Law Commons^™

“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis, Yuxiang Liu

Maryland Law Review

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …

What Is A Contract, Sidney W. Delong

South Carolina Law Review

No abstract provided.

Customized Procedure In Theory And Reality, W. Mark C. Weidemaier

Washington and Lee Law Review

Contract theory has long posited that parties can maximize contract value by manipulating the procedural rules that will apply if there is a dispute. Beyond choosing a litigation or arbitration forum, parties can allocate costs and fees, alter pleading standards, adjust evidentiary and discovery rules, and customize nearly every aspect of the adjudication process. In time, this theoretical insight became a matter of faith. The assumption that contracts routinely alter procedural rules spawned debate over the normative implications of allowing parties to dictate procedure. Only recently have a few studies suggested that this debate may lack a firm empirical foundation. …

Contract Remedies In Action: Specific Performance, Yonathan A. Arbel

West Virginia Law Review

No abstract provided.

Disentangling Choice Of Law For Torts And Contracts, Rick Kirgis

Washington and Lee Law Review Online

In a federal system with state lines that are easily crossed, physically and electronically, legal disputes often raise choice-of-law issues. Common among those disputes are torts and contracts cases. The courts have taken a variety of approaches to these cases, leading to inconsistent results that depend largely on which forum the plaintiff selects. Judicial fairness and economy dictate, or should dictate, that the choice-of-law issues be resolvable consistently and without unnecessarily tying up the courts or imposing large litigation costs, if it can be done in a principled manner. This article shows how it could be done.

Good Faith: A New Look At An Old Doctrine, Robert S. Adler, Richard A. Mann

Akron Law Review

In this article we sketch the basic contours of the contractual policing devices that apply to special relationships and to arm's length transactions. We then explicate in greater detail the duty of good faith under general contract law and the Uniform Commercial Code. Finally, we explore some strategies for shortening arm's length transactions through consensual extensions of the duty of good faith.

Good-Cause Statutes Revisited: An Empirical Assessment, Adi Ayal, Uri Benoliel

Indiana Law Journal

One of the most vital debates in franchise law focuses on whether state or federal law should adopt “good-cause statutes” (GCSs), which require franchisors to show good cause before terminating contractual relations with a franchisee. The traditional law-and-economics analysis suggests that GCSs are inefficient. This inefficiency argument is based upon one central hypothesis: GCSs increase franchisee free riding since they limit the franchisor’s ability to terminate the franchise contract easily. The free-riding hypothesis has been significantly influential in the development of franchise law, as is evident in state and federal statutory regimes. To date, the majority of states and the …

Be Careful What You Do Not Ask For: Contracts With The Federal Government For Which Purely Nonmonetary Relief Exists In The Event Of Breach Must Provide For Monetary Damages To Make Them Available To Non-Breaching Private Parties, Matthew W. Cecil

Journal of Dispute Resolution

By further limiting access to one of the only forums in which private parties may seek monetary damages over $10,000 from the federal government, the United States Federal Circuit Court of Appeals in Higbie v. United States1 has ensured non-breaching private parties will not be wholly compensated for their injuries and has undermined the court’s own interest in bolstering mediation.

Disappearing Ink: The Emerging Duty To Remove Invalid Policy Provisions, Robert L. Tucker

Akron Law Review

This list includes only these decisions of the state’s court of last resort. It does not even begin to touch upon the provisions invalidated by decisions of inferior trial courts and intermediate courts of appeal which, for one reason or another, never reached the Supreme Court. And those intermediate appellate courts, it should be noted, have not limited themselves to invalidating provisions that are contrary to state statutes. In at least one case, a court of appeals held that an “other owned auto” exclusion in an uninsured motorist endorsement was invalid and unenforceable, even though the provision was expressly permitted …

Restrictive Covenants In Illinois: Adequate Consideration Problems Show That The Common Law Is An Inadequate Solution, David S. Repking

Chicago-Kent Law Review

Illinois courts have long dealt with whether restrictive covenants, specifically non-compete clauses, can and should be enforced when they involve employees of businesses. Many aspects of restrictive covenants have been litigated, but a recent Illinois Appellate Court case analyzed the issue of what is adequate consideration in order to enforce a restrictive covenant against a former employee. The First District in Fifield v. Premier Dealer Services, Inc., affirmed a bright-line, two-year rule for deciding how long an employee must work for an employer before a re-strictive covenant can be enforced.

