Law Commons^™

Regulating Compensation, A. Christine Hurt

Faculty Scholarship

No abstract provided.

The Windfall Myth, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Summary Of Gonski V. Dist. Ct., 126 Nev. Adv. Op. No. 51, Ryan Johnson

Nevada Supreme Court Summaries

The Second Judicial District Court entered an order compelling arbitration in a construction defect dispute. Petitioners asked for a writ of mandamus vacating the order compelling arbitration.

Alteration Of The Contractual Equilibrium Under The Unidroit Principles, Amin Dawwas

Pace International Law Review Online Companion

This paper addresses the principles of hardship and specific performance as being unreasonably burdensome or expensive both in terms of their definitions and legal consequences. This paper argues that, in a situation of hardship, the debtor can choose to invoke either the rules of section 6.2 (hardship) or the defense to specific performance under Article 7.2.2-b of the UNIDROIT Principles of International Commercial Contracts (“UNIDROIT Principles”). Yet, while in a situation where performance of the contract becomes “unreasonably burdensome or expensive,” the debtor might only invoke the exception to specific performance under Article 7.2.2(b) of the UNIDROIT Principles.

A Contractual Approach To Shareholder Oppression Law, Benjamin Means

Faculty Publications

According to standard law and economics, minority shareholders in closely held corporations must bargain against opportunism by controlling shareholders before investing. Put simply, you made your bed, now you must lie in it. Yet most courts offer a remedy for shareholder oppression, often premised on the notion that controlling shareholders owe fiduciary duties to the minority or must honor the minority's reasonable expectations. Thus, law and economics, the dominant mode of corporate law scholarship, appears irreconcilably opposed to minority shareholder protection, a defining feature of the existing law of close corporations.

This Article contends that a more nuanced theory of …

Resolving The Dilemma Of Nonjusticiable Causation In Failure-To-Warn Litigation, Neil B. Cohen, Aaron Twerski

Faculty Scholarship

No abstract provided.

Known And Unknown, Property And Contract: Comments On Hoofnagle And Moringiello, James Grimmelmann

Cornell Law Faculty Publications

In addition to gerund-noun-noun titles and a concern with the misaligned incentives of businesses that handle consumers' financial data, Chris Hoofnagle's Internalizing Identity Theft and Juliet Moringiello's Warranting Data Security share something else: hidden themes. Hoofnagle's paper is officially about an empirical study of identity theft, but behind the scenes it's also an exploration of where we draw the line between public information shared freely and secret information used to authenticate individuals. Moringiello's paper is officially a proposal for a new warranty of secure handling of payment information, but under the surface, it invites us to think about the relationship …

Contracts In Context And Contracts As Context, Larry A. Dimatteo, Blake D. Morant

UF Law Faculty Publications

The annual Business Law Symposium of the Wake Forest Law Review has a distinguished legacy of noteworthy programs that shed light on seminal issues affecting contemporary business in the United States. This edition builds on that tradition of excellence with a focus on the ubiquitous phenomenon of contracts and bargaining behavior. Contract law appears as a set of policies and rules that provide order for those who transact bargains. Indeed, contract law and the rules that it engenders seemingly facilitate an efficient system of transactional conduct that, on its face, appears objective.

Part II of this introductory Article briefly examines …

The Division Of Matrimonial Assets: A Mathematical Methodology As A "Check"? Ajr V. Ajs, Siyuan Chen

Research Collection Yong Pung How School Of Law

In a recent High Court decision concerning the division of matrimonial assets, the Judge developed an extensive (and somewhat mathematical) methodology “as a rough check” to his discretionary powers in determining a “just and equitable” division of the matrimonial assets. This introduced a new perspective to an exercise long considered to be impossible to be mathematically precise. This piece considers the extent of the utility of the new methodology.

Discharge Of A Contract Where Both Parties Are In Breach: Alliance Concrete Singapore Pte Ltd V Comfort Resources Pte Ltd, Chee Ho Tham

Research Collection Yong Pung How School Of Law

This case note examines the most recent attempt by the Court of Appeal to provide further guidance on: (a) how the doctrine of discharge of contract by breach operates when both parties are in breach of their contract obligations; and (b) when a promisee is entitled to rely on an alternate basis to justify its election to discharge a contract for the promisor’s breach when the basis originally relied upon and communicated to the promisor is ultimately found to be legally insufficient.

