LAW 2509 - Commercial Law and the Market

North Terrace Campus - Winter - 2015

This course examines the relationship between commercial law and the market. The course begins with a basic issue of legal study - how much attention is paid to the law, in this case commercial law. Empirical and theoretical works covering a wide range of industries will be examined to help answer this question. The course will also examine responses to the use of law in the market in light of the purposes of commercial law and the capacities of judges and the legal system to meet these purposes. The course will end with an investigation into the role of law in expanding the range of the market into new areas such as biotechnology and the Web.

  • General Course Information
    Course Details
    Course Code LAW 2509
    Course Commercial Law and the Market
    Coordinating Unit Adelaide Law School
    Term Winter
    Level Undergraduate Law (LLB)
    Location/s North Terrace Campus
    Units 3
    Contact Intensive
    Available for Study Abroad and Exchange Y
    Prerequisites LAW 1503
    Incompatible LAW 2020
    Restrictions Available to LLB students only
    Course Description This course examines the relationship between commercial law and the market. The course begins with a basic issue of legal study - how much attention is paid to the law, in this case commercial law. Empirical and theoretical works covering a wide range of industries will be examined to help answer this question. The course will also examine responses to the use of law in the market in light of the purposes of commercial law and the capacities of judges and the legal system to meet these purposes. The course will end with an investigation into the role of law in expanding the range of the market into new areas such as biotechnology and the Web.
    Course Staff

    Course Coordinator: Associate Professor John Gava


    Location: Room 326, Ligertwood Building
    Telephone: 8313 4451 (work)
    email: john.gava@adelaide.edu.au
    Course Website: www.myuni.adelaide.edu.au

    Course Timetable

    The full timetable of all activities for this course can be accessed from Course Planner.

  • Learning Outcomes
    Course Learning Outcomes

    Knowledge and Understanding


    The course is designed to introduce students to the relationship between commercial law and the market. In particular, the following aspects of that relationship will be considered.

    1. To what extent is commercial law used in the market.
    2. To the extent that commercial law is used in the market does it influence market transacting?
    3. Can commercial law be changed so that it is more useful to the market?
    4. Are the courts appropriate institutions for developing a market friendly law?
    5. Is a formal, legalistic regime of commercial law favoured by the market?
    6. Should commercial law be driven by instrumental desires to make the law more useful to market players?
    7. Does the law have a role in either expanding or contracting the reach of the market?






    University Graduate Attributes

    This course will provide students with an opportunity to develop the Graduate Attribute(s) specified below:

    University Graduate Attribute Course Learning Outcome(s)
    Knowledge and understanding of the content and techniques of a chosen discipline at advanced levels that are internationally recognised. 1-7
    The ability to locate, analyse, evaluate and synthesise information from a wide variety of sources in a planned and timely manner. 1-7
    An ability to apply effective, creative and innovative solutions, both independently and cooperatively, to current and future problems. 1-7
    Skills of a high order in interpersonal understanding, teamwork and communication. 1-7
    A proficiency in the appropriate use of contemporary technologies. 1-7
    A commitment to continuous learning and the capacity to maintain intellectual curiosity throughout life. 1-7
    A commitment to the highest standards of professional endeavour and the ability to take a leadership role in the community. 1-7
    An awareness of ethical, social and cultural issues within a global context and their importance in the exercise of professional skills and responsibilities. 1-7
  • Learning Resources
    Required Resources
    Students will be expected to read and be prepared to discuss the articles and cases listed in the Course Readings. These readings will be accessible to students through the Barr-Smith Library’s DMRC Copyright Electronic Material Program.

    Students are not required to purchase texts or other materials.

    TOPICS

    Listed below is the list of readings for the course.

    COMMERCIAL LAW AND THE MARKET – READINGS

    Class 1

    Stewart Macaulay, “Non-Contractual Relations in Business: A Preliminary Study” (1963) 28 American Sociological Review 55.

    Stuart Banner, “The origin of the New York Stock Exchange, 1791-1860” (1998) 27 Journal of Legal Studies 113, 113-27, 132-40.

