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 …

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 …

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 …

Law In, Law Out: Legalistic Filter Bubbles And The Algorithmic Prevention Of Nonconsensual Pornography, Daniel Maggen

Cardozo Law Review

In 2019, Facebook announced that it had begun using machine-learning algorithms to preemptively screen uploads for nonconsensual pornography. Although the use of screening algorithms has become commonplace, this seemingly minor move from reactive to preemptive legal analysis–based prevention—this Article argues—is part of a groundbreaking shift in the meaning and effect of algorithmic screening, with potentially far-reaching implications for legal discourse and development.

To flush out the meaning of this shift, the Article draws on the filter bubble theory. Thus far, the phenomenon of filter bubbles has been synonymous with personalized filtering and the social polarization and radicalization it is prone …

Assumption Of Risk In Consumer Contracts And The Distraction Of Unconscionability, Zahra Takhshid

Cardozo Law Review

For years, courts have struggled to determine when to enforce exculpatory clauses that would prevent personal injury victims from availing themselves of tort remedies under the doctrine of express assumption of risk. In the past, when courts declined to enforce these clauses, they did so on the ground that enforcing such a waiver for the activities in question was “against public policy.” Recently, however, many courts have addressed the issue through the contract doctrine of “unconscionability.” This change in focus has subtly but importantly altered the enforceability inquiry by emphasizing the conditions under which the plaintiff agreed to the contract, …

Accommodating Legal Ignorance, Stewart E. Sterk

Cardozo Law Review

No abstract provided.

Claim Preclusion And The Problem Of Fictional Consent, Lindsey D. Simon

Cardozo Law Review

No abstract provided.

Contracting Away Your Career: An Interstate Comparison Of Noncompete Law And A Proposal For Optimal Legislation In New York, Matthew Rametta

Cardozo Law Review

No abstract provided.

When A Picture Is Not Worth A Thousand Words: Why Emojis Should Not Satisfy The Statute Of Frauds' Writing Requirement, Moshe Berliner

Cardozo Law Review

No abstract provided.

The Efficacy Of Choice-Of-Law And Forum Selection Provisions In Third-Party Litigation Funding Contracts, Robert Glenn

Cardozo Law Review

No abstract provided.

Contract's Revenge: The Waiver Society And The Death Of Tort, Ryan Martins, Shannon Price, John Fabian Witt

Cardozo Law Review

No abstract provided.

Antitrust Law, Freedom, And Human Development, Zephyr Teachout

Cardozo Law Review

For four decades, there was a near-universal consensus that consumer welfare was the sole and appropriate purpose of antitrust law. That consensus is breaking apart. For the first time in two generations, a growing group of scholars and policymakers is challenging that orthodoxy. They reject the consumer welfare consensus, and argue that antimonopoly policy should and can have much broader social goals, and serve democratic ends, not merely efficiency ones.

This group is unified by its shared protest, but lacks a shared positive platform. It does not itself have a consensus on what goals should replace the monotheistic approach of …

Second Looks & Second Chances, Shon Hopwood

Cardozo Law Review

No abstract provided.

Strangers In The Law: Lawyers' Law And The Other Legal Dimensions, Mauro Bussani

Cardozo Law Review

Political and legal theories have long been takingfor granted the idea that law is the province of government and government recognized authorities, including the judiciary. They have concentrated on the processes and principles, by which the form and substance of State law are determined, implemented, and enforced. This law is what I will call official or State law. By contrast, many non-official sites of legal production have always existed and still exist (outside and) inside the West. These sites produce rules that may flourish indifferent to or in opposition to official law and take the settlement of disputes arising out …

Facilitating The Intent Of Deceased Social Media Users, Yael Mandel

Cardozo Law Review

This Note will proceed in four parts. Part I will discuss the background of general testamentary principles of trusts and estates law. Part II will address the existing post-life policies of Facebook, Instagram, LinkedIn, and Twitter and the implications of the recently drafted acts addressing the disposition of digital assets. Part III will propose adding some type of testamentary formalities for the distribution of access to a deceased user's social media accounts, such as adding an electronic signature line and requiring the user to re-enter their password before saving their selections. In addition, Part III proposes the application of certain …

Pre-Embryo Custody Battles: How Predisposition Contracts Could Be The Winning Solution, Ashley Alenick

Cardozo Law Review

The note examines the legal disputes arising from the disposition of frozen preembryos during divorce, highlighting the lack of consensus among U.S. courts in resolving such cases. It evaluates three legal approaches—constitutional analysis, contemporaneous agreement, and predisposition contracts—and argues that enforcing predisposition contracts, akin to prenuptial agreements, offers the most structured solution. However, the note emphasizes the need for procedural and substantive fairness in these contracts to ensure they are voluntary, fully disclosed, and do not unjustly prevent genetic parenthood.

