American Business Law Journal最新文献_第7页

Damages for Breach of a Forum Selection Clause 违反论坛选择条款的损害赔偿

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-07-23 DOI: 10.1111/ablj.12183

Tanya J. Monestier

{"title":"Damages for Breach of a Forum Selection Clause","authors":"Tanya J. Monestier","doi":"10.1111/ablj.12183","DOIUrl":"https://doi.org/10.1111/ablj.12183","url":null,"abstract":"When a party breaches a forum selection clause, a court will normally dismiss the action, therefore forcing the breaching party to re-file in the appropriate forum, or the court will transfer the proceedings to the chosen court. Either way, the nonbreaching party appears to have gotten what he wanted: litigation to proceed before the designated court. However, to get there, the nonbreaching party had to outlay significant expenditures in the form of attorneys' fees. Are these attorneys' fees recoverable as damages? Should they be?This Article argues that attorneys' fees associated with remedying a breach of a forum selection clause should be recoverable as damages flowing from the breach. Without the prospect of having to pay damages, the breaching party would be permitted to breach a forum selection clause with impunity. In other words, there is no downside to breaching a forum selection clause. Best case scenario, the non-designated court retains jurisdiction; worst case scenario, the breaching party is “sent” to the contractually-designated forum.Awarding attorneys' fees for breach of a forum selection clause does not run afoul of the American Rule, which requires each side to bear their own costs and attorneys' fees. This is because attorneys' fees for breach of a forum selection clause are a measure of direct damages—and not consequential damages—and therefore do not implicate the American Rule.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"58 2","pages":"271-325"},"PeriodicalIF":1.2,"publicationDate":"2021-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12183","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71976604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Does Conjoint Analysis Reliably Value Patents? 联合分析是否可靠地评估专利？

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-07-23 DOI: 10.1111/ablj.12182

Bernard Chao, Sydney Donovan

{"title":"Does Conjoint Analysis Reliably Value Patents?","authors":"Bernard Chao, Sydney Donovan","doi":"10.1111/ablj.12182","DOIUrl":"https://doi.org/10.1111/ablj.12182","url":null,"abstract":"Modern technology products are often covered by thousands of patents. Yet awards for a single component have averaged a surprisingly high 9.98% of the infringing product's price. To curb such disproportionate awards, the law insists that damages reflect the contribution made by the patent. But determining how to apportion damages in this way has proved to be elusive. One emerging technique that appears to offer rigor is conjoint analysis, a type of survey borrowed from the marketing world. This article explores the validity of the conjoint analysis technique by running two conjoint analysis surveys. Unfortunately, we found serious problems. First, the results of our surveys yielded irrationally high numbers. Most survey features suffered from bizarrely high valuations. Second, we demonstrate how experts can manipulate the results by selecting among a number of different ostensibly reasonable statistical choices and picking the one that yields the most desirable outcome. Based on these findings, we provide several recommendations. First, we argue that courts should not allow evidence of conjoint analysis to show the monetary value of specific features. However, we recognize that there is support for using conjoint analysis to provide relative valuations (i.e., feature A is worth significantly more than feature B). To the extent that courts permit this use, we suggest ways to ensure that experts employ the best science available. These recommendations include assuring that experts accurately depict variability in their results and requiring experts to “preregister” the approach they intend to use with the court.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"58 2","pages":"225-269"},"PeriodicalIF":1.2,"publicationDate":"2021-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12182","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71976603","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Protecting Third Parties in Contracts 保护合同中的第三方

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-07-23 DOI: 10.1111/ablj.12184

Kishanthi Parella

{"title":"Protecting Third Parties in Contracts","authors":"Kishanthi Parella","doi":"10.1111/ablj.12184","DOIUrl":"https://doi.org/10.1111/ablj.12184","url":null,"abstract":"Corporations routinely impose externalities on a broad range of non-shareholders, as illustrated by several unsuccessful lawsuits against corporations involving forced labor, human trafficking, child labor, and environmental harms in global supply chains. Lack of legal accountability subsequently translates into low legal risk for corporate misconduct, which reduces the likelihood of prevention. Corporate misconduct toward non-shareholders arises from a fundamental inconsistency within contract law regarding the status of third parties: On the one hand, we know that it takes a community to contract. Contracting parties often rely on multiple third parties—not signatories to the contract—to play important roles in facilitating exchange, such as reducing market transaction costs, improving information flows, and decreasing the risk of opportunism. On the other hand, we deny this community protection from the externalities that contracting parties impose on them. This article examines a corporation's duties to others in its role as a contracting party. Normatively, this article proposes an alternative view of contracts as an ecosystem with three attendant principles that result from this view: (a) third-party protections from negative externalities, (b) contract design obligations of contracting parties, and (c) recourse to legal remedies for third parties. On a policy level, this article proposes the following duty to contract in order to translate theory into practice: Contracting parties are required to take into account negative externalities to third parties when the contracting parties could reasonably foresee that performance of the contract would create a risk of physical harm to these third parties.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"58 2","pages":"327-386"},"PeriodicalIF":1.2,"publicationDate":"2021-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12184","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71976602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

Aligning National Bank Priorities with the Public Interest: National Benefit Banks and a New Stakeholder Approach 使国家银行的优先事项和公共利益相一致：国家利益银行和一种新的利益相关者方法

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-04-28 DOI: 10.1111/ablj.12178

