Law Commons^™

Madeira Serves As Legal Commentator In Netflix’S “Our Father”, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

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Disintegrating Customary International Law: Reactions To Withdrawing From International Custom, Christiana Ochoa

Articles by Maurer Faculty

Withdrawing from International Custom, a recent article by Curtis Bradley and Mitu Gulati, has sparked interest and debate. Bradley and Gulati’s article, develops with significant nuance and detail that, naturally, can be best understood by a careful reading of their work. In essence, it proposes a modification in customary international law (CIL) doctrine – a change that would permit states to unilaterally exit from existing customary international law. This Essay will act as a brief reflection on that article. In Part I, it will explore the analogies Withdrawing makes between CIL and contract and will argue, first that CIL and …

The Search Interest In Contract, Joshua Fairfield

Articles by Maurer Faculty

Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation-centered view of contract leads courts to try to determine the meaning of the parties where no meaning was negotiated and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, they lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the reality of contracting …

Constructive Haiku And The Law Of Contracts: Raintree County Memorial Library Occasional Paper No. 3, Douglass Boshkoff

Articles by Maurer Faculty

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Opting Out: Procedural Fair Use, Michael Mattioli

Articles by Maurer Faculty

This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright's doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn't want their books scanned. Despite this measure, two major authors' groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract …

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David Gamage, Allon Kedem

Articles by Maurer Faculty

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification a fact that has confounded generations of scholars and created a mess of case law.

This article argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability of …

Forum Selection In International Contract Litigation: The Role Of Judicial Discretion, Hannah Buxbaum

Articles by Maurer Faculty

The United States is currently involved in negotiation of the Hague Convention on Exclusive Choice of Court Agreements, which would regulate the enforceability of forum-selection clauses in international contracts. That project - as well as the recent focus in globalization literature on more active judicial management of forum selection - draws attention to one unusual aspect of U.S. jurisdictional law: that dismissal on the basis of forum non conveniens is available even in cases arising out of contracts including negotiated forum selection clauses. This article examines the resulting tension between the right of contract parties to select a forum in …

Closing The Deal In Contracts: Introducing Transactional Skills In The First Year, David V. Snyder

Articles by Maurer Faculty

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Language And Formalities In Commercial Contracts: A Defense Of Custom And Conduct, David V. Snyder

Articles by Maurer Faculty

This article defends the decision to retain usage of trade, course of performance, and course of dealing in the revision of Article 1 of the Uniform Commercial Code. The article responds to recent neoformalist criticisms of the incorporation approach and offers a theoretical justification. Usage of trade and course of dealing should be understood as part of the parties' language, following Wittgenstein's understanding of language. Course of performance, which presents a weaker case in terms of language, should be understood as a legal formality, following Fuller's explanation of formalities. Thus understood, custom and conduct can be as important as written …

The Law Of Contract And The Concept Of Change: Public And Private Attempts To Regulate Modification, Waiver, And Estoppel, David V. Snyder

Articles by Maurer Faculty

This article argues that contractual change is inherently problematic because contract and change are fundamentally antithetical. Because change is inevitable, however, the law of contract attempts to regulate the effect of change. These attempts are divided into two realms: public regulation, including the preexisting duty rule and its substitutes, and private regulation, including contractual "no oral modification" and "no oral waiver" clauses. The article criticizes not only the preexisting duty rule but also the duress and good faith tests that have been suggested as substitutes. Instead, the article proposes a "coercion" test, which is stated in detail and which is …

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David V. Snyder

Articles by Maurer Faculty

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More Selected Poems On The Law Of Contracts: Raintree County Memorial Library Occasional Paper No. 2, Douglass Boshkoff

Articles by Maurer Faculty

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Selected Poems On The Law Of Contracts, Douglass Boshkoff

Articles by Maurer Faculty

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Viva Zapata!: Toward A Rational System Of Forum-Selection Clause Enforcement In Diversity Cases, Leandra Lederman

Articles by Maurer Faculty

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Personal Jurisdiction Over Nonresident Debtors: When May Creditors Sue At Home?, Gene R. Shreve

Articles by Maurer Faculty

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Book Review. From Swift To Erie: An Historical Perspective, Gene R. Shreve

Articles by Maurer Faculty

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International Law And The Internationalized Contract, A. A. Fatouros

Articles by Maurer Faculty

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Book Review. Obligations In Polish Law By W. J. Wagner, Jurij Fedynskyj

Articles by Maurer Faculty

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Fourteenth-Century Promises, Morris S. Arnold

Articles by Maurer Faculty

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Book Review. Transcending Covenant And Debt, Morris S. Arnold

Articles by Maurer Faculty

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Breach Of Contract, Damage Measures, And Economic Efficiency, Robert L. Birmingham

Articles by Maurer Faculty

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A Second Look At The Suez Canal Cases: Excuse For Nonperformance Of Contractual Obligations In The Light Of Economic Theory, Robert L. Birmingham

Articles by Maurer Faculty

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Damage Measures And Economic Rationality: The Geometry Of Contract Law, Robert L. Birmingham

Articles by Maurer Faculty

The question of damage measures presented by the conscious decision of a promisor to breach a losing contract raises one of the most perplexing conceptual problems in contract law. Recognizing the present inability of the courts rationally to resolve the problem, as illustrated by the opposing decisions in Groves v. John Wunder Company and Peevyhouse v. Garland Coal and Mining Company, the author undertakes to examine the premises of contract law with afresh perspective-economic analysis.

How And By Whom May An Offer Be Accepted?, Wencelas J. Wagner

Articles by Maurer Faculty

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Contracts And Sales, Douglass Boshkoff

Articles by Maurer Faculty

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Some Problems Of Revocation And Termination Of Offers, Wencelas J. Wagner

Articles by Maurer Faculty

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Contracts And Sales, Douglass Boshkoff

Articles by Maurer Faculty

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The Law Of Contracts In Communist Countries (Russia, Bulgaria, Czechoslovakia And Hungary), Wencelas J. Wagner

Articles by Maurer Faculty

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The Interplay Of Planned Economy And Traditional Contract Rules In Poland, Wencelas J. Wagner

Articles by Maurer Faculty

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The Broker's Exclusive Listing Contract -- Unilateral Or Bilateral?, Alfred W. Meyer

Articles by Maurer Faculty

No abstract provided.