Law Commons^™

Lowering The Stakes Of The Employment Contract, Aditi Bagchi

Faculty Scholarship

Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting …

Fit For Its Ordinary Purpose: Implied Warranties And Common Law Duties For Consumer Finance Contracts, Susan Block-Lieb, Edward J. Janger

Faculty Scholarship

The history of consumer goods and consumer credit markets pre-sents an anomaly: market transactions for consumer goods and credit transactions evolved in tandem from face to face and bespoke to standardized and widely distributed; the law governing these “product” markets has not. With consumer goods, the Uniform Commercial Code codifies implied warranties of merchantability and fitness for a particular purpose, and the common law of tort provides strict liability for defective products. With consumer fi-nance contracts, borrowers enjoy scant common law protection. And yet both consumer goods and consumer contracts may be danger-ously defective “products.”

This Article reconsiders the traditional, …

Lying And Cheating, Or Self-Help And Civil-Disobedience?, Aditi Bagchi

Faculty Scholarship

May poor sellers lie to rich buyers? This article argues that, under limited circumstances, sellers may indeed have a license to lie about their goods. Where sellers are losers under unjust background institutions and they reasonably believe that buyers have more than they would under just institutions, lies that result in de minimum transfers can be regarded as a kind of self-help. More generally, what we owe each other in our interpersonal interactions depends on the institutional backdrop. Consumer contract law, including its enforcement regimes, should recognize the social and political contingency of sellers’ obligations to buyers. In other contexts, …

Interpreting Contracts In A Regulatory State, Aditi Bagchi

Faculty Scholarship

Some scholars would limit courts to the text of written agreements when interpreting contracts on the theory that parties meant what they said, and said what they meant. Other scholars would have courts take into account the factual context surrounding contract formation. Both sides of this debate assume that contract interpretation is largely limited to reconstructing contracting parties’ intentions.

This assumption is mistaken. Since the overturning of Lochner v New York, contracting parties no longer have exclusive authority over contracts. State authority to regulate contract came at the expense of unbridled private authority. A more limited conception of contracting …

Decoding Smart Contracts: Technology, Legitimacy, & Legislative Uniformity, Jared Arcari

Fordham Journal of Corporate & Financial Law

Blockchain technology is increasingly permeating the everyday lives of countless people. Applications of the cutting-edge technology range from secured banking to tracking mortgage titles. A particular blockchain technology, dubbed “smart contracts,” has the potential to revolutionize how individuals and companies securely contract with each other. Smart contracts, however, are not widely employed, mainly because potential users are uncertain of their enforceability as contracts under existing state contract laws. Similar skepticism slowed the acceptance of electronic signatures in the late 1990s, but was resolved ultimately through a model uniform act recognizing electronic signatures’ effectiveness across interstate borders. This Note proposes a …

Risk-Averse Contract Interpretation, Aditi Bagchi

Faculty Scholarship

No abstract provided.

Voluntary Obligation And Contract, Aditi Bagchi

Faculty Scholarship

Absent mistake or misrepresentation, most scholars assume that parties who agree to contract do so voluntarily. Scholars tend further to regard that choice as an important exercise in moral agency. Hanoch Dagan and Michael Heller are right to question the quality of our choices. Where the fundamental contours of the transaction are legally determined, parties have little opportunity to exercise autonomous choice over the terms on which they deal with others. To the extent that our choices in contract do not reflect our individual moral constitutions — our values, virtues, vices, the set of reasons we reject and the set …

Sound The Alarm: Limitations Of Liability In Alarm Service Contracts, Joshua N. Cohen

Fordham Law Review

Home and business owners increasingly rely on alarm systems to protect against theft and property damage. When a burglary or fire occurs and an alarm service customer discovers that the alarm company negligently failed to call the police or fire department, the customer understandably would expect redress for the company’s failure to provide its service. Many customers would be surprised, though, to discover that an alarm company’s liability is often contractually limited to a relatively token amount unrelated to the cost of the service, even when the alarm company is negligent. Some states view these limitations of liability as exculpatory …

Inherit The Cloud: The Role Of Private Contracts In Distributing Or Deleting Digital Assets At Death, Natalie M. Banta

Fordham Law Review

We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death. Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by …

Not Just For Products Liability: Applying The Economic Loss Rule Beyond Its Origins, Danielle Sawaya

Fordham Law Review

Most litigants, if given the chance, prefer to assert tort theories to recover their economic losses, rather than rely on the remedies provided under contract law. This is primarily because plaintiffs have the potential to recover more damages under tort law than contract law. However, most courts have adopted a doctrine known as the economic loss rule to bar plaintiffs from asserting certain tort theories to recover for their economic loss. Although the economic loss rule may seem like an easy way to maintain the boundary between tort law and contract law, confusion abounds when courts attempt to determine the …

Contractualizing Custody, Sarah Abramowicz

Fordham Law Review

Many scholars otherwise in favor of the enforcement of family contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights to children’s custody. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed “intact”—typically consisting of two married parents and their offspring—and those deemed non-intact. Intact families are granted a degree of freedom from government intervention, provided that there is no evidence that children are in any danger of …

