Law Commons^™

Consumers Want To Be In Europe; Corporations Want To Be In The U.S.: How To Reform Mandatory Consumer Arbitration Agreements To Be Fair To Both Parties, Kelly Parfitt

Kelly Parfitt

Arbitration is a popular method of resolving legal disputes between businesses. However, in the last few years, corporations have begun putting mandatory consumer arbitration agreements in small print on sales contracts and receipts for consumer goods, credit cards, and mortgages. Consumers are forced to pay fees much higher than court costs, depending on the case. An arbitrator will do hundreds of cases with the same corporations, be familiar with and even in some cases be affiliated with the corporation. This system results in the overwhelming majority of cases being won by corporations. But in the European Union, consumers are given …

Resolution Of Rival Claims To Ownership – Or Is It?, Sara F L Tsui

Sara F L Tsui

The article summarizes the Latin maxim of nemo dat quod non habet making particular reference to the legislations in the Hong Kong Special Adminstrative Region. The article discusses the problems which the exceptions to the Latin maxim rises and critise how the legislations in the Hong Kong Special Administrative Region are not coping with the growth of technology and economic.

Survey Of The Law Of Cyberspace: Introduction, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

Procedimientos Concursales A La Luz Del Análisis Económico Del Derecho, Fernando Castillo Cadena

Fernando Castillo Cadena

No abstract provided.

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

Wayne 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 …

“T’Was Three Years After Twombly And All Through The Bar, Not A Plaintiff Was Troubled From Near Or From Far.” The Unremarkable Effect Of The U.S. Supreme Court’S Re-Expressed Pleading Standard In Bell Atlantic Corp. V. Twombly, Daniel R. Karon

Daniel R Karon

No U.S. Supreme Court case in recent memory has caused more confusion and suffering than Bell Atlantic Corp. v. Twombly. Post-Twombly commentary falls largely into two camps: Twombly is wrong because it raised Rule 8’s pleading standard or Twombly is right because it did. But scant, if any, discussion exists suggesting that Twombly is right because it didn’t alter this standard. My Article argues that the Court properly honored longstanding Court precedent when deciding Twombly and merely reaffirmed Rule 8’s pleading requirements. After chronicling the Federal Rules’ creation—with an emphasis on Rule 8—my Article dissects the trilogy of U.S. Supreme …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises, Inc. V. Ncsoft Corp., Carl M. Szabo

Carl M Szabo

Dear Madam or Sir: As seen in the attached note, I am to make two contributions. First, I address the issue of copyright liability of websites for infringement by the website users. A constant struggle as old as the constitution itself, the issue of copyright protection now makes its way into the virtual world of the internet. While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed could endanger the protection afforded to authors …

The Future Of Harmonization: Soft Law Instruments And The Principled Advance Of International Lawmaking, Robert A. Pate

Robert A Pate

With vast amounts of financial and intellectual capital already being spent on international harmonization, inefficiencies infecting the lawmaking process render it ineffective and threaten the goodwill of the whole enterprise. This paper represents a synthesis of some of the most meaningful criticism about the perceived failures of the classic vehicle for harmonization—international conventions. In it, we have highlighted these failures, looked for their underlying causes, and searched for compelling soft law alternatives. This paper seeks to show that, above all, conventions suffer from over ambition. By intervening in the legal marketplace, underestimating national distrust and legal conflict, and insisting on …

The Illegal Actions Of The Federal Reserve: An Analysis Of How The Nation’S Central Bank Has Acted Outside The Law In Responding To The Current Financial Crisis, Chad Emerson

Chad Emerson

Abstract

The Illegal Actions of the Federal Reserve:

An Analysis of How the Nation’s Central Bank Has Acted Outside the Law in Responding to the Current Financial Crisis

In the Spring of 2008, the United States Federal Reserve Bank, under the Chairmanship of Ben Bernanke, took emergency measures in an attempt to forestall a national, if not international, economic meltdown. The actual effectiveness of these unprecedented measures has been hotly-debated. Unfortunately, regardless of their efficacy, the Federal Reserve acted outside the scope of its legal authority in taking several of these actions.

