Contracts Commons^™

Duality In Contract And Tort, Tim Friehe, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We study situations in which a single investment serves the dual role of increasing the expected value of a contract (a reliance investment) and reducing the expected harm of a post-performance accident (a care investment). We show that failing to account for the duality of the investment leads to inefficient damages for breach of contract and inefficient standards for due care in tort. Conversely, we show that accounting for the duality yields contract damage measures and tort liability rules that provide correct incentives for efficient breach and reliance in contract and for efficient care in tort.

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Brief Of Amicus Curiae Gregory Klass In Support Of Plaintiff-Appellee, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This scholar’s amicus brief in the Fifth Circuit argues that tort remedies play an important role in the contract ecosystem, including promoting efficiency in exchanges; that a party who has been defrauded in the formation of a contract is not bound by contractual limitations on tort liability; and that worries about the tortification of contract law are overblown and out of date.

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law School Faculty Publications

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

Misrepresentation And Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Contract theorists naturally focus on the duty to perform. This chapter argues they should also pay attention to duties of candor in the contracting context. The most obvious example of such duties can be found in the misrepresentation defenses, which aim to ensure that contractual undertakings are sufficiently voluntary and to allocate the costs of defective consent. But other laws of deception, such as the torts of negligent misrepresentation and deceit, are also integral to the law of contracts. Separate liability in tort for both pre- and post-formation misrepresentations helps parties who mistrust one another determine whether an exchange is …

Foreword, Jennifer Taub

Faculty Scholarship

This Foreword highlights the central points of the Articles in Volume 43, Issue 1 of Western New England Law Review. The Article topics include emotional support animals, distribution rights for small beer brewers, fairness in accident insurance coverage, alternative legal education materials, and custody challenges for parents with abusive partners. Each share the identification of a perceived problem with the legal status quo and presents proposed solutions.

Privacy Losses As Wrongful Gains, Bernard Chao

Sturm College of Law: Faculty Scholarship

Perhaps nowhere has the pace of technology placed more pressure on the law than in the area of data privacy. Huge data breaches fill our headlines. Companies often violate their own privacy policies by selling customer data, or by using the information in ways that fall outside their policy. Yet, even when there is indisputable misconduct, the law generally does not hold these companies accountable. That is because traditional legal claims are poorly suited for handling privacy losses.

Contract claims fail when privacy policies are not considered contractual obligations. Misrepresentation claims cannot succeed when customers never read and rely on …

Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker

All Faculty Scholarship

Insurance ideas inform legal thought: from tort law, to health law and financial services regulation, to theories of distributive justice. Within that thought, insurance is conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. This ideal type also supports a restrictive vision of liability-based regulation that opposes expansions and supports cutbacks, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work …

The Cost Of Guilty Breach: Willful Breach In M&A Contracts, Theresa Arnold, Amanda Dixon, Madison Whalen Sherrill, Hadar Tanne, Mitu Gulati

Faculty Scholarship

The traditional framework of United States private law that every first-year student learns is that contracts and torts are different realms—contracts is the realm of strict liability and torts of fault. Contracts, we learn from the writings of Justice Holmes and Judge Posner, are best viewed as options; they give parties the option to perform or pay damages. The question we ask is whether, in the real world, that is indeed how contracting parties view things. Using a dataset made up of one thousand mergers and acquisitions (M&A) contracts and thirty in-depth interviews with M&A lawyers, we find that there …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Neither Contract Nor Tort: Salomon Triumphant?, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

This is a note on three cases: Palmer Birch v Lloyd [2018] 4 WLR 164, Gruber v AIG Management France SA [2018] EWHC 3030 (Comm) and Bumi Armada Offshore Holdings Ltd v Tozzi Srl [2019] 1 SLR 10.

Covid-19 Business Interruption Insurance Losses: The Cases For And Against Coverage, Christopher French

Journal Articles

The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous. Estimates indicate that small businesses have lost $255 to $431 billion per month and more than 44 million workers have been laid off. When businesses have requested reimbursement of their business interruption losses from their insurers under business interruption policies, their insurers have denied the claims. The insurance industry also has announced that business interruption policies do not cover pandemic losses, so they intend to fight COVID-19 claims “tooth and nail.” More than 450 lawsuits throughout the country already have been …

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 …

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 …

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

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 …

Why Police Should Protect Complainant Autonomy, Randall K. Johnson

Faculty Works

This Essay does its work in, at least, three ways. First, it encourages better use of scarce public sector resources by calling for reform of the police complaint intake process. Next, this Essay identifies the causes of police complaint inefficiencies by critically-assessing how intake is done by the Chicago Police Department (CPD). Lastly, it provides guidance about how to achieve CPD intake reform by better protecting complainant autonomy. Complainant autonomy, at least in this Essay, is defined as a real party in interest’s (i.e. an injured citizen’s) right to control how its allegations are framed by a nominal plaintiff (i.e. …

Choosing Medical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law's traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient's agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article …

The Macpherson-Henningsen Puzzle, Victor P. Goldberg

Faculty Scholarship

In the landmark case of MacPherson v. Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v. Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case involving physical injury. This suggests a puzzle: if it were so easy for firms to contract out of liability, did MacPherson accomplish anything?

Concurrent Liability In Tort And Contract, Yihan Goh, Man Yip

Research Collection Yong Pung How School Of Law

This articleexamines the understanding of concurrent liability in tort and contract,through a detailed analysis of the interplay, intersection and independence of thelaw of torts and the law of contract. The central argument that will beadvanced is that the present understanding of the ‘incident rules’ inconcurrent liability in tort and contract, such as the applicable rules ofremoteness or limitation, is inconsistent with the rationale for concurrencelaid down in Henderson v MerrettSyndicates Ltd. Rather than analyse concurrence as a single situation, thatis, conceiving it as a contest between rules of tort or contract rules, we arguethat the better way forward is to …

In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue

All Faculty Scholarship

For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. The Restatement of the Law Liability Insurance is the American Law Institute’s first effort to “restate” the common law governing such liability insurance policies, and we are the reporters. In a recent essay funded by the insurance industry, Yale Law Professor George Priest launched a strident critique of the Restatement project, arguing that the rules adopted in the Restatement:

(a) are radically contrary to existing case law,

(b) have a naïve “pro-policyholder” bias that ignores basic economic insights …

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Journal Articles

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …

Modernizing Informed Consent: Expanding The Boundaries Of Materiality, Nadia N. Sawicki

Faculty Publications & Other Works

Informed consent law’s emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician’s personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, …

Golden Road Motor Inn, V. Islam, Et. Al., 132 Nev. Adv. Op. 49 (Jul. 17, 2016), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court held that non-compete agreements cannot extend further than what is reasonable and necessary to protect the interests of the employer and cannot create an undue hardship on the employee. It also held that courts may not “blue line” (“blue pencil”) contracts, that is change or delete terms to make the Contract legal. The Court further held that altering player contact information, so long as the information can be restored with minimal disruption to the gaming company does not rise to the level of conversion. Finally, the Court held that a gaming company is not liable for …

Culpable Participation In Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

This essay makes a case for the salience of tort law to fiduciary law, focusing on actors who culpably participate in a fiduciary's breach of duty, whether by inducing the breach or lending substantial assistance to it. Although the elements of this accessory tort are relatively settled in the United States, how the tort applies to particular categories of actors-most recently investment bankers who serve as M&A advisors-provokes controversy. The paper also explores the less developed terrain of primary actors who breach governance duties that are not fiduciary obligations because the entity's organizational documents eliminate fiduciary duties, as Delaware law …

Duress As Rent-Seeking, Mark Seidenfeld, Murat C. Mungan

Faculty Scholarship

The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious conduct clearly are wrongful, under the doctrine of “economic duress” courts have held that other threats can be wrongful and hence the basis of a duress defense. Courts, however, have not developed a coherent understanding of what makes such non-criminal and non-tortious threats wrongful.

This Article proposes that a threat should be wrongful when …

The Role Of The Profit Imperative In Risk Management, Christopher French

Journal Articles

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 …

Gatsby And Tort, Robin West

Georgetown Law Faculty Publications and Other Works

The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why?

The first part of …

Protecting Victims From Liability Insurance Companies That Add Gratuitous Insult To Grievous Injury, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

What Boilerplate Said: A Response To Omri Ben-Shahar (And A Diagnosis), Margaret Jane Radin

Law & Economics Working Papers

This essay responds to Omri Ben-Shahar’s review of my book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton 2013). Ben-Shahar’s review (available at: http://ssrn.com/abstract=2255161) unfortunately does not convey the nature of this book to possible readers. His preconceptions – reflecting primarily what I call “old-school Chicago”--apparently caused him to believe that some strong version of “autonomy” was the focus of my book. Instead, the book’s purpose is to gather together a broad range of ideas relevant to boilerplate, in order to encourage readers to consider opportunities for improving our theory and practice. It makes detailed suggestions …