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Full-Text Articles in Law
The Underappreciated Importance Of The Sequence In Which The Issues Are Addressed In Contract Litigation, Gregory S. Crespi
The Underappreciated Importance Of The Sequence In Which The Issues Are Addressed In Contract Litigation, Gregory S. Crespi
Faculty Journal Articles and Book Chapters
Judicial opinions rarely identify the precise sequence in which the issues presented were addressed by the court. Since this sequence is not generally regarded as being significant for the decisions reached, persons later parsing the opinions for their significance rarely go to the considerable trouble involved in acquiring the litigation briefs and interviewing the attorneys and judges involved so as to ascertain this sequence. However, my surmise is that at least in contract litigation the sequence in which the issues are addressed can sometimes be significant or even outcome-determinative for the results. A good example of this is presented by …
The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed, William V. Dorsaneo Iii, C. Paul Rogers Iii.
The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed, William V. Dorsaneo Iii, C. Paul Rogers Iii.
Faculty Journal Articles and Book Chapters
The primary purpose of this Article is to examine the relationship between basic contract principles and procedural rules that are generally applicable to contract litigation. The evolution of claims and defenses in contract cases has produced contradictions in burdens of pleading and proof in garden-variety contract cases,particularly with respect to the important issue of the plaintiffs performance. The continued evolution of substantive contract law and terminology, and the failure of the rule-making process to take these developments into account has exacerbated the problem. As a result, the federal pleading rules adopted in 1938 and many state procedural rules and statutes …