Contracts Commons^™

Think Twice Before You Sign! An Experiment On A Cautionary Function Of Contractual Formalities, Monika Leszczynska

Faculty Scholarship

Contractual formalities, such as handwritten signatures, have long been viewed as serving a cautionary function that protects individuals from entering ill-considered agreements. With the rise of digital contracting, it is uncertain whether online forms of assent can play the same role. In an incentivized laboratory experiment, four modes of contract confirmation were compared: clicking “OK,” typing one’s name, entering a PIN code (analogous to a qualified e-signature), and handwritten signing. The study examined how these methods affect choices between smaller–sooner and larger–later rewards. Results show that participants were more impulsive when confirming by clicking “OK” or typing their name than …

Inexcuseable? Building An Artificial Intelligence Microexpert On Contract Excuse Doctrine, Mark Edwin Burge

Faculty Scholarship

This article details and advocates for a general methodology for creating a "microexpert" grounded in a user-defined set of legal sources and widelyaccessible tools for integrating generative artificial intelligence (AI) into legal analysis. The study focuses particularly on background contract excuse doctrines of impossibility, impracticability, and frustration of purpose, which are collectively a methodologically challenging area of law to rationalize due to factintensive variables that undermine their predictability. Particular challenges include assessing the foreseeability of the event that led to the contract's nonperformance, the extent of the hardship or burden on the party seeking excuse, and the purpose of the …

Bankrupt Crypto Organizations, Kara Bruce, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

This Article provides the first comprehensive analysis of the intersection between decentralized autonomous organizations (DAOs) and American bankruptcy law. DAOs are blockchain-based entities that enable individuals to pursue common goals using decentralized decision-making and automated governance. Since their recent emergence, DAOs have proliferated dramatically—with over 20,000 organizations managing over $20 billion in assets and engaging in activities ranging from investment management to real estate and even attempting to purchase historic copies of the U.S. Constitution. Yet like any other organization, DAOs can fail, creating an urgent need to understand what happens when unstoppable code meets immovable bankruptcy law.

Our investigation …

Teaching Contracts: My Journey With Spellbook And Ai Pedagogy, Gregory M. Duhl

Faculty Scholarship

I am integrating Spellbook, an AI tool for contract drafting and review, into my first-year law school Contracts course in Spring 2026. Although Spellbook is highly effective, its educational value hinges on the pedagogical framework structured around it, a framework typically not licensed along with AI tools. In-house instructional design expertise can provide this framework, and the professor-instructional designer partnership offers one model for successful AI integration. Strong tools paired with robust instructional design yield learning experiences in which AI augments, rather than supplants, the cultivation of legal judgment and critical thinking. This collaborative approach, among educators, instructional designers, and …

Do-It-Yourself Reparations, Martha M. Ertman

Faculty Scholarship

The magnitude of harms like white supremacy makes it difficult to precisely identify losses, let alone remedy them. Piecemeal approaches are essential, and private efforts may be the only option when public law and cultural norms deny or perpetuate the harms. This Article addresses one racial harm, the 10:1 racial wealth gap between white and black Americans, in the context of residential segregation over the past century. It contends that the equitable doctrine of restitution enables us to recognize and remedy the unjust enrichment enjoyed by white Baby Boomers caused by private law mechanisms such as racially restrictive covenants, all …

Does It Matter What People Lie About?, Stefanie Jung, Peter Krebs, Monika Leszczynska

Faculty Scholarship

We investigate whether people’s moral judgments of lies in pre-contractual negotiations differ from their views on whether such lies should give the deceived party a legal right to rescind the contract, and whether these judgments depend on the content of the lie. In a vignette study with 832 German students and 885 participants from Germany, Italy, and the United States, respondents evaluated a range of common negotiation lies. Across samples, participants were generally more likely to deem a lie immoral than to believe it should justify rescission, but the size of this gap varied depending on the lie’s subject. Lies …

The Autonomy Default Paradigm In Contract Law, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

You can scribble an agreement on a napkin or hire lawyers to negotiate a hundred-page contract. Either way, most of your contractual obligations will not be in your document. They will be in the background rules contract law applies absent your express agreement. Justifying these defaults is a core task of contract theory; getting them right is a core task of contract law.

This Article introduces the autonomy default paradigm, a conceptually coherent and normatively attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our …

Defending Form Contract Consent, Wayne R. Barnes

Faculty Scholarship

The issue of standard form contracts has bedeviled Contracts scholars for a century. The basic problem has long been known. Contract is supposed to be a quintessentially consensual activity, whereby both parties are operating with full knowledge and comprehension of the array of terms and conditions being negotiated and agreed to. But by employing standard forms replete with boilerplate fine print, companies have created a regime whereby it is most likely irrational for consumers to bother reading the terms before consenting to the transaction. The existing “duty to read” doctrine is that consumers fully consent to all terms when they …

Cisg (2025 Survey), Wayne R. Barnes

Faculty Scholarship

This survey article discusses cases during the prior year, which are decided based on one or more provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is a United Nations treaty that provides a uniform international sales law. It was adopted in Vienna in 1980 and went into effect in 1988. The CISG governs contracts for the international sale of goods between businesses located in different countries that have ratified the treaty. It has been adopted by 95+ countries, including major trading nations like the United States, China, and most European countries. …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2024 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions. Along with the usual descriptions of interesting judicial decisions highlighted in the survey, there has also been legislative progress. The 2022 Amendments to the Uniform Commercial Code ("U.C.C.") (the "2022 Amendments")' have been adopted in thirty-one states plus the District of Colombia and introduced in six states.

Drive-By Mediation And Other Opportunistic Distortions Of Process, Nancy A. Welsh

Faculty Scholarship

Many states in the United States, along with many nations, have implemented special benefits and privileges to encourage parties’ use of mediation to assist their communication, negotiation, and ultimate resolution of disputes. This is despite how loosely mediation is defined. This Article discusses how vague definitions, paired with special benefits and privileges, are incentivizing both the opportunistic distortion of mediation and the use of mediation for improper purposes. In Texas, for example, judges are extraordinarily limited in their ability to disapprove parents’ mediated child custody agreements—even if there is reason to worry that an agreement is contrary to the best …

Empirical Methods In Contract Law, Monika Leszczynska

Faculty Scholarship

Researchers employ various empirical methods to provide insights into contractual legal issues. For instance, systematic content analysis has been used to examine the terms of contracts or court judgments in contractual disputes. This approach, though different from doctrinal methods, enhances our understanding of legal content. Surveys and experimental methods, on the other hand, provide evidence on people's perceptions of contract terms or contractual behavior such as consent, misrepresentation, or breach. The findings from these studies inform contract law theories, which are based on assumptions about behavior in contractual relationships. Empirical studies also strengthen arguments in normative research by providing evidence …

Bound: The Imaginative Surplus Of Contractual Intent, Elizabeth F. Emens

Faculty Scholarship

Contract law is generally understood in terms of enforcement. The legal definition of a contract is a promise that the state will enforce. Individuals are empowered by contract law to create legal arrangements that the state will step in and enforce. And yet most contracts never make it to court.

This Article inverts the conventional focus on enforcement through a study of extralegal contracts. These are formal written agreements that parties call contracts but are not intended for legal enforcement. Examples of these extralegal contracts include no-suicide contracts and contracts for sexual slavery.

Examining extralegal contracts offers multiple insights. First, …

"Price Discrimination" Discrimination, Talia B. Gillis

Faculty Scholarship

Credit price personalization, where lenders set prices based on individual borrower and loan characteristics, is a common practice across many loan types, with conventional accounts of its harms focusing on the ways in which risk-based pricing, or setting prices based on borrowers’ credit risk, can lead to disparities for protected groups like racial minorities and women. This Article examines an often-overlooked yet potentially harmful form of price personalization — charging borrowers different rates based on their willingness-to-pay, known as price discrimination — and argues that this practice can exploit vulnerable borrowers, including protected groups like racial minorities and women, by …

Secondary-Default Remedies: Should Harshness Limit Enforcement?, Steven L. Schwarcz

Faculty Scholarship

This Article examines a critical but largely unexplored issue in contract law: whether secondary defaults—that is, relatively minor or technical defaults not involving debt repayment— should justify enforcing severe contractual remedies. In the context of lending, this issue concerns whether those types of defaults should justify terminating financing commitments, accelerating the maturity of outstanding debt, and foreclosing on collateral, any of which can cause a firm’s failure. Although this issue arises constantly and its resolution can be critical to a firm’s survival, judges and lawyers lack clear answers. This Article analyzes and seeks to provide answers both under existing law …

Commercial Boilerplate: A Review And Research Agenda, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Boilerplate contracts have long fascinated legal scholars. But the focus has been largely on consumer contracts, with the debate centered on the question of whether take-it-or-leave-it mass-produced forms imposed on consumers by large corporations should be treated as contracts or as a problem in regulation. By contrast, commercial boilerplate — the standard forms used in transactions for corporate or sovereign bonds or merger agreements — has traditionally received little attention. The assumption has been that form contracts among sophisticated parties may differ in form but not in substance from bespoke contracts between business entities. Yet a growing body of scholarship …

Cisg, Wayne R. Barnes

Faculty Scholarship

This survey article discusses cases during the prior year, which are decided based on one or more provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is a United Nations treaty that provides a uniform international sales law. It was adopted in Vienna in 1980 and went into effect in 1988. The CISG governs contracts for the international sale of goods between businesses located in different countries that have ratified the treaty. It has been adopted by 95+ countries, including major trading nations like the United States, China, and most European countries. …

Shifting Toward Boilerplate Regulation, Wayne R. Barnes

Faculty Scholarship

Consumer assent to standard form contracts has been creating cognitive dissonance among contracts scholars for a century. Businesses impose standard forms on consumers, who never read the terms. But consumers would not understand them if they did. And they don’t have the bargaining power to change them anyway—the terms are famously “take it or leave it.” Contracting is ideally theorized as an act of voluntary, knowing consent to all the terms agreed to. The dissonance is that consumers, although ostensibly signaling their assent to the boilerplate by signing (or clicking, or tapping their phone screen), do not in fact know …

Uniform Commercial Code: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne R. Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2023 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions. Along with the usual descriptions of interesting judicial decisions highlighted in the survey, there has also been legislative progress in several areas. The 2022 Amendments to the Uniform Commercial Code ("U.C.C.") (the "2022 Amendments") have been adopted in twenty-four states plus the District of Colombia and introduced in five states.

The Sources And Consequences Of Disputes Over Contractual Meaning, Randy D. Gordon

Faculty Scholarship

With some frequency, parties agree to the particular words used in a contract they sign, only to later disagree as to the meaning of those words and their legal effect. That is, they each assent to something, but that “something” is something different for each of them. In this Article, I first categorize and trace the sources of recurring points of disagreement as a matter of language and linguistics. Then, I look at the consequences of a dispute that leads a fact finder to conclude that the parties genuinely did not agree to the same thing, which is to say …

Online Disinhibited Contracts, Wayne R. Barnes

Faculty Scholarship

There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, …

Silencing Jorge Luis Borges The Wrongful Suppression Of The Di Giovanni Translations, Wes Henricksen

Faculty Scholarship

No abstract provided.

Contractual Landmines, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Conventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines — some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other …

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Faculty Scholarship

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

Representations & Warranties, Fraud, And Risk Shifting: An Analytical Framework, Steven L. Schwarcz

Faculty Scholarship

Do violations of contractual representations and warranties (“R&Ws”) merely shift risk by giving rise to contract-breach damages, or can they also give rise to fraud claims? This question is at the heart of numerous lawsuits, including billions of dollars of securitization-related litigation. Many agreements governing the issuance of securities in these transactions limit R&W breach claims to a sole contractual remedy—curing the violation or repurchasing nonconforming loans that caused the violation. Although parties making the R&Ws argue that this sole remedy should adequately shift risk, investor plaintiffs contend that it insufficiently shifts the risk if the violations are extensive. Plaintiffs …

Ucc § 2-510: A Commercial Law Blunder?, Steven L. Schwarcz

Faculty Scholarship

Commercial law, as codified by the Uniform Commercial Code ("UCC"), recognizes certain important policy goals and commercial realities as a basis to override property law. Among other provisions, § 2-509 of the UCC allocates the risk of loss to goods in transit to the party who controls and would be expected to insure the goods, whether or not that party owns the goods at the time of their loss. Promoting commercial reality over the "arbitrary shifting" of rights based on property has been widely praised. Shortly after that risk-of-loss provision was enacted, however, it was modified by an additional UCC …

What Mediation Romantics Can Learn From The Model T (Or Maybe The Chevrolet Trax), Nancy A. Welsh

Faculty Scholarship

When mediation was reintroduced to the U.S. in the 1970s, it was infused with a democracy-and-self-determination-enhancing, social justice ethos. As the process has been very successfully institutionalized, however, these ambitions have been scaled backalthough, at least arguably, certain "mediative elements" have actually been adopted (or coopted) by other procedural innovations. Perhaps it is time for those of us frustrated with the evolution of mediation to reconcile ourselves to the reality and value of a "basic" model of mediation designed for the sole purpose of getting parties from dispute to settlement-in much the same way that the basic model of a …

After Ftx: Can The Original Bitcoin Use Case Be Saved?, Mark Burge

Faculty Scholarship

Bitcoin and the other cryptocurrencies spawned by the innovation of blockchain programming have exploded in prominence, both in gains of massive market value and in dramatic market losses, the latter most notably seen in connection with the failure of the FTX cryptocurrency exchange in November 2022. After years of investment and speculation, however, something crucial has faded: the original use case for Bitcoin as a system of payment. Can cryptocurrency-as-a-payment-system be saved, or are day traders and speculators the actual cryptocurrency future? This article suggests that cryptocurrency has been hobbled by a lack of foundational commercial and consumer-protection law that …

Education, Employment, And Healthcare: Personal And Societal Strategies For Transitioning Servicemembers' Fiscal Sustainability, Kan Samuel

Faculty Scholarship

No abstract provided.

The Puzzle Of Floating Forum Selection Clauses, Robin J. Effron, John F. Coyle

Faculty Scholarship

No abstract provided.