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Full-Text Articles in Law

International Commercial Mediation And Dispute Resolution Contracts, Nadja Alexander, Natasha Tunkel Dec 2022

International Commercial Mediation And Dispute Resolution Contracts, Nadja Alexander, Natasha Tunkel

Research Collection Yong Pung How School Of Law

Every transaction has the potential to go wrong and international commercial contracts are not spared this plight. It is when an international commercial contract fails – irrespective of the reasons, that the impact of different legal and cultural backgrounds of the parties come to light. The obvious venue for commercial disputes to be decided is generally understood to be in court (litigation)2 or before an arbitral tribunal (arbitration)3. However, there are numerous other alternative dispute mechanisms4 available to parties that are less well known and also deserve consideration; not least because they offer parties methods of resolving the dispute ...


Elk Point Country Club Hoa V. K. H. Brown, Llc, 138 Nev. Adv. Op. 60 (Aug. 18, 2022), Alexander Provan Sep 2022

Elk Point Country Club Hoa V. K. H. Brown, Llc, 138 Nev. Adv. Op. 60 (Aug. 18, 2022), Alexander Provan

Nevada Supreme Court Summaries

When a planned communities’ governing documents restrict real property use to residential use only, NRS 116.340(1)(a) permits a real property owner to use real property for transient commercial use so long as the governing documents of the community do not prohibit such use. Transient commercial use is the use of property, for remuneration, as transient lodging, if the term of occupancy is thirty days or less—i.e., short-term rentals. It is a reversable error to interpret bylaws and governing documents as prohibiting rentals when they use the terms “tenants” and


Waivers, Keith N. Hylton Sep 2022

Waivers, Keith N. Hylton

Faculty Scholarship

Waiver contracts are agreements in which one party promises not to sue the other for injuries that occur during their contractual relationship. Waivers are controversial in the consumer context, especially when presented in standard form, take-it-or-leave-it contracts. The law on waivers appears muddled, with no consistent doctrine or policy among the courts on enforceability. The aim of this paper is to offer a consistent set of policies that can form the foundation of a consistent set of doctrines, leading ultimately to a more apparently consistent treatment of waivers in the courts. The most basic piece of this paper’s framework ...


Novation And Advance Consent, Kwan Ho Lau Sep 2022

Novation And Advance Consent, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

Professor Goode once observed that “Novation need not be left to ad hoc agreement; it is open to the parties to provide for it in advance and in particular to establish a contractual mechanism by which novation takes place automatically on the occurrence of a designated act or event”. This deceptively straightforward proposition is examined in the present article. It explores the legal footing for, and the risks in adopting a pristine version of, the proposition, and considers possible safeguards that may be incorporated within the process of scrutiny, if in any case there arises concern over the effectiveness of ...


Amicus Curiae Brief Of The Hon. Judith Fitzgerald (Bankruptcy Judge, Ret.), And Law Professors Pamela Foohey, George Kuney, Robert Lawless, Jonathan Lipson, Bruce A. Markell, Nancy Rapoport, Richard Squire, Ray Warner And Jack Williams, In Support Of The Petitioner, Judith Fitzgerald, Pamela Foohey, George Kuney, Robert Lawless, Jonathan Lipson, Bruce A. Markell, Nancy B. Rapoport, Richard Squire, Ray Warner, Jack Williams Aug 2022

Amicus Curiae Brief Of The Hon. Judith Fitzgerald (Bankruptcy Judge, Ret.), And Law Professors Pamela Foohey, George Kuney, Robert Lawless, Jonathan Lipson, Bruce A. Markell, Nancy Rapoport, Richard Squire, Ray Warner And Jack Williams, In Support Of The Petitioner, Judith Fitzgerald, Pamela Foohey, George Kuney, Robert Lawless, Jonathan Lipson, Bruce A. Markell, Nancy B. Rapoport, Richard Squire, Ray Warner, Jack Williams

Briefs

Professor Pamela Foohey filed an amicus brief with a group of law professors and a former bankruptcy judge in MOAC Mall Holdings LLC v. Transform Holdco LLC.


