Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Contracts (12)
- Intellectual Property Law (3)
- Social and Behavioral Sciences (3)
- Business (2)
- Entertainment, Arts, and Sports Law (2)
-
- Internet Law (2)
- Labor Relations (2)
- Labor and Employment Law (2)
- Land Use Law (2)
- State and Local Government Law (2)
- Administrative Law (1)
- Agriculture Law (1)
- Animal Sciences (1)
- Aquaculture and Fisheries (1)
- Biodiversity (1)
- Business Organizations Law (1)
- Civil Law (1)
- Civil and Environmental Engineering (1)
- Climate (1)
- Collective Bargaining (1)
- Commercial Law (1)
- Common Law (1)
- Courts (1)
- Earth Sciences (1)
- Economics (1)
- Energy Policy (1)
- Energy and Utilities Law (1)
- Engineering (1)
- Environmental Health and Protection (1)
- Institution
-
- Selected Works (4)
- Fordham Law School (3)
- SelectedWorks (3)
- Georgetown University Law Center (2)
- University of Colorado Law School (2)
-
- Boston University School of Law (1)
- Columbia Law School (1)
- George Washington University Law School (1)
- St. Mary's University (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Arkansas at Little Rock William H. Bowen School of Law (1)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (1)
- University of New Mexico (1)
- University of Pennsylvania Carey Law School (1)
- University of Richmond (1)
- University of the District of Columbia School of Law (1)
- Publication
-
- Faculty Scholarship (4)
- Fordham Intellectual Property, Media and Entertainment Law Journal (2)
- Georgetown Law Faculty Publications and Other Works (2)
- Scholarly Works (2)
- All Faculty Scholarship (1)
-
- Elizabeth Crawford Spencer (1)
- Faculty Articles (1)
- GW Law Faculty Publications & Other Works (1)
- George Klidonas (1)
- Journal Articles (1)
- Kate Bronfenbrenner (1)
- Mark Strasser (1)
- Michael Risch (1)
- Native American Water Rights Settlement Project (1)
- Publications (1)
- Roger I. Abrams (1)
- University of Richmond Law Review (1)
- Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5) (1)
- Yehuda Adar Dr. (1)
- Publication Type
- File Type
Articles 1 - 25 of 25
Full-Text Articles in Law
Intent To Contract, Gregory Klass
Intent To Contract, Gregory Klass
Georgetown Law Faculty Publications and Other Works
There is a remarkable difference between black-letter contract laws of the United States and England. In England, the existence of a contract is supposedly conditioned on the parties' intent to be legally bound, while section 21 of the Second Restatement of Contracts states that "[n]either real nor apparent intention that a promise be legally binding is essential to the formation of a contract." There are also differences within U.S. law on the issue. While section 21 describes courts' approach to most contracts, the parties' intent to contact can be a condition of validity of preliminary agreements, domestic agreements and social …
Significant Victories: An Analysis Of Union First Contracts, Tom Juravich, Kate Bronfenbrenner, Robert Hickey
Significant Victories: An Analysis Of Union First Contracts, Tom Juravich, Kate Bronfenbrenner, Robert Hickey
Kate Bronfenbrenner
[Excerpt] After two decades of massive employment losses in heavily unionized sectors of the economy and exponential growth of the largely unorganized service sector, the U.S. labor movement is struggling to remain relevant. Despite new organizing initiatives and practices, union organizing today remains a tremendously arduous endeavor, particularly in the private sector, as workers and their unions are routinely confronted with an arsenal of aggressive legal and illegal antiunion employer tactics. This vigorous opposition to unions in the private sector does not stop once an election is won, but continues throughout bargaining for an initial union agreement, all too often …
The Coaching Carousel In Big-Time Intercollegiate Athletics: Economic Implications And Legal Considerations, Richard T. Karcher
The Coaching Carousel In Big-Time Intercollegiate Athletics: Economic Implications And Legal Considerations, Richard T. Karcher
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Why Doctors Shouldn't Practice Law: The American Medical Association's Misdiagnosis Of Physician Non-Compete Clauses, Robert E. Steinbuch
Why Doctors Shouldn't Practice Law: The American Medical Association's Misdiagnosis Of Physician Non-Compete Clauses, Robert E. Steinbuch
Faculty Scholarship
No abstract provided.
