Law Commons^™

Online Disinhibited Contracts, Wayne R. Barnes

Pepperdine Law Review

There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, …

Covid-19 And Cancelled 2020 College Football Games Contracts: Force Majeure?, Drew Thornley

St. Mary's Law Journal

After COVID-19, majeure clauses accounting for the possibility of a pandemic will become the norm in college football game contracts. Indeed, some contracts are already including pandemics in their lists of force majeure-triggering events. Such language has already been added to collegiate game contracts. For example, a contract signed in May 2020 for the 2025 football game between Wisconsin and Miami (Ohio) lists as force majeure-triggering events “regional or global epidemics, pandemics, quarantines, and other similar health threats (e.g.[,] coronavirus, influenza, etc.).” Scholars explain that “the onset of the novel coronavirus pandemic warranted immediate revisitation of college football contracts.”

However, …

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 …

Misreading Menetti: The Case Does Not Help You Avoid Liability For Your Own Fraud, Val D. Ricks

St. Mary's Law Journal

Several decades ago, an incorrect legal idea surfaced in Texas jurisprudence: that business entity actors are immune from liability for fraud that they themselves commit, as if the entity is solely responsible. Though the Supreme Court of Texas has rejected that result several times, it keeps coming back. The most recent manifestation is as a construction of Texas’s unique veil-piercing statute. Many lawyers have suggested that this view of the veil-piercing statute originated in Menetti v. Chavers, a San Antonio Court of Appeals case decided in 1998. Menetti has in fact played a prominent role in the movement to …

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 Legal Nature Of The Concessions And Investments Contracts Concluded By States In Accordance With B.O.T. System, Tariq Bin Hilal Al-Busaidy

UAEU Law Journal

Different States conclude contracts for running public utilities or for investing public money. These contracts are known as concession contracts. The introduction of modern legalmethods: the BOT and the BOOT have complicated the arguments as to the legalnature of these contracts: are they classified under administrative contract or are they categorized as private law contracts? The main purpose of this research is to analyze the legalnature of these contracts.

The research concludes and affirms administrative nature of the concession contracts concluded by States in accordance with the BOT system. These contracts require:

A- Administrative authorizations

b- Their procedures are lengthy …

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 …

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Cordes

Northwestern Journal of International Law & Business

Investor-state contracts are regularly used in low- and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how …

Bitcoin: Order Without Law In The Digital Age, John O. Mcginnis, Kyle Roche

Indiana Law Journal

Modern law makes currency a creature of the state and ultimately the value of its currency depends on the public’s trust in that state. While some nations are more capable than others at instilling public trust in the stability of their monetary institutions, it is nonetheless impossible for any legal system to make the pre-commitments necessary to completely isolate the governance of its money supply from political pressure. This proposition is true not only today, where nearly all government institutions manage their money supply in the form of central banking, but also true of past private banking regimes circulating their …

Smart Contracts And Consumers, Tatiana Cutts

West Virginia Law Review

“Smart contracts” are a way of using computers to make contracts unbreakable. Contracting parties do not need to trust one another to perform or rely upon intermediaries to enforce performance. Performance is guaranteed. This is supposed to be a victory for the ordinary person—a clever socio-economic application of cryptography that strips power from companies and governments and gives it to consumers. But it turns out that less trust does not mean more freedom, or better bargains. The law of contract supports valuable relationships both by enforcing duties and by allowing parties to escape the consequences of ill-formed contracts and oppressive …

Contracts: Between A Rock And A Hard Place—Sorchaga V. Ride Auto, Llc, Rachel D. Zaiger

Mitchell Hamline Law Review

No abstract provided.

The Revision Of Article 2: Commercial Sellers Vs. Consumer Buyers Appendix, James J. White

Barry Law Review

No abstract provided.

The Revision Of Article 2: Commercial Sellers Vs. Consumer Buyers, James J. White

Barry Law Review

No abstract provided.

Not So Good: The Classification Of “Smart Goods” Under Ucc Article 2, Chadwick L. Williams

Georgia State University Law Review

Refrigerators can now tweet. Today, almost sixty years after the states widely adopted the Uniform Commercial Code (UCC), the line between goods and services is more blurred than ever. When the UCC was drafted, a good was the simple opposite of a service. A good was something “movable” and tangible, and a service was not. Article 2 of the UCC, which governs sales, limits its scope to goods.

However, because Article 2 was drafted long before the proliferation of so-called “smart goods,” courts continuously struggle to determine when a smart good falls within Article 2’s scope. Courts have developed different …

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 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.

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 …

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

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 …

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 …

Online And “As Is”, Colin P. Marks

Pepperdine Law Review

Online retail is a multi-billion-dollar industry in the United States. Consumers enjoy the ease with which they can browse, click, and order goods from the comfort of their own homes. Though it may come as no surprise to most lawyers, retailers are taking advantage of online transactions by attaching additional terms and conditions that one would not normally find in-store. Some of these conditions are logical limitations on the use of the retailers’ websites, but others go much further, limiting consumers’ rights in ways that would surprise many shoppers. In particular, many online retailers use these terms to limit implied …

Preface To The Gateway Thread, Deborah Post

Touro Law Review

No abstract provided.

Where's The Sense In Hill V. Gateway 2000?: Reflections On The Visible Hand Of Norm Creation, Shubha Ghosh

Touro Law Review

No abstract provided.

Common Sense, Contracts, And Law And Literature: Why Lawyers Should Read Henry James, Lenora Ledwon

Touro Law Review

No abstract provided.

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

Open Sesame: The Myth Of Alibaba's Extreme Corporate Governance And Control, Yu-Hsin Lin, Thomas Mehaffy

Brooklyn Journal of Corporate, Financial & Commercial Law

In September 2014, Alibaba Group Holding Limited (Alibaba) successfully launched a $25 billion initial public offering (IPO), the largest IPO ever, on New York Stock Exchange. Alibaba’s IPO success witnessed a wave among Chinese Internet companies to raise capital in U.S capital markets. A significant number of these companies have employed a novel, but poorly understood corporate ownership and control mechanism—the variable interest entity (VIE) structure and/or the disproportional control structure. The VIE structure was created in response to the Chinese restriction on foreign investments; however, it carries the risk of being declared illegal under Chinese law. The disproportional control …

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, …

In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program , Thomas J. Stipanowich

The Journal of Business, Entrepreneurship & the Law

The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …

Putting The Cisg Where It Belongs: In The Uniform Commercial Code, Kina Grbic

Touro Law Review

No abstract provided.

The Limits Of Limiting Liability In The Battle Of The Forms: U.C.C. Section 2-207 And The "Material Alteration" Inquiry, Colin P. Marks

Pepperdine Law Review

No abstract provided.