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Full-Text Articles in Law
Contract Schemas, Roseanna Sommers
Contract Schemas, Roseanna Sommers
Articles
This review draws on the notion of “contract schemas” to characterize what ordinary people think is happening when they enter into contractual arrangements. It proposes that contracts are schematically represented as written documents filled with impenetrable text containing hidden strings, which are routinely signed without comprehension. This cognitive template, activated whenever people encounter objects with these characteristic features, confers certain default assumptions, associations, and expectancies. A review of the literature suggests that contract schemas supply (a) the assumption that terms will be enforced as written, (b) the feeling that one is obligated to perform, and (c) the sense that one …
Asking The Nearest Hippie, Shubha Ghosh
Asking The Nearest Hippie, Shubha Ghosh
Michigan Telecommunications & Technology Law Review
It is an honor to be asked to contribute to this Symposium in honor of Margaret Jane Radin. It is particularly exciting to be able to engage with her scholarship during the summer of 2015 (the time this essay was written) when so many compelling legal issues are coming to a head: same sex marriage and the recognition of dignity as a constitutional value, pragmatic treatment of controversial regulation such as the Affordable Care Act, the death penalty under scrutiny as two justices unequivocally reaffirm its unconstitutionality, voting rights protections roll back, police brutality against African-American citizens as a daily …
Regulation Through Boilerplate: An Apologia, Omri Ben-Shahar
Regulation Through Boilerplate: An Apologia, Omri Ben-Shahar
Michigan Law Review
You have to salute Peggy Radin. She has said what others who agree with her have for so long been hesitant to utter out loud: the fine print is not a contract. There is no agreement to it, no real consent, not even “blanket assent.” It is nothing but paperwork and should have the legal fortune of junk mail. Those lengthy, unreadable pages with terms and conditions that come prepacked with consumer products or that demand to be clicked (“We Accept”) on computer screens — does anyone really think that they contain arrangements that people knowingly agreed to? How is …
Boilerplate And Economic Power In Auto-Manufacturing Contracts, Omri Ben-Shahar, James J. White
Boilerplate And Economic Power In Auto-Manufacturing Contracts, Omri Ben-Shahar, James J. White
Book Chapters
This chapter examines the boilerplate contracts used by auto makers to procure parts from suppliers. It identifies drafting and negotiation techniques that are used to secure advantageous terms. It also explores some prominent specific arrangements as evidence that firms with bargaining power are exploiting their position to dictate self-serving but inefficient terms. Finally, it shows how standard contractual clauses solve the problem of ex-post hold-up by suppliers.
Preface: Or: A Boilerplate Introduction, Omri Ben-Shahar
Preface: Or: A Boilerplate Introduction, Omri Ben-Shahar
Book Chapters
It is tempting to open this volume with yet another "boilerplate" salute to the challenge that standard-form contracts pose for contract law doctrine. You may have seen many tributes to this fundamental problem. Ifi were to offer my own variation on this familiar introduction, I would have perhaps tried to come up with an original spin to induce you to read forward another paragraph or two. I would probably have talked about a major divide within contract law between the "law of negotiations" and "product regulation." The former is the body of doctrines that determine the legal consequences of bargaining …
Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White
Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White
Articles
This Article is structured as follows. Part I compares the terms and conditions in the purchase orders of the Original Equipment Manufacturers (OEMs) and highlights important differences in the substance of these boilerplate provisions. It argues that these differences cannot be easily reconciled with the prediction that sophisticated parties draft the most efficient boilerplate terms. Part II examines how these forms are drafted, how their terms are negotiated, and how the OEMs guard their terms from erosion. It provides some insight on how tailoring occurs and how the internal organization of a party to a deal affects the terms that …
Foreword [To Boilerplate: Foundations Of Market Contracts Symposium], Omri Ben-Shahar
Foreword [To Boilerplate: Foundations Of Market Contracts Symposium], Omri Ben-Shahar
Articles
It is tempting to open this symposium with yet another "boilerplate" salute to the challenge that standard-form contracts pose for contract law doctrine. You may have seen many tributes to this fundamental problem. If I were to offer my own variation on this familiar introduction, I would have perhaps tried to come up with an original spin to induce you to read forward another paragraph or two. I would probably have talked about a major divide within contract law between the "law of negotiations" and "product regulation." The former is the body of doctrines that determine the legal consequences of …
Performance Risk, Form Contracts And Ucita, Leo L. Clarke
Performance Risk, Form Contracts And Ucita, Leo L. Clarke
Michigan Telecommunications & Technology Law Review
No scholarly commentator has suggested that the form contract rules provide a satisfactory answer to the commercial problem of performance risk. So, one might think that the dawn of the "information economy" would be a propitious time to implement a new doctrinal approach. Apparently not: the National Conference of Commissioners on Uniform State Laws (the "Conference") has promulgated a comprehensive commercial statute that fails to remedy or even modify the law of form contracts in purely commercial transactions. The Uniform Computer Information Transactions Act ("UCITA")--drafted to provide the background law for many of the most significant transactions in the information …
Exploring The Battle Of The Forms In Action, Daniel Keating
Exploring The Battle Of The Forms In Action, Daniel Keating
Michigan Law Review
Like many commercial law professors, I have long been fascinated with the workings of the Uniform Commercial Code's section 2-207, the "battle of the forms" provision. There are two features of that section, one internal and one external, that make it such an intriguing statute to ponder. The internal source of fascination with section 2-207 is that it provides a classic model for teaching students about the intricacies of statutory construction. There is probably no other provision within U.C.C. Article 2 that provides more confusion to law students and more challenge to the instructor than does section 2-207. There is …