Law Commons^™

Us Trade Policy, China And The Wto (Foreword), Paolo Davide Farah

Book Chapters

In ‘U.S. Trade Policy, China and the WTO’, Nerina Boschiero addresses a key topic in contemporary international economic law and global governance. By focusing on a turning point in global politics and the shaping/framing of trade policy in the U.S.– the election of President Donald Trump sheds light on the tumultuous process of reshaping of global governance. The crisis of multilateralism has been discussed at length in academia and mainstream media. However, little attention has been paid to how the U.S. is reacting to the rise of China in the global order, in practical terms. In particular, focus …

Making Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

People value virtual things—such as NFTs—because such assets trigger and satisfy deep-seated narratives of property and ownership. The cause of the recent series of failures to regulate virtual assets, and the resulting crashes, has been a failure to take seriously the ways people perceive and use the assets. Current legal frameworks fail to support buyers’ and users’ expectations of ownership in virtual things they purchase.

Making virtual things is a matter of social construction of value. Virtual things, like real-world things, have value because a community values them for a purpose. It therefore makes no sense to discount how and …

Teaching Slavery In Commercial Law, Carliss N. Chatman

Scholarly Articles

Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history, the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans, combined with standards developed to facilitate the growth of the international commodities market for products including cotton, contributed to the current beliefs of business investors and even how communities of color are still governed and supported. The impact of that shift in …

Unfair By Default: Arbitration's Reverse Default Judgment Problem, Alexi Pfeffer-Gillett

Scholarly Articles

It is a foundational principle of civil law that a defendant who fails to respond to allegations is deemed to have admitted those allegations and can be subjected to default judgment liability. This threat of default judgment incentivizes defendants to respond to claims, thereby discouraging delay tactics and helping ensure cases are resolved efficiently on the merits.

In consumer and employment arbitration, though, the fairness and efficiency benefits of traditional default judgment are flipped, rewarding rather than punishing unresponsive defendants. This difference from civil litigation arises out of arbitration’s fee structures: if a defendant-company fails to pay its share of …

M/S Bremen V Zapata Off -Shore Company: Us Common Law Affirmation Of Party Autonomy, Ronald A. Brand

Book Chapters

In the 1972 decision in M/S Bremen v Zapata Off -Shore Company, the U.S. Supreme Court brought together the development of doctrines dealing with party autonomy in choice of court and forum non conveniens. Especially when considered alongside developments favoring arbitration clauses in U.S. courts, the case provides a rich study of conflicts of laws jurisprudence in the twentieth century. This chapter begins with a discussion of fundamental elements of the development of party autonomy in U.S. law and the historical context of the law prior to The Bremen. A brief mention of how one prominent political family …

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Cftc & Sec: The Wild West Of Cryptocurrency Regulation, Taylor Anne Moffett

Law Student Publications

Over the past few years, a turf war has been brewing between the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”) over which agency should regulate cryptocurrencies. Both agencies have pursued numerous enforcement actions over the cryptocurrencies they believe to be within their jurisdiction. This turf war has many moving components, but the focus always comes back to one question: which cryptocurrencies are commodities, and which cryptocurrencies are securities? The distinction is important because the CFTC has statutory authority to regulate commodities, whereas the SEC has statutory authority to regulate securities. This Comment rejects the pursuit …

Commercially Reasonable Sales In The 21st Century, David G. Carlson

Articles

It has been over 20 years since the 2000 amendments profoundly amended the foreclosure procedures in Article 9 of the UCC. This article reviews how the amendments have fared in the case law since then.

Public Ownership And The Wto In A Post Covid-19 Era: From Trade Disputes To A 'Social' Function, Paolo Davide Farah, Davide Zoppolato

Articles

Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Where the market cannot, or does not want to, provide goods and services, the State uses different tools to intervene, influence, and control some aspects of the private sphere of expression of its citizens in the name and interest of the collectivity. Although, in the past century, this behavior was accepted as one of the expressions of the public authority and part of the social contract, this perception has shifted partially in accordance with the wave of privatization programs initiated …

The Failure Of Market Efficiency, William Magnuson

Faculty Scholarship

Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, …

An Essay About Privacy, Ronald Griffin

Journal Publications

Jessye Norman was an American opera singer. She died on October 1, 2019. On October 2, 2019, my wife got a grim diagnosis that put me in a stupor and reminded me, now more than ever, that my generation (that did so much good in the world) stands in line waiting for the Grim Reaper’s call. In a seventy-years (that have gone by too fast) I have watched my peers run from the realms of privacy, spaces where people implemented life plans uninterrupted by neighbours that were discernible, palpable, and real to everybody, to a realm where there is none. …

Achieving Law Reform Sometimes Requires A Strong Defense, William H. Henning

Faculty Scholarship

In 2019, a joint drafting committee authorized by the Uniform Law Commission and the American Law Institute began work on a sweeping set of amendments to the official text of the Uniform Commercial Code (UCC) that address issues arising from emerging technologies. The amendments were approved by the sponsoring organizations at their 2022 annual meetings, and efforts are already underway to gain uniform nationwide enactment by state legislatures. The most significant changes to the UCC consist of a new Article 12 dealing with digital assets and amendments to Article 9 that facilitate the leveraging of these assets. Also in 2019, …

Elmore Entrepreneurship Law Clinic Connects To Iu Ventures, Strengthens Reach In Venture Capital, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The Indiana University Maurer School of Law’s Elmore Entrepreneurship Law Clinic has strengthened its connection with a university affiliate designed to help students, faculty, staff, and alumni advance startups and new companies.

Professor Mark E. Need, director of the Elmore Entrepreneurship Law Clinic, has been appointed a Venture Legal Analyst-in-Residence with IU Ventures. Through the Executive in Residence Program, which IU Ventures launched last year, experts in a variety of startup areas help accelerate the development of new ventures by sharing insights and real-world experience with the founders and leaders of companies in the IU Ventures portfolio. They …

National Pork Is A Bibb Case, Not A Pike Case, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

In October 2022, the U.S. Supreme Court heard oral argument in National Pork Producers Council v. Ross, a Ninth Circuit case out of California, dismissing a challenge to Proposition 12, which, inter alia, bans the sale of wholesome pork (without regard to where it was produced) from the offspring of breeding sows confined in a manner California voters consider “cruel.” National Pork thus puts the Court in the position of choosing between the often-criticized undue-burden strand of the dormant Commerce Clause and California’s request that the Court approve its ban on out-of-state pork not because of the products’ qualities, but …

The Obsolescence Of Blue Laws In The 21st Century, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

Depending on where in the United States one is located on any given Sunday or Christian holiday, it is against the law to buy a beer or a car, go shopping, hunt, or even play Bingo. This prohibition is a direct result of Blue Laws, alternatively called Sunday Closing Laws or Lord’s Day Acts. Blue Laws frustrate commerce and recreational activities. While at one time they might have aligned with societal values or served a practical secular purpose, such as providing workers with a day of rest, modern society renders Blue Laws obsolete and nonsensical.

Due to rapid change in …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2021 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions.

A Proposed Sec Cyber Data Disclosure Advisory Commission, Lawrence J. Trautman, Neal Newman

Faculty Scholarship

Constant cyber threats result in: intellectual property loss; data disruption; ransomware attacks; theft of valuable company intellectual property and sensitive customer information. During March 2022, The Securities and Exchange Commission (SEC) issued a proposed rule addressing Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure, which requires: 1. Current reporting about material cybersecurity incidents; 2. Periodic disclosures about a registrant’s policies and procedures to identify and manage cybersecurity risks; 3. Management’s role in implementing cybersecurity policies and procedures; 4. Board of directors’ cybersecurity expertise, if any, and its oversight of cybersecurity risk; 5. Registrants to provide updates about previously reported cybersecurity …