    Hugh Collins, Regulating Contracts (OUP, 1999), pp 202-22.

    Mark West, “Private Ordering at the World’s first Futures Exchange” (2000) 98 Michigan Law Review2574, 2574-2597, 2605-2615.

    Omri Yadlin, “A Public Choice Approach to Private Ordering: Rent-Seeking at the World’s first Futures Exchange” (2000) 98 Michigan Law Review 2620.

    Gillian Hadfield, “Privatizing Commercial Law” Regulation, Spring 2001, pp 40-45.

     

    Class 2

    James White, “Contract law in modern commercial transactions, an artefact of twentieth century business life?” (1982) 22 Washburn Law Journal 1.

    Daniel Keating, “Exploring the Battle of the Forms in Action” (2000) 98 Michigan Law Review 2678, 2678-2704, 2712-15.                                                                                                                                                                     

    Steve Hedley, “The ‘Needs of Commercial Litigants’ in Nineteenth and Twentieth Century Contract Law” (1997) 18 Journal of Legal History 85.

    Thomas Palay, “Comparative Institutional Economics:    The Governance of Rail Freight Contracting” (1984) 13 Journal of Legal Studies 265.

    Peter Vincent-Jones, “Contract litigation in England And Wales 1975-1991: A transformation in Business Disputing?” (1993) 12 Civil Justice Quarterly 337, 337-8, 355-8.

    David Campbell & Donald Harris, “Flexibility in Long-Term Contractual Relationships: The Role of Co-operation” (1993) 20 Journal of Law and Society 166, 166-72, 187-91.

     

    Class 3                                                                                                          

    Rick Canavan, “English Commercial Law and Private Legal Systems” in Christian Twigg-Flesner & Gonzalo Villalta Puig (eds), Boundaries of Commercial Law (SELR, Munich, 2011), pp 153-78.

    Edward Lorenz, “Neither Friends nor Strangers: Informal Networks of Subcontracting in French Industry” in Diego Gambetta (ed), Trust: Making And Breaking Cooperative Relations (Basil Blackwell, 1988), pp 194-210.

    Carol Rose, “Trust in the Mirror of Betrayal” (1995) 75 Boston University Law Review 531, 531-41, 554-8.

    Simon Deakin, et al, “’Trust’ or Law? Towards an Integrated Theory of Contractual Relations between Firms” (1994) 21 Journal of Law and Society 329, 329-30, 334-40, 345-49.

     

    Class 4

    John McMillan & Christopher Woodruff, “Private Order under Dysfunctional Public Order” (2000) 98 Michigan Law Review 2421, 2421-24, 2430-38.

    Ariel Porat, “Enforcing Contracts in Dysfunctional Legal Systems: The Close Relationship between Public and Private Orders” (2000) 98 Michigan Law Review 2459.

    John Wightman, “Beyond Custom: Contract, Contexts, And the Recognition of implicit understandings” in David

    Campbell, et al (eds), Implicit Dimensions of Contract (Hart, 2003), pp 143, 143-64, 172-7.

     Stewart Macaulay, “The Real Deal and the Paper Deal: Empirical Pictures of relationships, complexity and the Urge for Transparent Simple Rules” in David Campbell, et al, (eds), Implicit Dimensions of Contract (Hart, 2003), pp 51, 51-6, 84-102.

     John Gava, “False Lessons from the Real Deal: Campbell, Collins and Wightman on Implicit Dimensions of Contract?” (2005) 21 Journal of Contract Law 182.

    Class 5

    Robert Gordon, “Macaulay, Macneil, and the Discovery of Solidarity and Power in Contract Law” [1985] Wisconsin Law Review 565, 565-70.

    Curtis Milhaupt & Mark West, “The Dark Side of Private Ordering: An Institutional and Empirical Analysis of Organised Crime” (2000) 67 University of Chicago Law Review 41, 41-45.

    Hugh Collins, Regulating Contracts (OUP, 1999), pp 127-48.

    Roger Brownsword, “Static and Dynamic Market Individualism” in Roger Halson (ed), Exploring the Boundaries of Contract (Dartmouth, 1996), pp 49-67.

