Law Commons^™

Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks

Faculty Articles

Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world's largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland's biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan's Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG, which lost $5.5 billion. Archegos itself lost $20 billion over two days. The unique characteristics of total return swaps and …

Contract Law Should Be Faith Neutral: Reverse Entanglement Would Be Stranglement For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Faculty Articles

The first section of this Article will outline the ways in which communities—religious and other groups, including the LGBTQ+ community—have used and continue to use private law to achieve meaningful dispute resolution. By diminishing the role of civil courts to review arbitrations, parties may tailor their resolutions to prioritize community values that may be misaligned with secular society. Outside of historical religious usage, private law offers a field ripe for jurisprudential growth. Through alternative dispute resolution, affinity-based minority groups can pave an avenue towards justice which accurately reflects the unique values of their lived experiences.

The second section will provide …

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Faculty Articles

The recent article In God We Trust (Unless We Change Our Mind): How State of Mind Relates to Religious Arbitration ("In God We Trust") proposes that those who sign arbitration agreements that consent to a religious legal system as the basis of the rules of arbitration be allowed to back out of such agreements based on their constitutional right to free exercise. This article is a response and is divided into two sections. In the first section, we show that such an exemption would violate the Federal Arbitration Act's (FAA) basic rules preventing the states from heightened regulation of arbitration …

Contract Lore As Heuristic Starting Points, Colin P. Marks

Faculty Articles

What Professor Hillman labels as lore are better thought of as a series of heuristic starting points. I do not label them heuristics in and of themselves as they do not represent shortcuts to the ultimate answer. But, as I explain, all of the areas that Professor Hillman identifies as lore are actually quite nuanced, sometimes filled with exceptions; other times, they simply represent the first step in a long inquiry. Heuristics as a teaching device has been recognized in law and other disciplines as an effective tool in not only conveying information, but also prodding the student to conduct …

There Oughta Be A Law: What Corporate Social Responsibility Can Trach Us About Consumer Contract Formation, Colin P. Marks

Faculty Articles

The Restatement of Consumer Contracts has been a controversial project since its inception. Some have argued that the project is unnecessary as there is no separate law of consumer contracts. Others have argued that the project is more appropriate for a Principles of Law project than for a Restatement. Substantively, the project has also drawn criticism from both consumer and business advocates. Consumer advocates have argued that some of the sections, in particular section 2 which addresses standard terms, favor businesses and subject consumers to terms and conditions that they never truly assented to.9 Business advocates have argued, among other …

Mitigating Risk, Eradicating Slavery, Ramona Lampley

Faculty Articles

For U.S. companies with forced labor or child labor in the supply chain, litigation is on the rise. This Article surveys the current litigation landscape involving forced labor in the supply chain. It ultimately concludes that domestic corporations that source from international suppliers should adopt the Model Contract Clauses drafted by the ABA Business Law Section Working Group to Draft Human Rights Protections in International Supply Contracts ("Working Group"). This Article traces the origins of cases involving supply chain forced labor, beginning with the early employee negligence cases that form the backdrop of existing case law and the cornerstone of …

Online Terms As In Terrorem Devices, Colin P. Marks

Faculty Articles

Online shopping has quickly replaced the brick-and-mortar experience for a large portion of the consuming public. The online transaction itself is rote: browse items, add them to your cart, and check out. Somewhere along the way, the consumer is likely made aware of (or at least exposed to) the merchant's terms and conditions, via either a link or a pop-up box. Such terms and conditions have become so ubiquitous that most consumers would be hardpressed to find a merchant that doesn't try to impose them somewhere on their website.

Though such terms and conditions are pervasive, most consumers do not …

Milking The Estate, David R. Hague

Faculty Articles

Recent Chapter 7 bankruptcy cases are exposing a widespread problem. Chapter 7 trustees are retaining their own law firms to represent them and then in clear breach of their fiduciary duties to creditors-requesting illegitimate legal fees to be paid by the estate. This practice is immoral and particularly harmful to creditors. Indeed, every dollar paid to the trustee and his firm is a dollar that will not be distributed to creditors. The Bankruptcy Code, remarkably, allows a trustee to retain his own law firm to represent him in his capacity as a trustee. But this inherently conflicted arrangement is not …

Many-To-Many Contracts, Heidi S. Bond

Faculty Articles

In classical contract law the concept of one-to-one negotiations is familiar: contracts where one party negotiates with the other and, eventually, terms are offered and then accepted. More modern times have made us comfortable with the notion of one-to-many contracts: contracts typically drafted by large corporations and then distributed on a take-it-or-leave-it basis to the masses. This Article discusses a third kind of contract: a many-to-many contract which may look like the standard one-to-many contract in that it is composed of nonnegotiable language. But when the arrangements between the parties are further considered we will see that the point of …

