Faculty Scholarship

William Araiza
Stanley A. August Professor of Law

One-Offs, 109 Cornell L. Rev. 263, (2024)

Araiza examines the phenomenon of "one-offs": court opinions that are rarely cited by the issuing court, and that that do not explicitly generate further doctrinal development. His analysis of three such cases from the U.S. Supreme Court finds they play a surprisingly legitimate role in legal and doctrinal development.

Jodi Balsam
Professor of Clinical Law and Director of Externship Programs

False Start on NIL: Public and Private Law Should Treat College Athletes Like Any Other Student, 11 Tex. A&M L. Rev. 785 (2024)

Instead of specialized private rules and public law that govern how student athletes monetize their name, image and likeness (NIL), Balsam writes that there should be a principle of nondiscrimination that deals in the same way with all college students who seek to benefit from and monetize their identities and publicity rights.

Alissa Bauer
Assistant Professor of Legal Writing

One Tort, Four IRACs, and Five Lessons About Rule Support Cases, BrooklynWorks, Faculty Scholarship. 1559

This article explores the significance of rule support cases, sometimes called case illustrations, rule explanations, or rule proof, in the IRAC structure. It uses a negligent infliction of emotional distress fact pattern to demonstrate five important lessons regarding how rule support cases help students set up effective and targeted application.

Anita Bernstein
Anita and Stuart Subotnick Professor of Law

Renewing Products Liability with Semen, DePaul Law Review, Vol. 73, No. 2, p. 211, 2024, Brooklyn Law School, Legal Studies Paper No. 768

To renew is to combine old and new. Extending Bernstein’s earlier writings on the formation of new torts that located this combination in tort innovation, this article applies the lens of “renewing” within products liability to one product in particular, semen.

Bradley T. Borden
Professor of Law

Tax-Law Analysis, 18 Brook. J. Corp. Fin. & Com. L. 385 (2024)

Congress recognizes that there are areas of uncertainty in tax law and only imposes penalties if the authority supporting a reporting position is not adequate. To determine the strength of a reporting position, a tax advisor must be able to identify and analyze legal authority that relates to the reporting position and determine whether the weight of authority that supports the desired reporting position is sufficiently strong to outweigh the authority that is contrary to it. Borden explores how tax rules direct practitioners to accomplish this weighing process.

Maryellen Fullerton
Suzanne J. and Norman Miles Professor of Law

Temporary Protection for Ukrainians in the European Union: Why Now and When Again, 57 Vanderbilt Journal of Transnational Law 91 (2024)

The 2022 Russian invasion of Ukraine led to a successful rollout of the first EU-wide temporary protection program since legislation was enacted in 2001. Civil society played a central role in assuring legal status within the European Union for more than four million displaced individuals. Fullerton explores the patterns of civic engagement and social solidarity to strategize fruitful responses to future refugee crises.

Temporary Protection in the United States and the European Union: Same Words, Vastly Different Meanings, 9 University of Pennsylvania Journal of Law and Public Affairs 1 (2024)

“Summary Procedures” (with W-Y. Chen) Comparative Procedural Law and Justice  (eds. B. Hess, M. Woo, L. Cadiet, S. Menétrey, and E. Vallines García) (2024)

Immigration and Nationality Laws of the United States: Selected Statutes, Regulations and Forms Thomson West Publishing Co. (with T.A. Aleinikoff, D. Martin, H. Motomura, J. Stumpf, P. Gulasekaram, and R. Cuison-Villazor) (2024)

Heidi Gilchrist
Professor of Legal Writing and Co-Director of Legal Research and Writing

Ukraine, Moral Outrage, and International Law, 84 Ohio St. L.J. 1465 (2024)

Using the Russian invasion of Ukraine as a focal point, Gilchrist explores the role of emotion, specifically moral outrage, in international law. The paper addresses the question of whether the international community can harness the incredible moral outrage at the unprovoked Russian invasion of Ukraine to hold Russia accountable.

Cynthia Godsoe
Professor of Law

Disrupting Carceral Logic in Family Policing, 121 Michigan Law Review 939 (2023)

Using a review of Professor Dorothy Roberts’ book, Torn Apart: How the Child Welfare System Destroys Black Families and How Abolition Can Build a Safer World, as a springboard, Godsoe explores the carceral logics of the family-policing system and, particularly, the role of lawyers in maintaining and legitimating these logics. 

Criminalizing Community, Policing Space: Conspiracy, Young Thug & the “Stop Cop City” Protestors, Harv. L. Rev. Blog (Aug. 28, 2024)

Kinship Care and Adoption Myopia (Brooklyn Law School, Legal Studies Paper No. 784, December 2024)

A Perfect Storm: Young People, False Confessions & Prosecutorial Involvement (Brooklyn Law School, Legal Studies Paper No. 783, December 2024)

Edward J. Janger
David M. Barse Professor of Law

Equity for Intermediaries: The Resolution of Financial Firms in Bankruptcy and Bank Resolution, Yale Journal on Regulation, Vol. 41, p.965, 2024

In this essay, Janger considers recent bank failures and bankruptcies of crypto intermediary to develop general principles for bankruptcy courts and other resolution institutions to mitigate the harms to customers and the financial system caused by financial misdeeds and regulatory failure.

