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Full-Text Articles in Law

Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone Aug 2017

Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone

Kerri Stone

No abstract provided.


Amending Corporate Charters And Bylaws, Albert H. Choi, Geeyoung Min Aug 2017

Amending Corporate Charters And Bylaws, Albert H. Choi, Geeyoung Min

Faculty Scholarship

Recently, courts have embraced the contractarian theory that corporate charters and bylaws constitute a “contract” between the shareholders and the corporation and have been more willing to uphold bylaws unilaterally adopted by the directors. This paper examines the contractarian theory by drawing a parallel between amending charters and bylaws, on the one hand, and amending contracts, on the other. In particular, the paper compares the right to unilaterally amend corporate bylaws with the right to unilaterally modify contract terms, and highlights how contract law imposes various limitations on the modifying party’s discretion. More generally, when the relationship of contracting ...


Relational Contracts Of Adhesion, David A. Hoffman Jul 2017

Relational Contracts Of Adhesion, David A. Hoffman

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 ...


Interpretation And Construction In Contract Law, Gregory Klass May 2017

Interpretation And Construction In Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

In their technical senses, “interpretation” refers to the search for a legal text’s meaning, “construction” to the determination of its legal effect. Although scholars have long recognized the difference between the two activities, today many do not attend to it, and the relationship between them remains understudied. An adequate account of the interpretation-construction distinction begins with the concepts’ history, and the eventual recognition that interpretation and construction are complementary activities. This lays the groundwork for investigating the interaction between them. Interpretation always precedes construction in the process of legal exposition. But because contract law recognizes multiple types of meaning ...


Solid V. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 17 (Apr. 27, 2017), Hunter Davidson Apr 2017

Solid V. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 17 (Apr. 27, 2017), Hunter Davidson

Nevada Supreme Court Summaries

The Court interpreted Nevada Supreme Court Rules (“SCR” or the “Rules”) on Electronic Coverage of Court Proceedings: (1) My Entertainment TV (MET) is a “news reporter” under SCR 229(1)(c) because it collects, edits, and publishes footage concerning local events for public dissemination; (2) Clark County court proceedings footage has the educational or informational purpose required by SCR 241; (3) camera presence in the court room alone does not overcome the presumption permitting electronic recording of court proceedings under SCR 230; and (4) contract provisions must be read together, and the result should comport with the SCR on electronic ...


“Breaking Bad” Contracts: Bargaining For Masculinity In Popular Culture, Lenora Ledwon Apr 2017

“Breaking Bad” Contracts: Bargaining For Masculinity In Popular Culture, Lenora Ledwon

William & Mary Journal of Women and the Law

This Article examines the award-winning television show, Breaking Bad, to illustrate how the idea of a contract in popular culture can become inflected with a style of retrograde masculinity. Deals in Breaking Bad take place in the classic contract imaginary, which resembles the classic Western shootout: two antagonists face each other down in a duel. The show interrogates the frontier thesis, with its links to the American Dream and dangerous masculinities, through the ruthless contracts of Walter White.


We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher Apr 2017

We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher

Michigan Journal of Environmental & Administrative Law

The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal ...


Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager Mar 2017

Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager

Daniel B. Yeager

Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships ...


Energy Contracts And Its Dispute Resolution Through Arbitration, عبد الله عبد العزيز عمر العكبري Mar 2017

Energy Contracts And Its Dispute Resolution Through Arbitration, عبد الله عبد العزيز عمر العكبري

Theses

This dissertation examines the aspects of the energy contracts and the needs to implement the Arbitration on it, as an Alternative Dispute Resolution (“ADR”), in MENA & North Africa, with an emphasizing on UAE Vis-à-vis the other GCC countries. And the Methodology I follow is the comparing and analyzing methods.

The major challenge in this dissertation is that I did my best to proof the legal nature of the energy contracts, either as civil contracts or administrative contracts. However, the key thing here is to rely on the contained Set of rules and elements in such contract especially where the government ...


A Student's Guide To Sales Of Goods, Letters Of Credit And Documents Of Title, Frederick M. Hart, Robert Laurence Feb 2017

A Student's Guide To Sales Of Goods, Letters Of Credit And Documents Of Title, Frederick M. Hart, Robert Laurence

Frederick Hart

Copyright page, Preface, and Table of Contents only.


Betraying Formality For False Equity: The Danger Of Transposing Equitable Considerations Into Contract Law To Remedy Regulatory Pitfalls, Elliott Morris Feb 2017

Betraying Formality For False Equity: The Danger Of Transposing Equitable Considerations Into Contract Law To Remedy Regulatory Pitfalls, Elliott Morris

William & Mary Environmental Law and Policy Review

No abstract provided.


Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens Feb 2017

Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens

Maine Law Review

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic, and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalistic paradigms are structural elements driving the common law norm-generation process. This ...


