Law Commons^™

Cohabitation In Illinois: The Need For Legislative Intervention, Stefanie L. Ferrari

Chicago-Kent Law Review

No abstract provided.

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 …

Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.

Chicago-Kent Law Review

Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …

Situational Duress And The Aberrance Of Electronic Contracts, Nancy S. Kim

Chicago-Kent Law Review

This article explains how the aberrant nature of electronic contracts has unique implications, which contract law should recognize. Companies, taking advantage of these unique implications, may use electronic contracts in an unfair and coercive manner, which is why this article proposes expanding the definition of duress to include “situational duress.” Situational duress would not encompass all electronic contracting scenarios, but would be limited to situations where (1) a drafting company uses an electronic contract to block consumer access to a product or service; (2) the consumer has a “vested interest” in that product or service; and (3) the consumer accepts …

A Contractarian Approach To Unconscionability, Horacio Spector

Chicago-Kent Law Review

In this paper I discuss two nonpaternalistic defenses of the doctrine of unconscionability in contract law. The first approach, proposed by Seana Shiffrin, relies on the moral ban to collaborate with other agents' immoral plans. Because this prohibition falls also on the judge, she must refrain from enforcing unfair or exploitative contracts. The second approach regards the unconscionability doctrine as one limitation on freedom of contract that rational contractors would choose in the course of adopting the fundamental terms of social cooperation. I assess the implications and merits of the two approaches. 'The contractarian approach is capable of justifying procedural …

Introduction, Horacio Spector

Chicago-Kent Law Review

No abstract provided.

Natural Rights And Two Conceptions Of Promising, Peter Vallentyne

Chicago-Kent Law Review

Does one have an obligation to keep one's promises? I answer this question by distinguishing between two broad conceptions of promising. On the normativized conception of promising, a promise is made when an agent validly offers to undertake an obligation to the promisee to perform some act (i.e., give up a liberty-right in relation to her) and the promisee validly accepts the offer. Keeping such promises is morally obligatory by definition. On the non-normativized conception, the nature of promising does not conceptually entail any connection with the obligation to keep promises. A promise might be understood, for example, as an …

Promises, Expectations, And Rights, Eduardo Rivera-Lopez

Chicago-Kent Law Review

I address the problem of why promises create obligations. First, I spell out and object the so-called "expectational account" according to which the duty to keep our promises arises from the fact that, when we promise to do something, we create an expectation in the promisee, which we have the duty not to disappoint. It has been claimed that this account is circular since we can only raise the expectation, in the appropriate sense, if we already have the moral duty to keep our promise. I argue, against Scanlon and others, that such circularity is unavoidable. In the second section, …

Kant On "Why Must I Keep My Promise?", B. Sharon Byrd, Joanchim Hruschka

Chicago-Kent Law Review

This Article claims that for Kant a contractual obligation generates a universal right, meaning a right against everyone. Accordingly, a right to performance of a contract is more similar to a right in rem than to a right in personam, and failing to perform a contract is more similar to theft than to moral failure to do as promised. Part I shows that for Kant accepting a promise means taking possession of the promisor's choice to commit an act in the future. Part II explains why it is possible to acquire someone else's choice and how one does so in …

Rational Choice And Reasonable Interactions, Bruce Chapman

Chicago-Kent Law Review

Game theory probably offers the most well-known account of how rational agents interact in strategic situations. The rational thought processes that are involved, while enormously sophisticated, remain very private for each agent. Less well known is the alternative account that is offered by law and legal theory, an account where agents interact, and understand their interaction, under the idea of public (or objective) reasonableness. This Article argues, using some simple examples, that the legal account does better than the game theoretic account in explaining the actual levels of cooperation and coordination we observe across rational individuals in strategic situations.