Commercial Law Commons^™

Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values …

Make Up For Lost Time And Money: Using The Lanham Act To Regulate The Cosmetic Industry, Maria Monastra

William & Mary Business Law Review

In recent years, the cosmetic industry has experienced an increase in litigation brought on by consumers in their efforts to protect themselves from cosmetics that are either unsafe or falsely advertised. The Supreme Court of the United States’ discussion in POM Wonderful v. Coca-Cola Co. of the Lanham Act, the United States’ principal false advertising statute, clarified the breadth and depth of allowable lawsuits brought under the statute in matters which also concern the Food, Drug, & Cosmetic Act (FDCA). The case centered on a detailed discussion of the issue of federal preemption. Although the decision directly involved only the …

How Well Do We Treat Each Other In Contract?, Aditi Bagchi

William & Mary Business Law Review

One of the important contributions of Nathan Oman’s new book is to draw focus onto the quality of the relationships enabled by contract. He claims that contract, by supporting markets, cultivates certain virtues; helps facilitate cooperation among people with diverse commitments; and produces the wealth that may fuel interpersonal and social justice. These claims are all plausible, though subject to individual challenge. However, there is an alternative story to tell about the kinds of relationships that arise from markets--i.e., a story about domination. The experience of domination is driven in part by the necessity, inequality, and competition enjoined by markets, …

Contract Law And The Common Good, Brian H. Bix

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman offers a theory of contract law that is largely descriptive, but also strongly normative. His theory presents contract law’s purpose as supporting robust markets. This Article compares and contrasts Oman’s argument about the proper understanding of contract law with one presented over eighty years earlier by Morris Cohen. Oman’s focus is on the connection between Contract Law and markets; Cohen’s connection had been between Contract Law and the public interest. Oman’s work brings back Cohen’s basic insight, and gives it a more concrete form, as a formidable normative theory with detailed prescriptions.

Contract, Promise, And The Right Of Redress, Andrew S. Gold

William & Mary Business Law Review

This Essay reviews Nathan Oman’s recent book, The Dignity of Commerce. The book is compelling, and it makes an important and original contribution to contract theory—a contribution that insightfully shows how markets matter. Yet, in the course of developing a market-centered justification for contract law, The Dignity of Commerce also downplays the significance of consent and promissory morality. In both cases, the book’s argument is problematic, but this Essay will address questions of promissory morality. Oman contends that promise-based accounts struggle with contract law’s bilateralism and with its private standing doctrine. Yet, promissory morality is a very good fit …

A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman

William & Mary Business Law Review

This Article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce “desirable” outcomes for society. In addition to a comprehensive account of what he calls “virtues” of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.

Oman is not only a fan of markets, but he asserts that markets are the “center” of contract theory, and provide its normative foundation. Elaborating, Oman concludes that “contract law exists primarily to support markets” and that …

Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian

William & Mary Business Law Review

In this Essay on Professor Oman’s beautifully written and meticulously researched book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called doux commerce thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from …

Valuation Of Intellectual Property: Placing A Dollar Value On Technology (Or, Are Real-Options Real?), Gordon V. Smith

Maine Law Review

Valuation professionals have for a long time been appraising business enterprises and their underlying assets. The “dot-com” New Economy has dramatically changed how businesses can do business and has introduced us to some new forms of intellectual property rights. Have these changes altered our valuation methodologies? Prior to the 1960s, when valuation professionals were faced with a situation in which the value of a business enterprise appeared to exceed the value of its underlying assets, the difference was ascribed to “goodwill” or “blue sky.” No real effort was made to identify the constituents of this catch-all category, it was simply …

The Perfection And Priority Rules For Security Interests In Copyrights, Patents, And Trademarks: The Current Structural Dissonance And Proposed Legislative Cures, Thomas M. Ward

Maine Law Review

The structural legal dissonance that undermines the effective financing of federal intellectual property rights (patents, trademarks registrations, copyrights, and maskworks) is rooted in the prominence of title in both the early conceptual history of personal property financing and in the language of the federal tract recording acts. While genuine ownership transfers have always represented the prototype under the federal intellectual property recording statutes, transfers intended for security were also originally included because of the early judicial thinking about the importance of title to the validity (against third parties) of a “mortgage” right in intangible personal property. As products of their …

Revised Article 9 And Intellectual Property Asset Financing, Raymond T. Nimmer

Maine Law Review

Commercial asset value today often resides primarily in information assets, rather than in the physical assets that dominated the industrial age (goods and real estate). While tangible assets continue to have value, of course, the shift toward intangibles as value is significant and has been occurring for some time. We have not yet seen its end. More important, we have not yet come to grips with its meaning, either for commercial contract law or for commercial asset-based financing. Attitudes and approaches from the commercial world before intangible assets took center stage continue to influence how modern law treats information assets. …

