Law Commons^™

Coaching In The National Football League: A Market Survey And Legal Review, Robert H. Lattinville, Robert A. Boland

Marquette Sports Law Review

No abstract provided.

The Problem Of Internalization Of Social Costs In The Thought Of Ronald Coase, Enrico Baffi

enrico baffi

This work examines the influence of Coasian thought on the analysis of the concept of externalities as used by economists and legal economists. Ronald Coase, a Chicago scholar, advanced a series of critiques of the Pigovian tax system; the theorem that bears his name is merely the best known. In his 1960 work, he sought to demonstrate that the internationalization of social costs was not always socially useful. In addition, he identified other institutional solutions to which systems can – and often do – resort. One of these solutions is to simply authorize the harmful activity without introducing mechanisms to …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2005-2006, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

This article analyzes the judicial decisions involving Internet and other electronic contracts during the period from July 1, 2005 to June 30, 2006. The authors explain that this year's cases show a maturation of the common law of electronic contracts in that the judges are beginning to recognize the realities of electronic communications and to apply traditional contract principles to those communications unless the realities of the technology justifies a different result.

The Elasticity Of Contract, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Is The Cisg Benefiting Anybody?, Gilles Cuniberti

Vanderbilt Journal of Transnational Law

The Convention on Contracts for International Sale of Goods (CISG) was supposed to increase legal certainty and reduce the transaction costs of international buyers and sellers. This Article argues that none of these goals has been met. A survey of 181 court decisions and arbitral awards applying the CISG shows that the vast majority of international buyers and sellers do not address the issue of the law governing their contracts, irrespective of the value at stake. Although the data is not easy to interpret, it follows that international buyers and sellers are simply not concerned with the legal regime governing …

You Don’T Have To Be Ludwig Wittgenstein’: How Llewellyn’S Concept Of Agreement Should Change The Law Of Open-Quantity Contracts, Henry Allen Blair

Faculty Scholarship

In this article, Professor Allen Blair examines the preeminent role of exclusivity in open-quantity contracts under the Uniform Commercial Code (“UCC”). Although the text of the UCC does not mandate that open-quantity contracts be exclusive, the vast majority of courts considering the issue have held that exclusivity is necessary to prevent such contracts from failing for lack of mutuality of obligation. The Article traces the historic development of open-quantity agreements, focusing on pre-Code cases recognizing the commercial utility of such agreements but struggling with how to accommodate them under a classical model of contract formation. It was in this historic …

Go Out And Look: The Challenge And Promise Of Empirical Scholarship In Contract Law, David Snyder

Articles in Law Reviews & Other Academic Journals

This introduction to the symposium on Empirical Scholarship in Contract Law, sponsored in January 2006 by the Contracts Section of the Association of American Law Schools and published in the Tulane Law Review, pushes for an increased focus on the real world and argues that highly quantitative statistical analyses of published judicial opinions are no more empirical than simple case notes. While this short essay argues for increased rigor in empirical research, it also recognizes the limits of scientific methods for legal analysis and suggests that the seduction of scientific appearances, now as in the days of Langdell's legal science, …

Fiduciary Duties And Unincorporated Business Entities: In Defense Of The "Manifestly Unreasonable" Standard, Mark J. Loewenstein

Publications

This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations …

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International Law, Roberto Rosas

Faculty Articles

No abstract provided.

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International Law, Roberto Rosas

Faculty Articles

An understanding of the basic principles that regulate contract formation is of great importance when deciphering the most appropriate ways of fom1ing a new contract or when assessing the legality of an already existing contract. While the basic rules of contract formation are generally applicable to all types of contracts regardless of the method utilized in their creation, there are some juridical rules that apply specifically to electronically created contracts.

It’S Not About The Money: The Role Of Preferences, Cognitive Biases And Heuristics Among Professional Athletes, Michael Mccann

Law Faculty Scholarship

Professional athletes are often regarded as selfish, greedy, and out-of-touch with regular people. They hire agents who are vilified for negotiating employment contracts that occasionally yield compensation in excess of national gross domestic products. Professional athletes are thus commonly assumed to most value economic remuneration, rather than the love of the game or some other intangible, romanticized inclination.

