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Articles 1 - 19 of 19
Full-Text Articles in Law
A Pragmatic Defense Of Contract Law, Nathan B. Oman
A Pragmatic Defense Of Contract Law, Nathan B. Oman
Faculty Publications
No abstract provided.
On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit, Stolt-Neilsen S.A., V. Animalfeed International, No. 08-1198 (U.S. Oct. 20, 2009), Cornelia T. Pillard
On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit, Stolt-Neilsen S.A., V. Animalfeed International, No. 08-1198 (U.S. Oct. 20, 2009), Cornelia T. Pillard
U.S. Supreme Court Briefs
No abstract provided.
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
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.
Interest As Damages, John Y. Gotanda, Thierry J. Sénéchal
Interest As Damages, John Y. Gotanda, Thierry J. Sénéchal
Working Paper Series
In this article, we posit that when arbitral tribunals decide international disputes, they typically fail to fully compensate claimants for the loss of the use of their money. This failure occurs because they do not acknowledge that businesses typically invest in opportunities that pose a significantly greater risk than the risk reflected in such commonly used standards as U.S. T-bills and LIBOR rates. Claimants also must share the blame when they do not set out a well-constructed claim for interest as damages. However, even when claimants do so, tribunals often award damages at a statutory rate or at rate reflecting …
The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong
Faculty Publications
This article addresses a gap in the scholarly literature by comparing interpretive methodologies used by U.S. arbitrators to those used by international arbitrators to determine whether and to what extent U.S.-based class awards are enforceable outside the United States. Since many courts and arbitrators have claimed an analogy between consolidated and class arbitration, the article also considers whether such an analogy is appropriate as a matter of law and policy to identify whether the traditional disinclination to order consolidation can or should be extended to class proceedings. This second portion of the article is applicable to both domestic class arbitrations …
Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne
Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne
Faculty Publications
No abstract provided.
The Economics Of Deal Risk: Allocating Risk Through Mac Clauses In Business Combination Agreements, Robert T. Miller
The Economics Of Deal Risk: Allocating Risk Through Mac Clauses In Business Combination Agreements, Robert T. Miller
Working Paper Series
In any large corporate acquisition, there is a delay between the time the parties enter into a merger agreement (the signing) and the time the merger is effected and the purchase price paid (the closing). During this period, the business of one of the parties may deteriorate. When this happens to a target company in a cash deal, or to either party in a stock-for-stock deal, the counterparty may no longer want to consummate the transaction. The primary contractual protection parties have in such situations is the merger agreement’s “material adverse change” (MAC) clause. Such clauses are heavily negotiated and …
Rethinking Consideration In The Electronic Age, Robert A. Hillman, Maureen O'Rourke
Rethinking Consideration In The Electronic Age, Robert A. Hillman, Maureen O'Rourke
Cornell Law Faculty Working Papers
Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding the suitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual …
Contracting (Out) Rights, Kathryn A. Sabbeth, David C. Vladeck
Contracting (Out) Rights, Kathryn A. Sabbeth, David C. Vladeck
Faculty Publications
No abstract provided.
Disputing Boilerplate, W. Mark C. Weidemaier
Disputing Boilerplate, W. Mark C. Weidemaier
Faculty Publications
No abstract provided.
