Law Commons^™

Reforming The Unbargained Contract: Avoiding Bondholder Claims For Surprise Par Calls, Robert S. Blanc, Randy D. Gordon

Faculty Scholarship

Until the last couple of decades, interest rates remained relatively stable, thus providing little incentive for corporate borrowers to seek novel ways of redeeming purportedly non-callable bonds at par. But with the advent of junk bonds and periods of great interest rate volatility, issuers have been provided with powerful incentives to explore the relatively uncharted waters of par calls. This Article examines the authority for and legality of such par calls and ultimately proposes a redefinition of the issuer-bondholder relationship. This redefinition accounts for the realities of the marketplace and should lead a return to more settled expectations in both …

The Unfulfilled Promise Of Promissory Estoppel In The Employment Setting, Robert A. Hillman

Cornell Law Faculty Publications

Although the theory of promissory estoppel enforces promises that induce reasonable detrimental reliance, this article reveals the theory's colossal failure in the non-union employment setting. This conclusion is based on an examination of all of the reported decisions in the United States that discussed promissory estoppel over a two-year period in the mid 1990's. During this period, employees won only 4.23 percent of employment promissory estoppel cases decided on the merits. At first blush, this is very surprising because employers, through their communications, seek to create the expectation of a stable, secure work environment and employees, because of their lack …

The "New Conservatism" In Contract Law And The Process Of Legal Change, Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.

Civil Enforceability Of Religious Prenuptual Agreements, Michelle Greenberg-Kobrin

Articles

In the years since Perri Victor's divorce has been finalized, she has tried to move on with her life. She is raising a young daughter from that marriage and finishing up law school. Perri and Warren Victor were married in an Orthodox Jewish ceremony in Florida in 1976. They received a civil divorce in 1990. However, as an Observant Jew, Perri cannot remarry until Warren gives her a Jewish religious divorce known as a get. Since late 1987, she has been pleading with Warren to give her a get. When Warren asked her to give up a portion of her …

Of Textualism, Party Autonomy, And Good Faith, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Second Generation Of Law And Economics Of Conflict Of Laws: Baxter's Comparative Impairment And Beyond, Erin O'Hara O'Connor, William H. Allen

Scholarly Publications

In his 1963 article in the Stanford Law Review, “Choice of Law and the Federal System,” Professor William F. Baxter criticized the choice-of-law approach of the First Restatement of the Conflict of Laws. According to the Restatement, courts should apply the law of the state where the last act or event deemed necessary to create a cause of action occurred. In contrast, Baxter advocated a comparative-impairment approach, whereby judges were obligated to apply the law of the state whose public policy would suffer the greatest impairment if its law was not applied. The authors contend that although Baxter’s approach caries …

The Employment Contract, Ian Ayres, Stewart J. Schwab

Cornell Law Faculty Publications

This article consists of Professors Ian Ayres and Stewart Schwab 's presentation given at the Economic Analysis of State Employment Law Issues Symposium. Following the presentation, audience members and the presenters participated in a discussion concerning employment contracts. The Journal staff and Professors Ayres and Schwab compiled and edited some of these questions and responses.

Legal Aspects Of International Transfer Of Technology, Anna Mikhailovna Otkina

LLM Theses and Essays

For any international law practitioner issues relating to technology and proprietary information can arise in a number of a different situation. For example, transactions involving foreign distribution and sales rights relating to domestic products are a common part of the day-to-day practice of anyone engaged in the multinational business arena. Many of those transactions involve a contractual agreement in the form of a license, which is intended to transfer to the licensee the technology and related information, and the legal rights therewith, necessary to complete successfully the objective of the transaction: the distribution and sale of the domestic product at …

The Legal Status Of Teachers: A Comparative Study Between The System In The United States And The System In Belgium., Hildegard Ann Schmidt

LLM Theses and Essays

The legal status of the teacher refers to his life both inside and outside the classroom. The most obvious part of his job is teaching, which consists of the passing of knowledge to his students. Yet before he enters the classroom, there are issues to be resolved. For instance, the nature of the employment contract must be determined. Since job security is a substantial matter, the teacher needs to know whether the employment contract is at will. If it is not an at-will contract, the reasons for dismissal should be clearly established. The teacher also will be concerned about the …

Privately Legislated Intellectual Property Rights: Reconciling Freedom Of Contract With Public Good Uses Of Information, J.H. Reichman, Jonathan A. Franklin

Librarians' Articles

In an age of omnipresent clickwrap licenses, we acknowledge the need for a uniform set of default rules that would validate non-negotiable licenses as a mechanism for minimizing transaction costs likely to hinder economic development in a networked environment. However, we contend that any model of contract formation not driven by the traditional norms of mutual assent requires specially formulated doctrinal tools to avoid undermining long-established public good uses of information for such purposes as education and research, technical innovation, free speech, and the preservation of free competition.

