Law Commons^™

Of Textualism, Party Autonomy, And Good Faith, Michael P. Van Alstine

William & Mary Law Review

No abstract provided.

Freedom Of Contract And The Securities Laws: Opting Out Of Securities Regulation By Private Agreement, Elaine A. Welle

Washington and Lee Law Review

No abstract provided.

Secured Transactions Inside Out: Negative Pledge Covenants Property And Perfection , Carl S. Bjerre

Cornell Law Review

No abstract provided.

We'll Do It For You Any Time: Recognition And Enforcement Of Foreign Arbitral Awards And Contracts In The United States, Pedro Menocal

St. Thomas Law Review

The basic mechanisms for the recognition and enforcement of foreign arbitration agreements and awards in the United States are found in the Federal Arbitration Act ("FAA"). The fundamental purpose of the FAA is to "ensure that private agreements to arbitrate are enforced according to their terms." The FAA applies to any maritime transaction or any transaction involving commerce "among the several States or with foreign nations.. ." to the full extent of federal commerce clause, whether enforcement is sought in federal or state court The FAA does not apply to "contracts of employment of seamen, railroad employees, or any other …

“A Delicate Interplay”: Resolving The Contract/Corporate Law Tension In Mergers, Celia R. Taylor

Sturm College of Law: Faculty Scholarship

Mergers are rampant in the corporate world and are the subject of extensive analysis by courts and commentators. Current analysis of the merger process focuses on the role of corporate law rather than the role of contract law. By overlooking contract law, the prevalent analysis fails to reach a correct resolution of the inherent tension between contractual obligations arising from merger agreements and corporate fiduciary duties governing directors' behavior during the merger process. This Article proposes a superior resolution that properly recognizes and values contractual obligations while upholding corporate fiduciary obligations.

Caught Between Scylla And Charybdis: Law & Economics As A Useful Tool For Feminist Legal Theorists , Darren Bush

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Myths, Miscues, And Misconceptions: No-Aid Separationism And The Establishment Clause, Carl H. Esbeck

Faculty Publications

In neutrality theory the recipients of vouchers, grants, and purchase-of-service contracts are eligible to participate as providers in government social service programs without regard to their religious character. Indeed, religious beliefs and practices are prohibited bases for screening out those who want to be welfare program providers. Notable examples of congressional social service legislation conforming to the rule of religious neutrality are the ‘charitable choice‘ feature imbedded in the Welfare Reform Act of 1996 and the Community Services Block Grant Act of 1998, as well as the provision allowing issuance of child care vouchers to indigent parents in the Child …

Intellectual Property, Contracts, And Reverse Engineering After Procd: A Proposed Compromise For Computer Software, Anthony J. Mahajan

Fordham Law Review

No abstract provided.

Thursday's Child: Litigation Over Possession Of Cryopreserved Embryos As A Call For Legislation, Jennifer Hodges

Santa Clara Law Review

No abstract provided.

Are Consensual Relationship Agreements A Solution To Sexual Harassment In The Workplace?, Alison J. Chen, Jonathan A. Sambur

Hofstra Labor & Employment Law Journal

No abstract provided.

The Sky Is Falling (Or Is It?): International Contracts And The Y2k Problem, Mark B. Baker

Vanderbilt Journal of Transnational Law

Y2K problems at this point in time are reasonably foreseeable due to the amount of attention given the subject. Contracting parties should examine potential Y2K problems arising internally and address them before January 1, 2000. Yet the extent of Y2K problems, be they widespread or solitary occurrences, remains unforeseeable and unpredictable. Even those parties having adequately addressed internal Y2K problems can experience difficulties due to external parties having failed to become Y2K-compliant. This "second tier" of unforeseeability supports the use of excused performance, but the "first tier" foreseeability that Y2K problems potentially exist prevent viable use of the defense. In …

The Law Of Contract And The Concept Of Change: Public And Private Attempts To Regulate Modification, Waiver, And Estoppel, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Recent Significant Cases Affecting Farmout Agreements, John S. Lowe

Faculty Journal Articles and Book Chapters

As this author observed in 1987, farmors' and farmees' mutual interest in maximizing available tax benefits causes the structure of farmout agreements to be very much the same, or at least fall into discernable patterns. Farmout substantive provisions, however, vary widely. The difference in substantive provisions results in part from the different goals that farmors and farmees seek when they enter into agreements. In part, the differences are reflexive; once one encounters a problem, one drafts to avoid it in the future. In part, also, the differences show the creativity of American businessmen and their lawyers in deal-making.

The cases …

Construction Contract Damages: The “Measured Mile” Methodology, Steven C. Bennett

Touro Law Review

No abstract provided.

An Economic Analysis Of The Guaranty Contract, Avery W. Katz

Faculty Scholarship

Guaranty arrangements, in which one person stands as surety for a second person's obligation to a third, are ubiquitous in commercial transactions and in commercial law. In recent years, however, scholarly attention to the topic has been scant; and no one has systematically analyzed this body of law and practice from an economic policy perspective. Accordingly, this Article attempts to outline the basic economic logic underlying the guaranty relationship, and applies the results to a variety of specific issues in government policy and private planning. It poses and answers three main questions: First, why would a creditor prefer to make …

Personal Jurisdiction In Cyberspace: Something More Is Required On The Electronic Stream Of Commerce, Howard B. Stravitz

South Carolina Law Review

No abstract provided.

