Commercial Law


The Choice-of-Law Problem(s) in the Class Action Context

Genevieve G. York-Erwin

Numerous scholars have noted that choice of law in the federal courts is a mess; this is particularly true in the damage class action context. Unfortunately, proposed solutions address only half of this “choice-of-law problem”: They focus either on removing the barriers choice of law creates for certification or on preserving choice of law’s traditional allocation of regulatory authority among the states, but no proposal has taken up both issues. The time has come to address this problem in full. Given the current climate of political and economic change, Congress should amend the Class Action Fairness Act of 2005 (CAFA) to revitalize the class action as a meaningful regulatory mechanism while still deterring the state court excesses that spurred CAFA’s enactment. My two-pronged proposal would do exactly that—facilitate certification of meritorious consumer cases while ensuring fair and effective allocation of regulatory authority between interested states.

Preventing Real Takings for Imaginary Purposes: A Post-Kelo Public Use Proposal

William A. Curran

By allowing the condemnation of private homes to make way for a “more attractive” private development, the U.S. Supreme Court, in Kelo v. City of New London, infuriated the libertarian legal academy and much of the public. Even worse from the perspective of individual rights, the Kelo Court blessed the taking without requiring either the City of New London—the condemnor—or any private developer to actually undertake and complete the project that justified the taking. Many calls for further property protection argue that takings like the one at issue in Kelo are not “public” enough to be permissible under the Fifth Amendment. In this Note, I focus on the word “use,” rather than “public,” in the Takings Clause. Instead of requiring that condemnation of land be proposed for a purpose more “public” than economic development, I would require that the land taken actually be used for the claimed public purpose. My proposal would honor the constitutional rights of property holders and deter inefficient takings while allowing truly beneficial takings to proceed.

GI Joe? Coffee, Location, and Regulatory Accountability

Webster D. McBride

Geographical Indications (GIs)—product labels indicating places of origin when the quality of products are linked to their geographic origin—have long been a hotly-contested domain of international trade among nations in the developed West. Recently, a literature has emerged evaluating the prospects for developing countries’ use of GIs to bolster their agricultural sectors, but the empirical economics of GIs remain poorly understood. This Note approaches the issue from a different angle. The rhetoric that attends discussion of the economics of developing-nation GI implementations often makes reference to nonpecuniary, “softer” benefits of the GI phenomenon—in particular, its pro-local counterbalance to the multinational forces commonly perceived to dominate the global marketplace. This Note seeks to scrutinize this aspect of GIs’ impact on developing-world producers by assessing the political, institutional, and cultural dynamics that the international GI regime fosters. To ground my inquiry in an analytic framework, this Note employs metrics derived from the Global Administrative Law (GAL) project spearheaded by Benedict Kingsbury and Richard Stewart. Specifically, this Note asks whether the institutional dynamics that GI protection fosters among developing-world coffee farmers have the effect of promoting or obstructing regulatory accountability as measured by GAL’s three main principles: participation, transparency, and review. In theory, the implementation of a GI product specification should empower developing-world coffee producers by fostering their regulatory involvement and civic organization, facilitating collective management of their joint reputation, and offering access to mechanisms by which they might hold opportunistic actors accountable. This Note concludes, however, that the practical realities are unencouraging because states without preexisting and well-developed institutional infrastructures have difficulty corralling powerful actors seeking to exploit GIs for private benefit.

Disciplining Standard Form Contract Terms Through Online Information Flows: An Empirical Study

Nishanth V. Chari

Standard Form Contracts (SFCs) are at the heart of an ongoing debate among legal and empirical scholars about the extent to which market forces serve to discipline sellers into providing fair contract terms. Scholars have long assumed that consumers do not read SFCs ex ante (e.g., at the time of purchase or installation) but have generally left open the possibility that consumers might read SFCs ex post (e.g., if there is a breakdown in service or functionality). This Note examines empirically the extent to which online product ratings might serve as a conduit of information regarding contract terms from ex post to ex ante consumers. Comparing online product ratings from and with software license agreements graded according to a contract bias index, I find that product ratings on surprisingly bear a negative correlation with contract bias. That is, more highly rated products tend to come bundled with more pro-seller terms. My results suggest that while product ratings may contain information about contract terms, this information is not conveyed in a way that is useful to ex ante consumers and, accordingly, is unlikely to discipline sellers. This Note thus provides guidance for future research and policy initiatives seeking to explore ways to discipline sellers into providing fairer and more efficient contract terms.

After the Fall: A New Framework to Regulate “Too Big to Fail” Non-Bank Financial Institutions

Alison M. Hashmall

The goal of any financial regulatory system should be to enable well-functioning markets. Meeting this goal requires reducing the impact and frequency of financial institution failures that cause systemic risk. Any regulatory structure, however, inevitably involves tradeoffs. A policy that effectively reduces systemic risk and its associated costs might also increase moral hazard. Similarly, a policy that seeks to reduce moral hazard and maintain market discipline—for example, by allowing a large interconnected institution such as Lehman Brothers to fail—might also create uncertainty, which can harm markets by creating panic. In this Note, I argue that our current regulatory structure is suboptimal in its regulation of systemic risk. A different regulatory structure could more effectively reduce the systemic risk caused by failing non-bank financial institutions, while minimizing the attendant problems caused by the regulations themselves—moral hazard and uncertainty. The federal government could strike a superior balance by establishing more stringent ex ante prudential regulations of systemically important non-bank financial institutions aimed at curbing excessive risk-taking and by implementing a regulatory process to resolve the failure of such institutions. The Obama Administration has proposed regulatory reform that endorses such beneficial changes, but certain details in the proposal fall short. I propose specific modifications to the Administration’s proposal to produce a more optimal regulatory framework. By pinpointing and examining the strengths and weaknesses of the Administration’s approach, I formulate a regulatory framework that more effectively contains systemic risk, avoids increasing moral hazard, and reduces excessive uncertainty caused by regulation.

