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Articles 241 - 270 of 328
Full-Text Articles in Common Law
Lewis V. Clarke, Summer L. Carmack
Lewis V. Clarke, Summer L. Carmack
Public Land & Resources Law Review
One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …
Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael J. Yelnosky
Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael J. Yelnosky
Roger Williams University Law Review
No abstract provided.
Foreign Nation Judgments - If State Law Provides For The Enforceability Of Foreign Judgments, The Judgment Is Enforceable Without Determination Of Whether The Arbitration Award On Which It Is Based Is Independently Enforceable Under The Convention On The Recognition And Enforcement Of Foreign Arbitral Awards, John W. Kindt
Georgia Journal of International & Comparative Law
No abstract provided.
The English East India Company And The Modern Corporation: Legacies, Lessons, And Limitations, Philip J. Stern
The English East India Company And The Modern Corporation: Legacies, Lessons, And Limitations, Philip J. Stern
Seattle University Law Review
The English East India Company was first chartered in 1600, endured until the late nineteenth century, and, in a clever act of corporate resurrection, has even recently returned as a global, upmarket retail outlet selling fine foods and commemorative coins. It has also endured in the popular imagination and culture, churning out heroes and villains alike in film, television, and video games. The script writer for a forthcoming BBC miniseries, in which the East India Company stars as the prime antagonist, even noted recently that the Company was like “the CIA, the NSA, and the biggest, baddest multinational corporation on …
Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock
Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock
Faculty Scholarship
No abstract provided.
The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott
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 …
Enforcement Of Forum Selection Agreements In Contracts Between Unequal Parties, Cindy Noles
Enforcement Of Forum Selection Agreements In Contracts Between Unequal Parties, Cindy Noles
Georgia Journal of International & Comparative Law
No abstract provided.
Religious Tribunals And Secular Courts: Navigating Power And Powerlessness, Michelle Greenberg-Kobrin
Religious Tribunals And Secular Courts: Navigating Power And Powerlessness, Michelle Greenberg-Kobrin
Pepperdine Law Review
In this article, the author discusses the ways such as common law, and contracts employed by religious systems for navigating their relationship with legal systems of secular states. Topics discussed include the role of religious contracts in helping religious systems negotiate with secularism, the role of religious contracts in protecting autonomy of religious systems, and the structure of marriage and divorce in Jewish law.
Prove Me Wrong Cases And Consideration Theory, Daniel P. O'Gorman
Prove Me Wrong Cases And Consideration Theory, Daniel P. O'Gorman
Faculty Scholarship
No abstract provided.
The Role Of The Profit Imperative In Risk Management, Christopher French
The Role Of The Profit Imperative In Risk Management, Christopher French
Faculty Scholarship
Risks in the world abound. Every day there is a chance that each of us could be in a car accident. Or, one of us could be the victim of a tornado, flood or earthquake. Every day someone becomes deathly ill from an insidious disease. Our properties are in constant peril—one’s house could catch fire at any time or a tree could fall on it during a storm. Any one of these events could have devastating financial consequences, and they are just a few of the many risks that impact our daily lives. One of the principal ways we manage …
Identifying An Interest In Land Sufficient To Support A Caveat: Salbiah Bte Adnan V Micro Credit Pte Ltd [2014] Sghc 249, Alvin W. L. See
Identifying An Interest In Land Sufficient To Support A Caveat: Salbiah Bte Adnan V Micro Credit Pte Ltd [2014] Sghc 249, Alvin W. L. See
Research Collection Yong Pung How School Of Law
The difficult issue of what constitutes an interest in land sufficient to support a caveat (“caveatable interest”) recently presented itself before the High Court in the case of Salbiah Bte Adnan v Micro Credit Pte Ltd, which concerned a caveat lodged to protect an alleged security interest. The decision deserves the attention of property lawyers for it helpfully addressed various principles of property law relating, directly and indirectly, to the lodgment of caveats.
Subordinate Or Independent, Status Or Contract, Clarity Or Circularity: British Employment Law, American Implications, Harry Hutchison
Subordinate Or Independent, Status Or Contract, Clarity Or Circularity: British Employment Law, American Implications, Harry Hutchison
Georgia Journal of International & Comparative Law
No abstract provided.
The Parol Evidence Rule: A Comparative Study Of The Common Law, The Civil Law Tradition, And Lex Mercatoria, Alberto Luis Zuppi
The Parol Evidence Rule: A Comparative Study Of The Common Law, The Civil Law Tradition, And Lex Mercatoria, Alberto Luis Zuppi
Georgia Journal of International & Comparative Law
No abstract provided.
The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman
The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman
Faculty Scholarship
No abstract provided.
Extrinsic Evidence, Parol Evidence, And The Parol Evidence Rule: A Call For Courts To Use The Reasoning Of The Restatements Rather Than The Rhetoric Of Common Law, Timothy Archer, Shalayne Davis, David G. Epstein
Extrinsic Evidence, Parol Evidence, And The Parol Evidence Rule: A Call For Courts To Use The Reasoning Of The Restatements Rather Than The Rhetoric Of Common Law, Timothy Archer, Shalayne Davis, David G. Epstein
Law Student Publications
This article is an example of what Professor Richard Epstein would call "Contracts small." According to Professor Richard Epstein, "'Contracts small' relates to contract law at the doctrinal level; it focuses on the rules of contract formation and performance; the everyday 'stuff of lawyer's law.' "This article looks to the Restatement of Contracts (hereafter "Restatement") and the Restatement (Second) of Contracts (hereafter "Restatement Second") for answers to the questions raised by the two problems. The Restatements generally have both been praised and condemned for their focus on doctrinal issues-on what Richard Epstein calls the "everyday stuff of lawyer's law." As …
A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye
A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye
IP Theory
No abstract provided.
