Contracts Commons^™

Why Flexibility Matters: Inequality And Contract Pluralism, Jeremiah A. Ho

All Faculty Scholarship

In the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to …

Review Of The Choice Theory Of Contracts, Nicolas Cornell

Reviews

This book aims to provide a new approach to thinking about the role of contract law in a liberal state. The fundamental idea is that the law should affirmatively facilitate citizens' autonomy by creating and sustaining various different types of contractual relationships so that citizens have the option to choose among them. The authors start from the idea that "bargaining for terms is not the dominant mode of contracting . . . the mainstay of present-day contracting is the choice among types" (2-3). We choose to relate as employees or independent contractors, married or just cohabiting, merchants selling goods or …

Relative Consent And Contract Law, Nancy Kim

Faculty Scholarship

What does it mean to consent? Consent is an essential component of contracts, yet its part in contract law is obscure. Despite its importance, there is no independent doctrine of consent; rather, it plays a key, but ill-defined role in assessing doctrines such as assent or duress. This Article addresses this significant omission in contract law by disassembling the meaning of contractual consent into three conditions: an intentional act or manifestation of consent, voluntariness and knowledge. This Article argues that consent can only be understood relative to these three conditions. Accordingly, consent is not merely a conclusion but a process …

Mythbusting: Why The Critics Of Litigation Finance Are Wrong, Roni Elias

Florida A & M University Law Review

Critics of ALF contend that such financing methods create various problems: they violate well-established principles of common law about the relationship between litigants and third-parties; they are tantamount to usurious loans; and they threaten the integrity of the judicial system by making it easier for litigants with few resources to bring frivolous lawsuits.

This article discusses both sides of this debate and concludes that the most prevalent criticisms of ALF are based upon misconceptions and myths about the nature of ALF transactions and of the interests of the parties involved in those transactions. When ALF is carefully considered, it is …

Transnational Carbon Contracting: Why Law’S Invisibility Matters, Natasha Affolder

All Faculty Publications

Contract lawyers are well aware that it is in the boilerplate, in the creation of contractual norms, forms and defaults, that power gets divided and that winners and losers are made. This analysis applies to contractual governance just as it applies to the individual contract setting. This chapter draws on the example of forest carbon contracts to illustrate the 'behind the scenes' privileging of contractual forms, norms, and defaults in action. It argues that the reductionist vision of law emerging in the literature and practice of carbon contracting is both misleading and impoverished.

Hollywood Accounting: Profit Participation And The Use Of Mediation As A Mode Of Resolving These Disputes, Eric Strum

Cardozo Journal of Conflict Resolution

This Note proposes that the entertainment industry employ mediation to resolve profit participation disputes. Section II of this Note focuses on profit participation agreements through their history and their legal context. Section III provides a discussion of the arbitration and litigation of participation claims, as well as their weaknesses. In Section IV, this Note proposes the use of mediation in handling claims in the entertainment industry and a new model of mediation that would best serve profit participation disputes. With the engagement of mediation, profit participation lawsuits can be handled in the most effective and fair way for both the …

Independent Contractors Or Employees? Why Mediation Should Be Utilized By Uber And Its Drivers To Solve The Mystery Of How To Define Working Individuals In A Sharing Economy Business Model, Ethan Rubin

Cardozo Journal of Conflict Resolution

In an effort to do so, each section of this Note will address a different issue of the ongoing disputes between Uber and its drivers and suggest potential solutions for both parties. Section II focuses on the differences between Uber and its drivers' points of view on whether Uber drivers should be considered employees or independent contractors via National Labor Relations Board ("NLRB") terminology. Section III discusses why it is difficult to label Uber and its drivers under traditional employment law terminology, as well as failures to do so through negotiation, litigation, and arbitration. Section IV proposes that with an …

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 …

The Sharing Economy And The Edges Of Contract Law: Comparing U.S. And U.K. Approaches, Miriam A. Cherry

Faculty Publications

Technology and the rise of the on-demand or sharing economy have created new and diverse structures for how businesses operate and how work is conducted. Some of these matters are intermediated by contract, but in other situations, contract law may be unhelpful. For example, contract law does little to resolve worker classification problems on new platforms, such as ridesharing applications. Other forms of online work create even more complex problems, such as when work is disguised as an innocuous task like entering a code or answering a question, or when work is gamified and hidden as a leisure activity. Other …

Introductions, Melanie B. Leslie

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Forced Arbitration’S Lethal Consequence, Joanne Doroshow

Other Publications

No abstract provided.

The Authenticity Debacle: Why Art Authentication And Litigation Don't Mix, Andrea Sobolewski

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Panel 1: Perspectives On Transactions In Comic Books, David Gallaher, Larry Hama, Lillian Laserson, Matthew Tynan, Thomas Crowell

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Panel 2: Comic Book Jurisprudence With Q&A, Karen Berger, Lillian Laserson, Paul Levitz, Robert Sikoryak, Brett Frischmann

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Illiberty Of Contract, Donald J. Smythe

Faculty Scholarship

The term “liberty of contract” is usually associated with the doctrine that the due process clause of the United States Constitution prohibits or should prohibit the State from regulating contracts between private individuals. Many libertarians and free-market advocates embrace the liberty of contract doctrine because they are averse to State interference with private market transactions. But the term is ironic because a contract is only legally binding if courts will enforce it. Since courts derive their authority because they are the third branch of government, they are State actors and contractual enforcement involves the exercise of the State’s powers of …

The New Institutionalism In Contract Scholarship, Robert E. Scott

Faculty Scholarship

Relational contract scholarship is at a pivot point. On the one hand, the relationalist revival that has dominated contracts scholarship for almost half a century may be on the wane. Relational contract scholarship has evolved during this period into separate, and often dueling, intellectual traditions. One camp consists of scholars who are typically associated with the “law and economics” movement; in the other camp are scholars who more readily identify with the “law and society” tradition. While relationalists have been quarreling with each other, a younger cohort of law and economics scholars, armed with impressive technical skills, have abandoned relational …

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael J. Yelnosky

Roger Williams University Law Review

No abstract provided.

