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Law In The Time Of Covid-19: Legal Considerations Amidst A Growing Crisis, Justice Tecson 2020 Golden Gate University School of Law

Law In The Time Of Covid-19: Legal Considerations Amidst A Growing Crisis, Justice Tecson

GGU Law Review Blog

COVID-19 has resulted in the destabilization of several aspects of human society, which may potentially cause an influx in litigation in certain practice areas such as employment, healthcare, and contract law. Although the legal effects of the pandemic have yet to be seen in their entirety, having knowledge of the potential legal issues better prepares individuals and businesses in dealing with this increased risk of litigation and could possibly help mitigate the circumstances caused by this viral, unprecedented attack on humanity.


Intellectual Property's First Sale Doctrine And The Policy Against Restraints On Alienation, Lorie M. Graham, Stephen M. McJohn 2020 Suffolk University Law School

Intellectual Property's First Sale Doctrine And The Policy Against Restraints On Alienation, Lorie M. Graham, Stephen M. Mcjohn

Texas A&M Law Review

The first sale doctrine decouples intellectual property and physical property. Suppose, at an auction at Sotheby’s, someone bought a contemporary painting by Chuck Close. The buyer now owns the physical painting, but the copyright to the painting remains with the owner of the copyright—the painter Chuck Close or whomever Close may have transferred the copyright to. Absent the first sale doctrine, if the buyer either sold the painting or displayed it to the public, the buyer would potentially infringe the copyright in the painting. The copyright owner has the exclusive right to display copies (including the original, the ...


Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens 2020 William & Mary Law School

Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens

William & Mary Bill of Rights Journal

No abstract provided.


Property Rights In Children, Barry E. Adler, Alexis A. Alvarez 2020 New York University

Property Rights In Children, Barry E. Adler, Alexis A. Alvarez

Notre Dame Law Review

In 1978, Dr. Elisabeth Landes and then-Professor, later-Judge Richard Posner, published The Economics of the Baby Shortage. The article openly discussed how economic analysis can address the allocation of babies available for adoption. The ideas expressed in the article were widely denounced as an inhumane commodification of children, something tolerable only in the twisted minds of academic authors. Despite the backlash, an odd thing happened in the more than four decades since Landes and Posner wrote on this topic: their ideas began to take hold. Today, almost all states in the United States permit, in some form, the contractual assignment ...


Cutting Off The Eu To Spite Its Face?: How To Promulgate The Uk’S Contractual Choice Of Law Rules To Ensure Stability Post-Brexit, Emma Coffey 2020 Boston College Law School

Cutting Off The Eu To Spite Its Face?: How To Promulgate The Uk’S Contractual Choice Of Law Rules To Ensure Stability Post-Brexit, Emma Coffey

Boston College Law Review

As the UK struggles to figure out what its relationship with the world will look like after leaving the EU, scholars attempt to predict how it will answer the many remaining questions. One of the questions that the UK will face is what to do with existing EU law and, in particular, Regulation 593/2008 (Rome I). This regulation sets out the choice of law rules for any contractual agreements that are disputed in the UK. The UK must grapple with how to distinguish the laws from the EU and reinforce parliamentary sovereignty while also keeping the laws consistent to ...


Lying And Cheating, Or Self-Help And Civil Disobedience?, Aditi Bagchi 2020 Brooklyn Law School

Lying And Cheating, Or Self-Help And Civil Disobedience?, Aditi Bagchi

Brooklyn Law Review

May poor sellers lie to rich buyers? This article argues that, under limited circumstances, sellers may indeed have a license to lie about their goods. Where sellers are losers under unjust background institutions and they reasonably believe that buyers have more than they would under just institutions, lies that result in de minimum transfers can be regarded as a kind of self-help. More generally, what we owe each other in our interpersonal interactions depends on the institutional backdrop. Consumer contract law, including its enforcement regimes, should recognize the social and political contingency of sellers’ obligations to buyers. In other contexts ...