This essay will analyze how the Federal Reserve …

Virtual Territoriality, Edward J. Janger

Edward J. Janger

Abstract Virtual Territoriality Edward J. Janger David M. Barse Professor Brooklyn Law School Current efforts to unify the laws of secured credit and bankruptcy are predicated on the belief that regularizing the law of debtor’s rights and creditor’s remedies will cause global business to flourish, and benefit both developed and less-developed countries. Certain and predictable remedies for creditors will facilitate lending and development, and coordination among courts will create opportunities to protect the going concern value of troubled businesses. The benefits that accompany such legal harmonization may, however, come at a price. Centralizing control of a bankruptcy case may create …

Harmonization Of International Legal Structure For Fostering Professional Services: Lessons From Early U.S. Federal-State Relations, Deth Sao

Deth Sao

In the current global marketplace, liberalization of trade in professional services (“services”) presents one of the biggest challenges and profitable opportunities for the international community. Changes in technology and state privatization polices over the past half century have made services the fastest growing sector in international trade. Despite such a transformation, the potential for further innovation and expansion in the services industries is in jeopardy. In response to public policy and regulatory concerns and political pressures to protect domestic jobs and industries, states have adopted a plethora of state-initiated discriminatory and restrictive policies against trade in services. Because existing international …

What’S In A Name? The Role Of Danielson In The Taxation Of Credit Card Securitizations, Grace S. Lee

Grace S Lee

While the doctrine of substance over form has been a part of tax law for over seventy years, courts look disfavorably upon taxpayers who invoke the doctrine to argue against the forms of their own transactions under what is commonly referred to as the Danielson rule. Although the Danielson rule appears sound on its face, it holds less force when applied outside of its original context. In particular, the Danielson rule should not apply when the form given to a transaction is given for non-tax reasons, such as to achieve a particular accounting treatment. The taxation of credit card securitizations …

What’S In A Name? The Role Of Danielson In The Taxation Of Credit Card Securitizations, Grace S. Lee

Grace S Lee

While the doctrine of substance over form has been a part of tax law for over seventy years, courts look disfavorably upon taxpayers who invoke the doctrine to argue against the forms of their own transactions under what is commonly referred to as the Danielson rule. Although the Danielson rule appears sound on its face, it holds less force when applied outside of its original context. In particular, the Danielson rule should not apply when the form given to a transaction is given for non-tax reasons, such as to achieve a particular accounting treatment. The taxation of credit card securitizations …

A Horse Of A Different Color: A Study Of Color Bias, Anti-Trust, And Restraint Of Trade Violations In The Equine Indsutry, Mary W. Craig

Mary W Craig

In 2000, Kay Floyd sued the American Quarter Horse Association, and changed not only the way the Association did business, but changed the law as it applied to voluntary associations. The court ruled that an association cannot economically discriminate against some of its members and artificially devalue the property held by those members. Subsequently, the American Quarter Horse Association has changed its own registration rules to reflect the principle behind the Floyd suit, even though the parties settled and dismissed the case. A sister equine association in Texas, however, has refused to amend its rules concerning equine registration, resulting in …

Invigorating The Role Of The In-House Legal Advisor As Steward In Ethical Culture And Governance At Client-Business Organizations: From 21st Century Failures To True Calling, Ben G. Pender

Ben G Pender II

Invigorating the Role of the In-House Legal Advisor as Steward in Ethical Culture and Governance at Client-Business Organizations From 21st Century Failures to True Calling J.D., University of St. Thomas School of Law, 2009 M.A. Sociology, Organizational Effectiveness, Clark Atlanta University, 1996. B.S., Sociology, Virginia Polytechnic Institute and State University, 1988. All Rights Reserved. © 2009. This Article examines the need to invigorate the role of the in-house legal advisor from ‘mere legal technician’ to simultaneous legal advisory gatekeeper and ethical steward at client-business organizations. This article asserts that the often-acquiescent in-house legal advisor as ‘mere legal technician’ is partially …

Corporate Scandals, Executive Compensation, And International Corporate Governance Convergence: A U.S.-Australia Case Study, Jacob Barney

