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Articles 1 - 9 of 9
Full-Text Articles in Contracts
One-Legged Contracting, Ian Ayres, Gregory Klass
One-Legged Contracting, Ian Ayres, Gregory Klass
Georgetown Law Faculty Publications and Other Works
This response to Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019), makes three broad points. It criticizes as arbitrary and essentializing Kar and Radin’s insistence of shared meaning as the core of contracting. It argues that even if shared meaning were the sine qua non of contracting, their proposal fails to achieve it because it does not assure that the terms would be cooperatively communicated. And it argues that their proposed enforcement standard would in practice severely limit freedom of contract and likely reduce consumer welfare. There is a …
Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton
Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton
Articles
2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …
Apple V. Pepper: Rationalizing Antitrust’S Indirect Purchaser Rule, Herbert J. Hovenkamp
Apple V. Pepper: Rationalizing Antitrust’S Indirect Purchaser Rule, Herbert J. Hovenkamp
All Faculty Scholarship
In Apple v. Pepper the Supreme Court held that consumers who allegedly paid too much for apps sold on Apple’s iStore could sue Apple for antitrust damages because they were “direct purchasers.” The decision reflects some bizarre complexities that have resulted from the Supreme Court’s 1977 decision in Illinois Brick, which held that only direct purchasers could sue for overcharge injuries under the federal antitrust laws. The indirect purchaser rule was problematic from the beginning. First, it was plainly inconsistent with the antitrust damages statute, which gives an action to “any person who shall be injured in his business …
The Internet Of Torts: Expanding Civil Liability Standards To Address Corporate Remote Interference, Rebecca Crootof
The Internet Of Torts: Expanding Civil Liability Standards To Address Corporate Remote Interference, Rebecca Crootof
Law Faculty Publications
Thanks to the proliferation of internet-connected devices that constitute the “Internet of Things” (“IoT”), companies can now remotely and automatically alter or deactivate household items. In addition to empowering industry at the expense of individuals, this remote interference can cause property damage and bodily injury when an otherwise operational car, alarm system, or implanted medical device abruptly ceases to function.
Even as the potential for harm escalates, contract and tort law work in tandem to shield IoT companies from liability. Exculpatory clauses limit civil remedies, IoT devices’ bundled object/service nature thwarts implied warranty claims, and contractual notice of remote interference …
Data-Informed Duties In Ai Development, Frank A. Pasquale
Data-Informed Duties In Ai Development, Frank A. Pasquale
Faculty Scholarship
Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to …
Boilerplate And Party Intent, Gregory Klass
Boilerplate And Party Intent, Gregory Klass
Georgetown Law Faculty Publications and Other Works
It is commonly recognized that parties often do not read or understand contract boilerplate they agree to, and that such parties might not intend all the terms in it. Less often noticed are decisions that favor boilerplate over evidence of the parties’ contrary intent for the very reason that it is boilerplate. This article discusses that phenomenon. It identifies decisions in which courts favor boilerplate terms over other evidence the parties’ intent because it is boilerplate, discusses the rules that explain those outcomes, and examines the reasons behind the rules.
A contractual writing, whether individually negotiated and drafted or boilerplate, …
Contract Creep, Tal Kastner, Ethan J. Leib
Contract Creep, Tal Kastner, Ethan J. Leib
Scholarly Works
Scholars and judges think they can address the multiple purposes and values of contract law by developing different doctrinal regimes for different transaction types. They think if we develop one track of contract doctrine for sophisticated parties and another for consumers, we can build a better world of contract: protecting private ordering for sophisticated parties and protecting consumers’ needs all at once. Given the growing enthusiasm for laying down these separate tracks and developing their infrastructures, this Article brings a necessary reality check to this endeavor by highlighting for scholars and judges how doctrine in contract law functions in fact: …
The Good, The Bad, And The Ugly Of Online Reviews: The Trouble With Trolls And A Role For Contract Law After The Consumer Review Fairness Act, Wayne Barnes
Faculty Scholarship
The advent of the Internet has brought innumerable innovations to our lives. Among the innovations is the meteoric rise in the volume of e-commerce conducted on the Internet. Correspondingly, consumer-posted information about merchants, goods, and services has also begun to be a rich source of information for consumers researching a purchase online. This information takes many forms, but a major category is the narrative review describing the purchase and experience. Such reviews are posted on websites such as Yelp, Amazon and TripAdvisor, on apps, and on social media such as Facebook and Twitter. The amount and volume of reviews has …
Online Dispute Resolution, Ronald A. Brand
Online Dispute Resolution, Ronald A. Brand
Articles
This chapter was prepared from a presentation given by the author at the 2019 Summer School in Transnational Commercial Law & Technology, jointly sponsored by the University of Verona School of Law and the Center for International Legal Education (CILE) of the University of Pittsburgh School of Law. In the paper, I review online dispute resolution (ODR) by considering the following five questions, which I believe help to develop a better understanding of both the concept and the legal framework surrounding it:
A. What is ODR?
B. Who does ODR?
C. What is the legal framework for ODR?
D. What …