The Impossibility Doctrine In Commercial Contracts: An Empirical Analysis, Uri Benoliel 2020 Brooklyn Law School

The Impossibility Doctrine In Commercial Contracts: An Empirical Analysis, Uri Benoliel

Brooklyn Law Review

The impossibility doctrine – under which a contracting party has no duty to perform the agreement if performance thereof is rendered impossible – is a basic building block of U.S. contract law. The prevailing law-and-economics analysis of this doctrine suggests that when contract performance becomes impossible, courts should assign the contractual risk of non-performance to the superior risk bearer, i.e., to the party that can bear said risk at least cost. This article empirically tests, for the first time, the economic theory of the impossibility doctrine. It first hypothesizes that most sophisticated parties to commercial contracts are unlikely to adopt ...


Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla 2020 Alexander Blewett III School of Law at the University of Montana

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction ...


Commercial Law Intersections, Giuliano Castellano, Andrea Tosato 2020 University of Hong Kong, Faculty of Law

Commercial Law Intersections, Giuliano Castellano, Andrea Tosato

Faculty Scholarship at Penn Law

Commercial law is not a single, monolithic entity. It has grown into a dense thicket of subject-specific branches that govern a broad range of transactions and corporate actions. When one of these events falls concurrently within the purview of two or more of these commercial law branches - such as corporate law, intellectual property law, secured transactions law, conduct and prudential regulation - an overlap materializes. We refer to this legal phenomenon as a commercial law intersection (CLI). Some notable examples of transactions that feature CLIs include bank loans secured by shares, supply chain financing arrangements, patent cross-licensing, and blockchain-based initial coin ...


Contract Law’S Transferability Bias, Paul MacMahon 2020 London School of Economics and Political Science

Contract Law’S Transferability Bias, Paul Macmahon

Indiana Law Journal

When A makes a contract with B, it comes as no surprise that she is liable to B. If B can transfer her contractual rights to C, A is now liable to C. Parties in A’s position often have strong reasons to avoid being liable to suit by C. Contract law, however, seems determined to minimize and override these concerns. Under current doctrine on the assignment of contractual rights—the focus of this Article—the law often imposes its own preference for transferability on the parties. The law generally assumes that contractual rights are assignable, construes exceptions to that ...


Mass Arbitration, J. Maria Glover 2020 Georgetown University Law Center

Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s interpretation of the Federal Arbitration Act in a series of recent cases makes clear that arbitration agreements contained in contracts of adhesion will be enforced according to their terms. Some of the terms in various arbitration agreements appear “friendly” to claimants and to arbitration. Of course, such “arbitration-friendly” provisions were not actually intended to facilitate arbitration; they were intended to fend off challenges that the agreements’ terms were unconscionable. These terms included, in virtually every arbitration agreement, a prohibition of class-wide arbitration. As I have set forth in prior work, the true gambit of the arbitration ...


Fertility Fraud And Proposal For Florida Legislation, Cheyenne Dunn 2020 Barry University School of Law

Fertility Fraud And Proposal For Florida Legislation, Cheyenne Dunn

Child and Family Law Journal

No abstract provided.


The Case For Noncompetes, Jonathan M. Barnett, Ted M. Sichelman 2020 University of Southern California

The Case For Noncompetes, Jonathan M. Barnett, Ted M. Sichelman

University of Southern California Legal Studies Working Paper Series

Scholars and other commentators widely assert that enforcement of contractual and other limitations on labor mobility deters innovation. Based on this view, federal and state legislators have taken, and continue to consider, actions to limit the enforcement of covenants not-to-compete in employment agreements. These actions would discard the centuries-old reasonableness standard that governs the enforcement of these provisions, often termed “noncompetes,” in all but four states (notably, California). We argue that this zero-enforcement position lacks a sound basis in theory or empirics. As a matter of theory, it overlooks the complex effects of contractual limitations on labor mobility in innovation ...


Stop Teaching Consideration, Alan M. White 2020 University of Nevada, Las Vegas -- William S. Boyd School of Law

Stop Teaching Consideration, Alan M. White

Nevada Law Journal

No abstract provided.


Could The Rise Of Dockless Scooters Change Contract Law?, John Kendall 2020 Mercer University School of Law

Could The Rise Of Dockless Scooters Change Contract Law?, John Kendall

Mercer Law Review

Dockless scooters have been revolutionizing the way individuals in highly populated towns and cities commute on a day-to-day basis across the country. Instead of riding the bus, individuals now have the option to pay money to ride scooters short distances and save themselves the hassle of riding on crowded buses. Among the many issues and questions this creates for lawyers and lawmakers, one particularly noteworthy issue is whether the electronic waivers and arbitration clauses scooter companies require riders to sign before operating the scooters can shield the scooter companies from liability when the unexpected occurs. Currently, the top dockless scooter ...


Justifying Bad Deals, Tess Wilkinson-Ryan 2020 University of Pennsylvania Law School

Justifying Bad Deals, Tess Wilkinson-Ryan

Faculty Scholarship at Penn Law

In the past decade, psychological and behavioral studies have found that individual commitment to contracts persists beyond personal relationships and traditional promises. Even take-it-or-leave it consumer contracts get substantial deference from consumers — even when the terms are unenforceable, even when the assent is procedurally compromised, and even when the drafter is an impersonal commercial actor. Indeed, there is mounting evidence that people import the morality of promise into situations that might otherwise be described as predatory, exploitative, or coercive. The purpose of this Article is to propose a framework for understanding what seems to be widespread acceptance of regulation via ...


Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker 2020 University of Pennsylvania Law School

Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker

Faculty Scholarship at Penn Law

Insurance ideas inform legal thought: from tort law, to health law and financial services regulation, to theories of distributive justice. Within that thought, insurance is conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. This ideal type also supports a restrictive vision of liability-based regulation that opposes expansions and supports cutbacks, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work ...


Designing And Enforcing Preliminary Agreements, Albert H. Choi, George Triantis 2020 University of Michigan Law School

Designing And Enforcing Preliminary Agreements, Albert H. Choi, George Triantis

Articles

Preliminary agreements—variously labeled as memoranda of understanding, letters of intent, term sheets, commitment letters, or agreements in principle—are common in complex business transactions. They document an incomplete set of terms that the parties have agreed upon, while anticipating further negotiation of the remaining provisions. They often create legal obligations, particularly a duty to negotiate in good faith. This duty has been the subject of a substantial number of judicial opinions over the past few decades and yet continues to be regarded as a confusing and unpredictable issue in contract law. Legal scholarship is hamstrung in its analysis of ...


Neither Contract Nor Tort: Salomon Triumphant?, Kwan Ho LAU 2020 Singapore Management University

Neither Contract Nor Tort: Salomon Triumphant?, Kwan Ho Lau

Research Collection School Of Law

This is a note on three cases: Palmer Birch v Lloyd [2018] 4 WLR 164, Gruber v AIG Management France SA [2018] EWHC 3030 (Comm) and Bumi Armada Offshore Holdings Ltd v Tozzi Srl [2019] 1 SLR 10.


Transactional Scripts In Contract Stacks, Shaanan Cohney, David A. Hoffman 2020 University of Pennsylvania

Transactional Scripts In Contract Stacks, Shaanan Cohney, David A. Hoffman

Faculty Scholarship at Penn Law

Deals accomplished through software persistently residing on computer networks—sometimes called smart contracts, but better termed transactional scripts—embody a potentially revolutionary contracting innovation. Ours is the first precise account in the legal literature of how such scripts are created, and when they produce errors of legal significance.

Scripts’ most celebrated use case is for transactions operating exclusively on public, permissionless, blockchains: such exchanges eliminate the need for trusted intermediaries and seem to permit parties to commit ex ante to automated performance. But public transactional scripts are costly both to develop and execute, with significant fees imposed for data storage ...


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