Law Commons^™

Brief For Respondents, Green Tree Financial Corp. V. Bazzle, No. 02-634 (U.S. Mar. 27, 2003), ., Cornelia T. Pillard

U.S. Supreme Court Briefs

No abstract provided.

The Functions Of Transaction Costs: Rethinking Transaction Cost Minimization In A World Of Friction, David M. Driesen, Shubha Ghosh

College of Law - Faculty Scholarship

This article critically examines the goal of minimizing transaction costs, including the costs of legal decision-making. This goal permeates the law and economics literature and has profoundly influenced public policy. While most transaction cost scholarship has focused upon private law, this influence has been especially pervasive in public law, where it has contributed to a variety of legal changes aimed at reducing public transaction costs, often through privatization.

We argue that transaction costs perform useful functions. They frequently enable those engaging in transactions to obtain information needed to correct for information asymmetries or inadequate information. They facilitate efficient transactions, allow …

Critical Interventions: Toward An Expansive Equality Approach To The Doctrine Of Good Faith In Contract Law, Emily Houh

Faculty Articles and Other Publications

This article argues that courts should use the doctrine of good faith in contract law to prohibit improper considerations of race in contract formation and performance, and should recognize good faith as a device for eliminating racial subordination that can function beyond the scope of conventional civil rights discourse. Although civil rights laws provide important remedies to victims of discrimination, the elimination of racial subordination cannot remain the exclusive domain of civil rights law. Rather, other substantive areas of law can and should incorporate expansive equality principles to achieve that end. For example, this article demonstrates how the implied obligation …

The Fiction Of Freedom Of Contract - Nursing Home Admission Contract Arbitration Agreements: A Primer On Preserving The Right Of Access To Court Under Florida Law, Robert Hornstein

St. Thomas Law Review

The primary purpose of this article is to provide a litigation paradigm on how the use of compelled nursing home arbitration agreements in Florida can be successfully challenged and a patient's right of access to the courts preserved. This article includes an examination of the use of compelled arbitration agreements under Florida law and their treatment by the courts. It also includes an analysis of how Florida's courts have generally responded to the widespread use of arbitration provisions. Further, it contains a review of the defenses available under Florida law that can be used to defend against compelled arbitration provisions. …

Accrued Financial Services, Inc. V. Prime Retail, Inc.: Resurrecting Barratry Imposes Detour On Road To Modernization Of Maryland Contracts Jurisprudence, Ross Q. Panko

Maryland Law Review

No abstract provided.

The Future Of Electronic Contracts In International Sales: Gaps And Natural Remedies Under The United Nations Convention On Contracts For The International Sale Of Goods, Jennifer E. Hill

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Legal Considerations For Sponsorship Contracts Of Olympic Athletes, Leigh Augustine-Schlossinger

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Centuries Of Contract Common Law Can't Be All Wrong: Why The Uma's Exception To Mediation Confidentiality In Enforcement Proceedings Should Be Embraced And Broadened, Peter Robinson

Journal of Dispute Resolution

The National Conference of Commissioners on Uniform State Laws and House of Delegates of the American Bar Association recently approved the Uniform Mediation Act ("UMA") with an eye toward unifying the law of mediation confidentiality in the United States. Soon, numerous states and other organizations will consider modifying statutes, court rules, or professional standards to conform to the UMA. One of the important aspects of mediation confidentiality is how it applies when enforcing a mediated agreement.' In some jurisdictions, mediation confidentiality interferes with the application of contract law when enforcing a mediated agreement to produce absurd results. This article will …

Corbin And Fuller's Cases On Contracts (1942?): The Casebook That Never Was, Scott D. Gerber

Fordham Law Review

No abstract provided.

Transactional Mediation: Using Mediators In Deals, Scott Peppet

Publications

This article addresses whether third-party mediators could be helpful in deal-making, just as they are in resolving disputes. It makes a theoretical case for such use of mediators and presents preliminary evidence that transactional mediation already is taking place.

Contractarian Economics And Mediation Ethics: The Case For Customizing Neutrality Through Contingent Fee Mediation, Scott R. Peppet

Publications

No abstract provided.

Idea Men Should Be Able To Enforce Their Contractual Rights: Considerations Rejecting Preemption Of Idea-Submission Contract Claims, Celine Michaud, Gregory Tulquois

Vanderbilt Journal of Entertainment & Technology Law

It is a long-standing and general rule that ideas are "free as the air" as Justice Brandeis eloquently stated in the dissent to the seminal case International News Service v. Associated Press.' This axiom of copyright law expresses the idea that copyright does not protect ideas but only protects the expression of ideas in a work. The distinction between unprotected ideas and protected expression is often referred to as the idea-expression dichotomy...

The principle of the idea-expression dichotomy was initially stated in Baker v. Selden, and later cases further articulated this principle, so that it has become one of the …

Closing The Deal In Contracts: Introducing Transactional Skills In The First Year, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Closing The Deal In Contracts: Introducing Transactional Skills In The First Year, David V. Snyder

Articles by Maurer Faculty

No abstract provided.

