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Articles 1 - 13 of 13
Full-Text Articles in Law
Dual Rationality Of Same-Sex Marriage: Creation Of New Rights In The Shadow Of Incomplete Contract Paradigm, Saby Ghoshray
Dual Rationality Of Same-Sex Marriage: Creation Of New Rights In The Shadow Of Incomplete Contract Paradigm, Saby Ghoshray
University of Massachusetts Law Review
In an effort to reconcile the inconsistency between liberal ideals and inequitable adjudication of marriage rights amongst our citizens, this article will seek answers to these issues. By straddling the contractual confines of marriage via law and economic analysis, Part II of the article explores the contractual paradigm of marriage to examine whether the framework is independent of sexual orientation and it the deliberately incomplete nature of marriage can provide consistencies for all types of marriages. Part III examines whether the private aspiration of marriage should necessarily be linked with public consequences by evaluating the impact of marriage’s social cost …
The Short Road Home To Delaware: Boilermakers Local 154 Retirement Fund V. Chevron, Anne M. Tucker
The Short Road Home To Delaware: Boilermakers Local 154 Retirement Fund V. Chevron, Anne M. Tucker
The Journal of Business, Entrepreneurship & the Law
One of the biggest Delaware Supreme Court cases of 2013 wasn’t. The Delaware Court of Chancery opinion in Boilermakers Local 154 Retirement Fund v. Chevron Corp., upheld the enforceability of Delaware forum selection clause bylaws unilaterally adopted by corporate boards of directors. It was widely expected that the Delaware Supreme Court would uphold the Court of Chancery’s opinion. However, Plaintiffs dismissed their appeal and moved to dismiss their remaining claims in the Court of Chancery, leaving intact Chancellor Strine’s strong support of forum selection clauses. National Industries Group (Holding) v. Carlyle Investment Managements L.L.C. and TC Group, L.L.C., a 2013 …
Prosser's Bait-And-Switch: How Food Safety Was Sacrificed In The Battle For Tort's Empire, Denis W. Stearns
Prosser's Bait-And-Switch: How Food Safety Was Sacrificed In The Battle For Tort's Empire, Denis W. Stearns
Nevada Law Journal
No abstract provided.
Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh
Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh
Shubha Ghosh
The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of …
Licence Agreements And Copyright: An Examination Of The Issues, Lisa Di Valentino
Licence Agreements And Copyright: An Examination Of The Issues, Lisa Di Valentino
FIMS Presentations
In this presentation I will discuss some of the factors that are relevant to an understanding of the relationship between copyright and private ordering of legal obligations such as licensing agreements and technological protection measures. I will conclude that there is a strong argument to be made that provisions purporting to limit fair dealing and other exceptions may be unenforceable.
Promises, Trust, And Contract Law, Anthony J. Bellia
Promises, Trust, And Contract Law, Anthony J. Bellia
Anthony J. Bellia
The need for individuals to be able to trust that promises will be performed is central to justifying a law that renders certain promises enforceable. This Article argues that the legal enforcement of certain promises to meet this need does not necessarily diminish the personal relationships of trust in which such promises are made, as has been argued. Rather, this Article argues, the making and performance of legally enforceable promises can assist individuals in building relationships of trust, as it assists them in the pursuit of myriad goods.
Efficient Breach, Gregory Klass
Efficient Breach, Gregory Klass
Georgetown Law Faculty Publications and Other Works
The theory of efficient breach is the best known, and the most controversial, product of nearly half a century of economic analysis of contract law. In its simplest form, which is the one that dominates the legal imagination, the theory argues that expectation damages are good because they allow, even encourage, a party to breach when performance becomes inefficient, thereby increasing social welfare. Many noneconomists assume the theory is well supported by principles of neoclassical economics. Thus critics commonly focus on the theory’s moral failings, or on problems with the neoclassical approach more generally. But today no economic thinker defends …
Tax Naked Credit Default Swaps For What They Are: Legalized Gambling, James Blakey
Tax Naked Credit Default Swaps For What They Are: Legalized Gambling, James Blakey
University of Massachusetts Law Review
Credit default swaps (CDSs) gained notoriety for their role in the global financial crisis. In late 2011, the IRS proposed new regulations that would classify CDSs bought by someone who does not own the credit, known as "naked" CDSs, as "financial instruments" and thereby qualify them for the highly beneficial capital gains tax treatment. This classification is incorrect. Naked CDSs, which constitute about 80% or more of all CDSs, are not financial instruments at all. Rather, this article argues, they are gambling wagers -- the winnings on which are taxable at the ordinary income tax rate. This is not the …
Liability For Work Done Where Contract Is Denied: Contractual And Restitutionary Approaches, Man Yip, Yihan Goh
Liability For Work Done Where Contract Is Denied: Contractual And Restitutionary Approaches, Man Yip, Yihan Goh
Man YIP
No abstract provided.
Sino-American Contract Bargaining And Dispute Resolution, Garrick Apollon
Sino-American Contract Bargaining And Dispute Resolution, Garrick Apollon
Pepperdine Dispute Resolution Law Journal
The article offers information on international trade disputes between the U.S. and China. Topics include economic interdependency of Sino-American trade, cross-legal and cross-cultural relationships between the U.S. and China, and the historical and cultural preference for Alternative Dispute Resolution (ADR) in China. Other topics include learning of cross-cultural management and international business negotiation.
Are You Free To Contract Away Your Right To Bring A Negligence Claim?, Scott J. Burnham
Are You Free To Contract Away Your Right To Bring A Negligence Claim?, Scott J. Burnham
Chicago-Kent Law Review
This article explores the enforceability of the exculpatory clause—a contract term in which one party agrees to give up the right to bring a negligence claim against the other party. A spectrum of views on whether a contract containing such a clause is aberrant or not is presented and analyzed, followed by the author’s view of the rubric by which the enforceability of the clause should be measured. The article concludes by deconstructing one contract in which the clause was found.
Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca
Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca
Law Faculty Scholarship
For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …
Penalty Default Licenses: A Case For Uncertainty, Kristelia A. García
Penalty Default Licenses: A Case For Uncertainty, Kristelia A. García
Publications
Research on the statutory license for certain types of copyright-protected content has revealed an unlikely symbiosis between uncertainty and efficiency. Contrary to received wisdom, which tells us that in order to increase efficiency, we must increase stability, this Article suggests that uncertainty can actually be used to increase efficiency in the marketplace. In the music industry, the battle over terrestrial performance rights--that is, the right of a copyright holder to collect royalties for plays of a sound recording on terrestrial radio--has raged for decades. In June 2012, in a deal that circumvented the statutory license for sound recordings for the …