Article 9 Foreclosures: When Is A Sale Not A Sale?, David G. Carlson

Articles

Article 9 of the Uniform Commercial Code empowers a secured creditor to sell collateral. This power is circumscribed. A secured party may not sell before default. A secured party cannot self-deal in a private sale. A pledgee of securities can sell to itself in a private sale if the securities are of a kind that is customarily sold on a recognized market, but the law is unclear what formalities the pledgee must meet to memorialize the sale. A secured party may not sell in a commercially reasonable manner to a buyer with notice of the commercial unreason. This article explores …

Novation And Advance Consent, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

Professor Goode once observed that “Novation need not be left to ad hoc agreement; it is open to the parties to provide for it in advance and in particular to establish a contractual mechanism by which novation takes place automatically on the occurrence of a designated act or event”. This deceptively straightforward proposition is examined in the present article. It explores the legal footing for, and the risks in adopting a pristine version of, the proposition, and considers possible safeguards that may be incorporated within the process of scrutiny, if in any case there arises concern over the effectiveness of …

Amicus Curiae Brief Of The Hon. Judith Fitzgerald (Bankruptcy Judge, Ret.), And Law Professors Pamela Foohey, George Kuney, Robert Lawless, Jonathan Lipson, Bruce A. Markell, Nancy Rapoport, Richard Squire, Ray Warner And Jack Williams, In Support Of The Petitioner, Pamela Foohey

Amicus Briefs

Your amici have taught courses on bankruptcy and commercial law, conducted research, and have been frequent speakers and lecturers at seminars and conferences throughout the United States. Each is highly regarded in this field, and each has made substantial contributions to bankruptcy scholarship and jurisprudence.

The question presented to this Court is as follows: “Whether Bankruptcy Code Section 363(m) limits the appellate court’s jurisdiction over any sale order or order deemed integral to a sale order. . . .” (emphasis added). Pet. i. The answer is that § 363(m) does not limit appellate review of the transaction involved in this …

A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand

Articles

In Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63 Harvard International Law Journal Online 1(2022), available at https://harvardilj.org/2022/02/a-hague-convention-on-parallel-proceedings/ and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894502, we argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group …

Amazon As A Seller Of Marketplace Goods Under Article 2, Tanya J. Monestier

Journal Articles

You have probably purchased goods on Amazon. Did you know that if the goods you purchased on Amazon turn out to be defective and cause serious personal injury, Amazon is probably not liable for them? Did you know that even though you placed an order on Amazon, gave payment to Amazon, and received the goods in an Amazon box, there is a good chance that the goods are not “sold by” Amazon—but are instead sold by a third-party seller? Did you know that Amazon tries to avoid liability for goods sold on its platform on the technicality that it does …

Brief Of Professors Michael Knoll And Ruth Mason As Amici Curiae Supporting Petitioners In National Pork Producers Council V. Ross, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

The district court erred when it concluded that because Proposition 12 applies only to in-state sales, it could not be extraterritorial. On the contrary, because California regulates pork production based on domestic, inbound, and outbound sales, its regulation is internally inconsistent and overbroad. As an obligation of interstate comity, this Court has understood extraterritoriality to require the basis of regulation to be internally consistent. A regulation is internally consistent when, if every state regulated using the same nexus as the challenged state, cross-border commercial activity would not be regulated by more than one state. Proposition 12 cannot meet this basic …

Consumer Protection Of Persons With Disabilities Amidst The Covid-19, James Keith C. Heffron

Center for Business Research and Development

The Persons with Disabilities (PWD) sector was one of the most overlooked and affected sectors during the COVID-19 pandemic. As consumers, PWDs have suffered difficult challenges in the access of essential goods and services, including healthcare, and these challenges have been unduly aggravated because of the crisis. The article exposes and examines the negative impact of the crisis on the consumer rights and behavior of PWDs with a special focus on the novel barriers brought about by the pandemic on their right to access. The current pre-pandemic legislation is not adequate to protect PWDs from these novel barriers as there …

