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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 ...


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.


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 ...


Interpretation And Construction In Contract Law, Gregory Klass 2017 Georgetown University Law Center

Interpretation And Construction In Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

In their technical senses, “interpretation” refers to the search for a legal text’s meaning, “construction” to the determination of its legal effect. Although scholars have long recognized the difference between the two activities, today many do not attend to it, and the relationship between them remains understudied. An adequate account of the interpretation-construction distinction begins with the concepts’ history, and the eventual recognition that interpretation and construction are complementary activities. This lays the groundwork for investigating the interaction between them. Interpretation always precedes construction in the process of legal exposition. But because contract law recognizes multiple types of meaning ...


Contractual Arbitrage, Stephen J. Choi, Mitu Gulati, Robert E. Scott 2017 Duke Law School

Contractual Arbitrage, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Contracts are inevitably incomplete. And standard-form or boilerplate commercial contracts are especially likely to be incomplete because they are approximations; they are not tailored to the needs of particular deals. Not only do these contracts contain gaps but, in an attempt to reduce incompleteness, they often contain clauses with vague or ambiguous terms. Terms with indeterminate meaning present opportunities for strategic behavior well after a contract has been concluded. This linguistic uncertainty in standard form commercial contracts creates an opportunity for “contractual arbitrage”: parties may argue, ex post, that the uncertainties in expression mean something that the contracting parties, ex ...


Sovereign Debt And The “Contracts Matter” Hypothesis, W. Mark C. Weidemaier, Mitu Gulati 2017 Duke Law School

Sovereign Debt And The “Contracts Matter” Hypothesis, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The academic literature on sovereign debt largely assumes that law has little role to play. Indeed, the primary question addressed by the literature is why sovereigns repay at all given the irrelevance of legal enforcement. But if law, and specifically contract law, does not matter, how to explain the fact that sovereign loans involve detailed contracts, expensive lawyers, and frequent litigation? This Essay makes the case that contract design matters even in a world where sovereign borrowers are hard (but not impossible) to sue. We identify a number of gaps in the research that warrant further investigation.


Differing Perceptions? Market Practice And The Evolution Of Foreign Sovereign Immunity, W. Mark C. Weidemaier, Mitu Gulati 2017 Duke Law School

Differing Perceptions? Market Practice And The Evolution Of Foreign Sovereign Immunity, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The 20th century witnessed a transformative, “tectonic” shift in international law, from “absolute” to “restrictive” theories of sovereign immunity. As conventionally understood, however, this dramatic transformation represented only a shift in the default rule. Under absolute immunity, national courts could not hear lawsuits and enforce judgments against a foreign sovereign without its consent. Under restrictive immunity, foreign sovereigns were presumptively not immune when they engaged in commercial acts. We demonstrate that market practices undermine this conventional understanding. Using an extensive, two-century data set of contracts between foreign governments and private creditors, we show that contracting parties have long treated absolute ...


The Pdvsa Pricing Puzzle, Paolo Colla, Anna Gelpern, Mitu Gulati 2017 Duke Law School

The Pdvsa Pricing Puzzle, Paolo Colla, Anna Gelpern, Mitu Gulati

Faculty Scholarship

Market reports in the summer of 2016 suggest that Venezuela is on the brink of default on upwards of $65 billion in debt. That debt comprises of bonds issued directly by the sovereign and those issued by the state-owned oil company PDVSA. Based on the bond contracts and other legal factors, it is not clear which of these two categories of bonds would fare better in the event of a restructuring. However, market observers are convinced — and we agree — that legal and contractual differences would likely impact the payouts on the bonds if Venezuela defaults. Using a comparison of recent ...


What We Buy When We "Buy Now", Aaron Perzanowski, Chris Jay Hoofnagle 2016 Case Western Reserve University

What We Buy When We "Buy Now", Aaron Perzanowski, Chris Jay Hoofnagle

Aaron K. Perzanowski

Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like “buy now,” “own,” and “purchase.” Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent ...


