Law Commons^™

The New Bailments, Danielle D’Onfro

Washington Law Review

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Hostile Restructurings, Diane L. Dick

Washington Law Review

The conventional wisdom holds that out-of-court loan restructurings are mostly consensual and collaborative. But this is no longer accurate. Highly aggressive, nonconsensual restructuring transactions—what I call “hostile restructurings”—are becoming a common feature of the capital markets. Relying on hypertechnical interpretations of loan agreements, one increasingly popular hostile restructuring method involves issuing new debt that enjoys higher priority than the existing debt; another involves transferring the most valuable collateral away from existing lenders to secure new borrowing.

These transactions are distinguishable from normal out-of-court restructurings by their use of coercive tactics to overcome not only the traditional minority lender holdout problem, …

Contracting In The Age Of Smart Contracts, Farshad Ghodoosi

Washington Law Review

Smart contracts lie at the heart of blockchain technology. There are two principal problems, however, with existing smart contracts: first, the enforceability of smart contracts remains ambiguous. Second, smart contracts are limited in scope and capability barring more complex contracts from being executed via blockchain technology. Drawing from the existing literature on contracts and smart contracting, this Article suggests new approaches to address these two problems. First, it proposes a framework based on reliance-based contracting to analyze smart contracts. Second, the Article analyzes the seismic shifts in contractual disputes, and offers new insights into its features including decentralized decision-making, network-based …

Super-Statutory Contracting, Kristelia A. García

Washington Law Review

The conventional wisdom is that property rules induce more—and more efficient—contracting, and that when faced with rigid property rules, intellectual property owners will contract into more flexible liability rules. A series of recent, private copyright deals show some intellectual property owners doing just the opposite: faced with statutory liability rules, they are contracting for more protection than that dictated by law, something this Article calls “super-statutory contracting”—either by opting for a stronger, more tailored liability rule, or by contracting into property rule protection. Through a series of deal analyses, this Article explores this counterintuitive phenomenon, and updates seminal thinking on …

Clarifying Washington's Approach To The Independent Duty Doctrine, Margaret Wykowski

Washington Law Review

When faced with limited or no recovery under contract law, resourceful lawyers often turn to tort law. The economic loss rule restricts this practice by barring recovery in tort for solely economic losses. However, what qualifies as “economic loss” is not always clear. In 2010, the Washington State Supreme Court announced it was clarifying the economic loss rule by adopting the independent duty doctrine. Rather than analyze the type of loss suffered, the independent duty doctrine determines whether a party owed a tort duty independent of the relevant contract, closely mirroring a traditional tort inquiry. When establishing the independent duty …

No Forum To Rule Them All: Comity And Conflict In Transnational Frand Disputes, Eli Greenbaum

Washington Law Review

Recent years have seen an explosion in FRAND litigation, in which parties commit to license intellectual property under “fair, reasonable and non-discriminatory” (FRAND) terms, but they cannot agree on the meaning of that commitment. Much of this litigation is multinational and involves coordinating patent, antitrust, and contract claims across several jurisdictions. A number of courts and commentators have aimed to centralize and thereby streamline these disputes, whether by consolidating all litigation in one judicial forum or through the creation of a comprehensive arbitral process. This Article argues that such efforts are misguided—FRAND disputes are particularly unamenable to centralization, and the …

Contract Interpretation With Corpus Linguistics, Stephen C. Mouritsen

Washington Law Review

Courts and scholars disagree about the quantum of evidence that is necessary to determine the meaning of contractual provisions. Formalists favor excluding extrinsic evidence unless the contractual text is found to be ambiguous. Contextualists, by contrast, look to extrinsic evidence to support claims about contractual meaning even absent a finding of ambiguity. The formalist approach is faulted for failing to provide a meaningful account of the parties’ intentions and for placing heavy reliance upon the judge’s own linguistic intuitions and general-use English dictionaries—both problematic guides to plain meaning. At the same time, the contextualist approach may impose significant costs on …

Contracts Mattered As Much As Copyrights, Robert W. Gomulkiewicz

Articles

Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. Contracts gave copyrights vitalilty. This article explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern “internet” at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from archival research, the article shows how this network of copyright contracts advanced an important goal of copyright: the spread of ideas and information throughout all parts of society. Appreciating the historical significance of copyright contracts provides valuable context for modern debates about copyright policy. Indeed, …

Reversing The Reliance Revolution In Contract, Eric Alden

Washington Law Review

During the past century, leading American academics have attempted to rewrite in radically altered form the theoretical foundation of liability in contract. In derogation of the historical bases for contractual liability in Anglo-American law, namely voluntary mutual exchange and “formal” contract, these intellectual revolutionaries desire to impose strict liability in contract on the basis of unilateral, unbargained-for reliance. The centerpiece of this revisionist effort has been the novel and artificial doctrine of “promissory estoppel,” first advanced by Williston and Corbin in the Restatement of the Law of Contracts published in 1932. The invention of this doctrine has been accompanied by …

