Law Commons^™

15th Annual Legal Issues For Financial Institutions Conference, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Walter R. Byrne Jr, Mark F. Sommer, Lisa Koch Bryant, Leonard A. Watkins, Thomas W. Grundy, Joann B. Heppermann, James C. Seiffert, William H. Haden Jr., T. Richard Riney, Marcus P. Mcgraw, W. Bradford Boone, John T. Mcgarvey, James F. Rose, J. Rick Jones, M. Thurman Senn, M. Brooks Senn

Continuing Legal Education Materials

Program and materials from the 15th Annual Legal Issues for Financial Institutions Conference held by UK/CLE on March 10-11, 1995.

Much Ado About Nothing: Achieving "Essential" Negotiability In An Electronic Environment, David Frisch

Law Faculty Publications

The approach adopted here is both historical and analytical. Part II of this Article describes the historical development of assignment law, and demonstrates that it parallels a more general shift of the law away from physical conceptions of property. It concludes that although a paper-based document may still be a practical requirement, there is no longer a valid theoretical justification for not making the law of negotiable instruments media neutral. In Part III we survey the features of negotiable instrument law and compare it generally with the law of assignments. This comparison suggests that the most striking substantive difference between …

The Value Of Public-Notice Filing Under Uniform Commercial Code Article 9: A Comparison With The German Legal System Of Securities In Personal Property, Jens Hausmann

LLM Theses and Essays

In contrast to the public-notice filing system under U.C.C. Article 9, the modern German law of securities in personal property lacks publicity of security interests. The German courts have developed a mesh of priority rules exhaustively described in this analysis. Despite the costs and risks arising under the formal filing system, the U.C.C. accomplishes a preferable balance of interests involved in secured transactions. It assures certainty to creditors about the priority of security interests in particular assets, whereas the German law comprehensively recognizes the debtor’s interest in the secrecy of the transaction and the need for external capital. Regarding the …

International Arbitration And Procedures To Enforce Awards In The Relationship Between The United States And Germany, Michael Kronenburg

LLM Theses and Essays

Arbitration has long been regarded as a process that combines finality of decision with speed, low expense, and flexibility in solving problems. For these reasons, arbitration is often favored over litigation for dispute resolution. Particularly in international cases, a businessman may avoid litigation in a foreign country for various reasons: he may be unfamiliar with the proceedings; he may be afraid to find a “forum hostile” because of the different legal and cultural background of the judges; and he may wish to avoid the uncertainty concerning the law arising from the contract. Arbitration proceedings have been held constitutional by the …

Forum Selection And Choice Of Law Clauses In International Contracts: A United States Viewpoint With Particular Reference To Maritime Contracts And Bills Of Lading, Phillip A. Buhler

Articles, Book Chapters, & Popular Press

This Article approaches the topic of forum selection from a U.S. perspective. It is reasonable to expect, however, particularly with regard to bills of lading and maritime trade, that the approach of other nations toward international contracts is, or soon will be, very similar. For the sake of simplicity, "choice of law" and "choice of forum" will be addressed together, and referred to as either "choice of forum" or "forum selection." Many contracts only specify a particular forum, while others specify only the application of a particular law. U.S. courts and international conventions have generally taken the same approach to …

Frustration Of Contracts For The Sale Of Land In Singapore, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

The recent Singapore Court of Appeal decision of Lim Kim Som v. Sheriffa bah bte Abdul Rahman' is significant for at least two specific (and related) rea in the context of the doctrine of frustration: first, because it pertains to the m particular issue as to whether a contract for the sale of land can be frustrated; second, because it also raises certain significant questions with regard to m general aspects of the doctrine itself.

