Law Commons^™

Amazon As A Seller Of Marketplace Goods Under Article 2, Tanya J. Monestier

Journal Articles

You have probably purchased goods on Amazon. Did you know that if the goods you purchased on Amazon turn out to be defective and cause serious personal injury, Amazon is probably not liable for them? Did you know that even though you placed an order on Amazon, gave payment to Amazon, and received the goods in an Amazon box, there is a good chance that the goods are not “sold by” Amazon—but are instead sold by a third-party seller? Did you know that Amazon tries to avoid liability for goods sold on its platform on the technicality that it does …

Teaching The Lochner Era, Barry Cushman

Journal Articles

This article, prepared for the St. Louis University Law Journal's issue on “Teaching the Fourteenth Amendment,” develops a taxonomy of the Supreme Court's economic substantive due process jurisprudence during the so-called “Lochner Era” of the late-19th and early-20th centuries, and offers an assessment of the trajectory and mechanisms of the decline of that body of doctrine.

Money Norms, Julia Y. Lee

Journal Articles

Money norms present a fundamental contradiction. Norms embody the social sphere, a system of internalized values, unwritten rules, and shared expectations that informally govern human behavior. Money, on the other hand, evokes the economic sphere of markets, prices, and incentives. Existing legal scholarship keeps the two spheres distinct. Money is assumed to operate as a medium of exchange or as a tool for altering the payoffs of different actions. When used to make good behavior less costly and undesirable behavior more costly, money functions to incentivize, sanction, and deter. Although a rich literature on the expressive function of law exists, …

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Journal Articles

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …

The Insurability Of Claims For Restitution, Christopher French

Journal Articles

Does and should a wrongdoer’s liability insurance cover an aggrieved party’s claim for restitution (e.g., a claim for the disgorgement of ill-gotten gains)? This article answers those questions. It does so by first answering the question of whether claims for restitution are covered under the terms of liability insurance policies. Then, after concluding that they are, it addresses the question of whether claims for restitution should be insurable as a matter of public policy and insurance law theory. There are long-standing legal and equitable principles that, on the one hand, dictate that a wrongdoer should not be allowed to benefit …

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …

Insuring Floods: The Most Common And Devastating Natural Catastrophes In America, Christopher French

Journal Articles

Flooding is the most common natural catastrophe Americans face, accounting for 90% of all damage caused by natural catastrophes. Hurricanes Katrina and Sandy, for example, collectively caused over $160 billion in damage, but only approximately 10% of the Hurricane Katrina victims and 50% of the Hurricane Sandy victims had insurance to cover their flood losses. Consequently, both their homes and lives were left in ruins in the wake of the storms. Nationwide, only approximately 7% of homeowners have insurance that covers flood losses even though the risk of flooding is only increasing as coastal areas continue to be developed and …

Trust And Social Commerce, Julia Y. Lee

Journal Articles

Internet commerce has transformed the marketing of goods and services. The separation between point of sale and seller, and the presence of geographically dispersed sellers who do not engage in repeated transactions with the same customers challenge traditional mechanisms for building the trust required for commercial exchanges. In this changing environment, legal rules and institutions play a diminished role in building trust. Instead, new systems and methods are emerging to foster trust in one-shot commercial transactions in cyberspace.

The Article focuses on the rise of “social commerce,” a socio-economic phenomenon centered on the use of social media and other modes …

Personal Guarantees And Sureties Between Commercial Law And Consumers In The United States, Christoph Henkel

Journal Articles

Guaranties and suretyships reduce the risk of default and today remain essential arrangements in many commercial and consumer transactions. A guarantor or surety promises to pay for the debt of a third party and may become primarily liable on that debt. Despite the significance of such a promise and the resulting obligation, U.S. law does not clearly distinguish between a guarantor and surety in a consumer or commercial context. This is of particular relevance, because in a consumer context a guaranty often has a gratuitous or sentimental element and a guarantor may not always be fully aware of the risks …

Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French

Journal Articles

In his recent article, Professor Richard Squire offers a provocative theory in which he claims the underlying claimants in shareholder litigation against corporate policyholders are overcompensated due to what he describes as “cramdown” settlements, under which insurers are forced to settle due to the “duty to contribute” that arises under multi-layered directors and officers (“D&O”) insurance programs. He also offers a novel idea regarding how this problem could be fixed by what he refers to as “segmented” settlements in which each insurer and the policyholder would be allowed to settle separately and consider only its own interests in doing so. …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Journal Articles

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

Gaining Assurances, Julia Y. Lee

Journal Articles

This Article explores alternative legal mechanisms for solving a type of coordination problem known as the Assurance Game. The traditional approach has been to focus on changing the expectations of the parties. This Article focuses on altering the underlying payoff structure — not through sanctions, but through risk-reducing mechanisms such as guarantees.

