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Poke Your Nose Into Your Clients' Businesses (If You Want To Understand Their Contracts), James W. Bowers 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, Robert A. Hillman 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

Robert 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?, Gillian K. Hadfield, Barry R. Weingast 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 ...


Wrangling Services Contracts In Libraries, Michael Rodriguez 2017 University of Connecticut

Wrangling Services Contracts In Libraries, Michael Rodriguez

Charleston Library Conference

As more and more academic libraries outsource information technology services and enter into cooperative consortial schemes with other organizations, librarians push into a minefield of contractual negotiations, obligations, and liabilities more complicated and consequential than the typical e-resource licenses is. A poorly wordsmithed license may result in loss of access to journals, whereas becoming entangled in troubled consortia, watching an essential technology go offline during finals week, or getting audited by a vendor without contractual safeguards or recourse can produce much greater financial and administrative burdens. This concurrent session was a crash course in negotiating service contracts favorable to libraries ...


Doing Deals With Aristotle—Today, Chapin F. Cimino 2017 Seattle University School of Law

Doing Deals With Aristotle—Today, Chapin F. Cimino

Seattle University Law Review

This analysis proceeds in six steps. In Part I, this Article sets the stage by describing the problem: while contracting behavior is increasingly complex, contract law and theory remain stubbornly uni-faceted. That is, while contracting and contractors are ever more modern, contract law and theory are ever more traditional. The greater the divide, the less useful contract theory is to contract law, and the less useful contract law is to contractors. This trend does not bode well for the future of contract law or theory. The question is how much of a crisis contract law will have to endure before ...


Lord Denning’S Influence On Contract Formation In Singapore: An Overdue Demise?, Chia Ming LEE, Wei Yao, Kenny CHNG 2017 Singapore Management University

Lord Denning’S Influence On Contract Formation In Singapore: An Overdue Demise?, Chia Ming Lee, Wei Yao, Kenny Chng

Research Collection School Of Law

In a series of inconsistent decisions by the Singapore courts on contractformation in continuing negotiations cases, Lord Denning’s broad approach—which does away with the traditional offer and acceptance analysis—appearsto have been simultaneously adopted and rejected. This article suggests thatthe continued uncertainty in Singapore regarding the scope of application ofthe traditional approach and Lord Denning’s approach arises from aconflation of both as being substantially similar. This article further arguesthat both approaches are conceptually and practically distinct. A better wayforward for Singapore law in the area of contract formation in continuingnegotiations cases, having regard to developments in English ...


Smart Contracts: Terminology, Technical Limitations And Real World Complexity, Eliza MIK 2017 Singapore Management University

Smart Contracts: Terminology, Technical Limitations And Real World Complexity, Eliza Mik

Research Collection School Of Law

If one is to believe the popular press and many “technical writings,” blockchains create not only a perfect transactional environment but also obviate the need for banks, lawyers and courts. The latter will soon be replaced by smart contracts: unbiased and infallible computer programs that form, perform and enforce agreements. Predictions of future revolutions must, however, be distinguished from the harsh reality of the commercial marketplace and the technical limitations of blockchains. The fact that a technological solution is innovative and elegant need not imply that it is commercially useful or legally viable. Apart from attempting a terminological “clean-up” surrounding ...


Transactional Real Estate Law: From Contract To Closing, Jacqueline A. Revis, Ronald Brown 2017 Nova Southeastern University - Shepard Broad College of Law

Transactional Real Estate Law: From Contract To Closing, Jacqueline A. Revis, Ronald Brown

Law Center Plus Seminar Series

This particular seminar is designed to educate attorneys about how to process a real estate transaction from contract to closing, focusing on the current rules and regulations for financed transactions.

  • How to competently act as a closing agent for a real estate transaction in Florida
  • Review requirements of a title agent
  • Discuss difference between being only a title agent and the additional role representing a particular party (buyer or seller)
  • Understanding the new closing disclosure form and the difference between a buyer closing disclosure and a seller closing disclosure
  • Handling special challenges that arise in the context of real estate ...


State Of Nevada Dep’T Of Trans. V. Eighth Judicial District Court (Nassiri), 133 Nev. Adv. Op. 70 (September 27, 2017), Natice Locke 2017 University of Nevada, Las Vegas -- William S. Boyd School of Law

State Of Nevada Dep’T Of Trans. V. Eighth Judicial District Court (Nassiri), 133 Nev. Adv. Op. 70 (September 27, 2017), Natice Locke

Nevada Supreme Court Summaries

The Court considered a writ of mandamus challenging district court orders denying summary judgment on a landowner’s contract claims following a settlement in a condemnation action. The Court held the district court improperly ruled there were no undisputed facts when it denied the Nevada Department of Transportation’s motion for summary judgment on a landowner’s contract claims.


Property And Contracts In Church Law, Reverend Jordan Hite 2017 St. John's University School of Law

Property And Contracts In Church Law, Reverend Jordan Hite

The Catholic Lawyer

No abstract provided.


Sharing Economy Inequality: How The Adoption Of Class Action Waivers In The Sharing Economy Presents A Threat To Racial Discrimination Claims, Caitlin Toto 2017 Boston College Law School

Sharing Economy Inequality: How The Adoption Of Class Action Waivers In The Sharing Economy Presents A Threat To Racial Discrimination Claims, Caitlin Toto

Boston College Law Review

In recent years, the sharing economy has pervaded the life of the consumer, challenging the regulatory and business status quo. Despite the pluralistic messages of many sharing economy companies, racial discrimination is a growing problem on peer-to-peer networks such as Uber and Airbnb. Victims of discrimination, however, have encountered an even greater opponent: class action waivers in arbitration agreements, which are omnipresent in sharing economy company contracts. Due to the inherent tie between class action and civil rights, racial discrimination claims in the sharing economy are held hostage by individual arbitration agreements. This Note argues that without action by Congress ...


