The Experts below are selected from a list of 5079 Experts worldwide ranked by ideXlab platform
Lisa E Bernstein - One of the best experts on this subject based on the ideXlab platform.
-
private Commercial law in the cotton industry creating cooperation through rules norms and institutions
2001Co-Authors: Lisa E BernsteinAbstract:The cotton industry has almost entirely opted out of the public legal system, replacing it with one of the oldest and most complex systems of private Commercial law. Most contracts for the purchase and sale of domestic cotton, between merchants or between merchants and mills, are neither consummated under the Uniform Commercial Code nor interpreted and enforced in court when disputes arise. Rather, most such contracts are concluded under one of several privately drafted sets of contract default rules and are subject to arbitration in one of several merchant tribunals. Similarly, most international sales of cotton are governed neither by state-supplied legal rules, nor by the Convention on the International Sale of Goods, but rather by the rules of the Liverpool Cotton Association. This Article draws on a detailed case study of contractual relations in the cotton industry to examine the ways that the rules, norms and institutions that constitute the industry's private legal system ("PLS") create value for transactors. It begins by describing the formal operation of the PLS and discussing the ways that its substantive rules, adjudicative approaches and arbitral procedures improve on those provided by the Uniform Commercial Code and the public legal system. It then describes the many steps taken by cotton industry institutions to strengthen the social and informational infrastructures of trade and analyzes how these efforts combine to make reputation-based nonlegal sanctions a powerful force in the industry. The paper then draws on this discussion to suggest that the availability of such sanctions may enable transactors to create value-enhancing contract governance structures that might be either unavailable or prohibitively expensive if their transactions were governed by the public legal system. The paper also discusses in great detail how the industry's efforts to support the legal and extralegal aspects of contracting relationships, together with certain other features of cotton institutions, have succeeded in creating conditions that are conducive to the creation, maintenance and restoration of cooperative contracting relationships. It concludes by suggesting that understanding how the cotton industry's institutions create value for transactors may help identify other industries and other contexts in which private institutions can play a positive role in supporting trade.
-
private Commercial law in the cotton industry creating cooperation through rules norms and institutions
Michigan Law Review, 2001Co-Authors: Lisa E BernsteinAbstract:The cotton industry has almost entirely opted out of the public legal system, replacing it with one of the oldest and most complex systems of private Commercial law.1 Most contracts for the purchase and sale of domestic cotton, between merchants or between merchants and mills, are neither consummated under the Uniform Commercial Code ("Code") nor interpreted and enforced in court when disputes arise. Rather, most such contracts are concluded under one of several privately drafted sets of contract default rules and are subject to arbitration in one of several merchant tribunals. Similarly, most international sales of cotton are governed neither by state-supplied legal rules nor
Jonathan C Lipson - One of the best experts on this subject based on the ideXlab platform.
-
secrets and liens the end of notice in Commercial finance law
Social Science Research Network, 2004Co-Authors: Jonathan C LipsonAbstract:This article examines important, recent changes in Commercial finance law that reduce or eliminate the obligation to give notice of nonpossessory interests in personal property. To the extent we weaken notice rules, we increase the likelihood of secret liens, interests in property that are neither recorded nor otherwise readily observable. Historically, the problem of secret liens - and indeed notice of nonpossessory interests in personal property, generally - was addressed by notice-filing systems, such as that created by Article 9 of the Uniform Commercial Code. Yet, two recent sets of legislative developments suggest that we may care much less about the problem of secret liens than we might acknowledge. First, recent revisions to Article 9 of the U.C.C. (which governs many Commercial finance transactions) tolerate secret liens as to such increasingly important assets as data, intellectual property, bank accounts, and securities. Second, states have recently begun to enact non-Uniform legislation designed to promote "asset securitizations." This legislation gives fully-preemptive effect to the parties' contracts, and would therefore appear to displace rules on notice-filing that might otherwise apply. They effectively end the obligation to give notice. This article considers how we have come to diminish the role of notice-filing, and what that might mean. I argue that tolerance of secret liens challenges a deeply-held intuition about the relationship between property rights and notice obligations. This intuition enjoys both a new theoretical cache and a long lineage. I also suggest that we have become increasingly tolerant of secret liens because we have been seduced by a series of economic arguments about the alleged inefficiencies of notice-filing. I consider and reject most (but not all) of the economic arguments as incomplete or speculative. The article then suggests that notice-filing systems may perform at least two important informational functions not fully considered by critics of these systems. First, they will act as proxy for the information that might otherwise be generated within tightly-knit merchant communities. Second, they may have important behavioral consequences both for those required to provide the notice and for the audience for the information thus provided. The article therefore counsels caution in enacting legislation that would diminish or dilute notice-filing in Commercial finance transactions.
Mark Edwin Burge - One of the best experts on this subject based on the ideXlab platform.
-
too clever by half reflections on perception legitimacy and choice of law under revised article 1 of the Uniform Commercial Code
Social Science Research Network, 2015Co-Authors: Mark Edwin BurgeAbstract:The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This article contends that this political failure within the simultaneous success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred, not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that “no one is above the law” and the related ideal of maintaining “a government of laws, and not of men.” Proposed section 1-301 transgressed those ideals by taking something labeled as “law” and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not — to an American audience — make sense in theory.
-
too clever by half reflections on perception legitimacy and choice of law under revised article 1 of the Uniform Commercial Code
William & Mary Business Law Review, 2015Co-Authors: Mark Edwin BurgeAbstract:The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This Article contends that this political failure within the simultaneous overall success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that “no one is above the law” and the related ideal of maintaining “a government of laws, and not of men.” Proposed section 1-301 transgressed those ideals by taking something labeled as “law” and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not—to an American audience—make sense in theory. * Associate Professor of Law, Texas A&M University School of Law. Special thanks to William Henning, Andrew Morriss, Jay Westbrook, Paul George, and Frank Snyder, all of whom provided valuable comments and insights on earlier drafts of this Article, particularly on areas of disagreement. I am also grateful for legislative history research assistance during the course of this project provided by Assistant Director of the Dee J. Kelly Law Library, Patrick Flanagan, and by student research assistants Michael Doyle and Hannah Bell. Any errors and opinions in this Article are, of course, the sole responsibility of the author. 358 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 6:357
Spencer Gottlieb - One of the best experts on this subject based on the ideXlab platform.
-
installation failure how the predominant purpose test hasperpetuated software s uncertain legal statusunder the Uniform Commercial Code
Michigan Law Review, 2015Co-Authors: Spencer GottliebAbstract:Courts have struggled to Uniformly classify software as a good or a service and have consequently failed to apply a consistent body of law in that domain. Instead, courts have relied on the predominant purpose test to determine whether the Uniform Commercial Code ("UCC") or common law should apply to a given software contract. This test, designed for traditional goods and services that do not share software's complexity or rapid advancement, has perpetuated the uncertainty surrounding software's legal status. This Note proposes that courts adopt the substantial software test as an alternative to the predominant purpose test. Under this proposal, the American Law Institute ("ALI")'s Principles of the Law of Software Contracts would govern transactions that substantially involve software, and the UCC or common law would govern all other transactions. This new test would provide greater legal clarity with only a minimal shift in jurisprudence. No court has yet adopted a similar test or cited the ALI Principles as authority in a software dispute. The landscape is ripe for change.INTRODUCTIONIn 1983, the Soviet Union shot down Korean Air Lines Flight 007, obliterating the aircraft and killing all 269 passengers and crew on board.1 Flight 007 had entered restricted airspace over Russia "likely because of an incorrect setting on the plane's autopilot" software.2 In 2009, Air France Flight 447 crashed into the Atlantic Ocean after pilots failed to respond adequately when ice crystals outside caused the plane's autopilot software to disengage.3 And in 2013, "bad software design" contributed to the runway crash that killed three passengers aboard an Asiana Airlines flight.4 In an age where software dominates Commercial life, it remains unclear what law a court would apply in contract actions arising out of events like these.There are two primary options. A court would apply Article 2 of the Uniform Commercial Code ("UCC" or "Article 2") if it deemed the autopilot software to be a good, or it would apply common law if it deemed the software to be a service.5 The difference is not merely semantic. The UCC and common law differ in significant ways on "contract formation and interpretation rules."6 For instance, a software seller must tender a "perfect" product free of defects under the UCC7 but must only "substantially" perform under common law.8 An aggrieved software buyer is consequently more likely to recover under the UCC than under common law when a glitch causes a catastrophic accident.Courts routinely apply the predominant purpose test9 to software contracts to determine if the UCC applies.10 Under that test, Article 2 governs when the transaction at issue is predominantly for goods, while common law applies when the transaction is predominantly for services.11 The U.S. Supreme Court has yet to rule whether software is a good or service, and "there is no national consensus" on the issue.12 And yet despite its prevalence, the predominant purpose test has failed to assist courts in adjudicating software contract disputes. As a result, software's legal status remains a fundamental yet unanswered question.This is the first piece of commentary to focus exclusively on the predominant purpose test's limitations in software disputes. It is also the first to present a practical replacement: courts should adopt the substantial software test, which would produce tremendous benefits to the legal community while exacting only a small shift in jurisprudence. The substantial software test directs courts away from classifying software contracts as goods or services transactions and asks only whether software is "substantial" in a contract. Courts would then apply the American Law Institute ("ALI")'s Principles of the Law of Software Contracts in cases where software is substantial and revert to the UCC or common law for all other contracts. "The Principles are not 'law,' of course, unless a court adopts a provision. …
Snyder David - One of the best experts on this subject based on the ideXlab platform.
