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Full-Text Articles in Law
Rethinking Jacob & Youngs V. Kent, Victor P. Goldberg
Rethinking Jacob & Youngs V. Kent, Victor P. Goldberg
Faculty Scholarship
Most living lawyers have run into Jacob & Youngs, Inc. v. Kent in their legal education. It has long been a staple in Contracts casebooks. While the result has been widely applauded, in recent years there has been some push-back. Professor Kenneth Ching has recently criticized both Cardozo’s argument and the result. Professor Robert Scott in a number of papers, some coauthored, has also concluded that the result was wrong. Yet given the state of New York law at the time Cardozo’s result was correct. Moreover, I will argue, the outcome is one that parties would adopt today. Ironically, despite …
Contractual Incompleteness: A Transactional Perspective, Avery W. Katz
Contractual Incompleteness: A Transactional Perspective, Avery W. Katz
Faculty Scholarship
Recent scholarship in the field of contract law has concentrated on contractual incompleteness-that is, on the fact that except in the simplest and most basic transactions, contracting parties do not work out all of the relevant details and contingencies of their relationship at the outset. The reasons for incomplete contracts are varied. Sometimes parties deliberately leave terms unresolved, trusting future negotiations or social norms to fill in any problems that emerge. Other times, they leave terms unresolved without realizing they have done so, in part because they devote limited attention or resources to their negotiations and in part because contracts …
Incomplete Contracts And The Theory Of Contract Design, Robert E. Scott, George G. Triantis
Incomplete Contracts And The Theory Of Contract Design, Robert E. Scott, George G. Triantis
Faculty Scholarship
We are delighted to accept this invitation to write a short essay on the economic theory of incomplete contracts and to illuminate its current and potential impact on the legal analysis of contracts and contract law. Economic contract theory has made significant inroads in legal scholarship over the past fifteen years, and this is a good time to take stock of its strengths and weaknesses. Several recent publications in the Yale Law Journal have offered evaluations of the contributions of contract theory.' In this essay, we offer our opinion as to its future path in legal scholarship. In particular, we …
Public Contracts, Private Contracts, And The Transformation Of The Constitutional Order, Thomas W. Merrill
Public Contracts, Private Contracts, And The Transformation Of The Constitutional Order, Thomas W. Merrill
Faculty Scholarship
Modern interpretation of the Contract Clause of article 1, section 10 has created a dual standard of judicial review that bottoms upon the classification of a particular contract as public or private. However, which particular category has received greater deference has changed depending upon the precedential climate. Within his Article, Professor Merrill outlines three modern justifications for affording greater protection to public obligations “Kantian theory,” “process theory,” and “utilitarian theory.” He argues, however, that none of these theories adequately justify the dual standard of review, and concludes that a unitary analysis of the contract clause that affords no presumptions in …