Contracts Commons^™

Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher

Faculty Scholarship

This Essay explores the enforceability and presence of pro-seller contract terms in internet retail contracts. Analyzing case law on internet contract enforceability and a survey of 500 firms'websites, it demonstrates that even the enforceability of many internet contracts is questionable. It then presents new data that suggest that the prevalence of pro-seller contract terms is far less than usually assumed. It suggests that the benefit of making these terms enforceable is outweighed by the loss of user friendliness required for the necessary interface changes. Finally, it uses fresh statistical analyses to determine what relationship, if any, exists between enforceability, pro-seller …

Market Damages, Efficient Contracting, And The Economic Waste Fallacy, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Market damages are the best default rule when parties trade in thick markets: They induce parties to contract efficiently and to trade if and only if trade is efficient, and they do not create ex ante inefficiencies. Courts commonly overlook these virtues, however, when promisors bundle services that are not separately priced. For example, a promisor may agree to pay royalties on a mining lease and later to restore the promisee's property. When the cost of completion is large relative to the "market delta " – the increase in market value – courts concerned with avoiding "economic waste" limit the …

Contractual Enforcement Institutions And The Structure Of Information, Avery W. Katz

Faculty Scholarship

Many economic writers on contract theory have assumed that legal institutions are simply unable to do the job of enforcement, and have thus attempted to devise arrangements that motivate the parties to keep their commitments even though a government tribunal would be unable to tell whether they had performed. But non-legal enforcement mechanisms operate both as substitutes and complements for legal mechanisms (and as substitutes and complements for each other). This essay sketches how parties should choose among available enforcement mechanisms, based on the costs of information and other transaction costs.

Public Symbol In Private Contract: A Case Study, Anna Gelpern, Mitu Gulati

Center for Contract and Economic Organization

This Article revisits a recent shift in standard form sovereign bond contracts to promote collective action among creditors. Major press outlets welcomed the shift as a milestone in fighting financial crises that threatened the global economy. Officials said it was a triumph of market forces. We turned to it for insights into contract change and crisis management. This article is based on our work in the sovereign debt community, including over 100 interviews with investors, lawyers, economists, and government officials. Despite the publicity surrounding contract reform, in private few participants described the substantive change as an effective response to financial …

The Enduring Legacy Of Wood V. Lucy, Lady Duff-Gordon, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

To mark the ninetieth anniversary of the decision, Pace University School of Law sponsored a Symposium, The Enduring Legacy of Wood v. Lucy, Lady Duff-Gordon, to reconsider the case and to appreciate the accomplishments of Lucy, Lady Duff-Gordon, who as Lucile, became one of the twentieth century's most innovative fashion designers. The Symposium brought together leading contracts scholars from as far away as Australia and England as well as experts on Lucile from the worlds of fashion, museums and fashion scholarship.

The Symposium examined legal issues raised by the decision through panels that focused upon: implication, interpretation and default terms; …

Fulfilling Lucy's Legacy: Recognizing Implicit Good-Faith Obligations Within Explicit Job Duties, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Wood v. Lucy, Lady Duff-Gordon is often cited for the principle that every contract contains an implied covenant of good faith and fair dealing. Yet the very source of that decision--the New York Court of Appeals--has been emphatically unwilling to recognize an implied good-faith covenant in the context of employment relationships, given the judicial presumption of employment at will. This essay criticizes the New York Court of Appeals' conclusion that the implied covenant of good faith and fair dealing must yield to the presumption of employment at will, and advocates a more balanced approach.

Nota Sobre El Contracte De Col·Laboració Publicoprivada [Notes On The Public-Private Partnership Contract], Vanessa Casado-Pérez

Faculty Scholarship

No abstract provided.

Are All Contracts Alike?, Margaret F. Brinig

Journal Articles

This Article compares two sets of contracts that are structurally and contextually similar. They originate in two quite different fields, however: the commercial arena and the family. The contracts come from two separate empirical investigations. The first investigation studied 131 telecommunication interconnection agreements made between SBC Communications, Inc. ("SBC") and various local phone companies in Michigan beginning in 1998. The second investigation involved 141 divorce cases granted in 1998 in Johnson County, Iowa, all of which involved children, and 130 of which involved contracts, or "stipulations" as they are called locally. Though each empirical project has been described separately elsewhere, …

Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg

W&M Law Student Publications

No abstract provided.

