Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Letter of credit (4)
- Section 2-207 (4)
- Uniform Commercial Code (4)
- Universalism (4)
- Contractualism (3)
-
- Cross-border transaction (3)
- Efficiency (3)
- Empiricism (3)
- Globalization (3)
- Payment-assurance (3)
- Territorialism (3)
- Waiver (3)
- Authenticity (2)
- Choice-of-law (2)
- Clayton Act (2)
- Compensation Clause (2)
- Competition (2)
- Creditor (2)
- Discrepancy (2)
- Documentary-collection (2)
- Egalitarianism (2)
- Federal Trade Commission Act (2)
- Fifth Amendment (2)
- Insolvency (2)
- Japan (2)
- Lochner v. New York (2)
- Mistake theory (2)
- Progressive takings doctrine (2)
- Public order (2)
- Relationship-specific investment (2)
Articles 1 - 29 of 29
Full-Text Articles in Law
The Anticompetitive Effect Of Passive Investment, David Gilo
The Anticompetitive Effect Of Passive Investment, David Gilo
Michigan Law Review
There are many cases in which a firm passively invests in its competitor. For example, Microsoft passively invested in $150 million worth of the nonvoting stock of Apple, its historic rival in the operating systems market. Also, in November 1998, Northwest Airlines, the nation's fourth-largest airline, purchased 14% of the common stock of Continental Airlines Inc., the nation's fifth-largest (and fastest growing) airline. Northwest competes with Continental on seven routes, serving 3.6 million passengers per year. In another example, TCI, the nation's largest cable operator, became a passive investor with a 9% stake (which can be increased, under the terms …
Just Compensation, Incentives, And Social Meanings, Hanoch Dagan
Just Compensation, Incentives, And Social Meanings, Hanoch Dagan
Michigan Law Review
In Takings and Distributive Justice, I proposed a progressive interpretation of the Compensation Clause. In his response, published in this issue, Professor Lunney challenges the plausibility and the desirability of my interpretation and proposes an alternative. This Essay compares our approaches. It concludes that Professor Lunney's careful examination of the public choice analysis of takings does refine my theory. Contrary to Professor Lunney's claims, however, these refinements reinforce - rather than undermine - the viability of a progressive takings doctrine. Parts I and II set the stage by summarizing the principal claims made, respectively, in my original Article and in …
Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.
Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.
Michigan Law Review
In A Critical Reexamination of the Takings Jurisprudence, I addressed an efficiency problem that arises when the government attempts to change property rights in a manner that burdens a very few for the benefit of the very many. Specifically, in the absence of compensation, the collective action advantage of the few in organizing to oppose the proposed measure will often give them a decided edge against the many. As a result of that advantage, the few will too often be able to persuade the legislature not to act, even when an objective evaluation of the proposal's costs and benefits would …
Resolving Transnational Insolvencies Through Private Ordering, Robert K. Rasmussen
Resolving Transnational Insolvencies Through Private Ordering, Robert K. Rasmussen
Michigan Law Review
There is no international bankruptcy law. No question, there are international insolvencies. Transnational firms, just like domestic ones, often cannot generate sufficient revenue to satisfy their debt obligations. Their financial distress creates a situation where assets and claimants are scattered across more than one country. But there is no international law that provides a set of rules for resolving the financial distress of these firms. The absence of any significant free-standing international bankruptcy treaty means that a domestic court confronted with the domestic part of a transnational enterprise has to decide which nation's domestic bankruptcy law will apply to which …
Democracy, Science, And Free Trade: Risk Regulation On Trial At The World Trade Organization, Robert Howse
Democracy, Science, And Free Trade: Risk Regulation On Trial At The World Trade Organization, Robert Howse
Michigan Law Review
Among the most common critiques of globalization is that it increasingly constrains the ability of democratic communities to make unfettered choices about policies that affect the fundamental welfare of their citizens, including those of health and safety, the environment, and consumer protection. Traditionally, free trade rules were about constraining border measures such as tariffs and quantitative restrictions on imports. Increasingly, however, such rules include requirements and constraints addressed directly to domestic regulation. For example, a country's policies with respect to intellectual property rights or its regulatory approach to network industries, such as telecommunications, may now be fundamentally shaped by rules …
International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman
International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman
Michigan Law Review
The globalization of business activity is rightfully celebrated as one of the triumphs of the second half of the twentieth century. The benefits stemming from the globalization of commerce are substantial, but international transactions also bring with them important challenges for the world's legal systems. Traditionally, national governments could focus on their domestic economies without undue attention to international issues. Today, however, a country's policymakers must respond to the growth in international business activity with appropriate legal changes. Failure to do so will cause their legal regimes to fall further and further out of step with the needs of the …
The Case For Cooperative Territoriality In International Bankruptcy, Lynn M. Lopucki
The Case For Cooperative Territoriality In International Bankruptcy, Lynn M. Lopucki
Michigan Law Review
