Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Contracts (19)
- Dispute Resolution and Arbitration (7)
- Civil Procedure (5)
- Legal History (3)
- Estates and Trusts (2)
-
- Insurance Law (2)
- Legislation (2)
- Litigation (2)
- Other Law (2)
- Banking and Finance Law (1)
- Business Organizations Law (1)
- Commercial Law (1)
- Constitutional Law (1)
- Consumer Protection Law (1)
- Courts (1)
- International Law (1)
- Jurisprudence (1)
- Labor and Employment Law (1)
- Legal Ethics and Professional Responsibility (1)
- Legal Writing and Research (1)
- Science and Technology Law (1)
- State and Local Government Law (1)
- Tax Law (1)
- Torts (1)
- Institution
Articles 1 - 25 of 25
Full-Text Articles in Law
Time’S Up: Against Shortening Statutes Of Limitation By Employment Contract, Meredith R. Miller
Time’S Up: Against Shortening Statutes Of Limitation By Employment Contract, Meredith R. Miller
Scholarly Works
Employers are increasingly adding clauses to contracts with employees that purport to shorten the statutes of limitation for employees to pursue claims against their employers (“SOL Clauses”). SOL Clauses are being imposed on employees in various stages of the contracting process. They have turned up in job applications, offer letters, arbitration clauses, employment agreements and employee handbooks. Where they have been enforced by the courts, the justification has been a prioritization of “freedom of contract” over any other policy concerns. This Article argues that, in the employment context, “freedom of contract” should not be prioritized over other competing concerns, which …
Law And The Blockchain, Usha Rodrigues
Law And The Blockchain, Usha Rodrigues
Scholarly Works
All contracts are necessarily incomplete. The inefficiencies of bargaining over every contingency, coupled with humans’ innate bounded rationality, mean that contracts cannot anticipate and address every potential eventuality. One role of law is to fill gaps in incomplete contracts with default rules. The blockchain is a distributed ledger that allows the cryptographic recording of transactions and permits “smart” contracts that self-execute automatically if their conditions are met. Because humans code the contracts of the blockchain, gaps in these contracts will arise. Yet in the world of “smart contracting” on the blockchain, there is no place for the law to step …
The Ethics Of Non-Traditional Contract Drafting, Lori D. Johnson
The Ethics Of Non-Traditional Contract Drafting, Lori D. Johnson
Scholarly Works
A new generation of contract drafters faces increasing commentary advising them to change traditional contract terms into plain language constructions. Yet, traditional, tested terms have consistent meanings, and when these meanings benefit client objectives, advocates should consider retaining them. This article posits that failing to do so can impact a lawyer’s ethical obligations. Specifically, an attorney’s duties of competence, allocation of authority, diligence, and communication under the Model Rules of Professional Conduct require careful thought about modernizing tested contract terms. These duties require the ethical drafter to research whether the use of a traditional, tested term advances a client goal …
Saturns For Rickshaws: Lessons For Consumer Arbitration And Access To Justice, Peter B. Rutledge
Saturns For Rickshaws: Lessons For Consumer Arbitration And Access To Justice, Peter B. Rutledge
Scholarly Works
Companies are increasingly requiring consumers to agree to arbitrate disputes they may have over the products or services they purchase. Pre-dispute arbitration agreements are controversial especially for consumer disputes, where, it is feared, consumers will not represent themselves and neither will lawyers come forward because of the small stakes involved in individual claims. Dean Rutledge addresses in this chapter whether consumer arbitration processes can be designed to provide greater access to justice for consumers.
Say The Magic Word: A Rhetorical Analysis Of Contract Drafting Choices, Lori D. Johnson
Say The Magic Word: A Rhetorical Analysis Of Contract Drafting Choices, Lori D. Johnson
Scholarly Works
Drafters of complex contracts often face a thorny dilemma – determining whether to retain “magic words” included in form documents, especially when considering the advice of current contract style scholars advocating for the removal of all traditional contract prose. But the drafter need not remove all terms that serve as elegant shorthand for more convoluted legal concepts, particularly where the inclusion of the term advances client interests. The application of rhetorical criticism – the analysis of methods of communicating ideas – to drafters’ use of the term “time is of the essence” sheds light on the dominant motivations of drafters …
"Sticky" Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal
"Sticky" Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal
Scholarly Works
We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. After the Supreme Court’s decision in Concepcion, commentators predicted that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent across …
Effective Contract Drafting: Indentifying The Building Blocks Of Contracts, Lori D. Johnson
Effective Contract Drafting: Indentifying The Building Blocks Of Contracts, Lori D. Johnson
Scholarly Works
No abstract provided.