The Doctrine Of Contractual Absolution, Marcus Moore Jul 2022

The Doctrine Of Contractual Absolution, Marcus Moore

All Faculty Publications

The absence of a knowledge requirement is a novel and astonishing feature of unconscionability in Canada, and one that calls for scholarly reflection. In other jurisdictions and formerly in Canada, unconscionability required that the benefiting party knew or at least should have known that its counterpart was impaired in the making of the contract. Such knowledge established a minimum level of wrongdoing, so that even without more active exploitation, it was unconscionable as an “unconscientious abuse of power.” But following the Supreme Court decision in Uber Technologies Inc. v. Heller (2020), Canadian contract law rejects this conventional approach. It does ...


Sr Construction, Inc. V. Peek Brothers Construction, Inc., 138 Nev. Adv. Op. 41 (June 2, 2022), Candace Mays Jul 2022

Sr Construction, Inc. V. Peek Brothers Construction, Inc., 138 Nev. Adv. Op. 41 (June 2, 2022), Candace Mays

Nevada Supreme Court Summaries

The Supreme Court, reviewing an appeal from the district court’s denial to compel arbitration, contemplated the scope of and applicability of a master subcontractor agreement’s arbitration clause when the language did not unequivocally compel subcontractors to arbitrate disputes. The Court held that where the arbitration provision of a contract is broad, the presumption toward arbitrability prevails.


Government By Code? Blockchain Applications To Public Sector Governance, Pedro Bustamante, Meina Cai, Marcela Gomez, Colin Harris, Prashabnt Krishnamurthy, Wilson Law, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Nataliia Shapoval, Annette Vee, Martin B. H. Weiss Jun 2022

Government By Code? Blockchain Applications To Public Sector Governance, Pedro Bustamante, Meina Cai, Marcela Gomez, Colin Harris, Prashabnt Krishnamurthy, Wilson Law, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Nataliia Shapoval, Annette Vee, Martin B. H. Weiss

Articles

Studies of blockchain governance can be divided into analyses of the governance of blockchains (such as rules and power dynamics within a given network) and governance by blockchains (such as how blockchains can be implemented to improve self-governance of community-based peer production networks). Less emphasis has been placed on applications of distributed ledgers to public sector governance. Our review clarifies that the decentralization and distributive features that enable blockchains to link up loosely connected private organizations and public agencies to improve efficiency and transparency of government transactions. However, most blockchain applications lack clear advantages over the conventional digital recording of ...


Madeira Serves As Legal Commentator In Netflix’S “Our Father”, James Owsley Boyd May 2022

Madeira Serves As Legal Commentator In Netflix’S “Our Father”, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.


Examination Of Eviction Filings In Lancaster County, Nebraska, 2019–2021, Ryan Sullivan May 2022

Examination Of Eviction Filings In Lancaster County, Nebraska, 2019–2021, Ryan Sullivan

College of Law, Faculty Publications

The study examined and analyzed eviction filings and proceedings in Nebraska, with a specific focus on Lancaster County—the home to the State’s capital, Lincoln. The primary objective of this study is to place eviction proceedings under a microscope to gain a better understanding of the volume of evictions in Nebraska, and whether the statutorily mandated processes are being followed. The study also attempts to capture the impact of certain external factors present during the period examined. Such factors include the COVID-19 pandemic and various eviction moratoria in place during 2020 and 2021, as well as the increased availability ...


Liability For Non-Disclosure In Equity Financing, Albert H. Choi, Kathryn E. Spier Apr 2022

Liability For Non-Disclosure In Equity Financing, Albert H. Choi, Kathryn E. Spier

Law & Economics Working Papers

The paper analyzes the effects of holding firms liable for non-disclosure of material information when raising capital. We develop a model in which a privately-informed entrepreneur can choose to withhold information from prospective investors when issuing and selling stock and the investors can bring suit against the firm ex post for (alleged) non-disclosure. The damage payment received by the investors is partially offset by the reduced value of their equity stake. The analysis shows that the equilibrium depends on, among others, (1) the amount of personal capital the entrepreneur has to commit, (2) the frequency with which the entrepreneur is ...


