Law Commons^™

Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey Harrison

Jeffrey L Harrison

Contract law professors and students, attorneys, judges know that discussions about consent are rarely about consent. This results from three factors. First, it is the appearance of consent that is necessary to form a contract. Second, not every manifestation of consent is sufficient to create a contract that cannot be avoided. Third, interpretations of consent have the potential to allow courts to intervene when the benefit of the bargain is seen to be unfairly divided or one of the parties is actually worse off as a result of the contract. This Article assesses the extent to which recent decisions about …

Cases And Materials On Contracts, Third Edition, John Mccamus, Stephen Waddams, M. Weldron, Jason Neyers, Michael Trebilcock

John D. McCamus

Cases and Materials on Contracts offers a comprehensive foundation for the development of a full understanding of Canadian contract law. Recent cases and materials, drawn from Canadian, Commonwealth, and American sources, have been carefully selected and edited to deliver a thorough and seamless exploration of contract law in Canada. Notes, comments, questions, and problem scenarios are incorporated liberally throughout the casebook, to fully illuminate legal intricacies and subtleties.

The Tort Foundation Of Duty Of Care And Business Judgment, Robert Rhee

Robert Rhee

This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort prinicples is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, …

Mapping Contracts, Suzanne Darrow Kleinhaus, Sidney Kwestel

Suzanne Darrow Kleinhaus

This book combines the substance of the doctrinal law with the process for learning, by providing the frameworks essential to legal analysis and connecting those frameworks to the cases from which they come. This book is keyed to the Farnsworth Contracts casebook and contains case summaries which provide the relevant facts, holding, and reasoning for every case in the casebook. It makes the learning process visible by showing how the rules from cases are synthesized to build a conceptual framework for each legal principle. Finally, the "Framework for Analysis" sections provide a blueprint for students to follow in preparing course …

Mapping Contracts, Suzanne Darrow Kleinhaus, Sidney Kwestel

Sidney Kwestel

This book combines the substance of the doctrinal law with the process for learning, by providing the frameworks essential to legal analysis and connecting those frameworks to the cases from which they come. This book is keyed to the Farnsworth Contracts casebook and contains case summaries which provide the relevant facts, holding, and reasoning for every case in the casebook. It makes the learning process visible by showing how the rules from cases are synthesized to build a conceptual framework for each legal principle. Finally, the "Framework for Analysis" sections provide a blueprint for students to follow in preparing course …

Resolving The Paradox Of The Consideration Doctrine: The Implications Of Inefficient Signaling And Of Anti-Commodification Norms

David Gamage

This paper addresses one of the central problems of contract law, a puzzle that has troubled generations of contracts scholars: Why do we only enforce promises backed by consideration? Or, how can we justify insisting on the bargain context, but not requiring that the bargains be adequate? The lack of a theoretical solution to this puzzle has plagued the application of the consideration doctrine in courts of law.

We resolve this paradox through two innovations. First, using a game theory model based on asymmetric information, we dispute the common wisdom that the law should honor parties’ intentions as articulated at …

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations

David Gamage

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law. This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey Miller, Emily Sherwin

Emily L Sherwin

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

Nonmaterial Misrepresentation: Damages, Rescission, And The Possibility Of Efficient Fraud, Emily Sherwin

Emily L Sherwin

Buried in the details of legal doctrine governing misrepresentation is a remedial anomaly that raises some interesting questions about how law should deal with moral wrongs such as fraud. We tend to think of deliberate deception--fraud--as a grave moral wrong. At least, we think of deception as gravely wrong when the deceiver's objective is not to avert harm or spare feelings, but to obtain someone's money or goods. Deception denies the autonomy of the person deceived and undermines the foundation of trust in human interaction. The law, however, does not penalize every instance of fraud. Moreover, the standards governing when …

On The Rise Of Shareholder Primacy, Signs Of Its Fall, And The Return Of Managerialism (In The Closet), Lynn Stout

Lynn A. Stout

In their 1932 opus "The Modern Corporation and Public Property," Adolf Berle and Gardiner Means famously documented the evolution of a new economic entity—the public corporation. What made the public corporation “public,” of course, was that it had thousands or even hundreds of thousands of shareholders, none of whom owned more than a small fraction of outstanding shares. As a result, the public firm’s shareholders had little individual incentive to pay close attention to what was going on inside the firm, or even to vote. Dispersed shareholders were rationally apathetic. If they voted at all, they usually voted to approve …

When Does Some Federal Interest Require A Different Result?: An Essay On The Use And Misuse Of Butner V. United States, Juliet Moringiello

Juliet M Moringiello

Thousands of judges and scholars have relied on the statement in the 1979 Supreme Court opinion in Butner v. United States that “property interests are created and defined by state law...unless some federal interest requires a different result.” Often, they cite to the statement as a policy constraint that elevates state property law over federal bankruptcy law. This Essay, written for the American Bankruptcy Institute – University of Illinois Symposium on Chapter 11 Reform, posits that the Butner rule is not as broadly applicable as commonly believed. To do so, the Essay surveys some notable uses and misuses of the …

Dirty Debts Sold Dirt Cheap, Dalie Jimenez

Dalie Jimenez

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes …