Law Commons^™

We Are Never Getting Back Together: A Statutory Framework For Reconciling Artist/Label Relationships, Harrison Simons

Washington Law Review Online

Taylor Swift could tell you a thing or two about record label drama. Artists like Swift who want to break into the big leagues and top the charts must rely on record labels’ deep pockets and institutional knowledge to do so. But artists, especially young ones, are often asked to sign deals with labels that leave them with little control over their careers. For many, the risk is worth the reward. However, many others come to regret their decision, with careers that languish or sputter out in label purgatory. Anyone with an ear for the music industry knows that artist-label …

Oliver Wendell Holmes's Theory Of Contract Law At The Massachusetts Supreme Judicial Court, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Arthur Linton Corbin, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This chapter on Arthur Linton Corbin will appear in the forthcoming collection, Scholars of Contract Law. The chapter provides a brief summary of Corbin’s life, then discusses five topics: Corbin’s Socratic approach to the classroom and his introduction of the caselaw method at Yale; Corbin’s analytic approach, which was inspired by Hohfeld and is illustrated by Corbin’s definitions of “contract” and “consideration”; Corbin’s evolutionary theory of the common law, his understanding of the relationship between law and social mores, and his insistence that legal rules always be treated as mere “working rules”; Corbin’s occasional appeal, despite his general aversion …

The Economics Of Leasing, Thomas W. Merrill

Faculty Scholarship

Leasing may be the most important legal institution that has received virtually no systematic scholarly attention. Real property leasing is familiar in the context of residential tenancies. But it is also widely used in commercial contexts, including office buildings and shopping centers. Personal property leasing, which was rarely encountered before World War II, has more recently exploded on a world-wide basis, with everything from autos to farm equipment to airplanes being leased. This article seeks to develop a composite picture of the defining features of leases and why leasing is such a widespread and highly successful economic institution. The reasons …

Arbitration And The Federal Balance, Alyssa King

Indiana Law Journal

Mandatory arbitration of statutory rights in contracts between parties of unequal bargaining power has drawn political attention at both the federal and state level. The importance of such reforms has only been heightened by the Supreme Court’s expansion of preemption under the FAA and of arbitral authority. This case law creates incentives for courts at all levels to prefer expansive readings of an arbitration clause. As attempts at federal regulation have stalled, state legislatures and regulatory agencies can expect to be subject to renewed focus. If state legislatures cannot easily limit arbitrability, an alternative is to try reforms that seek …

The Best And Worst Of Contracts Decisions: An Anthology, Nathan B. Oman, Daniel Barnhizer, Scott J. Burnham, Charles R. Calleros, Larry T. Garvin, Nadelle Grossman, F. E. Guerra-Pujol, Jeffrey L. Harrison, Hila Keren, Michael P. Malloy, Daniel P. O'Gorman, Deborah Post, Val Ricks, Rachel Arnow-Richman, Richard R. Carlson, Mark P. Gergen, Kenney Hegland, Nancy S. Kim, Jean Fleming Powers, Cheryl B. Preston

Faculty Publications

Five hundred years ago, the common law of contract was without substance. It was form-procedure. Plaintiffs picked a form of action, and common law judges made sure someone besides themselves answered all the hard questions; the parties, a jury, or a ritual determined the winner and the remedy. Judges ran a switch on a conflicts-resolution railway. Thomas More, when Chancellor of England (1529-33), urged judges to lay tracks and control the trains. The problem, he said, was that the judges, "by the verdict of the jury[,] cast off all quarrels from themselves." The judges soon assumed greater authority, taking responsibility …

Understanding Insurance Policies As Noncontracts: An Alternative Approach To Drafting And Construing These Unique Financial Instruments, Christopher French

Christopher C. French

The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott

Faculty Scholarship

The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be "transcontextual": parties in varied commercial contexts accept the courts' rule …

Religious Tribunals And Secular Courts: Navigating Power And Powerlessness, Michelle Greenberg-Kobrin

Pepperdine Law Review

In this article, the author discusses the ways such as common law, and contracts employed by religious systems for navigating their relationship with legal systems of secular states. Topics discussed include the role of religious contracts in helping religious systems negotiate with secularism, the role of religious contracts in protecting autonomy of religious systems, and the structure of marriage and divorce in Jewish law.

The Role Of The Profit Imperative In Risk Management, Christopher French

Christopher C. French

The Common Law Foundations Of The Takings Clause: The Disconnect Between Public And Private Law, Richard A. Epstein

Touro Law Review

No abstract provided.

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

An All Of The Above Theory Of Legal Development, Larry A. Dimatteo

Larry A DiMatteo

This paper reviews different theories of legal development in order to highlight their similarities and differences. In the end, as in contract theories, no monist view of legal development possesses the explanatory power needed to understand how law has come to be and where it may take us in the future. What we do have is a foundation built on at least two millennia of legal history. The intellectual starting point for this project is Nathan Isaacs’ unfinished work on a cycle theory of legal development. His view of legal development takes issue with Henry Sumner Maine’s thesis that development …

Coase V. Pigou: A Still Difficult Debate, Enrico Baffi

enrico baffi

This paper examines the positions of Coase and Pigou about the problem of the externalities. From the reading of their most two important works it appears that Coase has a more relevant preference for a evaluation of efficiency at the total, while Pigou, with some exception, is convinced that is possible to reach marginal efficiency through taxes or responsibility. It’s interesting that Coase, who has elaborated the famous theorem, is convinced that is not possible to reach the efficiency at the margin every time and that sometimes is necessary a valuation at the total, that tells us which solution is …

Contract Clauses As Public Goods: A New Way Of Understanding Inefficient Clauses, Enrico Baffi

enrico baffi

he aim of this work is to show how it is possible to identify market failures other than those traditionally identified by lawyers and law and economics scholars to justify the mandatory provisions of contracts between professionals and consumers and the equally mandatory provisions governing the abuse of economic dependency. This is a new approach that can be extended to other provisions and appears to rest on fairly solid microeconomic foundations. There is no doubt, however, that many criticisms can be leveled against it. Very briefly, I shall argue that the production of clauses characterized by being rather vague, indeterminate …

Understanding "The Problem Of Social Cost", Enrico Baffi

enrico baffi

This paper examines the positions of Coase and Pigou in regard to the problem of external effects (externalities). Assessing their two most important works, it appears that Coase has a more relevant preference for an evaluation of total efficiency, while Pigou, with some exceptions, is convinced that it is almost always socially desirable to reach marginal efficiency through taxes or liability. It is interesting that the economist of Chicago, who has elaborated on the renowned theorem, thinks that is not desirable to reach efficiency at the margin every time, and that it is often preferable to evaluate the total, which …

Regulation Not Prohibition: The Comparative Case Against The Insurable Interest Doctrine, Sharo Michael Atmeh

Sharo M Atmeh

American law requires an insurable interest—a pecuniary or affective stake in the subject of an insurance policy—as a predi-cate to properly obtaining insurance. In theory, the rule prevents both wagering on individual lives and moral hazard. In practice, the doctrine is avoided by complex insurance transaction structuring to effectuate both origination and transfers of insurance by individuals without an insurable interest. This paper argues that it is time to ab-andon the insurable interest doctrine. As both the English and Aus-tralian experiences indicate, elimination of the insurable interest doctrine will have little detrimental pecuniary effect on the insurance industry, while freeing …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Journal Articles

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Christopher C. French

The Invention Of Common Law Play Right, Jessica D. Litman

Articles

This Article explores playwrights' common law "play right." Since this conference celebrates the 300th birthday of the Statute of Anne, I begin in England in the 17th Century. I find no trace of a common law playwright's performance right in either the law or the customary practices surrounding 17th and 18th century English theatre. I argue that the nature and degree of royal supervision of theatre companies and performance during the period presented no occasion (and, indeed, left no opportunity) for such a right to arise. I discuss the impetus for Parliament's enactment of a performance right statute in 1833, …

The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz

Articles

Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Promissory Estoppel: The Life History Of An Ideal Legal Transplant, Joel M. Ngugi

University of Richmond Law Review

This article hopes to accomplish three things. First, it will revisit the historical origins of the doctrine of promissory estoppel in the American law of contracts and the role that Samuel Williston, the Chief Reporter of the Restatement (First) of Contracts ("First Restatement") played in the evolution of the doctrine. The dominant theory is that Williston conceptualized the new promissory estoppel doctrine in a way that retarded and blunted the doctrine shortly after its birth. This theory is adhered to by both critics and proponents of the expansion of promissory estoppel as a ground of promissory obligation. According to both …

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Job Security: Protecting At-Will Employees With Good Cause Legislation, Mayumi Yokoyama

LLM Theses and Essays

Recent decades have witnessed significant developments in employment termination law in the United States. In particular, the long-standing “at-will” doctrine, under which employers can fire employees for good, bad, or no reason at all, has experienced great erosion and wide variations in law from state to state. There has been a movement of statutory and common law restrictions limiting an employer’s freedom to terminate at will, which reflects the increasing consciousness of job security by society and workers. This paper analyzes the problem of job security by tracing the origin of the at-will doctrine to 19th century principles favoring economic …

Commercial Hardship And The Discharge Of Contractual Obligations Under American And British Law, John J. Gorman

Vanderbilt Journal of Transnational Law

There are several doctrines under which contractual obligations have been judicially discharged. This Note will examine the United States doctrine of commercial impracticability or commercial impossibility and the English doctrine of frustration of contract or frustration of the commercial objective. The focus of this Note therefore is on those situations in which discharge from contractual obligations is sought because of supervening economic hardship. Part II provides a brief historical account of the development of the English common law doctrine of impossibility. Part III traces the development of the United States concept of commercial impossibility and commercial impracticability from the early …

Book Review. Transcending Covenant And Debt, Morris S. Arnold

Articles by Maurer Faculty

No abstract provided.

Landlord And Tenant - Pennsylvania'a Distress And Distraint Law - Landlord's Distress Procedure Is Per Se Unconstitutional As Violative Of Due Process Of Law, Richard L. Reppert

Villanova Law Review

No abstract provided.

Moral Obligation As Consideration In Contracts, W. Jack Grosse

Villanova Law Review

No abstract provided.

What Is Consideration In The Anglo-American Law Of Contracts?, Hugh Evander Willis

Articles by Maurer Faculty

No abstract provided.