Law Commons^™

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Christopher Byrne

No abstract provided.

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Peter A. Alces

No abstract provided.

Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces

Peter A. Alces

No abstract provided.

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Peter A. Alces

No abstract provided.

Mistake In Contract Law, Melvin A. Eisenberg

Melvin A. Eisenberg

Develops the legal rules that should govern mistake in contract law on a functional basis. Types of mistake that are relevant in contract law on the basis of their character; Reasons of efficiency and morality that apply to cases in which a non-mistaken party knew or had reason to know that a payment was mistakenly made; Distinction between mistaken factual assumptions and evaluative mistakes.

Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge

Mark Edwin Burge

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French

Christopher C. French

The Harmonization Of Browsewrap Agreements Abroad And The Protection Of American Consumers, Tinsley A. Ashley

Tinsley A Ashley

No abstract provided.

Consumer Protection, Hijacking And The Concepcion Cases, Brandy G. Robinson

Brandy G Robinson

Since its ruling, AT&T Mobility v. Concepcion has been the subject of scrutiny among many people in both the business and legal industries. The ruling’s significance denotes class arbitration is no longer a viable option in certain types of litigation matters. Yet, courts continue to defy this ruling. Post-Concepcion cases help in exploring why there is such a discord and confusion on whether class arbitration or any class alternative dispute resolution method are allowable.This article briefly examines AT&T Mobility LLC v. Concepcion and post-Concepcion cases and what remains for consumers and consumer law attorneys after Concepcion. The article also provides …

Studying Is Dangerous? Possible Federal Remedies For Study Abroad Liability, Robert J. Aalberts, Chad G. Marzen, Darren A. Prum

Chad G. Marzen

Every year, thousands of U.S. students study abroad for academic credit. Study abroad programs have traditionally garnered strong congressional support, and proponents of the programs emphasize the educational, cultural, and diplomatic benefits from study abroad experiences.

Despite the many benefits of study abroad programs, risks are incurred overseas. In the past several years, a number of incidents have resulted in which students studying abroad have not only incurred physical harm, but in some instances have died while enrolled in a study abroad program. The current liability standards governing study abroad programs are murky. This article not only discusses the various …

The Personal Liability Of Insurance Claims Adjusters For Insurance Bad Faith, Chad G. Marzen

Chad G. Marzen

One of the currents of change sweeping through the insurance industry is the rise of insurance bad faith liability. There is an emerging legal question today as to whether the individual employee adjusters of insurance companies can be subject to bad faith liability.This article examines the question of whether employee-adjusters of insurance companies can and should be held liable for insurance bad faith liability. Early reported cases involving personal liability for bad faith generally held that insurance company employee adjusters were immune from bad faith claims as they were not in privity of contract with insureds. However, three significant decisions …

Are "Legal" Marijuana Contracts "Illegal"?, Luke M. Scheuer

Luke M Scheuer

Illegal Agreements And The Lesser Evil Principle, Chunlin Leonhard

Chunlin Leonhard

Illegal agreement disputes force U.S. courts to wrestle with multiple competing interests. The courts’ approach has been generally explained and understood in terms of the general rule of non-enforcement of illegal agreements with numerous exceptions. The case law on this topic has been described as “a vast, confusing and rather mysterious area of the law.” This article offers the insight that, contrary to common belief, courts’ approach to illegal agreements shows a consistent pattern. A review of randomly selected cases shows that the courts have by and large consistently (albeit implicitly) applied the lesser evil principle in resolving the disputes. …

The Software Licensing Dilemma, Nancy S. Kim

Nancy Kim

No abstract provided.

Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre

Jorge A Mestre

No abstract provided.

Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh

Shubha Ghosh

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of …

Public Policy Considerations Concerning Insurance Bad Faith And Residual Market Mechanisms, Chad G. Marzen

Chad G. Marzen

The question of whether first-party insurance bad faith liability should be extended upon a state-run property insurer is an unresolved one in many jurisdictions. This article contributes to the contemporary literature regarding bad faith in insurance by comprehensively analyzing the history of, the nature of the claims associated with, and public policies concerning the imposition of bad faith liability upon state-run property insurers. This article makes it contribution by arguing the courts should not impose first-party bad faith liability on state-run property insurers who operate in the residual property insurance market.

