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Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty Dec 2015

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …


Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen Nov 2015

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Mark P. Gergen

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …


Theory Of Self-Help Remedies In Contract, A, Mark P. Gergen Nov 2015

Theory Of Self-Help Remedies In Contract, A, Mark P. Gergen

Mark P. Gergen

The article discusses the positive and normative aspects of self-help remedies in contracts. Self-remedies are defined as actions that a party may take in a bid to resolve a breach of contract without the need to go to court. It is said that the power to withhold performance amid a breach tends to be used with the power to refuse non-conforming performance. The author believes that the law of self-help allows a great deal of waste in avoiding the risk of short-changing contract rights, leading to the undermining of the theory of efficient breach.


Tortious Interference: How It Is Engulfing Commercial Law, Why This Is Not Entirely Bad, And A Prudential Response, Mark P. Gergen Nov 2015

Tortious Interference: How It Is Engulfing Commercial Law, Why This Is Not Entirely Bad, And A Prudential Response, Mark P. Gergen

Mark P. Gergen

No abstract provided.


A Defense Of Judicial Reconstruction Of Contracts, Mark P. Gergen Nov 2015

A Defense Of Judicial Reconstruction Of Contracts, Mark P. Gergen

Mark P. Gergen

No abstract provided.


Colloquy, Transactional Economics: Victor Goldberg’S Framing Contract Law, Keith A. Rowley, Mark P. Gergen, Victor Goldberg, Stewart Mcaulay Nov 2015

Colloquy, Transactional Economics: Victor Goldberg’S Framing Contract Law, Keith A. Rowley, Mark P. Gergen, Victor Goldberg, Stewart Mcaulay

Mark P. Gergen

Panel discussion among law faculty who teach contracts of 2007 book authored by Victor Goldberg, which suggests that an economic approach to contract interpretation is appropriate.


Implementing A Franchise Player Designation System In The National Basketball Association, Scott Bukstein Jd, Jacob Eisenberg Oct 2015

Implementing A Franchise Player Designation System In The National Basketball Association, Scott Bukstein Jd, Jacob Eisenberg

Scott Bukstein JD

This article proposes that the NBA adopt a franchise player designation system in specifically defined circumstances—for first-round picks who last played under a four-year rookie salary scale contract and for players who last played under a multi-year contract signed in free agency with an average annual salary of at least $10 million. Part I of this article summarizes the use of franchise and transition player designations in the NFL. Part II of this article explains why the NFL franchise tag model would not be effective in the NBA, and details preliminary issues to consider with respect to developing and implementing …


Case Comment: Smyth V. Szep Unsettling Settlements: Of Unconscionability And Other Things, David Vaver Oct 2015

Case Comment: Smyth V. Szep Unsettling Settlements: Of Unconscionability And Other Things, David Vaver

David Vaver

The recent decision of the British Columbia Court of Appeal in Smyth v. Szep once again canvasses the validity of releases signed by injured victims in favour of insurance companies and once again plunges into the murky waters of contractual unconscionability. Both issues have become more or less permanent squatters on judicial calendars throughout North America, and it seems worthwhile to consider why this is so and whether something can be done to reduce their tenure at least in Canada.


Three Recent Works On Contractual Interpretation [Part 2], John D. Mccamus Oct 2015

Three Recent Works On Contractual Interpretation [Part 2], John D. Mccamus

John D. McCamus

No abstract provided.


Authority For Sale And Privity Of Contract: The Proprietary Basis Of The Right To The Proceeds Of Sale In The Common Law, Benjamin Geva Oct 2015

Authority For Sale And Privity Of Contract: The Proprietary Basis Of The Right To The Proceeds Of Sale In The Common Law, Benjamin Geva

Benjamin Geva

Upon an authorized sale of goods, the owner's ability to recover the price from the buyer can be explained either by his property in the goods or by a contractual relationship. This article deals with the right to recover the price in the context of an historical and theoretical analysis of the right to the proceeds of a sale at common law. It is suggested that property is the basis of this right, rather than a contractual nexus. Part I presents the sale of goods by an agent of an undisclosed principal as a model situation in which the right …


Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson Sep 2015

Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson

Lyman P. Q. Johnson

This short article is based on a talk at Emory Law School on Transactional Lawyering. One overall pedagogical aim of a transactional course (or any business contract drafting course) is to link skills training with insistence on in-depth substantive learning about law and business. In this way, skills training – although acknowledged to be practical – also can be recognized as intellectually demanding, a point not always appreciated by proponents of more traditional law teaching. Two techniques for making the connection – in-office meetings and detailed “companion” analytical memos – are described.


Remedies: A Guide For The Perplexed, Doug Rendleman Sep 2015

Remedies: A Guide For The Perplexed, Doug Rendleman

Doug Rendleman

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …


Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen Sep 2015

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Doug Rendleman

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …


Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii Sep 2015

Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii

James T Gathii

No abstract provided.


La Resolución Por Incumplimiento Y El Resarcimiento De Daños. Precisiones En Torno A Su Acumulación Procesal, Jimmy J. Ronquillo Pascual Sep 2015

La Resolución Por Incumplimiento Y El Resarcimiento De Daños. Precisiones En Torno A Su Acumulación Procesal, Jimmy J. Ronquillo Pascual

Jimmy J. Ronquillo Pascual

No abstract provided.


Hoja De Vida, Marta Luisa Ramirez Mejia Ms Aug 2015

Hoja De Vida, Marta Luisa Ramirez Mejia Ms

MARTA LUISA RAMIREZ MEJIA MS

No abstract provided.