Does The 1980 Vienna Sales Convention Reflect Universal Values? The Use Of The Cisg As A Model For Law Reform And Regional Specificities, Ulrich G. Schroeter

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Online And “As Is”, Colin P. Marks

Pepperdine Law Review

Online retail is a multi-billion-dollar industry in the United States. Consumers enjoy the ease with which they can browse, click, and order goods from the comfort of their own homes. Though it may come as no surprise to most lawyers, retailers are taking advantage of online transactions by attaching additional terms and conditions that one would not normally find in-store. Some of these conditions are logical limitations on the use of the retailers’ websites, but others go much further, limiting consumers’ rights in ways that would surprise many shoppers. In particular, many online retailers use these terms to limit implied …

Newsroom: From Farm To School 1-2-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Unbundling Employment Flexible Benefits For The Gig Economy, Seth C. Oranburg

Law Faculty Scholarship

Federal labor law requires employers to give employees a rigid bundle of benefits, including the right to unionize, unemployment insurance, worker’s compensation insurance, health insurance, family medical leave, and more. These benefits are not free—benefits cost about one-third of wages—and someone must pay for them. Which of these benefits are worth their cost? This Article takes a theoretical approach to that problem and proposes a flexible benefits solution.

Labor law developed under a traditional model of work: long-term employees depended on a single employer to engage in goods-producing work. Few people work that way today. Instead, modern workers are increasingly …

Privacy Of Information And Dna Testing Kits, Shanna Raye Mason

Catholic University Journal of Law and Technology

In modern times, consumers desire for more control over their own health and healthcare. With this growing interest of control, direct to consumer DNA testing kits have never been more popular. However, many consumers are unaware of the potential privacy concerns associated with such use. This comment examines the popularity and privacy risks that are likely unknown to the individual consumer. This comment also addresses the shortcomings of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as well as the Genetic Information Nondiscrimination Act of 2008 (GINA) in regard to protecting individual’s genetic information from misuse. This comment …

Adminization: Gatekeeping Consumer Contracts, Yonathan A. Arbel

Vanderbilt Law Review

Large companies and debt collectors frequently file unmeritorious claims against consumers. Recent high-profile actions brought by the Consumer Financial Protection Bureau against J.P. Morgan, Citibank, and other large debt collectors illustrate the breadth and importance of this phenomenon. Due to the limited financial power of individuals, consumers often do not defend against such baseless claims, which results in the entry of millions of default judgments every year. To combat this problem, policymakers and scholars have explored a variety of court-based solutions that would make it easier for consumers to defend in court, but these prove ineffectual. To solve the problem …

The Times They Are A-Changin': Innovation In The Modern Music Festival, Molly R. Madonia

Marquette Intellectual Property Law Review

Musical festivals are, and have always been, a way for friends and families to gather together to celebrate the latest and greatest in music, food, and entertainment. From large festivals in major metropolitan cities to small, intimate shows, music festivals have long been a source of enjoyment to music fans and a source of inspiration to up-and-coming musicians. This Article will explore innovation within the modern music festival, including legal, political, and operational changes that affect festivals across the country. So, as Emerson, Lake, and Palmer so eloquently expressed, “Welcome back my friends to the show that never ends, we’re …

Corruption In International Commercial Arbitration: Arbitrability, Admissibility & Adjudication, Deeksha Malik, Geetanjali Kamat

Arbitration Brief

No abstract provided.

Can The Language Of The Trans-Pacific Partnership Still Contribute To The International Investment System? An Analysis Of Tpp's Language Regarding States' Powers To Regulate, Yurica Ramos Montes

Arbitration Brief

No abstract provided.

To Kill A Migratory Bird: How Incidental Takes By Commercial Industry Activity Should Be Regulated By A New Civil Penalty Regime, Not The Current Mbta, Brittany E. Barbee

Buffalo Environmental Law Journal

Migratory birds are at odds with commercial industries in the United States. Industries are occasionally and accidentally killing migratory birds through their legal activity. Such actions against migratory birds are known as incidental takes. While the century-old Migratory Bird Treaty Act (MBTA) prohibits the taking of migratory birds, it is unclear as to whether it prohibits these modern-day incidental takes. The MBTA imposes criminal strict liability on those who violate its prohibitions, regardless of one's mental state at the time of the incident. Should the federal government hold commercial industries criminally liable for incidentally taking migratory birds through otherwise legal …

