Law Commons^™

Rolling Contracts, Robert A. Hillman

Cornell Law Faculty Publications

"Rolling contracts" are one method of presenting standard forms to contracting parties, including consumers, who are the focus of this paper. In a rolling contract, a purchaser orders goods and pays for them before seeing most of the terms, which come later in or on the packaging of the goods. The purchaser can return the goods for a limited time period.

This paper addresses the controversy over whether the new terms are part of the contract and enforceable against the purchaser. Although most analysts focus on when the contract is formed, this paper urges that this analysis yields little fruit. …

4th Annual Computer & Technology Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 4th Annual Computer & Technology Law Institute held by UK/CLE in November 2002.

The Critical Resource Theory Of Fiduciary Duty, D. Gordon Smith

Faculty Scholarship

This Article proposes a new theory to unify the law of fiduciary duty. The prevailing view holds that fiduciary law is atomistic, arising for varied reasons in established categories of cases (such as trustee-beneficiary and director-shareholder) and ad hoc in relationships where one person trusts another and becomes vulnerable to harm as a result. By contrast, the critical resource theory of fiduciary duty holds that every relationship properly designated as fiduciary conforms to the following pattern: one party (the fiduciary) acts on behalf of another party (the beneficiary) while exercising discretion with respect to a critical resource belonging to the …

The Jurisprudence And Politics Of Forum-Selection Clauses, Erin O'Hara O'Connor

Scholarly Publications

No abstract provided.

An Analysis Of The Duty To Negotiate In Good Faith: Precontractual Liability And Preliminary Agreement, Aarti Arunachalam

LLM Theses and Essays

Good faith is one concept that defies a clear definition and courts have struggled to understand and establish its scope and ambit. This paper just seeks to analyze the scope of the duty of good faith as understood at the stage when actually no contract has been formed. Despite considerable support for the existence of a duty of good faith, courts in US have not been very receptive in recognizing the duty of good faith especially in the precontractual stage, especially when parties enter into preliminary agreement. Courts have relied on the a number of factors to determine the enforceability …

Contract Lore, Robert A. Hillman

Cornell Law Faculty Publications

The article investigates why contracts lawyers, judges, and theorists ("contracts people") routinely and confidently invoke "traditional beliefs" about contract law that are not even close to true. For example, contracts people often declare that the purpose of expectancy damages is to put the injured party in as good a position as if the contract had been performed. But expectancy damages virtually never do this. Contracts people also recite that the reasons for breach, whether willful, negligent or unavoidable, do not matter, and that formation and interpretation issues focus on the parties' intentions. Neither of these assertions is close to true …

Comment: More In Defense Of U.C.C. Methodology, Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.

Standard-Form Contracting In The Electronic Age, Robert A. Hillman, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

The development of the Internet as a medium for consumer transactions creates a new question for contract law. In this Article, Professors Robert Hillman and Jeffrey Rachlinski address whether the risks imposed on consumers by Internet boilerplate requires a new lens through which courts should view these types of contracts. Their analysis of boilerplate in paper and Internet contracts examines the social, cognitive, and rational factors that affect consumers' comprehension of boilerplate and compares business strategies in presenting it. The authors conclude that the influence of these factors in Internet transactions is similar to that in proper transactions. Although the …

Trade Secrets, Property, And Social Relations, Steven Wilf

Faculty Articles and Papers

No abstract provided.

Knowledge At Work: Disputes Over The Ownership Of Human Capital In The Changing Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.

Letters Of Comfort Revisited, Pey Woan Lee

Research Collection Yong Pung How School Of Law

Since the English Court of Appeal’s decision in Kleinwort Benson Ltd v. Malaysia Mining Corp. Bhd, it would be understandable if the business community placed little or no reliance on letters of comfort save in the exceptional case where the terms evince an undeniably clear intention to create binding obligations. It might therefore seem somewhat surprising that an experienced and sophisticated institution should commence proceedings in the High Court of Singapore on the premise of a letter of awareness in Hongkong and Shanghai Banking Corporation Ltd v. Jurong Engineering Ltd. This could plausibly be explained as the bank’s last-ditch attempt …

Taking Contracts Private: The Quiet Revolution In Contract Law, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Employee Representation In The Boundaryless Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.

