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2009

Commercial Law

Institution
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Articles 1 - 30 of 47

Full-Text Articles in Law

Insolvency And Biased Standards - The Case For Proportional Liability, Alexander Stremitzer, Avraham Tabbach Nov 2009

Insolvency And Biased Standards - The Case For Proportional Liability, Alexander Stremitzer, Avraham Tabbach

Faculty Scholarship Series

We analyze liability rules in a setting where injurers are potentially insolvent and where negligence standards may deviate from the socially optimal level. We show that proportional liability, which sets the measure of damages equal to the harm multiplied by the probability that it was caused by an injurer’s negligence, is preferable to other existing negligence-based rules. Moreover, proportional liability outperforms strict liability if the standard of due care is not set too low. Our analysis also suggests that courts should rely on statistical evidence and bar individualized causal claims that link the harm suffered by a plaintiff to ...


Intent To Contract, Gregory Klass Oct 2009

Intent To Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

There is a remarkable difference between black-letter contract laws of the United States and England. In England, the existence of a contract is supposedly conditioned on the parties' intent to be legally bound, while section 21 of the Second Restatement of Contracts states that "[n]either real nor apparent intention that a promise be legally binding is essential to the formation of a contract." There are also differences within U.S. law on the issue. While section 21 describes courts' approach to most contracts, the parties' intent to contact can be a condition of validity of preliminary agreements, domestic agreements ...


Section 3: Business, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 2009

Section 3: Business, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


The Costs Of Liquidity Enhancement: Transparency Cost, Risk Alteration, And Coordination Problems, Edward J. Janger Oct 2009

The Costs Of Liquidity Enhancement: Transparency Cost, Risk Alteration, And Coordination Problems, Edward J. Janger

Faculty Scholarship

No abstract provided.


Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman Sep 2009

Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman

Cornell Law Faculty Publications

In a symposium to honor Professor Richard Speidel, a giant in the field of contract and commercial law for over four decades, this contribution argues that Speidel may have been correct in asserting that, in limited circumstances, court adjustment of disrupted long-term contracts makes sense. I assert that nothing courts have decided or writers have analyzed since the ALCOA case proves that court adjustment is wrong-headed. But, as with so many policy issues, we may never identify the "best" judicial approach to disrupted long-term contracts because resolution depends on too many variables and unknowns.


The Company And Its Directors As Co-Conspirators, Pey Woan Lee Sep 2009

The Company And Its Directors As Co-Conspirators, Pey Woan Lee

Research Collection School Of Law

In Nagase Singapore Pte Ltd v Ching Kai Huat and Lim Leong Huat v Chip Hup Hup Kee Construction Pte Ltd, the High Court of Singapore affirmed the proposition that a company may, like a natural person, conspire with its director to inflict harm on a third person even if the latter is its “directing mind and will”. In both cases, the courts’ focus was directed at a conceptual enquiry, ie, whether a company, whose “mind” is the same as that of its director, could properly be said to have “combined” or “agreed” to conspire. This article argues, however, that ...


Worsening Foreclosure Crisis: Is It Time To Reconsider Bankruptcy Reform?: Hearing Before The Subcomm. On Administrative Oversight And The Courts Of The S. Comm. On The Judiciary, 111th Cong., July 23, 2009 (Statement Of Adam J. Levitin, Associate Prof. Of Law, Geo. U. L. Center), Adam J. Levitin Jul 2009

Worsening Foreclosure Crisis: Is It Time To Reconsider Bankruptcy Reform?: Hearing Before The Subcomm. On Administrative Oversight And The Courts Of The S. Comm. On The Judiciary, 111th Cong., July 23, 2009 (Statement Of Adam J. Levitin, Associate Prof. Of Law, Geo. U. L. Center), Adam J. Levitin

Testimony Before Congress

The clear finding from my research is that mortgage prices are largely insensitive to bankruptcy modification risk. Permitting bankruptcy modification is unlikely to result in higher mortgage costs or lower mortgage credit availability.

The foreclosure crisis is not about to stop any time soon. Judicially-supervised restructuring of mortgages is the only tool we have left in the box. It's a tool we know can work. It's a tool that can save hundreds of thousands of families their homes and help stabilize communities, housing markets, and the economy. It's time to use it.