Freedom To Mislead: The Fictitious Freedom To Contract Around Fraud Under Delaware Law, Hao Jiang 2016 Selected Works

Freedom To Mislead: The Fictitious Freedom To Contract Around Fraud Under Delaware Law, Hao Jiang

Dr. Hao Jiang

In the past 15 years, Delaware courts seem to have created a rule that allowed sophisticated parties to contract around fraud by using an unambiguous disclaimer and integration clause. Supposedly, an extra-contractual fraud claim would be dismissed had there been an unambiguous disclaimer. However, a survey of Delaware cases tells a different story. When dismissing the fraud claims, courts has either found that there was no justifiable reliance to establish a fraud claim or they were convinced that there was no fraud. The cases would have been decided the same without the disclaimer.  


Marquetta Carzell Et Al., Order On Defendants' Motion To Dismiss, Or In The Alternative For Judgment On The Pleadings, John J. Goger 2016 Fulton County Superior Court, Judge

Marquetta Carzell Et Al., Order On Defendants' Motion To Dismiss, Or In The Alternative For Judgment On The Pleadings, John J. Goger

Georgia Business Court Opinions

No abstract provided.


Purchasing Power, Llc Order On Bluestem Brands, Inc.'S Motion To Dismiss The Tortious Interference And Unjust Enrichment Claims And Plaintiff's Cross-Motion To Strike References To Vacated Summary Judgment Order, Melvin K. Westmoreland 2016 Fulton County Superior Court, Judge

Purchasing Power, Llc Order On Bluestem Brands, Inc.'S Motion To Dismiss The Tortious Interference And Unjust Enrichment Claims And Plaintiff's Cross-Motion To Strike References To Vacated Summary Judgment Order, Melvin K. Westmoreland

Georgia Business Court Opinions

No abstract provided.


Dong Feng Fang Et Al. Order Denying Plaintiffs' Motion For Partial Summary Judgment As To Liability And Compensatory Damages, Melvin K. Westmoreland 2016 Fulton County Superior Court, Judge

Dong Feng Fang Et Al. Order Denying Plaintiffs' Motion For Partial Summary Judgment As To Liability And Compensatory Damages, Melvin K. Westmoreland

Georgia Business Court Opinions

No abstract provided.


Newsroom: Guiding Startups Through Legal Pickles 11-14-2016, Jill Rodrigues, Roger Williams University School of Law 2016 Roger Williams University

Newsroom: Guiding Startups Through Legal Pickles 11-14-2016, Jill Rodrigues, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


The Law Of Contract And The Concept Of Change: Public And Private Attempts To Regulate Modification, Waiver, And Estoppel, David V. Snyder 2016 Indiana University School of Law - Bloomington

The Law Of Contract And The Concept Of Change: Public And Private Attempts To Regulate Modification, Waiver, And Estoppel, David V. Snyder

David Snyder

This article argues that contractual change is inherently problematic because contract and change are fundamentally antithetical. Because change is inevitable, however, the law of contract attempts to regulate the effect of change. These attempts are divided into two realms: public regulation, including the preexisting duty rule and its substitutes, and private regulation, including contractual "no oral modification" and "no oral waiver" clauses. The article criticizes not only the preexisting duty rule but also the duress and good faith tests that have been suggested as substitutes. Instead, the article proposes a "coercion" test, which is stated in detail and which is ...


The Diminishing Returns Of Incentive Pay In Executive Compensation Contracts, Gregg Polsky, Andrew Lund 2016 University of Georgia School of Law

The Diminishing Returns Of Incentive Pay In Executive Compensation Contracts, Gregg Polsky, Andrew Lund

Andrew Lund

For the past 30 years, the conventional wisdom has been that executive compensation packages should include very large proportions of incentive pay. This incentive pay orthodoxy has become so firmly entrenched that the current debates about executive compensation simply take it as a given. We argue, however, that in light of evolving corporate governance mechanisms, the marginal net benefit of incentive-laden pay packages is both smaller than appreciated and getting smaller over time. As a result, the assumption that higher proportions of incentive pay are beneficial is no longer warranted.

A number of corporate governance mechanisms have evolved to duplicate ...


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