Law Commons^™

Jay Ordan, Order On Defendants' Motion For Summary Judgment, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

Legal Malpractice In International Business Transactions, Vincent R. Johnson

Faculty Articles

International business transactions are often unavoidably linked to specialized areas of law. Lawyers increase their risk of committing legal malpractice when representing international clients in business transactions because they may find themselves in a precarious position by accepting work they are inexperienced to perform. Moreover, a client may expand into international waters and their lawyer may not be cognizant of the legal consequences. While malpractice may be asserted through negligence, fraud, breach of contract and other failures of standard of care, failure to know the law is no excuse. However, the standard of care depends on whether the defendant acted …

Contract Law—No Faith In Arkansas’S Approach To The Implied Duty Of Good Faith. Arkansas Research Medical Testing, Llc V. Osborne, 2011 Ark. 158, 2011 Wl 1423993., Kathleen Lestage

University of Arkansas at Little Rock Law Review

No abstract provided.

Violations Of Zoning Ordinances, The Covenant Against Encumbrances, And Marketability Of Title: How Purchasers Can Be Better Protected, Jessica P. Wilde

Touro Law Review

No abstract provided.

The Penn State "Consent Decree": The Ncaa's Coercive Means Don't Justify Its Laudable Ends, But Is There A Legal Remedy?, Matthew J. Mitten

Pepperdine Law Review

No abstract provided.

Hypothetical Efficiency Is Not Grounds For Breach, Daniel M. Isaacs

West Virginia Law Review

The law does not approve of the efficient breach of contract; it merely provides or fails to provide remedies. Although there are situations where the law implies contract terms, there is no basis for an implied covenant of efficiency. Hypothetical contracts, purporting to incorporate a release where the cost of performance to the promisor exceeds its value to the promisee, cannot be used to bind people to results, even efficient ones, to which they did not agree. Where it is inefficient to demand performance, flexibility should come from the promisee who, having received in trust the power to limit the …

The Ftca V. The Tucker Act: When Is A Tort Claim In Substance A Breach Of Contract Claim For Jurisdictional Purposes?, Gregory Boulos

University of Miami Law Review

No abstract provided.

Bargaining In The Dark: Why The California Legislature Should Render “No Damage For Delay” Clauses Void As Against Public Policy In All Construction Contracts, Melinda Sarjapur

Golden Gate University Law Review

The purpose of this Comment is to urge the California legislature to revise section 7102 of the Public Contract Code in order to render an NDFD ("no damage for delay") clause void as against public policy in every construction contract when delay is caused in whole or in part by the acts or omissions of the owner or its agents.

Part I of this Comment provides the reader with a brief explanation of how construction contracts are formed and describes the nature of liability associated with delay in the construction industry. Part II includes a brief overview of the general …

It's About Time, David Frisch

Law Faculty Publications

This Article critically evaluates the view widely held by courts that contract claims for lost leisure or personal time do not justify compensation. The thesis of this Article is that while the conventional judicial wisdom may be correct about some forms of nonpecuniary loss, it is entirely wrong regarding lost time. After setting aside assumptions, I show that traditional arguments against this form of recovery are deeply flawed Most importantly, I rely on the recognition of hedonic damages by forensic economists to debunk the myth that loss of time is no more than an everyday aspect of life not worthy …

Medical Professional Liability Litigation In West Virginia: Part Ii, Thomas J. Hurney Jr., Jennifer M. Mankins

West Virginia Law Review

No abstract provided.

Benay V. Warner Bros. Entertainment, Inc.: New Standard Needed For Determining Actual Use, Brian Casido

Golden Gate University Law Review

This Note examines Benay v. Warner Bros. Entertainment, Inc., and the substantial-similarity standard under a California breach of an implied-in-fact contract claim and a federal copyright infringement claim. The standard used in Benay will hinder the free flow of ideas by deterring producers from accepting an author’s screenplay for fear of breaching an implied-in-fact contract. Part I of this Note summarizes the history and development of the protection of rights to creative works. Part II provides the facts and procedural history of Benay v. Warner Bros. Entertainment, Inc. Part III analyzes and criticizes the Ninth Circuit’s holding in Benay …

The Uk Supreme Court Speaks To International Arbitration: Learning From The Dallah Case, George A. Bermann

