Law Commons^™

Coming Soon To Your State (But Not Ready For Prime Time): Ucita, James S. Heller

Library Staff Publications

No abstract provided.

Securing The Internet: Digital Signatures & Electronic Transactions In California, Assembly Committee On Information Technology

California Assembly

Included in appendix: Trust in the Wired Americas by Cheskin Research and Moving With Change: Electronic Signature Legislation as a Vehicle for Advancing Commerce by Smedinghoff and Bro, 17 John Marshall J. of Comp. and Information L. 723 (1999).

Electronic Billboards Along The Information Superhighway: Liability Under The Lanham Act For Using Trademarks To Key Internet Banner Ads, Christine Galbraith Davik

Faculty Publications

With almost one billion web pages on the Internet today, a search engine is a necessity at times. But search engines are also for-profit ventures and the financial success of these sites hinges on advertising revenue. One of the ways in which these sites generate income is by selling “keywords” to advertisers. Although there has been only one judicial decision – Playboy Enterprises, Inc. v. Netscape Communications – involving banner ads keyed to trademarks, it will undoubtedly not be the last. This article argues that despite the invisible nature of this unauthorized trademark use, the common practice of keying a …

Deconstructing The Debate Over State Taxation Of Electronic Commerce, Walter Hellerstein

Scholarly Works

Elsewhere on these pages, the distinguished economist Charles McLure begins his contribution to the debate over taxation of electronic commerce by observing that “America is focusing on the wrong issues in debating the taxation of electronic commerce ....” He proceeds to provide a fundamental critique of the states' existing sales tax regimes and he lays out a roadmap for radical reform of the system that would, in the course of curing the basic defects in the existing state sales tax structure, incidentally resolve many of the issues that currently dominate the debate over taxing electronic commerce. I do not disagree …

The Meaning Of "Agreement" Under The Sherman Act: Thoughts From The "Facilitating Practices" Experience, George A. Hay

Cornell Law Faculty Publications

While the Economic Policy Office was involved in a number of interesting and important matters during the six years I was Director (1973–1979), for the most part my involvement in individual investigations and cases was vicarious, i.e., supervising, supporting, and advising the staff economists assigned to the particular matter. The one major exception – a matter in which I became personally involved in an intensive way – was the General Electric (GE)-Westinghouse price signaling matter. In what follows, I provide a brief summary of what transpired in the GE-Westinghouse matter and then trace through some of the longer term consequences …

Disneyworld Is Not Enough, Kenneth Anderson

Book Reviews

Review of The Mouse That Roared: Disney and the end of innocence, by Henry A. Giroux. Rowman and Littlefield, 12 Hid's Copse Road, Cumnor Hill, OxfordThis essay reviews a book of cultural criticism directed against what the author, Henry Giroux, regards as the corporate manipulation of culture, particularly the culture of children, by corporate interests, particularly the Disney company. The review argues that, contrary to Giroux's argument, Disney and such corporations relentlessly press the message of American left-liberal politically correct piety.

Corporate Risk Analysis: A Reckless Act?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Balancing of risk and cost lies at the heart of standard negligence tests and policy analysis approaches to government regulation. Notwithstanding the desirability of using a benefit-cost approach to assess the merits of safety measures, in many court cases juries appear to penalize corporations for having done a risk analysis in instances in which the company decided not to make a safety improvement after the analysis indicated the improvement was unwarranted Automobile accident cases provide the most prominent examples of such juror sanctions. This paper tests the effect of corporate risk analyses experimentally by using a sample of almost 500 …

The Public Choice Of Choice Of Law In Software Transactions: Jurisdictional Competition And The Dim Prospects For Uniformity, Edward J. Janger

Faculty Scholarship

No abstract provided.

Ftc Unfairness: An Essay, Stephen Calkins

Law Faculty Research Publications

No abstract provided.

Analyzing Bank Drafted Letter Of Credit Rules, The International Standby Practice (Isp98), John F. Dolan

Law Faculty Research Publications

No abstract provided.

Catalytic Impact Of Information Technology On The New International Financial Architecture, Jane K. Winn

Articles

The sudden emergence of the Internet as a global network threatens to eclipse the importance of the global information infrastructure painstakingly built by financial institutions and their regulators over the past three decades. The open public nature of the Internet threatens the value of the closed proprietary networks developed by financial institutions that now face serious problems in integrating their legacy systems and new Internet systems.

