Commercial Law Commons^™

Redefining Offer In Contract Law, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Litigation Financing Industry: Regulation To Protect And Inform Consumers, Martin J. Estevao

University of Colorado Law Review

Litigation financing companies ("LFCs") provide nonrecourse cash advances to plaintiffs in exchange for a portion of their lawsuits' potential future proceeds. While this arrangement allows individuals to continue to litigate without having to accept unjust settlement offers, desperate consumers are often forced to pay inequitable interest rates for the cases they finance. Because there is no absolute obligation to repay the LFC, the industry manages to avoid regulation under state interest rate ceilings for consumer loans. The few existing litigation financing laws do not restrict the interest rates that LFCs may charge, and even if some courts are willing to …

Virtual Uncertainty: Developments In The Law Of Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook

Articles by Maurer Faculty

This article surveys developments in the laws relating to virtual currencies and their regulation by the Department of Treasury's Financial Crimes Enforcement Network, and enforcement actions taken by the Departments of Treasury, Homeland Security and Justice against funds held in deposit accounts owned by Dwolla, Mt. Gox, and Mutum Sigillum, LLC, and DOJ's action against Liberty Reserve. It also analyses changes to the CFPB's cross-border remittance transfer regulations, and its first use of its preemption authority to preempt portions of the Maine and Tennessee gift card laws pertaining to expiry, and the first action by the FDIC against a bank …

Front Matter

Syracuse Journal of International Law and Commerce

No abstract provided.

How The Commander In Chief's "Call For Papers" Veils A Path Dependent Result Of Torture, Robert Bejesky

Syracuse Journal of International Law and Commerce

No abstract provided.

The Potential For Abuse In Developer-Controlled Community Development Districts, Paul D. Asfour

Barry Law Review

The scope of this article is to discuss Florida Community Development Districts and their potential for abuse and mismanagement on the part of the developers that control them through the developer elected boards of supervisors (boards). This article will discuss the various statutes that control both the districts and their respective boards. In addition, this article will recommend changes to certain sections of those statutes to better protect the residents, who are subject to the districts’ control, from developers who put profit and personal gain above the best interests of the districts they control and the districts’ residents, who have …

Fifty: Shades Of Grey--Uncertainty About Extrinsic Evidence And Parol Evidence After All These Ucc Years, David G. Epstein

Law Faculty Publications

Lawyers and judges have been working with the Uniform Commercial Code for about fifty years. Most states adopted the Uniform Commercial Code between 1960 and 1965.

Notwithstanding these years of experience and the importance of certainty to parties entering into commercial transactions, there is still considerable confusion over the use of extrinsic evidence, parol evidence and the parol evidence rule in answering the questions (1) what are the terms of a contract for the sale of goods and (2) what do those contract terms mean. No "black and white rules"-just various "shades of grey."

This essay explores the reasons for …

Close The Loophole: The Marketplace Fairness Act And Its Likely Passage, Bryan J. Soukup

Law Student Publications

In this stagnant economy, brick and mortar retailers (brick and mortars) are voicing increasingly strong objections to the current state of online tax collection considering they must always collect state sales tax. Due in part to this uneven playing field, brick and mortars lose thousands of dollars a day in sales to online retailers. States, too, are losing revenue in the form of unpaid use taxes and, like the brick and mortars, are proponents of legislation allowing states to require online retailers to collect sales tax from their customers. Proponents of federal legislation on this issue point to the fact …

When Making Money And Making A Sustainable And Societal Difference Collide: Will Benefit Corporations Succeed Or Fail?, Joseph Karl Grant

Journal Publications

A quiet, but important, corporate revolution is afoot in the United States. Many of us, laypersons and corporate scholars alike, have not even noticed. Recently, Arizona, Arkansas, California, Colorado, Hawaii, Illinois, Maryland, Massachusetts, Louisiana, Nevada, New Jersey, New York, Oregon, Pennsylvania, South Carolina, Vermont, Virginia, and Washington, D.C. became the first states in this country to pass legislation for the creation of a new type of corporation--the benefit corporation.

This Article explores benefit corporations as a tool entrepreneurs can use to make money, foster environmental sustainability, and create societal improvement.

Protect Yourself: Why The Eleventh Circuit's Approach To Sanctions For Protective Order Violations Fails Litigants, Adam J. Fitzsimmons

Georgia Law Review

Litigants commonly struggle to balance the need to comply with discovery requests and the desire to protect valuable trade secrets. Protective orders to help strike that balance. Questions arise, however, when one of the parties violates that protective order and discloses the opponent's confidential information. Chiefly, what remedies are available for a party whose invaluable intellectual property has been disclosed? At least one circuit has held the most common sanction, payment of attorney's fees, is unavailable for a violation of a protective order. Generally, Federal Rule of Civil Procedure 37(b)(2) governs sanctions for violations of discovery orders, but the text …

Bretton Woods 1.0: A Constructive Retrieval For Sustainable Finance, Robert C. Hockett

Cornell Law Faculty Publications

Global trade imbalance and domestic financial fragility are intimately related. When a nation runs persistently massive current account deficits to maintain global liquidity as has the United States now for decades, its central bank effectively relinquishes exchange rate flexibility to become a de facto central bank to the world. That in turn prevents the bank from playing its essential credit-modulatory role at home, at least absent strict capital controls that are difficult to administer and have long been taboo. And this can in turn render credit-fueled asset price bubbles and busts all but impossible to prevent, irrespective of the nation's …

