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Articles 1 - 30 of 54
Full-Text Articles in Law
A Theory Of Substantive Standards Of Review: The Case Of Corporate Law, Tomer S. Stein
A Theory Of Substantive Standards Of Review: The Case Of Corporate Law, Tomer S. Stein
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In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court limited deference to universities. In West Virginia v. EPA, the Court reduced its deference to administrative agencies. In Coster v. UIP Cos., Inc., the Delaware Supreme Court limited deference to boards of directors, proclaimed a new standard of review, and then retracted the new standard of review (maybe). Common to these constitutional, administrative, and corporate law cases is unpredictability, uncertainty, and inconsistency in the use and application of substantive standards of review. This doctrinal chaos is explicitly acknowledged by the very judges that formulate …
Systemic Risk Of Contract, Tal Kastner
Systemic Risk Of Contract, Tal Kastner
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Complexity and uncertainty define our world, now more than ever. Scholars and practitioners have celebrated modular contract design as an especially effective tool to manage these challenges. Modularity divides complex structures into relatively discrete, independent components with simple connections. The benefits of this fundamental drafting approach are intuitive. Lawyers divide contracts into sections and provisions to make them easier to understand and reduce uncertainty. Dealmakers constructing complex transactions use portable agreements as building blocks to reduce drafting costs and enable innovation. Little attention, however, has been paid to the risks introduced by modularity in contracts. This Article demonstrates how this …
Challenging Gender Discrimination In Closely Held Firms: The Hope And Hazards Of Corporate Oppression Doctrine, Meredith R. Miller
Challenging Gender Discrimination In Closely Held Firms: The Hope And Hazards Of Corporate Oppression Doctrine, Meredith R. Miller
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The #MeToo Movement has ushered sexual harassment out of the shadows and thrown a spotlight on the gender pay gap in the workplace. Harassment and unfair treatment have, however, been difficult to extinguish. This has been true for all workers, including partners – those women who are owners in their firms and claim that they have suffered harassment or unfair treatment based on gender. That is because a partner’s lawsuit for discrimination often will suffer an insurmountable hurdle: plaintiff’s status as a partner in the firm means that they may not be considered an “employee” under the relevant employment discrimination …
Advanced Artificial Intelligence And Contract, John Linarelli
Advanced Artificial Intelligence And Contract, John Linarelli
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The aim of this article is to inquire whether contract law can operate in a state of affairs in which artificial general intelligence (AGI) exists and has the cognitive abilities to interact with humans to exchange promises or otherwise engage in the sorts of exchanges typically governed by contract law. AGI is a long way off but its emergence may be sudden and come in the lifetimes of some people alive today. How might contract law adapt to a situation in which at least one of the contract parties could, from the standpoint of capacity to engage in promising and …
Law And The Blockchain, Usha Rodrigues
Law And The Blockchain, Usha Rodrigues
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All contracts are necessarily incomplete. The inefficiencies of bargaining over every contingency, coupled with humans’ innate bounded rationality, mean that contracts cannot anticipate and address every potential eventuality. One role of law is to fill gaps in incomplete contracts with default rules. The blockchain is a distributed ledger that allows the cryptographic recording of transactions and permits “smart” contracts that self-execute automatically if their conditions are met. Because humans code the contracts of the blockchain, gaps in these contracts will arise. Yet in the world of “smart contracting” on the blockchain, there is no place for the law to step …
Hiding In Plain Sight: "Conspicuous Type" Standards In Mandated Communication Statutes, Mary Beth Beazley
Hiding In Plain Sight: "Conspicuous Type" Standards In Mandated Communication Statutes, Mary Beth Beazley
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Professor Beazley defines the concept of mandated communication statutes in this examination of typeface, language, and the mind's ability to comprehend certain syntax. This article has a simple premise: when a government mandates written communication, it should present the mandated communication in a way that speeds comprehension. When communication is so important that the government is mandating the words and the presentation method, the writer and not the reader should not bear the burden of making sure that the information is comprehensible. In other words, the reader should not have to work to decipher the information; the writer should work …
Municipal Attorneys Can Find Answers In The Newly Released Third Edition Of Commercial Litigation In New York State Courts, Patricia E. Salkin
Municipal Attorneys Can Find Answers In The Newly Released Third Edition Of Commercial Litigation In New York State Courts, Patricia E. Salkin
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This article contains a book review of the newest edition of Commercial Litigation in New York State Courts (West), edited by former New York County Lawyers President Robert Haig of Kelley Drye & Warren LLP. The author of this book review details why this treatise is an invaluable addition, not for the library shelf, but for prime desk space on the busy working lawyer’s desk. The author further notes that while the most recent edition of the treatise has been widely reviewed statewide, prior to this book review there has been little, if any, attention to the value of the …
“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal
“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal
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We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …
In-Sourcing Corporate Responsibility For Enforcement Of The Foreign Corrupt Practices Act, Larry D. Thompson
In-Sourcing Corporate Responsibility For Enforcement Of The Foreign Corrupt Practices Act, Larry D. Thompson
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In this article I first review our nation's long-standing and active aversion to corporate corruption overseas, as principally embodied in the Foreign Corrupt Practices Act. I then explain how achievement of the FCPA's goals is undermined by the uncertainty in current federal enforcement policies and the consequent ambivalence toward self disclosure exhibited by multinational corporations. Finally, I argue that the only realistic way to make up the shortcomings in FCPA enforcement that flow from the Justice Department's limited resources is to motivate corporations themselves to police corruption in their foreign subsidiaries by giving them a concrete incentive in the form …
Creating Hammer V. Dagenhart, Logan E. Sawyer Iii
Creating Hammer V. Dagenhart, Logan E. Sawyer Iii
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Hammer v. Dagenhart is among the best known cases in the canon of constitutional law. It struck down the first federal child labor law on the grounds that Congress’s commerce power allowed it to prohibit the interstate shipment of harmful goods, like impure food and drugs, but not harmless goods, like the products of child labor. Withering criticism of the decision spread from Justice Holmes’s famous dissent to law reviews, treatises, casebooks, and constitutional law classes. For nearly a century the decision has been scorned as inconsistent with precedent, incoherent as policy, and driven solely by the Court’s reactionary commitment …
Sale Of Goods Contract Not To Be Performed Within A Year: Is The Uniform Commercial Code Statute Of Frauds Provision Exclusive?, Sidney Kwestel
Sale Of Goods Contract Not To Be Performed Within A Year: Is The Uniform Commercial Code Statute Of Frauds Provision Exclusive?, Sidney Kwestel
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No abstract provided.
Penalty Clauses And The Cisg, Jack Graves
Penalty Clauses And The Cisg, Jack Graves
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Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause …
"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan
"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan
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No abstract provided.
Late Delivery--Measure Of Damages, Sidney Kwestel
Late Delivery--Measure Of Damages, Sidney Kwestel
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No abstract provided.
Mediation Representation: Representing Clients Anywhere, Harold Abramson
Mediation Representation: Representing Clients Anywhere, Harold Abramson
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No abstract provided.
Busting Blocks: Revisiting 47 U.S.C. §230 To Address The Lack Of Effective Legal Recourse For Wrongful Inclusion In Spam Filters, Jonathan I. Ezor
Busting Blocks: Revisiting 47 U.S.C. §230 To Address The Lack Of Effective Legal Recourse For Wrongful Inclusion In Spam Filters, Jonathan I. Ezor
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This paper discusses the growth and increasing significance of e-mail in the business and personal environment, and how unsolicited bulk commercial e-mail, also known as spam, has become a significant drain on technical and economic resources. It analyzes the statutory and self-help efforts to combat spam, with a specific focus on block lists and automated spam filters, and describes how alleged spammers have brought lawsuits in U.S. courts claiming they had been wrongfully included within block lists and filters. Finally, it describes some possible claims under U.S. law, then argues for a revision to current statutes to mandate a higher …
Redesigning Global Trade Institutions, John Linarelli
Redesigning Global Trade Institutions, John Linarelli
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This is a draft of an essay for the symposium, 2021: International Law Ten Years from Now, held by the Southwestern Journal of International Law in cooperation with the International Law Association (American Branch) Weekend West. The essay deals with two questions. First, what is to be of the WTO and world trade institutions generally? It examines the rise of regionalism in international trade agreements and possible roles for variable geometry for the WTO. The essay critiques proposals to move towards (or back to) plurilateralism for the WTO. Second, what should trade agreements do? This question goes to the core …
The Limited Case For Permitting Sme Procurement Preferences In The Wto Agreement On Government Procurement, John Linarelli
The Limited Case For Permitting Sme Procurement Preferences In The Wto Agreement On Government Procurement, John Linarelli
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This is a chapter in the book, Sue Arrowsmith & Robert D. Anderson, The WTO Regime on Government Procurement: Challenge and Reform (Cambridge University Press, 2011). The chapter puts under scrutiny public procurement policies designed to benefit SMEs per se, as small or medium sized enterprises, and to evaluate whether the GPA (and hence possibly other trade agreements liberalizing procurement markets) should be more accommodating to these policies, even though these policies might restrict international trade. The chapter also evaluates whether the GPA should be more accommodating to policies designed to benefit firms controlled by individuals who belong to historically …
Express Warranty Of Fitness For A Particular Purpose: Extent Of Overlap In Same Factual Context With Implied Warranty Of Fitness For A Particular Purpose, Sidney Kwestel
Scholarly Works
No abstract provided.
Unrevised Section 2-207--Different Terms Revisited, Sidney Kwestel
Unrevised Section 2-207--Different Terms Revisited, Sidney Kwestel
Scholarly Works
No abstract provided.