Information system security, once a dreary back office matter, is now central to the success of e-commerce business plans. Before financial institutions can capitalize on their expertise in information system security, they will have …

Electronic Records And Signatures Under The Federal E-Sign Legislation And The Ueta, Robert A. Wittie, Jane K. Winn

Articles

Federal legislation establishing legal parity between electronic records and signatures and their paper and ink counterparts was signed into law June 30, 2000, and became effective, at least for most purposes, on October 1. The Electronic Signatures in Global and National Commerce Act (E-SIGN or the Act) effectively sweeps away a myriad of anachronistic and inconsistent state and federal requirements for paper and ink documents and signatures. In so doing, E-SIGN eliminates many of the legal uncertainties that have surrounded the use of electronic media in commerce and should enable businesses and consumers alike to more fully realize the cost …

Timing Matters: Promoting Forum Shopping By Insolvent Corporations, Randall Thomas, Robert K. Rasmussen

Vanderbilt Law School Faculty Publications

Most commentators decry forum shopping. This general hostility extends to forum shopping by firms filing for bankruptcy. Indeed, Congress is considering legislation designed to reduce forum shopping by companies filing for bankruptcy. This article makes two contributions to this debate. First, we show that the current debate is driven almost exclusively by attorneys trying to protect fees rather than by any principled objection to forum shopping. Second, on the merits, we argue that the hostility to forum shopping is misplaced. The near universal condemnation of forum shopping rests on the premise that, at the time the plaintiff selects a forum, …

Making Xml Pay: Revising Existing Electronic Payments Law To Accommodate Innovation, Jane K. Winn

Articles

Many businesses today are rushing to embrace "e-Business" technologies in a mad scramble to remain competitive. Only a few years ago, simply using email instead of faxes or phone calls, converting a purchasing system to EDI technology, or building a corporate Web site might have seemed like important advances in the use of new information technologies.

Businesses are now moving beyond such "electronic commerce" technologies and trying to integrate their disparate information systems and business processes into a comprehensive new "e-Business" structure. At the heart of this new model for business organization is the idea that information and resources should …

The Zen Of Corporate Capital Structure Neutrality, Herwig J. Schlunk

Vanderbilt Law School Faculty Publications

Given the current tax rate structure - where the marginal tax rate of some persons exceeds the corporate tax rate and the marginal tax rate of others is exceeded by it - corporations are generally well advised to employ both debt and equity in their capital structures. The former will be held by low tax rate taxpayers and will serve to lower the effective aggregate tax rate6 on the corporation's taxable income. The latter will be held by high tax rate taxpayers and will serve to keep low the effective aggregate tax rate on the corporation's unrecognized economic income (such …

Who Owns The Customer? The Emerging Law Of Commercial Transactions In Electronic Customer Data, Jane Kaufman Winn, James R. Wrathall

Articles

The Information Revolution is changing the way commerce acted and value is defined within transactions. Before the Internet and "e-business" took center stage, "electronic commerce" meant electronic data interchange, just-in-time inventory systems, supply chain automation, and corporate reengineering.

But the rise of the Internet as a communications medium has coincided with a shift in management focus, from merely trying to improve the efficiency of business logistics systems to a more holistic perspective on improving customer relationships. Intangible assets such as intellectual property rights, human capital in the form of employee knowledge, and established relationships with customers and suppliers are playing …

On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's Exploring The Battle Of The Forms In Action, Avery W. Katz

Faculty Scholarship

As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method – the free-form, oral interview conducted personally by the principal researcher – …

The Settlement Of Investment Disputes Between States And Private Parties - An Overview From The Perspective Of The Icc, Horacio A. Grigera Naón

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Autistic Contracts (Symposium), James J. White

Articles

In this paper I address the question whether the law should affirm the offeror's inference and should bind the offeree to the terms proposed by the offeror even in circumstances where the offeree may not intend to accept those terms and where an objective observer might not draw the inference of agreement from the offeree's act. Modem practice and current proposals concerning contract formation in Revised Article 2 and in the Uniform Computer Information Transactions Act (nee Article 2B) press these issues on us more forcefully than old practices and different law did. 1 But contractual autism is not new; …

Bankruptcy Reorganization: Legal Dynamics Associated With Economic Discontinuity, Young Rock Noh

LLM Theses and Essays

This thesis attempts to discover the factors leading to such failures and to propose a cure. It argues that the basic structure of Chapter 11 of the Code, the debtor in possession structure, is one of the essential factors causing such a high rate of failure. The thesis further asserts that it is possible to reduce the rate of unsuccessful reorganization if the bankruptcy court exercises its power of case management more actively and expeditiously. For example, the court can screen the debtors' filing for relief before the reorganization case proceeds too far. Chapter II of this thesis examines the …

The Nafta Package And The Environment: A Green Analysis Of Its Origins And Effects, Pedro M. Morales-Gomez

LLM Theses and Essays

When the presidential candidate Clinton announced that he would not support NAFTA without environmental and labor side agreements, and during the period before NAFTA's ratification by the American Congress, Mexicans lived in most tense suspense. Even though, the idea of an environmental side agreement seemed to please most environmentalists in Mexico who hoped that this would lead to creating a major environmental conscience in the Mexican government. The purpose of this thesis is to elaborate a critical analysis of the North American Free Trade Agreement, its related documents and their effects concerning the environment, specifically its legal protection. We will …