Jacob Barney

The first decade of the 2000s began with a rash of large-scale corporate scandals touching every corner of the globe, and it draws to a close in the midst of a worldwide recession which, somewhat ironically, has brought to light gargantuan executive compensation packages, resulting in widespread public outcry. Given the global nature of these two sets of corporate crises, it stood to reason that there would emerge a universal movement to revise the laws and practices controlling executive compensation. However, the mere fact that such a movement has emerged does not mean that the response to this movement will …

What Law Schools Should Teach Future Transactional Lawyers: Perspectives From Practice, Michael A. Woronoff

Michael A Woronoff

Since at least the 1980’s, law schools have been chided for doing a poor job at teaching skills. This criticism has been accompanied by pressure to increase their emphasis on skills training. The pressure increased with the publication of the McCrate Report in 1992, and then again with the publication of the Carnegie Report in 2007. This article is based on my remarks given on June 10 at the 2009 mid-year meeting of the AALS Conference on Business Associations. In those remarks, I respond to the questions “Are law schools teaching students adequate transactional skills?” and “From the standpoint of …

The Uniform Commercial Code Survey: Introduction, Russell A. Hakes, Stephen K. Sepinuck, Robyn L. Meadows

Russell A. Hakes

No abstract provided.

Trust In The Shadows: Law, Behavior And Financial Re-Regulation, Raymond H. Brescia

Raymond H Brescia

In the deep throes of the Great Depression, in an effort to restore faith in America’s economy, the Roosevelt Administration promoted the development of voluntary codes of conduct to govern employment and manufacturing practices across hundreds of industries. Compliance with these codes permitted a company to display a Blue Eagle, which was supposed to signify support for New Deal efforts, and that the company was trustworthy. In this way, the Blue Eagle served as a heuristic—a cognitive shortcut— that helped consumers identify those companies engaged in fair practices so that those consumers could show their support for the recovery effort …

Japanese Independent Director Mechanism Revisited: The Corporate Law Setting, Current Status And Its Explanations, Chien-Chung Lin

Chien-Chung Lin

This article discusses the experiment of the independent director mechanism in Japanese corporate law. Accompanied by the introduction of the committee type company, the independent director mechanism in Japan has faced a strange stagnation after nine years’ implementation. This article describes the phenomenon first and then analyze the background and structural reasons for this stagnation. Last it provides an account for the possible future development of the independent director mechanism in Japan.

How Can States Protect Their Policies In Federal Class Actions?, Lucas Watkins

Lucas Watkins

More than any other procedural device, class actions have substantive goals. By allowing negative-value suits and collective punishment for widespread wrongs, class actions allow plaintiffs and defendants to protect rights that would otherwise go unvindicated. States also use class actions to implement industrial and consumer protection policies. Despite their importance to state policy, however, many state class action rules do not survive the transition into the federal court system. Under the Erie doctrine, federal courts apply federal class action rules even when state rules are more permissive and even when the state rules are intended to serve important substantive policies. …

Caveat Lessor: U.S. Aircraft Financiers Beware - 11 U.S.C. § 1110 Expectations May Not Be Met In Cross-Border Insolvencies, Kevin Gaunt

Kevin Gaunt

The Viação Aérea Rio Grandense (“Varig”) airline judicial recuperation in Brazil was the first major test case under the New Bankruptcy and Restructuring Law of Brazil (“the NBRL”), ratified in February of 2005 and going into effect on June 9, 2005. The experience was largely negative for aircraft and engine lessors and creditors, most of whom were United States-based and accustomed to special protections afforded them by 11 U.S.C. § 1110, which specifically provides greater protection to aircraft owners in bankruptcy procedures than other secured creditors enjoy. In the United States, an aircraft creditor may use § 1110 to circumvent …

Protecting Foreign Investors From International Securities Fraud, Derek N. White

Derek N White

This article discusses the subject matter jurisdiction of national courts in a little-known type of international securities cause of action that has vexed courts of the developed world. The cause of action is labeled the “foreign-cubed class action”, which is brought when a dispute arises regarding purported improprieties in an international securities transaction that contains foreign investors who purchase securities of foreign issuers on foreign stock exchanges. Notice the three “foreign” elements of the transaction ("foreign" meaning foreign to the court presiding over the action).