Innovation In China: Fragmentation, Structured Uncertainty, And Technology Standards, Michael Murphree, Dan Breznitz
Innovation In China: Fragmentation, Structured Uncertainty, And Technology Standards, Michael Murphree, Dan Breznitz
Cardozo Law Review de•novo
This Article discusses the history of China’s attempts to develop indigenous technology standards. A case study is presented on China’s attempts to develop digital optical storage media standards, the failure of which we attribute to fragmentation of production and structured uncertainty in China’s economy. Despite the market failures of China’s domestic standards development efforts, we conclude by highlighting some of the appurtenant benefits they produce for Chinese manufacturers.
Jacques De Werra (Ed.), Research Handbook On Intellectual Property Licensing, Lucie Guibault
Jacques De Werra (Ed.), Research Handbook On Intellectual Property Licensing, Lucie Guibault
Articles, Book Chapters, & Popular Press
In the laws of most jurisdictions in the world, IP licenses are an unnamed form of contract, most often of a hybride nature, for which no specific legal framework exists, save for rare exceptions. As a result, the formation, content and interpretation of IP licences call for the application of relevant norms from numerous other fields of the law, such as contract law, property law, commercial law, consumer law etc. Despite efforts of harmonisation at the international and regional levels, these related areas of the law remain to a large extent nationally determined, influenced by the legal tradition of each …
Contract Law In A Comparative Perspective, Suharnoko Suharnoko
Contract Law In A Comparative Perspective, Suharnoko Suharnoko
Indonesia Law Review
Media reports on cases of the theft of pre-paid pulses taking place nowadays have created a misunderstanding in terms of the appropriate application of criminal law. In the context of existing legal provisions concerning consumer protection as set forth both under the Consumer Protection Law as well as in part under the Telecommunications Law, law enforcement agencies are leaning towards applying general criminal provisions (theft) which, after a careful observation of the Indonesian Criminal Code, in fact do not extend to corporate criminal acts. This paper purports to explain that the currently occurring cases of the theft of pre-paid pulses …
Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French
Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French
Faculty Scholarship
Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …
Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz
Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz
Publications
Businesses and sophisticated parties have long used "contract exchanges," like the Chicago Board of Trade, to obtain a fair price and protect themselves from market volatility. These contract exchanges have greatly benefited both their participants and the public at large, but participation was long limited to a wealthy few. A decade ago, however, Internet websites, including Hotwire and Priceline, brought the power of contract exchanges directly to consumers, allowing regular people to flex their collective bargaining power to obtain low prices on travel services. Even more recently, other such "consumer contract exchanges," including Prosper and MoneyAisle, have organized vibrant markets …
Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock
Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock
Faculty Scholarship
No abstract provided.
Let Us Never Blame A Contract Breaker, Richard A. Posner
Let Us Never Blame A Contract Breaker, Richard A. Posner
Michigan Law Review
Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.
The Common Law Is Not Just About Contracts: How Legal Education Has Been Short-Changing Feminism, Charles E. Rounds Jr.
The Common Law Is Not Just About Contracts: How Legal Education Has Been Short-Changing Feminism, Charles E. Rounds Jr.
University of Richmond Law Review
No abstract provided.
Promissory Estoppel: The Life History Of An Ideal Legal Transplant, Joel M. Ngugi
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 …
Rediscovering The Public Interest: An Analysis Of The Common Law Governing Post-Employment Non-Compete Contracts For Media Employees, Cathy Packer, Johanna Cleary
Rediscovering The Public Interest: An Analysis Of The Common Law Governing Post-Employment Non-Compete Contracts For Media Employees, Cathy Packer, Johanna Cleary
Cardozo Arts & Entertainment Law Journal
No abstract provided.
Common Law, Common Sense: Fiduciary Standards And Trustee Identity, Melanie B. Leslie
Common Law, Common Sense: Fiduciary Standards And Trustee Identity, Melanie B. Leslie
Cardozo Law Review
No abstract provided.
Business Partners As Fiduciaries: Reflections On The Limits Of Doctrine, Robert W. Hillman
Business Partners As Fiduciaries: Reflections On The Limits Of Doctrine, Robert W. Hillman
Cardozo Law Review
No abstract provided.
Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith
Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith
Faculty Scholarship
A central difference between contract and property concerns the freedom to "customize" legally enforceable interests. The law of contract recognizes no inherent limitations on the nature or the duration of the interests that can be the subject of a legally binding contract. Certain types of promises – such as promises to commit a crime – are declared unenforceable as a matter of public policy. But outside these relatively narrow areas of proscription and requirements such as definiteness and (maybe) consideration, there is a potentially infinite range of promises that the law will honor. The parties to a contract are free …
Franchisor Liability For The Torts Of Its Franchisees: The Case For Substituting Liability As A Guarantor For The Current Vicarious Liability, John L. Hanks
Articles
The author reviews the justifications for applying the law of vicarious liability in the franchising context and concludes that its application is often inefficient and arbitrary. He argues that the employee-independent contractor dichotomy used by courts to determine franchisor liability is not well-suited to franchising, where the relationship encompasses both concepts. He proposes that vicarious liability not be applied in the franchising context. Instead, the courts by case law or state legislatures by statute should impose a guarantor status on franchisors that would expose them to liability for the torts of the franchisees only if the franchisee was unavailable to …