Universalism - the idea that a multinational debtor's "home country" should have worldwide jurisdiction over its bankruptcy - has long had tremendous appeal to bankruptcy professionals. Yet, the international community repeatedly has refused to adopt conventions that would make universalism a reality. In an article published last year, I proposed an explanation. Universalism can work only in a world with essentially uniform laws governing bankruptcy �nd priority among creditors - a world that does not yet exist. Because it is impossible to fix the location of a multinational company in a global economy, the introduction of universalism in current world …
A Global Solution To Multinational Default, Jay Lawrence Westbrook
A Global Solution To Multinational Default, Jay Lawrence Westbrook
Michigan Law Review
A new world is slouching toward New York and London, Beijing and Bangkok, to be born. If our planet and our values survive the secondary effects of that emergence, we may look forward to a humanity more prosperous and more integrated than at any time in human history. The force that drives us to that future is free-market capitalism constrained in the vessel of democratic institutions. One important element in its progress is the fashioning of an international system for managing the financial crises that are one of the free market's inevitable consequences. In this symposium, we debate which is …
Saying No To Stakeholding, Jeffrey S. Lehman, Deborah C. Malamud
Saying No To Stakeholding, Jeffrey S. Lehman, Deborah C. Malamud
Michigan Law Review
What if America were to make good on its promise of equal opportunity by [XXX]? That's the bold proposal set forth by Yale law professors Bruce Ackerman and Anne Alstott.... The quotation above is from the Yale University Press announcement describing Bruce Ackerman and Anne Alstott's new book, with one change: we have substituted "[XXX]" for the authors' catchphrase summary of their proposal. What do you think the missing words might be? How would you enable America "to make good on its promise of equal opportunity"? As you ponder that question, you might consider the following feature of the Ackerman/ …
The Tyranny Of Money, Edward J. Mccaffery
The Tyranny Of Money, Edward J. Mccaffery
Michigan Law Review
The more things change, the more they stay the same. A human activity almost as venerable as the accumulation and opulent display of vast riches is the condemnation of the accumulation and opulent display of vast riches. People have been busily engaged at each for several millennia now. Both continue in full flower as America races into the twenty-first century with its liberal capitalist democracy ascendant around the world, its rich richer than ever, its less-rich curiously lagging behind. Yet figuring out what, exactly, is wrong with the excessive accumulation and opulent display of wealth, on the one hand, and …
Publish Or Perish, Gideon Parchomovsky
Publish Or Perish, Gideon Parchomovsky
Michigan Law Review
The race model has been the darling of patent economists and game theorists. This model assumes that the winner, namely the first to invent, takes the patent grant with the market dominance that comes with it, whereas the second comer, in the best tradition of sports contests, obligingly accepts her loss and quietly vanishes from the scene. While the sports analogy has provided a useful framework for understanding the economics of invention, it has obfuscated an important aspect of the inventive process: the possibility of strategic publication of research findings in order to prevent the issuance of a patent to …
Antitrust Beyond Competition: Market Failures, Total Welfare, And The Challenge Of Intramarket Second-Best Tradeoffs, Peter J. Hammer
Antitrust Beyond Competition: Market Failures, Total Welfare, And The Challenge Of Intramarket Second-Best Tradeoffs, Peter J. Hammer
Michigan Law Review
Should antitrust law ever sanction the accumulation of market power or permit other restraints of trade if such conduct would increase social welfare? This is the challenge raised by intramarket second- best tradeoffs. The lesson of second-best analysis is that one market failure can sometimes counteract the effects of another market failure. In the presence of multiple market failures, it is conceivable that mergers or other restraints traditionally viewed as anticompetitive may be welfare-enhancing. A social planner, given the mandate of maximizing total welfare, would permit such restraints. Could an antitrust judge come to the same result under a defensible …
The Price Of Law: How The Market For Lawyers Distorts The Justice System, Gillian K. Hadfield
The Price Of Law: How The Market For Lawyers Distorts The Justice System, Gillian K. Hadfield
Michigan Law Review
Bill Clinton's legal bills in connection with the Lewinsky scandal topped $10 million; the bill for Ken Starr's investigation of the President exceeded $50 million. The cost to the eight families portrayed in the bestseller A Civil Action for their tort suit against a manufacturing company accused of dumping hazardous chemicals into the water supply was $4.8 million (paid from a settlement of about $8 million); the cost for the defense exceeded $7 million. Lawyers who represented the three states in the nationwide suit by state attorneys general against tobacco companies to recoup smoking-related health care costs were awarded $8.2 …
Exploring The Battle Of The Forms In Action, Daniel Keating
Exploring The Battle Of The Forms In Action, Daniel Keating
Michigan Law Review
Like many commercial law professors, I have long been fascinated with the workings of the Uniform Commercial Code's section 2-207, the "battle of the forms" provision. There are two features of that section, one internal and one external, that make it such an intriguing statute to ponder. The internal source of fascination with section 2-207 is that it provides a classic model for teaching students about the intricacies of statutory construction. There is probably no other provision within U.C.C. Article 2 that provides more confusion to law students and more challenge to the instructor than does section 2-207. There is …
