Law Commons^™

Slides: Lower Arkansas Valley Super Ditch Company, Inc.: Water Leasing Program, Peter Nichols

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Peter Nichols, General Counsel of the Lower Arkansas Valley “Super Ditch” Company, Trout, Raley, Montano, Witwer & Freeman PC, Colorado

33 slides

Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz

Faculty Publications

Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead, it …

Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz

Faculty Publications

This article proposes legislative procedural reforms accounting for the realities of consumer arbitration that have threatened and denied consumers' access to remedies for companies' violations of public, or statutory, warranty remedies under the Magnuson-Moss Warranty Act (MMWA). Furthermore, the Article proposes to clarify and expand the MMWA's current dispute resolution template in order to resolve judicial disagreement regarding the template's application and foster beneficial use of finding arbitration. Accordingly, this is not a call to ban all pre-dispute arbitration clauses in consumer contracts, but is instead an invitation for more politically palatable reforms that preserve both companies' savings and consumers' …

The Perils Of Foreign Contracating In China, Debra J. Reed

Debra J Reed

QUESTION PRESENTED

Whether a business contract executed between a foreign party and a Chinese party is enforceable in the courts of the People’s Republic of China?

BRIEF ANSWER

Probably not. Foreign party reliance on Chinese courts to enforce their contracts is premature because China is not yet a rule of law country. Chinese courts do not exercise judicial independence. Political domination by the Chinese Communist Party, CCP, over the courts, and Chinese local protectionism both influence the outcome of cases. Moreover, the Chinese legal system is wrought with corruption. Because inexperienced judges adopt new laws at varying speeds and apply …

Electronic Contracting In China, Debra J. Reed

Debra J Reed

QUESTION PRESENTED

Whether an electronically signed business contract between a Chinese and foreign party is legally valid under the 2005 Electronic Signature Law of the People’s Republic of China and is enforceable in China’s courts?

BRIEF ANSWER

An electronically signed business contract between a Chinese and foreign party is legally valid under the 2005 Electronic Signature Law of the People’s Republic of China, PRC. Statutorily, Chinese law enables electronic contracting by giving the same legal force to electronic signatures and data messages, as to traditional ink signatures and paper documents. Lack of payment systems, high costs to businesses of adopting …

Restitutionary Disgorgement As A Moral Compass For Breach Of Contract, Caprice L. Roberts

Caprice L. Roberts

A quiet revolution is underway. A new rule proposed in the forthcoming Restatement (Third) of Restitution seeks to deter conscious wrongdoers from retaining profits from “opportunistic” breaches of contract. The proposed disgorgement remedy for defendant’s opportunistic breach of contract will have fundamental consequences for contract theory and practice. This contractual remedy is gain-based rather than compensatory. Restitutionary disgorgement, rooted in unjust enrichment, may shift the conventional paradigm of contract law. This article examines whether a restitutionary disgorgement remedy for certain breaches of contract is compatible with traditional contract principles such as Justice Holmes’s choice principle. Recall his oft-repeated declaration, “The …

Soboba Band Of Luiseño Indians Water Rights Settlement Act Of 2008, United States 110th Congress

Native American Water Rights Settlement Project

Federal Legislation: Soboba Band of Luiseño Indians Settlement Act, PL 110-297, 122 Stat. 2975 (July 31, 2008). The Act ratifies the Settlement Agreement dated June 7, 2006, between the Soboba Band of Luiseño Indians, US, Eastern Municipal Water District, Lake Hemet Municipal Water District and Metropolitan Water District of Southern CA. The Tribe will receive an adequate and secure future water supply (9,000 acre-feet per year); $18 million from Eastern and Lake Hemet water districts for economic development; $11 million from the federal government for water development; and 128 acres of land near Diamond Valley Lake for commercial development. The …

Intellectual Property Rights In An Attorney’S Work Product, Ralph D. Clifford

Faculty Publications

This paper addresses the main intellectual property consequences of practicing law and whether attorneys can prevent others from using their work-product. The article does not assume that the reader is an expert in intellectual property law; instead, it is designed to answer the types of questions practitioners have about their rights.

An Economic Perspective On The Doctrine Of Unilateral Mistatke: An Remedy-Based Approach, Qi Zhou

qi zhou

: The key economic issues in implementing the law of unilateral mistake are twofold. First, it should avoid misallocation of resources; second, it ought to create a sufficient incentive for acquisition of information. However, the rule of unilateral mistake in English contract law does not serve these economic goals satisfactorily. The existing law and economics literature deals extensively with how to achieve these ends by designing the legal standards for a unilateral mistake which can nullify the contract, with little discussion of the function of legal remedy. This paper offers a remedy-based approach and argues that it has economic advantages …

Chapter 12: Torts, Crimes, Sanctions. Witchcraft And Related Issues (The Anthropology Of Compensatory Or Retributive Justice), Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Chapter 12 on torts and other wrongdoings will treat, along with the traditionally well researched basic concepts of this field of legtal anthropology (to which only brief attention will be given) a recently again debated alleged contrast between shame and guilt societies, the phenomenon of knowledge as witchcraft, and a short report on the growth and institutionalization of international criminal law. Early cultures do not distinguish between torts and crimes. They speak of wrongdoings. A designation of the person who commits the the tort or crime, is a “perpetrator” who is the defendant in civil and …

U.S. Immigration Policy: Contract Or Human Rights Law?, Victor C. Romero

Journal Articles

The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.

Possibility Of Plain Meaning: Wittgenstein And The Contract Precedents, Val D. Ricks

Cleveland State Law Review

Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co and In re Soper's Estate claim that plain meaning in contract law is impossible. This claim is left irrefuted in the casebooks and contract law literature, Part I notes, and in most teaching of contract law. The consequence is that students are taught that plain meaning is impossible. A startling implication of this conclusion, as Part I explains, is that the majority of U.S. courts, which hold to the plain meaning rule, are relying on a fiction. But the claim that plain meaning is impossible is false, as …

From Langdell To Law And Economics: Two Conceptions Of Stare Decisis In Contract Law And Theory, Jody S. Kraus

Faculty Scholarship

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In …

Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher

Faculty Scholarship

This Essay explores the enforceability and presence of pro-seller contract terms in internet retail contracts. Analyzing case law on internet contract enforceability and a survey of 500 firms'websites, it demonstrates that even the enforceability of many internet contracts is questionable. It then presents new data that suggest that the prevalence of pro-seller contract terms is far less than usually assumed. It suggests that the benefit of making these terms enforceable is outweighed by the loss of user friendliness required for the necessary interface changes. Finally, it uses fresh statistical analyses to determine what relationship, if any, exists between enforceability, pro-seller …

Arbitration Law's Separability Doctrine After Buckeye Check Cashing, Inc. V. Cardegna, Stephen Ware

Stephen Ware

The recent case of Buckeye Check Cashing, Inc. v. Cardegna, is only the second Supreme Court decision applying the separability doctrine and it comes nearly forty years after the Court's first separability decision, Prima Paint Corp. v. Flood & Conklin Manufacturing Co. Arbitration's tremendous growth during those forty years - and the arrival of Buckeye - make this an opportune time to assess the current state of the separability doctrine. In doing that, this article will analyze Prima Paint and Buckeye and discuss the separability issues they leave unresolved. Finally, this article will critique the separability doctrine and call for …