Commercial Law Commons^™

Ask The Professor: Will The Recent Supreme Court Case In Salman Result In More Cftc Enforcement Actions Charging Insider Trading?, Ronald H. Filler, Jerry W. Markham

Articles & Chapters

No abstract provided.

An International Model For Vicarious Liability In Franchising, Robert W. Emerson

Vanderbilt Journal of Transnational Law

Vicarious liability in the franchising context is a fundamental issue, both in the United States and foreign jurisdictions. With no all-encompassing, clear precedent in the United States, other nations' approaches may provide lessons for American lawmakers and the U.S. franchising community. Together, the division between jurisdictions and the absence of uniform standards for imposing vicarious liability on franchisors demonstrate the need for more comprehensible and predictable case law. This need can be met through an examination of European regulations, model laws, and guidelines, as well as the laws in a number of nations worldwide, which indicate a pathway to better …

You're It! Tag Jurisdiction Over Corporations In Canada, Tanya J. Monestier

Vanderbilt Journal of Transnational Law

In September 2015, the Supreme Court of Canada released its decision in Chevron v. Yaiguaje, a case that legal commentators had been keeping an eye on for years. The Chevron case has spanned several decades as well as several continents, and the enforcement action in Ontario was the latest in a series of procedural moves aimed at enforcing a nearly $10 billion Ecuadorian judgment against the oil giant. In Chevron, the plaintiffs sought to have the judgment enforced in Ontario against both Chevron (the judgment debtor) and Chevron Canada (a seventh-level indirect subsidiary of the judgment debtor). The Chevron case …

China's "Corporatization Without Privatization" And The Late Nineteenth Century Roots Of A Stubborn Path Dependency, Nicholas C. Howson

Vanderbilt Journal of Transnational Law

This Article analyzes the contemporary program of "corporatization without privatization" in the People's Republic of China (PRC) directed at China's traditional state-owned enterprises (SOEs) through a consideration of long ago precursor enterprise establishments--starting from the last Chinese imperial dynasty's creation of "government-promoted/supervised, merchant-financed/operated" (guandu shangban) firms in the latter part of the nineteenth century. While analysts are tempted to see the PRC corporations with listings on international exchanges that dominate the global economy and capital markets as expressions of "convergence," this Article argues that such firms in fact show deeply embedded aspects of path dependency unique to the Chinese context …

First Amendment Commercial Speech—Swipe Fees Mute Texas Merchants, Shelby T. Perry

SMU Law Review

No abstract provided.

One Country, Two Systems: Hong Kong's Unique Status And The Development And Growth Of Arbitration In China, Jiali (Keli) Huang

Cardozo Journal of Conflict Resolution

This Note evaluates the future of arbitration in China and Hong Kong as the two approach their twentieth year working toward reunification under the implications of the "one country, two systems" model, which was implemented in Hong Kong when Hong Kong's sovereignty was transferred back to China in 1997. First, this Note explains Hong Kong's unique identity, the factors that triggered the Umbrella Movement and the Fishball Revolution, and Hong Kong's current relationship with China. Second, this Note provides a broad overview of the development of arbitration in China. Third, this Note describes the arbitral history between China and Hong …

Combating Counterfeits: Using U.S. Law To Analyze The Potential Application Of China's Amended Trademark Law To Online Marketplaces, Kerrijane John

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Legislating The First Amendment: A Trio Of Recommendations For Lawmakers Targeting Free Expression, Clay Calvert

Cardozo Arts & Entertainment Law Journal

This Article offers three recommendations for lawmakers attempting to restrict expression that is presumptively protected by the First Amendment. The proposals include: (1) embracing a "prism of protection" through which all potential laws affecting expression are filtered prior to drafting; (2) mandating inclusion of sunset clauses in all statutes that may detrimentally impact free expression; and (3) adopting a comprehensive legislative oversight and review process for determining if an expired statute should be renewed, revised or abandoned. Although far from creating what Dean Roscoe Pound more than 100 years ago called a "science of legislation, " the proposals here nonetheless …

Reexamining The Doctrine Of Equitable Mootness In Light Of The Detroit Bankruptcy, Nicole Langston

Vanderbilt Law School Faculty Publications

Garnering debate, and sometimes harsh criticism, the doctrine of equitable mootness has been a focal point for academic debates among legal scholars for decades. "Unlike the constitutional doctrine of mootness, which bars consideration of appeals because no Article III case or controversy remains, the doctrine of equitable mootness is a pragmatic judicially-created principle, grounded in the notion that, with the passage of time after a judgment in equity and implementation of that judgment, effective relief on appeal becomes impractical, imprudent, and therefore inequitable. Applied principally in bankruptcy proceedings because of the equitable nature of bankruptcy judgments, equitable mootness is often …

The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Moralists have long criticized the theory of efficient breach for its advocacy of promise breaking. But a fully developed theory of efficient breach has an internal morality of its own. It argues that sophisticated parties contract for efficient breach, which in the long run maximizes everyone’s welfare. And the theory marks some breaches—those that are opportunistic, obstructive, or otherwise inefficient—as wrongs that the law should deter, as transgressions that should not be priced but punished. That internal morality, however, does not excuse the theory from moral scrutiny. An extended comparison to Jean Renoir’s 1939 film, La Règle du Jeu (“The …

The Anti-Spoofing Statute: Vague As Applied To The "Hypothetically Legitimate Treader", Catriona Coppler

American University Business Law Review

No abstract provided.

Economic Coercion And The Limits Of Sovereignty: Cuba’S Embargo Claims Against The United States, Jose Gabilondo

Faculty Publications

While scholars and journalists have written exhaustively about the property claims against Cuba certified by the U.S. Foreign Claims Settlement Commission, little attention has been paid to Cuba’s public international law claim against the United States for embargo losses caused by its unilateral sanctions. As a result of the normalization process between the two countries that began in 2014, resolving both the property claims and the embargo claim has become a diplomatic priority. While conceding the doctrinal limitations under existing authorities, this paper critically evaluates Cuba’s claim and presents strong legal support for it.

Public international law provides no exact …

“Captured Boards”: The Rise Of “Super Directors” And The Case For A Board Suite, Kobi Kastiel, Yaron Nili

Faculty Scholarship

Boards of public corporations in the United States are becoming increasingly independent, due to an effort to ensure that shareholders' interests in the company are protected. Yet, little attention has been given to the way that board members obtain and digest the information necessary for their independent decision-making. In this Article, we highlight how "independent" boards remain extremely dependent on management for the information they need to accomplish their role -- we classify as the "informational capture" of the board. We further describe how activist hedge funds identified this capture and are using what is commonly termed as "super directors" …

Corporate Officers As Agents, Deborah A. Demott

Faculty Scholarship

Although officers are crucial to corporate operations, scholarly and theoretical accounts tend to slight officers and amalgamate them with directors into a single category, "managers." This essay anchors officers within the common law of agency-as does black-letter law-which crisply differentiates officers from directors. Understanding that agency is central of the legal account of officers' positions and responsibilities is crucial to seeing why, like directors, officers are fiduciaries, but distinctively so, not as instances of generic "corporate fiduciaries." Officers, like directors, owe duties of loyalty, but also particularized duties of care, competence, and diligence. Additionally, officers' duties of performance encompass two …

The Responsibility Gap In Corporate Crime, Samuel W. Buell

Faculty Scholarship

In many cases of criminality within large corporations, senior management does not commit the operative offense — or conspire or assist in it — but nonetheless bears serious responsibility for the crime. That responsibility can derive from, among other things, management’s role in cultivating corporate culture, in failing to police effectively within the firm, and in accepting lavish compensation for taking the firm’s reins. Criminal law does not include any doctrinal means for transposing that form of responsibility into punishment. Arguments for expanding doctrine — including broadening of the presently narrow “responsible corporate officer” doctrine — so as to authorize …

Trusting Big Data Research, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Although it might puzzle or even infuriate data scientists, suspicion about big data is understandable. The concept doesn’t seem promising to most people. It seems scary. This is partly because big data research is shrouded in mystery. People are unsure about organizations’ motives and methods. What do companies think they know about us? Are they keeping their insights safe from hackers? Are they selling their insights to unscrupulous parties? Most importantly, do organizations use our personal information against us? Big data research will only overcome its suspicious reputation when people can trust it.

Some scholars and commentators have proposed review …

Inequality And The Mortgage Interest Deduction, Kyle Rozema, Daniel J. Hemel

Scholarship@WashULaw

The mortgage interest deduction is often criticized for contributing to after-tax income inequality. Yet the effects of the mortgage interest deduction on income inequality are more nuanced than the conventional wisdom would suggest. We show that the mortgage interest deduction causes high-income households (i.e., those in the top 10% and top 1%) to bear a larger share of the total tax burden than they would if the deduction were repealed. We further show that the effect of the mortgage interest deduction on income inequality is highly sensitive to the alternative scenario against which the deduction is evaluated. These findings demonstrate …

Regulatory Competition And The Market For Corporate Law, Ofer Eldar, Lorenzo Magnolfi

Faculty Scholarship

This article develops an empirical model of firms’ choice of corporate laws under inertia. Delaware dominates the incorporation market, though recently Nevada, a state whose laws are highly protective of managers, has acquired a sizable market share. Using a novel database of incorporation decisions from 1995- 2013, we show that most firms dislike protectionist laws, such as anti-takeover statutes and liability protections for officers, and that Nevada’s rise is due to the preferences of small firms.Our estimates indicate that despite inertia, Delaware would lose significant market share and revenues if it adopted protectionist laws. Our findings support the hypothesis that …

Brief Of Professors At Law And Business Schools As Amicus Curiae In Support Of Respondents, James D. Cox, J. Robert Brown Jr., Lyman Johnson, Lawrence W. Treece, Joan Macleod Heminway

Faculty Scholarship

This Amicus Brief was filed with the U.S. Supreme Court on behalf of nearly 50 law and business faculty in the United States and Canada who have a common interest in ensuring a proper interpretation of the statutory securities regulation framework put in place by the U.S. Congress. Specifically, all amici agree that Item 303 of the Securities and Exchange Commission's Regulation S-K creates a duty to disclose for purposes of Rule 10b-5(b) under the Securities Exchange Act of 1934.
The Court’s affirmation of a duty to disclose would have little effect on existing practice. Under the current state of …

Out Of Sight Out Of Mind: The Case For Improving Director Independence Disclosure, Yaron Nili

Faculty Scholarship

Director independence is a cornerstone of modern corporate law. Independent directors are entrusted with objectively and impartially monitoring management and ensuring that the interests of shareholders are well served. But translating the notion of independence into practice is far from a simple task, and while regulators and stock exchanges have tackled this elusive standard in different ways, for the most part their attempts have come up short. Currently, boards designate themselves as independent, and as this Article demonstrates empirically, they provide little information to investors regarding the considerations that supported their designation.

Regulating director independence is at heart a means …