Law Commons^™

Consumers Want To Be In Europe; Corporations Want To Be In The U.S.: How To Reform Mandatory Consumer Arbitration Agreements To Be Fair To Both Parties, Kelly Parfitt

Kelly Parfitt

Arbitration is a popular method of resolving legal disputes between businesses. However, in the last few years, corporations have begun putting mandatory consumer arbitration agreements in small print on sales contracts and receipts for consumer goods, credit cards, and mortgages. Consumers are forced to pay fees much higher than court costs, depending on the case. An arbitrator will do hundreds of cases with the same corporations, be familiar with and even in some cases be affiliated with the corporation. This system results in the overwhelming majority of cases being won by corporations. But in the European Union, consumers are given …

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

William L. Reynolds

No abstract provided.

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

Juliet M. Moringiello

No abstract provided.

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

William L. Reynolds

No abstract provided.

What Is A Contract?, Sidney W. Delong

Sidney W DeLong

ABSTRACT: A contract is generally understood to be a legal duty that is deliberately created by the obligor and the obligee. But that description misses many legal relationships that are similarly created and are essential to the institution of private ordering. Hohfeld referred to these non-duty relations as privileges, powers, and immunities. In ruling on their formation and legal effect, courts often mislabel these other relationships as “contracts” in order to apply borrowed contract doctrines, such as consideration. Courts fail, however, to rationalize the application of borrowed rules to such different relationships. This article proposes that the fiction be dropped …

A Legal Chameleon -- An Examination Of The Good Faith Doctrine In Chinese And U.S. Contract Laws, Chunlin Leonhard

Chunlin Leonhard

When China promulgated its first comprehensive contract law a decade ago, it ostensibly adopted the good faith doctrine as a basic contract law principle. The Contract Law of the People’s Republic of China (“Chinese Contract Law”) requires that parties observe good faith as a general principle. The U.S. contract law has also generally recognized the good faith doctrine as a “fundamental concept of modern contract jurisprudence.” Advocates on both sides of the Pacific praise the doctrine for its elasticity and adaptability which allow the courts to use the doctrine to fill in gaps where necessary. Detractors on both sides of …

Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes

Wayne Barnes

Standard form contract are ubiquitous, whether signed in the real world or clicked in the online world. Consumers are constantly entering into standard form contracts with the merchants they transact with in order to buy goods or services. Consumers, however, are usually aware of only the basic terms in the form like price, subject matter, and quantity. Consumers otherwise rarely read the form contracts that they sign. However, traditional contract law and the duty to read provide that the consumer is bound to all the terms contained in the form contract, both the known terms and the unread and unknown …

Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne R. Barnes

Wayne R. Barnes

Collective Bargaining Agreements In Discrimination Cases: Forum Shopping Their Way Into A New York District Court Near You!, George Klidonas

George Klidonas

There has recently been a divergence of opinion between the state courts and the district courts in New York on the issue of whether a unionized employee must arbitrate discrimination claims in light of a collective bargaining agreement mandating alternative dispute resolution. The problem that New York is faced with is that the New York courts recently failed to properly delineate a standard of what a clear and unmistakable waiver. Furthermore this "split" between the federal and state courts with regards to these arbitration provisions will cause forum shopping by claimants, heavily favoring federal courts. A trilogy of Supreme Court …

From The Mouths Of Babes: Protecting Child Authors From Themselves, Julie Cromer Young

Julie Cromer Young

This article explores the explosion of copyright protection now granted to authors under the age of eighteen, the age of majority in most states. Historically, contracting parties have been able to use the doctrine of infancy to disaffirm contracts they made when they were not yet of legal age. The Internet is changing this. As with most Internet sites, sites targeted at minors require young authors to accept terms of use in order to publish and distribute works online. Those terms and conditions often compromise the copyrights of the child authors, preventing them from reclaiming the licenses once the authors …

Issues Of Indemnity In Issuing Performance Bond:, Aziz Abdul Hussin

Aziz Abdul Hussin

The exixtence of peformance bond in the construction contact is a must. But, before issuing the said bond, the issuing party (the bank or insurance company) need to be indemnified. There are several issues on this type of indemnity that needs to be highlighted, clarified and resolved. This article discusses the said matters in Malaysian legal perspective and practises.

