Contracts Commons^™

Contract Law’S Transferability Bias, Paul Macmahon

Indiana Law Journal

When A makes a contract with B, it comes as no surprise that she is liable to B. If B can transfer her contractual rights to C, A is now liable to C. Parties in A’s position often have strong reasons to avoid being liable to suit by C. Contract law, however, seems determined to minimize and override these concerns. Under current doctrine on the assignment of contractual rights—the focus of this Article—the law often imposes its own preference for transferability on the parties. The law generally assumes that contractual rights are assignable, construes exceptions to that general rule narrowly, …

Law In The Time Of Covid-19, Katharina Pistor

Faculty Books

The COVID-19 crisis has ended and upended lives around the globe. In addition to killing over 160,000 people, more than 35,000 in the United States alone, its secondary effects have been as devastating. These secondary effects pose fundamental challenges to the rules that govern our social, political, and economic lives. These rules are the domain of lawyers. Law in the Time of COVID-19 is the product of a joint effort by members of the faculty of Columbia Law School and several law professors from other schools.

This volume offers guidance for thinking about some the most pressing legal issues the …

Nyc V. Airbnb: New York City's Attempt To Regulate Home-Sharing Platforms And Airbnb's Attempt To Fight Back, Moshe Goldblatt

Cardozo International & Comparative Law Review

The note examines the legal battle between New York City (NYC) and Airbnb over the Homesharing Surveillance Ordinance, arguing that the ordinance violates constitutional rights and federal laws. It suggests that while NYC aims to regulate short-term rentals to address housing issues, the ordinance oversteps by compelling platforms to disclose private information without warrants, infringing on Fourth and First Amendment rights, and violating the Stored Communications Act. The note proposes a balanced approach allowing individuals to rent their homes while curbing commercial exploitation.

Considering Law And Macroeconomics, Anna Gelpern, Adam J. Levitin

Georgetown Law Faculty Publications and Other Works

The worst financial and economic crisis to hit the world’s richest economies since the Great Depression inspired a flood of scholarship that straddled the disciplines of law and macroeconomics. With few exceptions, this crisis scholarship did not set out to build a new interdisciplinary movement and did not claim the legacy of earlier efforts to mine the intersection of law and macroeconomics. What are we to make of this moment ten years on? Could Law and Macroeconomics (#LawMacro for short) be an important new turn in legal and economic thought, a casual interdisciplinary tryst on the margins of a hundred-year …

De Facto Shareholder Primacy, Jeff Schwartz

Maryland Law Review

No abstract provided.

Revisiting The Enforceability Of Online Contracts: The Need For Unambiguous Assent To Inconspicuous Terms, Tom Mozingo

Seattle University Law Review

In determining the enforceability of online contracts, namely those formed from the use of smartphone applications, courts typically look to whether the contract terms were reasonably conspicuous or communicated to the consumer. With the rise of “browse-wrap” contracts, where terms are not directly communicated to the consumer or where the consumer is not required to click the equivalent of an “I agree” button clearly manifesting assent to the terms, courts have inconsistently applied the reasonable communicativeness standard to the detriment of consumers and application developers alike. This Comment will explore the development of browse-wrap contracting jurisprudence and the need to …

Attorney–Client Privilege In Bad Faith Insurance Claims: The Cedell Presumption And A Necessary National Resolution, Klien Hilliard

Seattle University Law Review

Attorney–client privilege is one of the most important aspects of our legal system. It is one of the oldest privileges in American law and is codified both at the national and state level. Applying to both individual persons and corporations, this expanded privilege covers a wide breadth of clients. However, this broad privilege can sometimes become blurred in relationships between the corporation and the individuals it serves. Specifically, insurance companies and those they cover have complex relationships, as the insurer possesses a quasi-fiduciary relationship in relation to the insured. This type of relationship requires that the insurer act in good …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Contractual Arbitrage, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Standard-form contracts are likely to be incomplete because they are not tailored to the needs of particular deals. In an attempt to reduce incompleteness, standard-form contracts often contain clauses with vague or ambiguous terms. Terms with indeterminate meaning present opportunities for strategic behavior well after a contract has been executed. This linguistic uncertainty in standard-form commercial contracts creates an opportunity for “contractual arbitrage”: parties may argue ex post that the uncertainties in expression mean something that the contracting parties did not contemplate ex ante. This chapter argues that the scope for contractual arbitrage is a direct function of the techniques …

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

The textbook model of commercial contracts between sophisticated parties holds that terms are proposed, negotiated and ultimately priced by the parties. Parties reach agreement on contract provisions that best suit their transaction with the goal of maximizing the joint surplus from the contract. The reality, of course, is that the majority of the provisions in contemporary commercial contracts are boilerplate terms derived from prior transactions and even the most sophisticated contracting parties pay little attention to these standard terms, focusing instead on the price of the transaction. With standard-form or boilerplate contracts, this dynamic of replicating by rote the terms …

Some Issues On The Law Of Direct Damages (Us And Uk), Victor P. Goldberg

Faculty Scholarship

When a contract is breached, both U.S. and U.K. law provide that the non-breaching party should be made whole. The Uniform Commercial Code (“UCC”) provides that “[t]he remedies provided by this Act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.” The English version, going back to Robinson v. Harman, is “that where a party sustains a loss by reason of breach of contract, he is, so far as money can do it, to be placed in the same situation, with …

Picking The Low-Hanging Fruit: A Short Essay For Michael Klausner, Ronald J. Gilson

