Law Commons^™

Bali Mawacara: Is A Quasi-Common Law System Developing In Balinese Customary Law?, Danial Kelly, Wayan P. Windia

Indonesia Law Review

The Indonesian island of Bali is internationally renowned as a popular tourist destination. Tourists from around the world have been attracted to Bali’s rich and colourful displays of culture and its friendly people for many decades. Intertwined with the predominately Hindu culture that is so readily visible is the invisible customary legal system of Bali that regulates much of the daily life of the Balinese. This autochthonous legal system exists in plurality with the Indonesian state legal system. As with all legal systems, the Balinese customary law system is in a state of flux. This article will examine the foundational …

Corporate Social Responsibility Sebagai Promosi Perseroan Terbatas, Chandra Yusuf, Endang Purwaningsih

Jurnal Hukum & Pembangunan

The application of Corporate Social Responsibility (CSR) and Fiduciary Duty in Law No. 40 of 2007 concerning Limited Liability Companies creates a conflict of interest. The problem that arises is the placement of CSR in the company's income statement that will reduce the company's dividend distribution. This violates the principle of "fiduciary duty". Directors of Limited Liability Company must maximize shareholder prosperity. So far, CSR is considered a social activity. To avoid conflicts of interest, CSR must be classified into a promotional account in the financial statements, especially the Balance Sheet. The method used to assess CSR refers to the …

Reducing The Governance Gap For Corporate Complicity In International Crimes, Seunghyun Nam

Brooklyn Journal of International Law

With increasing reports of corporations involved in serious human rights abuses that amount to international crimes, there are greater calls for states to hold these corporations accountable. Still, many obstacles and challenges remain when it comes to holding corporations accountable. Complex corporate structures, the extraterritorial dimension of the abuses, competition among states and businesses, lack of institutional capacity on the part of states, and lack of legal coordination among states collectively create an impunity gap. The case studies of the situation in Burma and the Democratic Republic of Congo involving foreign companies aim to illustrate this governance gap. With growing …

Empowering The Poor: Turning De Facto Rights Into Collateralized Credit, Steven L. Schwarcz

Notre Dame Law Review

The shrinking middle class and the widening gap between rich and poor threaten social and financial stability. Though sometimes identified as a problem of developing nations, the inability of the poor to obtain credit by using their de facto rights in property as collateral impedes upward mobility in nearly all countries, including the United States. Efforts to solve this problem have focused on trying to transform de facto rights into de jure title under property law. Those efforts have been unsuccessful because, among other reasons, property law is tightly bound to tradition and protecting vested ownership. This Article proposes an …

Introduction, Kim Brooks, Kim Brooks

Dalhousie Law Journal

At Schulich, we see business law in a broad frame and understand that business law and policy includes the role of businesses in environmental protection, sustainable investing, inter-nation equity, and access to justice. We understand that businesses operate in broad social, economic, and political contexts, and as a community of scholars we care about the interactions of business law and policy with technology, governance and stakeholder rights, and economic, social and environmental justice. We hope that this collection advances vital scholarly and policy conversations.

A Survey And Critique Of The “Seller In Possession” Statutory Regimes Of Common Law Canada: An Abc Prequel, Clayton Bangsund

Dalhousie Law Journal

The article examines the various provincial and territorial statutory regimes that apply to resolve title disputes emanating from a “seller in possession” scenario in which an initial buyer leaves bought goods in the possession of a seller who then transfers them to a subsequent bona de purchaser. Presently there are four distinct statutory models in force across common law Canada. Some provinces and territories incorporate modernized electronic personal property registry infrastructure into their statutory priority regimes, while others do not. The author undertakes a comparative assessment of the four models, highlights their strengths and weaknesses, and asserts that Model 2—representative …

Disrupting Business As Usual: Considering Teaching Methods In Business Law Classrooms, Jeffery Hewitt, Shanthi E. Senthe

Dalhousie Law Journal

The Truth and Reconciliation Commission of Canada (TRC)’s Calls to Action propose signimcant changes to legal education. No law school classroom is exempt, including business law courses. We are two of a growing number ofscholars in the legal academy actively incorporating Indigenous laws, critical race theory and socio-economic perspectives into business law courses as part of our responses to the TRC. This paper explores a field school we developed at Windsor Law as a response to the Calls to Action. In a temporary fusion of two courses, Secured Transactions along with Indigenous Peoples, Art & Human Rights, a synergy emerges …

