Law Commons^™

Clicking And Cringing, Nancy Kim

Nancy Kim

Shrinkwrap, clickwrap and browsewrap licenses have complicated contract law by introducing non-traditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in “rolling contract” situations. Some commentators have argued that existing contract law doctrines – such as unconscionability and good faith – are sufficient to address digital-era contracting dilemmas. While …

Renting The Good Life, Jim Hawkins

Jim Hawkins

Academic literature and court decisions are replete with calls to ban or severely inhibit the rent-to-own industry. The argument is simple enough: Rent-to-own firms charge exorbitant prices to the most needy and vulnerable segments of society. The case for burdensome regulations, however, is much more difficult to make out than past scholarship has admitted. For the most part, academics have proceeded directly to propose specific regulations for the industry without first carefully analyzing the rent-to-own business or the reasons for imposing drastic regulations. This Article examines the theoretical justifications for regulating the rent-to-own industry against the backdrop of interviews I …

Piercing The Corporate Veil In Regulated Industries, Douglas G. Smith

Douglas G Smith

This article addresses the theoretical justifications for limited liability and the exceptions to limited liability under the various veil piercing doctrines. In particular, the article considers whether veil piercing is appropriate in regulated industries such as insurance and banking, which have comprehensive regulatory structures that are designed to prevent much of the conduct that veil piercing is designed to remedy. The article concludes that veil piercing is not justified under such circumstances because the economic costs outweigh any benefits.

What Weyerhaeuser Suggests For Punitive Damages, Nickolai G. Levin

Nickolai G. Levin

In Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 127 U.S. 1069 (2007), the Supreme Court addressed the antitrust claim of “predatory bidding”—i.e., that a manufacturer paid too much for an “input.” Although the Ninth Circuit allowed predatory-bidding liability to be based on the jury’s subjective estimation that the defendant paid more than “necessary” for an input, the Supreme Court reversed, holding that the objective, two-part “predatory pricing” test from Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), should govern predatory-bidding claims instead. Otherwise, the Court explained, there would be a serious risk of chilling procompetitive …

Large-Scale Disasters Attacking The American Dream: How To Protect And Empower Homeowners And Lenders, Matthew D. Ekins

Matthew D Ekins

The 2005 hurricane season reminded the world that such catastrophes can and do occur anywhere at anytime. Recovery efforts continue long after tides recede and after-shocks cease. In the context of Hurricane Katrina, this article examines the homeowner-lender relationship to determine risks natural disasters pose to the mortgage industry, likely repercussions a fallout in the mortgage industry may have on the health of the general economy, and what preventative steps have been and may be taken to prevent further economic suffering in a post-catastrophe environment.

Usury Law, Payday Loans, And Statutory Sleight Of Hand: An Empirical Analysis Of American Credit Pricing Limits, Christopher L. Peterson

Christopher L Peterson

In the Western intellectual tradition usury law has historically been the foremost bulwark shielding consumers from harsh credit practices. In the past, the United States commitment to usury law has been deep and consistent. However, the recent rapid growth of the “payday” loan industry belies this longstanding American tradition. In order to understand the evolution of American usury law, this paper presents a systemic empirical analysis of all fifty state usury laws in two time periods: 1965 and the present. The highest permissible price of a typical payday loan authorized under each state’s usury law was calculated. These prices were …

License To Sue?, Lorelei Ritchie De Larena

Lorelei Ritchie de Larena

Courts, commentators and practitioners have for too long viewed intellectual property law as a discrete discipline, without putting it into the proper theoretical context of general jurisprudence. Intellectual property law cannot and must not exist on its own, outside the normative framework of overlapping legal institutions. Even within the rubric of intellectual property, courts have overlooked the potential for cross-applying relevant doctrines between patent, copyright, and trademark law. Certainly, when intellectual property disputes touch on other disciplines, such as civil procedure, contract, or tort law, courts have tended to overlook their synergies, focusing instead on only one of several important …

Intermediated Securities, Legal Risk, And The International Harmonisation Of Commercial Law, Luc Thevenoz

