Law Commons^™

A Coasean Experiment On Contract Presumptions, Stewart J. Schwab

Cornell Law Faculty Publications

Despite the theoretical importance of the Coase Theorem, scholars have given surprisingly little attention to verifying its predictions empirically. Supporters often accept the theorem as dogma, while armchair critics assail its assumptions. In an exciting series of recent articles, however, Elizabeth Hoffman and Matthew Spitzer have presented experimental evidence, as have others, that largely supports the Coasean prediction that bargainers will negotiate around inefficient property rights to reach a Pareto-optimal solution. The methodology has even gained sufficient attention to have its detractors.

The existing experiments analyze the results of bargains when one side has the power to impose unilaterally one …

On The Knowing Inclusion Of Unenforceable Contract And Lease Terms, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Duty To Disclose And The Prisoner's Dilemma: Laidlaw V. Organ, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

Vertical Restraints Among Hospitals, Physicians And Health Insurers That Raise Rivals' Costs, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

No abstract provided.

For Unifying Servitudes And Defeasible Fees: Property Law's Functional Equivalents, Gerald Korngold

Articles & Chapters

While property scholars have argued persuasively for a unified law of servitudes and for a unified law of defeasible fees, Professor Korngold argues that further unification is necessary: the law should integrate servitudes and defeasible fees involving land use controls. Because these interests are functional equivalents, judicial results should not depend on the historical label attached to the interest. Courts should address the tension between freedom of contract and free alienability values that inhere in both interests. Professor Korngold focuses on significant issues that arise in both defeasible fees and servitudes contexts, including the forfeiture remedy, ownership in gross, permissible …

Tips For Drafting Contracts, Martin Frey

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Remedies For Breach Of Contract Under The Uniform Commercial Code, The General Conditions Of Delivery Of Goods Of The Council For Mutual Economic Assistance And The United Nations Convention On Contracts For The International Sale Of Goods, Hasan T. Choudhury

LLM Theses and Essays

This thesis attempts to examine and compare an important component of any law of contract for the sale of goods, namely, the remedies available to an aggrieved party following a breach of contract. The first part of the thesis deals with the historical background of the uniform laws, their scope and specific characteristics. The following chapters examine the status, role and significance of the two major remedies - the damages and specific performance, in the major legal systems and the uniform laws. In addition, it compares the remaining remedial provisions and concludes that, although the major legal systems of the …

The Decline Of The Contract Market Damage Model, James J. White

Articles

In law school every American lawyer learns that the conventional measure of damages for breach of a sales contract is the difference between the contract price and the market price. Even before these rules were embodied in the Uniform Sales Act and the Uniform Commercial Code (UCC), they were a staple of Anglo-American common law. They remain the rules with which a court would determine damage liability not only for the sale of goods, but also for the sale of real estate and securities.

Promise Fulfilled And Principle Betrayed, James J. White

Articles

My responsibility in this paper is to address three questions. (1) How has the legal realist body of thought affected contract law and its application? (2) How will contract law and its application be affected in the future by realist thinking? (3) If the realist viewpoint were fully accepted, what kind of system would result and how would contract law be affected? Because my focus is upon a principal legislative monument to realism, Article Two of the Uniform Commercial Code (the "U.C.C."), and upon its drafter, Karl Llewellyn, I will not answer any of the three questions explicitly. By focusing …

Investment And Export Contracts In The People’S Republic Of China: Perspectives On Evolving Patterns, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

The remarkable economic reforms begun in the People's Republic of China (PRC) in 1979 have made possible transactions between Chinese and foreigners that were previously unthinkable. But the reforms have also caused, and are likely to continue to cause, dislocations and uncertainties which often impair Sino-foreign commercial relationships as they are embodied in contracts. This article discusses two different types of contracts, contracts to establish enterprises in China with foreign direct investment (investment contracts) and contracts to purchase Chinese products for export (export contracts). It further comments on why these contracts often cannot be implemented according to their terms for …

Common Sense And Article 9: A Uniform Approach To Automobile Repossession, Darryll K. Jones

Journal Publications

Clients who seek legal assistance earlier in the repossession process preserve their options, which may include preventing the repossession altogether, allowing the client an opportunity to reclaim the vehicle after repossession, or limiting the client's liability to the loss of the vehicle itself. Many of the actions considered by the attorney will be based on the provisions in Article 9 of the Uniform Commercial Code (U.C.C. or the Code). This article begins with a discussion of steps that may be taken to eliminate the need to resort to the U.C.C. Because these steps will not always be successful, the article …

Impossibility And Related Excuses, Victor P. Goldberg

Faculty Scholarship

In the first section I present an e of why reasonable businessmen would choose to excuse performance for some changed circumstances, but not others. In the remainder of the paper I will analyze specific problems that have arisen in the impossibility case law and literature. The explanation forwarded in Section 1 will play a prominent role in much of that discussion. Largely because their paper stimulated my thoughts on the problem, I will contrast my analysis of some of the specific cases to that of Posner and Rosenfield [1977]. I will not, except in passing, critique the case law, the …

Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz

Scholarly Works

No abstract provided.

