Law Commons^™

Brief Of Legal Scholars As Amici Curiae In Support Of Respondents, Becerra V. San Carlos Apache Tribe, Becerra V. Northern Arapaho Tribe, U.S. Supreme Court Docket Nos. 23-250 & 23-253, Gregory Ablavsky, Seth Davis, Patty Ferguson-Bohnee, Ethan J. Leib, Dan Lewerenz, Nazune Menka, Monte Mills, Richard Monette, Joseph William Singer, Gerald Torres, Rebecca Tsosie

Court Briefs

Congress has enacted into law thousands of statutory provisions containing rules of construction. These rules direct courts to the permissible interpretations of the statutes that Congress enacts.

With respect to the self-determination contracts between Indian tribes and the United States at issue in these cases, the Indian Self-Determination and Education Assistance Act (ISDA) prescribes two interpretive rules that serve as congressional directives to this Court. First, each provision of the self-determination contract must be construed liberally for the benefit of the tribe. Second, the same is true of the statute itself: each provision of the ISDA must be construed liberally …

Covid-19 And Cancelled 2020 College Football Games Contracts: Force Majeure?, Drew Thornley

St. Mary's Law Journal

After COVID-19, majeure clauses accounting for the possibility of a pandemic will become the norm in college football game contracts. Indeed, some contracts are already including pandemics in their lists of force majeure-triggering events. Such language has already been added to collegiate game contracts. For example, a contract signed in May 2020 for the 2025 football game between Wisconsin and Miami (Ohio) lists as force majeure-triggering events “regional or global epidemics, pandemics, quarantines, and other similar health threats (e.g.[,] coronavirus, influenza, etc.).” Scholars explain that “the onset of the novel coronavirus pandemic warranted immediate revisitation of college football contracts.”

However, …

The Cost Of Guilty Breach: Willful Breach In M&A Contracts, Theresa Arnold, Amanda Dixon, Madison Whalen Sherrill, Hadar Tanne, Mitu Gulati

Faculty Scholarship

The traditional framework of United States private law that every first-year student learns is that contracts and torts are different realms—contracts is the realm of strict liability and torts of fault. Contracts, we learn from the writings of Justice Holmes and Judge Posner, are best viewed as options; they give parties the option to perform or pay damages. The question we ask is whether, in the real world, that is indeed how contracting parties view things. Using a dataset made up of one thousand mergers and acquisitions (M&A) contracts and thirty in-depth interviews with M&A lawyers, we find that there …

Identifying Fundamental Breach Of Articles 25 And 49 Of The Cisg: The Good Faith Duty Of Collaborative Efforts To Cure Defects - Make The Parties Draw A Line In The Sand Of Substantiality, Yasutoshi Ishida

Michigan Journal of International Law

Article 49(1) of the CISG allows buyers of international goods to avoid their sales contracts “if the failure by the seller to perform . . . amounts to a fundamental breach.” A breach is “fundamental,” as defined by CISG article 25, when it causes the buyer such detriment “as substantially to deprive him of what he is entitled to expect under the contract.” This definition is followed by the so-called “foreseeability test,” an “unless” clause that excepts the situation where “the party in breach did not foresee[,] and a reasonable person of the same kind in the same circumstances would …

Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.

Touro Law Review

No abstract provided.

The Myth Of Optimal Expectation Damages, Theresa Arnold, Amanda Dixon, Madison Sherrill, Mitu Gulati

Faculty Scholarship

A much-debated question in contract law scholarship is what the optimal measure of damages for breach should be. The casebook answer-drawing from the theory of efficient breach-is expectation damages. This standard answer, which was a major contribution of the law and economics field, has come under attack by theoreticians within that field itself. To shed an empirical perspective on the question, we look at data on the types of damages provisions parties contract/or themselves in international debt contracts. Specifically, we examine issuer call provisions, which are economically equivalent to damages for prepayment, yet not viewed as legally problematic in the …

Some Issues On The Law Of Direct Damages (Us And Uk), Victor P. Goldberg

Faculty Scholarship

When a contract is breached, both U.S. and U.K. law provide that the non-breaching party should be made whole. The Uniform Commercial Code (“UCC”) provides that “[t]he remedies provided by this Act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.” The English version, going back to Robinson v. Harman, is “that where a party sustains a loss by reason of breach of contract, he is, so far as money can do it, to be placed in the same situation, with …

