Law Commons^™

Franchising In The Shadow Of Contract Law: A New Fidelity For Business Relations, Richard Haigh

Richard Haigh

No abstract provided.

Panel 2: Restitution Law, Andrew Kull, Dan Priel, Benjamin Geva, Poonam Puri

Benjamin Geva

PANEL II: RESTITUTION LAW: Poonam Puri, Associate Dean, Osgoode Hall Law School; Speaker: Andrew Kull, Professor, Boston University, "A Consideration Which Happens to Fail"; Speaker: Dan Priel, Professor, Osgoode Hall Law School, "Justice and Unjust Enrichment"; Discussant: Benjamin Geva, Professor, Osgoode Hall Law School.

Authority For Sale And Privity Of Contract: The Proprietary Basis Of The Right To The Proceeds Of Sale In The Common Law, Benjamin Geva

Benjamin Geva

Upon an authorized sale of goods, the owner's ability to recover the price from the buyer can be explained either by his property in the goods or by a contractual relationship. This article deals with the right to recover the price in the context of an historical and theoretical analysis of the right to the proceeds of a sale at common law. It is suggested that property is the basis of this right, rather than a contractual nexus. Part I presents the sale of goods by an agent of an undisclosed principal as a model situation in which the right …

Panel 2: Restitution Law, Andrew Kull, Dan Priel, Benjamin Geva, Poonam Puri

Dan Priel

PANEL II: RESTITUTION LAW: Poonam Puri, Associate Dean, Osgoode Hall Law School; Speaker: Andrew Kull, Professor, Boston University, "A Consideration Which Happens to Fail"; Speaker: Dan Priel, Professor, Osgoode Hall Law School, "Justice and Unjust Enrichment"; Discussant: Benjamin Geva, Professor, Osgoode Hall Law School.

The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson

J.S. Nelson

Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson

Lyman P. Q. Johnson

This short article is based on a talk at Emory Law School on Transactional Lawyering. One overall pedagogical aim of a transactional course (or any business contract drafting course) is to link skills training with insistence on in-depth substantive learning about law and business. In this way, skills training – although acknowledged to be practical – also can be recognized as intellectually demanding, a point not always appreciated by proponents of more traditional law teaching. Two techniques for making the connection – in-office meetings and detailed “companion” analytical memos – are described.

Remedies: A Guide For The Perplexed, Doug Rendleman

Doug Rendleman

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

Panel 1: Contract Law, Stephen Waddams, Michael Pratt, Angela Swan, Stephanie Ben-Ishai

Stephanie Ben-Ishai

INTRODUCTION: Lorne Sossin, Dean, Osgoode Hall Law School; Stephanie Ben-Ishai, Professor, Osgoode Hall Law School; Jamie Cameron, Professor, Osgoode Hall Law School. PANEL I: CONTRACT LAW: Moderator: Stephanie Ben-Ishai, Professor, Osgoode Hall Law School; Speaker: Stephen Waddams, Professor, Faculty of Law, University of Toronto, "Mistakes in Assumptions"; Speaker: Michael Pratt, Professor, Faculty of Law, Queen's University, "The Intention to Create Legal Relations and Disclaimers"; Discussant: Angela Swan, Counsel, Legal Education, Aird & Berlis LLP.

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Doug Rendleman

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …

Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii

James T Gathii

No abstract provided.

The Tort Foundation Of Duty Of Care And Business Judgment, Robert Rhee

Robert Rhee

This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort prinicples is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, …

Hoja De Vida, Marta Luisa Ramirez Mejia Ms

MARTA LUISA RAMIREZ MEJIA MS

No abstract provided.

Tenure Rights In Contractual And Constitutional Context, Ronald C. Brown

Ronald Brown

No abstract provided.

Por La Supremacía Del Crédito Inscrito Ante La Propiedad No Inscrita., Fort Ninamancco Córdova

Fort Ninamancco Cordova

Nota publicada en El Peruano, que contiene una breve síntesis de mi ponencia como Amicus curiae ante el VII Pleno Casatorio Civil. De igual forma, denuncio la falsedad que se ha venido difundiendo, según la cual el TC y la Corte CIDH tiene decisiones que favorecen la primacía de la propiedad no inscrita, cuando, en realidad, sucede todo lo contrario.

Thinking Outside The Four Corners Of Contract Doctrine, Mark Burge

Mark Edwin Burge

No abstract provided.

