Culpable Participation In Fiduciary Breach,
2016
Duke Law School
Culpable Participation In Fiduciary Breach, Deborah A. Demott
Faculty Scholarship
This essay makes a case for the salience of tort law to fiduciary law, focusing on actors who culpably participate in a fiduciary's breach of duty, whether by inducing the breach or lending substantial assistance to it. Although the elements of this accessory tort are relatively settled in the United States, how the tort applies to particular categories of actors-most recently investment bankers who serve as M&A advisors-provokes controversy. The paper also explores the less developed terrain of primary actors who breach governance duties that are not fiduciary obligations because the entity's organizational documents eliminate fiduciary duties, as Delaware law …
25 Years, Where Are We Now? Global Trade & Sovereign Debt,
2016
Duke Law School
25 Years, Where Are We Now? Global Trade & Sovereign Debt, Steven L. Schwarcz
Faculty Scholarship
No abstract provided.
Contract Development In A Matching Market: The Case Of Kidney Exchange,
2016
Duke Law School
Contract Development In A Matching Market: The Case Of Kidney Exchange, Kimberly D. Krawiec, Wenhao Liu, Marc L. Melcher
Faculty Scholarship
We analyze a new transplant innovation — Advanced Donation, referred to by some as a kidney “gift certificate,” “layaway plan,” or “voucher — as a case study offering insights on both market and contract development. Advanced Donation provides an unusual window into the evolution of the exchange of a single good — a kidney for transplantation — from gift, to simple barter, to exchange with a temporal separation of obligations that relies solely on trust and reputational constraints for enforcement, to a complex matching market in which the parties rely, at least in part, on formal contract to define and …
The Will As An Implied Unilateral Arbitration Contract,
2016
Santa Clara University School of Law
The Will As An Implied Unilateral Arbitration Contract, E. Gary Spitko
Faculty Publications
A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator’s provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by her contest, seeks to increase her inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that the will is not a contract and the opposition to enforcement of …
Need For Informed Consent In The Age Of Ubiquitous Human Testing,
2016
Loyola Marymount University and Loyola Law School
Need For Informed Consent In The Age Of Ubiquitous Human Testing, Caitlyn Kuhs
Loyola of Los Angeles Law Review
No abstract provided.
Zygote Zeitgeist: Legal Complexities In The Expanding Practice Of Embryo Donation,
2016
Loyola Law School, Los Angeles
Zygote Zeitgeist: Legal Complexities In The Expanding Practice Of Embryo Donation, Noah Geldberg
Loyola of Los Angeles Law Review
In recent decades, individuals and couples facing the issue of infertility have been able to achieve parenthood through advances in assisted reproductive technology (ART), such as embryo donation. This Article evaluates the current law governing embryo donation, considers the different approaches courts and legislatures have taken to regulate embryo donation, and advocates for an approach that best balances the policy arguments underlying those approaches. Ultimately, this Article argues that contract law, rather than laws surrounding adoption, should govern embryo donations. This Article further argues that state legislatures should clarify the effectiveness of contract law within the field of embryo donation …
Modernizing Informed Consent: Expanding The Boundaries Of Materiality,
2016
Loyola University Chicago, School of Law
Modernizing Informed Consent: Expanding The Boundaries Of Materiality, Nadia N. Sawicki
Faculty Publications & Other Works
Informed consent law’s emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician’s personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, …
Contracts: A Question Of Consideration: Medical Staff Bylaws As An Enforceable Contract—Medical Staff Of Avera Marshall Regional Medical Center V. Avera Marshall,
2016
Mitchell Hamline School of Law
Contracts: A Question Of Consideration: Medical Staff Bylaws As An Enforceable Contract—Medical Staff Of Avera Marshall Regional Medical Center V. Avera Marshall, Alexander Hsu
Mitchell Hamline Law Review
No abstract provided.
Panel 1: Issues In The U.S. For Chinese Businesses,
2016
Schiff Hardin LLP
Panel 1: Issues In The U.S. For Chinese Businesses, Cindy Yang, Jamie D. Underwood, Mark Cohen
Cardozo Journal of International and Comparative Law
The symposium examines the bidirectional intellectual property (IP) challenges between the U.S. and China, highlighting that while Chinese businesses face significant IP issues in the U.S., American companies also encounter complexities in China. The discussion emphasizes the evolving nature of IP litigation in both countries, with a focus on fashion and brand protection. Panelists provide insights into strategies for navigating these challenges, including the use of design patents, trademarks, and trade dress, as well as the role of administrative bodies like the U.S. International Trade Commission (ITC).
Contracting Trademark Fame?,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
Contracting Trademark Fame?, Leah Chan Grinvald
Scholarly Works
Contracts abound in today's highly digitized society. Did you snap a pic and upload it to Instagram? You entered into a contract. Did you check your friends' statuses on Facebook? Yep, you also entered into a contract. Did you know you entered into a contract or even if you were aware of this fact, did you know the terms to which you agreed? Probably not. But despite this, we are all obligated by these contracts, so long as we are somehow made aware that we could read the terms at some point if we had the inclination to do so. …
The Ethics Of Non-Traditional Contract Drafting,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
The Ethics Of Non-Traditional Contract Drafting, Lori D. Johnson
Scholarly Works
A new generation of contract drafters faces increasing commentary advising them to change traditional contract terms into plain language constructions. Yet, traditional, tested terms have consistent meanings, and when these meanings benefit client objectives, advocates should consider retaining them. This article posits that failing to do so can impact a lawyer’s ethical obligations. Specifically, an attorney’s duties of competence, allocation of authority, diligence, and communication under the Model Rules of Professional Conduct require careful thought about modernizing tested contract terms. These duties require the ethical drafter to research whether the use of a traditional, tested term advances a client goal …
Hurrah For The Consumer Financial Protection Bureau: Consumer Arbitration As A Poster Child For Regulation,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
Hurrah For The Consumer Financial Protection Bureau: Consumer Arbitration As A Poster Child For Regulation, Jean R. Sternlight
Scholarly Works
Drawing on economic, psychological and philosophical considerations, this Essay considers whether consumers should be "free" to "agree" to contractually trade their opportunity to litigate in a class action for the opportunity to bring an arbitration claim against a company. The Essay suggests that by looking at the CFPB's regulation through these three lenses, one sees that the regulation is desirable—even a poster child—for the potential value of regulation when market forces are not sufficient to protect individual or public interests.