Arbitration Reform: What We Know And What We Need To Know, Peter B. Rutledge
Arbitration Reform: What We Know And What We Need To Know, Peter B. Rutledge
Scholarly Works
The future of commercial arbitration has become a centerpiece of the domestic congressional agenda. According to one estimate, ten different bills introduced in the 110th Congress would chip away at the enforceability of pre-dispute arbitration agreements. By far the most significant bill, the Arbitration Fairness Act, would retroactively invalidate arbitration agreements in all employment, consumer, securities and franchise contracts. An especially vague provision in a prior version of the bill would invalidate agreements involving claims under statutes intended to protect civil rights or designed to regulate transactions between parties of unequal bargaining power. Are these wise moves?
Ica And The Writing Requirement: Following Modern Trends Towards Liberalization Or Are We Stuck In 1958?, Jack Graves
Ica And The Writing Requirement: Following Modern Trends Towards Liberalization Or Are We Stuck In 1958?, Jack Graves
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Article 7 of the Model Law was revised in 2006 to liberalize any requirements of form, consistent with modern commercial practices and modern legal trends reflected in national laws. To the extent adopted by national legislatures, either of the two available options under this revision will effectively eliminate any requirement of a “record of consent,” thus making arbitration agreements more easily enforceable in the adopting jurisdiction. However, any such revision of national laws on arbitration based on the revisions of Article 7 of the Model Law will not necessarily have any effect on enforcement of awards in other jurisdictions under …
Analytical Jurisprudence And The Concept Of Commercial Law, John Linarelli
Analytical Jurisprudence And The Concept Of Commercial Law, John Linarelli
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Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond …
"Arbitration As A Final Award: Challenges And Enforcement" Published As Chapter 10 In International Sales Law And Arbitration: Problems, Cases, And Commentary, Jack M. Graves, Joseph F. Morrissey
"Arbitration As A Final Award: Challenges And Enforcement" Published As Chapter 10 In International Sales Law And Arbitration: Problems, Cases, And Commentary, Jack M. Graves, Joseph F. Morrissey
Scholarly Works
No abstract provided.
The Wto Agreement On Government Procurement And The Uncitral Model Procurement Law: A View From Outside The Region, John Linarelli
The Wto Agreement On Government Procurement And The Uncitral Model Procurement Law: A View From Outside The Region, John Linarelli
Scholarly Works
Two of the most significant efforts to bring municipal procurement institutions up to international standards are the WTO Agreement on Government Procurement (GPA) and the UNCITRAL Model Law on Procurement of Goods, Construction and Services. Though the Model Law has had limited adoptions, it enjoys global influence as a source of norms and practices for good public procurement. The GPA, also reflective of international standards, seems to be on the rise, as more WTO members elect to become GPA contracting parties. This article explores two aspects of these instruments. First, the article explores how the Model Law promotes efficient public …
Cuno And Congress: An Analysis Of Proposed Federal Legislation Authorizing State Economic Development Incentives, Walter Hellerstein
Cuno And Congress: An Analysis Of Proposed Federal Legislation Authorizing State Economic Development Incentives, Walter Hellerstein
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If anything is clear about Cuno and the controversy the opinion has spawned, it is that Congress has the last word on the matter. Whether Congress will speak to the issues Cuno has raised is currently an open question, although in one narrow respect Congress already has. Broader legislation, however, has been introduced into Congress as the "Economic Development Act of 2005," and debate over the efficacy and wisdom of this proposal is as intense as the debate over the defensibility of Cuno itself. My purpose here is not to join that debate, although I am already on record as …
Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves
Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves
Scholarly Works
No abstract provided.
Course Of Performance As Evidence Of Intent Or Waiver: A Meaningful Preference For The Latter And Implications For Newly Broadened Use Under Revised U.C.C. Section 1-303, Jack M. Graves
Scholarly Works
No abstract provided.
One For All, But None For (All Of) One: Revised Article 1 Of The Uniform Commercial Code (Part 1 Of 2), Keith A. Rowley
One For All, But None For (All Of) One: Revised Article 1 Of The Uniform Commercial Code (Part 1 Of 2), Keith A. Rowley
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This article examines four major differences between Revised Article 1 of the Uniform Commercial Code and Nevada's current (as of 2004) version of Article 1, codified at N.R.S. §§ 104.1101 et seq.
One For All, But None For (All Of) One: Revised Article 1 Of The Uniform Commercial Code (Part 2 Of 2), Keith A. Rowley
One For All, But None For (All Of) One: Revised Article 1 Of The Uniform Commercial Code (Part 2 Of 2), Keith A. Rowley
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Part One of this article examined four major differences between Revised Article 1 of the Uniform Commercial Code and Nevada's current version of Article 1, codified at N.R.S. §§ 104.1101 et seq. Part Two explores how Revised Article I has fared thus far in other states and suggests what the Nevada Legislature should consider when deciding in the upcoming legislative session whether to enact Revised Article I as written, whether to enact it with revisions, or whether not to enact it at all.