Law Commons^™

Cancelation Of High Frequency Trades: Clearly Erroneous Or Just A Mistake?, Andrew D. Getsinger

Bocconi Legal Papers

This paper focuses on an often overlooked and obscure element of the current marketplace: erroneous transactions. Historically, before the markets’ heavy reliance on automated systems, erroneous transactions were only rescindable if both parties agreed to rescind — a mutual mistake approach. Today, however, Exchanges have incorporated a dispute process to trade rescission, where members petition to the Exchange (the third-party) for cancelation of a bad-trade. A trade will then be nullified by the Exchange, if the Exchange finds that trade to be “clearly erroneous” or to have been made in “obvious error.” This dispute-process is called the “clearly erroneous execution” …

Contract As Pattern Language, Erik F. Gerding

Erik F. Gerding

Christopher Alexander’s architectural theory of a "pattern language" influenced the development of object-oriented computer programming. This pattern language framework also explains the design of legal contracts. Moreover, the pattern language rubric explains how legal agreements interlock to create complex transactions and how transactions interconnect to create markets. This pattern language framework helps account for evidence, including from the global financial crisis, of failures in modern contract design.

A pattern represents an encapsulated conceptual solution to a recurring design problem. Patterns save architects and designers from having to reinvent the wheel; they can use solutions that evolved over time to address …

Le Pattuizioni Di Co-Vendita Quali Limiti Alla Circolazione Di Azioni E Quote, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Risoluzione Del Contratto Preliminare Di Appalto E Inefficacia Della Clausola Penale, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Flawed Transparency: Shared Data Collection And Disclosure Challenges For Google Glass And Similar Technologies, Jonathan I. Ezor

Jonathan I. Ezor

Current privacy law and best practices assume that the party collecting the data is able to describe and disclose its practices to those from and about whom the data are collected. With emerging technologies such as Google Glass, the information being collected by the wearer may be automatically shared to one or more third parties whose use may be substantially different from that of the wearer. Often, the wearer may not even know what information is being uploaded, and how it may be used. This paper will analyze the current state of U.S. law and compliance regarding personal information collection …

When Is Minority Not Minority: Ncaa Ignores Two Centuries Of Anglo-American Contract Law Respecting Legal Status, Matthew M. Heekin, Bruce W. Burton

Matthew M. Heekin

No abstract provided.

Illusory Control Of State Controlled Resources Through Stabilisation Clauses: Renegotiation Clauses May Save The Contract, Jeffery Ray

Jeffery R Ray

The stabilisation clause, in oil or gas production sharing agreements, is a tool that is used to address investor security. The clause tends to create unintended effects when extraneous events, such as the price of oil, change the market. This article explores the ability, and potential inability, of the renegotiation clause to mitigate extraneous events from destroying the commercial intent of the original bargain.

Régimen De Ofertas Públicas Y De Declaración Unilateral De Adquisición En La Nueva Ley De Mercado De Capitales, Gaston Mirkin

Gaston Mirkin

No abstract provided.

Too Complex To Perceive?: Drafting Cash Distribution Waterfalls Directly As Code To Reduce Complexity And Legal Risk In Structured Finance, Master Limited Partnership, And Private Equity Transactions, Ralph Carter Mayrell

Ralph Carter Mayrell

The intricate procedural and data-driven decision trees that play a critical role in complex financial contracts like cash distribution waterfalls in structured finance agreement indentures (e.g., collateralized debt obligations (CDOs)), master limited partnership agreements, and private equity fund agreements are inefficiently depicted as written contracts. As Professor Henry Hu explains in Too Complex to Depict?, the difficulty of translation—or depiction—between original mathematical models, plain English prospectuses, legal contracts, and programmed execution means that often the written depictions that form the basis of disclosures do not accurately define the act of execution. To overcome this, the SEC proposed an amendment to …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

How To Create American Manufacturing Jobs, John D. Gleissner Esquire

John D Gleissner Esquire

No abstract provided.

Una Propuesta De Formulación De Principios Jurídicos De La Fase De Ejecución De Los Contratos Públicos De Concesión De Servicios Públicos Y Obras Públicas De Infraestructura, Ramon Huapaya Jr.

