Law Commons^™

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 (Program), 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, and by consolidating individual farm‐to‐city …

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

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

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

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 in …

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 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 …

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, it …

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.

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

Research Collection Yong Pung How 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 …

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 expectations …

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 …

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. …

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 …

State And Local Governments Address The Twin Challenges Of Climate Change And Energy Alternatives, Irma S. Russell, Jeffery S. Dennis

Faculty Works

No abstract provided.

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

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

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

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 arrangements …

Nota Sobre El Contracte De Col·Laboració Publicoprivada [Notes On The Public-Private Partnership Contract], Vanessa Casado-Pérez

Faculty Scholarship

No abstract provided.

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 that …

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 …

Disney Examined; A Case Study In Corporate Governance And Ceo Succession, Lawrence Lederman

Articles & Chapters

No abstract provided.

Promissory Estoppel And The Protection Of Interpersonal Trust, John J. Chung

Law Faculty Scholarship

No abstract provided.

Construing The National Labor Relations Act The Nlrb And Method Of Statutory Construction, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Funky Mussels, A Stolen Car, And Decrepit Used Shoes: Non-Conforming Goods And Notice Thereof Under The United Nations Sales Convention, Harry Flechtner

Articles

This is a draft of a paper that will appear in a forthcoming issue of the Boston University International Law Journal. This paper, which derives from comments delivered at a 2006 conference held at Istanbul (Turkey) Bilgi University, gives an overview of Part III, Chapter II, Section II of the United Nations Convention on Contracts for the International Sale of Goods (CISG). This portion of the Convention encompasses provisions addressing a number of critical issues, including the seller's obligations concerning the quality (Article 35), title (Article 41) and intellectual property aspects (Article 42) of goods sold in a transaction governed …

After The Battle Of The Forms, Francis J. Mootz Iii

Scholarly Works

Commercial parties continue to fight the battle of the forms, but electronic contracting is quickly rendering this practice obsolete. In this article I assess the legal landscape for commercial parties after the battle of the forms. In Section I, I briefly describe the (relatively) settled law under U.C.C. § 2-207. I then describe how these rules permit commercial parties to erect a force-field to protect themselves from being subjected to unwanted terms, and the developments in web-based contracting and recent case law applying contract formation principles to electronic contracting. Finally, I discuss how the growth of electronic contracting will eliminate …

Uncertainty, Reliance, Preliminary Negotiations And The Hold Up Problem, Juliet P. Kostritsky

Faculty Publications

Recently, two scholars, Alan Schwartz and Robert Scott, have cast doubt on the conventional view that courts would find liability and award reliance damages in precontractual cases that resembled the famous Hoffman v. Red Owl case. They have argued that courts deny recovery for reliance in cases involving precontractual preliminary negotiation but regularly grant reliance recovery following a preliminary agreement. They identify a pattern or sequence in which success is likely and then provide an analytical framework to justify liability. When parties reach a preliminary agreement that also includes an agreement that they both invest simultaneously and one party strategically …

Marybeth Peters Is Almost Right: An Alternative To Her Proposals To Reform The Compulsory License Scheme For Music, William Henslee

Journal Publications

Since Napster made mass digital downloads and online piracy available and accessible in June of 1999, the music industry has been under attack. Traditionally, record companies have received their revenue from phonorecord sales and use of the music in film, television, and advertisements. Performers have received their income from record companies based on a percentage of the sales income after the company has recouped its investment in the artist.

With the current technology and digital marketing available, all of the players in the music business believe that the revenue distribution models need to change but, to date, have been reluctant …

Selling It First, Stealing It Later: The Trouble With Trademarks In Corporate Transactions In Bankruptcy, Xuan-Thao Nguyen

Articles

Why does AI get two bites of the “Apple” trademark? Should AI be allowed to grant the right to use the trademark “perpetual and exclusive” with the sale of the music division and steal it back for free, ten years later? This article is part of an ongoing and broader inquiry into the intersection of trademark, contract and bankruptcy laws. This article argues that recent bankruptcy decisional law, notably the In re Exide Technologies decision, misunderstands the “perpetual and exclusive” trademark transaction, deeming it as an ordinary “license” when it is truly an outright sale. This article explains that the …