Law Commons^™

Applying Tort Theory To Information Technology, Marvin L. Longabaugh

ExpressO

In this article, I discuss the issue of whether torts attributable to Information Systems products, both hardware and software, should be subject to litigation as a contract action, a tort action, or both. I further suggest a protocol for attorneys and courts to consider when attempting to discern whether a particular cause of action is appropriate. Last, I briefly discuss whether the advent of certification programs for computer professionals should result in the courts reconsideration of the concept of computer malpractice.

Greed And Pride In International Bankruptcy: The Problems And Proposed Solutions To “Local Interests”, John A. E. Pottow

Law & Economics Working Papers Archive: 2003-2009

From just-enacted (2005) chapter 15 of the U.S. Bankruptcy Code to the U.K. Enterprise Act of 2002, legislative reforms to international bankruptcy are on the rise. One of the thorniest issues facing scholars and policymakers alike in these efforts is what to do with the nettlesome problem of “local interests.” What exactly are these “local interests,” and what is it that we are we trying to protect? Literature to date has been elusive in pinning this down and has offered, for the most part, only undifferentiated anxiety that an international bankruptcy regime may impinge undesirably upon “local concerns.” This article …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Use And Effectiveness Of Contract Schedule Incentives In Air Force Materiel Command, Rodrick A. Koch

Theses and Dissertations

Are contract schedule incentives utilized by our acquisition contracting workforce, and if so what are their effectiveness? This research shows there is not widespread use of these types of incentives. There is also disagreement on their perceived effectiveness. Surveying, via email, the population of contracting officers and buyers within Air Force Materiel Command yielded responses from every center and many large acquisition systems. Only 8.5% of responses showed that they use schedule incentives. These respondents claim that schedule incentives are somewhat effective, yet of the 91.5 % that have not used them, 2-to-l say they would not be effective. The …

The New Judicial Hostility To Arbitration: Unconscionability And Agreements To Arbitrate, Steven J. Burton

ExpressO

Many, many contract disputes are now being settled by arbitration instead of litigation. The United States Supreme Court strongly favors the enforcement of agreements to arbitrate that fall within the Federal Arbitration Act. This Article shows that many lower courts, however, are using the contract unconscionability doctrine to refuse enforcement of agreements to arbitrate. It argues (1) that many such lower court decisions should be pre-empted by the Federal Arbitration Act, and (2) that lower courts should give due weight to the federal policy favoring arbitration when deciding whether to enforce an agreement to arbitrate.

Managing Risk On A $25 Million Bet: Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett Iii

ExpressO

An implicit dichotomy of the corporation exists in legal scholarship. On one side of the dichotomy rests the publicly-held corporation suffering from a significant conflict of interest between its managers and dispersed shareholders; on the other side, the closely-held corporation plagued by inter-shareholder conflict.

This Article argues that understanding the agency problems that can exist within a firm demands a rejection of this traditional dichotomy and the theories of the firm built upon it. Using venture capital finance, this Article demonstrates for the first time how this dichotomy obscures how all firms - public and private - often face the …

Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon

ExpressO

This article provides a comprehensive analysis of the economic, athletic, and social impact of final offer salary arbitration in Major League Baseball (“MLB”). The article delves into the motivations, fluctuations, and evolution of the player-owner relationship and free agency. The commentary then focuses on the distinguishing features and intricacies of final offer arbitration. Although salary arbitration in the context of Major League Baseball is a topic oft discussed in the law review setting, the analysis rarely reaches the level exhibited in this article. Moreover, most articles on the subject were written between 1996 and 2000 when the 1994 players’ strike …

Bringing Locus Into Focus: A Choice-Of-Law Methodology For Cisg-Based Concurrent Contract And Product Liability Claims, Antonin I. Pribetic

Antonin I. Pribetic

The article discusses choice-of-law theories for both contractual and tort/product liability claims governed by the CISG. The underlying theme is that concurrent claims are not necessarily equivalent claims. While concurrent liability in contract and tort (namely, product liability) may be applicable or alternative remedies available, the focus of the CISG is the harmonization of rules governing international sale contracts. The article argues that factors such as the place of injury or where the damages are sustained are less relevant than the situs of the contract, based upon the view that, without privity of contract, the concurrent tort would not arise. …

Incomplete Contracts In A Complete Contract World, Scott A. Baker, Kimberly D. Krawiec

ExpressO

This paper considers the role that contract doctrine should play in facilitating optimal investment in contractual relationships. All contracts are incomplete in the sense that they do not specify the optimal actions for the buyer and seller in every future contingency. This incompleteness can lead to both under and over-investment in resources specifically targeted to the needs of the other contracting party. To solve these investment problems, economists and legal scholars have looked to complicated contractual solutions and the ownership of assets.

This Article offers another solution: contract doctrine. Specifically, we propose a contractual default rule applicable to all contract …

The "Branding Effect" Of Contracts, D. Gordon Smith

Faculty Scholarship

In his case study of the MasterCard IPO and its predecessor piece on the Google IPO, Victor Fleischer claims to find evidence of a branding effect of legal infrastructure. The branding effect is not aimed at reducing the potential for opportunism by a counterparty to a contract, but rather at increasing the attractiveness of a product to present and future users or improving the image of a company in the eyes of regulators, judges, and juries. In this essay commenting on Fleischer's work, I endorse the notion that deal structures have branding effects and position Fleischer's work within a larger …

Tort Recovery For Defective Products Posing A Threat Of Bodily Harm: An Exception To The Economic Loss Rule, Matthew W. Gissendanner

South Carolina Law Review

No abstract provided.

Slack V. James: Can South Carolina's Real Estate Industry Rely On Non-Reliance Clauses, Morgan H. Rogers

South Carolina Law Review

No abstract provided.

The Entrepreneur And The Theory Of The Modern Corporation, Charles R.T. O'Kelley

Scholarly Works

The foremost description of the classic entrepreneur, immediately prior to the Great Depression and now, was presented by Frank Knight in his seminal work, RISK, UNCERTAINTY, AND PROFIT. In this Article, I will explicate Knight's theory of the entrepreneur and show how it relates to both the Berle-Means Paradigm and the nexus-of-contracts theory of the corporation. My effort here is in part intellectual history and in part the tentative beginnings of a new positive account of the corporation. In the latter regard, this Article takes only the first step in what may prove a quite exhaustive effort to re-plow the …

Of Shrinking Sweatsuits And Poison Vine Wax: A Comparison Of Excuse For Nonperformance Under The Ucc And The Cisg, Carla Spivack

ExpressO

This article compares the doctrine of excuse/exemption for nonperformance under UCC 2-615 and CISG Article 79 analyzing texts, commentary and cases, and the underlying policy concerns of both regimes. It argues that a narrow interpretation of Article 79's basis for excuse/exemption is the reading intended by the drafters and most likely to promote the CISG's goal of facilitating transborder transactions.

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David S. Gamage

ExpressO

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 paper 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 …

Punitive Damages, Liquidated Damages, And Clauses Penale In Contract Actions: A Comparative Analysis Of The American Common Law And The French Code Civil, Charles R. Calleros

ExpressO

Although American common law allows punitive damages for reckless or intentional torts, it will neither allow a jury to assess punitive damages for breach of contract nor permit enforcement of a contractual damages clause that is deemed to be punitive. This approach is rooted in an early Chancery practice of granting equitable relief from oppressive penal bonds and has been more recently justified as a means of facilitating efficient breach. Economic efficiency, however, can be accomplished even if punitive damages could be assessed for intentional breach, because the parties would have an incentive to negotiate a release from the first …

Contracting Out Of The Culture Wars: How The Law Should Enforce And Communities Of Faith Should Encourage More Enduring Marital Commitments, Jamie A. Aycock

ExpressO

This article attempts to transcend the “culture wars” as they are played out in the family law arena by drawing on postmodern values, such as individualism and neutrality, to allow individuals who so desire to choose to emphasize more traditional or communitarian values, such as interdependence and attachment. This article argues, then, as others have, that the role of contract in marriage should be extended for those who choose to agree to additional terms. Here, the argument goes a step further, however, by positing an active, positive role for communities of faith to play in a marriage regime of expanded …

Overvalued Equity And The Case For An Asymmetric Insider Trading Regime, Thomas A. Lambert

ExpressO

The forty-year debate over whether insider trading should be regulated has generally proceeded in all-or-nothing terms: Either all insider trading should be permitted (subject only to private restrictions imposed by issuers themselves), or none should. This Article argues for an asymmetric insider trading policy under which insider trading that decreases the price of an overvalued stock is generally permitted, but insider trading that increases the price of an undervalued stock is generally prohibited. Concluding that the net investor benefits of price-decreasing insider trading exceed those of price-enhancing insider trading, the Article argues that an asymmetric insider trading regime likely represents …

The Option Conundrum In Tax Law: After All These Years, What Exactly Is An Option?, Kevin J. Liss

ExpressO

Some of the latest financial products that have become prevalent on Wall Street defy easy categorization for tax purposes. Certain products, such as economic derivatives or weather derivatives, bear the trappings of options, but lack an underlying property component. Other products, such as credit default swaps, have option-type payouts, but are cast in the form of financial swaps. Which of these products are truly options and why? When and how to tax these instruments depends on proper resolution of this fundamental classification issue. With respect to credit default swaps, arguably the single most important product innovation on Wall Street in …

عرض ملخــص لأطروحــة جامعيــة: الضمانــات الخاصــة بعيــوب ما بعــد الإنشــاء فــي عقــود البنــاء و الإنشــاءات: الأســاس النظــري و توزيــع المخاطــر - دراســة مقارنــة فــي القوانيــن الكويتــي، الفرنســي و الانجليــزي, Mashael Alhajeri

Mashael Alhajeri

No abstract provided.

