Law Commons^™

Enlarged State Power To Declare Nullity: The Hidden State Interest In The Chinese Contract Law, Hao Jiang Esq.

Hao Jiang Esq.

This article is on the hidden state interest that article 52(§1) of the Chinese Contract Law protects and the questionable applicability of freedom of contract to Chinese state-owned enterprises (hereafter “SOEs”). In common law, fraud and duress make a contract voidable. In Western civil law jurisdictions, including Louisiana, fraud and duress make a contract relatively null. Article 52(§1) of the Chinese Contract Law renders a contract induced by fraud and duress absolutely null (null and void if using common law terminology) when state interest is harmed. At the same time, according to article 54 of the Contract Law, fraud and …

Illegal Agreements And The Lesser Evil Principle, Chunlin Leonhard

Chunlin Leonhard

Illegal agreement disputes force U.S. courts to wrestle with multiple competing interests. The courts’ approach has been generally explained and understood in terms of the general rule of non-enforcement of illegal agreements with numerous exceptions. The case law on this topic has been described as “a vast, confusing and rather mysterious area of the law.” This article offers the insight that, contrary to common belief, courts’ approach to illegal agreements shows a consistent pattern. A review of randomly selected cases shows that the courts have by and large consistently (albeit implicitly) applied the lesser evil principle in resolving the disputes. …

Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii

James Thuo Gathii

Third world citizens—parties who often have the most to lose in natural resource contracts between their governments and foreign investors—often have no voice in negotiations of the contracts and consequently have no remedy under contract law when harms occur or when the contracts are not properly enforced. The privity doctrine, which permits contract suits only by parties to the contract, bars these citizens from suing because they were not in privity with any of the contracting parties, despite that these contracts are generally made for the benefit of these citizens. However, some countries have adopted—and this Essay argues other countries …

Context Matters--What Lawyers Say About Choice Of Law Decisions In Merger Agreements, Juliet P. Kostritsky

Juliet P Kostritsky

ABSTRACT: The study of choice of law provisions in merger agreements yields various theories as to how much thought parties put into them, and what factors influence such decisions. Eisenberg and Miller found a shift to New York law and other scholars later hypothesized that parties specify New York law rather than Delaware law because New York law is more formalistic. However, a study of 343 merger agreements, consisting of 15 lawyer interviews and a survey sent to 812 lawyers, suggests differently. First, there is no shift from Delaware to New York. Second, a desire for formalistic law is not …

Regulatory Institutions Of The Global South: Why Are They Different And What Can Be Done About It?, Yugank Goyal

Yugank Goyal

Developing countries suffer from underperforming regulatory agencies compared to those in the developed world. The paper attempts to theorize general reasons behind such divergence. It argues that the differences lie in developing countries’ (a) higher priorities for redistribution, (b) structurally different institutional endowments, especially at informal level, and (c) limited informational channels. The paper proposes that a multi-stakeholder (with increased emphasis on judiciary and civil society) approach has potential to address the shortcomings. It tests these claims through studying cases of telecom and electricity regulation in India.

Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre

Jorge A Mestre

No abstract provided.

A European Solution To America’S Basketball Problem: Reforming Amateur Basketball In The United States, Jaimie K. Mcfarlin, Joshua Lee

Jaimie K. McFarlin

The system of amateur and collegiate basketball in America is flawed, as every year, thousands of young men and women pursue their basketball dreams under the shadow of a multi-million dollar, predatory business model. Integral to telling the history of the NCAA and AAU organizations are recruiting horror stories and other examples of young talents who were taken advantage of by unscrupulous actors, both of which continue today. The commercialization and professionalization of amateur basketball has fed an ecosystem of exploitation in which private actors and institutions capitalize on the American mantra of "amateurism." The European system of amateur athletics …

Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh

Shubha Ghosh

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of …

Commodification Of The Female Egg: Stem Cell Technology And The Future, Rachel Rose Ostrander

Rachel Rose Ostrander

As the science of stem cell research progresses it is difficult to tell what implications it will have on our society and for women. I will begin this discussion by examining how science has viewed women in the past, and use this as a basis to conjecture about how they will be viewed and treated in the future. Prevalent gender bias in scientific writing should be a cause for concern as the science of stem cell research and commodification of the female egg becomes more of a reality.

