Law Commons^™

Consumer Protection And Social Methods Of Continental And Anglo-American Contract Law And The Transnational Outlook, Andreas Maurer

Indiana Journal of Global Legal Studies

Debates over the content of recent EU directives and U.S. statutory amendments related to consumer protection highlight the importance of such regulation. Criticism calling for a return to freedom of contract in both regions reflects a tension between social ideals related to equality between private parties, and a deep distrust of state intervention and market regulation. With the rise of private sources for transnational commercial standards and practices, there is an opportunity for states to facilitate selfregulation in lieu of producing public substantive regulations. This approach seems to satisfy a well-established need for consumer protection without exacerbating government intervention in …

Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz

Faculty Publications

This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper …

Introduction: Private Ordering In A Globalizing World: Still Searching For The Basics Of Contract, Peer Zumbansen

Indiana Journal of Global Legal Studies

Governing Contracts - Public and Private Perspectives, Symposium. Osgoode Hall Law School, Toronto, November 9-10, 2006

Changing Contract Lenses: Unexpected Supervening Events In English, New Zealand, U.S., Japanese, And International Sales Law And Practice, Luke Nottage

Indiana Journal of Global Legal Studies

This article compares differences in the reasoning underlying contractual relationships between English and New Zealand law and U.S. and Japanese law. It then builds upon an existing framework by adding the notion of didactic formality to identify another important contrast between the laws of these countries. It also discusses how CISG and UPICC fit in to this spectrum. The article concludes by questioning "strong convergence" theory in commercial law worldwide.

Governing Contracts – Public and Private Perspectives, Symposium. Osgoode Hall Law School, Toronto, November 9-10, 2006

The Making Of Transnational Contract Law, Graf-Peter Calliess

Indiana Journal of Global Legal Studies

The definition and creation of contract law is entrenched in a common understanding of the strong role of the modern state in the administration of justice. This article argues that this understanding is currently subject to a fundamental transformation as a result of the increasing demand for legal certainty in cross-border transactions. Traditional concepts of private international law, mainly the law of conflicts and multilateral treaty harmonization, have proven unable to keep pace with globalization, allowing private actors to step in and gain a dominant position in providing legal services to international commerce. The resulting privatization of lawmaking leads to …

Law, Ethics, And International Finance, Lee C. Buchheit

Law and Contemporary Problems

Cross-border financial flows can have dramatic effects on the recipients of the money--for good or for ill. This is particularly true in countries whose economies and capital markets are underdeveloped. Moreover, ethical questions about who should receive cross-border financing, in what amounts, for what purposes, and on what conditions have long engaged the attention of international financial institutions such as World Bank, the International Monetary Fund, and the regional development banks. Here, Buchheit analyzes a difficult area where law and ethics have not yet found a happy coexistence--the problem of odious debts.

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Faculty Publications

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …

The Law Of Society: Governance Through Contract, Peter Zumbansen

Indiana Journal of Global Legal Studies

This paper focuses on contract law as a central field in contemporary regulatory practice. In recent years, "governance by contract" has emerged as the central concept in the context of privatization, domestic and transnational commercial relations, and law-and-development projects. Meanwhile, as a result of the neo-formalist attack on contract law, "governance of contract" through contract adjudication, consumer protection law, and judicial intervention into private law relations has come under severe pressure. Building on early historical critique of the formalist foundations of an allegedly private law of the market, the paper assesses the current justifications for contractual governance and posits that …

Lessons From Florida: Swing Low, Sweet Charity, Michael Flynn

Faculty Scholarship

No abstract provided.

L-J, Inc., V. Bituminous Fire & Marine Insurance Co.: A Comedy Of "Occurrences", James P. Sullivan

South Carolina Law Review

No abstract provided.

Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley

Dalhousie Law Journal

As Professor James Feehan and archivist-historian Melvin Baker describe the circumstances in which the fateful renewal provision of the 1969 Churchill Falls hydro contract was negotiated, they suggest that the legal doctrines of conflict of interest or economic duress might offer a basis upon which the contract, or perhaps the renewal provision, could be impugned. In addition to interesting historical insights, their analysis offers the intriguing possibility that the government of Newfoundland may yet succeed in its long-standing battle to rid itself of its obligations under the grossly disadvantageous Churchill Falls contract.

Legal Determinacy And Moral Justification , Jody S. Kraus

William & Mary Law Review

No abstract provided.

Morality And Contract: The Question Of Paternalism, James Gordley

William & Mary Law Review

No abstract provided.

The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article argues that networks of private contracts serve a public regulatory function in the global environmental arena. These networks fill the regulatory gaps created when global trade increases the exploitation of global commons resources and shifts production to exporting countries with lax environmental standards. As critics of trade liberalization have noted, public responses often are inadequate to address the attendant environmental harms. This Article uses empirical data to examine how private contracting regulates firm behavior, focusing on supply-chain contracting. The Article shows that more than half of the largest firms in eight retail and industrial sectors impose environmental requirements …

The Moral Impossibility Of Contract, Peter A. Alces

William & Mary Law Review

No abstract provided.

The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker

Dalhousie Law Journal

The 1969 Churchill Falls contract between Hydro-Quebec and the Churchill Falls Labrador Corporation has been the subject of political controversy. It has also been challenged in the courts, with appeals reaching to the Supreme Court of Canada. Yet, despite the scrutiny of those court cases, the political rhetoric, and the literature that has been spawned by this matter, an extraordinary element of that contract remains remarkably obscure. It is the contract's renewal clause. At the expiry of the contract's forty-four-year term in 2016, that clause requires an automatic renewal for twenty-five additional years at a fixed nominal price that is …

Introductory Remarks: Contract Law And Morality, Nathan B. Oman

William & Mary Law Review

No abstract provided.

Paying Eliza: Comity, Contracts, And Critical Race Theory, Or 19th Century Choice Of Law Doctrine And The Validation Of Antebellum Contracts For The Purchase And Sale Of Human Beings, Diane J. Klein

ExpressO

During the period before the Civil War, courts in non-slave-holding states were sometimes called upon to enforce contracts for the purchase and sale of human beings (or contracts whose consideration otherwise consisted of human beings), and sometimes did so, for reasons arguably having more to do with inter-state contract law than with the “peculiar institution” itself. What may be more surprising, and more difficult to understand, is that some “Union” courts went on doing so even after the Civil War ended, when substantive changes of law, together with well-established exceptions to general principles favoring out-of-state contract enforcement, made the contrary …

'Prima Paint' Pushed Compulsory Aribitration Under The 'Erie' Train, Richard L. Barnes

ExpressO

As the face of commerce changes, the law usually follows, albeit at some distance. The United States Supreme Court has recently sped the pace. In a line of cases, some old, some recent, but all feeding off of one another, the Court has held that challenges to agreements which contain arbitration provisions must go to the arbitrator first. Courts may hear formational challenges only where they challenge the arbitration provision alone. In the Supreme Court, arbitration, with its vast potential for abuse as well as for good, has found a friend.

The Court’s doctrine of choice, “severability,” raises serious concerns …

The Hidden Harm Of Law And Economics, Daniel I A Cohen

ExpressO

The paper deals with the adverse psychodynamic consequences to an individual and to society, immediately and in the long run, of dissolving individual responsibility for fault as in the doctrine of Law and economics.

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2006-2007, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

In this annual survey, we discuss the electronic contracting cases decided between July 1, 2006 and June 30, 2007. In the article, we discuss issues involving contract formation, procedural unconscionability, the scope of UETA and E-SIGN, and contracts formed by automated agents. We conclude that whatever doctrinal doubt judges and scholars may once have had about applying standard contract law to electronic transactions, those doubts have now been largely resolved, and that the decisions involving electronic contracts are following the general law of contracts pretty closely.

