Contracts Commons^™

Two Cheers For Freedom Of Contract, Mark L. Movsesian

Faculty Publications

Once, they say, freedom of contract reigned in American law. Parties could make agreements on a wide variety of subjects and choose the terms they wished. Courts would refrain from questioning the substance of bargains and would ensure only that parties had observed the proper formalities. In interpretation, objectivity was paramount. Courts would seek to ascertain, not what the parties had intended, but what a reasonable observer would understand the parties' words to mean. Contract law was a series of abstractions informed by individual autonomy and judicial deference.

This world, a classical paradise of doctrines with sharp corners, began to …

Contract Reconceived, Peter A. Alces

Faculty Publications

No abstract provided.

Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan

Faculty Publications

What is the role of contract law in remedying breach? The question of the appropriate legal remedy, specific performance versus money damages, has provided adequate fodder for three decades of debate in the law and economics discourse. In the legal discipline at large, the topic has spurred centuries of debate, as illustrated by Oliver Wendell Holmes's famous line: “The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.” Holmes's approach to contractual remedy would evolve during the latter half of the twentieth century …

Regret And Contract "Science", Peter A. Alces

Faculty Publications

No abstract provided.

When Should Contract Law Supply A Liability Rule Or Term?: Framing A Principle Of Unification For Contracts, Juliet P. Kostritsky

Faculty Publications

To demonstrate the need for a unified instrumental framework for deciding gaps and implying liability rules, Part II of this Article will first describe the competing visions of the role of law in contract gap-filling. Although each vision has expanded the ways in which we think about contracts and has offered more realistic models of bargaining, each still fails to offer a unified framework for deciding how courts should decide *1290 incomplete contracts. Part III of the Article outlines the methodological framework for unifying judicial approaches to law-supplied terms or rules. The framework will incorporate a: (1) realistic model of …

Myths, Miscues, And Misconceptions: No-Aid Separationism And The Establishment Clause, Carl H. Esbeck

Faculty Publications

In neutrality theory the recipients of vouchers, grants, and purchase-of-service contracts are eligible to participate as providers in government social service programs without regard to their religious character. Indeed, religious beliefs and practices are prohibited bases for screening out those who want to be welfare program providers. Notable examples of congressional social service legislation conforming to the rule of religious neutrality are the ‘charitable choice‘ feature imbedded in the Welfare Reform Act of 1996 and the Community Services Block Grant Act of 1998, as well as the provision allowing issuance of child care vouchers to indigent parents in the Child …

“Why Infer”? What The New Institutional Economics Has To Say About Law-Supplied Default Rules, Juliet P. Kostritsky

Faculty Publications

A central question of contract law remains: when should the law supply a term not expressly agreed to? Many scholars have addressed that question, yet the justification for law-supplied terms often remains unconvincing. Because many proposals to supply terms do not incorporate a comparative framework for assessing the costs and benefits of legal interventions, they are incompletely justified. This Article proposes that a comparative net benefit approach (developed in institutional economics to explain private arrangements) be adapted and expanded to resolve the fundamental issues of legal intervention. The Article uses that framework to critique the hypothetical bargain and Ayres/Gertner penalty …

Are Statutes Really "Legislative Bargains"? The Failure Of The Contract Analogy In Statutory Interpretation, Mark L. Movsesian

Faculty Publications

Recent scholarship draws an analogy between contract and statutory interpretation. In this Article, Professor Movsesian explores and rejects that analogy. There are key differences between contracts and statutes, he argues; the intentionalism of contemporary contract law is inappropriate in the context of statutory interpretation. After critically examining the literature on the topic and demonstrating the operative distinctions between contracts and statutes, Professor Movsesian provides a useful illustration in the form of the famous case of Church of the Holy Trinity v. United States. Professor Movsesian shows how a comparison of contract and statutory interpretation sheds light on a number of …

Reshaping The Precontractual Liability Debate: Beyond Short-Run Economics, Juliet P. Kostritsky

Faculty Publications

This article responds to three recent treatments of precontractual bargaining by Professors Richard Craswell and Avery Katz and Mr. Wouter vils: Richard Craswell, Offer, Acceptance, and Efficient Reliance, 48 STAN. L. REv. 481 (1996); Avery Katz, When Should An Offer Stick? The Economics of Promissory Estoppel in Preliminary Negotiations, 105 YALE L.. 1249 (1996); and Wouter Wils, Who Should Bear the Costs of Failed Negotiations? A Functional Inquiry Into Precontractual Liability, 4 JOURNAL DES EcONOMsMs Er DES ETUDES HUMAINES 93 (1993).

Mandatory Arbitration: Alternative Dispute Resolution Or Coercive Dispute Suppression?, Sharona Hoffman

Faculty Publications

The enforceability of mandatory arbitration policies contained in employment contracts between employees and their direct employers remains an open question, even after the Supreme Court's 1991 decision in Gilmer v. Interstate Johnson Lane Corp. While Gilmer gave effect to a mandatory arbitration clause in a contract between a securities broker and his licensing exchange, the Court noted that the contract at issue was not an ordinary employment contract between employer and employee. The Court declined to decide whether arbitration agreements in ordinary employment contracts are per se enforceable under the Federal Arbitration Act or whether these provisions are exempt from …

Severability In Statutes And Contracts, Mark L. Movsesian

Faculty Publications

Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in …

Wrong Side Of The Mountain: A Comment On Bad Faith's Unnatural History, Robert H. Jerry Ii

Faculty Publications

In this Comment, I will argue that courts have ignored bad faith's contractual heritage and have undervalued contract law's ability to respond to insurer misconduct. To draw upon Professor Powers's thoughtful analysis, I believe that courts invoked the tort paradigm before it was clear that the contract paradigm was inadequate. For lack of data, I will stop short of recommending where we should go from here, but I will suggest that our behavior in the face of bad faith liability in tort may have changed no less than the environment and that the perceived relative calm in the tort's current …

A Pragmatic Strategy For The Scope Of Sales Law, The Statute Of Frauds, And The Global Currency Bazaar, Raj Bhala

Faculty Publications

No abstract provided.

