Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Columbia Law School (7)
- University of Michigan Law School (4)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (4)
- University of Pennsylvania Carey Law School (4)
- Cornell University Law School (3)
-
- Duke Law (3)
- Maurer School of Law: Indiana University (3)
- Georgetown University Law Center (2)
- Texas A&M University School of Law (2)
- University of Missouri School of Law (2)
- Western University (2)
- William & Mary Law School (2)
- American University Washington College of Law (1)
- Boston University School of Law (1)
- Brooklyn Law School (1)
- California Western School of Law (1)
- Case Western Reserve University School of Law (1)
- Florida State University College of Law (1)
- Notre Dame Law School (1)
- Pace University (1)
- Santa Clara Law (1)
- Singapore Management University (1)
- Southern Methodist University (1)
- St. John's University School of Law (1)
- UIC School of Law (1)
- University of Connecticut (1)
- University of Georgia School of Law (1)
- University of Louisville (1)
- University of Miami Law School (1)
- University of Pittsburgh School of Law (1)
- Keyword
-
- Contracts (12)
- Contract law (7)
- Contract (5)
- Contract terms (4)
- Arbitration (3)
-
- Bargaining (3)
- Contract negotiations (3)
- Fairness (3)
- Jurisprudence (3)
- ADR (2)
- Boilerplate (2)
- Breach of contract (2)
- Contract drafting (2)
- Contract standardization (2)
- Damages (2)
- Economics (2)
- Efficiency (2)
- Empirical legal studies (2)
- Federal Arbitration Act (2)
- Form contracts (2)
- Law (2)
- Liability (2)
- Negotiation (2)
- Ohio State Law Journal (2)
- Statute of frauds (2)
- Wood v. Lucy (2)
- Actual intentions (1)
- Affiliates (1)
- Agency Law (1)
- Agreement (1)
- Publication
-
- Faculty Scholarship (16)
- Faculty Publications (6)
- All Faculty Scholarship (4)
- Articles (3)
- Articles by Maurer Faculty (3)
-
- Cornell Law Faculty Publications (3)
- Scholarly Works (3)
- Book Chapters (2)
- Computer Science Publications (2)
- Articles in Law Reviews & Other Academic Journals (1)
- Elisabeth Haub School of Law Faculty Publications (1)
- Faculty Articles and Papers (1)
- Faculty Journal Articles and Book Chapters (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Journal Articles (1)
- LLM Theses and Essays (1)
- Law & Economics Working Papers Archive: 2003-2009 (1)
- Law Faculty Research Publications (1)
- Nevada Supreme Court Summaries (1)
- Research Collection Yong Pung How School Of Law (1)
- Rosetta Stone v. Google (Joint Appendix) (1)
- Scholarly Articles (1)
- Scholarly Publications (1)
- U.S. Supreme Court Briefs (1)
- UIC Law Open Access Faculty Scholarship (1)
- Vanderbilt Law School Faculty Publications (1)
- Working Paper Series (1)
Articles 31 - 60 of 60
Full-Text Articles in Law
Preface: Or: A Boilerplate Introduction, Omri Ben-Shahar
Preface: Or: A Boilerplate Introduction, Omri Ben-Shahar
Book Chapters
It is tempting to open this volume with yet another "boilerplate" salute to the challenge that standard-form contracts pose for contract law doctrine. You may have seen many tributes to this fundamental problem. Ifi were to offer my own variation on this familiar introduction, I would have perhaps tried to come up with an original spin to induce you to read forward another paragraph or two. I would probably have talked about a major divide within contract law between the "law of negotiations" and "product regulation." The former is the body of doctrines that determine the legal consequences of bargaining …
The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh
The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh
Vanderbilt Law School Faculty Publications
No abstract provided.
The Search Interest In Contract, Joshua Fairfield
The Search Interest In Contract, Joshua Fairfield
Articles by Maurer Faculty
Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation-centered view of contract leads courts to try to determine the meaning of the parties where no meaning was negotiated and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, they lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the reality of contracting …
Constructive Haiku And The Law Of Contracts: Raintree County Memorial Library Occasional Paper No. 3, Douglass Boshkoff
Constructive Haiku And The Law Of Contracts: Raintree County Memorial Library Occasional Paper No. 3, Douglass Boshkoff
Articles by Maurer Faculty
No abstract provided.
