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Articles 1 - 30 of 56
Full-Text Articles in Contracts
Using State And Local Governments’ Purchasing Power To Combat Wage Theft, Courtlyn G. Roser-Jones
Using State And Local Governments’ Purchasing Power To Combat Wage Theft, Courtlyn G. Roser-Jones
Washington and Lee Law Review
Regulatory efforts to curb wage theft are failing. And for good reason: these laws generally empower individual workers to pursue their rights when employers neglect to pay them what they are owed and deter employers with substantial penalties. But the vast majority of workers do not take formal action against their employers. So, when the penalties for committing wage theft are almost entirely triggered by claims workers do not bring, they do not deter employer behavior. Instead, because the likelihood of being penalized at all is so low, some employers make profit-maximizing decisions to commit wage theft on a large …
Mitigating The Legal Challenges Associated With Blockchain Smart Contracts: The Potential Of Hybrid On-Chain/Off-Chain Contracts, Niloufer Selvadurai
Mitigating The Legal Challenges Associated With Blockchain Smart Contracts: The Potential Of Hybrid On-Chain/Off-Chain Contracts, Niloufer Selvadurai
Washington and Lee Law Review
Tantamount with the increasing application of blockchain technologies around the world, the use of blockchain-based smart contracts has rapidly risen. In a “smart contract,” computer protocols automatically facilitate, verify, and enforce arrangements made between parties on a blockchain. Such smart contracts offer a variety of commercial benefits, notably immutability and increased efficiency facilitated by removing the need for a trusted intermediary. However, as discussed in recent legal scholarship, it is difficult for smart contracts to uphold certain fundamental principles of contract law. Translating concepts of individual intention and responsibility into the decentralized space of blockchain is problematic. Aggregating such individual …
Digital Property Cycles, Joshua Fairfield
Digital Property Cycles, Joshua Fairfield
Washington and Lee Law Review
The present downturn in non-fungible token (“NFT”) markets is no cause for immediate alarm. There have been multiple cycles in both the legal and media focus on digital intangible property, and these cycles will recur. The cycles are easily explainable: demand for intangible property is constant, even increasing. The legal regimes governing ownership of these assets are unstable and poorly suited to satisfying the preferences of buyers and sellers. The combination of demand and poor legal regulation gives rise to the climate of fraud that has come to characterize NFTs, but it has nothing to do with the value of …
Mass Arbitration 2.0, Andrew B. Nissensohn
Mass Arbitration 2.0, Andrew B. Nissensohn
Washington and Lee Law Review
Over the past four decades, corporate interests, in concert with the Supreme Court, have surgically dismantled the American civil litigation system. Enacted nearly a century ago, the Federal Arbitration Act (FAA) was once a procedural law mandating that federal courts enforce arbitration agreements between sophisticated parties with equal bargaining power. Through death by a thousand cuts, corporate interests shielded themselves from nearly all methods of en masse dispute resolution. These interests weaponized the FAA into a “one size fits all” means to compel potential litigants with unequal bargaining power into arbitration. The so-called “Arbitration Revolution” is the subject of much …
Whiteness As Contract, Marissa Jackson Sow
Whiteness As Contract, Marissa Jackson Sow
Washington and Lee Law Review
2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …
Creating Cryptolaw For The Uniform Commercial Code, Carla L. Reyes
Creating Cryptolaw For The Uniform Commercial Code, Carla L. Reyes
Washington and Lee Law Review
A contract generally only binds its parties. Security agreements, which create a security interest in specific personal property, stand out as a glaring exception to this rule. Under certain conditions, security interests not only bind the creditor and debtor, but also third-party creditors seeking to lend against the same collateral. To receive this extraordinary benefit, creditors must put the world on notice, usually by filing a financing statement with the state in which the debtor is located. Unfortunately, the Uniform Commercial Code (U.C.C.) Article 9 filing system fails to provide actual notice to interested parties and introduces risk of heavy …
Contract Design, Default Rules, And Delaware Corporate Law, Jeffrey Manns, Robert Anderson
Contract Design, Default Rules, And Delaware Corporate Law, Jeffrey Manns, Robert Anderson
Washington and Lee Law Review
Incomplete contract theory recognizes that contracts cannot be comprehensive and that state law necessarily has to fill in gaps when conflicts arise. The more complex the transaction, the more that lawyers face practical constraints that force them to limit the scope of drafting and broadly rely on legal defaults and open-ended terms to plug holes and address contingencies. In theory Delaware law serves as lawyers’ preferred jurisdiction and forum for merger and acquisition (M&A) transactions and other high-end corporate deals because of the state’s superior default rules for corporate law and its judiciary’s expertise in discerning the “hypothetical bargain” of …
A Commercial Law For Software Contracting, Michael L. Rustad, Elif Kavusturan
A Commercial Law For Software Contracting, Michael L. Rustad, Elif Kavusturan
Washington and Lee Law Review
Since the 1980s, software is at the core of most modern organizations, most products and most services. Part II of this Article examines how the U.C.C. evolved as the primary source of law for the first generation of computer contracts during the mainframe computer era. Part III examines how courts have overextended U.C.C. Article 2, as the main source of law for software licensing, to the limits. Part IV argues that the ALI and the NCCUSL should propose a new Article 2B for software licensing. Part V recommends a new Article 2C for “software as a service.”
Reckoning Contract Damages: Valuation Of The Contract As An Asset, Victor P. Goldberg
Reckoning Contract Damages: Valuation Of The Contract As An Asset, Victor P. Goldberg
Washington and Lee Law Review
No abstract provided.
Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia SáNchez Abril, Nicholas Greene
Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia SáNchez Abril, Nicholas Greene
Washington and Lee Law Review
Morality clauses give a contracting party the right to terminate if the other party behaves badly or embarrassingly. A curious product of twentieth-century Hollywood, these contract clauses have traditionally been used to control the antics of entertainers and athletes. The current politically-sensitive historical moment, combined with the internet’s ability to broadcast widely and permanently, has put everyone’s off-duty speech, conduct, and reputation under the microscope. Media reports detailing people’s digital falls from grace abound. For fear of negative association, businesses are more attuned than ever to the extracurricular acts of their agents and associates—and are increasingly binding them to morality …
Customized Procedure In Theory And Reality, W. Mark C. Weidemaier
Customized Procedure In Theory And Reality, W. Mark C. Weidemaier
Washington and Lee Law Review
Contract theory has long posited that parties can maximize contract value by manipulating the procedural rules that will apply if there is a dispute. Beyond choosing a litigation or arbitration forum, parties can allocate costs and fees, alter pleading standards, adjust evidentiary and discovery rules, and customize nearly every aspect of the adjudication process. In time, this theoretical insight became a matter of faith. The assumption that contracts routinely alter procedural rules spawned debate over the normative implications of allowing parties to dictate procedure. Only recently have a few studies suggested that this debate may lack a firm empirical foundation. …
Vertical Boilerplate, James Gibson
Vertical Boilerplate, James Gibson
Washington and Lee Law Review
Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate—take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach—i.e., they sample a single stratum of boilerplate and assume that it represents the …
Beyond Ex Post Expediency—An Ex Ante View Of Rescission And Restitution, Richard R.W. Brooks, Alexander Stremitzer
Beyond Ex Post Expediency—An Ex Ante View Of Rescission And Restitution, Richard R.W. Brooks, Alexander Stremitzer
Washington and Lee Law Review
It is commonly held that if getting a contractual remedy was costless and fully compensatory, rescission followed by restitution would not exist as a remedy for breach of contract. This claim, we will demonstrate, is not correct. Rescission and restitution offer more than remedial convenience. Rational parties, we argue, would often desire a right of rescission followed by restitution even if damages were fully compensatory and costless to enforce. The mere presence of a threat to rescind, even if not carried out, exerts an effect on the behavior of parties. Parties can enlist this effect to increase the value of …
Restitution In A Contractual Context And The Restatement (Third) Of Restitution & Unjust Enrichment, Joseph M. C. Perillo
Restitution In A Contractual Context And The Restatement (Third) Of Restitution & Unjust Enrichment, Joseph M. C. Perillo
Washington and Lee Law Review
No abstract provided.
After Frustration: Three Cheers For Chandler V. Webster, Victor P. Goldberg
After Frustration: Three Cheers For Chandler V. Webster, Victor P. Goldberg
Washington and Lee Law Review
Performance of a contract can be excused by a number of circumstances, notably impossibility, impracticability, and frustration. When performance is excused there remains the question of how to treat any payments or expenditures that were made prior to the occurrence of the contract-frustrating event. In Chandler v. Webster, the English courts decided over a century ago that the parties should be left where they were at the time of the frustrating event. Forty years later that holding was overturned so that now recovery might be had both for restitution of payments made prior to the event and for expenditures made …
Filling In The Blank: Defining Breaches Of Contract Excepted From Discharge As Willful And Malicious Injuries To Property Under 11i U.S.C. § 523(A)(6), Bryan Hoynak
Washington and Lee Law Review
No abstract provided.
The Failure Of Economic Interpretations Of The Law Of Contract Damages, Nathan B. Oman
The Failure Of Economic Interpretations Of The Law Of Contract Damages, Nathan B. Oman
Washington and Lee Law Review
The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …
Rediscovering Williston, Mark L. Movsesian
Rediscovering Williston, Mark L. Movsesian
Washington and Lee Law Review
This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston 's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than commonly supposed. Even the undertheorized quality of Williston 's …
Archer V. Warner: Circuit Split Resolution Or Contractual Quagmire?, Jennifer R. Belcher
Archer V. Warner: Circuit Split Resolution Or Contractual Quagmire?, Jennifer R. Belcher
Washington and Lee Law Review
No abstract provided.
Could Fair Use Equal Breach Of Contract?: An Analysis Of Informational Web Site User Agreements And Their Restrictive Copyright Provisions, Matthew D. Walden
Could Fair Use Equal Breach Of Contract?: An Analysis Of Informational Web Site User Agreements And Their Restrictive Copyright Provisions, Matthew D. Walden
Washington and Lee Law Review
No abstract provided.
Reclaiming The "Creatures Of The State": Contracting For Child Custody Decisionmaking In The Best Interests Of The Family, E. Gary Spitko
Reclaiming The "Creatures Of The State": Contracting For Child Custody Decisionmaking In The Best Interests Of The Family, E. Gary Spitko
Washington and Lee Law Review
No abstract provided.
Freedom Of Contract And The Securities Laws: Opting Out Of Securities Regulation By Private Agreement, Elaine A. Welle
Freedom Of Contract And The Securities Laws: Opting Out Of Securities Regulation By Private Agreement, Elaine A. Welle
Washington and Lee Law Review
No abstract provided.
Freedom Of Contract, Fiduciary Duties, And Partnerships: The Bargain Principle And The Law Of Agency, J. Dennis Hynes
Freedom Of Contract, Fiduciary Duties, And Partnerships: The Bargain Principle And The Law Of Agency, J. Dennis Hynes
Washington and Lee Law Review
No abstract provided.
Freedom Of Contract: The Trojan Horse Of Rule 10b-5, Margaret V. Sachs
Freedom Of Contract: The Trojan Horse Of Rule 10b-5, Margaret V. Sachs
Washington and Lee Law Review
No abstract provided.
Twelve Letters From Arthur L. Corbin To Robert Braucher, Joseph M. Perillo
Twelve Letters From Arthur L. Corbin To Robert Braucher, Joseph M. Perillo
Washington and Lee Law Review
No abstract provided.
Contract Versus Contractarianism: The Regulatory Role Of Contract Law, Jean Braucher
Contract Versus Contractarianism: The Regulatory Role Of Contract Law, Jean Braucher
Washington and Lee Law Review
No abstract provided.
Tests Of Contractual Integration
Inventory Lender As A Good Faith Purchaser For Value: Priority Problems In U.C.C. 2-702
Inventory Lender As A Good Faith Purchaser For Value: Priority Problems In U.C.C. 2-702
Washington and Lee Law Review
No abstract provided.
Court Enforcement Of Union Fines
Choice Of Law Stipulations By Litigants
Choice Of Law Stipulations By Litigants
Washington and Lee Law Review
No abstract provided.