Forum Selection And Choice Of Law Clauses In International Contracts: A United States Viewpoint With Particular Reference To Maritime Contracts And Bills Of Lading, Phillip A. Buhler

Articles, Book Chapters, & Popular Press

This Article approaches the topic of forum selection from a U.S. perspective. It is reasonable to expect, however, particularly with regard to bills of lading and maritime trade, that the approach of other nations toward international contracts is, or soon will be, very similar. For the sake of simplicity, "choice of law" and "choice of forum" will be addressed together, and referred to as either "choice of forum" or "forum selection." Many contracts only specify a particular forum, while others specify only the application of a particular law. U.S. courts and international conventions have generally taken the same approach to …

Severability In Statutes And Contracts, Mark L. Movsesian

Faculty Publications

Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in …

The Influence Of International Practice On The Revision Of Article 5 Of The Ucc, James J. White

Articles

The topic of this symposium is the influence that international law has had on domestic law of the United States. I believe that the story of the revision of Article 5 of the Uniform Commercial Code fits here, but some might dispute that. Although it is certainly fair to say that international practice-in a sense international law-was a powerful influence on the revision of Article 5 of the Uniform Commercial Code, that practice, and the way in which that influence was exerted were almost entirely sui generis to the letter of credit law, practice and history.

Job Security: Protecting At-Will Employees With Good Cause Legislation, Mayumi Yokoyama

LLM Theses and Essays

Recent decades have witnessed significant developments in employment termination law in the United States. In particular, the long-standing “at-will” doctrine, under which employers can fire employees for good, bad, or no reason at all, has experienced great erosion and wide variations in law from state to state. There has been a movement of statutory and common law restrictions limiting an employer’s freedom to terminate at will, which reflects the increasing consciousness of job security by society and workers. This paper analyzes the problem of job security by tracing the origin of the at-will doctrine to 19th century principles favoring economic …

They Came From "Beyond The Pale": Security Interests In Tort Claims, Harold R. Weinberg

Law Faculty Scholarly Articles

"[B]eyond the pale" is how the drafters of Article Nine of the Uniform Commercial Code regarded tort claims. They considered tort claims to be noncommercial assets inappropriate for inclusion as collateral within the scope of a commercial financing statute. Tort claims may not be out-of-bounds much longer. The Article Nine Study Committee of the Permanent Editorial Board for the Uniform Commercial Code recommends expansion of the Article's scope to encompass security interests in claims arising out of tort. This recommendation is significant. Tort causes of action comprise an ever-expanding universe of civil wrongs for which courts afford redress. The owners …

"Instinct With An Obligation" And The "Normative Ambiguity Of Rhetorical Power", Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.

The Intersections Of Articles 2 And 9: Recommendations For Clarification And Revisions, Richard E. Speidel, James J. White

Other Publications

Both Article 2, Sales and Article 9, Secured Transactions are under revision. The process of coordination is underway, but there is still much work to do. The following materials identify the major issues at the intersections and some tentative solutions. All references are to the 1990 Official Text of the Uniform Commercial Code unless otherwise stated. When stated, references are to the October, 1995 Draft of Article 2 and the July, 1995 Draft of Article 9.

Warranties And Remedies On Breach: Proposed Revision Of Article 2 And Related Proposals Concerning Products Liability Law, Richard E. Speidel, James J. White

Other Publications

The following materials contain (1) the warranty provisions, §§2-313 through 2-318, from the October, 1995 Draft of Revised Article 2, Sales, with selected Reporter's Notes; (2) Discussion questions on warranties; and (3) A comparison of Revised Article 2 and the ALl's Products Liability Restatement (Tent. Draft #2, March 13, 1995), with discussion problems.

A Maternalistic Approach To Surrogacy: Comment On Richard Epstein's Surrogacy: The Case For Full Contractual Enforcement, Margaret F. Brinig

Journal Articles

Many of the other participants in this Symposium have written extensively about surrogacy. Not only have they contributed to the debate, in some instances they have framed it. In some respects, therefore, I merely thank all of them and chime in. Unlike my fellow panelists, however, I do not think surrogacy merits an enthusiastic, positive response.

In this Comment, I propose to restate objections to specifically enforceable surrogacy contracts from a family-law perspective as well as from the philosophical or psychological roots of family law. I will then reexamine the problems of surrogacy from a contractarian, law-and-economics perspective, showing how …

An Independent Contractor Speaks His Mind: Can He Lose His Government Contract? An Analysis Of Heiser V. Umbehr, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Heiser v. Umbehr, 515 U.S. 1172 (1995). The author expected the Court to consider whether, and to what extent, a governmental unit can take into account an independent contractor's poltical speech in making decisions regarding the award or termination of government contracts.

