Contracts Commons^™

Unauthorised Fiduciary Gains And The Constructive Trust, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article challenges the traditional assumption that all cases of unauthorised fiduciary gain warrant the same legal treatment, in particular the imposition of a constructive trust as a disgorgement remedy. It proposes a method of categorising the cases and ranking them based on the strength of the principal’s interest. It is suggested that in cases where the principal’s interest is not particularly strong, there is room for taking into account the interests of innocent third parties and affording them the necessary protection. For this purpose, the remedial constructive trust supplies the needed flexibility.

A Renewed Consideration Of Consideration: Mwb Business Exchange Centres Ltd V Rock Advertising Ltd [2016] Ewca Civ 553, Kenny Chng, Yihan Goh

Research Collection Yong Pung How School Of Law

This note argues thatthe English Court of Appeal decision of MWBBusiness Exchange Centres Ltd v Rock Advertising Ltd is a significantmodification of the present understanding of consideration with respect toagreements to accept part-payments of a debt and to perform pre-existing duties,and that the preferred way forward for the development of the law should be judicialintervention by the Supreme Court to reconcile the logical inconsistenciesbetween Foakes v Beer and Williams v Roffey Bros & Nicholls(Contractors) Ltd.

Law School News Guiding Startups Through Legal Pickles: Law Students Launch Artisan Pickler And Other Businesses To Success 11/09/2016, Jill Rodriques

Life of the Law School (1993- )

No abstract provided.

Employment Agreements For The Inventing Worker: A Proposal For Reforming Trailer Clause Enforceability Guidelines, Peter Caldwell

Journal of Intellectual Property Law

No abstract provided.

Consumer Preferences For Performance Defaults, Franklin G. Snyder, Ann M. Mirabito

Michigan Business & Entrepreneurial Law Review

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These “majoritarian” …

Consumer Preferences For Performances Defaults, Franklin G. Snyder, Ann M. Mirabito

Faculty Scholarship

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These "majoritarian" …

Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge

Mark Edwin Burge

The Convention On The Uniform Law Of International Bills Of Exchange And International Promissory Notes: A Comparison To The Uniform Commercial Code, Harold S. White

Georgia Journal of International & Comparative Law

No abstract provided.

Restitution Of Non-Gratuitously Conferred Benefit In Malaysia: A Case For Sowing The Unjust Enrichment Seed, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article draws on the common law of unjust enrichment to rationalize and develop the right to recover a non-gratuitously conferred benefit set out in section 71 of Malaysia’s Contracts Act 1950. This attempt at legal transplant and modern restatement is made in the hope of injecting principle and clarity into the antique section with the eventual goal of reviving it for practical and modern use.

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Journal Articles

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Christopher C. French

The Insurability Of Claims For Restitution, Christopher French

Journal Articles

Does and should a wrongdoer’s liability insurance cover an aggrieved party’s claim for restitution (e.g., a claim for the disgorgement of ill-gotten gains)? This article answers those questions. It does so by first answering the question of whether claims for restitution are covered under the terms of liability insurance policies. Then, after concluding that they are, it addresses the question of whether claims for restitution should be insurable as a matter of public policy and insurance law theory. There are long-standing legal and equitable principles that, on the one hand, dictate that a wrongdoer should not be allowed to benefit …

The Insurability Of Claims For Restitution, Christopher French

Christopher C. French

The Insurability Of Claims For Restitution, Christopher French

Christopher C. French

Bitcoin And The Uniform Commercial Code, Jeanne L. Schroeder

Faculty Articles

Much of the discussion of bitcoin in the popular press has concentrated on its status as a currency. Putting aside a vocal minority of radical libertarians and anarchists, however, many bitcoin enthusiasts are concentrating on how its underlying technology – the blockchain – can be put to use for wide variety of uses. For example, economists at the Fed and other central banks have suggested that they should encourage the evolution of bitcoin’s blockchain protocol which might allow financial transactions to clear much efficiently than under our current systems. As such, it also holds out the possibility of becoming that …

Dismantling Democracy: Common Sense And The Contract Jurisprudence Of Frank Easterbrook, Deborah Post

Touro Law Review

No abstract provided.

Preface To The Gateway Thread, Deborah Post

Touro Law Review

No abstract provided.

Where's The Sense In Hill V. Gateway 2000?: Reflections On The Visible Hand Of Norm Creation, Shubha Ghosh

Touro Law Review

No abstract provided.

Cognition And Common Sense In Contract Law, Beverly Horsburgh, Andrew Cappel

Touro Law Review

No abstract provided.

Common Sense, Contracts, And Law And Literature: Why Lawyers Should Read Henry James, Lenora Ledwon

Touro Law Review

No abstract provided.

