Contracts Commons^™

Remedies: A Guide For The Perplexed, Doug Rendleman

Scholarly Articles

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

Vertical Boilerplate, James Gibson

Washington and Lee Law Review

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate—take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach—i.e., they sample a single stratum of boilerplate and assume that it represents the …

Restitution In A Contractual Context And The Restatement (Third) Of Restitution & Unjust Enrichment, Joseph M. C. Perillo

Washington and Lee Law Review

No abstract provided.

After Frustration: Three Cheers For Chandler V. Webster, Victor P. Goldberg

Washington and Lee Law Review

Performance of a contract can be excused by a number of circumstances, notably impossibility, impracticability, and frustration. When performance is excused there remains the question of how to treat any payments or expenditures that were made prior to the occurrence of the contract-frustrating event. In Chandler v. Webster, the English courts decided over a century ago that the parties should be left where they were at the time of the frustrating event. Forty years later that holding was overturned so that now recovery might be had both for restitution of payments made prior to the event and for expenditures made …

Beyond Ex Post Expediency—An Ex Ante View Of Rescission And Restitution, Richard R.W. Brooks, Alexander Stremitzer

Washington and Lee Law Review

It is commonly held that if getting a contractual remedy was costless and fully compensatory, rescission followed by restitution would not exist as a remedy for breach of contract. This claim, we will demonstrate, is not correct. Rescission and restitution offer more than remedial convenience. Rational parties, we argue, would often desire a right of rescission followed by restitution even if damages were fully compensatory and costless to enforce. The mere presence of a threat to rescind, even if not carried out, exerts an effect on the behavior of parties. Parties can enlist this effect to increase the value of …

Innovative Transactional Pedagogies, Joan Macleod Heminway, Michael A. Woronoff, Lyman P.Q. Johnson

Scholarly Articles

Our law schools are embracing in a more powerful way innovative transactional pedagogies that address not only theory, policy, and doctrine, but also legal skills. This transcribed panel discussion explores three of these pedagogies – teaching corporate finance as advanced contract drafting, teaching numeracy, and teaching substance and skill in contract drafting through the use of in-office meetings and analytical memos – and describes how they are being implemented in law teaching. The panel was part of the “Transactional Education: What’s Next?” conference hosted by the Emory University School of Law’s Center for Transactional Law and Practice on June 4-5, …

Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson

Scholarly Articles

This short article is based on a talk at Emory Law School on Transactional Lawyering. One overall pedagogical aim of a transactional course (or any business contract drafting course) is to link skills training with insistence on in-depth substantive learning about law and business. In this way, skills training – although acknowledged to be practical – also can be recognized as intellectually demanding, a point not always appreciated by proponents of more traditional law teaching. Two techniques for making the connection – in-office meetings and detailed “companion” analytical memos – are described.

Filling In The Blank: Defining Breaches Of Contract Excepted From Discharge As Willful And Malicious Injuries To Property Under 11i U.S.C. § 523(A)(6), Bryan Hoynak

Washington and Lee Law Review

No abstract provided.

Response, The Still-Elusive Quest To Make Sense Of Veil-Piercing, David K. Millon

Scholarly Articles

This paper is an invited comment on Peter Oh's article "Veil-Piercing" published in the Texas Law Review. I make two points. First, I suggest that Oh's exhaustive analysis of the factors cited by courts to justify veil-piercing, like Robert Thompson's before it, does not actually tell us much about what is going on in the cases. For reasons that I explain, the asserted rationales cannot determine the results. Instead, vaguely articulated and poorly understand notions of policy and fairness drive decision making in this area. The law will continue to be obscure and results unpredictable until courts develop a clearer …

The God Paradox, Joshua A.T. Fairfield

Scholarly Articles

Not available.

