Law Commons^™

The Interplay Between U.S. Statutory Rights And Public Policy Under The Faa And New York Convention In International Disputes, Daniel Schwarz

Daniel M. Schwarz

The “prospective waiver” doctrine allows U.S. courts to invalidate or sever arbitration clauses in otherwise valid agreements to arbitrate where arbitrating under foreign law would prevent a U.S. party from seeking relief under a U.S. statute. The loss of this opportunity is said to affront U.S. public policy. This paper acknowledges that courts’ application of this idea has resulted in the need for a more fundamental revisiting of the question of whose law should be “mandatory” in international arbitration. But more specifically, this paper proposes appropriate sets of factors for pre-arbitration courts, arbitrators, and post-arbitration enforcement courts to consider in …

Globalization Versus Normative Policy: A Case Study On The Failure Of The Barbie Doll In The Indian Market, Priti Nemani

Priti Nemani

The Barbie doll leads in the world of young females, with her vast wardrobe, her extensive life experiences, and her many diverse friends. Barbie’s maker- Mattel, Inc. – has sold the doll around the world by making superficial ethnic and racial modifications to the doll; however, the international marketing of Barbie has not been wholly triumphant. Mattel no longer promotes the Barbie in India; rather, the global company now mainly markets gender neutral products, like board games, to the Indian market. Why did the Indian family reject Barbie as the appropriate toy for their daughters?

This article argues that, despite …

Recalibrating Abstract Payments Regulatory Policy: A Retrospective After The Dodd-Frank Act, Eniola Akindemowo

Eniola Akindemowo

The future efficiency of the payments system is at stake. Existing stored value products (SVPs e.g. gift cards and gift card apps) are early prototypes of what payments and money will become – digital, dis-intermediated, and possibly, neither state nor bank issued. These products have defied sustained efforts to pigeonhole them into traditional categories. Significantly, past regulatory efforts have thrown a startling fact into sharp relief: the relevance of deposits – the hallowed central concept of payments jurisprudence – is being undermined in SVPs and emergent payments. What this means is that the role of deposits – the lynch pin …

After Lehman: International Response To Financial Disputes - A Focus On Hong Kongg Kong, Shahla F. Ali, John Koon Wang Kwok

Shahla F. Ali

Recent global financial dislocation has provided an impetus for examining effective avenues for the resolution of financial disputes. Hong Kong, like many financial centers throughout the world, has been directly affected by the collapse of Lehman Brothers. Its response to the collapse has included a creative mix of regulatory strengthening and government sponsored mediation and arbitration. Each of these alternative mechanisms of resolution provides a useful case study of the prospects of the use of ADR in response to financial crises. The efficacy of such interventions will be reviewed and options for the future development of a multi-tier dispute resolution …

Why Is Small Business The Chief Business Of Congress?, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small business is a sacred cow in America. In 1958, Congress created the Small Business Investment Company ("SBIC"), a unique public-private program that provides long-term capital to small entrepreneurs. From its inception, however, the SBIC has been plagued by inefficiency and failure. Yet, Congress continues to pour millions of dollars into the SBIC program, with no end in sight. What explains this failed policy course?

This article argues that the SBIC program exemplifies the pitfalls of legal and political institutional path dependency and should be replaced by private institutional lending system. Pursuant to this account, past decisions can influence future …

¿Viva La Data Protection? Chile As A Touchstone For The Future Of Information Privacy, Nicola C. Menaldo

Nicola C. Menaldo

This paper attempts to uncover a puzzle: although the traditional levers for strong privacy protection are present in Chile – a history of dictatorship, an information technology revolution, and strong trade with the European Union – its data protection laws are in fact very weak. What explains this apparent disconnect? This paper challenges the conventional wisdom: that Chile's weak data protection regime is the result of weak democratic institutions, collective action problems, or the prioritization of credit data protections. Instead, it argues that Chile's stunted regime results from a political culture in which privacy protections, generally, are traded off for …

