Law Commons^™

Kill The Monster: Promissory Estoppel As An Independent Cause Of Action, Susan Lorde Martin

William & Mary Business Law Review

Contract rules may be dissolving into tort-type notions of unfairness and injustice. Traditionally, promissory estoppel was viewed as a substitute for consideration in situations where promisors made promises knowing that promisees would act in reliance on them, the promisees did act on the promises, and the promisors refused to do what they promised to do, to the promisees’ detriment. The purpose of promissory estoppel was clearly one of fairness and preventing injustice by enforcing a promise not supported by consideration in very limited circumstances. In recent cases, however, courts have been approving the use of promissory estoppel as an independent …

Protecting Brand Image Or Gaming The System? Consumer “Gag” Contracts In An Age Of Crowdsourced Ratings And Reviews, Lucille M. Ponte

William & Mary Business Law Review

Traditionally, businesses developed and controlled brand image through company-sponsored advertising and marketing campaigns. With the rise of social media, brand communications have become more interactive, especially on crowdsourced review sites. This increased interactivity helps companies to gain valuable insight into the consumer experience and to improve their brand image and customer engagement. Businesses soon learned that positive consumer ratings and reviews often translated into enhanced brand reputation and increased revenues. Some merchants and professionals seek to burnish their brand image by paying for positive reviews while others try to silence disgruntled customers through adhesive nondisparagement clauses. These gag clauses may …

Colorado Acequia Handbook: Water Rights And Governance Guide For Colorado's Acequias, Jens Jensen, Peter D. Nichols, Ryan Golten, Sarah Krakoff, Sarah Parmar, Karl Kumli, Jesse Heibel, Blake Busse, Karoline Garren, Julia Guarino, Megan Gutwein, Cori Hach, Melissa S. Jensen, Shannon Liston, Gunnar Paulsen, Nate Miller, John R. Sherman, Dan Weiss, Michael Weissman, Emily Neiley, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Gates Family Foundation, Rocky Mountain Mineral Law Foundation, Sangre De Cristo National Heritage Area, Sangre De Cristo Acequia Association, Colorado Open Lands

Books, Reports, and Studies

51 pages (includes 1 color map)

Introduction -- Definitions -- Water rights -- Change of water right -- Transfers of water rights -- Water sharing agreements -- Losing your water rights ("use it or lose it") -- Preventing the transfer of water out of the acequia -- Conservation easements -- Governing the acequia -- Assessments -- Easements -- Enforcement -- Tort liability -- Water quality -- The Rio Grande Compact -- Main government water entities -- Where can an acequia get legal assistance? -- Appendix I. Water rights : frequently asked questions -- Appendix II. Acequia bylaws : frequently asked …

The Regression Of "Good Faith" In Maryland Commercial Law, Lisa D. Sparks

University of Baltimore Law Forum

“Good faith,” in the affirmative or as the absence of bad faith, has always been a challenge to define and judge as a matter of conduct, motive, or both. Different tests apply a subjective standard, an objective standard, or even a combination of the two. Some parties may be held to different expectations than others. This determination of good faith has always been fact-driven and somewhat transcendental. Until recently, however, the question invoked a construct of fairness, resting on a two-pronged metric, at least insofar as several key titles of the Maryland Uniform Commercial Code were concerned. Since June 1, …

Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz

Faculty Publications

Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of “law in action.” In recognition of that contribution, this Article focuses on law in action with respect to consumers’ quest to obtain remedies regarding their business-to-consumers (“B2C”) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access …

Why U.S. States Need Pension Waiver Credits, Randall K. Johnson

Faculty Works

This article identifies a novel approach to public pension reform, which takes into account existing political and legal constraints. It does its work in four key ways. First, the article encourages better use of public sector resources by calling for the elimination of public pension inefficiencies. Next, it explains how to reduce public pension inefficiencies, on a prospective basis, by moving away from defined-benefit pension plans. Third, the article describes one way to move beyond defined-benefit pension plans through the creation of a new tax expenditure program (specifically, a Pension Waiver Credits Program). Finally, it explains how to implement this …

College Football Coaches’ Pay And Contracts: Are They Overpaid And Unfairly Treated?􀀃, Randall Thomas, Lawrence Van Horn

Indiana Law Journal

College football coaches’ employment contracts and compensation garner public attention and scrutiny in much the same way as those of corporate CEOs. In both cases, the public perception is that they must be overpaid and pampered. Economic theory claims that for coaches and CEOs to be overpaid, they must be receiving compensation in excess of the value they create for their organizations. However, both receive pay-for-performance compensation, which structurally aligns their compensation with value creation. This means we need to examine the underlying structure of the contract that gives rise to the observed compensation to determine whether they are appropriately …

Contract Development In A Matching Market: The Case Of Kidney Exchange, Kimberly D. Krawiec, Wenhao Liu, Marc L. Melcher

Faculty Scholarship

We analyze a new transplant innovation — Advanced Donation, referred to by some as a kidney “gift certificate,” “layaway plan,” or “voucher — as a case study offering insights on both market and contract development. Advanced Donation provides an unusual window into the evolution of the exchange of a single good — a kidney for transplantation — from gift, to simple barter, to exchange with a temporal separation of obligations that relies solely on trust and reputational constraints for enforcement, to a complex matching market in which the parties rely, at least in part, on formal contract to define and …

The Will As An Implied Unilateral Arbitration Contract, E. Gary Spitko

Faculty Publications

A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator’s provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by her contest, seeks to increase her inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that the will is not a contract and the opposition to enforcement of …

Zygote Zeitgeist: Legal Complexities In The Expanding Practice Of Embryo Donation, Noah Geldberg

Loyola of Los Angeles Law Review

In recent decades, individuals and couples facing the issue of infertility have been able to achieve parenthood through advances in assisted reproductive technology (ART), such as embryo donation. This Article evaluates the current law governing embryo donation, considers the different approaches courts and legislatures have taken to regulate embryo donation, and advocates for an approach that best balances the policy arguments underlying those approaches. Ultimately, this Article argues that contract law, rather than laws surrounding adoption, should govern embryo donations. This Article further argues that state legislatures should clarify the effectiveness of contract law within the field of embryo donation …

The Ethics Of Non-Traditional Contract Drafting, Lori D. Johnson

Scholarly Works

A new generation of contract drafters faces increasing commentary advising them to change traditional contract terms into plain language constructions. Yet, traditional, tested terms have consistent meanings, and when these meanings benefit client objectives, advocates should consider retaining them. This article posits that failing to do so can impact a lawyer’s ethical obligations. Specifically, an attorney’s duties of competence, allocation of authority, diligence, and communication under the Model Rules of Professional Conduct require careful thought about modernizing tested contract terms. These duties require the ethical drafter to research whether the use of a traditional, tested term advances a client goal …

Public Policy Considerations Concerning Forum Selection Clauses In Insurance Contracts, Chad G. Marzen

Saint Louis University Law Journal

No abstract provided.

An App For Third Party Beneficiaries, Alexandra W. Cook, J. Kyle Lowder, Michelle Sonntag

Law Student Publications

Every year, more than 100 reported court opinions consider the question of whether an outsider can sue for damages under a contract made by others-in part because the law is so ambiguous. While contract enforcement by a third party is controlled largely by the facts of the particular case, it also materially depends upon the relevant legal standards. At present, not just the standards, but also the reasons for these standards, are unclear. Eighty years ago, Lon Fuller, a professor teaching contracts at a then-Southern law school, and William Perdue, a student at that school, significantly clarified and improved decision …

Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager

Faculty Scholarship

Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships, …

The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott

Faculty Scholarship

The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be "transcontextual": parties in varied commercial contexts accept the courts' rule …

An App For Third Party Beneficiaries, David G. Epstein

Law Faculty Publications

Every year, more than 100 reported court opinions consider the question of whether an outsider can sue for damages under a contract made by others-in part because the law is so ambiguous. While contract enforcement by a third party is controlled largely by the facts of the particular case, it also materially depends upon the relevant legal standards. At present, not just the standards, but also the reasons for these standards, are unclear. Eighty years ago, Lon Fuller, a professor teaching contracts at a then-Southern law school, and William Perdue, a student at that school, significantly clarified and improved decision …

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

Open Sesame: The Myth Of Alibaba's Extreme Corporate Governance And Control, Yu-Hsin Lin, Thomas Mehaffy

Brooklyn Journal of Corporate, Financial & Commercial Law

In September 2014, Alibaba Group Holding Limited (Alibaba) successfully launched a $25 billion initial public offering (IPO), the largest IPO ever, on New York Stock Exchange. Alibaba’s IPO success witnessed a wave among Chinese Internet companies to raise capital in U.S capital markets. A significant number of these companies have employed a novel, but poorly understood corporate ownership and control mechanism—the variable interest entity (VIE) structure and/or the disproportional control structure. The VIE structure was created in response to the Chinese restriction on foreign investments; however, it carries the risk of being declared illegal under Chinese law. The disproportional control …

Conspiracy As Contract, Laurent Sacharoff

Hofstra Law Faculty Scholarship

This article considers the central concept of criminal conspiracy – the agreement. It shows how both courts and scholars have almost entirely failed to define it. Even more surprisingly, neither discusses how "agreement" in criminal conspiracy compares with the agreement in contract law. Instead, courts have diluted the agreement requirement by substituting "mutual understanding" or "slight connection," leading to uncertainty, unfairness, and a profusion of conspiracy convictions for mere presence or association.

