Law Commons^™

Summary Of Grisham V. Grisham, 128 Nev. Adv. Op. 60, Timothy A. Wiseman

Nevada Supreme Court Summaries

The court considered whether a written, but unsigned property settlement agreement draft, which had been entered into evidence, can be considered binding.

Summary Of United Rentals Highway V. Wells Cargo, 128 Nev. Adv. Op. 59, Joseph Sakai

Nevada Supreme Court Summaries

An appeal regarding contract language’s effect on an indemnitor’s duty to indemnify and defend an indemnitee in a personal injury action where the language provides that indemnification will occur “to the extent” that any injury or damage is “caused” by the indemintor.

Customizing Employment Arbitration, Erin O'Hara O'Connor, Kenneth J. Martin, Randall S. Thomas

Scholarly Publications

According to the dispute resolution literature, one advantage of arbitration over litigation is that arbitration enables the parties to customize their dispute-resolution procedures. For example, parties can choose the qualifications of the arbitrator(s), the governing procedural rules, the limitation period, recoverable damages, rules for discovery and the presentation of evidence and witnesses, and the specificity of required arbitrator findings. While some scholars have questioned whether parties to arbitration agreements frequently take advantage of this customization, there is little solid empirical information about the topic.

In this Article, we study the arbitration clauses found in a random sample of 910 Chief …

The Inalienable Right Of Publicity, Jennifer E. Rothman

All Faculty Scholarship

This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …

Markets As A Moral Foundation For Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic approaches to …

Setting Aside An Award Over The Mis-Application Of A Choice Of Law Clause: Quarella Spa V Scelta Marble Australia Pty Ltd [2012] Sghc 166, Darius Chan

Research Collection Yong Pung How School Of Law

In Quarella SpA v Scelta Marble Australia Pty Ltd [2012] SGHC 166, the High Court of Singapore (per Prakash J) rejected an application to set aside two related arbitration awards. The ground for setting aside was an alleged misinterpretation of a choice of law clause by the tribunal. In rejecting the application, the High Court demonstrated its unwillingness to set aside an award when the tribunal has considered and respected the choice of law clause (regardless of the interpretation the tribunal ultimately preferred). Notably, the High Court did not close the door on instances where the tribunal may have failed …

Injunction Junction: Microsoft V Motorola, Case No. 12-35352 (9th Cir. Sept. 28, 2012), Jeff Tye

GGU Law Review Blog

No abstract provided.

Side Letters, Incorporation By Reference And Construction Of Contractual Relationships Memorialized In Multiple Writings, Royce De R. Barondes

Faculty Publications

This article will examine the legal principles applicable to contractual relationships memorialized in multiple writings.

Legal Tolerance Toward The Business Lie And The Puffery Defense: The Questionable Assumptions Of Contract Law, M. Neil Browne, Kathleen M.S. Hale, Maureen Cosgrove

Economics Faculty Publications

American contract law is supposed to facilitate the efficiency and fairness of market transactions between parties. Does the increasing success of the puffery defense in false advertising and securities cases further the fairness of transactions between companies with major advertising budgets and consumers? This Article contends that it does not.

Promises Policies And Principles The Supreme Court And Contractual Obligation In Labor Relations, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Bad Faith At Middle Age: Comments On The Principle Without A Name (Yet), Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii

Faculty Publications

In this article, Robert Jerry expounds on Professor Abraham's article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself Jerry focuses on Abraham's depiction of the "specialness" and "distinctiveness" of insurance, while exploring additional instances of "rotten to the core" systemic bad faith dating as far back as the nineteenth-century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance industry, …

Bad Faith At Middle Age: Comments On “The Principle Without A Name (Yet),” Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii

UF Law Faculty Publications

In this article, Robert Jerry expounds on Professor Abraham's article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself. Jerry focuses on Abraham's depiction of the "specialness" and "distinctiveness" of insurance, while exploring additional instances of "rotten to the core" systemic bad faith dating as far back as the nineteenth century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance …

Devil In The Bidding Detail, Lisa E. Sachs, Jacky Mandelbaum, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

In light of the recent boom in natural resource prices, India is one of them many countries facing heightened scrutiny of the allocation and terms of their resource deals. In India, that scrutiny has uncovered a multi-billion dollar controversy over coal block allocations that has gridlocked Parliament. More generally, citizens in resource-producing countries around the world are asking whether the public is getting a fair value for their countries resources, or whether investors and politicians are walking away with the prize. Finally, the important questions are being asked: how should resources be managed to ensure that they benefit the citizenry, …

Apathy Vis-À-Vis The Un Convention On Contracts For The International Sale Of Goods (Cisg) In The Uk And Two Proposed Strategies For Cisg's Incorporation In The Uk Legal Order, Katerina Georgiadou

Pace International Law Review Online Companion

The 1980 UN Convention on Contracts for the International Sale of Goods (CISG or Convention) is said to have resulted out of a largely global scholarly jurisconsultorium, as it was drawn up in cooperation between scholars from around the globe. In essence, this article will examine the lack of interest and reluctance on behalf of the United Kingdom (UK) to ratify the CISG by considering the initial reactions of the UK towards the CISG, the UK’s isolationist attitude, the fact that CISG is not a legislative priority in the UK, and the objection to ratification based on unreasonable grounds. Furthermore, …

Past Consideration Or Unconnected Consideration, Yihan Goh, Man Yip

Research Collection Yong Pung How School Of Law

It is trite law that a valid and enforceable contract must be supported by consideration. The recent Court of Appeal case of Rainforest Trading Ltd v State Bank of India Singapore [2012] 2 SLR 713 is a further addition to the local jurisprudence on consideration, specifically the issue of past consideration. This note considers the specific issue of past consideration and argues that its label should be discarded in favour of a more realistic one that correctly emphasises its underlying concerns.

Summary Of Certified Fire Protection, Inc. V. Precision Construction, Inc., Et. Al., 128 Nev. Adv. Op. No. 35, Travis Akin

Nevada Supreme Court Summaries

Consolidated appeal from a district court judgment on partial findings and an appeal and cross-appeal from a post-judgment order awarding costs and denying a motion for attorney fees.

Summary Of Road & Highway Builders, Llc. V. Northern Nevada Rebar, Inc., 128 Nev. Adv. Op. No. 36, Matthew Vantusko

Nevada Supreme Court Summaries

This is a consolidated appeal in a contract action from a district court judgment on a jury verdict, and an order by the district court denying a new trial. The Court addressed whether a fraudulent inducement claim is available when the language of the underlying contract contradicts the required elements of the inducement claim; the propriety of compensatory damages awarded by the jury for lost profits in a contract claim; and the availability of punitive damages without a finding of fraud.

Summary Of Rolf Jensen & Assoc., Inc. V. Eighth Judicial Dist. Ct., 128 Nev. Adv. Op. 42, Amanda Ireland

Nevada Supreme Court Summaries

On petition for writ of mandamus challenging a denial of summary judgment, the Court considered whether the Americans with Disabilities Act (ADA) preempts state law claims for indemnification brought by an admitted violator of the ADA.

Mistaken Identity, Identity Theft And Problems Of Remote Authentication In E-Commerce, Eliza Mik

Research Collection Yong Pung How School Of Law

The problem of mistaken identity in e-commerce transactions brings together seemingly unrelated issues: privacy, network security, digital signatures – and classic contract law. The technological characteristics of the Internet have a tendency to turn traditional legal doctrines on their head, or, at least expose flaws in existing legal arguments. Combining an academic exercise with the practical implications of the insecurity of the Internet, this paper draws some unexpected conclusions regarding cases of mistaken identity. The latter must be analysed afresh with a number of factors in mind: the more widespread use of fictitious identities in on-line transactions, the higher incidence …

'How's My Doctoring?' Patient Feedback's Role In Assessing Physician Quality, Ann Marie Marciarille

Faculty Works

A society-wide consumer revolution is underway with the rise of online user-generated review websites such as Yelp, Angie’s List, and Zagat. Service provider reviews are now available with an intensity and scope that attracts increasing numbers of reviewers and readers. Health care providers are not exempt from this new consumer generated scrutiny though they have arrived relatively late to the party and as somewhat unwilling guests.