     

    Class 6

    Richard Danzig, “A Comment on the Jurisprudence of the Uniform Commercial Code” (1975) 27 Stanford Law Review 621.

    Claire Hill, “Bargaining in the Shadow of the Lawsuit: A Social Norms Theory of Incomplete Contracts” (2009) 34 Delaware Journal of Corporate Law 191.

    David Charny, “The New Formalism in Contract” (1999) 66 University of Chicago Law Review 842.

    Meredith Miller, “Contract Law, Party Sophistication and the New Formalism” (2010) 75 Missouri Law Review 493, 518-36.

    Lisa Bernstein, “The Questionable Empirical Basis of      Article 2’s Incorporation Strategy: A Preliminary Study” (1999) 66 University of Chicago Law Review 710, 710-17.

     

    Class 7

    Lisa Bernstein, “Private Commercial Law in the Cotton Industry: Creating Cooperation through Rules, Norms, and Institutions” (2001) 99 Michigan Law Review 1724, 1724-64.

    Jason Johnston, “Should the Law ignore Commercial      Norms? A Comment on the Bernstein Conjecture and Its relevance for Contract Law Theory and Reform” (2001) 99 Michigan Law Review 1791                                         

    Omri Ben-Shahar, “The Tentative Case Against Flexibility in Commercial Law” (1999) 66 University of Chicago Law Review 781, 781-5, 818-20.

    Catherine Mitchell, Contract Law and Contract Practice: Bridging the Gap between Legal Reasoning and Commercial Expectation (Hart, Oxford, 2013), 84-88.

    Jonathan Morgan, Contract Law Minimalism: A Formalist Restatement of Commercial Contract Law (Cambridge University Press, Cambridge, 2013), 125-31.

     

    Class 8                                                                                              

    Richard Epstein, “Confusion about Custom: Disentangling Informal Customs from Standard Contractual Provisions” (1999) 66 University of Chicago Law Review 821.

    Schwartz, Alan & Scott, Robert E., 'The political economy of private legislatures', (1995) 143 University of Pennsylvania Law Review 595-654.

    Farnsworth, Ward, 'Do parties to nuisance cases bargain after judgment? a glimpse inside the cathedral', (1999) 66 University of Chicago Law Review 373-436.

    Richman, Barak D., 'Firms, courts, and reputation mechanisms : towards a positive theory of private ordering', (2004) 104 Columbia Law Review 2328-2368.

    Schwartz, Alan & Scott, Robert E., 'Contract theory and the limits of contract law', (2003) 113 Yale Law Journal 541, 541-9.

     

    Class 9

    Mitchell, Catherine, 'Entire agreement clauses : contracting out of contextualism', (2006) 22 Journal of Contract Law 222-225, 228-231, 237-245.

    Kraus, Jody, 'Legal design and the evolution of commercial norms', (1997) 26 Journal of Legal Studies 377-411.

    Posner, Eric, 'Law, economics, and inefficient norms', (1996) 144 University of Pennsylvania Law Review 1697-1744.

    Crasswell, Richard, 'Do trade customs exist?' in Kraus, Jody & Walt, Steven, The Jurisprudential Foundations of Corporate and Commercial law, (Cambridge University Press, Cambridge, 2000), pp. 118-148.

    Theodore Eisenberg & Geoffrey Miller, “The Flight to New York: An Empirical Study of Choice of Law and Choice of Forum Clauses in Publicly-Held Companies’ Contracts” (2009) 30 Cardozo Law Review 1475.

     

    Class 10

    Jonathan Morgan, Contract Law Minimalism: A Formalist Restatement of Commercial Contract Law (Cambridge University Press, Cambridge, 2013),89-113.

    Catherine Mitchell, Contract Law and Contract Practice: Bridging the Gap between Legal Reasoning and Commercial Expectation (Hart, Oxford, 2013), 1-26.

    John Gava, “How Should Judges Decide Commercial Contract Cases?” (2013) 30 Journal of Contract Law 133-155.