Milking The Estate, David R. Hague

Faculty Articles

Recent Chapter 7 bankruptcy cases are exposing a widespread problem. Chapter 7 trustees are retaining their own law firms to represent them and then in clear breach of their fiduciary duties to creditors-requesting illegitimate legal fees to be paid by the estate. This practice is immoral and particularly harmful to creditors. Indeed, every dollar paid to the trustee and his firm is a dollar that will not be distributed to creditors. The Bankruptcy Code, remarkably, allows a trustee to retain his own law firm to represent him in his capacity as a trustee. But this inherently conflicted arrangement is not …

Paying For What You Get—Restitution Recovery For Breach Of Contract, Jean Fleming Powers

Pace Law Review

This article begins with a brief discussion of restitution as a remedy for breach of contract under the Restatement (Second) of Contracts. It then discusses the changes the Restatement of Restitution adopts and the reasons for the changes. Next, it discusses why the changes have not only failed to achieve the goal of clarifying the “prevailing confusion” related to restitution and breach of contract, but have at times created more confusion. It then explains that contract and restitution principles are not only not in tension relative to restitution for breach of contract, but in fact support such a recovery.

Does Failure To Mitigate Damages Bar Recovery Of The Costs Of Mitigation?, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

It is well established that a person who makes reasonable efforts to mitigate her damages after a breach of contract will be able to recover the costs of those mitigation efforts as incidental damages and that a person who fails to make such efforts will be denied recovery of the damages that could have been avoided. But will a person who fails to take reasonable efforts to mitigate damages still be able to recover the probable cost of those mitigation efforts as an offset against the reduction in her damages for failure to mitigate, even though she did not incur …

The Uncertainty Of Sun Printing, George M. Cohen

Touro Law Review

No abstract provided.

Enforcing A Holding Deposit Agreement, Samuel Beswick

All Faculty Publications

Prospective tenants in England are often asked to put down a holding deposit as a condition of signing a tenancy agreement. A holding deposit is an up-front payment given to the landlord or the landlord’s agent to place a “hold” on the property from being rented to anyone else while the applicant’s references are checked. It is paid after the key terms of the tenancy (for example, the rent amount and move-in date) have been agreed. Its purpose is to give both parties peace-of-mind that the applicant is “locked in” to renting the property.

In a previous contribution to the …

Uas Investments, Llc Order On Cross Motions For Summary Judgment, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

Pluralism Applied: A Concordant Approach To Selecting Contract Rules, Samuel F. Ernst

Marquette Law Review

Contract rules can be justified by utilitarian theories (such as efficiency theory), which are concerned with promoting rules that enhance societal wealth and utility. Contract rules can also be justified by rights-based theories (such as promissory and reliance theories), which are concerned with protecting the contractual freedom and interests ofthe individual parties to the contract. Or, contract rules can be analyzed through the lenses of a host of other theories, including critical legal theory, bargain theory, and so on. Because no single, unitary theory can ever explain the complex body of laws and societal conventions surrounding contracts, the best rule …

Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus

John D. McCamus

In recent years, a series of leading cases have returned to consider these questions. The implications of these decisions for the current shape of English law relating to civil redress for privacy invasion are the subject of this article. Surprisingly, perhaps, English courts have remained steadfast in their refusal to recognize invasion of privacy as a tort and in doing so have quite explicitly declined to rely on American experience in this area. Rather, English courts have preferred to resist innovation of this kind and leave the difficult question of privacy law reform to Parliament. On a number of recent …

Sovereign Immunity - The State Department’S Decision To Recognize And Allow The Claim Of Sovereign Immunity Is Binding Upon The Courts And Is Not Subject To Review Under The Administrative Procedure Act, Robin B. Gray Jr., George P. Shingler

Georgia Journal of International & Comparative Law

No abstract provided.

A Complainant-Oriented Approach To Unconscionability And Contract Law, Nicholas Cornell

Articles

This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I …

Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus

Akron Law Review

In recent years, a series of leading cases have returned to consider these questions. The implications of these decisions for the current shape of English law relating to civil redress for privacy invasion are the subject of this article. Surprisingly, perhaps, English courts have remained steadfast in their refusal to recognize invasion of privacy as a tort and in doing so have quite explicitly declined to rely on American experience in this area. Rather, English courts have preferred to resist innovation of this kind and leave the difficult question of privacy law reform to Parliament. On a number of recent …

James A. Pritchard Iii, Order And Judgment On Plaintiff's Motion For Partial Summary Judgment As To Defendant Morris, Schneider, Wittstadt, Llc, Melvin K. Westmoreland

Georgia Business Court Opinions

No abstract provided.

Viken Securities Limited, Order Granting Defendants' Motion For Summary Judgment And Denying Plaintiffs' Motion For Partial Summary Judgement As To Counts I & Ii, Melvin K. Westmoreland

Georgia Business Court Opinions

No abstract provided.

