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Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes 2019 Selected Works

Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes

Wayne R. Barnes

Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to ...


Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes 2019 Selected Works

Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes

Wayne R. Barnes

Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to ...


Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes 2019 Texas Weslyan University School of Law

Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes

Wayne R. Barnes

No abstract provided.


Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh 2019 Texas A&M University School of Law

Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh

Nancy Welsh

Ultimately, this essay will conclude that a private, ad hoc dispute system design process did lead to the insertion of class action waivers in mandatory pre-dispute consumer arbitration clauses. In-house and outside counsel certainly played key roles in initiating this process, but it is unclear that any individual lawyers could claim credit or responsibility as "designers." The representatives of dispute resolution organizations, meanwhile, played supporting roles-as providers of information and as amici in Supreme Court litigation. The essay will consider whether dispute resolution professionals could have managed their role in the process differently-and if so, why they would have managed ...


Forgotten Cases: Worthen V. Thomas, David F. Forte 2019 Cleveland-Marshall College of Law

Forgotten Cases: Worthen V. Thomas, David F. Forte

David F. Forte

According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only after ...


Contract Governance In Small-World Networks: The Case Of The Maghribi Traders, Lisa Bernstein 2019 Northwestern Pritzker School of Law

Contract Governance In Small-World Networks: The Case Of The Maghribi Traders, Lisa Bernstein

Northwestern University Law Review

This Article revisits the best known example of successful private ordering in the economics literature: the Maghribi Jewish merchants who engaged in both local and long-distance trade across the Islamic Mediterranean in the eleventh century. Drawing on a case study of over 200 Maghribi merchant letters, it develops a network governance-based account of the way that private ordering might have supported exchange among the Maghribi traders with little or no reliance on the public legal system. The analysis reveals that a particular type of bridge-and-cluster configuration of ties among traders and trading centers--known as a “small-world network”—can have strong ...


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Survival Of The Trademark License: In Re Tempnology And Contract Rejection In Bankruptcy, Avery Minor 2019 Boston College Law School

Survival Of The Trademark License: In Re Tempnology And Contract Rejection In Bankruptcy, Avery Minor

Boston College Law Review

On January 12, 2018, the United States Court of Appeals for the First Circuit held, in In re Tempnology, that forcing specific performance of a trademark license after a contract rejection in a bankruptcy case would be contrary to the plain-language of Section 365(n) of the Bankruptcy Code and conflict with the goal of providing debtors with a “fresh start.” In so doing, the First Circuit joined the Fourth Circuit in a split with the Seventh Circuit, which has characterized a contract rejection as a breach in the context of non-bankruptcy law, therefore not extinguishing any trademark license rights ...


The Metastasization Of Mandatory Arbitration, Alexander J.S. Colvin 2019 Cornell University

The Metastasization Of Mandatory Arbitration, Alexander J.S. Colvin

Chicago-Kent Law Review

Mandatory arbitration procedures have expanded to become a common feature of American employment relations. This article presents the results of a new original survey examining the extent of mandatory arbitration, where it is most commonly used, and which employees it is most likely to affect. Overall, 53.9 percent of private sector business establishments, representing 56.2 percent of nonunion employees, have mandatory arbitration procedures. Larger employers are more likely to have adopted mandatory arbitration, as are workplaces with lower paid employees. Mandatory arbitration is particularly common in California, North Carolina, and Texas, but is widespread nationwide. Class action waivers ...


The "Art" Of Future Life: Rethinking Personal Injury Law For The Negligent Deprivation Of A Patient's Right To Procreation In The Age Of Assisted Reproductive Technologies, Erika N. Auger 2019 Chicago-Kent College of Law

The "Art" Of Future Life: Rethinking Personal Injury Law For The Negligent Deprivation Of A Patient's Right To Procreation In The Age Of Assisted Reproductive Technologies, Erika N. Auger

Chicago-Kent Law Review

No abstract provided.


A Humble Tribute To Professor Deborah Waire Post Upon Her Retirement, Deborah Zalesne 2019 Touro College Jacob D. Fuchsberg Law Center

A Humble Tribute To Professor Deborah Waire Post Upon Her Retirement, Deborah Zalesne

Journal of Race, Gender, and Ethnicity

No abstract provided.


Hushing Contracts, David A. Hoffman, Eric Lampmann 2019 University of Pennsylvania Law School

Hushing Contracts, David A. Hoffman, Eric Lampmann

Faculty Scholarship at Penn Law

The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, has attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy ...


