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Articles 61 - 90 of 194
Full-Text Articles in Contracts
Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley
Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley
Texas A&M Law Review
This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …
Freelance Isn’T Free: The High Cost Of New York City’S Freelance Isn’T Free Act On Hiring Parties, Caitlin M. Baranowski
Freelance Isn’T Free: The High Cost Of New York City’S Freelance Isn’T Free Act On Hiring Parties, Caitlin M. Baranowski
Brooklyn Journal of Corporate, Financial & Commercial Law
Recently, the New York City Council enacted the Freelance Isn’t Free Act (FIFA) to protect freelancers from non-payment. Among FIFA’s protections is the requirement that hiring parties provide a written contract to freelancers for any work exceeding $800 over a 120-day period. As the nation’s first legislation ensuring freelancers’ rights, FIFA marks a major turning point in the development of protections for the gig economy’s growing independent workforce. While its purpose is laudable and necessary, this Note argues that FIFA is currently too ambiguous. To resolve FIFA’s ambiguity, this Note recommends, at the very least, amending FIFA to include: 1) …
A Fork In The Road: Issues Surrounding The Legality Of Mandatory Class Action Waivers In Arbitration Agreements, Brielle Oshinsky
A Fork In The Road: Issues Surrounding The Legality Of Mandatory Class Action Waivers In Arbitration Agreements, Brielle Oshinsky
Brooklyn Journal of Corporate, Financial & Commercial Law
Recently, federal circuit courts have presented contrasting outcomes regarding the legality of mandatory class action waivers in arbitration agreements. More specifically, these outcomes vary on whether such waivers violate the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA), and importantly, whether it is possible for these statutes to coexist with the Federal Arbitration Act (FAA). The Second, Fifth, and Eighth Circuits have previously held that the act of an employer requiring employees to sign class action waivers in arbitration agreements posed no violation to either the FLSA or the NLRA. However, in May 2016, the Seventh …
Forgotten Cases: Worthen V. Thomas, David F. Forte
Forgotten Cases: Worthen V. Thomas, David F. Forte
Cleveland State Law Review
According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only …
Paying For What You Get—Restitution Recovery For Breach Of Contract, Jean Fleming Powers
Paying For What You Get—Restitution Recovery For Breach Of Contract, Jean Fleming Powers
Pace Law Review
This article begins with a brief discussion of restitution as a remedy for breach of contract under the Restatement (Second) of Contracts. It then discusses the changes the Restatement of Restitution adopts and the reasons for the changes. Next, it discusses why the changes have not only failed to achieve the goal of clarifying the “prevailing confusion” related to restitution and breach of contract, but have at times created more confusion. It then explains that contract and restitution principles are not only not in tension relative to restitution for breach of contract, but in fact support such a recovery.
Omar Abdel-Aleem Et Al., Order On Defendants’ Motion To Compel Discovery, Melvin K. Westmoreland
Omar Abdel-Aleem Et Al., Order On Defendants’ Motion To Compel Discovery, Melvin K. Westmoreland
Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions
No abstract provided.
Shawe V. Elting: The Imperfect Sale Of Transperfect Global, Inc., Sarah M. Samaha
Shawe V. Elting: The Imperfect Sale Of Transperfect Global, Inc., Sarah M. Samaha
Maryland Law Review
No abstract provided.
Her Belly, Their Baby: A Contract Solution For Surrogacy Agreements, Devon Quinn
Her Belly, Their Baby: A Contract Solution For Surrogacy Agreements, Devon Quinn
Journal of Law and Policy
The 1986 Baby M case was the first American court ruling regarding the validity of surrogacy. The contentious custody battle between the intended parents and their surrogate highlighted the issues and fears associated with the practice, impacted legislation throughout the United States, and captured national media attention. Since 1986, however, the landscape of the American family has changed -- gay marriage has been legalized in the United States, one in eight American heterosexual couples struggle with fertility issues, women are more likely to wait longer to have children, and developments in technology such as in-vitro fertilization offer new fertility options …
The Negative Effects Of Confusion Over Collateral Agreements Under The Indian Gaming Regulatory Act: Which Agreements Need Review?, Matthew D. Craig
The Negative Effects Of Confusion Over Collateral Agreements Under The Indian Gaming Regulatory Act: Which Agreements Need Review?, Matthew D. Craig
UNLV Gaming Law Journal
No abstract provided.