Illegal Contacts And Efficient Deterrence: A Study In Modern Contract Theory, Juliet P. Kostritsky

Faculty Publications

This Article offers a unified theory that explains why courts, despite the compelling argument for deterrence, should not apply the no-effect rule of illegal contracts uniformly and why they should vary the type of relief according to the factual setting. It posits that a graduated relief structure will maximize efficient deterrence. An efficient deterrence scheme will preserve limited personal, judicial and societal resources without burdening legitimate transactions.

The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering For Interoperability Purposes, Daniel Laster

ExpressO

As patent protection has emerged to protect software, courts and commentators have mistakenly focused on copyright law and overlooked the centrality of patent preemption to limit contract law where a mass market license which prohibits reverse engineering (RE) for purposes of developing interoperable products leads to patent-like protection. Review of copyright fair use cases on RE and Congress’s policy favoring RE for interoperability purposes in the Digital Millennium Copyright Act reinforce the case for patent preemption. Also, the fundamental freedom to RE embodied in state trade secret law, coupled with federal patent and copyright law and policies, cumulatively should override …

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Regulating Contract Formation: Precontractual Reliance, Sunk Costs, And Market Structure, Ofer Grosskopf, Barak Medina

ExpressO

This Article challenges the plausibility of the prospect of underinvestment in precontractual reliance (PCR). We argue that a negotiating party is motivated to invest in PCR not only through her expectation to extract the benefits that the investment yields (Added-Value Motivation), but also through the effect of the investment on her position vis-à-vis her competitors (Competition-Based Motivation). We demonstrate that under plausible assumptions, when a negotiating party operates in a relatively competitive market, the Competition-Based Motivation is frequently sufficient to induce optimal PCR, even without appropriate contractual provisions or legal intervention.

We suggest several normative implications. First, legal intervention that …

Explicit Evidence On An Implicit Contract, Andrew Young, Daniel Levy

ExpressO

We offer the first direct evidence of an implicit contract in a goods market. The evidence we offer comes from the market for Coca-Cola. We demonstrate that the Coca-Cola Company left a substantial amount of written evidence of its implicit contract with its consumers—a very explicit form of an implicit contract. In general, observing implicit contracts directly is difficult because of their implicit nature. In the case of Coca-Cola, however, we are able to document the Company not only saying that it had an important implicit contract with its consumers, but also acting on it. This study makes an additional …

Toward Praxis, Emily Houh

Faculty Articles and Other Publications

This Essay, written for a 2005 symposium issue of the U.C. Davis Law Review, responds to an important question posed by the symposium organizers: What is the future of critical race feminism? In this Essay, I use a common law contractual good faith antidiscrimination claim, developed and proposed by me in a series of previously written articles, to help answer that question. While, in the past, my proposed good faith claim aimed principally to operationalize some recurring and foundational insights of critical race theory, such as the race crits' critique of the intentionality requirement in conventional antidiscrimination law, the Davis …

Improving The Rolling Contract, Stephen E. Friedman

American University Law Review

This article addresses the increasingly common problem of buyers finding important contract terms inside the box of a newly purchased item instead of learning about them before or during purchase. The failure of courts to develop a satisfactory approach to deciding which contact terms sellers may provide after purchase is of great significance in light of the rapid proliferation of rolling contracts. In this article, Friedman proposes a mechanism that will ensure that sellers have the flexibility to defer presentation of some terms but that will also protect purchasers against the unfair imposition of unexpected and important terms arriving at …

Contract Law—The Collision Of Tort And Contract Law: Validity And Enforceability Of Exculpatory Clauses In Arkansas. Jordan V. Diamond Equipment, 2005 Wl 984513 (2005)., John G. Shram

University of Arkansas at Little Rock Law Review

No abstract provided.

Affirmative Injunctions In Athletic Employment Contracts: Rethinking The Place Of The Lumley Rule In American Sports Law, Geoffrey Christopher Rapp

Marquette Sports Law Review

No abstract provided.

Termination Of College Coaching Contracts: When Does Adequate Cause To Terminate Exist And Who Determines Its Existence?, Martin J. Greenberg

Marquette Sports Law Review

No abstract provided.