Mapping The New Frontiers Of Private Ordering: Afterword, Martha M. Ertman

Faculty Scholarship

Defining the limits of contract is an important project in contemporary contracts scholarship. Professor Ertman’s Afterword to the University of Arizona symposium on Mapping the Frontiers of Private Ordering situates the symposium papers within a larger positive and normative discourse. Suggesting that “private ordering” better describes the current reach of contractual thinking, she contends that, the symposium papers depart from conventional wisdom by examining the upside of private ordering for have-nots. While some of the contributions warn of dangers to employees and other systemically disadvantaged parties from full throttle contractualization, even the protections by the most skeptical scholar fall comfortably …

The Search Interest In Contract, Joshua A.T. Fairfield

Scholarly Articles

Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation centered view of contract continues to lead courts to try to construe the meaning of the parties where no meaning was negotiated, and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, courts lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the …

Reconciling The Public Policy Exception To Enforcing Contracts With Title Vii's Public Policy On Disciplining Harassers, Stephen Plass

St. Thomas Law Review

This article looks at the evolution of the public policy doctrine and its effects on Title VII when unionized employees are dismissed for harassment. Some writers have questioned whether the Court eliminated the public policy exception by defining it so narrowly. But, the focus of commentary has been on the effects of the Eastern decision in the traditional collective bargaining context where the need to limit judicial involvement is great. However, the public policy doctrine's impact is no longer limited to traditional contract issues that are unregulated. As a result, the doctrine's impact on the operation and goals of Title …

Plain Meaning Vs. Broad Interpretation: How The Risk Of Opportunism Defeats A Unitary Default Rule For Interpretation, Juliet P. Kostritsky

Faculty Publications

The problem of contract interpretation presents courts with significant questions about the nature and methodology of judicial intervention into privately arranged affairs. The court often assumes an active role in interpreting the words of a written contract in part because words have more than one meaning or because a contract is incomplete. When a court chooses amongst variable meanings, or interprets contracts to craft limitations on parties' behavior when express limits do not exist, its choice must be then justified using a framework explored in this essay.

Traditionally, commentators have advocated one of two general approaches to supply the methodology …

Promissory Estoppel: The Life History Of An Ideal Legal Transplant, Joel M. Ngugi

University of Richmond Law Review

This article hopes to accomplish three things. First, it will revisit the historical origins of the doctrine of promissory estoppel in the American law of contracts and the role that Samuel Williston, the Chief Reporter of the Restatement (First) of Contracts ("First Restatement") played in the evolution of the doctrine. The dominant theory is that Williston conceptualized the new promissory estoppel doctrine in a way that retarded and blunted the doctrine shortly after its birth. This theory is adhered to by both critics and proponents of the expansion of promissory estoppel as a ground of promissory obligation. According to both …

Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz

Faculty Scholarship

This article attempts to explain empirically the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as "transaction cost engineers" and "reputational intermediaries." This new model not only helps inform contract theory but also reveals a profoundly different vision than those of existing models for the future of legal education and the profession.

Williston As Conservative-Pragmatist, Mark L. Movsesian

Faculty Publications

In her pathbreaking article, "Restatement and Reform: A New Perspective on the Origins of the American Law Institute, Professor N.E.H. Hull rejects the conventional wisdom about the conservative, even reactionary, character of the First Restatements. The truth, she argues, is more subtle. The Restatements, and the larger ALI project of which they were a part, reflect the "'progressive-pragmatic"' worldview of the law professors most responsible for their creation. These professors were reformers. They rejected the formalism of earlier generations; for them, law was not a conceptual system but a practical tool for promoting beneficial social goals. They tempered their zeal …

A Study Of Division I Assistant Football And Mens' Basketball Coaches' Contracts, Martin J. Greenberg, Jay S. Smith

Marquette Sports Law Review

No abstract provided.

Guerilla Terms, Peter A. Alces

Faculty Publications

No abstract provided.