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Commercial Law

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Full-Text Articles in Law

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 Reilly Jun 2015

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


The Role Of The Profit Imperative In Risk Management, Christopher French Dec 2014

The Role Of The Profit Imperative In Risk Management, Christopher French

Christopher C. French

Risks in the world abound.  Every day there is a chance that each of us could be in a car accident.  Or, one of us could be the victim of a tornado, flood or earthquake.  Every day someone becomes deathly ill from an insidious disease.  Our properties are in constant peril—one’s house could catch fire at any time or a tree could fall on it during a storm.  Any one of these events could have devastating financial consequences, and they are just a few of the many risks that impact our daily lives.  One of the principal ways ...


The Impact Of The Future Trade Secrets Directive On The Food Sector, Luis González Vaqué, Isabel Segura Roda Dec 2014

The Impact Of The Future Trade Secrets Directive On The Food Sector, Luis González Vaqué, Isabel Segura Roda

Luis González Vaqué

Proposal for a Directive of the European Parliament and of the Council on the protection of undisclosed know-how [COM(2013) 813 final de 28 November 2013]. We have explicitly chosen to analyse the proposal’s impact because, with regard to food production, we consider that careful consideration must be given to the extent to which the proposal affects areas such as information about food composition, the functioning of rapid alert systems, methods of traceability, the application of the precautionary principle, and different means of document access. We also believe it is important to acknowledge the intangible nature of the know-how ...


Controles De Câmbio No Brasil: Teoria E Prática, Bruno Meyerhof Salama Dec 2014

Controles De Câmbio No Brasil: Teoria E Prática, Bruno Meyerhof Salama

Bruno Meyerhof Salama

Para abordar a regulação do mercado de câmbio sob a ótica do Direito Econômico, organizo este texto em duas partes. Na primeira, apresento um panorama geral sobre a regulação cambial no Brasil. Inicialmente abordo, de forma concisa, (a) o conceito de controle de câmbio; a seguir (b) trago notas sobre a história da regulação cambial no Brasil; e, adiante, (c) apresento uma discussão resumida acerca de dificuldades que se põem para o profissional do direito que se depara com questões jurídicas concretas na seara cambial. A segunda parte ilustra os problemas acima indicados apresentando duas contendas jurídicas recorrentes atinentes à ...


Desconsideração Da Personalidade Jurídica Em Favor De Credores Comerciais, Bruno Meyerhof Salama, Alberto Barbosa Jr. Dec 2014

Desconsideração Da Personalidade Jurídica Em Favor De Credores Comerciais, Bruno Meyerhof Salama, Alberto Barbosa Jr.

Bruno Meyerhof Salama

Uma das questões mais litigadas hoje no Brasil é a responsabilização de sócios por dívidas da empresa. O tema se põe em diversas esferas, e tem dado causa a perplexidades variadas na teoria e na prática do direito. Este texto defende o argumento de que em geral é adequado, do ponto de vista econômico, preservar a limitação de responsabilidade dos sócios frente aos credores comerciais de sociedades em situação de insolvência. Como tal posição é consistente também com a legislação em vigor e com a tradição do Direito Privado brasileiro, sustentamos que a desconsideração da personalidade jurídica de sociedades limitadas ...


Who Sits On Texas Corporate Boards? Texas Corporate Directors: Who They Are & What They Do, Lawrence J. Trautman Nov 2014

Who Sits On Texas Corporate Boards? Texas Corporate Directors: Who They Are & What They Do, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Corporate directors play an important role in governing American business, in the capital formation process, and are fundamental to the stewardship of economic growth. Texas businesses play a disproportionately important role among the states in aggregate U.S. job creation, responsible for 37% of all net new American jobs since the post 2008-2009 recovery began. It is the job of the board of directors to govern the corporation. The duties and responsibilities of a corporate director include: the duty of care; duty of loyalty; and duty of good faith. This paper results from the author’s previously assembled biographical data ...


