Law Commons^™

Defendant's Responsibility To Minimize Plaintiff's Loss: A Curious Exception To The Avoidable Consequences Doctrine, Michael Bruce Kelly

South Carolina Law Review

No abstract provided.

Applicability Of Strict Liability Warranty Theories To Service Transactions, B. Ellen Taylor

South Carolina Law Review

No abstract provided.

Compensating Caregiving Relatives: Abandoning The Family Member Rule In Contracts, Jonathan S. Henes

Cardozo Law Review

The law presumes that a person who performs a valuable service for another will be compensated. However, a limited exception to this principle exists when the services are performed between family members. This exception, also known as the family member rule, is a nineteenth century creation that arose from the courts' understanding of the dynamics of the nineteenth century household. However, the household of the nineteenth century has all but disappeared from contemporary society. With the disappearance of this household, the issue that arises is whether the family member rule is still necessary. This Note argues that it is not …

Identifying Horizontal Price Fixing In The Electronic Marketplace, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Sovereignty And Regionalism, Horacio A. Grigera Naón

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Oil And Gas: Roye Realty & Developing V. Watson--An Answer To The Take-Or-Pay Royalty Issue In Oklahoma Or Simply More Confusion?, James Muenker

Oklahoma Law Review

No abstract provided.

Gestation, Intent, And The Seed: Defining Motherhood In The Era Of Assisted Human Reproduction, Malina Coleman

Cardozo Law Review

This Article examines whether legal motherhood should be based on the preconception intentions of the two women who contribute a reproduction function, on genetic contribution, or on gestation. After assessing the costs and benefits that the various rules generate, the Article recommends that intent should be the determinative factor, but only if a system of rules is in place to protect against overreaching in surrogacy agreements. Otherwise, motherhood should be based on gestation alone.

Rethinking A Corporation’S Obligations To Creditors, Steven L. Schwarcz

Cardozo Law Review

No single body of law presently governs a corporation's obligations to creditors. However, disparate laws, starting from different perspectives, contribute to a patchwork of obligations that is poorly understood. Consequently, corporate directors have little guidance when balancing creditor and shareholder rights under corporate restructurings, securitizations, and leveraged transactions.

Commentators who have grappled with this issue focus almost exclusively on the fiduciary duty of a corporation's board of directors to shareholders. Some argue that only shareholders should be entitled to the duty; others argue that the duty should be extended to creditors under various circumstances. This Article maintains that both approaches …

Circuit Court Erie Errors And The District Court's Dilemma: From Roto-Lith And The Mirror Image Rule To Octagon Gas And Asset Securitization, Nikiforos Mathews

Cardozo Law Review

Part I of this Note examines the mistake made by the Tenth Circuit in Octagon Gas. It further discusses the related problem inherent in a district court's belief that it is bound by a circuit court's previous Erie decision in light of the recent Winter Panel decision. Part II demonstrates that, despite the doctrine of precedent, district courts are not invariably bound by the diversity decisions of their circuit courts under the modem Erie doctrine, and therefore, should independently determine the state issues before them. Part III returns to Winter Panel and examines how the District Court of Massachusetts …

International Contracts In European Courts: Jurisdiction Under Article 5(1) Of The Brussels Convention, Herbert Bernstein

Faculty Scholarship

No abstract provided.

Contract And Jurisdiction, Paul D. Carrington, Paul H. Haagen

Faculty Scholarship

No abstract provided.

Drawing The Boundary Between Copyright And Contract: Copyright Preemption Of Software License Terms, Maureen A. O'Rourke

Duke Law Journal

No abstract provided.

Tort In A Contractual Matrix, John G. Fleming

Osgoode Hall Law Journal

This article addresses one aspect of the interface between tort and contract: the way tort law is affected, whether by extending or contracting its reach, by the parties coming together against a contractual structure. Two basic situations are considered. The first concerns the effect of a contractual limitation clause on the tort liability of, or to, a third party such as a subcontractor's to the building owner. The second considers what effect to attribute to a plaintiff's failure to protect himself or herself in advance by contracting against the risk

A New Use For An Old License: Who Owns The Right?, Barbara D. Griff

Cardozo Law Review

In order to establish this referential background, this Note begins in Part I with a look at historic new use cases focusing on whether a grant of dramatic rights included motion picture rights, whether a grant of silent motion picture rights included rights to talkies, and whether motion picture rights included television rights. Part I continues with a survey of the current landscape and provides an overview of cases involving a grant of motion picture or television rights seeking to include videocassette rights when the original contract was signed prior to the invention or popularization of the video cassette recorder …

Is The Pearson Airport Legislation Unconstitutional?: The Rule Of Law As A Limit On Contract Repudiation By Government, Patrick J. Monahan

Osgoode Hall Law Journal

It has long been assumed that Parliament has unlimited power to enact legislation cancelling valid contracts and denying compensation to any persons affected. This paper challenges that conventional wisdom. The author argues that the principle of the rule of law requires that governments be accountable in the ordinary courts for wrongful actions of government officials. This principle is undermined if government is absolved from any liability for breach of a fairly bargained and valid contract. Thus, legislation purporting to abrogate contracts and deny compensation is invalid, since it violates the implied limits on legislative authority associated with the rule of …

Alaska Supreme Court And Court Of Appeals Year In Review 1994, Laura E. Fahey, Steven D. Moore, James P. Ursomarso

Alaska Law Review

No abstract provided.

