Contracts Commons^™

Hyperbole In The Capital Stack: Are We Misreading Lender Intent? Liability Management Transactions And The Implied Covenant Of Good Faith And Fair Dealing, Daniel R. Janel

Cardozo Law Review

The hasty characterization and overall sentiment surrounding Liability Management Transactions (“LMTs”) as “hostile” strategies that promote “lender-on-lender violence” attempt to misapply the implied covenant of good faith and fair dealing under New York law, which serves as a gap-filler rather than a “contract buster.” Although the covenant’s proper function is to protect parties’ reasonable expectations that they will receive the fruits of their bargain, it does not purport to rewrite or impose on carefully negotiated credit agreements. Sophisticated parties enter into meticulously crafted credit agreements with full awareness of the breadth and scope of their provisions. Only after finding themselves …

Cardozo Law Introduces New Course On Theatre Law, Benjamin N. Cardozo School Of Law

Cardozo Law News Archive

Cardozo School of Law introduced Theatre Law, the first law school course devoted entirely to the legal framework of the live stage industry. Taught by Adjunct Professor Ben Feldman, the course explores contracts, intellectual property, labor relations, licensing, financing, and other legal issues unique to theatrical productions, providing students with specialized training in entertainment law.

Some Respect Reserved? Survey Experiment Insights On The Perception Of Creative Commons And Copyright Infringement, Thomas H. Rousse

Cardozo Arts & Entertainment Law Journal

Since its inception, Creative Commons has introduced new ways for creators to grant licenses to the public without cost or the need for negotiation by breaking up rights provided by copyright and making a subset of those rights available to anyone willing to abide by the conditions of the license. Its widespread adoption has democratized open licensing for creators beyond the software context these licenses originated within. Although the success of Creative Commons as a community is plain, relatively little information is available about its perception by the general public. Aggressive litigation by Creative Commons licensors has put the organization …

Did Copyright Fail Music Artists?, Rachel Landy

Articles

Music soundtracks our lives, supports over two million domestic jobs annually, and is listened to more than ever before. The record industry is thriving, having made over $17 billion in 2024. Yet, many professional artists are barely surviving. Artists signed to record deals lament royalty payments that amount to a fraction of a penny for each stream of their songs. So where is all the money going, and who, or what, is to blame? Public rhetoric and existing legislative proposals implicate copyright as a guilty party. But are those concerns justified?

This Article unpacks the music supply chain. It builds …

Swiping Rights: Hidden Costs Of Hidden Laws, Rachel Landy

Articles

While many legal regimes have undergone fundamental shifts to account for the online economy, one lags behind: industry-specific mandatory contract rules. These rules, frequently buried in decades-old, nonintuitive statutes, are often overly prescriptive and come with draconian penalties, hampering the goals of entrepreneurship and impeding startup growth.

Much has been written about the intersection of regulation and entrepreneurship. But sparse attention has been paid to the unintended consequences on early-stage companies of more subtle regulatory interventions like contract rules — especially those with inconsistent or conflicting requirements among the states. This Article begins to fill that gap and uses as …

Having Fun Is Not As Hard When You Have An Arbitration Clause: The Current Benefits And Possible Changes To The Arbitration Agreements Of Amusement Parks And Recreational Resorts For Consumers, Cynthia Spitzer

Cardozo Journal of Conflict Resolution

This Note will evaluate options that are more favorable for consumers to bring their injury claims against amusement parks and recreational resorts when the route for resolution is limited by an agreement. For instance, the option of an arbitration agreement would be more preferable when faced with only the option of a liability waiver. However, with possible future changes of consumer contracts from the FAIR Act, opt-in provision, or mandatory arbitration imposed on the corporations, the route for resolution can drastically change and improve the realm of possibility for consumers of amusement parks and recreational resorts.

Design Matters: Modernizing The Federal Arbitration Act To Safeguard Party Autonomy, Sarah R. Cole

Cardozo Journal of Conflict Resolution

Arbitration is a creature of contract. And it is basic arbitration law that arbitrators must respect contracting parties’ intent. The Federal Arbitration Act’s 100th anniversary offers an ideal moment to reaffirm this principle: arbitrators resolving commercial disputes should honor parties’ intent while preserving arbitration’s core values: efficiency, finality, and autonomy. Unfortunately, routine judicial deference to arbitration decisions often undermines parties’ intent as expressed through party design of the arbitration process. In response to this issue, this Article proposes amending the Federal Arbitration Act (FAA) to empower courts to safeguard two common arbitral party directives: limits on arbitrators’ remedial authority and …

