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Interpreting Organizational "Contracts" And The Private Ordering Of Public Company Governance, Megan Wischmeier Shaner Feb 2019

Interpreting Organizational "Contracts" And The Private Ordering Of Public Company Governance, Megan Wischmeier Shaner

William & Mary Law Review

Corporate law is undergoing an explosion of governance by private ordering. With increasing frequency and creativity, the charter and bylaws of public corporations are being used as tools for restructuring key aspects of corporate governance. The current focus of parties, courts, and scholars has been on the facial validity of these efforts. In light of courts’ willingness to uphold corporate governance contracting, legal battles will morph from validity challenges to interpretation disputes. Yet interpretation principles are a topic to which corporate scholars have devoted limited attention. With interpretation poised to take on an influential role in shaping corporate law and ...


A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman Feb 2018

A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman

William & Mary Business Law Review

This Article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce “desirable” outcomes for society. In addition to a comprehensive account of what he calls “virtues” of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.

Oman is not only a fan of markets, but he asserts that markets are the “center” of contract theory, and provide its normative foundation. Elaborating, Oman concludes that “contract law exists primarily to support markets” and that ...


How Well Do We Treat Each Other In Contract?, Aditi Bagchi Feb 2018

How Well Do We Treat Each Other In Contract?, Aditi Bagchi

William & Mary Business Law Review

One of the important contributions of Nathan Oman’s new book is to draw focus onto the quality of the relationships enabled by contract. He claims that contract, by supporting markets, cultivates certain virtues; helps facilitate cooperation among people with diverse commitments; and produces the wealth that may fuel interpersonal and social justice. These claims are all plausible, though subject to individual challenge. However, there is an alternative story to tell about the kinds of relationships that arise from markets--i.e., a story about domination. The experience of domination is driven in part by the necessity, inequality, and competition enjoined ...


Contract Law And The Common Good, Brian H. Bix Feb 2018

Contract Law And The Common Good, Brian H. Bix

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman offers a theory of contract law that is largely descriptive, but also strongly normative. His theory presents contract law’s purpose as supporting robust markets. This Article compares and contrasts Oman’s argument about the proper understanding of contract law with one presented over eighty years earlier by Morris Cohen. Oman’s focus is on the connection between Contract Law and markets; Cohen’s connection had been between Contract Law and the public interest. Oman’s work brings back Cohen’s basic insight, and gives it a more concrete form, as a formidable ...


Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu Feb 2018

Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values other ...


Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian Feb 2018

Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian

William & Mary Business Law Review

In this Essay on Professor Oman’s beautifully written and meticulously researched book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called doux commerce thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s ...


Contract, Promise, And The Right Of Redress, Andrew S. Gold Feb 2018

Contract, Promise, And The Right Of Redress, Andrew S. Gold

William & Mary Business Law Review

This Essay reviews Nathan Oman’s recent book, The Dignity of Commerce. The book is compelling, and it makes an important and original contribution to contract theory—a contribution that insightfully shows how markets matter. Yet, in the course of developing a market-centered justification for contract law, The Dignity of Commerce also downplays the significance of consent and promissory morality. In both cases, the book’s argument is problematic, but this Essay will address questions of promissory morality. Oman contends that promise-based accounts struggle with contract law’s bilateralism and with its private standing doctrine. Yet, promissory morality is a ...


Maximizing Ponzi Loss Deductions For Estate And Income Tax Purposes: Are Taxpayers Better Off Dead?, Valrie Chambers, Brian Elzweig Nov 2017

Maximizing Ponzi Loss Deductions For Estate And Income Tax Purposes: Are Taxpayers Better Off Dead?, Valrie Chambers, Brian Elzweig

William & Mary Business Law Review

There is a long history of cases interpreting whether a theft loss deduction for securities fraud is allowable for personal income taxes. The cases require that for a theft loss to be actionable as such, it would have to meet the requirements of the common law definition of theft in the U.S. state in which it occurred. This generally requires direct privity between the person claiming the loss and the person who committed the theft. Because most securities transactions are brokered, the direct privity is lost and a theft loss deduction is denied in favor a capital loss. Recently ...


