Negotiable Instruments

This is a course about risk allocations in payments transactions. Pure and simple: some risks are fully allocated by state or federal statute, some by contracts, and some by system rules. Understanding which risks are allocated already helps people draft contracts and manage transactions.

This course covers state and federal laws on making payments, and the increasing numbers of special contracts and system rules that are taking over for newer payment methods. The essential rules governing commercial paper (checks, drafts, and promissory notes) and bank deposits and collections are contained in Articles 3 and 4 of the Uniform Commercial Code ("UCC"). Federal law covers expedited funds availability and electronic fund transfers (debit and prepaid cards).

The course also covers other retail payments (credit cards, e-payments through companies such as Paypal and Coinbase, and bank-based electronic funds transfers, including debit and ACH) and wholesale payments (wire transfers and letters of credit) that play increasingly prominent roles in domestic and international trade transactions, but not in great detail.

We will concentrate on how the UCC and related federal statutes and regulations apply to common transactions and will evaluate problems likely to arise in practice, such as lost, stolen, and forged "instruments", stop payment orders, and wrongful dishonor of checks. We also will discuss technological changes and the stresses they place on payment systems. Error resolution rules for non-UCC payments differ substantially from those covered by the UCC. We will discuss the differences in how error-resolution works in both arenas.

This course also covers suretyship and the law of guarantees that plays a huge role in insurance and commercial real estate development practices, and that assists in garden-variety commercial litigation as well.

Laws pertaining to commercial paper and the relationships among banks and their depositors affect nearly all businesses and consumers every day. There are strong practical as well as theoretical parts of this material. Students should leave this course able to recognize and research more complex problems as they arise. This course also introduces students to one of the toughest sets of bar materials to learn on one s own.

I use a text by Linda Rusch and Stephen Sepniuck that emphasizes problems, rather than gleaning principles from judicial opinions. This approach requires students to read statutory materials and apply the statute to variant fact-patterns. Students then consider what stresses on these rules - technology and shift structure of domestic and international financial institutions and other payment systems service-providers - mean for the future of regulation of these payment mechanisms. I welcome class discussion.

This class will have a traditional in-class examination. I normally allow more than three hours for students to take it. LLM candidates will get additional time to complete this examination in accordance with the School s graduate student examination policy.

I love all my courses, but this frankly is my personal favorite.