The process of egg donation has stirred much debate in the feminist …

Contract Resurrected! Contract Formation: Common Law ~ Ucc ~ Cisg, Sarah H. Jenkins

Sarah H Jenkins

Contract Resurrected!

After the promulgation of the Restatement (Second) of the Law of Contracts with its expanded theory of Section 90, quasi-contract and promissory estoppel were hailed as the only theories needed for recovery. Contract was dead! This was the dominant prospective regarding the continued efficacy of contract and contract law. The contract theorists were wrong. The mushrooming global interdependency among nations demands legal rules and principles to govern exchanges between businesses and reaffirms the value of contract as a juridical tool. The United Nations Convention on Contracts for the International Sale of Goods as a recent promulgation reaffirms the …

Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo

John Pizzo

No abstract provided.

Demanding Supply: The Bioenergy Farm Lease’S Critical Role In Biomass Supply Chain Optimization, A. Bryan Endres, Elise C. Scott

A. Bryan Endres

As the bioenergy industry in the U.S. expands to meet increased demands for transportation fuel under the Renewable Fuel Standard and electrical power under state Renewable Portfolio Standards, farmers will seek the ability to grow dedicated, high-yielding energy crops of a perennial nature on leased property. Given the large amount of farmland in the U.S. that is leased, such contributions will represent a significant, though currently not well understood, portion of the biofuel industry supply chain. Through the use of contracts as governance schemes, the parties to a bioenergy farm lease can navigate three key areas of such a lease: …

Deals Or No Deals: Integrating Transactional Skills In The First Year Curriculum, Lynnise E. Pantin

Lynnise E. Pantin

No abstract provided.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Mutual Assent, Normative Degradation And Mass Market Standard Form Contracts--A Critique Of Boilerplate: The Fine Print, Vanishing Rights And The Rule Of Law, Part I, Steven Feldman

Steven Feldman

Analyzing a difficult subject that pervades contract law and which is vital to the national economy, many scholars have written about boilerplate contracts. With her 2013 book, Boilerplate: The Fine Print, Vanishing Rights And The Rule Of Law, Professor Margaret Jane Radin weighs in on the discussion, rejecting utilitarian-welfare notions that economic efficiency can justify the extensive use of mass market boilerplate. In her main contention, Radin argues that mass market standard form contracts improperly degrade consumer rights in the area of voluntary consent (herein “normative degradation”).

Although her book has achieved great renown, receiving high praise from prominent commentators, …

Boilerplate Shock, Gregory Shill

Gregory Shill

No nation was spared in the recent global downturn, but several countries in the Eurozone arguably took the hardest punch, and they are still down. Doubts about the solvency of Greece, Spain, and a number of their neighbors are increasing the likelihood of a breakup of the common European currency. Observers believe a single departure and sovereign debt default might set off a “bank run” on the euro, with devastating regional and global consequences.

What mechanisms are available to address—or ideally, to prevent—such a disaster?

One unlikely candidate is boilerplate language in the contracts that govern Eurozone sovereign bonds. As …

Contract As Pattern Language, Erik F. Gerding

Erik F. Gerding

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 address …

Flawed Transparency: Shared Data Collection And Disclosure Challenges For Google Glass And Similar Technologies, Jonathan I. Ezor

Jonathan I. Ezor

Current privacy law and best practices assume that the party collecting the data is able to describe and disclose its practices to those from and about whom the data are collected. With emerging technologies such as Google Glass, the information being collected by the wearer may be automatically shared to one or more third parties whose use may be substantially different from that of the wearer. Often, the wearer may not even know what information is being uploaded, and how it may be used. This paper will analyze the current state of U.S. law and compliance regarding personal information collection …

When Is Minority Not Minority: Ncaa Ignores Two Centuries Of Anglo-American Contract Law Respecting Legal Status, Matthew M. Heekin, Bruce W. Burton

Matthew M. Heekin

No abstract provided.

