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- Faculty Scholarship (5)
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Articles 1 - 22 of 22
Full-Text Articles in Law
Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller
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 …
Demystifying Implied Terms, Marcus Moore
Demystifying Implied Terms, Marcus Moore
All Faculty Publications
Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive'. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established ‘tests' for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by …
Statutes And The Common Law Of Contracts: A Shared Methodology, Juliet P. Kostritsky
Statutes And The Common Law Of Contracts: A Shared Methodology, Juliet P. Kostritsky
Faculty Publications
This chapter explores the intersection between, or the impact of, statutes on contract law, and compares the relative importance of, and intersections between, statutory and common law in contract.
The Best And Worst Of Contracts Decisions: An Anthology, Nathan B. Oman, Daniel Barnhizer, Scott J. Burnham, Charles R. Calleros, Larry T. Garvin, Nadelle Grossman, F. E. Guerra-Pujol, Jeffrey L. Harrison, Hila Keren, Michael P. Malloy, Daniel P. O'Gorman, Deborah Post, Val Ricks, Rachel Arnow-Richman, Richard R. Carlson, Mark P. Gergen, Kenney Hegland, Nancy S. Kim, Jean Fleming Powers, Cheryl B. Preston
The Best And Worst Of Contracts Decisions: An Anthology, Nathan B. Oman, Daniel Barnhizer, Scott J. Burnham, Charles R. Calleros, Larry T. Garvin, Nadelle Grossman, F. E. Guerra-Pujol, Jeffrey L. Harrison, Hila Keren, Michael P. Malloy, Daniel P. O'Gorman, Deborah Post, Val Ricks, Rachel Arnow-Richman, Richard R. Carlson, Mark P. Gergen, Kenney Hegland, Nancy S. Kim, Jean Fleming Powers, Cheryl B. Preston
Faculty Publications
Five hundred years ago, the common law of contract was without substance. It was form-procedure. Plaintiffs picked a form of action, and common law judges made sure someone besides themselves answered all the hard questions; the parties, a jury, or a ritual determined the winner and the remedy. Judges ran a switch on a conflicts-resolution railway. Thomas More, when Chancellor of England (1529-33), urged judges to lay tracks and control the trains. The problem, he said, was that the judges, "by the verdict of the jury[,] cast off all quarrels from themselves." The judges soon assumed greater authority, taking responsibility …
In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue
In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue
All Faculty Scholarship
For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. The Restatement of the Law Liability Insurance is the American Law Institute’s first effort to “restate” the common law governing such liability insurance policies, and we are the reporters. In a recent essay funded by the insurance industry, Yale Law Professor George Priest launched a strident critique of the Restatement project, arguing that the rules adopted in the Restatement:
(a) are radically contrary to existing case law,
(b) have a naïve “pro-policyholder” bias that ignores basic economic insights …
Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock
Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock
Faculty Scholarship
No abstract provided.
The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott
The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott
Faculty Scholarship
The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be "transcontextual": parties in varied commercial contexts accept the courts' rule …
Contract Resurrected! Contract Formation: Common Law – Ucc – Cisg, Sarah Howard Jenkins
Contract Resurrected! Contract Formation: Common Law – Ucc – Cisg, Sarah Howard Jenkins
Faculty Scholarship
No abstract provided.
Extrinsic Evidence, Parol Evidence, And The Parol Evidence Rule: A Call For Courts To Use The Reasoning Of The Restatements Rather Than The Rhetoric Of Common Law, Timothy Archer, Shalayne Davis, David G. Epstein
Extrinsic Evidence, Parol Evidence, And The Parol Evidence Rule: A Call For Courts To Use The Reasoning Of The Restatements Rather Than The Rhetoric Of Common Law, Timothy Archer, Shalayne Davis, David G. Epstein
Law Student Publications
This article is an example of what Professor Richard Epstein would call "Contracts small." According to Professor Richard Epstein, "'Contracts small' relates to contract law at the doctrinal level; it focuses on the rules of contract formation and performance; the everyday 'stuff of lawyer's law.' "This article looks to the Restatement of Contracts (hereafter "Restatement") and the Restatement (Second) of Contracts (hereafter "Restatement Second") for answers to the questions raised by the two problems. The Restatements generally have both been praised and condemned for their focus on doctrinal issues-on what Richard Epstein calls the "everyday stuff of lawyer's law." As …
The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman
The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman
Faculty Scholarship
No abstract provided.