Writer's Block - Resolve To Become A Better Writer, David Spratt
Writer's Block - Resolve To Become A Better Writer, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Cost Of Consent: Optimal Standardization In The Law Of Contract, Joshua A.T. Fairfield
The Cost Of Consent: Optimal Standardization In The Law Of Contract, Joshua A.T. Fairfield
Scholarly Articles
This article argues that informed consent to contract terms is not a good to be maximized, but is rather an information cost that courts should minimize. The goal of mass-market contract law ought to be to keep costs low by encouraging contract standardization. The article applies information cost theory to show that information-forcing rules are often inefficient at both the micro- and macroeconomic levels. Such rules also impose greater costs on third parties than the benefits they create for the contracting parties. When one consumer creates an idiosyncratic deal, the information-savings benefits of standardization are reduced for all other potential …
A Matter Of Trust: Should No-Reliance Clauses Bar Claims For Fraudulent Inducement Of Contract?, Henry Allen Blair
A Matter Of Trust: Should No-Reliance Clauses Bar Claims For Fraudulent Inducement Of Contract?, Henry Allen Blair
Faculty Scholarship
In this Article, Professor Allen Blair examines the enforceability of no-reliance clauses--contractual disclaimers designed to prevent parties from relying on extra-contractual representations to prove fraudulent inducement claims. Many courts are skeptical of such disclaimers and either refuse to enforce them or will enforce them only subject to substantial restrictions. These courts base their decisions on generic moral prohibitions against lying. This Article argues, however, that these courts reach their conclusion too easily. They presume that no-reliance clauses can serve no legitimate contract function and thus never provide value to parties. But, in at least some cases between sophisticated parties, no-reliance …
International Sale Of Goods 2008, Gregory M. Duhl
International Sale Of Goods 2008, Gregory M. Duhl
Faculty Scholarship
This is a survey of key cases decided by U.S. courts in 2008 interpreting the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Courts interpreted the scope, formation, modification, excuse, notice, and remedies provisions of the CISG.
Consumer Harm Acts? An Economic Analysis Of Private Actions Under State Consumer Protection Acts, Henry N. Butler, Jason S. Johnston
Consumer Harm Acts? An Economic Analysis Of Private Actions Under State Consumer Protection Acts, Henry N. Butler, Jason S. Johnston
Faculty Working Papers
State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal and regulatory protections of consumers. CPAs were designed to solve two simple economic problems: 1) individual consumers often do not have the incentive or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and, 2) because of the difficulty of establishing elements of either common law fraud or breach …
Managing Risks Associated With The Jbcc(Principal Building Agreement) From Thesouth African Contractor’S Perspective, Ayman Ahmed Ezzat Othman, Nishani Harinarain
Managing Risks Associated With The Jbcc(Principal Building Agreement) From Thesouth African Contractor’S Perspective, Ayman Ahmed Ezzat Othman, Nishani Harinarain
Architectural Engineering
Construction is a complex and risky business. It is a time-consuming process involving a multitude of organisations with different objectives and skills. In addition, increasing client expectations coupled with the technological development of materials and equipment made the construction industry subject to more risks than any other industry. Contracts are essential tools for organising the relationship between involved parties and managing associated risk. For years the South African construction industry had a very poor reputation in managing construction risks. In order to improve the image of the South African construction industry and to assist contractors to develop their proper risk …
Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong
Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong
All Faculty Scholarship
In the spring of 2009, public outcry erupted over the multi-million dollar bonuses paid to AIG executives even as the company was receiving TARP funds. Various measures were proposed in response, including a 90% retroactive tax on the bonuses, which the media described as a "clawback." Separately, the term "clawback" was also used to refer to remedies potentially available to investors defrauded in the multi-billion dollar Ponzi scheme run by Bernard Madoff. While the media and legal commentators have used the term "clawback" reflexively, the concept has yet to be fully analyzed. In this article, we propose a doctrine of …
Nonconsensual Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, Amy J. Schmitz
Nonconsensual Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, Amy J. Schmitz
Faculty Publications
Policymakers have adopted programs mandating parties to submit their disputes to court connected arbitration hoping to garner efficiency benefits commonly associated with contractual Federal Arbitration Act (FAA) arbitration. Mandatory nonbinding arbitration, however, is ill-equipped for this task because it lacks the consensual core and finality of FAA arbitration. Instead, it often adds an inefficient layer to the litigation process and may harm those least able to protect themselves from coerced settlements or burdens of protracted litigation.
Moral Judgment And Moral Heuristics In Breach Of Contract, Tess Wilkinson-Ryan
Moral Judgment And Moral Heuristics In Breach Of Contract, Tess Wilkinson-Ryan
All Faculty Scholarship
Most people think that breaking a promise is immoral, and that a breach of contract is a kind of broken promise. However, the law does not explicitly recognize the moral context of breach of contract. Using a series of web-based questionnaires, we asked subjects to read breach of contract cases and answer questions about the legal, financial, and moral implications of each case. Our results suggest that people are quite sensitive to the moral dimensions of a breach of contract, especially the perceived intentions of the breacher. In the first study, we framed the motivation for a contractor's breach as …