Promissory Estoppel And The Protection Of Interpersonal Trust, John J. Chung

Law Faculty Scholarship

No abstract provided.

Internet Challenges To Business Innovation, Nancy Kim

Faculty Scholarship

No abstract provided.

Marybeth Peters Is Almost Right: An Alternative To Her Proposals To Reform The Compulsory License Scheme For Music, William Henslee

Journal Publications

Since Napster made mass digital downloads and online piracy available and accessible in June of 1999, the music industry has been under attack. Traditionally, record companies have received their revenue from phonorecord sales and use of the music in film, television, and advertisements. Performers have received their income from record companies based on a percentage of the sales income after the company has recouped its investment in the artist.

With the current technology and digital marketing available, all of the players in the music business believe that the revenue distribution models need to change but, to date, have been reluctant …

Possibility Of Plain Meaning: Wittgenstein And The Contract Precedents, Val D. Ricks

Cleveland State Law Review

Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co and In re Soper's Estate claim that plain meaning in contract law is impossible. This claim is left irrefuted in the casebooks and contract law literature, Part I notes, and in most teaching of contract law. The consequence is that students are taught that plain meaning is impossible. A startling implication of this conclusion, as Part I explains, is that the majority of U.S. courts, which hold to the plain meaning rule, are relying on a fiction. But the claim that plain meaning is impossible is false, as …

Uncertainty, Reliance, Preliminary Negotiations And The Hold Up Problem, Juliet P. Kostritsky

Faculty Publications

Recently, two scholars, Alan Schwartz and Robert Scott, have cast doubt on the conventional view that courts would find liability and award reliance damages in precontractual cases that resembled the famous Hoffman v. Red Owl case. They have argued that courts deny recovery for reliance in cases involving precontractual preliminary negotiation but regularly grant reliance recovery following a preliminary agreement. They identify a pattern or sequence in which success is likely and then provide an analytical framework to justify liability. When parties reach a preliminary agreement that also includes an agreement that they both invest simultaneously and one party strategically …

The Enduring Legacy Of Wood V. Lucy, Lady Duff-Gordon, James J. Fishman

Pace Law Review

No abstract provided.

Implied, Inferred, And Imposed: Default Rules And Adhesion Contracts - The Need For Radical Surgery, Peter Linzer

Pace Law Review

No abstract provided.

Wood V. Lucy: The Overlap Between Interpretation And Gap-Filling To Achieve Minimum Decencies, Nicholas R. Weiskopf

Pace Law Review

No abstract provided.

Neutral Standardizing Of Contracts, Joseph M. Perillo

Pace Law Review

No abstract provided.

Exploring (Social) Class In The Classroom: The Case Of Lucy, Lady Duff-Gordon, Miriam A. Cherry

Pace Law Review

No abstract provided.

Teaching Ethics In Context: Wood V. Lucy, Lady Duff-Gordon In The First Year Curriculum, Celia R. Taylor

Pace Law Review

No abstract provided.

Integrating Academic Skills Into First Year Curricula: Using Wood V. Lucy, Lady Duff-Gordon To Teach The Role Of Facts In Legal Reasoning, Deborah Zalesne, David Nadvorney

Pace Law Review

No abstract provided.

What It's Worth To Do Your Best, Andrew Tettenborn

Pace Law Review

No abstract provided.

Cardozo, Anti-Formalism, And The Fiction Of Noninterventionism, Larry A. Dimatteo

Pace Law Review

No abstract provided.

A Picture Of The New York Court Of Appeals At The Time Of Wood V. Lucy, Lady Duff-Gordon, Meredith R. Miller

Pace Law Review

No abstract provided.

Wood V. Duff-Gordon And The Modernist Cult Of Personality, Megan Richardson, David Tan

Pace Law Review

No abstract provided.

An Employment Contract Instinct With An Obligation: Good Faith Costs And Contexts, Robert C. Bird

Pace Law Review

No abstract provided.

Fulfilling Lucy's Legacy: Recognizing Implicit Good-Faith Obligations Within Explicit Job Duties, Emily Gold Waldman

Pace Law Review

No abstract provided.

Jung V. Skadden, Arps, Slate, Meagher & Flom, Zachary Kerner

NYLS Law Review

No abstract provided.

Copyright Preemption Of Contracts, Christina Bohannan

Maryland Law Review

No abstract provided.

After The Battle Of The Forms: Commercial Contracting In The Electronic Age, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.