Contract Law Now--Reality Meets Legal Fictions, Danielle K. Hart

Danielle K Hart

Modern contract law is designed to achieve a fundamental objective, namely, to ensure that voluntary agreements between private parties are legally binding. The appropriateness of this objective and the assumptions underlying it are rarely questioned. Legal scholars, practitioners, and policymakers alike presuppose that the binding-nature of contracts is a desirable and a positive feature of our legal system. But are the assumptions underlying the modern contract system sound? Do people behave in the way that contract law supposes? And are the concepts of voluntary, informed consent and freedom from state interference really the hallmarks of the modern contract system? This …

Allowing Dual Status For Purchase-Money Security Interests In Consumer-Goods Transactions, Richard Nowka

Richard H. Nowka

This article advocates that courts should allow a purchase-money security interest in consumer goods to have dual status—part purchase-money and part nonpurchase-money—after the parties refinance the purchase-money obligation or after the secured party makes a future advance. Courts have struggled with this issue since the enactment of Article 9 because the definition of purchase-money security interest (U.C.C. 9-103) arguably permits a court to apply dual status or to hold that a refinancing or future advance “transforms” the purchase-money security interest into a nonpurchase-money security interest. Although Revised Article 9 adopts the dual status rule, a compromise among the drafting committee …

Outsourcing Human Reproduction: Embryos & Surrogacy Services In The Cyberprocreation Era, Dawn R. Swink

Dawn R Swink

No abstract provided.

Fragile Merchandise: A Comparative Analysis Of The Privacy Rights For Public Figures, Scott Shackelford

Scott Shackelford

Over a century after Warren and Brandeis first presented the right to U.S. jurists for their consideration, privacy has become a central player in U.S. law. But nations around the world, in particular the common and civil law nations of Europe that share similar legal cultures with the United States, are grappling with how best to strike a balance between the competing rights of privacy and freedom of expression—both of which are critical to the functioning of democratic society. Existing literature has not fully drawn from this reservoir of international experience to inform the debate about U.S. privacy rights. This …

The Federal Trade Commission And Privacy: Defining Enforcement And Encouraging The Adoption Of Best Practices., Andrew B. Serwin

Andrew B. Serwin

This article examines the history of privacy enforcement by the Federal Trade Commission, including the FTC’s jurisdiction under Section 5, and its privacy enforcement matters, as well as the FTC's recently issued report, "Protecting Consumer Privacy in an Era of Rapid Change: A proposed Framework for Businesses and Policymakers", in which the FTC examines past enforcement models, noting their failings. In light of the FTC’s examination of past enforcement models, this article then analyzes these models, including the accountability-centric model that has previously been utilized in the United States, as well as the FTC’s proposed solution to the privacy problems …

Financial Crises In The United States And The European Union: Policy Responses, Successes And Failures And The Need For Further, Cross-National Reform, Jason Rudderman

Jason Rudderman

This paper examines the causes of the global financial crisis of 2008-2009 and explores the major financial reforms in the United States and the EU, offers comparisons of the legislation and recommends changes to the legislations that are aimed at minimizing the burden on taxpayers, and balancing the necessary intervention of governments in financial markets and the economy with capitalistic ideals. The lack of government oversight, predatory lending practices, and an overall environment of deregulation leading up to the financial crisis ultimately led to its collapse in late 2008. In response to the collapse of the global financial system, the …

A Crowning Achievement In Protecting High Ranking Officials From Unreasonable Depositions: The Impact Of The Crown Central Test, Scott A. Mager

scott a mager

In an increasingly litigious society, the attempt to first set depositions of high-ranking corporate executives, who are often referred to as “apex officials,” has become commonplace. While these executives rarely have personal knowledge of the facts and issues surrounding a given case, broad-stroked claims against parent companies and lax discovery rules seem to serve as a launching pad to harass executives and extort settlements through threats of—and in many cases the actual taking of—depositions from chief executive officers, chief operating officers, chief financial officers, or other apex executives. In recent years, courts across the country have sought to articulate the …