Civil Law Pulsations Along The Latin American Periphery, Ángel R. Oquendo Feb 2017

Civil Law Pulsations Along The Latin American Periphery, Ángel R. Oquendo

University of Miami Inter-American Law Review

The civil law system shows its true face as it travels from the Continental European core to the Latin American periphery. Many of the principal institutions have found a home and thrived in the new and radically different environment. One can best study them there by contemplating how they have preserved some of their most basic features despite having transformed themselves into something else.

The notion of the civil law tradition and that of codification have themselves undergone this dialectic of transformation and preservation. So have the traditional approach to contractual interpretation and to third-party agreements and the common proscriptions ...


Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia SáNchez Abril, Nicholas Greene Jan 2017

Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia SáNchez Abril, Nicholas Greene

Washington and Lee Law Review

Morality clauses give a contracting party the right to terminate if the other party behaves badly or embarrassingly. A curious product of twentieth-century Hollywood, these contract clauses have traditionally been used to control the antics of entertainers and athletes. The current politically-sensitive historical moment, combined with the internet’s ability to broadcast widely and permanently, has put everyone’s off-duty speech, conduct, and reputation under the microscope. Media reports detailing people’s digital falls from grace abound. For fear of negative association, businesses are more attuned than ever to the extracurricular acts of their agents and associates—and are increasingly ...


In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue Jan 2017

In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue

Faculty Scholarship

For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. The Restatement of the Law Liability Insurance is the American Law Institute’s first effort to “restate” the common law governing such liability insurance policies, and we are the reporters. In a recent essay funded by the insurance industry, Yale Law Professor George Priest launched a strident critique of the Restatement project, arguing that the rules adopted in the Restatement:

(a) are radically contrary to existing case law,

(b) have a naïve “pro-policyholder” bias that ignores basic economic ...


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 ...


The Human Side Of Public-Private Partnerships: From New Deal Regulation To Administrative Law Management, Alfred C. Aman, Joseph C. Dugan Jan 2017

The Human Side Of Public-Private Partnerships: From New Deal Regulation To Administrative Law Management, Alfred C. Aman, Joseph C. Dugan

Articles by Maurer Faculty

During the New Deal era, Congress created a then-unprecedented program of economic and regulatory reforms, establishing independent agencies, and empowering them to shape and enforce pragmatic industrial policies. Twenty-first century regulation looks strikingly different from the New Deal vision. While New Deal agencies continue to perform some regulatory functions, market approaches have replaced many traditional command-and-control formulations, with private entities stepping in to perform tasks historically reserved to government.

Though government-by-contract is becoming the new normal, neither the Administrative Procedure Act ("APA") nor many of its state equivalents provide adequate guidance to ensure that individual rights are protected and democratic ...


Sovereign Debt And The “Contracts Matter” Hypothesis, W. Mark C. Weidemaier, Mitu Gulati Jan 2017

Sovereign Debt And The “Contracts Matter” Hypothesis, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The academic literature on sovereign debt largely assumes that law has little role to play. Indeed, the primary question addressed by the literature is why sovereigns repay at all given the irrelevance of legal enforcement. But if law, and specifically contract law, does not matter, how to explain the fact that sovereign loans involve detailed contracts, expensive lawyers, and frequent litigation? This Essay makes the case that contract design matters even in a world where sovereign borrowers are hard (but not impossible) to sue. We identify a number of gaps in the research that warrant further investigation.


Rise Of The Digital Regulator, Rory Van Loo Jan 2017

Rise Of The Digital Regulator, Rory Van Loo

Faculty Scholarship

•A legal system can be legitimate even though legal actors within the system know that it will, as a statistical matter, punish the innocent.


An Autopsy Of Cooperation: Diamond Dealers And The Limits Of Trust-Based Exchange, Barak D. Richman Jan 2017

An Autopsy Of Cooperation: Diamond Dealers And The Limits Of Trust-Based Exchange, Barak D. Richman

Faculty Scholarship

Both academic and popular representations of the diamond industry describe trust-based relations that sustain trade and support the industry’s private arbitration system. In recent years, however, trust among merchants has eroded, and merchants have correspondingly lost confidence in the industry’s arbitration. This article describes the events that have led to the breakdown of cooperative trust in the industry and derives lessons regarding the nature and limits of reputation-based exchange in the modern economy.


The Price Of Law: The Case Of The Eurozone's Collective Action Clauses, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena Jan 2017

The Price Of Law: The Case Of The Eurozone's Collective Action Clauses, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena

Faculty Scholarship

When do markets value contract protections? And does the quality of a legal system affect such valuations?To answer these questions we exploit a quasi-natural experiment whereby, after January 1, 2013, newly issued sovereign bonds of Eurozone countries under domestic law had to include Collective Action Clauses (CACs) which specify the minimum vote needed to modify repayment 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 see CACs as reducing the legal risk embedded in domestic law sovereign bonds.


