Commercial Law Commons^™

Summary Of Lavi V. Eighth Judicial District Court, 130 Nev. Adv. Op. 38, Danielle Barraza

Nevada Supreme Court Summaries

The Court determined whether waiver of the “one-action rule” of NRS 40.430 terminates the procedural requirements for bringing a deficiency judgment action within six months of foreclosure under NRS 40.455.

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck

Scholarly Publications

In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.

The Fiduciary Character Of Agency And The Interpretation Of Instructions, Deborah A. Demott

Faculty Scholarship

This chapter in a forthcoming book justifies the conventional characterization of common-law agency as a fiduciary relationship. An agent serves as the principal’s representative in dealings with third parties and facts about the world, situating the agent as an extension of the principal for legally-salient purposes. A principal’s power to furnish instructions to the agent is the fundamental mechanism through which the principal exercises control over the agent, a requisite for an agency relationship. The agent’s fiduciary duty to the principal provides a benchmark for the agent’s interpretation of those instructions. The chapter draws on philosophical literature on the identity …

International Commercial Arbitration, Anticipatory Repudiation, And The Lex Mercatoria, Kyle Winnick

Cardozo Journal of Conflict Resolution

The scope of this Note is thus two-fold: (1) to delineate the doctrine of anticipatory breach as it is currently under the lex mercatoria; and, (2) to evaluate and argue for its consistency in application by international arbitral tribunals. Section I-A discusses when arbitrators will choose to apply the lex mercatoria as the substantive law of the dispute. Section I-B explains the doctrine of anticipatory repudiation and discusses its inherent ambiguity. Section IC assesses the role of the CISG and the UNIDROIT Principles as a manifestation of the lex mercatoria. Section II-A explores the severability issue and an …

“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

A Wrong Turn In History: Re-Understanding The Exclusionary Rule Against Prior Negotiations In Contractual Interpretation, Yihan Goh

Research Collection Yong Pung How School Of Law

A reason justifying the exclusionary rule against prior negotiations in the interpretation of contracts is its longevity. Yet, the authorities commonly cited in support of the exclusionary rule are mostly traceable to Lord Wilberforce’s speech in the relatively recent case of Prenn v Simmonds. This article suggests that the law took a wrong turn in that case and caused later courts to support the exclusionary rule by recourse to policy-oriented justifications, instead of principle-based ones. The emphasis on policy-oriented justifications, and the recantation of Prenn v Simmonds as reason enough for the exclusionary rule, support an independent rule against prior …

Case Comment: A New Framework For The Implication Of Terms In Fact, Yihan Goh

Research Collection Yong Pung How School Of Law

In Sembcorp Marine Ltd v PPL Holdings Pte Ltd the Singapore Court of Appeal once again reaffirmed the Singapore courts’ rejection of the approach adopted by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd which characterised the implication of a term in fact as a process of contractual interpretation. What may be of interest to practitioners and academics of common law jurisdictions wrestling with the implications of the Belize approach is the Court of Appeal’s prescription of ‘a three-step process’ for the implication of terms in fact, which is accompanied by an in-depth discussion of various conceptual …

Not What, But When Is An Offer: Rehabilitating The Rolling Contract, Colin P. Marks

Faculty Works

A number of courts have held that a contract is formed when deferred terms found inside the package are reviewed by the buyer and accepted by some act—usually use of the good. This “rolling” contract approach has been widely criticized by commentators as an abomination of contract law that ignores a true application of the U.C.C., as well as the spirit of that code. However, the approach is not without its allure, as it permits contracts to be formed in an efficient manner that may very well appeal to consumers. Yet too strict of an adherence to the approach threatens …

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

Articles

The article proposes a framework for regulating commercial litigation investment by drawing analogies to existing legal norms in similar economic activities. It argues that contract law, rather than tort law, is better suited to address the risks and challenges inherent in this growing market. The analysis emphasizes the importance of aligning legal norms with the economic realities of litigation investment, particularly in the commercial sector, where the stakes and dynamics differ significantly from consumer litigation. The authors advocate for a regulatory approach that balances protection against opportunism with the need to maintain efficient outcomes.

New Thinking On Commercial Surrogacy, Richard F. Storrow

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Mothering For Money: Regulating Commercial Intimacy, Surrogacy, Adoption,, Pamela Laufer-Ukeles

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Putting The Cisg Where It Belongs: In The Uniform Commercial Code, Kina Grbic

Touro Law Review

No abstract provided.

The Expansion Of Trademark Rights In Europe, Irina Pak

IP Theory

No abstract provided.