Taxing Choices, Tessa R. Davis Apr 2022

Taxing Choices, Tessa R. Davis

Faculty Publications

Tax has a choice problem. At all stages of the making of tax, choice plays a role. Lawmakers consider how tax will impact the range and appeal of choices available to an individual. Scholars critique how tax may drive an individual toward or away from a given choice. Courts craft stories of how an individual had either free or deeply constrained choice, using their perception of the facts to guide their interpretation of tax law. And yet for all the seeming relevance of choice to tax, we have no clear definition of what we mean when we talk about choice ...


Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang Feb 2022

Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang

Faculty Scholarship at Penn Carey Law

Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults."

In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primary norm with surprising ...


How To Interpret A Vending Machine: Smart Contracts And Contract Law, Gregory Klass Feb 2022

How To Interpret A Vending Machine: Smart Contracts And Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A smart contract is software designed to do the job of a legal contract: ensuring the performance of parties who might not otherwise trust one another to do so. By running a smart contract on blockchain, users can lock themselves into future performances without relying on a third-party enforcer or platform host, thereby realizing a “fully trustless” exchange. This new technology has wide range of potential applications, and contracts are likely to become an increasingly common part of the economy.

Some have argued that smart contracts represent a new type of legal contract, analogizing the software’s code to a ...


Survey Of State Laws Governing Fees Associated With Late Payment Of Rent, Ryan Sullivan Jan 2022

Survey Of State Laws Governing Fees Associated With Late Payment Of Rent, Ryan Sullivan

College of Law, Faculty Publications

The Survey contains both a cumulative and detailed account of the laws of each state governing late fees and penalties associated with late payment of rent involving residential tenancies. States that impose late fee maximums vary greatly on the amount and form of the limitation—some limit the late fee to a certain percentage of the rental amount, a few states impose a dollar amount maximum, and several states impose both. Some states, rather than limiting the late fee to a certain amount, only require that the late fee be “reasonable.” Additionally, a handful of states mandate that late fees ...


Governing The Interface Between Natural And Formal Language In Smart Contracts, Joshua A.T. Fairfield, Niloufer Selvadurai Jan 2022

Governing The Interface Between Natural And Formal Language In Smart Contracts, Joshua A.T. Fairfield, Niloufer Selvadurai

Scholarly Articles

Much of the confusion about the proper regulation of smart contracts stems from the fact that both code and law are expressed in language. Natural (human) and formal (computer) languages are profoundly different, however. Natural language in the form of a true legal contract expresses human meaning and expectation. Code simply acts, and when code acts contrary to the understanding of the parties to a contract, courts must have a theoretical and legal basis in order to intervene--which this Article provides.

Present scholarship on the governance of smart contracts centers on logistical problems relating to the effects of automation on ...


Recognition And Enforcement Of Foreign Judgments In American Courts And The Limits Of The Law Market Model, Michael E. Solimine Jan 2022

Recognition And Enforcement Of Foreign Judgments In American Courts And The Limits Of The Law Market Model, Michael E. Solimine

Faculty Articles and Other Publications

The law market model posits that the most appropriate resolution of choice of law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to a healthy competition among jurisdictions to supply the most efficient law. This model has been followed in several areas, most notably in the widespread enforcement, at least within ...