One type of risk-reducing mechanism is the conditional money-back guarantee. Conditional money-back guarantees operate in settings ranging from federal deposit insurance to daily deal websites such as Groupon and LivingSocial. In each of these, a promise is made to return an individual’s monetary contribution if an event or …

Construction Defects: Are They “Occurrences”?, Chris French

Journal Articles

An issue in the area of insurance law that has been litigated frequently in recent years is whether construction defects are “occurrences” under Commercial General Liability (“CGL”) insurance policies. The courts have been divided in deciding the issue and in their approaches to analyzing the issue. This article addresses how the issue should be analyzed and concludes that construction defects are “occurrences”. The relevant rules of insurance policy interpretation dictate that construction defects are “occurrences”. Policy language should be interpreted in such a way as to fulfill the reasonable expectations of the policyholder when the policy is construed as a …

Promoting Commercial Law Reform In Eastern Europe, Samuel Bufford

Journal Articles

This article is my account of what I did in a decade of advising governments and teaching judicial seminars on commercial law matters in Central and Eastern Europe, beginning in 1991. This article contains my individual reflections on more than a dozen visits to developing countries in Central and Eastern Europe to advise governments and to educate their judges, and several visits of judges from some of those countries to the United States. In many ways, my experiences are typical of United States judges who have done the same kind of work in developing countries. In some ways, my experiences …

Back To The Future: Rediscovering Equitable Discretion In Trademark Cases, Mark P. Mckenna

Journal Articles

Courts in recent years have increasingly made blunt use of their equitable powers in trademark cases. Rather than limiting the scope of injunctive relief so as to protect the interests of a mark owner while respecting the legitimate interests of third parties and of consumers, courts in most cases have viewed injunctive relief in binary terms. This is unfortunate, because greater willingness to tailor injunctive relief could go a long way to mitigating some of the most pernicious effects of trademark law’s modern expansion. This Essay urges courts to reverse this trend towards crude injunctive relief, and to re-embrace their …

Irrelevent Confusion, Mark Mckenna, Mark A. Lemley

Journal Articles

Trademark law centers its analysis on consumer confusion. With some significant exceptions, the basic rule of trademark law is that a defendant’s use of a mark is illegal if it confuses a substantial number of consumers and not otherwise.

As a general matter, this is the right rule. Trademark law is designed to facilitate the workings of modern markets by permitting producers to accurately communicate information about the quality of their products to buyers, and therefore to encourage them to invest in making quality products in circumstances in which that quality wouldn’t otherwise be apparent. If competitors can falsely mimic …

Are All Contracts Alike?, Margaret F. Brinig

Journal Articles

This Article compares two sets of contracts that are structurally and contextually similar. They originate in two quite different fields, however: the commercial arena and the family. The contracts come from two separate empirical investigations. The first investigation studied 131 telecommunication interconnection agreements made between SBC Communications, Inc. ("SBC") and various local phone companies in Michigan beginning in 1998. The second investigation involved 141 divorce cases granted in 1998 in Johnson County, Iowa, all of which involved children, and 130 of which involved contracts, or "stipulations" as they are called locally. Though each empirical project has been described separately elsewhere, …

Limited Liability Company Citizenship: Reconsidering An Illogical And Inconsistent Choice, Debra R. Cohen

Journal Articles

The trend in diversity actions in Federal Court is to rigidly apply the formalistic rules for determining citizenship (aggregate or entity) to deem limited liability companies (LLCs) to have aggregate or "partnership" citizenship. While the approach is designed to reduce the federal docket; there is no evidence that it works. More importantly, this result-oriented approach is not based on well-reasoned analysis. This approach creates several illogical and inconsistent results. It bears no reflection on modern business realities, it undermines well established principles of law, and it undercuts the purpose for which diversity jurisdiction was established, This article suggests that, just …

Citizenship Of Limited Liability Companies For Diversity Jurisdiction, Debra R, Cohen

Journal Articles

The limited liability company is an increasingly popular form of business organization. Due to its hybrid nature, however, the citizenship of a LLC for purposes of diversity jurisdiction is difficult to determine. Should the citizenship of a LLC be determined as if it were a corporation, in which case it has "entity" citizenship, or as if it were a partnership, in which case its citizenship is determined by the citizenship of "persons composing" the LLC?

This Article examines the history of the evolution of hybrid organizations like the LLC, and the rules for determining the citizenship of business organizations in …

Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman

Journal Articles

In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed …

West Virginia Corporate Law: Is It "Broke"?, Debra R. Cohen

Journal Articles

We are all familiar with the cliche "if it ain't broke, don't fix it." The sentiment is as applicable to law as it is to the rest of life. When a law does what it is intended to do, legislators and courts should leave it alone. However, when a law no longer serves its intended purpose, it is "broke," and should be revised. The question is whether West Virginia's corporate law is "broke." In 1974, the West Virginia Legislature adopted the West Virginia Corporation Act (the "Act").' The Act brought then modem standards of corporate law to West Virginia. Since …

The Single Publication Rule: One Action Not One Law, Debra R. Cohen

Journal Articles

Recovery in one action under one state's law for violation of the right of publicity-the right to control the commercial use of one's identity-arising out of multistate publication2 seems to be the trend of the nineties. When Samsung ran a nationwide print advertisement for VCRs depicting a robot dressed to resemble her, Vanna White sued for violation of her right of publicity.3 Under California law she recovered $403,000. 4 When a SalsaRio Doritos radio commercial imitating Tom Waits's distinctive raspy and gravelly voice aired nationwide, he sued Frito Lay for violation of his right of publicity.5 Under California law he …

Rediscovering Usury: An Argument For Legal Controls On Credit Card Interest Rates, Vincent D. Rougeau

Journal Articles

This article explores the specific question of setting a legal maximum for credit card interest rates. There has been extensive discussion in the popular press of the explosion of credit card use and the extraordinarily high interest rates people are willing to pay, through various fees and interest charges, to use them. Classic free-market economic arguments have been used to prevent the imposition of a federal cap on credit card interest rates, but there is strong evidence that economic models inadequately explain the credit card market and that a lack of interest rate controls has produced a dramatic transfer of …

"Contort": Tortious Breach Of The Implied Covenant Of Good Faith And Fair Dealing In Noninsurance Commercial Contracts - Its Existence And Desirability, Matthew J. Barrett

Journal Articles

Every contract contains an implied covenant of good faith and fair dealing which prohibits any contracting party from injuring another party's right to receive the benefits of the agreement. Breach of this implied covenant creates a cause of action in contract. Beginning twenty-five years ago, some courts also recognized a cause of action in tort for breach of this implied covenant in insurance contracts.

In recent years, the California courts, the leaders in the development of “‘contort,”’ have repeatedly faced the issue whether courts should expand its application beyond the insurance context. Resolution of the issue is important because tort …

Government Enforcement Policy Of Section 7 Of The Clayton Act: Carte Blanche For Conglomerate Mergers?, Joseph P. Bauer

Journal Articles

This Article argues that the Department of Justice's recently articulated enforcement intentions with respect to conglomerate mergers are inconsistent with the case law applying section 7 of the Clayton Act to these transactions and also represent unsound policy. Part I will review the conglomerate merger jurisprudence of the past two decades - looking at the theories that have been used to challenge them, at the important judicial decisions interpreting and applying those theories, and at the Guidelines adopted by the Department of Justice in 1968 to codify these developments. It will then briefly discuss certain developments regarding conglomerate mergers the …

An Act To Restrict The Use Of Erotic Material For Commercial Purposes, Robert E. Rodes

Journal Articles

This article outlines a theoretical act to restrict the use of erotic material for commercial purposes.

The Requirement That A Capital Expenditure Create Or Enhance An Asset, Alan Gunn

Journal Articles

Should expenditures that have an impact on a company’s production beyond one tax year be capitalized for tax purposes? How can these be distinguished from the “ordinary and necessary expenses” of a business? Is it reasonable to permit a current deduction for these expenditures? While a capitalized expenditure has often been seen as an expenditure that has produced an “asset”, there is no clear rule on what is an asset how to define it. The article examines these issues, with a discussion of the statutory provisions concerning capital expenditures and the problem of whether capitalization is a method of accounting. …