“Breaking Bad” Contracts: Bargaining For Masculinity In Popular Culture, Lenora Ledwon Apr 2017

“Breaking Bad” Contracts: Bargaining For Masculinity In Popular Culture, Lenora Ledwon

William & Mary Journal of Race, Gender, and Social Justice

This Article examines the award-winning television show, Breaking Bad, to illustrate how the idea of a contract in popular culture can become inflected with a style of retrograde masculinity. Deals in Breaking Bad take place in the classic contract imaginary, which resembles the classic Western shootout: two antagonists face each other down in a duel. The show interrogates the frontier thesis, with its links to the American Dream and dangerous masculinities, through the ruthless contracts of Walter White.


Betraying Formality For False Equity: The Danger Of Transposing Equitable Considerations Into Contract Law To Remedy Regulatory Pitfalls, Elliott Morris Feb 2017

Betraying Formality For False Equity: The Danger Of Transposing Equitable Considerations Into Contract Law To Remedy Regulatory Pitfalls, Elliott Morris

William & Mary Environmental Law and Policy Review

No abstract provided.


Whole Foods For The Whole Pregnancy: Regulating Surrogate Mother Behavior During Pregnancy, Teresa Donaldson Jan 2017

Whole Foods For The Whole Pregnancy: Regulating Surrogate Mother Behavior During Pregnancy, Teresa Donaldson

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


The Restatement (Second) Of Contracts § 211: Unfulfilled Expectations And The Future Of Modern Standardized Consumer Contracts, Eric A. Zacks Apr 2016

The Restatement (Second) Of Contracts § 211: Unfulfilled Expectations And The Future Of Modern Standardized Consumer Contracts, Eric A. Zacks

William & Mary Business Law Review

By any measure, section 211 of the Restatement (Second) of Contracts is a disappointment. The section purported to ensure the benefits of standardized contracts by presuming assent to all terms when a contract is signed or adopted. At the same time, section 211 made it unreasonable for drafting parties to rely on terms if the drafter knew or should have known that the other party would not have assented had the other been aware of such terms. Nevertheless, section 211 is rarely cited with respect to any standardized contract dispute, and even where cited, it rarely provides relief to the ...


Kill The Monster: Promissory Estoppel As An Independent Cause Of Action, Susan Lorde Martin Feb 2016

Kill The Monster: Promissory Estoppel As An Independent Cause Of Action, Susan Lorde Martin

William & Mary Business Law Review

Contract rules may be dissolving into tort-type notions of unfairness and injustice. Traditionally, promissory estoppel was viewed as a substitute for consideration in situations where promisors made promises knowing that promisees would act in reliance on them, the promisees did act on the promises, and the promisors refused to do what they promised to do, to the promisees’ detriment. The purpose of promissory estoppel was clearly one of fairness and preventing injustice by enforcing a promise not supported by consideration in very limited circumstances. In recent cases, however, courts have been approving the use of promissory estoppel as an independent ...


Protecting Brand Image Or Gaming The System? Consumer “Gag” Contracts In An Age Of Crowdsourced Ratings And Reviews, Lucille M. Ponte Feb 2016

Protecting Brand Image Or Gaming The System? Consumer “Gag” Contracts In An Age Of Crowdsourced Ratings And Reviews, Lucille M. Ponte

William & Mary Business Law Review

Traditionally, businesses developed and controlled brand image through company-sponsored advertising and marketing campaigns. With the rise of social media, brand communications have become more interactive, especially on crowdsourced review sites. This increased interactivity helps companies to gain valuable insight into the consumer experience and to improve their brand image and customer engagement. Businesses soon learned that positive consumer ratings and reviews often translated into enhanced brand reputation and increased revenues. Some merchants and professionals seek to burnish their brand image by paying for positive reviews while others try to silence disgruntled customers through adhesive nondisparagement clauses. These gag clauses may ...


Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge Apr 2015

Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge

William & Mary Business Law Review

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008 ...


Courts Gone “Irrationally Biased” In Favor Of The Federal Arbitration 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 Apr 2015

Courts Gone “Irrationally Biased” In Favor Of The Federal Arbitration 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

William & Mary Business Law Review

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 ...


Legal Ignorance And Information-Forcing Rules, J. H. Verkerke Feb 2015

Legal Ignorance And Information-Forcing Rules, J. H. Verkerke

William & Mary Law Review

People are often ignorant about the legal rules that govern the most common transactions in their lives. This Article analyzes one common regulatory response to our widespread legal ignorance. A surprisingly broad range of legal rules have the ostensible purpose of inducing sophisticated parties to draft express contract language that will inform their contractual partners about the legal rules governing a particular transaction. However, this “legal-informationforcing” objective often remains unrealized because people routinely sign contracts without reading and understanding their terms. In theory, courts could design information-forcing rules that would be truly informative. But recognizing the potential futility of attempts ...


Ex Tempore Contracting, Andrew Verstein May 2014

Ex Tempore Contracting, Andrew Verstein

William & Mary Law Review

This Article argues that a cornerstone assumption of contemporary contracts scholarship is misleading and limited. Leading academic commentary explicitly assumes that contractual responsibilities are determined in the following way: parties determine many of their duties ex ante, by specifying terms at the time of contract formation, and leave the rest of the terms vague, for a court to specify ex post if any should prove important. This ex ante / ex post dichotomy is the guiding framework in attempts to understand contract design and interpretation. For example, parties use terms like “merchantable” quality when the cost of being more specific up ...


An Inevitable Conflict: The Subordination Of Contract Principles To Informed Consent In The Business Of Banking Umbilical Cord Blood, Abigail Norris Apr 2014

An Inevitable Conflict: The Subordination Of Contract Principles To Informed Consent In The Business Of Banking Umbilical Cord Blood, Abigail Norris

William & Mary Business Law Review

This Note explores the business of banking umbilical cord blood for later, and potentially life-saving, use. It discusses the importance of the stem cells found in umbilical cord blood, and the complexities involved in applying business models to its collection, storage, and use. Furthermore, this Note discusses how contracts governing the storage and use of umbilical cord blood can conflict with concepts of human dignity and informed consent. It concludes that in the event umbilical cord blood banking contracts conflict with informed consent, the contract should be subordinated to a person’s understanding, acquired through procedures intended to achieve the ...


In Defense Of Surrogacy Agreements: A Modern Contract Law Perceptive, Yehezkel Margalit Feb 2014

In Defense Of Surrogacy Agreements: A Modern Contract Law Perceptive, Yehezkel Margalit

William & Mary Journal of Race, Gender, and Social Justice

The American public’s attention was first exposed to the practice of surrogacy in 1988 with the drama and verdict of the Baby M case. Over the last twenty-five years, the practice of surrogacy has slowly become increasingly socially accepted, and even welcomed. This evolution serves to emphasize the bizarre judicial and legislative silence regarding surrogacy that exists today in the vast majority of U.S. jurisdictions. In this Article, I describe and trace the dramatic revolution that took place during the recent decades, as the surrogacy practice has drastically changed from one viewed as problematic and rejected to a ...


Nonmarket Values In Family Businesses, Benjamin Means Mar 2013

Nonmarket Values In Family Businesses, Benjamin Means

William & Mary Law Review

Despite the economic importance of family businesses, legal scholarship has often overlooked their distinctive character. Instead, scholars focus on the chosen form of business organization— partnership, corporation, LLC—and assume that the participants are economically rational actors who seek to maximize their individual preferences. This Article contends that family businesses are extensions of family relationships and that nonmarket values affect their goals and governance choices.

Just as family law scholars have shown that contract principles can be applied to regulate intimate relationships, corporate law scholars should recognize that the intimacy of family life often substitutes for arm’s length bargaining ...


