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Full-Text Articles in Law

From The Courtroom To The Classroom: How A Litigator Became A Transactional Drafting Professor, Amy Bauer Jan 2019

From The Courtroom To The Classroom: How A Litigator Became A Transactional Drafting Professor, Amy Bauer

Articles

No abstract provided.


The Case For American Muslim Arbitration, Rabea Benhalim Jan 2019

The Case For American Muslim Arbitration, Rabea Benhalim

Articles

This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated ...


The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal Jan 2018

The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal

Articles

There has been an explosion in new types of startup finance instruments. Whereas twenty years ago preferred stock dominated the field, startup companies and investors now use at least eight different instruments—six of which have only become widely used in the last decade. Legal scholars have yet to reflect upon the proliferation of instrument types in the aggregate. Notably missing is a way to organize instruments into a common framework that highlights their similarities and differences.

This Article makes four contributions. First, it catalogues the variety of startup investment forms. I describe novel instruments, such as revenue-based financing, which ...


A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew Jan 2018

A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew

Articles

The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical study of ...


Who Needs Contracts? Generalized Exchange Within Investment Accelerators, Brad Bernthal Jan 2017

Who Needs Contracts? Generalized Exchange Within Investment Accelerators, Brad Bernthal

Articles

This Article investigates why an expert volunteers on behalf of startups that participate in a novel type of small venture capital (“VC”) fund known as a mentor-driven investment accelerator (“MDIA”). A MDIA organizes a pool of seasoned individuals – called “mentors” – to help new companies. An obvi- ous organizational strategy would be to contract with mentors. Mentors in- stead voluntarily assist. Legal studies of norm-based exchanges do not explain what this Article calls the “mentorship conundrum”—i.e., the puzzling moti- vation of a mentor to volunteer within otherwise for-profit environments. This Article is the first to bridge the insights of ...


Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew Jan 2017

Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew

Articles

This article reveals evidence-based details of the China International Economic and Trade Arbitration Commission (CIETAC) arbitral proceedings (1990-2000), allowing unprecedented insights into Chinese international business arbitration. It begins by confirming the prominence of Chinese foreign trade and foreign investment in the global economy and CIETAC’s critical role in securing that prominence. Among other results, the empirical study of CIETAC awards finds: (i) the parties were of diverse nationalities, most commonly with disputes between a Chinese party and a foreign party; and (ii) the majority of cases were sales and trade disputes, although a sizable number were investment/joint venture ...


Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr Oct 2015

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Articles

Mandatory pre-dispute arbitration clauses are pervasive in consumer financial and investor contracts—for credit cards, bank accounts, auto loans, broker-dealer services, and many others. These clauses often ill serve households. Consumers are typically presented with contracts on a “take it or leave it” basis, with no ability to negotiate over terms. Arbitration provisions are often not clearly disclosed, and in any event are not salient for consumers, who do not focus on the importance of the provision in the event that a dispute over the contract later arises, and who may misforecast the likelihood of being in such a dispute ...


Prostitution 3.0?, Scott R. Peppet Jan 2013

Prostitution 3.0?, Scott R. Peppet

Articles

This Article presents an entirely novel approach to prostitution reform focused on incremental market improvement facilitated by information law and policy. Empirical evidence from the economics and sociology of sex work shows that new, Internet-enabled, indoor forms of prostitution may be healthier, less violent, and more rewarding than traditional street prostitution. This Article argues that these existing "Prostitution 2.0" innovations have not yet improved sex markets sufficiently to warrant legalization. It suggests that creating a new "Prostitution 3.0" that solves the remaining problems of disease, violence, and coercion in prostitution markets is possible, but would require removing legal ...


Contract As Pattern Language, Erik F. Gerding Jan 2013

Contract As Pattern Language, Erik F. Gerding

Articles

Christopher Alexander’s architectural theory of a "pattern language" influenced the development of object-oriented computer programming. This pattern language framework also explains the design of legal contracts. Moreover, the pattern language rubric explains how legal agreements interlock to create complex transactions and how transactions interconnect to create markets. This pattern language framework helps account for evidence, including from the global financial crisis, of failures in modern contract design.

A pattern represents an encapsulated conceptual solution to a recurring design problem. Patterns save architects and designers from having to reinvent the wheel; they can use solutions that evolved over time to ...


Computable Contracts, Harry Surden Jan 2012

Computable Contracts, Harry Surden

Articles

This Article explains how and why firms are representing certain contractual obligations as computer data. The reason is so that computers can read and process the substantive aspects of contractual obligations. The representation of contractual obligations in data instead of (or in addition to) the traditional written language form - what this Article calls "data-oriented contracting" - allows for the application of advanced computer processing abilities to substantive contractual obligations. Certain financial contracts exemplify this model. Equity option contracts are routinely represented not as contract documents written in ordinary language - but as data records intended to be processed by computers. The parties ...


