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Full-Text Articles in Law
An Important Time For The Future Of Class Action Waivers And The Power Struggle Between Businesses And Consumers, Jack Downing
An Important Time For The Future Of Class Action Waivers And The Power Struggle Between Businesses And Consumers, Jack Downing
Missouri Law Review
This Note discusses the inherent problems that come with arbitration clauses in contracts of adhesion. Further, this Note will address the likelihood of a potential change – through future Supreme Court interpretations of the FAA or new legislation. Something must be done to protect those with inferior bargaining power from being forced, through contracts of adhesion, to give up their right to bring class action lawsuits. If Congress, the Supreme Court, and regulatory agencies maintain the status quo, companies will retain the ability to improperly strip consumers of their rights and their due compensation nationwide.
Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz
Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz
Faculty Publications
Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of “law in action.” In recognition of that contribution, this Article focuses on law in action with respect to consumers’ quest to obtain remedies regarding their business-to-consumers (“B2C”) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access …
Conflicting Preferences In Business Bankruptcy: The Need For Different Rules In Different Chapters, Brook E. Gotberg
Conflicting Preferences In Business Bankruptcy: The Need For Different Rules In Different Chapters, Brook E. Gotberg
Faculty Publications
The law of preferential transfers permits the trustee of a bankruptcy estate to avoid transfers made by the debtor to a creditor on account of a prior debt in the 90 days leading up to the bankruptcy proceeding. The standard for avoiding these preferential transfers is one of strict liability, on the rationale that preference actions exist to ensure that all general creditors of the bankruptcy estate recover the same proportional amount, regardless of the debtor's intent to favor any one creditor or the creditor's intent to be so favored. But preference law also permits certain exceptions to strict preference …
Takings Care Of Business: Using Eminent Domain For Solely Economic Development Purposes, Garreth Cooksey
Takings Care Of Business: Using Eminent Domain For Solely Economic Development Purposes, Garreth Cooksey
Missouri Law Review
The controversial ruling in the case of Kelo v. City of New London, Connecticut was an impetus for a nationwide discourse on eminent domain reform. Most of the public strongly condemned Kelo, which allowed the city of New London, Connecticut, to strip Susette Kelo of her home for the development of a Pfizer plant. Political fallout from Kelo ushered in a surge of state legislation that restrained the taking of private property by eminent domain. Some states completely banned condemnation for economic development and for blight. Missouri, like several other states, took a less strict route and banned eminent domain …
Dispensing Injustice: Stolt-Nielsen And Its Implications - Stolt-Nielsen S.A. V. Animalfeeds Int'l Corp., Nicholas Goodrich
Dispensing Injustice: Stolt-Nielsen And Its Implications - Stolt-Nielsen S.A. V. Animalfeeds Int'l Corp., Nicholas Goodrich
Journal of Dispute Resolution
The immediate effect of the holding was to allow a group of corporate defendants to use their superior bargaining position in the contracting process to effectively shield themselves from liability. Although Stolt-Nielsen involved business entities, the case also has implications in the consumer context. If the Court were to extend the reasoning of the case to disputes involving adhesion contracts, corporations would enjoy this immunity in the context of consumer disputes. Far from a hypothetical exercise in the reaches of Supreme Court jurisprudence, the Court is expected to decide this very issue during the 2010 term. In light of these …
Tale Of Two Policies: Corporate Immunity And Its Negative Externalities, The Worst Of Times For Consumers, A, David Ma
Journal of Dispute Resolution
When the Third Circuit Court of Appeals, in Kaneff v. Del. Title Loans, Inc., faced a Pennsylvania statute that prohibited payday loans,' the Third Circuit refused to enforce the state statute. This note will explore the reasoning underlying and discuss the effects of the Third Circuit's decision, providing a consequential look at the externalities that Kaneff created. As will become evident, these effects are quite serious and far-reaching, both to Pennsylvania's citizens and Pennsylvania's regulatory scheme.
No Exceptions: How The Legitimate Business Justification For Unconscionability Only Further Demonstrates California Courts' Disdain For Arbitration Agreements, Thomas H. Riske
Journal of Dispute Resolution
In Davis v. O'Melveny & Myers, the Ninth Circuit Court of Appeals considered whether an arbitration agreement adopted by a law firm and distributed to its employees was enforceable. When interpreting an arbitration agreement, how the contract doctrine of unconscionability should be applied by state courts, is an essential element of this case. While the Federal Arbitration Act ("FAA") has been interpreted to preempt any state law in conflict with it, state laws governing the necessary foundation to revoke a contract remain unaffected. In considering these principles, state courts have applied the doctrine of unconscionability to arbitration agreements in the …
Why Should Businesses Hire Settlement Counsel, Kathy A. Bryan
Why Should Businesses Hire Settlement Counsel, Kathy A. Bryan
Journal of Dispute Resolution
As a former in-house litigation manager, I hired separate settlement counsel in only a few cases and with varying results. With responsibilities for hiring and managing a large portfolio of outside firms, I was loath to increase case-staffing ranks for many reasons-and cost was only one factor. Internal resources must oversee litigation, and having another set of outside lawyer relationships on the same case generally seemed duplicative. Worse, it demanded more of my scarce time to manage both the relationship and the primary litigation firm
An Economic Analysis Of The Potential For Coercion In Consent Solicitations For Bonds, Royce De R. Barondes
An Economic Analysis Of The Potential For Coercion In Consent Solicitations For Bonds, Royce De R. Barondes
Faculty Publications
This Article examines why issuers frequently cannot present bondholders with an offer that draws on collective action problems to force the acceptance of the offer by the bondholders. The analysis is restricted to publicly offered bonds. For a number of reasons, privately placed debt presents fewer opportunities for coercion. A prior business relationship among various purchasers, which facilitates cooperation, may be more likely with respect to privately placed debt. Privately placed debt often has more significant protection for the bondholders than public debt with the same level of seniority
Intersections Of Business And Legal Dispute Resolution: Decision Analytic Modeling Of Litigation Investment Decisions, George J. Siedel
Intersections Of Business And Legal Dispute Resolution: Decision Analytic Modeling Of Litigation Investment Decisions, George J. Siedel
Journal of Dispute Resolution
The relationship between law school and business school approaches to dispute resolution has not, to date, been clearly articulated and discussed. This is unfortunate because increased awareness of the differences in perspective would enrich dispute resolution theory and practice. The purpose of this paper is twofold. First, a dispute resolution taxonomy will be used to provide an overview of the linkage between law school-type ADR concepts and the business school interest in power theory and conflict intervention. Second, to illustrate the benefits that can arise from interaction between legal and business research, a specific technique--the use of decision tree analysis …