Is There A Duty To Negotiate In Good Faith?, Michael Philip Furmston

Research Collection Yong Pung How School Of Law

One of the most interesting questions concerning modern contract lawyers is whether, and if so when, there may be a duty on parties to a contract to negotiate in good faith? This may seem an odd question for an English lawyer to raise, granted the refusal of the House of Lords in Walford v. Miles [1992] 2 A.C. 128 to recognise even the effectiveness of an agreement to negotiate in good faith but this case has not escaped cogent criticism (Neill (1992) 108 L.Q.R. 405) and it rests on an axiom (that this is a duty which cannot be enforced) …

Your Place Or Mine: The Enforceability Of Choice-Of-Law/Forum Clauses In International Securities Contracts, Jon A. Jacobson

Duke Journal of Comparative & International Law

No abstract provided.

Status Quo Bias And Contract Default Rules , Russell Korobkin

Cornell Law Review

No abstract provided.

Promises Of Silence: Contract Law And Freedom Of Speech , Alan E. Garfield

Cornell Law Review

No abstract provided.

Self-Help In Contract Law: An Examination And Proposal, Celia R. Taylor

Sturm College of Law: Faculty Scholarship

Contrary to the common perception that Americans are overly litigious, many disputes never reach the court room. One reason for this is the availability of self-help--actions taken without recourse to third party intervention. The author explores self- help doctrine in American commercial law. Specifically, she considers the availabilityof self-help under the Uniform Commercial Code and the Restatement (Second)of Contracts. She shows that self-help is widely supported in these sources but that in practice it is not properly understood or applied. She argues that self-help should be encouraged uniformly in all commercial transactionsand suggests an addition to existing statutes that would …

Ipse Dixit: The Restatement (Second) Of Contracts And The Modern Development Of Contract Law, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This article considers how courts have responded to the inclusion of six innovative rules in the Restatement (Second) of the Law of Contracts. It observes that most courts simply have deferred to the new rules. In the vast majority of cases, courts gave no reasons for their decisions to embrace the six rules. They simply cited them as they would cite a statute or code and did not question their authority. This practice raises an important normative question: Should courts follow the Restatement (Second) as readily as they currently do? The article concludes that, although some arguments counsel against deference …

The Tale Of A Tail, James F. Hogg

Faculty Scholarship

The commercial general liability insurance industry shifted, in 1986, from the use of an “occurrence-based” to a “claims-made” policy form. So-called “tail” or “long tail” claims have continued nevertheless, to be asserted under the older “occurrence” policies which required that injury occur during the term of the policy, but not that the claim for such injury be made or brought at any particular time. In seeking state approval to use the new “claims-made” form in 1985-86, the insurance industry represented that the new form would not affect coverage under the old “occurrence” form. Despite that representation, insurers are now asserting, …

Definite And Substantial Reliance: Remedying Injustice Under Section 90, Gerald Griffin Reidy

Fordham Law Review

No abstract provided.

Are Statutes Really "Legislative Bargains"? The Failure Of The Contract Analogy In Statutory Interpretation, Mark L. Movsesian

Faculty Publications

Recent scholarship draws an analogy between contract and statutory interpretation. In this Article, Professor Movsesian explores and rejects that analogy. There are key differences between contracts and statutes, he argues; the intentionalism of contemporary contract law is inappropriate in the context of statutory interpretation. After critically examining the literature on the topic and demonstrating the operative distinctions between contracts and statutes, Professor Movsesian provides a useful illustration in the form of the famous case of Church of the Holy Trinity v. United States. Professor Movsesian shows how a comparison of contract and statutory interpretation sheds light on a number of …

Bloomer Girl Revisited Or How To Frame An Unmade Picture, Victor P. Goldberg

Faculty Scholarship

Nearly all contracts casebooks feature the saga of Shirley MacLaine's suit against Twentieth Century Fox arising from the cancellation of the proposed film Bloomer Girl. None really get the story right. To be fair, none try. The case is a vehicle for exploring the obligation of the victim of the breach of an employment contract to take alternative employment. If MacLaine refused an offer of alternative employment that was not "different and inferior," her failure to mitigate would mean that the earnings she would have received would be offset against the damages; so, asked the court, was the alternative …

Contingency Fees May Be Hazardous To Your Health: A Constitutional Analysis Of Congressional Interference With Tobacco Litigation Contracts, Kris W. Kobach

South Carolina Law Review

No abstract provided.

Continuity For Transatlantic Commercial Contracts After The Introduction Of The Euro, Rebecca H. Marek

Fordham Law Review

No abstract provided.

Notice And Notification Under The Revised Uniform Partnership Act: Some Suggested Changes, J. Dennis Hynes

Publications

This Article addresses the decision by the drafters of the revised Uniform Partnership Act (1996) (RUPA) to reduce the traditional defenses available to partnerships in apparent authority cases. RUPA eliminated the requirement that apparent authority claims against a partnership be based on the claimant's reasonable expectations. Under RUPA a partnership is liable for a partner's unauthorized act even when the claimant had reason to know the act was unauthorized. A defense based on the claimant's knowledge is effective only when the claimant actually knows--is cognitively aware--that the act was unauthorized. This Article argues that this places an unfair burden on …

Intervention And Joinder As Of Right In International Arbitration, S. I. Strong

Vanderbilt Journal of Transnational Law

For the purpose of this Article, an existing party is said to have a claim to join a third party into an arbitration as of right when (1) in the third party's absence, complete relief cannot be accorded among those already parties to the arbitration or (2) the third party asserts an interest relating to the subject of the arbitration and is so situated that the disposition of the arbitration in the third party's absence may (a) as a practical matter impair or impede the third party's ability to protect that interest or (b) leave any of the persons already …