Commercial Law Commons^™

Public, Private, Acquired, Alexander I. Platt, Matthew T. Wansley

Articles

For the last quarter-century, IPOs have been declining. SEC officials usually attribute the decline to startups’ choices to stay private. But that explanation is incomplete. As startups grow, they face a three-way choice between going public, staying private, and being acquired, and they have increasingly chosen the third option. In this Essay, we show how securities regulation pushes startups towards acquisitions by increasing the cost of raising capital and accessing liquidity in both public and private markets. We consider how the trend towards acquisitions could reduce competition, innovation, opportunities for diversification, and transparency. And we offer suggestions for how the …

Caremark's Politics, Itai Fiegenbaum

Cardozo Law Review

What propels the evolution of Delaware corporate law? In a series of persuasive articles, Professor Mark Roe explains Delaware corporate law developments as an effort to preempt federal intervention. If public outrage over corporate governance failures reaches Congress, federal lawmakers may impose reforms that undercut Delaware’s prominence and ultimately harm those that benefit from the prestige and lucre that come with it. To avoid this, Delaware courts strategically adjust doctrines to appear vigilant in protecting investors. Delaware’s adjudication of director oversight failures aligns with this account. In re Caremark, the seminal case renowned for its declaration of a proactive board-level …

The Safe Harbor For Leveraged Buyouts In Bankruptcy, David G. Carlson

Articles

No abstract provided.

Design Matters: Modernizing The Federal Arbitration Act To Safeguard Party Autonomy, Sarah R. Cole

Cardozo Journal of Conflict Resolution

Arbitration is a creature of contract. And it is basic arbitration law that arbitrators must respect contracting parties’ intent. The Federal Arbitration Act’s 100th anniversary offers an ideal moment to reaffirm this principle: arbitrators resolving commercial disputes should honor parties’ intent while preserving arbitration’s core values: efficiency, finality, and autonomy. Unfortunately, routine judicial deference to arbitration decisions often undermines parties’ intent as expressed through party design of the arbitration process. In response to this issue, this Article proposes amending the Federal Arbitration Act (FAA) to empower courts to safeguard two common arbitral party directives: limits on arbitrators’ remedial authority and …

Towards The Faa's Next Century: Clarifying Disclosure Requirements In Arbitration, Andrea K. Schneider, Brian Farkas

Articles

This essay provides a roadmap to the current landscape of neutrality and disclosure. It then suggests three possible reforms to the FAA that would provide better guidance to arbitrators, parties, and courts. Moreover, this essay argues that if the FAA cannot be sufficiently amended, states should take the lead. States can continue to more clearly outline disclosure requirements and enforce clearer standards than the current version of the FAA.

Panel 2: Trademark Law, Stacey Dogan, Christine Haight Farley, Jessica Silbey, Rebecca Tushnet, Felix Wu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Exit Engineering, Rachel Landy

Articles

How do business lawyers create value? For nearly forty years, scholars have conceptualized the business lawyer as a “transaction cost engineer” who helps contracting parties efficiently break negotiation stalemates to create more valuable deals. This theory provides meaningful insights about sophisticated corporate law practice, where outside lawyers parachute in to make one-off deals happen. However, it fails to explain the behavior of startup lawyers, who develop long-term relationships with their clients and counsel them on seemingly routine matters, well before a major transaction materializes. These lawyers are not just transaction cost engineers, they are exit engineers. This Article offers a …

Foreseeability Conventions, John Fabian Witt, Morgan Savige

Cardozo Law Review

How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate …

A Proposal To Establish An International Commercial Arbitration Ethics Panel And Hotline To Resolve Disclosure And Conflicts Issues, Nelson Edward Timken

Cardozo Journal of Conflict Resolution

No abstract provided.

Among Us: Impostor Syndrome And Barriers To Black Success, Deshayla M. Strachan

Cardozo Journal of Equal Rights & Social Justice

Black women are going places-but they're not going into the practice of law. While law schools are becoming more diverse, the legal profession is not. The lack of diversity in the legal profession, coupled with existing implicit bias, causes heightened Impostor Syndrome in women, especially Black women, as well as women from other underrepresented groups. The harder the impostor feelings hit, the more difficult it is to retain women of color in the legal profession. Emotions associated with Impostor Syndrome (e.g., feelings of insufficiency) begin upon entry into the legal profession, as many roadblocks prevent marginalized groups from gaining admission …

Commercially Reasonable Sales In The 21st Century, David G. Carlson

Articles

It has been over 20 years since the 2000 amendments profoundly amended the foreclosure procedures in Article 9 of the UCC. This article reviews how the amendments have fared in the case law since then.

