams, people who have “little or no economic interest in the shares that they vote.” This “empty voting” has the potential to undermine the legitimacy of the shareholder franchise. It is of particular concern when the assets committed to a broad-based index fund are voted to support initiatives that have the potential to sacrifice economic value in favor of social or societal objectives that the shareholders invested in that fund may not support. Because of the risk that empty voting will not reflect the preferences of the true economic owners, this Article argues for change. The Article identifies potential market-based solutions to increase the alignment between institutional engagement and the preferences of fund investors including greater and more transparent fund segmentation, pass-through voting, or an explicit mechanism for fund investors to communicate their preferences to asset managers. At the same time, because asset managers have private incentives to retain their current power, the Article also considers potential regulatory reforms.
      PubDate: Wed, 23 Mar 2022 08:27:34 PDT
       
  • Federalized Corporate Governance: The Dream of William O. Douglas as
           Sarbanes-Oxley Turns 20

    • Authors: Joan MacLeod Heminway
      Abstract: The federalization of U.S. corporate governance has been a topic of conversation among policymakers from the very beginning of federal securities law in the New Deal era. Among the early proponents of a federalized system of corporate governance oversight was William O. Douglas—perhaps best known as the longest-serving U.S. Supreme Court justice, but who also was a former commissioner and chair of the U.S. Securities and Exchange Commission. Reflecting on Douglas’s federal corporate governance ideas, Professor Roberta Karmel wrote a law review article for the Delaware Journal of Corporate Law, published in 2005, commenting on the extent and nature of federalized corporate governance in the wake of the enactment of the Sarbanes-Oxley Act of 2002. This essay effectively picks up where Professor Karmel’s article leaves off, highlighting a number of key legal happenings since the adoption of Sarbanes-Oxley that extend and supplement the work accomplished by that landmark federal securities legislation in forwarding federalized corporate governance. The essay also offers related observations about the future of federalized corporation governance. In the main, however, the essay is a tribute to Professor Karmel—a personal and professional heroine in my life who, as it turns out, was researching and writing about the federalization of corporate governance at the same time I was, but from a different angle. The structure of the essay parallels key aspects of Professor Karmel’s 2005 article.
      PubDate: Wed, 23 Mar 2022 08:27:34 PDT
       
  • Karmel’s Dissent: The SEC’s Use and Occasional Misuse of Section 21(a)
           Reports of Investigation

    • Authors: James J. Park
      Abstract: Section 21(a) of the Securities Exchange Act gives the SEC the option of publishing a report of its findings after conducting an investigation. Typically, the SEC issues such reports about once a year to highlight major compliance and enforcement issues. This Article examines the SEC’s use of Section 21(a) investigative reports with special attention to its 1979 report in Spartek, where Commissioner Roberta Karmel filed a famous dissent. In that opinion, she argued that the report effectively sanctioned conduct over which the SEC did not have jurisdiction and that Spartek did not have sufficient notice of its regulatory obligations. While such concerns have not been at issue in most Section 21(a) reports of investigation, they were recently raised by the SEC’s report in DAO, which analyzed whether a digital token was a security under the Howey test. While the SEC’s conclusion was reasonable, it was a close call, and the report did little to clarify the scope of the SEC’s jurisdiction over tokens. The SEC should be cautious in using reports of investigation to define its own jurisdiction and should actively seek adjudication to confirm the scope of its authority.
      PubDate: Wed, 23 Mar 2022 08:27:33 PDT
       
  • “The EU Challenge to the SEC”: A View from 2021

    • Authors: Howell E. Jackson
      Abstract: This essay offers a retrospective appreciation of Professor Roberta Karmel’s scholarship exploring the influence of securities regulation in the United States on developments in European capital markets regulation in the late 1990’s and early 2000’s. Professor Karmel’s writings document a fascinating evolution in this trans-Atlantic relationship as the Securities and Exchange Commission transitioned from the world’s dominant capital market regulator throughout most of the post-World War II era into a more collaborative posture by the end of the first decade of the Millennium. The essay concludes by suggesting that the trends that Professor Karmel chronicled in her scholarship have persisted in recent years with U.S. regulatory authorities increasing finding themselves responding to regulatory initiatives in Europe rather than the other way around.
      PubDate: Wed, 23 Mar 2022 08:27:33 PDT
       
