Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Contracts

2008

Institution
Keyword
Publication
File Type

Articles 1 - 30 of 77

Full-Text Articles in Law

Agenda: Evolving Regional Frameworks For Ag-To-Urban Water Transfers, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program, Western Water Assessment, Red Lodge Clearinghouse Dec 2008

Agenda: Evolving Regional Frameworks For Ag-To-Urban Water Transfers, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program, Western Water Assessment, Red Lodge Clearinghouse

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

The permanent transfer of water from agricultural users to municipalities has become a common feature of water management in several western states. In many cases, these voluntary market‐based transfers provide significant benefits to both the buyers and sellers, but many third parties—including remaining irrigators, rural businesses and communities dependent upon agricultural economies—have been negatively impacted. While some impacts of these so‐called “buy and dry” transfers are largely unavoidable, many can be lessened by temporary arrangements that only shift water to cities in years when municipal supplies are inadequate, such as drought and post‐drought storage recovery ...


Slides: Lower Arkansas Valley Super Ditch Company, Inc.: Water Leasing Program, Peter Nichols Dec 2008

Slides: Lower Arkansas Valley Super Ditch Company, Inc.: Water Leasing Program, Peter Nichols

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Peter Nichols, General Counsel of the Lower Arkansas Valley “Super Ditch” Company, Trout, Raley, Montano, Witwer & Freeman PC, Colorado

33 slides


Slides: Idaho Rental Pool: Rules And Procedures, Idaho Water Resource Board, Jerry R. Rigby Dec 2008

Slides: Idaho Rental Pool: Rules And Procedures, Idaho Water Resource Board, Jerry R. Rigby

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Jerry Rigby, Counsel for Fremont‐Madison Irrigation District, Rigby, Thatcher, Andrus, Rigby & Moeller, Idaho

25 slides


Slides: Pvid/Mwd Land Management, Crop Rotation And Water Supply Program, Ed Smith Dec 2008

Slides: Pvid/Mwd Land Management, Crop Rotation And Water Supply Program, Ed Smith

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Ed Smith, General Manager, Palo Verde Irrigation District, Southern California

25 slides


Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin Dec 2008

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same ...


The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes Dec 2008

The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes

Faculty Scholarship

Most of the world, including Anglo-American jurisdictions, conforms to the objective theory of contract, which posits that contract formation is determined by reference solely to external evidence of manifestations of assent. On the other hand, France uniquely clings to the rhetoric of its “subjective” theory of contract, championing the freedom of the individual and the autonomy of the will. France’s association with a subjective theory of contract is widely recognized and assumed. One would initially assume that the French subjectivist philosophy would result in dramatically different outcomes in actual cases, when compared with the objectivist rules-based perspective that obtains ...


The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl Nov 2008

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Faculty Publications

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better ...


Contract Management: A P.A. Education For Boundary Managers., M. Ernita Joaquin Oct 2008

Contract Management: A P.A. Education For Boundary Managers., M. Ernita Joaquin

Public Policy and Leadership Faculty Publications

Graduates of public administration programs might reasonably be expected to accurately spell out, even in their sleep, POSDCoRB. After all, it was Luther Gulick's rock-hewn formulation of the skills involved in public administration, circa 1937. Almost seven decades later, in their book Governing by Network, Stephen Goldsmith and William Eggers called for a
cultural transformation in the way we build capacity in the public sector, and, as I see it, crafting a new POSDCoRB for our time.


Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz Oct 2008

Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz

Faculty Publications

Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead ...


The Effective Reach Of Choice Of Law Agreements, Tiong Min Yeo Sep 2008

The Effective Reach Of Choice Of Law Agreements, Tiong Min Yeo

Research Collection School Of Law

Two fundamental principles relating to party autonomy developed in the recent history of the conflict of laws. Despite initial reservations, the law today takes for granted that the parties’ agreement is nearly conclusive in respect of both their choice of litigation forum and their choice of the law governing the contractual relationship. Meanwhile, the law of obligations – in tort, restitution and equity – has grown apace; disputes between contracting parties today are rarely confined to pure contractual issues. Can contracting parties choose the law to govern non-contractual disputes in cross-border litigation? In the absence of such choice, to what extent can ...


Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin Jul 2008

Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared arbitration clause use in consumer contracts with their use in the same firms' nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in nearly all material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers ...


Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz Jul 2008

Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz

Faculty Publications

This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article ...


