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Full-Text Articles in Law

Rethinking Commodification: Cases And Readings In Law And Culture, Martha Ertman, Joan Williams Nov 2011

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 Nov 2011

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 Oct 2011

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 Oct 2011

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 Jul 2011

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 Jul 2011

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 May 2011

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 May 2011

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 Apr 2011

Preface To The Gateway Thread, Deborah W. Post

Deborah W. Post

No abstract provided.


Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz Apr 2011

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 Apr 2011

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 Apr 2011

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 Mar 2011

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 Feb 2011

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 Feb 2011

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 Jan 2011

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 Jan 2011

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 Jan 2011

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 Jan 2011

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 Jan 2011

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 Jan 2011

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 Jan 2011

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 Jan 2011

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 Jan 2011

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 Jan 2011

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 Jan 2011

Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock

Faculty Scholarship

No abstract provided.


Choice Of Law: Defining The Place Of Performance For General Contract Disputes In Oklahoma, Patrick L. Stein Jan 2011

Choice Of Law: Defining The Place Of Performance For General Contract Disputes In Oklahoma, Patrick L. Stein

Oklahoma Law Review

No abstract provided.


The Dispute On The Horizon: Contracting For Effective Dispute Resolution In International Business Transactions A U.S. Perspective, William P. Johnson Jan 2011

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 Jan 2011

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 …


Website Design As Contract, Woodrow Hartzog Jan 2011

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 …