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Articles 1 - 30 of 32
Full-Text Articles in Law
Debunking The Efficacy Of Standard Contract Boilerplate: Part V, David Spratt
Debunking The Efficacy Of Standard Contract Boilerplate: Part V, David Spratt
Articles in Law Reviews & Other Academic Journals
After five installments, we can end our discussion of contract boilerplate. We have slashed the outdated language and emerged as a clear and contemporary legal writer. Be willing to adapt what has worked well in the past because change is the foundation of human ingenuity.
Debunking The Efficacy Of Standard Contract Boilerplate: Part Iv, David Spratt
Debunking The Efficacy Of Standard Contract Boilerplate: Part Iv, David Spratt
Articles in Law Reviews & Other Academic Journals
We have belabored the archaic and prohibited use of "said" as a synonym for "the." But this paragraph needs more work. First, the phrase "irrespective of the fact that" is wordy and could be replaced with the plain language alternative of "even though." Second, "one or more of the parties now is, or may become, a resident of a different state" also could be streamlined. The phrase is easy enough to understand but cut to the chase. Replacing this phrase with "either party now or later resides in a different state" does the trick.
Contracting For Process, David Snyder
Contracting For Process, David Snyder
Articles in Law Reviews & Other Academic Journals
This article introduces the concept of contracting for process and considers when it is likely to be the best contract design. Contracting for process is in widespread use, but it often goes unnoticed. Some characteristics of contracting for process suit it particularly well to situations of uncertainty, including the radical uncertainty that results from fundamental disruptions such as COVID-19. Parties can employ this design for both contracts made or renegotiated during a crisis and for contracts made in ordinary times. The concept articulated here, however, is not confined to contexts of uncertainty or complexity; it can be used to achieve …
Debunking The Efficacy Of Standard Contract Boilerplate: Part Iii, David Spratt
Debunking The Efficacy Of Standard Contract Boilerplate: Part Iii, David Spratt
Articles in Law Reviews & Other Academic Journals
There are several things wrong with this paragraph. First, the heading "Knowledge of Residence" is underinclusive, as the paragraph concerns more than where each party lives. A more inclusive and effective heading would be "Knowledge of Contact Information." Second, the introductory phrase is ambiguous, as one could read "for so long as the minor children are less than eighteen years of age" as requiring the parties to exchange information only until one of the parties' children turns 18. Moreover, "eighteen years of age" is archaic and clunky legalese. Keep it simple, solicitors: "eighteen" or "age eighteen" would suffice. Applying these …
Improve Recitals And Consideration Clauses With Plain Language, David Spratt
Improve Recitals And Consideration Clauses With Plain Language, David Spratt
Articles in Law Reviews & Other Academic Journals
As used in a "WHEREAS" clause, the term "whereas" simply means "considering that" or "that being the case." There is no legal effect to the word "whereas." It, like many other words used in standard contract boilerplate, is left over from some long-forgotten era of legal writing when lawyers used big words and legalese to impress clients with their intelligence and to justify their bills. These times have (or at least should have) passed. Today, documents must be accessible to those who use them: in most cases the clients for whom such documents are drafted.
Debunking The Efficacy Of Standard Contract Boilerplate: Part I, David Spratt
Debunking The Efficacy Of Standard Contract Boilerplate: Part I, David Spratt
Articles in Law Reviews & Other Academic Journals
Many contracts start with an introductory paragraph like this one: THIS AGREEMENT is made and entered into said 5th day of June, 2020, by and between JOHN JONES (hereinafter referred to as "Jones") and MARY SMITH (hereafter referred to as "Smith"), hereinafter referred to together as "the parties." Where do I find my red pen? There are so many problems with this introduction, I might run out of ink.
Stay In The Fight With Civility And Professionalism, David Spratt
Stay In The Fight With Civility And Professionalism, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The New Social Contracts In International Supply Chains, David Snyder
The New Social Contracts In International Supply Chains, David Snyder
Articles in Law Reviews & Other Academic Journals
This Article considers, from legal, practical, moral, and policy perspectives, Model Contract Clauses (MCCs) to protect the human rights of workers in international supply chains. The product of the ABA Business Law Section Working Group to Draft Human Rights Protections in International Supply Contracts, the MCCs are an effort to provide companies with carefully researched and well-drafted clauses to incorporate human rights policies into supply contracts (purchase orders, master vendor agreements, and the like). The Article discusses the impetus, goals, and strategies of the MCCs and explains the paradigm of the corporate, operational, and political landscape for which they are …
Contracts Are Like Snowflakes, David Spratt
Contracts Are Like Snowflakes, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Antitrust Enforcement Against Platform Mfns, Jonathan Baker, Fiona M. Scott Morton
Antitrust Enforcement Against Platform Mfns, Jonathan Baker, Fiona M. Scott Morton
Articles in Law Reviews & Other Academic Journals
Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions (also termed pricing parity provisions) can help protect competition in online markets. An online platform imposes a platform MFN when it requires that providers using its platform not offer their products or services at a lower price on other platforms. These contractual provisions may be employed by online platforms offering hotel and transportation bookings, consumer goods, digital goods, and handmade craft products. They have been the subject of antitrust enforcement in Europe but have drawn only limited antitrust scrutiny in the U.S. Our paper explains why MFNs employed by online …
If You've Seen One, You Have Not Seen Them All, David Spratt
If You've Seen One, You Have Not Seen Them All, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Contractualization Of Family Law In The United States, Fernanda Nicola, Adrienne Hunter Jules
The Contractualization Of Family Law In The United States, Fernanda Nicola, Adrienne Hunter Jules
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Competitive Consequences Of Most-Favored-Nation Provisions, Jonathan Baker, Judith A. Chevalier
The Competitive Consequences Of Most-Favored-Nation Provisions, Jonathan Baker, Judith A. Chevalier
Articles in Law Reviews & Other Academic Journals
"Most Favored Nation" contractual provisions have come under scrutiny in recent years by antitrust authorities in both the US and EU. MFNs are a type of vertical agreement between suppliers and buyers. The literature has recognized that there may be efficiency rationales for these arrangements but the literature has also recognized that these arrangements have anticompetitive potential. In this paper, we distill the economics literature on MFNs to explore both possibilities.
Understanding The Federal Tort Claims Act: A Different Metaphor, Paul F. Figley
Understanding The Federal Tort Claims Act: A Different Metaphor, Paul F. Figley
Articles in Law Reviews & Other Academic Journals
When it enacted the Federal Tort Claims Act Congress waived the United States’ sovereign immunity for certain torts of the federal government. That waiver is subject to exclusions, exceptions, and limitations that may seem puzzling or counterintuitive. This essay explains the structure and operation of the Federal Tort Claims Act by comparing it to “a traversable bridge across the moat of sovereign immunity” (a metaphor used by Judge Max Rosenn in a slightly different context). The essay examines why Congress enacted the FTCA, the jurisdictional grant that allows some tort claims but not others, the pre-requisites to bringing suit, the …
Writer's Block - Resolve To Become A Better Writer, David Spratt
Writer's Block - Resolve To Become A Better Writer, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt
More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Contract Regulation, With And Without The State: Ruminations On Rules And Their Sources, David Snyder
Contract Regulation, With And Without The State: Ruminations On Rules And Their Sources, David Snyder
Articles in Law Reviews & Other Academic Journals
This paper, commenting on the work of Jýrgen Basedow, addresses the legal regulation of economic relations in the context of globalization. The paper applies the idea of the mixed jurisdiction, traditionally focused on legal systems that partake of both the common law and the civil law, to the complex of privately made law and publicly made law that governs contemporary economic relations. Differing criteria that might be used to assess and choose between competing rules or competing systems of rule generation are evaluated, and normative considerations are raised. The paper proposes a model to demonstrate how privately made law, though …
Merger To Monopoly To Serve A Single Buyer: Comment, Jonathan Baker
Merger To Monopoly To Serve A Single Buyer: Comment, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman
Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman
Articles in Law Reviews & Other Academic Journals
No abstract provided.
A Social Dimension In European Private Law The Call For Setting A Progressive Agenda, Fernanda Nicola
A Social Dimension In European Private Law The Call For Setting A Progressive Agenda, Fernanda Nicola
Articles in Law Reviews & Other Academic Journals
I. The Europeanization of Private Law: Legal Sources, Ideology and Process: 1. Legal Sources in European Private Law. 2. Technocracy at work: What is the Common Frame of Reference? 3. The Ideological Divide: Neo-liberalism versus Social Justice in European Contract law. 4. The Social Justice Manifesto and the Legitimacy of the Process. 5. The Scholarly Industry and its Dark Sides. II. Social contract law and Social Europe, part of the problem or part of the solution?: 1. The "Social" Critique of Formalism in Contract Law and its historical inadequacy. 2. The Critique of the Social and its erasure in the …
Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai
Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai
Articles in Law Reviews & Other Academic Journals
From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …
Closing The Deal In Contracts: Introducing Transactional Skills In The First Year, David Snyder
Closing The Deal In Contracts: Introducing Transactional Skills In The First Year, David Snyder
Articles in Law Reviews & Other Academic Journals
No abstract provided.
New Horizons In Cartel Detection, Jonathan Baker
New Horizons In Cartel Detection, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Language And Formalities In Commercial Contracts: A Defense Of Custom And Conduct, David Snyder
Language And Formalities In Commercial Contracts: A Defense Of Custom And Conduct, David Snyder
Articles in Law Reviews & Other Academic Journals
This article defends the decision to retain usage of trade, course of performance, and course of dealing in the revision of Article 1 of the Uniform Commercial Code. The article responds to recent neoformalist criticisms of the incorporation approach and offers a theoretical justification. Usage of trade and course of dealing should be understood as part of the parties' language, following Wittgenstein's understanding of language. Course of performance, which presents a weaker case in terms of language, should be understood as a legal formality, following Fuller's explanation of formalities. Thus understood, custom and conduct can be as important as written …
The Law Of Contract And The Concept Of Change: Public And Private Attempts To Regulate Modification, Waiver, And Estoppel, David Snyder
The Law Of Contract And The Concept Of Change: Public And Private Attempts To Regulate Modification, Waiver, And Estoppel, David Snyder
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder
Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Unilateral Competitive Effects Theories In Merger Analysis, Jonathan Baker
Unilateral Competitive Effects Theories In Merger Analysis, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Identifying Horizontal Price Fixing In The Electronic Marketplace, Jonathan Baker
Identifying Horizontal Price Fixing In The Electronic Marketplace, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Sovereignty And Regionalism, Horacio A. Grigera Naón
Sovereignty And Regionalism, Horacio A. Grigera Naón
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Private Information And The Deterrent Effect Of Antitrust Damage Remedies, Jonathan Baker
Private Information And The Deterrent Effect Of Antitrust Damage Remedies, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.