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Articles 1 - 23 of 23
Full-Text Articles in Law
Freedom And Interdependence In Twentieth-Century Contract Law: Traynor And Hand And Promissory Estoppel, Alfred S. Konefsky
Freedom And Interdependence In Twentieth-Century Contract Law: Traynor And Hand And Promissory Estoppel, Alfred S. Konefsky
Journal Articles
No abstract provided.
Reviving Jacob And Youngs, Inc. V. Kent: Material Breach Doctrine Reconsidered, Amy B. Cohen
Reviving Jacob And Youngs, Inc. V. Kent: Material Breach Doctrine Reconsidered, Amy B. Cohen
Faculty Scholarship
Determining whether a material breach has occurred under current law involves a weighing of several factors, a determination that often seems either completely without logic or precision, or self-evident and conclusory. Thus, parties are left not knowing what to do and what risks they may be assuming. The problem with the current application of material breach doctrine is in large part a result of an absence of focus. The courts apply the test without articulating any foundation or context on which it is based. The law in this area could be much improved if courts would return to Judge Cardozo's …
Unilateral Competitive Effects Theories In Merger Analysis, Jonathan Baker
Unilateral Competitive Effects Theories In Merger Analysis, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Judicial Lawmaking In A Code Jurisdiction: A French Saga On Certainty Of Price In Contract Law, Edward A. Tomlinson
Judicial Lawmaking In A Code Jurisdiction: A French Saga On Certainty Of Price In Contract Law, Edward A. Tomlinson
Faculty Scholarship
No abstract provided.
Standard Form Contracts, Avery W. Katz
Standard Form Contracts, Avery W. Katz
Faculty Scholarship
Among legal commentators, standard form contracts have long been received with distrust, and the rules governing their interpretation have engendered considerable controversy. While economic analysis has little to say regarding the libertarian objection to standard form contracts or their relationship to personal autonomy, it can help evaluate their effects on efficiency and the distribution of the gains from trade. From such a perspective, standard forms should be analyzed like any other productive input, comparable to design, marketing, and technical support. Whether their use raises any special regulatory or policy concerns, therefore, depends on their implications for the standard litany of …
Comment On 'Profits Derived From Breach Of Contract Or Restitution', Howard Hunter
Comment On 'Profits Derived From Breach Of Contract Or Restitution', Howard Hunter
Research Collection Yong Pung How School Of Law
There is little with which to disagree in Professor Waddams' paper on the categorisation of damage recoveries in the cases posited, viz, those involving a breach which results in benefit to the breaching party but no loss of any consequence to the nonbreaching party. If the goal of contract remedies is to compensate the plaintiff for loss, then, presumably, there should be no recovery at all in such cases. At most there might be nominal damages to compensate for some transaction costs or perhaps as a ’declaration of rights’. In some of the cases considered by Waddams, breach might be …
On Parol: The Construction And Interpretation Of Written Agreements And The Role Of Extrinsic Evidence In Contract Litigation, Keith A. Rowley
On Parol: The Construction And Interpretation Of Written Agreements And The Role Of Extrinsic Evidence In Contract Litigation, Keith A. Rowley
Scholarly Works
As a general rule, extrinsic evidence, whether written or oral, is not admissible to prove either the intent of the parties to a contract or the meaning of contractual terms when the parties have executed an unambiguous, fully-integrated (i.e., final and all-inclusive) written agreement. The trial court may consider various types of extrinsic evidence, however, in determining whether a particular agreement is fully integrated or ambiguous, and even in choosing among rival interpretations of an agreement where ambiguity is not present. If the trial court determines that an agreement is not fully integrated, then the trier of fact may consider …
The "Battle Of The Forms": Fairness, Efficiency, And The Best-Shot Rule, Victor P. Goldberg
The "Battle Of The Forms": Fairness, Efficiency, And The Best-Shot Rule, Victor P. Goldberg
Faculty Scholarship
