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Selected Works

Commercial Law

Selected Works

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Articles 1 - 30 of 258

Full-Text Articles in Law

Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese Sep 2019

Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese

Alan J. Meese

Most scholars would agree that a merger between General Motors and Ford should not be judged solely by Delaware corporate law, even if both firms are incorporated in Delaware. Leaving the standards governing such mergers to state law would assuredly produce a race to the bottom that would result in unduly permissive treatment of such transactions. Similarly, if the two firms agreed to divide markets, most would agree that some regulatory authority other than Michigan or Delaware should have the final word on the agreement. Thus, in order to forestall monopoly or its equivalent, the national government must itself exercise ...


They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield Sep 2019

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Peter A. Alces

No abstract provided.


The Confluence Of Bulk Transfer And Fraudulent Disposition Law, Peter A. Alces Sep 2019

The Confluence Of Bulk Transfer And Fraudulent Disposition Law, Peter A. Alces

Peter A. Alces

No abstract provided.


Roll Over, Llewellyn?, Peter A. Alces Sep 2019

Roll Over, Llewellyn?, Peter A. Alces

Peter A. Alces

No abstract provided.


Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces Sep 2019

Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces

Peter A. Alces

No abstract provided.


Surreptitious And Not-So-Surreptitious Adjustment Of The U.C.C.: An Introductory Essay, Peter A. Alces Sep 2019

Surreptitious And Not-So-Surreptitious Adjustment Of The U.C.C.: An Introductory Essay, Peter A. Alces

Peter A. Alces

No abstract provided.


On The Ucc Revision Process: A Reply To Dean Scott, Peter A. Alces, David Frisch Sep 2019

On The Ucc Revision Process: A Reply To Dean Scott, Peter A. Alces, David Frisch

Peter A. Alces

No abstract provided.


Commercial Codification As Negotiation, Peter A. Alces, David Frisch Sep 2019

Commercial Codification As Negotiation, Peter A. Alces, David Frisch

Peter A. Alces

No abstract provided.


Commenting On "Purpose" In The Uniform Commercial Code, Peter A. Alces, David Frisch Sep 2019

Commenting On "Purpose" In The Uniform Commercial Code, Peter A. Alces, David Frisch

Peter A. Alces

No abstract provided.


An Agenda For Reform Of The Article 9 Filing System, Peter A. Alces, Robert M. Lloyd Sep 2019

An Agenda For Reform Of The Article 9 Filing System, Peter A. Alces, Robert M. Lloyd

Peter A. Alces

No abstract provided.


An Essay On Independence, Interdependence, And The Suretyship Principle, Peter A. Alces Sep 2019

An Essay On Independence, Interdependence, And The Suretyship Principle, Peter A. Alces

Peter A. Alces

In this article, Professor Peter A. Alces investigates the tension that exists between the independent and interdependent nature of contractual relations arising in suretyship agreements and letter of credit transactions. This discussion is particularly timely as the American Law Institute is currently revising both the Restatement of the Law of Suretyship and Article 5 of the Uniform Commercial Code, "Letters of Credit." This article discerns a basic incongruity between the two revisions' treatment of interrelated multiple party rights and discusses the consequences that this incongruity can be expected to have upon commercial transactions.


Mistake In Contract Law, Melvin A. Eisenberg Aug 2019

Mistake In Contract Law, Melvin A. Eisenberg

Melvin A. Eisenberg

Develops the legal rules that should govern mistake in contract law on a functional basis. Types of mistake that are relevant in contract law on the basis of their character; Reasons of efficiency and morality that apply to cases in which a non-mistaken party knew or had reason to know that a payment was mistakenly made; Distinction between mistaken factual assumptions and evaluative mistakes.


The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre K. Mulligan, Aaron K. Perzanowski Nov 2017

The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre K. Mulligan, Aaron K. Perzanowski

Deirdre Mulligan

No abstract provided.


Shareholder Exit Signs On Us And Eu Highways, Raluca Papadima Sep 2016

Shareholder Exit Signs On Us And Eu Highways, Raluca Papadima

Raluca Papadima

This article discusses legal exit rights (referred to in the United States as appraisal rights and in civil law Europe as withdrawal rights), in the United States, France and Romania. We selected these three countries because they are representative of strong, average and respectively weak capital markets, with varying levels of shareholder activism and litigation (high, normal and respectively low). Additionally, the selection of these countries enabled us to compare the structure of legal exit rights in the United States and in Europe and, within Europe, between two politically, economically and culturally sister countries (France and Romania) which should be ...


Legal Transplantation Or Legal Innovation? Equity-Crowdfunding Regulation In Taiwan After Title Iii Of The U.S. Jobs Act, Chang-Hsien Tsai Dec 2015

Legal Transplantation Or Legal Innovation? Equity-Crowdfunding Regulation In Taiwan After Title Iii Of The U.S. Jobs Act, Chang-Hsien Tsai

Chang-hsien (Robert) TSAI

Crowdfunding has caused a worldwide revolution in early-stage startup financing during recent years.  In the United States, the expansion of for-profit crowdfunding platforms to fund small businesses and startups prompted Congress to pass the game-changing law on equity crowdfunding, Title III of the JOBS Act in 2012 (“CROWDFUND Act”).  While its specific rules and regulations as adopted by the SEC takes effect this year, the substance of the JOBS Act as a whole is geared more towards the goal of capital formation, over the historically promoted goal of investor protection.  The use of equity crowdfunding has extended over to Taiwan ...


Fiduciary Duties Of Llc Managers: Are They Subject To Prospective Waiver Under The New York Llc Statute?, Jack Graves, Yelena Davydan Aug 2015

Fiduciary Duties Of Llc Managers: Are They Subject To Prospective Waiver Under The New York Llc Statute?, Jack Graves, Yelena Davydan

Jack Graves

No abstract provided.