Insurance Policies: The Grandparents Of Contractual Black Holes, Chris French Jan 2017

Insurance Policies: The Grandparents Of Contractual Black Holes, Chris French

Journal Articles

In their recent article, The Black Hole Problem in Commercial Boilerplate, Professors Stephen Choi, Mitu Gulati, and Robert Scott identify a phenomenon found in standardized contracts they describe as “contractual black holes.” The concept of black holes comes from theoretical physics. Under the original hypothesis, the gravitational pull of a black hole is so strong that once light or information is pulled past an event horizon into a black hole, it cannot escape. In recent years, the theory has been reformulated and now the hypothesis is that some information can escape, but it is so degraded that it is virtually ...


The Concurrent Liability In Contract And Tort Under U.S. And English Law: To What Extent Plaintiff Is Entitled To Recover For Damages Under Tort Claim?, Phutchaya Numngern Jan 2017

The Concurrent Liability In Contract And Tort Under U.S. And English Law: To What Extent Plaintiff Is Entitled To Recover For Damages Under Tort Claim?, Phutchaya Numngern

Theses and Dissertations

Both U.S. and English courts has confronted with the concurrent situations mostly occurring in the cases where 1) the plaintiff asks for the recovery in tort claim despite the existence of contractual relationship or 2) the plaintiff asserts contract claim but the defendant contends that the issue at bar should be sound in tort rather than in contract. After studying all relevant cases and academic writings, this thesis found that both U.S. and English systems generally recognize concurrent tort claim as an elective right. The courts have attempted to provide the justified rationales either to allow the plaintiffs ...


Public Policy Considerations Concerning Forum Selection Clauses In Insurance Contracts, Chad G. Marzen Dec 2016

Public Policy Considerations Concerning Forum Selection Clauses In Insurance Contracts, Chad G. Marzen

Chad G. Marzen

Forum selection clauses are present in many commercial contracts today. Since the 1972 decision of the United States Supreme Court in M/S Bremen v. Zapata, numerous courts throughout the country have decided on the issue of enforceability of forum selection clauses and the general question of enforceability has inspired a rich scholarly literature. Despite this rich literature, there is a gap in the recent law review literature concerning the enforceability of forum selection clauses in insurance contracts generally.

This Article intends to bridge that gap in the literature with a comprehensive examination of the enforceability of forum selection clauses ...


Understanding Insurance Policies As Noncontracts: An Alternative Approach To Drafting And Construing These Unique Financial Instruments, Christopher French Dec 2016

Understanding Insurance Policies As Noncontracts: An Alternative Approach To Drafting And Construing These Unique Financial Instruments, Christopher French

Christopher C. French

Insurance policies commonly are understood to be a species of standardized contracts. This Article challenges that conventional wisdom and argues that insurance policies do not actually qualify as contracts under the doctrinal and theoretical bases of contract formation. It examines the process by which insurance policies are created and sold, and measures that process against the requirements for contract formation. This Article also distinguishes insurance policies from other types of standardized contracts, such as wrap agreements, which currently are the subject of much litigation and scholarly commentary. It then explores the doctrinal and theoretical bases underlying the specialized rules that ...


Market Practice And The Evolution Of Foreign Sovereign Immunity, W. Mark C. Weidemaier, Mitu Gulati Dec 2016

Market Practice And The Evolution Of Foreign Sovereign Immunity, W. Mark C. Weidemaier, Mitu Gulati

W. Mark C. Weidemaier

The twentieth century witnessed a “tectonic” shift in international law, from absolute to restrictive theories of sovereign immunity. As conventionally understood, however, this transformation represented only a change in default rule. Under absolute immunity, courts could not hear lawsuits and enforce judgments against a foreign sovereign without its consent. Under restrictive immunity, foreign sovereigns were not immune to their commercial acts, regardless of consent. Using a two-century dataset of loan contracts, we show that market practice undermines this conventional understanding. For centuries, loan contracts were structured as if the rules of sovereign immunity could not be changed by contract. In ...


Newsroom: Guiding Startups Through Legal Pickles 11-14-2016, Jill Rodrigues, Roger Williams University School Of Law Nov 2016

Newsroom: Guiding Startups Through Legal Pickles 11-14-2016, Jill Rodrigues, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David V. Snyder Nov 2016

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

David Snyder

No abstract provided.


Closing The Deal In Contracts: Introducing Transactional Skills In The First Year, David V. Snyder Nov 2016

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

David Snyder

No abstract provided.


The Logic Of Contract In The World Of Investment Treaties, Julian Arato Nov 2016

The Logic Of Contract In The World Of Investment Treaties, Julian Arato

William & Mary Law Review

Investment treaties protect foreign investors who contract with sovereign states. It remains unclear, however, whether parties are free to contract around these treaty rules, or whether treaty provisions should be understood as mandatory terms that constrain party choice. While investment treaties clearly apply to contracts in some way, they are silent as to how these instruments ultimately interact. Moreover, arbitral jurisprudence has varied wildly on this point, creating significant problems of certainty, efficiency, and fairness—for states and foreign investors alike.

This Article reappraises the treaty/contract issue from the ex ante perspective of contracting states and foreign investors. I ...