Commercial Law Commons^™

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 …

The Roberts Court & The Business Cases, Kenneth W. Starr

Pepperdine Law Review

No abstract provided.

Mediation Outcomes: Lawyers' Experience With Commercial And Construction Mediation In The United Kingdom , Penny Brooker, Anthony Lavers

Pepperdine Dispute Resolution Law Journal

This paper reports on the final phase of a three-year study into the role of lawyers in the development of Alternative Dispute Resolution (ADR) following the implementation of the Civil Procedure Rules in 1999 and draws comparisons between US and Canadian studies. The paper centres on the use of mediation, which is recognised as the pre-eminent ADR process in the UK. Data are analysed from 30 interviews with specialist commercial and construction-related lawyers who have utilised mediation in the dispute resolution process. Interviewees were selected from respondents to a national survey of lawyers specializing in commercial and construction-related practice. Whereas …

It’S My Body: The Biomedical Ethics Of Cell And Organ Harvest, Christina Perri

Common Reading Essay Contest Winners

First Place

Empirical Studies Of Contract, Zev J. Eigen

Faculty Working Papers

Since the mid 2000s, a cottage industry has slowly blossomed of empirical research dedicated to advancing accounts of contracts "on the books"--accounting for what contracts tend to purportedly obligate signers to do, and contracts "in action"--accounting for how contracting parties tend to behave. This article reviews this literature, which spans several disciplines, most notably law, economics, and management, identifying eight categories of empirical questions in common across all disciplines, highlighting key findings, points of consensus, and noting areas most pressingly in need of additional research.

My Brother's Keeper: An Empirical Study Of Attorney Facilitation Of Money-Laundering Through Commercial Transactions, Lawton P. Cummings, Paul T. Stepnowsky

Faculty Scholarship

In recent years, various “gatekeeping initiatives” have been introduced through inter-governmental standard-setting organizations, such as the Financial Action Task Force, as well as through federal legislation in the United States, which seek to apply the mandatory customer due diligence, record keeping, and suspicious activity reporting obligations contained in the existing anti-money laundering regime to lawyers when they conduct certain commercial transactions on behalf of their clients. The organized bar has argued against such attempts to regulate it, in part, due to the lack of empirical data showing that, as a threshold matter, lawyers unwittingly aid money laundering in a significant …

Commercial Law's Complexity, David Frisch

Law Faculty Publications

This Article proceeds as follows. Part I briefly surveys prevailing ideas about the social costs of complexity and identifies additional costs that have escaped the attention of earlier commentators. The aim is to demonstrate why reducing the complexity of the commercial law system matters. Part II describes three legislative responses-two already enacted ·and one proposed- representing efforts to mediate the tension between the need for precise regulation and the generation of overly complex rules that often results. Part III provides a closer examination of these legislative responses and demonstrates that, taken together, they create an opportunity for the implementation of …

Promoting Commercial Law Reform In Eastern Europe, Samuel Bufford

Faculty Scholarship

This article is my account of what I did in a decade of advising governments and teaching judicial seminars on commercial law matters in Central and Eastern Europe, beginning in 1991. This article contains my individual reflections on more than a dozen visits to developing countries in Central and Eastern Europe to advise governments and to educate their judges, and several visits of judges from some of those countries to the United States. In many ways, my experiences are typical of United States judges who have done the same kind of work in developing countries. In some ways, my experiences …

The Evolving Role Of Institutional Investors In Corporate Governance And Corporate Litigation, Randall Thomas

Vanderbilt Law School Faculty Publications

Each of the articles in this Symposium sheds new light on the ever-changing role of institutional investors in U.S. corporate governance and corporate litigation. They cover a broad range of topics, including institutional investor activism on executive compensation, proxy access initiatives at the SEC, state and federal litigation, and the current levels of activism by public pension funds. The data and the theoretical contributions of these articles provide important foundation for the ongoing discussion about the role of institutional investors.

