Law Commons^™

Expecting Specific Performance, Tess Wilkinson-Ryan, David Hoffman, Emily Campbell

Articles

Using a series of surveys and experiments, we find that ordinary people think that courts will give them exactly what they bargained for after breach of contract; in other words, specific performance is the expected contractual remedy. This expectation is widespread even for the diverse array of deals where the legal remedy is traditionally limited to money damages. But for a significant fraction of people, the focus on equity seems to be a naïve belief that is open to updating. In the studies reported here, individuals were less likely to anticipate specific performance when they were briefly introduced to the …

Defeating The Empire Of Forms, David Hoffman

Articles

For generations, contract scholars have waged a faint-hearted campaign against form contracts. It’s widely believed that adhesive forms are unread and chock full of terms that courts will not, or should not, enforce. Most think that the market for contract terms is broken, for both employees and consumer adherents. And yet forms are so embedded in our economy that it’s hard to imagine modern commercial life without them. Scholars thus push calibrated, careful solutions that walk a deeply rutted path. Notwithstanding hundreds of proposals calling for their retrenchment, the empire of forms has continued to advance into new areas of …

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Adhesive Terms And Reasonable Notice, Nancy S. Kim

Articles

This Article challenges the conceptualization of adhesive forms as contracts and introduces a taxonomy of adhesive terms. It argues that this classification system should be used to determine which adhesive terms are in fact contractual rather than depending upon the self-serving “contracts” label that businesses use to identify their terms. Even if contract law is not the proper framework, torts, property, and other legal and regulatory regimes may determine the enforceability and effect of adhesive terms.

Thus, this Article is both a deconstruction of standard form contracts and a reconstruction. Courts typically apply the standard of reasonable notice to assess …

Contract Design When Relationship-Specific Investment Produces Asymmetric Information, Albert H. Choi, George Triantis

Articles

Under conventional contract theory, contracts may be efficient by protecting relationship specific investment from holdup in subsequent (re)negotiation over terms of trade. This paper demonstrates a different problem when specific investment also provides significant private information to the investing party. This is fairly common: for example, a manufacturer invests to learn about its buyer's idiosyncratic needs or a collaborator invests to learn about a joint venture. We show how such private information can lead to subsequent bargaining failure and suboptimal ex ante relationship-specific investment. We also show that this inefficiency is worse if the parties enter into a binding and …

Consumer Psychology And The Problem Of Fine Print Fraud, Roseanna Sommers, Meirav Furth-Matzkin

Articles

This Article investigates consumers' beliefs about contracts that are formed as a result of fraud. Across four studies, we asked lay survey respondents to judge scenarios in which sellers use false representations to induce consumers to buy products or services. In each case, the false representations are directly contradicted by the written terms of the contract, which the consumers sign without reading. Our findings reveal that lay respondents, unlike legally trained respondents, believe that such agreements are consented to and will be enforced as written, despite the seller's material deception. Importantly, fine print discourages consumers from wanting to take legal …

The Private Law Critique Of International Investment Law, Julian Arato

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This Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.

Contracts Mattered As Much As Copyrights, Robert W. Gomulkiewicz

Articles

Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. Contracts gave copyrights vitalilty. This article explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern “internet” at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from archival research, the article shows how this network of copyright contracts advanced an important goal of copyright: the spread of ideas and information throughout all parts of society. Appreciating the historical significance of copyright contracts provides valuable context for modern debates about copyright policy. Indeed, …

A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew

Articles

The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical …

Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew

Articles

This article reveals evidence-based details of the China International Economic and Trade Arbitration Commission (CIETAC) arbitral proceedings (1990-2000), allowing unprecedented insights into Chinese international business arbitration. It begins by confirming the prominence of Chinese foreign trade and foreign investment in the global economy and CIETAC’s critical role in securing that prominence. Among other results, the empirical study of CIETAC awards finds: (i) the parties were of diverse nationalities, most commonly with disputes between a Chinese party and a foreign party; and (ii) the majority of cases were sales and trade disputes, although a sizable number were investment/joint venture disputes. Regarding …