Fit For Its Ordinary Purpose: Implied Warranties And Common Law Duties For Consumer Finance Contracts, Susan Block-Lieb, Edward J. Janger Jan 2022

Fit For Its Ordinary Purpose: Implied Warranties And Common Law Duties For Consumer Finance Contracts, Susan Block-Lieb, Edward J. Janger

Faculty Scholarship

The history of consumer goods and consumer credit markets presents an anomaly: market transactions for consumer goods and credit transactions evolved in tandem, from face-to-face and bespoke to standardized and widely distributed; the law governing these twin "product" markets has not. With consumer goods, the Uniform Commercial Code codifies implied warranties of merchantability and fitness for a particular purpose and the common law of tort provides strict liability for defective products. By contrast, with consumer finance contracts, borrowers enjoy scant common law protection, even though both consumer goods and consumer contracts maybe be dangerously defective "products."

This Article reconsiders the ...


Contractual Stakeholderism, Kishanthi Parella Jan 2022

Contractual Stakeholderism, Kishanthi Parella

Scholarly Articles

In 2019, the Business Roundtable announced its commitment to all corporate stakeholders—consumers, employees, suppliers, and communities—and not just shareholders. This announcement has reawakened an old debate over corporate social responsibility. Stakeholderism advocates argue that corporate leaders must consider the interests of the various stakeholders impacted by corporate decision-making. Stakeholderism critics challenge this view, expressing concerns that stakeholderism will magnify managerial agency costs, chill regulation, risk inauthenticity, and lead to impractical solutions.

This Article proposes “contractual stakeholderism” to operationalize stakeholderism in accordance with the views of its advocates but in a way that is attentive to the concerns of ...


A Philosophy Of Contract Law For Artificial Intelligence: Shared Intentionality, John Linarelli Jan 2022

A Philosophy Of Contract Law For Artificial Intelligence: Shared Intentionality, John Linarelli

Scholarly Works

This is a chapter for the forthcoming book, Contracting and Contract Law in the Age of Artificial Intelligence, edited by Martin Ebers, Cristina Poncibò, and Mimi Zou, to be published by Hart Publishing. The aim of this chapter is to offer a general theory of contract law to account for the inclusion of artificial intelligence in contract practices. Artificial intelligence brings out that what makes contract law a distinctive form of legal obligation is shared intentionality. I refer to this insight as the shared intentionality thesis. Shared intentionality is the psychological capacity of one agent to share and pursue a ...


Systemic Risk Of Contract, Tal Kastner Jan 2022

Systemic Risk Of Contract, Tal Kastner

Scholarly Works

Complexity and uncertainty define our world, now more than ever. Scholars and practitioners have celebrated modular contract design as an especially effective tool to manage these challenges. Modularity divides complex structures into relatively discrete, independent components with simple connections. The benefits of this fundamental drafting approach are intuitive. Lawyers divide contracts into sections and provisions to make them easier to understand and reduce uncertainty. Dealmakers constructing complex transactions use portable agreements as building blocks to reduce drafting costs and enable innovation. Little attention, however, has been paid to the risks introduced by modularity in contracts. This Article demonstrates how this ...


Lowering The Stakes Of The Employment Contract, Aditi Bagchi Jan 2022

Lowering The Stakes Of The Employment Contract, Aditi Bagchi

Faculty Scholarship

Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting ...


Whiteness As Contract, Marissa Jackson Sow Jan 2022

Whiteness As Contract, Marissa Jackson Sow

Faculty Publications

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also ...


Whiteness As Guilt: Attacking Critical Race Theory To Redeem The Racial Contract, Marissa Jackson Sow Jan 2022

Whiteness As Guilt: Attacking Critical Race Theory To Redeem The Racial Contract, Marissa Jackson Sow

Faculty Publications

The year of racial justice awakening following George Floyd’s 2020 murder have been accompanied by a rise in attacks on Black thought, including Critical Race Theory, led by far-right activists who are invested in maintenance of a white supremacist status quo in the United States. This Essay uses artist Kara Walker’s 2014 Sugar Sphinx to contextualize the critiques on Critical Race Theory and other manifestations of Black intellectualism as a campaign for perpetual absolution of white guilt, and even redemption of white supremacy, that is openly embraced by white nationalists but also secretly nourished—and cherished—by the ...


New York's Requirements For Contractual Definiteness With Application To The Formation Of Investment Vehicles, Royce De R. Barondes Jan 2022

New York's Requirements For Contractual Definiteness With Application To The Formation Of Investment Vehicles, Royce De R. Barondes

Faculty Publications

A review of 82 modern New York cases reveals an unexpected frequency of authority requiring contractual definiteness as to what may reasonably appear to be minor terms.
Illustrative are cases holding inadequately definite ordinary ways preliminary agreements may express compensation on a percentage of net basis. Other unexpected authority (i) is less willing than expected to allow subsequent actions to provide sufficient definiteness to initially indefinite agreements and (ii) denies the enforceability of confidentiality provisions and a right of first refusal.
The survey includes some unexpected support for contracts specifying a plausibly material portion of the consideration with inadequate definiteness ...


Frustration, The Mac Clause, And Covid-19, Andrew A. Schwartz Jan 2022

Frustration, The Mac Clause, And Covid-19, Andrew A. Schwartz

Articles

COVID-19's impact on business has been exasperating—but is it Frustrating? The Frustration doctrine of contract law excuses a party from its contractual obligations when an extraordinary event completely undermines the principal purpose of making the deal. This doctrine has long been a marginal player in contract litigation, as parties rarely invoked it—and usually lost when they did.

The COVID-19 pandemic, however, is precisely the type of extraordinary event that Frustration was designed to address, and the courts have been inundated over the past year by a wave of colorable Frustration claims. This timely Article describes the Frustration ...


Making An Offer That Can't Be Refused: The Need For Reform In The Rules Governing Informed Consent And Doctor-Patient Agreements, Timothy C. Macdonnell Jan 2022

Making An Offer That Can't Be Refused: The Need For Reform In The Rules Governing Informed Consent And Doctor-Patient Agreements, Timothy C. Macdonnell

Scholarly Articles

On a daily basis, throughout the country, patients are required to sign informed consent forms regarding the care they receive from their doctors. Informed consent forms are an important part of ensuring patients are making an intelligent, autonomous decision regarding their healthcare based on the facts related to their particular situation. However, frequently these consent forms contain what amount to contract-like terms that require patients to permit doctors to substitute other healthcare providers to care for the patient under the doctor’s supervision (substituted caregiver terms). Often these terms are presented to patients on the eve of surgery and on ...


Defining Smart Contract Defects On Ethereum, Jiachi Chen, Xin Xia, David Lo, John Grundy, Xiapu Luo, Ting Chen Jan 2022

Defining Smart Contract Defects On Ethereum, Jiachi Chen, Xin Xia, David Lo, John Grundy, Xiapu Luo, Ting Chen

Research Collection School Of Computing and Information Systems

Smart contracts are programs running on a blockchain. They are immutable to change, and hence can not be patched for bugs once deployed. Thus it is critical to ensure they are bug-free and well-designed before deployment. A Contract defect is an error, flaw or fault in a smart contract that causes it to produce an incorrect or unexpected result, or to behave in unintended ways. The detection of contract defects is a method to avoid potential bugs and improve the design of existing code. Since smart contracts contain numerous distinctive features, such as the gas system. decentralized, it is important ...


No Oral Modification Clauses: Autonomy, Certainty Or Presumption?, Kwan Ho Lau Jan 2022

No Oral Modification Clauses: Autonomy, Certainty Or Presumption?, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

By a judgment of Lord Sumption with which a majority of the court agreed, the Supreme Court in MWB Business Exchange Centres Ltd. v Rock Advertising Ltd. [2018] UKSC 24, [2019] A.C. 119 ruled that a contractual term which prescribed that the contract was not amendable save in writing signed by or on behalf of the parties (a No Oral Modification or “NOM” clause) was effective to invalidate subsequent oral variations to the contract. Lord Burrows later suggested extrajudicially (in P.S. Davies and M. Raczynska (eds.), Contents of Commercial Contracts (London 2020), 49) that Rock Advertising might not ...


Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley Jan 2022

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each ...