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Articles 211 - 240 of 244
Full-Text Articles in Contracts
Conflicting Visions: A Critique Of Ian Macneil’S Relational Theory Of Contract, Randy E. Barnett
Conflicting Visions: A Critique Of Ian Macneil’S Relational Theory Of Contract, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Perhaps the leading contemporary critic of placing consent at the center of contract law has been Ian Macneil. In his book The New Social Contract as well as in a series of complex and richly textured articles spanning nearly two decades, Macneil has eloquently presented and defended his now well-known relational theory of contract. It is a tribute to the important core of previously neglected truth in Macneil's theory that, for all its complexity, the theory can be summarized succinctly.
Macneil presents nothing less than a "holistic" "social theory" of human exchange--with particular emphasis on the human activity of "projecting …
Striking The Balance In Contract History, Joel Levin, Banks Mcdowell
Striking The Balance In Contract History, Joel Levin, Banks Mcdowell
Cleveland State Law Review
The past three decades have seen an enormous amount of writing by Anglo-American scholars about contract theory. If nothing else, this demonstrates the almost universal perception that there are serious problems with the received theory of contract, the product of giants like Holmes, Williston, Cardozo and Corbin. This theoretical activity, instead of creating a new paradigm, has produced divergent theoretical approaches with various bands of scholars striking off in quite different directions, and in the process leaving most judges and lawyers back at the starting point. What should we be trying to do when we build a contract theory for …
Rational Bargaining Theory And Contract: Default Rules, Hypothetical Consent, The Duty To Disclose, And Fraud, Randy E. Barnett
Rational Bargaining Theory And Contract: Default Rules, Hypothetical Consent, The Duty To Disclose, And Fraud, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The author begins by responding to Coleman's rational choice approach to choosing default rules. In part I, he applies the expanded analysis of contractual consent and default rules that he had recently presented elsewhere to explain how rational bargaining, hypothetical consent, and actual consent figure in the determination of contractual default rules. Whereas Coleman advocates the centrality of rational bargaining analysis to this determination, the author explains why rational bargaining theory's role must be subsidiary to that of consent.
The author then turns his attention to Coleman's appraisal of contracting parties' duty to disclose information concerning the resources that are …
Hungarian Legal Reform For The Private Sector, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller
Hungarian Legal Reform For The Private Sector, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller
Faculty Scholarship
Hungary is in the midst of a fundamental transformation toward a market economy. Although Hungary has long been in the forefront of efforts to reform socialism itself, after 1989 the goals of reform moved from market socialism toward capitalism, as the old Communist regime lost power and the idea of widespread private ownership gained acceptance. The legal framework – the "rules of the game – is now being geared toward encouraging, protecting, and rewarding entrepreneurs in the private sector.
This Article describes the evolving legal framework in Hungary in several areas: constitutional, real property, intellectual property, company, foreign investment, contract, …
Default Rules For Contract Formation By Promise And The Need For Revision Of The Mailbox Rule, Beth A. Eisler
Default Rules For Contract Formation By Promise And The Need For Revision Of The Mailbox Rule, Beth A. Eisler
Kentucky Law Journal
No abstract provided.
A Better Approach To Arbitrability, Jeffrey W. Stempel
A Better Approach To Arbitrability, Jeffrey W. Stempel
Scholarly Works
Historically, Anglo-American courts refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. During the early twentieth century, merchants and attorneys began seeking legislation requiring courts to defer to arbitration. The United States Abitration Act took effect January 1, 1926 and has remained essentially unchanged. It was written with the implicit assumption that it would be invoked by commercial actors having relatively equal bargaining power and emotive appeal to a jury. The Act says nothing to direct the court's inquiry concerning the quality of either party's assent to the arbitration clause other than requiring a written arbitration agreement and …
Selected Poems On The Law Of Contracts, Douglass Boshkoff
Selected Poems On The Law Of Contracts, Douglass Boshkoff
Articles by Maurer Faculty
No abstract provided.
