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California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson Apr 2014

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …


California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson Apr 2014

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …


A Tale Of Three Markets: The Law And Economics Of Predatory Lending, Kathleen Engel, Patricia Mccoy Mar 2014

A Tale Of Three Markets: The Law And Economics Of Predatory Lending, Kathleen Engel, Patricia Mccoy

Patricia A. McCoy

Predatory lending - the practice of making exploitative high-cost loans to naive borrowers - has spurred policy-makers, activists, lenders and scholars to debate whether intervention is warranted and, if so, what type of intervention is appropriate. The solution requires understanding the incentives in the home mortgage market that have fueled predatory lending. Recent changes in the credit market have created new possibilities for lenders to profit by exploiting information asymmetries to the detriment of unsophisticated borrowers. As a result, a new, predatory lending market has emerged alongside the legitimate prime and subprime home mortgage markets. Neither market forces nor existing …


Hydropower: It's A Small World After All, Gina Warren Aug 2012

Hydropower: It's A Small World After All, Gina Warren

Gina Warren

Global warming is here. As exhibited by the recent droughts, heat waves, severe storms and floods, climate change is no longer a question for the future, but a problem for the present. Of the many ways to help combat climate change, this article discusses the use of the most abundant renewable energy source on the plant – water. While large-scale hydropower (think Hoover Dam) is unlikely to see increased development due to its negative impact on the environment, fish, and wildlife, small-scale hydropower (think a highly technologically-advanced water mill) is environmentally-friendly and would produce clean, renewable energy to benefit local …


The Law Of The Zebra, Andrea Matwyshyn Feb 2012

The Law Of The Zebra, Andrea Matwyshyn

Andrea Matwyshyn

At the dawn of internet law, scholars and judged debated whether a “law of the horse” – a set of specific laws addressing technology problems – was ever needed. Time has demonstrated that, in some cases, the answer is yes. However, today courts are inherently confused regarding the trajectory for contract law in technology contexts: a technology-centric analysis is threatening to subvert traditional contract law and the future of entrepreneurship: circuit splits have emerged in what might be called an undesirable “law of the zebra.” Do contracts that involve technology indeed require exceptional contract rules? In particular, does the use …


Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass Feb 2012

Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass

Melissa T. Lonegrass

This Article evaluates the sliding scale approach to unconscionability, defends its use, and advocates for its continued and expanded application to consumer standard form contracts. Part I describes the sliding scale approach and its recent popularity in state courts, thereby filling a gap in the scholarly doctrine, which has to date failed to fully examine this trend. Parts II and III defend the sliding scale approach, praising its potential to align the unconscionability analysis with interdisciplinary research regarding consumer behavior and to balance formalist concerns about judicial regulation of unfair terms in standard form contracts. Finally, Part IV calls for …


Best Practices For Drafting University Technology Assignment Agreements After Filmtec, Stanford V. Roche, And Patent Reform, Parker Miles Tresemer Jan 2012

Best Practices For Drafting University Technology Assignment Agreements After Filmtec, Stanford V. Roche, And Patent Reform, Parker Miles Tresemer

Parker Tresemer

Since the end of World War II, federally funded universities and private companies have been an integral part of continued American innovation and technological production. However, like most rational economic actors, universities and private companies are only willing to invest in federally funded technologies if they are guaranteed some sort of exclusive return on their investment. By granting federal contractors exclusive patent rights to their employee’s federally funded inventions, the Bayh-Dole Act provided the necessary incentives for private sector investment in federally funded technologies. However, case law subsequent to Bayh-Dole’s enactment has significantly undermined the system of incentives Congress intended …


Principles Of Contracts For Governing Service, Tom Bell Dec 2011

Principles Of Contracts For Governing Service, Tom Bell

Tom W. Bell

No abstract provided.


Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass Sep 2011

Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass

Melissa T. Lonegrass

No abstract provided.


Mixed Reality: How The Laws Of Virtual Worlds Govern Everyday Life, Joshua A.T. Fairfield Aug 2011

Mixed Reality: How The Laws Of Virtual Worlds Govern Everyday Life, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Just as the Internet linked human knowledge through the simple mechanism of the hyperlink, now reality itself is being hyperlinked, indexed, and augmented with virtual experiences. Imagine being able to check the background of your next date through your cell phone, or experience a hidden world of trolls and goblins while you are out strolling in the park. This is the exploding technology of Mixed Reality, which augments real places, people and things with rich virtual experiences. As virtual and real worlds converge, the law that governs virtual experiences will increasingly come to govern everyday life. The problem is that …


Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll Versus Beardon, Julie M. Spanbauer Aug 2011

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll Versus Beardon, Julie M. Spanbauer

Julie M. Spanbauer

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law …


Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, Julie M. Spanbauer Jun 2011

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, Julie M. Spanbauer

Julie M. Spanbauer

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law …


Aligned Incentives: Envisioning Syzygy, Karl T. Muth Nov 2010

Aligned Incentives: Envisioning Syzygy, Karl T. Muth

Karl T Muth

In the wake of the failure of AIG, this paper deals with the question of whether incentive alignment is truly the problem with contemporary insurance products (as many in the media and the economics community have alleged) by examining two hypothetical types of insurance where incentives are extraordinarily well-aligned.


Fire With Fire: Heterodox Law & Economics, Karl T. Muth Dec 2009

Fire With Fire: Heterodox Law & Economics, Karl T. Muth

Karl T Muth

This Article first examines, from a historical perspective, the evolution of the law-and-economics movement. It then critically examines the application of economic principles the legal analysis, paying particular attention to how the political process has shaped the law-and-economics scholarship. Finally, it concludes that the principles of law-and-economics, while fundamentally sound, are often misapplied, too narrowly interpreted, and aggregated into a single viewpoint that is politically convenient rather than academically honest.


