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Full-Text Articles in Law

Deconstructing Employment Contract Law, Rachel Arnow-Richman, J.H. Verkerke Jan 2023

Deconstructing Employment Contract Law, Rachel Arnow-Richman, J.H. Verkerke

UF Law Faculty Publications

Employment contract law is an antiquated, ill-fitting, incoherent mess. But no one seems inclined to fix this problem. Employment law scholars, skeptical of employees’ ability to bargain, tend to disregard contract law and advocate for just-cause and other legislative reform. And contracts scholars largely ignore employment cases—viewing them, with some justification, as part of a peculiar, specialized body of law wholly divorced from general contract jurisprudence. As a result of this undesirable employment law exceptionalism, courts lack the tools they need to resolve recurring, real-world disputes.

This article offers a new, comprehensive historical account that exposes the formalistic and anti …


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 between …


The Flaws Of Magic Bullet Theory: Retraining Unconscionability To Discretely Target Different Contexts Of Unfairness In Contracts, Marcus Moore Oct 2022

The Flaws Of Magic Bullet Theory: Retraining Unconscionability To Discretely Target Different Contexts Of Unfairness In Contracts, Marcus Moore

All Faculty Publications

Unconscionability has long been a troublesome area in Canadian jurisprudence. This is of significant concern given unconscionability’s pre-eminence as a protection of contractual fairness. This article elaborates a much-needed reorganization and rationalization of unconscionability in Canada. Under current law, a single doctrine hopelessly targets two divergent purposes. I set out here a proposed redevelopment rather of separate common law doctrines, each fit-for-purpose: (1) An English-style unconscionable bargains doctrine for avoiding bargains that exploited disability, and (2) an American-style unconscionable clauses doctrine to control unfair terms in standard form contracts. Extensive Canadian precedent supports this solution, assuring its feasibility and legitimacy. …


Debunking The Efficacy Of Standard Contract Boilerplate: Part V, David Spratt Oct 2022

Debunking The Efficacy Of Standard Contract Boilerplate: Part V, David Spratt

Articles in Law Reviews & Other Academic Journals

After five installments, we can end our discussion of contract boilerplate. We have slashed the outdated language and emerged as a clear and contemporary legal writer. Be willing to adapt what has worked well in the past because change is the foundation of human ingenuity.


Misrepresentation And Contract, Gregory Klass Sep 2022

Misrepresentation And Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Contract theorists naturally focus on the duty to perform. This chapter argues they should also pay attention to duties of candor in the contracting context. The most obvious example of such duties can be found in the misrepresentation defenses, which aim to ensure that contractual undertakings are sufficiently voluntary and to allocate the costs of defective consent. But other laws of deception, such as the torts of negligent misrepresentation and deceit, are also integral to the law of contracts. Separate liability in tort for both pre- and post-formation misrepresentations helps parties who mistrust one another determine whether an exchange is …


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 is …


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.


Developments In Contract Law: The 2020-2021 Term – Appeals To Fairness, Marcus Moore Aug 2022

Developments In Contract Law: The 2020-2021 Term – Appeals To Fairness, Marcus Moore

All Faculty Publications

This article analyzes important developments in Contract Law stemming from consideration by the Supreme Court of Canada in 2020-2021. Due to the large number of Contracts cases during this period, the article focuses on prominent appeals occupied with issues of fairness in Canadian Contract Law. Fairness in contracts emerges as an important concern of the SCC at this juncture. This appropriately reflects the constellation of some long-unsolved problems (e.g., control of unfair terms in standard form contracts), confusion around key concepts associated with protection of contractual fairness (e.g., unconscionability and good faith), and judicial disagreement over the merits of general …


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 of legal …


A Comment On Colla And Gulati, Cheeky Contracting, Tess Wilkinson-Ryan May 2022

A Comment On Colla And Gulati, Cheeky Contracting, Tess Wilkinson-Ryan

Faculty Scholarship at Penn Carey Law

Colla and Gulati have identified a moment of disequilibrium in contract law and practice that tests the comfortable assumptions and taxonomies of contracts scholars. The dispute seems to pit the parties’ “real deal” against the paper deal, with attorneys for the creditors bewildered at Argentina’s novel and aggressive reading of its obligations. The focus of this commentary is, basically: How cheeky is cheeky?


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 …


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 …


Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments To 401(K) Participants, Edward A. Zelinsky Apr 2022

Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments To 401(K) Participants, Edward A. Zelinsky

Articles

Whether 401(k) plans’ investment menus should feature “alternative” investments is a fact-driven inquiry applying ERISA’s fiduciary standards of prudence, loyalty, and diversification. Central to this fact-driven inquiry is whether the alternative investment class in question is broadly accepted by investors in general and by professional defined benefit trustees in particular. A similarly salient concern when making this inquiry is the financial unsophistication of many, perhaps most, 401(k) participants. Accounting for these considerations, this Article concludes that REITs, private equity funds, and hedge funds can, with limits, today be offered as investment choices to 401(k) participants, but that cryptocurrencies (including Bitcoin), …


Debunking The Efficacy Of Standard Contract Boilerplate: Part Iv, David Spratt Apr 2022

Debunking The Efficacy Of Standard Contract Boilerplate: Part Iv, David Spratt

Articles in Law Reviews & Other Academic Journals

We have belabored the archaic and prohibited use of "said" as a synonym for "the." But this paragraph needs more work. First, the phrase "irrespective of the fact that" is wordy and could be replaced with the plain language alternative of "even though." Second, "one or more of the parties now is, or may become, a resident of a different state" also could be streamlined. The phrase is easy enough to understand but cut to the chase. Replacing this phrase with "either party now or later resides in a different state" does the trick.


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 contractual …


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 can …


Leases As Forms, David A. Hoffman, Anton Strezhnev Jan 2022

Leases As Forms, David A. Hoffman, Anton Strezhnev

Faculty Scholarship at Penn Carey Law

We offer the first large scale descriptive study of residential leases, based on a dataset of ~170,000 residential leases filed in support of over ~200,000 Philadelphia eviction proceedings from 2005 through 2019. These leases are highly likely to contain unenforceable terms, and their pro-landlord tilt has increased sharply over time. Matching leases with individual tenant characteristics, we show that unlawful terms are surprisingly likely to be associated with more expensive leaseholds in richer, whiter parts of the city. This result is linked to landlords' growing adoption of shared forms, originally created by non-profit landlord associations, and more recently available online …


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 …


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 its critics. …


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 a …


Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French Jan 2022

Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French

Journal Articles

Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would …


Stealth Governance: Shareholder Agreements And Private Ordering, Jill E. Fisch Jan 2022

Stealth Governance: Shareholder Agreements And Private Ordering, Jill E. Fisch

Faculty Scholarship at Penn Carey Law

Corporate law has embraced private ordering -- tailoring a firm’s corporate governance to meet its individual needs. Firms are increasingly adopting firm-specific governance through dual-class voting structures, forum selection provisions and tailored limitations on the duty of loyalty. Courts have accepted these provisions as consistent with the contractual theory of the firm, and statutes, in many cases, explicitly endorse their use. Commentators too support private ordering for its capacity to facilitate innovation and enhance efficiency.

Private ordering typically occurs through firm-specific charter and bylaw provisions. VC-funded startups, however, frequently use an alternative tool – shareholder agreements. These agreements, which have …


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 …