Contracts Commons^™

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 …

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. …

The Politics Of Access: Examining Concerted State/Private Enforcement Solutions To Class Action Bans, Myriam E. Gilles

Articles

Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in …

Tik Tok: Time To Eradicate Sexual Assault In The Music Industry Through The Implied Covenant Of Good Faith And Fair Dealing, Chanel Chasanov

DePaul Journal of Women, Gender and the Law

No abstract provided.

Not So Good: The Classification Of “Smart Goods” Under Ucc Article 2, Chadwick L. Williams

Georgia State University Law Review

Refrigerators can now tweet. Today, almost sixty years after the states widely adopted the Uniform Commercial Code (UCC), the line between goods and services is more blurred than ever. When the UCC was drafted, a good was the simple opposite of a service. A good was something “movable” and tangible, and a service was not. Article 2 of the UCC, which governs sales, limits its scope to goods.

However, because Article 2 was drafted long before the proliferation of so-called “smart goods,” courts continuously struggle to determine when a smart good falls within Article 2’s scope. Courts have developed different …

Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values …

How Well Do We Treat Each Other In Contract?, Aditi Bagchi

William & Mary Business Law Review

One of the important contributions of Nathan Oman’s new book is to draw focus onto the quality of the relationships enabled by contract. He claims that contract, by supporting markets, cultivates certain virtues; helps facilitate cooperation among people with diverse commitments; and produces the wealth that may fuel interpersonal and social justice. These claims are all plausible, though subject to individual challenge. However, there is an alternative story to tell about the kinds of relationships that arise from markets--i.e., a story about domination. The experience of domination is driven in part by the necessity, inequality, and competition enjoined by markets, …

Contract Law And The Common Good, Brian H. Bix

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman offers a theory of contract law that is largely descriptive, but also strongly normative. His theory presents contract law’s purpose as supporting robust markets. This Article compares and contrasts Oman’s argument about the proper understanding of contract law with one presented over eighty years earlier by Morris Cohen. Oman’s focus is on the connection between Contract Law and markets; Cohen’s connection had been between Contract Law and the public interest. Oman’s work brings back Cohen’s basic insight, and gives it a more concrete form, as a formidable normative theory with detailed prescriptions.

Contract, Promise, And The Right Of Redress, Andrew S. Gold

William & Mary Business Law Review

This Essay reviews Nathan Oman’s recent book, The Dignity of Commerce. The book is compelling, and it makes an important and original contribution to contract theory—a contribution that insightfully shows how markets matter. Yet, in the course of developing a market-centered justification for contract law, The Dignity of Commerce also downplays the significance of consent and promissory morality. In both cases, the book’s argument is problematic, but this Essay will address questions of promissory morality. Oman contends that promise-based accounts struggle with contract law’s bilateralism and with its private standing doctrine. Yet, promissory morality is a very good fit …

A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman

William & Mary Business Law Review

This Article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce “desirable” outcomes for society. In addition to a comprehensive account of what he calls “virtues” of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.

Oman is not only a fan of markets, but he asserts that markets are the “center” of contract theory, and provide its normative foundation. Elaborating, Oman concludes that “contract law exists primarily to support markets” and that …

Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian

William & Mary Business Law Review

In this Essay on Professor Oman’s beautifully written and meticulously researched book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called doux commerce thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from …

Contract Law's Predominant Purpose Test And The Law-Fact Distinction, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Sign Or Die: The Threat Of Imminent Physical Harm And The Doctrine Of Duress In Contract Law, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

The Middleman’S Damages Revisited, Victor P. Goldberg

Faculty Scholarship

If A promises to sell to B who, in turn, promises to sell to C and either A or C breaches should B receive the gain it expected had both transactions occurred (lost profits) or the larger market/contract differential? Recent case law and commentary argues for the lost profit remedy. The argument is that there is a conflict between awarding market damages and making the nonbreacher whole. This paper argues that there is no conflict. If B were a broker, and C breached, then A would have an action against C for market damages. If B were party to the …

Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In “The Choice Theory of Contracts”, we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract.

Oren Bar-Gill pushes back strongly in “Choice Theory and the Economic Analysis of Contracts”. He offers a penetrating – perhaps devastating – critique of our approach. Bar-Gill notes the substantial convergence between choice theory and a welfarist view. If he is right, then what does choice theory add?

Our task in Part I of this …

Lobbying As A Strategy For Tribal Resilience, Kirsten Matoy Carlson

Law Faculty Research Publications

No abstract provided.

Boilerplate’S False Dichotomy, James Gibson

Law Faculty Publications

The argument against enforcing boilerplate contracts (contracts that no one reads) seems clear. Indeed, if this were a court case we would say that the jury is in; the evidence against boilerplate is overwhelming. Yet the judge has yet to render judgment. Courts continue to enforce boilerplate terms, and even those scholars who have exposed boilerplate as an emperor with no clothes are reluctant to gaze upon its nakedness and condemn its use.

This reluctance originates in an assumption that pervades the boilerplate debate—namely, that courts and commentators alike view boilerplate as necessary to the modern transaction. When asked to …

Interpretation And Construction In Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Interpretation determines the meaning of a legal actor’s words and actions, construction their legal effect. Although the interpretation-construction distinction has a long pedigree, contract scholars today rarely attend to it, and the relationship between the two activities remains understudied. This Article provides an account of the interplay between interpretation and construction in contract law.

