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Full-Text Articles in Law
Rules Of Regularity: An Empirical Quest For Commercial Certainty In Arbitration, Cornelis J.W. Baaij
Rules Of Regularity: An Empirical Quest For Commercial Certainty In Arbitration, Cornelis J.W. Baaij
William & Mary Business Law Review
The U.S. Supreme Court justifies the broad enforceability of arbitration agreements with the notion that arbitration expands parties' autonomy to contract for an efficient alternative to court proceedings. Unfortunately, the current practice of both domestic and cross-border commercial arbitration does not fully live up to these expectations. It is crucial to both autonomy and efficiency theories of contract law that adjudicatory decision-making is predictable so parties can tailor their contracts accordingly. However, commercial arbitration's prevailing culture of confidentiality and lack of stare decisis diminishes commercial certainty. To bring the reality of commercial arbitration closer to the Supreme Court's reasoning, this …
Independent Craft Breweries Struggle Under Distribution Laws That Create A Power Imbalance In Favor Of Wholesalers, Daniel Croxall
Independent Craft Breweries Struggle Under Distribution Laws That Create A Power Imbalance In Favor Of Wholesalers, Daniel Croxall
William & Mary Business Law Review
Independent craft breweries are facing historic challenges under the COVID-19 pandemic. To make matters worse, many states prohibit a brewery from terminating a distribution contract with a wholesaler absent statutorily defined “good cause,” which typically means fraud, bankruptcy, or other illegal conduct. In this context, lagging sales or poor distribution performance are not grounds for a brewery to terminate a distribution contract. This means that it is nearly impossible, legally or financially, for an independent craft brewery to terminate a distribution contract with an unsatisfactory wholesaler. In essence, states have statutorily tipped the balance of power in favor of distributors …
The Domains Of Loyalty: Relationships Between Fiduciary Obligation And Intrinsic Motivation, Deborah A. Demott
The Domains Of Loyalty: Relationships Between Fiduciary Obligation And Intrinsic Motivation, Deborah A. Demott
William & Mary Law Review
Recent scholarly inquiry into fiduciary law predominantly focuses on whether the subject is a coherent field and not a piecemeal assortment of doctrinal detail. This Article looks to the future and to relationships between the formal domain of fiduciary law and other factors that shape conduct. These include intrinsic motivation, markets for professional services, and forces like the operation of reputation. The Article demonstrates that looking across domains, from the legal to the extralegal, casts in sharp relief the reasons why fiduciary law is distinctive. These stem from the specific qualities of relationships to which fiduciary law applies, as well …
Contract Law And The Common Good, Brian H. Bix
Contract Law And The Common Good, Brian H. Bix
William & Mary Business Law Review
In The Dignity of Commerce, Nathan Oman offers a theory of contract law that is largely descriptive, but also strongly normative. His theory presents contract law’s purpose as supporting robust markets. This Article compares and contrasts Oman’s argument about the proper understanding of contract law with one presented over eighty years earlier by Morris Cohen. Oman’s focus is on the connection between Contract Law and markets; Cohen’s connection had been between Contract Law and the public interest. Oman’s work brings back Cohen’s basic insight, and gives it a more concrete form, as a formidable normative theory with detailed prescriptions.
A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman
A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman
William & Mary Business Law Review
This Article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce “desirable” outcomes for society. In addition to a comprehensive account of what he calls “virtues” of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.