-
Human Rights Protections in International Supply Chains—Protecting Workers and Managing Company Risk: 2018 Report and Model Contract Clauses from the Working Group to Draft Human Rights Protections in International Supply Contracts, ABA Section of Business Law
Digital Commons @ American University Washington College of Law, 2018Co-Authors: Snyder DavidAbstract:This report and the model contract clauses that it contains are an effort to help companies provide legally effective and operationally likely human rights protections for workers in international supply chains. The report is the product of the Working Group to Draft Human Rights Protections in International Supply Contracts, which is a unit of the American Bar Association Business Law Section. After identifying the problems, such as human trafficking and factory collapses as well as developing compliance obligations under federal, state, and foreign law, the report explains the difficulty of drafting legally effective clauses. Most of the issues result from the focus of established sales law on the conformity of the goods themselves rather than on the conditions under which the goods are made. Other issues stem from the tension between default remedies under sales law and the remedies that buyers and non-parties would prefer in the context of forced labor or other human rights violations. Accordingly, many clauses focus on warranty and remedies issues. In addition, disclaimers attempt to manage company risk by addressing theories of liability advanced in litigation (e.g., undertaking liability, peculiar risk doctrine, and third party beneficiaries). The contract clauses are drafted in the alternative so that they should work under the Uniform Commercial Code (UCC), as it is in effect in most of the US, and under the UN Convention on Contracts for the International Sale of Goods (CISG), which applies to many international sales of goods. Extensive annotations based on legal research explain the drafting choices made
-
International Transactions in Goods: Global Sales in Comparative Context
Digital Commons @ American University Washington College of Law, 2014Co-Authors: Snyder David, Davies MartinAbstract:International Transactions in Goods: Global Sales in Comparative Context explains the complex transactional structures common in international sales, from both an international and a domestic legal perspective. In a straightforward, accessible style, this course book sets out typical business models and Commercial practices, including sample legal and Commercial documents, and outlining the laws that govern them. Closely attuned to practice, this course book covers transactions on a Commercial scale and gives full treatment not only to legal topics, but also payment, security, carriage, and insurance, addressing both traditional topics such as letters of credit, bills of lading, and the Incoterms, as well as modern practices like electronic funds transfers, and waybills. Martin Davies and David V. Snyder emphasize the strategic questions that lawyers and businesses face when negotiating and documenting deals, and when litigating transactions that have gone awry. As many of the strategies revolve around choice of governing law, the book treats not only international law, particularly the UN Convention on the International Sales of Goods (CISG), but also exemplary domestic laws from both common law and civil law jurisdictions, including the US Uniform Commercial Code (UCC), English law, French law, and German law.This book is designed to be accessible to students and readers of all levels, whether from common law or civil law backgrounds, by providing basic explanations of fundamental theories and attitudes in international law, common law, civil law, and international business. The format includes the methods of different traditions, with extensive text familiar to civil law readers, case excerpts familiar to common law readers, and a large array of problems-based on real cases and transactions-to demonstrate the concepts and to practice and evaluate what You have been learned. The book also tackles current ethical and moral issues in international transactions, particularly the relation of law and contracting to environmental protection, workers\u27 rights, and similar matters.https://digitalcommons.wcl.american.edu/facsch_bks/1173/thumbnail.jp
-
The New Wigmore: A Treatise on Evidence - Expert Evidence, 3d
'Oxford University Press (OUP)', 2014Co-Authors: Snyder David, Davies MartinAbstract:International Transactions in Goods: Global Sales in Comparative Context explains the complex transactional structures common in international sales, from both an international and a domestic legal perspective. In a straightforward, accessible style, this course book sets out typical business models and Commercial practices, including sample legal and Commercial documents, and outlining the laws that govern them. Closely attuned to practice, this course book covers transactions on a Commercial scale and gives full treatment not only to legal topics, but also payment, security, carriage, and insurance, addressing both traditional topics such as letters of credit, bills of lading, and the Incoterms, as well as modern practices like electronic funds transfers, and waybills. Martin Davies and David V. Snyder emphasize the strategic questions that lawyers and businesses face when negotiating and documenting deals, and when litigating transactions that have gone awry. As many of the strategies revolve around choice of governing law, the book treats not only international law, particularly the UN Convention on the International Sales of Goods (CISG), but also exemplary domestic laws from both common law and civil law jurisdictions, including the US Uniform Commercial Code (UCC), English law, French law, and German law.This book is designed to be accessible to students and readers of all levels, whether from common law or civil law backgrounds, by providing basic explanations of fundamental theories and attitudes in international law, common law, civil law, and international business. The format includes the methods of different traditions, with extensive text familiar to civil law readers, case excerpts familiar to common law readers, and a large array of problems-based on real cases and transactions-to demonstrate the concepts and to practice and evaluate what You have been learned. The book also tackles current ethical and moral issues in international transactions, particularly the relation of law and contracting to environmental protection, workers\u27 rights, and similar matters.https://digitalcommons.wcl.american.edu/facsch_bks/1173/thumbnail.jp
