Law Commons^™

Contracts In Context And Contracts As Context, Larry A. Dimatteo, Blake D. Morant

Larry A DiMatteo

The annual Business Law Symposium of the Wake Forest Law Review has a distinguished legacy of noteworthy programs that shed light on seminal issues affecting contemporary business in the United States. This edition builds on that tradition of excellence with a focus on the ubiquitous phenomenon of contracts and bargaining behavior. Contract law appears as a set of policies and rules that provide order for those who transact bargains. Indeed, contract law and the rules that it engenders seemingly facilitate an efficient system of transactional conduct that, on its face, appears objective. Part II of this introductory Article briefly examines …

The Influence Of Law And Economics Scholarship On Contract Law: Impressions Twenty-Five Years Later, Jeffrey L. Harrison

Jeffrey L Harrison

This is an update of a work done in conjunction with a contract law conference 25 years ago. My specific assignment was to assess the impact of law and economics scholarship on contract law. I responded by conducting an empirical study of judicial citations to selected law and economics works in order to ascertain the extent to which judges seemed to be relying on the teachings of law and economics. In effect, the effort was part of a general question that concerns all law professors: Does scholarship matter? I have repeated the study with respect to the scholarship sample selected …

Teaching Contracts From A Socioeconomic Perspective, Jeffrey L. Harrison

Jeffrey L Harrison

This essay begins with a brief discussion of what socioeconomics is. In this section I also address whether one must be well versed in conventional economics in order to apply a socioeconomic perspective. I then discuss the basic themes that are present throughout my contracts class that stem from my interest in socioeconomics. Underlying these themes is the more fundamental goal of devising methodologies for assessing the quality of contracts. By quality, I mean something more and perhaps more subtle than whether the parties have conformed to all the formal requirements. Instead, I encourage students to examine whether all of …

Rethinking Mistake And Nondisclosure In Contract Law, Jeffrey L. Harrison

Jeffrey L Harrison

This Article reconsiders the analysis of the disclosure/nondisclosure issue. Part I of this Article elaborates on the basic model and some of the complexities of identifying the actual impact of nondisclosure. Part II details the social costs of the default nondisclosure rule. In Part III, a case is made that concepts like "mistake" and "defect," both "patent" and "latent," unnecessarily retard allocative efficiency by limiting what must be disclosed. In Part IV, alternatives to the default nondisclosure rule are examined in the context of several cases, some of which have been used to illustrate the virtues of the default rule.

Unanimous Shareholder Agreements, Nicolas William Juzda

PhD Dissertations

The unanimous shareholder agreement is a feature of most Canadian corporate statutes that allows the shareholders to, by creating an agreement meeting the necessary criteria, restrict the powers of the directors to manage the business and affairs of the corporation. One possible justification for this is the "nexus of contracts" theory that all corporations are notionally reducible to voluntary agreements. Three key areas of ambiguity surrounding unanimous shareholder agreements are examined in this dissertation, with specific reference to existing judgments. The requirements for their formation are reviewed, including the exact meaning and strictness of the unanimity criterion and the necessity …

Meeting Summary Of Colloquium On Policy, Law, Contracts, And Sustainable Development, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI and the Institute for Human Rights and Business co-convened a colloquium on policy, law, contracts, and sustainable development, with a particular focus on large-scale investments in the extractive industries and the agriculture sector. The colloquium provided an opportunity for practitioners to share information on their related work, as well as to reflect on current practices and remaining gaps regarding efforts to embed sustainability and human rights into large-scale deals. This outcome document provides a summary of the discussion, while its annex includes information on participants’ relevant programs, initiatives, and tools.

Binding Future Selves, Kaiponanea T. Matsumura

Louisiana Law Review

No abstract provided.

