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Full-Text Articles in Law

Prostitution 3.0?, Scott R. Peppet Jan 2013

Prostitution 3.0?, Scott R. Peppet

Articles

This Article presents an entirely novel approach to prostitution reform focused on incremental market improvement facilitated by information law and policy. Empirical evidence from the economics and sociology of sex work shows that new, Internet-enabled, indoor forms of prostitution may be healthier, less violent, and more rewarding than traditional street prostitution. This Article argues that these existing "Prostitution 2.0" innovations have not yet improved sex markets sufficiently to warrant legalization. It suggests that creating a new "Prostitution 3.0" that solves the remaining problems of disease, violence, and coercion in prostitution markets is possible, but would require removing legal ...


Contract As Pattern Language, Erik F. Gerding Jan 2013

Contract As Pattern Language, Erik F. Gerding

Articles

Christopher Alexander’s architectural theory of a "pattern language" influenced the development of object-oriented computer programming. This pattern language framework also explains the design of legal contracts. Moreover, the pattern language rubric explains how legal agreements interlock to create complex transactions and how transactions interconnect to create markets. This pattern language framework helps account for evidence, including from the global financial crisis, of failures in modern contract design.

A pattern represents an encapsulated conceptual solution to a recurring design problem. Patterns save architects and designers from having to reinvent the wheel; they can use solutions that evolved over time to ...


Veil-Piercing Unbound, Peter B. Oh Jan 2013

Veil-Piercing Unbound, Peter B. Oh

Articles

Veil-piercing is an equitable remedy. This simple insight has been lost over time. What started as a means for corporate creditors to reach into the personal assets of a shareholder has devolved into a doctrinal black hole. Courts apply an expansive list of amorphous factors, attenuated from the underlying harm, that engenders under-inclusive, unprincipled, and unpredictable results for entrepreneurs, litigants, and scholars alike.

Veil-piercing is misapplied because it is misconceived. The orthodox approach is to view veil-piercing as an exception to limited liability that is justified potentially only when the latter is not, a path that invariably leads to examining ...


Federal Judicial Center International Litigation Guide: Recognition And Enforcement Of Foreign Judgments, Ronald A. Brand Jan 2013

Federal Judicial Center International Litigation Guide: Recognition And Enforcement Of Foreign Judgments, Ronald A. Brand

Articles

This publication was prepared for the U.S. Federal Judicial Center as a guide for Federal Judges on the recognition and enforcement of foreign judgments. It covers applicable law in federal courts, the issues raised when a foreign judgments recognition case, grounds for non-recognition (and their sources in the law), and recent developments that may affect future adjustments in the rules. The law in those states that have adopted one of the Uniform Acts is covered, as is the law in states that remain under a common law system for recognition and enforcement of judgments. Also covered is the 2005 ...


Book Review -- William Patry, How To Fix Copyright, Michael J. Madison Jan 2013

Book Review -- William Patry, How To Fix Copyright, Michael J. Madison

Articles

I review William Patry’s book How to Fix Copyright. The book is noteworthy for its ambitious yet measured effort to diagnose where copyright law has gone astray in recent years. It is less successful with respect to proposing possible changes to the law. Most interesting are parallels between How to Fix Copyright and an earlier comprehensive look at copyright law in the digital era: Paul Goldstein’s Copyright’s Highway: From Gutenberg to the Celestial Jukebox. William Patry and Paul Goldstein each have a lot of faith in the power of consumer choice in the cultural marketplace. That faith ...


Computable Contracts, Harry Surden Jan 2012

Computable Contracts, Harry Surden

Articles

This Article explains how and why firms are representing certain contractual obligations as computer data. The reason is so that computers can read and process the substantive aspects of contractual obligations. The representation of contractual obligations in data instead of (or in addition to) the traditional written language form - what this Article calls "data-oriented contracting" - allows for the application of advanced computer processing abilities to substantive contractual obligations. Certain financial contracts exemplify this model. Equity option contracts are routinely represented not as contract documents written in ordinary language - but as data records intended to be processed by computers. The parties ...


Freedom Of Contract In An Augmented Reality: The Case Of Consumer Contracts, Scott R. Peppet Jan 2012

Freedom Of Contract In An Augmented Reality: The Case Of Consumer Contracts, Scott R. Peppet

Articles

This Article argues that freedom of contract will take on different meaning in a world in which new technology makes information about places, goods, people, firms, and contract terms available to contracting parties anywhere, at any time. In particular, our increasingly "augmented reality" calls into question leading justifications for distrusting consumer contracts and strengthens traditional understandings of freedom of contract. This is largely a descriptive and predictive argument: This Article aims to introduce contract law to these technologies and consider their most likely effects. It certainly has normative implications, however. Given that the vast majority of consumer contracting occurs in ...


