Commercial Law Commons^™

Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian

Faculty Publications

In this essay for a symposium on Professor Nathan Oman's new 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 …

Public Policy Under Article V(2)(B) Of The New York Convention: Is There A Transnational Standard?, Nivedita Chandrakanth Shenoy

Cardozo Journal of Conflict Resolution

This paper focuses on Article V(2)(b) of the Convention under which recognition and enforcement of an arbitral award may be refused if the competent authority in the country where recognition and enforcement is sought finds that "the recognition or enforcement of the award would be contrary to the public policy of that country." Article V is addressed to the States in which recognition and enforcement is sought and the language in Article V(2)(b) indicates an intention to provide ultimate control to that State to decide whether it will admit a foreign arbitral award into its legal order and use its …

China's Belt And Road Development And A New International Commercial Arbitration Initiative In Asia, Weixia Gu

Vanderbilt Journal of Transnational Law

The policy centerpiece of President Xi Jinping's foreign strategy, China's Belt and Road Initiative (BRI), ambitiously aspires towards expanding regional markets and facilitating regional cooperation. In context of a rising volume of cross-border transactions generated by the BRI, a robust legal framework on dispute resolution is required to forge investor confidence and enable BRI's integral goal of economic integration. In light of the substantial levels of harmonization among arbitration laws, arbitration is argued to constitute a primary vehicle of international commercial dispute resolution in an economically integrated Asia under the BRI. It is against this backdrop that the Article argues …

International Contracts, William P. Johnson, Sabin Volciuc-Ionescu, Catalin-Sergiu Dinu, Katya Logunov, Adrián Lucio Furman, Adam Rose, Willem Den Hertog

All Faculty Scholarship

This article identifies some of the key developments for international contracts that occurred in 2017 in a variety of jurisdictions, with particular attention given to commercial relationships that arise in connection with product distribution. Specifically, in this article we cover developments concerning international sales law (the CISG), choice of law in Romania, franchising in Canada, termination of commercial agency in Argentina, a court decision on scope of commercial agency law in the UK, and the creation of a new commercial court in the Netherlands.

Intellectual Property In Experience, Madhavi Sunder

Michigan Law Review

In today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters— they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that give fantasy owners …

The International Implications Of Wayfair, Reuven Avi-Yonah

Articles

In this article, Avi-Yonah argues that the Court’s recent decision in Wayfair has implications for the EU’s struggle with taxing the digital economy, as well as for the broader international effort to update international tax rules for the 21st century — that is, it bolsters the argument for dispensing with the 19th-century permanent establishment concept.

Is The First Amendment Obsolete?, Tim Wu

Faculty Scholarship

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce – rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on …

From Corporate Law To Corporate Governance, Ronald J. Gilson

Faculty Scholarship

In the 1960s and 1970s, corporate law and finance scholars gave up on their traditional approaches. Corporate law had become “towering skyscrapers of rusted girders, internally welded together and containing nothing but wind.” In finance, the theory of the firm was recognized as an “empty box.” This essay tracks how corporate law was reborn as corporate governance through three examples of how we have usefully complicated the inquiry into corporate behavior. Part I frames the first complication, defining governance broadly as the company’s operating system, a braided framework of legal and non-legal elements. Part II adds a second complication by …

Boilerplate’S False Dichotomy, James Gibson

Law Faculty Publications

The argument against enforcing boilerplate contracts (contracts that no one reads) seems clear. Indeed, if this were a court case we would say that the jury is in; the evidence against boilerplate is overwhelming. Yet the judge has yet to render judgment. Courts continue to enforce boilerplate terms, and even those scholars who have exposed boilerplate as an emperor with no clothes are reluctant to gaze upon its nakedness and condemn its use.

This reluctance originates in an assumption that pervades the boilerplate debate—namely, that courts and commentators alike view boilerplate as necessary to the modern transaction. When asked to …

User Damages And The Limits Of Compensatory Reasoning, Alvin W. L. See

Research Collection Yong Pung How School Of Law

The use of the term “user damages” in reference to compensatory damages is particularly problematic because it tends to overgeneralise the cases and conceal the importance of identifying the relevant loss in each case, which has implications on issues of proof, quantification and mitigation. This has contributed to the persistent neglect to squarely address issues of loss, which has in turn led to both over- and underestimation of the limits of compensatory damages. Once we look past the broad label, it becomes obvious that the cases purportedly unified by a common measure of loss tend to vary widely in facts …

Brief Of Intellectual Property Law Scholars As Amici Curiae In Support Of Neither Party, Westerngeco Llc V. Ion Geophysical Corp., No. 16-1011, Us Supreme Court, Timothy R. Holbrook, Ann Bartow, Dan L. Burk, Donald P. Harris, David C. Hricik, Amy L. Landers, Yvette Joy Liebesman, Lee Ann W. Lockridge, Jason Rantanen

All Faculty Scholarship

This amici curiae brief was filed on behalf of Intellectual Property Law Scholars in WesternGeco LLC v. Ion Geophysical Corp. in the U.S. Supreme Court. The question presented is:

"Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f)."

In RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), the Supreme Court articulated a two-step method for assessing the extraterritorial reach of a US statute:

1. …

Regulating Squeeze-Out Techniques By Controlling Shareholders: The Divergence Between Hong Kong And Singapore, Christopher C. H. Chen, Wei Zhang, Wai Yee Wan

Research Collection Yong Pung How School Of Law

Squeeze-out transactions are controversial as the controlling shareholders may expropriate the minorities’ shareholdings at unattractive prices. Existing scholarship has focused on the optimal approach towards regulating such transactions in the US and the UK, which have widely dispersed public shareholdings, but little attention is placed on jurisdictions with concentrated shareholdings, which may necessitate a different approach given that the prospects of expropriation are very high. This article fills the gap by examining Hong Kong and Singapore, which have concentrated shareholdings. Notwithstanding the fact that they have adapted their corporate and securities laws from the UK, Hong Kong ultimately provides greater …

Whistleblowers - A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham

Faculty Publications

The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its "most contentious provisions." As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being setfor possible repeal ofmajor parts of …

A Blueprint For A New American Trade Policy, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

In this paper, we offer ten recommendations on how to reform American trade policy. These reforms respond to three fundamental challenges: (1) our trade bureaucracy is poorly designed to craft and execute a trade policy that pursues multiple important ends, including economic and national security; (2) the domestic process through which the United States makes trade agreements provides preferential access to certain interest groups (capital and corporations) but not others; and (3) U.S. trade policy has failed to grapple with the distributional consequences of trade liberalization. The first set of reforms addresses the domestic trade policymaking process. These include restructuring …

Criminally Bad Management, Samuel W. Buell

Faculty Scholarship

Because of their leverage over employees, corporate managers are prime targets for incentives to control corporate crime, even when managers do not themselves commit crimes. Moreover, the collective actions of corporate management — producing what is sometimes referred to as corporate culture — can be the cause of corporate crime, not just a locus of the failure to control it. Because civil liability and private compensation arrangements have limited effects on management behavior — and because the problem is, after all, crime — criminal law is often expected to intervene. This handbook chapter offers a functional explanation for corporate criminal …

Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu

Faculty Scholarship

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 market-place as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the mar-ket theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and the-ory should account for values …

Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell

Faculty Scholarship

Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium …

Two Steps Forward, One Step Back: Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

Our past surveys have observed that frequent changes in the rules surrounding electronic payments-spurred by both regulation and enforcement actions create uncertainty and make forward progress difficult for many providers. This survey year is no exception: regulators have taken "two steps forward, one step back" on a number of fronts. This survey reports on (1) the proposal by the Office of the Comptroller of the Currency ("OCC") regarding "fintech" charters, which states have challenged in actions still pending- (2) changes to Regulation CC regarding remote check deposit and disputes over altered or forged checks-(3) the Supreme Court's decision in Expression …

Patent Law And Means-Plus-Function Claim Language: Where It Was, Where It Is (Post Williamson V. Citrix), And Where It Should Go In The Future, Joel Bradley

Georgia Law Review

In response to proliferating abuse of the functional
language allowances governing means-plus-function
patent claims in 35 U.S.C. § 112, the Federal Circuit, in
its recent decision Williamson v. Citrix, lowered the
presumption againstpatent claims arising under § 112.
Before Citrix, there existed a strongpresumption that the
scope of § 112 did not encompass claims not including
the specific language "means"-aloophole that drafters
employed to avoid being subject to § 112 limitations.
The Federal Circuit sought to remedy this loophole by
lowering the strength of the presumption and also by
shifting the focus of the presumption to language
analogous to "mean." …

Perfecting Bitcoin, Kevin V. Tu

Georgia Law Review

Bitcoin is still here. The price of Bitcoin rebounded-
setting a record high of $19,783.21 per Bitcoin in
December 2017 before dropping to a price of $8,690 per
Bitcoin as of March 22, 2018. Moreover, legal and
regulatory developments, like New York's BitLicense and
federal taxation of virtual currency as property, can be
viewed as legitimizing its use. The normalization of
virtual currency is evidenced by its increasingly
mainstream applications. Virtual currency can be used
as a faster and lower cost method of transferringfunds
domestically and internationally. A growing number of
retailers now accept virtual currency as a method of …