Smart Contracts, Blockchain, And The Next Frontier Of Transactional Law, Scott A. Mckinney, Rachel Landy, Rachel Wilka

Washington Journal of Law, Technology & Arts

Smart contracts are an emerging technology that could revolutionize commercial transactions by eliminating inefficiencies and uncertainty created by the current transactional ecosystem of lawyers, courts, regulators, banks, and other parties with divergent interests. However, a lack of consensus around how smart contracts are implemented, uncertainty regarding enforceability, and scarcity of on point statutes and case law means that a stable legal, commercial and technical smart contract landscape has yet to emerge. The implementation of universal legal, technical and commercial standards and best practices will reduce uncertainty and promote widespread adoption and use of smart contracts.

Beyond Corporate Contract: A Response To Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions In Corporate 'Contracts', Verity Winship

Washington Law Review Online

This piece is a response to Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions in Corporate “Contracts”, 93 Wash. L. Rev. 265 (2018).

Beyond Corporate Contract: A Response To Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions In Corporate 'Contracts', Verity Winship

Washington Law Review Online

This piece is a response to Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions in Corporate “Contracts”, 93 Wash. L. Rev. 265 (2018).

Is The License Still The Product?, Robert W. Gomulkiewicz

Articles

The Supreme Court rejected the use of patent law to enforce conditional sales contracts in Impression Products v. Lexmark. The case appears to be just another step in the Supreme Court’s ongoing campaign to reset the Federal Circuit’s patent law jurisprudence. However, the decision casts a shadow on cases from all federal circuits that have enforced software licenses for more than 20 years and potentially imperils the business models on which software developers rely to create innovative products and to bring those products to market in a variety of useful ways.

For over two decades, we could say that …

The Costly Problem Of Poorly Drafted Choice Of Law Clauses, Daniel C.K. Chow

Washington Law Review Online

This piece is a response to John Coyle, The Canons of Construction for Choice-of-Law Clauses, 92 Wash. L. Rev. 631 (2017).

An "App" For Third Party Beneficiaries, David G. Epstein, Alexandra W. Cook, J. Kyle Lowder, Michelle Sonntag

Washington Law Review

Every year, more than 100 reported court opinions consider the question of whether an outsider can sue for damages under a contract made by others—in part because the law is so ambiguous. While contract enforcement by a third party is controlled largely by the facts of the particular case, it also materially depends upon the relevant legal standards. At present, not just the standards, but also the reasons for these standards, are unclear. Eighty years ago, Lon Fuller, a professor teaching contracts at a then-Southern law school, and William Perdue, a student at that school, significantly clarified and improved decision-making …

Reflections On Contracts In The Real World: History, Currency, Context, And Other Values, Lawrence A. Cunningham

Washington Law Review

It is gratifying to read that this symposium issue of the Washington Law Review was stimulated by Contracts in the Real World. Thanks to the editors for the opportunity to ruminate on the place of the book’s approach—stressing context through stories—in the tradition of contracts pedagogy. To that end, Part I first pinpoints relevant historical milestones in the field of contracts casebooks. Building on that historical grounding, Part II then highlights the values of currency and context that the stories approach epitomizes. Turning more speculative, Part III considers the value of this approach from the perspective of the purpose …

Contract Stories: Importance Of The Contextual Approach To Law, Larry A. Dimatteo

Washington Law Review

How law is taught is at the center of the debate over the need to change legal education to better prepare students for a difficult and changing marketplace for legal services. This Article analyzes the benefits of using “stories” to teach law. The stories to be discussed relate to contract law: this Article asks whether they can be used to improve the method and content of teaching law. The ruminations offered on teaching contract law, however, are also relevant to teaching other core, first-year law courses.

Contract As Pattern Language, Erik F. Gerding

Washington Law Review

This essay examines how patterns enable the transformation of contractual provisions into contracts, contracts into transactions, and transactions into markets. Although contract design patterns are broader than contract boilerplate (as described in Part II.C. below), some of the extensive legal scholarship on boilerplate19 helps explain how contract patterns generate agreements, transactions, and markets. The work of Henry Smith on the modularity of contract boilerplate proves particularly useful in this regard. Contract patterns perform several functions. Contract patterns break complex problems and bargains into components. Attorneys can then repeatedly apply these particular solutions to similar problems. Patterns also serve as heuristics …

Cases And Controversies: Some Things To Do With Contracts Cases, Charles L. Knapp

Washington Law Review

As a co-author of one of the two dozen or more currently-in-print Contracts casebooks, I obviously have both a point of view about, and a personal stake in, the survival of this particular method of instruction. Whether the legal casebook—or any other book, in the form of bound sheets of paper—will remain a part of our academic culture much longer is clearly up for grabs, however. Electronic records have so many advantages over the printed page that, at least for many purposes, they will surely become the dominant form of preserving, retrieving, and transmitting information, if indeed they are not …

Unilateral Reordering In The Reel World, Jake Linford

Washington Law Review

Professor Larry Cunningham’s new book, Contracts in the Real World, demonstrates that there is much to learn about contract law from a few well-chosen stories. The goal of this Essay is to provide a similar service, relying on stories gleaned from movies and television—contracts in the “reel world,” so to speak—to illustrate and then undermine the traditional stories told about contract formation and modification. We can learn much from the scenes discussed herein about how consumers might be led to think contracts are formed, and perhaps misled about the certainty contracts provide.

