Contracts Commons^™

Tortious Interference Revisited, Danielle D'Onfro, Cathy Hwang

Scholarship@WashULaw

Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square with theories of efficient contract breach and the long-held view that contracts on their own are not property interests.

Perhaps because of its intellectual awkwardness, tortious interference claims were relatively rare until the twenty-first century. In the last twenty years, the doctrine has exploded in popularity, …

The Unbargained-For-Exchange In Copyright, Justin Ponds

MC Law Review

Copyright law in the United States is more than the letter "C" in a circle. The visual impression of someone clutching a book prevails in many minds. The use of the phrase "it's copyrighted" has become common. Many people consider a "copyright" to be "property." The true story of copyright law is so steeped in history - a great deal from England - that it makes even Betty White seem middle aged. This Article examines some of that history and compares mistaken connotations about "property" within the realm of contract law - a better association.

Contract-Wrapped Property, Danielle D'Onfro

Scholarship@WashULaw

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions …

Digital Property Cycles, Joshua Fairfield

Washington and Lee Law Review

The present downturn in non-fungible token (“NFT”) markets is no cause for immediate alarm. There have been multiple cycles in both the legal and media focus on digital intangible property, and these cycles will recur. The cycles are easily explainable: demand for intangible property is constant, even increasing. The legal regimes governing ownership of these assets are unstable and poorly suited to satisfying the preferences of buyers and sellers. The combination of demand and poor legal regulation gives rise to the climate of fraud that has come to characterize NFTs, but it has nothing to do with the value of …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law Review

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law School Faculty Publications

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

The New Bailments, Danielle D’Onfro

Washington Law Review

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Whiteness As Contract, Marissa Jackson Sow

Washington and Lee Law Review

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Whiteness As Contract, Marissa Jackson Sow

Faculty Publications

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

Contract Law’S Transferability Bias, Paul Macmahon

Indiana Law Journal

When A makes a contract with B, it comes as no surprise that she is liable to B. If B can transfer her contractual rights to C, A is now liable to C. Parties in A’s position often have strong reasons to avoid being liable to suit by C. Contract law, however, seems determined to minimize and override these concerns. Under current doctrine on the assignment of contractual rights—the focus of this Article—the law often imposes its own preference for transferability on the parties. The law generally assumes that contractual rights are assignable, construes exceptions to that general rule narrowly, …

Falcon Driftwood V. Day Chief, 19-Ap-12 (Blkft. Tr. Ct. App., Jan. 29, 2020), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court resolved a contract dispute for the sale of a trailer, in favor of the Plaintiff after the Respondent failed to make payments and pay insurance for the trailer to the Plaintiff pursuant to the legally binding contract. The Plaintiff retained legal title until such time as Respondent paid for the trailer in full. The Court reversed the lower court determination and ruled that the Respondent is to return the trailer, in the same condition received by the respondent, within 10 days.

Super-Statutory Contracting, Kristelia García

Publications

The conventional wisdom is that property rules induce more—and more efficient—contracting, and that when faced with rigid property rules, intellectual property owners will contract into more flexible liability rules. A series of recent, private copyright deals show some intellectual property owners doing just the opposite: faced with statutory liability rules, they are contracting for more protection than that dictated by law, something this Article calls “super-statutory contracting”—either by opting for a stronger, more tailored liability rule, or by contracting into property rule protection. Through a series of deal analyses, this Article explores this counterintuitive phenomenon, and updates seminal thinking on …

Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.

Touro Law Review

No abstract provided.

Cutting Pension Rights For Public Workers: Don't Look To The Courts For Help, Ronald H. Rosenberg

Faculty Publications

Every day we rely on public employees to provide us with a broad range of services necessary to daily life. These workers include public school teachers, fire and police, emergency medical technicians, park rangers, nurses just to name a few. As public employees, these people work for local and state government and they are compensated by us for their services through the taxes we pay. In general, these are modestly paid workers who also receive pensions when they retire after many years of work. Following the financial crisis of 2008-2009, government retirement trust funds significantly lost value and their long-term …

The Private Law Critique Of International Investment Law, Julian Arato

Articles

This Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.

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 …

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

No abstract provided.

Contract And Property Law—Fee-Shifting Statutes And Landlord-Tenant Law—A Call For The Repeal Of The English Rule "Loser Pays" System Regarding Contract Disputes And Its Effect On Low-Income Arkansas Tenants, Stephanie Mantell

University of Arkansas at Little Rock Law Review

No abstract provided.

