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Articles 1 - 29 of 29
Full-Text Articles in Law
Essentials Of A Publication Agreement, Stephen Wolfson, Mariann Burright
Essentials Of A Publication Agreement, Stephen Wolfson, Mariann Burright
Presentations
This session will focus on authors' rights and publishing contracts. When academic publishers agree to publish academic works, they require the authors to sign agreements before doing so. In the past, these “agreements” – contracts, by another name – often have contained provisions that primarily benefit the publishers, including assigning intellectual property rights in the works to the publishers and limiting authors’ abilities to use their works after transferring their rights. Faculty authors often ask librarians for their guidance on how to read and negotiate publication agreements. As such, this session will discuss common provisions found in publishing contracts to …
Plea Agreements As Constitutional Contracts, Colin Miller
Plea Agreements As Constitutional Contracts, Colin Miller
Faculty Publications
In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases …
What's In A Licensing Agreement?, Stephen Wolfson, Mariann Burright
What's In A Licensing Agreement?, Stephen Wolfson, Mariann Burright
Presentations
Now that you know the foundations of enforceable contracts, and want to have more familiarity with some nuts and bolts of contract language to become a better negotiator for your institutions, you will want to take this second webinar.
Participants will learn:
• What are the basic provisions or clauses of a contract?
• What do these provisions obligate my institution to do?
• What do these provisions obligate the other party to do?
• What rights does my institution have if the other party breaks its obligations?
Contract Basics For Librarians And Others In Higher Ed, Stephen Wolfson, Mariann Burright
Contract Basics For Librarians And Others In Higher Ed, Stephen Wolfson, Mariann Burright
Presentations
If you have signature or negotiation authority for your institution, and would like to get an overview of contracts to learn what your institution’s rights and obligations may be under a contract, this session is for you! Participants will learn:
• Why it is important to understand how contracts work?
• What does it mean for a contract to be enforceable in a US court?
• How is an enforceable contract formed?
• What could lead to contract breach?
The Best And Worst Of Contracts Decisions: An Anthology, Nathan B. Oman, Daniel Barnhizer, Scott J. Burnham, Charles R. Calleros, Larry T. Garvin, Nadelle Grossman, F. E. Guerra-Pujol, Jeffrey L. Harrison, Hila Keren, Michael P. Malloy, Daniel P. O'Gorman, Deborah Post, Val Ricks, Rachel Arnow-Richman, Richard R. Carlson, Mark P. Gergen, Kenney Hegland, Nancy S. Kim, Jean Fleming Powers, Cheryl B. Preston
The Best And Worst Of Contracts Decisions: An Anthology, Nathan B. Oman, Daniel Barnhizer, Scott J. Burnham, Charles R. Calleros, Larry T. Garvin, Nadelle Grossman, F. E. Guerra-Pujol, Jeffrey L. Harrison, Hila Keren, Michael P. Malloy, Daniel P. O'Gorman, Deborah Post, Val Ricks, Rachel Arnow-Richman, Richard R. Carlson, Mark P. Gergen, Kenney Hegland, Nancy S. Kim, Jean Fleming Powers, Cheryl B. Preston
Faculty Publications
Five hundred years ago, the common law of contract was without substance. It was form-procedure. Plaintiffs picked a form of action, and common law judges made sure someone besides themselves answered all the hard questions; the parties, a jury, or a ritual determined the winner and the remedy. Judges ran a switch on a conflicts-resolution railway. Thomas More, when Chancellor of England (1529-33), urged judges to lay tracks and control the trains. The problem, he said, was that the judges, "by the verdict of the jury[,] cast off all quarrels from themselves." The judges soon assumed greater authority, taking responsibility …
Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Angela Onwuachi-Willig, Ifeoma Ajunwa
Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Angela Onwuachi-Willig, Ifeoma Ajunwa
Faculty Scholarship
Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements — which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior …
Lobbying As A Strategy For Tribal Resilience, Kirsten Matoy Carlson
Lobbying As A Strategy For Tribal Resilience, Kirsten Matoy Carlson
Law Faculty Research Publications
No abstract provided.
Boilerplate’S False Dichotomy, James Gibson
Boilerplate’S False Dichotomy, James Gibson
Law Faculty Publications
The argument against enforcing boilerplate contracts (contracts that no one reads) seems clear. Indeed, if this were a court case we would say that the jury is in; the evidence against boilerplate is overwhelming. Yet the judge has yet to render judgment. Courts continue to enforce boilerplate terms, and even those scholars who have exposed boilerplate as an emperor with no clothes are reluctant to gaze upon its nakedness and condemn its use.
