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Cardozo Law Review

Articles 31 - 60 of 112

Full-Text Articles in Contracts

Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel Beh, Jeffrey W. Stempel Sep 2010

Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel Beh, Jeffrey W. Stempel

Cardozo Law Review

No abstract provided.


Bargains Bicoastal: New Light On Contract Theory, Geoffrey P. Miller Apr 2010

Bargains Bicoastal: New Light On Contract Theory, Geoffrey P. Miller

Cardozo Law Review

Recent research has shown that large companies select New York law and New York courts to govern disputes under commercial contracts. Because these parties make choice-of-law and forum selection decisions before conflicts arise, there is reason to believe that their preference for New York reflects an effort to select efficient terms. This Article compares New York's contract law with that of its most natural competitor, California. It turns out that New York strictly enforces bargains and displays little tolerance for efforts to rewrite deals ex post. California, in contrast, more willingly reforms contracts for reasons of fairness, equity, morality, or …


Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow Apr 2010

Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow

Cardozo Law Review

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …


The Fugitive In Flight: Law, Freedom, And Liberalism In A Classic Tv Show, Stanley Fish Mar 2010

The Fugitive In Flight: Law, Freedom, And Liberalism In A Classic Tv Show, Stanley Fish

Cardozo Law Review

No abstract provided.


The Disordered And Discredited Plaintiff: Psychiatric Evidence In Civil Litigation, Deirdre M. Smith Jan 2010

The Disordered And Discredited Plaintiff: Psychiatric Evidence In Civil Litigation, Deirdre M. Smith

Cardozo Law Review

This Article examines civil defendants' use of evidence of a plaintiff's alleged current or prior psychiatric diagnosis or treatment by analyzing and critiquing the three primary rationales offered in support of the relevancy of such evidence: (1) to suggest an alternative cause of the plaintiff's alleged psychological injuries; (2) to impeach the plaintiff's credibility by asserting that a mental illness interferes with the plaintiff's ability to recount or to perceive events accurately; and (3) to reveal certain propensities that inform how the plaintiff likely acted with respect to the events at issue in the litigation. While attaching a label of …


Terms Subject To Change: Assent And Unconscionability In Contracts That Contemplate Amendment, Daniel Watkins Nov 2009

Terms Subject To Change: Assent And Unconscionability In Contracts That Contemplate Amendment, Daniel Watkins

Cardozo Law Review

No abstract provided.


The Market For Contracts, Geoffrey P. Miller, Theodore Eisenberg May 2009

The Market For Contracts, Geoffrey P. Miller, Theodore Eisenberg

Cardozo Law Review

Recent empirical work has established that New York supplies the law and forum in nearly half the material commercial contracts of public firms. In this respect New York plays a role for commercial contracts analogous to the role played by Delaware with respect to corporate charters. Is the revealed preference for New York law and forum merely the result of choices made by the contracting parties, or does New York actively compete for this business? This paper describes ways in which New York seeks to attract and retain corporate contracts in competition with other potential providers of law and forum. …


The Flight To New York: An Empirical Study Of Choice Of Law And Choice Of Forum Clauses In Publicly-Held Companies' Contracts, Theodore Eisenberg, Geoffrey P. Miller Mar 2009

The Flight To New York: An Empirical Study Of Choice Of Law And Choice Of Forum Clauses In Publicly-Held Companies' Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cardozo Law Review

We study choice of law and choice of forum in a data set of 2,882 contracts contained as exhibits in Form 8-K filings by reporting corporations over as six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. These material contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. They therefore provide evidence of efficient ex ante solutions to contracting problems. In prior work examining merger contracts, acquiring firms incorporated in Delaware tended to select Delaware law or a Delaware forum to govern disputes …


Aging Out Of Foster Care: Enforcing The Independent Living Program Through Contract Liability, Jennifer Sapp May 2008

Aging Out Of Foster Care: Enforcing The Independent Living Program Through Contract Liability, Jennifer Sapp

Cardozo Law Review

No abstract provided.


Finding Fault: Implications Of Importing The Title Vii Standard For Vicarious Punitive Liability To The Fair Housing Act, Jessica Reingold Katz May 2008

Finding Fault: Implications Of Importing The Title Vii Standard For Vicarious Punitive Liability To The Fair Housing Act, Jessica Reingold Katz

Cardozo Law Review

No abstract provided.


Why Contracts Scholars Should Read Legal Philosophy: Positivism, Formalism, And The Specification Of Rules In Contract Law, Curtis Bridgeman Mar 2008

Why Contracts Scholars Should Read Legal Philosophy: Positivism, Formalism, And The Specification Of Rules In Contract Law, Curtis Bridgeman

Cardozo Law Review

No abstract provided.


Renegotiations And Settlements: Dr. Pangloss's Notes On The Margins Of David Campbell's Papers, Stewart Macaulay Oct 2007

Renegotiations And Settlements: Dr. Pangloss's Notes On The Margins Of David Campbell's Papers, Stewart Macaulay

Cardozo Law Review

No abstract provided.


"The Last Full Measure Of Devotion:" Sacrifice And Textual Authority, Ronald R. Garet Oct 2006

"The Last Full Measure Of Devotion:" Sacrifice And Textual Authority, Ronald R. Garet

Cardozo Law Review

No abstract provided.


