Law Commons^™

After Ftx: Can The Original Bitcoin Use Case Be Saved?, Mark Burge

Faculty Scholarship

Bitcoin and the other cryptocurrencies spawned by the innovation of blockchain programming have exploded in prominence, both in gains of massive market value and in dramatic market losses, the latter most notably seen in connection with the failure of the FTX cryptocurrency exchange in November 2022. After years of investment and speculation, however, something crucial has faded: the original use case for Bitcoin as a system of payment. Can cryptocurrency-as-a-payment-system be saved, or are day traders and speculators the actual cryptocurrency future? This article suggests that cryptocurrency has been hobbled by a lack of foundational commercial and consumer-protection law that …

Coordination Of The Uniform Commercial Code And Common Law, Kenneth C. Kettering

University of Cincinnati Law Review

Deciding whether an issue that is in the ambit of a statute should be resolved by reference to the statute alone, or whether other sources of law should be applied, is a common interpretative task. The Uniform Commercial Code ("UCC") contains rules of interpretation that address the subject, and those rules have not been altered since the UCC was first generally enacted. Nevertheless, questions often arise on the subject under the UCC. This paper examines the UCC rules on point. The analysis is germane to the interpretation and drafting of other statutes that codify rules of private law.

Floating Liens Over Crypto-In-Commerce, Christopher K. Odinet, Andrea Tosato

Indiana Law Journal

Commercial law and crypto are colliding. Against the backdrop of explosive growth (and discord) in the digital asset market, there has been a series of recent revisions to American commercial law aimed at addressing new and emerging technologies. These changes to the Uniform Commercial Code (UCC) are designed to facilitate the buying and selling of digital assets as well as their use as collateral. However, to date, the literature exploring these changes has mainly focused on understanding the basics of the new regime. This Essay moves beyond that baseline by showing how the UCC amendments can be used to structure …

Modernizing Notice Of Breach Rules To Preserve Contract Remedies, Stephen Plass

University of Michigan Journal of Law Reform

Recently, the legal community has scrutinized the capacity of mandatory arbitration rules to deter or foreclose claims for breach of contract. But little attention has been paid to express and constructive notice of breach rules that are just as effective at foreclosing contractual remedies. While four-year statutes of limitations are typically viewed as the default cutoff time for breach of contract claims, contracting parties, particularly buyers of goods, must act much sooner to preserve their legal remedies. It is now common practice for sellers to require notice of breach within days or weeks of their performance as an express condition …

Untangling Attorney Retainers From Creditor Claims, Cassandra Burke Robertson, Jesse T. Wynn

St. Mary's Journal on Legal Malpractice & Ethics

Clients will often use a retainer to secure an attorney’s representation. But clients in economic distress may have creditors that are eager to access the client’s funds in the attorney’s hands. Attorneys, clients, courts, and regulators have struggled to understand who has the best claim to such retainer funds. In this Article, we attempt to untangle the most common areas of confusion. We conclude that Article 9 of the Uniform Commercial Code (UCC) offers strong protection for an attorney’s interest in client retainers through security interests, even though some courts have misapplied the UCC in this context. Further, we recommend …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Articles

The survey that follows highlights the most important developments of 2020 dealing with domestic and international sales of goods, personal property leases, payments letters of credit, documents of title, investment securities, and secured transactions.

When Is A Warranty Not A Warranty?: Deconstructing The Magnuson-Moss Warranty Act’S Narrow Definition Of “Warranty”, Colin P. Marks

Faculty Articles

Prior to the adoption of the Uniform Commercial Code (“UCC”), warranties of goods required reliance on the affirmation or promise relating to the goods for liability to attach. The UCC changed this standard from a reliance standard to a “basis of the bargain” standard. This shift has caused much confusion as to whether the new standard was meant to completely eliminate reliance as a relevant factor, or if reliance still plays a primary role in warranty analysis. Adding to this area of law is the Magnuson-Moss Warranty Act (“MMWA” or “the Act”), which was enacted to address concerns that sellers’ …

Untangling Attorney Retainers From Creditor Claims, Cassandra Burke Robertson, Jesse Wynn

Faculty Publications

Clients will often use a retainer to secure an attorney’s representation. But clients in economic distress may have creditors that are eager to access the client’s funds in the attorney’s hands. Attorneys, clients, courts, and regulators have struggled to understand who has the best claim to such retainer funds. In this Article, we attempt to untangle the most common areas of confusion. We conclude that Article 9 of the Uniform Commercial Code (UCC) offers strong protection for an attorney’s interest in client retainers through security interests, even though some courts have misapplied the UCC in this context. Further, we recommend …

Social Justice And Deposit Return Calculations: A Study Of Success And Failure In Commercial Law Reform, William H. Widen

St. John's Law Review

(Excerpt)

This Article proceeds as follows: Part I describes case law which uses a “penalty” interpretation for § 2-718(2) and (3). Part II describes case law in which courts do not apply a penalty. Part III offers a penalty-free interpretation for § 2-718(2) and (3) that remains true to the statutory language. These three parts make extensive use of numerical examples and explanations. Although the presentation may seem dense in parts, an appreciation of the numbers is essential to understanding both the problem and the solution.

