Open Access. Powered by Scholars. Published by Universities.®

Commercial Law Commons

Open Access. Powered by Scholars. Published by Universities.®

5,937 Full-Text Articles 3,967 Authors 2,777,852 Downloads 132 Institutions

All Articles in Commercial Law

Faceted Search

5,937 full-text articles. Page 1 of 111.

In Conspicuous Terms-- Arbitration Agreements For The Modern Reasonable App User, Michelle Dunbar 2020 William & Mary Law School

In Conspicuous Terms-- Arbitration Agreements For The Modern Reasonable App User, Michelle Dunbar

William & Mary Business Law Review

Two recent decisions regarding the validity of arbitration agreements in mobile apps have come to opposite conclusions despite utilizing the same legal standard and concerning the same app—Uber. While the Federal Arbitration Act strongly favors the validity and importance of arbitration agreements, it appears that judge’s subjectivity based on common knowledge and understanding of apps is influencing the outcome of cases concerning the validity of these arbitration agreements. To the modern app user, are these terms really inconspicuous? For businesses, this could mean that instead of competing in an already saturated app market by enhancing their design and ...


Kill Cammer: Securities Litigation Without Junk Science, J. B. Heaton 2020 William & Mary Law School

Kill Cammer: Securities Litigation Without Junk Science, J. B. Heaton

William & Mary Business Law Review

Securities litigation is a hotbed of junk science concerning market efficiency. This Article explains why and suggests a way out. In its 1988 decision in Basic v. Levinson, the Supreme Court endorsed the fraud on the market presumption for securities traded in an efficient market. Faced with the task of determining market efficiency, courts throughout the nation embraced the ad hoc speculations of a first-mover district court that proclaimed, in Cammer v. Bloom, how to allege (and presumably prove) facts that would do just that. The Cammer court’s analysis did not rely on financial economics for its notions, but ...


Risky Business: The Eleventh Circuit Applies Spokeo To Assess The Sufficiency Of Risk For Article Iii Standing In Muransky V. Godiva Chocolatier, Inc., Michelle Chaing Perry 2020 Boston College Law School

Risky Business: The Eleventh Circuit Applies Spokeo To Assess The Sufficiency Of Risk For Article Iii Standing In Muransky V. Godiva Chocolatier, Inc., Michelle Chaing Perry

Boston College Law Review

On October 4, 2019, the United States Court of Appeals for the Eleventh Circuit granted the appellants in Muransky v. Godiva Chocolatier, Inc. a rehearing en banc. As a result, the court vacated its original holding that violating the truncation requirement in the Fair and Accurate Transactions Act of 2003 results in a concrete injury for the purposes of standing. The requirement forbids merchants from printing more than the last five digits of a credit card number on a point-of-sale receipt. In its original decision, the Eleventh Circuit demonstrated an unwillingness to override congressional findings that merchants who fail to ...


The Impossibility Doctrine In Commercial Contracts: An Empirical Analysis, Uri Benoliel 2020 Brooklyn Law School

The Impossibility Doctrine In Commercial Contracts: An Empirical Analysis, Uri Benoliel

Brooklyn Law Review

The impossibility doctrine – under which a contracting party has no duty to perform the agreement if performance thereof is rendered impossible – is a basic building block of U.S. contract law. The prevailing law-and-economics analysis of this doctrine suggests that when contract performance becomes impossible, courts should assign the contractual risk of non-performance to the superior risk bearer, i.e., to the party that can bear said risk at least cost. This article empirically tests, for the first time, the economic theory of the impossibility doctrine. It first hypothesizes that most sophisticated parties to commercial contracts are unlikely to adopt ...


Commercial Law Intersections, Giuliano Castellano, Andrea Tosato 2020 University of Hong Kong, Faculty of Law

Commercial Law Intersections, Giuliano Castellano, Andrea Tosato

Faculty Scholarship at Penn Law

Commercial law is not a single, monolithic entity. It has grown into a dense thicket of subject-specific branches that govern a broad range of transactions and corporate actions. When one of these events falls concurrently within the purview of two or more of these commercial law branches - such as corporate law, intellectual property law, secured transactions law, conduct and prudential regulation - an overlap materializes. We refer to this legal phenomenon as a commercial law intersection (CLI). Some notable examples of transactions that feature CLIs include bank loans secured by shares, supply chain financing arrangements, patent cross-licensing, and blockchain-based initial coin ...