After the parties agree to a sale, the buyer sends a purchase order with one set of boilerplate terms on the reverse side; the seller responds with an acknowledgment and invoice with another set of boilerplate terms. Do they have a contract? If so, on what terms? This so-called "battle of the forms" has given rise to a great outpouring of scholarship and a legislative solution widely perceived as inartfully drafted and generally unsatisfactory. In particular, the Code solution has been criticized because it attempted to solve both the formation and interpretation problems with one rule. The Uniform Commercial Code …
Article 5 - Recent Developments, James J. White
Article 5 - Recent Developments, James J. White
Other Publications
I. Mitigation in Letter of Credit Transactions Assume a Buyer has procured a letter of credit to pay for contracted goods but no longer wants the goods. The Buyer and the Issuer would like to force the Beneficiary to mitigate. Assume that both the Issuer and Applicant repudiate their obligation or that the Applicant has failed and the Issuer repudiates its obligation to pay under the letter of credit. At the moment of repudiation the price for a gallon of the underlying oil that is the subject of the letter of credit is $.75 and that the letter of credit …
The New Requirement Of Enforcement Reliance In Commercial Promissory Estoppel: Section 90 As Catch-22, Sidney Delong
The New Requirement Of Enforcement Reliance In Commercial Promissory Estoppel: Section 90 As Catch-22, Sidney Delong
Faculty Articles
Any comprehensive examination of recent appellate court decisions will disclose that the legal doctrine of promissory estoppel has not become a significant source of commercial contractual obligation. Although commercial promissory estoppel claims are often made, plaintiff victories are very rare. These results are difficult to reconcile with frequent scholarly contentions to the effect that contemporary courts have become more receptive to claims of promissory estoppel and have liberalized its doctrinal requirements. More important, the promisor behavior that is incidentally disclosed in reported opinions also undermines academic arguments that rules providing for promissory estoppel have commercial utility. The decisions suggest that …
In The Tribunal Of Conscience: Mills V. Wyman Reconsidered, Geoffrey R. Watson
In The Tribunal Of Conscience: Mills V. Wyman Reconsidered, Geoffrey R. Watson
Scholarly Articles
In this Article, Professor Watson explores the historical record surrounding Mills v. Wyman, 20 Mass (3 Pick) 207 (1825), one of the leading American cases on moral obligation in contract law. In Mills, the Massachusetts Supreme Judicial Court refused to enforce a father's promise to compensate a Good Samaritan who had cared for the father's dying son. Professor Watson combs the historical evidence--court records, census reports, genealogical data, probate records, military rolls, and so on-and argues that the Mills court got both the facts and the law wrong. According to Professor Watson, the father did not make the promise in …
The Use Of Mediation And Arbitration For Resolving Family Conflicts: What Lawyers Think About Them, Mary Kay Kisthardt
The Use Of Mediation And Arbitration For Resolving Family Conflicts: What Lawyers Think About Them, Mary Kay Kisthardt
Faculty Works
The use of alternative methods for resolving family conflict has increased significantly in the past few years, but many attorneys are still wary. In an effort to discover some of the sources of this hesitation as well as identify support for "alternative" processes, the American Academy of Matrimonial Lawyers surveyed its members concerning the use of dispute resolution methods. The purpose of this study was to ascertain attorneys' perceptions of the advantages and disadvantages of the two most commonly used alternative dispute resolution mechanisms: mediation and arbitration. Whether clients will continue to use these methods depends in great part on …
Freedom Of Contract, Fiduciary Duties, And Partnerships: The Bargain Principle And The Law Of Agency, J. Dennis Hynes
Freedom Of Contract, Fiduciary Duties, And Partnerships: The Bargain Principle And The Law Of Agency, J. Dennis Hynes
Publications
No abstract provided.
Gateway Widens Doorway To Imposing Unfair Binding Arbitration On Consumers, Jean R. Sternlight
Gateway Widens Doorway To Imposing Unfair Binding Arbitration On Consumers, Jean R. Sternlight
Scholarly Works
Hill v. Gateway, is but the most extreme example of a series of court decisions that allow large companies to impose potentially unfair binding arbitration agreements on unwitting consumers. The outcome in Gateway, however, is questionable on federal statutory, common law, and constitutional grounds.
