Law Commons^™

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 …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

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

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

Mark P. Gergen

No abstract provided.

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

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.

Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey Harrison

Jeffrey L Harrison

Contract law professors and students, attorneys, judges know that discussions about consent are rarely about consent. This results from three factors. First, it is the appearance of consent that is necessary to form a contract. Second, not every manifestation of consent is sufficient to create a contract that cannot be avoided. Third, interpretations of consent have the potential to allow courts to intervene when the benefit of the bargain is seen to be unfairly divided or one of the parties is actually worse off as a result of the contract. This Article assesses the extent to which recent decisions about …

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 …

Right To Cure Under The Unidroit Principles Article 7.1.4: A Historical Analysis, Gakuro Himeno

Gakuro HIMENO

Riht to cure under Unidroit 7.1.4 has three sources: a) Nachtrag, b) mise en demeure and Nachfrist and c) right to cure under Uniform Commercial Code 2-508. When the UCC Committee, Section of Business law, the ABA reviewed what will become the Unidroit Principles, they found a counterpart to their own right to cure in it: Nachfrist. Then drafting a new provision upon cure was commissioned to Richard Hyland, a US professor. While this provision, rare case where Unidroit and PECL disagrees (8. 104), has long been under criticism especially by the European drafters, met with a DCFR provision that …

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.

Panel 2: Restitution Law, Andrew Kull, Dan Priel, Benjamin Geva, Poonam Puri

Poonam Puri

PANEL II: RESTITUTION LAW: Poonam Puri, Associate Dean, Osgoode Hall Law School; Speaker: Andrew Kull, Professor, Boston University, "A Consideration Which Happens to Fail"; Speaker: Dan Priel, Professor, Osgoode Hall Law School, "Justice and Unjust Enrichment"; Discussant: Benjamin Geva, Professor, Osgoode Hall Law School.

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

John D. McCamus

No abstract provided.

Cases And Materials On Contracts, Third Edition, John Mccamus, Stephen Waddams, M. Weldron, Jason Neyers, Michael Trebilcock

John D. McCamus

Cases and Materials on Contracts offers a comprehensive foundation for the development of a full understanding of Canadian contract law. Recent cases and materials, drawn from Canadian, Commonwealth, and American sources, have been carefully selected and edited to deliver a thorough and seamless exploration of contract law in Canada. Notes, comments, questions, and problem scenarios are incorporated liberally throughout the casebook, to fully illuminate legal intricacies and subtleties.

Restitution And The Supreme Court: The Continuing Progress Of The Unjust Enrichment Principle, John Mccamus

John D. McCamus

No abstract provided.

Franchising In The Shadow Of Contract Law: A New Fidelity For Business Relations, Richard Haigh

Richard Haigh

No abstract provided.

Panel 2: Restitution Law, Andrew Kull, Dan Priel, Benjamin Geva, Poonam Puri

Benjamin Geva

PANEL II: RESTITUTION LAW: Poonam Puri, Associate Dean, Osgoode Hall Law School; Speaker: Andrew Kull, Professor, Boston University, "A Consideration Which Happens to Fail"; Speaker: Dan Priel, Professor, Osgoode Hall Law School, "Justice and Unjust Enrichment"; Discussant: Benjamin Geva, Professor, Osgoode Hall Law School.

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 …

Panel 2: Restitution Law, Andrew Kull, Dan Priel, Benjamin Geva, Poonam Puri

Dan Priel

PANEL II: RESTITUTION LAW: Poonam Puri, Associate Dean, Osgoode Hall Law School; Speaker: Andrew Kull, Professor, Boston University, "A Consideration Which Happens to Fail"; Speaker: Dan Priel, Professor, Osgoode Hall Law School, "Justice and Unjust Enrichment"; Discussant: Benjamin Geva, Professor, Osgoode Hall Law School.

The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson

J.S. Nelson

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

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 …

Panel 1: Contract Law, Stephen Waddams, Michael Pratt, Angela Swan, Stephanie Ben-Ishai

Stephanie Ben-Ishai

INTRODUCTION: Lorne Sossin, Dean, Osgoode Hall Law School; Stephanie Ben-Ishai, Professor, Osgoode Hall Law School; Jamie Cameron, Professor, Osgoode Hall Law School. PANEL I: CONTRACT LAW: Moderator: Stephanie Ben-Ishai, Professor, Osgoode Hall Law School; Speaker: Stephen Waddams, Professor, Faculty of Law, University of Toronto, "Mistakes in Assumptions"; Speaker: Michael Pratt, Professor, Faculty of Law, Queen's University, "The Intention to Create Legal Relations and Disclaimers"; Discussant: Angela Swan, Counsel, Legal Education, Aird & Berlis LLP.

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 …

Future Strategies For Improving Consent In Electronic Contracting, Ran Bi

Ran Bi

China's economy has been running deep into an exciting phrase called “Internet +”. In North America, most businesses have online presence and conduct numerous transactions online. Unprecedentedly, electronic contracts have been governing more Individuals and corporations’ legal relationships in a growing proportion of businesses and everyday life.

E-contracts, usually with no physical architecture, are easy to “sign”—people just click one or two icons on a computer / smartphone screen after “reading” (scroll down) the contents. However, e-contracts are standard form contracts which are provided by vendors . Users are easy to become victims of exploitative terms, because their consent has …

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

James T Gathii

No abstract provided.

Future Strategies For Improving Consent In Electronic Contracting, Ran Bi

Ran Bi

China's economy has been running deep into an exciting phrase called “Internet +”. In North America, most businesses have online presence and conduct numerous transactions online. Unprecedentedly, electronic contracts have been governing more Individuals and corporations’ legal relationships in a growing proportion of businesses and everyday life.

E-contracts, usually with no physical architecture, are easy to “sign”—people just click one or two icons on a computer / smartphone screen after “reading” (scroll down) the contents. However, e-contracts are standard form contracts which are provided by vendors1. Users2 are easy to become victims of exploitative terms, because their consent has been …

The Tort Foundation Of Duty Of Care And Business Judgment, Robert Rhee

Robert Rhee

This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort prinicples is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, …

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on procedural defenses that …

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.