Contracts Commons^™

The Choice Theory Of Contracts – Preface & Introduction, Hanoch Dagan, Michael Heller

Faculty Scholarship

This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. "The Choice Theory of Contracts" answers the field's most pressing questions: What is the “freedom” in “freedom of contract”? What core values animate contract law and how do those values interrelate? How must the state act when it shapes contract law? Hanoch Dagan and Michael Heller show exactly why and how freedom matters to contract. They start with the most appealing tenets of modern liberalism and end with their implications for contract law. This readable, engaging book gives contract scholars, teachers, and students a …

The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Rote use of a standard form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. The foregoing process, when it occurs, weakens the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is completely emptied of meaning through this process it can create a contractual “black hole.” The more frequent and thus potentially more pervasive problem arises when, as the term loses meaning, random variations in language appear and persist, resulting in what we term a “grey …

Guide To Land Contracts: Forestry Projects, International Senior Lawyers Project, Kaitlin Y. Cordes, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Agricultural investment contracts and forestry projects can be complex, with complicated provisions that are difficult to understand. To assist non-lawyers in better understanding agricultural investment contracts, such as those available on the Open Land Contracts repository, CCSI has developed a Guide to Land Contracts: Forestry Projects.

This Guide, prepared by International Senior Lawyers Project staff and volunteers in collaboration with the Columbia Center on Sustainable Investment, aims to assist the Open Land Contracts repository users in unpacking the technical provisions and language typically found in forestry contracts in order to better understand the contracts and the potential implications of …

Differing Perceptions? Market Practice And The Evolution Of Foreign Sovereign Immunity, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The 20th century witnessed a transformative, “tectonic” shift in international law, from “absolute” to “restrictive” theories of sovereign immunity. As conventionally understood, however, this dramatic transformation represented only a shift in the default rule. Under absolute immunity, national courts could not hear lawsuits and enforce judgments against a foreign sovereign without its consent. Under restrictive immunity, foreign sovereigns were presumptively not immune when they engaged in commercial acts. We demonstrate that market practices undermine this conventional understanding. Using an extensive, two-century data set of contracts between foreign governments and private creditors, we show that contracting parties have long treated absolute …

Restructuring Sovereign Debt After Nml V. Argentina, Lee C. Buchheit, G. Mitu Gulati

Faculty Scholarship

The decade and a half of litigation that followed Argentina’s sovereign bond default in 2001 ended with a great disturbance in the Force. A new creditor weapon had been uncloaked: The prospect of a court injunction requiring the sovereign borrower to pay those creditors that decline to participate in a debt restructuring ratably with any payments made to those creditors that do provide the country with debt relief.

For the first time holdouts succeeded in fashioning a weapon that could be used to injure their erstwhile fellow bondholders, not just the sovereign issuer. Is the availability of this new weapon …

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Book Chapters

This chapter focuses on the use of mandatory pre-dispute arbitration clauses in a subset of consumer contracts – those involving consumer finance and investor products and services. Arbitration clauses are pervasive in financial contracts – for credit cards, bank accounts, auto loans, broker-dealer services, and many others. In the wake of the recent financial crisis, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank). Dodd-Frank authorises the new Consumer Financial Protection Bureau (CFPB) and the Securities and Exchange Commission (SEC) to prohibit or condition the use of arbitration clauses in consumer finance and investment contracts, …

Consumer Internet Standard Form Contracts In India: A Proposal, Robert A. Hillman

Cornell Law Faculty Publications

India's burgeoning Internet commerce sector has made consumers susceptible to standard-form contracts. Due to the slim likelihood of consumers reading the terms, vendors may often draft heavy-handed terms in the contracts, thereby adversely impacting consumer interests. The Indian legal framework in this regard is inadequate. This article evaluates the existing suggestions on standard-form contracts and argues that none of them safeguard consumer interests sufficiently. Instead, based on the American Law Institutes' Principles of the Law of Software Contracts, the article proposes a disclosure approach that would benefit the interests of Indian consumers engaged in commerce on the Internet.