Thwack!! Take That, User-Generated Content!: Marvel Enterprises, Inc. V. Ncsoft Corp., Carl M. Szabo

Carl M Szabo

Dear Madam or Sir: As seen in the attached note, I am to make two contributions. First, I address the issue of copyright liability of websites for infringement by the website users. A constant struggle as old as the constitution itself, the issue of copyright protection now makes its way into the virtual world of the internet. While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed could endanger the protection afforded to authors …

Dividing The Surplus Upon Termination: The Case Of Relational Contracts, Ofer Grosskopf

Ofer Grosskopf

Relational contracts typically create value which survives the end of the contractual relationship. Married couples accumulate matrimonial property that remains valuable long after they had ceased to value each other. Employees perform tasks which still have value after they had moved on to another workplace. Agents and distributors develop the markets for the products they distribute, thus creating good-will that will outlast their commercial relationships with the manufacturers. In all such cases a similar question arises: how to distribute the value which survives after the contractual relationships had been dissolved? This paper aims to offer descriptive and normative insights into …

Virtual Territoriality, Edward J. Janger

Edward J. Janger

Abstract Virtual Territoriality Edward J. Janger David M. Barse Professor Brooklyn Law School Current efforts to unify the laws of secured credit and bankruptcy are predicated on the belief that regularizing the law of debtor’s rights and creditor’s remedies will cause global business to flourish, and benefit both developed and less-developed countries. Certain and predictable remedies for creditors will facilitate lending and development, and coordination among courts will create opportunities to protect the going concern value of troubled businesses. The benefits that accompany such legal harmonization may, however, come at a price. Centralizing control of a bankruptcy case may create …

Recovery Of Interest On A Tax Underpayment Caused By A Tax Advisor's Negligence, Jacob L. Todres

Jacob L. Todres

OUTLINE/ABSTRACT

Page

Part I 2 INTRODUCTION

Part II 4 RECOVERABILITY OF INTEREST ON A TAX UNDERPAYMENT —THREE VIEWS

Presentation and explanation of the traditional, majority view, allowing the recovery of such interest; the minority view, prohibiting the recovery of such interest; and the modern, intermediate view, permitting the recovery of such interest only when the plaintiff paid more interest than the interest earned by the use of the tax underpayment.

Part III 20 THE DEVELOPMENT AND STATUS OF THE THREE VIEWS

History of the development of each of the views leading to a tally of the states currently following each …

Taking Lochner Out Of The Closet, Joseph F. Morrissey

Joseph F. Morrissey

This article, “Taking Lochner Out of the Closet,” is at the intersection of contract law, constitutional law, and sexual orientation law. The article offers a fresh and neutral analytical framework based on liberty of contract to advance gay rights. The framework might also be applied to other areas of concern where government regulation must be justified.

With respect to gay rights specifically, many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation. Advocates frequently argue that such …

Paying To Break Up: The Metamorphosis Of Reverse Termination Fees, Afra Afsharipour

Afra Afsharipour

Despite our giving lip service to the binding nature of contracts, every law student learns that there are numerous possible “outs” or “walk away rights” associated with any contract. This Article examines one particular walk away right – the reverse termination fee (RTF) – in one particular category of acquisition transactions – strategic transactions.

In sophisticated acquisitions involving public companies, the risk that one party may walk away from the transaction is particularly high because there is generally an interim period between the signing of the agreement and the completion of the acquisition. Accordingly, acquisition agreements are peppered with various …

Contract Adjudication In A Collaborative Economy, Matthew C. Jennejohn

Matthew C Jennejohn

In order to explore the debate between contextualist versus formalist contract interpretation, this article examines dispute resolution procedures in a novel class of contracts: agreements governing inter-firm collaboration. Analysis of these contracts reveals two phenomena: first, agreements governing collaboration include arbitration clauses more frequently than other commercial contracts; and second, these agreements routinely situate arbitration at the summit of complex escalation procedures. These observations raise, in turn, the following inter-related questions: first, why do collaborators avoid litigation; and second, what makes escalated and private dispute resolution appropriate?

The article’s central claim is that litigation is shunned because contemporary contextualist contract …

Homes, Rights, And Communities, Paul Boudreaux

Paul Boudreaux

Homes, Rights, & Communities, by Paul Boudreaux. Homeowners associations (HOAs) and their restrictive covenants have become a way of life for millions of American families, especially in the wake of the recent housing boom. While some economically oriented writers view HOAs as a welcome manifestation of voluntary contract, others commentators argue that the often-intrusive covenants may not mirror residents’ desires and enforce a stifling conformity on our communities. In this article, Paul Boudreaux uses these criticisms and the existing law of individual rights to develop a substantive “bill of rights” for HOA residents against these covenants, using as its guiding …

Major League Baseball And The Antitrust Rules: Where Are We Now?, Harvey Gilmore

Harvey Gilmore

This essay will attempt to look into the history of professional baseball’s antitrust exemption, which has forever been a source of controversy between players and owners. This essay will trace the genesis of the exemption, its evolution through the years, and come to the conclusion that the exemption will go on ad infinitum.