Collective Bargaining Agreements In Discrimination Cases: Forum Shopping Their Way Into A New York District Court Near You!, George Klidonas
Collective Bargaining Agreements In Discrimination Cases: Forum Shopping Their Way Into A New York District Court Near You!, George Klidonas
George Klidonas
There has recently been a divergence of opinion between the state courts and the district courts in New York on the issue of whether a unionized employee must arbitrate discrimination claims in light of a collective bargaining agreement mandating alternative dispute resolution. The problem that New York is faced with is that the New York courts recently failed to properly delineate a standard of what a clear and unmistakable waiver. Furthermore this "split" between the federal and state courts with regards to these arbitration provisions will cause forum shopping by claimants, heavily favoring federal courts. A trilogy of Supreme Court …
Balance Of Power, Certainty And Discretion In The Franchise Relationship: An Analysis Of Contractual Terms, Elizabeth Crawford Spencer
Balance Of Power, Certainty And Discretion In The Franchise Relationship: An Analysis Of Contractual Terms, Elizabeth Crawford Spencer
Elizabeth Crawford Spencer
Executive Summary: Balance of power is a factor in considerations of fairness in the formation of contracts and in Australia is an express factor in determining unconscionability in contract formation and performance. Certainty is essential to business confidence that underpins planning and investment. Certainty is also a factor in evaluating what parties have agreed to in making the contract. Discretion, if it is too wide, may no longer represent the true intentions of the parties, but may instead be an indication of other forces, including asymmetries in the power relationship. These issues are of particularly significance in franchising; redressing imbalance …
Slides: Water Leasing In The Lower Arkansas Valley: The "Super Ditch Company", Peter Nichols
Slides: Water Leasing In The Lower Arkansas Valley: The "Super Ditch Company", Peter Nichols
Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)
Presenter: Peter NIchols, Trout, Raley, Montano, Witwer & Freeman, Denver, CO
28 slides
The Common Law Is Not Just About Contracts: How Legal Education Has Been Short-Changing Feminism, Charles E. Rounds Jr.
The Common Law Is Not Just About Contracts: How Legal Education Has Been Short-Changing Feminism, Charles E. Rounds Jr.
University of Richmond Law Review
No abstract provided.
Navajo Nation Water Settlement & Northwestern New Mexico Rural Water Projects Acts Of 2009 (Includes Funding Mechanism For 3 Tribal Water Settlements In Nm), United States 111th Congress
Navajo Nation Water Settlement & Northwestern New Mexico Rural Water Projects Acts Of 2009 (Includes Funding Mechanism For 3 Tribal Water Settlements In Nm), United States 111th Congress
Native American Water Rights Settlement Project
Federal Legislation: Omnibus Public Land Management, Title X - Water Settlements, Subtitle B - Northwestern New Mexico Rural Water Projects Navajo-Gallup Water Supply Project, PL 111-11, 123 Stat. 991. ◊ Parties: Navajo Nation and US. Part II, Section 10501 sets up the Reclamation Water Settlements Fund. For each of the fiscal years 2020 through 2029, the US will deposit 120M dollars into the Fund, if it is available, plus any interest which comes from Reclamation’s appropriation. The funds are to be spent on Indian water rights settlements that involve water supply infrastructure, to rehabilitate water delivery systems for conservation, or …
The Myth Of Equality In The Employment Relation, Aditi Bagchi
The Myth Of Equality In The Employment Relation, Aditi Bagchi
All Faculty Scholarship
Although it is widely understood that employers and employees are not equally situated, we fail adequately to account for this inequality in the law governing their relationship. We can best understand this inequality in terms of status, which encompasses one’s level of income, leisure and discretion. For a variety of misguided reasons, contract law has been historically highly resistant to the introduction of status-based principles. Courts have preferred to characterize the unfavorable circumstances that many employees face as the product of unequal bargaining power. But bargaining power disparity does not capture the moral problem raised by inequality in the employment …
Litigating Second Life Land Disputes: A Consumer Protection Approach. , Paul Riley
Litigating Second Life Land Disputes: A Consumer Protection Approach. , Paul Riley
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
You Take The Embryos But I Get The House (And The Business): Recent Trends In Awards Involving Embryos Upon Divorce, Mark Strasser
You Take The Embryos But I Get The House (And The Business): Recent Trends In Awards Involving Embryos Upon Divorce, Mark Strasser
Mark Strasser
Various state courts have been asked to decide who should have control of remaining frozen embryos upon divorce. Different models have been proposed, ranging from enforcement of prior agreements to balancing the needs and desires of the parties to requiring both parties to agree before implantation can take place. This article discusses some of these models, concluding both that the enforcement of the initial agreement model is preferable to the others proposed and that one of the most popular current models--the contemporaneous consent model—is a public policy disaster that should be repudiated at the earliest opportunity.