Interpreting Insurance Policies, Jeffrey W. Stempel

Scholarly Works

Like any other contract, an insurance policy may become the subject of a legal dispute. When disputes arise over insurance coverage, lawyers must combine their skill in contract interpretation with their knowledge of insurance law, bringing both to bear on the special problems related to this type of contract. Each dispute has unique traits, but a few basic ground rules of contract law and insurance law can help you interpret insurance policies and resolve disputes over insurance coverage.

Internal Governance Standards, Suramya Balachandran

LLM Theses and Essays

Corporate control has a variety of connotations; it can mean the group of individuals who are regarded as “the control” of a corporation, the office of a corporation, or a fiduciary relationship between the office holder and the corporation. Corporate control transactions are changes in a corporation’s structure motivated by the desire for growth of the corporation, such as setting up new divisions, acquiring or being acquired by another corporation, selling or buying stock, and entering or leaving markets. Control transactions have been a successful business practice since the 1980s. The first part of this thesis analyzes the benefits of …

Notification Of Documentary Discrepancies In Letter Of Credit Transactions, Hong Liu

LLM Theses and Essays

The objective of the thesis is to examine only one aspect of the legal relationship between an issuer and a beneficiary, i.e., an issuer’s duties regarding notifying a beneficiary of documentary discrepancies in the letter of credit transactions. To lay down a theoretical foundation, the basic principle of the letter of credit law and policy considerations for this legal obligation will be explored in the thesis. In Chapter II, the relevant provisions of the U.C.C and U.C.P. will be examined and compared. Chapter III will focus on how the courts interpret and apply the U.C.C and U.C.P. in the cases …

Fiduciary Duties As Default Rules, Tamar Frankel

Faculty Scholarship

This Article consists of four parts. Part I draws a profile of fiduciary relationships. It also explains the different responses of fiduciary and contract rules to the different problems that the relationships pose regarding: (1) the right of one party to rely on the other and the specific duties of loyalty and care, which mirror these rights; and (2) the events that trigger the application of fiduciary rules. Finally, it compares contract with fiduciary rules. The reasons for the existence of fiduciary rules suggest that, when in conflict, they trump the rules governing other parallel relationships, including contracts.

Part II …

Fiduciary Rules And Rupa, J. Dennis Hynes

Publications

No abstract provided.

Foreword, J. Dennis Hynes

Publications

No abstract provided.

How To Negotiate A Sales Contract, James J. White

Articles

A. Introduction 1. In my experience, lawyers begin negotiating only after the business people have decided upon the description and quality of the product, the time of delivery, and the mode and amount of payment. The lawyers are left with the pathological problems - who gets what in case of trouble. 2. Most of those pathological problems relate to the seller's responsibility if the product does not conform to the contract or otherwise fails to please the buyer. These failures can cause economic loss to the buyer, economic loss to a remote purchaser, or personal injury or property damage to …

External Sovereignty And International Law, Ronald A. Brand

Articles

This essay addresses the need to redefine current notions of sovereignty. It returns to earlier concepts of subjects joining to receive the benefits of peace and security provided by the sovereign. It diverges from most contemporary commentary by avoiding what has become traditional second-tier social contract analysis. In place of a social contract of states, this redefinition of sovereignty recognizes that international law in the twentieth century has developed direct links between the individual and international law. The trend toward democracy as an international law norm further supports discarding notions of a two-tiered social contract relationship between the individual and …

Sub‐Bailments And Consent, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

Of the two major strands existing in the increasingly important topic of sub- bailment on terms, one has become well settled, the other has been shrouded in ambiguity for close to two decades. The recent Hong Kong Privy Council decision of The Pioneer Container’ reaffirms the first strand and, more importantly, delivers a definitive pronouncement on the second.