Rediscovering Liberty Of Contract: The Unnoticed Economic Right Contained In The Freedom Of Speech, Steven C. Begakis

Loyola of Los Angeles Law Review

The liberty of contract formation is a form of speech, and thus it is a right guaranteed by the First Amendment of the U.S. Constitution.This Article examines how the First Amendment secures the liberty of contract formation and analyzes how that liberty is supported by the U.S. Supreme Court’s commercial speech jurisprudence and by both originalist and traditionalist theories of Constitutional interpretation.

Egg Donation: Whether A Woman Has A Property Right In Her Own Egg And How Donors Should Be Taxed, Richard Gano

Loyola of Los Angeles Law Review

No abstract provided.

The Battle Over Corporate Bylaws, Ariel Beverly

Loyola of Los Angeles Law Review

No abstract provided.

Police Union Contracts, Stephen Rushin

Faculty Publications & Other Works

This Article empirically demonstrates that police departments' internal disciplinary procedures, often established through the collective bargaining process, can serve as barriers to officer accountability.

Policymakers have long relied on a handful of external legal mechanisms like the exclusionary rule, civil litigation, and criminal prosecution to incentivize reform in American police departments. In theory, these external legal mechanisms should increase the costs borne by police departments in cases of officer misconduct, forcing rational police supervisors to enact rigorous disciplinary procedures. But these external mechanisms have failed to bring about organizational change in local police departments. This Article argues that state labor …

Illiberty Of Contract, Donald J. Smythe

Faculty Scholarship

The term “liberty of contract” is usually associated with the doctrine that the due process clause of the United States Constitution prohibits or should prohibit the State from regulating contracts between private individuals. Many libertarians and free-market advocates embrace the liberty of contract doctrine because they are averse to State interference with private market transactions. But the term is ironic because a contract is only legally binding if courts will enforce it. Since courts derive their authority because they are the third branch of government, they are State actors and contractual enforcement involves the exercise of the State’s powers of …

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 …

Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia S. Abril, Nicholas Greene

Articles

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 …

Disgorgement Of Defendant's Gains From "Opportunistic" Breach Of Contract: Its Fit In Rhode Island, Kelsey A. Hayward

Roger Williams University Law Review

No abstract provided.

2016 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.

Why Flexibility Matters: Inequality And Contract Pluralism, Jeremiah A. Ho

All Faculty Scholarship

In the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to …

Review Of The Choice Theory Of Contracts, Nicolas Cornell

Reviews

This book aims to provide a new approach to thinking about the role of contract law in a liberal state. The fundamental idea is that the law should affirmatively facilitate citizens' autonomy by creating and sustaining various different types of contractual relationships so that citizens have the option to choose among them. The authors start from the idea that "bargaining for terms is not the dominant mode of contracting . . . the mainstay of present-day contracting is the choice among types" (2-3). We choose to relate as employees or independent contractors, married or just cohabiting, merchants selling goods or …

Relative Consent And Contract Law, Nancy Kim

Faculty Scholarship

What does it mean to consent? Consent is an essential component of contracts, yet its part in contract law is obscure. Despite its importance, there is no independent doctrine of consent; rather, it plays a key, but ill-defined role in assessing doctrines such as assent or duress. This Article addresses this significant omission in contract law by disassembling the meaning of contractual consent into three conditions: an intentional act or manifestation of consent, voluntariness and knowledge. This Article argues that consent can only be understood relative to these three conditions. Accordingly, consent is not merely a conclusion but a process …

Mythbusting: Why The Critics Of Litigation Finance Are Wrong, Roni Elias

Florida A & M University Law Review

Critics of ALF contend that such financing methods create various problems: they violate well-established principles of common law about the relationship between litigants and third-parties; they are tantamount to usurious loans; and they threaten the integrity of the judicial system by making it easier for litigants with few resources to bring frivolous lawsuits.