Ethereum And The Sec: Why Most Distributed Autonomous Organizations Are Subject To The Registration Requirements Of The Securities Act Of 1933 And A Proposal For New Regulation, Tiffany L. Minks
Texas A&M Law Review
In a world full of new technology, the risk of fraud is constantly increasing. In the securities industry, this risk existed long before the use of technology. Congress enacted the Securities Act of 1933 to combat the risk of fraud and misrepresentation in the sale of securities. By requiring full disclosure, investors have the opportunity to make informed decisions prior to investing. However, Distributed Autonomous Organizations (“DAOs”), through the use of blockchains and smart-contracts, engage in the sale of securities without fully disclosing the risks or complying with the registration requirements of the Securities Act of 1933. Compliance with the …
When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner
When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner
Texas A&M Law Review
In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …
Whose Sperm Is It Anyways In The Wild, Wild West Of The Fertility Industry?, Tatiana E. Posada
Whose Sperm Is It Anyways In The Wild, Wild West Of The Fertility Industry?, Tatiana E. Posada
Georgia State University Law Review
Imagine a couple that is unable to conceive a child naturally. Luckily, they had the money and resources available to them to conceive a child through assisted reproductive technology (ART), so they decided to start their family through the use of intrauterine insemination. They selected a sperm bank and began the arduous process of selecting a sperm donor who fit the desired traits and characteristics for their child. The sperm bank matched them with an anonymous donor, Donor 9623, and assured the couple that the donor was “a healthy male with an IQ of 160, a bachelor’s of science in …
A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, Jessica L. Williams-Vickery
A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, Jessica L. Williams-Vickery
Georgia State University Law Review
In 2012, world-renowned supermodel Coco Rocha agreed to be photographed for the cover of one of Elle’s magazine publications, Elle Brazil. Rocha posed for the pictures in a dress with significant cutouts, covered only by a sheer layer of skin-toned fabric. In keeping with her firm policy of no full or partial nudity, Rocha wore a bodysuit underneath the dress to limit her exposure. When Elle published the magazine, the final product shocked Rocha; the magazine had altered the image to remove her bodysuit, giving the impression Rocha had shown more skin than she in fact had. Rocha took to …
A Rising Star: Maria Viveiros, Rwu Class Of 2017 (May 2018), Roger Williams University School Of Law
A Rising Star: Maria Viveiros, Rwu Class Of 2017 (May 2018), Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii
Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming
China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow
China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow
Texas A&M Law Review
China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …
The Public Cost Of Private Equity, William Magnuson
The Public Cost Of Private Equity, William Magnuson
Faculty Scholarship
This Article presents a theory of the corporate governance costs of private equity. In doing so, it challenges the common view that private equity’s governance structure has resolved, or at least significantly mitigated, one of the fundamental tensions in corporate law, that is, the conflict between management and ownership. The Article argues that this widespread perception about the corporate governance benefits of private equity overlooks the many ways in which the private equity model, far from eliminating agency costs, in fact exacerbates them. These governance costs include compensation structures that incentivize excessive risk-taking, governance rights that provide investors with few …
Facilitating The Intent Of Deceased Social Media Users, Yael Mandel
Facilitating The Intent Of Deceased Social Media Users, Yael Mandel
Cardozo Law Review
This Note will proceed in four parts. Part I will discuss the background of general testamentary principles of trusts and estates law. Part II will address the existing post-life policies of Facebook, Instagram, LinkedIn, and Twitter and the implications of the recently drafted acts addressing the disposition of digital assets. Part III will propose adding some type of testamentary formalities for the distribution of access to a deceased user's social media accounts, such as adding an electronic signature line and requiring the user to re-enter their password before saving their selections. In addition, Part III proposes the application of certain …
Spiller V. State: Determining The Nature Of Public Employees' Rights To Their Pensions, Andrew C. Mackenzie
Spiller V. State: Determining The Nature Of Public Employees' Rights To Their Pensions, Andrew C. Mackenzie
Maine Law Review
In Spiller v. State, a divided Maine Supreme Judicial Court, sitting as the Law Court, held that certain legislative changes to public employee pension benefits did not impair the employees' constitutional rights because there was no clear indication that the employees had a contractual right to their pensions. These changes were enacted as a reduction of state expenditures in reaction to Maine's fiscal deficit. The majority found that the changes were not unconstitutional and thus were permissible. The dissenting opinion, however, found that a contract existed between the State and the employees and that it had been breached. Although the …
Employees Or Independent Contractors: A Call For Revision Of Maine's Unemployment Compensation "Abc Test", Christopher J. Cotnoir
Employees Or Independent Contractors: A Call For Revision Of Maine's Unemployment Compensation "Abc Test", Christopher J. Cotnoir
Maine Law Review
The Maine Employment Security Law governs whether one person performing services for another is an independent contractor or an employee for unemployment tax purposes. It requires many employers to pay unemployment taxes on individuals who, under the usual common law rules governing the employer-employee relationship, are independent contractors. This result, caused partly by the structure of the statute and partly by judicial interpretation, has the effect of discouraging business expansion, limiting entrepreneurial opportunities, and ultimately, hampering statewide economic development. This Comment first provides the historical background of unemployment compensation legislation at the federal and state levels. Employer liability and employee/independent …
Insurer Prejudice Analysis Of An Expanding Doctrine In Insurance Coverage Law, Richard L. Suter
Insurer Prejudice Analysis Of An Expanding Doctrine In Insurance Coverage Law, Richard L. Suter
Maine Law Review
All contracts of insurance place certain requirements on the insured both before and after a covered loss has occurred. For example, all insurance policies require that an insured notify the insurer of a covered loss and cooperate with the insurer in the investigation of the loss and in the pursuit or defense of any claims arising out of the loss. Traditionally, if an insured failed to comply with such notification or cooperation requirements, the insurer could flatly deny coverage of the claim. Recently, however, an increasing number of courts are requiring that the insurer show that it has been prejudiced …
The Housing Authority Of The City Of Atlanta, Georgia, Order On Pending Motions, Alice D. Bonner
The Housing Authority Of The City Of Atlanta, Georgia, Order On Pending Motions, Alice D. Bonner
Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions
No abstract provided.
