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Strange how an idea that was once old can become new again.  Roscoe Pound, Dean of the Harvard Law School, was a prolific legal writer in the 1920s and 1930s.  From my perspective, his best work concerned the development of the American legal system from 1850 through 1900, as America reached the end of its […]

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The Uniform Commercial Code covers a wide scope of commercial transactions, from the sale of goods to warehouse receipts to secured transactions.  Article 3 deals with promissory notes, sometimes referred to as negotiable instruments. In his 2012 book,  The End of Negotiable Instruments, James Steven Rogers argued that most of the law contained in Article […]

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In a law review article published 50 years ago, Cambridge law professor L.S. Sealy reviewed two centuries of English case law on fiduciary relationships.  He concluded, correctly, that different relationships give rise to different duties. As a starting point, “Fletcher Moulton L.J. once warned against what he called ‘the danger of trusting to verbal formulae’ […]

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Prof. Larry E. Ribstein from the University of Illinois School of Law, a leading scholar on business entities, has given considerable thought to the concept of fiduciary duties.  When this author thinks of fiduciary duties, he thinks of three broad obligations – care, confidentiality, and impartiality. Prof. Ribstein, in a recent article, seeks a unified […]

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The law of eviction, or unlawful detainer, has roots that extend back hundreds of years.  Here in California, where everyone has the opportunity to make a fresh start, we sometimes forget the past and how it affects our laws. Yet in eviction, which is properly referred to as “unlawful detainer,” the historical underpinnings are quite […]

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A recent article by attorney Thomas M. Madden compares the fiduciary obligations applicable to limited liability companies under the laws of five different states – Delaware, Massachusetts, New York, California, and Illinois. Mr. Madden concludes that, “A look at the five major states’ codes will quickly dispel any presumption that all states treat limited liability […]

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Wading hip deep into the debate over the standard of conduct applicable to investment advisors, author Kristina A. Fausti brings helpful insight in A Fiduciary Duty for All? Ms. Fausti is the Director of Legal and Regulatory Affairs for Fiduciary360, and is knowledgeable about the investment world. What she demonstrates is that the investment world […]

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Prof. Seana Shiffrin of UCLA Law School tackles the issue of “contract law’s strong traditional bar on punitive damages for intentional, gratuitous breach of contract.” She jumps right into the fray:  “Morality, I claimed, correctly regards some breaches of promise as morally wrong and as warranting not only compensation but the administration of morality’s punitive […]

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Prof. Stefan Grundmann argues that strict liability is essential to contract law because it enforces an important societal norm – freedom of choice. According to Prof. Grundmann, “The majority of civil law scholars endorse the idea that the fault principle is ethically well-founded, and some scholars clearly see it as ethically superior to strict liability.  […]

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Prof. Roy Kreitner of Tel Aviv University shows great insight into the dichotomy between tort and contract law.  He first discusses how tort law shifted toward a fault-based system during the nineteenth century. States Prof Kreitner, “the early [tort] law asked simply, ‘Did the defendant do the physical act which damaged the plaintiff?’  T[ort] law […]