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Articles 1 - 30 of 51
Full-Text Articles in Law
Contract Law And The Liberalism Of Fear, Nathan B. Oman
Contract Law And The Liberalism Of Fear, Nathan B. Oman
Faculty Publications
Liberalism’s concern with human freedom seems related to contractual freedom and thus contract law. There are, however, many strands of liberal thought and which of them best justifies contract is a difficult question. In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller offer a vision of contract based on autonomy. Drawing on the work of Joseph Raz, they argue that extending autonomy should be the law’s primary concern, which requires that we extend the range of contractual choices available. While there is much to admire in their work, I argue that autonomy as conceived by Dagan and Heller …
Cutting Pension Rights For Public Workers: Don't Look To The Courts For Help, Ronald H. Rosenberg
Cutting Pension Rights For Public Workers: Don't Look To The Courts For Help, Ronald H. Rosenberg
Faculty Publications
Every day we rely on public employees to provide us with a broad range of services necessary to daily life. These workers include public school teachers, fire and police, emergency medical technicians, park rangers, nurses just to name a few. As public employees, these people work for local and state government and they are compensated by us for their services through the taxes we pay. In general, these are modestly paid workers who also receive pensions when they retire after many years of work. Following the financial crisis of 2008-2009, government retirement trust funds significantly lost value and their long-term …
The Best And Worst Of Contracts Decisions: An Anthology, Nathan B. Oman, Daniel Barnhizer, Scott J. Burnham, Charles R. Calleros, Larry T. Garvin, Nadelle Grossman, F. E. Guerra-Pujol, Jeffrey L. Harrison, Hila Keren, Michael P. Malloy, Daniel P. O'Gorman, Deborah Post, Val Ricks, Rachel Arnow-Richman, Richard R. Carlson, Mark P. Gergen, Kenney Hegland, Nancy S. Kim, Jean Fleming Powers, Cheryl B. Preston
The Best And Worst Of Contracts Decisions: An Anthology, Nathan B. Oman, Daniel Barnhizer, Scott J. Burnham, Charles R. Calleros, Larry T. Garvin, Nadelle Grossman, F. E. Guerra-Pujol, Jeffrey L. Harrison, Hila Keren, Michael P. Malloy, Daniel P. O'Gorman, Deborah Post, Val Ricks, Rachel Arnow-Richman, Richard R. Carlson, Mark P. Gergen, Kenney Hegland, Nancy S. Kim, Jean Fleming Powers, Cheryl B. Preston
Faculty Publications
Five hundred years ago, the common law of contract was without substance. It was form-procedure. Plaintiffs picked a form of action, and common law judges made sure someone besides themselves answered all the hard questions; the parties, a jury, or a ritual determined the winner and the remedy. Judges ran a switch on a conflicts-resolution railway. Thomas More, when Chancellor of England (1529-33), urged judges to lay tracks and control the trains. The problem, he said, was that the judges, "by the verdict of the jury[,] cast off all quarrels from themselves." The judges soon assumed greater authority, taking responsibility …
Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman
Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman
Faculty Publications
Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract …
Dealing With Installment Sales 35 Years After The Installment Sales Revision Act Of 1980, Robert D. Schachat
Dealing With Installment Sales 35 Years After The Installment Sales Revision Act Of 1980, Robert D. Schachat
William & Mary Annual Tax Conference
No abstract provided.
Indiana And Doux Commerce, Nathan B. Oman
The Need For A Law Of Church And Market, Nathan B. Oman
The Need For A Law Of Church And Market, Nathan B. Oman
Faculty Publications
This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought for the …
Boilerplate Symposium I: Peter Alces On Consent, Peter A. Alces
Boilerplate Symposium I: Peter Alces On Consent, Peter A. Alces
Popular Media
No abstract provided.
Markets As A Moral Foundation For Contract Law, Nathan B. Oman
Markets As A Moral Foundation For Contract Law, Nathan B. Oman
Faculty Publications
No abstract provided.
Promise And Private Law, Nathan B. Oman
Promise And Private Law, Nathan B. Oman
Faculty Publications
This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …
Adjudicating Insurance Policy Disputes: A Critique Of Professor Randall's Poposal To Abandon Contract Law, Jared A. Wilkerson
Adjudicating Insurance Policy Disputes: A Critique Of Professor Randall's Poposal To Abandon Contract Law, Jared A. Wilkerson
W&M Law Student Publications
No abstract provided.
Consent To Retaliation: A Civil Recourse Theory Of Contractual Liability, Nathan B. Oman
Consent To Retaliation: A Civil Recourse Theory Of Contractual Liability, Nathan B. Oman
Faculty Publications
In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was an enacted penalty clause: “If I breach this contract, let it be done to me as we are doing to the goat.” This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promise making, or by the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the …
They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield
They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield
Faculty Publications
No abstract provided.
Contract Is Context, Peter A. Alces
A Pragmatic Defense Of Contract Law, Nathan B. Oman
A Pragmatic Defense Of Contract Law, Nathan B. Oman
Faculty Publications
No abstract provided.
Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne
Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne
Faculty Publications
No abstract provided.
Specific Performance And The Thirteenth Amendment, Nathan B. Oman
Specific Performance And The Thirteenth Amendment, Nathan B. Oman
Faculty Publications
No abstract provided.
The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl
The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl
Faculty Publications
This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …
Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg
Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg
W&M Law Student Publications
No abstract provided.
Unintelligent Design In Contract, Peter A. Alces
Unintelligent Design In Contract, Peter A. Alces
Faculty Publications
Scholars have expended considerable energy in the effort to "discover" a normative theory of Contract. This Article surveys that effort and concludes that something fundamental about Contract has been missed and has frustrated the search from the outset. Succinctly, Contract doctrine resists the neat formulation theory requires. Theorists' perspectives on Contract may be generalized as attempts to impute either deontology or consequentialism to the Contract law. Focusing largely on deontological constructions of Contract, this Article demonstrates the inconsistencies among the extant heuristics-promise, reliance, and transfer-and more importantly, the failure of any of those constructions to provide a coherent explanation of …
Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins
Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins
Faculty Publications
No abstract provided.
The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman
The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman
Faculty Publications
The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …
Guerilla Terms, Peter A. Alces
Exclusive Dealing, The Theory Of The Firm, And Raising Rivals' Costs: Toward A New Synthesis, Alan J. Meese
Exclusive Dealing, The Theory Of The Firm, And Raising Rivals' Costs: Toward A New Synthesis, Alan J. Meese
Faculty Publications
No abstract provided.
Should Liability Play A Role In The Social Control Of Biobanks?, Larry I. Palmer
Should Liability Play A Role In The Social Control Of Biobanks?, Larry I. Palmer
Faculty Publications
No abstract provided.
On Discovering Doctrine: "Justice" In Contract Agreement, Peter A. Alces
On Discovering Doctrine: "Justice" In Contract Agreement, Peter A. Alces
Faculty Publications
No abstract provided.
Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman
Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman
Faculty Publications
One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure …
Unity And Pluralism In Contract Law, Nathan B. Oman
Unity And Pluralism In Contract Law, Nathan B. Oman
Faculty Publications
No abstract provided.
Contract Reconceived, Peter A. Alces
Regret And Contract "Science", Peter A. Alces
Regret And Contract "Science", Peter A. Alces
Faculty Publications
No abstract provided.