Law Commons^™

Contracting In The Modern World, Enrico Baffi

enrico baffi

In this paper we try explore some of the basic features of mass contracting. In our opinion, there are basically four characteristics of mass contracting: the reduced negotiations, the dissemination of standard form contracts, the presence of abusive clauses, and the recapitulation of the contract and its execution in a single act of stipulation. a) The reduction in negotiations is the result first of all of the costs that this activity requires and of the costs required to manage personalised contracts; secondly, this reduction is the consequence of the greater advantage of mass-produced goods compared to personalised goods; ) The …

Federalism And Company Law, Richard M. Buxbaum

Richard M. Buxbaum

No abstract provided.

Politics And Legal Regulation In The International Business Environment: An Fdi Case Study Of Alstom, S.A., In Israel, Jeffrey A. Van Detta

Jeffrey A. Van Detta

This article identifies and carefully considers the panoply of municipal and international legal issues that arise from a hypothetical Foreign Direct Investment (FDI) by one of the world’s largest Multi-National Enterprises (MNEs). Specifically, the article fleshes out a detailed FDI analytic framework as we considered the hypothesized—yet, entirely plausible—investment by Alstom, S.A., in Israel’s energy sector: joint-venturing with Israel’s Multimatrix, Ltd., to employ Alstom’s world-class wind-power expertise in developing a 75-turbine wind farm on the wind-swept Golan Heights, one of the Occupied Territories.

Among the specific issues addressed are:

1. The political situation in Israel, Syria, and Iran;

2. The …

Public Goods And Contract Standard Clauses: A New Approach, Enrico Baffi

enrico baffi

The aim of this work is to show how it is possible to identify market failures other than those traditionally identified by lawyers and law and economics scholars to justify the mandatory provisions of contracts between professionals and consumers and the equally mandatory provisions governing the abuse of economic dependency. This is a new approach that can be extended to other provisions and appears to rest on fairly solid microeconomic foundations. There is no doubt, however, that many criticisms can be leveled against it. Very briefly, I shall argue that the production of clauses characterized by being rather vague, indeterminate …

Employers United: An Empirical Analysis Of Corporate Political Speech In The Wake Of The Affordable Care Act, Elizabeth Weeks Leonard, Susan Scholz, Raquel Meyer Alexander

Elizabeth A. Weeks

Is the Patient Protection and Affordable Care Act (ACA) bad for business? Did the countries' most prominent companies game the Securities and Exchange Commission (SEC) disclosure process to make negative political statements about ObamaCare? Immediately following the ACA's enactment on March 23, 2010, a number of companies drew scrutiny for issuing SEC filings writing off millions – and in AT&T's case, one billion dollars – against expected earnings for 2010 alone, based on a single, discrete tax-law change in the ACA. Congressional and Administration officials accused the firms of being “irresponsible” and using “big numbers to exaggerate the health reform's …

U.S.Foreign Trade Zones, Tax-Free Trade Zones Of The World, And Their Impact On The U.S. Economy, Susan W. Tiefenbrun

Susan W Tiefenbrun

ABSTRACT

U.S. Foreign Trade Zones, Tax-Free Trade Zones of the World, and Their Impact on the United States Economy , by Susan Tiefenbrun

Free trade zones (FTZs) date back to the time of the Phoenicians; they developed in the l970s and proliferated from 1980 until today. FTZs are duty-free areas where goods may be warehoused, processed, sold, serviced, distributed, showcased, packaged, labeled, sorted, assembled, and/or manufactured as finished goods prior to re-exporting them as duty-exempt finished products. More than one 135 countries operate tax-free trade zones. There are more than 3,500 of these zones and subzones all over the world, …

Comparative Negligence And Mitigation Of Damages: Two Sister-Doctrines In Search Of Reunion, Yehuda Adar Dr.

Yehuda Adar Dr.

