Law Commons^™

Building Bridges To Consumer Remedies In International Econflicts, Amy J. Schmitz

Faculty Publications

Consumer purchases over the Internet (“ePurchases”) are on the rise, thereby causing an increase in conflicts regarding these purchases (“eConflicts”). Furthermore, these conflicts are increasingly international as consumers purchase goods over the Internet not knowing or caring where the seller is physically located. The problem is that if the purchase goes awry, consumers are often left without recourse due to the futility of pursing international litigation and the textured law and policy regarding enforcement of private dispute resolution procedures, namely arbitration. The United States strictly enforces arbitration contracts in business-to-consumer (“B2C”) relationships, while other countries have refused or limited enforcement …

Arbitration Ambush In A Policy Polemic, Amy J. Schmitz

Faculty Publications

Arbitration has been demonized in the media and consumer protection debates, often without empirical support or consideration of its attributes. This has led to renewed efforts to pass the Arbitration Fairness Action, which would bar enforcement of pre-dispute arbitration clauses in consumer, employment, and civil rights contexts. It also inspired Dodd-Frank’s preclusion of arbitration clauses in mortgage contracts, along with the Consumer Financial Protection Bureau’s charge to prohibit or limit enforcement of pre-dispute arbitration agreements in consumer financial products and services contracts. Some of this negativity toward arbitration is warranted, especially in the wake of the United Supreme Court’s recent …

Supergeneric Collateral Descriptions In Financing Statements And Notice Filing, Lissa Lamkin Broome

Faculty Publications

No abstract provided.

Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone

Faculty Publications

No abstract provided.

A Collaborative Model Of Offshore Legal Outsourcing, Cassandra Burke Robertson

Faculty Publications

International outsourcing has come to the legal profession. The ABA and other bar associations have given it their stamp of approval, and an ailing economy has pushed both clients and firms to consider sending more legal work abroad. This article integrates research from the fields of organizational behavior, social psychology, and economic theory to analyze the effectiveness of the legal outsourcing relationship. It identifies organizational pressures in the practice of law that affect how legal work is performed in a transnational context, and it examines how individuals on both sides of the outsourcing process influence the success or failure of …

Contracting For State Intervention: The Origins Of Sovereign Debt Arbitration, W. Mark C. Weidemaier

Faculty Publications

No abstract provided.

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Faculty Publications

No abstract provided.

Legislating In The Light: Considering Empirical Data In Crafting Arbitration Reforms, Amy J. Schmitz

Faculty Publications

Consumer advocates and policymakers call for abolition of predispute arbitration clauses in consumer contracts, while proponents of arbitration claim such abolition would increase companies’ dispute resolution costs, leading to higher prices and interest rates. Policymakers on both sides of the debate, however, rarely consider the empirical research necessary for crafting informed arbitration disclosure rules. This article therefore focuses on how varied research, including my own empirical studies, may inform policies regarding arbitration disclosure regulations. The article also offers suggestions for regulations tailored to have the most impact for the cost in light of this research.

Pizza-Box Contracts: True Tales Of Consumer Contracting Culture, Amy J. Schmitz

Faculty Publications

Do you ask for contract or purchase terms prior to completing your everyday purchases? Do you first read the pizza box before paying the pizza delivery guy or gal? Typical consumers do not ask for or read their contracts prepurchase, and companies have become accustomed to burying purchase terms in product packaging or Internet links. These postpurchase, rolling, or “pizza-box” contracts have therefore become the norm in the consumer marketplace, and courts generally enforce them as legitimate contracts. This Article discusses varying theoretical perspectives on enforcement of these pizza-box contracts, and explores the available empirical data bearing on the legitimacy …

‘Drive-Thru’ Arbitration In The Digital Age: Empowering Consumers Through Regulated Odr, Amy J. Schmitz

Faculty Publications

Online Dispute Resolution (ODR) has been promoted for quickly and conveniently resolving claims using online “drive-thru” processes instead of more costly and time-consuming face-to-face meetings and hearings. Most commentators have nonetheless focused mainly on non-binding or automated bidding processes, perhaps due in part to fairness concerns associated with off-line arbitration. This Article, however, explores the potential for online binding arbitration (OArb), and sheds new light on arbitration as means for empowering consumers to obtain remedies on their e-merchant claims. By moving arbitration online, OArb helps address concerns regarding companies’ use of arbitration clauses to curb consumers’ access to remedies on …

Reply: Clawback To The Future, Miriam A. Cherry, Jarrod Wong

Faculty Publications

(Excerpt)

In Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes (the “Article”), we undertook the task of proposing a doctrine of clawbacks that would not only furnish a framework for analyzing the term more systematically, but would also describe the ways the doctrine would relate to established rules of contract law. With his response, In the Shadow of the Omnipresent Claw: In Response to Professors Cherry & Wong (the “Response”), Michael Macchiarola has provided us with an opportunity to articulate these thoughts on the doctrine of clawbacks further, and for that opportunity and his …

A Pragmatic Defense Of Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.