Summary Of Brown Insurance Agency, Inc. V. Star Insurance Co., 126 Nev. Adv. Op. No. 31, Ammon Francom

Nevada Supreme Court Summaries

An appeal from a district court order granting summary judgment.

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Faculty Publications

No abstract provided.

The (Ir)Relevance Of Harmonization And Legal Diversity To European Contract Law - A Perspective From Psychology, Gary Low

Research Collection Yong Pung How School Of Law

Differences between contract laws of Member States are often said to impose costs on and deter cross-border trade, and in order to increase cross-border trade, these contract laws ought to be harmonized. This article promises a paradigm shift in considering whether there is a need for harmonization; and if so, what form it ought to take. A behavioural approach is adopted to answer two underlying questions: how do actors think about these differences when they decide to contract? How does the form of harmonization influence such decisions? Insights from disciplines like cognitive and social psychology are identified and applied to …

The Statute Of Frauds And Oral Promises Of Job Security The Tenuous Distinction Between Performance And Excusable Nonperformance, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Principles Of The Law Of Software Contracts: Some Highlights, Robert A. Hillman, Maureen O'Rourke

Cornell Law Faculty Publications

The final draft of the Principles of the Law of Software Contracts ("Principles") was unanimously approved by the American Law Institute membership in May of 2009. The goal of the project is to “clarify and unify the law of software transactions.” However, the Principles will not become law in any jurisdiction unless and until a court adopts them, so only time will tell whether the project will accomplish this goal. Nevertheless, one thing is certain. The current law of software transactions, a mish-mash of common law, Article 2 of the Uniform Commercial Code, and federal intellectual property law, among other …

Summary Of Easton Business Opportunities, Inc. V. Town Executive Suites - E. Marketplace, Llc, 126 Nev. Adv. Op. No. 13, Kimberly Duque

Nevada Supreme Court Summaries

A multi-faceted appeal involving interpretion of a real estate brokerage agreement that included an “extender” clause.

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 …

Contract Law's Two "P.E.'S": Promissory Estoppel And The Parole Evidence Rule, David G. Epstein

Law Faculty Publications

This article is about "P.E." Not the physical education class that you looked forward to in junior high school, but the two "P.E.'s" you dreaded in your first-year law school contracts class: (1) promissory estoppel and (2) the parol evidence rule.' Each is plenty complicated standing alone. This article considers what happens if the two bump into each other. More specifically, this article asks and answers the question: Should the parol evidence rule apply to promissory estoppel cases?

Pizza-Box Contracts: True Tales Of Consumer Contracting Culture, Amy J. Schmitz

Faculty Publications

Do you ask for contract or purchase terms prior to completing your everyday purchases? Do you first read the pizza box before paying the pizza delivery guy or gal? Typical consumers do not ask for or read their contracts prepurchase, and companies have become accustomed to burying purchase terms in product packaging or Internet links. These postpurchase, rolling, or “pizza-box” contracts have therefore become the norm in the consumer marketplace, and courts generally enforce them as legitimate contracts. This Article discusses varying theoretical perspectives on enforcement of these pizza-box contracts, and explores the available empirical data bearing on the legitimacy …

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

Faculty Scholarship

Standard form contract are ubiquitous, whether signed in the real world or clicked in the online world. Consumers are constantly entering into standard form contracts with the merchants they transact with in order to buy goods or services. Consumers, however, are usually aware of only the basic terms in the form like price, subject matter, and quantity. Consumers otherwise rarely read the form contracts that they sign. However, traditional contract law and the duty to read provide that the consumer is bound to all the terms contained in the form contract, both the known terms and the unread and unknown …

Blame, Praise And The Structure Of Legal Rules, Lawrence Solan

Faculty Scholarship

No abstract provided.

Private Relationships And Public Problems: Applying Principles Of Relational Contract Theory To Domestic Violence, Tamara L. Kuennen

Sturm College of Law: Faculty Scholarship

This Article maps out a new theoretical critique of no-drop prosecution policies, the criminal justice system’s predominant approach to domestic violence. No-drop rules compel prosecutors to make decisions about whether to pursue charges against a batterer without regard to the victim’s wishes. When the law mandates this approach, it not only enforces the criminal law, but also effectively terminates the relationship between the victim and her partner. This blunt response to what is often a complex situation indiscriminately dispenses with the many reasons a victim may want or need to preserve her intimate relationship. While numerous scholars have grappled with …

Readability, Contracts Of Recurring Use, And The Problem Of Ex Post Judicial Governance Of Health Insurance Polices, John Aloysius Cogan, Jr.

