Law Commons^™

Ending The Economic War Among States, Nathan Altstadt

Cleveland State Law Review

The United States is under siege; however, the cause is not a foreign adversary. Rather, infighting among states to attract and retain big businesses is jeopardizing the Nation’s economic prosperity.

States compete for businesses, using tax incentives, hoping to capitalize on the benefits these businesses represent. Benefits include improved job growth numbers, a future increase in tax revenue, or, simply, elevated political clout. While competition can lead to a more efficient use of resources, unregulated competition between states for businesses does not illustrate this theory. A national auction for a business, where states are blind to rival offers, may, and …

Grab The Fire Extinguisher Comparing Uk Schemes Of Arrangement To U.S. Corporate Bankruptcy After Jevic, David S. Stevenson

Cleveland State Law Review

Corporations overwhelmed with debt frequently turn to the courts for help to restructure their credit obligations, but some courts are more helpful than others. This is especially true when creditors cannot agree on a particular resolution, let alone when some creditors will not be paid at all. International corporations often have a choice of forum—and substantive insolvency law—based on their legal and physical presence in dozens or even hundreds of countries. The UK and U.S. offer different avenues for using insolvency law to restructure debts without total liquidation, and the American avenue has become more difficult to navigate thanks to …

Against Notice And Choice: The Manifest Failure Of The Proceduralist Paradigm To Protect Privacy Online (Or Anywhere Else), John A. Rothchild

Cleveland State Law Review

Notice and choice are the foundational principles underlying the regulation of privacy in online transactions and in most other situations in which individuals interact with the government and commercial interests. These principles mean that before collecting personally identifiable information (PII) from an individual, the collector must provide the individual with a disclosure (notice) of what PII it proposes to collect and how it proposes to use that information. That knowledge enables the individual to make a rational decision (choice) about whether to allow that collection of information, generally by declining to enter into the transaction or, in some situations, by …

A Quest For Consistency: The Meaning Of 'Direct' In The Foreign Trade Antitrust Improvements Act, Richard Lobas

Global Business Law Review

This note argues that the United States courts need to apply a more consistent interpretation of the meaning of "direct" within the context of the Foreign Trade Antitrust Improvements Act (FTAIA). The FTAIA serves to apply U.S. antitrust law, specifically the Sherman Act, to trade or commerce with foreign nations. One scenario in which this law may be applied is when trade or commerce with a foreign nation has a "direct, substantial, and reasonably foreseeable" effect on domestic commerce. However, courts purport to apply different standards to determine whether an effect is direct, leading to confusion and inconsistency. Contributing to …

Dikai Emporikai: A Response To Alberto Maffi, Mark J. Sundahl

Law Faculty Articles and Essays

No abstract provided.

Battle For The Bulge: The Reclaiming Seller Vs. The Floating Lien Creditor, William Tabac

Law Faculty Articles and Essays

Part I of this article will discuss "title" holders under the Uniform Commercial Code and the powers and rights that they have to defeat reclaiming sellers. Part II will describe the Code "lessees" and "secured creditors" as well as the powers and rights that they have to defeat reclaiming sellers. Part III will explain how a misreading of the Code has subordinated the reclaiming seller of goods to the Article 9 floating lien creditor. Finally, Part IV will argue that, as the Code drafters intended, the reclaiming seller of goods should prevail over the floating lien creditor.

Filing Nationwide Perfectly Or Get With The Trend , Michael I. Spak

Cleveland State Law Review

In the shadow of the looming year 2000, the Uniform Commercial Code ("U.C.C.") and its filing system, with its independent and varied offices all over the United States, was a system which had not taken advantage of the modern technology available, and thus had failed to keep pace with the rest of society's institutions. It was the author's view that all of the then-present filing systems should have been brought into the 21st century by merging them into a single, unified, central, national U.C.C. filing system. The article begins by discussing different types of filing systems, then focuses on the …

Diminishing Returns: Doing Without A Separate Provision For Implied Warranty Disclaimers Through Dealing, Performance, And Usage, Aremona G. Bennett