This reluctance originates in an assumption that pervades the boilerplate debate—namely, that courts and commentators alike view boilerplate as necessary to the modern transaction. When asked to …
Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod
Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod
Faculty Articles
The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligations upon private persons and government officials, such that once vested, the rights cannot be taken away or retrospectively altered. Lawyers convey estates in property, negotiate contracts, and write and send demand letters on the supposition that they are specifying and vindicating rights, which are rights not as a result of a judgment by a court in a subsequent …
Control Of The Attorney-Client Privilege After Mergers And Other Transformational Transactions: Should Control Of The Privilege Be Alienable By Contract?, Grace M. Giesel
Control Of The Attorney-Client Privilege After Mergers And Other Transformational Transactions: Should Control Of The Privilege Be Alienable By Contract?, Grace M. Giesel
Faculty Scholarship
In recent years, parties to mergers and other transformational transactions have begun inserting into their deal documents provisions allocating post-transaction control of the attorney-client privilege for pretransaction communications. The controller of the privilege is the person or entity who decides whether to assert the privilege or, rather, to waive it. Commonly, representatives of the target entity in a merger or representatives of an asset seller in a transformational sale want post-transaction control of the privilege for pre-transaction communications relating to the transaction. They want control of the privilege so the surviving entity cannot access or use those communications against the …
The Middleman’S Damages Revisited, Victor P. Goldberg
The Middleman’S Damages Revisited, Victor P. Goldberg
Faculty Scholarship
If A promises to sell to B who, in turn, promises to sell to C and either A or C breaches should B receive the gain it expected had both transactions occurred (lost profits) or the larger market/contract differential? Recent case law and commentary argues for the lost profit remedy. The argument is that there is a conflict between awarding market damages and making the nonbreacher whole. This paper argues that there is no conflict. If B were a broker, and C breached, then A would have an action against C for market damages. If B were party to the …
The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal
The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal
Publications
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 remain …
Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian
Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian
Faculty Publications
In this essay for a symposium on Professor Nathan Oman's new book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman's argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called "doux commerce" thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke's critique from …
Antitrust Enforcement Against Platform Mfns, Jonathan Baker, Fiona M. Scott Morton
Antitrust Enforcement Against Platform Mfns, Jonathan Baker, Fiona M. Scott Morton
Articles in Law Reviews & Other Academic Journals
Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions (also termed pricing parity provisions) can help protect competition in online markets. An online platform imposes a platform MFN when it requires that providers using its platform not offer their products or services at a lower price on other platforms. These contractual provisions may be employed by online platforms offering hotel and transportation bookings, consumer goods, digital goods, and handmade craft products. They have been the subject of antitrust enforcement in Europe but have drawn only limited antitrust scrutiny in the U.S. Our paper explains why MFNs employed by online …
Contract Law's Predominant Purpose Test And The Law-Fact Distinction, Daniel P. O'Gorman
Contract Law's Predominant Purpose Test And The Law-Fact Distinction, Daniel P. O'Gorman
Faculty Scholarship
No abstract provided.
Sign Or Die: The Threat Of Imminent Physical Harm And The Doctrine Of Duress In Contract Law, Daniel P. O'Gorman
Sign Or Die: The Threat Of Imminent Physical Harm And The Doctrine Of Duress In Contract Law, Daniel P. O'Gorman
Faculty Scholarship
No abstract provided.
Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov
Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov
Faculty Scholarship
No abstract provided.
Commodifying Consumer Data In The Era Of The Internet Of Things, Stacy-Ann Elvy
Commodifying Consumer Data In The Era Of The Internet Of Things, Stacy-Ann Elvy
Articles & Chapters
Internet of Things (“IOT”) products generate a wealth of data about consumers that was never before widely and easily accessible to companies. Examples include biometric and health-related data, such as fingerprint patterns, heart rates and calories burned. This Article explores the connection between the types of data generated by the IOT and the financial frameworks of Article 9 of the Uniform Commercial Code and the Bankruptcy Code. It critiques these regimes, which enable the commodification of consumer data, as well as laws aimed at protecting consumer data, such as the Bankruptcy Abuse Prevention and Consumer Protection Act, various state biometric …
Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller
Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller
Faculty Scholarship
In The Choice Theory of Contracts, we advance a claim about the centrality of autonomy to contract. This Issue offers thoughtful and penetrating critiques. Here, we reply. Autonomy is the grounding principle of contract. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path for …
Keeping Promises And Meeting Needs: Public Charities At A Crossroads, Allison Anna Tait
Keeping Promises And Meeting Needs: Public Charities At A Crossroads, Allison Anna Tait
Law Faculty Publications
When a charitable organization cannot fulfill the terms of a charitable gift agreement, it must decide whether to keep a promise or meet a need. That is to say, a charitable organization can either preserve original donor intent, adhering to conditions placed on a gift, or it can attempt to modify the terms of the gift in order to budget and spend the funds more effectively. If an institution chooses to keep a promise, it might be stuck with a fund it cannot use because of conditions placed on the money at the time of the gift. In order to …
Bespoke Discovery, Jessica Erickson
Bespoke Discovery, Jessica Erickson
Law Faculty Publications
The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes. With forum selection clauses, parties can decide where they will litigate future disputes. With fee-shifting provisions, they can choose who will pay for these suits. And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether. Parties can also waive their right to appeal, their right to a jury trial, and their right to file a class action. Bespoke procedure, in other words, is commonplace in the United States.