The End Of The Work As We Know It, Michael J. Madison Jan 2012

The End Of The Work As We Know It, Michael J. Madison

Articles

This paper takes a new look at the concept of the work of authorship in copyright, known in other systems as the copyright work. It complements inquiries into authorship and originality, extending earlier scholarship on the origins of legal “things” or objects and on the multi-dimensional character of their borders and boundaries.


Madisonian Fair Use, Michael J. Madison Jan 2012

Madisonian Fair Use, Michael J. Madison

Articles

This short essay reflects on developments in the law, scholarship, and practice of fair use since the publication in 2004 of an earlier article on patterns in fair use practice and adjudication. It synthesizes many of those developments in the idea of “Madisonian” fair use, borrowing the separation of powers metaphor from James Madison’s work on the US Constitution and applying it, lightly and in a preliminary way, to copyright.


Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz Jan 2011

Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz

Articles

Businesses and sophisticated parties have long used "contract exchanges," like the Chicago Board of Trade, to obtain a fair price and protect themselves from market volatility. These contract exchanges have greatly benefited both their participants and the public at large, but participation was long limited to a wealthy few. A decade ago, however, Internet websites, including Hotwire and Priceline, brought the power of contract exchanges directly to consumers, allowing regular people to flex their collective bargaining power to obtain low prices on travel services. Even more recently, other such "consumer contract exchanges," including Prosper and MoneyAisle, have organized vibrant markets ...


Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act, Andrew A. Schwartz Jan 2011

Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act, Andrew A. Schwartz

Articles

In the 1960s and 1970s, American society came to the considered conclusion that if eighteen-year-olds can be drafted to fight and possibly die for their country, they should be treated as adults under the law. Thus, in 1971, the Twenty-Sixth Amendment to the United States Constitution, which lowered the voting age to eighteen from twenty one, was proposed and ratified in just three months, making it the fastest amendment in American history. The minimum age for federal and state jury service was also lowered to eighteen from twenty one. And, with regard to contract law, every state passed legislation reducing ...


Beyond Invention: Patent As Knowledge Law, Michael J. Madison Jan 2011

Beyond Invention: Patent As Knowledge Law, Michael J. Madison

Articles

The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from ...


Present At The Resurrection: Islamic Finance And Islamic Law, Haider Ala Hamoudi Jan 2011

Present At The Resurrection: Islamic Finance And Islamic Law, Haider Ala Hamoudi

Articles

This short paper summarizes an extremely stimulating plenary session, held at the XVIIIth Congress of the International Academy of Comparative Law in Washington DC, dealing specifically with the topic of Islamic finance. The speakers were three renowned leaders in the field. Specifically, they were Kilian Balz, a partner at Amereller who has both practiced extensively in the field, and written about it while at the Harvard Islamic Legal Studies Program at Harvard Law School, Frank Vogel, coauthor of a leading book on Islamic finance and former director of the Islamic Legal Studies Program, and Mahmoud El Gamal, a prolific writer ...


A Standard Clause Analysis Of The Frustration Doctrine And The Material Adverse Change Clause, Andrew A. Schwartz Jan 2010

A Standard Clause Analysis Of The Frustration Doctrine And The Material Adverse Change Clause, Andrew A. Schwartz

Articles

In the darkest depths of a corporate merger agreement lies the MAC clause, a term that permits the acquirer to walk away from a transaction if, between signing and closing, the target company experiences a "Material Adverse Change." Multibillion-dollar deals rise or fall based on the anticipated interpretation of a MAC clause, and invocation of the clause in a sensitive transaction could trigger the collapse of the global financial system. In short, the MAC clause is the most important contract term of our time. And yet--due to an almost total lack of case law--no one knows what it means.

In ...


Veil-Piercing, Peter B. Oh Jan 2010

Veil-Piercing, Peter B. Oh

Articles

From its inception veil-piercing has been a scourge on corporate law. Exactly when the veil of limited liability can and will be circumvented to reach into a shareholder’s own assets has befuddled courts, litigants, and scholars alike. And the doctrine has been bedeviled by empirical evidence of a chasm between the theory and practice of veil-piercing; notably, veil-piercing claims inexplicably seem to prevail more often in Contract than Tort, a finding that flouts the engrained distinction between voluntary and involuntary creditors.

