Law Commons^™

Case Watch: Royston, Rayzor, Vickery & Williams Llp V. Lopez, Ramona L. Lampley

Faculty Articles

The Texas Supreme Court effectively gave a “thumbs-up” to attorney-client arbitration agreements in Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494 (Tex. 2015), reh’g denied (Sept. 11, 2015). The plaintiff, Frank Lopez, hired Royston, Rayzor to represent him in a divorce. As part of the representation agreement, Lopez agreed to arbitrate any disputes arising out of the attorney-client relationship, but the law firm excluded from the arbitration agreement any claims it might have against Lopez for expenses or fees. Lopez later sued Royston, Rayzor and the firm moved to compel arbitration.

Lopez contended that the arbitration agreement …

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 …

Tallman V. Eight Judicial District Court, 131 Nev. Adv. Op. 60673 (Sep. 24, 2015), Marta Kurshumova

Nevada Supreme Court Summaries

The Court held that an employment arbitration agreement, which contains a clause waiving the right to initiate or participate in class actions, constitutes a valid contract, even though it is not signed by the employer. The Court further determined that the Federal Arbitration Act applies to all transactions involving commerce and does not conflict with the National Labor Relations Act, which permits and requires arbitration. Finally, the Court found that a party does not automatically waive its contractual rights to arbitration by removing an action to federal court.

Mika V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 71 (Sep. 24, 2015), Kory Koerperich

Nevada Supreme Court Summaries

The court denied extraordinary writ relief from the district court’s decision to compel arbitration between Petitioners and their employer based on a long-form arbitration agreement signed only by the Petitioners, and federal law favoring arbitration agreements.

Am. First Fed. Credit Union V. Soro, 131 Nev. Adv. Op. 73 (Sep. 24, 2014), Katherine Maher

Nevada Supreme Court Summaries

The Court determined that a contract clause in which the parties “submit themselves to the jurisdiction of” another state, without more exclusive language, is permissive and does not result in a mandatory forum selection clause.

Land Baron Invs. V. Bonnie Springs Family Lp, 131 Nev. Adv. Op. 69 (Sept. 17, 2015), Rob Schmidt

Nevada Supreme Court Summaries

This case is an appeal arising from a failed land sale contract. The Court considered three issues of first impression, holding that (1) when a party bears the risk, mutual mistake is not a basis for rescission; (2) an abuse of process claim may not be supported by a complaint to an administrative agency; (3) a nuisance claim seeking only emotional distress damages must be supported by proof of physical harm. Ultimately, The Court affirmed in part and reversed in part.

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Scholarly Articles

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing.

Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.”

Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …

Dikai Emporikai: A Response To Alberto Maffi, Mark J. Sundahl

Law Faculty Articles and Essays

No abstract provided.

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien

Faculty Scholarship

This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes …

Double Diamond V. Second Jud. Dist. Ct., 131 Nev. Adv. Op. 57 (July 30, 2015), Janine Lee

Nevada Supreme Court Summaries

NRS 116.3105(2) permits homeowners associations to terminate contracts at any time if the declarant did not enter into the contract in good faith or if the contract was unconscionable to the units’ owners at the time of contract formation.[1] The statute requires that an association provide at least 90 days notice of termination under this provision. The 90-day notice period in NRS 116.3105(2) does not operate as a statute of limitations nor does it shift the burden to a notice recipient to file an action. Instead, NRS 11.190 is applicable, resulting in either a four-year or six-year statute of …

Newsroom: Boss '97: Gc At Care New England, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, D. A. Jeremy Telman

Law Faculty Publications

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put …

Introducing The 'New Handshake' To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

Faculty Publications

There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake. The handshake helped ensure the enforcement of the deal without need for the rule of law or legal power. That handshake was one’s bond — it was a personal trust mark. With the emergence of eCommerce, however, that handshake has nearly disappeared along with the sense of responsibility it inspired. Accordingly, this article discusses how this has impacted consumers’ access to remedies regarding …

Contract Law [2014], Yihan Goh, Pey Woan Lee, Chee Ho Tham

Research Collection Yong Pung How School Of Law

No abstract provided.

