1,721,010 research outputs found
Bamboozled? Anatomy of a Bankruptcy: Baystate v. Bowers and its Aftermath
No full textThis manuscript contains a detailed account of the Baystate v. Bowers intellectual property litigation that concluded with a Federal Circuit decision that a party could, in a EULA, use contract law to broaden the rights that could be obtained in intellectual property under copyright law and the ensuing bankruptcy of Baystate and its acquisition by Kubotek. It is intended as an illustrative teaching tool for those that want to see what is involved in long term bet-the-company litigation and resulting chapter 11 (and 7) practice. (One reviewer opined that it is Anatomy of a Lawsuit on steroids). A version with live links to the documents cited in the footnotes is available upon request to the author
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Full text linkWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
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No full textExperiencing Remedies
No full textExperiencing Remedies is designed for the general 2L or 3L remedies class. It integrates skill-based exercises and problems within a traditional casebook framework. Each chapter is accompanied by a fact-specific problem that asks the student to apply the legal principles of the chapter to the facts involved to reach and defend a conclusion or course of action. The text, then, serves to survey the law of remedies and review many of the traditional 1L subjects in a new light while providing the opportunity for the instructor to engage the students in oral or written discussion of problem analysis and solving.https://ir.law.utk.edu/utk_lawfacbooks/1041/thumbnail.jp
A Taxonomy and Evaluation of Successor Liability (Revisited)
No full textSuccessor liability does not consist of just one doctrine or exception to the general corporate rule of non-liability for asset purchasers, but of many. There are two broad groups of successor liability doctrines, those that are judge-made (the “common law” exceptions) and those that are creatures of statute. Both represent a distinct public policy that in certain instances and for certain liabilities, the general rule of non-liability of a successor for a predecessor’s debts following an asset sale should not apply. With regard to the judge-made doctrines, some commentators have asserted that they are basically a species of liability based upon fraud. Others have argued that they are based upon an inherently equitable notion that, in certain instances, the purchaser must take the bad (the liabilities) with the good (the assets). Still others, embracing a type of result-oriented formalism, have found that the liability arises out of an interest in the property sold that is akin to an in rem interest that is said to “run with the land.”
This article examines judge-made successor liability and offers a number of observations. First, our current judge-made successor liability law is a product of the rise of corporate law in the last half of the 19th century and early part of the 20th century. In fact, it appears to have developed because of, and in reaction to, the rise of corporate law. It may be better to characterize it as a part of that body of law, much like the “alter ego” or “piercing the corporate veil” doctrines, rather than as a simple creature of tort law, despite it being used as a tool by plaintiffs who are involuntary tort claimants.
Even in those jurisdictions that appear to have expanded the number of recognized categories of successor liability, there appears to be a long term trend to limit the applicability of the successor liability doctrines by stating the applicable standard in the form of a bright line rule or set of rules. This trend toward bright line rules threatens the original purpose of successor liability, which was born to serve as a counterbalance to corporate law’s limitation-of-liability protections afforded asset purchasers. Like the “alter ego” or “piercing the corporate veil” doctrines, it was originally a set of extremely fact-specific and context-sensitive standards based upon an examination of non-exclusive lists of flexible factors rather than rigid bright lines rules.
To serve its original purpose as a safety valve ensuring just results in the face of corporate law’s limitations on liability, successor liability should remain more flexible and fluid so that its applications can be adjusted as new forms of transactions are developed and pursued. It is natural for capital to be deployed, harvested, and redeployed in a manner that maximizes the externalities, the costs that society, not the invested capital, must bear. It is natural to attempt to separate liabilities by creating negative externalities for existing creditors and future claimants whenever possible. Successor liability stands as a doctrine to regulate or moderate this behavior and to prevent the dominance of corporate law principles in situations where injustice would result. This, in turn, can force the transferee and transferor to bargain and allocate the risk of unpaid and future claims between themselves.
Development of a bright line standard for successor liability sets the stage for avoiding that liability when asset purchasers are represented by competent counsel. Once a rigid standard or safe-harbor has emerged, the transaction can be structured so that the standard is avoided or the safe-harbor invoked. Successor liability emerged over one hundred years ago in reaction to the rise of insulation of capital from liability under corporate law. Since then there has been a trend toward uniform statements of the successor liability doctrines and transformation of flexible standards into rigid ones. This trend seems to indicate that corporate law, in the long run, is winning the struggle against these exceptions to the no-liability-for-asset-purchaser rule. Especially in the case of the future tort claims, corporate law thus encourages the externalization of these claims. As a result, it is future claimants and society who are left to bear these claims, rather than the parties who benefited from the act that gave rise to them
What Your Lender and Mortgage Broker Didn’t Tell You:
No full textCalifornia Code of Civil Procedure § 580b protects a California homeowner from a deficiency judgment when the homeowner’s purchase-money lender forecloses upon the home after default. In other words, if the price the lender realized at the foreclosure sale is less than the outstanding amount of the debt, the homeowner will not be liable for the deficiency. Section 580b was enacted to discourage the purchase money lenders from over-valuing real property by requiring a lender to look solely to the collateral’s value for recovery in the event of foreclosure, and to prevent the aggravation of an economic downturn caused by increased debt exposure to homeowners during a depression. Section 580b’s protection cannot be contractually waived by the borrower.
The protection of § 580b only applies to purchase money mortgages. A lender may recover a deficiency judgment against a borrower who refinances an existing mortgage and later defaults, and a lender may recover a deficiency judgment with respect to any other non-purchase money loan, such as a home equity line of credit. If the protection provided by § 580b is not disclosed, borrowers often remain unaware of the anti-deficiency protection and that it is lost upon refinance. These borrowers risk losing protections which may prove substantial if the housing market slumps. Instead of having the right to walk away from the home, the refinancing borrower is liable for the full amount of the debt, including contract interest and fees and, if the debt is reduced to judgment, post-judgment interest at the rate of 10%.
The California Civil Code requires an initial disclosure of the anti-deficiency protection to purchase-money mortgage borrowers, but it does not require disclosure of the potential loss of that protection during refinancing. Moreover, lenders who are subject to the Federal Truth in Lending Act or the Homeowners Equity Protection Act required to make the disclosures required by the Civil Code because federal law preempts state law in this area. California is thus unable to enforce even its minimal state law requiring disclosure of anti-deficiency protection to purchase-money borrowers due to the pervasive scheme of federal lending and banking regulations. For the same reason, California cannot effectively expand this disclosure obligation to include disclosure of the loss of the protection upon refinance. The absence of an enforceable duty to disclose anti-deficiency protection or the conditions of its loss means that many borrowers—especially unsophisticated borrowers without legal representation (e.g., typical homeowners)—are vulnerable to losing the protection of § 580b without notice or recourse or even knowing that it existed in the first place.
This article urges that these disclosure omissions be cured. The recent slump in housing prices, along with the growth of sub-prime purchase money and refinance transactions with low or no equity requirements , underscores the importance to consumers of knowing their rights under § 580b and that they will loose them when entering into a refinancing transaction. Disclosure of § 580b protection in an initial purchase money financing transaction is important, but alone is not enough. Disclosure of its loss in a refinancing transaction is far more important to the borrower. Refinancing dramatically changes the risk allocation between lender and borrower of overvaluation of the collateral – the home – by shifting it overwhelmingly to the borrower. The true cost of refinancing, then, can only be known if the loss of § 580b anti-deficiency protections is factored into the equation. To be effective, this disclosure requirement should be required under federal as well as California law due to the preemptive and pervasive effect of the former on the latter
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