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Lex Punit Mendacium: Punitive Damages And Bhasin V Hrynew, Eric Andrews 2017 University of Western Ontario, Faculty of Law

Lex Punit Mendacium: Punitive Damages And Bhasin V Hrynew, Eric Andrews

Western Journal of Legal Studies

Punitive damages are a controversial remedy in Canadian and non-Canadian law. Some scholars have gone so far as to argue that punitive damages are entirely inconsistent with the goals and principles of private law and ought to be abolished. Notwithstanding these criticisms, the Supreme Court of Canada has treated punitive damages as a relatively uncontroversial private law remedy. However, the circumstances under which a court will consider awarding punitive damages have evolved with recent Supreme Court decisions. One example is the introduction of the independent actionable wrong requirement in Vorvis v Insurance Corporation of British Columbia. The independent actionable wrong ...


A Motion To Compel Changes To Federal Arbitration Law: How To Remedy The Abuses Consumers Face When Arbitrating Disputes, Jeremy McManus 2017 Boston College Law School

A Motion To Compel Changes To Federal Arbitration Law: How To Remedy The Abuses Consumers Face When Arbitrating Disputes, Jeremy Mcmanus

Boston College Journal of Law & Social Justice

Arbitration, as a form of alternative dispute resolution, is a favored method of settling legal disputes because it resolves disputes faster and more cost effectively than in-court litigation. Corporations often exploit the private nature of arbitration by including complex provisions in consumer contracts that require certain disputes to be resolved through arbitration. Consumers subject to these arbitration provisions often do not realize the existence of the provisions, and do not understand that because of undue corporate influence over arbitrators, arbitration tends to favor the corporations against which they arbitrate. Unfortunately, because the U.S. Supreme Court has declared that the ...


In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue 2017 University of Pennsylvania Law School

In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue

Faculty Scholarship

For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. The Restatement of the Law Liability Insurance is the American Law Institute’s first effort to “restate” the common law governing such liability insurance policies, and we are the reporters. In a recent essay funded by the insurance industry, Yale Law Professor George Priest launched a strident critique of the Restatement project, arguing that the rules adopted in the Restatement:

(a) are radically contrary to existing case law,

(b) have a naïve “pro-policyholder” bias that ignores basic economic ...


Contract Law As A Viable Alternative To Problems Of Informed Consent, Martin L. Norton 2017 St. John's University School of Law

Contract Law As A Viable Alternative To Problems Of Informed Consent, Martin L. Norton

The Catholic Lawyer

No abstract provided.


Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell 2017 University of California, Berkeley, School of Law

Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell

Nevada Law Journal Forum

In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. But could this ...


The Dawn Of Fully Automated Contract Drafting: Machine Learning Breathes New Life Into A Decades-Old Promise, Kathryn D. Betts, Kyle R. Jaep 2017 Duke Law

The Dawn Of Fully Automated Contract Drafting: Machine Learning Breathes New Life Into A Decades-Old Promise, Kathryn D. Betts, Kyle R. Jaep

Duke Law & Technology Review

Technological advances within contract drafting software have seemingly plateaued. Despite the decades-long hopes and promises of many commentators, critics doubt this technology will ever fully automate the drafting process. But, while there has been a lack of innovation in contract drafting software, technological advances have continued to improve contract review and analysis programs. “Machine learning,” the leading innovative force in these areas, has proven incredibly efficient, performing in mere minutes tasks that would otherwise take a team of lawyers tens of hours. Some contract drafting programs have already experimented with machine learning capabilities, and this technology may pave the way ...


A Troubling Equation In Contracts For Government Funded Scientific Research: "Sensitive But Unclassified" = Secret But Unconstitutional, Leslie Gielow Jacobs 2017 Pacific McGeorge School of Law

A Troubling Equation In Contracts For Government Funded Scientific Research: "Sensitive But Unclassified" = Secret But Unconstitutional, Leslie Gielow Jacobs

Leslie Gielow Jacobs

No abstract provided.


Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Robert K. Rasmussen, Mitu Gulati 2017 University of Southern California

Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Robert K. Rasmussen, Mitu Gulati

University of Southern California Legal Studies Working Paper Series

Puerto Rico has incurred debt well beyond its ability to repay. It attempted to address its fiscal woes through legislation allowing the restructuring of some its debt. The Supreme Court put a stop to this effort, holding that Congress in the Bankruptcy Code barred the Commonwealth from enacting its own restructuring regime. Yet all agreed that the Bankruptcy Code did not provide anything in its place. While Congress quickly enacted PROMESA in an attempt to address the Puerto Rico’s fiscal ills, we explore in this paper whether Congress has the power to bar Puerto Rico from enacting a restructuring ...


Governance By Contract: The Implications For Corporate Bylaws, Jill E. Fisch 2017 University of Pennsylvania Law School

Governance By Contract: The Implications For Corporate Bylaws, Jill E. Fisch

Faculty Scholarship

Boards and shareholders are increasing using charter and bylaw provisions to customize their corporate governance. Recent examples include forum selection bylaws, majority voting bylaws and advance notice bylaws. Relying on the contractual conception of the corporation, Delaware courts have accorded substantial deference to board-adopted bylaw provisions, even those that limit shareholder rights.

This Article challenges the rationale for deference under the contractual approach. With respect to corporate bylaws, the Article demonstrates that shareholder power to adopt and amend the bylaws is, under Delaware law, more limited than the board’s power to do so. As a result, shareholders cannot effectively ...


