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2005

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Full-Text Articles in Law

The Exit Structure Of Venture Capital, D. Gordon Smith Dec 2005

The Exit Structure Of Venture Capital, D. Gordon Smith

Faculty Scholarship

Venture capital contracts contain extensive provisions regulating exit by the venture capitalists. In this Article, Professor Smith employs financial contracting theory in conjunction with original data collected from 367 venture-backed companies to analyze these exit provisions. He concludes that the combination of exit provisions in a typical venture capital relationship serves to lock venture capitalists into the investment during the initial stage. In later stages of the relationship, the venture capitalists acquire increasing control over exit by securing additional seats on the board of directors and by obtaining contractual exit rights. The result is a sophisticated transfer of control from ...


Stipulations In A Muslim Marriage Contract With Special Reference To Talq Al-Tafwid Provisions In Paksitan, Muhammad Munir Dr. Dec 2005

Stipulations In A Muslim Marriage Contract With Special Reference To Talq Al-Tafwid Provisions In Paksitan, Muhammad Munir Dr.

Dr. Muhammad Munir

This work elaborates the over-technical topic of stipulations in a Muslim marriage contract; explains the various types of stipulations benefiting women and men; explains how and to what extent classical Islamic law is incorporated into statutes of many Muslim states; describes case law of Indo-Pak subcontinent on stipulations based on the doctrine of stare decisis; surveys talaq al-tafwid in Pakistan to ascertain the extent of its practical application by the masses; and explore the role of nikah registrars, who are authorized by the government of Pakistan to solemnize nikah (marriage contract) throughout the country.


The Judicial System Of The East India Company: Precursor To The Present Pakistani Legal System, Muhammad Munir Dr. Dec 2005

The Judicial System Of The East India Company: Precursor To The Present Pakistani Legal System, Muhammad Munir Dr.

Dr. Muhammad Munir

The work discusses how the British East India Company came to the subcontinent for the purpose of trade in 1604 and how it slowly and gradually started interfering in the local justice system by acquiring revenue collection of 38 villages in 1717 near Calcutta. In 1765 the Company was granted revenue collection as well as customs of three provinces. The Company also acquired the administration of justice in the areas under its control and the role of Muslim qadis and judges was over. Company’s officials, who were traders rather than trained judges, were running the court system and the ...


Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps Dec 2005

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps

ExpressO

This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the ...


“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic Dec 2005

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner ...


Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam Gilles Dec 2005

Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam Gilles

Michigan Law Review

It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term "collective action waivers" - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer ...


Preparing For Cafta-Dr: The Need Of Commercial Law Reform In Central America, Omar E. Garcia-Bolivar Nov 2005

Preparing For Cafta-Dr: The Need Of Commercial Law Reform In Central America, Omar E. Garcia-Bolivar

ExpressO

This article explores the policies, laws and institutions that may prevent Central American States from exploiting the opportunities provided by the CAFTA-DR. In that sense, we examine several of the legal factors that appear to be important in determining economic growth as they apply to the commercial legal conditions of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua.


"Boilerplate": An Introduction, Omri Ben-Shahar Nov 2005

"Boilerplate": An Introduction, Omri Ben-Shahar

Law & Economics Working Papers Archive: 2003-2009

This short essay introduces the themes that are developed in twelve articles that were delivered recently in a symposium on “Boilerplate: Foundations of Market Contracts” at the University of Michigan Law School. The proceeding of the symposium will be published in Volume 104 of the Michigan Law Review.


Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White Nov 2005

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

Law & Economics Working Papers Archive: 2003-2009

This article studies the standard form contracts used by automobile manufacturers to purchase auto parts. It explores how the contracts reflect divisions of bargaining power, asymmetric information, problems of hold-up and renegotiation, and market competition. Based on interviews with representatives of buyers and suppliers, the article also describes the process of drafting the forms, the negotiation over price and other terms in the shadow of these forms, and the opportunities for non-drafters to extract improved terms. Some of the main lessons are: (i) The terms of the contracts and the bidding process prevent ex-post hold-up by suppliers (in contrast to ...


Wills, Trusts, And Estates, J. Rodney Johnson Nov 2005

Wills, Trusts, And Estates, J. Rodney Johnson

University of Richmond Law Review

The General Assembly enacted legislation dealing with wills, trusts, and estates that added or amended a number of sections of the Virginia Code in its 2005 Session. In addition, there were two opinions from the Supreme Court of Virginia that presented issues of interest to the general practitioner as well as to the specialist in wills, trusts, and estates during the period covered by this review. This article reports on all of these legislative and judicial developments.