Reforming The Law Of Adhesion Contracts: A Judicial Response To The Subprime Mortgage Crisis, Shelley Smith

Shelley Smith

This Article examines the role of standardized contracts of adhesion, in the form of mortgages, installment sale agreements and other contracts for debt that cannot be repaid, in causing the subprime mortgage crisis and the Great Depression. Evidence from the Great Depression, the Savings and Loan Crisis of the 1980s, and the subprime mortgage crisis is canvassed to demonstrate the futility of the government’s continued reliance on regulation alone to prevent the recurrence of these disasters, and to show that a reformulation of the law of adhesion contracts is needed. The Article contends that the courts’ continued adherence to the …

Fair Termination In An At-Will World, Rachel S. Arnow-Richman

Rachel S. Arnow-Richman

This Article proposes a fundamental shift in the movement to reform employment termination law. For forty years, there has been a near consensus among employee advocates and worklaw scholars that the current doctrine of employment at will should be abandoned in favor of a rule requiring just cause for termination. This Article contends that such calls are misguided, not (as defenders of the current regime have argued) because a just cause rule grants workers too much protection vis-à-vis management, but because it grant them too little. A just cause rule provides only a weak cause of action to a narrow …

Locating Innovation: The Endogeniety Of Technology, Organizational Structure And Financial Contracting, Ronald J. Gilson

Ronald J. Gilson

There is much we do not understand about the “location” of innovation; the confluence, for a particular innovation, of the technology associated with the innovation, the innovating firm’s size and organizational structure, and the financial contracting that supports the innovation. This article develops the theme that these three determinants of the location of innovation are simultaneously determined through examination of examples of innovative activity whose location is characterized by tradeoffs between pursuing the activity in a an established company or in a smaller, earlier stage company, or some combination of the two. It first considers the dilemma faced by an …

The Means/Ends Dilemma In Contract Interpretation: A Response To Professors Kraus And Scott: How The Intractability Of Express Language Affects Interpretive Authority And Legal Interventions In Contracts, Juliet P. Kostritsky

Juliet P Kostritsky

In their recent article on Contract Design and Intent, Professors Jody Kraus and Robert Scott offer a new justification for literal enforcement of the parties’ chosen terms and for ignoring the contract’s objectives. Their argument depends on a theory of how parties trade off front end and back end costs. Kraus and Scott posit that if parties use specific terms, and fail to use open-ended terms, they have chosen to exclude courts from broadly interpreting the contract or going beyond the chosen means. As such, courts should rigorously adhere to the parties’ explicit contractual means and spurn any judicial strategy …

The Means/Ends Dilemma In Contract Interpretation: A Response To Professors Kraus And Scott: How The Intractability Of Express Language Affects Interpretive Authority And Legal Intervention In Contracts, Juliet P. Kostritsky

Juliet P Kostritsky

In their recent article on Contract Design and Intent, Professors Jody Kraus and Robert Scott offer a new justification for literal enforcement of the parties’ chosen terms and for ignoring the contract’s objectives. Their argument depends on a theory of how parties trade off front end and back end costs. Kraus and Scott posit that if parties use specific terms, and fail to use open-ended terms, they have chosen to exclude courts from broadly interpreting the contract or going beyond the chosen means. As such, courts should rigorously adhere to the parties’ explicit contractual means and spurn any judicial strategy …

Investment Agreement Claims Under The 2004 Model Us Bit: A Challenge For State Police Powers?, Laura Henry

Laura Henry

No abstract provided.

Inflation In Unjustified Enrichment Claims: Reflections From Abroad On The New Brazilian Civil Code, Aimite Jorge

Aimite Jorge

Inflation can be one of the risks assumed by the parties to a contract. But contractual terms may provide for monetary corrections (adjustments) to offset that risk in cases of regular inflation because the parties are in a bilateral agreement. The same may not hold true however for claims arising in unjustified enrichment because the parties are not necessarily in a bilateral agreement. They may find themselves in the position of two innocents because the events that brought about the decline of purchasing power of the currency were unconnected to them. In such cases, the change-of-position (loss of enrichment) defense …

Conflating And Confusing Contract Interpretation And The Parol Evidence Rule: Is The Emperor Wearing Someone Else's Clothes?, Margaret Kniffin

Margaret Kniffin

No abstract provided.

Why Parties Enter Into Unfair Deals: The Resentment Factor, Justin Eugene Malbon

Justin Eugene Malbon

Unfair deals are prevalent, which does not serve the interests of the harmed party to a deal nor society more generally. The law tends to focus on providing the harmed party the means for gaining compensation for unfair deals, which distracts attention away from investigating the reasons and motivations for the stronger party offering and entering into unfair deals in the first place. This article seeks to address this deficiency by proposing a theory – here coined “deal theory” – to explain “dealor” behaviors and motivations. The theory builds on insights offered by relational contract theory, the ultimatum bargaining game …

Commercial Contracts In Muslim Countries Of The Middle East: A Comparison With The United States, Jacqueline Mccormack

Jacqueline McCormack

As the emerging markets of the Middle East continue to grow, the ability to trade goods internationally will help to solidify these ever increasing economic ties. This paper attempts to explain the theories and thought processes surrounding contracts for the sale of goods in Muslim countries. My purpose is to address the important similarities and differences between commercial contracts in the United States and commercial contracts in Muslim countries of the Middle East. Hopefully, by forging ever stronger trade relationships between the United States and the Middle East, these two culturally rich regions will learn to tolerate each other’s differences …