Law Commons^™

Unconscionability As A Contract Policing Device For The Elder Client: How Useful Is It?, Robyn L. Meadows

Akron Law Review

An elder law symposium provides an opportunity to consider ways that the various areas of the law provide protection for the older client. This raises the question of whether the Uniform Commercial Code (hereafter U.C.C. or the Code) protects the unique interests of the older consumer. Such consideration naturally leads to the contract policing device specifically included in the Code—unconscionability. The doctrine of unconscionability provides a way for courts to police grossly unfair contracts and contract provisions. It is found not only in the U.C.C. but also in the tenets of general contract law. However, its application is not limited …

Mistakes, Airfares, And Consumers: Restoring The Department Of Transportation's Role In Regulating Unfair Trade Practices, Terence Lau

Terence Lau

This Article traces the problem of mistake airfares and the federal government’s response to airlines that cancel tickets for erroneous fares. Part I of the Article explores airline pricing generally, and argues that airline tickets are a unique form of commodity good, one where there is no consumer expectation of a reasonable price. The dynamic nature of airline yield management means that prices for the exact same seat on an airplane can range dramatically on a variety of circumstances and factors that are beyond the knowledge, control or comprehension of the ordinary consumer. The Article investigates several well-known examples of …

Eden Order On Summary Judgment And Motion To Strike, Alice D. Bonner

Georgia Business Court Opinions

No abstract provided.

Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus

Akron Law Review

In recent years, a series of leading cases have returned to consider these questions. The implications of these decisions for the current shape of English law relating to civil redress for privacy invasion are the subject of this article. Surprisingly, perhaps, English courts have remained steadfast in their refusal to recognize invasion of privacy as a tort and in doing so have quite explicitly declined to rely on American experience in this area. Rather, English courts have preferred to resist innovation of this kind and leave the difficult question of privacy law reform to Parliament. On a number of recent …

Off To Elba! The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

Akron Law Review

This article will look at why sex offenders are treated differently than other criminal offenders. Sex offenders are subject to sanctions and prohibitions above and beyond what other criminal offenders must face. Next, the article will look at some of the residence and employment restrictions placed on sex offenders to determine if they are rationally related to any legitimate government interest without overbearing the sex offender’s constitutional rights. Finally, the article will offer an alternate means of sex offense prevention that encourages sex offender assimilation back into society instead of further exclusion. This article will focus on those individuals who …

Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, D. A. Jeremy Telman

Law Faculty Publications

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put …

The Moral Hazard Of Contract Drafting, Eric A. Zacks

Law Faculty Research Publications

This Article identifies and examines the principal-agent problem as it arises in the context of contract preparation. The economic agency relationship, as it may be understood to exist for contract drafting, provides a superior framework for understanding and reforming the inability of the non-drafting party (the principal) to control the drafting party (the agent). As an economic agent, the drafting party faces a moral hazard when preparing the contract because of the differing interests of the parties as well as the information and control asymmetries that exists. For example, the use of standard form contracts in consumer transactions is an …

Toward A New Language Of Legal Drafting, Matthew Roach

Matthew Roach

Lawyers should write in document markup language just like web developers, digital publishers, scientists, and almost everyone else.

The Moral Hazard Of Contract Drafting, Eric A. Zacks

Florida State University Law Review

This Article identifies and examines the principal-agent problem as it arises in the context of contract preparation. The economic agency relationship, as it may be understood to exist for contract drafting, provides a superior framework for understanding and reforming the inability of the non-drafting party (the principal) to control the drafting party (the agent). As an economic agent, the drafting party faces a moral hazard when preparing the contract because of the differing interests of the parties as well as the information and control asymmetries that exists. For example, the use of standard form contracts in consumer transactions is an …

Good-Cause Statutes Revisited: An Empirical Assessment, Adi Ayal, Uri Benoliel

Indiana Law Journal

One of the most vital debates in franchise law focuses on whether state or federal law should adopt “good-cause statutes” (GCSs), which require franchisors to show good cause before terminating contractual relations with a franchisee. The traditional law-and-economics analysis suggests that GCSs are inefficient. This inefficiency argument is based upon one central hypothesis: GCSs increase franchisee free riding since they limit the franchisor’s ability to terminate the franchise contract easily. The free-riding hypothesis has been significantly influential in the development of franchise law, as is evident in state and federal statutory regimes. To date, the majority of states and the …