Opting Out: Procedural Fair Use, Michael Mattioli
Opting Out: Procedural Fair Use, Michael Mattioli
Articles by Maurer Faculty
This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright's doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn't want their books scanned. Despite this measure, two major authors' groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract …
Gambling, Commodity Speculation, And The 'Victorian Compromise', Joshua C. Tate
Gambling, Commodity Speculation, And The 'Victorian Compromise', Joshua C. Tate
Faculty Journal Articles and Book Chapters
This Essay examines two major strands of nineteenth-century jurisprudence related to gambling: Southern cases defining public and private space for the purpose of state gambling statutes, and Northern cases applying the intent to deliver test to speculative contracts. The Essay argues that both lines of cases reflect what Lawrence Friedman has termed the Victorian compromise: A strong official stance against immoral behavior is conjoined with de facto acceptance of many questionable practices, provided that they are conducted in a manner acceptable to the elite. The Essay concludes that nineteenth-century judges sought to preserve the semblance of a strict prohibition against …
The Relationship Between Defense Counsel, Policyholders, And Insurers: Nevada Rides Yellow Cab Toward "Two-Client" Model Of Tripartite Relationship. Are Cumis Counsel And Malpractice Claims By Insurers Next?, Jeffrey W. Stempel
Scholarly Works
It happens constantly in civil litigation. An insurance company hires a lawyer to defend its policyholder from a third party’s claim of injury. But just who is the lawyer’s “client?” Is it the policyholder who is the named defendant in the case and is “represented” in court proceedings? Or is it the insurer who, in most cases, selected the attorney, pays the attorney, supervises the litigation, and has (by the terms of the liability insurance policy) the right to settle the case, even over the objections of the policyholder? Ordinarily, the liability insurer has both the duty to defend a …
Client Responsibility For Lawyer Conduct: Examining The Agency Nature Of The Lawyer-Client Relationship., Grace M. Giesel
Client Responsibility For Lawyer Conduct: Examining The Agency Nature Of The Lawyer-Client Relationship., Grace M. Giesel
Faculty Scholarship
In the 1962 decision of Link v. Wabash Railroad Co., the United States Supreme Court reviewed a district court's sua sponte dismissal of a diversity negligence action. Six years after the plaintiff filed the matter, the district court scheduled a pretrial conference and gave counsel two weeks notice of the scheduled conference. On the day of the conference, plaintiffs counsel called the court to say that he would be unable to attend the conference, giving the impolitic reason that he was busy preparing some documents for the state supreme court. The attorney did not attend the conference, and the district …
Contract Law And Distribution In The Age Of Welfare Reform, Daniela Caruso
Contract Law And Distribution In The Age Of Welfare Reform, Daniela Caruso
Faculty Scholarship
This Article tracks the ongoing adaptation of U.S. contract law to the 1990s’ contraction of the welfare state. Some courts strive to compensate for the shortage of welfare services and to pursue redistributive goals. This Article provides examples of this trend and then analyzes the non-linear relation between doctrines, judicial redistribution, and welfare politics in both case law and scholarship. Finally, this Article discusses the role of socially sensitive judicial discourse in light of contemporary welfare politics and explains its continuing importance.
Lawyers Asleep At The Wheel? The Gm-Fisher Body Contract, Victor P. Goldberg
Lawyers Asleep At The Wheel? The Gm-Fisher Body Contract, Victor P. Goldberg
Faculty Scholarship
In the analysis of vertical integration by contract versus ownership one event has dominated the discussion – General Motors' merger with Fisher Body in 1926. The debates have all been premised on the assumption that the ten-year contract between the parties signed in 1919 was a legally enforceable agreement. However, it was not. Because Fisher's promise was illusory the contract lacked consideration. This note suggests that GM's counsel must have known this. It raises a significant question in transactional engineering: what is the function of an agreement that is not legally enforceable.