Fiduciary Duties And Unincorporated Business Entities: In Defense Of The "Manifestly Unreasonable" Standard, Mark J. Loewenstein Jan 2006

Fiduciary Duties And Unincorporated Business Entities: In Defense Of The "Manifestly Unreasonable" Standard, Mark J. Loewenstein

Articles

This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations ...


Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White Jan 2006

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 ...


Lawyers' Bargaining Ethics, Contract, And Collaboration: The End Of The Legal Profession And The Beginning Of Professional Pluralism, Scott R. Peppet Jan 2005

Lawyers' Bargaining Ethics, Contract, And Collaboration: The End Of The Legal Profession And The Beginning Of Professional Pluralism, Scott R. Peppet

Articles

This Article combines contractarian economics and traditional ethical theory to argue for a radical revision of the legal profession's codes of ethics. That revision would end the legal profession as we know it-one profession, regulated by one set of ethical rules that apply to all lawyers regardless of circumstance. It would replace the existing uniform conception of the lawyer's role with a more heterogeneous profession in which lawyers and clients could contractually choose the ethical obligations under which they wanted to operate. This "contract model" of legal ethics, in which lawyers could opt in and out of various ...


Getting Serious About User-Friendly Mass Market Licensing For Software, Robert W. Gomulkiewicz Jan 2004

Getting Serious About User-Friendly Mass Market Licensing For Software, Robert W. Gomulkiewicz

Articles

Software publishers use standard form end user licenses (“EULAs”) in mass market transactions on a regular basis. Most software users find EULAs perplexing and generally ignore them. Scholars, however, have focused on them intently. In the past twenty years over a hundred scholarly articles have been written on the subject. Most of these articles criticize EULAs and argue that courts should not enforce them. In their critique of EULAs, some scholars examine the adequacy of the offer, acceptance, and consideration. Others discuss EULAs as part of the troublesome issue of standard form contracting, and whether standard forms, on balance, harm ...


Contract Formation In Imperfect Markets: Should We Use Mediators In Deals?, Scott R. Peppet Jan 2004

Contract Formation In Imperfect Markets: Should We Use Mediators In Deals?, Scott R. Peppet

Articles

This Article asks a simple question: Could third-party mediators be helpful in deals, just as they are in disputes? This Article makes a theoretical argument for such interventions, but also presents preliminary empirical evidence suggesting that transactional mediation may already be taking place.


Contractarian Economics And Mediation Ethics: The Case For Customizing Neutrality Through Contingent Fee Mediation, Scott R. Peppet Jan 2003

Contractarian Economics And Mediation Ethics: The Case For Customizing Neutrality Through Contingent Fee Mediation, Scott R. Peppet

Articles

No abstract provided.


Transactional Mediation: Using Mediators In Deals, Scott Peppet Jan 2003

Transactional Mediation: Using Mediators In Deals, Scott Peppet

Articles

This article addresses whether third-party mediators could be helpful in deal-making, just as they are in resolving disputes. It makes a theoretical case for such use of mediators and presents preliminary evidence that transactional mediation already is taking place.


The Wharf (Holdings) Ltd. V. United International Holdings, Inc.: The Supreme Court Breaks Old Ground, Mark J. Loewenstein Jan 2001

The Wharf (Holdings) Ltd. V. United International Holdings, Inc.: The Supreme Court Breaks Old Ground, Mark J. Loewenstein

Articles

This article analyzes the Supreme Court's decision to decide only one federal securities law case, The Wharf (Holdings) Ltd. v. United International Holdings, Inc. On the face of it, the Court simply affirmed long-standing, uncontroversial tenets of Rule 10b-5. However, the article provides different explanations to the Court's decision.


Notice And Notification Under The Revised Uniform Partnership Act: Some Suggested Changes, J. Dennis Hynes Jan 1998

Notice And Notification Under The Revised Uniform Partnership Act: Some Suggested Changes, J. Dennis Hynes

Articles

This Article addresses the decision by the drafters of the revised Uniform Partnership Act (1996) (RUPA) to reduce the traditional defenses available to partnerships in apparent authority cases. RUPA eliminated the requirement that apparent authority claims against a partnership be based on the claimant's reasonable expectations. Under RUPA a partnership is liable for a partner's unauthorized act even when the claimant had reason to know the act was unauthorized. A defense based on the claimant's knowledge is effective only when the claimant actually knows--is cognitively aware--that the act was unauthorized. This Article argues that this places an ...


International Trade Law And The Arbitration Of Administrative Law Matters: Farrel V. U.S. International Trade Commission, Ronald A. Brand Jan 1993

International Trade Law And The Arbitration Of Administrative Law Matters: Farrel V. U.S. International Trade Commission, Ronald A. Brand

Articles

With support from the executive branch, Congress, and the courts, arbitration has become an increasingly popular method of international dispute resolution. While agreements to arbitrate traditionally were frowned upon, particularly when the dispute involved certain “public law” or “statutory” matters, the situation has changed dramatically in the past few decades. United States courts now routinely order arbitration of disputes implicating important policy issues in securities, antitrust, Racketeer Influenced and Corrupt Organizations (“RICO”), and employment law matters. By the end of the 1980’s, the presence of a public or “statutory” issue seemed no longer to be a distinguishing factor; arbitration ...


