Law Commons^™

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps

ExpressO

This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the US …

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …

Preparing For Cafta-Dr: The Need Of Commercial Law Reform In Central America, Omar E. Garcia-Bolivar

ExpressO

This article explores the policies, laws and institutions that may prevent Central American States from exploiting the opportunities provided by the CAFTA-DR. In that sense, we examine several of the legal factors that appear to be important in determining economic growth as they apply to the commercial legal conditions of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua.

"Boilerplate": An Introduction, Omri Ben-Shahar

Law & Economics Working Papers Archive: 2003-2009

This short essay introduces the themes that are developed in twelve articles that were delivered recently in a symposium on “Boilerplate: Foundations of Market Contracts” at the University of Michigan Law School. The proceeding of the symposium will be published in Volume 104 of the Michigan Law Review.

Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White

Law & Economics Working Papers Archive: 2003-2009

This article studies the standard form contracts used by automobile manufacturers to purchase auto parts. It explores how the contracts reflect divisions of bargaining power, asymmetric information, problems of hold-up and renegotiation, and market competition. Based on interviews with representatives of buyers and suppliers, the article also describes the process of drafting the forms, the negotiation over price and other terms in the shadow of these forms, and the opportunities for non-drafters to extract improved terms. Some of the main lessons are: (i) The terms of the contracts and the bidding process prevent ex-post hold-up by suppliers (in contrast to …

Appraising A Presumption: A Modern Look At The Doctrine Of Specific Performance In Real Estate Contracts, Jason S. Kirwan

William & Mary Law Review

No abstract provided.

Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne

Dalhousie Law Journal

As a general rule, contracts law does not permit an award of general damages for mental distress or other intangible loss. There are several rationales for this, including: plaintiffs are to bear their disappointment or upset with mental fortitude; without the rule, courts would be awash in litigation since every breach of contract brings with it some degree of emotional distress; without the rule, plaintiffs may fabricate or exaggerate the degree of their upset; and the rule simply reflects the lack of foreseeability of such loss under Hadley v. Baxendale. Notwithstanding the general rule, courts have awarded mental distress in …

Resolving The Paradox Of The Consideration Doctrine: The Implications Of Inefficient Signaling And Of Anti-Commodification Norms, David S. Gamage

ExpressO

This paper addresses one of the central problems of contract law, a puzzle that has troubled generations of contracts scholars: Why do we only enforce promises backed by consideration? Or, how can we justify insisting on the bargain context, but not requiring that the bargains be adequate? The lack of a theoretical solution to this puzzle has plagued the application of the consideration doctrine in courts of law.

We resolve this paradox through two innovations. First, using a game theory model based on asymmetric information, we dispute the common wisdom that the law should honor parties’ intentions as articulated at …

Casenote: Killing Life Partners: Why Viatical Settlements Constitute Securities – In Light Of The Sec V. Mutual Benefits Corporation And Other Recent Cases Explicitly Rejecting Life Partners, Brian Levin

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Bargaining Power In Contract Theory, Daniel D. Barnhizer

ExpressO

This Article analyzes the role that legal conceptions of bargaining power play in defining the jurisprudence of contract law. Contract law cannot ignore bargaining power asymmetries. Unchecked power imbalances in the bargaining context soon become indistinguishable from naked coercion, and at some level the imbalance undermines both the consent of the weaker party and the legitimacy of the resulting bargain. The debate over the role of the legal doctrine of inequality of bargaining power and subdoctrines such as unconscionability and duress has largely focused on whether and how the state should intervene in individual private agreements to correct perceived power …

Contracts Concluded By Electronic Agents - Comparative Analysis Of American And Polish Legal Systems, Aleksandra M. Jurewicz

ExpressO

This article analyzes the US and Polish law on contract formation by electronic agents. It persents the main similarities and differences in the approaches of common and civil legal systems. Finally, it discusses changes in legal theories in Poland that had to be made in order to comply with standards of electronic commerce.

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review Of Lynn M. Lopucki, "Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts", Todd J. Zywicki

George Mason University School of Law Working Papers Series

In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki’s book argues that that current bankruptcy venue rules have spawned an improper “competition for big cases” that has “corrupted” America’s bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.

This essay reviews LoPucki’s book …

¿Periculum Est Dubitabilis? Algunas Precisiones Sobre El Papel Del Riesgo En La Contratación Privada, José Juan Haro

José Juan Haro Sr.

No abstract provided.