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Articles

Mandatory pre-dispute arbitration clauses are pervasive in consumer financial and investor contracts—for credit cards, bank accounts, auto loans, broker-dealer services, and many others. These clauses often ill serve households. Consumers are typically presented with contracts on a “take it or leave it” basis, with no ability to negotiate over terms. Arbitration provisions are often not clearly disclosed, and in any event are not salient for consumers, who do not focus on the importance of the provision in the event that a dispute over the contract later arises, and who may misforecast the likelihood of being in such a dispute. The …

U.S. Defense Contracts During The Tax Expenditure Battles Of The 1980s, Susan J. Guthrie, James R. Hines Jr.

Articles

This paper considers the impact of the tax treatment of military contractors on the cost and timing of U.S. military procurement. Prior to the early 1980s, taxpayers were permitted to defer tax obligations on profits earned from long-term contracts. Legislation passed in 1982, 1986, and 1987 required that at least 70 percent of the profits earned on long-term contracts be taxed as accrued, thereby significantly reducing the tax benefits associated with long term contracting. Comparing contracts that were ineligible for these tax benefits with those that were eligible, it appears that between 1981–1989 the duration of U.S. Department of Defense …

Enforcement Of Open Source Software Licenses: The Mdy Trio's Inconvenient Compliations, Robert W. Gomulkiewicz

Articles

The Federal Circuit’s ruling in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)] finally settled the question of whether open source licenses are enforceable. Unfortunately, three recent cases from the Ninth Circuit have complicated matters. I call this trio of cases the “MDY Trio” in honor of the Ninth Circuit’s prior trio of licensing cases known as the “MAI Trio.”

On the surface, the MDY Trio provides a boost for the enforceability of software licenses, but the MDY Trio also creates two significant complications for open source licenses. First, the MDY Trio’s test for distinguishing between licenses and copyright …

The Invention Of Common Law Play Right, Jessica D. Litman

Articles

This Article explores playwrights' common law "play right." Since this conference celebrates the 300th birthday of the Statute of Anne, I begin in England in the 17th Century. I find no trace of a common law playwright's performance right in either the law or the customary practices surrounding 17th and 18th century English theatre. I argue that the nature and degree of royal supervision of theatre companies and performance during the period presented no occasion (and, indeed, left no opportunity) for such a right to arise. I discuss the impetus for Parliament's enactment of a performance right statute in 1833, …

The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz

Articles

Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …

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

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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 …

Getting Serious About User-Friendly Mass Market Licensing For Software, Robert W. Gomulkiewicz

Articles

Software publishers use standard form end user licenses (“EULAs”) in mass market transactions on a regular basis. Most software users find EULAs perplexing and generally ignore them. Scholars, however, have focused on them intently. In the past twenty years over a hundred scholarly articles have been written on the subject. Most of these articles criticize EULAs and argue that courts should not enforce them. In their critique of EULAs, some scholars examine the adequacy of the offer, acceptance, and consideration. Others discuss EULAs as part of the troublesome issue of standard form contracting, and whether standard forms, on balance, harm …

The New Contract: Welfare Reform, Devolution, And Due Process, Christine N. Cimini

Articles

This Article analyzes the due process implications of the change in welfare administration from a federal statutory entitlement model to the devolved contractual model and posits that, despite the changes, due process protections still exist. These protections arise from the private law of contracts on two different levels. The first level is the macro, or implied, contract, that I refer to as the social contract between the government and the populace. The existence of this social contract is evidenced in numerous sources including: political theories that explore the use of governmental authority; foundational democratic legal sources, such as the Declaration …

Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz

Articles

Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.