This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation …

Jurisdiction Of Arbitration Tribunals In France, Ozlem Susler Ms

OZLEM SUSLER MS

This article relates to international commercial arbitration as it examines the jurisdiction of arbitral tribunals to rule on their own jurisdiction. It reviews arbitral jurisdiction in France by considering the principle of compétence- compétence as applied by its national courts. Although this principle is recognised in the national arbitration laws of many jurisdictions, there are some important differences. For instance, there is divergence in relation to the stage at which judicial intervention occurs and the degree of intervention by courts of different countries. Divergence is also observed in the type of judicial review undertaken by the courts. This article focuses …

Federal Common Law And The Courts’ Regulation Of Pre-Litigation Preservation, Joshua Koppel

Joshua M. Koppel

With the proliferation in recent years of electronically stored information and the skyrocketing cost of retaining large amounts of data, issues of preservation have played an increasing role in litigation. Companies and individuals that anticipate that they will be involved in litigation in the future may be obligated to preserve relevant evidence even before litigation is initiated. Because litigation has not yet commenced, they cannot seek clarification regarding their obligations from a court or negotiate them with an adverse party. Statutory or common law preservation duties play a large role in guiding potential litigants in this area.

The federal courts …

Epic Fail: An Institutional Analysis Of Financial Distress, Jonathan C. Lipson

Jonathan C. Lipson

This paper presents an institutional analysis of financial distress. “Institutional analysis” compares the effectiveness of large-scale processes, such as markets, courts, and governments, at solving social problems. Although financial distress is one of our most acute problems, there has been virtually no effort to analyze it from an institutional perspective. This paper begins to fill that gap.

Institutional analysis shows that, contrary to conventional wisdom, financial distress is not a problem that courts, such as bankruptcy courts, usually solve by themselves. Instead, it is increasingly a problem that political organs (whether elected or regulatory) both create and purport to resolve. …

Risk Based Student Loans, Michael Simkovic

Michael N Simkovic

Credit markets serve a vital function in capitalist economies: evaluating the riskiness of a range of possible investments and channeling resources toward those investments that investors believe are most likely to prove successful. This process is known as the “risk-based pricing” of credit. Ideally, risk-based pricing should lead to lower cost of capital for lower risk investment choices with larger rewards, and therefore more investment in such promising activities. Conversely, risk-based pricing should lead to higher costs of capital, and therefore less investment, in high-risk activities with relatively low rewards. If creditors are well informed and analytic, and borrowers respond …

Illuminating Corruption Pathways: Modifying The Fcpa’S “Grease Payment” Exception To Galvanize Anti-Corruption Movements In Developing Nations, Ivan Perkins

Ivan Perkins

The Article proposes a new web-based reporting and publication system for “grease” or “facilitating” payments under the Foreign Corrupt Practices Act (“FCPA”). The FCPA penalizes the bribery of foreign government officials, but contains an exception for facilitating payments, made to expedite “routine governmental actions” such as mail or telephone services. Noting the ambiguities within the exception, many commentators and practitioners have called for its abolition. The Article proposes a different solution: entities making facilitating payments should be required to report these payments to the Department of Justice (“DOJ”). Then, the DOJ would publish this information on a website, with graphics …

If The Shoe Of The Sec Doesn't Fit: Self-Regulatory Organizations And Absolute Immunity, Jennifer M. Pacella, Esq.

Jennifer M. Pacella, Esq.

In recent years, the absolute legal immunity granted to self-regulatory organizations (“SROs”) in the securities industry has incited increasingly controversial concerns about the lack of accountability of financial regulators. Although SROs like the Financial Industry Regulatory Authority (“FINRA”) are deemed to “stand in the shoes” of the Securities and Exchange Commission (“SEC”) by carrying out delegated, quasi-governmental duties in monitoring securities markets, their alternate role as private, commercial entities raises questions as to the fairness of expansive SRO immunity. Plaintiffs have historically been denied any redress even in instances of alleged SRO fraud, misconduct and bad faith. Earlier this year, …

The Dog That Didn't Bark: Private Investment Funds And Relational Contracts In The Wake Of The Great Recession, Robert Illig

Robert C Illig

In the aftermath of the subprime mortgage crisis, the contract rights of numerous hedge funds and venture capital funds were breached. These contracts were complex and sophisticated and had been negotiated at great time and expense. Yet despite all of the assumptions of neo-classical contracts theory, nothing happened. Practically none of these injured parties sued to enforce their rights. Professor Illig uses this dearth of litigation to conduct a form of natural experiment as to the value of contract law. Discrete market participants contracted before the crash and then pursued their rights in court afterwards, while relational market participants contracted …

Private Lawmaking And The Architecture Of Confidentiality In Nonprofit Boardrooms, Norman I. Silber

Norman I. Silber

Abstract

Placement of the boundary line between transparent and confidential deliberation inside a boardroom affects the quality, efficiency, and fairness of corporate decision making. Policies which do not insist upon confidentiality can improve the perceived legitimacy of decisions and of those who make them; confidentiality can improve the ability to implement decisions effectively. The degree of transparency facilitated by these policies affects the volume and quality of available information. In the nonprofit boardroom, the boundaries that are set by governance rules also reflect and give shape to institutional structures and cultural norms.