Circuit Board Jurisdiction: Electronic Payments And The Presumption Against Extraterritoriality, Samuel L. Hatcher 2020 University of Georgia School of Law

Circuit Board Jurisdiction: Electronic Payments And The Presumption Against Extraterritoriality, Samuel L. Hatcher

Georgia Journal of International & Comparative Law

No abstract provided.


Lost In Transplantation: Modern Principles Of Secured Transactions Law As Legal Transplants, Charles W. Mooney Jr. 2020 University of Pennsylvania Law School

Lost In Transplantation: Modern Principles Of Secured Transactions Law As Legal Transplants, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This manuscript will appear as a chapter in a forthcoming edited volume published by Hart Publishing, Secured Transactions Law in Asia: Principles, Perspectives and Reform (Louise Gullifer & Dora Neo eds., forthcoming 2020). It focuses on a set of principles (Modern Principles) that secured transactions law for personal property should follow. These Modern Principles are based on UCC Article 9 and its many progeny, including the UNCITRAL Model Law on Secured Transactions. The chapter situates the Modern principles in the context of the transplantation of law from one legal system to another. It draws in particular on Alan Watson’s pathbreaking ...


Maine Corporation Law & Practice, Gregory S. Fryer 2020 University of Maine School of Law

Maine Corporation Law & Practice, Gregory S. Fryer

Maine Law Review

The scarcity of case law in Maine on corporate law issues of the day is a fact of life for corporate law practitioners in this State. While courts in more populous states fill library shelves with an ever-growing mix of corporate law decisions, we in Maine often can only wonder which way our own courts would turn if presented with those same issues. Faced with a limited amount of local case law, corporate lawyers here might rarely venture beyond well-hewn traditions were it not for two-and now three-fortunate developments. First and foremost is the Maine Business Corporation Act. The Act ...


Maine Corporation Law & Practice, Gregory S. Fryer 2020 University of Maine School of Law

Maine Corporation Law & Practice, Gregory S. Fryer

Maine Law Review

The scarcity of case law in Maine on corporate law issues of the day is a fact of life for corporate law practitioners in this State. While courts in more populous states fill library shelves with an ever-growing mix of corporate law decisions, we in Maine often can only wonder which way our own courts would turn if presented with those same issues. Faced with a limited amount of local case law, corporate lawyers here might rarely venture beyond well-hewn traditions were it not for two-and now three-fortunate developments. First and foremost is the Maine Business Corporation Act. The Act ...


Who Carries The Burden Of Proving Causation In An Erisa Section 409(A) Suit For Breach Of Fiduciary Duty?, Edward Rivin 2020 University of Cincinnati

Who Carries The Burden Of Proving Causation In An Erisa Section 409(A) Suit For Breach Of Fiduciary Duty?, Edward Rivin

University of Cincinnati Law Review

No abstract provided.


Business Trusts In China: A Reality Check, Lusina Ho 2020 University of Hong Kong

Business Trusts In China: A Reality Check, Lusina Ho

University of Cincinnati Law Review

No abstract provided.


The Rise Of Business Trusts In Sustainable Neo-Innovative Economies, Lee-ford Tritt, Ryan Scott Teschner 2020 University of Florida Levin College of Law

The Rise Of Business Trusts In Sustainable Neo-Innovative Economies, Lee-Ford Tritt, Ryan Scott Teschner

University of Cincinnati Law Review

No abstract provided.


The Oregon Stewardship Trust: A New Type Of Purpose Trust That Enables Steward-Ownership Of A Business, Susan N. Gary 2020 University of Oregon

The Oregon Stewardship Trust: A New Type Of Purpose Trust That Enables Steward-Ownership Of A Business, Susan N. Gary

University of Cincinnati Law Review

No abstract provided.


The New Fiduciaries, Natalya Shnitser 2020 Boston College Law School

The New Fiduciaries, Natalya Shnitser

University of Cincinnati Law Review

The regulation of employer-sponsored retirement plans in the United States relies on fiduciary standards drawn from donative trust law to regulate the conduct of those with authority or discretion over plan assets. The mismatch between the trust-based fiduciary framework and the rights and interests of employers and employees has contributed to the high cost of pension fund investing and the significant gaps in pension coverage in the private sector. In recent years, state and local governments have stepped in to reduce the retirement coverage gap by creating state-facilitated retirement savings programs for private-sector workers who lack access to employment-based coverage ...