Article 9 Foreclosures: When Is A Sale Not A Sale?, David G. Carlson

Articles

Article 9 of the Uniform Commercial Code empowers a secured creditor to sell collateral. This power is circumscribed. A secured party may not sell before default. A secured party cannot self-deal in a private sale. A pledgee of securities can sell to itself in a private sale if the securities are of a kind that is customarily sold on a recognized market, but the law is unclear what formalities the pledgee must meet to memorialize the sale. A secured party may not sell in a commercially reasonable manner to a buyer with notice of the commercial unreason. This article explores …

Amicus Curiae Brief Of The Hon. Judith Fitzgerald (Bankruptcy Judge, Ret.), And Law Professors Pamela Foohey, George Kuney, Robert Lawless, Jonathan Lipson, Bruce A. Markell, Nancy Rapoport, Richard Squire, Ray Warner And Jack Williams, In Support Of The Petitioner, Pamela Foohey

Amicus Briefs

Your amici have taught courses on bankruptcy and commercial law, conducted research, and have been frequent speakers and lecturers at seminars and conferences throughout the United States. Each is highly regarded in this field, and each has made substantial contributions to bankruptcy scholarship and jurisprudence.

The question presented to this Court is as follows: “Whether Bankruptcy Code Section 363(m) limits the appellate court’s jurisdiction over any sale order or order deemed integral to a sale order. . . .” (emphasis added). Pet. i. The answer is that § 363(m) does not limit appellate review of the transaction involved in this …

Fraudulent Transfer As A Tort, David G. Carlson

Articles

Fraudulent transfer law has historically been an in rem right of a creditor to property fraudulently received by a third party. In a minority of states, courts have treated fraudulent transfers as creating an in personam liability of the transferring debtor, the recipient, and any other third party who "conspired" with the transferor to achieve the transfer. This Article examines the wisdom of this modern trend and finds it wanting. The United States Supreme Court in 1861 was correct: fraudulent transfers are not wrongs. They merely create in rem rights.

Fraudulent Transfers: Void And Voidable, David G. Carlson

Articles

This Article explores the civil procedure attendant to private fraudulent transfer litigation (primarily outside the context of bankruptcy). In such litigation, courts ponder whether fraudulent transfers are void or voidable. In fact, they are both simultaneously! According to the theory "at law," a fraudulent transfer is "void." That is, a creditor with a judgment could simply levy the property from a fraudulent grantee as if the grantee had no property rights. This Article questions the constitutional viability of this ancient attitude. Meanwhile, "equity" viewed the transfer as voidable. The grantee gets title, but the title might be set aside. The …

Party Autonomy And Default Rules Regarding The Choice Of Number Of Arbitrators, Ilias Bantekas

Cardozo Journal of Conflict Resolution

This article is divided in two main parts. The first focuses on the party autonomy paradigm in international commercial arbitration. This includes an examination of rules and practices allowing the parties to choose both an even and odd number of arbitrators. The second part looks at the variety of default options, including the appropriate number of arbitrators in multi-party proceedings. Two smaller sections follow these. The first examines, albeit briefly, the position with respect to truncated tribunals. The second analyzes the appropriate number of arbitrators in the event that the parties choose one or more legal persons as arbitrators, particularly …

Tuition As A Fraudulent Transfer, David G. Carlson

Articles

Bankruptcy trustees are suing universities because the insolvent parent of an adult student has written a tuition check while insolvent. The theory is that the university is the initial transferee of a fraudulent transfer that has provided benefit to the student but not to the parent debtor. This article claims that the university is never the initial transferee of tuition dollars. Rather, the student is. Where the university has no knowledge of parent insolvency, the university can count educating the student as a good faith transfer for value, thus immunizing the university from liability. The unpleasant side effect is that …

The Dark Side Of Reputation, Emily Kadens

Cardozo Law Review

This Article seeks to contribute to the literature challenging the role of reputation in disciplining commerce. The historical disputes discussed here, which arose in the supposedly privately-ordered zone of the premodern merchant, add nuance to our understanding of how commerce works in the real world. Part I briefly reviews some of the problems the economic and network theory literature has identified with reputation. Part II turns to the history and demonstrates how trust could be cheaply manufactured due in part to potential partners' failure to look beyond superficial indicia of reputation. Part III then considers why reputation might have been …

From Skepticism To Reality-The Path To The Convention For The Enforcement Of Mediated Settlements, Deborah Masucci

Cardozo Journal of Conflict Resolution

The United States Delegation to the United Nations Commission on International Trade Law's ("UNCITRAL") Working Group II submitted a proposal for the Convention for the Enforcement of Mediated Settlements ("Convention") in May 2014. The proposal was met with skepticism. Delegates questioned the necessity of a convention citing past discussions where similar proposals were tabled. Some commentators went so far as to call the proposal the "Mediators Full Employment Act." Despite the pushback, the Working Group II decided to proceed with discussions to determine what a convention would look like while gathering more information from business users about the need for …

Evaluating The Singapore Convention Through A U.S.-Centric Litigation Lens: Lessons Learned From Nearly Two Decades Of Mediation Disputes In American Federal And State Courts, James R. Coben

Cardozo Journal of Conflict Resolution

This chapter assesses the likely efficaciousness of the Singapore Mediation Convention based on nearly two decades experience of systematically tracking and studying mediation litigation in the U.S. federal and state courts.

