Commercial Law Commons^™

Extending Predation Analysis To Monopolist's Bundled Discounts Under Section 2: An Economic, Legal, And Comparative Perspective, Seth B. Chertok

ExpressO

In LePage’s v. 3M, the Third Circuit decided the first case at the federal appellate court level that dealt with the subject of bundled discounts by a monopolist under Section 2 of the Sherman Act in the period following the U.S. Supreme Court’s decision in Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation. Prior to the decision in Brooke Group, the Third Circuit had only once before addressed this topic in Smithkline Corp. v. Eli Lilly and Company. Smithkline is only significant because it nearly suggested that any bundled discount, regardless of whether above or below cost, was anti-competitive. …

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …

Undoing The Otherwise Perfect Crime-Applying Unjust Enrichment To Consumer Price-Fixing Claims, Daniel R. Karon

West Virginia Law Review

No abstract provided.

Tracing, Peter B. Oh

ExpressO

Tracing is a method that appears within multiple fields of law. Distinct conceptions of tracing, however, have arisen independently within securities and remedial law. In the securities context plaintiffs must “trace” their securities to a specific offering to pursue certain relief under the Securities Act of 1933. In the remedial context victims who “trace” their misappropriated value into a wrongdoer’s hands can claim any derivative value, even if it has appreciated.

This article is the first to compare and then cross-apply tracing within these two contexts. Specifically, this article argues that securities law should adopt a version of the “rules-based …

Coddling Spies: Why The Law Doesn’T Adequately Address Computer Spyware, Alan F. Blakley, Daniel B. Garrie, Matthew J. Armstrong

Duke Law & Technology Review

Consumers and businesses have attempted to use the common law of torts as well as federal statutes like the Computer Fraud and Abuse Act, the Stored Wire and Electronic Communications and Transactional Records Act, and the Wiretap Act to address the expanding problem of spyware. Spyware, which consists of software applications inserted into another's computer to report a user's activity to an outsider, is as innocuous as tracking purchases or as sinister as stealing trade secrets or an individual's identity. Existing law does not address spyware adequately because authorization language, buried in "click-through" boilerplate, renders much of current law useless. …

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Product Liability Law, Gary J. Spahn, Brent M. Timberlake

University of Richmond Law Review

While Virginia is not typically seen as "progressive" in the field of product liability law, the Commonwealth is nonetheless a forum in which these product liability battles take place. This article summarizes selected decisions of the United States Court of Appeals for the Fourth Circuit, federal district courts in Virginia, and courts of the Commonwealth issued between July 1, 2004 and May 15, 2005. This article also includes a discussion of the most relevant legislative changes made by the Virginia General Assembly over the same time period. While a complete analysis of every decision and statute affecting product liability is …

The Fact Act Of 2003: Securing Personal Information In An Age Of Identity Theft, Terrance J. Keenan

Washington Journal of Law, Technology & Arts

The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) makes incremental progress toward its goal of improving the protection of consumers and businesses in an age of increasingly sophisticated scams and cons. Congress enacted the FACT Act in order to further address the problems of identity theft, improve resolution of disputes over consumer credit information, enhance accuracy of consumer credit records, further regulate use of credit information, and broaden consumer access to credit information. The FACT Act imposes new business practices on companies that handle personal consumer information by requiring them to share with consumers information about data …

Eliminating The Below-Cost Pricing Requirement From Predatory Pricing Claims, Ari Lehman

Cardozo Law Review

No abstract provided.

Applying 42 U.S.C. § 1981 To Claims Of Consumer Discrimination, Abby Morrow Richardson

University of Michigan Journal of Law Reform

This Note explores several interesting legal questions regarding the proper interpretation of 42 U.S.C. § 1981, which prohibits racial discrimination in contracting, when discrimination arises in the context of a consumer retail contract. The Note further explores how the Fifth Circuit's and other federal courts' narrow interpretation of § 1981's application in a retail setting (which allows plaintiffs to invoke the statute only when they have been prevented from completing their purchases) is contrary to the statute's express language, congressional intent, and to evolving concepts of contract theory, all of which reflect a commitment to the strict enforcement of civil …

