Law Commons^™

The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal

Publications

There has been an explosion in new types of startup finance instruments. Whereas twenty years ago preferred stock dominated the field, startup companies and investors now use at least eight different instruments—six of which have only become widely used in the last decade. Legal scholars have yet to reflect upon the proliferation of instrument types in the aggregate. Notably missing is a way to organize instruments into a common framework that highlights their similarities and differences.

This Article makes four contributions. First, it catalogues the variety of startup investment forms. I describe novel instruments, such as revenue-based financing, which remain …

Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager

Daniel B. Yeager

Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships, …

Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager

Faculty Scholarship

Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships, …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Broad Shareholder Value And The Inevitable Role Of Conscience, Paul D. Weitzel, Zachariah J. Rodgers

Paul D. Weitzel

This article proposes an integrative solution to the modern debate on corporate purpose, the question of whether directors and officers must solely maximize profits or whether they may consider the effects on employees, the environment or the community. Many find pure profit maximization unseemly and suggest alternative theories, typically arguing that corporations owe a duty to a broader range of stakeholders. This position is inconsistent with the case law and unnecessary to allow conscience in the board room. We resolve the issue more simply by acknowledging that the purpose of a corporation is to promote the shareholders’ interests, which includes …

Beaten To "Submissions": Talent Agents Score A Victory Over Managers On Submissions Of Motion Picture Screenplays, Matthew H. Schwartz

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …

Relational Contract Theory And Management Contracts: A Paradigm For The Application Of The Theory Of The Norms, Michael Diathesopoulos

Michael Diathesopoulos

This paper examines management contracts as a paradigm for the application of relational contracts theory and especially of the theory of contractual and relational norms. This theory, deriving from Macauley's implications, but structured and analysed by I.R. MacNeil gives us a framework for the explanation and understanding of contractual obligations and business relations' rules and practice. After presenting the key literature about the norms theory and especially defining the content of MacNeil's norms, we define management contracts as relations, characterised by a high relational element and we explain why, investigating all their features, which make them a suitable object for …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Managing Risk On A $25 Million Bet: Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett Iii

ExpressO

An implicit dichotomy of the corporation exists in legal scholarship. On one side of the dichotomy rests the publicly-held corporation suffering from a significant conflict of interest between its managers and dispersed shareholders; on the other side, the closely-held corporation plagued by inter-shareholder conflict.

This Article argues that understanding the agency problems that can exist within a firm demands a rejection of this traditional dichotomy and the theories of the firm built upon it. Using venture capital finance, this Article demonstrates for the first time how this dichotomy obscures how all firms - public and private - often face the …

Fiduciary Duties And Unincorporated Business Entities: In Defense Of The "Manifestly Unreasonable" Standard, Mark J. Loewenstein

Publications

This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Contracting On The Web: Collegiate Athletes And Sports Agents Confront A New Hurdle In Closing The Deal, Manpreet S. Dhanjal

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Notice And Notification Under The Revised Uniform Partnership Act: Some Suggested Changes, J. Dennis Hynes

Publications

This Article addresses the decision by the drafters of the revised Uniform Partnership Act (1996) (RUPA) to reduce the traditional defenses available to partnerships in apparent authority cases. RUPA eliminated the requirement that apparent authority claims against a partnership be based on the claimant's reasonable expectations. Under RUPA a partnership is liable for a partner's unauthorized act even when the claimant had reason to know the act was unauthorized. A defense based on the claimant's knowledge is effective only when the claimant actually knows--is cognitively aware--that the act was unauthorized. This Article argues that this places an unfair burden on …

Fiduciary Duties As Default Rules, Tamar Frankel

Faculty Scholarship

This Article consists of four parts. Part I draws a profile of fiduciary relationships. It also explains the different responses of fiduciary and contract rules to the different problems that the relationships pose regarding: (1) the right of one party to rely on the other and the specific duties of loyalty and care, which mirror these rights; and (2) the events that trigger the application of fiduciary rules. Finally, it compares contract with fiduciary rules. The reasons for the existence of fiduciary rules suggest that, when in conflict, they trump the rules governing other parallel relationships, including contracts.

Part II …

Beyond Agency Costs: Managing The Corporation For The Long Term, Aleta Estreicher

Articles & Chapters

No abstract provided.

