Commercial Law Commons^™

Daniel Arises: Notes (Such As 30 And 31) From The Schlagaground*, Richard H. Weisberg

Articles

The article critiques the state of legal academia, arguing that it has become mired in mediocrity and disconnected from the pursuit of justice and creative thinking. It contends that legal education and scholarly discourse have been stifled by a focus on narrow, unimaginative logic, leading to a decline in intellectual rigor and a failure to inspire meaningful change.

Compromising On Consideration In Singapore: Gay Choon Ing V Loh Sze Ti Terence Peter, Yihan Goh

Research Collection Yong Pung How School Of Law

It is not often that a judgment contains a reference to Aristotle’s work or a coda at its conclusion. The recent Singapore Court of Appeal judgment of Gay Choon Ing v Loh Sze Ti Terence Peter (delivered by Andrew Phang JA) contained both, the latter of which an extensive judicial exposition on the difficulties (and tentative solutions) relating to the contractual doctrine of consideration. This re-evaluation of consideration at the slightest opportunity is unsurprising, given the conceptual problems that have afflicted the doctrine.There have been various judicial solutions, generally capable of classification into two distinct types: first, through an internal …

Rethinking Consideration In The Electronic Age, Robert A. Hillman, Maureen O'Rourke

Cornell Law Faculty Working Papers

Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding the suitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual …

Protecting Against Plunder: The United States And The International Efforts Against Looting Of Antiquities, Asif Efrat

Cornell Law Faculty Working Papers

In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern …

Trapped In A Metaphor: The Limited Implications Of Federalism For Corporate Governance, Robert B. Ahdieh

Faculty Scholarship

Trapped in a metaphor articulated at the founding of modern corporate law, the study of corporate governance has - for some thirty years - been asking the wrong questions. Rather than a singular race among states, whether to the bottom or the top, the synthesis of William Cary and Ralph Winter’s famous exchange is better understood as two competitions, each serving distinct normative ends. Managerial competition advances the project that has motivated corporate law since Adolf Berle and Gardiner Means - effective regulation of the separation of ownership and control. State competition, by contrast, does not promote a race to …

Assessment Of The Dispute Settlement Mechanism In The Context Of The Wto, Shaymaa Mahmoud Bayoumi

Archived Theses and Dissertations

No abstract provided.

H.R. 200, The "Helping Families Save Their Homes In Bankruptcy Act Of 2009," And H.R. 225, The "Emergency Homeownership And Equity Protection Act": Hearing Before The H. Comm. On The Judiciary, 111th Cong., Jan. 22, 2009 (Statement Of Associate Professor Adam J. Levitin, Geo. U. L. Center), Adam J. Levitin

Testimony Before Congress

Permitting modification of all mortgages in bankruptcy would create a low-cost, effective, fair, and immediately available method for resolving much of the current foreclosure crisis without imposing costs on taxpayers, creating a moral hazard for borrowers or lenders, or increasing mortgage credit costs or decreasing mortgage credit availability. As the foreclosure crisis deepens, bankruptcy modification presents the best and least invasive method of stabilizing the housing market and is a crucial step in stabilizing financial markets.

More Pedagogic Techniques: Online Exercises & (And) Integrating Skills Into Different Kinds Of Courses, Leslie Larkin Cooney

Faculty Scholarship

The Business Practice Clinic is an externship program that sends third-year students out to work either full-time or part-time in an agency or law firm. The externs are trained in the clinical program and during a biweekly class. There is also a three-credit class that students complete before they go into extern placement. It was a big challenge to complete the placement class in only two weeks because of the students’ busy schedules, so we began offering pieces of it online. We are moving more and more of this course to our online platform. This article discusses our experience in …

Social Networking As A Communications Weapon To Harm Victims: Facebook, Myspace, And Twitter Demonstrate A Need To Amend Section 230 Of The Communications Decency Act, 26 J. Marshall J. Computer & Info. L. 415 (2009), Joshua N. Azriel

UIC John Marshall Journal of Information Technology & Privacy Law

The article discusses how social networking sites can pose a danger to victims of online offensive content. Part II provides an overall analysis of the dangers the Internet, especially social networking, poses to victims. Part III reviews Section 230 of the CDA, including the “Good Samaritan” provisions for social networking websites such as Twitter and Facebook. Part IV analyzes three recent court cases that demonstrate how these social networking tools are used as weapons to harm victims. Part V concludes with a discussion of how the growing number of online incidents stem from social networking sites. It recommends that Congress …

Trust & Transparency: Promoting Efficient Corporate Disclosure Through Fiduciary-Based Disclosure, Michael R. Siebecker

Sturm College of Law: Faculty Scholarship

Could embracing the philosophy of “encapsulated trust” as the basis for a fiduciary duty of disclosure improve the integrity and effectiveness of corporate communications? The question arises because a tragedy of transparency threatens the viability of the burgeoning corporate social responsibility (CSR) movement, where consumers and investors employ various social, environmental, or ethical screening criteria before purchasing a company's stock or products. In an efficient market, fully informed consumers and investors could reward companies that engage in CSR by purchasing their products or stock and, conversely, punish companies that fail to engage in desired practices by refusing to purchase their …

Who's In Charge Here? Requiring More Transparency In Corporate America: Advancements In Beneficial Ownership For Privately Held Companies, 42 J. Marshall L. Rev. 1049 (2009), Dean Kalant

UIC Law Review

No abstract provided.