It begins with the history of the concepts, focusing on the works of Lieber, Williston and Corbin. It adopts Corbin’s complimentary conception, according to which interpretation alone never suffices to determine speech act’s legal effects; a rule of construction is always required. The Article departs from …

Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In The Choice Theory of Contracts, we advance a claim about the centrality of autonomy to contract. This Issue offers thoughtful and penetrating critiques. Here, we reply. Autonomy is the grounding principle of contract. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path for …

The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal

Publications

There has been an explosion in new types of startup finance instruments. Whereas twenty years ago preferred stock dominated the field, startup companies and investors now use at least eight different instruments—six of which have only become widely used in the last decade. Legal scholars have yet to reflect upon the proliferation of instrument types in the aggregate. Notably missing is a way to organize instruments into a common framework that highlights their similarities and differences.

This Article makes four contributions. First, it catalogues the variety of startup investment forms. I describe novel instruments, such as revenue-based financing, which remain …

The Uncertainty Of Sun Printing, George M. Cohen

Touro Law Review

No abstract provided.

Antitrust Enforcement Against Platform Mfns, Jonathan Baker, Fiona M. Scott Morton

Scholarly Articles in Law Reviews & Journals

Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions (also termed pricing parity provisions) can help protect competition in online markets. An online platform imposes a platform MFN when it requires that providers using its platform not offer their products or services at a lower price on other platforms. These contractual provisions may be employed by online platforms offering hotel and transportation bookings, consumer goods, digital goods, and handmade craft products. They have been the subject of antitrust enforcement in Europe but have drawn only limited antitrust scrutiny in the U.S. Our paper explains why MFNs employed by online …

One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller

Touro Law Review

No abstract provided.

The Price Of Law: The Case Of The Eurozone's Collective Action Clauses, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena

Faculty Scholarship

Do markets value contract protections? And does the quality of a legal system affect such valuations? To answer these questions we exploit a unique experiment whereby, after January 1, 2013, newly issued sovereign bonds of Eurozone countries under domestic law had to include Collective Action Clauses (CACs) specifying the minimum vote needed to modify payment terms. We find that CAC bonds trade at lower yields than otherwise similar no-CAC bonds; and that the quality of the legal system matters for this differential. Hence, markets appear to see CACs as providing protection against the legal risk embedded in domestic-law sovereign bonds.

The Enforceability Of Consent-To-Assign Provisions In Texas Oil And Gas Leases, T. Ray Guy, Jason Wright

SMU Law Review

Oil and gas leases are unique instruments that, on their face, appear to be contracts or traditional landlord–tenant leases. Indeed, landowners often desire to have them treated as such by including provisions giving a lessor power to limit or control any assignment of the lease. Typically, this takes the form of a consent-to-assign provision seen in many types of ordinary contracts and leases. In Texas, however, an oil gas lease actually conveys a fee simple property interest; and property law, far more than contract or landlord–tenant law, greatly disfavors any restraint that acts to restrict the free transferability (or “alienation”) …

Bespoke Discovery, Jessica M. Erickson

Law Faculty Publications

The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes. With forum selection clauses, parties can decide where they will litigate future disputes. With fee-shifting provisions, they can choose who will pay for these suits. And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether. Parties can also waive their right to appeal, their right to a jury trial, and their right to file a class action. Bespoke procedure, in other words, is commonplace in the United States.

Far less common, however, are …

Control Of The Attorney-Client Privilege After Mergers And Other Transformational Transactions: Should Control Of The Privilege Be Alienable By Contract?, Grace M. Giesel

Faculty and Staff Scholarship

In recent years, parties to mergers and other transformational transactions have begun inserting into their deal documents provisions allocating post-transaction control of the attorney-client privilege for pretransaction communications. The controller of the privilege is the person or entity who decides whether to assert the privilege or, rather, to waive it. Commonly, representatives of the target entity in a merger or representatives of an asset seller in a transformational sale want post-transaction control of the privilege for pre-transaction communications relating to the transaction. They want control of the privilege so the surviving entity cannot access or use those communications against the …

Codify This: Exculpatory Contracts In Wisconsin Recreational Businesses, Blake A. Nold

Marquette Law Review

It is common practice for recreational businesses, such as ski resorts or fitness centers, to require their customers to sign a release of liability form. The purpose of this release form is to relieve the business from any potential liability in the event a customer suffers an injury. However, since 1982, the Wisconsin Supreme Court has yet to uphold an exculpatory contract. Rather than attempting to lay out principles and guidelines for how to draft an exculpatory agreement—in hopes that it will be ruled enforceable—this Comment proposes that Wisconsin recreational businesses, like ski resorts or gyms, should not require customers …

Poke Your Nose Into Your Clients' Businesses (If You Want To Understand Their Contracts), James W. Bowers

Maine Law Review

Thirty years ago Grant Gilmore argued that “Contract” was dead. This lecture, delivered as 2004 Godfrey Scholar-in-Residence at the University of Maine School of Law, considers the cause of death. Since the expired doctrines arose in a common law process, the lecture argues their demise resulted from the failings of lawyers, especially lawyers' commitment to wooden, formalist legal methods. I explore some of the reasons why lawyers became committed to these methods, and argue that even were nineteenth-century formalistic practices resurrected, modern lawyers must still be prepared to understand the potential effects business contexts might have in contract disputes and …