Jay Ordan, Order On Defendants' Motion For Summary Judgment, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

Contract Law—No Faith In Arkansas’S Approach To The Implied Duty Of Good Faith. Arkansas Research Medical Testing, Llc V. Osborne, 2011 Ark. 158, 2011 Wl 1423993., Kathleen Lestage

University of Arkansas at Little Rock Law Review

No abstract provided.

The Penn State "Consent Decree": The Ncaa's Coercive Means Don't Justify Its Laudable Ends, But Is There A Legal Remedy?, Matthew J. Mitten

Pepperdine Law Review

No abstract provided.

Hypothetical Efficiency Is Not Grounds For Breach, Daniel M. Isaacs

West Virginia Law Review

The law does not approve of the efficient breach of contract; it merely provides or fails to provide remedies. Although there are situations where the law implies contract terms, there is no basis for an implied covenant of efficiency. Hypothetical contracts, purporting to incorporate a release where the cost of performance to the promisor exceeds its value to the promisee, cannot be used to bind people to results, even efficient ones, to which they did not agree. Where it is inefficient to demand performance, flexibility should come from the promisee who, having received in trust the power to limit the …

It's About Time, David Frisch

Law Faculty Publications

This Article critically evaluates the view widely held by courts that contract claims for lost leisure or personal time do not justify compensation. The thesis of this Article is that while the conventional judicial wisdom may be correct about some forms of nonpecuniary loss, it is entirely wrong regarding lost time. After setting aside assumptions, I show that traditional arguments against this form of recovery are deeply flawed Most importantly, I rely on the recognition of hedonic damages by forensic economists to debunk the myth that loss of time is no more than an everyday aspect of life not worthy …

Benay V. Warner Bros. Entertainment, Inc.: New Standard Needed For Determining Actual Use, Brian Casido

Golden Gate University Law Review

This Note examines Benay v. Warner Bros. Entertainment, Inc., and the substantial-similarity standard under a California breach of an implied-in-fact contract claim and a federal copyright infringement claim. The standard used in Benay will hinder the free flow of ideas by deterring producers from accepting an author’s screenplay for fear of breaching an implied-in-fact contract. Part I of this Note summarizes the history and development of the protection of rights to creative works. Part II provides the facts and procedural history of Benay v. Warner Bros. Entertainment, Inc. Part III analyzes and criticizes the Ninth Circuit’s holding in Benay …

Challenging Adhesion Contracts In California: A Consumer's Guide, Sierra David Sterkin

Golden Gate University Law Review

This Comment explores the California scheme for dealing with adhesion contracts, and proposes a change to the existing legal structure. Part I describes how California courts define adhesion contracts, examines the theories California courts have adopted to allow consumers to challenge adhesion contracts, and considers how jurisdictions outside California handle adhesion contracts. Part II focuses on when California courts will consider a contract adhesive and unenforceable. Part III compares California's system of dealing with adhesion contracts with systems established in jurisdictions outside California in order to determine whether there is truly any substantive difference. Part IV suggests changes to improve …

Seaman's Direct Buying Service, Inc. V. Standard Oil Co.: Scaling The Stonewall Tort, Alisa J. Kim

Golden Gate University Law Review

In Seaman's Direct Buying Service, Inc. v. Standard Oil CO., the California Supreme Court affirmed its position that an insurance carrier may risk tort liability for breach of the implied covenant of good faith and fair dealing in addition to contract damages. Moreover, Seaman's enabled the court to explore such liability in the context of an ordinary commercial contract in which "parties of roughly equal bargaining power are free to shape the contours of their agreement." The Seaman's majority deemed it unnecessary to find tort liability on the breach of the implied covenant issue. Instead the court created a more …

Wolf And Wilhelmina: Giving Entertainers A License To Breach Their Contracts, Mark Conrad

Golden Gate University Law Review

Parts I and II of this article will discuss the Wolf and Wilhelmina cases. Part III will describe the equitable contract remedies of specific performance and injunctions for breach of a personal services contract. Part IV will discuss a proposed new standard to permit the award of special damages that may provide a more effective remedy for future breaches of contract.

Breach Is For Suckers, Tess Wilkinson-Ryan, David A. Hoffman

Vanderbilt Law Review

This Article presents results from three experiments offering evidence that parties see breach of contract as a form of exploitation that makes disappointed promisees into "Suckers." In psychology, being a sucker turns on a three-part definition: betrayal, inequity, and intention. We used web-based questionnaires to test the effect of each of the three factors separately. Our results support the hypothesis that when breach of contract cues an exploitation schema, people become angry, offended, and inclined to retaliate even when retaliation is costly. This theory offers a useful advance because it explains why victims of breach demand more than similarly situated …