Contracts Commons^™

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

Articles

The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on procedural defenses that …

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …

Fulton County Business Court: A Specialized Solution For The Modern Business Community, Megan K. Johnson

Georgia State University Law Review

Business courts or complex commercial divisions are growing in popularity as an effective tool to channel the most complex civil cases into one place before experienced judges with the background and training necessary to resolve the sophisticated issues often presented in those cases. According to North Carolina Business Court Judge Ben F. Tennille, one of the first judicial advocates of the business court model, the evolution of specialty business courts is a necessary response to “‘the rapidly increasing complexity, rate of change and globalization of business.’”

In 2005, Fulton County Superior Court launched a Business Case Division (“Fulton Business Court”) …

The Implications Of Alternative Dispute Resolution Processes For Decisionmaking In Administrative Disputes, Wallace Warfield

Pepperdine Law Review

No abstract provided.

Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy

Pepperdine Dispute Resolution Law Journal

This article identifies the basis and limits of the parties' abilities to define and enforce discovery in an ex ante contract. Despite the deficiencies of litigation, the free, public dispute resolution forum of the civil justice system provides significant value in commercial disputes. That value can be used to maximum mutual advantage only if parties replace the infinite discovery permitted in conventional litigation with the finite discovery contracted in Economical Litigation Agreement (ELA) litigation. This article will help parties to understand the benefit and enforceability of the ELA.

Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Bejamin F. Tennille, Lee Applebaum, Anne Tucker Nees

Pepperdine Dispute Resolution Law Journal

The assumed compatibility between ADR and specialized courts is largely unexamined. Without being able to statistically validate the motivations and preferences of individual disputants in a manner to draw generalized conclusions, this article examines the relationship between ADR and specialized business courts by looking at how the two are structurally intertwined through existing procedural rules and implementation practices. Part I of this article describes the foundational structures and concepts behind both ADR and specialized business courts, as well as the similarities and differences between them. Part II explores the existing formal structural relationship between ADR and specialized courts by examining …

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

Articles

The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.

On Parol: The Construction And Interpretation Of Written Agreements And The Role Of Extrinsic Evidence In Contract Litigation, Keith A. Rowley

Scholarly Works

As a general rule, extrinsic evidence, whether written or oral, is not admissible to prove either the intent of the parties to a contract or the meaning of contractual terms when the parties have executed an unambiguous, fully-integrated (i.e., final and all-inclusive) written agreement. The trial court may consider various types of extrinsic evidence, however, in determining whether a particular agreement is fully integrated or ambiguous, and even in choosing among rival interpretations of an agreement where ambiguity is not present. If the trial court determines that an agreement is not fully integrated, then the trier of fact may consider …

Litigation & Inequality: Federal Diversity Jurisdiction In Industrial America, 1870–1958, Edward A. Purcell Jr.

Books

Through the prism of litigation practice and tactics, Purcell explores the dynamic relationship between legal and social change. He studies changing litigation patterns in suits between individuals and national corporations over tort claims for personal injuries and contract claims for insurance benefits. Purcell refines the "progressive" claim that the federal courts favored business enterprise during this time, identifying specific manners and times in which the federal courts reached decisions both in favor of and against national corporations. He also identifies 1892-1908 as a critical period in the evolution of the twentieth century federal judicial system.

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

Scholarly Works

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …

Agenda: Boundaries And Water: Allocation And Use Of A Shared Resource, University Of Colorado Boulder. Natural Resources Law Center

Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7)

Conference organizers and/or faculty included University of Colorado School of Law professors David H. Getches, Lawrence J. MacDonnell and Charles F. Wilkinson.

Boundaries and Water: Allocation and Use of a Shared Resource is the topic of the Center's annual summer program on water this June. Most of the major rivers in the western United States are shared between two or more states. Often tribal governments play an important role in water allocation and use decisions. International considerations also may be involved in some cases. These interjurisdictional issues extend to groundwater as well as surface water.

This conference will provide the …

New York: The Right To Discharge At-Will Employees Post Weiner, John V. Dember

Touro Law Review

No abstract provided.