Appraising A Presumption: A Modern Look At The Doctrine Of Specific Performance In Real Estate Contracts, Jason S. Kirwan Nov 2005

Appraising A Presumption: A Modern Look At The Doctrine Of Specific Performance In Real Estate Contracts, Jason S. Kirwan

William & Mary Law Review

No abstract provided.


The Virginia Uniform Trust Code, John E. Donaldson, Robert T. Danforth Nov 2005

The Virginia Uniform Trust Code, John E. Donaldson, Robert T. Danforth

University of Richmond Law Review

In its 2005 Session, the Virginia General Assembly enacted Senate Bill 891,1 thus adopting the Uniform Trust Code ("UTC"), with modifications considered appropriate to this state's institutions, traditions, and jurisprudence. The Virginia Uniform Trust Code ("Virginia UTC"), set forth in new Chapter 31 of Title 55 of the Virginia Code, has an effective date of July 1, 2006, but, once in effect, it will be applicable (with some exceptions) to trusts created before, on, or after that date. The new Virginia UTC, which encompasses the great bulk of the principles and rules that comprise the law of trusts ...


Summary Of Canfora V. Coast Hotels & Casinos, Inc., 121 Nev. Adv. Op. 76, Daria Snadowsky Oct 2005

Summary Of Canfora V. Coast Hotels & Casinos, Inc., 121 Nev. Adv. Op. 76, Daria Snadowsky

Nevada Supreme Court Summaries

The Canforas appealed the district court’s order that they reimburse Coast Hotels in accordance with a subrogation clause and reimbursement agreement. The Canforas unsuccessfully argued that various contract and civil procedure principles precluded Coast Hotels from recovering its expenses


Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne Oct 2005

Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne

Dalhousie Law Journal

As a general rule, contracts law does not permit an award of general damages for mental distress or other intangible loss. There are several rationales for this, including: plaintiffs are to bear their disappointment or upset with mental fortitude; without the rule, courts would be awash in litigation since every breach of contract brings with it some degree of emotional distress; without the rule, plaintiffs may fabricate or exaggerate the degree of their upset; and the rule simply reflects the lack of foreseeability of such loss under Hadley v. Baxendale. Notwithstanding the general rule, courts have awarded mental distress in ...


Exclusive Dealing, The Theory Of The Firm, And Raising Rivals' Costs: Toward A New Synthesis, Alan J. Meese Oct 2005

Exclusive Dealing, The Theory Of The Firm, And Raising Rivals' Costs: Toward A New Synthesis, Alan J. Meese

Faculty Publications

No abstract provided.


Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay Sep 2005

Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay

Boston College Law School Faculty Papers

Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without ...


Resolving The Paradox Of The Consideration Doctrine: The Implications Of Inefficient Signaling And Of Anti-Commodification Norms, David S. Gamage Sep 2005

Resolving The Paradox Of The Consideration Doctrine: The Implications Of Inefficient Signaling And Of Anti-Commodification Norms, David S. Gamage

ExpressO

This paper addresses one of the central problems of contract law, a puzzle that has troubled generations of contracts scholars: Why do we only enforce promises backed by consideration? Or, how can we justify insisting on the bargain context, but not requiring that the bargains be adequate? The lack of a theoretical solution to this puzzle has plagued the application of the consideration doctrine in courts of law.

We resolve this paradox through two innovations. First, using a game theory model based on asymmetric information, we dispute the common wisdom that the law should honor parties’ intentions as articulated at ...


Casenote: Killing Life Partners: Why Viatical Settlements Constitute Securities – In Light Of The Sec V. Mutual Benefits Corporation And Other Recent Cases Explicitly Rejecting Life Partners, Brian Levin Sep 2005

Casenote: Killing Life Partners: Why Viatical Settlements Constitute Securities – In Light Of The Sec V. Mutual Benefits Corporation And Other Recent Cases Explicitly Rejecting Life Partners, Brian Levin

ExpressO

No abstract provided.


Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor Sep 2005

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.


Remedies And The Cisg: Another Perspective, Robert A. Hillman Sep 2005

Remedies And The Cisg: Another Perspective, Robert A. Hillman

Cornell Law Faculty Publications

In this brief comment, I apply behavioral decision theory to the question of the enforcement in transnational sales of super-compensatory agreed damages. I conclude that a good case can be made that such damages provisions should be enforced.