The Criminal Practitioner's Guide To Understanding The New York Securities Laws And Penal Law Scheme To Defraud, John C. Henry Oct 2014

The Criminal Practitioner's Guide To Understanding The New York Securities Laws And Penal Law Scheme To Defraud, John C. Henry

John C. Henry

No abstract provided.


Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson Aug 2014

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and ...


Reward The Stalking Horse Or Preserve The Estate: Determining The Appropriate Standard Of Review For Awarding Break-Up Fees In § 363 Sales, Zachary Frimet Aug 2014

Reward The Stalking Horse Or Preserve The Estate: Determining The Appropriate Standard Of Review For Awarding Break-Up Fees In § 363 Sales, Zachary Frimet

Zachary Frimet

Following the surge of bankruptcies in the wake of the Great Recession, a growing and somewhat controversial trend has emerged whereby companies seeking to purchase a debtor’s assets in bankruptcy frequently make use of Section 363 of the United States Bankruptcy Code (“§ 363”). In general, § 363 sales are accomplished via public auction. This aspect of § 363 exposes initial bidders, known in bankruptcy as “stalking horses bidders”, to the risk that they will commit time and resources in pursuit of the acquisition and yet fail to succeed as the prevailing bidder. To hedge against this risk, stalking horse bidders frequently ...


Antitrust Analysis After Actavis: Applying The Rule Of Reason To Reverse Payments, Benjamin Miller Aug 2014

Antitrust Analysis After Actavis: Applying The Rule Of Reason To Reverse Payments, Benjamin Miller

Benjamin Miller

Abstract In F.T.C. v. Actavis, Inc. the Supreme Court resolved a circuit split regarding the proper evaluation of reverse payment settlements under federal antitrust law, holding that they must be evaluated under a rule of reason analysis. However, the Court simultaneously created significant uncertainty by declaring that the lower courts were responsible for structuring the analysis. While a few cases are currently in the pre-trial phase, the only decisions relating to reverse payments since Actavis have been rulings on pre-trial motions—there have been no decisions on the merits. Given the intricate intersection between antitrust and intellectual property ...


Enforcement Of The Duties Of Directors By The Securities And Futures Investors Protection Center In Taiwan, Christopher Chao-Hung Chen Jun 2014

Enforcement Of The Duties Of Directors By The Securities And Futures Investors Protection Center In Taiwan, Christopher Chao-Hung Chen

Christopher Chao-hung CHEN

The purpose of this article is to examine the role of the Securities and Futures Investors Protection Center (SFIPC) in Taiwan in enforcing the duties of directors. To help shareholders or investors pursue a director for breach of company law or securities regulations, Taiwan created the SFIPC, a charity sanctioned by statutes, to bring class action or direct legal action on behalf of minority shareholders or individual investors. By conducting an empirical survey of judgments from lawsuits involving the SFIPC since its creation, we found that the SFIPC is generally very active in enforcing securities regulations but far less active ...


Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas Jun 2014

Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas

Jude A Thomas

Customer segmentation is a powerful analytical marketing practice that is employed by a wide range of businesses to segregate customers with similar characteristics into subgroups in order to inform operational business processes. Such practices allow firms to better allocate their resources in order to form more profitable customer relationships, but they also have the capacity to lead to unfair discriminatory impact upon customer groups. Current legislation is largely unprotective of customers so positioned, but recent trends in the insurance and lending industries suggest that a broader application of anti-discrimination laws could foretell a future of greater restrictions on the implementation ...


Testimony To The Committee On Financial Institutions, Kansas House Of Representatives March 13, 2014, Brian M. Mccall Mar 2014

Testimony To The Committee On Financial Institutions, Kansas House Of Representatives March 13, 2014, Brian M. Mccall

Brian M McCall

This document contains the text of testimony given before the Committee on Financial Institutions, Kansas House of Representatives March 13, 2014, in a hearing to address potential changes to the regulation of payday lending in Kansas.