This article explores justifications for changing from a …

The English Approach To Compétence-Compétence, Ozlem Susler Ms

OZLEM SUSLER MS

This article examines the jurisdiction of arbitral tribunals to rule on their own jurisdiction. It reviews arbitral jurisdiction in the United Kingdom by considering the principle of compétence-compétence as provided for in its arbitration law. The term compétence-compétence – also referred to as compétence sur la competence or kompetenz-kompetenz – confers a right on arbitrators to decide their own jurisdictional authority to hear a dispute and is essential to the practice of international commercial arbitration.Although this principle is recognised in the national arbitration laws of many jurisdictions, there are some important differences. For instance, there is divergence in the stage …

Cadbury Twenty Years On, Cally Jordan

Cally Jordan

This year marks the twentieth anniversary of the publication of the Cadbury Report, one of the most significant events in modern corporate governance. The Cadbury Report, and its simple two page “best practices”, triggered a global debate on corporate governance. “Cadbury” codes of corporate governance spread like wildfire. The legacy of the Cadbury Report lives on in the UK with no diminution in the appeal of its voluntary code/comply or explain approach to corporate governance. But there are several clouds looming on the horizon. Comply or explain and voluntary codes of corporate governance appear to have run their course elsewhere …

Major Violations For The Ncaa: How The Ncaa Can Apply The Dodd-Frank Act To Reform Its Own Corporate Goverance Scheme, Jason Rudderman

Jason Rudderman

This paper applies the Dodd-Frank Act, and specifically its corporate governance laws, to the National Collegiate Athletic Associate (NCAA). The NCAA has experienced rapid, largely uncontrolled growth over the past decade that has led to an influx of corporate governance and regulatory problems within its member institutions. As with financial institutions, the influx of money itself is not the inherent problem. Money in college athletics is good. When large schools succeed, they help support smaller schools in their conference through revenue sharing plans. It is the lack of control and governance mechanisms regulating the influx of money that poses the …

Brands As Food For Thought: The Case For Regulating Food Brands, Amir H. Khoury

Amir Khoury

Every brand, in its original capacity as a trademark, is intended to identify and to differentiate a certain type of product or service from other competing products or services. This is the original purpose of marks. But, over time, this (original) purpose has been overrun by a different reality. Food Brands now harness a dual power or impact. The first refers to their Market Impact i.e. their ability to overshadow competing brands, and the other relates to their Consumption Impact; i.e. their ability to generate wants and to shape the image of the foods that we consume. This is not …

Debtor’S Prison In The Neoliberal State: “Debtfare” And The Cultural Logics Of The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Linda E. Coco

Linda E. Coco

The enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) of 2005, amending the Bankruptcy Reform Act of 1978, marks a transformation in bankruptcy law and policy that is representative of larger shifts in dominant economic and political models from “embedded liberalism” to free market “neoliberalism.” BAPCPA’s provisions are part of the new practices of the emergent neoliberal state as they relate to the American middle class segment of the population. In disciplining the middle class, BAPCPA shifts the risk and the responsibility of the lending relationship onto consumer debtors. BAPCPA does this by keeping financially distressed individuals …

Debtor’S Prison In The Neoliberal State: “Debtfare” And The Cultural Logics Of The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Linda E. Coco

Linda E. Coco

The enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) of 2005, amending the Bankruptcy Reform Act of 1978, marks a transformation in bankruptcy law and policy that is representative of larger shifts in dominant economic and political models from “embedded liberalism” to free market “neoliberalism.” BAPCPA’s provisions are part of the new practices of the emergent neoliberal state as they relate to the American middle class segment of the population. In disciplining the middle class, BAPCPA shifts the risk and the responsibility of the lending relationship onto consumer debtors. BAPCPA does this by keeping financially distressed individuals …

The Role Of The Law In The Availability Of Public Transit And Affordable Housing In Atlanta’S West End, Elliott Lipinsky

ELLIOTT LIPINSKY

Single family home prices in West End will remain below $250,000 on average due to the generous grants and investment incentives provided by the City of Atlanta and the State of Georgia. Atlanta wants to create affordable, well-designed urban housing. This housing will provide anyone in Atlanta an affordable place to live. The West End is the perfect example of the City’s attempts to create such an environment. Furthermore, the Sky Lofts of West End offer brand new affordable housing in the West End through developer grants, tax abatements, and down payment loans. These government-created incentives have provided affordable housing …

The Meaning Of Essentially At Home In Goodyear Dunlop, Allan Stein

South Carolina Law Review

No abstract provided.