With the convergence of digital and telecommunications technologies, creators and innovators who …

Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Michael G. Hillinger, Ingrid Michelsen Hillinger

Faculty Publications

The § 365 consumer debtor case law has a further complication. Much of it arises in the context of the last great bankruptcy frontier, Chapter 13. Until recently, Chapter 11 has occupied the minds and hearts of courts and attorneys. Not any more. And, as attorneys and courts take a closer, harder look at Chapter 13, it is no longer possible to describe it as a “streamlined creditors-can’t-vote Chapter 11”. Chapter 13 is unique, presenting its very own quandaries, not the least of which is how its provisions and § 365 interact. We live in interesting times.

Assignments Of International Interests In Mobile Equipment And Related Receivables Under The Unidroit Convention: When Should The Tail Wag The Dog?, Charles W. Mooney Jr.

All Faculty Scholarship

No abstract provided.

The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar

Articles

Well-rooted in modern commercial law is the idea that the law and the obligations that it enforces should reflect the empirical reality of the relationship between the contracting parties. The Uniform Commercial Code ("Code") champions this tradition by viewing the performance practices formed among the parties throughout their interaction as a primary source for interpreting and supplementing their explicit contracts. The generous recognition of waiver and modifications, as well as the binding force the Code accords to course of performance, course of dealings, and customary trade usages, effectively permits unwritten commercial practices to vary and to erode explicit contractual provisions.

Covenant And Contract, Steven Nock, Margaret F. Brinig

Journal Articles

In this article we ask, "What distinguishes a covenant from a mere contract, and what role does this distinction play for natural law?" Both of us have thought substantially about covenant over the past several years. The concept of covenant comes to us originally from religious sources, so we have paid explicit attention to what the Bible and organized religion have to say about covenant. We have also drawn from our own disciplines of law, economics, and sociology as they explain or draw from the initial concepts.

Covenant is a concept that takes us beyond contract. Indeed, the idea that …

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

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Rethinking The Uniformity Norm In Commercial Law: Optimal Institutional Design For Regulating Incomplete Contracts, Robert E. Scott

Faculty Scholarship

This paper begins with the claim that the state's primary role in uniformly enforcing commercial contracts is to regulate incomplete contracts efficiently. This role requires the state to perform two interdependent but conceptually distinct functions. The first is an interpretive function – the task of correctly (and uniformly) interpreting the meaning of the contract terms chosen by parties to allocate contract risk. The second is a standardizing function – the task of creating broadly suitable default rules or assigning standard meanings to widely used contract terms. Correct interpretation argues for a "textualist" or plain meaning interpretation of the express terms …

An Economic Analysis Of The Guaranty Contract, Avery W. Katz

Faculty Scholarship

Guaranty arrangements, in which one person stands as surety for a second person's obligation to a third, are ubiquitous in commercial transactions and in commercial law. In recent years, however, scholarly attention to the topic has been scant; and no one has systematically analyzed this body of law and practice from an economic policy perspective. Accordingly, this Article attempts to outline the basic economic logic underlying the guaranty relationship, and applies the results to a variety of specific issues in government policy and private planning. It poses and answers three main questions: First, why would a creditor prefer to make …

Frustration, Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

As noted elsewhere in this book, "sanctity of contract" has been identified as one of the cornerstones of the classical model of contracts. However, as the previous chapter on mistake indicated, in certain limited situations parties may be excused from their contractual obligations. Frustration provides another example of an excuse from performance obligations. Whereas mistake deals with inaccurate assumptions or lack of knowledge about past or existing circumstances, frustration relates to inaccurate assumptions about future circumstances. Sometimes it is not clear whether a mistake or a frustration analysis is appropriate.

Rethinking Statutory Antiwaiver Provisions Following The Lloyd's Of London Litigation, Mark J. Loewenstein

Publications

In the Lloyd's of London cases, the United States Courts of Appeals upheld certain forum-selection clauses that effectually deprived investors of the protections of the federal securities laws as if the investors had expressly waived those protections. This article examines statutory antiwaiver provisions in light of the Lloyd's cases, exploring the effect those provisions have on the administration of the federal securities laws, and suggests that the law be amended to allow contractual waiver in certain circumstances.