Case Comment: Robertson Quay Investment Pte Ltd V Steen Consultants Pte Ltd, Yihan Goh Jun 2009

Case Comment: Robertson Quay Investment Pte Ltd V Steen Consultants Pte Ltd, Yihan Goh

Research Collection School Of Law

In recent times, the venerable principles relating to remoteness of damage in contract have undergone a period of sustained re-evaluation. Key amongst this exercise is the House of Lords’ decision in Transfield Shipping Inc v Mercator Shipping Inc—referred to as ‘The Achilleas’, which represents a fundamental shift in the understanding of remoteness principles. Caught in the winds of The Achilleas is the considered judgment of the Singapore Court of Appeal in Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd.In direct contrast with some of the speeches in The Achilleas, the judgment delivered by Andrew Phang JA ...


Unrevised Section 2-207--Different Terms Revisited, Sidney Kwestel May 2009

Unrevised Section 2-207--Different Terms Revisited, Sidney Kwestel

Scholarly Works

No abstract provided.


The Law Of Unintended Consequences: A Critique Of The Dilutive Effects And Efficiency Costs Of Multilayer Regulation, Ilya O. Podolyako Apr 2009

The Law Of Unintended Consequences: A Critique Of The Dilutive Effects And Efficiency Costs Of Multilayer Regulation, Ilya O. Podolyako

Student Scholarship Papers

This Article examines the role obstruction charges play in the regulatory framework covering modern public corporations and their members. It finds that prosecutors’ reliance on obstruction charges undermines the legitimacy of substantive rules for enterprise behavior. This pattern not only causes significant inefficiency on its own, but indicates a broader problem with multilayer regulation. That is, in a previously regulated arena, the pre-existing legal environment may warp a new set of rules in undesirable ways. The Article concludes by proposing a means to address this problem generally and remove unnecessary costs associated with the compliance regime specifically.


The Failure Of Private Ordering And The Financial Crisis Of 2008, Brian J.M. Quinn Apr 2009

The Failure Of Private Ordering And The Financial Crisis Of 2008, Brian J.M. Quinn

Boston College Law School Faculty Papers

This Article analyzes the Financial Crisis of 2008 in the context of failures by market participants to engage in private ordering thus leading to opportunistic behavior at the expense of market stability. The Financial Crisis of 2008 offers a decidedly negative verdict on a decades-long project to deregulate financial markets and rely on private ordering mechanisms, including securitization and default swaps, to mitigate opportunistic behavior and improve market efficiency. Although the regulatory approach of the past two decades, which relied in great measure on private parties fending for themselves, helped to generate a number of innovations and positive developments in ...


The Mexican Constitution And Its Safeguards Against Foreign Investments, Álvaro Ramírez Martínez Apr 2009

The Mexican Constitution And Its Safeguards Against Foreign Investments, Álvaro Ramírez Martínez

Cornell Law School Inter-University Graduate Student Conference Papers

Every state has safeguards against foreign investment in its country. Most of the times these safeguards are contained in a main document which governs said countries. This document can take the form of a Constitution.

The Mexican constitution contains a safeguard against foreign investments in Article 27, where it is stated that the Mexican state can expropriate private property among other things, due to public interest. Any expropriation must be followed by an indemnification. The price to pay as indemnification shall not exceed the assessment for tax purposes.

Mexico has an invaluable opportunity to attract foreign investments but it must ...


The Economics Of Deal Risk: Allocating Risk Through Mac Clauses In Business Combination Agreements, Robert T. Miller Apr 2009

The Economics Of Deal Risk: Allocating Risk Through Mac Clauses In Business Combination Agreements, Robert T. Miller

Working Paper Series

In any large corporate acquisition, there is a delay between the time the parties enter into a merger agreement (the signing) and the time the merger is effected and the purchase price paid (the closing). During this period, the business of one of the parties may deteriorate. When this happens to a target company in a cash deal, or to either party in a stock-for-stock deal, the counterparty may no longer want to consummate the transaction. The primary contractual protection parties have in such situations is the merger agreement’s “material adverse change” (MAC) clause. Such clauses are heavily negotiated ...


Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne Apr 2009

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Faculty Publications

No abstract provided.


Arbitration Reform: What We Know And What We Need To Know, Peter B. Rutledge Apr 2009

Arbitration Reform: What We Know And What We Need To Know, Peter B. Rutledge

Scholarly Works

The future of commercial arbitration has become a centerpiece of the domestic congressional agenda. According to one estimate, ten different bills introduced in the 110th Congress would chip away at the enforceability of pre-dispute arbitration agreements. By far the most significant bill, the Arbitration Fairness Act, would retroactively invalidate arbitration agreements in all employment, consumer, securities and franchise contracts. An especially vague provision in a prior version of the bill would invalidate agreements involving claims under statutes intended to protect civil rights or designed to regulate transactions between parties of unequal bargaining power. Are these wise moves?


The (Misunderstood) Genius Of American Corporate Law, Robert B. Ahdieh Apr 2009

The (Misunderstood) Genius Of American Corporate Law, Robert B. Ahdieh

Faculty Scholarship

In this Reply, I respond to comments by Bill Bratton, Larry Cunningham, and Todd Henderson on my recent paper - Trapped in a Metaphor: The Limited Implications of Federalism for Corporate Governance. I begin by reiterating my basic thesis - that state competition should be understood to have little consequence for corporate governance, if (as charter competition's advocates assume) capital-market-driven managerial competition is also at work. I then consider some of the thoughtful critiques of this claim, before suggesting ways in which the comments highlight just the kind of comparative institutional analysis my paper counsels. Rather than a stark choice between ...


Summary Of Terracon Consultants W., Inc. V. Mandalay Resort Group, 125 Nev. Adv. Op. No. 8, Ian Houston Mar 2009

Summary Of Terracon Consultants W., Inc. V. Mandalay Resort Group, 125 Nev. Adv. Op. No. 8, Ian Houston

Nevada Supreme Court Summaries

Pursuant to Nevada Rule of Appellate Procedure 52, the United States District Court for the District of Nevada, hearing a breach of contract and professional negligence case, certified the following questions regarding the scope of Nevada’s economic loss doctrine: [1] Does the economic loss doctrine apply to contractors who solely provide services in construction defect cases? [2] Does the economic loss doctrine apply in construction defect cases to design professionals, such as engineers and architects, who solely provide services, regardless of whether the services are rendered before or during construction?


Jurisdictions And Causes Of Action In Bullying, Stress And Harassment Cases Part 1, Niall Neligan Mar 2009

Jurisdictions And Causes Of Action In Bullying, Stress And Harassment Cases Part 1, Niall Neligan

Articles

This is the first of a two part article in which the author will critically evaluate the different causes of action and myriad of jurisdictions for bringing a claim in the inter-related fields of bullying, stress and harassment in the workplace from a commercial law perspective. The author will define and trace the separate headings under which the law governing bullying, stress and harassment has evolved. In the second part of the article (which will
appear in the next edition of the journal), the author will examine recent developments in tortious claims for psychiatric injuries arising from bullying, stress and ...


Information Disclosure, Risk Trading And The Nature Of Derivative Instruments: From Common Law Perspective, Christopher Chao-Hung Chen Mar 2009

Information Disclosure, Risk Trading And The Nature Of Derivative Instruments: From Common Law Perspective, Christopher Chao-Hung Chen

Research Collection School Of Law

This paper explores issues of pre-contractual disclosure for derivative instruments, of which this paper describes as contracts to trade risks, in the UK and US. While there is no general duty of disclosure in common law, this paper focuses on whether there should be a duty of disclosure for derivative instruments by comparing with securities law and insurance law. This paper argues that mandatory disclosure in the securities market cannot be extended to exchange-traded futures contracts (save where securities are involved) because of the nature of securities. In addition, this paper argues that derivative instruments, though similar to insurance in ...


Compromising On Consideration In Singapore: Gay Choon Ing V Loh Sze Ti Terence Peter, Yihan Goh Mar 2009

Compromising On Consideration In Singapore: Gay Choon Ing V Loh Sze Ti Terence Peter, Yihan Goh

Research Collection School Of Law

It is not often that a judgment contains a reference to Aristotle’s work or a coda at its conclusion. The recent Singapore Court of Appeal judgment of Gay Choon Ing v Loh Sze Ti Terence Peter (delivered by Andrew Phang JA) contained both, the latter of which an extensive judicial exposition on the difficulties (and tentative solutions) relating to the contractual doctrine of consideration. This re-evaluation of consideration at the slightest opportunity is unsurprising, given the conceptual problems that have afflicted the doctrine.There have been various judicial solutions, generally capable of classification into two distinct types: first, through ...


Rethinking Consideration In The Electronic Age, Robert A. Hillman, Maureen O'Rourke Feb 2009

Rethinking Consideration In The Electronic Age, Robert A. Hillman, Maureen O'Rourke

Cornell Law Faculty Working Papers

Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding the suitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual ...


Protecting Against Plunder: The United States And The International Efforts Against Looting Of Antiquities, Asif Efrat Feb 2009

Protecting Against Plunder: The United States And The International Efforts Against Looting Of Antiquities, Asif Efrat

Cornell Law Faculty Working Papers

In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern ...


