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Articles 1 - 30 of 39
Full-Text Articles in Law
The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh
The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh
Michael Vandenbergh
No abstract provided.
Essentials Of A Publication Agreement, Stephen Wolfson, Mariann Burright
Essentials Of A Publication Agreement, Stephen Wolfson, Mariann Burright
Presentations
This session will focus on authors' rights and publishing contracts. When academic publishers agree to publish academic works, they require the authors to sign agreements before doing so. In the past, these “agreements” – contracts, by another name – often have contained provisions that primarily benefit the publishers, including assigning intellectual property rights in the works to the publishers and limiting authors’ abilities to use their works after transferring their rights. Faculty authors often ask librarians for their guidance on how to read and negotiate publication agreements. As such, this session will discuss common provisions found in publishing contracts to …
What's In A Licensing Agreement?, Stephen Wolfson, Mariann Burright
What's In A Licensing Agreement?, Stephen Wolfson, Mariann Burright
Presentations
Now that you know the foundations of enforceable contracts, and want to have more familiarity with some nuts and bolts of contract language to become a better negotiator for your institutions, you will want to take this second webinar.
Participants will learn:
• What are the basic provisions or clauses of a contract?
• What do these provisions obligate my institution to do?
• What do these provisions obligate the other party to do?
• What rights does my institution have if the other party breaks its obligations?
Contract Basics For Librarians And Others In Higher Ed, Stephen Wolfson, Mariann Burright
Contract Basics For Librarians And Others In Higher Ed, Stephen Wolfson, Mariann Burright
Presentations
If you have signature or negotiation authority for your institution, and would like to get an overview of contracts to learn what your institution’s rights and obligations may be under a contract, this session is for you! Participants will learn:
• Why it is important to understand how contracts work?
• What does it mean for a contract to be enforceable in a US court?
• How is an enforceable contract formed?
• What could lead to contract breach?
The Best And Worst Of Contracts Decisions: An Anthology, Rachel Arnow-Richman, Daniel D. Banhizer, Scott J. Burnham, Et Al.
The Best And Worst Of Contracts Decisions: An Anthology, Rachel Arnow-Richman, Daniel D. Banhizer, Scott J. Burnham, Et Al.
Florida State University Law Review
The common law of contract is an intellectual and political triumph. In its mature form, it enables judges whose ideological goals may differ to apply doctrines that provide the right to make enforceable promises; with legislation, the common law also provides proper limits on that right. Lately, scholars have produced a flood of contract law theory that enriches our thinking about and grounding for contract law norms. But the real work of common law development has always occurred in the trenches-in judicial decisions. In those trenches and on the framework built there, some decisions matter far more than others, and …
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
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 …
Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge
Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge
Mark Edwin Burge
As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems, exemplified by Articles 3 and 4 of the Uniform Commercial …
Arrested Development: Rethinking The Contract Age Of Majority For The Twenty-First Century Adolescent, Wayne Barnes
Arrested Development: Rethinking The Contract Age Of Majority For The Twenty-First Century Adolescent, Wayne Barnes
Wayne R. Barnes
The contract age of majority is currently age 18. Contracts entered into by minors under this age are generally voidable at the minor’s option. This contract doctrine of capacity is based on the policy of protecting minors from their own poor financial decisions and lack of adultlike judgment. Conversely, the age of 18 is currently set as the arbitrary age at which one will be bound to her contract, since this is the current benchmark for becoming an “adult.” However, this article questions the accuracy of age 18 for this benchmark. Until comparatively recently, the age of contract majority had …
A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, Jessica L. Williams-Vickery
A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, Jessica L. Williams-Vickery
Georgia State University Law Review
In 2012, world-renowned supermodel Coco Rocha agreed to be photographed for the cover of one of Elle’s magazine publications, Elle Brazil. Rocha posed for the pictures in a dress with significant cutouts, covered only by a sheer layer of skin-toned fabric. In keeping with her firm policy of no full or partial nudity, Rocha wore a bodysuit underneath the dress to limit her exposure. When Elle published the magazine, the final product shocked Rocha; the magazine had altered the image to remove her bodysuit, giving the impression Rocha had shown more skin than she in fact had. Rocha took to …
The Surety's Liability For "Bad Faith": Claims For Extra-Contractual Damages By An Obligee Under The Payment Bond, John J. Aromando
The Surety's Liability For "Bad Faith": Claims For Extra-Contractual Damages By An Obligee Under The Payment Bond, John J. Aromando
Maine Law Review