Giving In To Baby Markets: Regulation Without Prohibition, Sonia M. Suter

Michigan Journal of Gender & Law

The commodification of reproductive material evokes different responses. Some argue that the sale of reproductive material should be prohibited. Others argue in favor of unfettered baby markets on principle or to achieve broad-scale access to reproductive technologies. In this Article, the author responds to the emergence of baby markets with great skepticism, but reluctant acceptance. Drawing on a relational conception of autonomy and self-definition, she argues that commodification of reproductive material is intrinsically harmful. Moreover, such commodification poses a number of consequential harms. Nevertheless, in spite of these concerns, the author "gives in" to baby markets, which is to say …

Shrinkwrap, Clickwrap, And Other Software License Agreements: Litigating A Digital Pig In A Poke In West Virginia, David R. Collins

West Virginia Law Review

No abstract provided.

State Regulation Of Franchising: The Washington Experience Revisited, Douglas C. Berry, David M. Byers, Daniel J. Oates

Seattle University Law Review

Thirty-six years ago, and one year after Washington became the second state in the nation to enact a statute regulating franchise relationships, Professor Donald S. Chisum wrote the seminal article on franchising in Washington, State Regulation of Franchising: The Washington Experience. Professor Chisum's article has been one of the few reference sources for Washington franchise law, and it has been the primary source relied on by courts addressing claims under Washington's Franchise Investment Protection Act (FIPA). Since Professor Chisum originally published his article, the Federal Trade Commission (FTC) has promulgated and amended regulations governing the sale of franchises nationally, …

Buying Or Selling A Horse In France: An Introduction To The Legal Context Proposed To The Attention Of U.S. Equine Lawyers, Philippe E. Corruble

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

An Anthropologist's Approach To Mediation, Rebecca Golbert

Cardozo Journal of Conflict Resolution

On October 31, 2008, the Dispute Resolution Section of the American Bar Association, in collaboration with AAA International Centre for Dispute Resolution, ACB Group-Netherlands, ADR Center-Rome, CEDR, CMAP, International Academy of Mediators, International Institute for Conflict Prevention & Resolution ("CPR"), JAMS, Netherlands Mediation Institute, and the International Mediation Institute, held its first International Mediation Leadership Summit. The Summit's setting-the Peace Palace in The Hague in the Netherlands-was both breathtakingly beautiful and evocative. The Summit's goals-guided by the leadership and vision of Section Chair Lela Love and former Chair Bruce Meyerson, as well as international partners Manon Schonewille and Giuseppe de …

China's Restructured Commercial Banks: Nomenklatura, Nicholas C. Howson

Book Chapters

In the wake of the Asian Financial Crisis of 1997-98, and accelerating after 2003 the People's Republic of China (PRC or China) has implemented an ambitious reform program directed at the commanding heights of what once pa ed for China ' financial system-the large state-owned and state-managed commercial banks. Contrary to a good deal of advice offered by policy and finance specialists, China did not liquidate or fully privatize these institutions. Instead, the PRC sought to avoid the significant social (and no doubt political) cost associated with liquidation, or real privatization, by instead changing (1) the internal dynamics of, and …

Beware—Florida's Long Arms Can Reach Through Cyberspace And Grab Unsuspecting Professionals: Personal Jurisdiction In Professional Malpractice Cases, Judy Ann Clausen

UF Law Faculty Publications

Internet advertising leads to client relationships that transcend state and national borders. Modern professionals secure new clients through Internet advertising and communicate with clients remotely through e-mail. Particularly in Florida, a premier retirement destination, many retirees who built careers and nest eggs in other states receive advice from nonresident professionals.

This Article concerns the range of malpractice-related claims that disgruntled clients bring against nonresident professionals, including breach of fiduciary duty and professional negligence. Further, the Article contemplates issues surrounding personal jurisdiction in such cases. Often, nonresident professionals find themselves sued in Florida even when they have no office or agent …

Application Of The U.C.C. To Nonpayment Virtual Assets Or Digital Art, Sarah Howard Jenkins

Law Faculty Scholarship

No abstract provided.

Credit Cards, Attorney's Fees, And The Putative Debtor: A Pyrrhic Victory? Putative Debtors May Win The Battle But Nevertheless Lose The War, Jennifer M. Smith

Journal Publications

This Article addresses the current credit card industry and its detrimental impact on society, and it discusses the history and purpose of attorney's fees, as well as the pitfalls in attorney's fee legislation. It analyzes the case study under various state laws, with heavy emphasis on Florida and California law, then recommends a legislative change or judicial intervention to ensure that creditors incur financial responsibility when they erroneously sue consumers. With these changes, consumers are made whole when they must defend themselves against small claims lawsuits erroneously filed against them, so as not to become victims of needless debt.

Contributory Negligence, Technology, And Trade Secrets, Elizabeth A. Rowe

UF Law Faculty Publications

In tort law, the doctrine of contributory negligence captures conduct by the plaintiff that falls below the standard to which he should conform for his own protection. Whether one has been contributorily negligent is determined by an objective standard of reasonableness under the circumstances. This Article, for the first time, applies contributory negligence principles to trade secret law. It draws upon this doctrine to frame and analyze a challenge posed by modem technology. The very technological tools in use today that increase the efficiency with which companies do business also create challenges for trade secret protection. What might have been …

Some Basic Concerns About The Cfpa Legislation And A Partial Response To Professor Bar-Gill's "The Consumer Financial Protection Agency: Sorting The Critiques", Sarah Jane Hughes

Articles by Maurer Faculty

No abstract provided.

Altruism And Intermediation In The Market For Babies, Kimberly D. Krawiec

Faculty Scholarship

Central to every legal system is the principle that certain items are off-limits to commercial exchange. In theory, babies are one such sacred object. This supposed ban on baby selling has been lamented by those who view commercial markets as the most efficient means of allocating resources, and defended by those who contend that commercial markets in parental rights commodify human beings, compromise individual dignity, or jeopardize fundamental values. However, the supposed and much-discussed baby selling ban does not, and is not intended to, eliminate commercial transactions in children. Instead, it is an asymmetric legal restriction that limits the ability …

Warranties And Disclaimers In The Electronic Age, Robert A. Hillman, Ibrahim Barakat

Cornell Law Faculty Publications

This paper reports on software-licensor express warranty and disclaimer practices on the Internet. Our data show that virtually all of the websites and End User License Agreements (EULAs) we sampled include express warranties on the website and disclaimers of the warranties in the EULAs that may erase all or much of the quality protection. Next, the paper reviews the reasons why consumers generally do not read their e-standard forms despite the prevalence of disclaimers and other adverse terms. We then argue that e-commerce exacerbates the problem of warranties and disclaimers and that lawmakers should address this issue. We contend that …

Amended U.C.C. Article 2 As Code Commentary, David Frisch

Law Faculty Publications

In this short article, I suggest what is a valuable, if partial, corrective to the actual difficulties arising in the application of a statute that has not been subjected to significant changes for more than five decades. I begin in Part I by summarizing one of the sources from which information as to the proper application of Article 2 may be derived, and suggest that another appropriate source should be Amended Article 2. Part II will illustrate the soundness of the suggestion by applying Amended Article 2 to four issues, in order to conclude that specific outcomes can be predicated …

It's Just Secured Credit: The Natural Law Case In Defense Of Some Forms Of Secured Credit, Brian Mccall

Faculty Articles

For decades scholars have been debating whether of not the institution of security can be explained and justified. After much discussion from varying points of view and hermeneutics, although some insights have been gained, the answer to the original question remains unresolved. This article attempts to bring new life to this debate by building on Professors Mooney and Harris’ idea of security interest as property right while taking account of the valid concerns of scholars such as Elizabeth Warren and Lyn Lopucki that certain results produced by the current system seem unjust. This reconciliation of these two strands of secured …

The Graying Of The American Manufacturing Economy: Gray Markets, Parallel Importation, And A Tort Law Approach, Joseph Karl Grant

Journal Publications

This Article examines the history of the gray market in the United States through an analysis of both the domestic legislative framework and judicial treatment of gray market goods, primarily under trademark and copyright law. Part I of this Article provides a general introduction into the structural factors that cause parallel importation. Part II begins a discussion of trademarked goods by looking at the purposes of trademark law. Part III starts by discussing the relevant doctrines and provisions of the Copyright Act of 1976, which frame the gray market discussion. Part III concludes by examining the current debate and the …

Storetrax.Com, Inc. V. Gurland: Keep Trax Of Your Board Of Directors, James R. Hart Iii

Maryland Law Review Online

No abstract provided.

The Boundary Of Futures Regulation: From U.K. And U.S. Judgments Regarding Commodity Forward Contracts, Christopher Chao-Hung Chen

Research Collection Yong Pung How School Of Law

No abstract provided.

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Jarrod Wong, Miriam A. Cherry

McGeorge School of Law Scholarly Articles

No abstract provided.