Commercial Law Commons^™

Soft Law And The Principle Of Fair And Equitable Decisionmaking In International Contract Arbitration, Larry A. Dimatteo

Larry A DiMatteo

This article provides a survey of the special relationship between international commercial arbitration and soft law instruments. It briefly traces the historical roots of the lex mercatoria to its present enunciation in the Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts. It discusses the characteristic of the hardness and softness of laws in an international commercial law context. The CISG is studied not only as a hard law, but also as an example of soft law. The affinity between soft law and international commercial arbitration is explored, as well as ...

Responsive Regulation And Application Of Grading Systems In The Food Safety Regulatory Regimes Of Developing Countries, Abu Noman M. Atahar Ali

Abu Noman Mohammad Atahar Ali

The traditional tit-for-tat philosophy in the food safety regulatory regime in most developing countries has been proven ineffective in most cases. Rather, starting with persuasion, advice, and then escalating to more severe punishments for the continuing non-compliance as suggested in the responsive regulation by Ayres and Braithwaite has been proved more effective in the food safety regulatory regime of some jurisdictions. Responsive regulation aims to increase responsibility among corporations. So, if a corporation shows responsibility, it should be rewarded, and if a corporation shows irresponsibility, it should be reprimanded (if necessary). There is no logic in seeing and treating every ...

The Granting Clause And Intellectual Property Rights Management In Open-Source Software Licensing, Vikrant N. Vasudeva

IP Theory

No abstract provided.

The Expansion Of Trademark Rights In Europe, Irina Pak

IP Theory

No abstract provided.

The Likely Impact Of National Federation On Commerce Clause Jurisprudence, Robert J. Pushaw Jr., Grant S. Nelson

Pepperdine Law Review

In National Federation of Independent Businesses v. Sebelius, the Supreme Court exhaustively analyzed Congress’s constitutional power to enact the watershed Patient Protection and Affordable Care Act (ACA or “Obamacare”). The ACA imposes a “shared responsibility requirement,” popularly known as the “Individual Mandate” (IM), which forces Americans to buy medical insurance or pay a “penalty.” The ACA’s text and legislative history, as well as the public defenses of it by President Obama and his supporters, consistently described the IM as a valid exercise of Congress’s power “[t]o regulate Commerce . . . among the several States.” This reliance on the ...

Putting The Cisg Where It Belongs: In The Uniform Commercial Code, Kina Grbic

Touro Law Review

No abstract provided.

Explaining "Bait-And-Switch" Regulation, David Adam Friedman

William & Mary Business Law Review

“Bait and switch” can describe a range of commercial behaviors common in the everyday marketplace, but virtually ignored in the academic literature. The traditional definition of unlawful bait and switch applies to insincere offers to sell one item in order to induce the buyer to purchase another. Certain sellers have historically employed bait-and-switch tactics, including urban retailers, aluminum siding companies, and supermarkets.

Colloquially, this definition can also cover lawful or other borderline sales tactics, including the use of teaser rates or low introductory pricing, or even “free offers.” Even common lawful tactics, like the deliberate routing of customers past other ...

Clashing Policies Or Confusing Precedents: The "Gross Negligence" Exception To Consequential Damages Disclaimers, Michael Pillow

William & Mary Business Law Review

Consequential damages can easily amount to millions of dollars. Commercial parties often disclaim consequential damages in their contracts. This Article posits that such disclaimers between commercial parties under the Uniform Commercial Code (UCC) should not be found unenforceable based on gross negligence. Article 2 of the UCC promotes the policy of freedom of contract. Consistent with that policy, section 2-719 of the UCC provides that contractual consequential damages disclaimers should be enforceable absent a finding of unconscionability. This Article analyzes the interplay among UCC section 2-719, “public policy” exceptions to enforcing limitations of liability, and the law of gross negligence ...

Toward An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

Seattle University Law Review

The predominant view in the antitrust field has been that private enforcement, and especially class action cases, yields little or no positive results. This Article analyzes these twenty cases, compares and contrasts their analysis with that of our earlier group of forty cases, and draws new insights from the results of all sixty combined. This Article demonstrate that private antitrust litigation has provided a substantial amount of compensation for victims of anticompetitive behavior: at least $33.8 to $35.8 billion. The studies also demonstrate that private antitrust enforcement has had an extremely strong deterrent effect. In fact, this research ...

Regulation - The Balance Point , W. D. Brewer

Pepperdine Law Review

No abstract provided.

Debtor's Defense To A Deficiency Judgment Under Ucc , Gail Clifford Hutton

Pepperdine Law Review

No abstract provided.

