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.

Carnival Cruise And The Contracting Of Everything, Nancy Kim

Nancy Kim

This short essay is about the potential unconscionablity of contracts between cruise lines and passengers.

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. …

Two Alternate Visions Of Contract Law In 2025, Nancy Kim

Nancy Kim

Part I of this essay examines how businesses have shaped the evolution of contract’s form from the past to the present and ex-plains how courts have responded by reshaping contract law.1 Part II of this essay anticipates changes in the business landscape and explains how these changes might create new challenges for contract law. Part III predicts two alternative visions for contract law in 2025. The first is as a diminished body of law, made nearly irrelevant by other laws and preempted by private rules administered by non-judicial entities. The second vision is that of a robust contract law administered …

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 …

Bargaining Power And Background Law, Nancy Kim

Nancy Kim

Power in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the "background law." The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and …

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 …

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

James L. Kainen

No abstract provided.

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

A Tale Of Three Markets: The Law And Economics Of Predatory Lending, Kathleen Engel, Patricia Mccoy

Patricia A. McCoy

Predatory lending - the practice of making exploitative high-cost loans to naive borrowers - has spurred policy-makers, activists, lenders and scholars to debate whether intervention is warranted and, if so, what type of intervention is appropriate. The solution requires understanding the incentives in the home mortgage market that have fueled predatory lending. Recent changes in the credit market have created new possibilities for lenders to profit by exploiting information asymmetries to the detriment of unsophisticated borrowers. As a result, a new, predatory lending market has emerged alongside the legitimate prime and subprime home mortgage markets. Neither market forces nor existing …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

Notice, Assent, And Form In A 140 Character World, Juliet Moringiello

Juliet M Moringiello

This essay is a contribution to a symposium on Professor Nancy Kim’s terrific book, Wrap Contracts: Foundations and Ramifications. In the book, Prof. Kim examines this explosion in volume of online contract terms and offers some suggestions for improving the judicial approach to these terms. Despite the ease of presenting online terms in a visually appealing format, today’s electronically presented terms are even less comprehensible than those of fifteen years ago. At the same time that individuals have become accustomed to receiving information in small doses due to the proliferation of social media platforms such as Twitter, Instagram, Facebook and …

Sovereign Immunity And Sovereign Debt, W. Mark C. Weidemaier

W. Mark C. Weidemaier

Indiana Jones, Contracts Originalist, W. Mark C. Weidemaier

W. Mark C. Weidemaier

A Case Study In Collaborative Technology And The Intentionally Relational Contract: Building Information Modeling And Construction Industry Contracts, Carl J. Circo

Carl J. Circo

Beyond Notice And Choice: Privacy, Norms, And Consent, Richard Warner, Robert Sloan

Richard Warner

Informational privacy is the ability to determine for yourself when and how others may collect and use your information. Adequate informational privacy requires a sufficiently broad ability to give or withhold free and informed consent to proposed uses.

Notice and Choice (sometimes also called “notice and consent”) is the current paradigm for consent online. The Notice is a presentation of terms, typically in a privacy policy or terms of use agreement. The Choice is an action signifying acceptance of the terms, typically clicking on an “I agree” button, or simply using the website. Recent reports by the Federal Trade Commission …

Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall

Brian M McCall

In a general sense, St. Thomas Aquinas predicted the paralysis and chaos of the financial and economic systems in America and Europe which occurred in 2008, when he predicted that in a society where unjust exchanges dominate, eventually all exchanges will cease. St. Thomas also points out that although human law cannot prohibit all injustice, society cannot escape the consequences of transgressing the divine law which leaves “nothing unpunished.” Thus, at least part of the explanation for that crisis whose effects remain with us today lies in continuous violations of natural justice by our economic system. Neither one product nor …

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall