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Articles 1 - 20 of 20
Full-Text Articles in Law
Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes
Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes
Faculty Scholarship
When Allan Farnsworth passed away on January 31, 2005, the world lost a titan in the field of contracts. Farnsowrth has been described as “the great contemporary American scholar, and one of a handful of great world scholars, on the law of agreement...[He] was...perhaps The Authority on the law of contracts and much more.” Similarly, others have called him “the premiere figure in American Contracts law scholarship since the passing of Corbin and Dawson. The treatise and his half of the Second Restatement would be quite a contribution if there was nothing else.” Farnsworth’s casebook is perennially the most widely-adopted …
The "Branding Effect" Of Contracts, D. Gordon Smith
The "Branding Effect" Of Contracts, D. Gordon Smith
Faculty Scholarship
In his case study of the MasterCard IPO and its predecessor piece on the Google IPO, Victor Fleischer claims to find evidence of a branding effect of legal infrastructure. The branding effect is not aimed at reducing the potential for opportunism by a counterparty to a contract, but rather at increasing the attractiveness of a product to present and future users or improving the image of a company in the eyes of regulators, judges, and juries. In this essay commenting on Fleischer's work, I endorse the notion that deal structures have branding effects and position Fleischer's work within a larger …
Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes
Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes
Faculty Scholarship
The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …
What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel
What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel
Faculty Scholarship
This Article addresses corporate law's default rules, which allow corporations to waive their directors' liability for damages based on a breach of their fiduciary duty of care. Most large publicly held corporations have adopted such a waiver in their articles of association. This Article suggests that courts should limit the range of the waivers to the circumstances that existed when the voters voted and to the information they received before they voted. This Article distinguishes between public contracts (legislation) and private contracts (commercial transactions) and the default rules that apply to each. The Article shows that courts view corporations and …
The Strategy Of Boilerplate, Robert B. Ahdieh
The Strategy Of Boilerplate, Robert B. Ahdieh
Faculty Scholarship
Boilerplate can be exciting. It is this, perhaps hard-to-swallow, proposition that the present analysis attempts to convey. Particularly in invoking the work of Thomas Schelling on the role of focal points in coordination games, it offers what can be characterized as a "strategic" theory of boilerplate, in which boilerplate plays an active, even aggressive, role.
Contrary to the relatively inert quality of boilerplate implied by conventional treatments in the legal literature, boilerplate may serve essential signaling and coordination functions in contract bargaining. In appropriate circumstances, its proposed usage may be a valuable weapon in the arsenal of a bargaining party, …
Opting Out Or Copping Out? An Argument For Strict Scrutiny Of Individual Contracts, Charles L. Knapp
Opting Out Or Copping Out? An Argument For Strict Scrutiny Of Individual Contracts, Charles L. Knapp
Faculty Scholarship
No abstract provided.
Book Review: Legal Tenderness, Martha M. Ertman
Book Review: Legal Tenderness, Martha M. Ertman
Faculty Scholarship
No abstract provided.
Careful What You Wish For — Freedom Of Contract And The Necessity Of Careful Scrivening, Daniel S. Kleinberger
Careful What You Wish For — Freedom Of Contract And The Necessity Of Careful Scrivening, Daniel S. Kleinberger
Faculty Scholarship
No abstract provided.
The Ethics Of Invalid And 'Iffy' Contract Clauses, In Symposium: Contracting Out Of The Uniform Commercial Code, Christina L. Kunz
The Ethics Of Invalid And 'Iffy' Contract Clauses, In Symposium: Contracting Out Of The Uniform Commercial Code, Christina L. Kunz
Faculty Scholarship
This Symposium focuses on the extent to which attorneys can use agreed terms to supplant or “bump” the provisions of the Uniform Commercial Code (UCC). The articles in this Symposium demonstrate that the degree to which attorneys customarily “contract out” varies considerably from UCC article to article. In reality, though, the issues surrounding contracting out of UCC provisions are not limited to the UCC, statutes, or other codified rules. Most “repeat players” in the market periodically ask their lawyers to redraft their standard-form contracts in ways that increasingly favor the drafter. Some of these lawyers may intentionally draft clauses that …
You Don’T Have To Be Ludwig Wittgenstein’: How Llewellyn’S Concept Of Agreement Should Change The Law Of Open-Quantity Contracts, Henry Allen Blair
You Don’T Have To Be Ludwig Wittgenstein’: How Llewellyn’S Concept Of Agreement Should Change The Law Of Open-Quantity Contracts, Henry Allen Blair
Faculty Scholarship
In this article, Professor Allen Blair examines the preeminent role of exclusivity in open-quantity contracts under the Uniform Commercial Code (“UCC”). Although the text of the UCC does not mandate that open-quantity contracts be exclusive, the vast majority of courts considering the issue have held that exclusivity is necessary to prevent such contracts from failing for lack of mutuality of obligation. The Article traces the historic development of open-quantity agreements, focusing on pre-Code cases recognizing the commercial utility of such agreements but struggling with how to accommodate them under a classical model of contract formation. It was in this historic …
Incomplete Contracts In A Complete Contract World, Kimberly D. Krawiec, Scott Baker
Incomplete Contracts In A Complete Contract World, Kimberly D. Krawiec, Scott Baker
Faculty Scholarship