Faculty Scholarship

Rarely, over the decades following its entry into force, was the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or New York Convention, the subject of a judgment of the UK House of Lords. Yet, within barely over a year after its succession to the House of Lords in October 2009, the United Kingdom Supreme Court delivered a judgment that may not make up for all that lost time, but is deeply instructive nonetheless. The decision in Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan became the vehicle …

Challenging Adhesion Contracts In California: A Consumer's Guide, Sierra David Sterkin

Golden Gate University Law Review

This Comment explores the California scheme for dealing with adhesion contracts, and proposes a change to the existing legal structure. Part I describes how California courts define adhesion contracts, examines the theories California courts have adopted to allow consumers to challenge adhesion contracts, and considers how jurisdictions outside California handle adhesion contracts. Part II focuses on when California courts will consider a contract adhesive and unenforceable. Part III compares California's system of dealing with adhesion contracts with systems established in jurisdictions outside California in order to determine whether there is truly any substantive difference. Part IV suggests changes to improve …

Seaman's Direct Buying Service, Inc. V. Standard Oil Co.: Scaling The Stonewall Tort, Alisa J. Kim

Golden Gate University Law Review

In Seaman's Direct Buying Service, Inc. v. Standard Oil CO., the California Supreme Court affirmed its position that an insurance carrier may risk tort liability for breach of the implied covenant of good faith and fair dealing in addition to contract damages. Moreover, Seaman's enabled the court to explore such liability in the context of an ordinary commercial contract in which "parties of roughly equal bargaining power are free to shape the contours of their agreement." The Seaman's majority deemed it unnecessary to find tort liability on the breach of the implied covenant issue. Instead the court created a more …

Wolf And Wilhelmina: Giving Entertainers A License To Breach Their Contracts, Mark Conrad

Golden Gate University Law Review

Parts I and II of this article will discuss the Wolf and Wilhelmina cases. Part III will describe the equitable contract remedies of specific performance and injunctions for breach of a personal services contract. Part IV will discuss a proposed new standard to permit the award of special damages that may provide a more effective remedy for future breaches of contract.

Breach Is For Suckers, Tess Wilkinson-Ryan, David A. Hoffman

Vanderbilt Law Review

This Article presents results from three experiments offering evidence that parties see breach of contract as a form of exploitation that makes disappointed promisees into "Suckers." In psychology, being a sucker turns on a three-part definition: betrayal, inequity, and intention. We used web-based questionnaires to test the effect of each of the three factors separately. Our results support the hypothesis that when breach of contract cues an exploitation schema, people become angry, offended, and inclined to retaliate even when retaliation is costly. This theory offers a useful advance because it explains why victims of breach demand more than similarly situated …

Wielding The Wand Without Facing The Music: Allowing Utilization Review Physicians To Trump Doctors’ Orders, But Protecting Them From The Legal Risk Ordinarily Attached To The Medical Degree, Katherine L. Record

Duke Law Journal

This Note identifies a discrepancy in the law governing the decisionmaking that directs patient care. Seeking treatment that a third party will pay for, a patient needs not only a physician-prescribed course of treatment but also an insurer's verification that the cost is medically necessary or otherwise covered by the patient's plan. Both of these decisions directly impact the ultimate care delivered to the patient, but are governed by two very different liability regimes. A patient who suffers an adverse outcome may sue his physician in tort, while a patient who suffers from a lack of coverage may generally sue …

The Reasonable Certainty Requirement In Lost Profits Litigation: What It Really Means, Robert M. Lloyd

Robert M Lloyd

This article explains the factors courts consider when determining whether to award damages for lost profits. It contains an extensive review of the case law.

Don't Bet On It: Casino's Contractual Duty To Stop Compulsive Gamblers From Gambling, Irina Slavina

Chicago-Kent Law Review

To address the problem of compulsive gambling, most states with commercial casinos have enacted statewide self-exclusion programs—a mechanism by which patrons petition to be physically removed from a casino if they are discovered on the premises. The casinos in the remaining states voluntarily instituted facility-based programs to assist problem gamblers in fighting their addiction.