Bankruptcy Veil Piercing, Nicholas L. Georgakopoulos

Nicholas L Georgakopoulos

The paper examines explanations of the relative frequency of contract piercing litigation. Tort piercing likely is rare because it is displaced by product and vicarious liability. Alternatively, contract piercing may be frequent because failing subsidiaries generate contract piercing. Examining the insolvency of subsidiaries by forming a bankruptcy sample, three phenomena appear (besides that intentional torts between strangers disappear). (i) The majority of tort claims argue fiduciary breach, which is very rare outside of bankruptcy. (ii) Fraud piercing reaches 100%. (iii) Contract piercing is dominated by attempts to pierce others’ veils rather than the debtors.’ The latter phenomenon may correspond to …

The Legal Aspects Of Non-Financial Market Central Counterparties (Ccp): A Case Comment On Iata V. Ansett, Christian Chamorro-Courtland

Christian Chamorro-Courtland

International Air Transportation Association (IATA) v. Ansett (2008) was decided correctly by the High Court of Australia. However, the reasoning of the judges was unsound due to their apparent unfamiliarity with the operation of Central Counterparty (CCP) systems. The judges failed to recognize that ‘open offer’ was the mechanism of counterparty substitution used in the IATA clearing rules to create mutuality and guarantee multilateral insolvency set-off. This article analyses the Ansett decision and describes the legal principles that should have been used to decide the case. Only financial market CCPs receive special statutory protections from burdensome corporate insolvency laws. Therefore, …

Commercial Speech And The History Of The First Amendment: Just What Were Those Founders Thinking?, Laura Beckerman

Laura Beckerman

In the battle over government regulation of advertising, the originalist narrative has emerged as a potent argument. This narrative claims that governmental attempts to regulate advertising violate the First Amendment and fly in the face of the original intent of the founders of our nation. This narrative has been cited by influential figures, including Supreme Court Justice Clarence Thomas, in an effort to delegitimize governmental regulation of advertising. It adds a difficult-to-penetrate sheen of protection to commercial speech—the original intent of the founders and authors of the First Amendment.

There is just one problem with this argument. As a historical …

Supergeneric Collateral Descriptions In Financing Statements And Notice Filing, Lissa Lamkin Broome

Faculty Publications

No abstract provided.

Financial Reform And The Causes Of The Financial Crisis, Brooksley Born

American University Business Law Review

No abstract provided.

To Be, Rather Than To Seem: Analysis Of Trustee Fiduciary Duty In Reorganization And Its Implications On The New Chinese Bankruptcy Law, Xiao-Chuan Charlie Weng

Xiao-chuan Charlie Weng

Reorganization trustees play a crucial role in bankruptcy procedure. The trustees try to resurrect deteriorating businesses by managing remaining resources for the benefit of beneficiaries, usually unsecured creditors and shareholders. More or less, a trustee’s role is similar to that of the officers/managers of a solvent company. Fiduciary duty arises between the residual claimers, the stakeholders on the one hand, and the operator, the trustee on the other hand. Astonishingly, under current U.S. bankruptcy law, reorganization trustee’s fiduciary duty is not well defined, although this duty has been widely litigated. The vagueness is primarily due to misinterpretation of the Mosser …

To Be, Rather Than To Seem: Analysis Of Trustee Fiduciary Duty In Reorganization And Its Implications On The New Chinese Bankruptcy Law, Xiao-Chuan Charlie Weng

Xiao-chuan Charlie Weng

Reorganization trustees play a crucial role in bankruptcy procedure. The trustees try to resurrect deteriorating businesses by managing remaining resources for the benefit of beneficiaries, usually unsecured creditors and shareholders. More or less, a trustee’s role is similar to that of the officers/managers of a solvent company. Fiduciary duty arises between the residual claimers, the stakeholders on the one hand, and the operator, the trustee on the other hand. Astonishingly, under current U.S. bankruptcy law, reorganization trustee’s fiduciary duty is not well defined, although this duty has been widely litigated. The vagueness is primarily due to misinterpretation of the Mosser …

Duties And Liabilities Of Corporate Managers Under Argentine Law, Martin Eugenio Abdala Prof. Dr.