Unconscionable Lawyers, Paul D. Carrington

Georgia State University Law Review

No abstract provided.

A Right Without A Potent Remedy: Indiana's Bad Faith Insurance Doctrine Leaves Injured Third Parties Without Full Redress, Gregory A. Bullman

Indiana Law Journal

No abstract provided.

An Analysis Of The Duty To Negotiate In Good Faith: Precontractual Liability And Preliminary Agreement, Aarti Arunachalam

LLM Theses and Essays

Good faith is one concept that defies a clear definition and courts have struggled to understand and establish its scope and ambit. This paper just seeks to analyze the scope of the duty of good faith as understood at the stage when actually no contract has been formed. Despite considerable support for the existence of a duty of good faith, courts in US have not been very receptive in recognizing the duty of good faith especially in the precontractual stage, especially when parties enter into preliminary agreement. Courts have relied on the a number of factors to determine the enforceability …

Nit-Picking Or Significant Contract Choices?-Part Iii, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

In the March "Scrivener," I quoted three examples of revisions proposed in a lease negotiation that were characterized by one reader as "nit-picking." In the June article, I summarized the general responses I received about nit-picking from a number of readers. Two of those readers were kind enough to give me very specific feedback about the three clauses listed in the March article. This article addresses each clause individually to provide help to other readers with their negotiations. Overall, these readers concluded that each of the proposed revisions listed raised legitimate concerns for their clients that were worth discussing with …

Nit-Picking Or Significant Contract Choices?-Part Ii, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

The March 2002 Scrivener asked readers for feedback about how to distinguish nit-picking from requests for significant word changes in an agreement. The majority of respondents believed that the examples provided in the March article raised legitimate concerns. The July 2002 Scrivener will address those specific revisions quoted in the March article. This June article focuses on readers' general comments about crafting agreements to avoid nit-picking.

An Efficiency Analysis Of Contracts For The Provision Of Telephone Services To Prisons, Justin Carver

Federal Communications Law Journal

As the numbers of prisons and prisoners continue to increase, so does the market for prison services. One of the more lucrative segments of this industry is the telephone market. To the extent that the services are provided to the prisoners, the relationship resembles a third party beneficiary contract, but due to the perverse financial incentives and the political climate surrounding prisons and prisoners, neither the state nor the private entity acts in the best interests of the consumers in particular or of society in general. This Article will analyze the efficiency of these contracts, introduce alternate arrangements, and compare …

Liability Of Design Professionals For Purely Economic Loss In South Carolina, Jody Bedenbaugh

South Carolina Law Review

No abstract provided.

An Ivy League Mystery: The Lost Papers Of Arthur Linton Corbin, Scott D. Gerber

South Carolina Law Review

No abstract provided.

Leveling The Playing Field: Applying The Doctrines Of Unconscionability And Condition Precedent To Effectuate Student-Athlete Intent Under The National Letter Of Intent, Michael J. Riella

William & Mary Law Review

No abstract provided.

Nit-Picking Or Significant Contract Choices?-Part I, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Because I practiced primarily as a transactional lawyer for the eight years before I started teaching, I can sympathize with both sides of this dilemma. In practice, I ran across two alternative approaches to elases or contracts: the short "gentlemen's agreement" and the comprehensive agreement.

Rules For Interpreting Incomplete Contracts: A Cautionary Note, Steven L. Harris

All Faculty Scholarship

No abstract provided.

Rational Expectations Of Leniency: Implicit Plea Agreements And The Prosecutor’S Role As A Minister Of Justice, Eli Paul Mazur

Duke Law Journal

No abstract provided.

Symposium In Memory Of David H. Vernon: An Introduction, Mark D. Janis, Hillary A. Sale

Articles by Maurer Faculty

No abstract provided.

Ending A Mud Bowl: Defining Arbitration’S Finality Through Functional Analysis, Amy J. Schmitz

Faculty Publications

The Federal Arbitration Act (FAA) and Uniform Arbitration Act (UAA), on the state level, prescribe a nearly identical procedural and remedial scheme for promoting independent, self-contained arbitration. To that end, both acts curtail courts' review of arbitration awards, by limiting the grounds for vacating awards to those aimed at ensuring only basic procedural fairness. Nonetheless, seemingly "pro-arbitration" impulses have driven some courts' eager application, or misapplication, of the FAA/UAA statutory scheme to enforce dispute resolution agreements that reject the acts' limited review prescriptions. This Article tackles this arguable abuse of the FAA/UAA scheme, by proposing a functional analysis for defining …

The New Contract: Welfare Reform, Devolution, And Due Process, Christine N. Cimini

Articles

This Article analyzes the due process implications of the change in welfare administration from a federal statutory entitlement model to the devolved contractual model and posits that, despite the changes, due process protections still exist. These protections arise from the private law of contracts on two different levels. The first level is the macro, or implied, contract, that I refer to as the social contract between the government and the populace. The existence of this social contract is evidenced in numerous sources including: political theories that explore the use of governmental authority; foundational democratic legal sources, such as the Declaration …

Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz

Articles

Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.

The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect …