Contracts Commons^™

From Models To Mannequins: The Oxymoronic Equation Of International Labor Law Standards In The World Of Fashion, Namrata Bhowmik, Naman Anand

Cleveland State Law Review

Fashion law is an emerging field that addresses the legal issues that arise in the fashion industry. With the rapid growth and globalization of the fashion industry, there is an increasing need for specialized legal guidance in this area. Fashion law encompasses a wide range of legal issues, including intellectual property, contract law, employment law, international trade law, and environmental law.

One of the main drivers behind the need for fashion law is the rise of counterfeiting and intellectual property theft in the fashion industry. With the proliferation of ecommerce and social media, it has become easier than ever for …

Equal Access To Donate: Plasma Donation Centers And The Ada, Lucy Richman

Cleveland State Law Review

The Americans with Disabilities Act (ADA) prohibits discrimination against disabled persons in employment, public services, and private entities operating public accommodations. Despite clear moral and social incentives for becoming disability-friendly outside of the legal mandate, many private entities have asserted that the ADA does not apply to them. In multiple cases, plasma donation centers, one particular type of entity, have strongly disputed whether they are subject to the ADA as public accommodations. The crux of these cases has hinged on whether plasma donation centers are “service establishments” under Title III of the ADA, and three such cases have reached the …

Langdell And The Foundation Of Classical Contract Law, Daniel P. O’Gorman

Cleveland State Law Review

In the late nineteenth and early twentieth centuries, scholars seeking to bring order to the common law developed what has since become known as classical contract law. Its leading architects were Christopher Columbus Langdell, Oliver Wendell Holmes, Jr., and Samuel Williston, and their efforts involved seeking to provide an objective foundation for contract law. Any idea, however, that these three worked in coordination to create classical contract law would be mistaken. Holmes is considered a relentless critic of Langdell, and even Williston distanced himself from Langdell. This Article identifies in what ways Holmes and Williston differed from Langdell in their …

The Visual Artists Rights Act's "Recognized Stature" Provision: A Case For Repeal, Drew Thornley

Cleveland State Law Review

Using as a case study the recent “5Pointz” litigation, a case involving visual artists’ moral-rights claims to graffiti they drew on a piece of private property in Queens, New York, this article examines the threat that Visual Artists Rights Act (VARA)’s grant to visual artists of the right “to prevent any destruction of a work of recognized stature” poses to common-law property and contract rights. This article advances the argument that the default legal rule should be that the rights of property owners (real or personal), including the right to destroy such properties, trump any moral rights that visual artists …

Smart Contracts In Traditional Contract Law, Or: The Law Of The Vending Machine, Jonathan Rohr

Cleveland State Law Review

Smart contracts are the new norm, yet state legislatures and courts have not developed set rules and answers to legal disputes that these contracts create. Is traditional contract law sufficient? Or should we create an entirely new legislative or common law scheme to deal with these disputes? The common law has proven to be successful in dealing with new technologies and contracts, particularly because of its flexibility. Although a major overhaul may be in the future, there are still solutions that we can find today with the current legal landscape given the state of contract law and its evolution over …

Forgotten Cases: Worthen V. Thomas, David F. Forte

Cleveland State Law Review

According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only …

Arbitrating Estoppel: Equitable Estoppel In Arbitration Contracts, Nicholas Oleski

Cleveland State Law Review

The Sixth Circuit and the district courts within the circuit have held that non-signatories to arbitration contracts may be compelled to arbitrate under the Federal Arbitration Act—even though they are not signatories to the arbitration contract. These courts reason that the non-signatories must arbitrate their claims because of an equitable estoppel theory. Although the Federal Arbitration Act displaces most state law regarding arbitration, the Supreme Court has held that federal courts must use state contract law to determine who is bound by an arbitration contract. This Note examines state contract law in the Sixth Circuit on equitable estoppel and concludes …

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

Cleveland State Law Review

Although her book has achieved great renown, receiving high praise from prominent commentators, with plaudits such as “groundbreaking,” “a great achievement,” and a “masterpiece,” I respectfully suggest that the book has problems on both doctrinal and normative grounds. In my Article, I summarize the author’s argument on normative degradation, identify my concerns, and propose an alternative formulation. My counter thesis is that both statute and court decisions properly support consumer rights in the area of voluntary consent for mass-market standard form contracts. Besides being the first full-length critique of Boilerplate, this Article also has contributed some original observations to the …

Expanded Merchant Tort Liability, Democratic Degradation, And Mass Market Standard Form Contracts—A Two-Part Critique Of Boilerplate: The Fine Print, Vanishing Rights, And The Rule Of Law (Part Ii), Steven W. Feldman

Cleveland State Law Review

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. In a complement to existing contract remedies against abusive boilerplate, she proposes a new tort that she calls “intentional deprivation of basic legal rights.” She also identifies another new tort theory that deems abusive boilerplate to be a defective “product” under the law of products liability.

Radin further contends that these merchant practices …

Legal Malpractice In A Changing Profession: The Role Of Contract Principles, Vincent R. Johnson

Cleveland State Law Review

In little more than four decades, the field of American legal ethics has been transformed from an unimportant backwater into a mighty river of legal principles that drives the practice of law in countless respects. Today, this complex matrix of substantive provisions and enforcement mechanisms ensures, to a great extent, that clients are protected from unnecessary harm, that lawyers are safeguarded from improper accusations, and that the provision of legal services is consistent with the public interest. However, the fabric of legal ethics is threatened by a looming transformation of the legal profession. That potential restructuring may revolutionize the delivery …

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, Julie M. Spanbauer

Cleveland State Law Review

The Supreme Court of Montana's, three-page opinion in Carroll v. Beardon is a treasure for those who teach first-year law students. Its deceptive simplicity is a lesson in close reading. It provides scholars and teachers endless opportunities to explore the cultural context within which courts operate and construct case narratives. Its humorous tone additionally belies a serious failure by the court to provide a fair and impartial resolution of the parties' dispute and to create useful precedent for future courts and litigants. The decision and its implications remain relevant and merit consideration by scholars exploring the intersection of contract and …

Promissory Estoppel And The Protection Of Interpersonal Trust , John J. Chung

Cleveland State Law Review

This paper examines the role of trust in promissory estoppel and the extent to which the law should protect trust when a promise is made. Part II of this Article summarizes some of the scholarship discussing the nature and role of trust. In particular, it discusses the role of trust in a market economy, and the related role of trust in Contracts law. Part III examines whether there is a difference between trust and reliance, and whether it matters. Part III further asserts that a separate discussion of trust is beneficial because it has the potential to guide and inform …

Possibility Of Plain Meaning: Wittgenstein And The Contract Precedents, Val D. Ricks

Cleveland State Law Review

Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co and In re Soper's Estate claim that plain meaning in contract law is impossible. This claim is left irrefuted in the casebooks and contract law literature, Part I notes, and in most teaching of contract law. The consequence is that students are taught that plain meaning is impossible. A startling implication of this conclusion, as Part I explains, is that the majority of U.S. courts, which hold to the plain meaning rule, are relying on a fiction. But the claim that plain meaning is impossible is false, as …

Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix

Cleveland State Law Review

Margaret Jane Radin's paper discusses the ways modern technologies have prompted new thinking within and about property, and the way the legal response has failed to take sufficiently into account the countervailing considerations that have shaped earlier Property Law developments. Some new technologies have also caused intellectual and practical struggles within Contract Law. This paper will consider some of the developments of Contract Law related to these changes, in particular the transactions relating to the sale, leasing or free use of computer software and the purchase of computers. Part I of this paper introduces the topic and offers an overview …

Contractual Waivers Of A Right To Jury Trial - Another Opinion, Brian D. Weber

Cleveland State Law Review

It is well-settled that arbitration in the employment context is favored by the courts, and that there is a federal policy favoring arbitration agreements, in general. However, jury waivers outside of arbitration in the employment context are still a relatively novel idea in some jurisdictions, despite the fact that an arbitration agreement itself inherently prevents the employee from having a jury trial. The Sixth Circuit Court of Appeals, as well as the Ohio Supreme Court, have yet to determine if jury waivers in employment contracts are binding. This paper will assess contractual jury trial waivers in the employment context as …