A Case Study In Collaborative Technology And The Intentionally Relational Contract: Building Information Modeling And Construction Industry Contracts, Carl J. Circo

Carl J. Circo

Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall

Brian M McCall

In a general sense, St. Thomas Aquinas predicted the paralysis and chaos of the financial and economic systems in America and Europe which occurred in 2008, when he predicted that in a society where unjust exchanges dominate, eventually all exchanges will cease. St. Thomas also points out that although human law cannot prohibit all injustice, society cannot escape the consequences of transgressing the divine law which leaves “nothing unpunished.” Thus, at least part of the explanation for that crisis whose effects remain with us today lies in continuous violations of natural justice by our economic system. Neither one product nor …

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes In Light Of Catholic Social Doctrine), Brian M. Mccall

Brian M McCall

En sentido general, Santo Tomás Aquino predijo la parálisis y el caos del sistema financiero económico en Estados Unidos y Europa que ocurrió en 2008, cuando predijo que en una sociedad donde los intercambios injustos dominan, eventualmente todos los intercambios podrán cesar. Santo Tomás también señala que aunque la ley humana no pueda prohibir todas las injusticias, la sociedad no puede escapar de las consecuencias de trasgredir la ley divina que no deja nada en la impunidad. Así, al menos una parte de la explicación para esta crisis cuyos efectos permanecen con nosotros en la actualidad se encuentra en las …

Are All Contracts Alike?, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

Flawed Transparency: Shared Data Collection And Disclosure Challenges For Google Glass And Similar Technologies, Jonathan I. Ezor

Jonathan I. Ezor

Current privacy law and best practices assume that the party collecting the data is able to describe and disclose its practices to those from and about whom the data are collected. With emerging technologies such as Google Glass, the information being collected by the wearer may be automatically shared to one or more third parties whose use may be substantially different from that of the wearer. Often, the wearer may not even know what information is being uploaded, and how it may be used. This paper will analyze the current state of U.S. law and compliance regarding personal information collection …

Too Complex To Perceive?: Drafting Cash Distribution Waterfalls Directly As Code To Reduce Complexity And Legal Risk In Structured Finance, Master Limited Partnership, And Private Equity Transactions, Ralph Carter Mayrell

Ralph Carter Mayrell

The intricate procedural and data-driven decision trees that play a critical role in complex financial contracts like cash distribution waterfalls in structured finance agreement indentures (e.g., collateralized debt obligations (CDOs)), master limited partnership agreements, and private equity fund agreements are inefficiently depicted as written contracts. As Professor Henry Hu explains in Too Complex to Depict?, the difficulty of translation—or depiction—between original mathematical models, plain English prospectuses, legal contracts, and programmed execution means that often the written depictions that form the basis of disclosures do not accurately define the act of execution. To overcome this, the SEC proposed an amendment to …

An All Of The Above Theory Of Legal Development, Larry A. Dimatteo

Larry A DiMatteo

This paper reviews different theories of legal development in order to highlight their similarities and differences. In the end, as in contract theories, no monist view of legal development possesses the explanatory power needed to understand how law has come to be and where it may take us in the future. What we do have is a foundation built on at least two millennia of legal history. The intellectual starting point for this project is Nathan Isaacs’ unfinished work on a cycle theory of legal development. His view of legal development takes issue with Henry Sumner Maine’s thesis that development …

Much Ado About Nothing?: What The Numbers Tell Us About How State Courts Apply The Unconscionability Doctrine, Susan D. Landrum

Susan Landrum

No abstract provided.

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …

Contract Clauses As Public Goods: A New Way Of Understanding Inefficient Clauses, Enrico Baffi

enrico baffi

he aim of this work is to show how it is possible to identify market failures other than those traditionally identified by lawyers and law and economics scholars to justify the mandatory provisions of contracts between professionals and consumers and the equally mandatory provisions governing the abuse of economic dependency. This is a new approach that can be extended to other provisions and appears to rest on fairly solid microeconomic foundations. There is no doubt, however, that many criticisms can be leveled against it. Very briefly, I shall argue that the production of clauses characterized by being rather vague, indeterminate …