This paper considers the role that contract doctrine should play in facilitating optimal investment in contractual relationships. All contracts are incomplete in the sense that they do not specify the optimal actions for the buyer and seller in every future contingency. This incompleteness can lead to both under and over-investment in resources specifically targeted to the needs of the other contracting party. To solve these investment problems, economists and legal scholars have looked to complicated contractual solutions and the ownership of assets. This Article offers another solution: contract doctrine. Specifically, we propose a contractual default rule applicable to all contract …
What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel
What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel
Faculty Scholarship
This Essay addresses corporate law's Default Rules, which allow corporations to waive their directors' liability for damages for breach of their fiduciary duty of care. Most large corporations have adopted such a waiver. This Essay distinguishes Private Contracts from Public Contracts. Public Contracts include legislation, referendums, and votes on specific outcomes, such as union members' votes on the contracts that their representatives agreed upon with management. This Essay shows that the courts view corporations and corporate articles as Public Contracts. In some Public Contracts gap-filling rules limit the scope of the Public Contracts to the information that the voters received …
The Law And Economics Of Contracts, Benjamin E. Hermalin, Avery W. Katz, Richard Craswell
The Law And Economics Of Contracts, Benjamin E. Hermalin, Avery W. Katz, Richard Craswell
Faculty Scholarship
This paper, which will appear as a chapter in the forthcoming Handbook of Law and Economics (A.M. Polinsky & S. Shavell, eds.), surveys major issues arising in the economic analysis of contract law. It begins with an introductory discussion of scope and methodology, and then addresses four topic areas that correspond to the major doctrinal divisions of the law of contracts. These areas include freedom of contract (i.e., the scope of private power to create binding obligations), formation of contracts (both the procedural mechanics of exchange, and rules that govern pre-contractual behavior), contract interpretation (what consequences follow when agreements are …
Contracting Out Of Article 2: Minimizing The Obligation Of Performance & Liability For Breach, Sarah Howard Jenkins
Contracting Out Of Article 2: Minimizing The Obligation Of Performance & Liability For Breach, Sarah Howard Jenkins
Faculty Scholarship
No abstract provided.
Contracting Out Of The Ucc, Sarah Howard Jenkins
Contracting Out Of The Ucc, Sarah Howard Jenkins
Faculty Scholarship
No abstract provided.
Friendship & The Law, Ethan J. Leib
Friendship & The Law, Ethan J. Leib
Faculty Scholarship
This Article's central argument is that the law needs to do a better job of recognizing, protecting, respecting, and promoting friendships. The law gives pride of place to other statuses--family and special professional relationships are obvious ones--but the status of the friend is rarely relevant to legal decisionmaking and public policymaking in a consistent way. After defining the concept of the friend, I offer a normative argument for why the law should promote a public policy of friendship facilitation and for why the law ignores friendships only at its peril. I highlight how the law already finds friendship relevant in …
An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke
An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke
Faculty Scholarship
This Essay, originally presented at Lewis & Clark Law School’s 2006 Distinguished Intellectual Property Visitor lecture, discusses the challenges involved in developing a uniform law of software contracting. Technology and the law have developed since 1995, when the first efforts to codify such a law began. These earlier efforts were largely unsuccessful, and substantial uncertainty still exists in transactions involving software. In this Essay, Dean O’Rourke discusses the American Law Institute’s Principles project that seeks to identify approaches courts could use in adjudicating disputes involving software agreements. The challenges of developing the Principles include the same theoretical, practical and political …
Crossing Judge Parker’S Luten Bridge: Partisan Politics, Economic Visions, And Government Reform In Retrospect And Prospect, Peter G. Fish
Crossing Judge Parker’S Luten Bridge: Partisan Politics, Economic Visions, And Government Reform In Retrospect And Prospect, Peter G. Fish
Faculty Scholarship
Commentary on, Barak D. Richman, Jordi Weinstock & jason Mehta, A Bridge, a Tax Revolt, and the Struggle to Industrialize: The Story and Legacy of 'Rockingham County v. Luten Bridge Co.', 84 North Carolina Law Review 1841-1912 (2006)
Public Symbol In Private Contract: A Case Study, Mitu Gulati, Anna Gelpern
Public Symbol In Private Contract: A Case Study, Mitu Gulati, Anna Gelpern
Faculty Scholarship
This Article revisits a recent shift in standard form sovereign bond contracts to promote collective action among creditors. Major press outlets welcomed the shift as a milestone in fighting financial crises that threatened the global economy. Officials said it was a triumph of market forces. We turned to it for insights into contract change and crisis management. This article is based on our work in the sovereign debt community, including over 100 interviews with investors, lawyers, economists, and government officials. Despite the publicity surrounding contract reform, in private few participants described the substantive change as an effective response to financial …
Contract As Statute, Mitu Gulati, Stephen J. Choi
Contract As Statute, Mitu Gulati, Stephen J. Choi
Faculty Scholarship
Formalists contend that courts should apply strict textual analysis in interpreting contracts between sophisticated commercial parties. Sophisticated parties have the expertise and means to record their intentions in writing, reducing the litigation and uncertainty costs surrounding incomplete contracts. Moreover, to the extent courts misinterpret contracts, sophisticated parties may simply rewrite their contracts to clarify their true intent. We argue that the formalist approach imposes large costs on even sophisticated parties in the context of boilerplate contracts. Where courts make errors in interpreting boilerplate terms, parties face large collective action problems in rewriting existing boilerplate provisions. Any single party that attempts …