Luc Thevenoz

Investors do not physically hold their investment securities any more. Securities are held and transferred through a complex, sophisticated, and international network of financial intermediaries, including central securities depositories, investment banks, and brokers-dealers. Investors buy and sell their holdings by having book-entries made to their securities accounts; they provide collateral to secured lenders by book-entries or by control agreements. Because transfers and collateral transactions are critical to the liquidity of the financial markets and to financial stability, market participants and regulators have become increasingly concerned with the legal soundness, the internal consistency, and the international compatibility of national laws regulating …

Declaring Force Majeure: Veracity Or Sham?, Leon E. Trakman

Leon E Trakman Dean

The widespread practice by large scale producers, like Exxon Mobil and BP of declaring force majeure has created enormous legal and contractual problems. The practice is used, not only to respond to devastating disasters like Hurricane Katrina, but also to defects in pipelines amounting to little more than wear and tear The result is that customers are left waiting for goods or forced to pay higher prices until their suppliers decide to lift their declarations and resume performance. This article challenges such declarations, arguing that they often fail to comply with both the law set out in article 2-615 of …

The Uptick Rule Of Short Sale Regulation - Can It Alleviate Downward Price Pressures From Negative Earnings Shocks?, Lynn Bai

Lynn Bai

This paper empirically examines the effect of the uptick rule (including the bid test applicable to NASDAQ stocks) of short sale regulations on stock prices and short selling activities immediately after negative earnings surprises that occurred during the period of May to November 2005. It compares price paths and short selling activities of stocks restricted by the uptick rule with stocks that were exempted from the rule as a result of the SEC’s Pilot Program. The study has not found any evidence that prices of stocks subject to the rule declined at a slower speed than prices of exempted stocks …

Debt To Odious Finance: Avoiding The Externalities Of A Functional Odious Debt Doctrine, Christiana Ochoa

Christiana Ochoa

Christiana Ochoa* Abstract The Odious Debt Doctrine has limped along in the legal imagination for over 100 years and by some estimates even since Aristotle. In recent years, and particu-larly in recent months, legal theorists and practitioners have attempted to define the contours and details of this controversial and undeveloped doctrine. This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the spill-over effects and externalities that would ensue if this doctrine were ever made regularly operative. Many commentators have noted the in-creased costs of borrowing and lending that would result from the doctrine. …

Bond Defaults And The Dilemma Of The Indenture Trustee , Steven L. Schwarcz, Gregory M. Sergi

Steven L Schwarcz

This article, attached for your review, rethinks the standard of care for trustees of public bonds. The present standard is intolerably vague, generating cost and inefficiency in the public bond markets. Yet bondholder governance is increasingly recognized as a critical component of the larger realm of corporate governance, and indeed more than eighty percent of capital market financing raised by U.S. corporations now occurs through public bond offerings. This article examines how that standard of care should be modified to make indenture trustees more effective.

The Secured Party Fiddles While The Article 2 Statute Of Limitations Clock Ticks--Why The Article 2 Statute Of Limitations Should Not Apply To Deficiency Actions, Richard Nowka

Richard H. Nowka

This article discusses the appropriate statute of limitations for a secured party’s action to recover a deficiency remaining after the debtor defaults in a transaction that combines a sale of goods with a purchase-money security interest. Most courts have applied the Article 2 statute of limitations upon the ground that the action is connected to the sale aspects of the transaction because it seeks to recover the unpaid portion of the purchase price. The premise of the article is that those courts are ignoring several sources of law that indicate Article 2 does not govern this action. Those sources are: …

Search And Seizure On Steroids: United States V. Comprehensive Drug Testing And Its Consequences For Private Information Stored On Commercial Electronic Databases, Aaron S. Lowenstein

Aaron S Lowenstein

This article critiques the Ninth Circuit’s recent decision in United States v. Comprehensive Drug Testing. This case received some attention because it stems from the investigation into the use of steroids in Major League Baseball. It should have received much more attention, however, because of its troubling expansion of the government’s authority to access our private digital information without a warrant.

