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Full-Text Articles in Law

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr Oct 2015

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Articles

Mandatory pre-dispute arbitration clauses are pervasive in consumer financial and investor contracts—for credit cards, bank accounts, auto loans, broker-dealer services, and many others. These clauses often ill serve households. Consumers are typically presented with contracts on a “take it or leave it” basis, with no ability to negotiate over terms. Arbitration provisions are often not clearly disclosed, and in any event are not salient for consumers, who do not focus on the importance of the provision in the event that a dispute over the contract later arises, and who may misforecast the likelihood of being in such a dispute ...


Am. First Fed. Credit Union V. Soro, 131 Nev. Adv. Op. 73 (Sep. 24, 2014), Katherine Maher Sep 2015

Am. First Fed. Credit Union V. Soro, 131 Nev. Adv. Op. 73 (Sep. 24, 2014), Katherine Maher

Nevada Supreme Court Summaries

The Court determined that a contract clause in which the parties “submit themselves to the jurisdiction of” another state, without more exclusive language, is permissive and does not result in a mandatory forum selection clause.


Mika V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 71 (Sep. 24, 2015), Kory Koerperich Sep 2015

Mika V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 71 (Sep. 24, 2015), Kory Koerperich

Nevada Supreme Court Summaries

The court denied extraordinary writ relief from the district court’s decision to compel arbitration between Petitioners and their employer based on a long-form arbitration agreement signed only by the Petitioners, and federal law favoring arbitration agreements.


Tallman V. Eight Judicial District Court, 131 Nev. Adv. Op. 60673 (Sep. 24, 2015), Marta Kurshumova Sep 2015

Tallman V. Eight Judicial District Court, 131 Nev. Adv. Op. 60673 (Sep. 24, 2015), Marta Kurshumova

Nevada Supreme Court Summaries

The Court held that an employment arbitration agreement, which contains a clause waiving the right to initiate or participate in class actions, constitutes a valid contract, even though it is not signed by the employer. The Court further determined that the Federal Arbitration Act applies to all transactions involving commerce and does not conflict with the National Labor Relations Act, which permits and requires arbitration. Finally, the Court found that a party does not automatically waive its contractual rights to arbitration by removing an action to federal court.


Land Baron Invs. V. Bonnie Springs Family Lp, 131 Nev. Adv. Op. 69 (Sept. 17, 2015), Rob Schmidt Sep 2015

Land Baron Invs. V. Bonnie Springs Family Lp, 131 Nev. Adv. Op. 69 (Sept. 17, 2015), Rob Schmidt

Nevada Supreme Court Summaries

This case is an appeal arising from a failed land sale contract. The Court considered three issues of first impression, holding that (1) when a party bears the risk, mutual mistake is not a basis for rescission; (2) an abuse of process claim may not be supported by a complaint to an administrative agency; (3) a nuisance claim seeking only emotional distress damages must be supported by proof of physical harm. Ultimately, The Court affirmed in part and reversed in part.


Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen Sep 2015

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Scholarly Articles

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing.

Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.”

Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without ...


Dikai Emporikai: A Response To Alberto Maffi, Mark J. Sundahl Sep 2015

Dikai Emporikai: A Response To Alberto Maffi, Mark J. Sundahl

Law Faculty Articles and Essays

No abstract provided.


After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien Aug 2015

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien

Faculty Scholarship

This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes that ...


Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, D. A. Jeremy Telman Jul 2015

Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, D. A. Jeremy Telman

Law Faculty Publications

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would ...


Contract Law [2014], Yihan Goh, Pey Woan Lee, Chee Ho Tham Jul 2015

Contract Law [2014], Yihan Goh, Pey Woan Lee, Chee Ho Tham

Research Collection School Of Law

No abstract provided.


Indiana And Doux Commerce, Nathan B. Oman Apr 2015

Indiana And Doux Commerce, Nathan B. Oman

Popular Media

No abstract provided.


The Need For A Law Of Church And Market, Nathan B. Oman Apr 2015

The Need For A Law Of Church And Market, Nathan B. Oman

Faculty Publications

This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought ...


Offer And Acceptance In Modern Contract Law: A Needless Concept, Shawn J. Bayern Feb 2015

Offer And Acceptance In Modern Contract Law: A Needless Concept, Shawn J. Bayern

Scholarly Publications

The fundamental law of contract formation has retained the formalistic character of classical contract law. The offer-and-acceptance paradigm fits poorly with modern contracting practice, and it obscures and complicates contract doctrine. More importantly, extending it threatens to produce undesirable results. Instead of the offer-and-acceptance paradigm, this Essay proposes that contract formation be analyzed using the same general interpretive inquiry that governs other questions concerning the intent of contracting parties.

Analyzing the processes of contract formation in this manner points the way toward a further-reaching reconsideration of the purposes of contract-formation law in the first place. In particular, this Essay proposes ...


Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey L. Harrison Jan 2015

Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey L. Harrison

UF Law Faculty Publications

Contract law professors and students, attorneys, judges know that discussions about consent are rarely about consent. This results from three factors. First, it is the appearance of consent that is necessary to form a contract. Second, not every manifestation of consent is sufficient to create a contract that cannot be avoided. Third, interpretations of consent have the potential to allow courts to intervene when the benefit of the bargain is seen to be unfairly divided or one of the parties is actually worse off as a result of the contract. This Article assesses the extent to which recent decisions about ...


