Law Commons^™

Formalism In Contract Exposition, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Formalism in contract law has had many defenders and many critics. What lawmakers need, however, is an account of when formalist approaches work and when they do not. This article addresses that need by providing general theory of the rules of contract interpretation and construction and identifying several ways those rules can be more or less formalist. The theory draws from legal philosophy, the philosophy of language, economic contracts scholarship, and caselaw.

The result is a distinction between two forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples from …

Convergence By Design: Who Contracts And The Plural Purposes Of Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A theory is robustly pluralist if it maintains that law is justified by multiple independent nonordered principles. Some have argued that robustly pluralist theories are deficient because they can provide no practical guidance when those principles conflict. The objection is misplaced when applied to pluralist theories of contract law.

This article demonstrates the possibility of a robustly pluralist and practically relevant theory of contract law by modeling a multipurpose law of contract. Five simple models are constructed to illustrate several purposes a contract law might serve, depending on preferences of the populace (self-interested utility maximizers, a preference for sharing, a …

Integrating Doctrine And Diversity Speaker Series: How Does Diversity, Equity, Inclusion And Belonging Pedagogy Fit In Business Issues And Financial Affairs Classes? Leading With Deib In Wills, Trusts, Estates, Insurance, Contracts, And Taxation Law Classes, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Expert Insights On Best Practices For Community Benefits Agreements, Matthew Eisenson, Romany M. Webb

Sabin Center for Climate Change Law

This report outlines 35 recommendations for developers and host communities when negotiating and drafting Community Benefits Agreements (CBAs) for direct air capture hubs and other clean energy projects. These recommendations come from interviews with attorneys and other experts who have collectively negotiated dozens of CBAs for climate infrastructure and other types of projects.

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow

Law & Economics Working Papers

The world of international bankruptcy has seen increasing use of the versatile scheme of arrangement, a form of corporate reorganization available under English law. A key feature of the scheme is its modularity, whereby a debtor can restructure only a single class of debt, such as bond indentures, without affecting other debt, such as trade. This is the opposite of chapter 11 of the U.S. Bankruptcy Code’s comprehensive reckoning of all financial stakeholders. This article considers a novel idea: could the scheme be transplanted into the consumer realm? It argues that it could and should. Substantial benefits of more individually …

Developments In Contract Law: The 2021-2022 Term — The Enduring Allure Of Freedom Of Contract, Marcus Moore

All Faculty Publications

A review of recent developments in Contract Law reveals that Freedom of Contract continues to thrive in the jurisprudence a half-century after its supposed fall. As the analysis here shows, it is a theme which animates not only general thinking about contracts, but also court resolution of specific cases and issues. High-level considerations drive the reasoning, colouring the application of more detailed rules where these exist. And among these high-level considerations, Freedom of Contract enjoys privileged status as the default law, against which opposing considerations in practice must justify themselves as exceptions. Other considerations vary in their power to constrain …

Confidentiality Clauses In Settlement Agreements After The Consumer Review Fairness Act, Wayne Barnes

Faculty Scholarship

Online commerce has skyrocketed in recent years, and shoppers are purchasing goods or services online in greater numbers every year. The COVID-19 pandemic has only hastened the trend. One significant aspect of online shopping is the presence of consumer reviews posted by prior purchasers of goods or services, describing their experience with the products, the services and/or the selling merchant. A vast majority of online shoppers say that they rely on these reviews to help inform their purchasing decisions. Positive reviews can be tremendously beneficial to a business’ profitability, whereas negative reviews can be equally detrimental. Users of the internet …

Stopping Runs In The Digital Era, Luís C. Calderón Gómez

Articles

Bank runs, and the financial crises they catalyze and amplify, are incredibly costly-to individuals, families, society, and the economy writ large. Banking regulation has, for the most part, protected us from traditional bank runs for the last ninety years. However, as we saw in the devastating 2008 financial crisis, bank runs can still occur in lightly regulated or opaque segments of the financial sector.