Executing a search warrant for information stored on a computer database poses special problems. Because targets of government investigations can easily conceal incriminating digital evidence, investigators often must search an entire computer hard drive in order to effectively execute …

Patent Dispute Identification In China:Harmony Between The Protection And Restraint, Dong Zhang

Dr. Dong Zhang

How to keep a balance between restraining patent abuse and weakening local intervention has been a global issue, especially in such developing countries as China, while meeting a serious challenge of intellectual property protection. This article argues that patent right is definitely a kind of property, which must remain fully within the reach of antitrust law and it is against regulating special independent provisions in the drafted Chinese antitrust law to emphasize unduly on IP abuse. This requires an inquiry into intent that is consistent with antitrust essentials and preserves legitimate patent claims.

Somebody Has To Pay: Products Liability For Spyware, Jacob R. Kreutzer

Jacob R Kreutzer

It can be unsettling to discover that you have spyware (software that tracks user behavior and displays advertisements) installed on your computer. The signs of its presence can vary: a new toolbar may appear in your browser, or you may experience a proliferation of pop up advertisements. Whatever the symptoms, the cause is the same: a piece of software that was inconspicuous (or invisible) at the time of its installation is now dedicating itself to disrupting your use of your computer. A persistent consumer will likely be able to identify spyware that is present on his computer, whether through technological …

Developing Governance And Regulation For Emerging Capital And Securities Markets, Ali Adnan Ibrahim

Ali A Ibrahim

This paper discusses various legal and regulatory issues for developing strong capital and securities markets in the transition economies. Toward this end, the paper analyses the available literature, and emphasizes that: (i) the development of corporate governance should be gradual and must take into consideration the customary laws that impact on the ownership structures and related preferences for doing business in the emerging markets; and (ii) the foreign investment policies should be consistent with the development of corporate governance and vice versa.

Book Review: Harmonizing Trade Practices In The Eu: Sweet Sounds Or Sour Notes?, James P. Nehf

James P Nehf

This is a book review of a monograph that analyzes the European Union Unfair Commercial Practices Directive. It includes a brief synopsis of the Directive and discusses its likely impact on consumer protection laws in the EU.

"Legal Traditions" And International Commercial Arbitration, Leon E. Trakman

Leon E Trakman Dean

“LEGAL TRADITIONS” AND INTERNATIONAL COMMERCIAL ARBITRATION The Common and Civil Law systems have guided the enactment of major codes, laws and guidelines that regulate international commercial arbitration. From the doctrine of freedom of contract to the procedural rules governing arbitration hearings, international arbitration has built its legal culture around these two traditions. Recent concerns expressed by luminaries like William Slate, President of the American Arbitration Association, challenge the pervasive influence of these traditions over international commercial arbitration. Is the American tradition of law practice too litigious to serve as a viable model for international commercial arbitration? Is arbitration unduly preoccupied …

"Legal Traditions" And International Commercial Arbitration, Leon E. Trakman

Leon E Trakman Dean

The Common and Civil Law traditions underpin international commercial arbitration. From the doctrine of freedom of contract to the procedures governing arbitral hearings, international arbitration has built its legal culture around these two great traditions. Recent concerns expressed by luminaries like William Slate, President of the American Arbitration Association, challenge the pervasive influence of these legal traditions over modern arbitration. Is the practice of law in the United States too litigious to serve as a viable model for international commercial arbitration? Is the culture of international arbitration unduly steeped in the Common and Civil Law at the expense of other …

Unofficial Official Comments, Nigel Stark

Nigel Stark

My Note examines Justice Antonin Scalia’s “plain meaning” theory and asks whether, assuming that theory is correct, whether official comments should be used to interpret a statute. Specifically, I examine the use of the UCC’s Official Comments and its various state variations. I conclude that, under Justice Scalia’s theory, the use of official comments is to interpret the statute is improper and should be avoided.