Tenure Rights In Contractual And Constitutional Context, Ronald C. Brown Aug 2015

Tenure Rights In Contractual And Constitutional Context, Ronald C. Brown

Ronald Brown

No abstract provided.


Por La Supremacía Del Crédito Inscrito Ante La Propiedad No Inscrita., Fort Ninamancco Córdova Aug 2015

Por La Supremacía Del Crédito Inscrito Ante La Propiedad No Inscrita., Fort Ninamancco Córdova

Fort Ninamancco Cordova

Nota publicada en El Peruano, que contiene una breve síntesis de mi ponencia como Amicus curiae ante el VII Pleno Casatorio Civil. De igual forma, denuncio la falsedad que se ha venido difundiendo, según la cual el TC y la Corte CIDH tiene decisiones que favorecen la primacía de la propiedad no inscrita, cuando, en realidad, sucede todo lo contrario.


La Supremacía Constitucional Del Crédito Inscrito Sobre La Propiedad No Inscrita, Fort Ninamancco Córdova Jul 2015

La Supremacía Constitucional Del Crédito Inscrito Sobre La Propiedad No Inscrita, Fort Ninamancco Córdova

Fort Ninamancco Cordova

Ensayo en el que se desmienten ciertas afirmaciones, de corte constitucional, sobre el VII Pleno Casatorio Civil.


Payment Methods For Consumer-To-Consumer Online Transactions, 35 Akron L. Rev. 1 (2001), David E. Sorkin Jul 2015

Payment Methods For Consumer-To-Consumer Online Transactions, 35 Akron L. Rev. 1 (2001), David E. Sorkin

David E. Sorkin

No abstract provided.


Using Occam’S Razor To Solve International Attorney-Client Privilege Choice Of Law Issues: An Old Solution To A New Problem, Nathan M. Crystal, Francesca Giannoni-Crystal Jul 2015

Using Occam’S Razor To Solve International Attorney-Client Privilege Choice Of Law Issues: An Old Solution To A New Problem, Nathan M. Crystal, Francesca Giannoni-Crystal

Nathan M. Crystal

The practice of law is increasingly becoming “delocalized.” Globalization and the use of technology are two important factors in this fundamental change in practice. Delocalization is affecting almost all areas of practice, including issues involving attorney-client privilege (ACP). To some extent the choice-of-law rules governing ACP are also – like other fields of the law - being “delocalized,” but in our view only partially. This paper discusses six approaches to choice of law issues governing ACP that are being used by the courts. Aside from the traditional lex loci approach (which simply applies the law of the forum to the …


Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra Jul 2015

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …


Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra Jul 2015

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …


Determining Limitation Periods For Actions Arising Under Federal Statutes, Neil Sobol Jul 2015

Determining Limitation Periods For Actions Arising Under Federal Statutes, Neil Sobol

Neil L Sobol

No abstract provided.


The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes Jul 2015

The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes

Wayne R. Barnes

Most of the world, including Anglo-American jurisdictions, conforms to the objective theory of contract, which posits that contract formation is determined by reference solely to external evidence of manifestations of assent. On the other hand, France uniquely clings to the rhetoric of its “subjective” theory of contract, championing the freedom of the individual and the autonomy of the will. France’s association with a subjective theory of contract is widely recognized and assumed. One would initially assume that the French subjectivist philosophy would result in dramatically different outcomes in actual cases, when compared with the objectivist rules-based perspective that obtains in …


The Objective Theory Of Contracts, Wayne Barnes Jul 2015

The Objective Theory Of Contracts, Wayne Barnes

Wayne R. Barnes

The objective theory of contracts is the dominant approach for determining whether there has been mutual assent to the formation of a contract. Under objective theory, a party’s manifestation of assent will be held to mean what a reasonable person in the position of the other party would conclude that the manifestation meant. The objective theory is a sound approach for determining assent because: it reflects the pragmatic reality that the law must be largely based on externals rather than the whim of subjective perception, it protects the basis for economic exchanges in our commercial system by enforcing the expectations …


Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes Jul 2015

Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes

Wayne R. Barnes

The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …


Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes Jul 2015

Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes

Wayne R. Barnes

Standard form contract are ubiquitous, whether signed in the real world or clicked in the online world. Consumers are constantly entering into standard form contracts with the merchants they transact with in order to buy goods or services. Consumers, however, are usually aware of only the basic terms in the form like price, subject matter, and quantity. Consumers otherwise rarely read the form contracts that they sign. However, traditional contract law and the duty to read provide that the consumer is bound to all the terms contained in the form contract, both the known terms and the unread and unknown …


Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes Jul 2015

Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes

Wayne R. Barnes

When Allan Farnsworth passed away on January 31, 2005, the world lost a titan in the field of contracts. Farnsowrth has been described as “the great contemporary American scholar, and one of a handful of great world scholars, on the law of agreement...[He] was...perhaps The Authority on the law of contracts and much more.” Similarly, others have called him “the premiere figure in American Contracts law scholarship since the passing of Corbin and Dawson. The treatise and his half of the Second Restatement would be quite a contribution if there was nothing else.” Farnsworth’s casebook is perennially the most widely-adopted …


Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes Jul 2015

Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes

Wayne R. Barnes

Standard-form contracts permeate our very existence, and now even include contracts we assent to online by way of “clickwrap” and “browsewrap” methods. Notwithstanding the ever-increasing presence and complexity of such standard-form contracts, both offline and online, the law of contracts in this area has remained fairly static since the 18th century and before. The only meaningful salve to this problem thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to protect consumers’ interests in this area. Section 211(3) of the Restatement …