The Undue Reliance On Physical Objects In The Regulation Of Information Products, Pascale Chapdelaine

Law Publications

The presence of a physical object (a book, DVD, CD) plays a determinant role in how information products (e.g., commercial copies of computer programs, books, musical recordings, video games, and virtual worlds) are regulated, in contrast with copies of similar information products with no physical embodiment. The presence of a physical object influences how law makers distinguish goods from services, to define a contract of sale or license, to apply the first sale doctrine in copyright law, and to determine which acts reserved to copyright holders are involved in a commercial transaction. In this article, I argue that the emphasis …

Indiana And Doux Commerce, Nathan B. Oman

Popular Media

No abstract provided.

Helping Buyers Beware: The Need For Supervision Of Big Retail, Rory Van Loo

Faculty Scholarship

Since the financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms' internal data outside the litigation process. This often enables examiners to identify and correct harmful conduct more rapidly and effectively than would be possible using publicly available information and cumbersome legal tools.

Consumers spend four times more on retail goods than on financial products. The retail sector’s dominant firms — such as Amazon, Walmart, Unilever, and Kraft — employ large teams of quantitative experts armed with advanced information technologies, …

The Need For A Law Of Church And Market, Nathan B. Oman

Faculty Publications

This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought for the …

Duress As Rent-Seeking, Mark Seidenfeld, Murat C. Mungan

Faculty Scholarship

The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious conduct clearly are wrongful, under the doctrine of “economic duress” courts have held that other threats can be wrongful and hence the basis of a duress defense. Courts, however, have not developed a coherent understanding of what makes such non-criminal and non-tortious threats wrongful.

This Article proposes that a threat should be wrongful when …

Offer And Acceptance In Modern Contract Law: A Needless Concept, Shawn J. Bayern

Scholarly Publications

The fundamental law of contract formation has retained the formalistic character of classical contract law. The offer-and-acceptance paradigm fits poorly with modern contracting practice, and it obscures and complicates contract doctrine. More importantly, extending it threatens to produce undesirable results. Instead of the offer-and-acceptance paradigm, this Essay proposes that contract formation be analyzed using the same general interpretive inquiry that governs other questions concerning the intent of contracting parties.

Analyzing the processes of contract formation in this manner points the way toward a further-reaching reconsideration of the purposes of contract-formation law in the first place. In particular, this Essay proposes …

Sketches Of A Redemptive Theory Of Contract Law, Emily Houh

Faculty Articles and Other Publications

This Article is about the game we call contract law and what it does and means to those who, at one time or another, have been categorically barred from play. How have "outsider" players-such as racial minorities, women, and sexual minorities -entered the game and, subsequently, how have its governing rules-that is, contract doctrines applied or not applied to them? On the flipside, how have common law contract doctrines responded to the entry of new players in the game? And, to the extent contract law has so responded, why has it done so? In asking and responding to these questions, …

Efficient Contextualism, Peter M. Gerhart, Juliet P. Kostritsky

Faculty Publications

This Article recommends an economic methodology of contract interpretation that enables the court to maximize the benefits of exchange for the parties and thereby enhance the institution of contracting. We recommend a methodology that asks the parties to identify the determinants of a surplus maximizing interpretation so that the court can determine whether the determinants raise issues that need to be tried. We thus avoid the false choice between textualist and contextualist methodologies, while allowing the parties and the court to avoid costly litigation. For textualist courts, our methodology helps the judge determine when the terms the parties used are …

Courts Gone “Irrationally Biased” In Favor Of The Federal Arbitrations Act?—Enforcing Arbitration Provisions In Standardized Applications And Marginalizing Consumer-Protection, Antidiscrimination, And States’ Contract Laws: A 1925–2014 Legal And Empirical Analysis, Willy E. Rice

