Law Commons^™

The Wisdom Of Solomon: Why We Can't Split The Pre-Embryo, Bridget M. Fuselier

Bridget M Fuselier

Due to the fact that there are at least 500,000 cryo-preserved pre-embryos and a very small amount of common law or statutes to provide guidance, legislators need to act and take steps to guide the people impacted by these problems.

This article promotes modifications to property concepts that protects the special dignity of the pre-embryo while also recognizing the autonomy of the individual gamete providers. The article proposes a form of ownership that would prevent the pre-embryos from passing through wills and by intestate succession. It would also eliminate the possibility of ending up with a multitude of owners for …

How The Payday Predator Hides Among Us: The Predatory Nature Of The Payday Loan Industry And Its Use Of Consumer Arbitration To Further Discriminatory Lending Practices, Michael A. Satz

Michael A Satz

This Article argues that Payday lending is a predatory lending practice that disproportionately targets minority customers, and that the Payday lending industry utilizes consumer arbitration agreements to further the industry’s discriminatory lending practices. The Article proposes that protections enacted into law to protect military service members from payday lenders should be universally enacted on a national level.

Some Questions About Interpretation, Ecto-Ambiguity, Tradition, And Conflicts Of Law And Fact, Graydon S. Staring

Graydon S. Staring

Questions raised by the interpretation of a conrtract clause with the aid of the following devices: Recognizing a more restrictive "traditional" understanding; Finding contract ambiguity between actual wording and traditional understanding; Resolving its intent by the canon contra proferentem; Accepting the finding of intent as controlling foreign state law

Private Ordering Of Employee Privacy: Protecting Employees’ Expectations Of Privacy With Implied-In-Fact Contract Rights, Lindsay Noyce

Lindsay Noyce

With the growth of technology in the workplace, employee privacy is an increasingly significant legal issue. Employees, perhaps irrationally, often overestimate the amount of privacy they should expect in technological communication. A decision issued by the United States Supreme Court in June 2010, City of Ontario v. Quon, highlights the importance of privacy in the workplace and employees’ expectations of privacy. Employee privacy is protected by various constitutional, tort, and statutory causes of action; however, each of these theories has limitations, failing to protect some reasonable expectations of privacy. The implied-in-fact contract is a theory that has been recognized by …

An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference With Former Employee Non-Disclosure Agreements And The Threat Of Disqualification, Maura I. Strassberg

Maura I Strassberg

ABSTRACT The Model Rule 4.4 prohibition on the use of methods of obtaining evidence that violate the rights of third parties can be read to prohibit the informal questioning of a former employee with a non-disclosure agreement to advance a proposed or pending lawsuit, as this may constitute the tort of intentional interference with contract. The use of non-disclosure agreements is proliferating and, although actual tort liability in this context has hardly ever been litigated, it is easy to strategically use this tort to allege an ethical violation that can be the basis of a disqualification motion. The threat of …

Was Selden Right? The Expansion Of Closed Seas And Its Consequences, Scott Shackelford

Scott Shackelford

This Article focuses on the relationship between the legal regimes governing offshore resources in the continental shelves and the deep seabed, particularly in reference to the extent to which continental shelf claims are encroaching on the deep seabed. The question of how well these respective legal regimes regulate resource exploitation will also be considered, along with an analysis of the underlying reasons driving change in these governance structures. I argue that the primary issue is one of whether vague rules, particularly UNCLOS Article 76, are working in terms of incentivizing sustainable, peaceful development of offshore resources.

Understanding Exclusion Of The Cisg: A New Paradigm Of Determining Party Intent, William P. Johnson

William P. Johnson

No abstract provided.

Lessons In Price Stability From The U.S. Real Estate Market Collapse, Andrea J. Boyack

Andrea J Boyack

The U.S. residential housing market collapse illustrates the consequences of ignoring risk while funding mortgage borrowing. Collateral over-valuation was a foundational piece of the crisis. Over the past few decades, secondary markets, securitization, policy and psychology increased the flow of funds into real estate. At the same time, financial market segmentation divorced risk from reward. Increased mortgage capital availability, unmitigated by proper risk allocation, led to real estate price inflation. Social trends and government policies exacerbated both the mortgage capital over-supply and the risk-valuation disconnect.