The Granting Clause And Intellectual Property Rights Management In Open-Source Software Licensing, Vikrant N. Vasudeva

IP Theory

No abstract provided.

Consumer Debt And Usury: A New Rationale For Usury , Robin A. Morris

Pepperdine Law Review

No abstract provided.

Dollars And Horse Sense: Why Prudent Buyers And Sellers Should Account For Article 2 Of The Uniform Commercial Code In Their Equine Sales Contracts, Veronica J. Finkelstein

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Redefining Offer In Contract Law, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French

Faculty Scholarship

In his recent article, Professor Richard Squire offers a provocative theory in which he claims the underlying claimants in shareholder litigation against corporate policyholders are overcompensated due to what he describes as “cramdown” settlements, under which insurers are forced to settle due to the “duty to contribute” that arises under multi-layered directors and officers (“D&O”) insurance programs. He also offers a novel idea regarding how this problem could be fixed by what he refers to as “segmented” settlements in which each insurer and the policyholder would be allowed to settle separately and consider only its own interests in doing so. …

Book Review: Remedies For Breach Of Contract By Solene Rowan, Howard Hunter

Research Collection Yong Pung How School Of Law

No abstract provided.

Testing The Reach Of Ucc Article 9: The Question Of Tax Credit Collateral In Secured Transactions, Christopher K. Odinet

Faculty Scholarship

This Article addresses the open question related to the use of tax credits as a source of secured capital. It first lays a foundation by analyzing the theoretical underpinnings of the UCC’s category for general intangibles and shows how classification as a general intangible can and should comport with the legal substance of tax credits as a form of secured financing. The work also investigates the theory and nature that forms the basis of tax credits and their economic value. Next, the Article provides an overview of the relatively meager case law on tax credit financing and explains how courts …

Apathy Vis-À-Vis The Un Convention On Contracts For The International Sale Of Goods (Cisg) In The Uk And Two Proposed Strategies For Cisg's Incorporation In The Uk Legal Order, Katerina Georgiadou

Pace International Law Review Online Companion

The 1980 UN Convention on Contracts for the International Sale of Goods (CISG or Convention) is said to have resulted out of a largely global scholarly jurisconsultorium, as it was drawn up in cooperation between scholars from around the globe. In essence, this article will examine the lack of interest and reluctance on behalf of the United Kingdom (UK) to ratify the CISG by considering the initial reactions of the UK towards the CISG, the UK’s isolationist attitude, the fact that CISG is not a legislative priority in the UK, and the objection to ratification based on unreasonable grounds. Furthermore, …

Contract Law In A Comparative Perspective, Suharnoko Suharnoko

Indonesia Law Review

Media reports on cases of the theft of pre-paid pulses taking place nowadays have created a misunderstanding in terms of the appropriate application of criminal law. In the context of existing legal provisions concerning consumer protection as set forth both under the Consumer Protection Law as well as in part under the Telecommunications Law, law enforcement agencies are leaning towards applying general criminal provisions (theft) which, after a careful observation of the Indonesian Criminal Code, in fact do not extend to corporate criminal acts. This paper purports to explain that the currently occurring cases of the theft of pre-paid pulses …

The Talent Agencies Act: Reconciling The Controversies Surrounding Lawyers, Managers, And Agents Participating In California's Entertainment Industry, Gary E. Devlin

Pepperdine Law Review

No abstract provided.

Liability For Work Done Where Contract Is Denied: Contractual And Restitutionary Approaches, Man Yip, Yihan Goh

Research Collection Yong Pung How School Of Law

This paper explores the divide between the law of contract and the law of restitution in dealing with the different situations that arise from one party commencing work prior to the conclusion of a formal contract. It argues that contract and unjust enrichment each have a proper role to play in dealing with such cases. First, it argues against a purely contractarian view that such cases should be exclusively resolved by the law of contract, through an implied collateral contract. Such a technique, applied vigorously, would result in nullifying the concept of “essential terms” and an artificial construction of parties …

Were "It" To Happen: Contract Continuity Under Euro Regime Change, Robert C. Hockett

Cornell Law Faculty Working Papers

One way or another, the European Monetary Union (EMU) is apt to endure. The prospect of continuation under the precise contours of the regime as we presently find it, however, is anything but certain. Hence many investors and other actual or prospective contract parties are likely to remain skittish until matters grow clearer. This skittishness, importantly, can itself hamper the prospect of expeditious European recovery. Addressing particular sources of ongoing uncertainty about EMU prospects can itself therefore aid in the project of recovery.

This Essay accordingly aims to impose structure upon one particular, and indeed particularly complex, source of uncertainty …