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Articles 31 - 60 of 145
Full-Text Articles in Contracts
Legal Ignorance And Information-Forcing Rules, J. H. Verkerke
Legal Ignorance And Information-Forcing Rules, J. H. Verkerke
William & Mary Law Review
People are often ignorant about the legal rules that govern the most common transactions in their lives. This Article analyzes one common regulatory response to our widespread legal ignorance. A surprisingly broad range of legal rules have the ostensible purpose of inducing sophisticated parties to draft express contract language that will inform their contractual partners about the legal rules governing a particular transaction. However, this “legal-informationforcing” objective often remains unrealized because people routinely sign contracts without reading and understanding their terms. In theory, courts could design information-forcing rules that would be truly informative. But recognizing the potential futility of attempts …
Ex Tempore Contracting, Andrew Verstein
Ex Tempore Contracting, Andrew Verstein
William & Mary Law Review
This Article argues that a cornerstone assumption of contemporary contracts scholarship is misleading and limited. Leading academic commentary explicitly assumes that contractual responsibilities are determined in the following way: parties determine many of their duties ex ante, by specifying terms at the time of contract formation, and leave the rest of the terms vague, for a court to specify ex post if any should prove important. This ex ante / ex post dichotomy is the guiding framework in attempts to understand contract design and interpretation. For example, parties use terms like “merchantable” quality when the cost of being more specific …
An Inevitable Conflict: The Subordination Of Contract Principles To Informed Consent In The Business Of Banking Umbilical Cord Blood, Abigail Norris
An Inevitable Conflict: The Subordination Of Contract Principles To Informed Consent In The Business Of Banking Umbilical Cord Blood, Abigail Norris
William & Mary Business Law Review
This Note explores the business of banking umbilical cord blood for later, and potentially life-saving, use. It discusses the importance of the stem cells found in umbilical cord blood, and the complexities involved in applying business models to its collection, storage, and use. Furthermore, this Note discusses how contracts governing the storage and use of umbilical cord blood can conflict with concepts of human dignity and informed consent. It concludes that in the event umbilical cord blood banking contracts conflict with informed consent, the contract should be subordinated to a person’s understanding, acquired through procedures intended to achieve the patient, …
In Defense Of Surrogacy Agreements: A Modern Contract Law Perceptive, Yehezkel Margalit
In Defense Of Surrogacy Agreements: A Modern Contract Law Perceptive, Yehezkel Margalit
William & Mary Journal of Race, Gender, and Social Justice
The American public’s attention was first exposed to the practice of surrogacy in 1988 with the drama and verdict of the Baby M case. Over the last twenty-five years, the practice of surrogacy has slowly become increasingly socially accepted, and even welcomed. This evolution serves to emphasize the bizarre judicial and legislative silence regarding surrogacy that exists today in the vast majority of U.S. jurisdictions. In this Article, I describe and trace the dramatic revolution that took place during the recent decades, as the surrogacy practice has drastically changed from one viewed as problematic and rejected to a socially widespread …
Boilerplate Symposium I: Peter Alces On Consent, Peter A. Alces
Boilerplate Symposium I: Peter Alces On Consent, Peter A. Alces
Popular Media
No abstract provided.
Nonmarket Values In Family Businesses, Benjamin Means
Nonmarket Values In Family Businesses, Benjamin Means
William & Mary Law Review
Despite the economic importance of family businesses, legal scholarship has often overlooked their distinctive character. Instead, scholars focus on the chosen form of business organization— partnership, corporation, LLC—and assume that the participants are economically rational actors who seek to maximize their individual preferences. This Article contends that family businesses are extensions of family relationships and that nonmarket values affect their goals and governance choices.
Just as family law scholars have shown that contract principles can be applied to regulate intimate relationships, corporate law scholars should recognize that the intimacy of family life often substitutes for arm’s length bargaining in family …
Markets As A Moral Foundation For Contract Law, Nathan B. Oman
Markets As A Moral Foundation For Contract Law, Nathan B. Oman
Faculty Publications
No abstract provided.
Promise And Private Law, Nathan B. Oman
Promise And Private Law, Nathan B. Oman
Faculty Publications
This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …
Contracting For Procedure, Kevin E. Davis, Helen Hershkoff
Contracting For Procedure, Kevin E. Davis, Helen Hershkoff
William & Mary Law Review
Judicial decisions of public courts increasingly are based on “contract procedure,” private rules of procedure that the parties draft and assent to before a dispute even has arisen. These rules govern such matters as the forum in which the proceeding will be conducted, whether a jury will be involved in adjudicating the dispute, the scope of rights of discovery, and rules of evidence. The practice deserves greater attention and should raise more profound concerns than the academic literature currently suggests. We argue that contract procedure operates as a form of privatization that effectively outsources government functions to private contracting parties. …
Adjudicating Insurance Policy Disputes: A Critique Of Professor Randall's Poposal To Abandon Contract Law, Jared A. Wilkerson
Adjudicating Insurance Policy Disputes: A Critique Of Professor Randall's Poposal To Abandon Contract Law, Jared A. Wilkerson
W&M Law Student Publications
No abstract provided.