  • The Coming Shift in Shareholder Activism: From “Firm-Specific” to
           “Systematic Risk” Proxy Campaigns (and How to Enable Them)

    • Authors: John C. Coffee; Jr.
      Abstract: This article distinguishes two types of shareholder activism: (1) firm-specific activism, which has a long history and focuses on changes at a specific target company, and (2) systematic risk activism, which seeks to reduce the systematic risk in a portfolio and thereby benefit diversified investors. Typically, such a systematic risk campaign may force a portfolio company to internalize negative externalities to benefit the other companies in the portfolio (such as by reducing carbon emissions or undertaking climate risk reforms). But, systematic risk activism faces an inherent difficulty: the party that leads this campaign and invests in the target company may incur a significant loss when the target company’s stock price falls. This will be particularly difficult for activist hedge funds to accept, because they have small portfolios and cannot recoup their losses on the target firm by gains at the other portfolio companies. Properly understood, the recent campaign by Engine No. 1 with respect to ExxonMobil exemplifies these problems and suggests that activist hedge funds make ill-suited leaders for this form of activism. If so, there may be a strong demand for systematic risk activism among diversified investors, but potential campaigns could remain headless, as diversified investors will themselves be reluctant to lead such a campaign. This article surveys possible answers to this problem (some of which are suggested by the Engine No. 1 campaign). Nonetheless, this problem surrounding the incentives of hedge funds is aggravated by the traditionally independent stance of diversified investors, who are reluctant to join groups or expend funds, and by the inability of potential campaign leaders to charge adequately for their services. This article suggests several means of which to enable such campaigns.
      PubDate: Wed, 23 Mar 2022 08:27:33 PDT
       
  • Symposium Introduction: A Tribute to Roberta Karmel

    • Authors: James A. Fanto
      Abstract: The Introduction provides the background to the symposium in honor of Professor Roberta Karmel
      PubDate: Wed, 23 Mar 2022 08:27:32 PDT
       
  • Roberta Karmel and the "Brooklyn School"

    • Authors: Edward J. Janger
      Abstract: In this contribution, Professor Janger describes Roberta Karmel’s extraordinary contributions to the intellectual, scholarly, and institutional life of Brooklyn Law School.
      PubDate: Wed, 23 Mar 2022 08:27:32 PDT
       
  • LET'S STOP PLAYING GAMES: WHY BETTER CONGRESSIONAL INTERACTION IS
           REQUIRED TO PROTECT YOUNG GAMERS

    • Authors: Dominick Tarantino
      Abstract: This Note addresses the predatory nature of video game microtransactions, the serious risks they pose, and why an improved plan of legislative intervention is necessary to protect young, vulnerable video game consumers. With loot box microtransactions driving a flourishing industry that has reached unprecedented levels of success, adequate consumer protection cannot properly be achieved through self-regulation. Senator Josh Hawley’s Protecting Children from Abusive Games Act is a step in the right direction, but its broad language will result in unintended consequences that can cripple the entire industry. Revising the bill’s language will protect the intended young consumer and allow for other forms of microtransactions that do not harm consumers.
      PubDate: Tue, 01 Feb 2022 10:37:43 PST
       
  • REDUCING CONFLICTS OF INTEREST: A "GLASS-STEAGALL" SPLIT OF ADVISORY AND
           CONSULTING SERVICES OF PROXY ADVISORY FIRMS

    • Authors: Austin Manna
      Abstract: This Note explores a solution to the potential problem with proxy advisory firms that involves an inherent conflict of interest arising from the structure of two services—advisory and consulting services—offered at certain proxy advisory firms in the United States. The solution proposed in this paper applies a Glass-Steagall framework to breakup these two services of the proxy advisory firms. In theory, this would eliminate the inherent conflicts of interest.
      PubDate: Tue, 01 Feb 2022 10:37:42 PST
       
