Contracts Commons^™

From Langdell To Law And Economics: Two Conceptions Of Stare Decisis In Contract Law And Theory, Jody S. Kraus

Faculty Scholarship

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In …

'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 …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Commercial Law In The Cracks Of Judicial Federalism, Donald J. Smythe

ExpressO

Almost seventy years after the Supreme Court sought to rationalize the American system of judicial federalism in Erie, sales law remains trapped in a pattern more reminiscent of the Swift v. Tyson era. The extraordinarily wide separation of powers in the NCCUSL-ALI uniform law-making process has entrenched Article 2 of the UCC in the status quo. Concurrently, an imbalance between the federal and state courts in the American system of judicial federalism has conferred an unusually wide range of discretion over state commercial law on the federal courts. Ironically, therefore, state sales statutes are being reinterpreted and revised by the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Amir V. The Great Rabbinical Court In Jerusalem, Ayala Procaccia, Mishael Cheshin, Salim Joubran

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of …

The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering For Interoperability Purposes, Daniel Laster

ExpressO

As patent protection has emerged to protect software, courts and commentators have mistakenly focused on copyright law and overlooked the centrality of patent preemption to limit contract law where a mass market license which prohibits reverse engineering (RE) for purposes of developing interoperable products leads to patent-like protection. Review of copyright fair use cases on RE and Congress’s policy favoring RE for interoperability purposes in the Digital Millennium Copyright Act reinforce the case for patent preemption. Also, the fundamental freedom to RE embodied in state trade secret law, coupled with federal patent and copyright law and policies, cumulatively should override …

Harmonizing The Law In Waiver Of Fundamental Rights: Jury Waiver Provisions In Contracts, Wayne Klomp

Nevada Law Journal

No abstract provided.

Contractual Waivers Of A Right To Jury Trial - Another Opinion, Brian D. Weber

Cleveland State Law Review

It is well-settled that arbitration in the employment context is favored by the courts, and that there is a federal policy favoring arbitration agreements, in general. However, jury waivers outside of arbitration in the employment context are still a relatively novel idea in some jurisdictions, despite the fact that an arbitration agreement itself inherently prevents the employee from having a jury trial. The Sixth Circuit Court of Appeals, as well as the Ohio Supreme Court, have yet to determine if jury waivers in employment contracts are binding. This paper will assess contractual jury trial waivers in the employment context as …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

"We Insist! Freedom Now": Does Contract Doctrine Have Anything Consitutional To Say?, Hila Keren

Michigan Journal of Race and Law

This Article first exposes the detachment between contract doctrine and the scattered antidiscrimination norms and analyzes the harmful consequences of this detachment. It then creates an original meeting point between the two bodies of law, one of which is intentionally located within contract doctrine. This point is found by dismantling the dominant concept of "freedom OF contact", and especially by defining and establishing the freedom to make a contract.

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

A Troubling Equation In Contracts For Government Funded Scientific Research: "Sensitive But Unclassified" = Secret But Unconstitutional, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Scholarly Articles in Law Reviews & Journals

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Contracts Of Convenience: Preventing Employers From Unilaterally Modifying Promises Made In Employee Handbooks, Brian T. Kohn

Cardozo Law Review

No abstract provided.

Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur

Indiana Law Journal

No abstract provided.

When Do Claims Challenging A Statute’S Effect On Pre-Existing Contracts Accrue?, Lucia A. Silecchia

Scholarly Articles

No abstract provided.

Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel

Scholarly Works

Insurance law scholars and teachers sometimes feel, with a mixture of paranoia and justification, that insurance law simply does not receive its proper respect in the hierarchy of legal education and law generally.

Consider the law school curriculum. In none of America’s nearly 200 ABA-approved law schools in insurance law a required course. Nor is it considered a course that, although not required, prudent students “must” be sure to take before they graduate (e.g. Evidence, Corporations). Enrollments may be respectable but the class is seldom oversubscribed, even where the law school is located in an insurance hub city. Although other …

Ohio: A Microcosm Of Tort Reform Versus State Constitutional Mandates, Stephen J. Werber

Law Faculty Articles and Essays

Tort reform emanates, for our purposes, from two primary bodies: state judicial and legislative branches. The vast panoply of congressional and regulatory federal action that bears on the protections afforded and rights to recover for persons within their ambit is a subject for another day. Similarly, the rare areas in which the Supreme Court of the United States establishes federal common law are subjects for another day. On a national scale, the impetus for state legislative reform action can be found in a series of landmark decisions that were soon adopted, in largely similar form, by almost all state supreme …

The Marshall Court And Property Rights: A Reappraisal, 33 J. Marshall L. Rev. 1023 (2000), James W. Ely Jr.

UIC Law Review

No abstract provided.

Enforcing Family Promises: Reliance, Reciprocity, And Relational Contract, Melanie B. Leslie

Articles

Courts are willing, in commercial contexts, to enforce promises even without consideration when enforcement supports a norm of reciprocity-a norm which recognizes that promises are seldom totally gratuitous, but are often made in furtherance of reciprocal, long-term, trust-based relationships. In this article, Professor Leslie argues that relational contract principles are firmly embedded in wills law. Courts enforce the reciprocity norm in the family context just as they do in commercial contexts; this enforcement is seen, however, not in breach of promise suits, which occur rarely between family members, but rather in will contests. Despite the prevalent ideology of wills law, …

The Richness Of Contract Theory, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This essay is a review of The Richness of Contract Law: An Analysis and Critique of Conemporary Theories of Contract Law by Robert A. Hillman (1997).

Throughout the book, Hillman offers a number of useful insights about various issues of contract law and theory--as he has in his numerous law review articles--but in this review the author is concerned with his overall theme: a general skepticism about "unifying" or "highly abstract" contract theories that fail to mirror the richness of contract law. In this regard, Hillman stands in the "realist" tradition of the previous generation of contracts scholars. Hillman attempts …

Contracts Clause, Supreme Court, Appellate Division Third Department: B.O.C.E.S. For Sole Supervisory District Of Rockland County V. State Of New York

Touro Law Review

No abstract provided.

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

Gateway Widens Doorway To Imposing Unfair Binding Arbitration On Consumers, Jean R. Sternlight

Scholarly Works

Hill v. Gateway, is but the most extreme example of a series of court decisions that allow large companies to impose potentially unfair binding arbitration agreements on unwitting consumers. The outcome in Gateway, however, is questionable on federal statutory, common law, and constitutional grounds.

Court Of Appeals Ballentine V. Koch (Decided October 22, 1996)

Touro Law Review

No abstract provided.

Nahmani V. Nahmani, Tzevi Eliyahu Tal, Dalia Dorner, Eliezer Goldberg, Yaakov Kedmi, Jacob Turkel, Gavriel Bach, Eliahu Mazza, Tova Strasberg-Cohen, Theodor Or, Itzchak Zamir, Aharon Barak

Translated Opinions

Facts: Ruth and Daniel Nahmani, a married couple, were unable to have a child because of an operation that Ruth underwent. They therefore decided to try in-vitro fertilization of Ruth’s ova with Daniel‟s sperm, with a view to implanting the fertilized ova in a surrogate mother. Under Israeli law, surrogacy was not permitted and in-vitro fertilization was only permitted for implantation in the woman from whom the ova were taken. Because of the great expense of the in-vitro fertilization procedure in the United States, the couple petitioned the Supreme Court, sitting as the High Court of Justice, to allow …

Tortious Interference: The Limits Of Common Law Liability For Newsgathering, Sandra S. Baron, Hilary Lane, David A. Schulz

William & Mary Bill of Rights Journal

Media lawyers have recently been confronted with a relatively new source of litigation: the tort of intentional interference with contractual relations, which arises out of confidentiality agreements. In this Article, the authors identify the elements of tortious interference with contracts and examine the key issues presented when this tort is applied to newsgathering. The authors then consider a potential defense based on the First Amendment. In light of the public and constitutional interests at stake, the authors conclude that the breach of a confidentiality agreement should not sustain a tortious interference claim when the press is involved in newsgathering activity.