Cain V. Price C/W 69889/70864, 134 Nev. Adv. Op. 26 (April 12, 2018), Jeff Chronister
Cain V. Price C/W 69889/70864, 134 Nev. Adv. Op. 26 (April 12, 2018), Jeff Chronister
Nevada Supreme Court Summaries
The Nevada Supreme Court held that one party’s material breach of contract releases the non-breaching party’s contractual obligation to a third-party beneficiary.
U.S. Home Corp. V. The Michael Ballesteros Trust, 134 Nev. Adv. Op. 25 (April 1, 2018), Natice Locke
U.S. Home Corp. V. The Michael Ballesteros Trust, 134 Nev. Adv. Op. 25 (April 1, 2018), Natice Locke
Nevada Supreme Court Summaries
The Court held that where an underlying transaction involves interstate commerce, the FAA (Federal Arbitration Act) preempts state unconscionability doctrine from disfavoring arbitration.
Bernard H. Bronner, Derivatively On Behalf Of Rainforest Production Holdings, Inc. And Directly On Behalf Of Himself, Order On Certain Pending Motions, Melvin K. Westmoreland
Bernard H. Bronner, Derivatively On Behalf Of Rainforest Production Holdings, Inc. And Directly On Behalf Of Himself, Order On Certain Pending Motions, Melvin K. Westmoreland
Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions
No abstract provided.
Bsl Holdings, Llc Et Al., Order On Plaintiff's Third Motion To Compel Discovery, Elizabeth E. Long
Bsl Holdings, Llc Et Al., Order On Plaintiff's Third Motion To Compel Discovery, Elizabeth E. Long
Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions
No abstract provided.
The Surety's Liability For "Bad Faith": Claims For Extra-Contractual Damages By An Obligee Under The Payment Bond, John J. Aromando
The Surety's Liability For "Bad Faith": Claims For Extra-Contractual Damages By An Obligee Under The Payment Bond, John J. Aromando
Maine Law Review
The theory of “bad faith” is by now well established in the areas of liability and casualty insurance. Although the relief available takes different forms in different jurisdictions, a common thread is the exposure of the insurance carrier to extra-contractual damages as a result of its conduct in handling a claim. Depending on the jurisdiction, these extra-contractual damages can include one or more of the following: penal interest and attorneys' fees; consequential damages for breach of contract; and recovery in tort. Even in the most restrictive jurisdiction the exposure is substantial, and in the most expansive it can be catastrophic. …
Towards A Distinctive Trademark Law For The 21st Century, David Vaver
Towards A Distinctive Trademark Law For The 21st Century, David Vaver
Articles & Book Chapters
Canada's Trade Marks Act, when passed in 1953, was probably the best then around, but 65 years later it is ready to be pensioned off. The Act's deficiencies have become more evident as new markets and interests have gained prominence. A broadly-based Committee to reconsider the reform ofall intellectual property laws, with trademark law as one component, should be struck to produce a user-friendly code fit for 21st century commerce.
‘Rule Of Law’ In China: The Confrontation Of Formal Law With Cultural Norms, Larry A. Dimatteo
‘Rule Of Law’ In China: The Confrontation Of Formal Law With Cultural Norms, Larry A. Dimatteo
Cornell International Law Journal
This Article will be one of the first to fully examine the adoption of the first part of China’s long-term quest to enact a grand civil code. It is primarily an examination of the interaction between law and culture— this interaction is most visible when law is transplanted from one legal tradition (Western) into a country of a different legal tradition (Eastern). The General Rules of the Civil Law of the People’s Republic of China took effect on October 1, 2017. This enactment of general principles is the first step in what is expected to take up to five years …
Unframing Legal Reasoning: A Cyclical Theory Of Legal Evolution, Larry A. Dimatteo
Unframing Legal Reasoning: A Cyclical Theory Of Legal Evolution, Larry A. Dimatteo
UF Law Faculty Publications
This article draws from legal history to inform a part of legal theory. The legal history examination focuses on two theories of legal development - Henry Sumner Maine's "progression thesis" and Nathan Isaacs's "cycle theory." After examining these two theories of legal development, the analysis shifts to how legal history informs theories of legal reasoning. There are numerous long-standing debates on how "law" should be interpreted. These debates are replicated in the question of how "contracts" should be interpreted. Contract law and contract interpretation will be the focus in examining how history informs legal theory, and more specifically, legal reasoning. …