Corporate Compliance And Criminality: Does The Common Law Promote Culpable Blindness?, Michael R. Siebecker, Andrew W. Brandes

Sturm College of Law: Faculty Scholarship

Could corporate directors and officers face criminal liability for actions that ostensibly comport with common law fiduciary duties? Answering this rather odd question has gained paramount importance following the United States Justice Department's recent promulgation of aggressive new prosecution policies targeting individual officers and directors responsible for major corporate misconduct. In September 2015, former Deputy Attorney General Sally Yates disseminated an official policy memorandum entitled, Individual Accountability for Corporate Wrongdoing. The Yates Memo instructs federal prosecutors to ferret out and punish individual executives, officers, and board members who commit crimes on behalf of the corporation. The recent indictment of several …

The Restructuring Plan And The Role Of Foreign Investments In Italian System, Vito Cozzoli, Antonio Morelli

Arbitration Brief

No abstract provided.

A Blueprint For A New American Trade Policy, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

In this paper, we offer ten recommendations on how to reform American trade policy. These reforms respond to three fundamental challenges: (1) our trade bureaucracy is poorly designed to craft and execute a trade policy that pursues multiple important ends, including economic and national security; (2) the domestic process through which the United States makes trade agreements provides preferential access to certain interest groups (capital and corporations) but not others; and (3) U.S. trade policy has failed to grapple with the distributional consequences of trade liberalization. The first set of reforms addresses the domestic trade policymaking process. These include restructuring …

The Application Of The United Nations Convention On Contracts For The International Sale Of Goods Uniformity Interpretation Principle In U.S., Yuqing Nie

Maurer Theses and Dissertations

The United Nations Convention on Contracts for the International Sale of Goods (hereinafter: CISG) plays an increasingly important role in international sale of goods. However, the CISG is not always correctly applied, especially one of its basic principles – the uniform interpretation principle stated in its Article 7(1), which is usually ignored or incorrectly applied in its contracting States.

The CISG requires high-level uniformity, which requires the CISG to be applied autonomously if there involves parties from two CISG contracting States and the contract governing the transaction has no clause specifying other law as the governing law. Additionally, the CISG …

Exploring Banks' Duty Of Care Towards Non-Customers In U.C.C. Article 3 & 4, Anis A. Houssein

Maurer Theses and Dissertations

This Thesis analyzes the bank transaction regarding cashing or accepting for deposit instruments over forged or unauthorized indorsements. Also, it investigates the development of conversion of instruments through the years and the courts’ contribution to the development. It examines the U.C.C. former section 3-419 and the courts’ reaction to the defense afforded to banks against an allegation of conversion and examines as well the current 3-420 and the reasons that led to the amendment. Besides all that, this Thesis discusses the banks’ defenses regarding Impostors and Fictitious Payees under § 3-404, Employer’s responsibility for fraudulent indorsement by his employee under …

Foreign Initial Coin Offering Issuers Beware: The Securities And Exchange Commission Is Watching, Julianna Debler

Cornell International Law Journal

No abstract provided.

A Look Back At The Future Of Ucc Damages Remedies, Roy Ryden Anderson

SMU Law Review

Article Two of the Uniform Commercial Code stands today as a living testament to Karl Llewellyn and the many other brilliant and dedicated lawyers from well over a half century ago who participated actively in its drafting. Of the Code’s several articles, Article Two is particularly noteworthy because it alone has survived to the present day without significant substantive amendment. That longevity is most remarkable given the ensuing fifty plus years of expanded knowledge, technological advance, and innovative changes in fundamental business practice that have occurred in our ever-evolving economy. At its inception, much of Article Two represented novel departure …

Crossing Troubled Waters: Joining Non-Signatories In Maritime Arbitration - The Co-Optation And Containment Of Consent In United States And British Law, Glenys P. Spence

Roger Williams University Law Review

No abstract provided.

Too-Big-To-Fail 2.0? Digital Service Providers, Nizan Geslevich Packin

Indiana Law Journal

The Article explains why addressing Too-Big-To-Fail 2.0 has not yet become a political and societal priority. First, digital service providers are technology companies, which, many believe, are shaped by market forces such that they fail and succeed in equal measure without producing negative ripple effects on the economy or society. Second, technology giants are not as carefully regulated as banks becauseunlike banks, they do not take insured deposits backed by the government. Third, even heavily regulated financial institutions have not been required until recently to focus on cybersecurity. Finally, some believe that there is no point in worrying about Too-Big-To-Fail …

Book Review: Surrogacy: A Human Rights Violation By Renate Klein, Kate Rose

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.