Symposium: International Legal Dimensions Of Art And Cultural Property, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

The market for art and cultural property is international. Demand is intense and not particularly local in terms of consumer preference. Supply responds to this intense international demand. Like most anything else, art finds its way to whomever is prepared to pay for it. Regulation affects how it arrives at its ultimate destination, but generally does not prevent it from getting there. Apart from this international market, legal and policy aspects of art and cultural property have a distinctly international flavor due to historical circumstance. Since many works over time have been removed from their source by way of conquest, …

The Accuracy And Manipulability Of Lost Profits Damages Calculations: Should The Trier Of Fact Be "Reasonably Certain"?, Jonathan T. Tomlin, David Merrell

ExpressO

The accuracy and manipulability of calculations for lost profits damages are critical determinants of the ability of harmed parties to receive just compensation in a wide range of legal cases including antitrust, fraud, false advertising, intellectual property infringement, and breach of contract. They are also important determinants of the deterrent effects of the law. Using a sample of over 5,000 U.S. firms, we show that simple damages methods are capable of being substantially inaccurate. We also show that damages methods in general are highly susceptible to manipulation. In the absence of reasonable justifications for why particular data sets and methods …

Income Tax Claims In The Year Of Bankruptcy: A Congressionally Created Quagmire, Gregory L. Germain

ExpressO

How is the government's claim for income taxes incurred by a debtor in the year of bankruptcy treated? Is the government's tax claim entitled to priority as a first priority expense of administration, even though part of the year's taxes was incurred prepetition? If not, is the claim entitled to eighth priority under its special rule for tax claims? The courts did not reach consistent results on these questions prior to the 2005 Act. The courts agreed that the government's claim for pre-petition taxes should not be entitled to administrative expense priority, but differed on whether the claim was entitled …

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

Supreme Court Preview

No abstract provided.

Summary Of Dep’T Of Taxation V. Daimlerchrysler Svcs. N. Am., Llc, 121 Nev. Adv. Op. 56, Danielle Oakley

Nevada Supreme Court Summaries

Department of Taxation (“the Department”) appealed from a district court order, which had granted DaimlerChrysler’s petition for judicial review of the Department’s decision denying DaimlerChrysler’s application for a tax refund under Nevada’s bad-debt collection statute.

Casenote: Killing Life Partners: Why Viatical Settlements Constitute Securities – In Light Of The Sec V. Mutual Benefits Corporation And Other Recent Cases Explicitly Rejecting Life Partners, Brian Levin

ExpressO

No abstract provided.

Bankruptcy Abuse: An Empirical Study Of Consumer Exemptions Cases, Bernard Trujillo

ExpressO

On April 20, 2005, the President of the United States signed a sweeping legislative overhaul of the consumer bankruptcy system. The bankruptcy reform legislation is based on an empirical assertion: that sophisticated debtors with the means to re-pay their debts were instead filing for bankruptcy and acquiring a discharge, thereby abusing the bankruptcy system.

This Article presents the results of an empirical study of bankruptcy court doctrine in consumer exemptions proceedings over a twenty-year period. The findings suggest a serious empirical flaw in the premise of the bankruptcy reform legislation. The study shows that the bankruptcy system minimizes abuse by …

Better Than Cash? Global Proliferation Of Debit And Prepaid Cards And Consumer Protection Policy, Arnold S. Rosenberg

ExpressO

A global deluge of debit cards and prepaid cards – payment cards that do not require consumers to qualify for credit – is rapidly making electronic payment systems accessible to much of the world’s population that previously paid in cash for goods and services. The global proliferation of payment cards is fraught with both risk and promise for consumers.

The billions of people of low to moderate incomes who are being hurled from a cash economy into the era of electronic payments in emerging economies by the proliferation of debit and prepaid cards are particularly vulnerable to abuses by banks …

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

ExpressO

No abstract provided.