This article discusses both sides of this debate and concludes that the most prevalent criticisms of ALF are based upon misconceptions and myths about the nature of ALF transactions and of the interests of the parties involved in those transactions. When ALF is carefully considered, it is …

Transnational Carbon Contracting: Why Law’S Invisibility Matters, Natasha Affolder

All Faculty Publications

Contract lawyers are well aware that it is in the boilerplate, in the creation of contractual norms, forms and defaults, that power gets divided and that winners and losers are made. This analysis applies to contractual governance just as it applies to the individual contract setting. This chapter draws on the example of forest carbon contracts to illustrate the 'behind the scenes' privileging of contractual forms, norms, and defaults in action. It argues that the reductionist vision of law emerging in the literature and practice of carbon contracting is both misleading and impoverished.

Hollywood Accounting: Profit Participation And The Use Of Mediation As A Mode Of Resolving These Disputes, Eric Strum

Cardozo Journal of Conflict Resolution

This Note proposes that the entertainment industry employ mediation to resolve profit participation disputes. Section II of this Note focuses on profit participation agreements through their history and their legal context. Section III provides a discussion of the arbitration and litigation of participation claims, as well as their weaknesses. In Section IV, this Note proposes the use of mediation in handling claims in the entertainment industry and a new model of mediation that would best serve profit participation disputes. With the engagement of mediation, profit participation lawsuits can be handled in the most effective and fair way for both the …

Independent Contractors Or Employees? Why Mediation Should Be Utilized By Uber And Its Drivers To Solve The Mystery Of How To Define Working Individuals In A Sharing Economy Business Model, Ethan Rubin

Cardozo Journal of Conflict Resolution

In an effort to do so, each section of this Note will address a different issue of the ongoing disputes between Uber and its drivers and suggest potential solutions for both parties. Section II focuses on the differences between Uber and its drivers' points of view on whether Uber drivers should be considered employees or independent contractors via National Labor Relations Board ("NLRB") terminology. Section III discusses why it is difficult to label Uber and its drivers under traditional employment law terminology, as well as failures to do so through negotiation, litigation, and arbitration. Section IV proposes that with an …

Insurance Policies: The Grandparents Of Contractual Black Holes, Chris French

Faculty Scholarship

In their recent article, The Black Hole Problem in Commercial Boilerplate, Professors Stephen Choi, Mitu Gulati, and Robert Scott identify a phenomenon found in standardized contracts they describe as “contractual black holes.” The concept of black holes comes from theoretical physics. Under the original hypothesis, the gravitational pull of a black hole is so strong that once light or information is pulled past an event horizon into a black hole, it cannot escape. In recent years, the theory has been reformulated and now the hypothesis is that some information can escape, but it is so degraded that it is virtually …

The Sharing Economy And The Edges Of Contract Law: Comparing U.S. And U.K. Approaches, Miriam A. Cherry

Faculty Publications

Technology and the rise of the on-demand or sharing economy have created new and diverse structures for how businesses operate and how work is conducted. Some of these matters are intermediated by contract, but in other situations, contract law may be unhelpful. For example, contract law does little to resolve worker classification problems on new platforms, such as ridesharing applications. Other forms of online work create even more complex problems, such as when work is disguised as an innocuous task like entering a code or answering a question, or when work is gamified and hidden as a leisure activity. Other …

Introductions, Melanie B. Leslie

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The New Institutionalism In Contract Scholarship, Robert E. Scott

Faculty Scholarship

Relational contract scholarship is at a pivot point. On the one hand, the relationalist revival that has dominated contracts scholarship for almost half a century may be on the wane. Relational contract scholarship has evolved during this period into separate, and often dueling, intellectual traditions. One camp consists of scholars who are typically associated with the “law and economics” movement; in the other camp are scholars who more readily identify with the “law and society” tradition. While relationalists have been quarreling with each other, a younger cohort of law and economics scholars, armed with impressive technical skills, have abandoned relational …

Forced Arbitration’S Lethal Consequence, Joanne Doroshow

Other Publications

No abstract provided.

The Authenticity Debacle: Why Art Authentication And Litigation Don't Mix, Andrea Sobolewski

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Panel 1: Perspectives On Transactions In Comic Books, David Gallaher, Larry Hama, Lillian Laserson, Matthew Tynan, Thomas Crowell

Cardozo Arts & Entertainment Law Journal

No abstract provided.