Unpopular Contracts And Why They Matter: Burying Langdell And Enlivening Students, Jennifer S. Taub

Washington Law Review

Thus, the purpose of this piece is to provide an alternative: a transformation of how Contracts is taught in law schools so that we meet a variety of educational objectives. This is less of a prescription than it is a resolution made in the public sphere: a promise to shake things up in my own classroom and thus hopefully do better by students in the long run. It is also the beginning of a search to benchmark against the practices of others, and to seek input from those who have already begun to transform their Contracts teaching materials and methods. …

The Perspective Of Law On Contract, Aditi Bagchi

Washington Law Review

What is the perspective of law on contract? This Article will consider two dimensions of the perspective we offer students. Part I will consider how we present the nature of contract law. That is, it will explore the extent to which traditional methods of teaching unduly underplay indeterminacy and disagreement. In that Part I distinguish between inductive and deductive legal reasoning and suggest we may give short shrift to the former in teaching. Part II will consider the attitude of the law toward contract as a social practice. Here I distinguish between internal and external perspectives on law and suggest …

Contract Texts, Contract Teaching, Contract Law: Comment On Lawrence Cunningham, Contracts In The Real World, Brian H. Bix

Washington Law Review

Lawrence Cunningham’s Contracts in the Real World offers a good starting place for necessary conversations about how contract law should be taught, and, more generally, for when and how cases—in summary form or in longer excerpts—are useful in teaching the law. This Article tries to offer some reasons for thinking that their prevalence may reflect important truths about contract law in particular and law and legal education in general.

Washington's Electronic Signature Act: An Anachronism In The New Millennium, Stephanie Curry

Washington Law Review

Today, electronic contracting is at the forefront of how consumers, governments, and businesses conduct their affairs. Over the last several decades, electronic contracting has taken on new forms that have raised doubts about contract formation and enforceability. In order to facilitate commerce, the federal government and forty-nine states have responded by passing legislation that gives broad legal recognition to electronic signatures. Washington State is currently the only state that has not updated its electronic signature statute to comport with modern technology and ways of doing business. As a result, Washington’s Electronic Authentication Act is likely preempted by federal law, and …

Stevens V. Publicis: The Rise Of "No E-Mail Modification" Clauses?, Stephanie Holmes

Washington Journal of Law, Technology & Arts

E-mails occupy an ambiguous space between informal oral conversation and formal written documents. Their legal significance in contract modification is, however, becoming increasingly clear. In April 2008, the Supreme Court of New York, Appellate Division, decided Stevens v. Publicis, S.A. and in the process, raised the legal status of e-mail exchanges in the context of contract modification. Before Stevens v. Publicis, S.A., an e-mail could constitute a “signed writing” under New York law, thus satisfying the statute of frauds. An e-mail exchange could also amend a contract if, for instance, it had been validated by the parties’ reliance on …

Electronic Pitfalls: The Online Modification Of Ongoing Consumer Service Agreements, Ben Casady

Washington Journal of Law, Technology & Arts

This Article examines the procedure for online modification of an ongoing consumer contract. It reviews the relevant case law, including Douglas v. U.S. District Court, a recent Ninth Circuit decision that calls into question the validity of changing contractual terms by merely posting the changes on the service provider’s Web site. The Article also examines the discrete components found in an effective online contract modification and provides practical pointers for contract drafters.

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws.

Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater significance lies elsewhere.

Jacobsen …

Selling It First, Stealing It Later: The Trouble With Trademarks In Corporate Transactions In Bankruptcy, Xuan-Thao Nguyen

Articles

Why does AI get two bites of the “Apple” trademark? Should AI be allowed to grant the right to use the trademark “perpetual and exclusive” with the sale of the music division and steal it back for free, ten years later? This article is part of an ongoing and broader inquiry into the intersection of trademark, contract and bankruptcy laws. This article argues that recent bankruptcy decisional law, notably the In re Exide Technologies decision, misunderstands the “perpetual and exclusive” trademark transaction, deeming it as an ordinary “license” when it is truly an outright sale. This article explains that the …

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

Washington Law Review

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 before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts 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 …

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

Washington Law Review

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 before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts 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 …