Stephanie M. Greene

Justice Sotomayor on the Supreme Court: A Boon for Business?

In this essay, five business law professors with specialties in five different doctrinal areas analyze Justice Sonia Sotomayor’s jurisprudence in those areas and consider the implications of her appointment to the Supreme Court. Each of the areas, intellectual property, antitrust, securities, ERISA, and employment law, involves an area of federal law of significant importance to businesses. Although employment law also is a matter of state law, this essay focuses on the federal employment law statutes. Based on our analysis, we believe that Justice Sotomayor will approach business cases from a neutral perspective. Overall, we find support for the generally accepted view that Justice Sotomayor hews closely to precedent and uses a careful, methodical approach to her legal decisions and case drafting. We also find support, though, in a number of the doctrinal areas that Justice Sotomayor brings a strong sense of fairness and demand for appropriate process. At the same time, there are indications across multiple areas that she is quite deferential to governmental actors, including agency expertise. Finally, her approach to damages also reflects her sense of fairness with examples indicating a tendency to limit damage awards to the amount of loss by plaintiffs.

International Sales Law: FORMATION: OFFER AND ACCEPTANCE RULES

Despite its general informality and incorporation of flexible, open-ended rules, the CISG provides specific rules of offer and acceptance to determine whether a valid contract has been concluded. The rules of offer and acceptance, concerning the necessary content, timing, and revocation of offers, are contained in Articles 14 through 24. A valid offer must “be addressed to one or more specific persons,” be “sufficiently definite,” and indicate the offerors intention “to be bound in case of acceptance.” If the offer is not addressed to “one or more specific persons, it is merely an invitation to offer, unless the contrary is clearly indicated by the person making the proposal. Identification of the goods, quantity, and price are the essential elements that determine whether the offer fulfills the “sufficiently definite” requirement. An offer does not fail for lack of definiteness, however, if these terms are not expressly fixed. Article 14(1) allows such terms to be “implicitly” fixed or provided for in some other way. There are numerous, highly specific rules that control the effectiveness of offers and revocation of offers. An offer becomes effective when it reaches the offeree. Article 24 interprets “reaches” to mean that the offer has been communicated orally, delivered personally, or delivered to the offerees place of business, mailing address, or habitual residence. If the offer is revoked before it reaches the offeree, it becomes ineffective even if the offer stated that it was irrevocable.

SUMMARY AND OBSERVATIONS

CISG jurisprudence has done more good than harm in removing legal obstacles to international trade. It has helped to overcome what Franco Ferrari has called the problem of “nationality of law.” Although it has not yet attained critical mass, CISG jurisprudence has grown significantly. As it has grown, greater uniformity of application has been evidenced. One commentator predicts that “[a]s more case law and commentary on the Convention develops, courts will apply the Convention with more regularity. … This will bring more predictability in international sales law.” This Chapter will make observations taken from the analysis presented in the earlier Chapters of this book. These observations show that existing jurisprudence has already witnessed the coalescence or regularity of opinion pertaining to the development of specific default rules to fill in gaps in the CISG. These gaps are a result of both the vagueness in wording of many express CISG provisions and lack of express provisions in areas arguably within the scope of the CISG. The section on “Developing an International Jurisprudence” specifically discusses the importance of notice, trade usage, and particularized consent in CISG jurisprudence. This section also examines how courts have had to develop rules due to the CISGs failure to expressly allocate the burden of proof. This Chapter concludes with a note of caution represented by the persistence of homeward trend analysis found in too many CISG decisions.