Prof. Dr. Martin Eugenio Abdala

Every individual participates on the commercial traffic, concluding daily different contracts and incurring in many duties, most of which are satisfied correctly on time and form. However, in the cycle from the birth to the extinction of those obligations, it often appears some vicissitudes such as retardation, delay and default. The duties of corporate managers, as a species of that obligation genre, might be obviously affected by such vicissitudes. In Argentine Law the situations of retardation and delay are solved with many tools that come mainly from the Ley de Sociedades Comerciales (Corporation Act). The cases in which there is …

Reconsidering Arbitration: Evaluating The Future Of The Manifest Disregard Doctrine, Griffin Toronjo Pivateau

Griffin Toronjo Pivateau

In a recent decision, the Supreme Court indicated that parties may now have fewer rights to appeal arbitration awards. In Hall Street v. Mattel, Inc., the Court found that parties to an arbitration agreement could not supplement, by contract, the statutory grounds for challenging an arbitration award. Unfortunately, the Court called into doubt a long line of cases holding that a party could seek to vacate an arbitration decision where the arbitrator exhibited a manifest disregard for the law. Until the Hall Street decision, the manifest disregard doctrine enjoyed widespread acceptance. Appellate courts from every circuit have used the manifest …

Overseeing Controlling Shareholders: Do Independent Directors Constrain Tunneling In Taiwan?, Yu-Hsin Lin

Yu-Hsin Lin

One of the most important challenges to modern corporate governance is to constrain controlling shareholder from tunneling corporate resources at a cost to non-controlling shareholders. Related party transactions (RPTs) have been proved by empirical studies as a major channel for tunneling. OECD has also stressed the challenge of abusive RPTs to Asian corporate governance. This paper serves an initial attempt to empirically assess the extent to which independent directors in Taiwan constrain tunneling. Taiwan serves as an appropriate jurisdiction for research in that private benefits agency problem is prevalent among Taiwanese public companies and that independent directors were newly introduced …

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …

Trusts As Institutions In China’S Financial Markets, Eric Linge

Eric Linge

China passed a law of trusts in 2001 intending it to be useful in financial markets. Drawing heavily from literature on economic institutions and economic development, I assess the potential success of the trust’s becoming an institution in China. The conclusion is that a legislature’s passing of a trust law does not make the trust an institution. Institutions are created once they are able to predictably incentivize and constrain behavior. China’s legal system does not generally provide predictability, and ultimately this limits the trust’s ability to develop into an institution.

Construction Defects: Are They “Occurrences”?, Chris French

Journal Articles

An issue in the area of insurance law that has been litigated frequently in recent years is whether construction defects are “occurrences” under Commercial General Liability (“CGL”) insurance policies. The courts have been divided in deciding the issue and in their approaches to analyzing the issue. This article addresses how the issue should be analyzed and concludes that construction defects are “occurrences”. The relevant rules of insurance policy interpretation dictate that construction defects are “occurrences”. Policy language should be interpreted in such a way as to fulfill the reasonable expectations of the policyholder when the policy is construed as a …

The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French

Journal Articles

How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …

The Legal Infrastructure Of Ex Post Consumer Debtor Protections, Melissa B. Jacoby

Faculty Publications

No abstract provided.

Will Green Building Contracts Transform Construction And Design Law?, Carl J. Circo

Carl J. Circo

Teaching Transactional Skills In Partnership With The Bar, Carl J. Circo

Carl J. Circo