Contracts Commons^™

Development Of An On-Line Distance Learning Certification Program For International Commercial Law And Contract Drafting, Vikki Rogers

Cornerstone 3 Reports : Interdisciplinary Informatics

No abstract provided.

Transnational Conservation Contracts, Natasha Affolder

All Faculty Publications

Transnational environmental law is the subject of growing scholarly interest. Yet, much work remains to be done to fill in both the conceptual and empirical contours of this field. One methodological challenge that transnational law poses is the need to look beyond traditional sources of international and national law. This article contributes to efforts to understand transnational law's multilayered architecture by drawing attention to the use of transnational contracts as a mechanism to protect habitats and species. The diverse and proliferating examples of conservation contracts discussed in this article – which include forest carbon agreements, conservation concessions, debt-for-nature swaps, conservation …

A Brave New World: Credit Default Swaps And Voluntary Debt Exchanges, 45 J. Marshall L. Rev. 1227 (2012), Mark Swantek

UIC Law Review

No abstract provided.

The Hierarchy That Wasn’T There: Elevating “Usage” To Its Rightful Position For Contracts Governed By The Cisg, William P. Johnson

Northwestern Journal of International Law & Business

Under domestic U.S. sales law, usage of trade is relevant in ascertaining the meaning of an agreement, and it can be used to supplement, qualify, or explain an agreement. However, usage of trade may not be used under domestic U.S. sales law to contradict a written agreement. Moreover, any course of performance or course of dealing between the parties will prevail over inconsistent usage of trade. The United Nations Convention on Contracts for the International Sale of Goods, or CISG, similarly provides for consideration of usage to establish the terms of the agreement between the parties, as well as to …

Contract Theory And Some Realism About Employee Covenant Not To Compete Cases, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Legal Ethics For The Millennials Avoiding The Compromise Of Integrity, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Chain-Link Confidentiality, Woodrow Hartzog

Faculty Scholarship

Disclosing personal information online often feels like losing control over one’s data forever; but this loss is not inevitable. This essay proposes a “chain-link confidentiality” approach to protecting online privacy. One of the most difficult challenges to guarding privacy in the digital age is the protection of information once it is exposed to other people. A chain-link confidentiality regime would contractually link the disclosure of personal information to obligations to protect that information as the information moves downstream. The system would focus on the relationships not only between the discloser of information and the initial recipient, but also between the …

The Dog That Didn't Bark: Private Investment Funds And Relational Contracts In The Wake Of The Great Recession, Robert C. Illig

Michigan Business & Entrepreneurial Law Review

In the aftermath of the subprime mortgage crisis, the contract rights of numerous hedge funds and venture capital funds were breached. These contracts were complex and sophisticated and had been negotiated at great time and expense. Yet despite all of the assumptions of neo-classical contracts theory, nothing happened. Practically none of these injured parties sued to enforce their rights. Professor Illig uses this dearth of litigation to conduct a form of natural experiment as to the value of contract law. Discrete market participants contracted before the crash and then pursued their rights in court afterwards, while relational market participants contracted …

The Dynamics Of Contract Evolution, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

Contract scholarship has given little attention to the production process for contracts. The usual assumption is that the parties will construct the contract ex nihilo, choosing all the terms so that they will maximize the surplus from the contract. In fact, parties draft most contracts by slightly modifying the terms of contracts that they have used in the past, or that other parties have used in related transactions. A small literature on boilerplate recognizes this phenomenon, but little empirical work examines the process. This Article provides an empirical analysis by drawing on a data set of sovereign bonds. The authors …

The Irony Of At&T V. Concepcion, Colin P. Marks

Faculty Works

This Essay explores the possible dual readings of Concepcion in light of the FAA and its interpretation, including Supreme Court precedents. This Essay concludes that though there is support for interpreting the Concepcion decision narrowly, it is more likely that a broader interpretation was intended, but the metes and bounds of this opinion have yet to be explored. Nonetheless, under this broad interpretation, the effect on consumers will be to discourage individuals from seeking redress for their claims. Indeed, the decision may actually encourage businesses to breach contractual obligations with impunity when the individual sums owed are too small to …

High-Powered (Mis)Incentives And Venture-Capital Contractors, Manuel A. Utset

Scholarly Publications

No abstract provided.