  • Learning & Teaching Activities
    Learning & Teaching Modes

    Students in this course are expected to attend all seminars throughout the week of the Winter School. Please refer to Access Adelaide for your timetable and enrolment details.

    http://www.adelaide.edu.au/access/



    Workload

    No information currently available.

    Learning Activities Summary

    No information currently available.

  • Assessment

    The University's policy on Assessment for Coursework Programs is based on the following four principles:

    1. Assessment must encourage and reinforce learning.
    2. Assessment must enable robust and fair judgements about student performance.
    3. Assessment practices must be fair and equitable to students and give them the opportunity to demonstrate what they have learned.
    4. Assessment must maintain academic standards.

    Assessment Summary

     Assignment 1 - OPTIONAL                                             30%

    Details – 1,000 words. Topic to be distributed during the first day of classes and on MyUni.

    Due Date: 4 pm on Friday, July 31, 2015.


    Major Essay                                                              70% or 100%

    There will be a major essay.

    Details – 3,000 words. Topic to be distributed during the first day of classes and on MyUni.

    Due Date: 5pm, Sunday 16 August 2015

     

    Assessment Detail

    No information currently available.

    Submission
    Submission requirements for each piece of assessment will be set out in the information provided when the assessment item is released. Students should read the information on MyUni carefully in relation to submitting each piece of assessment and follow the instructions.
    Course Grading

    Grades for your performance in this course will be awarded in accordance with the following scheme:

    M10 (Coursework Mark Scheme)
    Grade Mark Description
    FNS   Fail No Submission
    F 1-49 Fail
    P 50-64 Pass
    C 65-74 Credit
    D 75-84 Distinction
    HD 85-100 High Distinction
    CN   Continuing
    NFE   No Formal Examination
    RP   Result Pending

    Further details of the grades/results can be obtained from Examinations.

    Grade Descriptors are available which provide a general guide to the standard of work that is expected at each grade level. More information at Assessment for Coursework Programs.

    Final results for this course will be made available through Access Adelaide.

  • Student Feedback

    The University places a high priority on approaches to learning and teaching that enhance the student experience. Feedback is sought from students in a variety of ways including on-going engagement with staff, the use of online discussion boards and the use of Student Experience of Learning and Teaching (SELT) surveys as well as GOS surveys and Program reviews.

    SELTs are an important source of information to inform individual teaching practice, decisions about teaching duties, and course and program curriculum design. They enable the University to assess how effectively its learning environments and teaching practices facilitate student engagement and learning outcomes. Under the current SELT Policy (http://www.adelaide.edu.au/policies/101/) course SELTs are mandated and must be conducted at the conclusion of each term/semester/trimester for every course offering. Feedback on issues raised through course SELT surveys is made available to enrolled students through various resources (e.g. MyUni). In addition aggregated course SELT data is available.

  • Student Support
  • Policies & Guidelines

    This section contains links to relevant assessment-related policies and guidelines - all university policies.

    Plagiarism and other forms of cheating

    Plagiarism is a serious act of academic misconduct. All students must be familiar with the Adelaide Law School Enrolment Guide, and should note in particular the sections relating to plagiarism, grievance procedures and academic conduct within the Law School and the University.

    Plagiarism is a serious matter and is treated as such by the Law School and the University. Please be aware that “academic dishonesty” (which goes beyond plagiarism) can be a ground for a refusal by the Supreme Court of South Australia to refuse to admit a person to practice as a legal practitioner in South Australia.

    Academic honesty is an essential aspect of ethical and honest behaviour, which is central to the practice of the law and an understanding of what it is to be a lawyer.

  • Fraud Awareness

    Students are reminded that in order to maintain the academic integrity of all programs and courses, the university has a zero-tolerance approach to students offering money or significant value goods or services to any staff member who is involved in their teaching or assessment. Students offering lecturers or tutors or professional staff anything more than a small token of appreciation is totally unacceptable, in any circumstances. Staff members are obliged to report all such incidents to their supervisor/manager, who will refer them for action under the university's student’s disciplinary procedures.

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