La Supremacía Constitucional Del Crédito Inscrito Sobre La Propiedad No Inscrita, Fort Ninamancco Córdova

Fort Ninamancco Cordova

Ensayo en el que se desmienten ciertas afirmaciones, de corte constitucional, sobre el VII Pleno Casatorio Civil.

Payment Methods For Consumer-To-Consumer Online Transactions, 35 Akron L. Rev. 1 (2001), David E. Sorkin

David E. Sorkin

No abstract provided.

Using Occam’S Razor To Solve International Attorney-Client Privilege Choice Of Law Issues: An Old Solution To A New Problem, Nathan M. Crystal, Francesca Giannoni-Crystal

Nathan M. Crystal

The practice of law is increasingly becoming “delocalized.” Globalization and the use of technology are two important factors in this fundamental change in practice. Delocalization is affecting almost all areas of practice, including issues involving attorney-client privilege (ACP). To some extent the choice-of-law rules governing ACP are also – like other fields of the law - being “delocalized,” but in our view only partially. This paper discusses six approaches to choice of law issues governing ACP that are being used by the courts. Aside from the traditional lex loci approach (which simply applies the law of the forum to the …

Crossing Parallel Lines: The State Of The First Sale Doctrine After Costco V. Omega, 8 Buff. Intell. Prop. L.J. 26 (2012), Maureen Collins

Maureen B. Collins

No abstract provided.

Determining Limitation Periods For Actions Arising Under Federal Statutes, Neil Sobol

Neil L Sobol

No abstract provided.

The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes

Wayne R. Barnes

Most of the world, including Anglo-American jurisdictions, conforms to the objective theory of contract, which posits that contract formation is determined by reference solely to external evidence of manifestations of assent. On the other hand, France uniquely clings to the rhetoric of its “subjective” theory of contract, championing the freedom of the individual and the autonomy of the will. France’s association with a subjective theory of contract is widely recognized and assumed. One would initially assume that the French subjectivist philosophy would result in dramatically different outcomes in actual cases, when compared with the objectivist rules-based perspective that obtains in …

The Objective Theory Of Contracts, Wayne Barnes

Wayne R. Barnes

The objective theory of contracts is the dominant approach for determining whether there has been mutual assent to the formation of a contract. Under objective theory, a party’s manifestation of assent will be held to mean what a reasonable person in the position of the other party would conclude that the manifestation meant. The objective theory is a sound approach for determining assent because: it reflects the pragmatic reality that the law must be largely based on externals rather than the whim of subjective perception, it protects the basis for economic exchanges in our commercial system by enforcing the expectations …

Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes

Wayne R. Barnes

The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …

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

Wayne R. Barnes

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 …

Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes

Wayne R. Barnes

When Allan Farnsworth passed away on January 31, 2005, the world lost a titan in the field of contracts. Farnsowrth has been described as “the great contemporary American scholar, and one of a handful of great world scholars, on the law of agreement...[He] was...perhaps The Authority on the law of contracts and much more.” Similarly, others have called him “the premiere figure in American Contracts law scholarship since the passing of Corbin and Dawson. The treatise and his half of the Second Restatement would be quite a contribution if there was nothing else.” Farnsworth’s casebook is perennially the most widely-adopted …

Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes

Wayne R. Barnes

Standard-form contracts permeate our very existence, and now even include contracts we assent to online by way of “clickwrap” and “browsewrap” methods. Notwithstanding the ever-increasing presence and complexity of such standard-form contracts, both offline and online, the law of contracts in this area has remained fairly static since the 18th century and before. The only meaningful salve to this problem thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to protect consumers’ interests in this area. Section 211(3) of the Restatement …

Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes

Wayne R. Barnes

The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …

Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge

Mark Edwin Burge

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. …

Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes

Wayne R. Barnes

When Allan Farnsworth passed away on January 31, 2005, the world lost a titan in the field of contracts. Farnsowrth has been described as “the great contemporary American scholar, and one of a handful of great world scholars, on the law of agreement...[He] was...perhaps The Authority on the law of contracts and much more.” Similarly, others have called him “the premiere figure in American Contracts law scholarship since the passing of Corbin and Dawson. The treatise and his half of the Second Restatement would be quite a contribution if there was nothing else.” Farnsworth’s casebook is perennially the most widely-adopted …

Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge

Mark Edwin Burge

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. …