Lewis V. Clarke, Summer L. Carmack 2017 Alexander Blewett III School of Law at the University of Montana

Lewis V. Clarke, Summer L. Carmack

Public Land and Resources Law Review

One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state ...


Cuando Otros Deciden Por Ti: La Eficiencia En La Intervención Judicial De Los Contratos Civiles, Diego Angulo Osorio 2017 ALACDE

Cuando Otros Deciden Por Ti: La Eficiencia En La Intervención Judicial De Los Contratos Civiles, Diego Angulo Osorio

The Latin American and Iberian Journal of Law and Economics

When the supply crosses with the acceptance of the contract, it is an optimal situation because the resources available, in theory, have been assigned efficiently and have been allocated to more valuable uses. However, this optimistic situation will not last forever; over time, it almost always affects the economic balance of the contract. The benefit or consideration becomes more valuable in comparison with the other, becoming too costly to comply with the contract, because the cost-benefit ratio was broken. How can the contractual balance be restored? Two paths are considered. On the one hand, judicialization, on the other renegotiation under ...


Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone 2017 Florida International University College of Law

Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone

Kerri Stone

No abstract provided.


Amending Corporate Charters And Bylaws, Albert H. Choi, Geeyoung Min 2017 University of Pennsylvania Law School

Amending Corporate Charters And Bylaws, Albert H. Choi, Geeyoung Min

Faculty Scholarship

Recently, courts have embraced the contractarian theory that corporate charters and bylaws constitute a “contract” between the shareholders and the corporation and have been more willing to uphold bylaws unilaterally adopted by the directors. This paper examines the contractarian theory by drawing a parallel between amending charters and bylaws, on the one hand, and amending contracts, on the other. In particular, the paper compares the right to unilaterally amend corporate bylaws with the right to unilaterally modify contract terms, and highlights how contract law imposes various limitations on the modifying party’s discretion. More generally, when the relationship of contracting ...


Sovereign Debt And Moral Hazard: The Role Of Collective Action And Contractual Ambiguity, Marcel Kahan, Shmuel Leshem 2017 New York University School of Law

Sovereign Debt And Moral Hazard: The Role Of Collective Action And Contractual Ambiguity, Marcel Kahan, Shmuel Leshem

New York University Public Law and Legal Theory Working Papers

The ambiguous phrasing of pari passu (equal treatment) clauses in sovereign debt contracts has long ba ed commentators. We show that in the presence of asymmetric information on a sovereign borrower’s ability to pay, an ambiguous pari passu clause gives rise to a collective action problem among creditors that can reduce sovereign moral hazard. By varying the clause ambiguity, parties can induce an (ex ante) optimal probability of costly renegotiation breakdown resulting from creditors’failure to coordinate. As information asymmetry decreases, a pari passu clause becomes a coarser instrument for configuring creditors’incentives and thereby resolving moral hazard.


Forum-Selection Provisions In Corporate “Contracts”, Marcel Kahan, Helen Hershkoff 2017 New York University School of Law

Forum-Selection Provisions In Corporate “Contracts”, Marcel Kahan, Helen Hershkoff

New York University Law and Economics Working Papers

We consider the emergent practice of including clauses in corporate certificates of incorporation or bylaws that specify an exclusive legal forum for lawsuits. According to their proponents and most courts that have considered the question, such forum-terms are, and should be, enforceable as contractual choice-of-forum provisions. We argue that treating corporate charter and bylaw forum-terms as a matter of ordinary contact doctrine is neither logical nor justified. Because charters and bylaws involve the state in ways that are at odds with private-ordering principles and because they entail only a limited form of “consent,” an analysis of enforceability must account for ...


Relational Contracts Of Adhesion, David A. Hoffman 2017 University of Pennsylvania Law School

Relational Contracts Of Adhesion, David A. Hoffman

Faculty Scholarship

Not all digital fine print exculpates liability: some exhorts users to perform before the consumer relationship has soured. We promise to choose strong passwords (and hold them private); to behave civilly on social networks; to refrain from streaming shows and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots). In short: consumers are apparently regulated by digital fine print, though it’s universally assumed we don’t read it, and even if we did, we’ll never be sued for failing to perform.

On reflection, this ordinary phenomenon is perplexing. Why would firms persist in deploying uncommunicative behavioral ...


Hefetz V. Beavor, 133 Nev. Adv. Op. 46 (July 6, 2017), Julia Barker 2017 University of Nevada, Las Vegas -- William S. Boyd School of Law

Hefetz V. Beavor, 133 Nev. Adv. Op. 46 (July 6, 2017), Julia Barker

Nevada Supreme Court Summaries

The Court determined that parties must timely assert the one-action rule as an affirmative defense in their response pleadings. If not, it is waived. As such, the District Court erred when it granted Respondent Beavor’s motion to dismiss pursuant to the one-action rule because he failed to raise that defense in a timely manner.


Does The Endowment Effect Prevail When Traders Act Strategically?, Stephan Tontrup 2017 NYU School of Law

Does The Endowment Effect Prevail When Traders Act Strategically?, Stephan Tontrup

New York University Law and Economics Working Papers

Trading is more than a personal valuation of own property. Traders try to anticipate the WTP potential buyers have for the good they want to sell. They do not focus on the value the entitlement has for them, their personal valuation is only a reservation price.

The law analyzes the Endowment Effect because it wants to protect gains from trade; most economic and psychological Endowment Effect studies by contrast are concerned with a dif-ferent question: They test theories of preference formation; unlike in trading behavior they focus the participants on their entitlement to demonstrate that valuation depends on owner-ship and ...


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