Commercial Law Commons^™

Close The Waste Loopholes: Reassessing Commercial Item Regulations In Federal Procurements, Jim R. Moye

William & Mary Business Law Review

Classifying an item as commercial reduces the government’s ability to ask for information to determine whether prices are fair or reasonable, based on the assumption that these prices would e shaped by market forces. Since changes in procurement laws in the 1990s, contractors seem to want all items, as well as the entities that sell these items, to be listed as commercial. Contractors push for items to be labeled as commercial so they can avoid nearly all oversight and transparency requirements, which often results in the government buying blindly.

The Eighth Amendment And Tax Evasion: Whether Fatca Non-Compliance Fines And Fbar Penalties Are Excessive, Tyler R. Murray

William & Mary Bill of Rights Journal

No abstract provided.

Regulating Drones Under The First And Fourth Amendments, Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

William & Mary Law Review

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September 2015. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Given UAV utility and cost-effectiveness over a vast range of tasks, however, widespread commercial use ultimately seems certain. Consequently, it is imperative to understand …

The Coming Wave Of Pretextually Profiteering Social Entrepreneurs: A Case Study At The Nexus Of Property And Civil Rights, David Groshoff

William & Mary Environmental Law and Policy Review

This Article builds on my prior publications employing case studies that serve as the prisms through which this Article applies a legal analysis to a newly trending problem in social entrepreneurship.

Specifically, this Article reviews the financial and property interests implicated when, in the milieu of an aging baby-boomer demographic likely to display decaying neurocognitive abilities, ostensibly socially beneficent limited liability companies (“LLCs”) pretextually pose as small businesses with a desire to serve people suffering from particular alleged mental disorders. In reality however, these brand-managed social entrepreneurs may represent conveniently detachable arms of integrated corporate enterprises that have hundreds of …

The “Legal” Marijuana Industry’S Challenge For Business Entity Law, Luke Scheuer

William & Mary Business Law Review

In recent years, many states have legalized the use and sale of marijuana for medical or even recreational purposes. This has led to the booming growth of a “legal” marijuana industry. Businesses openly growing and selling marijuana products to the consuming public face some unusual legal hurdles. Significantly, although the sale of marijuana may be legal at the state level, it is still illegal under federal law. This Article explores the conflict between state and federal marijuana laws from a business entity law perspective. For example, managers owe a fiduciary duty of good faith to their businesses and equity holders. …

Courts Gone “Irrationally Biased” In Favor Of The Federal Arbitration Act?—Enforcing Arbitration Provisions In Standardized Applications And Marginalizing Consumer-Protection, Antidiscrimination, And States’ Contract Laws: A 1925–2014 Legal And Empirical Analysis, Willy E. Rice

William & Mary Business Law Review

Spanning nearly forty years, the Supreme Court has issued multiple decisions and stated categorically that “judicial hostility to arbitration” was the sole impetus behind Congress’s decision to enact the Federal Arbitration Act of 1925. In fact, before the FAA, systemic trade-specific problems and practices generated heated disputes and widespread litigation among merchants and trade organizations. Thus, to arrest those constituents’ concerns, Congress enacted the FAA. Briefly, under the FAA section 2, arbitration is mandatory if a contractual arbitration provision is valid and a controversy “arises out of the contract.” However, common-law rules of contract formation are equally clear: Standing alone, …

The Emperor’S New Clothes: How The Judicial System And The Housing-Mortgage Market Have Turned A Blind Eye To The Destruction Of The Negotiability Of Mortgage Promissory Notes, Roy D. Oppenheim, Jacquelyn K. Trask-Rahn

William & Mary Business Law Review

This Article examines the common notions of negotiable instruments as they relate to the modern day promissory note in the context of residential mortgage lending. The Article further addresses the destruction of the negotiability of such promissory notes through various undertakings added for the benefit of the banking industry, often to the detriment of a borrower. The use of negotiable instruments commenced in the 1800s in England as a way of ensuring a fluid market between trades as there was no fiat currency system in place. The fundamental purpose behind the concept of negotiability was subsequently abrogated by the modernization …

Spirit Airlines, Inc. V. Northwest Airlines, Inc.: A Case For Increased Regulation Of The Airline Industry, Erica Wessling

William & Mary Business Law Review

The relatively short history of the airline industry is characterized by sudden shifts and divergent standards that attempt to negotiate a complex market. High demand, uniqueness of service, and difficulty of market entry render the market particularly susceptible to monopolization among competitors. Recently, the rise of the low-cost carrier business model has exposed high barriers to entry into the airline market. In attempts to remedy the harm against both prospective market entrants and consumers, lowcost carriers have levied price predation claims against entrenched legacy airlines. Due to the difficulty in negotiating the divide between predatory behavior and lawful competition, courts …

Section 4: Business, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Waiving The Duty To Mitigate In Commercial Leases, Jacqueline Sandler

William & Mary Business Law Review

This Note examines a largely unexplored consequence of jurisdictions adopting a default duty to mitigate for commercial leases: whether a contract provision waiving the duty should be enforced. Only a few courts across the country have addressed the waiver issue in a commercial setting. At least two different appeals courts have enforced a waiver clause and claim that public policy supports their decision. In contrast, a federal court has stated the opposite—that public policy demands waiver provisions be void. Another state has outright voided all waiver clauses by statute. Courts that have enforced waivers have asserted that commercial parties have …

Tobacco Advertising And The First Amendment: Striking The Right Balance, Arlen W. Langvardt

William & Mary Business Law Review

With the enactment of the Family Smoking Prevention and Tobacco Control Act of 2009, Congress launched a major expansion of its regulatory efforts regarding tobacco advertising and promotion. The Act restricts advertising in various ways, featuring a requirement for updated textual versions of health warnings long required for cigarette packages, as well as a requirement that cigarette advertisements must be accompanied by prominently displayed color graphic images to be designed by the U.S. Food and Drug Administration (FDA).