The Duty Dilemma: When The Duty To Mitigate Damages And The Duty To Preserve Evidence Collide, Collen L. Steffen 2019 University of Oklahoma College of Law

The Duty Dilemma: When The Duty To Mitigate Damages And The Duty To Preserve Evidence Collide, Collen L. Steffen

Oklahoma Law Review

No abstract provided.


From The Courtroom To The Classroom: How A Litigator Became A Transactional Drafting Professor, Amy Bauer 2019 University of Colorado Law School

From The Courtroom To The Classroom: How A Litigator Became A Transactional Drafting Professor, Amy Bauer

Articles

No abstract provided.


Contracts, Constitutions, And Getting The Interpretation-Construction Distinction Right, Gregory Klass 2019 Georgetown University Law Center

Contracts, Constitutions, And Getting The Interpretation-Construction Distinction Right, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Interpretation determines the meaning of a legal actor’s words or other significant acts, construction their legal effect. Using contract law and then two nineteenth century theories of constitutional interpretation as examples, this Article advances four claims about interpretation, construction, and the relationship between the two. First, many theorists, following Francis Lieber, assume that rules of construction apply only when interpretation runs out, such as when a text’s meaning is ambiguous or does not address an issue. In fact, a rule of construction is always necessary to determine a legal speech act’s effect, including when its meaning is ...


Curb Your Enthusiasm: The Real Implications Of Blockchain In The Legal Industry, Justin Evans 2018 Pepperdine University

Curb Your Enthusiasm: The Real Implications Of Blockchain In The Legal Industry, Justin Evans

The Journal of Business, Entrepreneurship & the Law

No abstract provided.


Essentials Of A Publication Agreement, Stephen Wolfson, Mariann Burright 2018 University of Georgia School of Law Library

Essentials Of A Publication Agreement, Stephen Wolfson, Mariann Burright

Presentations

This session will focus on authors' rights and publishing contracts. When academic publishers agree to publish academic works, they require the authors to sign agreements before doing so. In the past, these “agreements” – contracts, by another name – often have contained provisions that primarily benefit the publishers, including assigning intellectual property rights in the works to the publishers and limiting authors’ abilities to use their works after transferring their rights. Faculty authors often ask librarians for their guidance on how to read and negotiate publication agreements. As such, this session will discuss common provisions found in publishing contracts to help clarify ...


Gst Contract Review, Vincent OOI 2018 Singapore Management University

Gst Contract Review, Vincent Ooi

Research Collection School Of Law

GST contract review—overviewTax lawyers are often asked to review a commercial contracts from a Goods Services Tax (“GST”) perspec-tive. This note focuses on contracts for the supply of services or goods, and not a contract for the sale and purchase of a business.Understanding the GST consequences of the contractThe contract that you are asked to review will usually contain a GST clause, but it is insufficient to look only at that clause. As further explained in Practice Note: How to review a commercial contract for GST purposes, you should also review the whole contract so that you can ...


Lady Justice Cannot Hear Your Prayers, Deborah Ogali 2018 Fordham University School of Law

Lady Justice Cannot Hear Your Prayers, Deborah Ogali

Fordham Law Review

The Islamic finance industry continues to grow quickly as the appetite for everything, from Sharia-compliant home mortgages and car loans to sophisticated financial products, increases. This growth has triggered an interest in sukuk, bond-like financial instruments. And while the international market for sukuk has long been dominated by foreign issuers and English law, the attraction of a niche market compatible with U.S. federal and international securities laws may propel increased participation by U.S. issuers and investors who wish to transact under U.S. federal and state laws. As with all Islamic financial products, sukuk transactions inherently pose a ...


Reversing The Reliance Revolution In Contract, Eric Alden 2018 University of Washington School of Law

Reversing The Reliance Revolution In Contract, Eric Alden

Washington Law Review

During the past century, leading American academics have attempted to rewrite in radically altered form the theoretical foundation of liability in contract. In derogation of the historical bases for contractual liability in Anglo-American law, namely voluntary mutual exchange and “formal” contract, these intellectual revolutionaries desire to impose strict liability in contract on the basis of unilateral, unbargained-for reliance. The centerpiece of this revisionist effort has been the novel and artificial doctrine of “promissory estoppel,” first advanced by Williston and Corbin in the Restatement of the Law of Contracts published in 1932. The invention of this doctrine has been accompanied by ...


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