The thesis of this article is that online patient feedback on physicians is relevant and valuable even though it is also uncomfortable for health care providers. This is because the modern physician-patient relationship is …

Background Paper For Second Workshop On Contract Negotiation Support For Developing Host Countries, Vale Columbia Center On Sustainable International Investment, Humboldt-Viadrina School Of Governance

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment (CCSI) and the Humboldt-Viadrina School of Governance (HSVG) have initiated a process to discuss the desirability and feasibility of mechanisms to provide negotiation support for developing host countries in their negotiations with major investors.

At a first workshop held in October 2011, participants agreed on the need for an expansion of support for developing countries in their contract negotiations.

A second workshop was held at Columbia University in July 2012 that undertook a gap analysis between the existing sources of support for developing countries in relation to complex contracts and the countries’ needs for …

Contract And Dispossession, Deborah W. Post

Scholarly Works

This Essay, part of a collection of essays on the same theme, argues that contract law has become an instrument of oppression and dispossession rather than liberation. Having offered a critique, the challenge then is to consider whether it is possible to restore the liberatory potential of contract. The symposium, Post-Marxism, Post-Racialism & Other Fables of the Dispossession, was an invitation to consider the contemporary relevance of Marxist theory.

There are two reference points in this cultural critique. One is the importance of social position in a jurisprudence that embraces objectivity; the uncritical and unreflective reliance on hegemonic social …

Unitas Via Diversitas. Can The Common European Sales Law Harmonize Through Diversity?, Gary Low

Research Collection Yong Pung How School Of Law

The proposed Regulation for a Common European Sales Law (CESL),1 unveiled on 11 October 2011, marks the opening legislative salvo on the future of European contract law. Besides critique from private lawyers on the substantive content therein,2 the legality of the CESL under Union law may be called into question.3 The CESL cites Article 114 of the Treaty on the Functioning of the European Union (TFEU) as its legal basis." In so doing, it goes against the grain of received wisdom: virtually all the studies on the subject ruled out the use of Article 114 TFEU in favour of Article …

Contract Law, Chee Ho Tham, Pey Woan Lee, Yihan Goh

Research Collection Yong Pung How School Of Law

No abstract provided.

Promise And Private Law, Nathan B. Oman

Faculty Publications

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …

Promise Etc., Gregory Klass

Georgetown Law Faculty Publications and Other Works

This Article examines the moral obligations contractual agreements generate. It distinguishes a narrow sense of "promise," central to autonomy theories, according to which to promise is to communicate an intention to undertake an obligation by the very communication of that intention. Not every agreement involves promises in this sense. Yet nonpromissory agreements too commonly generate moral obligations. And even when a party promises to perform, her promise need not be the only reason for her moral obligation to do so. Other possible reasons include reliance, an invitation to trust, implicit or explicit, principles of reciprocity, and the harm that nonperformance …

Paper On The Business Case For Transparency, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

CCSI strongly supports the transparency of contracts and tax flows. CCSI shares the belief of many stakeholders that transparency is essential to leverage extractive industries for sustainable development and is in the mutual interest of all stakeholders. However, some industry players continue to voice the concern that increased transparency would be harmful for their business. Therefore, CCSI is working to also establish the business case for transparency.

In one such case, some industry players have been lobbying against the regulations developed by the Security and Exchange Commission to implement the mandatory disclosure provisions of the Dodd Frank Wall Street Reform …

Summary Of Schettler V. Ralron Capital Corp., 128 Nev. Adv. Op. No. 20, Jason L. Deforest

Nevada Supreme Court Summaries

The Court considered whether the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) divests a court of jurisdiction to consider any defenses or affirmative defenses not first adjudicated through FIRREA’s claims process. The Court also considered, as a matter of first impression, whether FIRREA’s jurisdictional bar extends to successors in interest to the Federal Deposit Insurance Corporation (FDIC).

The Future Of Promissory Estoppel In Singapore Law, Tiong Min Yeo

2009 Yong Pung How Professorship of Law Lecture

In the preface to the first Singapore and Malaysian edition of Cheshire, Fifoot, and Furmston’s Law of Contract in 1994, Yong Pung How CJ said: “The Singapore legal system should strive towards indigenous development, preferably by way of a rationalization of its basic laws in the first instance.”1 Singapore law has come a long way since then. In recent years we have seen significant restatements by the Singapore judiciary in diverse areas including contract law, tort law, property law, company law and the conflict of laws. This paper will examine a small but basic topic, promissory estoppel, where there have …