Faculty Articles

Spanning nearly forty years, the Supreme Court has issued multiple decisions and stated categorically that “judicial hostility to arbitration” was the sole impetus behind Congress’s decision to enact the Federal Arbitration Act of 1925. In fact, before the FAA, systemic trade-specific problems and practices generated heated disputes and widespread litigation among merchants and trade organizations. Thus, to arrest those constituents’ concerns, Congress enacted the FAA. Briefly, under the FAA section 2, arbitration is mandatory if a contractual arbitration provision is valid and a controversy “arises out of the contract.” However, common-law rules of contract formation are equally clear: Standing alone, …

The Fine Print, Ramona L. Lampley

Faculty Articles

A recent study by the Consumer Financial Protection Bureau (“CFPB”), the federal agency tasked with “empowering consumers to take control over their economic lives,” found that more than 50 percent of the market for consumer credit cards had arbitration agreements, and almost 100 percent of storefront payday lending contracts require its customers to take their disputes to binding arbitration. The same study found that most consumers do not know their credit cards have a binding arbitration agreement and that it is not a primary concern for consumers in deciding which credit cards to obtain.

However, almost all arbitration agreements in …

The Relevance Of Law To Sovereign Debt, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The literature on sovereign debt treats law as of marginal significance, largely because the doctrine of sovereign immunity leaves creditors few potent legal remedies against sovereign borrowers. Although sovereign debts can indeed by hard to enforce, the goal of this Essay is to demonstrate that law plays a central, and constantly evolving, role in structuring sovereign debt markets. To list just a few examples, legal rules and institutions (i) decide when a borrower is sovereign, (ii) define the consequences of sovereignty by drawing (or refusing to draw) artificial boundaries between the sovereign and other legal entities, (iii) play some role …

Context Matters - What Lawyers About Choice Of Law In Merger Agreements, Juliet P. Kostritsky

Faculty Publications

Finding out the truth about a matter can proceed in many different ways. Neoclassical law and economists would construct models built on certain assumptions. The empiricists and contextualists would collect data about the matter in the inductive not deductive sense.

The choice of law in merger agreements presents an opportunity to study a contractual provision in the context of merger deals to see what we can learn from studying the choices in detail.

There are a variety of ways to approach these provisions in merger agreements. Can we learn anything about how choices are made in the drafting of these …

Contracting Away Your Right To Sue: What You Need To Know About Arbitration, Ramona L. Lampley

Faculty Articles

Arbitration agreements that typically accompany credit card agreements and other services can work well—or work disastrously. What many consumers do not realize is that in numerous everyday interactions with banks, employers and retailers, they are waiving their right to sue in court if a dispute does arise. Given the lack of consumer familiarity with arbitration, there is an inherent fear and distrust of the system often referred to either as alternative dispute resolution or private dispute resolution. Some of that public fear and distrust is well-founded. We know that private dispute resolution poses the opportunity for businesses to potentially take …

Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey L. Harrison

UF Law Faculty Publications

Contract law professors and students, attorneys, judges know that discussions about consent are rarely about consent. This results from three factors. First, it is the appearance of consent that is necessary to form a contract. Second, not every manifestation of consent is sufficient to create a contract that cannot be avoided. Third, interpretations of consent have the potential to allow courts to intervene when the benefit of the bargain is seen to be unfairly divided or one of the parties is actually worse off as a result of the contract. This Article assesses the extent to which recent decisions about …

"Sticky" Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. After the Supreme Court’s decision in Concepcion, commentators predicted that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent across …

Catalyzing Fans, Howard Wasserman, Dan Markel, Michael Mccann

Faculty Publications

This paper proposes the development of Fan Action Committees (“FACs”), which, like their political counterpart ("PACs"), could mobilize and empower fans to play a larger role in the decision-making associated with which “production teams” the talent will work.

We outline two institutional options: FACs could directly compensate talent by crowdfunding, or they could make donations to charities favored by talent. We then discuss both obstacles and objections from a variety of policy and legal perspectives ranging from competitive balance to distributive justice. Finally, we consider possible extensions of the FAC model as well as offer some ruminations on why FACs …