Law Commons^™

Contracting For Fourth Amendment Privacy Online, Wayne A. Logan, Jake Linford

Scholarly Publications

No abstract provided.

The Best And Worst Of Contracts Decisions: An Anthology, Rachel Arnow-Richman, Daniel D. Banhizer, Scott J. Burnham, Et Al.

Florida State University Law Review

The common law of contract is an intellectual and political triumph. In its mature form, it enables judges whose ideological goals may differ to apply doctrines that provide the right to make enforceable promises; with legislation, the common law also provides proper limits on that right. Lately, scholars have produced a flood of contract law theory that enriches our thinking about and grounding for contract law norms. But the real work of common law development has always occurred in the trenches-in judicial decisions. In those trenches and on the framework built there, some decisions matter far more than others, and …

Contract Law's Predominant-Purpose Test And The Law-Fact Distinction, Daniel P. O'Gorman

Florida State University Law Review

No abstract provided.

Algorithmic Contracts, Lauren Henry Scholz

Scholarly Publications

Algorithmic contracts are contracts in which an algorithm determines a party’s obligations. Some contracts are algorithmic because the parties used algorithms as negotiators before contract formation, choosing which terms to offer or accept. Other contracts are algorithmic because the parties agree that an algorithm to be run at some time after the contract formation will serve as a gap-filler. Such agreements are already common in high speed trading of financial products and will soon spread to other contexts. However, contract law doctrine does not currently have a coherent approach to describing the creation and enforcement of algorithmic contracts. This Article …

Major League Soccer As A Case Study In Complexity Theory, Steven A. Bank

Florida State University Law Review

Major League Soccer has long been criticized for its “Byzantine” roster rules and regulations, rivaled only by the Internal Revenue Code in its complexity. Is this criticism fair? By delving into complexity theory and the unique nature of the league, this Article argues that the traditional complaints may not apply in the context of the league’s roster rules. Effectively, critics are applying the standard used to evaluate the legal complexity found in rules such as statutes and regulations when the standard used to evaluate contractual complexity is more appropriate. Major League Soccer’s system of roster rules is the product of …

Saying Yes: Reviewing Board Decisions To Sell Or Merge The Corporation, Franklin A. Gevurtz

Florida State University Law Review

No abstract provided.

Embracing Third-Party Litigation Finance, David R. Glickman

Florida State University Law Review

No abstract provided.

Contract Meta-Interpretation, Shawn J. Bayern

Scholarly Publications

This Article provides a general framework for resolving the contract law’s ambivalence between textualism and contextualism, one of the most difficult questions in modern contract interpretation. Simply put, the Article’s argument is that courts need to determine the parties’ preferences as to how their contracts should be interpreted; this “meta-interpretive” inquiry can then direct the court’s interpretation or construction of the parties’ substantive rights and duties. Moreover, the Article argues that while contextualist interpretation is not, and should not be, mandatory for all interpretive questions under contract law, contextualism is necessary to resolve the initial “meta-interpretive” question: What interpretive regime …

Distributive Justice And Contract Law: A Hohfeldian Analysis, Marco Jimenez

Florida State University Law Review

According to Aristotle, justice consists of giving each person his due: equal members of society should be treated equally, and unequal members, unequally. This justice, in turn, comes in two flavors: distributive and corrective. Distributive justice—which has as its purview society at large—is concerned with distributing society's shares to individuals according to merit. Whereas, the purview of corrective justice concerns voluntary (e.g., contracts) and involuntary (e.g., torts) transactions, and it seeks to rectify unjust alterations in the distributive scheme by returning the parties to the position they occupied before the distributive scheme was altered, which is to say, before a …

Privity's Shadow: Exculpatory Terms In Extended Forms Of Private Ordering, Mark P. Gergen

Florida State University Law Review

No abstract provided.

The Moral Hazard Of Contract Drafting, Eric A. Zacks

Florida State University Law Review

This Article identifies and examines the principal-agent problem as it arises in the context of contract preparation. The economic agency relationship, as it may be understood to exist for contract drafting, provides a superior framework for understanding and reforming the inability of the non-drafting party (the principal) to control the drafting party (the agent). As an economic agent, the drafting party faces a moral hazard when preparing the contract because of the differing interests of the parties as well as the information and control asymmetries that exists. For example, the use of standard form contracts in consumer transactions is an …

A Tax Audible: Coaches And Buyouts, Jeffrey H. Kahn

Scholarly Publications

No abstract provided.

Offer And Acceptance In Modern Contract Law: A Needless Concept, Shawn J. Bayern

Scholarly Publications

The fundamental law of contract formation has retained the formalistic character of classical contract law. The offer-and-acceptance paradigm fits poorly with modern contracting practice, and it obscures and complicates contract doctrine. More importantly, extending it threatens to produce undesirable results. Instead of the offer-and-acceptance paradigm, this Essay proposes that contract formation be analyzed using the same general interpretive inquiry that governs other questions concerning the intent of contracting parties.