Ramon Huapaya Jr.

In this article, the author approaches the complex issue of the nature of the concession contract, under the premise of accepting the unitary theory of the public contracts. Is analyzed this type of contract under the promotion system of private investment in Peru, led to public utilities and public infrastructure works legal regime which is used by the Peruvian State to relate to private entities that are responsible for such activities.

Furthermore, the author also emphasizes the various principies that have to prevail in this type of concession contracts.

Case Note: In Re Estate Of Brown (Tenn. 2013), Lee T. Nutini

Lee T Nutini

A case note analyzing the current conflict in Tennessee precedent concerning contract-based will contests and their jurisdictional challenges. This article is now published in the Tennessee Law Review and is available on Westlaw or LexisNexis at 80 Tenn. L. Rev. 883.

Mancato Pagamento Di Rate Di Mutuo E Segnalazione Legittima In Centrale Rischi, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

La Cassazione Sull'equiparazione Delle Polizze Unit Linked A Strumenti Finanziari, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Acerca Del Diseño Óptimo De Las Reglas Predeterminadas En El Derecho Contratos, Daniel A. Monroy

Daniel A Monroy C

El presente artículo discute lo relacionado con el diseño de las reglas predeterminadas (comúnmente llamadas reglas supletivas) desde el punto de vista normativo a partir de la perspectiva jurídica tradicional en contraste con el enfoque propio del Análisis Económico del Derecho (AED). Para efectos, el documento presenta una serie de argumentos dirigidos a justificar la razón del escaso interés de la doctrina jurídica tradicional en lo que corresponde al diseño óptimo de la norma predeterminada, lo cual se complementa con algunas ideas en las que no obstante podría basarse una visión normativa sobre el particular. Lo anterior se contrasta con …

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

Transparency, Independence And Diversity: Does The United States Have It Better?-A Comparative Analysis Of The Process Of Appointment Of Judges To The Supreme Court In The United States And India., Varun Vaish

Varun Vaish

The rise of legal realism has made it manifestly clear that the background and worldview of judges influence cases.This is evidenced in the United States where the appointment of judges to the higher judiciary is believed to be, at least in some measure, predicated upon the proximity of the political ideology of the judge with that of the appointing party. This influence is acknowledged, questioned and somewhat mitigated against by the process of appointment wherein the Senate ratifies the president’s choice. However the lack of acknowledgement of this influence and its consequent securitization, in the appointment of judges is where …

Much Ado About Nothing?: What The Numbers Tell Us About How State Courts Apply The Unconscionability Doctrine, Susan D. Landrum

Susan Landrum

No abstract provided.

Las Garantías Imperativas En El Ámbito De Aplicación Del Derecho Del Consumo: Una Visión Crítica A Partir Del Nuevo Estatuto Del Consumidor En Colombia, Daniel Monroy

Daniel A Monroy C

El presente artículo de reflexión parte de las normas referentes a la “garantía legal” establecidas en el actual Estatuto del Consumidor en Colombia a efectos de delimitar el contenido imperativo de dicho tipo de garantía. Lo anterior con el fin demostrar a partir de la descripción de un juego que los escenarios generados por dicho Estatuto en lo que a la aplicación de las normas imperativas sobre garantía de productos se refiere, son relativamente ineficientes –en términos de Pareto–. Por otro lado, el artículo presenta algunas reflexiones críticas acerca del problema la asimetría de información en las dinámicas de consumo …

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …

Presentación "El Procedimiento Administrativo", Norma E. Pimentel

Norma E Pimentel

Presentación al módulo 2

Do The Right Thing: Indirect Remedies In Private Law, Daphna Lewinsohn-Zamir

Daphna Lewinsohn-Zamir

Private law provides diverse remedies for right violations: compensatory and punitive, monetary and non-monetary, self-help and court-awarded. The literature has discussed these (and other) classifications of remedies, yet it overlooked the important distinction between direct and indirect remedies. Some remedies directly order right-infringers to realize the desired outcome, while others bring it about indirectly, by inducing them to self-comply. This classification cuts across the traditional ones.