Manufacturing Consent To Climate Inaction: A Case Study Of The Globe And Mail ’S Pipeline Coverage, Jason Maclean

Dalhousie Law Journal

Canada has long been a climate change policy laggard. Canada is among the world’s poorest-performing countries in terms of climate action—not only is Canada’s greenhouse gas emissions-reduction target under the Paris Agreement insufficiently ambitious, Canada is not even remotely on track to meet it. Canada’s enduring inaction on climate change is legitimized and sustained by its mainstream corporate news media, which contribute to the oil and gas industry’s capture of Canadian climate and energy policy. In this article, I examine how Canada’s leading national newspaper, The Globe and Mail, editorially framed the completion of the controversial expansion of the Trans …

Third-Party Liability Of Directors And Officers: Reconciling Corporate Personality And Personal Responsibility In Tort, Michael Marin

Dalhousie Law Journal

When is a director or of�� cer personally liable in tort to a party who is not the corporation he or she serves? In Canada, there is no clear answer. The law is marked by division both within and between appellate courts, resulting in judgments that are hard to reconcile and verge on arbitrary. This is likely attributable to the mistaken belief that there is a tension between personal liability and corporate personality, as well as the disputed relationship between common law and statutory obligations. To address these challenges, most Canadian courts have followed a threshold corporate law analysis, which …

Reorganizations, Sales, And The Changing Face Of Restructuring In Canada: Quantitative Outcomes Of 2012 And 2013 Ccaa Proceedings, Alfonso Nocilla

Dalhousie Law Journal

This article examines quantitative data on the outcomes of proceedings under the Companies’ Creditors Arrangement Act (CCAA), Canada’s principal statute for resolving large, complex corporate insolvencies. In particular, this article compares the durations, direct costs, and returns to different classes of creditors generated by traditional reorganizations under the CCAA and by “liquidating CCAAs”—that is, proceedings in which the insolvent debtor sells substantially all of its assets rather than reorganizing itself. The article makes a number of contributions to the existing scholarship. Firstly, quantitative data on CCAA proceedings are rare. The data examined here, collected by the author from proceedings initiated …

Corporate Risk And Climate Impacts To Critical Energy Infrastructure In Canada, Rudiger Tscherning

Dalhousie Law Journal

Recent climate events such as Hurrican Harvey in Texas foreshadow the dangers that could result from critical energy infrastructure failure in Canada due to physical impacts caused by climate change. This article examines the types of climate impacts that could affect critical energy infrastructure in Canada. The article argues that these impacts translate into three types of corporate risk to the owners and operators of the critical asset: economic risks to the infrastructure asset; management and operational risks to the corporation; and risks arising from corporate disclosure obligations. Applying the theoretical approach of "risk management," the article concludes that, on …

Evaluating Canadian Tax Remission Orders: A Debt Relief Vehicle For Taxpayers, Samuel Singer

Dalhousie Law Journal

Tax remission orders, although rare, serve important functions in the Canadian tax system. This paper draws from a comprehensive study of federal tax remission orders issued between 1998 and 2017. It presents general findings about remission orders in that time period, including remission order applications, their reported costs, and the number of remission orders issued. The paper identifies the five most common categories of reasons cited for granting remission orders. It then applies tax policy analysis to assess the two most frequent reasons for grating remission orders: to provide debt relief for financial hardship and/or extenuating circumstances, and to provide …

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 …

Mootness Fees, Matthew D. Cain, Jill E. Fisch, Steven D. Solomon, Randall S. Thomas

Vanderbilt Law Review

In response to a sharp increase in litigation challenging mergers, the Delaware Chancery Court issued the 2016 Trulia decision, which substantively reduced the attractiveness of Delaware as a forum for these suits. In this Article, we empirically assess the response of plaintiffs’ attorneys to these developments. Specifically, we document a troubling trend—the flight of merger litigation to federal court where these cases are overwhelmingly resolved through voluntary dismissals that provide no benefit to the plaintiff class but generate a payment to plaintiffs’ counsel in the form of a mootness fee. In 2018, for example, 77% of deals with litigation were …