Dr. Jones And The Raiders Of Lost Capital: Hedge Fund Regulation, Part Ii, John W. Verret

John W Verret

Hedge funds can sometimes achieve remarkable returns. The market fees exceed that of other asset classes, leading some fund managers to engage in illicit behavior, including fraud, that violates their duty to their investors and tempts institutional investors to violate their fiduciary duty to their principals. I will examine the hedge fund registration requirement struck down during the summer of 2006, as well as the tools used by other regulators to oversee institutional investors. This study relies on a survey of literature on financial regulation, commentary on the hedge fund registration rule, models of self-regulation, and examples in other areas …

Bridging The Gaps: How Cross-Disciplinary Training With Mbas Can Improve Professional Education, Prepare Students For Private Practice, And Enhance University Life, Seth Freeman

Seth Freeman

What can law schools do to address the criticisms in the Carnegie Foundation’s January 2007 report on legal education? That report found that law schools are not teaching students how to be competent lawyers. One particularly promising answer is cross-disciplinary training with MBAs, which leading law schools such as NYU, Stanford, the University of Pennsylvania, and Harvard have embraced in recent years. In this article, I explore the value of such courses, and discuss a cross-disciplinary course that I successfully debuted in the Fall of 2006 at NYU entitled, “Negotiating Complex Transactions with Executives and Lawyers.” More generally, I argue …

Efficient And Inefficient Debt Restructuring: A Comparative Analysis On Voting Rules In Workouts, Hyun Chul Lee

Hyun-Chul Lee

Two jurisdictions, Korea and America, have contrasting legal rules governing voting in workouts: Voting Mandating Rule and Voting Prohibition Rule. Voting in a bond workout has long been prohibited in the Trust Indenture Act of the United States. In stark contrast, Korea enacted a unique statute that mandated a voting scheme in workout in an effort to resolve corporate insolvencies crisis and incompetent bankruptcy institutions. Voting facilitates the completion of workouts, but it gives majority creditors an opportunity to disproportionately benefit from workouts. I explore the contrariness of the two seemingly unrelated statutes, and bring their respective implications for efficiency …

E-Commerce Taxation And Cyberspace Law: The Integrative Adaptation Model, Rifat Azam Dr.

Rifat Azam Dr.

This article argues that the current debate on international taxation of e-commerce is totally tax oriented and ignores cyberspace law and that this separation is unjustified and harmful to the development of e-commerce taxation law. Mutual intellectual feeding and integrative debate that is open and interesting to the general legal scholarly community is necessary to improve ecommerce law. To begin a debate on e-commerce taxation as part of cyberspace law, the author describes and incorporates for the first time the primary cyberspace literature into the e-commerce taxation debate. The author draws lessons from judicial jurisdiction in cyberspace, criminal law in …

A Proposal For Allowing Rules Of Law To Preserve Principles Of Equity: Case Comment On Abry Partners V, L.P. V. F & W Acquisition Llc, 891 A.2d 1032 (Del. Ch. 2006), Nina C. Baccala

Nina C. Baccala

No abstract provided.

“The (Cisg) Road Less Travelled”: Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

Antonin I. Pribetic

This case comment discusses two recently released Canadian decisions on the enforceability of arbitration clauses from the perspective of the United Nations Convention on Contracts for the International Sale of Goods 1980 CISG). At first glance, the Supreme Court of Canada's decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the CISG to the overall dispute. Interestingly, the same choice of forum and choice of …

Bringing Locus Into Focus: A Choice-Of-Law Methodology For Cisg-Based Concurrent Contract And Product Liability Claims, Antonin I. Pribetic

Antonin I. Pribetic

The article discusses choice-of-law theories for both contractual and tort/product liability claims governed by the CISG. The underlying theme is that concurrent claims are not necessarily equivalent claims. While concurrent liability in contract and tort (namely, product liability) may be applicable or alternative remedies available, the focus of the CISG is the harmonization of rules governing international sale contracts. The article argues that factors such as the place of injury or where the damages are sustained are less relevant than the situs of the contract, based upon the view that, without privity of contract, the concurrent tort would not arise. …

Renegotiation And Adaptation Clauses In International Investment Contracts, Revisited, John Gotanda

John Y Gotanda

No abstract provided.

Setting Arbitrators’ Fees: An International Survey, John Y. Gotanda

John Y Gotanda

No abstract provided.