This Article fills the gap in the literature by introducing the novel category of indirect remedies. It identifies how indirect remedies are used in current legal rules—with examples from property, contract, torts, intellectual property …

Trust And The Triangle Expectation Model In Twenty-First Century Contract Law, Eli Bukspan

Eli Bukspan

The concept of trust best explains the true nature of contract law and is found in key contract law doctrines such as good faith and public policy. By identifying contractual expectation with the idea of trust, and by considering the actual expectations of the contracting parties as well as the ideal expectations of the public, the Article develops the triangle-of-expectations model—the most coherent account of contract law today. This model, conceptually different than classic contract theory, also contributes to stability, certainty, and the contracting parties’ ability to rely on each other as well as on the contractual institution. Most importantly, …

Rebalancing Public And Private In The Law Of Mortgage Transfer, John P. Hunt

John P Hunt

The law governing the United States’ $13 trillion mortgage market is broken. Courts and legislatures around the country continue to struggle with the fallout from the effort to build a 21st century global market in mortgages on a fragmented, arguably archaic legal foundation. These authorities’ struggles stem in large part from the lack of clarity about the legal requirements for mortgage transfer, the key process for contemporary mortgage finance.

We demonstrate two respects in which American mortgage transfer law is unclear and offer suggestions for fixing it. Revisions to the Uniform Commercial Code adopted around the turn of the century …

Employment Law And Social Equality, Samuel R. Bagenstos

Samuel R Bagenstos

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this paper argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. Drawing on the author’s work elaborating the justification for employment discrimination law, this paper argues that individual employment law is …

Arbitration, Women Arbitrators And Sharia, Mohamed Raffa Dr.

Mohamed Raffa Dr.

So, can the Arbitrator be a woman? Omar, the third Khalipha in Islam after Prophet Muhammad, actually appointed a female judge. Today, across the various Muslim countries, there are female judges in almost every Muslim country except in Saudi Arabia. There are about 70 female Iraqi judges, 10 female judges in the UAE, 20 in Egypt female judges and Arbitrators, Nigeria recently appointed the first female Chief Justice in Africa as well as it has one of the largest National Associations of Women Judges; with more in other Muslim Countries including Indonesia and Malaysia.

Going Once . . . Going Twice . . . Sold: The Continued Use Of "Don't Ask, Don't Waive" Standstills In Corporate Auctions, Kamaal Patterson

Kamaal Patterson

“Don’t ask, don’t waive” standstills in confidentiality agreements prevent potential bidders in a corporate auction from: (1) submitting an offer to purchase the target corporation before receiving permission; and (2) asking the target corporation to waive the standstill. These are powerful contractual provisions that can help satisfy Revlon value maximization duties, but they also create concerns about satisfaction of other fiduciary duties, such as remaining fully informed about potential offers. Recent rulings from the Delaware Court of Chancery have criticized the use of this standstill. My article attempts to address these criticisms and clarify how to properly use the standstill.

Coase V. Pigou: A Still Difficult Debate, Enrico Baffi

enrico baffi

This paper examines the positions of Coase and Pigou about the problem of the externalities. From the reading of their most two important works it appears that Coase has a more relevant preference for a evaluation of efficiency at the total, while Pigou, with some exception, is convinced that is possible to reach marginal efficiency through taxes or responsibility. It’s interesting that Coase, who has elaborated the famous theorem, is convinced that is not possible to reach the efficiency at the margin every time and that sometimes is necessary a valuation at the total, that tells us which solution is …

Rise Of The Intercontinentalexchange And Implications Of Its Merger With Nyse Euronext, Latoya C. Brown

Latoya C. Brown, Esq.

This paper examines the impending merger between the IntercontinentalExchange (ICE) and NYSE Euronext against the backdrop of the current structure of the global financial services industry. The paper concludes that the merger embodies what the financial services industry is becoming and captures the model that will allow exchanges to remain competitive in today’s marketplace: mega-exchanges with broader asset classes and electronic platforms. As technology and globalization threaten their vitality, exchanges will need to continue reinventing and adapting. Increasingly over the last decade they have done so by merging and by moving, at least a part of, their operations on screen. …