Cleveland State Law Review

This article calls for the rethinking of subsection 2-316(3)(c), the course of dealing, course of performance, and trade usage disclaimer provision. The statutory formation of Article 2 requires elsewhere that, if applicable, any or all of these three factors must be considered when interpreting an agreement. Enactment of this second, separate provision should have directed courts to a more equable construction of implied warranty disclaimers of dealing, performance, and usage. This provision should have guided practitioners to a more reliable understanding of the requirements of such disclaimers. Not only did this provision do neither, but it also blurred the distinction …

The Unbearable Lightness Of Title Under The Uniform Commercial Code, William Tabac

Law Faculty Articles and Essays

This Article will offer the heresy that the transactions in goods that the Code regulates are still firmly grounded on ownership principles and that these principles must be reckoned with to fulfill the Code's design. It is therefore important first to identify the various property interests in goods that one can obtain under the Code and determine how the Code ties these interests to title.

Countermanded Checks And Fair Dealing Under The Uniform Commercial Code, William Tabac

Law Faculty Articles and Essays

This article evaluates the potential effect of this tort on the bank andits customer where the improper payment is an indisputable binding stop payment order. Part I examines a bank's duty to properly pay checks.Part II describes the bank's reimbursement rights. Part III examines the breach of covenant of good faith tort. Part IV analyzes liability under the Code. Part V argues that banks must promptly recredit customers' accounts when banks improperly pay over binding stop payment orders. The article concludes that upon being notified that it has overlooked a binding stop payment order, a bank must promptly recredit the …

Comparative Commercial Law Of Egypt And The Arabian Gulf, Ian Edge

Cleveland State Law Review

Middle East countries have approached the problem of reforming civil and commercial laws by adopting laws which purportedly suit the needs of a modern, industrial society. This note will examine the countries of the Arabian peninsula, particularly Kuwait, Bahrain, Qatar, the United Arab Emirates, and Saudi Arabia, while making passing references to Jordan, Syria, Iraq, and Egypt. The thesis of the paper is that Egypt exercised and still continues to exercise a predominant position, practically, legislatively, and jurisprudentially in the Middle East, and particularly the Arabian peninsula. Consequently, the development and reform of civil and commercial law in the Middle …

Auction Problems: Going, Going, Gone, Leonard D. Duboff

Cleveland State Law Review

Works of art may be bought, sold, and transferred by every traditional method of conveyancing, though the type which appears to be most notorious is auctioning. In this Article the auction process will be analyzed, many of the problems currently prevalent in the auction arena identified, and suggestions tendered which, if adopted, should reduce some of the difficulties discussed.

Two Decades Of 2-207: Review, Reflection And Revision, Paul Barron, Thomas W. Dunfee

Cleveland State Law Review

This article is divided into six parts: (1) a description of the modern commercial context within which UCC section 2-207 was created and is now applied; (2) a summary of the pre-Code rule; (3) an overview of the rule engendered by section 2-207; (4) an analysis of the interpretative history of section 2-207; (5) a proposed decision model for the application of section 2-207; and (6) the suggested statutory revision.

Section 2-318 Of The Ucc: The Sleeping Giant, William Michael Karnes

Cleveland State Law Review

The acceptance, application, and development of Section 2-318 of the Uniform Commercial Codemhas caused more trouble and confusion than the appearance of Darwin's theory of evolution in Tennessee. Overlooking the obvious possible solution of amending Section 2-318, most states have retained a written but unexercised statute and thereby compelled courts to stretch, bend and squeeze breach of warranty into the realm of strict liability in tort.

Merchandising Through Use Of Lotteries, Robert V. Bullock

Cleveland State Law Review

It has been almost universally held that there must be three elements present for a promotion to constitute a lottery. These elements are consideration, chance, and prize. The absence of any one of these elements is fatal to identifying the transaction as a lottery.Promoters are continually modifying and shading each of these three elements, however, so that the courts and government officials must constantly reappraise their positions to protect both the public and legitimate business.

