Contracts Commons^™

The Continuum Of Contractual Commitment, David Snyder

Scholarly Articles in Law Reviews & Journals

Contracts frequently call for one or more differentiated levels of contractual commitment. Although contractual liability in the common law is said to be strict liability, and a claim that a good attempt was made is said to be no defense, often a party promises only to try. Contract theory in the United States struggles with departures from the paradigm of strict liability, and it has failed to fully consider the continuum of contractual commitment. To encompass the range of assent-based commitment and its consequent liability, U.S. contract theory needs to distinguish more clearly between (1) promises to try, which do …

Outbid By Technicality: How Streaming Services Weaken Legacy Media’S Matching Rights, Arthur Yolles

American University Business Law Review

Contracts for large-scale media distribution, such as those between sports leagues and broadcasting companies, often include matching rights—rights which guarantee a media distributor the ability to continue distributing content for as long as they can match the bids of third parties. These rights grant media distributors security in their relationships with rights-grantors, and they deliver a more predictable viewing experience for consumers. However, it is not always clear what constitutes a "match."

With the rise of streaming and big tech’s infiltration into legacy media strongholds such as live sports, the need to define a match is increasingly relevant. This Comment …

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …

Professors And Company Law: Implications For Academic Freedom, Salar Ghahramani J.D.

American University Journal of Gender, Social Policy & the Law

This Article examines the intersection of company law and academic freedom, specifically exploring how nonprofit universities might invoke corporate and agency law principles to assert breach of fiduciary duty claims when a university could view a professor’s handling of controversial topics or facilitation of provocative class discussions as detrimental to its financial interests or public reputation. Such allegations might arise when universities perceive that these discussions alienate donors, provoke public backlash, or otherwise harm the institution’s standing, thereby framing the professor’s academic choices as potentially disloyal or harmful to the university. While public university professors might argue that the First …

Arbitrator Selection Default Rules, Irene M. Ten Cate

American University Law Review

This Article makes the case for changing the default settings for the selection of arbitrators in international commercial arbitration. For three-member tribunals, the rules of most international arbitration institutions provide that each party picks an arbitrator. The institution or the co-arbitrators then select the tribunal’s president. This prescription, which parties may set aside by agreement, codifies longstanding practices and corresponds to the strong preference of international arbitration insiders. Nonetheless, I argue that arbitration rules should default toward institutional selection of all arbitrators.

Switching the default nudges parties that can’t take full advantage of the arbitrator selection game—due to inexperience, lack …

Silence As Consumer Consent: Global Regulation Of Negative Option Contracts, Kaitlin Caruso, Prentiss Cox

American University Law Review

Worldwide, the “subscription economy” has exploded in recent years, especially among online sellers of consumer goods and services. Although these subscriptions use various contract forms, many have one common feature: the negative option. With a negative option contract, once a consumer has signed up, the contract will continue until the consumer actively reaches out to cancel it. These are wildly popular among sellers, as they create continuous income and put inertia on the sellers’ side. Unsurprisingly, then, consumers complain in great numbers about being trapped in agreements that are easy to sign up for but seemingly impossible to cancel. Even …

A Year In Review: The Federal Circuit's 2023 Government Contract Law Decisions, Sophie Marsh, Taylor Mcdaniels, Allison Moors

American University Law Review

This Article continues previous in-depth reviews of government contract law cases decided by the Federal Circuit and published by the American University Law Review. In 2023, the Federal Circuit clarified the appropriate standard of review, emphasizing that, more likely than not, the Boards of Contract Appeals should apply a de novo standard of review. Additionally, the court set significant judicial precedent by holding that the issues of party standing, timely raising a solicitation defect, and asserting a sum certain are nonjurisdictional. Finally, the court also issued decisions concerning implied-in-fact contracts, excusable delays, and the importance of reporting unallowable costs.