The Objective Theory Of Contracts, Wayne Barnes Jul 2008

The Objective Theory Of Contracts, Wayne Barnes

Faculty Scholarship

The objective theory of contracts is the dominant approach for determining whether there has been mutual assent to the formation of a contract. Under objective theory, a party’s manifestation of assent will be held to mean what a reasonable person in the position of the other party would conclude that the manifestation meant. The objective theory is a sound approach for determining assent because: it reflects the pragmatic reality that the law must be largely based on externals rather than the whim of subjective perception, it protects the basis for economic exchanges in our commercial system by enforcing the ...


Mistake And Disclosure In A Model Of Two-Sided Informational Inputs, Michael J. Borden Jul 2008

Mistake And Disclosure In A Model Of Two-Sided Informational Inputs, Michael J. Borden

Law Faculty Articles and Essays

This paper will examine some theoretical aspects of contractual non-disclosure and the related doctrine of unilateral mistake. These two legal rubrics are conceptually similar; each is concerned with the degree to which parties must communicate their understandings about the nature of the contract into which they are about to enter. If one party fails to reveal enough information, the other party may enter into the agreement under a misunderstanding and consequently may attempt to avoid contractual liability on the basis of mistake or on a theory of nondisclosure. The law of contracts clearly attaches a great deal of importance to ...


Summary Of Lehrer Mcgovern Bovis V. Bullock Insulation, 124 Nev. Adv. Op. No. 39, Katie Weber Jun 2008

Summary Of Lehrer Mcgovern Bovis V. Bullock Insulation, 124 Nev. Adv. Op. No. 39, Katie Weber

Nevada Supreme Court Summaries

Appeal from three consolidated district court judgments, and from post-judgment orders denying a new trial and awarding attorney’s fees and costs.


Summary Of Mayfield V. Koroghli, 124 Nev. Adv. Op. Citation 34, Nevada Law Journal May 2008

Summary Of Mayfield V. Koroghli, 124 Nev. Adv. Op. Citation 34, Nevada Law Journal

Nevada Supreme Court Summaries

This case is a consolidated appeal from district court judgments granting specific performance and awarding costs in a real property action.


Summary Of Whitemaine V. Aniskovich, 124 Nev. Advanced Opinion 29, Meredith Holmes May 2008

Summary Of Whitemaine V. Aniskovich, 124 Nev. Advanced Opinion 29, Meredith Holmes

Nevada Supreme Court Summaries

Appellant Whitemaine had concurrent employment contracts with Bank of America Investment Services, Inc. (BAIS) and Bank of America, N.A. The BAIS contract contained a provision requiring appellant to arbitrate any dispute related to her employment. The Bank of America contract contained no arbitration clause, but contained an integration clause. The issue in this case was whether two employment contracts can constitute a single agreement when one of them contains an integration clause.


Impact Of Market Ideology On Transnational Contract Law, M. Neil Browne, Jennifer Coon Apr 2008

Impact Of Market Ideology On Transnational Contract Law, M. Neil Browne, Jennifer Coon

Economics Faculty Publications

As world trade expands to the remotest of venues, commercial laws that encompass transnational jurisdictions become increasingly important. The appropriateness of these laws rely, inter alia, on the strength of the assumptive base supporting such transnational laws of commerce. As this article explains, transnational contract law'is not the product of the Immaculate Conception; it is the anachronistic progeny of certain European laws that emerged during the Industrial Revolution. As such, transnational contract law inherits many of the characteristics of its progenitors. Those characteristics, however, become awkward when viewed through a contemporary institutional context that diverges from the prevailing social ...


Virtual Worlds: Between Contract And Property, Justin B. Slaughter Mar 2008

Virtual Worlds: Between Contract And Property, Justin B. Slaughter

Student Scholarship Papers

Although virtual worlds have existed in some form for several years, it is only recently that the phrase has begun to seem truly accurate, with many users increasingly choosing to live the primary part of their days logged into a virtual world. While virtual worlds are causing us to rethink how we view relationships and communications, they are also increasingly coming into conflict with our prior conceived notions of property law. With virtual worlds facing an escalating number of conflicts over property ownership, it is becoming imperative that the status of virtual property be addressed to ensure the continued growth ...


Globalizing Commercial Litigation, Jens C. Dammann, Henry B. Hansmann Mar 2008

Globalizing Commercial Litigation, Jens C. Dammann, Henry B. Hansmann

Faculty Scholarship Series

The world’s nations vary widely in the quality of their judicial systems. In some jurisdictions, the courts resolve commercial disputes quickly, fairly, and economically. In others, they are slow, inefficient, incompetent, biased, or corrupt. These differences are important not just for litigants, but for nations as a whole: effective courts are important for economic development. A natural implication is that countries with underperforming judiciaries should reform their courts. Yet reform is both difficult and slow. Another way to deal with a dysfunctional court system is for litigants from afflicted nations to have their commercial disputes adjudicated in the courts ...


Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler Jan 2008

Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler

Faculty Working Papers

In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of expressive law, the law's articulation of a behavior can sometimes create self-fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated ...


Litigation And The Optimal Combination Of Vague And Precise Clauses In Contracts, Alvaro E. Bustos Jan 2008

Litigation And The Optimal Combination Of Vague And Precise Clauses In Contracts, Alvaro E. Bustos

Faculty Working Papers

In this paper we determine the optimal combination of precise and vague clauses written in contracts when the parties face writing and enforcement costs, the second ones in the form of litigation. We show that the parties may prefer to write vague instead of precise clauses not only because they are cheaper to write but also because they are cheaper to enforce. We extend Battigalli and Maggi (2002) to model the decision of a principal who chooses clauses to describe the actions that an agent has to perform. As both players observe nature imperfectly they may call for a court ...


Anti-Social Contracts: The Contractual Governance Of Virtual Worlds, Joshua A.T. Fairfield Jan 2008

Anti-Social Contracts: The Contractual Governance Of Virtual Worlds, Joshua A.T. Fairfield

Scholarly Articles

Virtual worlds have seized the imaginations of millions of people who now live, work, and play together in these new environments. But all is not well. These online communities are ruled nearly exclusively by contract law, through end-user licence agreements, terms of service, and codes of conduct. Contracts are a critical means of helping two (or a few) people negotiate their preferences. But online communities are made up of enormous and shifting populations that have no time or ability to negotiate agreements with every other community member. Relying on contracts alone thus threatens the investments and creativity that go into ...


Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg Jan 2008

Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg

W&M Law Student Publications

No abstract provided.


Unintelligent Design In Contract, Peter A. Alces Jan 2008

Unintelligent Design In Contract, Peter A. Alces

Faculty Publications

Scholars have expended considerable energy in the effort to "discover" a normative theory of Contract. This Article surveys that effort and concludes that something fundamental about Contract has been missed and has frustrated the search from the outset. Succinctly, Contract doctrine resists the neat formulation theory requires. Theorists' perspectives on Contract may be generalized as attempts to impute either deontology or consequentialism to the Contract law. Focusing largely on deontological constructions of Contract, this Article demonstrates the inconsistencies among the extant heuristics-promise, reliance, and transfer-and more importantly, the failure of any of those constructions to provide a coherent explanation of ...


Legal Consciousness And Contractual Obligations, Kojo Yelpaala Jan 2008

Legal Consciousness And Contractual Obligations, Kojo Yelpaala

McGeorge School of Law Scholarly Articles

No abstract provided.


After The Battle Of The Forms: Commercial Contracting In The Electronic Age, Francis J. Mootz Iii Jan 2008

After The Battle Of The Forms: Commercial Contracting In The Electronic Age, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.


Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins Jan 2008

Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins

Faculty Publications

No abstract provided.


Rethinking Contract Practice And Law In Japan, John O. Haley Jan 2008

Rethinking Contract Practice And Law In Japan, John O. Haley

Vanderbilt Law School Faculty Publications

This article explores "the Japanese advantage" in the enforcement of ex ante contract commitments in comparison with the United States, arguing that ostensible convergence of Japanese and United States contract practice in on-going business relationships is based on very different assumptions and conditions. Writing in the early 1960s Takeyoshi KaWashima in Japan and Stewart Macaulay in the United States described prevailing views and practices related to business agreements. Their respective observations indicated a tendency in both countries to avoid formal, legally enforceable contacts. For over four decades scholars on both sides of the Pacific have tended view these observations as ...


Corporations And The Market For Law, Erin O'Hara O'Connor, Larry E. Ribstein Jan 2008

Corporations And The Market For Law, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

The state competition for corporate law has long been studied as a distinct phenomenon. Under the traditional view, corporations are subject to a unique choice-of-law rule, the “internal affairs doctrine” (IAD). This rule is explained as a historical accident, or by the special logistics of the corporate contract. The resulting market for corporate law appears to have special characteristics, particularly including the dominance of the single state of Delaware. This article challenges the traditional view. It shows that the corporate law market is best understood as a special application of the general market for law. Parties to many types of ...