Arbitration Of Employer Violations Of The West Virginia Human Rights Act: West Virginia Should Make Like Ants Marching And Continue Its Pursuit Of Bliss, Nicholas S. Johnson Sep 2005

Arbitration Of Employer Violations Of The West Virginia Human Rights Act: West Virginia Should Make Like Ants Marching And Continue Its Pursuit Of Bliss, Nicholas S. Johnson

West Virginia Law Review

No abstract provided.


Bargaining Power In Contract Theory, Daniel D. Barnhizer Aug 2005

Bargaining Power In Contract Theory, Daniel D. Barnhizer

ExpressO

This Article analyzes the role that legal conceptions of bargaining power play in defining the jurisprudence of contract law. Contract law cannot ignore bargaining power asymmetries. Unchecked power imbalances in the bargaining context soon become indistinguishable from naked coercion, and at some level the imbalance undermines both the consent of the weaker party and the legitimacy of the resulting bargain. The debate over the role of the legal doctrine of inequality of bargaining power and subdoctrines such as unconscionability and duress has largely focused on whether and how the state should intervene in individual private agreements to correct perceived power ...


Contracts Concluded By Electronic Agents - Comparative Analysis Of American And Polish Legal Systems, Aleksandra M. Jurewicz Aug 2005

Contracts Concluded By Electronic Agents - Comparative Analysis Of American And Polish Legal Systems, Aleksandra M. Jurewicz

ExpressO

This article analyzes the US and Polish law on contract formation by electronic agents. It persents the main similarities and differences in the approaches of common and civil legal systems. Finally, it discusses changes in legal theories in Poland that had to be made in order to comply with standards of electronic commerce.


Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward Aug 2005

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to ...


Summary Of Sheehan & Sheehan V. Nelson Malley & Co., 121 Nev. Adv. Op. 49, Kimberly Lou Aug 2005

Summary Of Sheehan & Sheehan V. Nelson Malley & Co., 121 Nev. Adv. Op. 49, Kimberly Lou

Nevada Supreme Court Summaries

In this case, the Nevada Supreme Court reviews the district court’s interpretation of a contractual covenant not to compete and a liquidated damages clause. The Court states that unless clearly erroneous, it will affirm a district court’s decision on whether a contract was breached or not. However, the Court does not have to use the district court’s construction of a contract to make that determination. The Court may use independent appellate review to construe contracts.


Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review Of Lynn M. Lopucki, "Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts", Todd J. Zywicki Aug 2005

Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review Of Lynn M. Lopucki, "Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts", Todd J. Zywicki

George Mason University School of Law Working Papers Series

In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki’s book argues that that current bankruptcy venue rules have spawned an improper “competition for big cases” that has “corrupted” America’s bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.

This essay reviews ...


¿Periculum Est Dubitabilis? Algunas Precisiones Sobre El Papel Del Riesgo En La Contratación Privada, José Juan Haro Aug 2005

¿Periculum Est Dubitabilis? Algunas Precisiones Sobre El Papel Del Riesgo En La Contratación Privada, José Juan Haro

José Juan Haro Sr.

No abstract provided.


Advertisements Misrepresentation And Remedies, Narsimha Rao A.V Aug 2005

Advertisements Misrepresentation And Remedies, Narsimha Rao A.V

Dr. A.V Narsimha Rao

Advertisements, with their effective designs and statements, influence people in their decision-making. With the exaggerated information, advertisments mislead and dissatisfy the consumer, who in turn becomes a bad advertiser. Due to this, the advertisers face embarrassing situations and pay a heavy price for their mistake. So it is essential to formulate a policy for advertising and make sure they work within the legal framework and in accordance with the codes created for the purpose of maintaining advertisement standards.


Extraterritorial Courts For Corporate Law, Henry Hansmann, Jens Dammann Aug 2005

Extraterritorial Courts For Corporate Law, Henry Hansmann, Jens Dammann

Faculty Scholarship Series

A central goal in devising a system of courts is to make judicial services easily accessible. As a consequence, justice is usually administered in a geographically decentralized fashion: trial courts are distributed across the territory in which the jurisdiction’s law is applied. Corporate law, however, does not fit this pattern: courts are often located far away from the companies subject to their jurisdiction. In particular, Delaware law governs most publicly-traded firms in the U.S., and is now extending its reach to encompass corporations headquartered around the globe. But Delaware courts are located only in Delaware. Consequently, there is ...


Court Grants No Leniency For Maritime Lien Claim,, Jonathan Lew Aug 2005

Court Grants No Leniency For Maritime Lien Claim,, Jonathan Lew

Sea Grant Law Fellow Publications

No abstract provided.