Faculty Scholarship

The articles that comprise this issue of the Journal of Corporation Law were first presented at a conference held at the Wharton School and co-sponsored by Wharton together with Columbia and Stanford Law Schools. The event was organized by my friend Peter Conti-Brown, to whom I am grateful for both the thought and the effort. Standing alone, the thought that the conference was warranted would have been extremely generous. However, anyone who has organized a conference knows that the idea for such events can be exciting, but what follows is an amount of work that had it been anticipated would …

Innovation Versus Encrustation: Agency Costs In Contract Reproduction, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

This article studies the impact of exogenous legal change on whether and how lawyers across four different deal types revise their contracts’ governing law clauses in order to solve the problem that the legal change created. The governing law clause is present in practically every contract across a wide range of industries and, in particular, it appears in deals as disparate as private equity M&A transactions and sovereign bond issuances. Properly drafted, the clause increases the ex ante economic value of the contract to both parties by reducing uncertainty and litigation risk. We posit that different levels of agency costs …

Anticipating Venezuela's Debt Crisis: Hidden Holdouts And The Problem Of Pricing Collective Action Clauses, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

A creditor who asks for stronger enforcement rights upon its debtor’s default will rationally accept a lower interest rate reflecting the greater expected recovery the exercise of those rights provides. Over a dozen studies, however, have failed to document this basic relationship in the context of the collective action clause, a key provision in sovereign bonds. We conjecture that this failure is because enforcing the rights in question requires collective decision-making among anonymous creditors with different interests, impeding market predictions regarding future price effects. The pricing of rights that require collective enforcement thus turns on whether the market observes an …

Rule By Data: The End Of Markets?, Katharina Pistor

Faculty Scholarship

This Article explores data as a source and, in their processed variant, as a means of governance that will likely replace both markets and the law. Discussing data not as an object of transactions or an object of governance, but as a tool for governing others on a scale that rivals that of nation states with their law, seems a fitting topic for a special issue that is devoted to the legal construction of markets. Here, I argue that while it may well be the case that law constitutes markets, markets are not the only way in which economic relations …

Super-Statutory Contracting, Kristelia García

Publications

The conventional wisdom is that property rules induce more—and more efficient—contracting, and that when faced with rigid property rules, intellectual property owners will contract into more flexible liability rules. A series of recent, private copyright deals show some intellectual property owners doing just the opposite: faced with statutory liability rules, they are contracting for more protection than that dictated by law, something this Article calls “super-statutory contracting”—either by opting for a stronger, more tailored liability rule, or by contracting into property rule protection. Through a series of deal analyses, this Article explores this counterintuitive phenomenon, and updates seminal thinking on …

Evolution And Revolution: The Remedial Smorgasbord For Misleading Conduct In Australia, Elise Bant, Jeannie Marie Paterson

FIU Law Review

No abstract provided.

Stay In The Fight With Civility And Professionalism, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across …

The Myth Of Optimal Expectation Damages, Theresa Arnold, Amanda Dixon, Madison Sherrill, Mitu Gulati

Faculty Scholarship

A much-debated question in contract law scholarship is what the optimal measure of damages for breach should be. The casebook answer-drawing from the theory of efficient breach-is expectation damages. This standard answer, which was a major contribution of the law and economics field, has come under attack by theoreticians within that field itself. To shed an empirical perspective on the question, we look at data on the types of damages provisions parties contract/or themselves in international debt contracts. Specifically, we examine issuer call provisions, which are economically equivalent to damages for prepayment, yet not viewed as legally problematic in the …

Bitcoin: Order Without Law In The Digital Age, John O. Mcginnis, Kyle Roche

Indiana Law Journal

Modern law makes currency a creature of the state and ultimately the value of its currency depends on the public’s trust in that state. While some nations are more capable than others at instilling public trust in the stability of their monetary institutions, it is nonetheless impossible for any legal system to make the pre-commitments necessary to completely isolate the governance of its money supply from political pressure. This proposition is true not only today, where nearly all government institutions manage their money supply in the form of central banking, but also true of past private banking regimes circulating their …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Malaysia Historical Salvors Revisited:, John P. Given

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Online Terms As In Terrorem Devices, Colin P. Marks

Maryland Law Review

Online shopping has quickly replaced the brick-and-mortar experience for a large portion of the consuming public. The online transaction itself is rote: browse items, add them to your cart, and check out. Somewhere along the way, the consumer is likely made aware of (or at least exposed to) the merchant’s terms and conditions, via either a link or a pop-up box. Such terms and conditions have become so ubiquitous that most consumers would be hard-pressed to find a merchant that doesn’t try to impose them somewhere on their website. Though such terms and conditions are pervasive, most consumers do not …

Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Turning Wisconn Valley Into The Next Silicon Valley: Reforming Wisconsin Non-Compete Law To Attract High-Tech Employers, Kelly Krause

Marquette Law Review

The July 2017 arrival of Taiwanese tech-giant Foxconn and the

establishment of the Wisconn Valley Science and Technology Park in Wisconsin

reflects a larger trend in the United States to reinvent the nation’s

manufacturing economy with high-tech production. High-tech employers have

substantial interests in retaining employees in order to protect their valuable

proprietary information and market share. Non-compete agreements, also

known as restrictive covenants or covenants not to compete, are often the legal

device used to secure these interests. This Comment argues that to attract and

retain employers in the tech industry, Wisconsin should reform its non-compete

law by adopting …

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Dickinson Law Review (2017-Present)

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement (“DRM”), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

Moral Diversity And Efficient Breach, Matthew A. Seligman

Michigan Law Review

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them …