The United States Parol Evidence Rule Under The United Nations Convention On Contracts For The International Sale Of Goods, David H. Moore
The United States Parol Evidence Rule Under The United Nations Convention On Contracts For The International Sale Of Goods, David H. Moore
Faculty Scholarship
No abstract provided.
Direct Effect Of International Economic Law In The United States And The European Union, Ronald A. Brand
Direct Effect Of International Economic Law In The United States And The European Union, Ronald A. Brand
Articles
One of the most important and challenging issues in international law is the manner in which we address the relationship between the individual and the international legal system. The traditional framework, in which we set a "sovereign" government between the individual and the development and application of the rules, is no longer sufficient in all circumstances. The fact that governments feel insecure or threatened by the application of international legal rules in actions brought by individuals is not sufficient reason to preclude that development. The purpose of government is not to perpetuate traditional power structures, it is to provide security …
International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi
International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi
LLM Theses and Essays
With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …
Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White
Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White
Articles
The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.
The Net Profits Puzzle, Victor P. Goldberg
The Net Profits Puzzle, Victor P. Goldberg
Faculty Scholarship
The use of "net profits" clauses in the movie business poses a problem. The standard perception is that Hollywood accounting results in successful films showing no net profits. If that is indeed so, then why have they survived for over four decades? This Essay argues that a successful movie will fail to yield net profits only if a "gross participant" (a major star whose compensation is in part a function of the film's gross receipts) becomes associated with the film. Since the net profits participants typically are associated with a project first, the question becomes: Why would they be willing …
Reshaping The Precontractual Liability Debate: Beyond Short-Run Economics, Juliet P. Kostritsky
Reshaping The Precontractual Liability Debate: Beyond Short-Run Economics, Juliet P. Kostritsky
Faculty Publications
This article responds to three recent treatments of precontractual bargaining by Professors Richard Craswell and Avery Katz and Mr. Wouter vils: Richard Craswell, Offer, Acceptance, and Efficient Reliance, 48 STAN. L. REv. 481 (1996); Avery Katz, When Should An Offer Stick? The Economics of Promissory Estoppel in Preliminary Negotiations, 105 YALE L.. 1249 (1996); and Wouter Wils, Who Should Bear the Costs of Failed Negotiations? A Functional Inquiry Into Precontractual Liability, 4 JOURNAL DES EcONOMsMs Er DES ETUDES HUMAINES 93 (1993).
Contract Formation And Interpretation, Avery W. Katz
Contract Formation And Interpretation, Avery W. Katz
Faculty Scholarship
Much research in law and economics, following Coase's insight that the effects of a legal rule depend on the ability of those whom it governs to bargain around it, has undertaken to explain how substantive entitlements such as property rights influence the bargaining process. Perhaps more important than any substantive rights or duties in this regard, however, is the extensive body of contract doctrine that governs the procedural mechanics of exchange. The formal rules of contract formation, by attaching consequences to the various acts and omissions that bargainers can choose from in a negotiation, affect the parties' incentives to make …
Text And Context In International Dispute Resolution, William W. Park
Text And Context In International Dispute Resolution, William W. Park
Faculty Scholarship
More than one thoughtful business manager has contemplated the prospect of litigation abroad in terms analogous to those used by the 19th century diarist quoted above. When an international venture goes awry, the dramatically disagreeable consequences can often include the "hometown justice" of the other side's national courts: unfamiliar procedures, perhaps a foreign language, and in some countries, a xenophobic or even corrupt judge.
Review Of Why Things Bite Back: Technology And The Revenge Of Unintended Consequences By Edward Tenner, Jay D. Wexler
Review Of Why Things Bite Back: Technology And The Revenge Of Unintended Consequences By Edward Tenner, Jay D. Wexler
Faculty Scholarship
Historian of science Edward Tenner begins his book with a typical example of what he sees as the irony of modern life in a technological society. With the advent of electronic mail and inter-office networking, one would expect that the amount of paper used in offices would markedly decline, but in fact, notes Tenner, paper recycling bins are more full than ever before. People do indeed communicate through e-mail, but since they mistrust the permanence of electronic transmissions, they also back them up with an ever increasing amount of paper communication. In his typically amusing way, Tenner notes that when …