The Dodd-Frank Act inadequately addresses the underlying asset valuation problem. Federal regulation may support market …

How Powerful Is The Ioc? – Let’S Talk About The Environment, Marc A. R. Zemel

Marc A. R. Zemel

The International Olympic Committee (IOC) is in a unique position as the supreme administrator of an immensely popular international mega-event and a self-proclaimed champion of environmental issues and sustainable development. Every two years, cities from all over the world spend millions of dollars for the mere privilege of competing to host the Olympic Games, and those cities must play by the IOC’s rules. In addition, Article 2 of the Olympic Charter, the constitution-like instrument governing the IOC and the Olympic Movement, requires the IOC to ensure that the Olympics are held to promote sustainable development and show concern for the …

Prime Property Institutions For A Subprime Era: Toward Innovative Models Of Homeownership, Amnon Lehavi, Benito Arrunada

Amnon Lehavi

This Essay breaks new ground toward contractual and institutional innovation in models of homeownership, equity building, and mortgage enforcement. Inspired by recent developments in the affordable housing sector and in other types of public financing schemes, this Essay suggests extending institutional and financial strategies such as time- and place-based division of property rights, conditional subsidies, and credit mediation to alleviate the systemic risks of mortgage foreclosure. It proposes two new solutions. Alongside a for-profit shared equity scheme that would be led by local governments, the Essay also outlines a private market shared equity model, one of “bootstrapping home buying with …

Controlling Creditor Opportunism, Jonathan C. Lipson

Jonathan C. Lipson

This paper addresses problems of creditor opportunism. “Distress investors” such as hedge funds, private equity funds, and investment banks are opportunistic when they use debt to obtain control of a financially troubled firm and extract improper gains at the expense of the firm and its other stakeholders. Examples include the mis-use of private information to short-sell a borrower’s securities and creditor self-dealing.

Creditors can act opportunistically because legal doctrines that historically checked such behavior—e.g., “lender liability”—have not kept pace with fundamental changes in the market for control of distressed firms. The recent Dodd-Frank financial reform is not likely to change …

Smoke, Mirrors & Contract Law, Danielle K. Hart

Danielle K Hart

Abstract: Contract law is set up to be transaction enforcing, that is, to be binding. Binding means two different but related things. First, “binding” means that the contract is valid as between the parties (because it satisfies contract law’s formation requirements) and, second, it means that the rights and obligations set forth in that contract will be enforced by the state on behalf of one of the parties over the objection of the other, now resisting party. Modern contract law uses several well-established assumptions about the contracting parties, including the way they behave when contracting, and the roles of the …

Take This House And Shove It: The Emotional Drivers Of Strategic Default, Brent T. White

Brent T. White

An increasingly influential view is that strategic defaulters make a rational choice to default because they have substantial negative equity. This article, which is based upon the personal accounts of over 350 individuals, argues that this depiction of strategic defaulters as rational actors is woefully incomplete. Negative equity alone does not drive many strategic defaulters’ decisions to intentionally stop paying their mortgages. Rather, their decisions to default are driven primarily by emotion – typically anxiety and hopelessness about their financial futures and anger at their lenders’ and the government’s unwillingness to help. If the government and the mortgage industry wish …

Inadempimento Contrattuale E Responsabilità Nel Caso Lehman Brothers, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Relational Contract Theory And Management Contracts: A Paradigm For The Application Of The Theory Of The Norms, Michael Diathesopoulos

Michael Diathesopoulos

This paper examines management contracts as a paradigm for the application of relational contracts theory and especially of the theory of contractual and relational norms. This theory, deriving from Macauley's implications, but structured and analysed by I.R. MacNeil gives us a framework for the explanation and understanding of contractual obligations and business relations' rules and practice. After presenting the key literature about the norms theory and especially defining the content of MacNeil's norms, we define management contracts as relations, characterised by a high relational element and we explain why, investigating all their features, which make them a suitable object for …

The Start Of A Revolution: How Shays’ Rebellion Continues Today, Gary P. Opper

Gary P Opper

You might remember from your days in your high school history class the tale of Daniel Shays. He was a poor farmhand from Massachusetts that went on to lead a rebellion against the United States government, whom he and others felt were imposing crushing debt and taxes. Anyone who failed to pay such debts could end up in debtor’s prison and had their property seized.

Shays and his compatriots sought debt relief through lower taxes and receiving funds from the government. They attempted to stop the courts from taking their property by forcing the courts in western Massachusetts to close …

The Lingering Influence Of Richard Ii And Lord Coke In The American Admiralty, Graydon S. Staring

Graydon S. Staring

It must be fair to say that a useful commercial and legal regime should be spread as wide as its usefulness, with as few artificial and irrelevant barriers as possible. All of our irrelevant barriers have been discredited in various situations, but two of them, viz. as to contracts made on land or to be performed in part on land, remain anomalously in two irrational and inconvenient applications. As they have no statutory sanction, they can be corrected by the courts, just as they have nullified them both in other situations and rationalized the jurisdiction in other respects. Cease the …

Missclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Jeffrey W. Stempel, Hazel Glenn Beh

Jeffrey W Stempel

Insurance policies are traditionally classified as unilateral or “reverse-unilateral” contracts, a characterization we find largely incorrect, with problematic consequences for adjudication of insurance coverage disputes. In addition to the general difficulties attending the unilateral classification, the concept as applied to insurance policies is not only unhelpful but also introduces error and inconsistency into the litigation of insurance controversies. In particular, the unilateral view tends toward excessive formalism and focus on so-called “conditions” precedent to coverage, eschewing material breach analysis and encouraging needless forfeitures as well as unwisely removing the concept of anticipatory repudiation and corresponding remedy from insurance law. Categorizing …