Hedge Fund Governance, Houman B. Shadab

Articles & Chapters

This Article provides the first comprehensive scholarly analysis of the internal governance of hedge funds. Hedge fund governance consists of the funds' underlying legal regime and the practices they adopt in response to lacking permanent capital and to reduce agency costs. Hedge fund governance is important because better governance can improve investor returns and help managers raise and retain capital. I argue that hedge fund governance is best understood as a type of responsive managerialism. It is a type of managerialism because applicable law and contracting structures give managers uniquely wide-ranging control over the fund and its operations. Hedge fund …

A Tale Of Two Lawyers: How Arbitrators And Advocates Can Avoid The Dangerous Convergence Of Arbitration And Litigation, Neal M. Eiseman, John E. Bulman, R. Thomas Dunn

Cardozo Journal of Conflict Resolution

When modern arbitration became popular in the United States in the 18th and 19th centuries, courts viewed it as a threat to their exclusive powers. Over time, that mindset has changed dramatically. The passage of the Federal Arbitration Act ("FAA") in 1926 embraced a federal policy strongly favoring arbitration as a method of relieving court congestion and providing parties with a speedier, less costly means of resolving disputes. Thereafter, agreements to arbitrate found their way into many standard form agreements and business contracts as arbitration became accepted as a bona fide alternative to litigating in court. Today, as litigators can …

Conflicts Between Arbitration Agreements And Arbitration Rules, Steven C. Bennett

Cardozo Journal of Conflict Resolution

Arbitration is a "creature of contract." As a result, under the Federal Arbitration Act ("FAA") and equivalent state laws, both the obligation to arbitrate and the specific terms under which arbitration will occur are typically determined by the agreement of the parties. In many instances, parties choose to adopt the rules of an arbitration-sponsoring organization such as the American Arbitration Association ("AAA"). But parties are also free to adopt their own ad hoc procedures (sometimes based on elements of the rules of an arbitration-sponsoring organization) or to use the rules of an arbitration-sponsoring organization as a base and modify those …

Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French

Faculty Scholarship

In his recent article, Professor Richard Squire offers a provocative theory in which he claims the underlying claimants in shareholder litigation against corporate policyholders are overcompensated due to what he describes as “cramdown” settlements, under which insurers are forced to settle due to the “duty to contribute” that arises under multi-layered directors and officers (“D&O”) insurance programs. He also offers a novel idea regarding how this problem could be fixed by what he refers to as “segmented” settlements in which each insurer and the policyholder would be allowed to settle separately and consider only its own interests in doing so. …

Constraining Global Corporate Power: A Short Introduction, Peter J. Spiro

Vanderbilt Journal of Transnational Law

This Essay sets out three models of institutional constraint of global corporate power. First is private lawmaking, in which the non-state power of firms is countered by the non-state power of civil society organizations. Second are nonlegalized processes under public institutional umbrellas, in which public entities host standards-setting mechanisms. Finally, there is the prospect of fully legalized regimes, the equivalent of global regulation. These models have been emerging bottom-up rather than as part of a grand scheme. After describing the three models, this Essay considers the future of global regimes aimed at constraining corporate conduct. Distinct institutional approaches could persist. …

Preparing "Main Street" Lawyers: Practicing Without Big Firm Experience, Lisa Reel Schmidt, Steve Garland, Robert Statchen

Faculty Scholarship

This Article is the transcript of a panel presented at Emory’s Third Biennial Conference on Transactional Education. The panelists advance two premises: First, that law schools need to teach transactional skills because many students will either focus on transactional law or practice general law where transactional skills are necessary; and second, that some of the transactional skills the schools teach should be specific to main street lawyering because a number of students will be main street lawyers. The panelists explain how the transactional skills necessary for main street lawyering differ from skills needed in litigation and big law firms. They …

The Lawyer's Toolbox: Teaching Students About Risk Allocation, Dana Malkus, Scott Stevenson, Eric J. Gouvin, Usha Rodriques

Faculty Scholarship

This Article is the transcript of a panel presented at Emory’s Third Biennial Conference on Transactional Education. The panel focuses on techniques for teaching risk allocation as part of transactional skills classes. The panelists describe their approaches to teaching risk allocation, from syllabus design to final evaluations. How can a professor help students to understand the basic concepts of risk, the role risk plays in business and legal decisions, and how they can help clients manage risk. The techniques for teaching risk allocation include hypotheticals, visual aids, and hands-on assignments. The panelists each take their students down a different path …

Finding Reality In The Right Of Publicity, Lindsay Korotkin

Cardozo Law Review de•novo

This Note takes a critical look at the right of publicity in the context of the growth of the reality television industry and, for strong policy reasons, proposes a broad fair use defense to limit reality television stars’ right of publicity claims. Part I traces the formulation of the right to privacy at common law and the development of the right of publicity as a right distinct from privacy. Part II discusses whom the right of publicity protects, what reality television is, and how reality television stars are different from talent-based celebrities. Part III examines how broad publicity protection can …

Should New Zealand Adopt Say On Pay?, Randall Thomas, Susan Watson

Vanderbilt Law School Faculty Publications

No abstract provided.