Electronic Contracting Cases 2009-2010, Juliet M. Moringiello, William L. Reynolds Dec 2009

Electronic Contracting Cases 2009-2010, Juliet M. Moringiello, William L. Reynolds

William L. Reynolds

This article, our sixth annual survey of electronic contracting cases, discusses the significant electronic contracting cases decided between June 15, 2009 and June 15, 2010. Over the past six years, the law of electronic contracts has matured, and the cases we discuss in this article show this maturation. The survey covers contract formation by the use of shrinkwrap, clickwrap and browsewrap terms, and contract formation by the exchange of e-mail messages.


Survey Of The Law Of Cyberspace: Introduction, Juliet Moringiello Oct 2009

Survey Of The Law Of Cyberspace: Introduction, Juliet Moringiello

Juliet M Moringiello

No abstract provided.


Cooperation Before Contract: The Law And Policy Of Expenses Incurred During Negotiations In Comparative Perspective, Luigi Russi Oct 2009

Cooperation Before Contract: The Law And Policy Of Expenses Incurred During Negotiations In Comparative Perspective, Luigi Russi

Luigi Russi

Pending negotiations for a contract, one party may begin to incur expenses in fulfilment of the proposed economic operation in anticipation of the finalisation of a formal contract, which is a common practice in many settings, from building and lease contracts to contracts for services in general. This book, therefore, focuses on controversies that may arise when an expected contract collapses after one party withdraws from negotiations, with an ensuing attempt to determine what liability, if any, the withdrawing party should face regarding expenses incurred by the other. The laws of England and Italy, along with several non-legislative codifications – …


Substance Or Mere Technique? A Precis On Good Faith Performance In England, France And Germany, Luigi Russi Dec 2008

Substance Or Mere Technique? A Precis On Good Faith Performance In England, France And Germany, Luigi Russi

Luigi Russi

This paper attempts to offer a concise discussion of good faith performance and other functionally equivalent doctrines in the laws of England, Germany and France. The study’s goal is that of appraising the consistency of existing differences. More specifically, of whether they relate merely to technique - not being paralleled by diverging final outcomes - or whether the rift is deeper and goes to the very substance of the approach to the solution of similar practical problems. For this purpose, the work first shows the close connection between good faith performance (of contractual obligations) and good faith enforcement (of contractual …


Policing Limited Liability Companies Under Contract Law, Larry Dimatteo Dec 2008

Policing Limited Liability Companies Under Contract Law, Larry Dimatteo

Larry A DiMatteo

In 2004, Delaware amended its limited liability company law (Delaware Act) to allow for the contractual elimination of fiduciary duties. The statute seeks to emphasize the contract basis of limited liability companies (LLCs). It does this by providing the legal support for the incorporation of clauses that eliminate the traditional duties of care and loyalty (elimination clauses) found in corporate, agency, and trust law. The only immutable principle enunciated by the Delaware Act is the covenant of good faith. The primary focus of this paper will be on the ability of contract law to police the management and operation of …


Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds Dec 2008

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

William L. Reynolds

In this survey, we review electronic contracting cases decided between June 15, 2008 and June 15, 2009. During that period we found that there was not much action on the formation by click-wrap and browse-wrap front. We have previously observed that the law of electronic contracts has matured, and the fact that there have not been any decisions on whether click-wrap and browse-wrap are effective ways of forming contracts reflects that observation. This year brought us three modification cases, two cases in which a party alleged that it was not bound to the offered terms because an unauthorized party agreed …


Auction Rate Securities: Mechanics And Turmoil, Sachin Raval Jan 2008

Auction Rate Securities: Mechanics And Turmoil, Sachin Raval

Sachin R Raval

This study's objective was to understand the origins, mechanics and recent turmoil of the Auction Rate Securities market. Prior to the 2008 collapse, the ARS market had a successful 20-year history. Many investors believed that auction rate securities were cash equivalents with above market yields. Unfortunately, due to the credit crunch, these securities became illiquid, as no buyers were willing to take existing holders' positions. Furthermore, the clearing rate or interest rate of these securities is set through a Dutch auction. In 2006, the SEC conducted a probe of the ARS market. This probe revealed that broker/dealers prevented failed auctions …


Fairness In Contractual Relations: An Economic-Oriented Understanding Of Good Faith Performance, Luigi Russi Dec 2007

Fairness In Contractual Relations: An Economic-Oriented Understanding Of Good Faith Performance, Luigi Russi

Luigi Russi

This is a derivative version of 'Can Good Faith Performance Be Unfair? An Economic Framework for Understanding the Problem', which appeared in the Whittier Law Review, vol. 29, 2008. In comparison to the version therein published, I have eliminated the mathematical appendix, and attempted to outline my reasoning exclusively in words, for it to be accessible to a wider readership.


Can Good Faith Performance Be Unfair? An Economic Framework For Understanding The Problem, Luigi Russi Dec 2007

Can Good Faith Performance Be Unfair? An Economic Framework For Understanding The Problem, Luigi Russi

Luigi Russi

The paper deals with the duty of good faith in contract performance, as set out in the U.C.C. In particular, it focuses on the different theories as to its practical meaning, by distinguishing between two types of standards: behavioral and economic ones. The latter are further framed after the Learned Hand formula of negligence, as adapted to contractual relationships by relevant literature. By analyzing the functioning of economic standards in presence of transaction costs, it is then concluded that economic standards are only weakly preferable to behavioral ones which, under certain conditions, may prove as useful in providing a practical …


Cyberspace Law Survey: Introduction, Juliet Moringiello, Michael Fleming Dec 2007

Cyberspace Law Survey: Introduction, Juliet Moringiello, Michael Fleming

Juliet M Moringiello

No abstract provided.