1,721,057 research outputs found
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Unconscionability 2.0 and the IP Boilerplate: A Revised Doctrine of Unconscionability for the Information Age
Get PDFIn the information age, where fewer goods and more innovations are produced, intellectual property law has become the most crucial governing system. Yet, rather than evolving to fit its purpose, it has seemingly devolved—standard form contracts, governing countless creations, have formed an alternative de facto intellectual property regime. The law governing the information society is often prescribed not by legislators or courts, but rather by private entities, using technology and contracts to regulate much of the creative discourse. The same phenomena persist in other emerging areas of information law, such as data protection and cybersecurity laws. This dissertation offers a new analytical perspective on private ordering in intellectual property (IP) focusing on the rise of the IP boilerplate, the standard form contracts that regulate innovations and creations. It distinguishes between contracts drafted by the initial owners of the IP (such as EULAs) and contracts drafted by nonowners (such as platforms’ terms of use), and highlights the ascendancy of the latter in the user-generated content era. In this era, the drafter of the contract owns nothing, yet seeks to regulate the layman adherent’s creations, and sometimes even to redefine the contours of the public domain. Private ordering is expanding its governing role in IP, creating new problems, undermining the rights that legislators bestow on creators and users. While scholars often discuss the problems caused by IP boilerplate, solutions are left wanting. Inter-doctrinal solutions have been unjustly overlooked. IP scholars reject general contract doctrines as ill-equipped. Contracts scholars discard IP considerations, perpetuating consumerist perspectives. This dichotomy, deepened by the preemption doctrine, has led to the underutilization of the prominent doctrine governing standard form contracts, Unconscionability. Yet, in the aftermath of ProCD, preemption has failed to solve problems created by contracts in IP settings, while Unconscionability has evolved from a legal marginality to a coherent concept. Inspired by the Israeli purposive approach to unconscionability, this analysis aims to resurrect unconscionability as a pragmatic solution to problems created by IP boilerplate. According to this solution, the question of unconscionability is examined by asking, substantially, whether the provision benefits the relevant IP policies or negates them. Drawing on moral foundations, this solution seeks to avoid utilitarian biases and invites discourse between competing approaches. As a legal standard applicable to various relationships, even those that are nonconsumer based, it accommodates the dynamic adjustments often required when IP policies seek to address contemporary problems. While IP scholarship has discarded unconscionability as ill-equipped, this dissertation suggests that it is an accessible solution that can accommodate extra-contractual notions. Precisely because the doctrine is rooted in contract law, its flexibility and broad applicability is why it could serve as a universal solution to myriad problems created by appropriating contracts. Adopting Unconscionability 2.0 would allow U.S. case law to align the roots of the doctrine with the needs of the information age
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Essays on Corporate Law, Governance and Development in the Pacific Alliance
Get PDFThe Pacific Alliance is an economic block formed by Chile, Colombia, Mexico, and Peru in 2011. Driven by the shared goal of accelerating economic development through market liberalization and the preeminence of both democracy and the rule of law, it has gradually established common economic policies and institutions, including a venture capital fund and an integrated stock exchange—the Mercado Integrado Latinoamericano (MILA). Despite these and other accomplishments, corporate law and governance remain within the jurisdictional borders of the Alliance’s member States. This context offers a unique opportunity to critically review and test contemporary accounts on the extent to which corporate law and governance can contribute to economic development by promoting three objectives: sustainable corporate practices, entrepreneurship, and private firms’ access to external finance. This dissertation comprises three essays, each of which uses a different method—functional legal analysis, econometrics, and leximetrics, respectively—to dissect these questions individually. Together, they demonstrate that, beyond the regulation of entry and shareholder protection, corporate law and governance can induce meaningful changes to corporate behavior with an impact on economic development determinants. The essays also attest that the Pacific Alliance has not done enough to promote these objectives
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Section 632: An Expanded Basis of Federal Jurisdiction for National Banks
Get PDFThe author explains how national banks can invoke Section 632 jurisdiction more readily than in the past, thus providing a wider avenue for them to gain access to a federal forum.</p
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A Comparative Study of the Jewish and the United States Constitutional Law of Capital Punishment
Get PDFThis essay begins with a survey of the textual foundations of capital punishment both in the Jewish law and the United States Constitution. The basic texts of the Jewish law and the Constitution are examined for their treatment, or lack thereof, of capital punishment. They are then scrutinized for any potential mitigatory effect on the imposition, structure, and use of capital punishment.Having established the foundational law, this essay continues by tracing the actual judicial development of capital punishment law in both systems. A comparison is conducted of the interpretation applied to the basic texts by the highest judicial court of each system. The essay concludes by contrasting the two wholly divergent judicial interpretational experiences to divine root causes of the present structure of, and judicial attitude towards, capital punishment in the United States.</p
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Rhetoric and Reality: A Historical Perspective on the Regulation of Foreign Private Issuers
Get PDFRhetoric can drive reform. Watch-words like "mutual recognition" and "global competition" have masked a political economy story which has driven the Security and Exchange Commission's deregulation of foreign private issuers. While the substantive result may have been appropriate, the overall SEC regulatory process did not produce a nuanced and holistic regulatory product. Instead, the SEC promulgated one-size-fits-all regulation for foreign private issuers. Despite the differing risk profiles and regulatory posture, Filipino or Chinese issuers listed only in the United States are now regulated in equal measure as a U.K. issuer listed on the London Stock Exchange and the New York Stock Exchange. This Article's historical analysis highlights these issues as well as the difficulty of implementing more rigorous and insulating regulatory techniques such as cost-benefit analysis in light of the rhetoric and politics of regulation. The relevance of this story is front and center as we face SEC regulatory action related to the financial crisis.</p
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Fairness Opinions
Get PDFThis Article re-examines the fairness opinion, as well as its role and necessity. Corporate law and regulation, as well as attitudes with respect thereto, have advanced from the hallmark time of Van Gorkom. Finance, a young discipline, has also progressed markedly, and previously held assumptions and methodologies have been rejected, refined, or revised. This Article also analyzes the fairness opinion in light of these developments in law and finance. I conclude that current fairness opinion practice is still deeply flawed. Fairness opinions, and their underlying valuation analyses, are prone to subjectivity and are frequently prepared utilizing methodologies that simply do not jibe with best practices. These defects are exacerbated by the recurring problem of investment banks who are conflicted in their provision of fairness opinions.</p
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Uncomfortable Embrace: Federal Corporate Ownership in the Midst of the Financial Crisis
Get PDFPart I sets forth the different models of government ownership during the financial crisis, highlighting the Treasury Department's regulation-by-deal approach to ownership.Part II assesses the government's ownership experience and provides a near-term critique of the corporate governance structures the government utilized.</p
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Gods at war ::shotgun takeovers, government by deal, and the private equity implosion /
No full text'Gods at War' is an engaging 'must read' exploration of the modern takeover, explaining the subject by examining the deals and events in the last few years that have forever changed the world of mergers and acquisitions
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A Case Study: Air Products v. Airgas and the Value of Strategic Judicial Decision-Making
Get PDFWhen is it appropriate for Delaware judges to act strategically? This case study documents and analyzes Air Products' $5.8 billion unsuccessful, hostile offer for Airgas, reviewing the decisions made by the Delaware courts in adjudicating the most prominent takeover bid of 2010. The three court opinions in Air Products v. Airgas illustrate how Delaware courts strategically decide cases and the effect of this decision-making on the course of Delaware corporate law and Delaware's constituencies. The Airgas case ultimately provides a useful lesson for when, if ever, strategic considerations should influence the outcome of individual Delaware corporate law disputes.</p
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