Contracts Commons^™

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Pepperdine Dispute Resolution Law Journal

No abstract provided.

“A Waiver Of The Trial Itself”: The Constitutional Threats Of Extending United States V. Mezzanatto And Contractual Solutions, Cherylann M. Pasha

Boston College Law Review

Prosecutors and criminal defendants resolve most cases through plea agreements. Often these agreements contain waivers of Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410, which prevent the admission of statements made during plea discussions into evidence at criminal trial. In 1995, the U.S. Supreme Court in United States v. Mezzanatto held that such waivers are enforceable for impeachment purposes. Numerous U.S. Circuit Courts of Appeals have extended this holding by permitting the use of these statements for the prosecution’s rebuttal and case-in-chief. This Note asserts that the extension of Mezzanatto threatens the ...

Hatton V. Falcon Coal: Breach Of Contract Or Trespass To Realty?, Kelly J. Hobbs

Journal of Natural Resources & Environmental Law

No abstract provided.

Stealth Governance: Shareholder Agreements And Private Ordering, Jill E. Fisch

Faculty Scholarship at Penn Law

Corporate law has embraced private ordering -- tailoring a firm’s corporate governance to meet its individual needs. Firms are increasingly adopting firm-specific governance through dual-class voting structures, forum selection provisions and tailored limitations on the duty of loyalty. Courts have accepted these provisions as consistent with the contractual theory of the firm, and statutes, in many cases, explicitly endorse their use. Commentators too support private ordering for its capacity to facilitate innovation and enhance efficiency.

Private ordering typically occurs through firm-specific charter and bylaw provisions. VC-funded startups, however, frequently use an alternative tool – shareholder agreements. These agreements, which have largely ...

Antitrust Policy Toward Patent Licensing: Why Negotiation Matters, Daniel F. Spulber

Minnesota Journal of Law, Science & Technology

No abstract provided.

The Idea Of Contract In Japanese Law And Culture, Sara Landini

Japanese Society and Culture

The paper deals with contract law in Japan in the perspective of law and literature in order to better understand some basic concepts that actually are not a translation of western concept like good faith.

Leases As Forms, David A. Hoffman, Anton Strezhnev

Faculty Scholarship at Penn Law

We offer the first large scale descriptive study of residential leases, based on a dataset of ~170,000 residential leases filed in support of over ~200,000 Philadelphia eviction proceedings from 2005 through 2019. These leases are highly likely to contain unenforceable terms, and their pro-landlord tilt has increased sharply over time. Matching leases with individual tenant characteristics, we show that unlawful terms are surprisingly likely to be associated with more expensive leaseholds in richer, whiter parts of the city. This result is linked to landlords' growing adoption of shared forms, originally created by non-profit landlord associations, and more recently ...

The Contract Interpretation Policy Debate: A Primer, Joshua M. Silverstein

Faculty Scholarship

Contract interpretation is one of the most significant areas of commercial law. As a result, there is an extensive academic and judicial debate over the optimal method for construing agreements. Throughout this exchange, scholars and courts have advanced a wide array of conceptual, theoretical, and empirical arguments in support of the two primary schools of interpretation— textualism and contextualism—as well as various hybrid positions. This Essay is intended to serve as a primer on those arguments.

Libor Phaseout: Litigation Is Coming, John Michael Neubert

Michigan Business & Entrepreneurial Law Review

This paper will explore the different steps market participants should take to make sure they are prepared when LIBOR is phased out in December 2021. Part I will focus on the actions market participants should do before going into negotiations that can increase their potential to reach a consensual agreement. Part II will explore what financial firms should be prepared for during the negotiation process and what claims may arise when no agreement is reached. The decision for how to handle any LIBOR-linked financial instrument in their portfolio should be left to the discretion of market participants themselves. This paper ...

Leverage, Randy J. Kozel

Boston College Law Review

Sometimes government operates by inducement rather than order. Congress distributes money to the states. A state grants funds to nonprofit organizations. An administrative agency offers wages and professional opportunities to its staff. A high school provides instruction to its students. In each situation, the government furnishes something of value. And in each situation, it asks something in return—whether implementation of a government program, forbearance from activities deemed inconsistent with operational goals, conduct in pursuit of an employment mission, or compliance with standards of academic discipline. Though they arise in different contexts, these varied forms of government action present the ...

When The Rule Invites The Exceptions: How The Arizona Supreme Court's Attempt To Clarify The Economic Loss Rule In Flagstaff Affordable Housing Has Led To Discontinuity In Subsequent Application, Grant H. Frazier, Justin J. Larson

Barry Law Review

No abstract provided.

Accountability For Employers Or Independence For Contractors? Accomplishing Ab5’S Labor Classification Goals In The Gig Economy, Chelsea Rauch

Seattle University Law Review

U.S. employment law traditionally classifies workers as either employees or independent contractors; each worker under this traditional legal rubric can only be classified as one or the other—there can be no ambiguity or overlap. An employee is generally defined as “a person hired for a regular, continuous period to perform work for an employer who maintains control over both the service details and the final product.” In contrast, an independent contractor is generally defined as “a worker who performs services for others, usually under contract, while at the same time retaining economic independence and complete control over both ...

A Formalist Theory Of Contract Law Adjudication, Felipe Jiménez

Utah Law Review

Formalism has a bad name. It is often seen as a naïve and unsophisticated approach to the adjudication of legal disputes. This negative view of formalism is widespread in American legal culture and has been particularly influential in contract law. This Article challenges this prevailing view and argues that a formalist theory of adjudication is the best approach to resolve contractual disputes.

The argument of this Article starts from the assumption that contract law is not morally justified because of its enforcement of promissory rights or some other dimension of interpersonal morality. Instead, like contemporary law and economics, this Article ...

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 ...

The Market As Negotiation, Rebecca E. Hollander-Blumoff, Matthew T. Bodie

All Faculty Scholarship

Our economic system counts on markets to allocate most of our societal resources. The law often treats markets as discrete entities, with a native intelligence and structure that provides clear answers to questions about prices and terms. In reality, of course, markets are much messier—they are agglomerations of negotiations by individual parties. Despite theoretical and empirical work on markets and on negotiation, legal scholars have largely overlooked the connection between the two areas in considering how markets are constructed and regulated.

This Article brings together scholarship in law, economics, sociology, and psychology to better understand the role that negotiation ...

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

Articles

The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction ...

The Limits To Freedom To Contract, Jia Xin Tan

Singapore Law Journal (Lexicon)

In line with the principle of freedom to contract, the courts will give effect to the intention of the parties in creating their contract, and also hold them to their duty to perform their primary obligations under such contract. However, where the contracting parties agree to vest certain decision-making powers to a specific (non-judicial) entity, to what extent may a court review the exercise of powers by such entity?

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Intractable Production Problem In Contract Law, Robert E. Scott, Alan Schwartz

Faculty Scholarship

Contract law has long suffered from an institutional problem: What legal institution can best create an efficient law for commercial contracts? Until the early 20th century, the vast majority of contract law was created by common law courts. The common law created contract default rules that possessed three key properties: They solved contracting problems (i) that parties in very diverse contexts faced, (ii) as the parties would have solved them had they contracted about the matter, and (iii) the defaults were updated as commerce changed. But common law courts are slow: Default rules require years to take form. In response ...

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each ...