Chapter 5 - Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America (Previously Published Article), Elizabeth B. Clark
Chapter 5 - Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America (Previously Published Article), Elizabeth B. Clark
Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America
In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.
The Strategic Structure Of Offer And Acceptance: Game Theory And The Law Of Contract Formation, Avery W. Katz
The Strategic Structure Of Offer And Acceptance: Game Theory And The Law Of Contract Formation, Avery W. Katz
Faculty Scholarship
The purpose of this article is to promote a particular research program; namely, the use of game theory to analyze the law of contract formation. Although I will often simply speak of offer and acceptance in my discussion, I mean to refer to a broader set of issues than are commonly denoted by this doctrinal label. My program transcends the narrow issue of whether particular communications technically should be classified as offers and acceptances, and includes questions often analyzed under the rubrics of implication and interpretation. At its broadest, my argument addresses all legal rules that answer two types of …
Books Received, Law Review Staff
Books Received, Law Review Staff
Vanderbilt Journal of Transnational Law
Books Received
CONTRACT LAW IN THE U.S.S.R. AND THE UNITED STATES, VOL. I: HISTORY AND GENERAL CONCEPT
By E. Allan Farnsworth and Viktor P. Mozolin
Washington, D.C.: International Law Institute, 1987. Pp.xiii, 340. $35.00
========================
FOREIGN RELATIONS AND NATIONAL SECURITY LAW: CASES, MATERIALS AND SIMULATIONS
By Thomas M. Franck and Michael J. Glennon
St. Paul, Minnesota: West Publishing Company, 1987. Pp.lxiv, 941
=======================
THE GRAND STRATEGY OF THE UNITED STATES IN LATIN AMERICA
By Tom J. Farer
New Brunswick, New Jersey: Transaction Books, 1988. Pp. xxxii, 294
===========================
JUDGES
By David Pannick
New York: Oxford University Press,1987. Pp. vii, 255. …
Impossibility And Related Excuses, Victor P. Goldberg
Impossibility And Related Excuses, Victor P. Goldberg
Faculty Scholarship
In the first section I present an e of why reasonable businessmen would choose to excuse performance for some changed circumstances, but not others. In the remainder of the paper I will analyze specific problems that have arisen in the impossibility case law and literature. The explanation forwarded in Section 1 will play a prominent role in much of that discussion. Largely because their paper stimulated my thoughts on the problem, I will contrast my analysis of some of the specific cases to that of Posner and Rosenfield [1977]. I will not, except in passing, critique the case law, the …
Clarifying The Record: A Comment, Victor P. Goldberg
Clarifying The Record: A Comment, Victor P. Goldberg
Faculty Scholarship
In their recent article in this journal, Boudreaux and Ekelund [1987] ha presented a distorted characterization of some of my work on the economics o regulation. The editor of this journal has graciously offered me the opportunity to respond to their criticisms and to redress some ambiguities, real or imagine in my earlier work.
Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery W. Katz
Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery W. Katz
Faculty Scholarship
Fuller and Perdue's classic article, The Reliance Interest in Contract Damages, is regarded by many contemporary contracts scholars as the single most influential law review article in the field. For those of us who teach and think about contracts from the perspective of law and economics, the consensus would probably be close to unanimous. The article displays an approach highly congenial to an economic perspective. The connection goes beyond Fuller and Perdue's explicitly functional approach to law (which law and economics shares with other schools of thought descended from the legal realists) and beyond Fuller and Perdue's focus on …
No Exit?: Opting Out, The Contractual Theory Of The Corporation, And The Special Case Of Remedies, John C. Coffee Jr.
No Exit?: Opting Out, The Contractual Theory Of The Corporation, And The Special Case Of Remedies, John C. Coffee Jr.
