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Articles 1 - 17 of 17
Full-Text Articles in Law
An Analysis Of The Duty To Negotiate In Good Faith: Precontractual Liability And Preliminary Agreement, Aarti Arunachalam
An Analysis Of The Duty To Negotiate In Good Faith: Precontractual Liability And Preliminary Agreement, Aarti Arunachalam
LLM Theses and Essays
Good faith is one concept that defies a clear definition and courts have struggled to understand and establish its scope and ambit. This paper just seeks to analyze the scope of the duty of good faith as understood at the stage when actually no contract has been formed. Despite considerable support for the existence of a duty of good faith, courts in US have not been very receptive in recognizing the duty of good faith especially in the precontractual stage, especially when parties enter into preliminary agreement. Courts have relied on the a number of factors to determine the enforceability …
Nit-Picking Or Significant Contract Choices?-Part Iii, K.K. Duvivier
Nit-Picking Or Significant Contract Choices?-Part Iii, K.K. Duvivier
Sturm College of Law: Faculty Scholarship
In the March "Scrivener," I quoted three examples of revisions proposed in a lease negotiation that were characterized by one reader as "nit-picking." In the June article, I summarized the general responses I received about nit-picking from a number of readers. Two of those readers were kind enough to give me very specific feedback about the three clauses listed in the March article. This article addresses each clause individually to provide help to other readers with their negotiations. Overall, these readers concluded that each of the proposed revisions listed raised legitimate concerns for their clients that were worth discussing with …
Nit-Picking Or Significant Contract Choices?-Part Ii, K.K. Duvivier
Nit-Picking Or Significant Contract Choices?-Part Ii, K.K. Duvivier
Sturm College of Law: Faculty Scholarship
The March 2002 Scrivener asked readers for feedback about how to distinguish nit-picking from requests for significant word changes in an agreement. The majority of respondents believed that the examples provided in the March article raised legitimate concerns. The July 2002 Scrivener will address those specific revisions quoted in the March article. This June article focuses on readers' general comments about crafting agreements to avoid nit-picking.
Nit-Picking Or Significant Contract Choices?-Part I, K.K. Duvivier
Nit-Picking Or Significant Contract Choices?-Part I, K.K. Duvivier
Sturm College of Law: Faculty Scholarship
Because I practiced primarily as a transactional lawyer for the eight years before I started teaching, I can sympathize with both sides of this dilemma. In practice, I ran across two alternative approaches to elases or contracts: the short "gentlemen's agreement" and the comprehensive agreement.
Rules For Interpreting Incomplete Contracts: A Cautionary Note, Steven L. Harris
Rules For Interpreting Incomplete Contracts: A Cautionary Note, Steven L. Harris
All Faculty Scholarship
No abstract provided.
International Jurisdiction And Enforcement Of Judgments In The Era Of Global Networks: Irrelevance Of, Goals For, And Comments On The Current Proposals, Jonathan A. Franklin, Roberta J. Morris
International Jurisdiction And Enforcement Of Judgments In The Era Of Global Networks: Irrelevance Of, Goals For, And Comments On The Current Proposals, Jonathan A. Franklin, Roberta J. Morris
Librarians' Articles
Last fall a Symposium at Chicago-Kent College of Law entitled "Constructing International Intellectual Property Law: The Role of National Courts," held on October 18-19, 2001, brought together scholars interested in a group of problems related to the relationship between harmonized rules of international civil procedure and diverse nationally-based rules of intellectual property. Subsequently, extensive discussions between the authors developed this Article into its present form.
