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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 ...


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 ...


Interpreting Contracts In A Regulatory State, Aditi Bagchi 2020 Fordham University Law School

Interpreting Contracts In A Regulatory State, Aditi Bagchi

Faculty Scholarship

Some scholars would limit courts to the text of written agreements when interpreting contracts on the theory that parties meant what they said, and said what they meant. Other scholars would have courts take into account the factual context surrounding contract formation. Both sides of this debate assume that contract interpretation is largely limited to reconstructing contracting parties’ intentions.

This assumption is mistaken. Since the overturning of Lochner v New York, contracting parties no longer have exclusive authority over contracts. State authority to regulate contract came at the expense of unbridled private authority. A more limited conception of contracting parties ...


Legal Strategies For Reining In "Unconscionable" Prices For Prescription Drugs, Michelle M. Mello, Rebecca E. Wolitz 2020 Northwestern Pritzker School of Law

Legal Strategies For Reining In "Unconscionable" Prices For Prescription Drugs, Michelle M. Mello, Rebecca E. Wolitz

Northwestern University Law Review

Policy discussions about the affordability of prescription drugs in the United States are infused with the theme that drug prices are unconscionably high. Many of the policy interventions proposed in Congress, the White House, and the states adopt this frame, authorizing regulatory action when prices exceed particular thresholds or otherwise constitute “price gouging” on the part of drug companies. Unsurprisingly, such initiatives have prompted legal challenges by the biopharmaceutical industry. State laws in particular are vulnerable to challenges on a number of grounds. In this Article, we focus on one avenue of challenge that has received little scholarly attention in ...


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

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

Faculty Scholarship

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 ...


Promise, Agreement, Contract, Gregory Klass 2020 Georgetown University Law Center

Promise, Agreement, Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

It is natural to wonder about contract law’s relationship to the morality of promises and agreements. This Chapter distinguishes two ways to conceive of that relationship. First, parties’ agreement-based moral obligations might figure into the explanation of contract law—into an account of its functions or justifications. Contract law might serve to enforce parties’ first-order performance obligations, to enforce second-order remedial obligations, to support the culture of making and keeping agreements more generally, or at least to do no harm to that culture or to people’s ability to act morally. Second, contract can be understood as the legal ...


Identifying Fundamental Breach Of Article 25 And 49 Of The Cisg: The Good Faith Duty Of Collaborative Efforts To Cure Defects - Make The Parties Draw A Line In The Sand Of Substantiality, Yasutoshi Ishida 2020 Himeji-Dokkyo University

Identifying Fundamental Breach Of Article 25 And 49 Of The Cisg: The Good Faith Duty Of Collaborative Efforts To Cure Defects - Make The Parties Draw A Line In The Sand Of Substantiality, Yasutoshi Ishida

Michigan Journal of International Law

Article 49(1) of the CISG allows buyers of international goods to avoid their sales contracts “if the failure by the seller to perform . . . amounts to a fundamental breach.” A breach is “fundamental,” as defined by CISG article 25, when it causes the buyer such detriment “as substantially to deprive him of what he is entitled to expect under the contract.” This definition is followed by the so-called “foreseeability test,” an “unless” clause that excepts the situation where “the party in breach did not foresee[,] and a reasonable person of the same kind in the same circumstances would not have ...


Anticipating Venezuela’S Debt Crisis: Hidden Holdouts And The Problem Of Pricing Collective Action Clauses, Robert E. Scott, Stephen J. Choi, Mitu Gulati 2020 Duke Law School

Anticipating Venezuela’S Debt Crisis: Hidden Holdouts And The Problem Of Pricing Collective Action Clauses, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

A creditor who asks for stronger enforcement rights upon its debtor’s default will rationally accept a lower interest rate reflecting the greater expected recovery the exercise of those rights provides. Over a dozen studies, however, have failed to document this basic relationship in the context of the collective action clause, a key provision in sovereign bonds. We conjecture that this failure is because enforcing the rights in question requires collective decision-making among anonymous creditors with different interests, impeding market predictions regarding future price effects. The pricing of rights that require collective enforcement thus turns on whether the market observes ...


Holding Company's Liability For Inducing Its Subsidiary's Contractual Breach, Pearlie M. C. KOH 2020 Singapore Management University

Holding Company's Liability For Inducing Its Subsidiary's Contractual Breach, Pearlie M. C. Koh

Research Collection School Of Law

No abstract provided.


On The Proposed Legalization Of Commercial Surrogacy: I Thought We Had Abolished The Sale Of Human Beings, Phyllis Chesler 2020 Phyllis Chesler Organization

On The Proposed Legalization Of Commercial Surrogacy: I Thought We Had Abolished The Sale Of Human Beings, Phyllis Chesler

Dignity: A Journal on Sexual Exploitation and Violence

No abstract provided.


New Prime Inc. V. Oliveira: Putting The Wheels Back On The Faa’S Section 1 Exemption For Transportation Workers, Reed C. Trechter 2020 University of Oklahoma College of Law

New Prime Inc. V. Oliveira: Putting The Wheels Back On The Faa’S Section 1 Exemption For Transportation Workers, Reed C. Trechter

Oklahoma Law Review

No abstract provided.


