Contracts Commons^™

Slides: Lower Arkansas Valley Super Ditch Company, Inc.: Water Leasing Program, Peter Nichols

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Peter Nichols, General Counsel of the Lower Arkansas Valley “Super Ditch” Company, Trout, Raley, Montano, Witwer & Freeman PC, Colorado

33 slides

Slides: Idaho Rental Pool: Rules And Procedures, Idaho Water Resource Board, Jerry R. Rigby

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Jerry Rigby, Counsel for Fremont‐Madison Irrigation District, Rigby, Thatcher, Andrus, Rigby & Moeller, Idaho

25 slides

Agenda: Evolving Regional Frameworks For Ag-To-Urban Water Transfers, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program, Western Water Assessment (Program), Red Lodge Clearinghouse

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

The permanent transfer of water from agricultural users to municipalities has become a common feature of water management in several western states. In many cases, these voluntary market‐based transfers provide significant benefits to both the buyers and sellers, but many third parties—including remaining irrigators, rural businesses and communities dependent upon agricultural economies—have been negatively impacted. While some impacts of these so‐called “buy and dry” transfers are largely unavoidable, many can be lessened by temporary arrangements that only shift water to cities in years when municipal supplies are inadequate, such as drought and post‐drought storage recovery, and by consolidating individual farm‐to‐city …

Slides: Pvid/Mwd Land Management, Crop Rotation And Water Supply Program, Ed Smith

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Ed Smith, General Manager, Palo Verde Irrigation District, Southern California

25 slides

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes

Faculty Scholarship

Most of the world, including Anglo-American jurisdictions, conforms to the objective theory of contract, which posits that contract formation is determined by reference solely to external evidence of manifestations of assent. On the other hand, France uniquely clings to the rhetoric of its “subjective” theory of contract, championing the freedom of the individual and the autonomy of the will. France’s association with a subjective theory of contract is widely recognized and assumed. One would initially assume that the French subjectivist philosophy would result in dramatically different outcomes in actual cases, when compared with the objectivist rules-based perspective that obtains in …

Real Estate Law, Richard W. Gregory, Lindsey Dobbs Chase

University of Richmond Law Review

No abstract provided.

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Faculty Publications

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …

Construction Law, D. Stan Barnhill

University of Richmond Law Review

No abstract provided.

Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz

Faculty Publications

Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead, it …

Contract Management: A P.A. Education For Boundary Managers., M. Ernita Joaquin

Public Policy and Leadership Faculty Research

Graduates of public administration programs might reasonably be expected to accurately spell out, even in their sleep, POSDCoRB. After all, it was Luther Gulick's rock-hewn formulation of the skills involved in public administration, circa 1937. Almost seven decades later, in their book Governing by Network, Stephen Goldsmith and William Eggers called for a
/="/">cultural transformation in the way we build capacity in the public sector, and, as I see it, crafting a new POSDCoRB for our time.

Uneasy Lies The Tiara: Crowns, Contracts, And The Rebekah Revels Litigation, Amanda Harmon Cooley

William & Mary Journal of Race, Gender, and Social Justice

In the last five years, news of various scandals in the pageant industry has inundated media outlets. These recent incidents are by no means outliers in the history of pageantry. This article explores the significance of one of these controversies - the Rebekah Revels litigation, which stemmed from the disputed 2002 Miss North Carolina pageant.

For context, this article first outlines allegations of wrongdoing in early pageants. It proceeds with an analysis of how the Revels litigation serves as an exemplar of the types of contract lawsuits that may continue to entangle pageant organizations in the future. Finally, the article …

The Constitutionality Of Court-Martialing Civilian Contractors In Iraq, Margaret Prystowsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the legal implications of outsourcing military functions to private contractors, focusing on the accountability gap under the Uniform Code of Military Justice (UCMJ). It argues that recent amendments to the UCMJ, particularly the expansion of court-martial jurisdiction over civilian contractors during declared wars and contingency operations, address this gap. The analysis concludes that these changes are constitutionally sound, given Congress's authority under Article I, Section 8, and align with legal precedent. However, the article also highlights practical challenges, such as prosecutorial discretion and limited penalties, which may undermine the effectiveness of these reforms.

The Effective Reach Of Choice Of Law Agreements, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

Two fundamental principles relating to party autonomy developed in the recent history of the conflict of laws. Despite initial reservations, the law today takes for granted that the parties’ agreement is nearly conclusive in respect of both their choice of litigation forum and their choice of the law governing the contractual relationship. Meanwhile, the law of obligations – in tort, restitution and equity – has grown apace; disputes between contracting parties today are rarely confined to pure contractual issues. Can contracting parties choose the law to govern non-contractual disputes in cross-border litigation? In the absence of such choice, to what …

Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared arbitration clause use in consumer contracts with their use in the same firms' nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in nearly all material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. …

Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz

Faculty Publications

This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article …

Mistake And Disclosure In A Model Of Two-Sided Informational Inputs, Michael J. Borden

Law Faculty Articles and Essays

This paper will examine some theoretical aspects of contractual non-disclosure and the related doctrine of unilateral mistake. These two legal rubrics are conceptually similar; each is concerned with the degree to which parties must communicate their understandings about the nature of the contract into which they are about to enter. If one party fails to reveal enough information, the other party may enter into the agreement under a misunderstanding and consequently may attempt to avoid contractual liability on the basis of mistake or on a theory of nondisclosure. The law of contracts clearly attaches a great deal of importance to …

State And Local Governments Address The Twin Challenges Of Climate Change And Energy Alternatives, Irma S. Russell, Jeffery S. Dennis

Faculty Works

No abstract provided.