Mandating Precontractual Disclosure, Eric H. Franklin
Mandating Precontractual Disclosure, Eric H. Franklin
Scholarly Works
Parties negotiating an arm's-length contract are generally not required to disclose facts to one another. Although this default rule is supported by both centuries of common law and freedom of contract principles, courts and legislatures treat certain transactions differently. This is particularly true in circumstances in which the default rule results in an unacceptable harm suffered by a broad group of persons. In such cases, lawmakers have acted to impose precontractual disclosure obligations. These decisions and statutes are largely reactive: A harm is identified in a certain transaction's precontractual period and disclosure is mandated to rectify the harm. These reactive …
Contract And Procedure, Peter B. Rutledge, Christopher R, Drahozal
Contract And Procedure, Peter B. Rutledge, Christopher R, Drahozal
Scholarly Works
This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties' ability to regulate procedure by contract (at issue in the Supreme Court's recent Rent-A-Center decision) and …
The Limits Of Procedural Private Ordering, Jaime L. Dodge
The Limits Of Procedural Private Ordering, Jaime L. Dodge
Scholarly Works
Civil procedure is traditionally conceived of as a body of publicly-set rules, with limited carve-outs – most commonly, forum selection and choice of law provisions. I argue that these terms are mere instantiations of a broader, unified phenomenon of procedural private ordering, in which civil procedure is no longer irrevocably defined by law, but instead is a mere default that can be waived or modified by contract. Parties are no longer merely selecting between publicly-created procedural regimes but customizing the rules of procedure to be applied by the court – from statutes of limitations, discovery obligations and the admissibility of …
Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel G. Beh, Jeffrey W. Stempel
Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel G. Beh, Jeffrey W. Stempel
Scholarly Works
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 incorrect. Insurance policies are more accurately viewed as bilateral contracts. In addition, the unilateral characterization of insurance policies 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 …
Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel
Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel
Scholarly Works
The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …
After The Battle Of The Forms, Francis J. Mootz Iii
After The Battle Of The Forms, Francis J. Mootz Iii
Scholarly Works
Commercial parties continue to fight the battle of the forms, but electronic contracting is quickly rendering this practice obsolete. In this article I assess the legal landscape for commercial parties after the battle of the forms. In Section I, I briefly describe the (relatively) settled law under U.C.C. § 2-207. I then describe how these rules permit commercial parties to erect a force-field to protect themselves from being subjected to unwanted terms, and the developments in web-based contracting and recent case law applying contract formation principles to electronic contracting. Finally, I discuss how the growth of electronic contracting will eliminate …
Contracting Out Of Process, Contracting Out Of Corporate Accountability: An Argument Against Enforcement Of Pre-Dispute Limits On Process, Meredith R. Miller
Contracting Out Of Process, Contracting Out Of Corporate Accountability: An Argument Against Enforcement Of Pre-Dispute Limits On Process, Meredith R. Miller
Scholarly Works
There have been many well-articulated and convincing critiques aimed at mandatory arbitration. Indeed, presently before Congress is proposed legislation titled the Arbitration Fairness Act, that would ban pre-dispute arbitration in the consumer, franchise and employment contexts. However, maligned as the plaintiff bar's pro-lawsuit legislation, the Arbitration Fairness Act is predicted to have very little chance of enactment. Consequently, across varying industries, the pre-dispute arbitration regime endures unheedingly. Thus, this Article sets aside the arguments aimed generally at pre-dispute arbitration clauses and, instead, sets its sights on some of the terms that seem to arise in such clauses. The focus here …
The Entrepreneur And The Theory Of The Modern Corporation, Charles R.T. O'Kelley
The Entrepreneur And The Theory Of The Modern Corporation, Charles R.T. O'Kelley
Scholarly Works
The foremost description of the classic entrepreneur, immediately prior to the Great Depression and now, was presented by Frank Knight in his seminal work, RISK, UNCERTAINTY, AND PROFIT. In this Article, I will explicate Knight's theory of the entrepreneur and show how it relates to both the Berle-Means Paradigm and the nexus-of-contracts theory of the corporation. My effort here is in part intellectual history and in part the tentative beginnings of a new positive account of the corporation. In the latter regard, this Article takes only the first step in what may prove a quite exhaustive effort to re-plow the …
Recent Case Developments, Jeffrey W. Stempel
Recent Case Developments, Jeffrey W. Stempel
Scholarly Works
Recent case developments in Insurance Law in the years 1999 and 2000.
Preface To The Gateway Thread, Deborah W. Post
A Slave's Marriage: Dowry Or Deposit, Alan Watson
A Slave's Marriage: Dowry Or Deposit, Alan Watson
Scholarly Works
This articles examines the concept of dowry among marriage of slaves in ancient Rome.
Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel
Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel
Scholarly Works
The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …
Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel
Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel
Scholarly Works
As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …
Binding Contracts In Georgia Local Government Law: Configurations Of Codification, R. Perry Sentell Jr.
Binding Contracts In Georgia Local Government Law: Configurations Of Codification, R. Perry Sentell Jr.
Scholarly Works
The potential for creating uncertainty looms as a primary and ever-present problem in the codification process. A dominant concern is the fear the unintended statutory changes--or, worse still, the quandary of whether what appears to be such a change was truly intended--may result. The perplexing issues emanating from that quandary can considerably dissipate the benefits of progressive statutory codification. For purely illustrative purposes, attention might be called to the present plight of an historic precept in Georgia local government law. That precept unflinchingly condemns a local governing authority's efforts to commit its successors to a given course of governmental action. …
Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz
Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz
Scholarly Works
No abstract provided.
Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena C. Seplowitz
Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena C. Seplowitz
Scholarly Works
No abstract provided.
A New And Old Theory For Adjudicating Standardized Contracts, Eric Mills Holmes, Dagmar Thurmann
A New And Old Theory For Adjudicating Standardized Contracts, Eric Mills Holmes, Dagmar Thurmann
Scholarly Works
The purpose of this article is rather simple, extracting a new theory of standard form contracts from the good bits of the spectrum of "old" ideas and combining them with some fresh rethinking. For something fresh, the authors choose to examine the German law on standard form contracts. The authors have tried to remain neutral observers but in extracting the best from the spectrum of ideas one necessarily states--in this instance, one of pragmatic compromise. Thus, this article will cull and identify elements from the spectrum specifically concerning standard form contracts and compare them with the German approach. This process …
The Evolution Of Law: The Roman System Of Contracts, Alan Watson
The Evolution Of Law: The Roman System Of Contracts, Alan Watson
Scholarly Works
I have two aims in producing this paper. First, I wish to contribute to the general understanding of how and why law develops and explain the evolution of some very familiar legal institutions. Second, I wish to add to our knowledge of the history of Roman law, by producing a radically different view of the development of contracts, that is, I believe, both consistent with surviving textual data and plausible with regard to human behavior.