The Disclosure Obligations Of Partners Inter Se Under The Revised Uniform Partnership Act Of 1994: Is The Contractarian Revolution Failing?, Allan W. Vestal

William & Mary Law Review

No abstract provided.

Relationalism & Consent: Revising U.C.C. § 2-207, Lawrence Kalevitch

University of Miami Business Law Review

No abstract provided.

Cardozo And Posner: A Study In Contracts, Lawrence A. Cunningham

William & Mary Law Review

No abstract provided.

Remedies When Contracts Lack Consent: Autonomy And Institutional Competence, Richard Craswell

Osgoode Hall Law Journal

Autonomy-based theories hold that enforceable contracts require the knowing and voluntary consent of the parties. In defining "knowing" and "voluntary," however, autonomy theorists have paid little attention to the remedy that will be granted if consent is round to be lacking, or to the question of what obligations (if any) will be enforced in place of the unconsented-to contract. In this paper, I expand on Michael Trebilcock's argument that considerations of institutional competence-specifically, the relative ability of courts and private actors to craft acceptable substitute obligations-should sometimes play a key role in defining what counts as "knowing" and "voluntary" consent.

The Idea Of A Public Basis Of Justification For Contract, Peter Benson

Osgoode Hall Law Journal

The essay has two main objects. The first is to take up and to develop certain of the difficulties that Professor Trebilcock finds with autonomy and welfare-based theories of contract law. The essay reaches the conclusion that efficiency, autonomy, and welfare approaches suffer from fundamental and yet qualitatively different kinds of defects. Moreover, in the course of its critical examination of these theories, the essay introduces and makes explicit an ideal of justification which The Limits of Freedom of Contract only implicitly assumes-an ideal of justification which the essay, following the recent work of Rawls, calls a "public basis of …

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Cardozo Law Review

Like many other forms of social thought, legal theory has, over the last quarter century, taken an "interpretive" turn. Recent and contemporary writing on legal hermeneutics may be credited with two sensible but unsurprising claims about legal language.

Hermeneutics And Contract Default Rules: An Essay On Lieber And Corbin, Lawrence A. Cunningham

Cardozo Law Review

The most provocative debate in contemporary contract law scholarship concerns default rule analysis. Dozens of law review articles have been devoted to this, puzzle regarding the manner in which courts do or should fill gaps in incomplete contracts. The timing and course of this debate might have been very different, however, except for an accident of intellectual history.

The Robinson-Patman Act Sections 2(D) And 2(E): Promotional Allowances And The Per Se Rule Of Illegality, Julian Chung

Cardozo Law Review

The Robinson-Patman Act (the "Act"), as part of the antitrust laws, was designed to prevent direct and indirect price discrimination. Specifically, the Act prohibits price discrimination through the use of certain types of discounts granted by sellers to select customers. Sections 2(d) and 2(e) of the Act attempt to further this prohibition by expressly regulating promotional allowances and services. Although Federal Trade Commission ("FTC") enforcement of the sections has declined, private litigation under sections 2(d) and 2(e) of the Robinson-Patman Act has recently been revived. Three recent suits involving the compact disc ("CD") market exemplify this trend. Retailers of CDs …

Judicial Enforcement Of Agreements To Share Winning Lottery Tickets, Matthew J. Gries

Duke Law Journal

No abstract provided.

The Scienter Requirement And Wash Trading In Commodity Futures: The Knowledge Lost In Knowing, Charles R.P. Pouncy

Cardozo Law Review

On September 1, 1990, the Commodity Futures Trading Commission ("CFTC" or "Commission") issued a complaint and notice of hearing in which it alleged, inter alia, that on over sixty occasions during the period of June 23, 1987 through September 17, 1987, brokers on New York City's Coffee, Sugar, and Cocoa Exchange had executed wash trades on behalf of a number of Japanese foreign brokers. Wash trading, which is prohibited by section 4c of the Commodity Exchange Act ("the Act"), consists of the simultaneous purchase and sale of the same number of futures contracts at the same or very similar …

They Came From "Beyond The Pale": Security Interests In Tort Claims, Harold R. Weinberg

Law Faculty Scholarly Articles

"[B]eyond the pale" is how the drafters of Article Nine of the Uniform Commercial Code regarded tort claims. They considered tort claims to be noncommercial assets inappropriate for inclusion as collateral within the scope of a commercial financing statute. Tort claims may not be out-of-bounds much longer. The Article Nine Study Committee of the Permanent Editorial Board for the Uniform Commercial Code recommends expansion of the Article's scope to encompass security interests in claims arising out of tort. This recommendation is significant. Tort causes of action comprise an ever-expanding universe of civil wrongs for which courts afford redress. The owners …

The National Basketball Association And The National Basketball Players Association Opt To Cap Off The 1988 Collective Bargaining Agreement With A Full Court Press: In Re Chris Dudley, Michelle Hertz

Marquette Sports Law Review

No abstract provided.

A Gauntlet For The Glove: The Challenge To English Boxing Contracts, Steve Greenfield, Guy Osborn

Marquette Sports Law Review

No abstract provided.

Severability In Statutes And Contracts, Mark L. Movsesian

Faculty Publications

Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in …