The Unfinished Business Of Dodd-Frank: Reforming The Mortgage Contract, Christopher K. Odinet

Faculty Scholarship

The standard residential mortgage contract is due for a reappraisal. The goals of Dodd-Frank and the CFPB are geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations — in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus resulting in a new wave of credit-worthy homeowners …

Zygote Zeitgeist: Legal Complexities In The Expanding Practice Of Embryo Donation, Noah Geldberg

Loyola of Los Angeles Law Review

In recent decades, individuals and couples facing the issue of infertility have been able to achieve parenthood through advances in assisted reproductive technology (ART), such as embryo donation. This Article evaluates the current law governing embryo donation, considers the different approaches courts and legislatures have taken to regulate embryo donation, and advocates for an approach that best balances the policy arguments underlying those approaches. Ultimately, this Article argues that contract law, rather than laws surrounding adoption, should govern embryo donations. This Article further argues that state legislatures should clarify the effectiveness of contract law within the field of embryo donation …

Banks, Break-Ins, And Bad Actors In Mortgage Foreclosure, Christopher K. Odinet

Faculty Scholarship

During the housing crisis banks were confronted with a previously unknown number mortgage foreclosures, and even as the height of the crisis has passed lenders are still dealing with a tremendous backlog. Overtime lenders have increasingly engaged third party contractors to assist them in managing these assets. These property management companies — with supposed expertise in the management and preservation of real estate — have taken charge of a large swathe of distressed properties in order to ensure that, during the post-default and pre-foreclosure phases, the property is being adequately preserved and maintained. But in mid-2013 a flurry of articles …

Legal Nature And Contractual Conditions In Know-How Transactions, Carlos M. Correa

Georgia Journal of International & Comparative Law

No abstract provided.

Will Ticket Scalpers Meet The Same Fate As Spinal Tap Drummers? The Sale And Resale Of Concert And Sports Tickets, Gregory M. Stein

Pepperdine Law Review

Some people purchase concert or sports tickets for their own entertainment and then are unable to use their tickets. They may have a scheduling conflict, or their favorite team may be underperforming. Other people buy tickets with the intention of giving them as gifts. Still others purchase with the goal of reselling the tickets at a profit. This Article examines the transferability of tickets to performances and sporting events. What, exactly, is a “ticket”? What property and contract rights does the initial ticket holder acquire? Does the holder have the legal power to transfer these rights? To what extent can …

Marital Contracting In A Post-Windsor World, Martha M. Ertman

Florida State University Law Review

No abstract provided.

The Perils Of Primacy: Successor Liability For Lenders Turned Declarants In Louisiana Common Interest Communities, Christopher K. Odinet

Faculty Scholarship

In surveying the landscape of contemporary American real estate, it is increasingly difficult — if not impossible — to find a development that is not part of a common-interest community. Whether one is strolling through the avenues of a mixed-use commercial development or driving down the manicured tree-lined streets in a residential neighborhood, a complex and detailed legal regime underpins these developments in order to ensure that the order, quality, and aesthetic of the project is ensured and maintained from its earliest days and long into its future.

Since its inception in the early 1900s, the complexity of common interest …

Remedies: A Guide For The Perplexed, Doug Rendleman

Scholarly Articles

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

Doe V. Ministry Of Health, Elyakim Rubinstein, Isaac Amit, Daphne Barak-Erez

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This is a petition against the First and Second Respondents’ decision not to permit the Petitioner (a single woman, born in 1974) to use sperm donations by an anonymous donor (the Third Respondent), which were preserved for her (for a fee). The Petitioner had her first daughter from the Third Respondent’s donation. She is now interested in undergoing an additional insemination process with that …

Gottesman V. Vardi, Uzi Vogelman, Salim Joubran, Noam Sohlberg

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Second Appellant (hereinafter referred to as "Gottesman") is an architect who designed a unique dwelling (hereinafter referred to as "the house") for the Respondent (hereinafter referred to as "Vardi"). Gottesman asked to photograph the house in order to showcase it on his firm's website. Vardi refused. In addition, Gottesman published computer simulations of Vardi's house on the website without giving details that would …

Testing The Reach Of Ucc Article 9: The Question Of Tax Credit Collateral In Secured Transactions, Christopher K. Odinet

Faculty Scholarship

This Article addresses the open question related to the use of tax credits as a source of secured capital. It first lays a foundation by analyzing the theoretical underpinnings of the UCC’s category for general intangibles and shows how classification as a general intangible can and should comport with the legal substance of tax credits as a form of secured financing. The work also investigates the theory and nature that forms the basis of tax credits and their economic value. Next, the Article provides an overview of the relatively meager case law on tax credit financing and explains how courts …