The number of foreign-cubed class actions brought in U.S. courts has risen sharply over the …

Mortgage Market Regulation And Moral Hazard: Equity Stripping Under Sanction Of Law, Vincent Di Lorenzo

Vincent Di Lorenzo

No abstract provided.

Perverse Incentives: Risk Taking And Reform, Aaron J. Unterman

Aaron J. Unterman

The common theme that ties the financial crisis (and this article) together is one of misguided incentives that pervaded the finance industry and perverted the actions of individuals and institutions resulting in a global crisis with severely deleterious social effects. In the world of finance, the greatest way to achieve a dramatic increase in wealth is to take large risks, of course, this is also the easiest way to lose it. A great deal of the so-called financial innovation that we experienced preceding the crisis was devoted to finding ways to take on as much risk as possible. The rise …

The Hidden Mandate: How Federal Rule Of Evidence 502 Will Push Enterprises To Adopting A More Organized Electronic Filing System, Nicholas A. Matlach

Nicholas A Matlach

Inexpensive storage combined with inefficient procedures result in a catacomb of electronic documents that are only raised during litigation. Recently passed Federal Rule of Evidence requires “reasonable steps” to be taken to prevent disclosure. The judicial flexibility of 502 will allow judges to continue a decade long trend of pushing enterprises to either adopt document management systems or risk losing their privileged information to inadvertent waivers.

Failure To Consider Human Rights Suits As A Potential Basis For Derivative Actions, Daniel Augustus Sansone Foe

Daniel Augustus Sansone Foe

Failure to Consider Human Rights Suits as a Potential Basis for Derivative Actions

This note proposes that in instances where corporate boards have knowingly or through their gross negligence allowed potentially costly human rights abuses to occur or where boards have failed to utilize appropriate monitoring standards to ensure compliance with human rights laws, they may be held to account for resulting losses to their shareholders in derivative actions.

In arriving at this proposition the note explores the current prospects for being held liable under the Alien Torts Statute (28 U.S.C. § 1350) and the direct and indirect costs associated …

Why Parties Enter Into Unfair Deals: The Resentment Factor, Justin Eugene Malbon

Justin Eugene Malbon

Unfair deals are prevalent, which does not serve the interests of the harmed party to a deal nor society more generally. The law tends to focus on providing the harmed party the means for gaining compensation for unfair deals, which distracts attention away from investigating the reasons and motivations for the stronger party offering and entering into unfair deals in the first place. This article seeks to address this deficiency by proposing a theory – here coined “deal theory” – to explain “dealor” behaviors and motivations. The theory builds on insights offered by relational contract theory, the ultimatum bargaining game …

Exporting Class Actions To The European Union, Tiana Leia Russell

Tiana Leia Russell

In this paper, I present the theoretical debates regarding the value of class action litigation, both with respect to compensation and deterrence. I begin by reviewing the class action litigation model in the United States. The paper then explores the current state of private antitrust enforcement in the European Union, with specific focus on the availability of class action litigation within Europe. I discuss recent calls within the European Union for greater private enforcement of competition law and outline steps the Commission has taken in addressing that need, including the recently published White Paper on Damages for Breach of EC …

Manipulating Court Doctrine For The Good Of The Common Law And Compusory Arbitration, Richard L. Barnes

richard l barnes

Manipulating Court Doctrine for the Good of the Common Law and Compulsory Arbitration By Richard L. Barnes Abstract: Preston v. Ferrer from the Supreme Court in 2008 shows that the Court is steadfastly committed to fostering arbitration. In the most sweeping terms so far the Court pushed the limits of interstate commerce and reached into the California state court system to override that state’s deference to administrative fact finding. In place of administrative and adjudicatory decision-making the Court again demanded arbitral dispute resolution. This Article covers, in a compact format of approximately 9800 words, the origins of the Federal Arbitration …