Forum Shopping And The Cost Of Access To Justice: Cost And Certainty In International Commercial Litigation And Arbitration, Ali Assareh

Ali Assareh

International commercial transactions sometimes give rise to disputes. Resolving these disputes requires access to justice (whether through litigation or arbitration), and access to justice costs money⎯in some cases, enough money to overshadow the substance of the underlying dispute. Knowing this, international commercial parties almost always include a “dispute resolution” clause in their contracts. Yet, despite their prevalence and importance in managing future arbitration and litigation costs, dispute resolution clauses are often poorly negotiated and hastily drafted, perhaps because some factors that affect the cost of resolving future disputes are not known by the parties ex ante. But, while some factors …

The More Favorable Regime For Confirming International Arbitral Awards Made In The U.S.: A Choice Within The ‘Overlapping Coverage’ Of Faa Chapters One And Two, Suyash Paliwal

Suyash Paliwal

According to U.S. courts, Chapters One and Two of the Federal Arbitration Act provide “overlapping coverage” over arbitral awards that were made in the U.S. and also fall under the New York Convention. The meaning of “overlapping coverage” under U.S. arbitral law remains unclear, but affects the defeated party’s ability to challenge the conversion of these awards to court judgments and, consequently, the parties’ decision to seat an arbitration in the U.S. According to every Circuit that has addressed the question, when a U.S.-rendered award is domestic, it is subject to summary, challenge-free confirmation under Chapter One if it is …

Embryo Disposition Agreements: The Effect Of Personal Autonomy, Constitutional Rights, And Public Policy On Enforceability, Damages, And Remedies, Nicholas Seger

Nicholas D. Seger

No abstract provided.

The Big Banks: Background, Deregulation, Financial Innovation And Too Big To Fail, Charles W. Murdock

Charles W. Murdock

Summary: The Big Banks: Background, Deregulation, Financial Innovation and Too Big to Fail

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It …

Non-Recourse Mortages – A Fresh Start, Ron Harris, Asher Meir

Ron Harris

In about a quarter of US states, all residential mortgages are essentially non-recourse, meaning that in case of default, the lender can only repossess the house but cannot collect on the private assets and future income of the borrower. This American innovation is now beginning to attract extensive interest abroad, but ironically in the US itself is getting a bad name. The law has been blamed for exacerbating the financial crisis, while stricken homeowners who take advantage of it have been scolded by lenders and even by the Secretary of the Treasury. We propose a fresh and more balanced look …

Predicting The Frequency Of Large Public Company Bankruptcies, Patrick Liu

Patrick Liu

From 1980 to 2010, the number of large corporate bankruptcies in the U.S. spanned the gamut from five in 1981 to ninety-seven in 2001. In 2009, there were ninety-one large corporate bankruptcies. Past researchers have used firm-specific characteristics to predict the likelihood of bankruptcy for a given firm. However, limited research exists regarding which factors can explain nationwide fluctuations in the number of large corporate bankruptcies. Because macroeconomic variables pose systematic risk for all firms, macroeconomic variables’ yearly variations could shed light on bankruptcy filings’ yearly variations. Moreover, utilizing lagged variables, using the prior year’s change in a macroeconomic variable, …

The Evolution Of The Supreme Court’S Rule 10b-5 Jurisprudence: Protecting Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: The Evolution of the Supreme Court’s Rule 10b-5 Jurisprudence:

Protecting Fraud at the Expense of Investors

This article traces the evolution of Supreme Court jurisprudence over the past forty years through the prism of Rule 10b-5. It uses four “trilogies” to develop this evolution. At the start of the 1970s, the liberal trend characterized by the Warren Court still prevailed. An implied private cause of action was still in favor and litigators were viewed as private attorneys general, enforcing the securities laws to further the policy of protecting investors.

The expansion of Rule 10b-5 was slowed and more judicial …