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In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue 2017 University of Pennsylvania Law School

In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue

Faculty Scholarship

For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. The Restatement of the Law Liability Insurance is the American Law Institute’s first effort to “restate” the common law governing such liability insurance policies, and we are the reporters. In a recent essay funded by the insurance industry, Yale Law Professor George Priest launched a strident critique of the Restatement project, arguing that the rules adopted in the Restatement:

(a) are radically contrary to existing case law,

(b) have a naïve “pro-policyholder” bias that ignores basic economic ...


Contract Consideration And Behavior, David A. Hoffman, Zev. J. Eigen 2017 University of Pennsylvania Law School

Contract Consideration And Behavior, David A. Hoffman, Zev. J. Eigen

Faculty Scholarship

Contract recitals are ubiquitous. Yet, we have a thin understanding of how individuals behave with respect to these doctrinally important relics. Most jurists follow Lon Fuller in concluding that when read, contract recitals accomplish their purpose: to caution against inconsiderate contractual obligation. Notwithstanding the foundational role that this assumption has played in doctrinal and theoretical debates, it has not been tested. This Article offers what we believe to be the first experimental evidence of the effects of formal recitals of contract obligation — and, importantly too, disclaimers of contractual obligation — on individual behavior. In a series of online experiments, we found ...


Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr. 2017 University of California - Berkeley

Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr.

Faculty Scholarship

This article provides a framework for analyzing side agreements in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by one party to remain silent – to waive some procedural right they would otherwise have under the Bankruptcy Code – at potentially crucial points in the reorganization process.

Using simplified examples, we show that side agreements create benefits in some instances, but parties to a side agreement may have incentive to contract for specific performance or excessive stipulated damages that impose negative externalities on non-parties to the agreement. A promise not to ...


Security Interests In Deposit Accounts, Securities Accounts, And Commodity Accounts: Correcting Article 9’S Confusion Of Contract And Property, Thomas E. Plank 2017 University of Tennessee College of Law

Security Interests In Deposit Accounts, Securities Accounts, And Commodity Accounts: Correcting Article 9’S Confusion Of Contract And Property, Thomas E. Plank

Oklahoma Law Review

No abstract provided.


Contracts, Causation, And Clarity, Daniel P. O'Gorman 2017 Barry University

Contracts, Causation, And Clarity, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.


Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael J. Yelnosky 2017 Roger Williams University School of Law

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael J. Yelnosky

Roger Williams University Law Review

No abstract provided.


Disgorgement Of Defendant's Gains From "Opportunistic" Breach Of Contract: Its Fit In Rhode Island, Kelsey A. Hayward 2017 J.D. 2018, Roger Williams University School of Law

Disgorgement Of Defendant's Gains From "Opportunistic" Breach Of Contract: Its Fit In Rhode Island, Kelsey A. Hayward

Roger Williams University Law Review

No abstract provided.


2016 Survey Of Rhode Island Law: Cases And Public Laws Of Note, 2017 Roger Williams University

2016 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.


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 ...


Commercial Creations: The Role Of End User License Agreements In Controlling The Exploitation Of User Generated Content, 16 J. Marshall Rev. Intell. Prop. L. 382 (2017), Neha Ahuja 2017 John Marshall Law School

Commercial Creations: The Role Of End User License Agreements In Controlling The Exploitation Of User Generated Content, 16 J. Marshall Rev. Intell. Prop. L. 382 (2017), Neha Ahuja

The John Marshall Review of Intellectual Property Law

This article considers the current licensing regime used to control the exploitation of copyright protected works within the online interactive entertainment sector—particularly virtual worlds including multiplayer online games—to further author new copyrightable works. This article aims to identify the gaps that have arisen on account of the nature of these subsequently authored works and the potential for their exploitation under the said licensing regime. Users and the proprietors of virtual worlds often end up in conflict over the monetization and commercialization of user generated content on account of contradictory yet overlapping rights created by copyright law when controlled ...


My Favorite Case To Teach: A Literal “Gateway” For Students To Learn Contract Formation, Contract Terms, And Legal Realism, Daniel Keating 2017 Washington University School of Law

My Favorite Case To Teach: A Literal “Gateway” For Students To Learn Contract Formation, Contract Terms, And Legal Realism, Daniel Keating

Washington University Journal of Law & Policy

This Essay explains the continued relevance of the issues discussed in Hill v. Gateway 2000, Inc. twenty years later. Keating describes his approach to teaching the case in his classroom, highlighting the broad and narrow issues under Article 2 of the Uniform Commercial Code implicated by the underlying facts. Keating disagrees with the outcome of the case, but praises its value as a teaching tool for sales contract formation and broader policy issues in the legal system.


Bsl Holdings, Llc Et Al., Order On Defendants' Motions To Dismiss And Motions For More Definite Statement, Elizabeth E. Long 2017 Fulton County Superior Court, Judge

Bsl Holdings, Llc Et Al., Order On Defendants' Motions To Dismiss And Motions For More Definite Statement, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.