Washington Timber Deeds And Contracts, Ralph W. Johnson Apr 1957

Washington Timber Deeds And Contracts, Ralph W. Johnson

Articles

The law of Washington concerning the interests conveyed by timber deeds and contracts is foggy. Many vital questions are still totally unanswered, or have been left in confusion, by the cases in point. The principal area of doubt revolves around the question of whether standing timber, which has been sold separately from the land on which it stands, is realty or personalty. The answer is vital for many reasons. It determines whether a husband has power as manager of the community to convey community-owned timber without his wife's signature, which statute of frauds applies to a timber transaction, which ...


Conflict Of Laws--The Law Controlling The Validity Of A Married Woman's Contract, Victor H. Lane Jan 1920

Conflict Of Laws--The Law Controlling The Validity Of A Married Woman's Contract, Victor H. Lane

Articles

The case of Poole v. Perkins (Va.), IO S. E. 240, involves that troublesome question of whether the validity of a contract is to be ruled by the law of the place where made, or by that of the place of performance.


Contracts For The Benefit Of A Third Person In Michigan, Grover C. Grismore Jan 1920

Contracts For The Benefit Of A Third Person In Michigan, Grover C. Grismore

Articles

In the recent case of Preston v. Preston the supreme court of Michigan had occasion to consider the question as to whether or not one for whose benefit a contract is made has any enforcible rights. The suit was one 'in Chancery, the donee plaintiff was an invalid, and every consideration of justice and equity demanded that she be given relief. The court had, however, to face the fact that in recent cases it had indicated its opinion to be that the third party beneficiary has no rights. In Modern Maccabees v. Sharp, (1910) 163 Mich. 449, 456 the court ...


The 'Right' To Break A Contract, Willard T. Barbour Jan 1917

The 'Right' To Break A Contract, Willard T. Barbour

Articles

It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is ...


The 'Right' To Break A Contract, Willard T. Barbour Jan 1917

The 'Right' To Break A Contract, Willard T. Barbour

Articles

It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is ...


Invalid Contracts For Contingent Fees, James H. Brewster Jan 1908

Invalid Contracts For Contingent Fees, James H. Brewster

Articles

It is not unusual that agreements between attorneys and clients providing for contingent fees contain a stipulation to the effect that no settlement of the controversy concerning which there is a bargain for fees shall be made by the client without the attorney's consent. In the recent case of Davy et at. v. Fidelity and Casualty Ins. Co., 85 N. E. 504, the Supreme Court of Ohio condemns such an agreement as champertous and, by the citation of many Ohio decisions, "demonstrates that this court has always maintained a consistent and unambiguous attitude in regard to contracts of the ...


Freedom Of Contract, Jerome C. Knowlton Jan 1905

Freedom Of Contract, Jerome C. Knowlton

Articles

The liberty mentioned in the Fourteenth Amendment of the Federal Constitution "means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary ...


Subscriptions, Henry W. Rogers Jan 1887

Subscriptions, Henry W. Rogers

Articles

One cannot expect, within the limits of a single article, to exhaust the law relating to Subscriptions. But within the limits assigned, I propose to consider some portions of the law relating to this subject, which seem to me to be of sufficient interest and importance to merit attention in these pages. The subject of Subscriptions is seemingly a narrow one, and yet it has given rise to very considerable litigation, and out of it have come many interesting questions, upon the determination of which large pecuniary interests have often-times depended, especially in the case of Stock Subscriptions.


Effect Of A Change In The Law Upon Rights Of Actions And Defences, Thomas M. Cooley Dec 1876

Effect Of A Change In The Law Upon Rights Of Actions And Defences, Thomas M. Cooley

Articles

A very interesting and important question frequently is, what effect has been produced upon a right of action, or upon a previously existing defence to an action, by a change in the law effected by statute after the right has accrued, or the cause of action has arisen, to which the defence was applicable. The question is encountered in a great variety of cases, and is sufficiently important to be considered under the several heads where the cases seem to range themselves. This is done imperfectly below.


Of The Right To Waive A Tort And Sue In Assumpsit, Thomas M. Cooley Dec 1870

Of The Right To Waive A Tort And Sue In Assumpsit, Thomas M. Cooley

Articles

The distinctions between an action for a tort and one upon contract are such that where the one will lie the other generally will not; but there are nevertheless some cases in which either may be brought at the election of the party injured. Thus, it is sometimes the case, that, in a business relation, the law makes it the duty of a party to observe a certain course of conduct with regard to the rights of others, where by contract he has also undertaken for the same thing; and in such a case a breach of duty is coincident ...