Introduction: Professor Randall Thomas’S Depolarizing And Neutral Approach To Shareholder Rights, James D. Cox, Frank Partnoy

Vanderbilt Law Review

Like Gaul, corporate law scholarship can be divided into three overflowing buckets: pro-manager, pro-shareholder, and empirical. We classify empirical scholarship as a separate category, in significant part because of Professor Randall Thomas. In the pre-Thomas era, much of the literature fell into the first two buckets, with empirical researchers deploying data collection and analysis to support their particular bent. Then Professor Thomas emerged as a distinctive empiricist. Throughout his career, he has published scores of path breaking studies while maintaining relative neutrality as to the normative implications. He does not deploy data and its analysis to advocate for particular positions, …

Corporate Oversight And Disobedience, Elizabeth Pollman

Vanderbilt Law Review

This Article explores the public-regarding purpose of the obedience and oversight duties in corporate law and provides a descriptive account of how they are applied in practice. The Article argues that the fidelity to external law required by the duty of good faith largely serves a legitimizing role for corporate law. Expressing obligations of legal compliance and oversight within corporate law acknowledges societal interests in the rule of law and preserves the ability of courts to flexibly respond to particularly salient and egregious violations of public trust, should they arise, without upending case law developed over decades.

Further, this Article …

The Social Costs Of Dividends And Share Repurchases, J.B. Heaton

The Journal of Business, Entrepreneurship & the Law

A long-held view in the academy is that shareholders are "residual claimants” in the sense that shareholders are paid in full only after the corporation pays its creditors. The reality on the ground is far different. Corporations give assets away to their shareholders long before they have satisfied creditors, both voluntary contract creditors and involuntary tort creditors. In particular, existing U.S. corporate and voidable transfer laws allow corporations to pay dividends and make share repurchases up to the point where the corporation is insolvent or nearly so. Voluntary creditors can limit dividends and share repurchases by contract, but involuntary creditors …

The Fatal Leviathan: A Hayekian Perspective Of Lex Mercatoria In Civil Law Countries, Fabio Núñez Del Prado Ch.

Pace International Law Review

Who should create default commercial rules? Should they be created in a constructivist way or should they be created rather through a spontaneous order? Should Kelsen’s positivism prevail in commercial law? Drawing on diverse libertarian literature, I will argue that, since courts do not play a dominant role in civil law countries and, more importantly, do not set precedents, default commercial rules should not be created by the legislator, but through the Lex Mercatoria.

A New System Of Electronic Chattel Paper: Notification Of Assignment, Thomas E. Plank

South Carolina Law Review

No abstract provided.

Net Neutrality And The European Union’S Copyright Directive For The Digital Single Market, Nathan Guzé

Loyola of Los Angeles International and Comparative Law Review

The European Union’s Copyright Directive for the Digital Single Market should cause concern for net neutrality advocates. This article casts a critical gaze at Article 17 (previously Article 13) of this new Directive. It chronicles the Directive’s life: starting as a reaction to the perceived inadequate copyright protections provided by the previous Information Society Copyright Directive through to its then-present status circa May 2019. Next, net neutrality is defined, and its benefits and detriments are weighed to ultimately determine the policy is desirable. Article 17’s call for eliminating safe-harbor provisions for content hosts and its call for content filters signal …

Bitcoin: Order Without Law In The Digital Age, John O. Mcginnis, Kyle Roche

Indiana Law Journal

Modern law makes currency a creature of the state and ultimately the value of its currency depends on the public’s trust in that state. While some nations are more capable than others at instilling public trust in the stability of their monetary institutions, it is nonetheless impossible for any legal system to make the pre-commitments necessary to completely isolate the governance of its money supply from political pressure. This proposition is true not only today, where nearly all government institutions manage their money supply in the form of central banking, but also true of past private banking regimes circulating their …

Lawmakers As Job Buyers, Edward W. De Barbieri

Fordham Law Review

In 2013, Washington State authorized the largest state tax incentive for private industry in U.S. history. It is not remarkable for a state legislature to use tax benefits to retain a major employer—in this case, the global aerospace manufacturer Boeing. Laws across all states and thousands of cities routinely incentivize companies such as Amazon to relocate or remain in particular areas. Notably, however, Washington did not recover any of the subsidies it authorized despite Boeing’s significant post-incentive workforce reductions. This story leads to several important questions: (1) How effective are state and local legislatures at influencing business-location decisions?; (2) Do …