The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass 2017 Georgetown University Law Center

The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Moralists have long criticized the theory of efficient breach for its advocacy of promise breaking. But a fully developed theory of efficient breach has an internal morality of its own. It argues that sophisticated parties contract for efficient breach, which in the long run maximizes everyone’s welfare. And the theory marks some breaches—those that are opportunistic, obstructive, or otherwise inefficient—as wrongs that the law should deter, as transgressions that should not be priced but punished. That internal morality, however, does not excuse the theory from moral scrutiny. An extended comparison to Jean Renoir’s 1939 film, La ...


Computer Systems Fraud - Computer Systems Fraud In The Era Of Big Data And Ehrs, John Sepulveda 2017 Touro College Jacob D. Fuchsberg Law Center

Computer Systems Fraud - Computer Systems Fraud In The Era Of Big Data And Ehrs, John Sepulveda

Touro Law Review

No abstract provided.


The Importance Of Being Standard, Anna Gelpern 2017 Georgetown University Law Center

The Importance Of Being Standard, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Contract standardisation in the sovereign debt market saves time and money in preparing documents and endows widely-used terms with a shared public meaning, which in turn saves investors the costs of acquiring information, facilitates secondary market trading and reduces the scope for mistakes in the judicial interpretation of contract terms. Sovereign debt issuers and investors claim to value standardisation and list it as an important contractual objective. Issuers generally insist that their bond contracts are standard and reflect market practice. Variations from past practice and market norm must be explained in disclosure documents and through market outreach. Standardisation is not ...


In Pursuit Of Good & Gold: Data Observations Of Employee Ownership & Impact Investment, Christopher Geczy, Jessica S. Jeffers, David K. Musto, Anne M. Tucker 2017 University of Pennsylvania Wharton School

In Pursuit Of Good & Gold: Data Observations Of Employee Ownership & Impact Investment, Christopher Geczy, Jessica S. Jeffers, David K. Musto, Anne M. Tucker

Faculty Publications By Year

A startup's path to self-sustaining profitability is risky and hard, and most do not make it. Venture capital (VC) investors try to improve these odds with contractual terms that focus and sharpen employees' incentives to pursue gold. If the employees and investors expect the startup to balance the goal of profitability with another goal - the goal of good - the risks are likely to both grow and multiply. They grow to the extent that profits are threatened, and they multiply to the extent that balancing competing goals adds a dimension to the incentive problem. In this Article, we explore contracting ...


Deal Momentum, Cathy Hwang 2017 S.J. Quinney College of Law, University of Utah

Deal Momentum, Cathy Hwang

Utah Law Faculty Scholarship

Why do parties use non-binding agreements? This Article explores the role of nonbinding preliminary agreements in mergers and acquisitions (M&A) deals. It provides a modern, comprehensive account of how and why sophisticated parties use these common bargaining tools, even when they have the option of using binding contracts.

In M&A deals, parties enter into non-binding preliminary agreements, such as term sheets and letters of intent. Once parties sign a non-binding agreement, they behave as though bound and almost always follow up with a formal contract with terms that closely resemble the non-binding agreement’s terms. Scholars and courts ...


Who Needs Contracts? Generalized Exchange Within Investment Accelerators, Brad Bernthal 2017 University of Colorado Law School

Who Needs Contracts? Generalized Exchange Within Investment Accelerators, Brad Bernthal

Articles

This Article investigates why an expert volunteers on behalf of startups that participate in a novel type of small venture capital (“VC”) fund known as a mentor-driven investment accelerator (“MDIA”). A MDIA organizes a pool of seasoned individuals – called “mentors” – to help new companies. An obvi- ous organizational strategy would be to contract with mentors. Mentors in- stead voluntarily assist. Legal studies of norm-based exchanges do not explain what this Article calls the “mentorship conundrum”—i.e., the puzzling moti- vation of a mentor to volunteer within otherwise for-profit environments. This Article is the first to bridge the insights of ...


Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia Sánchez Abril, Nicholas Greene 2017 University of Miami

Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia SáNchez Abril, Nicholas Greene

Washington and Lee Law Review

Morality clauses give a contracting party the right to terminate if the other party behaves badly or embarrassingly. A curious product of twentieth-century Hollywood, these contract clauses have traditionally been used to control the antics of entertainers and athletes. The current politically-sensitive historical moment, combined with the internet’s ability to broadcast widely and permanently, has put everyone’s off-duty speech, conduct, and reputation under the microscope. Media reports detailing people’s digital falls from grace abound. For fear of negative association, businesses are more attuned than ever to the extracurricular acts of their agents and associates—and are increasingly ...


Insurance Policies: The Grandparents Of Contractual Black Holes, Chris French 2017 Penn State Law

Insurance Policies: The Grandparents Of Contractual Black Holes, Chris French

Journal Articles

In their recent article, The Black Hole Problem in Commercial Boilerplate, Professors Stephen Choi, Mitu Gulati, and Robert Scott identify a phenomenon found in standardized contracts they describe as “contractual black holes.” The concept of black holes comes from theoretical physics. Under the original hypothesis, the gravitational pull of a black hole is so strong that once light or information is pulled past an event horizon into a black hole, it cannot escape. In recent years, the theory has been reformulated and now the hypothesis is that some information can escape, but it is so degraded that it is virtually ...


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