When Big Brother Privatizes: Commercial Surveillance, The Privacy Act Of 1974, And The Future Of Rfid, John M. Eden

Duke Law & Technology Review

RFID is a powerful new technology that has the potential to allow commercial retailers to undermine individual control over private information. Despite the potential of RFID to undermine personal control over such information, the federal government has not enacted a set of practicable standards to ensure that personal data does not become widely misused by commercial entities. Although some potential privacy abuses could be addressed by modifying RFID technology, this iBrief argues that it would be wise to amend the Privacy Act of 1974 so that corporations would have a statutory obligation to preserve individual anonymity and respect the privacy …

Sailing Around Erie:The Emergence Of A Federal General Common Law Of Arbitration, Kenneth Dunham

ExpressO

This paper traces the history of American arbitration from the common law to the FAA. It discusses the FAA as a procedural act prior to Southland v. Keating and as a substantive law act following Southland. It discusses the Erie doctrine as applicable to federal courts and state law preemption. The article concludes that Southland by-passed Erie using the Commerce Clause and the Supremacy Clause to create a federal common law of arbitration.

Negotiating A Commercial "Most Favored Nation" Clause, Stirling Adams

Brigham Young University International Law & Management Review

No abstract provided.

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review Of Lynn M. Lopucki, "Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts", Todd J. Zywicki

George Mason University School of Law Working Papers Series

In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki’s book argues that that current bankruptcy venue rules have spawned an improper “competition for big cases” that has “corrupted” America’s bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.

This essay reviews LoPucki’s book …

Swancc'S Clear Statement: A Delimitation Of Congress's Commerce Clause Authority To Regulate Water Pollution, Matthew B. Baumgartner

Michigan Law Review

Perhaps the most controversial aspect of federal water pollution law is wetland regulation. Wetlands are typically marshy or swampy areas with hydrologic soils and vegetation. Their ecological value is widely recognized, but wetlands often stand in the way of lucrative commercial development projects. Thus, the battle over the validity of federal wetland regulation is a classic fight between environmentalists and industry. The wetlands controversy is also paradigmatic of the perpetual struggle to define the constitutional limits to federal regulation. The country's main water pollution control law, the Clean Water Act (CWA), purports to regulate all "navigable waters," which it defines …

From "Federalization" To "Mixed Governance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh

Faculty Scholarship

Since the very moment of its adoption, the Sarbanes-Oxley Act of 2002 has been subject to a litany of critiques, many of them seemingly well-placed. The almost universal condemnation of the Act for its asserted 'federalization' of corporate law, by contrast, deserves short shrift. Though widely invoked - and blithely accepted - dissection of this argument against the legislation shows it to rely either on flawed assumptions or on normative preferences not ordinarily acknowledged (or perhaps even accepted) by those who criticize Sarbanes-Oxley for its federalization of state corporate law.

Once we appreciate as much, we can begin by replacing …

Is It A Subsidy? An Evaluation Of China's Currency Regime And Its Compliance With The Wto, Matthew R. Leviton

ExpressO

No abstract provided.

Unlawful Dividends, Unjust Enrichment, And The Defence Of Change Of Position, Cecil Duncan Macrae

Research Collection Yong Pung How School Of Law

Economic analysis is applied to determining the effect of the change of position defense on the question of whether an innocent shareholder receiving an unlawful, mistaken dividend should be liable under English restitution law as the result of unjust enrichment. The analysis builds on and extends previous economics analysis of mistaken money transfers under restitution law. The conclusion of the analysis of the change of position defense is that unjust enrichment liability with the defense should not be extended to unlawful, mistaken dividends, even if the factors for unjust enrichment are present.

General Intangible Or Commercial Tort: Moral Rights And State Based Intellectual Property As Collateral Under Ucc Revised Article 9, Lars Smith

ExpressO

The article focuses on whether this change to Article 9 requires a reevaluation of whether certain intellectual property rights are better characterized as commercial torts rather than general intangibles. If so, this will place severe restrictions on the ability of debtors to use those forms of intellectual property as collateral. I propose a two part test to determine the proper characterization: First, is the intellectual property right one that exists primarily to vindicate interests of the owner? Second, is the intellectual property right alienable? Using this test, for example, it is my conclusion that moral rights can never be general …

In Re Oracle Corp. Derivative Litigation: Death Of Special Litigation Committees?, Anna Panchenko

DePaul Business & Commercial Law Journal

No abstract provided.