The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with …

Pre-Contractual Obligations In France And The United States, Florence Caterini

LLM Theses and Essays

This thesis compares the pre-contractual obligations in France and the United States. The focus of this study is to analyze how both legal systems deal with these pre-contractual obligations. It focuses on the possibilities given to the parties to protect themselves during the negotiation process. In event of breach of negotiations, the law gives legal remedies to the parties. French and American laws have a different analysis of the problem but they reach similar result: liability under contract law when a contract has been formed or a tentative agreement, or under tort law when no agreement whatsoever has been reached.

Should Liability Play A Role In The Social Control Of Biobanks?, Larry I. Palmer

Faculty Publications

No abstract provided.

On-Line Consumer Standard-Form Contracting Practices: A Survey And Discussion Of Legal Implications, Robert A. Hillman

Cornell Law Faculty Publications

In a recent article, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L. Rev. 429 (2002), Jeffery Rachlinski and I analyzed whether contract law's approach to the problem of paper standard forms can effectively govern electronic forms. We thought the rational and cognitive reasons consumers fail to read their paper forms apply in the e-environment. Further, although e-consumers do not face manipulative sales agents or impatient customers waiting in line but, instead, largely contract at home in the evening without time constraints, e-consumers are impatient, even click happy, and therefore still do not read their forms or shop for the …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

ExpressO

This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki

George Mason University School of Law Working Papers Series

Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms are unnecessary …

The Notion Of Trust As A Comprehensive Theory Of Contract And Corporate Law: A New Approach To The Conception That The Corporation Is A Nexus Of Contract, Eli Bukspan

ExpressO

The paper argues that the concept of trust is inevitably latent in every contractual relationship, and is best understood as a comprehensive theory and justification of contract law as both trust and contracts (more than any other legal action) are aiming toward the same universal goal of cooperation, risk-taking, and fulfillment of reasonable expectations. Contract law, per se and through its “good faith” doctrine, could then function as an expressive, coercive, and thus corrective legal tool, serving to symbolize, build, and internalize a culture of trust wherever it has failed to develop. Accordingly, while viewing the corporation as a nexus …

Duty And Consequence: A Non-Conflating Theory Of Promise And Contract, Jeffrey Marc Lipshaw

ExpressO

I argue that the debate between deontologists and consequentialists of contract law conflates and therefore unduly confuses the analysis of each of them. The debate is a reprise of the conflation of reason and knowledge. Present-day legal consequentialists see reason (pure or practical) as unhelpful or worse. Pragmatism, if anything, rules the day. But the present-day rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. Hence the concept of contract as promise has been subject to the criticism that it fails as an explanation of the law (versus an exposition of how our …

The Missing Preferred Return, Victor Fleischer

ExpressO

Managers of buyout funds typically offer their investors an 8% preferred return on their investment before they take a share of any additional profits. Venture capitalists, on the other hand, rarely offer a preferred return. Instead, VCs take their cut from the first dollar of nominal profits. This disparity between venture funds and buyout funds is especially striking because the contracts that determine fund organization and compensation are otherwise very similar. The missing preferred return might suggest that agency costs pose a larger problem in venture capital than previously thought. Is the missing preferred return evidence, perhaps, that VCs are …

Contingency And Contracts: A Philosophy Of Complex Business Transactions, Jeffrey Marc Lipshaw

ExpressO

In this article, I argue that the prevailing literature on contract theory does not adequately address the way real-world lawyers address uncertainty in complex business transactions. I attribute this to the constraints imposed by thinking in legal models, the dominant tendency to turn to economics for analysis and normative prescription, and the focus on adjudicative issues of hindsight interpretation. Commercial uncertainty, and the law’s response to it, is only a subset of the broader philosophical issue of contingency. As an alternative to prevailing thought, I trace philosophical approaches to contingency, utility and morality that have come down to us since …

The Bewitchment Of Intelligence: Language And Ex Post Illusions Of Intention, Jeffrey Marc Lipshaw

ExpressO

Lawyers who negotiate and litigate over complex deals have an intuitive notion of the value of what they do in connection with the contract. The arguments around technical contract language often are a lawyers’ game; in most cases, what is clear would have been clear on a handshake; and what is tightly negotiated bears only a random relationship to the areas of future dispute. If they happen to have drafted tight and clear language around the particular matter in dispute, it is as much luck as foresight. Thereafter complex agreements can have binding effect for years, but most of the …

On Discovering Doctrine: "Justice" In Contract Agreement, Peter A. Alces

Faculty Publications

No abstract provided.

Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman

Faculty Publications

One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure …

Losing Rights To Intellectual Property: The Perils Of Contracting With The Federal Government, Katherine White

Law Faculty Research Publications

No abstract provided.

Rediscovering Williston, Mark L. Movsesian

Faculty Publications

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than commonly supposed. Even the under-theorized quality of Williston's scholarship—to contemporary …