Rationalizing The Taxation Of Reorganizations And Other Corporate Acquisitions, Herwig J. Schlunk

Vanderbilt Law School Faculty Publications

This article examines the taxation of human shareholders in the case of mergers and acquisitions. Currently, the relevant law is extraordinarily complex, utterly inconsistent, and in many instances arguably unfair. There are really only two plausible ways to cure these ills. The first would involve moving to a tax system with more fulsome gain recognition, most likely in the form of mark-to-market taxation. This option is not in my opinion feasible (either technically or what is perhaps more important, politically). Accordingly, the second potential cure, moving to a tax system with less gain recognition, merits attention. In this article, I …

Rational Retroactivity In A Commercial Context, David Frisch

Law Faculty Publications

This Article focuses on the commercial law context. While transition issues have previously received scant attention, this area of the law is proceeding at an accelerating rate, making transition policy crucially important at this time. In particular, this Article will consider the plausibility and implications of a retroactivity norm in the commercial law context by examining the recent revisions and amendments to Articles 1 and 2 of the Code. Two claims will be advanced: The incentive-based analysis of retroactivity issues in other contexts does not necessarily comport with the realities of commercial law, and consideration of both expectations and incentives …

Iraq, Secured Transactions, And The Promise Of Islamic Law, Mark J. Sundahl

Vanderbilt Journal of Transnational Law

When Iraq regains political stability, major reconstruction projects will have to be funded and local businesses will need financing in order to gain a foothold in the new economy. In order to attract the necessary capital, the Iraqi law of secured transactions must be reformed to allow for lenders to take security in the assets of their borrowers. However, the challenge of reforming Iraqi commercial law is complicated by the requirement under the new Iraqi Constitution that any new statutes enacted by the Iraqi legislature comply with the principles of Islamic law. This Article sets forth proposals for reform that …

From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs

Faculty Scholarship

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant. " This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The …

Peggy J. Blair On Commercial Law And Human Rights Edited By Stephen Bottomley And David Kinley. Burlington, Vt: Ashgate, 2001. 356pp., Peggy J. Blair

Human Rights & Human Welfare

A review of:

Commercial Law and Human Rights edited by Stephen Bottomley and David Kinley. Burlington, VT: Ashgate, 2001. 356pp.

Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves

Scholarly Works

No abstract provided.

Annual Survey Of Oklahoma Contract, Consumer, And Commercial Law: 2000-2002, Fred H. Miller

Oklahoma Law Review

No abstract provided.

The Culture Of Arbitration, Tom Ginsburg

Vanderbilt Journal of Transnational Law

The relationship between "legal culture" and the practice of international arbitration has received increasing attention in recent years. Many see arbitration as a meeting point for different legal cultures, a place of convergence and interchange wherein practitioners from different backgrounds create new practices. Some have suggested that this process has led to an emergent "international arbitration culture" fusing together elements of the common law and civil law traditions. Others see arbitration as a locus of conflict among traditions or as competition among various players.

This comment contests the view that the current state of convergence in arbitration is properly considered …

The Economics Of Uniform Laws And Uniform Law Making, John Linarelli

Scholarly Works

Uniform law making has a substantial history in the twentieth century. It seems to be continuing with some force into the twenty-first century. A significant American law and economics literature, however, questions its merit. By contrast, there have been limited rational choice oriented investigations of unification or centralization of law in Europe. Critics of the uniform law movement in the United States use methods of analysis influenced by public choice theory, political economics and positive political theory. The paper does not call into question the methods and assumptions of these approaches. The paper claims that economic analysis supports public policy …

Unification Of The Law Governing Secured Transactions: Progress And Prospects For Reform, Hannah Buxbaum

Articles by Maurer Faculty

This article was published in connection with UNIDROIT's 75th anniversary conference on worldwide harmonization of private law and regional economic integration. It begins by addressing the commercial need for harmonization in the area of secured transactions, discussing both traditional conflicts analysis in that field and particular obstacles to reform. It then outlines the specific reform initiatives that have been implemented to date, grouping them into sectoral instruments and regional instruments. It concludes by speculating on the future of harmonization efforts in security law.

Consumer And Employment Arbitration Law In Comparative Perspective: The Importance Of The Civil Jury, Stephen J. Ware

University of Miami Law Review

No abstract provided.

Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight

University of Miami Law Review

No abstract provided.