Taking Bubbles Seriously In Contract Law, John P. Hunt

John P Hunt

This Article argues that bubbles driven by traders with poor judgment exist, can be identified on an aggregate level, and have negative effects on parties that are not involved in the bubble markets. If those premises are accepted, then failing to respect bubble contracts – rescinding bubble transactions – makes sense. Such a rule should deter the formation of bubbles. Moreover, the rule is not in serious tension with the principle of freedom of contract to the degree one might expect. The poor judgment exhibited during a bubble suggests that incapacity should, and mistake and fraud do, apply to a …

The Road To Nowhere: Caterpillar V. Usinor And Cisg Claims By Downstream Buyers Against Remote Sellers, Donald J. Smythe

Donald J. Smythe

The UN Convention on Contracts for the International Sale of Goods (CISG) was intended to unify international sales law and facilitate the expansion of international trade. It was, however, the product of a bargain between representatives from diverse legal systems and its rules are spare. This invites parties to international sales disputes to argue that its preemptive effect is narrow and that domestic legal rules should be used to fill the gaps. Courts are notoriously prone to the “homeward trend bias” and have frequently accepted such arguments. In Caterpillar v. Usinor the federal district court for the Northern District of …

Braiding: The Interaction Of Formal And Informal Contracting In Theory, Practice And Doctrine, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

Ronald J. Gilson

This article studies the relationship between formal contract enforcement, where performance is encouraged by the prospect of judicial intervention, and informal enforcement, where performance is motivated by the threat of lost reputation and expected future dealings or a taste for reciprocity. The incomplete contracting literature treats the two strategies as separate phenomena. By contrast, a rich experimental literature considers whether the introduction of formal contracting and state enforcement “crowds out” or degrades the operation of informal contracting. Both literatures, however, focus too narrowly on formal contracts as a system of incentives for inducing parties to perform substantive actions, while assuming …

Braiding: The Interaction Of Formal And Informal Contracting In Theory, Practice And Doctrine, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

Ronald J. Gilson

This article studies the relationship between formal contract enforcement, where performance is encouraged by the prospect of judicial intervention, and informal enforcement, where performance is motivated by the threat of lost reputation and expected future dealings or a taste for reciprocity. The incomplete contracting literature treats the two strategies as separate phenomena. By contrast, a rich experimental literature considers whether the introduction of formal contracting and state enforcement “crowds out” or degrades the operation of informal contracting. Both literatures, however, focus too narrowly on formal contracts as a system of incentives for inducing parties to perform substantive actions, while assuming …

A Consequential Approach To Interpretation And Interpretive Risk: Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, J. P. Kostritsky

Juliet P Kostritsky

Abstract When contracts remain ambiguous or incomplete, courts and scholars must confront the inevitable question of when intervention in private contracts is justified. To deal with the unresolution or residual uncertainty, the Austrian economists and the new textualists suggest that any intervention would be a fool’s errand. Their position amounts to an unvarying posture that any party asking for an additional term or a broad interpretation will always lose. Recognizing that there is an interpretive risk in all contracts, the court should adopt an interpretive methodology that parties would be willing to adopt and that would enhance the willingness of …

The Wrong Tool For The Job: The Ip Problem With Non-Competition Agreements, Viva R. Moffat

Viva R. Moffat

THE WRONG TOOL FOR THE JOB:

THE IP PROBLEM WITH NON-COMPETITION AGREEMENTS

Viva R. Moffat

Abstract

In this article, I argue that non-competition agreements should be unenforceable. Although various attacks have been launched at non-competes, most of them have been aimed at reforming the doctrine rather than eliminating enforcement of the agreements entirely. This is because the justifications for non-competes have been left mostly unchallenged, and I undertake that task here.

The most problematic and least examined of these is the IP justification: in an increasingly knowledge-based economy, many argue that non-competes are necessary to protect trade secrets and other …

Renters Evicted En Masse: Collateral Damage Arising From The Subprime Foreclosure Crisis, Creola Johnson

Creola Johnson

ABSTRACT: America is experiencing its worst foreclosure crisis in history, and tenants are the silent victims of this crisis. In this Article, Professor Johnson describes the consequences of thousands of tenants of being evicted from residential properties obtained by lenders in foreclosure proceedings against the owners-landlords. The individual consequences include tenants’ renting substandard alternative housing, experiencing disruptions in family life, and even becoming homeless. Societal consequences include the costs imposed upon communities to provide social services to the evicted tenants and their families and the burden on cities in dealing with homes left vacant due to the lenders' inability to …

Free To Air? – Legal Protection For Tv Program Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

Free To Air? Legal Protection Of Tv Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

Free To Air? – Legal Protection For Tv Program Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

Free To Air? – Legal Protection For Tv Program Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

Ree To Air? – Legal Protection For Tv Program Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …