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Recent Articles in Contracts
Deposits: At The Intersection Of Contract, Restitution, Equity And Statute, Tiong Min Yeo
Singapore Management University
Deposits: At The Intersection Of Contract, Restitution, Equity And Statute, Tiong Min Yeo
Yong Pung How Professorship of Law Lecture
Whether a partial payment is recoverable in restitution by a party in breach of contract depends on the classification of the payment as a deposit or a part-payment. A part payment may be recoverable in unjust enrichment if the contract is terminated and a vitiating factor can be found (usually total failure of consideration in this context), and subject to a counterclaim for damages. However, a deposit is intended to be earnest for performance and will not be recoverable, at least generally. Six questions will be considered: (1) Is the penalty rule applicable to a deposit? (2) If not, is ...
Protecting Consumers From Add-On Insurance Products: New Lessons For Insurance Regulation From Behavioral Economics, Tom Baker, Peter Siegelman
University of Pennsylvania Law School
Protecting Consumers From Add-On Insurance Products: New Lessons For Insurance Regulation From Behavioral Economics, Tom Baker, Peter Siegelman
Faculty Scholarship
Persistently high profits on “insurance” for small value losses sold as an add-on to other products or services (such as extended warranties sold with consumer electronics, loss damage waivers sold with a car rental, and credit life insurance sold with a loan) pose a twofold challenge to the standard economic analysis of insurance. First, expected utility theory teaches that people should not buy insurance for small value losses. Second, the market should not in the long run permit sellers to charge prices that greatly exceed the cost of providing the insurance. Combining the insights of the Gabaix and Laibson shrouded ...
Regulation By Liability Insurance: From Auto To Lawyers Professional Liability, Tom Baker, Rick Swedloff
University of Pennsylvania Law School
Regulation By Liability Insurance: From Auto To Lawyers Professional Liability, Tom Baker, Rick Swedloff
Faculty Scholarship
Liability insurers use a variety of tools to address adverse selection and moral hazard in insurance relationships. These tools can act on insureds in a manner that can be understood as regulation. We identify seven categories of such regulatory activities: risk-based pricing, underwriting, contract design, claims management, loss prevention services, research and education, and engagement with public regulators. We describe these activities in general terms and then draw upon prior literature to explore them in the context of five areas of liability and corresponding insurance: shareholder liability, auto liability, gun liability, medical professional liability, and lawyers’ professional liability. The goal ...
Online Certificate Program For International Commercial Law And International Alternative Dispute Resolution, Vikki Rogers
Pace University
Online Certificate Program For International Commercial Law And International Alternative Dispute Resolution, Vikki Rogers
Cornerstone 3 Reports : Interdisciplinary Informatics
No abstract provided.
Soft Law And The Principle Of Fair And Equitable Decisionmaking In International Contract Arbitration, Larry A. DiMatteo
University of Florida Levin College of Law
Soft Law And The Principle Of Fair And Equitable Decisionmaking In International Contract Arbitration, Larry A. Dimatteo
Larry A DiMatteo
This article provides a survey of the special relationship between international commercial arbitration and soft law instruments. It briefly traces the historical roots of the lex mercatoria to its present enunciation in the Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts. It discusses the characteristic of the hardness and softness of laws in an international commercial law context. The CISG is studied not only as a hard law, but also as an example of soft law. The affinity between soft law and international commercial arbitration is explored, as well as ...
From Lord Coke To Internet Privacy: The Past, Present, And Future Of The Law Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds
University of Maryland Francis King Carey School of Law
From Lord Coke To Internet Privacy: The Past, Present, And Future Of The Law Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds
Maryland Law Review
No abstract provided.
The Granting Clause And Intellectual Property Rights Management In Open-Source Software Licensing, Vikrant N. Vasudeva
Maurer School of Law: Indiana University
The Granting Clause And Intellectual Property Rights Management In Open-Source Software Licensing, Vikrant N. Vasudeva
IP Theory
No abstract provided.
The Expansion Of Trademark Rights In Europe, Irina Pak
Maurer School of Law: Indiana University
The Expansion Of Trademark Rights In Europe, Irina Pak
IP Theory
No abstract provided.
A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye
Maurer School of Law: Indiana University
A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye
IP Theory
No abstract provided.
Goodwill U: School Name Change & Trademark Law, Alexandra J. Roberts
Maurer School of Law: Indiana University
Goodwill U: School Name Change & Trademark Law, Alexandra J. Roberts
IP Theory
No abstract provided.
In The Wake Of Coast Federal: The Plain Meaning Rule And The Anglo American Rhetorical Ethic, Kemit A. Mawakana
University of Maryland Francis King Carey School of Law
In The Wake Of Coast Federal: The Plain Meaning Rule And The Anglo American Rhetorical Ethic, Kemit A. Mawakana
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
Putting The Cisg Where It Belongs: In The Uniform Commercial Code, Kina Grbic
Touro College Jacob D. Fuchsberg Law Center
Putting The Cisg Where It Belongs: In The Uniform Commercial Code, Kina Grbic
Touro Law Review
No abstract provided.
Vertical Boilerplate, James Gibson
Washington & Lee University School of Law
Vertical Boilerplate, James Gibson
Washington and Lee Law Review
Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate—take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach—i.e., they sample a single stratum of boilerplate and assume ...
Book Review - Keyes: Keyes’ Encyclopedic Dictionary Of Procurement Law , Overton A. Currie, Mary Jane Armour
Pepperdine University
Book Review - Keyes: Keyes’ Encyclopedic Dictionary Of Procurement Law , Overton A. Currie, Mary Jane Armour
Pepperdine Law Review
No abstract provided.
The Importance Of Fault In Contract Law, Robert A. Hillman
Cornell Law Library
The Importance Of Fault In Contract Law, Robert A. Hillman
Cornell Law Faculty Working Papers
According to judicial opinions, the Restatement (Second) of Contracts, and some analysts, the reasons for failing to perform a contract, whether willful, negligent, or unavoidable, have little or no bearing in determining contract liability. Contract liability is said to be “strict,” meaning that the reasons for nonperformance are irrelevant in determining the injured party’s rights. In this Article, I argue that the reasons for failing to perform, which focus on whether non-performance is the promisor’s fault, are crucially important in the resolution of many, perhaps most disputes under contract law.
Index Theory: The Law, Promise, And Failure Of Financial Indices, Andrew Verstein
Yale Law School
Index Theory: The Law, Promise, And Failure Of Financial Indices, Andrew Verstein
Lecturer and Other Affiliate Scholarship Series
Financial indices, like the S&P 500 or the Consumer Price Index, have become a ubiquitous feature of our financial markets. One index, the London InterBank Offered Rate ("Libor"), may be the world’s most important number, an interest rate benchmark upon which hundreds of trillions of dollars depend. Yet, almost every day new revelations emerge that Libor was tampered with during the height of the financial crisis by one or many of the world's most prominent banks, with billions of dollars potentially misappropriated. This index disruption has attracted tremendous interest from regulators, private litigants, and market observers. Despite ...
Beaten To "Submissions": Talent Agents Score A Victory Over Managers On Submissions Of Motion Picture Screenplays, Matthew H. Schwartz
Pepperdine University
Beaten To "Submissions": Talent Agents Score A Victory Over Managers On Submissions Of Motion Picture Screenplays, Matthew H. Schwartz
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Final Cut: How Sag's Failed Negotiations With Talent Agents Left The Contractual Rights Of Rank-And-File Actors On The Cutting Room Floor, Kelli Shope
Pepperdine University
The Final Cut: How Sag's Failed Negotiations With Talent Agents Left The Contractual Rights Of Rank-And-File Actors On The Cutting Room Floor, Kelli Shope
Journal of the National Association of Administrative Law Judiciary
The following article will explore the impact SAG, talent agents, and lawmakers each have on the contractual rights of rank-and-file actors in light of the termination of Rule 16(g). Section II discusses actors' prior contractual rights under the collective bargaining agreement and how failed negotiations with talent agents left actors vulnerable to unfair contracts. Section III explores the new standard agency contract utilized by agents and the resulting legal implications for actors. Section IV details and evaluates the substance of the TAA, one of the few remaining legal protections for actors. Section V exposes the shortcomings of the TAA ...
The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan
Chapman University School of Law
The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan
Donald J. Kochan
ABSTRACT:
This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence.
In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right ...
Damages Versus Specific Performance: Lessons From Commercial Contracts, Theodore Eisenberg, Geoffrey P. Miller
NELLCO
Damages Versus Specific Performance: Lessons From Commercial Contracts, Theodore Eisenberg, Geoffrey P. Miller
New York University Law and Economics Working Papers
Specific performance is a central contractual remedy but, in Anglo-American law, generally is subordinate to damages. The familiar rule is that courts will not award specific performance when damages provide adequate relief. Despite rich theoretical discussions of the relative merits of specific performance and damages as contract remedies, little is known about parties’ treatment of the remedy in their contracts. We study 2,347 contracts of public corporations to quantify the presence or absence of specific performance clauses in several types of contracts (clauses that convey the parties’ intent that the court award specific performance in the event of breach ...
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