Faculty Scholarship
Aloof and insular as corporate law often seems, it cannot remain uninfluenced for very long by developments in the mainstream of American civil law. In that mainstream, there is today flowing a strong, swift current called "tort reform." As currents go, this one is remarkably broad and perhaps a little shallow, but on it floats a number of diverse legislative proposals – ceilings on liability, restrictions on attorneys' fees, greater reliance on alternative methods of dispute resolution, restrictions on joint and several liability and contribution, and the curtailment of punitive damages. All of these proposals flow from the same wellspring: …
Contract Law As A System Of Values Book Review, Jack M. Beermann
Contract Law As A System Of Values Book Review, Jack M. Beermann
Faculty Scholarship
Contract law has changed dramatically since the heyday of free contract ideology. The false conflict in the cases and literature between facilitation of market transactions and regulation to achieve social aims has been transcended, largely due to the realization that social aims are behind all of contract law. In place of this false conflict, new questions about the values advanced through contract law have been posed. Contract theory needs an account of the values underlying doctrines that were previously justified (wrongly) as means to effectuate the intent of the parties. Hugh Collins has given us such an account in his …
Quantity And Price Adjustment In Long-Term Contracts: A Case Study Of Petroleum Coke, Victor P. Goldberg, John R. Erickson
Quantity And Price Adjustment In Long-Term Contracts: A Case Study Of Petroleum Coke, Victor P. Goldberg, John R. Erickson
Faculty Scholarship
Much economic activity takes place within a framework of complex, long-term contracts. While economists have shown increased interest in these contracts, surprisingly little is known about them, or, indeed, about how to analyze the contracting activity of private economic actors. A case study of the actual contracts used in one industry could provide sorely needed data about the way in which reasonably clever businessmen and lawyers cope with problems scholars might consider intractable. In this article, we provide such an analysis of contracts concerning a particular product – petroleum coke. We focus on the problems of quantity and price adjustment. …
Price Adjustment In Long-Term Contracts, Victor P. Goldberg
Price Adjustment In Long-Term Contracts, Victor P. Goldberg
Faculty Scholarship
After parties enter into a contract, changed circumstance might result in one of them being dissatisfied with the price. Anticipating this, the parties could include a price adjustment mechanism in the agreement. If the mechanism is imperfect, some dissatisfaction will remain. This dissatisfaction may result in litigation with the dissatisfied party asking the court either to excuse performance or revise the contract price. For example, large changes in fuel prices since 1973 generated considerable litigation.
In this paper, I suggest a framework for analyzing price adjustment in private contracts. Contrary to most economists and lawyers, I argue that price adjustment …
Afterword: Contracts And Uncertainty, Walter F. Pratt
Afterword: Contracts And Uncertainty, Walter F. Pratt
Journal Articles
This symposium reveals an unexpected irony: The very innovations designed to deal with one type of uncertainty-economic-have themselves produced another type of uncertainty-that associated with resolving disputes. This new uncertainty sounds a discordant note in the traditional refrain that contracts are legal devices for allocating risks between parties. As an afterword, this article draws together evidence from the symposium and from history to emphasize that contract is not the ideal device for allocating risks at the very time that allocation is most desired-when uncertainty is greatest. The lesson can be put in starker terms: Contract is a legal relationship and …
Surrogate Gestation And The Protection Of Choice, Louise E. Graham
Surrogate Gestation And The Protection Of Choice, Louise E. Graham
Law Faculty Scholarly Articles
Proponents of surrogate gestation contracts base their case on both the constitutional privacy rights of persons involved in the contract and the notion that contractual agreements are capable of sufficiently protecting all interests involved. This article first speculates on how courts might handle surrogate gestation contracts under existing laws and offers arguments for and against such contracts. Although some commentary on the contractual aspect of the agreement exists, little attention has been given to the privacy arguments of the parties. The major focus of this article, therefore, is upon the nature of the privacy claims asserted by the prospective parents …
An "Equivocal Estoppel": The Strange Career Of Promissory Estoppel In Kentucky Contract Law, Steven Connelly
An "Equivocal Estoppel": The Strange Career Of Promissory Estoppel In Kentucky Contract Law, Steven Connelly
Kentucky Law Journal
No abstract provided.