With a dataset of 2908 cases from 1658 to 2006 this study presents the most comprehensive portrait of ...


Negotiating The Situation: The Reasonable Person In Context, Lu-In Wang Jan 2010

Negotiating The Situation: The Reasonable Person In Context, Lu-In Wang

Articles

This Essay argues that our understanding of the reasonable person in economic transactions should take into account an individual’s race, gender, or other group-based identity characteristics - not necessarily because persons differ on account of those characteristics, but because of how those characteristics influence the situations a person must negotiate. That is, individuals’ social identities constitute features not just of themselves, but also of the situations they inhabit. In economic transactions that involve social interaction, such as face-to-face negotiations, the actor’s race, gender, or other social identity can affect both an individual actor and those who interact with him ...


Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz Jan 2009

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws.

Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater ...


The Diverging Meaning Of Good Faith, Mark J. Loewenstein Jan 2009

The Diverging Meaning Of Good Faith, Mark J. Loewenstein

Articles

This article explores the meaning of "good faith" in the context of corporations and unincorporated entities. The courts, particularly in Delaware, have developed two different approaches. In the corporate arena, the courts are fashioning a notion of good faith that seems to require an examination of director motivations. In the unincorporated arena, good faith has a meaning grounded in contract law. These are two different concepts and reflect the fundamental differences between corporations and unincorporated entities, with the former based on fiduciary duties and the latter on contract. There are, however, indications that this "divergence" is starting to disappear, and ...


Warranties In The Box, James J. White Jan 2009

Warranties In The Box, James J. White

Articles

Thousands of times each day, a buyer opens a box that contains a new computer or other electronic device. There he finds written material including an express "Limited Warranty." Sometimes the box has come by FedEx directly from the manufacturer; other times the buyer has carried it home from a retail merchant. Despite the fact that it is standard practice for the manufacturer to include a limited written express warranty on the sale of such products,' and despite the fact that both the manufacturer and the buyer believe that warranty to be legally enforceable, the law on its enforceability is ...


Notes On A Geography Of Knowledge, Michael J. Madison Jan 2009

Notes On A Geography Of Knowledge, Michael J. Madison

Articles

Law and knowledge jointly occupy a metaphorical landscape. Understanding that landscape is essential to understanding the full complexity of knowledge law. This Article identifies some landmarks in that landscape, which it identifies as forms of legal practice: several recent cases involving intellectual property licenses, including the recent patent law decision in Quanta v. LG Electronics and the open source licensing decision in Jacobsen v. Katzer. The Article offers a preliminary framework for exploring the territories of knowledge practice in which those legal landmarks appear.


Funky Mussels, A Stolen Car, And Decrepit Used Shoes: Non-Conforming Goods And Notice Thereof Under The United Nations Sales Convention, Harry Flechtner Jan 2008

Funky Mussels, A Stolen Car, And Decrepit Used Shoes: Non-Conforming Goods And Notice Thereof Under The United Nations Sales Convention, Harry Flechtner

Articles

This is a draft of a paper that will appear in a forthcoming issue of the Boston University International Law Journal. This paper, which derives from comments delivered at a 2006 conference held at Istanbul (Turkey) Bilgi University, gives an overview of Part III, Chapter II, Section II of the United Nations Convention on Contracts for the International Sale of Goods (CISG). This portion of the Convention encompasses provisions addressing a number of critical issues, including the seller's obligations concerning the quality (Article 35), title (Article 41) and intellectual property aspects (Article 42) of goods sold in a transaction ...


Intellectual Property And Americana, Or Why Ip Gets The Blues, Michael J. Madison Jan 2008

Intellectual Property And Americana, Or Why Ip Gets The Blues, Michael J. Madison

Articles

This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky ...


Partially Odious Debts?, Omri Ben-Shahar, Mitu Gulati Jan 2007

Partially Odious Debts?, Omri Ben-Shahar, Mitu Gulati

Articles

The despotic ruler of a poor nation borrows extensively from foreign creditors. He spends some of those funds on building statues of himself, others on buying arms for his brutal secret police, and he places the remainder in his personal bank accounts in Switzerland. The longer the despot stays in power, the poorer the nation becomes. Although the secret police are able to keep prodemocracy protests subdued by force for many years, eventually there is a popular revolt. The despot flees the scene with a few billion dollars of his illgotten gains. The populist regime that replaces the despot now ...


