Contracts Commons^™

The Cisg Convention And Thomas Franck's Theory Of Legitimacy, Anthony S. Winer

Faculty Scholarship

The Contracts for the International Sale of Goods (CISG) Convention is one of the most talked-about, and written-about, aspects of international commercial law. Ss time progresses, it may become evident that significant numbers of commercial actors and significant numbers of courts and other adjudicatory bodies are simply choosing not to apply the Convention. In such event, the question as to why there should be such a reluctance to adopt the Convention will present itself. This Article finds helpful perspective on this question in the work of international legal scholar Thomas Franck. Specifically, guidance is drawn from the theory of international …

“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 …

Damning With Fulsome Praise: Assessing The Uniqueness Of An Artist Or Performer As A Condition To Enjoin Performance Of Personal Service Contracts In Entertainment Law, Sharon F. Carton

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Unreason In Action: A Case Study In The Wrong Approach To Construing The Liability Insurance Pollution Exclusion, Jeffrey W. Stempel

Scholarly Works

For more than twenty-five years, a significant component of the scholarly commentary on insurance law has focused on the so-called “reasonable expectations doctrine” enunciated by then-Professor (now Judge) Robert Keeton in his justly celebrated 1970 article. The reasonable expectations principle made a seemingly sudden emergence with the appearance of Keeton's article and has held particular attraction to academics while simultaneously prompting resistance from elements of the bench and bar, and particularly from the insurance industry. The doctrine's life to date can be described as one of early growth followed by subsequent retreat and dilution, with continuing controversy.

However, despite the …

Unmet Expectations: Undue Restriction Of The Reasonable Expectations Approach And The Misleading Mythology Of Judicial Role, Jeffrey W. Stempel

Scholarly Works

A complete and open embrace of the pure version of the doctrine as enunciated in Judge Keeton's famous article--which expressly provides for finding coverage consistent with the objectively reasonable expectations of the policyholder even where those expectations are contradicted by apparently clear policy language --is viewed by much of the legal and political mainstream as too inconsistent with the prevailing American paradigm of judicial restraint, strict construction of disputed texts, and minimal government involvement in market activity. Some of this resistance to reasonable expectations is the product of an unrealistic reification of the prevailing American politico-legal philosophy of judicial restraint. …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance law in the year 1998.

Contract Interpretation In California: Plain Meaning, Parol Evidence And Use Of The "Just Result" Principle, H.G. Prince

Faculty Scholarship

No abstract provided.

Rescuing Reliance: The Perils Of Promissory Estoppel, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Introduction, Maja Dagny Chaffe

Seattle University Law Review

Introduction to the annual Casebook Review issue.

A Casebook For All Seasons?—Another Casebook Review, E. Allan Farnsworth, W.F. Young

Seattle University Law Review

This Essay responds to a casebook review published in the previous annual Casebook Review issue.

The License Is The Product: Comments On The Promise Of Article 2b For Software And Information Licensing, Robert W. Gomulkiewicz

Articles

Article 2B promises to draw together contract principles for software and information licensing that, at present, are spread among various bodies of law.

This Article argues that Article 2B must affirm industry standard licensing practices in order to prove beneficial. For example, Article 2B's affirmation of industry standard mass market licensing is important for both publishers and end users. Article 2B must also provide the flexibility to accommodate new distribution and licensing models that will arise as electronic commerce matures. Any other approach would fundamentally disrupt the software and information industries.

Moreover, this Article urges the drafters of Article 2B …

Client Beware: The Need For A Mandatory Written Fee Agreement Rule, Lawrence A. Dubin

Oklahoma Law Review

No abstract provided.

Law, Literature, And Contract: An Essay In Realism, Blake D. Morant

Michigan Journal of Race and Law

In this Essay, the Author examines contract doctrine's weaknesses as applied to issues of race and gender. By contrasting the doctrinal silence concerning these issues with facts and circumstances that may have influenced the results in specific cases, the Author challenges classical contract theory's assertion of objectivity and its associated assumption of bargaining equality as an integral component of each contract. The Author then uses literature as an illustrative tool to highlight contract law's failings in contexts where bargaining disparities related to race and gender issues are present. This approach is not meant to eliminate contract rules but rather to …

Free To Choose, Randy E. Barnett

Seattle University Law Review

This Essay responds to a casebook review published in the previous annual Casebook Review issue.

Origins And Scope Of The American Moral Obligation Principle , Kevin M. Teeven

Cleveland State Law Review

The existence of the moral obligation principle in American case law has been recognized in the Restatement (Second) of Contracts section 86 (1): "A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent necessary to prevent injustice." Among common law countries, American jurisdictions are unique in recognizing this ameliorating doctrine. An analysis of the development and scope of this doctrine is buried in the centuries of case law surrounding the tension between the past consideration rule and the moral obligation principle. The intent of this study is to glean …

Bloomer Girl Revisited Or How To Frame An Unmade Picture, Victor P. Goldberg

Faculty Scholarship

Nearly all contracts casebooks feature the saga of Shirley MacLaine's suit against Twentieth Century Fox arising from the cancellation of the proposed film Bloomer Girl. None really get the story right. To be fair, none try. The case is a vehicle for exploring the obligation of the victim of the breach of an employment contract to take alternative employment. If MacLaine refused an offer of alternative employment that was not "different and inferior," her failure to mitigate would mean that the earnings she would have received would be offset against the damages; so, asked the court, was the alternative …