What's In A Name? The Terms "Commercial" And "Mediation" In The Singapore Convention On Mediation, Ellen E. Deason

Cardozo Journal of Conflict Resolution

One could interpret Shakespeare's famous quote as standing for the proposition that labels do not alter the essence of the thing named. In this article I draw inspiration from the quote to provide a foil for examining the use of the terms "commercial" and "mediation" in the Singapore Convention and Mediation Model Law. I will consider how the terms are framed and defined, the extent to which the names and their associated meanings introduce new ideas, and how their use might matter for the interpretation of important concepts in these instruments. Part I of the article discusses the term "commercial" …

Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Did Five Supreme Court Justices Go "Completely Bonkers"?: Saul Goodman, Legal Advertising, And The First Amendment Since Bates V. State Bar Of Arizona, Eric T. Kasper, Troy A. Kozma

Cardozo Arts & Entertainment Law Journal

In Bates v. State Bar of Arizona (1977), the U.S. Supreme Court held for the first time that the First and Fourteenth Amendments' protection of the freedom of speech extends to truthful advertising of attorneys' services. The ruling set aside decades of ethics rules that had prohibited lawyers from engaging in this type of marketing that bar associations had deemed predatory and beneath the stature of the profession. Saul Goodman from Breaking Bad and Better Call Saul is a pop culture representation of what legal advertising has become, both reflecting and shaping public perception of legal commercial publicity. But are …

Commercial Speech Protection As Consumer Protection, Felix T. Wu

Articles

The Supreme Court has long said that “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” In other words, consumers—the recipients or listeners of commercial speech—are the ones the doctrine is meant to protect. In previous work, I explored the implications of taking this view seriously in three contexts: compelled speech, speech among commercial entities, and unwanted marketing. In each of those contexts, adopting a listener-oriented approach leads to the conclusion that many forms of commercial speech regulation should receive far less First Amendment scrutiny than …

Comparing Wayfair And Wynne: Lessons For The Future Of The Dormant Commerce Clause, Edward A. Zelinsky

Articles

A comparison of South Dakota v. Wayfair with Comptroller of the Treasury of Maryland v. Wynne indicates that the prospect of the Supreme Court jettisoning the dormant Commerce Clause altogether is unlikely. However, the justices who would abandon the dormant Commerce Clause can exercise decisive influence in particular cases as they did in Wayfair. The current Court’s dormant Commerce Clause skeptics – Justices Thomas and Gorsuch –provided the crucial fourth and fifth votes in Wayfair to overturn Quill.

It will continue to be rare for the Court to reverse its own dormant Commerce Clause decisions. Far from opening …

Public Policy Under Article V(2)(B) Of The New York Convention: Is There A Transnational Standard?, Nivedita Chandrakanth Shenoy

Cardozo Journal of Conflict Resolution

This paper focuses on Article V(2)(b) of the Convention under which recognition and enforcement of an arbitral award may be refused if the competent authority in the country where recognition and enforcement is sought finds that "the recognition or enforcement of the award would be contrary to the public policy of that country." Article V is addressed to the States in which recognition and enforcement is sought and the language in Article V(2)(b) indicates an intention to provide ultimate control to that State to decide whether it will admit a foreign arbitral award into its legal order and use its …

The Commercial Difference, Felix T. Wu

Articles

When it comes to the First Amendment, commerciality does, and should, matter. This Article develops the view that the key distinguishing characteristic of corporate or commercial speech is that the interest at stake is “derivative,” in the sense that we care about the speech interest for reasons other than caring about the rights of the entity directly asserting a claim under the First Amendment. To say that the interest is derivative is not to say that it is unimportant, and one could find corporate and commercial speech interests to be both derivative and strong enough to apply heightened scrutiny to …

The Political Process Argument For Overruling Quill, Edward A. Zelinsky

Articles

Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? In Quill, the Court held that, under the dormant Commerce Clause of the U.S. Constitution, the states cannot impose the obligation to collect sales taxes on out-of-state vendors which lack physical presence in the taxing state. As internet commerce has grown, Quill’s physical presence test has severely hampered the states’ ability to enforce their sales taxes.

Much of the Supreme Court’s case law suggests that, under the banner of stare decisis, the Court should not overturn Quill. This case law indicates that it is Congress’s …

One Country, Two Systems: Hong Kong's Unique Status And The Development And Growth Of Arbitration In China, Jiali (Keli) Huang

Cardozo Journal of Conflict Resolution

This Note evaluates the future of arbitration in China and Hong Kong as the two approach their twentieth year working toward reunification under the implications of the "one country, two systems" model, which was implemented in Hong Kong when Hong Kong's sovereignty was transferred back to China in 1997. First, this Note explains Hong Kong's unique identity, the factors that triggered the Umbrella Movement and the Fishball Revolution, and Hong Kong's current relationship with China. Second, this Note provides a broad overview of the development of arbitration in China. Third, this Note describes the arbitral history between China and Hong …

Combating Counterfeits: Using U.S. Law To Analyze The Potential Application Of China's Amended Trademark Law To Online Marketplaces, Kerrijane John

Cardozo Arts & Entertainment Law Journal

No abstract provided.