Of Contract, Culture, And The Code: Judge Easterbrook And The Cheyenne Indians, John M. Conley

Touro Law Review

No abstract provided.

Common Sense And Contract Law: Fear Of A Normative Planet?, Thomas Joo

Touro Law Review

No abstract provided.

The English East India Company And The Modern Corporation: Legacies, Lessons, And Limitations, Philip J. Stern

Seattle University Law Review

The English East India Company was first chartered in 1600, endured until the late nineteenth century, and, in a clever act of corporate resurrection, has even recently returned as a global, upmarket retail outlet selling fine foods and commemorative coins. It has also endured in the popular imagination and culture, churning out heroes and villains alike in film, television, and video games. The script writer for a forthcoming BBC miniseries, in which the East India Company stars as the prime antagonist, even noted recently that the Company was like “the CIA, the NSA, and the biggest, baddest multinational corporation on …

Remarks: The Declining Role Of Outside Counsel In Enhancing Ethical Conduct By Corporations, Jed S. Rakoff

Seattle University Law Review

Judge Rakoff’s remarks from the seventh annual Berle Symposium, held May 26–27, 2015 at Seattle University School of Law.

"Special," Vestigial, Or Visionary? What Banking Regulation Tells Us About The Corporation—And Vice Versa, Robert C. Hockett, Saule T. Omarova

Seattle University Law Review

A remarkable yet seldom noted set of parallels exists between modern U.S. bank regulation, on the one hand, and what used to be garden-variety American corporate law, on the other hand. For example, just as bank charters are matters not of right but of conditional privilege even today, so were all corporate charters not long ago. Just as chartered banks are authorized to engage only in limited, enumerated activities even today, so were all corporations restricted not long ago. And just as banks are subject to strict capital regulation even today, so were all corporations not long ago. In this …

Corporations In The Flow Of Culture, Greg Urban

Seattle University Law Review

As an anthropologist, coming out of three decades of research among indigenous Brazilian populations, I naturally saw modern for-profit business corporations as tribes—the collective bearers of adaptive cultural know-how. They appeared to me to be the entities housing the culture needed to produce commodities, to trade commodities on the open market, or both. I was also, of course, aware of the legal concept of the corporation as fictive person capable of owning property and having standing in court cases, which I thought of as akin to the anthropological corporation insofar as both recognized the group as social actor. However, it …

What Might Replace The Modern Corporation? Uberization And The Web Page Enterprise, Gerald F. Davis

Seattle University Law Review

The number of public corporations in the United States has been in decline for almost twenty years. Alternative forms of organization, from LLCs and benefit corporations to Linux and Wikipedia, provide robust competition to traditional corporations, while short-lived, project-based enterprises that assemble supply chains from available parts are increasingly cost effective. Yet our understanding of corporate governance has not kept pace with the new organization of the economy and we continue to treat the public corporation with dispersed ownership as the default form of doing business. Meanwhile, many of the corporations going public in recent years have abandoned traditional standards …

On The Existential Function Of The Social And The Limits Of Rationalist Accounts Of Human Behavior, Doug Mcadam

Seattle University Law Review

Rational choice theory has achieved widespread influence in a number of social science disciplines, most notably economics and political science. Given its prominent position within economics, it is not surprising that rational choice theory (and other rationalist perspectives) dominates theory and research on the corporation and decision-making by corporate actors. By contrast, however, the theory has failed to gain more than a toehold in sociology. Indeed, most sociologists are downright hostile to rational choice theory. When pressed to explain why, those in the discipline are very likely to complain that the perspective is “asociological”; that the theory posits an atomized …

The Theory Of Fields And Its Application To Corporate Governance, Neil Fligstein

Seattle University Law Review

My goal here is twofold. First, I want to introduce the theory of strategic action fields to the law audience. The main idea in field theory in sociology is that most social action occurs in social arenas where actors know one another and take one another into account in their action. Scholars use the field construct to make sense of how and why social orders emerge, reproduce, and transform. Underlying this formulation is the idea that a field is an ongoing game where actors have to understand what others are doing in order to frame their actions. Second, I want …

Benefit Corporations And Strategic Action Fields Or (The Existential Failing Of Delaware), Brett Mcdonnell

Seattle University Law Review

This Article analyzes the creation and growth of benefit corporations from the perspective of strategic action field theory in an attempt to shed some light upon both the subject and the methodology. It considers how the new legal field of benefit corporations responded to weaknesses in the existing fields of business and nonprofit corporations. Where major field participants such as directors, officers, employees, shareholders, or donors wish to pursue both financial and public-spirited goals that sometimes conflict without subordinating either type of goal to the other, both profit and nonprofit corporations may be unsatisfactory. Benefit corporations attempt not only to …