Freeing The Tortious Soul Of Express Warranty Law, James J. White

Articles

I suspect that most American lawyers and law students regard express warranty as neither more nor less than a term in a contract, a term that is subject to conventional contract rules on formation, interpretation, and remedy. Assume, for example, that a buyer sends a purchase order to a seller and the purchase order specifies the delivery of 300 tons of "prime Thomas cold rolled steel." The acknowledgment also describes the goods to be sold as "prime Thomas cold rolled steel." Every American lawyer would agree that there is a contract to deliver such steel and furthermore would conclude that …

The Past And Future Of Kentucky's Fraudulent Transfer And Preference Laws, Douglas C. Michael

Law Faculty Scholarly Articles

An important part of the law of creditors' remedies is the ability of creditors to recover property formerly held by the debtor, but transferred to others under circumstances that are considered to be unfair or inequitable. There are two principal ways a creditor can seek to have a debtor's transfer characterized as unfair in order to recover it. First, a transfer to another creditor or a third party can be fraudulent as to one or all of the remaining creditors, or may be deemed to be fraudulent because of the circumstances surrounding the transfer, such as a transfer made by …

The Interpretation Of The Remedial Provisions Of The Cisg, Evelina Wilhelmina Innocentia Visser

LLM Theses and Essays

The drafting process of the most successful international uniform law of the last decades, the 1980 United Nations Convention on the International Sale of Goods (CISG) reflected that in order to become a set of "well-balanced subsidiary rules," international uniform must be drafted and implemented carefully. It is essential that an international uniform law is adapted to diverse cultures. The different needs and demands of the varied socio-economic systems and legal structures, perceptions, procedures, and cultures of the distinct legal systems of this world are a main and omnipresent consideration and must be capable of absorbing the unified law. Either …

Debt Instruments' Tax Treatment In Corporate Mergers And Acquisitions, Tae Oon Jang

LLM Theses and Essays

The increase of merger and acquisition(M&A) activity since 1992 has resulted mainly from a domestic economic recovery. The current M&A trend shows that M&A is still an important means of enhancing many corporations' competitive power and of stimulating growth in such areas as computer software and services, wholesale and distribution, miscellaneous services, banking and finance, and leisure and entertainment. Fundraising for mezzanine-fund financing, which reflects investors' foresight about current and future M&A trends, has also seen rapid growth. After the Tax Reform Act of 1986 and the repeal of the General Utilities doctrine, the elimination of the capital gain preference …

The New York Court Of Appeals: 150 Years Of Leading Decisions, Stewart E. Sterk

Articles

During its first 150 years, the New York Court of Appeals has had more impact on more areas of law than any other court in the United States. Other state courts-the California Supreme Court in the Traynor era, the New Jersey Supreme Court under Chief Justice Weintraub, to take two obvious examples-have had enormous impact, but no other state court has generated leading case after leading case in every decade for 150 years. Federal courts, including the United States Supreme Court, have had an enormous impact on American law, but that impact has been concentrated in public law; no federal …

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 …

Independent Contractor Or Employee? Misplaced Reliance On Actual Control Has Disenfranchised Artistic Workers Under The National Labor Relations Act, Thomas M. Murray

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Cisg Convention And Thomas Franck's Theory Of Legitimacy, Anthony S. Winer

Northwestern Journal of International Law & Business

The Contracts for the International Sale of Goods (CISG) Convention is one of the most talked-about, and written-about, aspects of international commercial law. Ss time progresses, it may become evident that significant numbers of commercial actors and significant numbers of courts and other adjudicatory bodies are simply choosing not to apply the Convention. In such event, the question as to why there should be such a reluctance to adopt the Convention will present itself. This Article finds helpful perspective on this question in the work of international legal scholar Thomas Franck. Specifically, guidance is drawn from the theory of international …

Intervention And Joinder As Of Right In International Arbitration, S. I. Strong

Vanderbilt Journal of Transnational Law

For the purpose of this Article, an existing party is said to have a claim to join a third party into an arbitration as of right when (1) in the third party's absence, complete relief cannot be accorded among those already parties to the arbitration or (2) the third party asserts an interest relating to the subject of the arbitration and is so situated that the disposition of the arbitration in the third party's absence may (a) as a practical matter impair or impede the third party's ability to protect that interest or (b) leave any of the persons already …

Marriage As Relational Contract, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

The evolution of marriage from a relationship based on status to one that is regulated by contractual norms achieved a milestone of sorts recently with the enactment of the Louisiana Covenant Marriage Act. Under this statute, couples entering marriage can choose to have the termination of their relationship regulated under conventional no-fault divorce rules, or they can voluntarily undertake a greater commitment to their marriage. For couples who select covenant marriage, either party can terminate the relationship on fault grounds, but unilateral termination of the marriage is available only after a substantial waiting period. The principal impact of the statute …

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David V. Snyder

Articles by Maurer Faculty

No abstract provided.

Contracts Clause, Supreme Court, Appellate Division Third Department: B.O.C.E.S. For Sole Supervisory District Of Rockland County V. State Of New York

Touro Law Review

No abstract provided.

A Wayward Notion In New York’S Law: The Unique Employee Rationale For Enforcing Non-Competes, Steven M. Kayman, John Siegel

Touro Law Review

No abstract provided.