Attorney Referral, Negligence, And Vicarious Liability, Bruce Ching
Attorney Referral, Negligence, And Vicarious Liability, Bruce Ching
Journal Articles
As a consequence of requests from clients or prospective clients, lawyers are often placed in a position of giving referrals, especially in situations of cross-specialty referrals (such as an estate planning attorney whose longtime client has become a party in a personal injury lawsuit) or cross-jurisdictional referrals (such as an attorney in Michigan who is contacted by a prospective client who must respond to a lawsuit that was filed in Ohio).
But if the lawyer who receives the referral commits malpractice in handling the case, can the lawyer who made the referral be held liable for the client's loss? This …
Contract Law – The Remedies: Towards Codification Of The Civil Law, Dr. Yehuda Adar, Prof. Gabriela Shalev
Contract Law – The Remedies: Towards Codification Of The Civil Law, Dr. Yehuda Adar, Prof. Gabriela Shalev
Yehuda Adar Dr.
-This Book is in Hebrew-
Destroyed Community Property, Damaged Persons, And Insurers’ Duty To Indemnify Innocent Spouses And Other Co-Insured Fiduciaries: An Attempt To Harmonize Conflicting Federal And State Courts’ Declaratory Judgments, Willy E. Rice
Faculty Articles
Perhaps because of habit or a strong aversion to risks, consumers purchase a considerable amount of insurance generally, and consumers purchase property, indemnity, and liability insurance in particular. Typically, national property and casualty insurers sell property, indemnity, and liability insurance contracts. As a result, those insurers sales and revenues increase from year to year. At the dawn of the 21st century, foreign property and casualty insurers are realizing similar successes.
It is expected that anxious or prudent consumers would insure themselves and their various property interests against strangers, strange events, and perils over which consumers have little control or influence. …
The Correspondence Of Contract And Promise, Jody S. Kraus
The Correspondence Of Contract And Promise, Jody S. Kraus
Faculty Scholarship
Correspondence accounts of the relationship between contract and promise hold either that contract law is justified to the extent it enforces a corresponding moral responsibility for a promise or unjustified to the extent it undermines promissory morality by refusing to enforce a corresponding moral responsibility for a promise. In this Article, I claim that contract scholars have mistakenly presumed that they can assess the correspondence between contract and promise without first providing a theory of self-imposed moral responsibility that explains and justifies the promise principle. I argue that any plausible theory of self-imposed moral responsibility is inconsistent with a strong …
Rethinking Consideration In The Electronic Age, Maureen A. O'Rourke
Rethinking Consideration In The Electronic Age, Maureen A. O'Rourke
Faculty Scholarship
Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding thesuitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual framework …
The Diverging Meaning Of Good Faith, Mark J. Loewenstein
The Diverging Meaning Of Good Faith, Mark J. Loewenstein
Publications
This article explores the meaning of "good faith" in the context of corporations and unincorporated entities. The courts, particularly in Delaware, have developed two different approaches. In the corporate arena, the courts are fashioning a notion of good faith that seems to require an examination of director motivations. In the unincorporated arena, good faith has a meaning grounded in contract law. These are two different concepts and reflect the fundamental differences between corporations and unincorporated entities, with the former based on fiduciary duties and the latter on contract. There are, however, indications that this "divergence" is starting to disappear, and …
Contracts And Friendships, Ethan J. Leib
Contracts And Friendships, Ethan J. Leib
Faculty Scholarship
This Article aims to give the relational theory of contract new life, sharpening some of its claims against its competitors by refracting its theory of relational contracts through an analogy to friendship. In drawing the analogy between friendships and relational contracts and revealing their morphological similarities, this Article offers a provocative window into friendship's contractual structure--and into relational contracts' approximation of friendships. The analogy developed here is poised to replace the “relational contract as marriage” model prevalent among relationalists. This new model is more honest to relational contract theory and to marriage--and helps relational contract theory produce some new insights, …
The Insurance Policy As Thing, Jeffrey W. Stempel
The Insurance Policy As Thing, Jeffrey W. Stempel
Scholarly Works
Insurance policies are a type of contract. But characterizing them only as contracts misses much of the richness of the insurance arrangement, policyholder-insurer relations, and the degree to which insurance policies, which are heavily standardized, are designed to perform a particular function. Because of their mass standardization and deployment to address particular risk management issues, insurance policies are in many respects like products or chattels. Insurers and the insurance trade press in fact frequently speak of a line of insurance "products" or a new "product" being introduced to address an emerging risk. Appreciating this aspect of the insurance policy can …
Rethinking Free Speech And Civil Liability, Daniel J. Solove, Neil M. Richards
Rethinking Free Speech And Civil Liability, Daniel J. Solove, Neil M. Richards
GW Law Faculty Publications & Other Works
One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …
A Conditional Intent To Perform, Gregory Klass
A Conditional Intent To Perform, Gregory Klass
Georgetown Law Faculty Publications and Other Works
The doctrine of promissory fraud holds that a contractual promise implicitly represents an intent to perform. A promisor’s conditional intent to perform poses a problem for that doctrine. It is clear that some undisclosed conditions on the promisor’s intent should result in liability for promissory fraud. Yet no promisor intends to perform come what may, so there is a sense in which all promisors conditionally intend to perform.
Building on Michael Bratman’s planning theory of intentions, this article provides a theoretical account of the distinction between “foreground” and “background” conditions on intentions in general and then explains why foreground conditions …
Community Benefits Agreements And Comprehensive Planning: Balancing Community Empowerment And The Police Power, Patricia E. Salkin, Amy Lavine
Community Benefits Agreements And Comprehensive Planning: Balancing Community Empowerment And The Police Power, Patricia E. Salkin, Amy Lavine
Scholarly Works
Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes …
Sports Arbitration And Enforcing Promises: Brian Shaw And Labor Arbitration, Roger Abrams
Sports Arbitration And Enforcing Promises: Brian Shaw And Labor Arbitration, Roger Abrams
Roger I. Abrams
This article discusses the important Sports Law case involving Brian Shaw and the Boston Celtics. It explains how the Boston Celtics used expedited arbitration with subsequent summary court enforcement to secure the services of its prized point guard. In exchange for a multi-year contract and a signing bonus, Shaw promised to return to the Celtics after a year in the Italian Basketball League. He then reneged on his promise when informed he could earn a much higher salary after playing another year in Rome. The club invoked arbitration and compelled Shaw to fulfill his promises. The article includes profiles of …
Virtual Third Parties, Michael Risch
Virtual Third Parties, Michael Risch
Michael Risch
In virtual worlds, where 20 million people spend $200 million each year, rules of life are governed by contract, and three-party transactions are ubiquitous; every exchange of virtual cash, property, sound, pictures, and even conversation introduces a third party into the contractual relationship between user and virtual-world provider. Whenever a contract affects a non-party, the third-party beneficiary ("TPB") doctrine might apply; to date, however, the practical and theoretical boundaries of this important doctrine's application to virtual worlds have yet to be explored, perhaps because of an overly narrow doctrinal conception. Many states have loosened TPB requirements somewhat; most have adopted …