Remedies: A Guide For The Perplexed, Doug Rendleman
Remedies: A Guide For The Perplexed, Doug Rendleman
Scholarly Articles
Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …
A Short And Happy Guide To Contracts, David G. Epstein
A Short And Happy Guide To Contracts, David G. Epstein
Law Faculty Publications
In this book we will reveal the rules of contract law in as straightforward and clear a fashion as they permit. But we will also talk some about policy and the difference between the two. Policy reflects the normative objectives we want to attain, and the rules are the vehicles for getting us there. In this book, we are going to break the subject of contracts into seven short questions: 1. Has a deal been made? 2. Is the deal enforceable? 3. Are there defenses to enforcement of the deal? 4 What are the terms of the deal? 5. When …
Organizations Matter: They Are Institutions, After All, John Linarelli
Organizations Matter: They Are Institutions, After All, John Linarelli
Scholarly Works
Judge Posner (2010) offers a substantial agenda for organization economics. He advises us on how organization economics can shed substantial light on some of the most pressing social problems of the day. I comment on two of the areas he selects for discussion and offer some comments on the relationship of organization economics to new institutional economics. Judge Posner surely is right to argue that organization economics can help us understand the failures of corporate governance in regulating executive pay. Moreover, with additional and more institutionally nuanced theorizing, organizational economics should further our understanding of the work of judiciaries in …
The Accidental Promise: Remaking The Law Of Misrepresented Intent, Aditi Bagchi
The Accidental Promise: Remaking The Law Of Misrepresented Intent, Aditi Bagchi
All Faculty Scholarship
Insincere Promises advances an economic theory of promissory fraud. Ayres and Klass argue that the doctrine of promissory fraud helps to induce efficient reliance from promisees by penalizing promisors who misrepresent the objective probability of their performance. The authors propose a revised doctrine aimed at inducing optimal reliance with minimal transaction costs. I show that Ayres and Klass have all but abandoned the role of intent in the common law of misrepresented intent. Ayres and Klass are concerned only with making available to promisees accurate information about the probability of performance by promisors. I suggest that whatever the merits of …
Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kathryn Zeiler, Kimberly D. Krawiec
Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kathryn Zeiler, Kimberly D. Krawiec
Georgetown Law Faculty Publications and Other Works
This Article represents the first attempt to study empirically the factors that cause courts to impose disclosure duties on bargaining parties in some circumstances, but not in others. We analyze data coded from 466 decisions spanning a wide array of jurisdictions and covering over two hundred years. The results are mixed. In some instances our data support the conventional wisdom relating to common-law disclosure duties. For example, we find that courts are more likely to require the disclosure of latent, as opposed to patent, defects and are more likely to require disclosure when the parties are in a fiduciary or …
Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel
Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel
Scholarly Works
However incomplete, unaggressive, or sub-optimal, unconscionability analysis of arbitration agreements has made something of a comeback in the late twentieth century and early twenty-first century. Just as nature abhors a vacuum, water seeks to be level, and ecosystems work to retain environmental stability, the legal system has witnessed an incremental effort by lower courts to soften the rough edges of the Supreme Court's pro-arbitration jurisprudence through rediscovery of what might be called the “unconscionability norm”--a collective judicial view as to what aspects of an arbitration arrangement are too unfair to merit judicial enforcement. In rediscovering and reinvigorating the unconscionability norm …
Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David V. Snyder
Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David V. Snyder
Articles by Maurer Faculty
No abstract provided.
Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand
Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand
Articles
In 1989, the National Conference of Commissioners on Uniform State Laws approved a new Uniform Foreign-Money Claims Act. This Act is designed to change and clarify the law regarding judgments on obligations denominated in a foreign currency. It does so by recognizing that old rules preventing judgment in a foreign currency - developed in times of a strong dollar - are inappropriate. Unfortunately, in seeking fairness for plaintiffs when the U.S. dollar is weak, the Act replaces rigid old rules with stiff new rules that fail to address the basic issue of appropriate damages for exchange rate losses. While the …
Interjurisdictional Relations Under Federal Water Quality Law: A Guide Through The Maze, Michael C. Blumm, Daniel Rohlf
Interjurisdictional Relations Under Federal Water Quality Law: A Guide Through The Maze, Michael C. Blumm, Daniel Rohlf
Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7)
53 pages.
Contains references.
Strict Liability For Chattel Leasing, Richard C. Ausness
Strict Liability For Chattel Leasing, Richard C. Ausness
Law Faculty Scholarly Articles
Leasing has become an increasingly popular substitute for outright purchases as a means of acquiring products for use. Few courts and commentators, however, have addressed the question of whether the principles of strict products liability which apply to sellers also apply to lessors. In this Article, Professor Ausness reviews the historical basis for imposing strict liability in tort on sellers and applies these rationales to five basic kinds of lease transactions. He concludes that strict liability should not apply when a product defect arises after the leased product is placed in the hands of the lessee (as contrasted with the …
Book Review. Transcending Covenant And Debt, Morris S. Arnold
Book Review. Transcending Covenant And Debt, Morris S. Arnold
Articles by Maurer Faculty
No abstract provided.
Anomalous Growth Of The Common Law -- The Anglo-American Quest For Justice, Hugh Evander Willis
Anomalous Growth Of The Common Law -- The Anglo-American Quest For Justice, Hugh Evander Willis
Articles by Maurer Faculty
No abstract provided.