Aggregate Reliance and Overcharges: Removing Hurdles to Class Certification for Victims of Mass Fraud

Shawn S. Ledingham, Jr.

Victims of consumer fraud often struggle to bring their claims as nationwide class actions under traditional state fraud laws due to (1) the application of many states’ laws to potential class members’ claims and (2) the fact that fraud claims generally raise a significant individual factual issue—whether the claimant personally relied on the defendant’s misrepresentation. The civil remedy provisions in RICO offer an attractive alternative. RICO overcomes the first hurdle by providing plaintiffs with a single federal law under which to file suit. This Note demonstrates that RICO allows plaintiffs to overcome the second hurdle as well. Rather than showing that they incurred harm when they purchased products in reliance on a misrepresentation, plaintiffs can achieve class certification by framing their injury as a harm common to all purchasers of a product: specifically, an increase in the price of the product due to artificially increased demand. Recently, several classes have moved successfully for certification using this approach. This Note provides a theoretical framework to justify this method. Rather than committing the same error as most courts and commentators by viewing this approach as an extension of the fraud-on-the-market presumption of reliance from securities fraud cases, I argue that there is no need to presume reliance because the Supreme Court’s holding in Bridge v. Phoenix Bond & Indemnity Co. makes clear that individual, personal reliance is not necessary to prove causation in RICO claims. Instead, plaintiffs can satisfy RICO’s causation element through statistical analyses that prove aggregate reliance—reliance on the fraud by a large enough number of individuals to increase the price of the product above the price that it would have been absent the fraud. As all purchasers of the product experience the same price differential, the statistical analyses provide common proof of causation of identical harm, eliminating problematic individual inquiries and opening the door to certification of nationwide consumer fraud class actions.

Innovations on the Cutting Edge of Ariad: Reinventing the Written Description Requirement

Jonathan E. Barbee

For the great majority of its history, the written description requirement was an
often-ignored relic of the patent statute. As technology advanced, the written
description requirement developed teeth as a means for invalidating patent claims
during litigation. Written description doctrine reached its peak in Ariad
Pharmaceuticals, Inc. v. Eli Lilly & Co.
, when the Federal Circuit created a significant
setback for groundbreaking innovation. Ariad demonstrated that the written
description doctrine lacked sufficient recognition of the fundamental policies and
purposes of the patent system and that this could have serious consequences for
innovation. This Note attempts to rectify the written description doctrine by
reorienting the doctrine in innovation policy. To do so, I first apply an alternative
version of the “prospect theory” of patents to conventional patent policy. Based on
this policy calculus, I then devise a reformed hypothetical innovation test that looks
outside of the “four corners” of the patent and considers the larger impact that the
written description has on the patent system. Without such doctrinal reform, the
written description doctrine of Ariad and its legacy risks undermining the incentives
that motivate inventors to undertake cutting-edge technology.

Beyond the Crisis: Dodd-Frank and Private Equity

Joseph A. Tillman

The history of the U.S. financial markets is peppered with economic crises. A few scholars have argued that in the wake of these events, the combination of widespread media attention and a flurry of congressional action has led to the hurried creation of sweeping remedial legislation. Indeed, these scholars maintain that in seeking to put out the flames of panic and financial instability, such regulations have often been mismatched to the problems they intended to address. My Note enters the fore and argues that the Volcker Rule and the amendments to the Investment Advisers Act of 1940, promulgated in response to the Financial Crisis of 2008 as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, are examples of financial market regulation that go beyond the concerns that led to their enactment. Specifically, this Note explores these regulations as they apply to private equity (PE) funds and contends that they each bring the PE industry within the purview of regulatory scrutiny in a way that may have negative implications for our economic recovery. While the need to be forward-looking remains present in any legislative scheme, this Note takes the position that we are currently facing uncertain economic times that require a response more closely tied to the conduct that led to the Crisis.

The Use and Abuse of Labor’s Capital

David H. Webber

The recent financial crisis has jeopardized the retirement savings of twenty-seven million Americans who depend on public pension funds, leading to cuts in benefits, increased employee contributions, job losses, and the rollback of legal rights like collective bargaining. This Article examines ways in which public pension funds invest against the economic interests of their own participants and beneficiaries, and the legal implications of these investments. In particular, the Article focuses on the use of public pensions to fund privatization of public employee jobs. Under the ascendant—and flawed—interpretation of the fiduciary duty of loyalty, public pension trustees owe their allegiance to the fund itself, rather than to the fund’s participants and beneficiaries, notwithstanding the fact that the duty of loyalty commands trustees to invest “solely in the interest of the participants and beneficiaries” according to ERISA and similar state pension codes. I argue that this “fund-first” view distorts the duty of loyalty and turns the role of trustee on its head, leading to investments that undermine, rather than enhance, the economic interests of public employees. I turn to ERISA, trust law, agency law, and corporate law to argue that public pension trustees should consider the impact of the funds’ investments on the jobs and job security of the funds’ participants and beneficiaries, where relevant. I also adduce evidence that these controversial investments are widespread. I propose that public pension funds be governed by a “member-first” view of fiduciary duty focused on the economic interests of public employees in their retirement funds, which go beyond maximizing return to the funds. I argue that this view is more faithful to the original purpose of the duty of loyalty than is the fund-first view. I suggest ways to implement the member-first view, discuss potential extensions beyond the jobs impact of investments, and assess the proposed reform’s practical effects.