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Articles 1 - 30 of 35
Full-Text Articles in Law
Rethinking Commodification: Cases And Readings In Law And Culture, Martha Ertman, Joan Williams
Rethinking Commodification: Cases And Readings In Law And Culture, Martha Ertman, Joan Williams
Martha M. Ertman
What is the price of a limb? A child? Ethnicity? Love? In a world that is often ruled by buyers and sellers, those things that are often considered priceless become objects to be marketed and from which to earn a profit. Ranging from black market babies to exploitative sex trade operations to the marketing of race and culture, Rethinking Commodification presents an interdisciplinary collection of writings, including legal theory, case law, and original essays to reexamine the traditional legal question: ̶To commodify or not to commodify?” In this pathbreaking course reader, Martha M. Ertman and Joan C. Williams present the …
Contracting For Procedure, Kevin E. Davis, Helen Hershkoff
Contracting For Procedure, Kevin E. Davis, Helen Hershkoff
William & Mary Law Review
Judicial decisions of public courts increasingly are based on “contract procedure,” private rules of procedure that the parties draft and assent to before a dispute even has arisen. These rules govern such matters as the forum in which the proceeding will be conducted, whether a jury will be involved in adjudicating the dispute, the scope of rights of discovery, and rules of evidence. The practice deserves greater attention and should raise more profound concerns than the academic literature currently suggests. We argue that contract procedure operates as a form of privatization that effectively outsources government functions to private contracting parties. …
A Pro-Congress Approach To Arbitration And Unconscionability, Stephen Friedman
A Pro-Congress Approach To Arbitration And Unconscionability, Stephen Friedman
Stephen E Friedman
This Essay endeavors to resolve a current controversy involving the application of the unconscionability doctrine to arbitration agreements. The pro-arbitration policies of the Federal Arbitration Act (FAA) and the anti-arbitration instincts of the unconscionability doctrine are difficult to reconcile. Instead of clarity in this area of law, we have a series of hints and clues, often contradictory, from the Supreme Court. Although Professor David Horton and I share a desire to clarify this area of the law, we have nearly opposite views about how this should be accomplished. This Essay sets forth my position and also responds to Unconscionability Wars, …
Breaching The Mortgage Contract: The Behavioral Economics Of Strategic Default, Tess Wilkinson-Ryan
Breaching The Mortgage Contract: The Behavioral Economics Of Strategic Default, Tess Wilkinson-Ryan
Vanderbilt Law Review
Underwater homeowners face a quandary: Should they make their monthly payments as promised or walk away and save money? Traditional economic analysis predicts that homeowners will strategically default (voluntarily enter foreclosure) when it is cheaper to do so than to keep paying down the mortgage debt. But this prediction ignores the moral calculus of default, which is arguably much less straightforward. On the one hand, most people have moral qualms about breaching their contracts, even when the financial incentives are clear. On the other hand, the nature of the lender-borrower relationship is changing and mortgage lenders are increasingly perceived as …
Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz
Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz
Rena C. Seplowitz
No abstract provided.
Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena Seplowitz
Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena Seplowitz
Rena C. Seplowitz
No abstract provided.
Aplicaciones Prácticas Del Behavioral Law And Economics: ¿Superando Sesgos Cognitivos?, Renzo E. Saavedra Velazco
Aplicaciones Prácticas Del Behavioral Law And Economics: ¿Superando Sesgos Cognitivos?, Renzo E. Saavedra Velazco
Renzo E. Saavedra Velazco
En las últimas décadas los postulados del Law and Economics tradicional han venido sufriendo una serie de acotaciones por parte de los académicos de las denominadas ciencias conductuales. A pesar de las pruebas empíricas que se ofrecen para sustentar las objeciones elevadas, un sector tradicionalista se empeña, una y otra vez, en alegar la poca utilidad de esta visión alternativa. Es por esta razón que se reseñarán algunas de sus posibles aplicaciones.
Ability To Pay, John A. E. Pottow
Ability To Pay, John A. E. Pottow
Law & Economics Working Papers
The landmark Dodd-Frank Act of 2010 transforms the landscape of consumer credit in the United States. Many of the changes have been high-profile and accordingly attracted considerable media and scholarly attention, most notably the establishment of the Consumer Financial Protection Bureau (CFPB). But when the dust settled, one profoundly transformative innovation that did not garner the same outrage as CFPA did get into the law: imposing upon lenders a duty to assure borrowers’ ability to repay. Ensuring a borrower’s ability to repay is not an entirely unprecedented legal concept, to be sure, but its wholesale embrace by Dodd-Frank represents a …
Preface To The Gateway Thread, Deborah W. Post
Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz
Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz
Sidney Kwestel
No abstract provided.
Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena Seplowitz
Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena Seplowitz
Sidney Kwestel
No abstract provided.
Cause Breaking Up Is Hard To Do: The Need For Uniform Enforcement Of Cohabitation Agreements In West Virginia, Emily E. Diederich
Cause Breaking Up Is Hard To Do: The Need For Uniform Enforcement Of Cohabitation Agreements In West Virginia, Emily E. Diederich
West Virginia Law Review
No abstract provided.
Contracts As Organizations, D. Gordon Smith, Brayden G. King
Contracts As Organizations, D. Gordon Smith, Brayden G. King
Faculty Scholarship
Empirical studies of contracts have become more common over the past decade, but the range of questions addressed by these studies is narrow, inspired primarily by economic theories that focus on the role of contracts in mitigating ex post opportunism. We contend that these economic theories do not adequately explain many commonly observed features of contracts, and we offer four organizational theories to supplement-and in some instances, perhaps, challenge-the dominant economic accounts. The purpose of this Article is threefold: first, to describe how theoretical perspectives on contracting have motivated empirical work on contracts; second, to highlight the dominant role of …
Contracting Out Of Process, Contracting Out Of Corporate Accountability: An Argument Against Enforcement Of Pre-Dispute Limits On Process, Meredith R. Miller
Contracting Out Of Process, Contracting Out Of Corporate Accountability: An Argument Against Enforcement Of Pre-Dispute Limits On Process, Meredith R. Miller
Meredith R. Miller
There have been many well-articulated and convincing critiques aimed at mandatory arbitration. Indeed, presently before Congress is proposed legislation titled the Arbitration Fairness Act, that would ban pre-dispute arbitration in the consumer, franchise and employment contexts. However, maligned as the plaintiff bar's pro-lawsuit legislation, the Arbitration Fairness Act is predicted to have very little chance of enactment. Consequently, across varying industries, the pre-dispute arbitration regime endures unheedingly. Thus, this Article sets aside the arguments aimed generally at pre-dispute arbitration clauses and, instead, sets its sights on some of the terms that seem to arise in such clauses. The focus here …
Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock
Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock
William & Mary Business Law Review
This Article evaluates a conundrum and identifies a genuine risk faced by state and federal courts in interpreting and applying the Statute of Frauds to contract law disputes. The Article provides a thorough analytical dissection of the Statute of Frauds as it has been interpreted and applied by the courts in light of the inescapable tension between the Statute’s formalities, mandated by the legislature, and the judiciary’s profound goal of attaining justice and fairness in deciding each contract law dispute in which the Statute is implicated. The Article discusses in depth how the Statute has been construed by state and …
Student Film: Jacobs And Young Inc., V. George Kent, Ara Ayvazian, Ashley Haelen, Peggy Zabakolas, Larry Przetakiewicz, Michael Barchak, Andrew Koster, Cristina Puglia, Deborah Post
Student Film: Jacobs And Young Inc., V. George Kent, Ara Ayvazian, Ashley Haelen, Peggy Zabakolas, Larry Przetakiewicz, Michael Barchak, Andrew Koster, Cristina Puglia, Deborah Post
Deborah W. Post
No abstract provided.
Student Film: Stambovsky V. Ackley, Lindsey Barovick, Lauran Cannataro, Ray Castronovo, Conrad Chayes, Julia Surette, Kenneth Zawistowski, Deborah Post
Student Film: Stambovsky V. Ackley, Lindsey Barovick, Lauran Cannataro, Ray Castronovo, Conrad Chayes, Julia Surette, Kenneth Zawistowski, Deborah Post
Deborah W. Post
No abstract provided.
Student Film- In Re: Baby M, Heather Cole, John Nicodemo, Julie Perlina, Jessica Bryant, Rachel Zoltowsky, Alana Hassel, Deborah Post
Student Film- In Re: Baby M, Heather Cole, John Nicodemo, Julie Perlina, Jessica Bryant, Rachel Zoltowsky, Alana Hassel, Deborah Post
Deborah W. Post
No abstract provided.