Private Order Under Dysfunctional Public Order, John Mcmillan, Christopher Woodruff
Private Order Under Dysfunctional Public Order, John Mcmillan, Christopher Woodruff
Michigan Law Review
Businesspeople need contractual assurance. Most transactions are less straightforward than a cash sale of an easily identifiable item. Buyers need assurance of the quality of what they are purchasing, and sellers need assurance that bills will be paid. The legal system may not always be available to provide contractual assurance - and when the law is dysfunctional, private order might arise in its place. Many developing and transition economies have dysfunctional legal systems, either because the laws do not exist or because the machinery for enforcing them is inadequate. In such countries, bilateral relationships, communal norms, trade associations, or market …
Looking At Marriage, Naomi Cahn
Looking At Marriage, Naomi Cahn
Michigan Law Review
In a recent book (not the subject of this Review), highly successful and popular authors John Gottman and Nan Silver set out their seven effective principles for making a marriage last. The final suggestion is that spouses should "create shared meaning, an inner life together that is rich with symbols and family rituals and that honors the hopes of both partners." In a happy marriage, the couples not only provide support for each other, but also "build a sense of purpose into their lives together." Professor Gottman has developed these principles as a result of twenty years of research and …
Enforcing Contracts In Dysfunctional Legal Systems: The Close Relationship Between Public And Private Orders: A Repy To Mcmillan And Woodruff, Ariel Porat
Michigan Law Review
When the public order is dysfunctional, a private order for enforcing contracts will develop. In the absence of courts, transactors will seek ways to secure performance without recourse to legal sanctions. Social and economic sanctions imposed on the party in breach, whether by the aggrieved party or by the economic and social community in which both parties operate, replace legal sanctions. These sanctions sometimes arise within a private order functioning spontaneously, as when ongoing contractual relationships prevail between the parties, or when a close-knit economic or social community exists in which information concerning breaches of contract flows freely. In other …
The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann
The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann
Michigan Law Review
Common justifications for the use of the letter of credit fail to explain its widespread use. The classic explanation claims that the letter of credit provides an effective assurance of payment from a financially responsible third party. In that story, the seller - a Taiwanese clothing manufacturer, for example - fears that the overseas buyer - Wal-Mart - will refuse to pay once the goods have been shipped. Cross-border transactions magnify the concern, because the difficulties of litigating in a distant forum will hinder the manufacturer's efforts to force the distant buyer to pay. The manufacturer-seller solves that problem by …
Letters Of Credit As Signals: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Clayton P. Gillette
Letters Of Credit As Signals: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Clayton P. Gillette
Michigan Law Review
Why would buyers and sellers transact with each other through a third party that charges a significant fee for its services and that typically is authorized to make payment notwithstanding noncompliance with the very prerequisites that it has been engaged to monitor? This is the puzzle that Ronald Mann's provocative and nuanced article purports to explain. Under the traditional story about the esoteric world of letters of credit, these transactions allow distant buyers and sellers to circumvent obstacles that would otherwise frustrate long-distance transactions. The traditional story explains that these credits induce buyers to approve payment prior to receiving conforming …
Reconciling The Old Theory And The New Evidence: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Jacob I. Corré
Reconciling The Old Theory And The New Evidence: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Jacob I. Corré
Michigan Law Review
Ronald Mann's thorough research and rigorous analysis provide compelling evidence that the commercial letter of credit does not further the fundamental purpose traditionally associated with it. Equally persuasive are his hypotheses about the functions that letters of credit actually serve in the real world. The objective statistics are startling. An overwhelming majority of letter of credit seller-beneficiaries make at least initial presentations to issuing or correspondent banks that by the express terms of the letter of credit do not entitle the seller to payment. Without a waiver from its customer, the issuing bank is legally entitled to, and surely will …
Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Avery Wiener Katz
Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Avery Wiener Katz
Michigan Law Review
Ronald Mann's study of documentary defects in the presentation of commercial letters of credit is a valuable contribution to the commercial law literature in at least three respects. First, it offers a detailed and thorough empirical survey of an important though specialized aspect of commercial practice. Mann collected and coded a data sample of 500 randomly selected letter-of-credit transactions, personally evaluating each transaction to determine whether the documentary presentation by the beneficiary of the letter of credit (i.e., the seller) complied with the letter's formal terms. Then, for each case in which he found one or more documentary defects, Mann …
Empirical Insight And Some Thoughts On Future(S) Investigation: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', A.W. Brian Simpson
Empirical Insight And Some Thoughts On Future(S) Investigation: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', A.W. Brian Simpson