Faculty Articles and Papers

While the rhetoric surrounding the passage of the Patient Protection and Affordable Care Act focused on core issues such as cost, quality, and access to care, the dialog rarely acknowledged a key problem-the fact that most Americans do not understand their health insurance. Simply put, consumers do not fully grasp their health insurance coverage because the jargon found in many health insurance contracts is impenetrable to most Americans. This is disconcerting because consumer-oriented information is central to our increasingly consumer-directed health care system. Consumers are expected to make cost-effective choices among the array of health insurance plans that may be …

Penumbral Academic Freedom: Interpreting The Tenure Contract In A Time Of Constitutional Impotence, Richard J. Peltz-Steele

Faculty Publications

This article recounts the deficiencies of constitutional law and common tenure contract language - the latter based on the 1940 Statement of Principles of the American Association of University Professors - in protecting the academic freedom of faculty on the modern university campus. The article proposes an Interpretation of that common language, accompanied by Illustrations, aiming to describe the penumbras of academic freedom - faculty rights and responsibilities that surround and emanate from the three traditional pillars of teaching, research, and service - that are within the scope of the tenure contract but not explicitly described by it, and therefore …

Unstacking The Deck - Contract Manipulation And Credit Card Accountability, Eric A. Zacks

Law Faculty Research Publications

No abstract provided.

The Productive Tension Between Official And Unofficial Stories Of Fault In Contract Law, Martha M. Ertman

Faculty Scholarship

Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of …

Reliance On Oral Promises: Statute Of Frauds And Promissory Estoppel, David G. Epstein

Law Faculty Publications

Reliance on oral promises is the basis not only for law school hypotheticals but also for real world litigation. Consider the following hypothetical based on the 1970 Supreme Court of Hawaii decision in Mcintosh v. Murphy: Tex moved from Lubbock, Texas to Oklahoma to work for Murphy Motors Chevrolet-Oldsmobile, an Okmulgee car dealership. Tex signed a lease for an apartment in Okmulgee. After two months as assistant sales manager, Murphy Motors fired Tex. Tex sued Murphy Motors alleging breach of an alleged oral agreement that she would be employed for two years. It is understandable that a jury might not …

The Reverse-Morals Clause: The Unique Way To Save Talent's Reputation And Money In A New Era Of Corporate Crimes And Scandals, Porcher L. Taylor Iii, Fernando M. Pinguelo, Timothy D. Cedrone

School of Professional and Continuing Studies Faculty Publications

This article sails into the largely unchartered waters of reverse-morals clauses because, to our knowledge, there are no law review or law journal articles that substantially address this still nascent area of law.²⁵ Similarly, our research has not revealed any state or federal cases involving reverse-morals clauses.²⁶ Nor has an actual talent contract containing such a clause been publicly revealed, either in terms of language or the identification of the parties to such a clause,²⁷ although reportedly "an increasingly larger number" of talent are now asking for reverse-morals clauses in the wake of the Enron fallout and …

Response, The Still-Elusive Quest To Make Sense Of Veil-Piercing, David K. Millon

Scholarly Articles

This paper is an invited comment on Peter Oh's article "Veil-Piercing" published in the Texas Law Review. I make two points. First, I suggest that Oh's exhaustive analysis of the factors cited by courts to justify veil-piercing, like Robert Thompson's before it, does not actually tell us much about what is going on in the cases. For reasons that I explain, the asserted rationales cannot determine the results. Instead, vaguely articulated and poorly understand notions of policy and fairness drive decision making in this area. The law will continue to be obscure and results unpredictable until courts develop a clearer …

Contracts Confidential: Ending Secret Deals In The Extractive Industries, Peter Rosenblum, Susan Maples

Human Rights Institute

The laws of contract and international commercial relations generally suppose two corporate entities doing business with each other, both seeking profits and answering to shareholders. This makes sense, unless one of the parties is not a corporate entity, but rather a government, answerable to citizens. Even as they conduct business, governments have duties, obligations and interests that go well beyond pure profit maximization. As such, the same secrecy afforded to contracting parties in commercial law is out of place in such contracts. Governments must be held accountable for all contracts they enter, be they for the provision of roads or …