Too Complex To Perceive?: Drafting Cash Distribution Waterfalls Directly As Code To Reduce Complexity And Legal Risk In Structured Finance, Master Limited Partnership, And Private Equity Transactions, Ralph Carter Mayrell

Ralph Carter Mayrell

The intricate procedural and data-driven decision trees that play a critical role in complex financial contracts like cash distribution waterfalls in structured finance agreement indentures (e.g., collateralized debt obligations (CDOs)), master limited partnership agreements, and private equity fund agreements are inefficiently depicted as written contracts. As Professor Henry Hu explains in Too Complex to Depict?, the difficulty of translation—or depiction—between original mathematical models, plain English prospectuses, legal contracts, and programmed execution means that often the written depictions that form the basis of disclosures do not accurately define the act of execution. To overcome this, the SEC proposed an amendment to …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

How To Create American Manufacturing Jobs, John D. Gleissner Esquire

John D Gleissner Esquire

No abstract provided.

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

Much Ado About Nothing?: What The Numbers Tell Us About How State Courts Apply The Unconscionability Doctrine, Susan D. Landrum

Susan Landrum

No abstract provided.

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …

Do The Right Thing: Indirect Remedies In Private Law, Daphna Lewinsohn-Zamir

Daphna Lewinsohn-Zamir

Private law provides diverse remedies for right violations: compensatory and punitive, monetary and non-monetary, self-help and court-awarded. The literature has discussed these (and other) classifications of remedies, yet it overlooked the important distinction between direct and indirect remedies. Some remedies directly order right-infringers to realize the desired outcome, while others bring it about indirectly, by inducing them to self-comply. This classification cuts across the traditional ones.

This Article fills the gap in the literature by introducing the novel category of indirect remedies. It identifies how indirect remedies are used in current legal rules—with examples from property, contract, torts, intellectual property …

Trust And The Triangle Expectation Model In Twenty-First Century Contract Law, Eli Bukspan

Eli Bukspan

The concept of trust best explains the true nature of contract law and is found in key contract law doctrines such as good faith and public policy. By identifying contractual expectation with the idea of trust, and by considering the actual expectations of the contracting parties as well as the ideal expectations of the public, the Article develops the triangle-of-expectations model—the most coherent account of contract law today. This model, conceptually different than classic contract theory, also contributes to stability, certainty, and the contracting parties’ ability to rely on each other as well as on the contractual institution. Most importantly, …

Rebalancing Public And Private In The Law Of Mortgage Transfer, John P. Hunt

John P Hunt

The law governing the United States’ $13 trillion mortgage market is broken. Courts and legislatures around the country continue to struggle with the fallout from the effort to build a 21st century global market in mortgages on a fragmented, arguably archaic legal foundation. These authorities’ struggles stem in large part from the lack of clarity about the legal requirements for mortgage transfer, the key process for contemporary mortgage finance.

We demonstrate two respects in which American mortgage transfer law is unclear and offer suggestions for fixing it. Revisions to the Uniform Commercial Code adopted around the turn of the century …

Employment Law And Social Equality, Samuel R. Bagenstos

Samuel R Bagenstos

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this paper argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. Drawing on the author’s work elaborating the justification for employment discrimination law, this paper argues that individual employment law is …

Coase V. Pigou: A Still Difficult Debate, Enrico Baffi

enrico baffi

This paper examines the positions of Coase and Pigou about the problem of the externalities. From the reading of their most two important works it appears that Coase has a more relevant preference for a evaluation of efficiency at the total, while Pigou, with some exception, is convinced that is possible to reach marginal efficiency through taxes or responsibility. It’s interesting that Coase, who has elaborated the famous theorem, is convinced that is not possible to reach the efficiency at the margin every time and that sometimes is necessary a valuation at the total, that tells us which solution is …