Reinventing The Deal: A Sequential Approach To Analyzing Claims For Enforcement Of Modified Sales Contracts, Irma S. Russell

Faculty Works

This article explores the legal and economic complexities surrounding the enforcement of modified sales contracts under Section 2-209 of the Uniform Commercial Code (UCC). While contract modification allows parties to adapt agreements to changing circumstances, courts have struggled with the absence of a consistent standard for determining when such modifications should be enforced. The discussion critiques the ambiguity of the UCC’s “good faith” requirement and the unpredictability it creates in judicial decision-making. To address these issues, the article proposes a “sequential approach” that examines each stage of the modification process, requiring the initiating party to demonstrate reasonable grounds for seeking …

Harmonizing The Battle Of The Forms: A Comparison Of The United States, Canada, And The United Nations Convention On Contracts For The International Sale Of Goods, Charles Sukurs

Vanderbilt Journal of Transnational Law

As trade between the United States and Canada continues to increase on the heels of the free trade agreements of the early 1990s, the question of which body of commercial law to apply to these transactions becomes increasingly important. The United Nations Convention on Contracts for the International Sale of Goods (CISG) serves as the default governing law for many of these transactions. In spite of its lack of use and the confusion it has brought to choice of law provisions as a self-executing treaty, many scholars have suggested that the CISG can continue to serve as a body of …

Securitizations In Latin America, Erica W. Stump

University of Miami Business Law Review

No abstract provided.

Commercial Norms, Commercial Codes, And International Commercial Arbitration, Christopher R. Drahozal

Vanderbilt Journal of Transnational Law

This Article examines whether the incorporation of commercial norms into commercial codes is an appropriate law-making strategy. Most commercial codes, including the Uniform Commercial Code, regard common business practices as an important source for courts to consider when resolving contract disputes. Yet some scholars criticize this incorporation strategy, arguing that reliance on commercial norms is often inappropriate and may distort the true nature of the parties' agreement. Reliance on commercial norms does restrict the ability of contracting parties to allocate part of their agreement to extra-legal means of enforcement. Nevertheless, this Article asserts that those costs may be outweighed by …

Symposium: The Rise Of The International Trust, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

The international trust, the subject of the Symposium, is experiencing an extraordinary reception worldwide. It is being utilized by individuals from countries with legal cultures that traditionally have not known this form of ownership. In fact, there is no formal legal construct known as the "international trust." Rather, the term as used in the Symposium and as used herein, is intended as an organizing principle to explore the various implications of trusts with international or transborder linkages. The focus is on private trusts, those utilized to manage the wealth of individuals and their families, although much of the discussion pertains …

Commercial Law: Determining Repugnancy In An Electronic Age: Excluded Transactions Under Electronic Writing And Signature Legislation, Christopher B. Woods

Oklahoma Law Review

No abstract provided.

Commercial Law: Determining Repugnancy In An Electronic Age: Excluded Transactions Under Electronic Writing And Signature Legislation, Christopher B. Woods

Oklahoma Law Review

No abstract provided.

Commenting On "Purpose" In The Uniform Commercial Code, David Frisch

Law Faculty Publications

This Article describes the congruities and incongruities of applying a purposive interpretation to Code provisions. We intend nothing provocative; indeed, it would be provocative to suggest that a living organism such as the UCC should be applied in a manner inconsiderate of its "purpose." Our object is to come to terms with the sources of purpose. What is it that counsel, courts, and transactors, for that matter, need in order to discern the law's reason that will determine their bargain, their rights when the bargain fails? In Part II of this Article, we focus on section 1-102 of the Code, …

Legal Design And The Evolution Of Commercial Norms, Jody S. Kraus

Faculty Scholarship

The Uniform Commercial Code determines the content of most commercial law default rules by incorporating common merchant practices. The success of this incorporation strategy depends on the likely efficiency of evolved commercial practices. In this Article, I use the best available theory of cultural evolution to analyze how and why commercial practices evolve. This analysis confirms that the incorporation strategy is far superior to a system in which lawmakers rely predominantly on individual analysis and experimentation to design commercial law. But the analysis also demonstrates that common commercial practices, and the laws incorporating them, are unlikely to be optimal, in …