Inherit The Cloud: The Role Of Private Contracts In Distributing Or Deleting Digital Assets At Death, Natalie M. Banta

Fordham Law Review

We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death. Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by …

Not Just For Products Liability: Applying The Economic Loss Rule Beyond Its Origins, Danielle Sawaya

Fordham Law Review

Most litigants, if given the chance, prefer to assert tort theories to recover their economic losses, rather than rely on the remedies provided under contract law. This is primarily because plaintiffs have the potential to recover more damages under tort law than contract law. However, most courts have adopted a doctrine known as the economic loss rule to bar plaintiffs from asserting certain tort theories to recover for their economic loss. Although the economic loss rule may seem like an easy way to maintain the boundary between tort law and contract law, confusion abounds when courts attempt to determine the …

Contract Law And The Hand Formula, Daniel P. O'Gorman

Louisiana Law Review

No abstract provided.

Enlarged State Power To Declare Nullity: The Hidden State Interest In The Chinese Contract Law, Hao Jiang Esq.

Hao Jiang Esq.

This article is on the hidden state interest that article 52(§1) of the Chinese Contract Law protects and the questionable applicability of freedom of contract to Chinese state-owned enterprises (hereafter “SOEs”). In common law, fraud and duress make a contract voidable. In Western civil law jurisdictions, including Louisiana, fraud and duress make a contract relatively null. Article 52(§1) of the Chinese Contract Law renders a contract induced by fraud and duress absolutely null (null and void if using common law terminology) when state interest is harmed. At the same time, according to article 54 of the Contract Law, fraud and …

Contractualizing Custody, Sarah Abramowicz

Fordham Law Review

Many scholars otherwise in favor of the enforcement of family contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights to children’s custody. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed “intact”—typically consisting of two married parents and their offspring—and those deemed non-intact. Intact families are granted a degree of freedom from government intervention, provided that there is no evidence that children are in any danger of …

Illegal Agreements And The Lesser Evil Principle, Chunlin Leonhard

Chunlin Leonhard

Illegal agreement disputes force U.S. courts to wrestle with multiple competing interests. The courts’ approach has been generally explained and understood in terms of the general rule of non-enforcement of illegal agreements with numerous exceptions. The case law on this topic has been described as “a vast, confusing and rather mysterious area of the law.” This article offers the insight that, contrary to common belief, courts’ approach to illegal agreements shows a consistent pattern. A review of randomly selected cases shows that the courts have by and large consistently (albeit implicitly) applied the lesser evil principle in resolving the disputes. …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Akron Law Faculty Publications

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated?

While much digital privacy law and commentary has focused on text files containing personal data, little attention …

'Sophisticated Robots': Balancing Liability, Regulation, And Innovation, F. Patrick Hubbard

Faculty Publications

Our lives are being transformed by large mobile “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements to reduce the number and severity of injuries.

This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation necessary to …

Contract's Adaptation And The Online Bargain, Nancy Kim

Nancy Kim

The model of traditional contracts is that of two individuals negotiating terms that are to each party's advantage. This model persists even though it no longer reflects the reality of consumer contracts. This Article traces the evolution of modern day consumer contracts and explains how courts have accommodated business needs by distorting contract law. This Article argues that the doctrine of consideration should be reconceptualized in light of new technologies and changes in doctrinal application. It concludes that in order to restore contract law's legitimacy, courts must allocate the burdens of technological and doctrinal changes in a more evenhanded manner. …

Internet Challenges To Business Innovation, Nancy Kim

Nancy Kim

No abstract provided.

Arbitration's Summer Soldiers Marching Into Fall: Another Look At Eisenberg, Miller, And Sherwin's Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Nancy Kim

Nancy Kim

Our empirical study examines the role and importance of arbitration clauses in standard form contracts, primarily with other businesses. While much has been written about the impact of mandatory arbitration clauses in consumer contracts, relatively little has been written on mandatory arbitration clauses in customer agreements where the customer was a business and not an individual consumer. In this Article, we specifically address the findings presented in Theodore Eisenberg, Geoffrey Miller, and Emily Sherwin’s study, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts.1 Our study finds that many businesses employ mandatory arbitration clauses in …

