Contracts Commons^™

Not From Guile But From Entitlement: Lawful Opportunism Capitalizes On The Cracks In Contracts, Gastón De Los Reyes Jr., Kirsten Martin

Buffalo Law Review

Few concepts have been more pivotal to contract law scholarship over the last forty years than the opportunism attributed ex ante and ex post to contracting parties, yet the lawful form of opportunism identified by Nobel Laureate Oliver Williamson in 1991 remains surprisingly overlooked in favor of the blatant forms of opportunism that result from “self-interest seeking with guile.” This Article extends Williamson’s inchoate account of lawful opportunism and reports the first empirical study of the phenomenon.

The conceptual analysis of lawful opportunism is developed with reference to the bargaining underlying the classic impossibility decision, Taylor v. Caldwell. Three component …

Jason’S Long Night At Camp Blood: Surveying The Independent Copyrightability Of Jason Voorhees In The Wake Of Horror Inc. V. Miller, Tim Kelly

Cybaris®

No abstract provided.

Virtual Hearings And Blockchain Technology Solutions In Criminal Law, Chantell Bergquist

Political Science Theses and Capstones

Technology has evolved and raided our personal and professional lives. Although the courts are not immune to the advancement and integration of technology, the courts are not keeping up with relevant technological advancements. Historically, courts have been hesitant to embrace new technologies despite the Federal Rules of Civil Procedure and the American Bar Association Model Rules of Professional Conduct. Rule 1 of the Federal Rules of Civil Procedure creates the right to a “just, speedy, and inexpensive determination of every action and proceeding.” Likewise, the American Bar Association Model Rules of Professional Conduct have determined attorneys must “keep abreast of …

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Dickinson Law Review (2017-Present)

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement (“DRM”), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

Inclusion Riders And Diversity Mandates, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

In this piece, I situate these sorts of diversity requests within the broader context of other customer/client preferences that implicate Title VII. To be sure, the “inclusion riders” are not literal customer/client requests, but rather requests from celebrities who are themselves being hired by the employer for a specific project. Broadly speaking, however, they raise the same legal issue regarding third-party preferences that implicate protected characteristics under Title VII.

As a starting point, the general rule within employment discrimination law is that customer preferences cannot justify discriminatory treatment by employers. That baseline has led courts to rule that employers cannot, …

The Good, The Bad, And The Ugly Of Online Reviews: The Trouble With Trolls And A Role For Contract Law After The Consumer Review Fairness Act, Wayne Barnes

Faculty Scholarship

The advent of the Internet has brought innumerable innovations to our lives. Among the innovations is the meteoric rise in the volume of e-commerce conducted on the Internet. Correspondingly, consumer-posted information about merchants, goods, and services has also begun to be a rich source of information for consumers researching a purchase online. This information takes many forms, but a major category is the narrative review describing the purchase and experience. Such reviews are posted on websites such as Yelp, Amazon and TripAdvisor, on apps, and on social media such as Facebook and Twitter. The amount and volume of reviews has …

The Life Of Arbitration Law Has Been Experience, Not Logic: Gorsuch, Kavanaugh, And The Federal Arbitration Act, William F. Fox, Ylli Dautaj

Cardozo Journal of Conflict Resolution

Over the past 50 years, the international business community has settled on the device of international commercial arbitration to resolve the overwhelming number of disputes that arise in their commercial agreements. One reason is that many business people are suspicious of the domestic courts of many host countries and have always sought the comfort of a neutral forum. Arbitration is neutral (i.e., not tied directly to any particular domestic legal system), efficient and confidential. Much of this evolution has been triggered by events in the United States-in particular a long series of United States Supreme Court decisions that ended the …

Novel Adaptation To Stage And Screen: Rethinking The Contractual And Creative Process, Jennifer Rainville Mccabe

Cardozo Journal of Conflict Resolution

No abstract provided.

The United Nations Commission On International Trade Law (Uncitral) And The Significance Of The Singapore Convention On Mediation, Corinne Montineri

Cardozo Journal of Conflict Resolution

This paper outlines how the UNCITRAL drafting process that produced the Singapore Convention on Mediation functions within the United Nations and explains the significance of the Singapore Convention for the United Nations and for promoting cross-border trade and investment.

When Forum Selection Clauses Meet Choice Of Law Clauses, Tanya J. Monestier

Journal Articles

Many contracts that contain a forum selection clause also contain a choice of law clause. This raises the issue of whether to apply the parties’ chosen law to questions of forum selection clause interpretation, such as whether the clause is mandatory or permissive and how far the scope of the clause extends. The recent trend has been for courts to apply the law selected by the parties in their choice of law clause to govern these interpretation issues. This Article argues that the law has gone in the wrong direction and that courts should apply forum law to questions of …

Keynote Address: Modern Supply Chains And Outmoded Contract Law, Alan Schwartz

American University Law Review

No abstract provided.

From Clause A To Clause Z: Narrative Transportation And The Transactional Reader, Susan M. Chesler, Karen J. Snedden

South Carolina Law Review

No abstract provided.

The Effect Of Oral Statements On The Making Of The City Of Providence's Municipal Contracts, John J. Chung

Roger Williams University Law Review

No abstract provided.

Penalty Or Damages? Are There Limits To Liquidated Damages Provisions In Teacher Employment Contracts

Florida A & M University Law Review

This Article examines the validity of liquated damages provisions with regard to teacher contracts and the appropriateness of their use. Part II addresses the law of liquidated damages generally. Part III discusses one Georgia case brought by two teachers against DCSD for enforcement of its liquidated damages provision as an attempt to force the teachers to stay with the District. Part IV summarizes a review of various teacher employment contracts and types of liquidated damages clauses incorporated therein. Part IV concludes with a discussion of various issues that school districts ought to take into consideration to enhance teacher retention and …

The Case For American Muslim Arbitration, Rabea Benhalim

Publications

This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated …

Bad Foundation: Washington's Lack Of Homeowner Rights, Brendan Williams

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Moral Diversity And Efficient Breach, Matthew A. Seligman

Michigan Law Review

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them …

Agency: Married Women Traders Of Nantucket, 1765-1865, Mary L. Heen

Law Faculty Publications

Before the enactment of separate property and contract rights for married women, generations of married women in seaport cities and towns conducted business as merchants, traders and shopkeepers. The first part of this article shows how private law facilitated their business activities through traditional agency law, the use of powers of attorney, trade accounts and family business networks. These arrangements, largely hidden from public view in family papers, letters, and diaries, permitted married women to enter into contracts, to buy and sell property, and to appear in court. Private law, like equity, thus provided a more flexible alternative to the …

Alternative Infrastructure Finance: Should The United States Adopt Federal Guidelines To P3 Concessions, Dih-Lin Wong

Cardozo International & Comparative Law Review

The article argues that the U.S. struggles with modernizing its infrastructure due to insufficient investment and a lack of standardized legal frameworks for public-private partnerships (P3s). While P3s offer a promising alternative to traditional financing by allocating risks and generating efficiencies, the U.S. faces challenges due to a patchwork of state-level laws and procurement practices. The article suggests that adopting federal guidelines for P3s, drawing lessons from successful models in the UK and Australia, could streamline infrastructure financing, attract private investment, and enhance project efficiency.

The Blood Antiquities Convention As A Paradigm For Cultural Property Crime Reduction, Derek Fincham

Cardozo Arts & Entertainment Law Journal

In 2017, the Council of Europe opened for signature the first ever international treaty aimed at policing cultural property. As more attention has been paid to the damage done by the theft, looting, and illicit trafficking of cultural objects, the Council of Europe has met this challenge with an ambitious convention, which aims to fill gaps in the current criminal laws. These gaps have too often been exploited by individuals in the illicit antiquities trade. The author had an opportunity to present his analysis of a draft version of the Council of Europe's Convention at a meeting held in Lucca, …

The Limitations Of Information: Rethinking Soft Paternalistic Interventions In Copyright Law, Yifat Nahmias

