Commercial Law Commons^™

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.

The Problem Of Unreasoned Reasoned Awards And The Judicial Failure To Remedy It: Statutory And Rule Solutions, John B. Mcarthur, Mark Travis

American University Business Law Review

American arbitrators have long been choosing between two common forms of awards: "reasoned awards" and "standard awards" with no reasons enumerated. Yet neither arbitration rules nor statutes define "reasoned award." This lack of guidance has gotten arbitration in trouble and threatens its ability to satisfy users' needs.

Rowling Record 2025, The Robert B. Rowling Center For Business Law & Leadership

Rowling Record

No abstract provided.

The Failings Of Post-War Japanese Antitrust Reforms, Gregory Hayes

Northwestern Journal of International Law & Business

This paper discusses the antitrust reform measures taken during the occupation of Japan following the end of World War II. These antitrust reforms included the dissolution of the zaibatsu business groups and the adoption of the Antimonopoly Act. However, the trust-busting and antitrust measures taken by Japan failed to prevent the eventual rise of keiretsu business groups and lower the concentration of corporate ownership in Japan. The primary reasons behind this failure were the inability of the reformers to fully dismantle the zaibatsu business groups and the changing priorities of the reformers due to the growing threat of the spread …

Judging Judiciaries: How Sticky Defaults, Status Quo Bias, And The Sovereign Prerogative Influence The Perceived Legitimacy Of The New International Commercial Courts, S. I. Strong

Faculty Articles

Forum shopping is routinely criticized as contrary to procedural justice. However, recent years have seen an increasing number of jurisdictions engaged in the process of forum selling, in which countries actively seek to bring lucrative litigation business to their national judicial systems. One of the most common types of forum selling involves the creation of new international commercial courts designed to increase a nation’s competitiveness in the global litigation market.

Most studies of the new international commercial courts have focused on how procedural innovations adopted by different courts are likely to affect party choice. While useful, these analyses assume that …

Confronting The Duty To Capitalize In Veil-Piercing, Douglas C. Michael

Law Faculty Scholarly Articles

In corporate law, the doctrine of “piercing the corporate veil” allows courts to hold shareholders personally liable for corporate obligations. The doctrine—which now also applies to entities other than corporations—has been widely criticized as imprecise and unworkable. I respond to that criticism in the area of veil-piercing law which remains most intractable—the case of the tort victim who remains unsatisfied after exhausting corporate assets. Although most commentators have eschewed talk of any duty owed by the business owner to vest the business with sufficient assets, I argue that courts and legislatures should recognize—confront—such a duty. I look to negligence law …

The Gadfly Of The Dormant Commerce Clause: The Persistence Of The Extraterritoriality Doctrine After National Pork Producers Council V. Ross, Karl Morton Badger

Mitchell Hamline Law Review

No abstract provided.

Under New Management?: Sovereign Wealth Funds And Their Ownership Of U.S. Sports Teams, Benjamin K. Moyer

Dickinson Law Review (2017-Present)

In October 2021, Saudi Arabia’s sovereign wealth fund (“SWF”) successfully purchased the English Premier League soccer team Newcastle United F.C. for $400 million. With this transaction, Saudi Arabia joined fellow Gulf countries, Qatar and the United Arab Emirates, in owning a major European soccer team through one of its state’s SWF. States have long used their SWFs to invest in foreign markets, but recent trends have transformed these originally strictly financial vehicles into political tools. Since the 2007–2008 financial crisis, many states have used their SWFs not only to produce financial gains but also to generate soft power through political …

The Last Line Of A Weak Defense: The Waning Force Of The Ncaa's Procompetitive Defense Of Amateurism In § 1 Compensation Challenges, Morgan Small

American University Law Review

The Supreme Court in NCAA v. Alston determined that the NCAA’s education-related compensation restrictions violated § 1 of the Sherman Act. The Court, however, did not scrutinize the legality of the NCAA’s athletic-related compensation restrictions, begging the question: when will the Supreme Court, if ever, stop presuming the validity of the NCAA’s athletic-related compensation restrictions because they allegedly ensure that college athletics remain amateur?

This Comment examines this question in further detail by cataloging the Court’s antitrust jurisprudence involving § 1 compensation challenges and what this jurisprudence may spell for future litigation in a college athletics landscape increasingly defined by …

Color And Cultural Functionality, Felicia Caponigri

American University Law Review

Can a brand own a color? Trademark says yes, with some caveats. A brand can own a color so long as the color points to the brand as the origin of the goods and is non-functional. One of these caveats, functionality, is increasingly relevant because of color's value for our pop culture. Color is a common cultural resource, and whether it is a pink Barbiecore summer or a BRAT green summer, the colors brands remix to communicate the origins of their goods become a part of consumers' expressions of identity and their links to communities and help embody consumer values. …