Mistakes, Changed Circumstances And Intent, Nancy Kim

Nancy Kim

The most common contract defenses are duress, unconscionability, incapacity, fraud, and the basic assumption. defenses4 of mutual mistake, unilateral mistake, impossibility, frustration of purpose and commercial impracticability. In this Article, I limit my discussion to basic assumption defenses. Several prevailing rationales explain why a party should be allowed to escape contractual liability despite the sufficiency of consideration where there has been a failure of a basic assumption material to the transaction. No single rationale or principle, however, unifies all basic assumption defenses. Several commentators have noted that similar fact patterns applying a given doctrine often yield inconsistent results. Parties’ employment …

Evolving Business And Social Norms And Interpretation Rules, Nancy Kim

Nancy Kim

Rapid societal and technological changes - such as the rise in electronic commerce, increasing diversity and globalization - create contract interpretation issues that require a dynamic approach. While many modern contractual disputes arise from a confluence of factors, contract doctrine has tended to adopt a unitary approach to problems with an emphasis on interpretation of words. This article argues that non-intuitive interpretation rules work to the disadvantage of language and cultural minorities and should only be used if their purpose is to determine the intent of the parties or to uphold a policy or legislative objective. A dynamic approach is …

Situational Duress And The Aberrance Of Electronic Contracts, Nancy Kim

Nancy Kim

This article explains how the aberrant nature of electronic contracts has unique effects. Companies take advantage of these unique effects and use electronic contracts in a coercive manner. This article proposes the new defense of “situational duress” to address the exploitative use of electronic contracts in certain situations. Part I explains why electronic contracts are aberrant and explains how the developing law in this area deviates from traditional contract doctrine. This section also discusses how the electronic form affects consumer behavior and understanding of contract terms. Part II provides background to the traditional doctrine of duress and introduces the concept …

Reasonable Expectations In Socio-Cultural Context, Nancy Kim

Nancy Kim

Under the objective theory of contract, courts interpret the intent of the parties in adopting a particular contractual term according to the reasonable meaning of that term, or the meaning that a reasonable person would assign to that term. Courts adopt the objective theory to determine all aspects of the understanding between the parties-from the determination of contract formation, to an evaluation of the meaning of written or spoken terms, to an assessment of contract performance. In a series of articles, Professor Melvin Eisenberg explained how modern contract law evolved from the will theory to the classical model, and from …

Clicking And Cringing, Nancy Kim

Nancy Kim

Shrinkwrap, clickwrap, and browsewrap licenses have complicated contract law by introducing nontraditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in "rolling contract" situations. In this Article, I propose that a consumer's assent to a transaction should not be transmuted into blanket assent to each individual term of a …

Boilerplate And Consent, Nancy Kim

Nancy Kim

In Margaret Jane Radin's book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Radin argues that boilerplate is a social problem leading to normative and democratic degradation of important rights. In his review of Radin’s book, Omri Ben-Shahar outlines two approaches to regulation by boilerplate. He labels the first as “autonomism,” which asks “how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy.” Ben-Shahar views Radin as representative of the autonomists. The second way of viewing regulation-by-boilerplate is “to ask how …

The Software Licensing Dilemma, Nancy S. Kim

Nancy Kim

No abstract provided.

Expanding The Scope Of The Principles Of The Law Of Software Contracts To Include Digital Content, Nancy Kim

Nancy Kim

The Principles of the Law of Software Contracts, or the "Principles," seek to "unify and clarify" the law of software transactions. The drafters, however, excluded "digital content" from the scope of their project. This Essay explains why the scope of the Principles should encompass digital content. The exclusion of digital content creates two different but related problems. The first problem is that it creates what I refer to as "classification confusion." Given the complexity and speed of technological innovation, the task of distinguishing digital content from software may be difficult for courts. The second problem is that it fails to …

Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii

James Thuo Gathii

Third world citizens—parties who often have the most to lose in natural resource contracts between their governments and foreign investors—often have no voice in negotiations of the contracts and consequently have no remedy under contract law when harms occur or when the contracts are not properly enforced. The privity doctrine, which permits contract suits only by parties to the contract, bars these citizens from suing because they were not in privity with any of the contracting parties, despite that these contracts are generally made for the benefit of these citizens. However, some countries have adopted—and this Essay argues other countries …

Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre

Jorge A Mestre

No abstract provided.

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

James L. Kainen

No abstract provided.

Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh

Shubha Ghosh

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of …