Oman is not only a fan of markets, but he asserts that markets are the “center” of contract theory, and provide its normative foundation. Elaborating, Oman concludes that “contract law exists primarily to support markets” and that …
Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian
Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian
William & Mary Business Law Review
In this Essay on Professor Oman’s beautifully written and meticulously researched book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called doux commerce thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from …
How Well Do We Treat Each Other In Contract?, Aditi Bagchi
How Well Do We Treat Each Other In Contract?, Aditi Bagchi
William & Mary Business Law Review
One of the important contributions of Nathan Oman’s new book is to draw focus onto the quality of the relationships enabled by contract. He claims that contract, by supporting markets, cultivates certain virtues; helps facilitate cooperation among people with diverse commitments; and produces the wealth that may fuel interpersonal and social justice. These claims are all plausible, though subject to individual challenge. However, there is an alternative story to tell about the kinds of relationships that arise from markets--i.e., a story about domination. The experience of domination is driven in part by the necessity, inequality, and competition enjoined by markets, …
Contract, Promise, And The Right Of Redress, Andrew S. Gold
Contract, Promise, And The Right Of Redress, Andrew S. Gold
William & Mary Business Law Review
This Essay reviews Nathan Oman’s recent book, The Dignity of Commerce. The book is compelling, and it makes an important and original contribution to contract theory—a contribution that insightfully shows how markets matter. Yet, in the course of developing a market-centered justification for contract law, The Dignity of Commerce also downplays the significance of consent and promissory morality. In both cases, the book’s argument is problematic, but this Essay will address questions of promissory morality. Oman contends that promise-based accounts struggle with contract law’s bilateralism and with its private standing doctrine. Yet, promissory morality is a very good fit …
Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu
Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu
William & Mary Business Law Review
In The Dignity of Commerce, Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values …
Courts Gone “Irrationally Biased” In Favor Of The Federal Arbitration Act?—Enforcing Arbitration Provisions In Standardized Applications And Marginalizing Consumer-Protection, Antidiscrimination, And States’ Contract Laws: A 1925–2014 Legal And Empirical Analysis, Willy E. Rice
William & Mary Business Law Review
Spanning nearly forty years, the Supreme Court has issued multiple decisions and stated categorically that “judicial hostility to arbitration” was the sole impetus behind Congress’s decision to enact the Federal Arbitration Act of 1925. In fact, before the FAA, systemic trade-specific problems and practices generated heated disputes and widespread litigation among merchants and trade organizations. Thus, to arrest those constituents’ concerns, Congress enacted the FAA. Briefly, under the FAA section 2, arbitration is mandatory if a contractual arbitration provision is valid and a controversy “arises out of the contract.” However, common-law rules of contract formation are equally clear: Standing alone, …
Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson
Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson
William & Mary Law Review
Standard-form contracts are a common feature of commercial relationships because they offer the advantage of lower transaction costs. This advantage of standard contracts is increased when there is a second layer of standardization under which multiple firms agree on a standard contract. Trade associations and similar entities often effect standardization of this kind through collective agreement on a standard contract, sometimes under the aegis of state actors. Multifirm contract standardization can provide not only the usual transaction-cost advantages of standard-form contracts, but also increased competition among firms, because a standard contract makes comparison among firms’ offerings easier. But standardization among …
Liberty, Trade, And The Uniform Commercial Code: When Should Default Rules Be Based On Business Practices?, Kerry Lynn Macintosh
Liberty, Trade, And The Uniform Commercial Code: When Should Default Rules Be Based On Business Practices?, Kerry Lynn Macintosh
William & Mary Law Review
No abstract provided.
Intangibles Contracts: Thoughts Of Hubs, Spokes, And Reinvigorating Article 2, Raymond T. Nimmer
Intangibles Contracts: Thoughts Of Hubs, Spokes, And Reinvigorating Article 2, Raymond T. Nimmer
William & Mary Law Review
No abstract provided.
Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces
Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces
William & Mary Law Review
No abstract provided.
Contract Formation And Modification Under Revised Article 2, Richard E. Speidel
Contract Formation And Modification Under Revised Article 2, Richard E. Speidel
William & Mary Law Review
No abstract provided.
The Revision Of Article 2: Romancing The Prism, John E. Murray Jr.
The Revision Of Article 2: Romancing The Prism, John E. Murray Jr.
William & Mary Law Review
No abstract provided.
The Construction Contract Surety And Some Suretyship Defenses, T. Scott Leo
The Construction Contract Surety And Some Suretyship Defenses, T. Scott Leo
William & Mary Law Review
No abstract provided.