Squeezing Subjectivity From The Doctrine Of Unconscionability, Paul Bennett Marrow

Cleveland State Law Review

Issues of unconscionability are most often encountered in two arenas: commercial agreements and family law agreements. In the first arena this Article proposes that the analysis should focus on the impact of a suspect term on the integrity of the contracting system or to an enabling statute. If a contract term materially undermines or compromises the integrity of the system for contracting or the integrity of an enabling statute, it should be found unconscionable. In the family law arena things differ because of the substance of the relationships involved and because the need for mutual consideration is de-emphasized. Accordingly, in …

Contract Sports, Martha M. Ertman

Cleveland State Law Review

I explore ways that the private law of commerce can be imported to the private law of domestic relations to remedy family law's inadequacy and inequality. Existing domestic relations law posits heterosexual marriage as naturally superior to other forms of intimate affiliation, rendering the others (such as cohabitation, same-sex sexuality, and polyamory) unnatural and inferior. As such, it fails to recognize many intimate affiliations. Two examples of bridging the divide between private business law and private family law that I discuss in this essay are cohabitation contracts and Premarital Security Agreements. Importing private business models to domestic relations law has …

Origins And Scope Of The American Moral Obligation Principle , Kevin M. Teeven

Cleveland State Law Review

The existence of the moral obligation principle in American case law has been recognized in the Restatement (Second) of Contracts section 86 (1): "A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent necessary to prevent injustice." Among common law countries, American jurisdictions are unique in recognizing this ameliorating doctrine. An analysis of the development and scope of this doctrine is buried in the centuries of case law surrounding the tension between the past consideration rule and the moral obligation principle. The intent of this study is to glean …

Section 1983 And The Collateral Source Rule, Linda L. House

Cleveland State Law Review

This note examines the different approaches to the application of the collateral source rule among federal and state courts entertaining §1983 actions and the principles which should be applied by courts to resolve the choice of law problem raised by the rule. The first section discusses the common law collateral source rule and recent state legislative alterations and abrogation of it. The second section explores current applications of the collateral source rule in federal and state courts entertaining §1983 actions. The third section suggests principles which should guide courts in their applications of the collateral source rule. This section further …

Striking The Balance In Contract History, Joel Levin, Banks Mcdowell

Cleveland State Law Review

The past three decades have seen an enormous amount of writing by Anglo-American scholars about contract theory. If nothing else, this demonstrates the almost universal perception that there are serious problems with the received theory of contract, the product of giants like Holmes, Williston, Cardozo and Corbin. This theoretical activity, instead of creating a new paradigm, has produced divergent theoretical approaches with various bands of scholars striking off in quite different directions, and in the process leaving most judges and lawyers back at the starting point. What should we be trying to do when we build a contract theory for …

Working It Out: A Japanese Alternative To Fighting It Out, David J. Przeracki

Cleveland State Law Review

Since the end of World War II, Japan has soared to the summit of importance in the world economy. In recent years, the balance of trade between the United States and Japan has been tipped strongly in favor of the Japanese. Since America's hegemony in international contracting is waning, especially with the Japanese, new approaches must be considered. The purpose of this Note, therefore, is to provide the reader with an understanding of the difference between Japanese and American legal consciousness. Because the Japanese approach yields an exceptionally low rate of litigation, a secondary goal of this Note is to …

A Conceptual Approach To Negotiating Relational Contracts For The Small Business Client, Gary H. Doberstyn

Cleveland State Law Review

The purpose of this Article is to present a conceptual framework within which one may develop a comprehensive approach to negotiating relational business agreements. The framework identifies and integrates various considerations in a very broad manner to make it applicable to the various business contexts in which negotiations may occur.

Ohio Landlord-Tenant Reform Revisited, Edward G. Kramer, Marilyn Tobocman, Kenneth J. Kowalski, James Buchanan

Cleveland State Law Review

The "gentle readers" may be surprised by the analogy suggested between the reform of landlord-tenant law and the experience of Alice and the Queen. However, the events surrounding the enactment of Amended Substitute Senate Bill 103 were as perplexing as those in Lewis Carroll's story. Those opposing real reform, principally the real estate industry, were successful in weakening the proposed legislation. Consequently, the primary goal of the sponsors of landlord-tenant legislation in Ohio was not met by the legislation finally enacted. As this Article will demonstrate, the interpretation of the Act by the courts of Ohio has proven true the …

The Problem Of Offer And Acceptance: A Study Of Implied-In-Fact Contracts In Islamic Law And The Common Law, Aron Zysow

Cleveland State Law Review

Every student of Islamic law is familiar with the formation of contract by offer (jdb) and acceptance (qabud). Of the rules of jdb and qabul one can quote Karl Llewellyn's statement about their common law counterparts: they "have been worked over; they have been written over; they have been shaped and rubbed smooth with pumice, they wear the rich deep polish of a thousand classrooms."' The apparent prominence of offer and acceptance in the two legal systems, however, should not mislead one into seeing similarity where there is significant difference. Some of these differences are the subject of this paper. …

Adjusting The Equities In Franchise Termination: A Sui Generis Approach, Richard A. Greco Jr.

Cleveland State Law Review

The scope of troubled areas in the franchising industry is nearly as broad as the variety of goods and services available through franchised systems. This Note cannot attempt even an overview of all the problems that confront the industry; instead the discussion will focus on one recurring problem within the industry: the rights of the parties engaged in a franchise relation following the termination of that relationship.

Implied Warranties In Ohio Home Sales, Susan B. Brooks

Cleveland State Law Review

The majority of states other than Ohio have rejected the caveat emptor doctrine and adopted an implied warranty of habitability in the sale of new homes, but the irony of this situation is that it was an Ohio case, Vanderschrier v. Aaron, that first recognized implied warranties in the sale of a home. This Note will demonstrate that Ohio should adopt an implied warranty of habitability in the sale of new homes by builder-vendors.

Snepp V. United States, Frederick W. Whatley

Cleveland State Law Review

On February 19, 1980. the Supreme Court handed downs its decision in the case of Snepp v. United States. The Court based its decision on the writs of certiorari filed by Snepp and the government. There were no briefs or oral arguments on the merits of the case. The above quotes serve as more than a mere backdrop to the Snepp case. Whether the decision was rendered out of a concern that the actions of persons such as Mr. Agee may lead to the deaths of Central Intelligence Agency (hereinafter sometimes referred to as CIA) operatives, such as Mr. Welch's …

Contracts During The Half-Century Between Restatements, E. Allan Farnsworth

Cleveland State Law Review

In May of 1979, as the sobering seventies drew to a close, I had the privilege of presenting to the membership of the American Law Institute the final chapter of Restatement Second of Contracts. The three volumes of that Restatement have now been published. I shall not hazard a guess as to how it will fare over the next fifty years. I would like instead to use the time we have together to reflect on what has happened in the law of contracts over the course of the half century between the two contracts Restatements- roughly 1930 to 1980.

Auction Problems: Going, Going, Gone, Leonard D. Duboff

Cleveland State Law Review

Works of art may be bought, sold, and transferred by every traditional method of conveyancing, though the type which appears to be most notorious is auctioning. In this Article the auction process will be analyzed, many of the problems currently prevalent in the auction arena identified, and suggestions tendered which, if adopted, should reduce some of the difficulties discussed.

Two Decades Of 2-207: Review, Reflection And Revision, Paul Barron, Thomas W. Dunfee

Cleveland State Law Review

This article is divided into six parts: (1) a description of the modern commercial context within which UCC section 2-207 was created and is now applied; (2) a summary of the pre-Code rule; (3) an overview of the rule engendered by section 2-207; (4) an analysis of the interpretative history of section 2-207; (5) a proposed decision model for the application of section 2-207; and (6) the suggested statutory revision.