Functional Tort Principles for Internet Platforms: Duty, Relationship, and Control, 26 Yale J.L. & Tech. 1 (2023)

Enterprise, Liability, and Insolvency: An Essay in Honor of Aaron Twerski, 18 Brook. J. Corp. Fin. & Com. L. 115 (2023)

Impact Ipsa Loquitur: A Reverse Hand Rule for Consumer Finance Susan Block-Lieb, Edward J. Janger, Cardozo Law Review, Vol. 45, No. 4, 2024; Fordham Law Legal Studies Research Paper No. 4802893; Brooklyn Law School, Legal Studies Paper Forthcoming

Yuvraj Joshi
Associate Professor of Law

Racial Time, 90 University of Chicago Law Review 1625 (2023)

Racial time describes how inequality shapes people’s experiences and perceptions of time. This article argues that U.S. law embodies dominant interests in time. By inscribing dominant experiences and expectations of time into law, the Supreme Court enforces unrealistic timelines for racial remedies and “neutral” time standards that disproportionately burden subordinated groups.

Racial Equality Compromises, 111 Cal. L. Rev. 529 (2023)

Joy Kanwar
Professor of Legal Writing

Writing and Analysis in the Law, Foundation Press (April 2024)

This standard-bearing book’s 8th, co-written with Elizabeth Fajans and Helene S. Shapo, provides a guide to legal writing, focusing on thoughtful, thorough analysis and clear organization in written communications. It responds to legal education’s increased attention to professional identity and cultural competence, provides an expanded section on inclusive language, and discusses generative artificial intelligence.

Catherine Y. Kim
Don Forchelli Professor of Law

Citizenship Outside the Courts, 57 U.C. Davis L. Rev. 253 (2023)

To what extent should political actors determine constitutional citizenship? Kim examines three pivotal episodes from U.S. history involving the contestation of citizenship for Black Americans in the early to mid-19th century; the denial of citizenship to Chinese Americans in the 1882 -1943 Exclusion Era; and the stripping of citizenship from American women who married noncitizens pre-1922.

Adam Kolber
Professor of Law

Punishment for the Greater Good, (Oxford University Press, June 2024)

In this new book on criminal punishment, Kolber asks: What, if anything, justifies the suffering and deprivation of liberty associated with incarceration and other forms of punishment? He defends a “consequentialist” approach that focuses on deterring, incapacitating, and rehabilitating offenders over the more common “retributivist” approach that focuses on deserved suffering.

Shirley Lin
Associate Professor of Law

Race, Solidarity, and Commerce: Work Law as Privatized Public Law, 55 Ariz. St. L.J. 813 (2023)

What if work law allowed us to understand racism as central to legal liberal frames, rather than ancillary or topical? Deploying history and political theory, Lin demonstrates how public/private dyads within work law generated unworkable, often divisive conceptions of race and commerce, hindering our pursuit of a thriving, multiracial democracy.

Christina Mulligan
Professor of Law

Diverse Originalism, History, and Tradition, 99 Notre Dame Law Review 1515 (2024)

The Supreme Court's New York State Rifle & Pistol Ass'n v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution's text through the public's understanding of its language. But the court failed to follow a public meaning originalist methodology, leading to two unfortunate outcomes.

Naveen Thomas
Assistant Professor of Law

Mythical Adverse Effect, 73 Emory L.J. 887 (2024)

The material adverse effect definition is among the most intensely negotiated provisions in M&A contracts. Challenging conventional wisdom, Thomas applies legal and economic analysis to explain that, under Delaware law, parties should not customize these definitions and should devote their limited time and leverage to more impactful terms instead.

Stratos Pahis
Associate Professor of Law

Appeals After the Appellate Body, 23 World Trade Rev. 296 (2024) (peer reviewed)
The Appellate Body (AB) of the World Trade Organization (WTO) has not heard an appeal since 2019. This article explores how adjudicators and member states have navigated WTO dispute settlement in this post-AB world.

Rethinking International Investment Law: Form, Function & Reform 63 Va. J. Int'l L. 447 (2023)

Anna Roberts
Professor of Law

Models and Limits of Federal Rule of Evidence 609 Reform, 76 Vand. L. Rev.1879 (2023)

Federal Rule of Evidence 609, which permits the use of certain convictions to attack the “character for truthfulness” of witnesses, is widely criticized. Roberts presents three responses, including a model for how one might rewrite the rule, a set of proposals for judges and prosecutors, and an exploration of abolitionist concerns.

Maria Termini
Professor of Legal Writing and Co-Director of Legal Research and Writing

Negative Language in Legal Writing, Legal Communication & Rhetoric: JALWD 20 (2023)

Conventional wisdom holds that legal writers should be positive; however, recent legal writing scholarship has explored the benefits of negativity that stem from “negativity bias.” Termini distinguishes between two types of negative language used in legal writing: negation and negative valence, and proposes six principles to guide legal writers in choosing between positive and negative language.