Goldie V. Bauchet Properties - California Uniform Commercial Code: Division Nine's Application To Ownership Interests In Trade Fixtures Acquired Under A Real Property Lease, Charles M. Morgan Iii

Pepperdine Law Review

No abstract provided.

Not (Necessarily) Narrower: Rethinking The Relative Scope Of Copyright Protection For Designs, Sarah Burstein

IP Theory

No abstract provided.

In Search Of The Right Balance: Patco Lays The Foundation For Analyzing The Commercial Reasonableness Of Security Procedures Under Ucc Article 4a, Melissa Waite

Boston College Law Review

On July 3, 2012, in Patco Construction Co. v. People’s United Bank, the First Circuit held that security procedures used to verify electronic funds transfers initiated through online banking were commercially unreasonable. In reaching its decision, the court laid a strong foundation for analyzing commercial reasonableness in future cases. This Comment argues that future courts should build on this analysis by considering recent merger activity when determining the standard against which commercial reasonableness should be measured.

Now Ucc Me, Now You Don't: The Massachusetts Supreme Judicial Court Ignores The Ucc In Requiring Unity Of Note And Mortgage For Foreclosure In Eaton V. Fannie Mae, Christopher Cifrino

Boston College Law Review

On June 22, 2012, in Eaton v. Federal National Mortgage Association, the Supreme Judicial Court of Massachusetts upheld a trial court ruling and held that an entity must hold both note and mortgage in order to foreclose properly. Because this represented a significant shift in Massachusetts foreclosure law, the court applied its ruling only prospectively. To support its holding, the court relied on common law and statutory justifications. In so doing, the court did not address pertinent sections of the Uniform Commercial Code (UCC) that could have led to the same outcome. This Comment argues that examining the UCC in ...

Napa To New York With The Click Of A Mouse: The Dormant Commerce Clause And The Direct Shipment Of Wine To Consumers As Discussed In Granholm V. Heald , Shirlene Love

Journal of the National Association of Administrative Law Judiciary

This case note examines the U.S. Supreme Court's decision in Granholm v Heald. Part II will explore the history of the Dormant Commerce Clause and Twenty-First Amendment; Part III will present the facts of the case; Part IV will discuss and analyze the majority and two dissenting opinions; Part V will speculate about the future impact of this decision; and Part VI will conclude.

China And Foreign Direct Investment: Looking Ahead, Leon E. Trakman

University of New South Wales Faculty of Law Research Series 2013

Notwithstanding China’s endorsement of investor-state arbitration more than a decade ago, few investor claims have been initiated against it and none has concluded with an award. This does not necessarily mean that foreign investors will not make such claims in the future, but rather that proceeding against China, from an economic rationalist perspective, is likely to be contentious, costly and dilatory. However, these concerns are not peculiar to China. Economically and politically powerful states, not least of all the United States, are less frequently subject to investor-state arbitration than poorer states for much the same reason.

What is increasingly ...

Certainty Of Title: Perspectives After The Mortgage Foreclosure Crisis On The Essential Function Of Effective Recording Systems, Donald J. Kochan

Donald J. Kochan

Recording systems for property play a pivotal, market-facilitating role for the players engaged in any transaction, the judiciary that must resolve disputes between the players, and others members of the general public by informing each about the true nature of ownership of the real property things in the world. This symposium article explores the essential character of such systems in providing certainty of title, and takes a tour through the mortgage foreclosure crisis to see where adherence to and respect for these systems’ roles broke down.

Leading up to the crisis, as securitization became vogue and the housing boom blurred ...

The Rise Of Urban Agriculture: A Cautionary Tale – No Rules, Big Problems, Matthew V. Bradshaw

William & Mary Business Law Review

This Note identifies the underlying cause of the collapse of the family farm, namely the failed effort of the U.S. Government to save it through the institution and ongoing promulgation of the Farm Bill. Through subsidy and direct payment regimes, federal legislation has enabled large commodity producers to enjoy protection from market risk while squeezing out smaller growers. Because of growing consumer distrust in large-scale agricultural production, the urban agriculture movement and nontraditional market systems continue to grow in popularity and footprint across the United States. Many municipalities have already recognized the vast benefits that an urban agriculture regime ...

An Interpretation Of The "... Sold For Use, Consumption, Or Resale Within The United States. . ." Requirement Of Section 2(A) Of The Robinson-Patnam Act, David R. Sonnenberg

Maryland Journal of International Law

No abstract provided.