Analyzing the processes of contract formation in this manner points the way toward a further-reaching reconsideration of the purposes of contract-formation law in the first place. In particular, this Essay proposes …

Law And Economic Exploitation In An Anti-Classification Age, Hila Keren

Florida State University Law Review

Does our legal system permit the economic exploitation of extreme vulnerability? Focusing on predatory housing loans—a thriving business at the dawn of the twenty-first century—this Article argues that the answer in most cases is yes. Under an individualistic neoliberal paradigm, borrowers are held liable for their contracts, even if they were targeted with predatory practices. Further, borrowers’ attempts to resort to antidiscrimination law, and frame their exploitation as “reverse redlining,” have offered no real answer. An important yet undertheorized explanation for this problem is the impact of the Supreme Court’s anti-classification jurisprudence on lower courts. In an anti-classification age, even …

Marital Contracting In A Post-Windsor World, Martha M. Ertman

Florida State University Law Review

No abstract provided.

The Fiduciary Gap, Kelli A. Alces

Scholarly Publications

No abstract provided.

The Essential Role Of Courts For Supporting Innovation, Erin O'Hara O'Connor, Christopher R. Drahozal

Scholarly Publications

Commercial parties commonly resolve their disputes in arbitration rather than courts. In fact, some estimate that as many as 90 percent of international commercial contracts opt for arbitration of future disputes, and others claim that some industries never resort to courts. However, a study of arbitration clauses in a wide variety of contracts, including franchise agreements, CEO employment contracts, technology contracts, joint venture agreements and consumer cell phone contracts, reveals that parties very often carve out a right to resort to courts for the resolution of claims designed to protect information, innovation, and reputation. Studies of international and cross-border contracts …

Larry Ribstein's Fiduciary Duties, Kelli A. Alces

Scholarly Publications

Larry Ribstein, throughout his remarkable scholarly career, developed a theory formed around his analysis that the end of fiduciary obligation is a near possibility. Understanding fiduciary obligations as a carefully defined term may indicate, however, that this fiduciary obligation can be a useful part of a wider selection of relationships than Ribstein allowed. This Article both considers Ribstein’s theory of fiduciary duty, and ultimately turns that same theory on its head by advocating the use of a narrow duty in a variety of contexts as opposed to a broad duty in a limited range of circumstances

Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck

Scholarly Publications

In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.

Unilateral Reordering In The Reel World, Jake Linford

Scholarly Publications

No abstract provided.

Transitive Counterparty Risk And Financial Contracts, Manuel A. Utset

Scholarly Publications

No abstract provided.

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

The Expectation Measure And Its Discontents, Shawn J. Bayern, Melvin A, Eisenberg

Scholarly Publications

No abstract provided.

Customizing Employment Arbitration, Erin O'Hara O'Connor, Kenneth J. Martin, Randall S. Thomas

Scholarly Publications

According to the dispute resolution literature, one advantage of arbitration over litigation is that arbitration enables the parties to customize their dispute-resolution procedures. For example, parties can choose the qualifications of the arbitrator(s), the governing procedural rules, the limitation period, recoverable damages, rules for discovery and the presentation of evidence and witnesses, and the specificity of required arbitrator findings. While some scholars have questioned whether parties to arbitration agreements frequently take advantage of this customization, there is little solid empirical information about the topic.

In this Article, we study the arbitration clauses found in a random sample of 910 Chief …

High-Powered (Mis)Incentives And Venture-Capital Contractors, Manuel A. Utset

Scholarly Publications

No abstract provided.

Arbitration Clauses In Ceo Employment Contracts: An Empirical And Theoretical Analysis, Erin O'Hara O'Connor, Kenneth Martin, Randall Thomas

Scholarly Publications

A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many CEO employment contracts are publicly available, so they can be examined empirically. In this paper, we ask whether CEOs bargain to include binding arbitration provisions in their employment contracts. After exploring the theoretical arguments for and against including such provisions in these agreements, we use …

Rational Ignorance, Rational Closed-Mindedness, And Modern Economic Formalism In Contract Law, Shawn J. Bayern

Scholarly Publications

This article considers the relevance of several kinds of post-offense events for the justice of punishment under a fair-play account of retributivism. If the justice of punishment depends on something like an offender-centered tally of benefits and burdens, it may be difficult to explain why offenders should be punished by a criminal justice system in situations where they have been punished privately or have lost the relevant benefits they may have received from their offenses.

My fault is past. But, O, what form of prayer
Can serve my turn? 'Forgive me my foul murder?
That cannot be; since I am …

Debunking The Corporate Fiduciary Myth, Kelli A. Alces

Scholarly Publications

No abstract provided.

Corporations And The Market For Law, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

The state competition for corporate law has long been studied as a distinct phenomenon. Under the traditional view, corporations are subject to a unique choice-of-law rule, the “internal affairs doctrine” (IAD). This rule is explained as a historical accident, or by the special logistics of the corporate contract. The resulting market for corporate law appears to have special characteristics, particularly including the dominance of the single state of Delaware. This article challenges the traditional view. It shows that the corporate law market is best understood as a special application of the general market for law. Parties to many types of …

Tax Consequences When A New Employer Bears The Cost Of The Employee's Terminating A Prior Relationship, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

No abstract provided.