The Promise Principle And Contract Interpretation: A Suggested Approach For Maximizing Value, Juliet P. Kostritsky

Faculty Publications

The promise principle and its roots in a certain type of morality of individual obligation, which play the central role in Charles Fried’s vision of Contract law, have importantly contributed to rescuing Contract law from absorption into Tort law and from the imposition of externally imposed standards that are collective in origin. It makes a mammoth contribution to alerting us to the tyranny of interference with individual self-determination. However, this essay questions whether a promise centered system derived from a moral philosophy of promising (without an observable and testable foundation in reality) and geared to internal individual obligation and duty …

Private Transfer Fees: Developer Exploitation Or Legitimate Financing Vehicle, Burke T. Ward, Jamie P. Hopkins

Villanova Law Review (1956 - )

A private transfer fee (PTF) is typically created when a developer or homeowner decides to attach a covenant to the title of the home. This covenant, the PTF covenant, attaches the PTF to the real property. These covenants require payment of a fee—typically stated as one percent of the property's sale price—upon each resale or transfer of the property and often survive for a period of ninety-nine years. The recipients or owners of the PTF (PTF beneficiaries) can be almost anyone, including property developers, PTF developers, home owner associations (HOA), private investors, state governments, and non-profit charities. Usually, the PTF …

Access To Consumer Remedies In The Squeaky Wheel System, Amy J. Schmitz

Faculty Publications

This article explores the “Squeaky Wheel System” (“SWS”) in business-to-consumer (“B2C”) contexts, referring to merchants’ reservation of purchase remedies and other contract benefits for only the relatively few “squeaky wheel” consumers who have the requisite information and resources to persistently seek assistance. The article uncovers how this system fosters contractual discrimination and hinders consumers’ awareness and access with respect to contract remedies. It also adds empirical insights from my recent e-survey, and offers suggestions for using the internet to empower consumers of all economic and status levels with efficient and accessible means for learning about their purchase rights and asserting …

Stoney Road Out Of Eden: The Struggle To Recover Insurance For Armenian Genocide Deaths And Its Implications For The Future Of State Authority, Contract Rights, And Human Rights, Jeffrey W. Stempel, Sarig Armenian, David Mcclure

Scholarly Works

The Armenian Genocide during the waning days of the Ottoman Empire continues to represent one of history’s underappreciated atrocities. Comparatively few people even know about the 1.5 million deaths or the government-sponsored extermination attempt that provided Hitler with a blueprint for the Nazi Holocaust. Unlike the Holocaust, however, there was never any accounting demanded of those responsible for the Armenian Genocide. In the aftermath of both tragedies, insurers seized upon the resulting disarray and victimization to deny life insurance benefits owed as a result of the killings. American-based litigation to vindicate rights under the Armenian polices faced substantial legal and …

Contract Law Walks The Plank: Carnival Cruise Lines V. Shute, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Perfecting And Maintaining The Perfection In Article 9 Security Interests Under The 2010 Amendments: New Sections 9-503 And 9-316, 10 Depaul Bus. & Comm. L.J. 461 (2012), Steven Harris, Jason Kilborn, Margit Livingston

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Global Subprime Crisis As Explained By The Contrast Between American Contracts Law And Civil Law Countries' Laws, Practices And Expectations In Real Estate Transactions: How The Lack Of Informed Consent And The Absence Of The Civil Law Notary In The United States Contribute To The Global Crisis In Subprime Mortgage Investments, 11 J. Int'l Bus. & L. 133 (2012), Celeste M. Hammond, Ilaria Landini

UIC Law Open Access Faculty Scholarship

No abstract provided.

Law By Non Sequitur: Norcon V. Niagara Mohawk, Victor P. Goldberg

Faculty Scholarship

Under the common law, a contracting party could only demand assurance of performance if the other party was insolvent. If a party had reasonable grounds for insecurity, the UCC §2-609 allowed it demand adequate assurance even if the counterparty were solvent. The Restatement (Second) adopted the same rule for non-goods. In NorCon v. Niagara Mohawk the New York court extended the adequate assurance doctrine for some non-goods contracts. Although the decision seems to imply that there is some relation between the NorCon facts and its conclusion as to the law, there is none. Relying primarily on material available to the …

Legal Regulation Of Twenty-First-Century Families, Marsha Garrison, Elizabeth S. Scott

Faculty Scholarship

This post includes the table of contents, introduction and our comment as the editors of an interdisciplinary volume that explores the implications for law and policy of changes in marriage and family over the past half century. The volume includes chapters by leading social science researchers and family law scholars whose work focuses on these matters. The book captures the complexity of debates about the regulation of marriage and families and the best policy paths forward, through contributions by authors with widely varying perspectives. But it also aims to inform these debates by situating them in a framework grounded in …

Corporate Control And Credible Commitment, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

The separation of control and ownership – the ability of a small group effectively to control a company though holding a minority of its cash flow rights – is common throughout the world, but also is commonly decried. The control group, it is thought, will use its position to consume excessive amounts of project returns, and this injures minority shareholders in two ways: there is less money and the controllers are not maximizing firm value. To the contrary, we argue here that there is an optimal share of the firm that compensates the control group for monitoring managers and otherwise …