Kcon Xi Essay Introduction: Compulsory Arbitration And Adhesion Contracts In The Age Of Donald Trump,
2016
University of Houston Law Center
Kcon Xi Essay Introduction: Compulsory Arbitration And Adhesion Contracts In The Age Of Donald Trump, Peter Linzer
St. Mary's Law Journal
Remarks of Peter Linzer on receiving the Lifetime Achievement Award from the 11th International Contracts Conference (K-CON XI). Revised after Election Day, 2016.
The Cfpb Anti-Arbitration Proposal: Let's Just Give Arbitration A Chance.,
2016
St. Mary's University School of Law
The Cfpb Anti-Arbitration Proposal: Let's Just Give Arbitration A Chance., Ramona L. Lampley
St. Mary's Law Journal
Abstract forthcoming.
An App For Third Party Beneficiaries,
2016
University of Richmond
An App For Third Party Beneficiaries, Alexandra W. Cook, J. Kyle Lowder, Michelle Sonntag
Law Student Publications
Every year, more than 100 reported court opinions consider the question of whether an outsider can sue for damages under a contract made by others-in part because the law is so ambiguous. While contract enforcement by a third party is controlled largely by the facts of the particular case, it also materially depends upon the relevant legal standards. At present, not just the standards, but also the reasons for these standards, are unclear. Eighty years ago, Lon Fuller, a professor teaching contracts at a then-Southern law school, and William Perdue, a student at that school, significantly clarified and improved decision …
Sovereign Debt: Now What?,
2016
Georgetown University Law Center
Sovereign Debt: Now What?, Anna Gelpern
Georgetown Law Faculty Publications and Other Works
The sovereign debt restructuring regime looks like it is coming apart. Changing patterns of capital flows, old creditors’ weakening commitment to past practices, and other stakeholders’ inability to take over, or coalesce behind a viable alternative, have challenged the regime from the moment it took shape in the mid-1990s. By 2016, its survival cannot be taken for granted. Crises in Argentina, Greece, and Ukraine since 2010 exposed the regime’s perennial failures and new shortcomings. Until an alternative emerges, there may be messier, more protracted restructurings, more demands on public resources, and more pressure on national courts to intervene in disputes …
El Nuevo Pacto Protestante: La Influencia De La Teología Protestante En El Derecho De Bienes Y Contratos,
2016
University of Oklahoma
El Nuevo Pacto Protestante: La Influencia De La Teología Protestante En El Derecho De Bienes Y Contratos, Brian Mccall
Faculty Books and Book Chapters
Es imposible disociar la moral (o la ética) de la doctrina teológica. Como Richard Weaver explicó en el pasado siglo, las ideas tienen consecuencias. Por lo tanto, un cambio de doctrina teológica irá inevitablemente acompañado por un cambio en las normas que gobiernan la conducta. Dado que la ley humana es relativa a los usos y costumbres de la comunidad para la cual se dicta y se desarrolla a la luz de aquéllos, tales cambios terminarán abriéndose paso en las leyes. Después de quinientos años, las nuevas doctrinas del protestantismo han producido sus efectos sobre la moral y el derecho. …
Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting,
2016
University of Michigan Law School
Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting, Patrick Myers
University of Michigan Journal of Law Reform
Websites and mobile applications provide immeasurable benefits to both users and companies. These services often collect vast amounts of personal information from the individuals that use them, including sensitive details such as Social Security numbers, credit card information, and physical location. Personal data collection and dissemination leave users vulnerable to various threats that arise from the invasion of their privacy, particularly because users are often ignorant of the existence or extent of these practices. Current privacy law does not provide users with adequate protection from the risks attendant to the collection and dissemination of their personal information. This Note advocates …
Opinion Of Justice Katherine Franke In Obergefell V. Hodges,
2016
Columbia Law School
Opinion Of Justice Katherine Franke In Obergefell V. Hodges, Katherine M. Franke
Faculty Scholarship
Professor Jack Balkin has assembled a group of 9 scholars and advocates to write opinions in the Obergefell v. Hodges case for a forthcoming volume, What Obergefell Should Have Said (Yale University Press 2017). Balkin writes for the majority of the Court and I provide a concurrence along with a short commentary explaining my approach and reasoning. In summary, I conclude that: Laws barring same-sex couples from eligibility for licensure as civil marriages violate the Equal Protection Clause of the Fourteenth Amendment because they find their origin in and perpetuate notions of heterosexual supremacy, and have the aim and effect …
The Common Law Of Contract And The Default Rule Project,
2016
Yale Law School
The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott
Faculty Scholarship
The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be "transcontextual": parties in varied commercial contexts accept the courts' rule …