Some Misleading Influences On The Reading Of Reinsurance Contracts: A Plea For Express Intent, Graydon S. Staring
Some Misleading Influences On The Reading Of Reinsurance Contracts: A Plea For Express Intent, Graydon S. Staring
Graydon S. Staring
Reinsurance is a business of transactions that cross national and state boundaries in great numbers and great values measured by premiums, risks and recoveries. It has very old roots as an innovative market free of control by any single nation, responsive to the intentions of parties and governed by the usages and ethical understandings of its principals inherited as part of international commercial practice. It is important that the intentions represented in its contracts be understood in whatever venue they are questioned to the same effect as they were to those who negotiated them. Although this laudable aim will occasionally …
Construction Defects: Are They “Occurrences”?, Chris French
Construction Defects: Are They “Occurrences”?, Chris French
Journal Articles
An issue in the area of insurance law that has been litigated frequently in recent years is whether construction defects are “occurrences” under Commercial General Liability (“CGL”) insurance policies. The courts have been divided in deciding the issue and in their approaches to analyzing the issue. This article addresses how the issue should be analyzed and concludes that construction defects are “occurrences”. The relevant rules of insurance policy interpretation dictate that construction defects are “occurrences”. Policy language should be interpreted in such a way as to fulfill the reasonable expectations of the policyholder when the policy is construed as a …
The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French
The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French
Journal Articles
How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …
Narrative And The Origins Of Law, Allison Anna Tait, Luke P. Norris
Narrative And The Origins Of Law, Allison Anna Tait, Luke P. Norris
Law Faculty Publications
In order to understand these distinct narratives of legal origin through the tools of narratology, we will proceed in several steps. First, we will define more precisely the set of social contract theories that we consider. We will discuss our decision to narrow the focus down to two social contract theorists in particular, one contemporary and one classical, John Rawls and Jean-Jacques Rousseau. These two theorists seem worlds apart in many respects—yet the tools of narratology will enable us to see their shared enterprise. Second, the tools of narratology will help us to identify and discuss the component parts that …
Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson
Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson
Scholarly Articles
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.
A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn
A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn
Faculty Working Papers
If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …
Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone
Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone
Faculty Publications
No abstract provided.
Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock
Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock
Faculty Scholarship
No abstract provided.
Website Design As Contract, Woodrow Hartzog
Website Design As Contract, Woodrow Hartzog
Faculty Scholarship
Few website users actually read or rely upon terms of use or privacy policies. Yet users regularly take advantage of and rely upon website design features like privacy settings. To reconcile the disparity between boilerplate legalese and website design, this article develops a theory of website design as contract. The ability to choose privacy settings, un-tag photos, and delete information is part of the negotiation between websites and users regarding their privacy. Yet courts invariably recognize only the boilerplate terms when analyzing online agreements. In this article, I propose that if significant website features are incorporated into the terms of …
The Dispute On The Horizon: Contracting For Effective Dispute Resolution In International Business Transactions A U.S. Perspective, William P. Johnson
The Dispute On The Horizon: Contracting For Effective Dispute Resolution In International Business Transactions A U.S. Perspective, William P. Johnson
All Faculty Scholarship
This Article offers a view, from a U.S. perspective but for a non-U.S. readership, on the significant aspects of planning for dispute resolution in the context of cross-border business transactions involving U.S. and non-U.S. parties. Specifically, this Article identifies the issues that parties who are located in Brazil or in other jurisdictions throughout the Americas should consider at the time of drafting, negotiating, and finalizing business contracts with U.S. counterparties, as well as business contracts that are entered into in connection with other cross-border arrangements that could involve U.S. law even when there is no U.S. counterparty, to prepare for …
Managing Moral Risk: The Case Of Contract, Aditi Bagchi
Managing Moral Risk: The Case Of Contract, Aditi Bagchi
All Faculty Scholarship
The concept of moral luck describes how the moral character of our actions seems to depend on factors outside our control. Implications of moral luck have been extensively explored in criminal law and tort law, but there is no literature on moral luck in contract law. I show that contract is an especially illuminating domain for the study of moral luck because it highlights that moral luck is not just a dark cloud over morality and the law to bemoan or ignore. We anticipate moral luck, i.e., we manage our moral risk, when we take into account the possibility that …
Choice Of Law: Defining The Place Of Performance For General Contract Disputes In Oklahoma, Patrick L. Stein
Choice Of Law: Defining The Place Of Performance For General Contract Disputes In Oklahoma, Patrick L. Stein
Oklahoma Law Review
No abstract provided.