Zapata Retold: Attorneys' Fees Are (Still) Not Governed By The Cisg, Harry Flechtner, Joseph Lookofsky Jan 2007

Zapata Retold: Attorneys' Fees Are (Still) Not Governed By The Cisg, Harry Flechtner, Joseph Lookofsky

Articles

In this work, the authors reiterate and expand on their conclusion that the question of reimbursement for attorney fees incurred in the course of litigating a claim under the United Nations Sales Convention (CISG) is beyond the scope of the CISG, and is governed by domestic law. As discussed in the paper, this conclusion is in line with a recent CISG Advisory Council Opinion (Advisory Council Opinion No. 6) dealing with the calculation of damages under Article 74 of the CISG. We argue that relegating to domestic law the question of recovering attorney fees incurred during litigation over a CISG ...


The Impact Of Eu Unfair Contract Terms Law On U.S. Business-To-Consumer Internet Merchants, Jane K. Winn, Mark Webber Jan 2006

The Impact Of Eu Unfair Contract Terms Law On U.S. Business-To-Consumer Internet Merchants, Jane K. Winn, Mark Webber

Articles

This article focuses on the application of European Union unfair contract terms law to retail Internet transactions that U.S. businesses might engage in with European consumers. It compares attitudes toward consumer protection regulation in the U.S. and the EU to provide some context within which the specific provisions of unfair contract terms law can be understood.

While many lawyers and legal academics in the U.S. who study the development of online markets are aware of the profound differences in U.S. and EU information privacy laws, the magnitude of the divergence in consumer electronic contracting law is ...


The Use Of Mtas To Control Commercialization Of Stem Cell Diagnostics And Therapeutics, Sean O'Connor Jan 2006

The Use Of Mtas To Control Commercialization Of Stem Cell Diagnostics And Therapeutics, Sean O'Connor

Articles

The recent focus on patents as a hindrance to stem cell research may turn out to be a red herring. The real culprits are material transfer agreements (MTAs), which govern the transfer of cell lines and other biological materials. The MTA’s primary purpose in life sciences research is to set contractual rights and obligations between parties where one party transfers biological materials to the other. For example, MTAs often focus on the physical handling, use, and distribution of the materials by the recipient, ensuring that the recipient complies with regulations for research involving humans or animals.

Although these interests ...


Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix Jan 2006

Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix

Articles

The focus of this Article is the interrelated set of issues that have arisen, on one hand, from Internet transactions regarding the downloading of free or purchased software, as well as other Internet sales, and on the other hand, the distinctive transactional problems that modern business practices have created under the rubric of "shrink-wrap" or "terms in the box"—a late presentation of terms associated with the sale of computers or the licensing of software (with the terms included in the packaging, rather than presented to the user ahead of time)—but not necessarily confined to those transactions.

Such transactions ...


Fiduciary Duties And Unincorporated Business Entities: In Defense Of The "Manifestly Unreasonable" Standard, Mark J. Loewenstein Jan 2006

Fiduciary Duties And Unincorporated Business Entities: In Defense Of The "Manifestly Unreasonable" Standard, Mark J. Loewenstein

Articles

This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations ...


Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White Jan 2006

Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White

Articles

This Article is structured as follows. Part I compares the terms and conditions in the purchase orders of the Original Equipment Manufacturers (OEMs) and highlights important differences in the substance of these boilerplate provisions. It argues that these differences cannot be easily reconciled with the prediction that sophisticated parties draft the most efficient boilerplate terms. Part II examines how these forms are drafted, how their terms are negotiated, and how the OEMs guard their terms from erosion. It provides some insight on how tailoring occurs and how the internal organization of a party to a deal affects the terms that ...


On The Stickiness Of Default Rules, Omri Ben-Shahar, John A. E. Pottow Jan 2006

On The Stickiness Of Default Rules, Omri Ben-Shahar, John A. E. Pottow

Articles

It was once perceived, and still is commonly taught, that default rules in contract law must mimic efficient arrangements. Otherwise, these rules impose needless transaction costs upon parties who seek to opt out of them to reach more efficient positions. In settings where these costs are high, parties might find themselves "stuck" in a default, unable to reach the outcome that they prefer. The strong version of this account-that the only factor that can make an inefficient default rule stick is the direct cost of drafting a tailored provision-has been gradually reappraised. It is by now recognized that factors beyond ...