Why The State Cannot “Abolish Marriage”: A Partial Defense Of Legal Marriage, Gregg P. Strauss

Indiana Law Journal

Does a liberal state have a legitimate interest in defining the terms of intimate relationships? Recently, several scholars have answered this question with a no and concluded that the state should abolish marriage, along with all other categories of intimate status. While politically infeasible, these proposals offer a powerful thought experiment. In this Article, I use this thought experiment to argue that the law cannot avoid relying on intimate-status norms and has legitimate reasons to retain an intimate status like marriage.

The argument has three parts. The primary lesson of the thought experiment is that the state cannot abolish intimate …

Be Careful What You Do Not Ask For: Contracts With The Federal Government For Which Purely Nonmonetary Relief Exists In The Event Of Breach Must Provide For Monetary Damages To Make Them Available To Non-Breaching Private Parties, Matthew W. Cecil

Journal of Dispute Resolution

By further limiting access to one of the only forums in which private parties may seek monetary damages over $10,000 from the federal government, the United States Federal Circuit Court of Appeals in Higbie v. United States1 has ensured non-breaching private parties will not be wholly compensated for their injuries and has undermined the court’s own interest in bolstering mediation.

Contract Law [2014], Yihan Goh, Pey Woan Lee, Chee Ho Tham

Research Collection Yong Pung How School Of Law

No abstract provided.

El Objeto Del Negocio Jurídico En Una Reciente Sentencia En Casación: Notas Sobre Un Confuso Concepto., Fort Ninamancco Córdova

Fort Ninamancco Cordova

No abstract provided.

Contractual Choice Of Law In Contracts Of Adhesion And Party Autonomy, Mo Zhang

Akron Law Review

The article attempts to argue that contracts of adhesion do not conform to the notion of autonomy that underlies the choice of law by the parties and is incompatible with the principle of mutuality on which the power of the parties to make the choice of applicable law rests. The main theme of the article is to suggest that the choice of law clause in contracts of adhesion shall not take effect (although the clause may not necessarily be invalid), unless and until the other party (adherent) meaningfully agrees or a court scrutinizes the contract for the true assent of …

Raser Technologies, Inc. Et Al., Order On Defendants' Motion For Entry Of Final Judgment Under O.C.G.A. 9-11-54(B), John Goger

Georgia Business Court Opinions

No abstract provided.

Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan

Deepa Varadarajan

What is the role of contract law in remedying breach? The question of the appropriate legal remedy, specific performance versus money damages, has provided adequate fodder for three decades of debate in the law and economics discourse. In the legal discipline at large, the topic has spurred centuries of debate, as illustrated by Oliver Wendell Holmes's famous line: “The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.” Holmes's approach to contractual remedy would evolve during the latter half of the twentieth century …

Disappearing Ink: The Emerging Duty To Remove Invalid Policy Provisions, Robert L. Tucker

Akron Law Review

This list includes only these decisions of the state’s court of last resort. It does not even begin to touch upon the provisions invalidated by decisions of inferior trial courts and intermediate courts of appeal which, for one reason or another, never reached the Supreme Court. And those intermediate appellate courts, it should be noted, have not limited themselves to invalidating provisions that are contrary to state statutes. In at least one case, a court of appeals held that an “other owned auto” exclusion in an uninsured motorist endorsement was invalid and unenforceable, even though the provision was expressly permitted …

Summary Of Excellence Cmty. Mgmt. V. Gilmore, 131 Nev. Adv. Op. 38 (June 25, 2015), Ashleigh Wise

Nevada Supreme Court Summaries

The Court held the sale of a 100 percent membership interest in a limited liability company does not affect the enforcement of an employee’s employment contract containing a restrictive covenant because the sale does not create a new entity. An employer limited liability company may enforce a restrictive covenant in an employment contract without its employee’s consent of assignment.