Who Thinks Treaties Are Like Contracts? Not John Marshall, David P. Stewart, Diana A. A. Reisman

American University International Law Review

Courts in the United States are fond of analogizing treaties to contracts. The U.S. Supreme Court has done so on numerous occasions, as have nearly all federal circuit courts. Indeed, the treaty-as-contract trope has permeated U.S. legal discourse since at least the early 1800s when Chief Justice John Marshall wrote in Foster v. Neilson that “[a] treaty is in its nature a contract between two nations, not a legislative act.”

A Contractual Relationship With Environmental Justice, Seema Kakade

American University Law Review

While corporations have long grappled with environmental issues, environmental justice is different. Corporations regularly manage compliance with environmental permits over a polluting facility’s long lifespan. Justice issues, however, are a fast-growing space for corporations as they wrestle with employee, government, customer, and public demands to step up for the communities that are directly impacted by the pollution their facilities produce. This Article explores the relationship between corporate polluters and impacted communities, with a focus on private-ordering tools like contracts. Such a focus enriches environmental justice law’s traditional focus on government decisionmakers, moving instead to corporate decision-making about where, how, and …

Debunking The Efficacy Of Standard Contract Boilerplate: Part V, David Spratt

Scholarly Articles in Law Reviews & Journals

After five installments, we can end our discussion of contract boilerplate. We have slashed the outdated language and emerged as a clear and contemporary legal writer. Be willing to adapt what has worked well in the past because change is the foundation of human ingenuity.

Debunking The Efficacy Of Standard Contract Boilerplate: Part Iv, David Spratt

Scholarly Articles in Law Reviews & Journals

We have belabored the archaic and prohibited use of "said" as a synonym for "the." But this paragraph needs more work. First, the phrase "irrespective of the fact that" is wordy and could be replaced with the plain language alternative of "even though." Second, "one or more of the parties now is, or may become, a resident of a different state" also could be streamlined. The phrase is easy enough to understand but cut to the chase. Replacing this phrase with "either party now or later resides in a different state" does the trick.

Contracting For Process, David Snyder

Scholarly Articles in Law Reviews & Journals

This article introduces the concept of contracting for process and considers when it is likely to be the best contract design. Contracting for process is in widespread use, but it often goes unnoticed. Some characteristics of contracting for process suit it particularly well to situations of uncertainty, including the radical uncertainty that results from fundamental disruptions such as COVID-19. Parties can employ this design for both contracts made or renegotiated during a crisis and for contracts made in ordinary times. The concept articulated here, however, is not confined to contexts of uncertainty or complexity; it can be used to achieve …

Debunking The Efficacy Of Standard Contract Boilerplate: Part Iii, David Spratt

Scholarly Articles in Law Reviews & Journals

There are several things wrong with this paragraph. First, the heading "Knowledge of Residence" is underinclusive, as the paragraph concerns more than where each party lives. A more inclusive and effective heading would be "Knowledge of Contact Information." Second, the introductory phrase is ambiguous, as one could read "for so long as the minor children are less than eighteen years of age" as requiring the parties to exchange information only until one of the parties' children turns 18. Moreover, "eighteen years of age" is archaic and clunky legalese. Keep it simple, solicitors: "eighteen" or "age eighteen" would suffice. Applying these …

Improve Recitals And Consideration Clauses With Plain Language, David Spratt

Scholarly Articles in Law Reviews & Journals

As used in a "WHEREAS" clause, the term "whereas" simply means "considering that" or "that being the case." There is no legal effect to the word "whereas." It, like many other words used in standard contract boilerplate, is left over from some long-forgotten era of legal writing when lawyers used big words and legalese to impress clients with their intelligence and to justify their bills. These times have (or at least should have) passed. Today, documents must be accessible to those who use them: in most cases the clients for whom such documents are drafted.