The Rise And Fall Of Promissory Estoppel Or Is Promissory Estoppel Really As Unsuccessful As Scholars Say It Is: A New Look At The Data, Juliet P. Kostritsky
The Rise And Fall Of Promissory Estoppel Or Is Promissory Estoppel Really As Unsuccessful As Scholars Say It Is: A New Look At The Data, Juliet P. Kostritsky
Faculty Publications
This article makes important contributions to the field of empirical promissory estoppel scholarship. First it challenges recent empirical scholarship (by Professors Robert Hillman and Sidney De Long in the 1998 and 1997 Columbia and Wisconsin law reviews). Their scholarship had challenged the view of the vast majority of American Contracts scholarship by proclaiming promissory estoppel to be an unimportant doctrine based on low win rates of tried cases. My article challenges this new orthodoxy based on a comprehensive five year survey of cases. It concludes that it is too soon to announce the death of promissory estoppel and that promissory …
Copyright Limitations And Contracts. An Analysis Of The Contractual Overridability Of Limitations On Copyright, Lucie Guibault
Copyright Limitations And Contracts. An Analysis Of The Contractual Overridability Of Limitations On Copyright, Lucie Guibault
Articles, Book Chapters, & Popular Press
Traditional copyright law strikes a delicate balance between an author's control of original material and society's interest in the free flow of ideas, information, and commerce. In today's digitally networked environment, this balance has shifted dramatically to one side, as powerful rights holders contractually impose terms and conditions of use far beyond the bounds set by copyright law. This vitally significant book explores this conflict from its gestation through its current manifestations to its future lineaments and potential consequences. Focusing on statutory copyright limitations that enshrine constitutional rights such as freedom of expression and privacy, foster dissemination of knowledge, safeguard …
Symposium In Memory Of David H. Vernon: An Introduction, Mark D. Janis, Hillary A. Sale
Symposium In Memory Of David H. Vernon: An Introduction, Mark D. Janis, Hillary A. Sale
Articles by Maurer Faculty
No abstract provided.
The Real Properties Of Contract Law, Michael Madison
The Real Properties Of Contract Law, Michael Madison
Faculty Scholarship
No abstract provided.
The New Contract: Welfare Reform, Devolution, And Due Process, Christine N. Cimini
The New Contract: Welfare Reform, Devolution, And Due Process, Christine N. Cimini
Articles
This Article analyzes the due process implications of the change in welfare administration from a federal statutory entitlement model to the devolved contractual model and posits that, despite the changes, due process protections still exist. These protections arise from the private law of contracts on two different levels. The first level is the macro, or implied, contract, that I refer to as the social contract between the government and the populace. The existence of this social contract is evidenced in numerous sources including: political theories that explore the use of governmental authority; foundational democratic legal sources, such as the Declaration …
Unconscionable Lawyers, Paul D. Carrington
Sovereign Bonds And The Collective Will, Lee C. Buchheit, G. Mitu Gulati
Sovereign Bonds And The Collective Will, Lee C. Buchheit, G. Mitu Gulati
Faculty Scholarship
No abstract provided.
Two Cheers For Freedom Of Contract, Mark L. Movsesian
Two Cheers For Freedom Of Contract, Mark L. Movsesian
Faculty Publications
Once, they say, freedom of contract reigned in American law. Parties could make agreements on a wide variety of subjects and choose the terms they wished. Courts would refrain from questioning the substance of bargains and would ensure only that parties had observed the proper formalities. In interpretation, objectivity was paramount. Courts would seek to ascertain, not what the parties had intended, but what a reasonable observer would understand the parties' words to mean. Contract law was a series of abstractions informed by individual autonomy and judicial deference.
This world, a classical paradise of doctrines with sharp corners, began to …
Ending A Mud Bowl: Defining Arbitration’S Finality Through Functional Analysis, Amy J. Schmitz
Ending A Mud Bowl: Defining Arbitration’S Finality Through Functional Analysis, Amy J. Schmitz
Faculty Publications
The Federal Arbitration Act (FAA) and Uniform Arbitration Act (UAA), on the state level, prescribe a nearly identical procedural and remedial scheme for promoting independent, self-contained arbitration. To that end, both acts curtail courts' review of arbitration awards, by limiting the grounds for vacating awards to those aimed at ensuring only basic procedural fairness. Nonetheless, seemingly "pro-arbitration" impulses have driven some courts' eager application, or misapplication, of the FAA/UAA statutory scheme to enforce dispute resolution agreements that reject the acts' limited review prescriptions. This Article tackles this arguable abuse of the FAA/UAA scheme, by proposing a functional analysis for defining …
Consenting To Form Contracts, Randy E. Barnett
Consenting To Form Contracts, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In this essay, I will identify one theoretical source of the common antipathy towards form contracts and why it is misguided. I contend that the hostility towards form contracts stems in important part from an implicit adoption of a promise-based conception of contractual obligation. I shall maintain that, when one adopts (a) a consent theory of contract based not on promise but on the manifested intention to be legally bound and (b) a properly objective interpretation of this consent, form contracts can be seen as entirely legitimate-though some form terms may properly be subject to judicial scrutiny that would be …
Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz
Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz
Articles
Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.
The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect …