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Full-Text Articles in Law

One-Legged Contracting, Ian Ayres, Gregory Klass Nov 2019

One-Legged Contracting, Ian Ayres, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This response to Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019), makes three broad points. It criticizes as arbitrary and essentializing Kar and Radin’s insistence of shared meaning as the core of contracting. It argues that even if shared meaning were the sine qua non of contracting, their proposal fails to achieve it because it does not assure that the terms would be cooperatively communicated. And it argues that their proposed enforcement standard would in practice severely limit freedom of contract and likely reduce consumer welfare. There is a good ...


Contractual Communication, Lawrence B. Solum Nov 2019

Contractual Communication, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinct “situations of contractual communication” and interrogating Kar and Radin’s Shared Meaning Analysis. Part III interrogates Kar and Radin’s distinction between “contract” and “pseudo-contract.” The conclusion of the ...


The Internet Of Bodies, Andrea M. Matwyshyn Oct 2019

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a ...


Arbitration And The Federal Balance, Alyssa King Oct 2019

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 ...


Bitcoin: Order Without Law In The Digital Age, John O. Mcginnis, Kyle Roche Oct 2019

Bitcoin: Order Without Law In The Digital Age, John O. Mcginnis, Kyle Roche

Indiana Law Journal

Modern law makes currency a creature of the state and ultimately the value of its currency depends on the public’s trust in that state. While some nations are more capable than others at instilling public trust in the stability of their monetary institutions, it is nonetheless impossible for any legal system to make the pre-commitments necessary to completely isolate the governance of its money supply from political pressure. This proposition is true not only today, where nearly all government institutions manage their money supply in the form of central banking, but also true of past private banking regimes circulating ...


Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman Sep 2019

Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman

Nathan B. Oman

Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract ...


Promise And Private Law, Nathan B. Oman Sep 2019

Promise And Private Law, Nathan B. Oman

Nathan B. Oman

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists ...


Unity And Pluralism In Contract Law, Nathan B. Oman Sep 2019

Unity And Pluralism In Contract Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.


The Need For A Law Of Church And Market, Nathan B. Oman Sep 2019

The Need For A Law Of Church And Market, Nathan B. Oman

Nathan B. Oman

This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought ...


The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman Sep 2019

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Nathan B. Oman

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory ...


Markets As A Moral Foundation For Contract Law, Nathan B. Oman Sep 2019

Markets As A Moral Foundation For Contract Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.


Introductory Remarks: Contract Law And Morality, Nathan B. Oman Sep 2019

Introductory Remarks: Contract Law And Morality, Nathan B. Oman

Nathan B. Oman

No abstract provided.


Indiana And Doux Commerce, Nathan B. Oman Sep 2019

Indiana And Doux Commerce, Nathan B. Oman

Nathan B. Oman

No abstract provided.


Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman Sep 2019

Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman

Nathan B. Oman

One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure ...


A Pragmatic Defense Of Contract Law, Nathan B. Oman Sep 2019

A Pragmatic Defense Of Contract Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.


Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne Sep 2019

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Christopher Byrne

No abstract provided.


Unintelligent Design In Contract, Peter A. Alces Sep 2019

Unintelligent Design In Contract, Peter A. Alces

Peter A. Alces

Scholars have expended considerable energy in the effort to "discover" a normative theory of Contract. This Article surveys that effort and concludes that something fundamental about Contract has been missed and has frustrated the search from the outset. Succinctly, Contract doctrine resists the neat formulation theory requires. Theorists' perspectives on Contract may be generalized as attempts to impute either deontology or consequentialism to the Contract law. Focusing largely on deontological constructions of Contract, this Article demonstrates the inconsistencies among the extant heuristics-promise, reliance, and transfer-and more importantly, the failure of any of those constructions to provide a coherent explanation of ...


They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield Sep 2019

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Peter A. Alces

No abstract provided.


The Moral Impossibility Of Contract, Peter A. Alces Sep 2019

The Moral Impossibility Of Contract, Peter A. Alces

Peter A. Alces

No abstract provided.


Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces Sep 2019

Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces

Peter A. Alces

No abstract provided.


Statutory Personal Property Lease Law In Alabama, Peter A. Alces, P. Cade Newman Sep 2019

Statutory Personal Property Lease Law In Alabama, Peter A. Alces, P. Cade Newman

Peter A. Alces

No abstract provided.


Regret And Contract "Science", Peter A. Alces Sep 2019

Regret And Contract "Science", Peter A. Alces

Peter A. Alces

No abstract provided.


On Discovering Doctrine: "Justice" In Contract Agreement, Peter A. Alces Sep 2019

On Discovering Doctrine: "Justice" In Contract Agreement, Peter A. Alces

Peter A. Alces

No abstract provided.


Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne Sep 2019

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Peter A. Alces

No abstract provided.


Guerilla Terms, Peter A. Alces Sep 2019

Guerilla Terms, Peter A. Alces

Peter A. Alces

No abstract provided.


Contract Reconceived, Peter A. Alces Sep 2019

Contract Reconceived, Peter A. Alces

Peter A. Alces

No abstract provided.


Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins Sep 2019

Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins

Peter A. Alces

No abstract provided.


Smart Contracts And Consumers, Tatiana Cutts Sep 2019

Smart Contracts And Consumers, Tatiana Cutts

West Virginia Law Review

“Smart contracts” are a way of using computers to make contracts unbreakable. Contracting parties do not need to trust one another to perform or rely upon intermediaries to enforce performance. Performance is guaranteed. This is supposed to be a victory for the ordinary person—a clever socio-economic application of cryptography that strips power from companies and governments and gives it to consumers. But it turns out that less trust does not mean more freedom, or better bargains. The law of contract supports valuable relationships both by enforcing duties and by allowing parties to escape the consequences of ill-formed contracts and ...


Mistake In Contract Law, Melvin A. Eisenberg Aug 2019

Mistake In Contract Law, Melvin A. Eisenberg

Melvin A. Eisenberg

Develops the legal rules that should govern mistake in contract law on a functional basis. Types of mistake that are relevant in contract law on the basis of their character; Reasons of efficiency and morality that apply to cases in which a non-mistaken party knew or had reason to know that a payment was mistakenly made; Distinction between mistaken factual assumptions and evaluative mistakes.


A New Look At Contract Mistake Doctrine And Personal Injury Releases, Grace M. Giesel Jun 2019

A New Look At Contract Mistake Doctrine And Personal Injury Releases, Grace M. Giesel

Grace M. Giesel

One might expect a court to look very skeptically when a party to a personal injury release asks a court to set aside the release. But many courts have reacted atypically when injured parties who have settled their claims have sought to have those releases set aside on the basis of a lack of understanding or knowledge about the injury. Absent facts supporting a claim of fraud or duress, injured parties have turned to the mistake doctrine for relief.