Powerful Buyers And Merger Enforcement, John B. Kirkwood

Faculty Articles

Although large buyers like Walmart and Tyson Foods occupy important positions in the American economy, antitrust law remains focused on the conduct of sellers. Moreover, when mergers of buyers have been challenged, the cases have been based on a single theory – that the merger would create a dominant buyer (or group of buyers) that would exploit small, powerless suppliers. Most powerful buyers, however, face suppliers with power of their own, and in such cases, the buyers exert “countervailing power,” which can also be anticompetitive. Yet buyer mergers that reduce competition through the exercise of countervailing power are not addressed …

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International Law, Roberto Rosas

Faculty Articles

No abstract provided.

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International Law, Roberto Rosas

Faculty Articles

An understanding of the basic principles that regulate contract formation is of great importance when deciphering the most appropriate ways of fom1ing a new contract or when assessing the legality of an already existing contract. While the basic rules of contract formation are generally applicable to all types of contracts regardless of the method utilized in their creation, there are some juridical rules that apply specifically to electronically created contracts.

Estudio Comparativo De La Formacion De Contratos Electronicos En El Derecho Estadounidense Con Referencia Al Derecho International Y Al Derecho Mexicano, Roberto Rosas

Faculty Articles

The author presents the underlying fundamental contractual principles in American law, and in this respect, tire Uniform Commercial Code, with particular emphasis in how electronic transactions are regulating, and therefore in the Uniform Computer Information Transaction Act, the Uniform Electronic Transactions Act, and the Electronic Signatures in Global and National Commerce Act. Concerning international law, the United Nations Convention on Contracts for the International Sale of Goods and concerning Mexican law, with reference to the Commerce Code and the Federal Civil Code.

Un Enfoque Comparativo Sobre La Formacion De Los Contratos Electronicos, Roberto Rosas

Faculty Articles

Understanding the basic principles governing the formation of contracts is of paramount importance when it comes to figuring out the most appropriate to enter into a new contract or to assess the legality of a contract existing ones. While the basic rules for the forming of general contracts are applicable to most type of contracts, regardless of how they are done, there are some legal rules that apply specify to contracts concluded electronically.

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International And Mexican Law, Roberto Rosas

Faculty Articles

No abstract provided.

Placid, Clear-Seeming Words: Some Realism About The New Formalism (With Particular Attention To Promissory Estoppel), Sidney Delong

Faculty Articles

This Article examines the recent doctrinal shift from realist jurisprudence to the “new formalism” as it arises in the creation of contract obligation. Many recent decisions involving promissory estoppel appear to display a trend away from reliance protection in the commercial world. While these decisions are formalist insofar as they favor textual forms over contextual forms, the Author argues that this trend is more properly characterized as a realist effort. This Article examines promissory estoppel in the commercial world and suggests that the “new formalism”, driven by the most “realist” of motives, will expunge liability for promissory estoppel in the …

The New Requirement Of Enforcement Reliance In Commercial Promissory Estoppel: Section 90 As Catch-22, Sidney Delong

Faculty Articles

Any comprehensive examination of recent appellate court decisions will disclose that the legal doctrine of promissory estoppel has not become a significant source of commercial contractual obligation. Although commercial promissory estoppel claims are often made, plaintiff victories are very rare. These results are difficult to reconcile with frequent scholarly contentions to the effect that contemporary courts have become more receptive to claims of promissory estoppel and have liberalized its doctrinal requirements. More important, the promisor behavior that is incidentally disclosed in reported opinions also undermines academic arguments that rules providing for promissory estoppel have commercial utility. The decisions suggest that …

Opting In And Out Of Fiduciary Duties In Cooperative Ventures: Refining The So-Called Coasean Contract Theory, Charles O'Kelley

Faculty Articles

Professor O’Kelley comments on a familiar problem in the law of closely held business associations - the alleged exploitation of weaker or minority investors by stronger or majority participants. The fact pattern is simple. At the outset of the cooperative venture, a stronger participant assumes the role of proprietor, partner, or majority shareholder, while the weaker participant assumes the role of agent, partner, or minority shareholder. For whatever reason, the venturers do not explicitly guarantee or protect the weaker participant’s right to income or continued participation in the venture. Consequently, at some later date the stronger participant reduces or eliminates …