The recent crypto market downturn dramatically forewarned regulators of the potential and significant risks that novel assets could pose to our financial system's stability. In particular, a novel, systemically important asset (stablecoins) revealed its vulnerability to …

What Might Contract Theory Be, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Few contract theories begin with so comprehensive a discussion of method as does Stephen Smith’s book, Contract Theory. In the first chapter, “What Is Contract Theory,” Smith describes an interpretive approach guided by four goals: fit with the existing law, internal coherence, moral attractiveness, and transparency to legal actors.

This chapter, to appear in the forthcoming Understanding Private Law: Essays in Honour of Stephen A. Smith, does a deep dive into Smith’s description and defense of those goals. Smith pictures the contract theorist as an observer standing outside legal practice, interpreting the law but not participating in it. …

Standards And The Law, Cary Coglianese

All Faculty Scholarship

The world of standards and the world of laws are often seen as separate, but they are more closely intertwined than many professionals working with laws or standards realize. Although standards are typically considered to be voluntary and non-binding, they can intersect with and affect the law in numerous ways. They can serve as benchmarks for determine liability in tort or contract. They can facilitate domestic and international transactions. They can prompt negotiations over the licensing of patents. They can govern the development of forensic evidence admissible in criminal courts. And standards can even become binding law themselves when they …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law School Faculty Publications

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

Misrepresentation And Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Contract theorists naturally focus on the duty to perform. This chapter argues they should also pay attention to duties of candor in the contracting context. The most obvious example of such duties can be found in the misrepresentation defenses, which aim to ensure that contractual undertakings are sufficiently voluntary and to allocate the costs of defective consent. But other laws of deception, such as the torts of negligent misrepresentation and deceit, are also integral to the law of contracts. Separate liability in tort for both pre- and post-formation misrepresentations helps parties who mistrust one another determine whether an exchange is …

The Scope Of Generic Choice Of Law Clauses, Tanya J. Monestier

Journal Articles

Non-proceduralists have the perception that questions of jurisdiction or choice of law are just preliminary issues that need to be dealt with before getting to the real dispute, the things that matter. What they do not realize is that these preliminary issues are often, themselves, the real dispute. They are the lever which permits litigation to proceed or which stops a claim dead in its tracks. Thus, these procedural matters — often dismissed as technicalities — have the potential to shape the dispute in significant ways.

Take for instance, a staple of commercial and consumer contracting: the ubiquitous choice of …

The Failure Of Market Efficiency, William Magnuson

Faculty Scholarship

Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, …

Time’S Up: Against Shortening Statutes Of Limitation By Employment Contract, Meredith R. Miller

Scholarly Works

Employers are increasingly adding clauses to contracts with employees that purport to shorten the statutes of limitation for employees to pursue claims against their employers (“SOL Clauses”). SOL Clauses are being imposed on employees in various stages of the contracting process. They have turned up in job applications, offer letters, arbitration clauses, employment agreements and employee handbooks. Where they have been enforced by the courts, the justification has been a prioritization of “freedom of contract” over any other policy concerns. This Article argues that, in the employment context, “freedom of contract” should not be prioritized over other competing concerns, which …

Limiting Overall Hospital Costs By Capping Out-Of-Network Rates, David Orentlicher, Kyra Morgan, Barak Richman

Scholarly Works

Contract theory offers a simple and wildly effective solution to surprise bills: Hospital admissions contracts are contracts with open price terms, which contract law imputes with market rates. This solution not only obviated the costly, time-consuming, and complicated (and still unimplemented) legislative fix in the No Surprises Act, but it also is a superior solution since it introduces superior incentives to disclose, compete, and economize.

Using data from the Nevada Department of Health and Turquoise Health, this paper explores the theory and empirics of employing contract law's solution to hospital surprise bills and its superiority over other legislative interventions.

Deconstructing Employment Contract Law, Rachel Arnow-Richman, J.H. Verkerke

UF Law Faculty Publications

Employment contract law is an antiquated, ill-fitting, incoherent mess. But no one seems inclined to fix this problem. Employment law scholars, skeptical of employees’ ability to bargain, tend to disregard contract law and advocate for just-cause and other legislative reform. And contracts scholars largely ignore employment cases—viewing them, with some justification, as part of a peculiar, specialized body of law wholly divorced from general contract jurisprudence. As a result of this undesirable employment law exceptionalism, courts lack the tools they need to resolve recurring, real-world disputes.

