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

Criminalizing Match-Fixing as America Legalizes Sports Gambling, 31 Marquette Sports Law Review 1 (2020)

Since 2018, when the Supreme Court struck down the law that prohibited states from allowing sports betting, almost every state and Washington, D.C., has enacted, passed, or proposed legal sports betting legislation. These laws prescribe very little in the way of criminal penalties in the event of betting-related manipulation of the underlying athletic competitions. Balsam explores the moral and legal dimensions of honest athletic competition and the importance of defining game manipulation as a crime, and recommends a federal penal provision that makes competition manipulation a separate criminal offense.
Anita Bernstein

There’s Feminism in These Judgments, 61 Boston College Law Review Electronic Supplement I.-112 (2020)

Bernstein identifies common ground between her book The Common Law Inside the Female Body (Cambridge Univ. Press, 2018) and Feminist Judgments, a movement that looks to rewrite published judicial decisions to steer their results or their rationales in a feminist direction. This article was featured in one of two symposium issues dedicated to Bernstein’s book since its publication, following one published by Northwestern University Law Review in 2019.
Dana Brakman Reiser

Buyer Beware: Variation and Opacity in ESG and ESG Index Funds (with Anne Tucker), 41 Cardozo Law Review 1921 (2020)

Industry leaders, critics, and commentators all herald a shift in investing and corporate governance to more broadly consider environmental, social, and governance (ESG) factors. Brakman Reiser and Tucker examine a sample of ESG and traditional funds from 2018–2019, documenting great variation in their investment strategies. They investigate the supply- and demand-side drivers fueling ESG market growth, and explore mechanisms to better match investors to high ESG-committed funds.
Wilfred Codrington III

So Goes the Nation: The Constitution, the Compact, and What the American West Can Tell Us About How We’ll Choose the President in 2020 and Beyond, 120 Columbia Law Review Forum 43 (2020)

Because the U.S. Constitution is extremely difficult to amend, many have rallied around the National Popular Vote Interstate Compact, a plan that seeks to elect the presidential candidate receiving the most votes nationwide by leveraging states’ power over the Electoral College. Codrington discusses three potential challenges facing the compact: two recent court decisions on the Electoral College, a mounting campaign to have states withdraw their support for the plan, and arguments by conservative commentators that the plan is unconstitutional.
Robin Effron

The Invisible Circumstances of Notice, 99 North Carolina Law Review __ (forthcoming 2021)

The due process right of notice is understudied compared with other fundamental rights. This analytical deficit would be less troubling if the modern American execution of notice and its mechanics were mostly unproblematic, but for a number of participants, notice does not function particularly well. Effron suggests that lawmakers should not wait for the circumstances of notice to change—key changes can be forged by the state and the judiciary itself.
Edward Janger

Value Tracing and Priority in Cross-Border Group Bankruptcies: Solving the Nortel Problem from the Bottom Up (with Stephan Madaus), 27 University of Miami International & Comparative Law Review 334 (2020)

Janger and Madaus argue that in bankruptcy cases involving the insolvency of corporate groups, creditors asserting claims of priority based on territoriality, security, asset silos, or corporate form should have the burden of establishing the realizable value of those claims. This approach establishes an entitlement floor for, and fixes the value of, veto rights in group restructurings.
Jayne Ressler

Anonymous Plaintiffs and Sexual Misconduct, 50 Seton Hall Law Review 955 (2020)

Joining with other scholars in responding to the #MeToo movement, Ressler focuses on the lack of access recipients of sexual misconduct have to protection from retaliation. She proposes that under certain circumstances, they should be permitted to bring anonymous formal civil actions against the perpetrators.
Jocelyn Simonson

Movement Law (with Amna Akbar & Sameer Ashar), 73 Stanford Law Review __ (forthcoming 2021)

Simonson and her co-authors make the case for “movement law,” an approach to legal scholarship grounded in engagement with grassroots organizing and leftist social movements. In this moment of crisis, they argue, scholars across disciplines should co-generate ideas alongside these groups that aim to transform the political, economic, and social landscape.
Lawrence M. Solan

Revisiting a Classic Problem in Statutory Interpretation: Is a Minister a Laborer? (with Tammy Gales), 36 Georgia State University Law Review 491 (2020)

Solan and Gales consider the use of corpus linguistic methods as a tool for statutory interpretation. Their study examines contemporaneous historical linguistic usage to evaluate the U.S. Supreme Court’s claims of ordinary meaning in Holy Trinity Church v. United States (1892).
Aaron Twerski

An Essay on the Quieting of Products Liability Law, 105 Cornell Law Review 101 (2020)

For several decades, courts and commentators have disagreed on the standard for liability in product design defect cases, with a strong majority opting for risk-utility and a significant minority preferring consumer expectations. Twerski contends that in jurisdictions that allow for recovery in these cases on a consumer expectations theory, plaintiffs should introduce a reasonable alternative design as the predicate for recovery.