The Differing Treatment Of Efficiency And Competition In Antitrust And Tortious Interference Law, Gary Myers

Faculty Publications

During the last twenty years, there has been a revolution in antitrust law. As a result of extensive scholarly and judicial analysis, a new learning has developed concerning the content, role, and effect of antitrust doctrines. This trend has focused primarily on the primacy of consumer welfare and economic efficiency. Most commentators now assume that these two interrelated goals are the principal, if not exclusive, concerns of antitrust law. The United States Supreme Court has responded to these new approaches by modifying or altering antitrust law in a long series of cases. Similarly, the new learning has affected the focus …

Bargaining With Uncertainty, Moral Hazard And Sunk Costs: A Default Rule For Precontractual Negotiations, Juliet P. Kostritsky

Faculty Publications

Drawing from a model of bargaining behavior based on transaction cost economics, relational theories of contract,23 Williamsonian models of contracting behavior, and other economic insights, this Article argues that achieving the optimal solution for the complexities of bargaining relationships demands the adoption of a new legal default rule. This new default rule should have two aspects: First, the law should substantively recognize an implicit bargain, even in the absence of explicitly reciprocal communications. Second, the law should impose an obligation to perform that incorporates the terms of the parties' unexpressed, implicit bargain.

Looking For Default Rule Legitimacy In All The Wrong Places: A Critique Of The Authority Of Contract Model And The Coordination Principle Proposed By Professor Burto, Juliet P. Kostritsky

Faculty Publications

A central question of contract law remains: when should the law supply a term not expressly agreed to? Many scholars have addressed that question, yet the justification for law- supplied terms often remains unconvincing. Because many proposals to supply terms do not incorporate a comparative frameworkfor assessing the costs and benefits of legal interventions, they are incompletely justifled. This Article proposes that a comparative net benefit approach (developed in institutional economics to explain private arrangements) be adapted and expanded to resolve fundamental issues of legal intervention. This Article uses that framework to critique the (1) hypothetical bargain and (2) Ayres/Gertner …

Statutory Personal Property Lease Law In Alabama, Peter A. Alces, P. Cade Newman

Faculty Publications

No abstract provided.

Stepping Out Of The Morass Of Duress Cases: A Suggested Policy Guide, Juliet P. Kostritsky

Faculty Publications

Traditional coercion theories and elements are simply inadequate as an exclusive focus of analysis in duress cases. This Article does not propose a new theory of duress. Instead, it suggests a refinement of doctrine in which the courts candidly articulate certain key policy goals and develop elements based on them. These policy goals include efficiency, disclosure of unexpected risks, judicial capability, reliance, and economic incentives. If decisionmakers adopted the policy analyses suggested here, the predictability of judicial decisionmaking would be enhanced and a supplemental analysis would be available when the doctrinal elements become difficult to apply. Moreover, this approach would …

A New Theory Of Assent-Based Liability Emerging Under The Guise Of Promissory Estoppel: An Explanation And Defense, Juliet P. Kostritsky

Faculty Publications

This Article will demonstrate that these apparently divergent approaches (bargain and promissory estoppel) share unifying elemental criteria that situate them all squarely within an assent-based theory of enforceability. This Article differs from scholarship that depicts promissory estoppel as having a different conceptual or theoretical basis for enforcement. This Article posits that promissory estoppel, together with other orthodox doctrines, are merely substitute doctrinal methods for showing the assent required for an enforceable consensual exchange.

Covenant, Justicies Writs, And Reasonable Showings, Robert C. Palmer

Faculty Publications

No abstract provided.

A Critical Analysis Of The New Uniform Fraudulent Transfer Act, Peter A. Alces, Luther M. Dorr

Faculty Publications

No abstract provided.

The Efficacy Of Guaranty Contracts In Sophisticated Commercial Transactions, Peter A. Alces

Faculty Publications

Even though contracts of guaranty are not subject to uniform standards of interpretation throughout the states, both case law and statutory development have tended to evidence a strong sympathy for the guarantor. In spite of this trend, Professor Alces suggests that creditors' counsel can, through careful drafting, do much to assure the enforceability of the guaranty contract. A scrupulously structured guaranty contract, one that anticipates possible defenses to liability in explicit terms, may well be upheld, even in cases in which guarantors occupied weak negotiating positions vis-a-vis creditors. Moreover, the attack on the guaranty as a fraudulent conveyance under section …

Tenure Rights In Contractual And Constitutional Context, Ronald C. Brown

Faculty Publications

No abstract provided.

Punitive Damages In The Law Of Contract: The Reality And The Illusion Of Legal Change, Timothy J. Sullivan

Faculty Publications

No abstract provided.

The Concept Of Benefit In The Law Of Quasi-Contract, Timothy J. Sullivan

Faculty Publications

No abstract provided.

Application Of Article 85 Paragraph 1, Of The Treaty Of Rome To Intrastate Exclusive Distributorship Agreements, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Contracts And Sales, Joseph Curtis

Faculty Publications

No abstract provided.

Contracts And Sales, Joseph Curtis

Faculty Publications

No abstract provided.

Contracts And Sales, Joseph Curtis

Faculty Publications

No abstract provided.

Contracts And Sales, Joseph Curtis

Faculty Publications

No abstract provided.