The Puzzle Of Pdvsa Bond Prices, Paolo Colla, Anna Gelpern, Mitu Gulati

Faculty Scholarship

Market reports in the summer of 2016 suggest that Venezuela is on the brink of default on upwards of $65 billion in debt. That debt comprises of bonds issued directly by the sovereign and those issued by the state-owned oil company PDVSA. Based on the bond contracts and other legal factors, it is not clear which of these two categories of bonds would fare better in the event of a restructuring. However, market observers are convinced — and we agree — that legal and contractual differences would likely impact the payouts on the bonds if Venezuela defaults. Using a comparison …

That's A Wrap! Examining The Enforceability Of Electronic Agreements, Emilie Blanchard Wedman, Timila S. Rother

Other Faculty Publications

No abstract provided.

The Intersection Of Contract Law, Reproductive Technology, And The Market: Families In The Age Of Art, Deborah Zalesne

University of Richmond Law Review

No abstract provided.

The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Rote use of a standard form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. The foregoing process, when it occurs, weakens the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is completely emptied of meaning through this process it can create a contractual “black hole.” The more frequent and thus potentially more pervasive problem arises when, as the term loses meaning, random variations in language appear and persist, resulting in what we term a “grey …

A Note On Victoria Laundry, Victor P. Goldberg

Faculty Scholarship

In Victoria Laundry v Newman, Asquith LJ claimed that the headnote in Hadley v. Baxendale was “definitely misleading” noting that had it been accurate, the decision would have been decided the other way. In this note, I argue that the headnote was not misleading and, even if it were, his conclusion did not follow. His interpretation lowered the standard for finding liability for consequential damage. Given the facts, Victoria Laundry would have lost, even with his new standard. His solution was simple: alter the facts.

The Lost Volume Seller, R.I.P., Victor P. Goldberg

Faculty Scholarship

If the buyer breaches a sales contract, and if the seller can be characterized as a lost volume seller, courts and commentators have argued that the seller should be made whole by compensation for its lost profits. This paper argues that framing the problem in this way leads to an absurd result. The buyer has a termination option and the remedy should be the implicit option price. The lost profit remedy sets a price on that option, a price that bears no relation to reality. Examination of the case law suggests three conclusions: (a) the remedy often sets an excessive …

The Choice Theory Of Contracts – Preface & Introduction, Hanoch Dagan, Michael Heller

Faculty Scholarship

This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. "The Choice Theory of Contracts" answers the field's most pressing questions: What is the “freedom” in “freedom of contract”? What core values animate contract law and how do those values interrelate? How must the state act when it shapes contract law? Hanoch Dagan and Michael Heller show exactly why and how freedom matters to contract. They start with the most appealing tenets of modern liberalism and end with their implications for contract law. This readable, engaging book gives contract scholars, teachers, and students a …

Notes From A Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons For Selection Of Dispute Resolution Forums And Methods, Jeffrey W. Stempel

Scholarly Works

Arbitration between insurers and reinsurers – those who insure insurance companies – should logically run as smoothly as any arbitration process. Like the traditional commercial arbitration that drove enactment of the Federal Arbitration Act, reinsurance arbitration involves experienced actors in a confined industry in which the parties should be constructively aware of the rules, norms, customs and practices of the industry. But in spite of this, reinsurance arbitration experiences consistent problems of which the participants complain. This article reviews the complaints and exams possible solutions – including the possibility of arbitrating less and litigating more. Although these possible solutions would …

Computer Systems Fraud - Computer Systems Fraud In The Era Of Big Data And Ehrs, John Sepulveda

Touro Law Review

No abstract provided.

The Importance Of Being Standard, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Contract standardisation in the sovereign debt market saves time and money in preparing documents and endows widely-used terms with a shared public meaning, which in turn saves investors the costs of acquiring information, facilitates secondary market trading and reduces the scope for mistakes in the judicial interpretation of contract terms. Sovereign debt issuers and investors claim to value standardisation and list it as an important contractual objective. Issuers generally insist that their bond contracts are standard and reflect market practice. Variations from past practice and market norm must be explained in disclosure documents and through market outreach. Standardisation is not …

The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Moralists have long criticized the theory of efficient breach for its advocacy of promise breaking. But a fully developed theory of efficient breach has an internal morality of its own. It argues that sophisticated parties contract for efficient breach, which in the long run maximizes everyone’s welfare. And the theory marks some breaches—those that are opportunistic, obstructive, or otherwise inefficient—as wrongs that the law should deter, as transgressions that should not be priced but punished. That internal morality, however, does not excuse the theory from moral scrutiny. An extended comparison to Jean Renoir’s 1939 film, La Règle du Jeu (“The …

Security Interests In Deposit Accounts, Securities Accounts, And Commodity Accounts: Correcting Article 9’S Confusion Of Contract And Property, Thomas E. Plank

Oklahoma Law Review

No abstract provided.

An Autopsy Of Cooperation: Diamond Dealers And The Limits Of Trust-Based Exchange, Barak D. Richman

Faculty Scholarship

Both academic and popular representations of the diamond industry describe trust-based relations and an industry arbitration system that sustain trade. In recent years, however, trust among merchants has eroded, and merchants have correspondingly lost confidence in the industry's arbitration. This article describes the events that have led to the breakdown of cooperative trust in the industry and derives lessons regarding the nature and limits of reputation-based exchange in the modern economy.