Trapped In A Metaphor: The Limited Implications Of Federalism For Corporate Governance, Robert B. Ahdieh Feb 2009

Trapped In A Metaphor: The Limited Implications Of Federalism For Corporate Governance, Robert B. Ahdieh

Faculty Scholarship

Trapped in a metaphor articulated at the founding of modern corporate law, the study of corporate governance has - for some thirty years - been asking the wrong questions. Rather than a singular race among states, whether to the bottom or the top, the synthesis of William Cary and Ralph Winter’s famous exchange is better understood as two competitions, each serving distinct normative ends. Managerial competition advances the project that has motivated corporate law since Adolf Berle and Gardiner Means - effective regulation of the separation of ownership and control. State competition, by contrast, does not promote a race to either the ...


H.R. 200, The "Helping Families Save Their Homes In Bankruptcy Act Of 2009," And H.R. 225, The "Emergency Homeownership And Equity Protection Act": Hearing Before The H. Comm. On The Judiciary, 111th Cong., Jan. 22, 2009 (Statement Of Associate Professor Adam J. Levitin, Geo. U. L. Center), Adam J. Levitin Jan 2009

H.R. 200, The "Helping Families Save Their Homes In Bankruptcy Act Of 2009," And H.R. 225, The "Emergency Homeownership And Equity Protection Act": Hearing Before The H. Comm. On The Judiciary, 111th Cong., Jan. 22, 2009 (Statement Of Associate Professor Adam J. Levitin, Geo. U. L. Center), Adam J. Levitin

Testimony Before Congress

Permitting modification of all mortgages in bankruptcy would create a low-cost, effective, fair, and immediately available method for resolving much of the current foreclosure crisis without imposing costs on taxpayers, creating a moral hazard for borrowers or lenders, or increasing mortgage credit costs or decreasing mortgage credit availability. As the foreclosure crisis deepens, bankruptcy modification presents the best and least invasive method of stabilizing the housing market and is a crucial step in stabilizing financial markets.


Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Jarrod Wong, Miriam A. Cherry Jan 2009

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Jarrod Wong, Miriam A. Cherry

McGeorge School of Law Scholarly Articles

No abstract provided.


Storetrax.Com, Inc. V. Gurland: Keep Trax Of Your Board Of Directors, James R. Hart Iii Jan 2009

Storetrax.Com, Inc. V. Gurland: Keep Trax Of Your Board Of Directors, James R. Hart Iii

Maryland Law Review Online

No abstract provided.


Amended U.C.C. Article 2 As Code Commentary, David Frisch Jan 2009

Amended U.C.C. Article 2 As Code Commentary, David Frisch

Law Faculty Publications

In this short article, I suggest what is a valuable, if partial, corrective to the actual difficulties arising in the application of a statute that has not been subjected to significant changes for more than five decades. I begin in Part I by summarizing one of the sources from which information as to the proper application of Article 2 may be derived, and suggest that another appropriate source should be Amended Article 2. Part II will illustrate the soundness of the suggestion by applying Amended Article 2 to four issues, in order to conclude that specific outcomes can be predicated ...


Contributory Negligence, Technology, And Trade Secrets, Elizabeth A. Rowe Jan 2009

Contributory Negligence, Technology, And Trade Secrets, Elizabeth A. Rowe

UF Law Faculty Publications

In tort law, the doctrine of contributory negligence captures conduct by the plaintiff that falls below the standard to which he should conform for his own protection. Whether one has been contributorily negligent is determined by an objective standard of reasonableness under the circumstances. This Article, for the first time, applies contributory negligence principles to trade secret law. It draws upon this doctrine to frame and analyze a challenge posed by modem technology. The very technological tools in use today that increase the efficiency with which companies do business also create challenges for trade secret protection. What might have been ...


The Graying Of The American Manufacturing Economy: Gray Markets, Parallel Importation, And A Tort Law Approach, Joseph Karl Grant Jan 2009

The Graying Of The American Manufacturing Economy: Gray Markets, Parallel Importation, And A Tort Law Approach, Joseph Karl Grant

Journal Publications

This Article examines the history of the gray market in the United States through an analysis of both the domestic legislative framework and judicial treatment of gray market goods, primarily under trademark and copyright law. Part I of this Article provides a general introduction into the structural factors that cause parallel importation. Part II begins a discussion of trademarked goods by looking at the purposes of trademark law. Part III starts by discussing the relevant doctrines and provisions of the Copyright Act of 1976, which frame the gray market discussion. Part III concludes by examining the current debate and the ...


Application Of The U.C.C. To Nonpayment Virtual Assets Or Digital Art, Sarah Howard Jenkins Jan 2009

Application Of The U.C.C. To Nonpayment Virtual Assets Or Digital Art, Sarah Howard Jenkins

Faculty Scholarship

No abstract provided.