Regulating Habit-Forming Technology, Kyle Langvardt

Fordham Law Review

Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products— products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more time on device than they would like, about five hours of phone time a day, while a substantial minority develop life-changing behavioral problems similar to problem gambling. Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes,” a …

The Future Of Dairy Cooperatives In The Modern Marketplace: Redeveloping The Capper-Volstead Act, Sarah K. Phillips

Dickinson Law Review (2017-Present)

Agriculture plays a fundamental role in the U.S. economy as a multibillion-dollar industry that feeds people all over the world. However, over the past decade, the dairy industry in particular has changed from a reliable sector of the greater agricultural industry into an unsettled, politically-charged, and fractured group. Dairy farmers’ consistently receiving low milk prices has facilitated this divide. Tired of being ignored and underpaid, dairy farmers are demanding change in the current dairy market structure.

Federal Milk Marketing Orders and a variety of statutes regulate the dairy industry, but the 1922 Capper-Volstead Act remains the most notable piece of …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Smart Contracts And Consumers, Tatiana Cutts

West Virginia Law Review

“Smart contracts” are a way of using computers to make contracts unbreakable. Contracting parties do not need to trust one another to perform or rely upon intermediaries to enforce performance. Performance is guaranteed. This is supposed to be a victory for the ordinary person—a clever socio-economic application of cryptography that strips power from companies and governments and gives it to consumers. But it turns out that less trust does not mean more freedom, or better bargains. The law of contract supports valuable relationships both by enforcing duties and by allowing parties to escape the consequences of ill-formed contracts and oppressive …

The Mandatory Use Of National Language In Indonesia And Belgium: An Obstacle To International Contracting?, Priskila Pratita Penasthika

Indonesia Law Review

Law Number 24 of 2009 on National Flag, Language, Emblem, and Anthem of Indonesia requires that any contract involving an Indonesian party must be drafted in Indonesian. In applying this law, the Supreme Court of the Republic of Indonesia, in Nine AM v. PT Bangun Karya Pratama Lestari judgment, annulled a loan agreement because it was considered to violate the language requirement. Although claiming to strengthen the use of Indonesian language in a contract, this judgment underscores a potential risk of voidance a foreign party face in entering into an agreement drafted in a foreign language when contracting with an …

Legal Protection For Recipients Of Foreign Franchise Rights In Indonesia, Sugeng Sugeng

Indonesia Law Review

Due to gobalization, world trade has increased tremendously. Franchising having surged as one of the many business models has the potential to improve the economy of the community. Basically, franchising refers to a method of goods and services distribution to consumers. The party who owns the method is referred to as the franchisor, while the party given the right to use a method the franchisee. This article examines the legal issues that arise in granting license rights from foreign franchisors to franchisees, and how the laws in Indonesia provide protection for the rights and obligations of the parties. The research …

A New Role Of Causation Theory Towards Achieving Economic Contractual Equilibrium: Monitoring The Economic Equilibrium Of The Contract, Osama Ismail Amayreh, Izura Masdina Mohamed Zakri, Pardis Moslemzadeh Tehrani, Yousef Mohammad Shandi

Indonesia Law Review

The phrase “who says contractual, says justice” “qui dit contractuel dit juste” does not fully express the truth of our present reality, where the phrase itself falls into doubt, since the contract does not always result in fair obligations, as the contract is an expression of often unequal wills. In this regard, the French judiciary realized that the absence of justice in the contract might arise as a result of the contractual freedom afforded to the contracting parties and, thus, they developed the idea of Commutative Justice in the contract, such as the Piller’s decision, which is considered one of …

Identities Lost: Enacting Federal Law Mandating Disclosure & Notice After A Data Security Breach, John Ogle

Arkansas Law Review

Identity theft is real, it’s here, and consumers need protection. Over the past five years hackers have stolen billions of consumers’ sensitive information like social security numbers, addresses, and bank routing numbers from companies that have neglected their security measures. Most of the time these security breaches are easily preventable. Companies sometimes wait weeks, months, or even years to inform the customers whose information was stolen because there is no federal law that requires disclosure. As of 2018, all 50 states have adopted security breach notification laws that require companies to inform consumers that their information may have been stolen …