Indenture Trustee Duties: The Pre-Default Puzzle, Steven L. Schwarcz 2020 Duke Law School

Indenture Trustee Duties: The Pre-Default Puzzle, Steven L. Schwarcz

University of Cincinnati Law Review

This Article addresses a topic at the intersection of finance, agency, contract, and trust law: the pre-default duties of an indenture trustee for bondholders. The existing scholarship on indenture trustee duties focuses on the post-default scenario, when the indenture trustee is required to act as a prudent person in like circumstances on behalf of the bondholders. No prior scholarship addresses an indenture trustee’s pre-default duties. It is critical to try to define those duties because activist investors in the $42-trillion-plus bond market increasingly are making pre-default demands on indenture trustees, requiring them to know how to respond.


Bounties For Errors: Market Testing Contracts, Robert Rasmussen, Michael Simkovic 2020 University of Southern California

Bounties For Errors: Market Testing Contracts, Robert Rasmussen, Michael Simkovic

University of Southern California Legal Studies Working Paper Series

Many scholars and courts have championed a plain meaning approach to interpreting commercial contracts between sophisticated parties. These parties are assumed to carefully draft contracts to make their rights and obligations clear and knowable if the language is enforced as written. However, recent events in the commercial lending arena have raised questions about the efficacy of this approach. Aggressive parties have combed through reams of complex documents looking for ways around seemingly clear contractual barriers. For example, Hovnanian promised to intentionally default on a debt payment to one of its wholly-owned subsidiaries in exchange for favorable financing from a hedge ...


Delaware's New Competition, William J. Moon 2020 Northwestern Pritzker School of Law

Delaware's New Competition, William J. Moon

Northwestern University Law Review

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector ...


The New Fiduciaries, Natalya Shnitser 2020 Boston College Law School

The New Fiduciaries, Natalya Shnitser

Boston College Law School Faculty Papers

The regulation of employer-sponsored retirement plans in the United States relies on fiduciary standards drawn from donative trust law to regulate the conduct of those with authority or discretion over plan assets. The mismatch between the trust-based fiduciary framework and the rights and interests of employers and employees has contributed to the high cost of pension fund investing and the significant gaps in pension coverage in the private sector. In recent years, state and local governments have stepped in to reduce the retirement coverage gap by creating state-facilitated retirement savings programs for private-sector workers who lack access to employment-based coverage ...


Bank Resolution And Creditor Distribution: The Tension Shaping Global Banking – Part I: “External And Intra-Group Funding” And “Ex Ante Planning V. Ex Post Execution” Dimensions*, David Ramos, Javier Solana 2020 Carlos III University, Madrid

Bank Resolution And Creditor Distribution: The Tension Shaping Global Banking – Part I: “External And Intra-Group Funding” And “Ex Ante Planning V. Ex Post Execution” Dimensions*, David Ramos, Javier Solana

University of Miami Business Law Review

Banking has drastically changed since the 2007-2009 financial crisis and its aftermath. Of all the reforms that impinge upon the ability of global banks to run their business, none is more consequential than the new frameworks on bank resolution, which try to end “too-big-to-fail.” Yet bank resolution’s “macro” goals, such as systemic stability, limitation of contagion, and avoidance of moral hazard, run in the face of insolvency law and the more “micro” principles underpinning it. Among the latter, none is more pervasive than the need for fairness between creditors, and between (and within) creditor classes, enshrined in the ranking ...


The Compelled Commercial Speech Cases: Why Not Just Flip A Coin?, R. George Wright 2020 Mercer University School of Law

The Compelled Commercial Speech Cases: Why Not Just Flip A Coin?, R. George Wright

Mercer Law Review

Government regulation of commercial enterprises takes many forms. Among the most familiar forms are requirements that commercial speakers convey particular government-approved commercial messages, presumably for the sake of some sufficient benefit to the persons thereby informed. This Article discusses the difficult problems generated by the case law of compelled commercial speech. Controversies and important paradoxes are examined herein, on the way to the surprising conclusion that in light of the ordinarily limited interests on both sides of the case, typical compelled commercial speech cases can be responsibly resolved, all else equal, by merely flipping a coin.

First, the Article briefly ...


Digital Commons powered by bepress