Contracting For Procedure, Kevin E. Davis, Helen Hershkoff Nov 2011

Contracting For Procedure, Kevin E. Davis, Helen Hershkoff

William & Mary Law Review

Judicial decisions of public courts increasingly are based on “contract procedure,” private rules of procedure that the parties draft and assent to before a dispute even has arisen. These rules govern such matters as the forum in which the proceeding will be conducted, whether a jury will be involved in adjudicating the dispute, the scope of rights of discovery, and rules of evidence. The practice deserves greater attention and should raise more profound concerns than the academic literature currently suggests. We argue that contract procedure operates as a form of privatization that effectively outsources government functions to private contracting parties ...


You Do Have To Keep Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman Mar 2011

You Do Have To Keep Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman

William & Mary Law Review

Contract law is generally understood to require no more of a person who breaches a contract than to give the injured promisee the “benefit of the bargain.” The law is thus assumed to permit a promise-breaker to keep any profit remaining from breach, after putting the victim in the position he would have been in had the promise been performed. This conventional description is radically wrong: across a wide range of circumstances, standard contract doctrines actually do require people to keep their promises, or to disgorge their entire profit from breach if they do not. Rather than protecting the expectation ...


Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock Feb 2011

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

William & Mary Business Law Review

This Article evaluates a conundrum and identifies a genuine risk faced by state and federal courts in interpreting and applying the Statute of Frauds to contract law disputes. The Article provides a thorough analytical dissection of the Statute of Frauds as it has been interpreted and applied by the courts in light of the inescapable tension between the Statute’s formalities, mandated by the legislature, and the judiciary’s profound goal of attaining justice and fairness in deciding each contract law dispute in which the Statute is implicated. The Article discusses in depth how the Statute has been construed by ...


Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson Nov 2010

Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson

William & Mary Law Review

Standard-form contracts are a common feature of commercial relationships because they offer the advantage of lower transaction costs. This advantage of standard contracts is increased when there is a second layer of standardization under which multiple firms agree on a standard contract. Trade associations and similar entities often effect standardization of this kind through collective agreement on a standard contract, sometimes under the aegis of state actors. Multifirm contract standardization can provide not only the usual transaction-cost advantages of standard-form contracts, but also increased competition among firms, because a standard contract makes comparison among firms’ offerings easier. But standardization among ...


Uneasy Lies The Tiara: Crowns, Contracts, And The Rebekah Revels Litigation, Amanda Harmon Cooley Oct 2008

Uneasy Lies The Tiara: Crowns, Contracts, And The Rebekah Revels Litigation, Amanda Harmon Cooley

William & Mary Journal of Race, Gender, and Social Justice

In the last five years, news of various scandals in the pageant industry has inundated media outlets. These recent incidents are by no means outliers in the history of pageantry. This article explores the significance of one of these controversies - the Rebekah Revels litigation, which stemmed from the disputed 2002 Miss North Carolina pageant.

For context, this article first outlines allegations of wrongdoing in early pageants. It proceeds with an analysis of how the Revels litigation serves as an exemplar of the types of contract lawsuits that may continue to entangle pageant organizations in the future. Finally, the article provides ...


The Moral Impossibility Of Contract, Peter A. Alces Apr 2007

The Moral Impossibility Of Contract, Peter A. Alces

William & Mary Law Review

No abstract provided.


Contract As A Transfer Of Ownership, Peter Benson Apr 2007

Contract As A Transfer Of Ownership, Peter Benson

William & Mary Law Review

No abstract provided.


Morality And Contract: The Question Of Paternalism, James Gordley Apr 2007

Morality And Contract: The Question Of Paternalism, James Gordley

William & Mary Law Review

No abstract provided.


Legal Determinacy And Moral Justification , Jody S. Kraus Apr 2007

Legal Determinacy And Moral Justification , Jody S. Kraus

William & Mary Law Review

No abstract provided.