An International Model for Vicarious Liability in Franchising

Vicarious liability in the franchising context is a fundamental issue, both in the United States and foreign jurisdictions. With no all-encompassing, clear precedent in the United States, other nations\u27 approaches may provide lessons for American lawmakers and the U.S. franchising community. Together, the division between jurisdictions and the absence of uniform standards for imposing vicarious liability on franchisors demonstrate the need for more comprehensible and predictable case law. This need can be met through an examination of European regulations, model laws, and guidelines, as well as the laws in a number of nations worldwide, which indicate a pathway to better franchise agreements and possible governmental mandates (e.g., prominent, required notices about a franchise\u27s business ownership). Franchisors would have in hand the means to determine their risks and plan their behavior, even accounting for the more effective approaches to franchisor vicarious liability that are sometimes found elsewhere in the global franchising community

Franchising and the Collective Rights of Franchisees

Assume that you are the franchisee of a nationwide restaurant chain. Your franchisor has acted contrary to what you believe to be in your best interest. For the franchisor, bigger is better: more outlets and discount programs mean higher sales volume and consequently additional franchise fees and royalties, with royalties typically being based on gross sales-not franchisee net profits. You are concerned that the franchisor is oriented more toward expansion than the well-being of existing franchisees. Franchisor assistance is less than you expected, but royalties and other charges seem steep.Facing a strong franchisor that appears not to worry about an individual franchisee\u27s complaints, you join with fellow franchisees to press your claims collectively. This association serves both as a communications clearinghouse and a means to increase franchisee bargaining power. In response, however, the franchisor challenges your group in the following ways: By setting up its own franchisee group or advisory council, by seeking to terminate the franchises of supposedly disruptive franchisees, and by insisting that each franchisee-as a separately owned and operated business-must bargain alone. Even your attorneys apprise you of the limited rights that franchisee groups may have, and they warn you about potential antitrust violations.Franchisee associations are often a natural, indeed necessary, development in a maturing franchise system. Why, then, does the law ac-cord these groups few rights and much potential liability? This Article describes the current state of the law, analyzes its validity and implications, and discusses proposals to protect franchisees,including franchisee collective bargaining rights and an antitrust exemption for franchisee associations. The following areas of the law are examined: Constitutional issues, state and federal franchise laws, procedural issues, labor relations law, and antitrust law. As franchising law continues to develop, the subject of franchisee collective rights ultimately will be on the cutting edge of the law, at the intersection of franchise, labor, and antitrust law. Thus, this Article analyzes and synthesizes these diverse areas of law, illustrates why none of them protect franchisees sufficiently, and then recommends changes to the current legal framework

The French \u3cem\u3eHuissier\u3c/em\u3e as a Model for U.S. Civil Procedure Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d\u27audiencier (literally translated as hearing or assisting ) and works directly for the court system itself. The huissier\u27s report remains alien to the American lawyer, who is steeped in notions of procedure and testimonialism and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity\u27s rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation for litigation is particularly marked by rhetorical differentiations and historical adaptations reflecting upon (actually, reinforcing) a cross-cultural dissonance that discourages both harmonization and legal experimentation between the two great Western legal cultures (Civil Law and common law). The apparent discord between the two systems leads courts and commentators routinely to overestimate the disparity between the use of a French-styled investigative magistrate as opposed to the U.S. trial method. Despite the distinct nature of gathering evidence according to the French and U.S. traditions, the huissier is a type of figure found since the origin of the Western legal tradition. Vestiges remain in the United States, although American scholars and practitioners often overlook these manifestations (e.g., trustees and bailiffs). Still, the increasing complexity of commercial litigation, the harmonization of international civil procedure outside the United States, a growing corpus of international privacy standards, and a concern for the competitiveness of US. courts in attracting and inducing business development may cause re-examination of discovery rules, particularly the use of masters and investigative magistrates. Realizing that the French system is reflected in U.S. law not only may aid in resolution of disputes where both French and US. courts might claim jurisdiction, and where issues of transnational discovery often become key to resolving conflicts of law, but further can function as a paradigm from which particular administrative functions in U.S. courts may be reformed and harmonized with international standards and with principles of efficiency