Law Commons^™

Indiana Jones, Contracts Originalist, W. Mark C. Weidemaier

W. Mark C. Weidemaier

Public Lands And The Federal Government’S Compact-Based “Duty To Dispose”: A Case Study Of Utah’S H.B. 148 – The Transfer Of Public Lands Act, Donald J. Kochan

Donald J. Kochan

Recent legislation passed in March 2012 in the State of Utah — the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to as House Bill 148 (“H.B. 148”) — has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer. The State of …

Reference Points And Contract Interpretation: An Empirical Examination, Doron Teichman

Doron Teichman

This Article focuses on the influence of framing on contract-interpretation decisions. A large body of both psychological and economic studies suggests that people treat payoffs framed as gains and payoffs framed as losses distinctly. Building on these studies, we hypothesize that contract interpretation decisions will be affected by the way in which they are framed. More specifically, we expect that promisors will tend to adopt a more self-serving interpretation when they are making decisions in the domain of losses. To test this prediction, we run a series of three experiments that are all based on a between-subject design. The first …

The Public Meaning Rule: Reconciling Meaning, Intent, And Contract Interpretation, Aaron D. Goldstein

Aaron D Goldstein

Courts generally follow one of two problematic rules governing the admission of extrinsic evidence to interpret a contract. The plain meaning rule ties the interpretation of contract terms to a judge’s subjective notions of what words mean and prevents parties from submitting evidence of alternate meanings that are publically used and acknowledged. The context rule looks to evidence of the parties’ subjective intent rather than the shared and public meaning of terms, and in doing so, undermines the predictability creating function of contracts.

This article proposes a third rule—the public meaning rule—which admits extrinsic evidence only of the public and …

A Consequential Approach To Interpretation And Interpretive Risk: Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, J. P. Kostritsky

Juliet P Kostritsky

Abstract When contracts remain ambiguous or incomplete, courts and scholars must confront the inevitable question of when intervention in private contracts is justified. To deal with the unresolution or residual uncertainty, the Austrian economists and the new textualists suggest that any intervention would be a fool’s errand. Their position amounts to an unvarying posture that any party asking for an additional term or a broad interpretation will always lose. Recognizing that there is an interpretive risk in all contracts, the court should adopt an interpretive methodology that parties would be willing to adopt and that would enhance the willingness of …

A Consequential Approach To Interpretation And Interpretive Risk: Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, Juliet P. Kostritsky

Juliet P Kostritsky

Abstract When contracts remain ambiguous or incomplete, courts and scholars must confront the inevitable question of when intervention in private contracts is justified. To deal with the unresolution or residual uncertainty, the Austrian economists and the new textualists suggest that any intervention would be a fool’s errand. Their position amounts to an unvarying posture that any party asking for an additional term or a broad interpretation will always lose. Recognizing that there is an interpretive risk in all contracts, the court should adopt an interpretive methodology that parties would be willing to adopt and that would enhance the willingness of …

Policy Considerations In Contract Interpretation: The Contra Proferentem Rule From A Comparative Law And Economics Perspective, Péter Cserne

Péter Cserne

Deviations from the common intentions of the parties in contract interpretation is sometimes attributed to “an appetite for benefiting whichever of the parties is perceived to be in a weaker bargaining position”. In this paper I argue that there is more reasonable explanation (justification) for at least some of these deviations. The contra proferentem doctrine is an information-forcing rule that can promote optimal completeness and clarity in contracts. Whether the contract is standardized or not, other things being the same, the risk of ambiguity in contractual language should be borne by the party who could more cheaply avoid it, and …

The Means/Ends Dilemma In Contract Interpretation: A Response To Professors Kraus And Scott: How The Intractability Of Express Language And Uncertainty Affects Legal Interventions In Contracts, Juliet P. Kostritsky

Juliet P Kostritsky

In their recent article on Contract Design and Intent, Professors Jody Kraus and Robert Scott offer a new justification for such a literal enforcement of the parties’ chosen terms and for ignoring contractual objectives. Their argument depends on a theory of how parties bargain and trade off front end and back end costs. Kraus and Scott posit that if parties have invested enough transaction costs to result in specific terms, and failed to delegate decision-making to a court through open-ended terms, they have a deliberately chosen to exclude courts. In such cases courts should rigorously adhere to the explicit contractual …

Adhesion Contracts And The Twenty First Century Consumer, Leon E. Trakman

Leon E Trakman Dean

Ecommerce has transformed the law of contract. Consumers are increasingly subject to myriads of conditions in shrink-wrap, box-wrap, click-wrap and browse-wrap contracts. Opening software wrapping or clicking “I agree” in a dialog box on a computer subjects the user to a series of onerous conditions that restrict end use and limit the supplier’s liability. These developments are counterbalance by the growth of new market-savvy classes of consumers who are willing and able to sue brand name producers in class and other actions. Faced with these Twenty First Century developments, courts struggle to find middle ground between regulating mass transactions in …