Law Commons^™

Restating Restitution: A Study In Contemporary Common Law Conceptualism, Chaim Saiman

Chaim Saiman

The ALI’s Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely under …

The Employment Termination Equity Act: Finding A Compromise Between Employment At-Will And Just Cause , Nicole B. Porter

Nicole B. Porter

Many scholars have criticized the harshness of the employment at-will presumption, whereby an employer can terminate an employee for good reason, bad reason, or no reason at all. Unlike other scholarship; however, this proposal adopts a novel approach to the problem of the at-will presumption. Instead of suggesting that the at-will presumption should be replaced with a just cause standard, this article suggests a compromise statute, which I call the Employment Termination Equity Act (ETEA). Under ETEA, employers would be free to terminate unproductive or poorly performing employees, without having the difficult burden of proving just cause. However, certain enumerated …

Legal Consciousness And Contractual Obligations., Kojo Yelpaala

Kojo Yelpaala

Legal Consciousness and Contractual Obligations Kojo Yelpaala Professor Law Pacific/McGeorge School of Law ABSTRACT The Article on “Legal Consciousness and Contractual Obligations” will explore and offer an explanation of the origins of the moral foundations for contractual obligations beyond conventional analysis. Building on themes and threads across many disciplines and theories, it seeks to identify and locate certain unities and common elements that explain human consciousness in exchange relations across cultures. It does so by excavating the roots, tracking the evolution, and anatomizing the dynamics of the master narrative of the "contract" - the oath, the promise, the agreement, the …

Online Privacy Policies: Contracting Away Control Over Personal Information?, Allyson W. Haynes

Allyson Haynes Stuart

Individuals disclose personal information to websites in the course of everyday transactions. The treatment of that personal information is of great importance, as highlighted by the recent spate of data breaches and the surge in identity theft. When websites share such personal information with third parties, the threat of its use for illegal purposes increases. The current law allows website companies to protect themselves from liability for sharing or selling visitors’ personal information to third parties by focusing on disclosures in privacy policies, not on substantive treatment of personal information. Because of the low likelihood that a visitor will read …

Rethinking Contractual Restrictions On Fair Use: Preemption And The Structure Of Copyright Policymaking, Viva R. Moffat

Viva R. Moffat

Rethinking Contractual Restrictions on Fair Use: Preemption and the Structure of Copyright Policymaking

Viva R. Moffat

Abstract

Online contracts proliferate and govern nearly every commercial transaction and most of the ways in which the modern consumer interacts with the world. Issues surrounding “contracting around” the Copyright Act have been simmering for years. In this article, I survey numerous online contracts, and I conclude that these issues have only become more acute: nearly every website and every good or service sold online comes with a contract attached, and virtually every one of those contracts contains a limitation on fair use.

Most …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …

The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich

Thomas J. Stipanowich

After a generation of growing emphasis on informal methods of conflict resolution, the surrounding legal landscape remains "aimless, meandering, and . . . confusing." The "penumbra" of arbitration law - a body of judicial decisions involving application of federal or state arbitration statutes to processes that are to one degree or another different from "classic" arbitration, or to the interface between arbitration and earlier stages in multi-step dispute resolution processes - reflects the failure of courts to articulate clear and well-reasoned approaches to the new generation of dispute resolution tools. The application of arbitration law entails a variety of specific …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2006-2007, Juliet M. Moringiello, William L. Reynolds

Juliet M. Moringiello