This article offers a new, comprehensive historical account that exposes the formalistic and anti …

Us Trade Policy, China And The Wto (Foreword), Paolo Davide Farah

Book Chapters

In ‘U.S. Trade Policy, China and the WTO’, Nerina Boschiero addresses a key topic in contemporary international economic law and global governance. By focusing on a turning point in global politics and the shaping/framing of trade policy in the U.S.– the election of President Donald Trump sheds light on the tumultuous process of reshaping of global governance. The crisis of multilateralism has been discussed at length in academia and mainstream media. However, little attention has been paid to how the U.S. is reacting to the rise of China in the global order, in practical terms. In particular, focus …

Artificial Intelligence And Contract Formation: Back To Contract As Bargain?, John Linarelli

Book Chapters

Some say AI is advancing quickly. ChatGPT, Bard, Bing’s AI, LaMDA, and other recent advances are remarkable, but they are talkers not doers. Advances toward some kind of robust agency for AI is, however, coming. Humans and their law must prepare for it. This chapter addresses this preparation from the standpoint of contract law and contract practices. An AI agent that can participate as a contracting agent, in a philosophical or psychological sense, with humans in the formation of a con-tract will have to have the following properties: (1) AI will need the cognitive functions to act with intention and …

Contract Law Should Be Faith Neutral: Reverse Entanglement Would Be Stranglement For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Faculty Articles

The first section of this Article will outline the ways in which communities—religious and other groups, including the LGBTQ+ community—have used and continue to use private law to achieve meaningful dispute resolution. By diminishing the role of civil courts to review arbitrations, parties may tailor their resolutions to prioritize community values that may be misaligned with secular society. Outside of historical religious usage, private law offers a field ripe for jurisprudential growth. Through alternative dispute resolution, affinity-based minority groups can pave an avenue towards justice which accurately reflects the unique values of their lived experiences.

The second section will provide …

Teaching Slavery In Commercial Law, Carliss N. Chatman

Scholarly Articles

Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history, the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans, combined with standards developed to facilitate the growth of the international commodities market for products including cotton, contributed to the current beliefs of business investors and even how communities of color are still governed and supported. The impact of that shift in …

Race & International Investment Law: On The Possibility Of Reform And Non-Retrenchment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime’s foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. These critical scholars warn of the imminent reproduction and entrenchment of the systemic inequities, power asymmetries, and investment law’s investor-state dispute settlement (ISDS) regime which is skewed against post-colonial host states. The …

Public Ownership And The Wto In A Post Covid-19 Era: From Trade Disputes To A 'Social' Function, Paolo Davide Farah, Davide Zoppolato

Articles

Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Where the market cannot, or does not want to, provide goods and services, the State uses different tools to intervene, influence, and control some aspects of the private sphere of expression of its citizens in the name and interest of the collectivity. Although, in the past century, this behavior was accepted as one of the expressions of the public authority and part of the social contract, this perception has shifted partially in accordance with the wave of privatization programs initiated …

Rational Contract Design, Naveen Thomas

Faculty Scholarship

No abstract provided.

Impossibility And Frustration, Jennifer Nadler

All Papers

No abstract provided.

Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks

Faculty Articles

Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world's largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland's biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan's Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG, which lost $5.5 billion. Archegos itself lost $20 billion over two days. The unique characteristics of total return swaps and …

How To Interpret A Vending Machine: Smart Contracts And Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A smart contract is software designed to do the job of a legal contract: ensuring the performance of parties who might not otherwise trust one another to do so. By running a smart contract on blockchain, users can lock themselves into future performances without relying on a third-party enforcer or platform host, thereby realizing a “fully trustless” exchange. This new technology has wide range of potential applications, and contracts are likely to become an increasingly common part of the economy.

Some have argued that smart contracts represent a new type of legal contract, analogizing the software’s code to a contractual …

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

When should specific performance be available for breach of contract? This question — at the core of contract — divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and …