You Do Have To Keep Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman
You Do Have To Keep Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman
William & Mary Law Review
Contract law is generally understood to require no more of a person who breaches a contract than to give the injured promisee the “benefit of the bargain.” The law is thus assumed to permit a promise-breaker to keep any profit remaining from breach, after putting the victim in the position he would have been in had the promise been performed. This conventional description is radically wrong: across a wide range of circumstances, standard contract doctrines actually do require people to keep their promises, or to disgorge their entire profit from breach if they do not. Rather than protecting the expectation …
Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock
Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock
William & Mary Business Law Review
This Article evaluates a conundrum and identifies a genuine risk faced by state and federal courts in interpreting and applying the Statute of Frauds to contract law disputes. The Article provides a thorough analytical dissection of the Statute of Frauds as it has been interpreted and applied by the courts in light of the inescapable tension between the Statute’s formalities, mandated by the legislature, and the judiciary’s profound goal of attaining justice and fairness in deciding each contract law dispute in which the Statute is implicated. The Article discusses in depth how the Statute has been construed by state and …
Consent To Retaliation: A Civil Recourse Theory Of Contractual Liability, Nathan B. Oman
Consent To Retaliation: A Civil Recourse Theory Of Contractual Liability, Nathan B. Oman
Faculty Publications
In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was an enacted penalty clause: “If I breach this contract, let it be done to me as we are doing to the goat.” This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promise making, or by the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the …
Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson
Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson
William & Mary Law Review
Standard-form contracts are a common feature of commercial relationships because they offer the advantage of lower transaction costs. This advantage of standard contracts is increased when there is a second layer of standardization under which multiple firms agree on a standard contract. Trade associations and similar entities often effect standardization of this kind through collective agreement on a standard contract, sometimes under the aegis of state actors. Multifirm contract standardization can provide not only the usual transaction-cost advantages of standard-form contracts, but also increased competition among firms, because a standard contract makes comparison among firms’ offerings easier. But standardization among …
They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield
They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield
Faculty Publications
No abstract provided.
Contract Is Context, Peter A. Alces
A Pragmatic Defense Of Contract Law, Nathan B. Oman
A Pragmatic Defense Of Contract Law, Nathan B. Oman
Faculty Publications
No abstract provided.
Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne
Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne
Faculty Publications
No abstract provided.
Specific Performance And The Thirteenth Amendment, Nathan B. Oman
Specific Performance And The Thirteenth Amendment, Nathan B. Oman
Faculty Publications
No abstract provided.
The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl
The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl
Faculty Publications
This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …
Uneasy Lies The Tiara: Crowns, Contracts, And The Rebekah Revels Litigation, Amanda Harmon Cooley
Uneasy Lies The Tiara: Crowns, Contracts, And The Rebekah Revels Litigation, Amanda Harmon Cooley
William & Mary Journal of Race, Gender, and Social Justice
In the last five years, news of various scandals in the pageant industry has inundated media outlets. These recent incidents are by no means outliers in the history of pageantry. This article explores the significance of one of these controversies - the Rebekah Revels litigation, which stemmed from the disputed 2002 Miss North Carolina pageant.
For context, this article first outlines allegations of wrongdoing in early pageants. It proceeds with an analysis of how the Revels litigation serves as an exemplar of the types of contract lawsuits that may continue to entangle pageant organizations in the future. Finally, the article …
Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins
Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins
Faculty Publications
No abstract provided.
Unintelligent Design In Contract, Peter A. Alces
Unintelligent Design In Contract, Peter A. Alces
Faculty Publications
Scholars have expended considerable energy in the effort to "discover" a normative theory of Contract. This Article surveys that effort and concludes that something fundamental about Contract has been missed and has frustrated the search from the outset. Succinctly, Contract doctrine resists the neat formulation theory requires. Theorists' perspectives on Contract may be generalized as attempts to impute either deontology or consequentialism to the Contract law. Focusing largely on deontological constructions of Contract, this Article demonstrates the inconsistencies among the extant heuristics-promise, reliance, and transfer-and more importantly, the failure of any of those constructions to provide a coherent explanation of …
Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg
Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg
W&M Law Student Publications
No abstract provided.
The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman
The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman
Faculty Publications
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 …
Morality And Contract: The Question Of Paternalism, James Gordley
Morality And Contract: The Question Of Paternalism, James Gordley
William & Mary Law Review
No abstract provided.
The Moral Impossibility Of Contract, Peter A. Alces
The Moral Impossibility Of Contract, Peter A. Alces
William & Mary Law Review
No abstract provided.
Introductory Remarks: Contract Law And Morality, Nathan B. Oman
Introductory Remarks: Contract Law And Morality, Nathan B. Oman
William & Mary Law Review
No abstract provided.
Contract As A Transfer Of Ownership, Peter Benson
Contract As A Transfer Of Ownership, Peter Benson
William & Mary Law Review
No abstract provided.
Legal Determinacy And Moral Justification , Jody S. Kraus
Legal Determinacy And Moral Justification , Jody S. Kraus
William & Mary Law Review
No abstract provided.