The Mexican Petroleum License Of 2013: A Step To The Past To Bring Mexico Into The Present And The Grounds For An Uncertain Future, Guillermo Garcia Sanchez 2019 Texas A&M University School of Law

The Mexican Petroleum License Of 2013: A Step To The Past To Bring Mexico Into The Present And The Grounds For An Uncertain Future, Guillermo Garcia Sanchez

Guillermo J. Garcia Sanchez

Petroleum in Mexico is not only a resource that has been used and abused by the State to finance its operations; petroleum runs in the veins of its national identity—oil rigs, barrels, and the State-owned company’s eagle are present in monuments across the nation and featured on coins and circulation bills.Official history books tell the story of how the Mexican revolution was fought partly to regain control of the hydrocarbons sector, which in 1910 was dominated by international oil companies. Consequently, to understand the legal nature of the Mexican petroleum license, one needs to review the history ...


Employee Mobility And The Low Wage Worker: The Illegitimate Use Of Non-Compete Agreements, Jacqueline A. Carosa 2019 Buffalo Law Review

Employee Mobility And The Low Wage Worker: The Illegitimate Use Of Non-Compete Agreements, Jacqueline A. Carosa

The Docket

No abstract provided.


The Duty To Read The Unreadable, Uri Benoliel, Shmuel I. Becher 2019 College of Law and Business

The Duty To Read The Unreadable, Uri Benoliel, Shmuel I. Becher

Boston College Law Review

The duty to read doctrine is a well-recognized building block of U.S. contract law. This doctrine holds contracting parties responsible for the written terms of their contracts, whether or not they actually read them. The application of this duty is especially tricky in the context of consumer contracts, which consumers generally do not read. Although courts routinely impose this doctrine on consumers, its application to consumer contracts is one-sided. Whereas consumers are expected and presumed to read their contracts, suppliers do not generally have a duty to draft readable contracts. This asymmetry creates a serious public policy challenge: consumers ...


Contractual Communication, Lawrence B. Solum 2019 Georgetown University Law Center

Contractual Communication, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinct “situations of contractual communication” and interrogating Kar and Radin’s Shared Meaning Analysis. Part III interrogates Kar and Radin’s distinction between “contract” and “pseudo-contract.” The conclusion of the ...


One-Legged Contracting, Ian Ayres, Gregory Klass 2019 Yale Law School

One-Legged Contracting, Ian Ayres, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This response to Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019), makes three broad points. It criticizes as arbitrary and essentializing Kar and Radin’s insistence of shared meaning as the core of contracting. It argues that even if shared meaning were the sine qua non of contracting, their proposal fails to achieve it because it does not assure that the terms would be cooperatively communicated. And it argues that their proposed enforcement standard would in practice severely limit freedom of contract and likely reduce consumer welfare. There is a good ...


Contracts Formed By Software: When Things Go Wrong, Vincent OOI 2019 Singapore Management University

Contracts Formed By Software: When Things Go Wrong, Vincent Ooi

Research Collection School Of Law

The use of software in contract formation is likely to become increasingly pervasive in light of the digital economy. Consequently, software can also be expected to exhibit greater autonomy and take on increasingly complex transactions and contract negotiations. It is important that a legally coherent, fair, certain and economically justified approach be taken to regulate such contracts.A ‘contracting problem’ arises when software is used to autonomously enter into contracts without human input. The formation of a valid contract requires, inter alia, an agreement between two or more parties, where each party exhibits an objective intention to be legally bound ...


Cacs And Doorknobs, Anna Gelpern, Jeromin Zettelmeyer 2019 Georgetown University Law Center

Cacs And Doorknobs, Anna Gelpern, Jeromin Zettelmeyer

Georgetown Law Faculty Publications and Other Works

In response to debt crises, policy makers often feature Collective Action Clauses (CACs) in sovereign bonds among the pillars of international financial architecture. However, the content of official pronouncements about CACs suggests that CACs are more like doorknobs: a process tool with limited impact on the incidence or ultimate outcome of a debt restructuring. We ask whether CACs are welfare improving and, if so, whether they are pillars or doorknobs. The history of CACs in corporate debt suggests that CACs can be good, bad or unimportant depending on their vulnerability to abuse and the available alternatives, including bankruptcy and debt ...


Getting What You Bargained For: Avoiding Legal Uncertainty In Survival Clauses For A Seller's Representations And Warranties In M&A Purchase Agreements, Will Pugh 2019 Pepperdine University

Getting What You Bargained For: Avoiding Legal Uncertainty In Survival Clauses For A Seller's Representations And Warranties In M&A Purchase Agreements, Will Pugh

The Journal of Business, Entrepreneurship & the Law

This note will examine the variables that effect the way that courts may limit parties’ contractual freedom to shorten or lengthen statutes of limitation. It will describe the legal levers that determine the applicable survival period and suggest ways that parties can reduce legal uncertainty around the “basket” of provisions including reps, warranties, survival, and indemnification periods. One key detail examined by this note is “borrowing statutes ”that could operate to import another state’s controlling statute. Additionally, this note will discuss ways in which the contractual right to indemnification for breached reps and warranties is a substantive right that ...


The Fatal Leviathan: A Hayekian Perspective Of Lex Mercatoria In Civil Law Countries, Fabio Núñez del Prado Ch. 2019 Yale Law School

The Fatal Leviathan: A Hayekian Perspective Of Lex Mercatoria In Civil Law Countries, Fabio Núñez Del Prado Ch.

Pace International Law Review

Who should create default commercial rules? Should they be created in a constructivist way or should they be created rather through a spontaneous order? Should Kelsen’s positivism prevail in commercial law? Drawing on diverse libertarian literature, I will argue that, since courts do not play a dominant role in civil law countries and, more importantly, do not set precedents, default commercial rules should not be created by the legislator, but through the Lex Mercatoria.



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