Law Commons^™

Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge

Faculty Scholarship

As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems, exemplified by Articles 3 and 4 of the Uniform Commercial …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2014 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions. Along with the usual descriptions of interesting judicial decisions in these areas, which are highlighted in the survey, there has also been important legislative progress. The 2010 amendments to U.C.C. Article 9 have been adopted in forty-nine states, the District of Columbia, and Puerto Rico, and introduced in Oklahoma. Those revisions were summarized in the Introduction to the 2009 survey. Additionally, the 2012 amendments to U.C.C. …

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

Faculty Scholarship

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. …

Duress As Rent-Seeking, Mark Seidenfeld, Murat C. Mungan

Faculty Scholarship

The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious conduct clearly are wrongful, under the doctrine of “economic duress” courts have held that other threats can be wrongful and hence the basis of a duress defense. Courts, however, have not developed a coherent understanding of what makes such non-criminal and non-tortious threats wrongful.

This Article proposes that a threat should be wrongful when …

Social Media And The Rise In Consumer Bargaining Power, Wayne R. Barnes

Faculty Scholarship

Consumers are constantly entering into form contracts, both offline and online. They do not read most of the terms, but the duty to read says the contracts are nevertheless fully enforceable. Moreover, consumers lack any real bargaining power when assenting to such contracts with merchants. Not only that, but if the products malfunctions, or they are somehow damaged by it, they will likely face the prospect of being limited in their available remedies because of boilerplate terms which are favorable to the merchant. In the “old days,” the consumer had no real recourse but to call a 1-800 number, and …

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 …

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

Faculty Scholarship

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

Faculty Scholarship

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 …

Nota Sobre El Contracte De Col·Laboració Publicoprivada [Notes On The Public-Private Partnership Contract], Vanessa Casado-Pérez

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

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 …

Rent Concessions And Illegal Contract Penalties In Texas, James P. George

Faculty Scholarship

Rent concessions-in theory a foregoing of money-ironically have become a new income source for Texas landlords. Although there is nothing wrong with discounting prices, there is something wrong with re-imposing that discount on a breaching tenant. The reimposed rent concession is a penalty that the landlord would not have collected in the routine performance of the contract and as a penalty, violates one of the oldest edicts in Anglo-American contract law.

This article arose from advice given and brief services rendered to clients in a landlord-tenant matter. Using the facts and documents from that dispute, this article reviews the history …

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

Faculty Scholarship

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 …

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

Faculty Scholarship

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 …

The Strategy Of Boilerplate, Robert B. Ahdieh

Faculty Scholarship

Boilerplate can be exciting. It is this, perhaps hard-to-swallow, proposition that the present analysis attempts to convey. Particularly in invoking the work of Thomas Schelling on the role of focal points in coordination games, it offers what can be characterized as a "strategic" theory of boilerplate, in which boilerplate plays an active, even aggressive, role.

Contrary to the relatively inert quality of boilerplate implied by conventional treatments in the legal literature, boilerplate may serve essential signaling and coordination functions in contract bargaining. In appropriate circumstances, its proposed usage may be a valuable weapon in the arsenal of a bargaining party, …

Contemplating A Civil Law Paradigm For A Future International Commercial Code, Wayne R. Barnes

Faculty Scholarship

The international community has worked toward a global law of contracts for the last century. These efforts include the Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, and the Vienna Convention for the International Sales of Goods (CISG). These texts are all tremendous achievements in their own right. However, they reflect a delicate juxtaposition of the two primary legal systems of the world --- the civil law and the common law. A consequence …

Reforming The Unbargained Contract: Avoiding Bondholder Claims For Surprise Par Calls, Robert S. Blanc, Randy D. Gordon

Faculty Scholarship

Until the last couple of decades, interest rates remained relatively stable, thus providing little incentive for corporate borrowers to seek novel ways of redeeming purportedly non-callable bonds at par. But with the advent of junk bonds and periods of great interest rate volatility, issuers have been provided with powerful incentives to explore the relatively uncharted waters of par calls. This Article examines the authority for and legality of such par calls and ultimately proposes a redefinition of the issuer-bondholder relationship. This redefinition accounts for the realities of the marketplace and should lead a return to more settled expectations in both …