Public Policy Defense In International Commercial Arbitration, Mingqiang Qian

LLM Theses and Essays

The purpose of this thesis is to examine how public policy defense functions in international commercial arbitration and whether it will block the development of international commercial arbitration. Chapter II deals with the role of public policy in international private law. This chapter examines the origins of public policy in common law countries and its functions in international private law. It is difficult to evaluate public policy as a precise concept because of its relative nature. Nevertheless, to limit its application in international private law, legal scholars have tried to clarify differences between domestic public policy, international public policy, and …

Reflections On The Reform Of Antidumping Law A Case Study Of Anti-Dumping Law In The United States, Sung Hwan Kim

LLM Theses and Essays

As of the end of 1997, 29 of the 132 member countries of the WTO had some form of the antidumping regime in operation. Most of the antidumping measures were taken by developed countries, with the United States leading in the number of measures invocated, which lends support to the criticism that the United States has wielded the antidumping law for the purpose of protecting its noncompetitive domestic industry. Attendant to this criticism, and taking the United States antidumping law as a typical model law embodying the Antidumping Agreement, this thesis first looks at the evolution of antidumping law in …

Taxation Of U.S. Llc With Foreign Participation, Victor Ianovitch

LLM Theses and Essays

The instant thesis is organized in three main parts. The first contains an overview of U.S. law including constitutional issues of the topic focusing on the separation of tax powers between federal and state authorities with special attention to the basis and extent to which a State is entitled to impose levies on business organizations; a brief analysis of federal legislation allowing the pass-through regime; and summary concerning LLC legislation in the States. The second analyzes the application of the main, basic principles of international taxation (such as residence, source rules, application of international treaties, and connected with it the …

International Franchising: Focus On Central And Eastern Europe And Russia, Aksinia Zaharieva Dintcheva

LLM Theses and Essays

This thesis discusses and analyzes international franchising and its introduction and development in the emerging democracies in Eastern Europe. After a general presentation of the franchise marketing method, the advantages and disadvantages to both parties of the franchise relationship are discussed. Attention is given to the alternatives available to foreign franchisors contemplating international franchising in the Eastern European region. The thesis further reviews the newly enacted foreign investment laws in six Eastern European countries - Hungary, Czech Republic, Poland, Bulgaria, Romania, and Russia - as they relate to the joint venture operations in the region and the attending legal issues. …

The Legal Regulation Of Hedge Funds In The United States Long-Term Capital Management Episode, Jong Cheol Park

LLM Theses and Essays

Mutual funds and hedge funds are popular forms of investment in the United States and throughout the world. Mutual funds are regulated by securities' regulators in the United States. Hedge funds, however, are not regulated because of their operational flexibility in investment. U.S. regulators are concerned that if they regulate hedge funds, hedge funds will, along with their economic benefits, emigrate to offshore havens. However, if we consider the importance of the American financial markets in the world, this idea can be dismissed. Due to globalization in the capital markets, small events in the United States can have large effects …

Liability Issues Facing Online Businesses, David E. Shipley

Scholarly Works

Online businesses are confronted by a wide variety of liability issues covering almost the full range of the standard law school curriculum. The liability problems that face a small business in Vidalia, Georgia, which is selling Vidalia onion products at specialty stores, through print advertising, and by mail, do not go away when the business starts marketing through a Web site. In fact, there might be more exposure doing business online, and there are variations depending upon the nature of the business in question. For example, as discussed below, an Internet Service Provider ("ISP") like America Online has worries that …

State Taxation Of Electronic Commerce: Perspectives On Proposals For Change And Their Constitutionality, Kendall L. Houghton, Walter Hellerstein

Scholarly Works

Over the past few years, an enormous amount of attention has been devoted to the problems raised by state taxation of electronic commerce, possible solutions to those problems, and, more recently, the question of whether there is a ‘problem‘ at all. We have both been, and continue to be, deeply involved in the debate over these issues -- a debate that has sometimes generated more heat than light. We view this forum as furnishing us an opportunity to take a step back from the fray and to offer our views not only on the critical issues that are dominating the …

Trust, Trustworthiness, And The Behavioral Foundations Of Corporate Law, Margaret M. Blair, Lynn A. Stout

Vanderbilt Law School Faculty Publications

Conventional legal and economic analysis assumes that opportunistic behavior is discouraged and cooperation encouraged within firms primarily through the use of legal and market incentives. This presumption is embodied in the modern view that the corporation is best described as a "nexus of contracts," a collection of explicit and implicit agreements voluntarily negotiated among the selfishly rational parties who join in the corporate enterprise. In this article we take a different approach. We start from the observation that, in many circumstances, legal and market sanctions provide at best imperfect means of regulating behavior within the firm. We consider an alternate …