Contracts Commons^™

Using Contract Law To Resolve Frozen Pre-Embryo Disputes, Allyson Wade

Maryland Law Review

No abstract provided.

Contract's Influence On Feminism And Vice Versa, Martha M. Ertman

Faculty Scholarship

Feminist legal theory has both embraced and rejected contract. While contract-based conceptual and doctrinal tools have improved women’s economic and social status, feminists also critique contract-based reforms for colluding with hierarchies of gender, race and class. This chapter charts influential work on both sides of the contract debate and identifies a third approach that sees contract as a mechanism for law to move away from a hierarchal regime by stopping at a contractual way station en route to a more equal system of public ordering. It concludes by identifying ways that feminist legal theorists have injected feminist insights into traditional …

Upgrading Unconscionability: A Common Law Ally For A Digital World, Babette E. Boliek

Maryland Law Review

No abstract provided.

Perspective: Impracticability And Frustration In A Time Of Covid-19, Michael Van Alstine

Maryland Carey Law

No abstract provided.

De Facto Shareholder Primacy, Jeff Schwartz

Maryland 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 …

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 …

The Error Theory Of Contract, Matthew A. Seligman

Maryland Law Review

Many people have false beliefs about contract doctrine. That pervasive phenomenon has profound practical, theoretical, and normative implications that neither courts nor scholars have recognized. This Article will make three contributions to fill that gap. First, it will establish just how widespread the phenomenon is among non-lawyers. After synthesizing the existing evidence of false beliefs about contract law, it will contribute a new empirical study showing that between one-third and one-half of people falsely believe specific performance rather than damages is the remedy for breach.

The Article will then argue that people’s false beliefs about contract doctrine pose a fundamental …

Shawe V. Elting: The Imperfect Sale Of Transperfect Global, Inc., Sarah M. Samaha

Maryland Law Review

No abstract provided.

In Defense Of The Long Privacy Statement, Mike Hintze

Maryland Law Review

No abstract provided.

Add-On Contract Drafting Workshops, Martha M. Ertman

The Sixth Annual Capital Area Legal Writing Conference

No abstract provided.

“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis, Yuxiang Liu

Maryland Law Review

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …

The Social Life Of Blood, Milk & Sperm, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Traditional Surrogacy Contracts, Partial Enforcement, And The Challenge For Family Law, Mark Strasser

Journal of Health Care Law and Policy

Surrogacy remains controversial. Several states ban commercial surrogacy while several other states permit it, subject to certain conditions. In addition, many state legislatures simply have not spoken to the legality of surrogacy agreements. Courts have addressed whether such contracts are enforceable in individual instances, either as a matter of public policy or, perhaps, because of a claimed breach of contract.

Part II of this Article traces the development of the jurisprudence regarding the enforcement of surrogacy agreements, noting how there seemed to be a consensus within the parameters set by state law. Part III addresses a few recent decisions in …

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Sheppard V. Taylor, 5 Peters 675 (1831): Deception On The High Seas And The Quest For Lost Wages, Steven Zerhusen

Legal History Publications

This Article follows the case of the ship Warren, which set sail in 1806 to take part in illicit trade with the Spanish colonies, unbeknownst to all on board except for the supercargo. After dealing with the suicide of the captain and capture in Concepcion Bay, Chile, the crew languished for years in Spanish prison. After trying for almost 20 years the proceeds of the ship were finally returned to the owners, and the crew filed petition. Not until 1831 was their libel upheld, and wages from their voyage 25 years earlier to be paid to the crew. This article …

From Lord Coke To Internet Privacy: The Past, Present, And Future Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

Contract law is applied countless times every day, in every manner of transaction large or small. Rarely are those transactions reflected in an agreement produced by a lawyer; quite the contrary, almost all contracts are concluded by persons with no legal training and often by persons who do not have a great deal of education. In recent years, moreover, technological advances have provided novel methods of creating contracts. Those facts present practitioners of contract law with an interesting conundrum: The law must be sensible and stable if parties are to have confidence in the security of their arrangements; but contract …

Love And Contracts In Don Quixote, Martha M. Ertman

Faculty Scholarship

Viewing love as a contract seems, initially, like mistaking windmills for giants, or a peasant girl for a grand lady. This chapter seeks, like Don Quixote, to convince readers to suspend their practiced views of everyday relationships in order to see them in a new light. What seems crazy at first glance may come to look as good, and sometimes better, than the more conventional view. As a law professor, I usually write about love and contracts by focusing on legal opinions and statutes, and recently I have added real-life stories from books and newspapers, as well as my …

Drafting Arbitration Agreements: A Practioner's Guide For Consumer Credit Contracts, Nicole F. Munro, Peter L. Cockrell

Journal of Business & Technology Law

No abstract provided.

Consumer Financial Services Arbitration: What Does The Future Hold After Concepcion?, Alan S. Kaplinsky, Mark J. Levin

Journal of Business & Technology Law

No abstract provided.

General Dynamics Corporation V. United States: An Unnecessary Distortion Of The State Secrets Privilege In The Contracting Context, Adam Spiers

Journal of Business & Technology Law

No abstract provided.

From Lord Coke To Internet Privacy: The Past, Present, And Future Of The Law Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds

Maryland Law Review

No abstract provided.

Known And Unknown, Property And Contract: Comments On Hoofnagle And Moringiello, James Grimmelmann

Faculty Scholarship

No abstract provided.

In The Wake Of Coast Federal: The Plain Meaning Rule And The Anglo American Rhetorical Ethic, Kemit A. Mawakana

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Productive Tension Between Official And Unofficial Stories Of Fault In Contract Law, Martha M. Ertman

Faculty Scholarship

Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of …

Copyright Preemption Of Contracts, Christina Bohannan

Maryland Law Review

No abstract provided.

Book Review: Legal Tenderness, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Accrued Financial Services, Inc. V. Prime Retail, Inc.: Resurrecting Barratry Imposes Detour On Road To Modernization Of Maryland Contracts Jurisprudence, Ross Q. Panko

Maryland Law Review

No abstract provided.

Student Versus University: The University's Implied Obligations Of Good Faith And Fair Dealing, Hazel Glenn Beh

Maryland Law Review

No abstract provided.

Of Textualism, Party Autonomy, And Good Faith, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.