Contracts 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 …

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

ExpressO

No abstract provided.

Arbitration Of Employer Violations Of The West Virginia Human Rights Act: West Virginia Should Make Like Ants Marching And Continue Its Pursuit Of Bliss, Nicholas S. Johnson

West Virginia Law Review

No abstract provided.

Is U.S. Ceo Compensation Inefficient Pay Without Performance?, John E. Core, Wayne R. Guay, Randall S. Thompson

Michigan Law Review

In Pay Without Performance, Professors Lucian Bebchuk and Jesse Fried develop and summarize the leading critiques of current executive compensation practices in the United States. This book, and their highly influential earlier article, Managerial Power and Rent Extraction in the Design of Executive Compensation, with David Walker offer a negative, if mainstream, assessment of the state of U.S. executive compensation: U.S. executive compensation practices are failing in a widespread manner, and much systemic reform is needed. The purpose of our Review is to summarize the book and to offer some counterarguments to try to balance what is becoming …

The Doctrine Of Good Faith In Contract Law: A (Nearly) Empty Vessel?, Emily Houh

Faculty Articles and Other Publications

Empty Vessel explores both the positive and normative questions of what the contractually implied obligation of good faith does and should require of contracting parties. The Article attempts to assess and evaluate the ways in which courts are currently employing the good faith doctrine in contract disputes, as part of a larger project whose goal is to re-conceive and reinvigorate the private law doctrine of good faith as one that might assist in effecting the public law norm of equality. Empty Vessel identifies two dominant theoretical approaches to how to define good faith, which I refer to as the fairness …

When Trade Secrets Become Shackles: Fairness And The Inevitable Disclosure Doctrine, Elizabeth A. Rowe

UF Law Faculty Publications

Critics of the inevitable disclosure doctrine decry the inconsistency with which courts rule on these cases, and the difficulty in predicting case outcomes. They contend that courts are left to "grapple with a decidedly ... nebulous standard of 'inevitability."' Further, they claim the doctrine undermines the employee's fundamental right to move freely and pursue his or her livelihood.

Ultimately, both the problem and solution here are about fairness: fairness in the employer-employee relationship, fairness in the application of the law, and fairness in providing protection from unfair competition between competing employers. The crux of the opposition to the doctrine, in …

Lack Of Meaningful Choice Defined: Your Job Vs. Your Right To Sue In A Judicial Forum, Sara Lingafelter

Seattle University Law Review

Mandatory arbitration agreements subvert an employee's constitutional right to a judicial forum and generally place unfair burdens on plaintiffs. An employee faced with the option of either signing a mandatory arbitration agreement or losing a job often has no meaningful choice. The Supreme Court, however, has failed to recognize first that Congress did not intend for mandatory arbitration to extend to Title VII claims and second, that employers often leave employees with no meaningful choice regarding mandatory arbitration. Nonetheless, state and federal judges are increasingly recognizing that arbitration agreements may be the product of procedural unconscionability. Accordingly, when employees are …

Erisa: State Regulation Of Insured Plans After Davila, 38 J. Marshall. L. Rev. 693 (2005), Donald T. Bogan

UIC Law Review

No abstract provided.

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

The Empire Strikes Back: Nfl Cuts Clarett, Sacks Scheindlin, Adam Epstein

Adam Epstein

The article explores and the litigation history involving former Ohio State University running back Maurice Clarett and his challenge the the NFL draft-eligibility rule. Though Clarett was successful at the U.S. District Court level, the Second Circuit Court of Appeals ruled differently, thereby preventing Clarett from being eligible for the 2004 NFL draft. Though he was drafted the next year (2005), an exploration of the differences between the trial court (Hon. Schendlin) and the appellate court (J. Sotomayor) opinions is quite interesting and relevant in the context of both antitrust and labor law, particularly the mandatory subjects of a collective …

Book Review: Sports Law And Regulation: Cases, Materials, And Problems, Adam Epstein

Adam Epstein

Review of the 2005 textbook authored by Matthew J. Mitten, Timothy Davis, Rodney K. Smith & Robert C. Berry. The four authors of this text all have credible status in the field of sports law as professors at the law school level, and the reader is reminded of their expertise throughout the book in numerous footnotes, notes and in other references. They present 12 chapters of a sport law smorgasbord in an interesting arrangement. The authors note that the book should be given multidisciplinary consideration among law students and upper-division undergraduate and graduate students. However, the authors provide that the …

Whistle-Blowing And The Continued Expansion Of Title Ix In Jackson V. Birmingham Board Of Education, Adam Epstein

Adam Epstein

A study of the history and importance of the 2005 Supreme Court decision that expanded Title IX to include a private right of action for individuals who reveal Title IX violations even though they themselves were not subject to sex discrimination. The case involved Roderick Jackson a high school coach from the Birmingham, Alabama area.

California Amusement Rides And Liability, Adam Epstein

Adam Epstein

Discussion of the majority and minority California Supreme Court decision involving the unfortunate 2000 incident at Disneyland which resulted in the death of a woman on her honeymoon.

Title Ix Whistle-Blowing Is Protected, Adam Epstein

Adam Epstein

Discussion of the valiant efforts of high school basketball coach Roderick Jackson (Birmingham, Alabama) and his complaint over inferior facilities for his girls basketball team. His claim went all the way to the United States Supreme Court.