How Bad Are Mandatory Arbitration Terms?, Omri Ben-Shahar

University of Michigan Journal of Law Reform

This symposium was presented in the 2008 Annual Meeting of the Contracts Section of the American Association of Law Schools. Indeed, studying the unconscionability of arbitration terms has become a standard feature of first-year contracts courses. This is perhaps one of the hotter topics in today's contract law and policy. Contractual rights, as they are enforced by contract law, might have substantially different values depending on the venue through which they can be vindicated. It is hard to predict how these values differ, but hopefully this symposium will inform some of these predictions.

Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

University of Michigan Journal of Law Reform

We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared the use of arbitration clauses in firms' consumer and nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in the vast majority of material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. Our data …

Arbitration Costs And Forum Accessibility: Empirical Evidence, Christopher R. Drahozal

University of Michigan Journal of Law Reform

In this Article, written for this symposium issue on "Empirical Studies of Mandatory Arbitration," I examine the available empirical evidence on these two questions. I take "mandatory arbitration" to refer to pre-dispute arbitration clauses in consumer and employment (and maybe franchise) contracts. Accordingly, I limit my consideration of the empirical evidence to those types of contracts. I do not discuss empirical studies of international arbitrations, which almost always arise out of agreements between commercial entities. Nor do I discuss empirical studies of court-annexed arbitrations, which may not derive from party agreement and do not ordinarily proceed to a binding award.

The Objective Theory Of Contracts, Wayne Barnes

Faculty Scholarship

The objective theory of contracts is the dominant approach for determining whether there has been mutual assent to the formation of a contract. Under objective theory, a party’s manifestation of assent will be held to mean what a reasonable person in the position of the other party would conclude that the manifestation meant. The objective theory is a sound approach for determining assent because: it reflects the pragmatic reality that the law must be largely based on externals rather than the whim of subjective perception, it protects the basis for economic exchanges in our commercial system by enforcing the expectations …

Summary Of Lehrer Mcgovern Bovis V. Bullock Insulation, 124 Nev. Adv. Op. No. 39, Katie Weber

Nevada Supreme Court Summaries

Appeal from three consolidated district court judgments, and from post-judgment orders denying a new trial and awarding attorney’s fees and costs.

Summary Of Mayfield V. Koroghli, 124 Nev. Adv. Op. Citation 34, Nevada Law Journal

Nevada Supreme Court Summaries

This case is a consolidated appeal from district court judgments granting specific performance and awarding costs in a real property action.

Summary Of Whitemaine V. Aniskovich, 124 Nev. Advanced Opinion 29, Meredith Holmes

Nevada Supreme Court Summaries

Appellant Whitemaine had concurrent employment contracts with Bank of America Investment Services, Inc. (BAIS) and Bank of America, N.A. The BAIS contract contained a provision requiring appellant to arbitrate any dispute related to her employment. The Bank of America contract contained no arbitration clause, but contained an integration clause. The issue in this case was whether two employment contracts can constitute a single agreement when one of them contains an integration clause.

Haifa University V. Oz, Esther Hayut, Miriam Naor, Dorit Beinisch

Translated Opinions

Facts:  The petitioner employed respondents 1-3 (hereinafter – the respondents) as lecturers in the Theatre Department. Against the background of complaints concerning the management of the department, an Investigative Committee was established, which decided not to renew the employment of respondents 2-3 and to transfer respondent 1 to another department. The Regional Labour Court rejected the respondent's request to order the petitioner to provide them with all of the material relied upon by the Committee, including protocols and testimony, ruling that the material they had received sufficed to allow for an adequate response on the respondents' part to the claims. …

Branding The Small Wonder: Delaware's Dominance And The Market For Corporate Law, Omari Scott Simmons

University of Richmond Law Review

No abstract provided.

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

Cardozo Law Review

No abstract provided.

Acquisition Of Real Estate In Mexico By U.S. Citizens And American Companies, Jorge A. Vargas

San Diego International Law Journal

Buying real estate in Mexico, or enjoying the beneficiary rights through a real estate trust, known in Mexico as fideicomiso, involves a considerable amount of money and effort. One must take into account that this legal transaction is executed in Mexico in accordance with Mexican law-a foreign legal system belonging to the civil legal tradition, contrasted by the U.S. legal system derivative of the common law tradition-and recognize that Americans and U.S. legal entities are typically quite unfamiliar with Mexican law. This Article provides a complete overview of the process of acquiring real estate in Mexico by Americans and U.S. …

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.