The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong

Faculty Publications

This article addresses a gap in the scholarly literature by comparing interpretive methodologies used by U.S. arbitrators to those used by international arbitrators to determine whether and to what extent U.S.-based class awards are enforceable outside the United States. Since many courts and arbitrators have claimed an analogy between consolidated and class arbitration, the article also considers whether such an analogy is appropriate as a matter of law and policy to identify whether the traditional disinclination to order consolidation can or should be extended to class proceedings. This second portion of the article is applicable to both domestic class arbitrations …

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Faculty Publications

No abstract provided.

Contracting (Out) Rights, Kathryn A. Sabbeth, David C. Vladeck

Faculty Publications

No abstract provided.

Disputing Boilerplate, W. Mark C. Weidemaier

Faculty Publications

No abstract provided.

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

Faculty Publications

(Excerpt)

Months after insurance giant American International Group (AIG) faltered and the federal government provided financial assistance to keep the company afloat, executive compensation and bonus practices at the company came under scrutiny. Taxpayers balked when evidence came to light that large bonuses were being paid to executives—the same executives, in certain instances, who had been responsible for AIG's losses. The disconnect between AIG's huge losses and the multi-million dollar bonus payments is a striking example of "pay without performance," a phenomenon that Professors Jesse Fried and Lucian Bebchuk documented in their book of the same name. Responding to public …

Nonconsensual Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, Amy J. Schmitz

Faculty Publications

Policymakers have adopted programs mandating parties to submit their disputes to court connected arbitration hoping to garner efficiency benefits commonly associated with contractual Federal Arbitration Act (FAA) arbitration. Mandatory nonbinding arbitration, however, is ill-equipped for this task because it lacks the consensual core and finality of FAA arbitration. Instead, it often adds an inefficient layer to the litigation process and may harm those least able to protect themselves from coerced settlements or burdens of protracted litigation.

Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz

Faculty Publications

This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article …

Leases: Like Any Other Contract?, John V. Orth

Faculty Publications

No abstract provided.

Exploring (Social) Class In The Classroom: The Case Of Lucy, Lady Duff-Gordon, Miriam A. Cherry

Faculty Publications

(Excerpt)

Wood v. Lucy, Lady Duff-Gordon (the "Lucy Case") presents a rich teaching vehicle for the first year of contracts for multiple reasons. Another participant in this symposium has discussed the Lucy Case to laud its value in teaching fact analysis or issue spotting. Others have commented upon the case for its doctrinal utility in explaining the concepts of illusory contracts, exclusive dealing and best efforts. The historical background, the opinions of Benjamin Cardozo and the opportunity to introduce feminist jurisprudence and law and economics concepts into the first year course are also fertile ground for discussion. Knowing …

Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins

Faculty Publications

No abstract provided.

Unintelligent Design In Contract, Peter A. Alces

Faculty Publications

Scholars have expended considerable energy in the effort to "discover" a normative theory of Contract. This Article surveys that effort and concludes that something fundamental about Contract has been missed and has frustrated the search from the outset. Succinctly, Contract doctrine resists the neat formulation theory requires. Theorists' perspectives on Contract may be generalized as attempts to impute either deontology or consequentialism to the Contract law. Focusing largely on deontological constructions of Contract, this Article demonstrates the inconsistencies among the extant heuristics-promise, reliance, and transfer-and more importantly, the failure of any of those constructions to provide a coherent explanation of …

"A Frequent Recurrence To Fundamental Principles": A Tribute To Jim Ely, John V. Orth

Faculty Publications

No abstract provided.

Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz

Faculty Publications

This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper …

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Faculty Publications

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …

Plain Meaning Vs. Broad Interpretation: How The Risk Of Opportunism Defeats A Unitary Default Rule For Interpretation, Juliet P. Kostritsky

Faculty Publications

The problem of contract interpretation presents courts with significant questions about the nature and methodology of judicial intervention into privately arranged affairs. The court often assumes an active role in interpreting the words of a written contract in part because words have more than one meaning or because a contract is incomplete. When a court chooses amongst variable meanings, or interprets contracts to craft limitations on parties' behavior when express limits do not exist, its choice must be then justified using a framework explored in this essay.

Traditionally, commentators have advocated one of two general approaches to supply the methodology …

The Arbitration Clause In Context: How Contract Terms Do (And Do Not) Define The Process, W. Mark C. Weidemaier

Faculty Publications

No abstract provided.

Guerilla Terms, Peter A. Alces

Faculty Publications

No abstract provided.

Williston As Conservative-Pragmatist, Mark L. Movsesian

Faculty Publications

In her pathbreaking article, "Restatement and Reform: A New Perspective on the Origins of the American Law Institute, Professor N.E.H. Hull rejects the conventional wisdom about the conservative, even reactionary, character of the First Restatements. The truth, she argues, is more subtle. The Restatements, and the larger ALI project of which they were a part, reflect the "'progressive-pragmatic"' worldview of the law professors most responsible for their creation. These professors were reformers. They rejected the formalism of earlier generations; for them, law was not a conceptual system but a practical tool for promoting beneficial social goals. They tempered their zeal …