Restrictive Covenants In Illinois: Adequate Consideration Problems Show That The Common Law Is An Inadequate Solution, David S. Repking

Chicago-Kent Law Review

Illinois courts have long dealt with whether restrictive covenants, specifically non-compete clauses, can and should be enforced when they involve employees of businesses. Many aspects of restrictive covenants have been litigated, but a recent Illinois Appellate Court case analyzed the issue of what is adequate consideration in order to enforce a restrictive covenant against a former employee. The First District in Fifield v. Premier Dealer Services, Inc., affirmed a bright-line, two-year rule for deciding how long an employee must work for an employer before a re-strictive covenant can be enforced.

The two-year rule protects employees because an employer cannot …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Legal Entities As Transferable Bundles Of Contracts, Kenneth Ayotte, Henry Hansmann

Kenneth Ayotte

The large, modern business corporation is frequently organized as a complex cluster of hundreds of corporate subsidiaries under the common control of a single corporate parent. Our Article provides new theory and supportive evidence to help explain this structure. We focus, in particular on the advantages of subsidiary entities in providing the option to transfer some or all of the firm's contractual rights and obligations in the future. The theory not only sheds light on corporate subsidiaries but also illuminates a basic function of all types of legal entities, from partnerships to nonprofit corporations. We show that when, as is …

Killing Conscience: The Unintended Behavioral Consequences Of "Pay For Performance", Lynn A. Stout

Lynn A. Stout

Contemporary lawmakers and reformers often argue that ex ante incentive contracts providing for large material rewards are the best and possibly only way to motivate corporate executives and other employees to serve their firms' interests. This Article offers a critique of the "pay for performance" approach. In particular, it explores why, for a variety of mutually reinforcing reasons, workplaces that rely on ex ante incentive contracts suppress unselfish prosocial behavior (conscience) and promote selfishness and opportunism. The end result may not be more efficient, but more uncooperative, unethical, and illegal employee behavior.

James A. Pritchard Iii, Order And Judgment On Plaintiff's Motion For Partial Summary Judgment As To Defendant Morris, Schneider, Wittstadt, Llc, Melvin K. Westmoreland

Georgia Business Court Opinions

No abstract provided.

A Trustee’S Fiduciary Duties At The Start And End Of Administration, Robert Whitman

Catholic University Law Review

Prior to the creation of a trust and at its termination, a trustee’s fiduciary duties are often ambiguous. It is argued that, where fiduciary duties do not exist, contract law may be found to govern the rights of the settlor, the trustee, and the beneficiaries. This article refutes this argument because under the principles of modern contract law, certain conduct may be permitted that would not be acceptable if fiduciary duties existed more clearly. The most common problems arise in three areas: (1) the seeking of a receipt and release by a corporate fiduciary upon an informal termination of a …

Global Aerospace Inc., Order On Defendants' Fourth Motion For Order Compelling Discovery Against Plaintiff Global Aerospace Inc., Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

Avoiding The Recharacterization Of Certain Deed-In-Lieu-Of-Foreclosure Transactions: Ensuring That What You Draft Is What You Get, 110 Banking L.J. 330 (1993), Debra Stark

Debra Pogrund Stark

No abstract provided.

A Psychological Investigation Of Consumer Vulnerability To Fraud: Legal And Policy Implication, 35 Law & Psychol. Rev. 61 (2011), Jessica M. Choplin, Debra Pogrund Stark, Jasmine N. Ahmad

Debra Pogrund Stark

No abstract provided.

Prepayment Charges In Jeopardy: The Unhappy And Uncertain Legacy Of In Re Skyler Ridge, 24 Real Prop. Prob. & Tr. J. 191 (1989), Debra Stark

Debra Pogrund Stark

No abstract provided.

Navigating Residential Attorney Approvals: Finding A Better Judicial North Star, 39 J. Marshall L. Rev. 171 (2006), Debra Pogrund Stark

Debra Pogrund Stark

No abstract provided.