But besides having any intended effect, these programs provided gamblers with a new ground for lawsuits—breach of contract. This note argues that neither states nor individual casinos should be liable to self-excluded patrons for breach of contract, even if they enter a casino and lose money …

Stipulated Damages, Super-Strict Liability, And Mitigation In Contract Law, Saul Levmore

Michigan Law Review

The remedy of expectancy damages in contract law is conventionally described as strict liability for breach. Parties sometimes stipulate damages in advance, and may agree that the damages they stipulate shall be the exclusive remedy for breach. They may do so because of their conviction that they can, even in advance, assess damages with greater accuracy than courts, and they may be wary of litigation costs associated with the postbreach determination of expectancy damages. This Article advances two claims. First, that the familiar expectation remedy is correctly understood to involve elements of fault. There is litigation over the question of …

A Comparative Fault Defense In Contract Law, Ariel Porat

Michigan Law Review

This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II unfolds the main argument for recognizing the defense and recommends applying the defense only in cases where cooperation or avoidance of overreliance is low cost.

Fault In Contract Law, Eric A. Posner

Michigan Law Review

A promisor is strictly liable for breaching a contract, according to the standard account. However, a negligence-based system of contract law can be given an economic interpretation, and this Article shows that such a system is in some respects more attractive than the strict-liability system. This may explain why, as a brief discussion of cases shows, negligence ideas continue to play a role in contract decisions.

An Information Theory Of Willful Breach, Oren Bar-Gill, Omri Ben-Shahar

Michigan Law Review

Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no "-breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party-that he is more likely …

Foreword: Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat

Michigan Law Review

The basic rule of liability in tort law is fault. The basic rule of liability in contract law is no fault. This is perhaps one of the most striking divides within private law, the most important difference between the law of voluntary and nonvoluntary obligations. It is this fault line (speaking equivocally) that the present Symposium explores. Is it a real divide-two opposite branches of liability within private law-or is it merely a rhetorical myth? How can it be justified? As law-and-economics scholars, this fault/no-fault divide between contract and tort is all the more puzzling. In law and economics, legal …

Let Us Never Blame A Contract Breaker, Richard A. Posner

Michigan Law Review

Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.

The Fault That Lies Within Our Contract Law, George M. Cohen

Michigan Law Review

Scholars and courts typically describe and defend American contract law as a system of strict liability, or liability without fault. Strict liability generally means that the reason for nonperformance does not matter in determining whether a contracting party breached. Strict liability also permeates the doctrines of contract damages, under which the reason for the breach does not matter in determining the measure of damages, and the doctrines of contract formation, under which the reason for failing to contract does not matter In my Article, I take issue with the strict liability paradigm, as I have in my prior work on …

Are You Trying To Imply Something?: Understanding The Various State Approaches To Implied Covenants Of Continuous Operation In Commercial Leases, Jerald Clifford Mckinney Ii

University of Arkansas at Little Rock Law Review

No abstract provided.

Ucc Breach Of Warranty And Contract Claims: Clarifying The Distinction, Timothy Davis

Timothy Davis

This article examines the existing legal framework that governs UCC Article 2 breach of warranty and breach of contract claims. After enumerating the circumstances that give rise to a buyer’s breach of contract in contrast to a breach of warranty claim, the Article examines cases that illustrate the practical and theoretical significance attached to understanding that breach of warranty and breach of contract constitute distinct causes of action. The Article then argues that although courts acknowledge the distinct nature of these two claims, judicial understanding of the distinction is often superficial. Focusing on Code provisions that govern disclaimers of implied …

Cleaning Up Lake River, Victor P. Goldberg

Faculty Scholarship

A casebook favorite for exploring the liquid dated damage/penalty clause distinction is Lake River Corp. v. Carborundum Co. in which Judge Posner found a minimum quantity clause to be an unenforceable penalty clause. In this paper I argue that the case was framed improperly. Had the litigators recognized that the contract afforded one party an option, the result should have been different. The contract was for the provision of a service – setting aside capacity – which was valuable to the buyer and costly for the seller to provide. The primary purpose of the minimum quantity clause was the pricing …

Zapata Retold: Attorneys' Fees Are (Still) Not Governed By The Cisg, Harry Flechtner, Joseph Lookofsky

Articles

In this work, the authors reiterate and expand on their conclusion that the question of reimbursement for attorney fees incurred in the course of litigating a claim under the United Nations Sales Convention (CISG) is beyond the scope of the CISG, and is governed by domestic law. As discussed in the paper, this conclusion is in line with a recent CISG Advisory Council Opinion (Advisory Council Opinion No. 6) dealing with the calculation of damages under Article 74 of the CISG. We argue that relegating to domestic law the question of recovering attorney fees incurred during litigation over a CISG …