A Right For Retirement Unconscionable Contracts, The Right (Not) To Associate, And Citizens United, Paul S. Miller

American University Law Review

The doctrine of unconscionable contracts is an equity doctrine. As such, it does not ask whether an agreement is or is not an enforceable contract; legality has no bearing. Rather, the doctrine asks whether it would be it be fit and proper . . . would it be fair . . . for a court to enforce such a contract. Using the doctrine, courts examine whether the price paid for a good or service far outstrips any benefit gained.

What if that price is the surrender of a basic right, the Right (Not) to Associate? The Supreme Court says that …

Debunking The Efficacy Of Standard Contract Boilerplate: Part I, David Spratt

Scholarly Articles in Law Reviews & Journals

Many contracts start with an introductory paragraph like this one: THIS AGREEMENT is made and entered into said 5th day of June, 2020, by and between JOHN JONES (hereinafter referred to as "Jones") and MARY SMITH (hereafter referred to as "Smith"), hereinafter referred to together as "the parties." Where do I find my red pen? There are so many problems with this introduction, I might run out of ink.

The Modernization Of Government Contract Appeals And The Federal Circuit, Jeri Kaylene Somers

American University Law Review

No abstract provided.

Why Choose Ltas? An Empirical Study Of Ohio Manufacturers’ Contractual Choices Through A Bargaining Lens, Juliet P. Kostritsky, Jessica Ice

American University Business Law Review

This Article contributes to recent scholarship regarding Long Term Agreements (“LTAs”) by providing empirical evidence that suppliers are more likely to undertake the costs of an LTA if the transaction requires significant capital expenditures or the potential for large sunk costs. Through a survey of a random group of sixty-three Ohio manufacturers, the Article explores why manufacturers with a full range of contractual and non-contractual solutions might choose one set of arrangements over others.1 It then seeks to link its findings to a broader theory of how parties bargain to solve durable problems under conditions of uncertainty, sunk costs, and …

Year In Review: The Federal Circuit's 2019 Government Contract Law Decisions, Nathaniel E. Castellano

American University Law Review

No abstract provided.

Stay In The Fight With Civility And Professionalism, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

American V. British Rule: The Impact Of James G. Davis Construction Corp. V. Hrgm Corp. On Fee-Shifting Provisions In The Maryland And D.C. Area, Maxwell Terhar

American University Business Law Review

No abstract provided.

Contracting For Human Rights: Looking To Version 2.0 Of The Aba Model Contract Clauses, Sarah Dadush

American University Law Review

No abstract provided.

Private Law Remedies, Human Rights, And Supply Contracts, Jennifer S. Martin

American University Law Review

No abstract provided.

Keynote Address: Modern Supply Chains And Outmoded Contract Law, Alan Schwartz

American University Law Review

No abstract provided.

Dillon's Rule: A Check On Sheriff's Authority To Enter 287(G) Agreements, Gregory Taylor

American University Law Review

No abstract provided.

2018 Government Contract Law Decisions Of The Federal Circuit, Collin Swan, Victor Pham

American University Law Review

No abstract provided.

A Bargaining Dynamic Transaction Cost Approach To Understanding Framework Contracts, Juliet P. Kostritsky

American University Law Review

No abstract provided.

Something Else: Specific Relief For Break Of Human Rights Terms In Supply Chain Agreements, Jonathan C. Lipson

American University Law Review

No abstract provided.

The New Social Contracts In International Supply Chains, David Snyder

American University Law Review

No abstract provided.

The New Social Contracts In International Supply Chains, David Snyder

Scholarly Articles in Law Reviews & Journals

This Article considers, from legal, practical, moral, and policy perspectives, Model Contract Clauses (MCCs) to protect the human rights of workers in international supply chains. The product of the ABA Business Law Section Working Group to Draft Human Rights Protections in International Supply Contracts, the MCCs are an effort to provide companies with carefully researched and well-drafted clauses to incorporate human rights policies into supply contracts (purchase orders, master vendor agreements, and the like). The Article discusses the impetus, goals, and strategies of the MCCs and explains the paradigm of the corporate, operational, and political landscape for which they are …