The Scope Of Section 316(B) After Marblegate, 2018 New York University
The Scope Of Section 316(B) After Marblegate, Marcel Kahan
New York University Law and Economics Working Papers
Section 316(b) of the Trust Indenture Act provides that right of any to receive payment of the principal and interest may not be impaired or affected without the holder’s consent. This article analyzes the recent case law on whether corporate restructurings that impair the practical ability of bondholders to obtain payment on their bonds violate Section 316(b) of the Trust Indenture Act. After concluding that the Court of Appeals for the Second Circuit was correct in confining the scope of Section 316(b) to formal amendments to core payment terms, the article turns to an issue left ...
A Critical Assessment Of The Empiricism In The Restatement Of Consumer Contract Law, 2018 Georgetown University Law Center
A Critical Assessment Of The Empiricism In The Restatement Of Consumer Contract Law, Gregory Klass
Georgetown Law Faculty Publications and Other Works
The draft Restatement of the Law of Consumer Contracts includes a quantitative study of judicial decisions concerning businesses’ online privacy policies, which it cites in support of a claim that most courts treat privacy policies as contracts. This article reports an attempt to replicate that study. Using the Restatement data, this study was unable to replicate its numerical findings. This study found in the data fewer relevant decisions, and a lower proportion of decisions supporting the Restatement position. This study also found little support for the claim that there is a clear trend recognizing enforcing privacy policies as contracts, and ...
The Architecture Of Contract Innovation, 2018 Brigham Young University Law School
The Architecture Of Contract Innovation, Matthew Jennejohn
Boston College Law Review
Contract law and the formal models of contract economics assume that agreements are fully customized. On the other hand, recent legal research highlights the role standardized terms play in contract design. Those lines of research overlook an important class of contracts between those extremes. Many contracts, such as the merger agreements studied here, are complex combinations of customized and standardized terms, and thereby achieve economies of both scale and scope. Such contracts are “mass customized,” to borrow a term from engineering research. This Article introduces a theoretical framework for understanding how mass customization of such complex agreements is achieved. It ...
Hb 1 - Space Flight, 2018 Georgia State University College of Law
Hb 1 - Space Flight, Malissa Caroline Barger, Ethan L. Smith
Georgia State University Law Review
The Act limits the civil and criminal liability of a space flight entity for injuries sustained by space flight participants arising from ordinary negligence. The Act defines new terms and provides a statutory waiver form that participants with informed consent must sign. The Act mandates space flight participants sign the waiver before participating in any space flight activity. The Act does not limit the liability of space flight entities for gross negligence or intentional acts, nor does it prevent suits from anyone other than the space flight participant.
Pluralism Applied: A Concordant Approach To Selecting Contract Rules, 2018 Golden Gate University School of Law
Pluralism Applied: A Concordant Approach To Selecting Contract Rules, Samuel Ernst
Contract rules can be justified by utilitarian theories (such as efficiency theory), which are concerned with promoting rules that enhance societal wealth and utility. Contract rules can also be justified by rights-based theories (such as promissory and reliance theories), which are concerned with protecting the contractual freedom and interests of the individual parties to the contract. Or, contract rules can be analyzed through the lenses of a host of other theories, including critical legal theory, bargain theory, and so on. Because no single, unitary theory can ever explain the complex body of laws and societal conventions surrounding contracts, the best ...
Vindicating The Effective Vindication Exception: Protecting Federal Statutory Rights In The Employment Context, 2018 University of Oklahoma College of Law
Vindicating The Effective Vindication Exception: Protecting Federal Statutory Rights In The Employment Context, Colby J. Byrd
Oklahoma Law Review
No abstract provided.
Boilerplate’S False Dichotomy, 2018 University of Richmond
Boilerplate’S False Dichotomy, James Gibson
Law Faculty Publications
The argument against enforcing boilerplate contracts (contracts that no one reads) seems clear. Indeed, if this were a court case we would say that the jury is in; the evidence against boilerplate is overwhelming. Yet the judge has yet to render judgment. Courts continue to enforce boilerplate terms, and even those scholars who have exposed boilerplate as an emperor with no clothes are reluctant to gaze upon its nakedness and condemn its use.
This reluctance originates in an assumption that pervades the boilerplate debate—namely, that courts and commentators alike view boilerplate as necessary to the modern transaction. When asked ...
Interpretation And Construction In Contract Law, 2018 Georgetown University Law Center
Interpretation And Construction In Contract Law, Gregory Klass
Georgetown Law Faculty Publications and Other Works
Interpretation determines the meaning of a legal actor’s words and actions, construction their legal effect. Although the interpretation-construction distinction has a long pedigree, contract scholars today rarely attend to it, and the relationship between the two activities remains understudied. This Article provides an account of the interplay between interpretation and construction in contract law.
It begins with the history of the concepts, focusing on the works of Lieber, Williston and Corbin. It adopts Corbin’s complimentary conception, according to which interpretation alone never suffices to determine speech act’s legal effects; a rule of construction is always required. The ...
Venezuela Public Health Issue, 2018 Augustana College, Rock Island Illinois
Venezuela Public Health Issue, Luke Vargas
Global Public Health
While every country around the world faces a form of public health issues, the issues that the country of Venezuela faces are different. Their public health problem is not a disease that can be solved by science, or a cure. It’s a problem that can only be solved by the people within the county itself. The country of Venezuela now lacks the proper medical supplies needed to help cure diseases and normal vaccinations, and the only ones to blame is their government. Because their government has now refused to pay their debts to the surrounding countries they have now ...
Does Contract Law Need Morality?, 2018 Duke Law School
Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu
In "The Dignity of Commerce", Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values other ...
Central Clearing Of Financial Contracts: Theory And Regulatory Implications, 2018 Duke Law School
Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz
To protect economic stability, post-crisis regulation requires financial institutions to clear and settle most of their derivatives contracts through central counterparties, such as clearinghouses associated with derivatives and commodity exchanges. This Article asks whether regulators should expand the central clearing requirement to non-derivative financial contracts, such as loan agreements. The Article begins by theorizing how and why central clearing can reduce systemic risk. It then examines the theory’s regulatory and economic efficiency implications, first for current requirements to centrally clear derivatives contracts and thereafter for deciding whether to extend those requirements to non-derivative contracts. The inquiry has real practical ...
Contrato De Depósito, 2017 Selected Works
Contrato De Depósito, Hugo Ernesto Paz Acuña
Hugo Paz Acuña
Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, 2017 University of California, Berkeley, School of Law
Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell
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 ...
Arbeitsblätter Leistungsstörungen, 2017 Friedrich Schiller University, Jena
Arbeitsblätter Leistungsstörungen, Christian Alexander
United States V. Osage Wind, Llc, 2017 Alexander Blewett III School of Law at the University of Montana
United States V. Osage Wind, Llc, Summer Carmack
Public Land and Resources Law Review
The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian ...
Venture Capital Contract Design: An Empirical Analysis Of The Connection Between Bargaining Power And Venture Financing Contract Terms, 2017 Stanford Law School Program on Corporate Governance and Practice
Venture Capital Contract Design: An Empirical Analysis Of The Connection Between Bargaining Power And Venture Financing Contract Terms, Spencer Williams
Fordham Journal of Corporate & Financial Law
This Article presents an empirical analysis of the connection between bargaining power and contract design using an original dataset of over 5,500 equity and debt venture financings from 2004–2015. Using the total supply of venture capital in the U.S. as a measure of relative bargaining power between entrepreneurs and investors, this Article finds that venture capital supply has a statistically significant relationship with price and non-price terms in both equity and debt financings. These results contradict one of three theoretical accounts of bargaining power and support the other two.
Poke Your Nose Into Your Clients' Businesses (If You Want To Understand Their Contracts), 2017 University of Maine School of Law
Poke Your Nose Into Your Clients' Businesses (If You Want To Understand Their Contracts), James W. Bowers
Maine Law Review
Thirty years ago Grant Gilmore argued that “Contract” was dead. This lecture, delivered as 2004 Godfrey Scholar-in-Residence at the University of Maine School of Law, considers the cause of death. Since the expired doctrines arose in a common law process, the lecture argues their demise resulted from the failings of lawyers, especially lawyers' commitment to wooden, formalist legal methods. I explore some of the reasons why lawyers became committed to these methods, and argue that even were nineteenth-century formalistic practices resurrected, modern lawyers must still be prepared to understand the potential effects business contexts might have in contract disputes and ...
The Supreme Court’S Application Of 'Ordinary Contract Principles' To The Issue Of The Duration Of Retiree Healthcare Benefits: Perpetuating The Interpretation/Gap-Filling Quagmire, 2017 Cornell Law School
The Supreme Court’S Application Of 'Ordinary Contract Principles' To The Issue Of The Duration Of Retiree Healthcare Benefits: Perpetuating The Interpretation/Gap-Filling Quagmire, Robert A. Hillman
The United States Supreme Court purported to apply "ordinary contract principles" in its decision reversing the Sixth Circuit Court of Appeals in M&G Polymers USA v. Tackett . The Sixth Circuit had held that plaintiffs, retired employees of M&G, were entitled to lifetime healthcare benefits under their union's agreement with M&G. According to the Supreme Court, the Sixth Circuit wrongly relied on a false set of "inferences" established in International Union v. Yard-Man, Inc. to find that "in the absence of extrinsic evidence to the contrary, the provisions of [the collective bargaining agreement] indicated an intent to ...
Privatizing Law: Is Rule Of Law An Equilibrium Without Private Ordering?, 2017 University of Southern California Law
Privatizing Law: Is Rule Of Law An Equilibrium Without Private Ordering?, Gillian K. Hadfield, Barry R. Weingast
University of Southern California Legal Studies Working Paper Series
Almost all theorizing about law, including the rule of law, begins with government. Analysts from a wide variety of perspectives make this presumption. We contest this presumption. In this paper, we ask whether rule of law is an equilibrium in the absence of private ordering. To address this question, we rely on the what-is-law model of Hadfield and Weingast (2012). Most legal theory has asserted that legal attributes are characteristic of legal orders, such as generality, clarity and neutrality. In contrast, we show that they can be derived from a minimal normative premise about what constitutes law in a setting ...
Understanding The Consumer Review Fairness Act Of 2016, 2017 Santa Clara University School of Law
Understanding The Consumer Review Fairness Act Of 2016, Eric Goldman
Michigan Telecommunications and Technology Law Review
Consumer reviews are vitally important to our modern economy. Markets become stronger and more efficient when consumers share their marketplace experiences and guide other consumers toward the best vendors and away from poor ones. Businesses recognize the importance of consumer reviews, and many businesses take numerous steps to manage how consumer reviews affect their public image. Unfortunately, in a misguided effort to control consumer reviews, some businesses have deployed contract provisions that ban or inhibit their consumers from reviewing them. I call those provisions “antireview clauses.”
Anti-review clauses distort the marketplace benefits society gets from consumer reviews by suppressing peer ...