The Act’s advertising restrictions and the color graphics requirement have been challenged on First Amendment grounds, as has an FDA regulation setting …

Assorted Anti-Leegin Canards: Why Resistance Is Misguided And Futile, Alan J. Meese

Faculty Publications

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the Supreme Court reversed Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), which had banned minimum resale price maintenance (“minimum RPM”) as unlawful per se. For many, Leegin was a straightforward exercise of the Court’s long-recognized authority, implied by the Sherman Act’s rule of reason, to adjust antitrust doctrine in light of new economic learning. In particular, Leegin invoked the teachings of transaction cost economics (“TCE”), which holds that many non-standard agreements, including minimum RPM, are voluntary mechanisms …

Clashing Policies Or Confusing Precedents: The "Gross Negligence" Exception To Consequential Damages Disclaimers, Michael Pillow

William & Mary Business Law Review

Consequential damages can easily amount to millions of dollars. Commercial parties often disclaim consequential damages in their contracts. This Article posits that such disclaimers between commercial parties under the Uniform Commercial Code (UCC) should not be found unenforceable based on gross negligence. Article 2 of the UCC promotes the policy of freedom of contract. Consistent with that policy, section 2-719 of the UCC provides that contractual consequential damages disclaimers should be enforceable absent a finding of unconscionability. This Article analyzes the interplay among UCC section 2-719, “public policy” exceptions to enforcing limitations of liability, and the law of gross negligence. …

Explaining "Bait-And-Switch" Regulation, David Adam Friedman

William & Mary Business Law Review

“Bait and switch” can describe a range of commercial behaviors common in the everyday marketplace, but virtually ignored in the academic literature. The traditional definition of unlawful bait and switch applies to insincere offers to sell one item in order to induce the buyer to purchase another. Certain sellers have historically employed bait-and-switch tactics, including urban retailers, aluminum siding companies, and supermarkets.

Colloquially, this definition can also cover lawful or other borderline sales tactics, including the use of teaser rates or low introductory pricing, or even “free offers.” Even common lawful tactics, like the deliberate routing of customers past other …

The Rise Of Urban Agriculture: A Cautionary Tale – No Rules, Big Problems, Matthew V. Bradshaw

William & Mary Business Law Review

This Note identifies the underlying cause of the collapse of the family farm, namely the failed effort of the U.S. Government to save it through the institution and ongoing promulgation of the Farm Bill. Through subsidy and direct payment regimes, federal legislation has enabled large commodity producers to enjoy protection from market risk while squeezing out smaller growers. Because of growing consumer distrust in large-scale agricultural production, the urban agriculture movement and nontraditional market systems continue to grow in popularity and footprint across the United States. Many municipalities have already recognized the vast benefits that an urban agriculture regime can …

Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson

William & Mary Law Review

Standard-form contracts are a common feature of commercial relationships because they offer the advantage of lower transaction costs. This advantage of standard contracts is increased when there is a second layer of standardization under which multiple firms agree on a standard contract. Trade associations and similar entities often effect standardization of this kind through collective agreement on a standard contract, sometimes under the aegis of state actors. Multifirm contract standardization can provide not only the usual transaction-cost advantages of standard-form contracts, but also increased competition among firms, because a standard contract makes comparison among firms’ offerings easier. But standardization among …

Section 4: Business, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Faculty Publications

No abstract provided.

Toward A Theory Of Precedent In Arbitration, W. Mark C. Weidemaier

William & Mary Law Review

Do arbitrators create precedent? The claim that they do not recurs throughout much of the arbitration literature. Instead, arbitration often is viewed as an ad hoc forum in which arbitrators do justice (at best) within the confines of particular cases. As an empirical matter, however, it is increasingly clear that, in some arbitration systems, arbitrators often cite to other arbitrators, claim to rely on past awards, and promote adjudicatory consistency as an important system norm. Much like courts, then, arbitrators can (but do not always) create precedent that guides future behavior and provides a language in which disputants, lawyers, and …

Allocating Power Between Courts And Arbitrators - And Why Scholars Of Federal Courts Should Care, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Section 3: Business, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Faculty Publications

No abstract provided.

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Faculty Publications

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …

Section 4: Business, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 5: Business, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 6: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Universes Colliding: The Constitutional Implications Of Arbitral Class Actions, Maureen A. Weston

William & Mary Law Review

No abstract provided.

Section 6: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 7: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

A Beautiful Mend: A Game Theoretical Analysis Of The Dormant Commerce Clause Doctrine, Maxwell L. Stearns

William & Mary Law Review

While the Commerce Clause neither mentions federal courts nor expressly prohibits the exercise of state regulatory powers that might operate concurrently with Congressional commerce powers, the Supreme Court has long used the dormant Commerce Clause doctrine to limit the power of states to regulate across a diverse array of subject areas in the absence of federal legislation. Commentators have criticized the Court less for creating the doctrine than for applying it in a seemingly inconsistent, or even haphazard way. Past commentators have recognized that a game theoretical model, the prisoners' dilemma, can explain the role of the dormant Commerce Clause …