Far less common, however, are …
The Behavioral Economics Of Multilevel Marketing, Heidi H. Liu
The Behavioral Economics Of Multilevel Marketing, Heidi H. Liu
All Faculty Scholarship
Multilevel marketing companies (MLMs) - sales organizations that compensate independent consultants based on the sales and recruitment of other consultants - form a significant part of the American economy. Yet, MLMs provide little information to regulators and potential participants regarding potentially material information. Although MLMs are often compared to pyramid schemes, consultants argue that participation in a MLM allows them to make money outside of the traditional full-time labor force. This paper examines the law, economics, and psychology of MLMs, suggesting that MLMs may draw on prospective consultants' cognitive biases in persuading consultants to join and continue a MLM. Consultants …
Relational Contracts Of Adhesion, David A. Hoffman
Relational Contracts Of Adhesion, David A. Hoffman
All Faculty Scholarship
Not all digital fine print exculpates liability: some exhorts users to perform before the consumer relationship has soured. We promise to choose strong passwords (and hold them private); to behave civilly on social networks; to refrain from streaming shows and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots). In short: consumers are apparently regulated by digital fine print, though it’s universally assumed we don’t read it, and even if we did, we’ll never be sued for failing to perform.
On reflection, this ordinary phenomenon is perplexing. Why would firms persist in deploying uncommunicative behavioral spurs? The conventional …
A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew
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 …
The Price Of Law: The Case Of The Eurozone's Collective Action Clauses, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena
The Price Of Law: The Case Of The Eurozone's Collective Action Clauses, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena
Faculty Scholarship
Do markets value contract protections? And does the quality of a legal system affect such valuations? To answer these questions we exploit a unique experiment whereby, after January 1, 2013, newly issued sovereign bonds of Eurozone countries under domestic law had to include Collective Action Clauses (CACs) specifying the minimum vote needed to modify payment terms. We find that CAC bonds trade at lower yields than otherwise similar no-CAC bonds; and that the quality of the legal system matters for this differential. Hence, markets appear to see CACs as providing protection against the legal risk embedded in domestic-law sovereign bonds.
Bankruptcy’S Uneasy Shift To A Contract Paradigm, David A. Skeel Jr., George Triantis
Bankruptcy’S Uneasy Shift To A Contract Paradigm, David A. Skeel Jr., George Triantis
All Faculty Scholarship
The most dramatic development in twenty-first century bankruptcy practice has been the increasing use of contracts to shape the bankruptcy process. To explain the new contract paradigm—our principal objective in this Article-- we begin by examining the structure of current bankruptcy law. Although the Bankruptcy Code of 1978 has long been viewed as mandatory, its voting and cramdown rules, among others, invite considerable contracting. The emerging paradigm is asymmetric, however. While the Code and bankruptcy practice allow for ex post contracting, ex ante contracts are viewed with suspicion.
We next use contract theory to assess the two modes of contracting. …
Interpretation And Construction In Contract Law, Gregory Klass
Interpretation And Construction In Contract Law, Gregory Klass
Georgetown Law Faculty Publications and Other Works
Interpretation determines the meaning of a legal actor’s words and actions, construction their legal effect. Although the interpretation-construction distinction has a long pedigree, contract scholars today rarely attend to it, and the relationship between the two activities remains understudied. This Article provides an account of the interplay between interpretation and construction in contract law.
It begins with the history of the concepts, focusing on the works of Lieber, Williston and Corbin. It adopts Corbin’s complimentary conception, according to which interpretation alone never suffices to determine speech act’s legal effects; a rule of construction is always required. The Article departs from …
Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller
Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller
Faculty Scholarship
In “The Choice Theory of Contracts”, we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract.
Oren Bar-Gill pushes back strongly in “Choice Theory and the Economic Analysis of Contracts”. He offers a penetrating – perhaps devastating – critique of our approach. Bar-Gill notes the substantial convergence between choice theory and a welfarist view. If he is right, then what does choice theory add?
Our task in Part I of this …
What Did They Know And When Did They Know It? Pretesting As A Means Setting A Baseline For Assessing Learning Outcomes, Jeffrey L. Harrison
What Did They Know And When Did They Know It? Pretesting As A Means Setting A Baseline For Assessing Learning Outcomes, Jeffrey L. Harrison
UF Law Faculty Publications
Are legal rules intuitive or, at least, consistent with common sense? In this study, 260 law students at five law schools who had not taken contract law, were presented with eight questions based on specific contracts cases or common contracts issues. They were asked what they felt was the fair or right answer to each question and to formulate the rule they would apply. The purposes of the study were to 1) determine whether contract law is what the untrained person believes it is or should be and 2) experiment with a strategy of pretesting to determine what topics within …