Lindsay Sain Jones

{"title":"Aligning National Bank Priorities with the Public Interest: National Benefit Banks and a New Stakeholder Approach","authors":"Lindsay Sain Jones","doi":"10.1111/ablj.12178","DOIUrl":"https://doi.org/10.1111/ablj.12178","url":null,"abstract":"Banks have particular characteristics that set them apart from other business entities, including being more highly leveraged, benefiting from government safety nets, and generating massive negative externalities when they fail. These attributes mean that in addition to shareholder interests, bank directors should be allowed to carefully consider the interests of nonshareholders, such as creditors, taxpayers, and the overall economy, when making decisions. While directors of banks in states that have enacted constituency statutes may be allowed to consider nonshareholder interests, no federal act expressly allows directors of federally chartered banks to consider such interests. Moreover, to date, thirty-seven states have enacted legislation to allow for the formation of public benefit corporations that require directors to consider the interests of nonshareholders. No federal law provides a clear path for federally chartered banks to do this. This article proposes dual federal legislation that would (1) enable directors of all federally chartered banks to expressly consider nonshareholder constituents when making decisions and (2) allow for the formation of national benefit banks that would require directors to consider nonshareholder interests in their decision-making.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"58 1","pages":"5-61"},"PeriodicalIF":1.2,"publicationDate":"2021-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12178","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71989575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Legal Entrepreneurship and the Strategic Virtues of Legal Uncertainty 法律创业与法律不确定性的战略美德

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-04-28 DOI: 10.1111/ablj.12177

引用次数: 0

Up in Smoke: International Treaty Obligations and Marijuana Reform in the United States 在烟雾中:国际条约义务和大麻改革在美国

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-04-28 DOI: 10.1111/ablj.12181

Kevin J. Fandl

引用次数: 0

Symposium, Cannabis—Legal, Ethical, and Compliance Issues: Introduction 研讨会，大麻-法律，伦理和合规问题:导言

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-04-28 DOI: 10.1111/ablj.12176

Gideon Mark, Laurie A. Lucas

引用次数: 0

Cannabis Regulatory Confusion and Its Impact on Consumer Adoption 大麻监管混乱及其对消费者采用的影响

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-04-28 DOI: 10.1111/ablj.12171

Stephanie Geiger-Oneto, Robert Sprague

{"title":"Cannabis Regulatory Confusion and Its Impact on Consumer Adoption","authors":"Stephanie Geiger-Oneto, Robert Sprague","doi":"10.1111/ablj.12171","DOIUrl":"10.1111/ablj.12171","url":null,"abstract":"The regulation of cannabis in the United States is inconsistent and contradictory, to put it mildly. While marijuana remains classified as a Schedule I substance under the federal Controlled Substance Act—in the same category as heroin and morphine, with accompanying criminal penalties up to and including life imprisonment for its production, distribution, and possession—as of the end of 2020, eleven states and the District of Columbia had legalized recreational marijuana use and thirty-six states and the District of Columbia had decriminalized the use of marijuana for medical purposes. Despite the trend toward legalization, however, marijuana is a stigmatized product. Stigmatized products are those toward which a significant portion of consumers hold negative attitudes and beliefs, whereas the concept of legitimacy is defined as a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and definitions. This article addresses how current legislation and regulations influence consumer perceptions of a product category, and how conflicting regulations (or the lack of regulations) influence the adoption of a stigmatized product such as cannabis (i.e., marijuana and cannabidiol products)","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"57 4","pages":"735-772"},"PeriodicalIF":1.2,"publicationDate":"2021-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12171","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42689800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Cultivating Evidence-Based Pathways for Cannabis Product Development: Implications for Consumer Protection† 培育大麻产品开发的循证途径：对消费者保护的影响†

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-04-28 DOI: 10.1111/ablj.12173

Aubree L. Walton, Kaimee Kellis, William E. Tankersley, Rikinkumar S. Patel

{"title":"Cultivating Evidence-Based Pathways for Cannabis Product Development: Implications for Consumer Protection†","authors":"Aubree L. Walton, Kaimee Kellis, William E. Tankersley, Rikinkumar S. Patel","doi":"10.1111/ablj.12173","DOIUrl":"10.1111/ablj.12173","url":null,"abstract":"Disparities between federal and state cannabis regulation, coupled with protracted federal enforcement, have facilitated the proliferation of a multi–billion dollar cannabis industry that generally evades compliance with federal consumer protection laws. The Federal Food, Drug and Cosmetic Act (FDCA) established regulatory pathways for the lawful development of products such as food, drugs, and dietary supplements. The FDCA uses a science-based approach to protect consumers from harmful products, but early inconsistencies between state and federal cannabis regulation prevented and/or discouraged the cannabis industry from complying with FDCA requirements. Cannabis products are promoted as safe and attributed with providing effective therapeutic treatment for numerous medical conditions, yet the claims often lack the rigorous evidence-based support typically expected by regulators and the medical community. The Food and Drug Administration (FDA) has announced its expectation that cannabidiol (CBD) products comply with the FDCA and follow a science-based approach to product development. The FDA is addressing violations involving unsubstantiated CBD health claims and is working to clarify the future regulatory pathway for CBD products. Meanwhile, the state-approved cannabis market continues to operate, selling numerous products that have circumvented the FDCA consumer protections. This article examines the need for strengthening consumer protections in the cannabis market. We use evidence-based medicine as a model to address the importance of science-based product development and to contextualize a science-based comparison of regulatory pathways for cannabis drugs, food, and dietary supplements.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"57 4","pages":"773-825"},"PeriodicalIF":1.2,"publicationDate":"2021-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12173","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46039969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Taxing Cannabis on the Reservation 对保留地大麻征税

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2021-04-28 DOI: 10.1111/ablj.12174

Mark J. Cowan

引用次数: 0