American Contract Law At The Turn Of The Century, Walter Pratt

Journal Articles

Today, courts are finding agreements to be a contract that historically would have been found to be unenforceable. During the past century, when America became a modern urban society, contract law has underwent a major transformation. Economic expansion led to a new contracting practice of reduced specificity in the terms of the agreements. The judges recognized that the doctrines of the past were no longer adequate for the new commercial world, and modified the court doctrines to embrace this greater uncertainty in terms. This Article looks to the emergence of the doctrine of ‘good faith’ as the key to understanding …

Privacy, Surrogacy, And The Baby M Case, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Article 29(2) Of The United Nations Convention On Contracts For The International Sale Of Goods: A New Effort At Clarifying The Legal Effect Of "No Oral Modification" Clauses, Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.

Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski

Faculty Scholarship

The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …

Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena C. Seplowitz

Scholarly Works

No abstract provided.

Medical Decision Making During A Surrogate Pregnancy, Thomas Wm. Mayo

Faculty Journal Articles and Book Chapters

This article is concerned with a tradition of paternalism within the medical and legal professions toward pregnant women, their children, and the medical decisions that pregnant women make affecting both. In most surrogacy contracts, the surrogate mother agrees not to have an abortion and to refrain from certain types of harmful conduct, including the consumption of alcoholic beverages, smoking, and the use of illegal drugs. This article will consider the implications these provisions have for medical decision making during pregnancy, and for the concepts of individual autonomy, informed consent and the developing doctrine of fetal rights.

Considering the nature of …

Judgment Call: Theoretical Approaches To Contract Decision-Making, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Baby M: The Contractual Legitimation Of Misogyny, Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

The emergence of what have become known as the "new reproductive technologies" is a phenomenon which is neither essentially good nor essentially bad. On the one hand, such developments provide opportunities for social choice, family planning and procreative autonomy which, until recently, were impossible. This expansion of horizons is clearly a "good". However, on the darker side, as a community, we must be concerned about the directions which such opportunities might take. There are very real dangers involved, including excessive genetic engineering, raised expectations of perfect "products" with the correlative dissatisfaction with the "imperfect", inequality of access to these new …

Baby M Reconsidered, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

Surrogate mothering depends on treating procreation, an activity traditionally viewed as an integral aspect of family life (and family law), as a service to be purchased in the marketplace and governed by the rules of contract law. Thus surrogacy forces us to confront the differences between two of our most fundamental institutions-the family and the market.

Judicial Law Reform In The Law Of Contract, Joost Blom

All Faculty Publications

For all its stability the law of contract has seen a good deal of reform, most of it judge-made, in the last quarter century or so. In this 1988 paper the author tries to sketch at least some of the main features of this judicial law reform in the law of contracts, to suggest the areas where this reform has been a success and where it has been less so, and, at the end, to ask what this overall picture tells us about the process of judicial law reform in the common law. This paper will touch on a number …

Private Information And The Deterrent Effect Of Antitrust Damage Remedies, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

No abstract provided.

No Exit?: Opting Out, The Contractual Theory Of The Corporation, And The Special Case Of Remedies, John C. Coffee Jr.

Faculty Scholarship

Aloof and insular as corporate law often seems, it cannot remain uninfluenced for very long by developments in the mainstream of American civil law. In that mainstream, there is today flowing a strong, swift current called "tort reform." As currents go, this one is remarkably broad and perhaps a little shallow, but on it floats a number of diverse legislative proposals – ceilings on liability, restrictions on attorneys' fees, greater reliance on alternative methods of dispute resolution, restrictions on joint and several liability and contribution, and the curtailment of punitive damages. All of these proposals flow from the same wellspring: …

Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery W. Katz

Faculty Scholarship

Fuller and Perdue's classic article, The Reliance Interest in Contract Damages, is regarded by many contemporary contracts scholars as the single most influential law review article in the field. For those of us who teach and think about contracts from the perspective of law and economics, the consensus would probably be close to unanimous. The article displays an approach highly congenial to an economic perspective. The connection goes beyond Fuller and Perdue's explicitly functional approach to law (which law and economics shares with other schools of thought descended from the legal realists) and beyond Fuller and Perdue's focus on …

Clarifying The Record: A Comment, Victor P. Goldberg

Faculty Scholarship

In their recent article in this journal, Boudreaux and Ekelund [1987] ha presented a distorted characterization of some of my work on the economics o regulation. The editor of this journal has graciously offered me the opportunity to respond to their criticisms and to redress some ambiguities, real or imagine in my earlier work.