Common Law, Common Sense: Fiduciary Standards And Trustee Identity, Melanie B. Leslie Apr 2006

Common Law, Common Sense: Fiduciary Standards And Trustee Identity, Melanie B. Leslie

Cardozo Law Review

No abstract provided.


Distinguishing Trustees And Protecting Beneficiaries: A Response To Professor Leslie, Karen E. Boxx Apr 2006

Distinguishing Trustees And Protecting Beneficiaries: A Response To Professor Leslie, Karen E. Boxx

Cardozo Law Review

No abstract provided.


Say "Ahhh!": A New Approach For Determining The Cram Down Interest Rate After Till V. Scs Credit, Michael Elson Feb 2006

Say "Ahhh!": A New Approach For Determining The Cram Down Interest Rate After Till V. Scs Credit, Michael Elson

Cardozo Law Review

No abstract provided.


Assignability Of Covenants Not To Compete: When Can A Successor Firm Enforce A Noncompete Agreement?, Adam Schneid Jan 2006

Assignability Of Covenants Not To Compete: When Can A Successor Firm Enforce A Noncompete Agreement?, Adam Schneid

Cardozo Law Review

No abstract provided.


Literature As An Institution, Bernhard Schlink May 2005

Literature As An Institution, Bernhard Schlink

Cardozo Law Review

No abstract provided.


Rendered Impracticable: Behavioral Economics And The Impracticability Doctrine, Aaron J. Wright Apr 2005

Rendered Impracticable: Behavioral Economics And The Impracticability Doctrine, Aaron J. Wright

Cardozo Law Review

No abstract provided.


Civil Rights Liability Of Private Entities, Barbara Kritchevsky Nov 2004

Civil Rights Liability Of Private Entities, Barbara Kritchevsky

Cardozo Law Review

No abstract provided.


Private Protection Of Patentable Goods, Jonathan M. Barnett Mar 2004

Private Protection Of Patentable Goods, Jonathan M. Barnett

Cardozo Law Review

No abstract provided.


Specters Of Nietzsche: Potential Futures For The Concept Of The Political In Agamben And Derrida, Adam Thurschwell Mar 2003

Specters Of Nietzsche: Potential Futures For The Concept Of The Political In Agamben And Derrida, Adam Thurschwell

Cardozo Law Review

No abstract provided.


Contracts Of Convenience: Preventing Employers From Unilaterally Modifying Promises Made In Employee Handbooks, Brian T. Kohn Jan 2003

Contracts Of Convenience: Preventing Employers From Unilaterally Modifying Promises Made In Employee Handbooks, Brian T. Kohn

Cardozo Law Review

No abstract provided.


"Buyer's Regret" No Longer: Drafting Effective Mac Clauses In A Post-Ibp Environment, Sherri L. Toub Jan 2003

"Buyer's Regret" No Longer: Drafting Effective Mac Clauses In A Post-Ibp Environment, Sherri L. Toub

Cardozo Law Review

No abstract provided.


The Cure And Reinstatement Of Mortgages By Third Party Assignees, Arthur J. Margulies Nov 2002

The Cure And Reinstatement Of Mortgages By Third Party Assignees, Arthur J. Margulies

Cardozo Law Review

No abstract provided.


Two Cheers For Freedom Of Contract, Mark L. Movsesian Mar 2002

Two Cheers For Freedom Of Contract, Mark L. Movsesian

Cardozo Law Review

No abstract provided.


Securities Regulation As Lobster Trap: A Credible Commitment Theory Of Mandatory Disclosure, Edward Rock Jan 2002

Securities Regulation As Lobster Trap: A Credible Commitment Theory Of Mandatory Disclosure, Edward Rock

Cardozo Law Review

What functions does the existing mandatory disclosure system serve? In this Article, I argue that the existing SEC system can be understood as providing issuers with a mechanism for making a credible commitment to high quality, comprehensive disclosure for an indefinite period into the future. This credible commitment device is particularly useful to new domestic issuers and to foreign issuers seeking to tap the U.S. capital markets. This credible commitment justification explains the striking but little discussed practical and formal asymmetry between the ease of entry into the SEC system and the difficulty of exit from it. I then consider …


Secrecy In Law And Science, Jack B. Weinstein, Catherine Wimberly Nov 2001

Secrecy In Law And Science, Jack B. Weinstein, Catherine Wimberly

Cardozo Law Review

No abstract provided.


Business Partners As Fiduciaries: Reflections On The Limits Of Doctrine, Robert W. Hillman Nov 2000

Business Partners As Fiduciaries: Reflections On The Limits Of Doctrine, Robert W. Hillman

Cardozo Law Review

No abstract provided.


Harmful Remedies: Optimal Reformation Of Anticompetitive Contracts, Michal S. Gal Nov 2000

Harmful Remedies: Optimal Reformation Of Anticompetitive Contracts, Michal S. Gal

Cardozo Law Review

Current law and economics literature identifies two main types of errors courts can make in applying antitrust law. Courts may erroneously label conduct as anticompetitive even though competition is not harmed. Alternatively, courts may fail to identify, and thus fail to attack, anticompetitive conduct. This Article focuses on a third possible error - where a court correctly identifies anticompetitive conduct, but its mode of interference, i.e., its prescribed remedy, harms competition. It analyzes this error in the context of anticompetitive contract reformation. Such error occurs, for example, where a court has chosen one reformation option that is less efficient and …