Cardozo Arts & Entertainment Law Journal

Authors and intermediaries seldom enjoy equal bargaining power. This disparity-as well as information asymmetries-has been claimed to significantly undermine authors' ability to capture a fair share of the wealth generated from their creative efforts and contributions, thereby possibly reducing their incentive to create expressive works and compromising the myriad other benefits that copyright protection is meant to provide. To address this problem, legislatures have adopted soft paternalistic interventions designed to improve authors' choices without applying a hard-handed approach. Such interventions benevolently push the author away from risk or encourage her to make decisions that the legislator perceives to be in …

Introductions, Julia Spivak, Tonya M. Evans

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Panel 1: Digital Art And Digital Collectibles, Ross Blum, Steve R. Schindler, Amy Whitaker, Elena Zavelev, Christopher Buccafusco

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Persistence Of "Dumb" Contracts, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

“Smart contracts” are a hot topic. Presently, smart contracts are mostly evidence of property, like crypto-currencies or mortgages, created and/or transferred on blockchain technology. This is an exploration of the theoretical possibilities of artificial intelligence in a far broader range of complex and heretofore negotiated transactions that occur over time. My goal is to understand what it means to make a contract smarter, i.e. to delegate more and more of the creation, performance, and disposition of legally binding transactions to machine thinking. Moreover, I want to do so from the perspective of one who is neither a true believer in …

Still In Exile? The Current Status Of The Contract Clause, James W. Ely

Vanderbilt Law School Faculty Publications

The Contract Clause is no longer the subject of much judicial solicitude or academic interest.' Since the 1930s the once potent Contract Clause has been largely relegated to the outer reaches of constitutional law.2 This, of course, was not always the case. On the contrary, throughout the nineteenth century the Contract Clause was one of the most litigated provisions of the Constitution. In 1896, Justice George Shiras astutely commented: "No provision of the constitution of the United States has received more frequent consideration by this court than that which provides that no state shall pass any law impairing the obligation …

Exhaustion In The Service Of Progress, Ofer Tur-Sinai

Cardozo Arts & Entertainment Law Journal

Under the doctrine of patent exhaustion, an authorized sale of a patented item exhausts the patentee's rights with respect to that item, leaving the purchaser and subsequent owners free to use or resell it without fear of an infringement lawsuit. In 2017, the U.S. Supreme Court issued its landmark decision in Impression Products v. Lexmark International, which strengthened the exhaustion doctrine in various significant ways. The Court held that an authorized sale of a patented item exhausts all patent rights with respect to that item, regardless of any restrictions on use or resale the patentee purports to impose. The Court …

Exploration Of The Nfl Franchise Tag Functioning As A Non-Compete Clause, David B. Borsack

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Panel 2: Art Law And Blockchain, Tonya M. Evans, Derek Fincham, Katya Fisher, Jeanne Schroeder

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Faulty Foundation Of The Draft Restatement Of Consumer Contracts, Adam J. Levitin, Nancy Kim, Christina L. Kunz, Peter Linzer, Patricia A. Mccoy, Juliet M. Moringiello, Elizabeth A. Renuart, Lauren E. Willis

Faculty Scholarship

Professor Gregory Klass's replication study of the Draft Restatement of the Law of Consumer Contract's empirical analysis of privacy policies found troubling and pervasive problems with the Reporters' coding of cases. We extended Professor Klass's study with a replication of the coding of the two largest datasets supporting the Draft Restatement, those on the enforceability of unilateral contract modifications and those on the enforceability of clickwrap assent. For the replication, we reviewed 186 cases blind to the Reporters' coding.

We found that nearly two-thirds of the cases in the unilateral modification dataset were irrelevant to the hypothesis tested by the …

Law And The Blockchain, Usha Rodrigues

Scholarly Works

All contracts are necessarily incomplete. The inefficiencies of bargaining over every contingency, coupled with humans’ innate bounded rationality, mean that contracts cannot anticipate and address every potential eventuality. One role of law is to fill gaps in incomplete contracts with default rules. The blockchain is a distributed ledger that allows the cryptographic recording of transactions and permits “smart” contracts that self-execute automatically if their conditions are met. Because humans code the contracts of the blockchain, gaps in these contracts will arise. Yet in the world of “smart contracting” on the blockchain, there is no place for the law to step …