Michigan Law Review
Some considerable number of years ago, when I was in Chicago, I had a plan to undertake a general study of the origins of futures markets. They fascinated me for a variety of reasons, one being their bizarre nature: traders meeting together, usually in some form of ring, in order to sell, on a huge scale, quantities of commodities which they neither possess, nor intend to possess, to other traders, who have not the least wish to receive such commodities, and nowhere to put them if they did. At first sight it appears a weird perversion of the institution of …
A Public Choice Approach To Private Ordering: Rent-Seeking At The World's First Futures Exchange: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', Omri Yadlin
Michigan Law Review
The literature on private ordering systems has expanded exponentially over the last decade. Yet, very few scholars have actually attempted to define the term "private ordering" - a failure that sometimes leads to confusion. Some scholars identify private ordering with non-state ordering. According to this view, the private legal systems Robert Ellickson, Lisa Bernstein, McMillan & Woodruff, Mark West, and others have investigated are "private" simply because their norms are not manufactured or enforced by the state. The alternative view emphasizes the decentralized feature of private ordering systems. Robert Ellickson, for example, studied "how people manage to interact to mutual …
Rethinking Relationship-Specific Investments: Subcontracting In The Japanese Automobile Industry, Yoshiro Miwa, J. Mark Ramseyer
Rethinking Relationship-Specific Investments: Subcontracting In The Japanese Automobile Industry, Yoshiro Miwa, J. Mark Ramseyer
Michigan Law Review
Longer ago than either of us cares to remember, one of us attended junior high in Tokyo. On Saturdays, he worked at a printed circuit factory. Or maybe "factory" makes it all sound too grand. A small building in back of a gas station, it had three or four punch presses. The "president" supervised matters (though he actually spent more time hanging out at the gas station), together with a sidekick who did assorted odd jobs besides. Several middle-aged women with no apparent technical education or skill ran the presses. The junior high kid spent his time trimming the sheets …
Reaffirming Relationship-Specific Investments: Comments On Miwa And Ramseyer's 'Rethinking Relationship-Specific Investments', Scott E. Masten
Reaffirming Relationship-Specific Investments: Comments On Miwa And Ramseyer's 'Rethinking Relationship-Specific Investments', Scott E. Masten
Michigan Law Review
I, too, have a work-related anecdote from my youth to relate. During one summer break from college, I had a job on the night shift in the canning plant of a Coca-Cola bottling franchisee in my hometown in New Hampshire. The process of canning tonic (known as "soda" outside of New England) consisted of three stages, beginning with the fabrication of cans in a room at one end of the building and concluding with the filling and sealing operations in a room at the other end. In between, workers in a third room inspected cans as they arrived by conveyor …
Commercial Norms And The Fine Art Of The Small Con: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Douglas G. Baird
Commercial Norms And The Fine Art Of The Small Con: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Douglas G. Baird
Michigan Law Review
The standard battle-of-the-forms story, often rehearsed in the classroom, is one in which merchants try to take advantage of their contracting opposites. A seller wants to escape the obligations that come with implied terms and seeks to disclaim them in its acknowledgment form. Its buyers do not realize they have been had until after the goods fail. Only then do they read the seller's form and discover that they are without remedy. Conspicuously absent in Dan Keating's fine article, however, is any evidence that supports this story. Some of his merchants talk about putting favorable terms in their forms, but …
The Sound Of One Form Battling: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Richard Craswell
The Sound Of One Form Battling: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Richard Craswell
Michigan Law Review
Daniel Keating has provided a thoughtful and useful study of the way that businesses form contracts. In particular, he has given us a good deal of data concerning the problem known as the "battle of the forms." Commercial lawyers have, of course, been wrangling over this problem for decades, so it is no small accomplishment to be able to offer a useful contribution. In Part I below, I describe more precisely just what Keating's data does and does not illuminate. Parts II and III then focus on a particular contracting practice that Keating has identified: the practice of getting both …
The Limits Of Empiricism: What Facts Tell Us: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Dennis Patterson
The Limits Of Empiricism: What Facts Tell Us: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Dennis Patterson
Michigan Law Review
The conventional legal academic wisdom about empiricism is that empirical information is by-and-large a good thing, that we need more of it, and that empirical analysis is preferable to many scholarly alternatives now on offer in the law review literature. I do not dispute the proposition that, all things considered, empirical information is a good thing. What I question is the notion that empirical information necessarily leads to knowledge. Put differently, it is one thing to marshal the facts, and another to know what to make of the facts. I shall raise these points both in a general way and …
On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Avery Wiener Katz
On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Avery Wiener Katz
Michigan Law Review
As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. 1 That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method - the free-form, oral interview conducted personally by the principal researcher …