This article argues courts should define agreement, and do so as an exchange of promises between the conspirators to commit a crime. An exchange of promises meets the …

Saturns For Rickshaws: Lessons For Consumer Arbitration And Access To Justice, Peter B. Rutledge

Scholarly Works

Companies are increasingly requiring consumers to agree to arbitrate disputes they may have over the products or services they purchase. Pre-dispute arbitration agreements are controversial especially for consumer disputes, where, it is feared, consumers will not represent themselves and neither will lawyers come forward because of the small stakes involved in individual claims. Dean Rutledge addresses in this chapter whether consumer arbitration processes can be designed to provide greater access to justice for consumers.

The Puzzle Of Family Law Pluralism, Erez Aloni

All Faculty Publications

Family law is succumbing to pluralism. Scholars have celebrated this trend as a desirable outcome of the struggle for marriage equality. And a pluralistic family law seems to offer distinct benefits: more regimes than just marriage, and greater room for choice within each regime (manifest by more types of legally enforceable intrafamilial contracts). This Article exposes counterintuitive facts that lead to a surprising conclusion: the legal changes that scholars tout as increasing pluralism eviscerate the substance of the choices families are permitted to make.

The policies that appear to extend choice within each regime, in fact, mask what I call …

The Corporation As Courthouse, Rory Van Loo

Faculty Scholarship

Despite the considerable attention paid to mandatory arbitration, few consumer disputes ever reach arbitration. By contrast, institutions such as Apple’s customer service department handle hundreds of millions of disputes annually. This Article argues that understanding businesses’ internal dispute processes is crucial to diagnosing consumers’ procedural needs. Moreover, businesses’ internal processes interact with a larger system of private actors. These actors include ratings websites that mete out reputational sanctions. The system also includes other corporations linked to the transaction, such as when American Express adjudicates a contested sale between a shopper and Home Depot. This vast private order offers promise to …

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien

Faculty Scholarship

This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes …

What If Fiduciary Obligations Are Like Contractual Ones?, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay, to appear in Contract, Status, and Fiduciary Law (Miller & Gold, 2016), explores three ways fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, they are not especially revealing. Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of …

“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis, Yuxiang Liu

Maryland Law Review

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …

Case Watch: Royston, Rayzor, Vickery & Williams Llp V. Lopez, Ramona L. Lampley

Faculty Articles

The Texas Supreme Court effectively gave a “thumbs-up” to attorney-client arbitration agreements in Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494 (Tex. 2015), reh’g denied (Sept. 11, 2015). The plaintiff, Frank Lopez, hired Royston, Rayzor to represent him in a divorce. As part of the representation agreement, Lopez agreed to arbitrate any disputes arising out of the attorney-client relationship, but the law firm excluded from the arbitration agreement any claims it might have against Lopez for expenses or fees. Lopez later sued Royston, Rayzor and the firm moved to compel arbitration.

Lopez contended that the arbitration agreement …

From The Editors: Ferguson And Its Impact On Legal Education Symposium, Marc Spindelman, Thomas D. Cobb, Kellye Testy, Kate O'Neill

Journal of Legal Education

No abstract provided.

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Articles

Mandatory pre-dispute arbitration clauses are pervasive in consumer financial and investor contracts—for credit cards, bank accounts, auto loans, broker-dealer services, and many others. These clauses often ill serve households. Consumers are typically presented with contracts on a “take it or leave it” basis, with no ability to negotiate over terms. Arbitration provisions are often not clearly disclosed, and in any event are not salient for consumers, who do not focus on the importance of the provision in the event that a dispute over the contract later arises, and who may misforecast the likelihood of being in such a dispute. The …

What Is A Contract, Sidney W. Delong

South Carolina Law Review

No abstract provided.

Mika V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 71 (Sep. 24, 2015), Kory Koerperich

Nevada Supreme Court Summaries

The court denied extraordinary writ relief from the district court’s decision to compel arbitration between Petitioners and their employer based on a long-form arbitration agreement signed only by the Petitioners, and federal law favoring arbitration agreements.