The Interstate Commerce Act, Administered Contracts, And The Illusion Of Comprehensive Regulation, Thomas W. Merrill

Faculty Scholarship

The 125th anniversary of the Interstate Commerce Act invites reflection on what it has contributed to our understanding of public regulation. Perhaps the most important and enduring idea associated with the Act is what we may call the administered contract. At common law, transportation services, like other goods and services, were governed by ordinary contracts between customer and carrier. Building on innovations in English and state railroad legislation, the Interstate Commerce Act developed a different form of contracting. Contracts for transportation services became public acts, understood to have the openness, generality, and binding force of public law. This concept of …

Unchecked: How Frazier V. Citifinancial Eliminated Judicially Created Grounds For Vacatur Under The Federal Arbitration Act, Sean C. Wagner

Oklahoma Law Review

No abstract provided.

The Measure Of A Mac: A Quasi-Experimental Protocol For Tokenizing Force Majeure Clauses In M&A; Agreements, Eric L. Talley, Drew O'Kane

Faculty Scholarship

This paper develops a protocol for using a familiar data set on force majeure provisions in corporate acquisitions agreements to tokenize and calibrate a machine-learning algorithm of textual analysis. Our protocol, built on regular expression (RE) and latent semantic analysis (LSA) approaches, serves to replicate, correct, and extend the hand-coded data. Our preliminary results indicate that both approaches perform well, though a hybridized approach improves predictive power further. Monte Carlo simulations suggest that our results are generally robust to out-of-sample predictions. We conclude that similar approaches could be used more broadly in empirical legal scholarship, especially including in business law.

Building Bridges To Consumer Remedies In International Econflicts, Amy J. Schmitz

Faculty Publications

Consumer purchases over the Internet (“ePurchases”) are on the rise, thereby causing an increase in conflicts regarding these purchases (“eConflicts”). Furthermore, these conflicts are increasingly international as consumers purchase goods over the Internet not knowing or caring where the seller is physically located. The problem is that if the purchase goes awry, consumers are often left without recourse due to the futility of pursing international litigation and the textured law and policy regarding enforcement of private dispute resolution procedures, namely arbitration. The United States strictly enforces arbitration contracts in business-to-consumer (“B2C”) relationships, while other countries have refused or limited enforcement …

Contracting Blame, Eric A. Zacks

Law Faculty Research Publications

No abstract provided.

The Influence Of Law And Economics Scholarship On Contract Law: Impressions Twenty-Five Years Later, Jeffrey L. Harrison

UF Law Faculty Publications

This is an update of a work done in conjunction with a contract law conference 25 years ago. My specific assignment was to assess the impact of law and economics scholarship on contract law. I responded by conducting an empirical study of judicial citations to selected law and economics works in order to ascertain the extent to which judges seemed to be relying on the teachings of law and economics. In effect, the effort was part of a general question that concerns all law professors: Does scholarship matter? I have repeated the study with respect to the scholarship sample selected …

Civil Procedure And Contract Law—Contractual Forum-Selection Clauses In Erie Cases: More Than Substance Or Procedure, James C. Mcneal

University of Arkansas at Little Rock Law Review

The enforceability of forum-selection clauses is one of the most litigated jurisdictional issues in federal district courts. In a globalized society, forum-selection clauses reduce uncertainty. However, they present unique problems and, although they are liberally enforced by state and federal courts, forum-selection clauses are not always enforced by the forum court. Enforcement of forum-selection clauses is especially complex in diversity actions in federal court.

Forum-selection clauses appear substantive and often have substantive effects; however, they operate procedurally. Federal courts unanimously hold that the validity of a forum-selection clause is a procedural question and therefore the question of validity is decided …

Applying Economic Loss Doctrine To Article 2 Transactions: A Doctrine At A Loss, Jennifer S. Martin

St. Thomas Law Review

The purpose of this Essay is to analyze the treatment and the types of tort and strict liability claims that courts are likely to redirect toward the Code's Article 2 remedies. Part I of this Essay examines the typical application of the economic loss doctrine. Part II considers the bargain policy underlying the Code that supports imposition of the economic loss doctrine in a variety of claims touching Article 2 matters. Part III outlines how the principles of the economic loss doctrine are a limited vehicle for resolution of claims that lie at the outer edges of the bargain as …

Courts Have Answers To The Military Contractors’ So-Called Political Questions Raised In Carmichael V. Kellogg, Brown & Root Services, Inc., Kaelin Patrick Kuhn

Catholic University Law Review

No abstract provided.