Limitations On Contract Termination Rights—Franchise Cancellations, Ernest Gellhorn

Faculty Scholarship

No abstract provided.

Agency -- 1961 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

The topic "agency" includes the areas of "master and servant" as well as those of "principal and agent." There were few cases in these areas decided by the Tennessee courts during the period under survey. Generally, basic principles were applied to routine cases.In certain instances the reliance upon a prior fact determination avoided the necessity of an elaborate treatment of the facts. In one or two cases the court reached a result that may not be deemed desirable though supported by much authority. Significant points received less attention than they deserved in certain cases. In one case the basic question …

Tennessee Judicial Highlights, Journal Staff

Vanderbilt Law Review

CASES OF CURRENT INTEREST AND IMPORTANCE PREVIOUSLY NOTED

Baker v. State, 184 Tenn. 503 (1947), 1 Vand. L. Rev. 127 (1947). Accessory after the fact--when is felony complete?

Black v. Black, 202 S. W. 2d 659 (Tenn. 1947), 20 Tenn. L. Rev. 201 (1948).' Effect of reciting an oral contract to sell land in an undelivered deed.

Churn v. State, 184 Tenn. 646 (1947), 20 Tenn. L. Rev. 195 (1948). Testimony of arresting officers.

Davis v. Beeler, 207 S. W. 2d 343 (Tenn. 1947), 1 Vand. L. Rev. 451 (1948). Prohibition of practice of naturopathy in Tennessee.

Elliott v. Fuqua, …

Constructive Trusts--Duty Of Agent To Reconvey Land Purchased For Principal--Statute Of Frauds, M. S. K.

West Virginia Law Review

No abstract provided.

Equity--Removal Of Cloud On Title--Right To Bring Suit When Defendant Has Possession, K. K. H.

West Virginia Law Review

No abstract provided.

Vicarious Liability For Fraud And Deceit In Iowa, Frank Edward Horack

Articles by Maurer Faculty

No abstract provided.

Contracts Of Agency Without Stipulations As To Duration, Thomas Porter Hardman

West Virginia Law Review

The Restatement of Agency by the American Law Institute provides that "A contract of agency, or a contract of service, is the contract, when one exists, which determines the existence, duration, terms or conditions of the [agency] relation." But what is the duration of the relation when this so-called "contract of agency" contains no stipulation as to how long the employment is to continue? And how does the so-called contract of agency determine the duration in such cases? It is the purpose of this comment to discuss the West Virginia cases on this point.

Principal And Agent--Suit By A Disclosed Principal As A Third Party Beneficiary On A Contract Made Upon The Sole Credit Of The Agent, R. T. D.

West Virginia Law Review

No abstract provided.

Outlines Of The Law Of Agency, Floyd R. Mechem

Books

The subject of Agency belongs to a comparatively recent period in our law … Agency belongs distinctively to a commercial age, and its growth has kept pace with the progress of commercial development. It furnishes the means by which the range of individual and corporate activity is enormously increased. As soon as it is conceded that one man may be represented by another in business transactions, and that he may have as many such representatives as occasion may require, the field of commercial activity is immensely widened. The modern business man may thus be constructively present in many places and …

A Treatise On The Law Of Agency In Contract And Tort, George L. Reinhard

Articles by Maurer Faculty

No abstract provided.

Outlines Of The Law Of Agency, Floyd R. Mechem

Books

The subject of Agency belongs to a comparatively recent period in our law … Agency belongs distinctively to a commercial age, and its growth has kept pace with the progress of commercial activity. It furnishes the means by which the range of individual and corporate activity is enormously increased. One person may thus have many an alter ego. A single brain may direct a hundred hands. The modern business man may be constructively present in many places and carry on diverse and widely separated industries at the same time.

The following pages have been printed to accompany the writer’s …

Cases On The Law Of Agency, Floyd R. Mechem

Books

The following collection of cases has been prepared, at the request of several leading educators, to accompany the writer’s treatise on the law of agency, the purpose being to illustrate the text by object lessons gathered from the reports. Nothing in the way of annotation has been attempted, beyond an occasional reference to similar cases, as it is thought that the text of the treatise supplies all that is needed in that direction. To make a selection of cases from the great number upon the subject is a difficult task and one in reference to which opinions will necessarily differ. …