Law Commons^™

Contracts As Organizations, D. Gordon Smith, Brayden G. King

Faculty Scholarship

Empirical studies of contracts have become more common over the past decade, but the range of questions addressed by these studies is narrow, inspired primarily by economic theories that focus on the role of contracts in mitigating ex post opportunism. We contend that these economic theories do not adequately explain many commonly observed features of contracts, and we offer four organizational theories to supplement-and in some instances, perhaps, challenge-the dominant economic accounts. The purpose of this Article is threefold: first, to describe how theoretical perspectives on contracting have motivated empirical work on contracts; second, to highlight the dominant role of …

Reforming Regulation In The Markets For Home Loans, Edward J. Janger, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Justifying Board Diversity, Lawrence M. Solan, James A. Fanto, John M. Darley

Faculty Scholarship

No abstract provided.

Freedom Of Contract Vs. Free Alienability: An Old Struggle Emerges In A New Context, Neil B. Cohen, William Henning

Faculty Scholarship

No abstract provided.

Known And Unknown, Property And Contract: Comments On Hoofnagle And Moringiello, James Grimmelmann

Faculty Scholarship

No abstract provided.

Website Design As Contract, Woodrow Hartzog

Faculty Scholarship

Few website users actually read or rely upon terms of use or privacy policies. Yet users regularly take advantage of and rely upon website design features like privacy settings. To reconcile the disparity between boilerplate legalese and website design, this article develops a theory of website design as contract. The ability to choose privacy settings, un-tag photos, and delete information is part of the negotiation between websites and users regarding their privacy. Yet courts invariably recognize only the boilerplate terms when analyzing online agreements. In this article, I propose that if significant website features are incorporated into the terms of …

Drafting A Model Collective Action Clause For Eurozone Sovereign Bonds, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

In the wake of the Eurozone sovereign debt crisis, the European financial authorities announced last November that all Eurozone sovereign bonds issued after mid-2013 must contain an identical collective action clause (CAC) in order, if necessary, to facilitate a restructuring of those
instruments.

CACs in sovereign bonds have been the subject of considerable attention over the last ten years. They were introduced into sovereign bonds governed by U.S. law only in early 2003. Yet a surprising number of versions of the clause can be found in modern sovereign bonds.

The history of the research and development of this contractual provision …

Introductory Note To The International Centre For Settlement Of Investment Disputes: Aes Summit Generation Ltd. V. Republic Of Hungary, Charles O. Verrill Jr.

Faculty Scholarship

No abstract provided.

Contracts Meet Henry Ford, Barak D. Richman

Faculty Scholarship

Legal scholars and legal educators view contracts as a welfare-maximizing (or optimal risk-allocating) device for two or more parties. Because we cling to this principal-driven paradigm, we think of lawyers only as the proverbial “transaction cost engineers,” the loyal agents of parties to a transaction. And whenever we observe contracts that appear to be suboptimal, we blame agency costs. We instead should apply the literature on organizational economics to understand the production of contracts by the modern law firm. This literature better illustrates how law firms organize, why they produce the products they do, and why those products sometimes exhibit …

Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

The Unenforceable Corrupt Contract: Corruption And Nineteenth Century Contract Law, Zephyr Teachout

Faculty Scholarship

This paper explores the 19th century practice of courts refusing to enforce "corrupt" contracts as against public policy.

After Frustration: Three Cheers For Chandler V. Webster, Victor P. Goldberg

Faculty Scholarship

Performance of a contract can be excused by a number of circumstances, notably impossibility, impracticability, and frustration. When performance is excused there remains the question of how to treat any payments or expenditures that were made prior to the occurrence of the contract-frustrating event. In Chandler v. Webster, the English courts decided over a century ago that the parties should be left where they were at the time of the frustrating event. Forty years later that holding was overturned so that now recovery might be had both for restitution of payments made prior to the event and for expenditures …

Contract's Adaptation And The Online Bargain, Nancy Kim

Faculty Scholarship

The model of traditional contracts is that of two individuals negotiating terms that are to each party's advantage. This model persists even though it no longer reflects the reality of consumer contracts. This Article traces the evolution of modern day consumer contracts and explains how courts have accommodated business needs by distorting contract law. This Article argues that the doctrine of consideration should be reconceptualized in light of new technologies and changes in doctrinal application. It concludes that in order to restore contract law's legitimacy, courts must allocate the burdens of technological and doctrinal changes in a more evenhanded manner. …

Contract, Uncertainty, And Innovation, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

Faculty Scholarship

Contract today increasingly links entrepreneurial innovations to the efforts and finance necessary to transform ideas into value. In this chapter, we describe the match between a form of contract that “braids”1 formal and informal contractual elements in novel ways and the process by which innovation is pursued.

Political Risk And Sovereign Debt Contracts, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

Default on sovereign debt is a form of political risk. Issuers and creditors have responded to this risk both by strengthening the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and by creating terms that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce …

The Three And A Half Minute Transaction: Boilerplate And The Limits Of Contract Design, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Last fall we gave a faculty workshop at the Hofstra University School of Law on an early version of our book manuscript, The Three and a Half Minute Transaction. The resulting debate was lively and the discussion ranged over a wide variety of topics. The end result, much to our delight, was that the editors of the Hofstra Law Review suggested a symposium where they would invite a group of eminent scholars and practitioners to react to the manuscript. The hope was that those reactions would generate a further debate akin to the one we had at the workshop. …

Traynor (Drennan) Versus Hand (Baird): Much Ado About (Almost) Nothing, Victor P. Goldberg

Faculty Scholarship

Most Contracts casebooks feature either Baird v. Gimbel or Drennan v. Star Paving to illustrate the limits on revocability of an offer. In this article an analysis of the case law yields three major conclusions. First, as is generally known, in the contractor-subcontractor cases Drennan has prevailed. However, both it and its spawn, Restatement 2d E 87(2), have had almost no impact outside that narrow area. Moreover, almost all the cases involve public construction projects – private projects account for only about ten percent of the cases. This suggests that private parties have managed to resolve the problem contractually. Public …