The theory of “bad faith” is by now well established in the areas of liability and casualty insurance. Although the relief available takes different forms in different jurisdictions, a common thread is the exposure of the insurance carrier to extra-contractual damages as a result of its conduct in handling a claim. Depending on the jurisdiction, these extra-contractual damages can include one or more of the following: penal interest and attorneys' fees; consequential damages for breach of contract; and recovery in tort. Even in the most restrictive jurisdiction the exposure is substantial, and in the most expansive it can be catastrophic. …
Control Of The Attorney-Client Privilege After Mergers And Other Transformational Transactions: Should Control Of The Privilege Be Alienable By Contract?, Grace M. Giesel
Control Of The Attorney-Client Privilege After Mergers And Other Transformational Transactions: Should Control Of The Privilege Be Alienable By Contract?, Grace M. Giesel
Grace M. Giesel
In recent years, parties to mergers and other transformational transactions have begun inserting into their deal documents provisions allocating post-transaction control of the attorney-client privilege for pretransaction communications. The controller of the privilege is the person or entity who decides whether to assert the privilege or, rather, to waive it. Commonly, representatives of the target entity in a merger or representatives of an asset seller in a transformational sale want post-transaction control of the privilege for pre-transaction communications relating to the transaction. They want control of the privilege so the surviving entity cannot access or use those communications against the …
Tik Tok: Time To Eradicate Sexual Assault In The Music Industry Through The Implied Covenant Of Good Faith And Fair Dealing, Chanel Chasanov
Tik Tok: Time To Eradicate Sexual Assault In The Music Industry Through The Implied Covenant Of Good Faith And Fair Dealing, Chanel Chasanov
DePaul Journal of Women, Gender and the Law
No abstract provided.
Not So Good: The Classification Of “Smart Goods” Under Ucc Article 2, Chadwick L. Williams
Not So Good: The Classification Of “Smart Goods” Under Ucc Article 2, Chadwick L. Williams
Georgia State University Law Review
Refrigerators can now tweet. Today, almost sixty years after the states widely adopted the Uniform Commercial Code (UCC), the line between goods and services is more blurred than ever. When the UCC was drafted, a good was the simple opposite of a service. A good was something “movable” and tangible, and a service was not. Article 2 of the UCC, which governs sales, limits its scope to goods.
However, because Article 2 was drafted long before the proliferation of so-called “smart goods,” courts continuously struggle to determine when a smart good falls within Article 2’s scope. Courts have developed different …
How Well Do We Treat Each Other In Contract?, Aditi Bagchi
How Well Do We Treat Each Other In Contract?, Aditi Bagchi
William & Mary Business Law Review
One of the important contributions of Nathan Oman’s new book is to draw focus onto the quality of the relationships enabled by contract. He claims that contract, by supporting markets, cultivates certain virtues; helps facilitate cooperation among people with diverse commitments; and produces the wealth that may fuel interpersonal and social justice. These claims are all plausible, though subject to individual challenge. However, there is an alternative story to tell about the kinds of relationships that arise from markets--i.e., a story about domination. The experience of domination is driven in part by the necessity, inequality, and competition enjoined by markets, …
Contract Law And The Common Good, Brian H. Bix
Contract Law And The Common Good, Brian H. Bix
William & Mary Business Law Review
In The Dignity of Commerce, Nathan Oman offers a theory of contract law that is largely descriptive, but also strongly normative. His theory presents contract law’s purpose as supporting robust markets. This Article compares and contrasts Oman’s argument about the proper understanding of contract law with one presented over eighty years earlier by Morris Cohen. Oman’s focus is on the connection between Contract Law and markets; Cohen’s connection had been between Contract Law and the public interest. Oman’s work brings back Cohen’s basic insight, and gives it a more concrete form, as a formidable normative theory with detailed prescriptions.
Contract, Promise, And The Right Of Redress, Andrew S. Gold
Contract, Promise, And The Right Of Redress, Andrew S. Gold
William & Mary Business Law Review
This Essay reviews Nathan Oman’s recent book, The Dignity of Commerce. The book is compelling, and it makes an important and original contribution to contract theory—a contribution that insightfully shows how markets matter. Yet, in the course of developing a market-centered justification for contract law, The Dignity of Commerce also downplays the significance of consent and promissory morality. In both cases, the book’s argument is problematic, but this Essay will address questions of promissory morality. Oman contends that promise-based accounts struggle with contract law’s bilateralism and with its private standing doctrine. Yet, promissory morality is a very good fit …
A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman
A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman
William & Mary Business Law Review
This Article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce “desirable” outcomes for society. In addition to a comprehensive account of what he calls “virtues” of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.
Oman is not only a fan of markets, but he asserts that markets are the “center” of contract theory, and provide its normative foundation. Elaborating, Oman concludes that “contract law exists primarily to support markets” and that …
Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu
Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu
William & Mary Business Law Review
In The Dignity of Commerce, Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values …
Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian
Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian
William & Mary Business Law Review
In this Essay on Professor Oman’s beautifully written and meticulously researched book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called doux commerce thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from …
Lobbying As A Strategy For Tribal Resilience, Kirsten Matoy Carlson
Lobbying As A Strategy For Tribal Resilience, Kirsten Matoy Carlson
Law Faculty Research Publications
No abstract provided.
Boilerplate’S False Dichotomy, James Gibson
Boilerplate’S False Dichotomy, James Gibson
Law Faculty Publications
The argument against enforcing boilerplate contracts (contracts that no one reads) seems clear. Indeed, if this were a court case we would say that the jury is in; the evidence against boilerplate is overwhelming. Yet the judge has yet to render judgment. Courts continue to enforce boilerplate terms, and even those scholars who have exposed boilerplate as an emperor with no clothes are reluctant to gaze upon its nakedness and condemn its use.
This reluctance originates in an assumption that pervades the boilerplate debate—namely, that courts and commentators alike view boilerplate as necessary to the modern transaction. When asked to …
Control Of The Attorney-Client Privilege After Mergers And Other Transformational Transactions: Should Control Of The Privilege Be Alienable By Contract?, Grace M. Giesel
Control Of The Attorney-Client Privilege After Mergers And Other Transformational Transactions: Should Control Of The Privilege Be Alienable By Contract?, Grace M. Giesel
Faculty Scholarship
In recent years, parties to mergers and other transformational transactions have begun inserting into their deal documents provisions allocating post-transaction control of the attorney-client privilege for pretransaction communications. The controller of the privilege is the person or entity who decides whether to assert the privilege or, rather, to waive it. Commonly, representatives of the target entity in a merger or representatives of an asset seller in a transformational sale want post-transaction control of the privilege for pre-transaction communications relating to the transaction. They want control of the privilege so the surviving entity cannot access or use those communications against the …
The Middleman’S Damages Revisited, Victor P. Goldberg
The Middleman’S Damages Revisited, Victor P. Goldberg
Faculty Scholarship
If A promises to sell to B who, in turn, promises to sell to C and either A or C breaches should B receive the gain it expected had both transactions occurred (lost profits) or the larger market/contract differential? Recent case law and commentary argues for the lost profit remedy. The argument is that there is a conflict between awarding market damages and making the nonbreacher whole. This paper argues that there is no conflict. If B were a broker, and C breached, then A would have an action against C for market damages. If B were party to the …
The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal
The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal
Publications
There has been an explosion in new types of startup finance instruments. Whereas twenty years ago preferred stock dominated the field, startup companies and investors now use at least eight different instruments—six of which have only become widely used in the last decade. Legal scholars have yet to reflect upon the proliferation of instrument types in the aggregate. Notably missing is a way to organize instruments into a common framework that highlights their similarities and differences.
This Article makes four contributions. First, it catalogues the variety of startup investment forms. I describe novel instruments, such as revenue-based financing, which remain …
Antitrust Enforcement Against Platform Mfns, Jonathan Baker, Fiona M. Scott Morton
Antitrust Enforcement Against Platform Mfns, Jonathan Baker, Fiona M. Scott Morton
Articles in Law Reviews & Other Academic Journals
Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions (also termed pricing parity provisions) can help protect competition in online markets. An online platform imposes a platform MFN when it requires that providers using its platform not offer their products or services at a lower price on other platforms. These contractual provisions may be employed by online platforms offering hotel and transportation bookings, consumer goods, digital goods, and handmade craft products. They have been the subject of antitrust enforcement in Europe but have drawn only limited antitrust scrutiny in the U.S. Our paper explains why MFNs employed by online …
The Uncertainty Of Sun Printing, George M. Cohen
The Uncertainty Of Sun Printing, George M. Cohen
Touro Law Review
No abstract provided.
One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller
One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller
Touro Law Review
No abstract provided.
Contract Law's Predominant Purpose Test And The Law-Fact Distinction, Daniel P. O'Gorman
Contract Law's Predominant Purpose Test And The Law-Fact Distinction, Daniel P. O'Gorman
Faculty Scholarship
No abstract provided.
Sign Or Die: The Threat Of Imminent Physical Harm And The Doctrine Of Duress In Contract Law, Daniel P. O'Gorman
Sign Or Die: The Threat Of Imminent Physical Harm And The Doctrine Of Duress In Contract Law, Daniel P. O'Gorman
Faculty Scholarship
No abstract provided.
Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov
Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov
Faculty Scholarship
No abstract provided.