Property Interests In Digital Assets: The Rise Of Digital Feudalism, Natalie M. Banta

Cardozo Law Review

The emergence of digital assets has created a host of new legal questions regarding their status as a property interest. Digital assets consist of intangible interests like e-mail accounts, social media accounts, reward points, and electronic media. These assets seem like a property interest, but because digital assets are a creature of contract, private contracts determine whether an owner can use, sell, transfer, exclude, donate, or dispose of the asset in a testamentary instrument. These digital asset contracts often take an unprecedented step of prohibiting or severely limiting the transfer of digital assets after death. By unilaterally eviscerating a long …

Do Community Benefits Agreements Benefit Communities?, Edward W. De Barbieri

Cardozo Law Review

Community Benefits Agreement (CBA) campaigns and public discussions about community benefits are becoming the norm in deciding how large urban projects are built outside of formal public land use approvals. CBAs have revolutionized land use approvals for large, public-private economic development projects: now developers and coalitions representing low-income communities can settle their disputes before formal project approval. As a result, CBAs are now commonplace nationwide.

Legal scholarship, however, has failed to keep up with these important developments. This Article aims to do just that by examining how CBAs, when properly negotiated, lower transaction costs, enhance civic participation, and protect taxpayers. …

The Green To Blue Pipeline: Defense Contractors And The Police Industrial Complex, Karena Rahall

Cardozo Law Review

Images of police in tactical gear, pointing automatic weapons at unarmed demonstrators in Ferguson, Missouri, represented a flashpoint in public awareness that American police are rapidly militarizing. Federal grants have been quietly arming police with tanks, drones, and uniforms more suited to waging war than patrolling the streets. As police have acquired more military gear, Special Weapons and Tactics teams and deployments have proliferated. Even small towns receive surplus military materiel to fight the "wars" on drugs and terrorism. In addition, police training uses a military approach that threatens to transform the traditional police mandate of protecting and serving into …

Chevron For Juries, William Ortman

Cardozo Law Review

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. rests on two now-familiar premises. First, for some statutes, the traditional tools of statutory interpretation more readily yield a range of plausible meanings than a single correct reading. Second, judges are not always the officials best positioned to select one interpretation of a statute from among the plausible options. Chevron relied on these premises to decide that when a court finds ambiguity in a statute administered by an agency, it must defer to the agency's interpretation of the statute, so long as it is reasonable. But while administrative law provided a …

Crowdfunding Human Capital Contracts, Max Vogel

Cardozo Law Review

No abstract provided.

The Contractual Family: The Role Of The Market In Shaping Family Formations And Rights, Deborah Zalesne

Cardozo Law Review

Even with federal recognition of marriage equality and the increasing number of states that allow same-sex marriage, marriage is not available or not desirable to everyone. Yet marriage remains a prerequisite to many legal protections. Despite the popularity and prevalence of alternative reproductive technologies (ART) as a means of having a child when natural childbirth is not feasible, biology similarly remains a prerequisite to many legal protections and rights over one's children. Within this paradigm, the ever-growing number of families and couples not fitting the traditional mold are forced to search other areas of the law, such as contract law, …

Coming Up Short: The United States' Second-Best Strategies For Corralling Purely Speculative Derivatives, Timothy E. Lynch

Cardozo Law Review

Purely speculative derivatives (PSDs) are derivatives in which neither counterparty is engaged in hedging. Unless they are used for entertainment purposes, PSDs are irrational, less-than-zero-sum transactions. Entities that engage in PSDs jeopardize their stakeholders and increase systemic risk. PSDs can also increase moral hazard, can be used for regulatory arbitrage, and can redirect resources away from the efficient allocation of market capital. PSDs should be unenforceable contracts, void for public policy reasons, except where they are expressly permitted to provide gambling entertainment, enhance price discovery, or increase liquidity for hedgers.

In the United States, however, PSDs are often legal and …

Religion, Women, And The Holy Grail Of Legal Pluralism, Shiva Falsafi

Cardozo Law Review

No abstract provided.

Limiting Unfettered Challenges To Patent Validity: Upholding No-Challenge Clauses In Pre-Litigation Patent Settlements Between Preexisting Parties To A License, Nicholas Roper

Cardozo Law Review

No abstract provided.

Contract Theory And The Failures Of Public-Private Contracting, Wendy Netter Epstein

Cardozo Law Review

The market for public-private contracting is huge and flawed. Privatization proponents predict that privatizing will both cut costs and improve service quality. But public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap by applying contract-theory principles to public-private contracting.

It …

Employing Arbitration: Flsa Collective Actions Post-Concepcion, Iliza Bershad

Cardozo Law Review

No abstract provided.

Outsourcing Incompetence: An Essay In Honor Of Paul Verkuil, Arthur J. Jacobson

Cardozo Law Review

No abstract provided.

The Case Against Allowing Mortgage Electronic Registration Systems, Inc. (Mers) To Initiate Foreclosure Proceedings, Nolan Robinson

Cardozo Law Review

No abstract provided.