The Rise And Fall Of Promissory Estoppel Or Is Promissory Estoppel Really As Unsuccessful As Scholars Say It Is: A New Look At The Data, Juliet P. Kostritsky

Faculty Publications

This article makes important contributions to the field of empirical promissory estoppel scholarship. First it challenges recent empirical scholarship (by Professors Robert Hillman and Sidney De Long in the 1998 and 1997 Columbia and Wisconsin law reviews). Their scholarship had challenged the view of the vast majority of American Contracts scholarship by proclaiming promissory estoppel to be an unimportant doctrine based on low win rates of tried cases. My article challenges this new orthodoxy based on a comprehensive five year survey of cases. It concludes that it is too soon to announce the death of promissory estoppel and that promissory …

Express Warranty As Contractual - The Need For A Clear Approach, Sidney Kwestel

Scholarly Works

No abstract provided.

Reciprocal Fairness, Strategic Behavior & Venture Survival: A Theory Of Venture Capital-Financed Firms, Manuel A. Utset

Scholarly Publications

No abstract provided.

When Do Claims Challenging A Statute’S Effect On Pre-Existing Contracts Accrue?, Lucia A. Silecchia

Scholarly Articles

No abstract provided.

Copyright Limitations And Contracts. An Analysis Of The Contractual Overridability Of Limitations On Copyright, Lucie Guibault

Articles, Book Chapters, & Popular Press

Traditional copyright law strikes a delicate balance between an author's control of original material and society's interest in the free flow of ideas, information, and commerce. In today's digitally networked environment, this balance has shifted dramatically to one side, as powerful rights holders contractually impose terms and conditions of use far beyond the bounds set by copyright law. This vitally significant book explores this conflict from its gestation through its current manifestations to its future lineaments and potential consequences. Focusing on statutory copyright limitations that enshrine constitutional rights such as freedom of expression and privacy, foster dissemination of knowledge, safeguard …

Contract Law, Andrew Phang

Research Collection Yong Pung How School Of Law

As expected, the number of Singapore cases during the year under review impacting the law of contract is enormous. As I have mentioned in previous reviews, this is due to the fact that the law of contract permeates virtually all areas of the law of obligations – and, on occasion, beyond as well. I will therefore adopt the approach which has been adopted during previous years: which is to focus, in the main, on general principles. There have – as we shall see – been a few cases that are of especial significance. Not surprisingly, given the fact that the …

Mistake In Contract Law —Two Recent Cases, Andrew Phang

Research Collection Yong Pung How School Of Law

The doctrine of mistake in contract law has had a chequered history. Indeed, its very existence has been questioned (see, e.g., Slade, (1954) 70 L.Q.R. 385 and Atiyah and Bennion, (1961) 24 M.L.R. 421). But, like a bad penny that will not go away, the doctrine remains stubbornly embedded in the contractual landscape and has in fact witnessed a small revival of sorts in recent years (see, e.g., Clarion Ltd. v. National Provident Institution [2000] 2 All E.R. 265 (noted Phang, (2002) 1 J.O.R. 21)).

Aids Caps, Contraceptive Coverage, And The Law: An Analysis Of The Federal Anti-Discrimination Statutes’ Applicability To Health Insurance, Sharona Hoffman

Faculty Publications

Traditionally, health insurers have enjoyed the freedom to determine their own terms of coverage, to decide to what extent, if any, patients should be reimbursed for different kinds of treatment, and to establish premium prices. Health insurers typically deny coverage for speech therapy, eye glasses, hearing aids, most foot care, and treatment for infertility. Many insurance providers also exclude or severely limit coverage for mental health, dental care, AIDS, diabetes mellitus, morbid obesity, epilepsy, and alcoholism or drug abuse. Therefore, while some Americans enjoy full coverage for all their health needs, others who have insurance and suffer from serious or …

Beware Of The Dark Side Of The Farce, Keith A. Rowley

Scholarly Works

No abstract provided.

Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel

Scholarly Works

Insurance law scholars and teachers sometimes feel, with a mixture of paranoia and justification, that insurance law simply does not receive its proper respect in the hierarchy of legal education and law generally.

Consider the law school curriculum. In none of America’s nearly 200 ABA-approved law schools in insurance law a required course. Nor is it considered a course that, although not required, prudent students “must” be sure to take before they graduate (e.g. Evidence, Corporations). Enrollments may be respectable but the class is seldom oversubscribed, even where the law school is located in an insurance hub city. Although other …

Timeless And Ahead Of Its Time: Lach's V. Fidelity & Casualty Of New York, Jeffrey W. Stempel

Scholarly Works

The publication of Judge Keeton's important article “inventing” the reasonable expectations doctrine in 1971 is notable for infusing a good deal of intellectual energy into the study of insurance law, particularly judicial decisions about insurance coverage. Keeton's article, which deduced from cases the principle that courts tended to interpret policies to vindicate the objectively reasonable expectations of the insured, has rightly been viewed as a milestone. It clarified an area of law long seen as inconsistent or result-oriented. It spurred additional important scholarship in the area and elevated insurance caselaw from something of a backwater to at least a respectable …

The Insurance Aftermath Of September 11: Myriad Claims, Multiple Lines, Arguments Over Ocurrence Counting, War Risk Exclusions, The Future Of Terrorism Coverage, And New Issues Of Government Role, Jeffrey W. Stempel

Scholarly Works

September 11, 2001, is an unforgettable date for many reasons. In addition to its political, social, and historical importance, it may mark a watershed of insurance history as well. The value of the insurance losses due to the collapse of the World Trade Center (WTC) towers is estimated to total at least $35 billion and perhaps $75 billion. In addition, most of the people killed by terrorism were covered by life insurance. Many business operations were affected, invoking possible business interruption coverage. The airplanes that became weapons of destruction carried passengers whose estates are likely to press claims against the …

Civil Liability And Remedies In Ohio Securities Transactions, Keith A. Rowley

Scholarly Works

The Ohio Securities Act (“OSA”) was enacted in 1913 to “guard [ ] investors against fraudulent enterprises, to prevent sales of securities based only on schemes purely speculative in character, and to protect the public from swindling peddlers of worthless stocks in mere paper corporations.” The OSA, which is administered by the Ohio Division of Securities (“Division”) and enforced by both the Division and private litigants, regulates the sale and purchase of securities in Ohio. The OSA and the rules and regulations promulgated pursuant to it by the Division are designed both to encourage compliance by those who might otherwise …

Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz

Articles

Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.

The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect …

Sovereign Bonds And The Collective Will, Lee C. Buchheit, G. Mitu Gulati

Faculty Scholarship

No abstract provided.

Venture Capital On The Downside: Preferred Stock And Corporate Control, William W. Bratton

All Faculty Scholarship

No abstract provided.

A Reexamination Of Glanzer V. Shepard: Surveyors On The Tort- Contract Boundary, Victor P. Goldberg

Faculty Scholarship

In international commodity transactions, intermediary certifiers of quantity and quality play a crucial role. Sometimes they err, and when they do, the aggrieved party can pursue remedies against the counterparty or against the intermediary, either in contract or tort. The remedy against the intermediary has depended, at least in part, on whether the plaintiff was in privity. Even absent privity, the aggrieved party could possibly recover in tort (or perhaps as a third-party beneficiary). So held Cardozo in the leading New York case Glanzer v. Shepard. Section I of this paper reviews the Glanzer litigation, with special emphasis on how …