Reluctance And Remorse: The Covenant Of Good Faith And Fair Dealing With American Employment Law Good Faith And Fair Dealing In The Individual Employment Relationship, James J. Brudney

Faculty Scholarship

The covenant of good faith and fair dealing ("the covenant" or "Good Faith") is now an accepted feature of contractual relations in the United States. Essentially undeveloped until the 1960s, the obligation to act in good faith during contract performance and enforcement gained traction once it was written into the Uniform Commercial Code (UCC) and adopted by state legislatures. The covenant achieved broader recognition when included in 1981 as a new section in the Restatement (Second) of Contracts ("Restatement"). In the employment setting, however, the covenant has not fared nearly so well. The majority of states have declined to apply …

What Contracts Cannot Do: The Limits Of Private Ordering In Facilitating A Creative Commons , Niva Elkin-Koren

Fordham Law Review

No abstract provided.

Corbin And Fuller's Cases On Contracts (1942?): The Casebook That Never Was, Scott D. Gerber

Fordham Law Review

No abstract provided.

The Real Properties Of Contract Law, Michael Madison

Faculty Scholarship

No abstract provided.

The Origins Of The Objective Theory Of Contract Formation And Interpretation, Joseph M. Perillo

Fordham Law Review

No abstract provided.

Intellectual Property, Contracts, And Reverse Engineering After Procd: A Proposed Compromise For Computer Software, Anthony J. Mahajan

Fordham Law Review

No abstract provided.

Continuity For Transatlantic Commercial Contracts After The Introduction Of The Euro, Rebecca H. Marek

Fordham Law Review

No abstract provided.

Definite And Substantial Reliance: Remedying Injustice Under Section 90, Gerald Griffin Reidy

Fordham Law Review

No abstract provided.

Consequential Damages For Commercial Loss: An Alternative To Hadley V. Baxendale, Thomas A. Diamond, Howard Foss

Fordham Law Review

No abstract provided.

Dedication To Professor Edward Yorio

Fordham Law Review

The Board of Editors of the Fordham Law Review Dedicates this Issue to the memory of Professor Edward Yorio Professor of Contracts. Edward Yorio graduated from Harvard Law School with honors in 1971 and was appointed to the faculty of Fordham Law School in 1973. In a very short time, he became a dearly valued member of the legal profession and of the Fordham Law School community. To students who had the privilege of taking his Contracts class, he was a dedicated teacher who inspired them with his energy, mind, and ability to teach. Utilizing his keen wit, Professor Yorio …

The Last Promissory Estoppel Article, Jay M. Feinman

Fordham Law Review

In this essay, Professor Feinman argues that the doctrine of promissory estoppel has outlived its usefulness as a theory of contract Professor Feinman relies on an article written by Professors Edward Yorio and Steven Thel as an illustration of the debate over whether promissory estoppel is based upon the enforcement of promises or the protection of reliance. Professor Feinman rejects the conceptual framework upon which this debate is based and ultimately proposes that contract law should move to a relational analysis, ignoring the distinction between promise and reliance and replacing it with an analysis of the obligations involved in a …

John Calamari--A Tribute, Joseph M. Perillo

Fordham Law Review

No abstract provided.

When Does The "Fat Lady" Sing? An Analysis Of "Agreements In Principle" In Corporate Acquisitions, Harvey L. Temkin

Fordham Law Review

No abstract provided.

The Parol Evidence Rule And Implied Terms: The Sound Of Silence, Helen Hadjiyannakis

Fordham Law Review

No abstract provided.

Intercollegiate Athletics And Television Contracts: Beyond Economic Justifications In Antitrust Analysis Of Agreements Among Colleges, Eugene D. Gulland, J. Peter Byrne, Sheldon Elliot Steinbach

Fordham Law Review

No abstract provided.

The Statute Of Frauds' Lifetime And Testamentary Provisions: Safeguarding Decedents' Estates, Karen J. Walsh

Fordham Law Review

No abstract provided.

The Art Investment Contract: Application Of Securities Law To Art Purchases, Maureen Holm

Fordham Urban Law Journal

This article examines art transactions as investment contracts. It posits that the art investor could benefit from the same preventive and remedial regulations imposed upon conventional investment transactions, describing and analyzing the five principal types of art transactions. It then explores the substantive concerns facing the art investor and existing protections, in comparison to the protections available to the investor in conventional securities investments. The article then analyzes the proposition that art transactions typically constitute investment contracts in light of Supreme Court decisions on the topic. Finally, the article discusses the current position of the Securities and Exchange Commission ("SEC") …

Choice Of Law In Federal Bail Bond Contracts: Protecting Principles Of Federalism, Joseph A. Coco

Fordham Law Review

No abstract provided.

The Uniform Commerical Code As Federal Law: United States V. Kimbell Foods, Inc., Louis S. Robin

Fordham Urban Law Journal

This Note examines the origins, history, and current standing of federal common law in light of the U.S. Supreme Court's decision Eerie Railroad v. Tompkins. Furthermore, the Note will look to see the impact of state law and the Uniform Commercial Code in the creation of federal common law. Finally, the Note will analyze how the U.S. Supreme Court's decision, U.S. v. Kimbell Foods, Inc., impacts the use of the U.C.C. as federal law.