  • THE COMMODIFICATION OF PERSONAL DATA AND THE ROAD TO CONSUMER AUTONOMY
           THROUGH THE CCPA

    • Authors: Blaire Rose
      Abstract: The internet has transformed into a museum of personal information collected through the digital footprint we leave behind after each act performed on the web. Businesses have monetized this collection of personal data in various ways. For instance, many companies analyze this information through predicting analytics and data profiling to identify consumer interests that they can exploit as a means to generate revenue. Though user data promotes many benefits for businesses and consumers alike, the recent data breaches of massive companies, coupled with hazy privacy disclosures that beget consent disputes, have left both users and businesses perturbed and exposed to various risks. The California Consumer Privacy Act (CCPA) attempts to regulate businesses’ use of Californian consumer data and purports to be a promising solution to concerns regarding data privacy. However, its poor drafting and unintelligible requirements pose serious challenges such that the Act ultimately fails to provide consumers with primary control over their personal information that’s collected online. This Note examines the “anti-discrimination” provision enumerated in section 1798.125 of the CCPA and addresses the ineffectual restraints placed on businesses that transact in personal data. To encourage transparency and enable informed consumer decision-making, this Note recommends that California should: 1) void the reasonable-relationship exception in section 1798.125(a)(2) since it undermines the provision, and the valuation of personal data across different industries is inconsistent and unmanageable; and 2) supplement the “financial incentives exception” in section 1798.125(b)(1) with additional restrictions on permissible practices that prioritize disclosure and foster consumer autonomy.
      PubDate: Tue, 01 Feb 2022 10:37:42 PST
       
  • NOT SO FAIR USE: THE SHORTCOMINGS OF CURRENT COPYRIGHT LAW IN MUSIC
           SAMPLING

    • Authors: Marissa Brown
      Abstract: The current enforcement method of the fair use doctrine is not suitable to handle the ever-evolving music industry. The fair use doctrine allows a copyright protected work to be used without getting it approved by the original owner of the work. This is seen often in music sampling. Music sampling is extremely prevalent in today’s music industry; however, federal court is currently the only arena that sampling disputes can be resolved in. This has led to inconsistencies across circuits, unfairness, and exacerbated the backlog of the federal court docket. While many have pointed out both the inefficiency and unfairness of the current enforcement method of the fair use doctrine, the legislature has refused to make any changes to The Copyright Act since 1976. This Note considers how the fair use doctrine can keep up with the increase in music sampling, without having to amend the Copyright Act. Instead of federal court being the only arena for copyright disputes, an independent agency, modeled after current federal agencies, should conduct fair and impartial investigations into copyright infringement.
      PubDate: Tue, 01 Feb 2022 10:37:41 PST
       
  • LOOKING FOR A SILVER LINING: HOW THE COVID-19 PANDEMIC FORCED NEW YORK TO
           RECKON WITH ITS AFFORDABLE HOUSING CRISIS

    • Authors: Daniel Finnegan
      Abstract: Since the Great Depression, the United States government has failed to find an adequate remedy to a nationwide housing shortage amongst low- and moderate-income individuals and families. The COVID-19 public health crisis has exacerbated this ongoing, nation-wide housing crisis, and has highlighted the racial inequities present in our housing market. Furthermore, it has pushed New York State’s residential housing market into a uniquely precarious position. Dramatic legislation is required at the state level to address the housing crisis caused by the massive growth in income-insecure and housing-insecure individuals that resulted from the pandemic, as well as the widespread departure of high-earning individuals out of the city. Despite the recent federal and state-wide moratoriums on evictions, further action is needed at the state level to address pernicious, exclusionary practices creating these housing shortages. By following the leads of other jurisdictions attempting to remedy their own housing crises, New York State should preempt local government restrictions on new developments, and further incentivize property owners to convert their housing into affordable units. Given the number of vacant market-rate units in New York City as well as the ongoing suburban housing boom, the real estate market is particularly ripe for New York State to remedy longstanding inequities and injustices.
      PubDate: Tue, 01 Feb 2022 10:37:41 PST
       
 
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