Defining Arbitration, Jill I. Gross

Cardozo Journal of Conflict Resolution

The Federal Arbitration Act (FAA) does not define the term “arbitration,” the very process the one-hundred-year-old statute was enacted to promote. The absence of a definition has led to courts’ inconsistent and unpredictable application of the FAA’s regulatory benefits to agreements to resolve disputes in processes other than traditional, binding arbitration, such as appraisal, evaluation, and mediation. Additionally, with no clear definition as guidance, companies have inserted arbitration clauses into adhesive consumer and employment agreements that require “arbitration” of disputes but designate a process lacking hallmarks of due process. The Supreme Court even justified enforcing class action waivers in arbitration …

Time For A Clean Finish? Analyzing A New Path To Collective Bargaining At The Wwe, Paige Green

Cardozo Arts & Entertainment Law Journal

The note argues that professional wrestlers in the WWE face significant challenges in achieving fair compensation and better working conditions due to their classification as independent contractors, which denies them protections under the National Labor Relations Act (NLRA). It proposes that leveraging antitrust law could provide an alternative and effective strategy for wrestlers to collectively bargain and improve their circumstances, drawing parallels to successful efforts by UFC fighters.

Property And Information, Jeanne L. Schroeder, David G. Carlson

Articles

The article proceeds as follows. As the information theory is a reaction to legal realism, Part I explores its antecedents in the work of Wesley Newcomb Hohfeld and Ronald H. Coase. Part II presents the information theory as arising from Professor Smith’s interpretation of the Coase theorem.11 In the imaginary world of TC0, we are supposedly indifferent to organizing by property and organizing by contract. Property eclipses contract as the organon of the economy because property reduces the cost of delineation and processing—of speaking and comprehending. We show that this theory is founded on a misunderstanding of Coase. Part III …

Two Forms Of Formalism In Contract Law, Gregory Klass

Cardozo Law Review

Formalism in contract interpretation has had many defenders and many critics. What lawmakers need, however, is an account of when formalism works and when it does not. This Article addresses that need by providing a general theory of contract exposition and differentiating between two forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples include “as is,” the seal, and sometimes contract boilerplate. Evidentiary formalism, in distinction, limits the evidence that goes into interpretation. Plain meaning rules are an example of evidentiary formalism. This Article provides a detailed analysis of …

A One-Egg Wonder: Working To Cure Judicial Gender Bias And Increase Access To Pre-Embryos For Infertile Parties, Nicole Marks Kaufman

Cardozo Law Review

The first live birth of a child conceived from in vitro fertilization (“IVF”) happened in 1978. Today, over eight million children have been born through IVF procedures. The first dispute over the resulting pre-embryos was in 1990 when the Tennessee Supreme Court outlined a balancing approach with a presumption favoring non-use of the pre-embryos for courts to follow when resolving these matters. Numerous states have taken differing approaches—some have taken a contractual approach, others an approach requiring contemporaneous mutual consent before there can be a departure from the status quo, and very few state legislatures have directly addressed how to …

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Downstreaming, Rachel Landy

Articles

Spotify and its competitors all offer the same product at the same price. Why? Scholars have argued that relationships can be designed in a way that naturally promotes innovation. By “braiding” certain formal contracting practices with informal enforcement norms, parties develop a frame-work that supports trust and positive, long-term collaboration. This Article takes on this consensus and shows that not all braiding is good. Using the multibillion-dollar subscription music streaming business as an illustration, it demonstrates just how industry forces can, and do, overcome braiding’s positive slant. In that industry, the major record labels (Universal, Warner, and Sony) weaponize braiding …

Arbitration's Unraveling, Myriam E. Gilles

Articles

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area …

Against Gap-Filling, Noah C. Chauvin

Cardozo Law Review de•novo

Legal scholars delight in gap-filling. They frequently claim that their works have identified a gap in the literature and to have filled (or begun filling) that gap. However, all too often, these same papers fail to explain why the gap needed to be filled at all. Indeed, despite a robust tradition of meta-scholarship, the legal literature is largely devoid of a theory of academic gap-filling. This essay fills that gap, arguing that gap-filling for the sake of gap-filling is an error for three interconnected reasons. First, gaps might exist for a good reason. Second, concern with gap-filling is often a …

Music, Mayhem, And A Mississippi: Still Burning-The Hope Of Smothering The Deleterious Effects Of Deliberate Indifference, Angela Dixon

Cardozo Journal of Equal Rights & Social Justice

The article argues that the deliberate indifference standard, as applied in Eighth Amendment jurisprudence, fails to adequately address inhumane and unconstitutional prison conditions, particularly in Mississippi. It critiques the standard for prioritizing prison officials' intent over objective conditions, allowing systemic neglect and racial disparities to persist. The analysis advocates for a shift toward an objective standard to better protect human dignity and hold prison administrators accountable.

