Commercial Law Commons^™

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land & Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution …

Law School News: 'Marketplace Of Ideas' Imperiled (04-05-2018), David A. Logan

Life of the Law School (1993- )

No abstract provided.

Corporate Social Responsibility And Social Media Corporations: Incorporating Human Rights Through Rankings, Self-Regulation And Shareholder Resolutions, Erika George

Utah Law Faculty Scholarship

This article examines the emergence and evolution of selected ranking and reporting frameworks in the expanding realm of business and human rights advocacy. It explores how indicators in the form of rankings and reports evaluating the conduct of transnational corporate actors can serve as regulatory tools with potential to bridge a global governance gap that often places human rights at risk. This article examines the relationship of transnational corporations in the Internet communications technology sector (ICT sector) to human rights and the risks presented to the right to freedom of expression and the right to privacy when ICT sector companies …

Article 2 Of The Ucc: Some Thoughts On Success Or Failure In The Twenty-First Century, Robert A. Hillman

Cornell Law Faculty Publications

The volume of litigation on Uniform Commercial Code Article 2, along with the rise of e-commerce, raises the question of whether Article 2 can succeed in the twenty-first century. There are, of course, many ways to measure success or failure of legislation. One strategy, applied here, is to evaluate Article 2 against the UCC’s ambitious “purposes and policies” of simplifying, clarifying, and modernizing commercial law, supporting commercial practices, and promoting uniformity of the law among the states. In doing so, I ask three questions that help determine when particular sections of Article 2 impede these goals and are ripe for …

Dilema Komersialisasi Pengetahuan Tradisional Dalam Sistem Hukum Indonesia: Antara Perlindungan Dan Pembagian Manfaat, Miqdad Abdullah Siddiq

Jurnal Hukum & Pembangunan

The commercial utilization of Traditional Knowledge is intended for the benefit of the national economy, especially for the welfare of indigenous peoples as the owners of Traditional Knowledge. Indonesia, which has many indigenous peoples, also has a widevariation of Traditional Knowledge. With the opening of opportunities for parties other than the owners of Traditional Knowledge to utilize the Traditional Knowledge, setting the regulatory governing the commercialization of Traditional Knowledge becomes increasingly strategic. So that the management of the protectionfor Traditional Knowledge in Indonesia has become a very urgent need. In the absence of adequate Traditional Knowledge protection regulations, Traditional Knowledge-related …

Rise Of The Machines: The Legal Implications For Investor Protection With The Rise Of Robo-Advisors, Bret E. Strzelczyk

DePaul Business & Commercial Law Journal

This note examines the complex state of financial innovation and preexisting investor protection regimes, mainly the Investment Advisers Act of 1940, which do not properly address the question of whether a robo-advisor platform serving as registered investment advisers satisfies the fiduciary standard elements laid out in the Act. This article examines the current regulation from the Department of Labor, the Financial Industry Regulatory Authority, and the Securities and Exchange Commission and addresses the inadequacies in each regulatory entity’s policy prescription. This article contends that robo-advisors can not act as a fiduciary for several reasons – primarily because these platforms do …

Consumers In Shock: How Federal Government Overregulation Led Mylan To Acquire A Monopoly Over Epinephrine Autoinjectors, Nicole O'Toole

DePaul Business & Commercial Law Journal

The philosophy that federal government intervention increases costs and decreases options and values available to consumers can be analyzed across a plethora of markets. This Note will focus on the epinephrine autoinjector market, specifically looking at Mylan's epinephrine autoinjector known as the EpiPen. Today, the EpiPen is considered the “Kleenex” of epinephrine autoinjectors as it is estimated to control over ninety percent of the market share. From a Darwinist perspective it would appear that because the EpiPen controls most of the market, it must be the most superior product available to consumers. However, as this note will cover, this is …

Over- And Under-Funding: Crowdfunding Concerns Of The Parties Involved, Tanya M. Marcum J.D., Eden S. Blair Phd

DePaul Business & Commercial Law Journal

Financial collaboration for new business ventures or the expansion of existing businesses utilizing the internet and social media is expanding. One area of growth is in the area of crowdfunding. Crowdfunding or crowdsourcing is known as collaborative funding using the internet to attract many investors to a new business venture.

Revisiting Sham Trusts: Common Intention, Estoppel And Illegality, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article examines the prevailing view that, to find a sham trust, the settlor’s shamming intention must be shared by the trustee. This common intention requirement, it is argued, overprotects the trustee and the beneficiary, and suffers from inconsistent application to conceptually identical cases. Moreover, where the sham is concocted for the perpetuation of an illegal purpose, the requirement may contradict the operation of the illegality doctrine. This article proposes that the two doctrines ought to align and that any prejudice to an innocent trustee or beneficiary can be addressed with more specific solutions such as a change of position …

Construing A Treaty Against State Parties' Expressed Intentions: Sanum Investments Ltd V Government Of The Lao People’S Democratic Republic, Mahdev Mohan, Siraj Shaik Aziz

Research Collection Yong Pung How School Of Law

The Singapore Court of Appeal’s decision in Sanum Investments Ltd v Government of the Lao People’s Democratic Republic was a landmark one in several respects. A key aspect of this decision though may appear controversial at first blush – that is, the apex court placed less weight on the express views of state parties, even though Singapore itself was not a party to the relevant bilateral investment treaty (“BIT”). While doing so was admittedly “counter-intuitive”, the Court of Appeal did not set out to construe the BIT against the intentions of the contracting states. Rather, much turned on the critical …

The Shifting Tides Of Merger Litigation, Randall Thomas, Matthew D. Cain, Jill Fisch, Steven D. Solomon

Vanderbilt Law School Faculty Publications

In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award. We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger …

Not So Good: The Classification Of “Smart Goods” Under Ucc Article 2, Chadwick L. Williams

Georgia State University Law Review

Refrigerators can now tweet. Today, almost sixty years after the states widely adopted the Uniform Commercial Code (UCC), the line between goods and services is more blurred than ever. When the UCC was drafted, a good was the simple opposite of a service. A good was something “movable” and tangible, and a service was not. Article 2 of the UCC, which governs sales, limits its scope to goods.

However, because Article 2 was drafted long before the proliferation of so-called “smart goods,” courts continuously struggle to determine when a smart good falls within Article 2’s scope. Courts have developed different …

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 …