Making Sense Of Successor Liability, Marie T. Reilly Jun 2015

Making Sense Of Successor Liability, Marie T. Reilly

Marie T. Reilly

A firm that buys assets from another firm ordinarily does not acquire liability to the seller's creditors simply by buying its assets. This ordinary rule is subject to important exceptions. The buyer's consent triggers an exception. If a buyer agrees to assume the seller's liability to third parties, it is for that reason liable. This article considers a more controversial exception - successor liability. When a court decides that an asset acquirer should be treated as a "successor" to the transferor, it is liable for the transferor's debts as though it were the transferor.


The Latent Efficiency Of Fraudulent Transfer Law, Marie T. Reilly Jun 2015

The Latent Efficiency Of Fraudulent Transfer Law, Marie T. Reilly

Marie T. Reilly

No abstract provided.


Contract Theory And The Failures Of Public-Private Contracting, Wendy Netter Epstein May 2015

Contract Theory And The Failures Of Public-Private Contracting, Wendy Netter Epstein

Wendy Netter Epstein

The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap. It considers how economic analysis of contract law, in particular efficiency theory and agency theory, bear upon the unique problems of public-private ...


Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor Apr 2015

Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor

Jarrod Tudor

Protectionism can come in a variety of methods including the use of internal taxation policies that discriminate against imports making those imports more expensive on the domestic market and thus favoring domestically-produced goods. Discriminatory taxation policies have been developed by member-states to mask protectionism by distinguishing products based on import status, product similarity, product life cycle, consumption, tax collection practices, transportation charges, and state aid. The Framers of the Treaty on the Functioning of the European Union (TFEU) wrote Article 110 with the objective in mind to prohibit internal taxation policies from discriminating against goods in made in other member-states ...


Some Basic Marxist Concepts To Understand Income Tax, John Passant Mar 2015

Some Basic Marxist Concepts To Understand Income Tax, John Passant

John Passant

The paper introduces readers to some basic Marxist concepts to give the building blocks for an alternative understanding of tax and perhaps even to inspire some to use these concepts and ideas in their future research. It argues that the tax system reflects the phenomena of wealth and income and that there is a deeper reality obscured and ignored by the income tax system as an outcrop of a capitalist system which does the same. This deeper reality is that capital exploits workers and that profit, rent, interest and the like are the money form of the unpaid labour of ...


An Overview Of The Principles Of Corporate Governance, Melvin Aron Eisenberg Mar 2015

An Overview Of The Principles Of Corporate Governance, Melvin Aron Eisenberg

Melvin A. Eisenberg

Presents an overview of the book 'Principles of Corporate Governance' in the United States. Background architecture of the Principles of Corporate Governance of the American Law Institute; Explanations of the policy reasons of the provisions covered by the Principles; Restatement rules of the relevant law.


Recovery Of Damages For Lost Profits: The Historical Development, Robert Lloyd, Nicholas Chase Mar 2015

Recovery Of Damages For Lost Profits: The Historical Development, Robert Lloyd, Nicholas Chase

Robert M Lloyd

ABSTRACT Recovery of Damages for Lost Profits: The Historical Development The rule of Hadley v. Baxendale is widely considered the most important rule of contract damages. In fact, however, the rule that damages must be proven with reasonable certainty is far more important in the modern practice of law. The reasonable certainty rule originated in Roman law and came to the common law through the civil law of Western Europe, developing first in the United States and spreading from the United States to England. The rule of Hadley v. Baxendale developed much in the same way, and, contrary to popular ...


Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French Feb 2015

Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French

Christopher C. French

Flooding is the most common natural catastrophe Americans face, accounting for 90% of all damage caused by natural catastrophes. Hurricanes Katrina and Sandy, for example, collectively caused over $160 billion in damage, but only approximately 10% of the Hurricane Katrina victims and 50% of the Hurricane Sandy victims had insurance to cover their flood losses. Consequently, both their homes and lives were left in ruins in the wake of the storms. Nationwide, only approximately 7% of homeowners have insurance that covers flood losses even though the risk of flooding is only increasing as coastal areas continue to be developed and ...


Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson Feb 2015

Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson

Andrew Emerson

No abstract provided.


Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson Feb 2015

Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson

Andrew Emerson

No abstract provided.


The Harmonization Of Browsewrap Agreements Abroad And The Protection Of American Consumers, Tinsley A. Ashley Jan 2015

The Harmonization Of Browsewrap Agreements Abroad And The Protection Of American Consumers, Tinsley A. Ashley

Tinsley A Ashley

No abstract provided.


Dirty Debts Sold Dirt Cheap, Dalie Jimenez Dec 2014

Dirty Debts Sold Dirt Cheap, Dalie Jimenez

Dalie Jimenez

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes ...


Reforming Preference Law, Dalie Jimenez Dec 2014

Reforming Preference Law, Dalie Jimenez

Dalie Jimenez

This article responds to Brook Gotberg's proposal to do away with preference liability in certain Chapter 11 cases and provides empirical evidence of preferential transfers in consumer Chapter 7 cases.


Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Riz Mokal Dec 2014

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Riz Mokal

Riz Mokal

Parties to repos, and to swaps and other derivatives are accorded privileged treatment under the bankruptcy laws of several dozen countries. Several key international “best practice” standards urge legislators in other jurisdictions to provide likewise. The beneficiaries of these privileges are solvent counterparties enabled, unimpeded by bankruptcy moratoria, to implement close-out netting arrangements and to dispose of collateral. The purported rationale is mitigation of systemic risk.
Taking a broad international perspective, this Article explores the “domino” contagion view of distress that motivates the privileges. This view derives from the outdated “microprudential” understanding of systemic risk, and is theoretically flawed and ...