Precontractual Liability And Preliminary Agreements, Alan Schwartz, Robert E. Scott
Precontractual Liability And Preliminary Agreements, Alan Schwartz, Robert E. Scott
Faculty Scholarship
For decades, there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly due to scholars' failure to recover the law in action governing precontractual liability issues. In this Article, Professors Schwartz and Scott show first that no liability attaches for representations made during preliminary negotiations. Courts have divided, however, over the question of liability when parties make reliance investments following a "preliminary agreement." A number of modern courts impose a duty to bargain in good faith on the party wishing to exit such an agreement. Substantial uncertainty remains, however, regarding when this duty …
Desperately Seeking Consideration: The Unfortunate Impact Of U.C.C. Section 2-306 On Contract Interpretation, Victor P. Goldberg
Desperately Seeking Consideration: The Unfortunate Impact Of U.C.C. Section 2-306 On Contract Interpretation, Victor P. Goldberg
Faculty Scholarship
In Section 2-306, the Uniform Commercial Code's drafters intended to assure that two classes of agreements would be enforceable, even though they might appear on their face to be illusory. Variable quantity (output and requirements) contracts were buttressed by reading in a good faith standard (§ 2-306(1)) and exclusive dealing contracts were made enforceable by reading in a best efforts standard (§ 2-306(2)). This was a big mistake. In this paper I show how these two fixes create problems for interpreting contracts. I use two well-known cases, Feld v. Henry S. Levy & Sons, Inc. and Wood v. Lucy, …
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
Faculty Scholarship
A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …
Williston As Conservative-Pragmatist, Mark L. Movsesian
Williston As Conservative-Pragmatist, Mark L. Movsesian
Faculty Publications
In her pathbreaking article, "Restatement and Reform: A New Perspective on the Origins of the American Law Institute, Professor N.E.H. Hull rejects the conventional wisdom about the conservative, even reactionary, character of the First Restatements. The truth, she argues, is more subtle. The Restatements, and the larger ALI project of which they were a part, reflect the "'progressive-pragmatic"' worldview of the law professors most responsible for their creation. These professors were reformers. They rejected the formalism of earlier generations; for them, law was not a conceptual system but a practical tool for promoting beneficial social goals. They tempered their zeal …
Boilerplate And Economic Power In Auto-Manufacturing Contracts, Omri Ben-Shahar, James J. White
Boilerplate And Economic Power In Auto-Manufacturing Contracts, Omri Ben-Shahar, James J. White
Book Chapters
This chapter examines the boilerplate contracts used by auto makers to procure parts from suppliers. It identifies drafting and negotiation techniques that are used to secure advantageous terms. It also explores some prominent specific arrangements as evidence that firms with bargaining power are exploiting their position to dictate self-serving but inefficient terms. Finally, it shows how standard contractual clauses solve the problem of ex-post hold-up by suppliers.
Contract As Agreement, Lawrence Solan
Clicking And Cringing, Nancy Kim
Clicking And Cringing, Nancy Kim
Faculty Scholarship
Shrinkwrap, clickwrap, and browsewrap licenses have complicated contract law by introducing nontraditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in "rolling contract" situations. In this Article, I propose that a consumer's assent to a transaction should not be transmuted into blanket assent to each individual term of a …
Colloquy, Transactional Economics: Victor Goldberg’S Framing Contract Law, Keith A. Rowley, Mark P. Gergen, Victor Goldberg, Stewart Mcaulay
Colloquy, Transactional Economics: Victor Goldberg’S Framing Contract Law, Keith A. Rowley, Mark P. Gergen, Victor Goldberg, Stewart Mcaulay
Scholarly Works
Panel discussion among law faculty who teach contracts of 2007 book authored by Victor Goldberg, which suggests that an economic approach to contract interpretation is appropriate.
Uniform Commercial Code Survey: Sales, Keith A. Rowley, Carolyn L. Dessin, Larry T. Garvin, Robyn L. Meadows
Uniform Commercial Code Survey: Sales, Keith A. Rowley, Carolyn L. Dessin, Larry T. Garvin, Robyn L. Meadows
Scholarly Works
2006 Uniform Commercial Code Survey: Sales
How To Create A Commercial Calamity, Robert A. Hillman
How To Create A Commercial Calamity, Robert A. Hillman
Cornell Law Faculty Publications
This Article briefly catalogs the kinds of commercial calamities and then focuses on one of them, namely laws that are so imprecise and ambiguous that judges do not know how to apply them, and lawyers cannot explain them. The Article illustrates the problem with Uniform Commercial Code (UCC) section 2-209, dealing with contract modification and waiver. The paper does not focus on the ambiguities and obfuscations of section 2-209, but on the strategy of lawmaking that inevitably produces such a result. The drafters of section 2-209 ambitiously sought to reform the law, but then lost their nerve. In short, they …
The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In The Contracts Of Publicly Held Companies, Theodore Eisenberg, Geoffrey P. Miller
The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In The Contracts Of Publicly Held Companies, Theodore Eisenberg, Geoffrey P. Miller
Cornell Law Faculty Publications
Informed parties bargaining for their mutual advantage will tend to agree to provisions that maximize the social surplus. Such bargaining includes provisions regarding the resolution of disputes that might arise under the contract. Thus, if a form of alternative dispute resolution, such as binding arbitration, provides greater social benefits than litigation, the dynamics of the process should tend to induce the parties to include a clause submitting future disputes to arbitration. This Article studies the actual contracting practices of large, sophisticated actors with respect to arbitration clauses. We examined over 2800 contracts, filed with the Securities Exchange Commission (SEC) in …
Guerilla Terms, Peter A. Alces
Comment: On Contractual Defaults And Experimental Law And Economics, Avishalom Tor
Comment: On Contractual Defaults And Experimental Law And Economics, Avishalom Tor
Journal Articles
It is possible that contract default rules, whose relevance is contingent upon parties' agreement to contract, differ from other default states. Parties therefore might not perceive contingent contractual defaults as relevant reference points. Ironically, however, Sloof, Oosterbeek and Sonnemans' (SOS) "default contract" applied inevitably whenever proposed and whenever Respondents rejected a non-default proposal, bearing greater resemblance to a legal right than to a contractual default. Thus, the contingency of typical contractual defaults cannot account for the No Bias Finding. Other aspects of the SOS experimental design, on the other hand, may explain the No Bias Finding.
Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman
Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Transactional Economics: Victor Goldberg's Framing Contract Law, Mark P. Gergen, Victor P. Goldberg, Stewart Macaulay, Keith A. Rowley
Transactional Economics: Victor Goldberg's Framing Contract Law, Mark P. Gergen, Victor P. Goldberg, Stewart Macaulay, Keith A. Rowley
Faculty Scholarship
Professor Mark Gergen: Thank you. It is an honor to speak to this group and to be on a panel with Stewart Macaulay, Keith Rowley, and Victor Goldberg. I have an enormous amount of respect for the three. Keith had the misfortune of being a student of mine in Federal Income Tax.
Framing Contract Law offers a wealth of information about familiar cases. Victor argues that in construing contracts, courts should be attentive to how people engineer contracts to minimize transaction costs. He shows that courts often err in this regard, imposing unnecessary costs. To make his case, Victor delves …
Legal Determinacy And Moral Justification, Jody S. Kraus
Legal Determinacy And Moral Justification, Jody S. Kraus
Faculty Scholarship
Since this is a conference on law and morality, and the topic of this panel is theories of contract law, I thought it particularly appropriate to ask how a theory of contract law can provide a moral justification for contract law. That question can be answered only by providing a more general account of how a legal theory can provide a moral justification for any area of the private law. In this preliminary Essay, I argue that in order morally to justify the private law, a theory of the private law must derive reasons from a normative political theory that …
Zapata Retold: Attorneys' Fees Are (Still) Not Governed By The Cisg, Harry Flechtner, Joseph Lookofsky
Zapata Retold: Attorneys' Fees Are (Still) Not Governed By The Cisg, Harry Flechtner, Joseph Lookofsky
Articles
In this work, the authors reiterate and expand on their conclusion that the question of reimbursement for attorney fees incurred in the course of litigating a claim under the United Nations Sales Convention (CISG) is beyond the scope of the CISG, and is governed by domestic law. As discussed in the paper, this conclusion is in line with a recent CISG Advisory Council Opinion (Advisory Council Opinion No. 6) dealing with the calculation of damages under Article 74 of the CISG. We argue that relegating to domestic law the question of recovering attorney fees incurred during litigation over a CISG …
If You Prompt Them, They Will Rule: The Warranty Of Habitability Meets New Court Information Systems, Mary Zulack
If You Prompt Them, They Will Rule: The Warranty Of Habitability Meets New Court Information Systems, Mary Zulack
Faculty Scholarship
A recent conference on housing rights invited participants to think about the impacts, actual and potential, of the judge-made doctrine of the implied warranty of habitability in residential tenancies. This essay focuses on the warranty, and suggests establishing technology systems for judges to help them give new
life to the doctrine and thereby to accelerate actual repair of rental housing through court mandates.
The conference attendees seemed to agree that when trial judges are presented with claimed breaches of the warranty of habitability, they have not, on the whole, used the doctrine to order that repairs actually be effectuated. They …
Three Pictures Of Contract: Duty, Power And Compound Rule, Gregory Klass
Three Pictures Of Contract: Duty, Power And Compound Rule, Gregory Klass
Georgetown Law Faculty Publications and Other Works
A fundamental divide among theories of contract law is between those that picture contract as a power and those that picture it as a duty. On the power-conferring picture, contracting is a sort of legislative act, in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law puts duties on persons entering into agreements for consideration whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing -- a question that should lie at …
Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott
Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott
Faculty Scholarship
For decades there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly attributable to the unfortunate case of Hoffman v. Red Owl Stores and to the unusual degree of scholarly attention that it has attracted. A careful examination of the record of the Hoffman case reveals facts that are much different from conventional understanding. The disagreement between Joseph Hoffman and Red Owl Stores resulted from a fundamental misunderstanding between the parties regarding the terms of Hoffnan's capital contribution to the franchise. The misunderstanding was largely a product of Hoffnan's penchant for moving assets …