The two-year rule protects employees because an employer cannot …

Contractual Excuse Under The Cisg: Impediment, Hardship, And The Excuse Doctrines, Larry A. Dimatteo

Pace International Law Review

This article will examine the law of excuse as espoused in the Convention on Contracts for the International Sale of Goods (CISG). It will examine the relevant case law applying the doctrine of impediment found in CISG Article 79. The question posed in this analysis is whether the word “impediment” relates only to the occurrences of force majeure, impossibility and frustration of purpose events or if it also includes changed circumstances, impracticability and hardship events. For purposes of simplicity, the first set of excuse or exemption doctrines will be analyzed under the heading of “impossibility” and the second set will …

The Conformity Of The Goods To The Contract In International Sales, Villy De Luca

Pace International Law Review

The present article aims to provide a general overview on the issue of conformity of the goods to the contract as regulated by Article 35 of the Convention on Contracts for the International Sales of Goods (“CISG”).

The analysis will focus on Article 35 CISG and, after having retraced the history that led to the current formulation of the provision, will concentrate on the implications following the adoption of a “unitary” notion of conformity. The evaluation will proceed focusing on the single express and implied conformity obligations covered, respectively, in the first and second paragraphs of Article 35 CISG.

The …

Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge

William & Mary Business Law Review

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. …

Courts Gone “Irrationally Biased” In Favor Of The Federal Arbitration Act?—Enforcing Arbitration Provisions In Standardized Applications And Marginalizing Consumer-Protection, Antidiscrimination, And States’ Contract Laws: A 1925–2014 Legal And Empirical Analysis, Willy E. Rice

William & Mary Business Law Review

Spanning nearly forty years, the Supreme Court has issued multiple decisions and stated categorically that “judicial hostility to arbitration” was the sole impetus behind Congress’s decision to enact the Federal Arbitration Act of 1925. In fact, before the FAA, systemic trade-specific problems and practices generated heated disputes and widespread litigation among merchants and trade organizations. Thus, to arrest those constituents’ concerns, Congress enacted the FAA. Briefly, under the FAA section 2, arbitration is mandatory if a contractual arbitration provision is valid and a controversy “arises out of the contract.” However, common-law rules of contract formation are equally clear: Standing alone, …

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.

Legal Ignorance And Information-Forcing Rules, J. H. Verkerke

William & Mary Law Review

People are often ignorant about the legal rules that govern the most common transactions in their lives. This Article analyzes one common regulatory response to our widespread legal ignorance. A surprisingly broad range of legal rules have the ostensible purpose of inducing sophisticated parties to draft express contract language that will inform their contractual partners about the legal rules governing a particular transaction. However, this “legal-informationforcing” objective often remains unrealized because people routinely sign contracts without reading and understanding their terms. In theory, courts could design information-forcing rules that would be truly informative. But recognizing the potential futility of attempts …

Will Ticket Scalpers Meet The Same Fate As Spinal Tap Drummers? The Sale And Resale Of Concert And Sports Tickets, Gregory M. Stein

Pepperdine Law Review

Some people purchase concert or sports tickets for their own entertainment and then are unable to use their tickets. They may have a scheduling conflict, or their favorite team may be underperforming. Other people buy tickets with the intention of giving them as gifts. Still others purchase with the goal of reselling the tickets at a profit. This Article examines the transferability of tickets to performances and sporting events. What, exactly, is a “ticket”? What property and contract rights does the initial ticket holder acquire? Does the holder have the legal power to transfer these rights? To what extent can …

Principles Of Contract Law Applied To Entertainment And Sports Contracts: A Model For Balancing The Rights Of The Industry With Protecting The Interests Of Minors, John H. Shannon, Richard J. Hunter Jr.

Loyola of Los Angeles Law Review

This Article discusses the context of common law and statutory materials dealing with minors who participate in the entertainment and sports fields. The Article describes the changes undertaken as a result of several notorious cases involving prominent child actors, and how the California legislature dealt with issues ranging from set asides of income, approval of contracts by a competent court of jurisdiction, recognition of the legitimate interests of all parties to the contract, to principles under which a minor would be precluded from disaffirming a contract. The Article then applies and extends the principles developed in entertainment contracts to minors …