Part IV describes the drafting history of § 2-718(2) and (3) to support the …

The Economics Of Leasing, Thomas W. Merrill

Faculty Scholarship

Leasing may be the most important legal institution that has received virtually no systematic scholarly attention. Real property leasing is familiar in the context of residential tenancies. But it is also widely used in commercial contexts, including office buildings and shopping centers. Personal property leasing, which was rarely encountered before World War II, has more recently exploded on a world-wide basis, with everything from autos to farm equipment to airplanes being leased. This article seeks to develop a composite picture of the defining features of leases and why leasing is such a widespread and highly successful economic institution. The reasons …

Protecting Consumers As Sellers, Jim Hawkins

Indiana Law Journal

When the majority of modern contract and consumer protection laws were written in the 1950s, ’60s, and ’70s, consumers almost always acted as buyers, and businesses almost always acted as sellers. As a result, these laws reflect a model of strong sellers and weak buyers. But paradigms are shifting. Advances in technology and constraints on consumers’ financial lives have pushed consumers into new roles. Consumers today often act as sellers—hawking gold to make ends meet, peddling durable goods on eBay, or offering services in the sharing economy to make a profit. Consumers and business models have changed, but the laws …

Roll Over, Llewellyn?, Peter A. Alces

Peter A. Alces

No abstract provided.

Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins

Peter A. Alces

No abstract provided.

Commercial Codification As Negotiation, Peter A. Alces, David Frisch

Peter A. Alces

No abstract provided.

Commenting On "Purpose" In The Uniform Commercial Code, Peter A. Alces, David Frisch

Peter A. Alces

No abstract provided.

A Commercial Law For Software Contracting, Michael L. Rustad, Elif Kavusturan

Washington and Lee Law Review

Since the 1980s, software is at the core of most modern organizations, most products and most services. Part II of this Article examines how the U.C.C. evolved as the primary source of law for the first generation of computer contracts during the mainframe computer era. Part III examines how courts have overextended U.C.C. Article 2, as the main source of law for software licensing, to the limits. Part IV argues that the ALI and the NCCUSL should propose a new Article 2B for software licensing. Part V recommends a new Article 2C for “software as a service.”

Untangling The Web Of Consignment Law: The Journey From The Common Law & Article 2 To Revised Article 9, Willa Gibson

William & Mary Business Law Review

This Article examines and analyzes the law of consignments from the common law through Revised Article 9 with a goal towards identifying and analyzing the uncertainties and confusion that have persisted throughout the transition from the common law to the UCC. The law of consignments has abounded with uncertainty since its genesis under common law. In an attempt to clarify the persistent confusion and disarray surrounding the law, the UCC enacted section 2-326; but the statute was not a model of clarity, engendering increased uncertainty and confusion. Courts wrestled with how to interpret the provision to be consistent with the …

Fraud, Letters Of Credit, And The Uniform Commercial Code: It Is Time To Untether The Independence Principle, Richard Flint

Faculty Articles

The purpose of this Article is to evaluate the efficacy of the fraud exception to the independence principle in letters of credit law in the case of both commercial and standby letters of credit. In doing so, a primary focus will be to identify which of the various parties to a letter of credit transaction the present fraud exception "protects" and to evaluate the policy justifications for why these persons are viewed by the law to be eligible recipients of protection.

Social Justice And Deposit Return Calculations: A Study Of Success And Failure In Commercial Law Reform, William H. Widen

Articles

No abstract provided.

Remedies In The Ucc: Some Critical Thoughts, Victor Goldberg

Barry Law Review

No abstract provided.

Uniform Commercial Code Article Two Revisions: The View Of The Trenches, Henry Gabriel

Barry Law Review

No abstract provided.

Foreword, Leticia Diaz

Barry Law Review

No abstract provided.

The Revision Of Article 2: Commercial Sellers Vs. Consumer Buyers Appendix, James J. White

Barry Law Review

No abstract provided.

Importing Uniform Sales Law Into Article 2, Steven Walt

Barry Law Review

No abstract provided.

The Myth Of Trade Usages: A Talk, Lisa Bernstein

Barry Law Review

No abstract provided.

The Revision Of Article 2: Commercial Sellers Vs. Consumer Buyers, James J. White

Barry Law Review

No abstract provided.

Article 2 Of The Ucc: Some Thoughts On Success Or Failure In The Twenty-First Century, Robert A. Hillman

Barry Law Review

No abstract provided.

“Dishonesty” In Fact: The Future Uncertainty Of Maryland’S Statutory Interpretation Of Good Faith & Encouraging Lax Lender Liability, Kara N. Achilihu

Maryland Law Review

No abstract provided.

Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge

Mark Edwin Burge

As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems, exemplified by Articles 3 and 4 of the Uniform Commercial …

U.S. Unconscionability And Article 1171 Of The New French Civil Code: Achieving Balance In Statutory Regulation And Judicial Intervention, Charles R. Calleros

Georgia Journal of International & Comparative Law

No abstract provided.