In Pursuit Of Good & Gold: Data Observations Of Employee Ownership & Impact Investment, Christopher Geczy, Jessica S. Jeffers, David K. Musto, Anne M. Tucker 2017 University of Pennsylvania Wharton School

In Pursuit Of Good & Gold: Data Observations Of Employee Ownership & Impact Investment, Christopher Geczy, Jessica S. Jeffers, David K. Musto, Anne M. Tucker

Anne Tucker

A startup's path to self-sustaining profitability is risky and hard, and most do not make it. Venture capital (VC) investors try to improve these odds with contractual terms that focus and sharpen employees' incentives to pursue gold. If the employees and investors expect the startup to balance the goal of profitability with another goal - the goal of good - the risks are likely to both grow and multiply. They grow to the extent that profits are threatened, and they multiply to the extent that balancing competing goals adds a dimension to the incentive problem. In this Article, we explore contracting ...


The Behavioral Paradox Of Boilerplate, Tess Wilkinson-Ryan 2017 University of Pennsylvania Law School

The Behavioral Paradox Of Boilerplate, Tess Wilkinson-Ryan

Faculty Scholarship

Although assent is the doctrinal and theoretical hallmark of contract, its relevance for form contracts has been drastically undermined by the overwhelming evidence that no one reads standard terms. Until now, most political and academic discussions of this phenomenon have acknowledged the truth of universally unread contracts, but have assumed that even unread terms are at best potentially helpful, and at worst harmless. This Article makes the empirical case that unread terms are not a neutral part of American commerce; instead, the mere fact of fine print inhibits reasonable challenges to unfair deals. The experimental study reported here tests the ...


Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens 2017 University of Maine School of Law

Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens

Maine Law Review

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic, and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalistic paradigms are structural elements driving the common law norm-generation process. This ...


The Deformation Of Contract In The Information Society, Margaret Jane Radin 2017 University of Michigan - Ann Arbor

The Deformation Of Contract In The Information Society, Margaret Jane Radin

Law & Economics Working Papers

The HLA Hart Memorial Lecture delivered at Oxford on May 24, 2016. The Lecture considers how the advent and growth of the information society is posing challenges for the traditional theories of contract, and for the duties of the State with regard to contractual ordering. In particular, the Lecture considers the lack of ‘fit’ between certain prevalent uses of contract and the underlying justification for contract enforcement.


Contract Exposition And Formalism, Gregory Klass 2017 Georgetown University Law Center

Contract Exposition And Formalism, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Formalism in contract law has had many defenders and many critics. What courts need, however, is an account of when formalist approaches work and when they do not. This article addresses that need by developing a general theory of the rules of contract interpretation and construction—contract “exposition.” The theory distinguishes inter alia two forms of formalism. Formalities effect legal change by virtue of their form alone, and thereby obviate interpretation. Examples from contract law include “as is”, the seal and boilerplate terms. Formalities work when parties intend their legal effects, that is, when they perform juristic acts. Plain meaning ...


El Haz Y El Envés Del Ix Pleno Casatorio Civil, Fort Ninamancco Córdova 2017 Universidad Nacional Mayor de San Marcos

El Haz Y El Envés Del Ix Pleno Casatorio Civil, Fort Ninamancco Córdova

Fort Ninamancco Cordova

No abstract provided.


The New Era Of Doing Business With Iran: Iran’S International Commercial Transactions And Global Security, John Changiz Vafai 2017 Archival Magazine

The New Era Of Doing Business With Iran: Iran’S International Commercial Transactions And Global Security, John Changiz Vafai

Pace International Law Review

On January 17, 2016, in a statement following his signing of the Joint Comprehensive Plan of Action (JCPOA) with Iran, President Obama addressed that country’s people, stating that “yours is a great civilization, with a vibrant culture that has so much to contribute to the world – in commerce, and in science and the arts.” While the former U.S. President’s evaluation of the Iranian people’s greatness is indisputable, there are questions concerning doing business with Iran which transcend conventional legal issues and commercial problems.

Given the juxtaposition of Iran’s duopolistic government structure and ideologically oriented decision-making ...


International Commodity Agreements, Kenneth Klein 2017 University of Georgia School of Law

International Commodity Agreements, Kenneth Klein

Georgia Journal of International & Comparative Law

No abstract provided.


Whole Foods For The Whole Pregnancy: Regulating Surrogate Mother Behavior During Pregnancy, Teresa Donaldson 2017 College of William & Mary Law School

Whole Foods For The Whole Pregnancy: Regulating Surrogate Mother Behavior During Pregnancy, Teresa Donaldson

William & Mary Journal of Women and the Law

No abstract provided.


You Can't Fire Me: The Problems With Wrongful Dismissal Damages In Canada, Chenyang Li 2017 The University of Western Ontario

You Can't Fire Me: The Problems With Wrongful Dismissal Damages In Canada, Chenyang Li

Western Journal of Legal Studies

The assessment of wrongful dismissal damages in Canadian law has long been governed by the principles established in Bardal v Globe & Mail Ltd. Although this model of analysis has been met with near universal approval in every decision-making forum in Canada, the principles underlying Bardal warrant further discussion. This work focuses on the contractual core of employment disputes and analyzes the interpretive framework for common law claims for wrongful dismissal. It will show that the traditional law of private remedies has been distorted in the context of wrongful dismissal as a result of the wholesale adoption of the Bardal Factors ...


An Empirical Study Of Law Journal Copyright Practices, 16 J. Marshall Rev. Intell. Prop. L. 207 (2017), Brian Frye, Christopher Ryan, Franklin Runge 2017 John Marshall Law School

An Empirical Study Of Law Journal Copyright Practices, 16 J. Marshall Rev. Intell. Prop. L. 207 (2017), Brian Frye, Christopher Ryan, Franklin Runge

The John Marshall Review of Intellectual Property Law

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright ...


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