Liability For Non-Disclosure In Equity Financing, Albert H. Choi, Kathryn E. Spier

Law & Economics Working Papers

The paper analyzes the effects of holding firms liable for non-disclosure of material information when raising capital. We develop a model in which a privately-informed entrepreneur can choose to withhold information from prospective investors when issuing and selling stock and the investors can bring suit against the firm ex post for (alleged) non-disclosure. The damage payment received by the investors is partially offset by the reduced value of their equity stake. The analysis shows that the equilibrium depends on, among others, (1) the amount of personal capital the entrepreneur has to commit, (2) the frequency with which the entrepreneur is …

Developing Brunei Darussalam As An Asean Hub For International Islamic Finance Dispute Resolution: Opportunity Or Over-Ambition?, Nobumichi Teramura

Centre for Commercial Law in Asia

International dispute resolution is only at an early stage of development in Brunei. Although the government established the Brunei Darussalam Arbitration Centre (BDAC) in 2014 to provide domestic and international users with arbitration and mediation services, the institution has yet to attract a significant caseload. This is in contrast with neighbouring countries such as Singapore (a regional hub for international dispute resolution) and Malaysia (an active and rising centre of dispute settlement). Their flagship arbitration institutions, the Singapore International Arbitration Centre (SIAC) and the Asian International Arbitration Centre (AIAC) (formerly known as the Kuala Lumpur Regional Centre for Arbitration), handle …

Reflection On Wise Cities And Ai In Community: Sustainable Life Spaces And Kampung Storytelling, Mark Findlay, Li Min Ong

Centre for Commercial Law in Asia

This short paper is a reflection following our presentation made at the ASEAN Law Research Network’s conference on Sustainable Development and Commerce in ASEAN Cities. We had wanted to introduce our thinking, given the strong interest in developing smart cities in the region. We want to emphasise the importance of multidisciplinary approaches in the sustainable development of cities, particularly the voice of social scientists which tends to get left out in discussions over technology. In the race towards “smart” urbanisation, there is a real risk that history and culture – things that give a city “life” – could get decimated …

Toward An Environmentally Sustainable City In The Light Of Industrial Revolution 4.0: A Case Study Of Ho Chi Minh City, Tran Viet Dung

Centre for Commercial Law in Asia

Like other large cities in ASEAN, Vietnamese cities have been facing serious urban environment problems such as air pollution, land degradation, weak water drainage and lack of green spaces. These problems are caused by unsustainable patterns of development. City governments have failed to coordinate and integrate city planning consistently. Trends show that governments prefer to take short-term economic profit rather than focus on environmental protection.

Legal Challenges And Opportunities For Peer-To-Peer Electricity Trading In Thailand, Piti Eiamchamroonlarp

Centre for Commercial Law in Asia

Electricity is a critical resource for a country as it powers devices and enables modern living with digital transactions, crypto mining, deployment of electric vehicles (EV) etc. Given these emerging activities, electricity demand is forecasted to keep rising. The peak electricity load in Thailand for 2018, 29,969 MW, will likely increase to 53,997 MW by 2037. However, Thailand, as a party to the United Nations Framework Convention on Climate Change, must consider negative impacts on the environment from electricity generation. To meet these challenges, renewable resources are needed for cleaner electricity generation and ensuring security of electricity supply, while simultaneously …

Indonesia's Termination Of Bilateral Investment Treaties, Lucas Jun Hao Wong

Centre for Commercial Law in Asia

Indonesia holds a vast source of untapped potential in terms of its ability to influence global trade. While Indonesia has been a member of the World Trade Organization (WTO) since 1 January 1995, its integration into global value chains remains relatively weak, with the ratio of its trade in goods and services to GDP falling from 48.6% in 2013 to below 40% in 2019. Nonetheless, as Southeast Asia’s largest economy and a member of the G20, Indonesia possesses the capacity to become a key player on the world stage.