The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect …

International Trade Law And The Arbitration Of Administrative Law Matters: Farrel V. U.S. International Trade Commission, Ronald A. Brand

Articles

With support from the executive branch, Congress, and the courts, arbitration has become an increasingly popular method of international dispute resolution. While agreements to arbitrate traditionally were frowned upon, particularly when the dispute involved certain “public law” or “statutory” matters, the situation has changed dramatically in the past few decades. United States courts now routinely order arbitration of disputes implicating important policy issues in securities, antitrust, Racketeer Influenced and Corrupt Organizations (“RICO”), and employment law matters. By the end of the 1980’s, the presence of a public or “statutory” issue seemed no longer to be a distinguishing factor; arbitration, when …

A Seed Germinates: Unjust Discharge Reform Heads Toward Full Flower, Theodore J. St. Antoine

Articles

In this paper, I shall briefly review the nature and limitations of the theories most frequently invoked by the courts in dealing with wrongful dismissal. I shall then examine the major arguments for and against a general overhaul of the doctrine of employment at will. Lastly, I shall discuss some of the particular questions that will have to be addressed in fashioning a statutory solution.

Employment At Will: The French Experience As A Basis For Reform, Madeleine M. Plasencia

Articles

Roughly one-quarter of the workers in the United States are represented by unions, leaving three-quarters subject to the vicissitudes of the employment-at-will doctrine.' At-will employees, as a general matter, lack protection against dismissal without cause.2 That is, an employer may dismiss an "at will" employee without notice, "for good reason, bad reason or no reason at all," so long as the proffered reasons for dismissal do not violate random whistle-blowing provisions or federal and state anti-discrimination statutes.' The mirror image of the employer's right to dismiss at will is the right of an employee who was hired to perform work …

The Effects Of Inflation On The Law Of Obligations In Argentina, Brazil, Chile And Uruguay, Keith S. Rosenn

Articles

No abstract provided.

Washington Timber Deeds And Contracts, Ralph W. Johnson

Articles

The law of Washington concerning the interests conveyed by timber deeds and contracts is foggy. Many vital questions are still totally unanswered, or have been left in confusion, by the cases in point. The principal area of doubt revolves around the question of whether standing timber, which has been sold separately from the land on which it stands, is realty or personalty. The answer is vital for many reasons. It determines whether a husband has power as manager of the community to convey community-owned timber without his wife's signature, which statute of frauds applies to a timber transaction, which recording …

Washington Timber Deeds And Contracts, Ralph W. Johnson

Articles

The law of Washington concerning the interests conveyed by timber deeds and contracts is foggy. Many vital questions are still totally unanswered, or have been left in confusion, by the cases in point. The principal area of doubt revolves around the question of whether standing timber, which has been sold separately from the land on which it stands, is realty or personalty. The answer is vital for many reasons. It determines whether a husband has power as manager of the community to convey community-owned timber without his wife's signature, which statute of frauds applies to a timber transaction, which recording …

Contracts For The Benefit Of A Third Person In Michigan, Grover C. Grismore

Articles

In the recent case of Preston v. Preston the supreme court of Michigan had occasion to consider the question as to whether or not one for whose benefit a contract is made has any enforcible rights. The suit was one 'in Chancery, the donee plaintiff was an invalid, and every consideration of justice and equity demanded that she be given relief. The court had, however, to face the fact that in recent cases it had indicated its opinion to be that the third party beneficiary has no rights. In Modern Maccabees v. Sharp, (1910) 163 Mich. 449, 456 the court …

Conflict Of Laws--The Law Controlling The Validity Of A Married Woman's Contract, Victor H. Lane

Articles

The case of Poole v. Perkins (Va.), IO S. E. 240, involves that troublesome question of whether the validity of a contract is to be ruled by the law of the place where made, or by that of the place of performance.

The 'Right' To Break A Contract, Willard T. Barbour

Articles

It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is …

The 'Right' To Break A Contract, Willard T. Barbour

Articles

It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is …

Contract Limitations Of The Common Carrier's Liability, Edwin C. Goddard

Articles

When Mr. Justice NELSON, in the New Jersey Steam Navigation Company v. Merchants Bank, speaking of the power of a common carrier by special agreement to restrict his obligation, said for the court: "We are unable to perceive any well founded objection to the restriction," he opened the way for an amount of litigation which, in volume and expense, both to carriers and shippers, scarcely finds its equal on any other question. The Supreme Court of North Carolina was well within the limit when it said: "The right of a common carrier to limit or diminish his general liability by …