The Cost Of Consent: Optimal Standardization In The Law Of Contract, Joshua A.T. Fairfield

Scholarly Articles

This article argues that informed consent to contract terms is not a good to be maximized, but is rather an information cost that courts should minimize. The goal of mass-market contract law ought to be to keep costs low by encouraging contract standardization. The article applies information cost theory to show that information-forcing rules are often inefficient at both the micro- and macroeconomic levels. Such rules also impose greater costs on third parties than the benefits they create for the contracting parties. When one consumer creates an idiosyncratic deal, the information-savings benefits of standardization are reduced for all other potential …

Anti-Social Contracts: The Contractual Governance Of Virtual Worlds, Joshua A.T. Fairfield

Scholarly Articles

Virtual worlds have seized the imaginations of millions of people who now live, work, and play together in these new environments. But all is not well. These online communities are ruled nearly exclusively by contract law, through end-user licence agreements, terms of service, and codes of conduct. Contracts are a critical means of helping two (or a few) people negotiate their preferences. But online communities are made up of enormous and shifting populations that have no time or ability to negotiate agreements with every other community member. Relying on contracts alone thus threatens the investments and creativity that go into …

The Failure Of Economic Interpretations Of The Law Of Contract Damages, Nathan B. Oman

Washington and Lee Law Review

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …

The Search Interest In Contract, Joshua A.T. Fairfield

Scholarly Articles

Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation centered view of contract continues to lead courts to try to construe the meaning of the parties where no meaning was negotiated, and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, courts lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the …

Rediscovering Williston, Mark L. Movsesian

Washington and Lee Law Review

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston 's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than commonly supposed. Even the undertheorized quality of Williston 's …

Archer V. Warner: Circuit Split Resolution Or Contractual Quagmire?, Jennifer R. Belcher

Washington and Lee Law Review

No abstract provided.

Could Fair Use Equal Breach Of Contract?: An Analysis Of Informational Web Site User Agreements And Their Restrictive Copyright Provisions, Matthew D. Walden

Washington and Lee Law Review

No abstract provided.

Quantum Meruit For The Subcontractor: Has Restitution Jumped Off Dawson's Dock?, Doug Rendleman

Scholarly Articles

No abstract provided.

Reclaiming The "Creatures Of The State": Contracting For Child Custody Decisionmaking In The Best Interests Of The Family, E. Gary Spitko

Washington and Lee Law Review

No abstract provided.

Freedom Of Contract And The Securities Laws: Opting Out Of Securities Regulation By Private Agreement, Elaine A. Welle

Washington and Lee Law Review

No abstract provided.

Freedom Of Contract, Fiduciary Duties, And Partnerships: The Bargain Principle And The Law Of Agency, J. Dennis Hynes

Washington and Lee Law Review

No abstract provided.

The State As Landlord: The Constitutionality Of The Termination Of Public Housing Leases On Account Of A Tenant's Illegal Activities, Mark Anthony Drumbl

Scholarly Articles

Paragraph 107(l)(b) of the Ontario Landlord and Tenant Act enables landlords to evict tenants on short notice for engaging in illegal activity or for permitting such activity to be conducted in or on any part of the rental premises. Under this provision, the landlord can serve a notice of termination on the tenant, who may then exercise his/her right to dispute the landlord's allegation at a scheduled court hearing.

This paper suggests that paragraph 107(l)(b) is inconsistent with the underlying purposes of the Landlord and Tenant Act, and might run afoul of sections 7 and 15 of the Canadian Charter …

Freedom Of Contract: The Trojan Horse Of Rule 10b-5, Margaret V. Sachs

Washington and Lee Law Review

No abstract provided.

Twelve Letters From Arthur L. Corbin To Robert Braucher, Joseph M. Perillo

Washington and Lee Law Review

No abstract provided.

Contract Versus Contractarianism: The Regulatory Role Of Contract Law, Jean Braucher

Washington and Lee Law Review

No abstract provided.

Tests Of Contractual Integration

Washington and Lee Law Review

No abstract provided.

Court Enforcement Of Union Fines

Washington and Lee Law Review

No abstract provided.

Inventory Lender As A Good Faith Purchaser For Value: Priority Problems In U.C.C. 2-702

Washington and Lee Law Review

No abstract provided.

Religion, Story And The Law Of Contracts: Reply To Professor Berman, Andrew W. Mcthenia Jr.

Scholarly Articles

No abstract provided.

Choice Of Law Stipulations By Litigants

Washington and Lee Law Review

No abstract provided.