Law Commons^™

The Fourth Circuit’S Treatment Of Anunconventional Obligation Inwegmann V. Tramontin, Nathan W. Friedman

Journal of Civil Law Studies

No abstract provided.

Codify This: Exculpatory Contracts In Wisconsin Recreational Businesses, Blake A. Nold

Marquette Law Review

It is common practice for recreational businesses, such as ski resorts or fitness centers, to require their customers to sign a release of liability form. The purpose of this release form is to relieve the business from any potential liability in the event a customer suffers an injury. However, since 1982, the Wisconsin Supreme Court has yet to uphold an exculpatory contract. Rather than attempting to lay out principles and guidelines for how to draft an exculpatory agreement—in hopes that it will be ruled enforceable—this Comment proposes that Wisconsin recreational businesses, like ski resorts or gyms, should not require customers …

Poke Your Nose Into Your Clients' Businesses (If You Want To Understand Their Contracts), James W. Bowers

Maine Law Review

Thirty years ago Grant Gilmore argued that “Contract” was dead. This lecture, delivered as 2004 Godfrey Scholar-in-Residence at the University of Maine School of Law, considers the cause of death. Since the expired doctrines arose in a common law process, the lecture argues their demise resulted from the failings of lawyers, especially lawyers' commitment to wooden, formalist legal methods. I explore some of the reasons why lawyers became committed to these methods, and argue that even were nineteenth-century formalistic practices resurrected, modern lawyers must still be prepared to understand the potential effects business contexts might have in contract disputes and …

Tension And Reconciliation In Canadian Contract Law Casebooks, David Sandomierski

Osgoode Hall Law Journal

Canadian common law contract law casebooks are beset with a tension. On the one hand, they all reveal a sustained commitment to the “wholesale assault on the jurisprudence of forms, concepts, and rules” that typifies American Legal Realism and its intellectual descendants. Concern with underlying values, functional reasoning, social realities, and policy thinking pervades the explicit messages of Canadian contract law casebooks and their editors’ related writings. On the other hand, the two casebooks most frequently assigned embody an allegiance to rules and courts that has a close kinship with the classical attitudes purportedly rejected. They convey a monolithic image …

Pluralism Applied: A Concordant Approach To Selecting Contract Rules, Samuel F. Ernst

Marquette Law Review

Contract rules can be justified by utilitarian theories (such as efficiency theory), which are concerned with promoting rules that enhance societal wealth and utility. Contract rules can also be justified by rights-based theories (such as promissory and reliance theories), which are concerned with protecting the contractual freedom and interests ofthe individual parties to the contract. Or, contract rules can be analyzed through the lenses of a host of other theories, including critical legal theory, bargain theory, and so on. Because no single, unitary theory can ever explain the complex body of laws and societal conventions surrounding contracts, the best rule …

Sovereign Debt As A Commodity: A Contract Law Perspective, Dania Thomas

Osgoode Hall Law Journal

The ad hoc institutional configurations that facilitated the resolution of sovereign insolvency for over thirty years are fragmenting. Recent court decisions interpreting the pari passu clause in sovereign debt contracts reveal the dangers of pressuring common law courts to enforce contracts and mediate structural flaws in the market. The courts have dismantled sovereign protections in international law and common law checks and balances. They have gone beyond precedent to innovate remedies justified by interpreting a clause whose meaning and function were not clearly understood by the contracting parties themselves. They have also opened up a possible inter-creditor obligation that circumvents …

“Breaking Bad” Contracts: Bargaining For Masculinity In Popular Culture, Lenora Ledwon

William & Mary Journal of Race, Gender, and Social Justice

This Article examines the award-winning television show, Breaking Bad, to illustrate how the idea of a contract in popular culture can become inflected with a style of retrograde masculinity. Deals in Breaking Bad take place in the classic contract imaginary, which resembles the classic Western shootout: two antagonists face each other down in a duel. The show interrogates the frontier thesis, with its links to the American Dream and dangerous masculinities, through the ruthless contracts of Walter White.

We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher

Michigan Journal of Environmental & Administrative Law

The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal Indian …

Enforcing Corporate Social Responsibility Codes Under Private Law: On The Disciplining Power Of Legal Doctrine, Jan M. Smits

Indiana Journal of Global Legal Studies

A central question in the debate on corporate social responsibility is to what extent CSR codes can be enforced among private parties. This contribution argues that this question is best answered by reference to the applicable doctrinal legal system. Such a doctrinal approach has recently regained importance in American scholarship, while it is still the prevailing method of legal analysis in Europe. Applying a doctrinal analysis of CSR codes allows for the possibility of private law enforcement, that is, enforcement by means of contract or tort, dependent on three different elements: the exact type of claim that is brought, the …

Betraying Formality For False Equity: The Danger Of Transposing Equitable Considerations Into Contract Law To Remedy Regulatory Pitfalls, Elliott Morris

William & Mary Environmental Law and Policy Review

No abstract provided.

Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens

Maine Law Review

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic, and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalistic paradigms are structural elements driving the common law norm-generation process. This …

Civil Law Pulsations Along The Latin American Periphery, Ángel R. Oquendo

University of Miami Inter-American Law Review

The civil law system shows its true face as it travels from the Continental European core to the Latin American periphery. Many of the principal institutions have found a home and thrived in the new and radically different environment. One can best study them there by contemplating how they have preserved some of their most basic features despite having transformed themselves into something else.

The notion of the civil law tradition and that of codification have themselves undergone this dialectic of transformation and preservation. So have the traditional approach to contractual interpretation and to third-party agreements and the common proscriptions …

Contract, Power, And The Value Of Donative Promises, Sabine Tsuruda

South Carolina Law Review

No abstract provided.

Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia SáNchez Abril, Nicholas Greene

Washington and Lee Law Review

Morality clauses give a contracting party the right to terminate if the other party behaves badly or embarrassingly. A curious product of twentieth-century Hollywood, these contract clauses have traditionally been used to control the antics of entertainers and athletes. The current politically-sensitive historical moment, combined with the internet’s ability to broadcast widely and permanently, has put everyone’s off-duty speech, conduct, and reputation under the microscope. Media reports detailing people’s digital falls from grace abound. For fear of negative association, businesses are more attuned than ever to the extracurricular acts of their agents and associates—and are increasingly binding them to morality …