Insurance And The Law, Shauhin A. Talesh Jan 2015

Insurance And The Law, Shauhin A. Talesh

Faculty Scholarship

Insurance and the law are interconnected. Legislation, court decisions, and regulations impact and influence the meaning of private and social insurance arrangements in society. While the law shapes and influences what insurance means in society, insurance also exerts a regulatory force over its subjects and acts as a form of governance beyond the state. Drawing from sociolegal scholars who study the gap between the law on the books and the law in action, this article explains the basic forms and functions of insurance in society and explores insurance’s intertwined relationship with the law.


Sketches Of A Redemptive Theory Of Contract Law, Emily Houh Jan 2015

Sketches Of A Redemptive Theory Of Contract Law, Emily Houh

Faculty Articles and Other Publications

This Article is about the game we call contract law and what it does and means to those who, at one time or another, have been categorically barred from play. How have "outsider" players-such as racial minorities, women, and sexual minorities -entered the game and, subsequently, how have its governing rules-that is, contract doctrines applied or not applied to them? On the flipside, how have common law contract doctrines responded to the entry of new players in the game? And, to the extent contract law has so responded, why has it done so? In asking and responding to these questions ...


Say The Magic Word: A Rhetorical Analysis Of Contract Drafting Choices, Lori D. Johnson Jan 2015

Say The Magic Word: A Rhetorical Analysis Of Contract Drafting Choices, Lori D. Johnson

Scholarly Works

Drafters of complex contracts often face a thorny dilemma – determining whether to retain “magic words” included in form documents, especially when considering the advice of current contract style scholars advocating for the removal of all traditional contract prose. But the drafter need not remove all terms that serve as elegant shorthand for more convoluted legal concepts, particularly where the inclusion of the term advances client interests. The application of rhetorical criticism – the analysis of methods of communicating ideas – to drafters’ use of the term “time is of the essence” sheds light on the dominant motivations of drafters who choose to ...


Context Matters - What Lawyers About Choice Of Law In Merger Agreements, Juliet P. Kostritsky Jan 2015

Context Matters - What Lawyers About Choice Of Law In Merger Agreements, Juliet P. Kostritsky

Faculty Publications

Finding out the truth about a matter can proceed in many different ways. Neoclassical law and economists would construct models built on certain assumptions. The empiricists and contextualists would collect data about the matter in the inductive not deductive sense.

The choice of law in merger agreements presents an opportunity to study a contractual provision in the context of merger deals to see what we can learn from studying the choices in detail.

There are a variety of ways to approach these provisions in merger agreements. Can we learn anything about how choices are made in the drafting of these ...


Catalyzing Fans, Howard Wasserman, Dan Markel, Michael Mccann Jan 2015

Catalyzing Fans, Howard Wasserman, Dan Markel, Michael Mccann

Faculty Publications

This paper proposes the development of Fan Action Committees (“FACs”), which, like their political counterpart ("PACs"), could mobilize and empower fans to play a larger role in the decision-making associated with which “production teams” the talent will work.

We outline two institutional options: FACs could directly compensate talent by crowdfunding, or they could make donations to charities favored by talent. We then discuss both obstacles and objections from a variety of policy and legal perspectives ranging from competitive balance to distributive justice. Finally, we consider possible extensions of the FAC model as well as offer some ruminations on why FACs ...


The Common Sense Of Contract Formation, Tess Wilkinson-Ryan, David A. Hoffman Jan 2015

The Common Sense Of Contract Formation, Tess Wilkinson-Ryan, David A. Hoffman

Faculty Scholarship at Penn Law

What parties know and think they know about contract law affects their obligations under the law and their intuitive obligations toward one another. Drawing on a series of new experimental questionnaire studies, this Article makes two contributions.First, it lays out what information and beliefs ordinary individuals have about how to form contracts with one another. We find that the colloquial understanding of contract law is almost entirely focused on formalization rather than actual assent, though the modern doctrine of contract formation takes the opposite stance. The second Part of the Article tries to get at whether this misunderstanding matters ...


The Relevance Of Law To Sovereign Debt, W. Mark C. Weidemaier, Mitu Gulati Jan 2015

The Relevance Of Law To Sovereign Debt, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The literature on sovereign debt treats law as of marginal significance, largely because the doctrine of sovereign immunity leaves creditors few potent legal remedies against sovereign borrowers. Although sovereign debts can indeed by hard to enforce, the goal of this Essay is to demonstrate that law plays a central, and constantly evolving, role in structuring sovereign debt markets. To list just a few examples, legal rules and institutions (i) decide when a borrower is sovereign, (ii) define the consequences of sovereignty by drawing (or refusing to draw) artificial boundaries between the sovereign and other legal entities, (iii) play some role ...


Contract Design And The Shading Problem, Robert E. Scott Jan 2015

Contract Design And The Shading Problem, Robert E. Scott

Faculty Scholarship

Despite recent advances in our understanding of contracting behavior, economic contract theory has yet to identify the principal causes and effects of contract breach. In this Essay, I argue that opportunism is a primary explanation for why commercial parties deliberately breach their contracts. I develop a novel variation on opportunism that I identify as “shading;” a behavior that more accurately describes the vexing problems courts face in rooting out strategic behavior in contract litigation. I provide some empirical support for the claim that shading behavior is both pervasive in litigation over contract breach and extremely difficult for generalist courts to ...