Addressing New York's Scaffolding Issue Through An Arbitration Framework, Jared Man

Cardozo Journal of Conflict Resolution

New York City is one of the most, if not the most, famous cities in the world. Whether it is the melting pot of cultures, the signature attitude of its residents, or the numerous attractions, people flock to New York to either see the city with their own eyes or end up moving here to become part of the city itself. However, one of New York's most notable features is the beautiful architecture it boasts. Every neighborhood comes with its own distinct feeling once you pass through it, which in large part has to do with kinds of buildings that …

Introductory Remarks, Carly Rothstein

Cardozo Arts & Entertainment Law Journal

This introductory remark explores the implications of recent Supreme Court decisions in Bad Spaniels and Andy Warhol on intellectual property law, focusing on the evolving landscape of copyright and trademark protections. It highlights the challenges and opportunities these rulings present for balancing artistic expression, cultural norms, and legal frameworks. The symposium serves as a platform for scholars and practitioners to discuss these developments and their broader impact on IP law and policy.

Crypto: The Prospect Of Regulatory Competition, Charles M. Yablon

Articles

No abstract provided.

Exit Engineering, Rachel Landy

Articles

How do business lawyers create value? For nearly forty years, scholars have conceptualized the business lawyer as a “transaction cost engineer” who helps contracting parties efficiently break negotiation stalemates to create more valuable deals. This theory provides meaningful insights about sophisticated corporate law practice, where outside lawyers parachute in to make one-off deals happen. However, it fails to explain the behavior of startup lawyers, who develop long-term relationships with their clients and counsel them on seemingly routine matters, well before a major transaction materializes. These lawyers are not just transaction cost engineers, they are exit engineers. This Article offers a …

Stopping Runs In The Digital Era, Luís C. Calderón Gómez

Articles

Bank runs, and the financial crises they catalyze and amplify, are incredibly costly-to individuals, families, society, and the economy writ large. Banking regulation has, for the most part, protected us from traditional bank runs for the last ninety years. However, as we saw in the devastating 2008 financial crisis, bank runs can still occur in lightly regulated or opaque segments of the financial sector.

The recent crypto market downturn dramatically forewarned regulators of the potential and significant risks that novel assets could pose to our financial system's stability. In particular, a novel, systemically important asset (stablecoins) revealed its vulnerability to …

An Examination Of U.S. And U.K. Procedures Governing Sexual Misconduct Investigations In Universities, Marc Siegel

Cardozo International & Comparative Law Review

The note critiques the lack of a unified regulatory framework for addressing sexual misconduct in U.K. universities, contrasting it with the structured, albeit controversial, Title IX system in the U.S. It argues that the U.K.'s voluntary approach has led to inconsistent, unjust outcomes and advocates for the adoption of a comprehensive regulatory regime similar to Title IX to ensure fairness, accountability, and consistency in handling such cases.

Just Kidding? The Problem Of Unenforceable Waivers Of Liability, Anthony J. Sebok

Articles

No abstract provided.

Foreseeability Conventions, John Fabian Witt, Morgan Savige

Cardozo Law Review

How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate …

The Future Of Arbitration In The United States: Textualism, A Tectonic Shift, And A Reshaping Of The Civil Justice System, Imre S. Szalai

Cardozo Journal of Conflict Resolution

No abstract provided.

Introductory Remarks, Ethan Bordman, Ira S. Dizengoff, Sophie Dizengoff

Cardozo Arts & Entertainment Law Journal

The article discusses the legal implications and challenges surrounding college athletes' rights to profit from their name, image, and likeness (NIL), following the NCAA's 2021 decision to lift its ban on athletes cashing in on their fame. The symposium explores the evolving legal landscape, including regulatory frameworks, equity issues, and the role of collectives, highlighting the need for clearer guidelines to address the complexities arising from this change.

Why Criminal Defendants Cooperate: The Defense Attorney's Perspective, Jessica A. Roth, Anna D. Vaynman, Steven D. Penrod

Articles

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate. But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice. This Article—the first empirical study of the defense experience of cooperation—begins to address that gap. The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District …

Conflict Resolution-Negotiation: Liv V. Pga Tour, Ross Herman

Cardozo Journal of Conflict Resolution

No abstract provided.

Big Screen Or Bust?: How Contractual Negotiations In Hollywood Must Adapt In The Streaming Era, Alexis Narotzky

Cardozo Journal of Conflict Resolution

Scarlett Johansson made her first appearance as her superhero alter-ego, the Black Widow, on May 7, 2010, in the movie Iron Man 2. Over the next intervening eleven years, Johansson appeared in several of Disney's Marvel ("Disney" or "Marvel") movies in supporting roles. On July 9, 2021, Marvel released the Black Widow with Scarlett Johansson as the lead character. Johansson's agreement for her character's eponymous film was built upon the expectation of large bonuses based on profit from outsized box-office receipts, understood as a profit-participation or contingent compensation contract. Johansson's lawyers negotiated for a "wide theatrical release" to protect …