Liability Of Carrier For Loss Or Damage To International Shipments, Thomas R. Skulina

Cleveland State Law Review

Though shipments by truck or rail are usually interstate or intrastate, many such shipments traverse the Mexican and Canadian borders or involve delivery from or to an ocean vessel for international transshipment. The federal laws which set out the liability of a carrier for interstate shipments are known as the Carmack Amendment and the Cummins Acts. This article will deal with the regulation of the so-called "International Shipment." A myriad of problems arises in the determination of what law is applicable to a shipment that either originated in or is destined for a foreign nation. Though the Federal statute itself …

Icc Jurisdiction Of Great Lakes Rail-Water Competition, Arthur E. Miller

Cleveland State Law Review

The regulatory framework surrounding the transportation industry is complex and the absence of any easy resolution of contemporary problems fostered by competitive abuse can be appreciated only by viewing the development and application of administrative powers initiated by the Act to Regulate Commerce.Although the Interstate Commerce Commission has supervised the competitive arena , the age and condition of the Great Lakes fleet manifests water carrier inability to overcome railroad economic power. The viability and future existence of the Great Lakes water carrier could well be determined by a Commission decision in a in a current coal case which represents the …

Pharmacy, Law, And The U.C.C., And Patent Medicines, John J. Kuchinski

Cleveland State Law Review

The primary legal concern of the pharmacist has been and continues to be in the field of negligence. With the increasing legal awareness of society, however, it becomes imperative to examine what liabilities may arise under the U.C.C. The main objective of this paper is to explore the possible areas of liability that may arise under the Code in the sale of patent medicines by the pharmacist.

Defective Automobiles And The U.C.C., William T. Stanley Jr.

Cleveland State Law Review

The automobile warranty disclaimer today is the subject of much controversy and abuse, often with good reason. The automobile purchaser has long suffered from being on the sticky end of a contract of adhesion. Those who own automobiles have all too often had unpleasant experiences with patent flaws, latent defects and shoddy repairs. But sympathy is generally coming to lie with the "aggrieved" buyer, and the warranty disclaimer is now under siege. Two interrelated topics will be covered in this discussion: warranty disclaimers under Henningsen v. Bloomfield Motors and under the Uniform Commercial Code (hereinafter referred to as "Code"); and …

Liability Of A Carrier For Loss And Damage To Interstate Shipments, Thomas R. Skulina

Cleveland State Law Review

The law governing the liability of a carrier for loss or damage to interstate shipments is set out in the Carmack Amendment. Prior to the enactment of this federal legislation, a body of law pertaining to this subject developed in the common law. The present law evolved from the earliest concepts of bailment relationship. The early statutes preserved many aspects of the common law. This article will refer to common law principles but will not focus on law as it was prior to the Carmack Amendment.

Product Imitation, John P. Diamond

Cleveland State Law Review

The wave of imitation sweeping through competitive American business has crowded the courts with unfair competition cases. The most recent and representative of these cases will be examined here.

Bad Checks For The Price Of Goods, William E. Mccurdy

Cleveland State Law Review

A seller receives a check from the buyer for the price of goods. When presented to the bank on which it was drawn, payment is refused. The buyer may, or may not, have had sufficient funds on deposit at the time the check was drawn, but insufficient when refused now although becoming sufficient immediately after the check was presented. Or the buyer may have known or have had reason to know that there would be insufficient funds to meet the check. Or the buyer never had an account at the bank. Or the one obtaining the goods may give a …

Connecting Carrier's Liability For Loss Or Damage To Shipments, W. David Alderson

Cleveland State Law Review

Is a carrier liable for a shipment it did not receive? What is the situation when a carrier receives only part of the goods from the preceding carrier, or when it receives them all but in damaged condition? How is the carrier's liability affected if the damage is latent or patent? Discussion of these questions will be limited to shipments in interstate commerce and in three basic areas: (1) carrier's common law liability,1 (2) effect of federal enactments, and (3) establishment of a prima facie case.