The Unconscionably Short Warranty, Marie T. Reilly

Faculty Scholarship

A typical consumer product warranty covers products for defects that appear before the warranty period expires. If the manufacturer warrants a vehicle for five years or 60,000 miles, whichever occurs first, problems that require repairs after the warranty period expires are outside the warranty and, therefore, the buyer's problem. Advocates for consumers have developed a theory to escape the claim-barring consequence of expiration of the warranty period. They have argued with some success that the warranty period that would otherwise bar their claim is unconscionable and thus unenforceable under Uniform Commercial Code ("UCC") section 2-302. The warranty period term, they …

Celebrity Trademark Overload: The Rising Issue Of Excessive Registrations And Reverse Confusion, Lola-Marie Pyros

Touro Law Review

Celebrities use trademark law not only to protect their brands, but also to stake claims on a vast range of potential marks through intent to use (“ITU”) applications—often before any real commercial plan exists. This practice allows celebrities to reserve rights ranging from viral catchphrases to their children’s names which crowds the trademark register, delays legitimate filings by smaller businesses, and forces challengers into costly legal battles. A separate but equally troubling issue arises when a celebrity’s brand overshadows a preexisting weaker mark. In “reverse confusion” cases, courts often focus on whether the celebrity acted willfully, ignoring the fact that …

Design Matters: Modernizing The Federal Arbitration Act To Safeguard Party Autonomy, Sarah R. Cole

Cardozo Journal of Conflict Resolution

Arbitration is a creature of contract. And it is basic arbitration law that arbitrators must respect contracting parties’ intent. The Federal Arbitration Act’s 100th anniversary offers an ideal moment to reaffirm this principle: arbitrators resolving commercial disputes should honor parties’ intent while preserving arbitration’s core values: efficiency, finality, and autonomy. Unfortunately, routine judicial deference to arbitration decisions often undermines parties’ intent as expressed through party design of the arbitration process. In response to this issue, this Article proposes amending the Federal Arbitration Act (FAA) to empower courts to safeguard two common arbitral party directives: limits on arbitrators’ remedial authority and …

Virtual Currency As Real Currency, Jeffrey A. Maine

Faculty Publications

Convertible virtual currency is increasingly equated with the notion of real currency. Indeed, the increased acceptance of virtual currency as a payment method among retailers and consumers, the evolution of new types of virtual currency that alleviate price volatility, and the recent expansion of foreign country initiatives confirm the strong trajectory toward virtual currency’s function as a transactional currency. Yet, the tax system continues to classify all forms of virtual currency as “property,” and not “currency,” which results in immediate taxation every time someone buys something with virtual currency. This Article argues that the adopted tax treatment of virtual currency …

Delaware Supreme Court Rules That Officer Exculpation Amendments Do Not Require Separate Class Vote Of Non-Voting Shares, Robert S. Reder, Ricky Bayon-Barrera

Vanderbilt Law School Faculty Publications

Before 2022, Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") permitted corporations, via amendments to their corporate charters, to exculpate corporate directors from personal liability for breaches of their duty of care ("& 102(b)(7)"). Delaware amended & 102(b)(7) in 2022 to allow corporations to extend exculpation to officers (the "2022 Amendment").

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Publications

No abstract provided.

Adding A Data Disclosure Requirement To The Faa: An Overdue Reform, Richard Frankel

American University Business Law Review

Artificial intelligence (AI) and predictive analytics are transforming almost every sector of society. The field of dispute resolution is no exception to this trend. Lawyers in emerging disputes are hungry for data about arbitrators and judges, prior decisions, similar disputes, and anything else they can get their hands on.

Towards The Faa's Next Century: Clarifying Disclosure Requirements In Arbitration, Andrea K. Schneider, Brian Farkas

American University Business Law Review

In the summer of 2024, all eyes were on Paris. Thousands of athletes from over 200 countries competed in over 300 sports. The Olympics is nationalism at its healthiest: cheering for one's own nation, while recognizing the fundamentally transnational human values of pluralism, diversity, and aspiration.

Facilitating Trust Arbitration By Amending The Federal Arbitration Act, S. I. Strong

American University Business Law Review

Over the last few years, a new dispute resolution procedure has burst onto the domestic and international stage: trust arbitration, which allows an arbitration provision located in a trust to trigger arbitration of "internal" trust disputes arising either between trust beneficiaries or between beneficiaries and the trustee.

Corporate Personhood, Corporate Rights, And The Contingency Of Corporate Law, Christopher Bruner

Scholarly Works

Corporate personhood and corporate rights are co-constitutive in nature, meaning that they are mutually constructed – there is no singular, one-way causal path between a conception of corporate personhood and a conception of corporate rights. Consequently, modes of reasoning that purport to deduce the substance and extent of corporate rights from the mere fact of corporate personhood are logically circular. Although the relationship between corporate personhood and corporate rights is real and significant, this relationship cannot, in and of itself, comprehensively specify the content of corporate rights; their substance can only be specified by reference to external normative criteria. The …