Law Commons^™

Mandatory Arbitration: Alternative Dispute Resolution Or Coercive Dispute Suppression?, Sharona Hoffman

Faculty Publications

The enforceability of mandatory arbitration policies contained in employment contracts between employees and their direct employers remains an open question, even after the Supreme Court's 1991 decision in Gilmer v. Interstate Johnson Lane Corp. While Gilmer gave effect to a mandatory arbitration clause in a contract between a securities broker and his licensing exchange, the Court noted that the contract at issue was not an ordinary employment contract between employer and employee. The Court declined to decide whether arbitration agreements in ordinary employment contracts are per se enforceable under the Federal Arbitration Act or whether these provisions are exempt from …

Severability In Statutes And Contracts, Mark L. Movsesian

Faculty Publications

Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in …

Wrong Side Of The Mountain: A Comment On Bad Faith's Unnatural History, Robert H. Jerry Ii

Faculty Publications

In this Comment, I will argue that courts have ignored bad faith's contractual heritage and have undervalued contract law's ability to respond to insurer misconduct. To draw upon Professor Powers's thoughtful analysis, I believe that courts invoked the tort paradigm before it was clear that the contract paradigm was inadequate. For lack of data, I will stop short of recommending where we should go from here, but I will suggest that our behavior in the face of bad faith liability in tort may have changed no less than the environment and that the perceived relative calm in the tort's current …

A Pragmatic Strategy For The Scope Of Sales Law, The Statute Of Frauds, And The Global Currency Bazaar, Raj Bhala

Faculty Publications

No abstract provided.

The Differing Treatment Of Efficiency And Competition In Antitrust And Tortious Interference Law, Gary Myers

Faculty Publications

During the last twenty years, there has been a revolution in antitrust law. As a result of extensive scholarly and judicial analysis, a new learning has developed concerning the content, role, and effect of antitrust doctrines. This trend has focused primarily on the primacy of consumer welfare and economic efficiency. Most commentators now assume that these two interrelated goals are the principal, if not exclusive, concerns of antitrust law. The United States Supreme Court has responded to these new approaches by modifying or altering antitrust law in a long series of cases. Similarly, the new learning has affected the focus …

Bargaining With Uncertainty, Moral Hazard And Sunk Costs: A Default Rule For Precontractual Negotiations, Juliet P. Kostritsky

Faculty Publications

Drawing from a model of bargaining behavior based on transaction cost economics, relational theories of contract,23 Williamsonian models of contracting behavior, and other economic insights, this Article argues that achieving the optimal solution for the complexities of bargaining relationships demands the adoption of a new legal default rule. This new default rule should have two aspects: First, the law should substantively recognize an implicit bargain, even in the absence of explicitly reciprocal communications. Second, the law should impose an obligation to perform that incorporates the terms of the parties' unexpressed, implicit bargain.

Looking For Default Rule Legitimacy In All The Wrong Places: A Critique Of The Authority Of Contract Model And The Coordination Principle Proposed By Professor Burto, Juliet P. Kostritsky

Faculty Publications

A central question of contract law remains: when should the law supply a term not expressly agreed to? Many scholars have addressed that question, yet the justification for law- supplied terms often remains unconvincing. Because many proposals to supply terms do not incorporate a comparative frameworkfor assessing the costs and benefits of legal interventions, they are incompletely justifled. This Article proposes that a comparative net benefit approach (developed in institutional economics to explain private arrangements) be adapted and expanded to resolve fundamental issues of legal intervention. This Article uses that framework to critique the (1) hypothetical bargain and (2) Ayres/Gertner …

Statutory Personal Property Lease Law In Alabama, Peter A. Alces, P. Cade Newman

Faculty Publications

No abstract provided.

Stepping Out Of The Morass Of Duress Cases: A Suggested Policy Guide, Juliet P. Kostritsky

Faculty Publications

Traditional coercion theories and elements are simply inadequate as an exclusive focus of analysis in duress cases. This Article does not propose a new theory of duress. Instead, it suggests a refinement of doctrine in which the courts candidly articulate certain key policy goals and develop elements based on them. These policy goals include efficiency, disclosure of unexpected risks, judicial capability, reliance, and economic incentives. If decisionmakers adopted the policy analyses suggested here, the predictability of judicial decisionmaking would be enhanced and a supplemental analysis would be available when the doctrinal elements become difficult to apply. Moreover, this approach would …

Covenant, Justicies Writs, And Reasonable Showings, Robert C. Palmer

Faculty Publications

No abstract provided.

A New Theory Of Assent-Based Liability Emerging Under The Guise Of Promissory Estoppel: An Explanation And Defense, Juliet P. Kostritsky

Faculty Publications

This Article will demonstrate that these apparently divergent approaches (bargain and promissory estoppel) share unifying elemental criteria that situate them all squarely within an assent-based theory of enforceability. This Article differs from scholarship that depicts promissory estoppel as having a different conceptual or theoretical basis for enforcement. This Article posits that promissory estoppel, together with other orthodox doctrines, are merely substitute doctrinal methods for showing the assent required for an enforceable consensual exchange.

A Critical Analysis Of The New Uniform Fraudulent Transfer Act, Peter A. Alces, Luther M. Dorr

Faculty Publications

No abstract provided.

The Efficacy Of Guaranty Contracts In Sophisticated Commercial Transactions, Peter A. Alces

Faculty Publications

Even though contracts of guaranty are not subject to uniform standards of interpretation throughout the states, both case law and statutory development have tended to evidence a strong sympathy for the guarantor. In spite of this trend, Professor Alces suggests that creditors' counsel can, through careful drafting, do much to assure the enforceability of the guaranty contract. A scrupulously structured guaranty contract, one that anticipates possible defenses to liability in explicit terms, may well be upheld, even in cases in which guarantors occupied weak negotiating positions vis-a-vis creditors. Moreover, the attack on the guaranty as a fraudulent conveyance under section …

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

Faculty Publications

No abstract provided.

Punitive Damages In The Law Of Contract: The Reality And The Illusion Of Legal Change, Timothy J. Sullivan

Faculty Publications

No abstract provided.

The Concept Of Benefit In The Law Of Quasi-Contract, Timothy J. Sullivan

Faculty Publications

No abstract provided.

Application Of Article 85 Paragraph 1, Of The Treaty Of Rome To Intrastate Exclusive Distributorship Agreements, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Contracts And Sales, Joseph Curtis

Faculty Publications

No abstract provided.

Contracts And Sales, Joseph Curtis

Faculty Publications

No abstract provided.

Contracts And Sales, Joseph Curtis

Faculty Publications

No abstract provided.

Contracts And Sales, Joseph Curtis

Faculty Publications

No abstract provided.

Contracts And Sales, Joseph Curtis

Faculty Publications

No abstract provided.

California Conflict Of Laws In Regard To Contracts, Joseph M. Cormack

Faculty Publications

No abstract provided.

Conflict Of Laws In Regard To Contracts In Field Code States Other Than California, Joseph M. Cormack

Faculty Publications

No abstract provided.

Book Review Of Cases And Materials On Contracts, Dudley Warner Woodbridge

Faculty Publications

No abstract provided.

Above The Law, Lucian Minor

Faculty Publications

No abstract provided.