The Case For Punitive Damages In Contracts, William S. Dodge

Faculty Scholarship

No abstract provided.

Waiting For The Omelet To Set: Match-Specific Assets And Minority Oppression In The Close Corporation, Edward B. Rock, Michael L. Wachter

All Faculty Scholarship

No abstract provided.

In Defense Of The Incorporation Strategy, Jody S. Kraus, Steven D. Walt

Faculty Scholarship

Contract law must provide rules for interpreting the meaning of express terms and default rules for filling contractual gaps. Article 2 of the Uniform Commercial Code provides the same response to both demands: It incorporates the norms of commercial practice. This "incorporation strategy" has recently come under attack. Although the incorporation strategy for gap-filling seems to have survived criticism, the incorporation strategy for interpretation remains heavily criticized. Critics charge that the expected rate of interpretive error under an incorporationist interpretive regime is so excessive that almost any plain meaning regime would be preferable.

The attack on the incorporation strategy for …

Comparative Corporate Governance And The Theory Of The Firm: The Case Against Global Cross Reference, William W. Bratton, Joseph A. Mccahery

All Faculty Scholarship

Professors Bratton and McCahery take up the main questions addressed by the literature on comparative corporate governance: whether national governance systems can be expected to converge in the near future, and whether the focal point of that convergence will be a new, hybrid governance system comprised of the best practices drawn from different systems. This Article advances the view that neither global convergence that eliminates systemic differences nor the emergence of a hybrid best practice safely can be projected because each national governance system is a system to a significant extent. Each system, rather than consisting of a loose collection …

Despatches From The Front: Recent Skirmishes Along The Frontiers Of Electronic Contracting Law, Jane Kaufman Winn, Michael Rhoades Pullen

Articles

This Article will provide a short overview of the current efforts in the United States and the European Union to reform contract law to accommodate recent innovations in electronic contracting. Whether changes are needed to current contract law doctrines governing contract formation, effectiveness of contract terms, choice of law and forum provisions, special protections for consumers, and signature and writing requirements, revisions in these areas have all proved controversial. Even in those areas where a consensus may be emerging on whether law reform may be appropriate in some form, consensus is often still lacking with regard to the specific legislation …

The Indentured Servants Of Academia: The Adjunct Faculty Dilemma And Their Limited Legal Remedies, John C. Duncan, Jr.

Journal Publications

In this half of the twentieth century, the academic equivalent of the indentured servant is the adjunct faculty member in higher education. Adjuncts cannot say or do much about their plight. The dilemma of adjunct faculty leads to what should be considered a violation of due process rights. This Article first examines who are the adjunct faculty, what are their dilemmas, and how are they viewed in the academic world. The heart of the paper then explores the limited legal remedies available. The essential problems of lack of due process and minimal protection through collective bargaining and contractual agreements are …

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 …

Myths, Miscues, And Misconceptions: No-Aid Separationism And The Establishment Clause, Carl H. Esbeck

Faculty Publications

In neutrality theory the recipients of vouchers, grants, and purchase-of-service contracts are eligible to participate as providers in government social service programs without regard to their religious character. Indeed, religious beliefs and practices are prohibited bases for screening out those who want to be welfare program providers. Notable examples of congressional social service legislation conforming to the rule of religious neutrality are the ‘charitable choice‘ feature imbedded in the Welfare Reform Act of 1996 and the Community Services Block Grant Act of 1998, as well as the provision allowing issuance of child care vouchers to indigent parents in the Child …

The Richness Of Contract Theory, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This essay is a review of The Richness of Contract Law: An Analysis and Critique of Conemporary Theories of Contract Law by Robert A. Hillman (1997).

Throughout the book, Hillman offers a number of useful insights about various issues of contract law and theory--as he has in his numerous law review articles--but in this review the author is concerned with his overall theme: a general skepticism about "unifying" or "highly abstract" contract theories that fail to mirror the richness of contract law. In this regard, Hillman stands in the "realist" tradition of the previous generation of contracts scholars. Hillman attempts …

The Richness Of Contract Theory, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Singapore Electronic Transactions Act 1998 And The Proposed Article 2b Of The Uniform Commercial Code, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

It is axiomatic that the law must change with the times. And nowhere is this more starkly demonstrated than in the shift, particularly during the last decade or so, into the information age - a shift that has radically changed the face of commerce, and will continue to do so in the years to come. In the context of commercial law, the focus on goods and property, so prevalent particularly in the middle of this century, is now giving way to an acknowledgment that the relevant legal regimes must accommodate information as contractual subject-matter. In this regard, it is widely …