Current Issue
VOLUME 7, ISSUE 2
Published April 20, 2026
Articles
The Legality of Deception in Negotiations
Michael Conklin
Casey Rockwell
Deception is pervasive in negotiation, yet the law governing it remains fragmented, undertheorized, and sometimes incoherent. While many Articles have covered the ethics of deceit in negotiations, this Article analyzes the legality of the practice. Drawing on common-law fraud, puffery jurisprudence, disciplinary decisions, empirical studies, and the Model Rules of Professional Conduct, it shows that existing doctrine creates a patchwork of inconsistent standards that oscillate between permissiveness and prohibition. Courts tolerate strategic ambiguity, optimism, and certain forms of nondisclosure, while condemning other misstatements that differ only in degree rather than kind. These inconsistencies persist because negotiation itself is built on information asymmetries and adversarial incentives, making the boundary between legitimate advocacy and actionable deceit inherently unstable. The Article develops a novel framework for evaluating deception along a “truthfulness spectrum,” illustrating through hypotheticals and case law why line-drawing remains deeply subjective and why the current regulatory landscape disproportionately harms those in disadvantaged communities. By synthesizing doctrine, ethics, and negotiation theory, the Article aims to clarify the expectations that should govern bargaining behavior and offers a foundation for more coherent and equitable regulation of deception in negotiation.
The Role of Litigation Finance in Firms’ Litigation Outcomes
Miranda J. Welbourne Eleazar
Danye Wang
Dain Donelson
Firms are increasingly concerned that litigation finance strengthens lawsuits brought against them leading to longer case durations, higher costs, greater uncertainty, and potential performance decline. However, due to difficulty in obtaining data regarding cases that have litigation financing, there is limited empirical evidence as to the real effect of litigation funding. Drawing on agency theory, we hypothesize how litigation finance affects the outcomes of lawsuits and their duration, which we test using a hand-collected database matching cases that have third-party financing to those that do not. We provide additional insights through interviews with six high-level individuals involved in litigation finance. We contribute to the literature on agency theory and the role of litigation finance on legal strategy and litigation outcomes.
Carbon Credits as Assets: Reforming India’s Insolvency Laws for Climate Resilience
Mahi Agrawal
Krishna Dube
Carbon credits play a significant role in regulatory emissions control as well as private climate markets, functioning as tradable instruments with growing economic value. As India advances its domestic carbon market through the Carbon Credit Trading Scheme, carbon credits are increasingly held, transferred and monetised by companies. Their treatment under insolvency law, however, remains uncertain. This is because such instruments exist as registry-based intangible units rather than as conventional assets.
This paper examines the legal character of carbon credits in insolvency and identifies vulnerabilities and challenges that arise from insolvency, including issues of classification, custody, and control. It draws on doctrinal and comparative analysis of the European Union, the United Kingdom, the United States of America, and international bodies to demonstrate that the existing insolvency framework in India is ill-equipped to address registry-dependent climate instruments.
The paper argues that unresolved insolvency treatment undermines market confidence and climate investment. It proposes targeted reforms to India’s insolvency regime to clarify asset classification, protect client-held credits, recognise registry-based control, and ensure continuity of carbon market infrastructure, aligning insolvency law with the operational realities of carbon markets
An Australian Approach to Replacing Manifest Disregard in Commercial Disputes
William H. Newman
Meghan Warren
Federal courts are split on whether the U.S. Federal Arbitration Act permits courts to set aside arbitration awards that misapply substantive law. While the U.S. Supreme Court decision in Wilko v. Swan has provided support for the position that a court may vacate an arbitration award upon a showing of “manifest disregard” for the law, its decision in Hall Street Associates, LLC v. Mattel, Inc. has suggested to some that courts must enforce awards, even when the arbitrators misstate the applicable law.
The law is certain, however, in Australia, where courts refuse to disturb arbitration awards on the basis of legal error.
This article provides a background on the applicable laws in the United States and Australia for vacating arbitration awards. Multiple cases have presented the U.S. Supreme Court the opportunity to settle the issue; Zeidman v. Lindell Management is a recent example. This article argues the Court should follow Australia’s model for commercial disputes. It does so by analyzing the arbitrary application of current U.S. law and noting the lower costs and greater efficiency Australia’s system provides. It also considers alternatives to the American status quo proposed by other authors.
Commentary
No commentary in Volume 7, Issue 2.