Faculty | Highlights
The following are selected highlights of recent faculty scholarship.
To learn more, visit www.brooklaw.edu/facultyscholarship →
Julian Arato

Parsing and Managing Inconsistency in Investor-State Dispute Settlement (with Chester W. Brown and Federico Ortino), 21 Journal of World Investment and Trade __ (2020)

WITH REGARD TO inconsistency in legal interpretation in investor-state disputes, a key international trade issue, Arato makes a distinction between the types of norms with which a degree of inconsistency is manageable and tolerable, and those with which inconsistency affects the structural “rules of the game” and is most destructive.
Miriam H. Baer

Law Enforcement’s Lochner, 105 Minnesota Law Review __ (forthcoming 2021)

BAER FORECASTS that the government-friendly “first-party” rules that enable the government to demand information from business entities will increasingly come under attack as a result of the Supreme Court’s Fourth Amendment privacy decisions and its emerging stance on corporate personhood. Although she rejects the claim that the demise of these rules would trigger a collapse in regulatory and corporate law enforcement, she believes their loss could exacerbate current problems in regulatory and white-collar enforcement.

Anita Bernstein

(Almost) No Bad Drugs: Near-Total Products Liability Immunity for Pharmaceuticals Explained, 77 Washington & Lee Law Review 3 (2020)

Although almost every major pharmaceutical manufacturer has shelled out millions in settlements for misconduct related to the marketing of prescription drugs, they enjoy near immunity from liability—in particular products liability—when their products are found to be defective. Bernstein examines the three categories of product defect liability and how seldom judges apply them in pharmaceutical cases.
Heidi K. Brown

Get with the Pronoun, 17 Legal Communication & Rhetoric: JALWD 61 (2020)

Brown proposes that legal writers can enhance and foster clarity, accuracy, inclusion, and respect through purposeful and intentional usage of the singular “they” and other pronouns. She offers examples of how American lawyers and judges have effectively used litigants’ and witnesses’ personal gender pronouns in pleadings, briefs, and judicial decisions.

Elizabeth Fajans

Hendiadys & Legal Interpretation: What Part of “and” Don’t You Understand? (with Mary Falk), 17 Legal Communication & Rhetoric: JALWD 39 (2020)

The rhetorical device known as hendiadys joins two words by “and” to express a single complex idea, such as “sound and fury.” Professor Samuel L. Bray was the first to argue that legal phrases such as “cruel and unusual” and “necessary and proper” may also be interpreted as hendiadys. Fajans and Falk argue that hendiadys is an obscure and mysterious literary device, and that to use it to interpret phrases in the law is wrongheaded.

Heidi Gilchrist

“Act Normal or Leave”: When Law and Culture Collide, 26 Columbia Journal of European Law __ (forthcoming 2020)

Gilchrist examines the idea of legislating “normal” behavior, and what this means in a diverse world. Laws that criminalize dress in Europe, such as burqa bans that can carry jail time, she argues, constitute forced assimilation and simply equate to a “Muslim ban,” which can both be ineffective and create future national security threats. Gilchrist questions whether the European Court of Human Rights, in upholding and justifying these laws, has created a dangerous new right of the majority not to be offended. She also considers what duty to integrate newcomers countries do have.

Andrew Gold

Oxford Handbook of the New Private Law (Coeditor with J.C.P. Goldberg, D.R. Kelly, E. Sherwin, and H.E. Smith, Oxford University Press, forthcoming 2020)

GOLD AND HIS COEDITORS help redefine and reinvigorate the subject of private law by crosscutting perspectives and relations between areas of the law, with special attention to its doctrines and structures, and offering analysis and criticism of existing law.

Edward Janger
Aaron Twerski

The Heavy Hand of Amazon: A Seller Not a Neutral Platform, 14 Brooklyn Journal of Corporate Financial & Commercial Law 259 (2020)

Consumers who buy from reputable sellers are almost always guaranteed that they will have a solvent defendant if injured by a product defect. But Amazon, though responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates third-party sales to consumers. Most courts have sided with Amazon. Janger and Twerski put the lie to Amazon’s claim that it is not a seller by demonstrating how Amazon controls third-party sales and hides its true role from consumers.

Adam Kolber

How to Fix Legal Scholarmush, 95 Indiana Law Journal 1191 (2020)

Legal scholars often fail to distinguish between descriptive claims about what the law is and normative claims about what it ought to be. The distinction couldn’t be more important, yet scholars frequently mix them up, leading those scholars to mistake legal authority for moral authority, treat current law as a justification for itself, and generally use rhetorical strategies more appropriate for legal practice than scholarship. Kolber argues that scholars must be more clear, transparent, and rigorous about which of their claims are descriptive and which are normative in order to develop more objective criteria for evaluating both scholarship and public policy.

K. Sabeel Rahman

Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis (with Jedediah S. Britton-Purdy, David Singh Grewal, and Amy Kapczynski), 129 Yale Law Journal 1784 (2020)

The “Twentieth-Century SYNTHESIS,” the authors write, is a pervasive view of law that insulates “the market” from claims of justice and conceals it from analyses of power. The article offers a framework for identifying and critiquing the Twentieth-Century Synthesis and creates a framework for a new “law-and-political-economy approach” to legal scholarship, placing themes of power, equality, and democracy at its center.

Jocelyn Simonson

Police Reform Through a Power Lens, 130 Yale Law Journal __ (forthcoming 2021)

Scholars and reformers alike have in recent years begun to imagine new and different configurations for how the state can design institutions of policing. Simonson fleshes out a theoretical account of why the power lens is an important and necessary addition to how scholars and reformers view the regulation of policing, opening up discussions of police reform to first order questions about how the state should go about providing safety and security in our time.