Lending credibility to this intuition is the rational actor model, a law and economic precept which presupposes that when individuals are presented with a set of choices, they rationally weigh costs and benefits, and select the course of action that maximizes their …

Formalism In American Contract Law: Classical And Contemporary, Mark L. Movsesian

Faculty Publications

It is a universally acknowledged truth that we live in a formalist era—at least when it comes to American contract law. Much more than the jurisprudence of a generation ago, today's cutting-edge work in American contract scholarship values the formalist virtues of bright-line rules, objective interpretation, and party autonomy. Policing bargains for substantive fairness seems more and more an outdated notion. Courts, it is thought, should refrain from interfering with market exchanges. Private arbitration has displaced courts in the context of many traditional contract disputes. Even adhesion contracts find their defenders, much to the chagrin of communitarian scholars.

This is …

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

Faculty Articles

The “surprise or hardship” approach to UCC section 2-207 is the approach courts should use to determine the applicability of liability clauses in the battle of the forms. However, courts use varying approaches to decide whether clauses limiting liability materially alter the contract under UCC section 2-207. Courts have adopted three different approaches: (1) the per se material alternation approach; (2) the per se not material alternation approach; and (3) the “surprise or hardship” approach.

The per se material alteration approach focuses on the surprise or hardship factors found in comment 4 of section 2-207; however, that approach is flawed …

Choice Of Law In Contracts: A Chinese Approach, Mo Zhang

Northwestern Journal of International Law & Business

This article attempts to emphasize that the choice of law analysis in China is distinct from that of other countries, despite the fact that many of the theories and approaches originate in Western countries. The underlying argument is that the ongoing economic reform in China has become a dramatic and driving force for change in the country. This change necessarily shapes the development of choice of law in China in a unique way, and also de. monstrates how China is getting closer to the rest of world while searching for the "China brand" theory and approach in this regard. What …

An Empirical Study Of Securities Disclosure Practice, Mitu Gulati, Stephen J. Choi

Faculty Scholarship

Using a dataset of sovereign bond offering documents and underlying bond contracts for ten sovereign issuers from 1985-2005, we examine the securities disclosure practices of issuers and attorneys. The sovereign bond market is comprised of sophisticated issuers with highly paid law firms. If anyone complies fully with federal securities disclosure requirements, we expect sovereign issuers and their attorneys to do so. On the other hand, network effects that determine what information issuers chose to disclose as well as the high cost of determining what information is required for disclosure may lead issuers to fail to meet their disclosure duties. We …

Judicial Incorporation Of Trade Usages: A Functional Solution To The Opportunism Problem, Juliet P. Kostritsky

Faculty Publications

Article 2 of the UCC directed courts to look to business norms as a primary means of interpreting contracts. Recently the new formalists have attacked this strategy of norm incorporation as a misguided one that will lead inevitably to significant error costs. Accordingly, they have embraced plain meaning as the preferred interpretive strategy. This article argues that the strategy of rejecting trade usages unless they are part of the express contract is too rigid. The rejection is premised on an overly narrow cost/benefit analysis that fails to account for the functional role that such usages may play in curbing opportunistic …

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Journal Articles

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In …

Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White

Articles

This Article is structured as follows. Part I compares the terms and conditions in the purchase orders of the Original Equipment Manufacturers (OEMs) and highlights important differences in the substance of these boilerplate provisions. It argues that these differences cannot be easily reconciled with the prediction that sophisticated parties draft the most efficient boilerplate terms. Part II examines how these forms are drafted, how their terms are negotiated, and how the OEMs guard their terms from erosion. It provides some insight on how tailoring occurs and how the internal organization of a party to a deal affects the terms that …

Remedies For Breach Of An Obligation: A Look At The Remedies' Section Of The New Israeli Civil Code, Dr. Yehuda Adar, Prof. Gabriela Shalev

Yehuda Adar Dr.

-This article is in Hebrew-

The remedies section in the new Israeli draft civil code is an endeavor to create a unified law of remedies, applicable to all branches of civil and commercial law, including torts and breach of contract. This article explores the main innovations included in the remedies section. It opens with a short overview of the status of the law of remedies in modern times, and the debate over the justification for unifying it. Then, in the remainder of the article, the authors examine the various changes, in terms of both structure and substance, reflected in the …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2005-2006, Juliet M. Moringiello, William L. Reynolds Ii

Juliet M. Moringiello