Book Review. Transcending Covenant And Debt, Morris S. Arnold
Book Review. Transcending Covenant And Debt, Morris S. Arnold
Articles by Maurer Faculty
No abstract provided.
Breach Of Contract, Damage Measures, And Economic Efficiency, Robert L. Birmingham
Breach Of Contract, Damage Measures, And Economic Efficiency, Robert L. Birmingham
Articles by Maurer Faculty
No abstract provided.
Damage Measures And Economic Rationality: The Geometry Of Contract Law, Robert L. Birmingham
Damage Measures And Economic Rationality: The Geometry Of Contract Law, Robert L. Birmingham
Articles by Maurer Faculty
The question of damage measures presented by the conscious decision of a promisor to breach a losing contract raises one of the most perplexing conceptual problems in contract law. Recognizing the present inability of the courts rationally to resolve the problem, as illustrated by the opposing decisions in Groves v. John Wunder Company and Peevyhouse v. Garland Coal and Mining Company, the author undertakes to examine the premises of contract law with afresh perspective-economic analysis.
Contract Interference By Previous Employer, Robert I. Bendis
Contract Interference By Previous Employer, Robert I. Bendis
Cleveland State Law Review
Whether or not Bennett was correct in his allegation and whether or not his former employer was justified in its act were the questions presented to the court in the case of William Bennett v. Storz Broadcasting Company. The answers to these questions turned on the court's interpretation of the following issues: what acts constitute actionable interference; was the contract of employment between the plaintiff and the defendant, and/or the negative covenant contained therein, valid; was the existence of a contract crucial or even necessary for an action to lie; could there be any justification for the defendant's acts; and …
How And By Whom May An Offer Be Accepted?, Wencelas J. Wagner
How And By Whom May An Offer Be Accepted?, Wencelas J. Wagner
Articles by Maurer Faculty
No abstract provided.
Actions In Contract Resulting From Aircraft Crashes, Stephen M. Feldman
Actions In Contract Resulting From Aircraft Crashes, Stephen M. Feldman
Cleveland State Law Review
The purpose of this article is to examine possible causes of actions sounding in contract available in cases of death or personal injuries arising out of aircraft crashes. The ability of the plaintiff to sustain an action in contract may have a decisive effect on the outcome of the litigation in any one of the following respects: First, as a general rule the law of the place of the accident governs tort actions, while the law of the place of contracting governs contract actions and for one of several reasons it may be advantageous to the plaintiff to avoid the …
Some Problems Of Revocation And Termination Of Offers, Wencelas J. Wagner
Some Problems Of Revocation And Termination Of Offers, Wencelas J. Wagner
Articles by Maurer Faculty
No abstract provided.
The Law Of Contracts In Communist Countries (Russia, Bulgaria, Czechoslovakia And Hungary), Wencelas J. Wagner
The Law Of Contracts In Communist Countries (Russia, Bulgaria, Czechoslovakia And Hungary), Wencelas J. Wagner
Articles by Maurer Faculty
No abstract provided.
The Interplay Of Planned Economy And Traditional Contract Rules In Poland, Wencelas J. Wagner
The Interplay Of Planned Economy And Traditional Contract Rules In Poland, Wencelas J. Wagner
Articles by Maurer Faculty
No abstract provided.
Contracts -- 1958 Tennessee Survey, Paul J. Hartman
Contracts -- 1958 Tennessee Survey, Paul J. Hartman
Vanderbilt Law Review
During the period covered by this survey article, there have not been many cases in the field of contracts. In two of the cases the only question before the court was the sufficiency of the evidence, and in both of these cases the Tennessee Court of Appeals found that there was sufficient evidence to sustain the lower court, without going into an analysis of the evidence. Thus, there is no comment that can properly be made concerning those cases. There were two other cases, however, upon which some comment can properly be made.
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Contracts-Third Party Beneficiary-Right of County to …