Contracts Commons^™

Cruising Beyond Car Dealer Dominance, Piotr Tereszkiewicz

University of Michigan Journal of Law Reform

The automotive industry plays a pivotal role in both the American economy and American daily life. This means that the laws that govern the automotive industry and structure power dynamics between central players in the market also play a pivotal role in both the American economy and American daily life. One such area of law has room for improvement: laws governing the manufacturer-dealer relationship in car sales.

Although the law currently structures automotive industry power dynamics to the detriment of consumer welfare, it does not have to be this way. This Article proposes legal reforms aimed at improving consumer welfare …

Bound: The Imaginative Surplus Of Contractual Intent, Elizabeth F. Emens

Faculty Scholarship

Contract law is generally understood in terms of enforcement. The legal definition of a contract is a promise that the state will enforce. Individuals are empowered by contract law to create legal arrangements that the state will step in and enforce. And yet most contracts never make it to court.

This Article inverts the conventional focus on enforcement through a study of extralegal contracts. These are formal written agreements that parties call contracts but are not intended for legal enforcement. Examples of these extralegal contracts include no-suicide contracts and contracts for sexual slavery.

Examining extralegal contracts offers multiple insights. First, …

The Nih-Moderna Public-Private Partnership: A New Contractual Model For Securing Innovation, Karen Sandrik

Texas A&M Law Review

The public–private partnership between the National Institutes of Health (“NIH”) and Moderna was considered “one of the few bright spots of the pandemic.” Yet as the NIH–Moderna collaboration progressed at an unprecedented pace, going from vaccine development to FDA authorization in nine months, cracks began to appear in the partnership. Public trust in vaccinations wavered, multiple patent disputes arose, and global frustration erupted over Moderna’s lack of commitment to equitable access to the vaccine that was largely paid for by U.S. taxpayers. This Article argues that the parties’ contractual agreements did shockingly little to support or, indeed, set up the …

Shackles Or Safeguards?: Tailoring Ndas And Noncompetes To Protect Interests Without Imposing Uniform Restraints, Nadia Brenden

The Journal of Business, Entrepreneurship & the Law

To better understand the implications of the FTC’s sweeping proposal and the need for a state-by-state approach, the following sections dive into the legal, historical, and comparative foundations of restrictive covenants, trace their evolution across jurisdictions, and explain why states—not federal agencies—are best positioned to strike the right balance. Part II provides an overview of legal doctrines governing the transmission of proprietary information, a history of the early applications of employment contracts, and a comparative analysis of international noncompete standards. Part III describes how different jurisdictions apply trade secret, contract, and employment law to protect business interests through enforceable agreements. …

Delta Airlines, Inc., V. Crowdstrike, Inc., Order On Motion To Dismiss, Kelly L. Ellerbe

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Harms, Relationships, And The Contours Of Liability For Emotional Distress, Steven Schaus

Articles

In Reasonableness and Risk, Greg Keating argues that the law of torts is “preoccupied” with harm—with safeguarding conditions of effective agency. In this comment, I ask whether Keating’s picture can make sense of the tort claims, like loss of consortium, that provide some measure of protection to relationships—and to marriage-like relationships, in particular. It would be awful if my life partner were seriously injured or killed—a serious setback to my interests—a harm by almost any measure. But in what sense would it impair my agency, as Keating’s account of harm seems to require? I explain the force of the question …

The Form Doesn’T Know Anything: A Response To Chowdhury, Chudkowski & Gulati, Glenn D. West

University of Miami Law Review

Merger and acquisition agreements differ significantly from sovereign bonds. While I have criticized the stubborn persistence of harmful or ineffective boilerplate in the M&A deal world, this persistence does not stem from a desire for uniformity or blind adherence to a sacred form. The dynamics involved in negotiating merger and acquisition agreements often dictate that comments on a form agreement be kept to a minimum, making the improvement of the form a secondary goal. Moreover, what one party considers bad boilerplate may be seen as beneficial by another. Many of the myths supposedly debunked by Chowdhury, Chudkowski & Gulati may, …

The Form Knows Best, Tara Chowdhury, Faith Chudkowski, Mitu Gulati

University of Miami Law Review

Law students learn that contracts are carefully negotiated, precisely drafted, and shaped by doctrine. But lawyers tell a different story. This article compares six pillars of contract law with what we heard in over 170 interviews with senior transactional lawyers across M&A, sovereign bonds, and leveraged loans. The result is a gap between the Official Story taught in classrooms and the Unofficial Story told by practitioners—where boilerplate dominates, case law is rarely consulted, and market custom often prevails over efficient design. We suggest that many contract provisions are better understood as historical artifacts: products of inherited forms and production pressure. …

Security Ins. Group V. Emery: A Step Backward For Interest Analysis In Maine, William F. Julavits

Maine Law Review

Security Insurance Group, the Connecticut insurer, sought declaratory relief' alleging that failure by its insured to furnish timely notice of the accident as prescribed by the policy precluded its liability. The insured contended that Maine's notice statute was applicable, requiring only that the insurer receive notice of the action before judgment, and that this requirement was satisfied. Alternatively, the insured contended that even if the Connecticut notice term were held applicable, since there was no contact between the two cars, it was his belief that he was not at fault and thus had no reason to notify his carrier of …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Exploring Contributions Of Partnerships Between Employers And Disability Organizations On Recruitment, Hiring, Training, Retention, And Accommodation Of Individuals With Disabilities In Mississippi, Peter Oluwadare Kalejaiye

Dissertations

The Americans with Disabilities Act (ADA) of 1990 provides equal employment opportunities for individuals with disabilities (IWDs) by prohibiting discrimination in employment. However, one out of four IWDs face discrimination in employment in the United States (U.S. Bureau of Labor Statistics, 2023). Additionally, despite establishing the Office of Disability Employment Policy and enacting the Workforce Innovation and Opportunity Act to help integrate IWDs into the workforce, IWDs face barriers to equal and equitable employment (NASEM, 2017). Previous studies recommend partnerships between employers and disability organizations (DOs) to provide employment opportunities and benefits for IWDs through recruitment, hiring, training, retention, and …

The Role Of Medical-Legal Partnerships On Social Determinants Of Health For Vulnerable Populations In The Inland Empire, Sabrina C. Kinnally

Electronic Theses, Projects, and Dissertations

San Bernardino and Riverside counties face significant challenges in addressing the Social Determinants of Health (SDOH) for vulnerable populations, including housing instability, healthcare access, and food insecurity. This project examined the role of Medical-Legal Partnerships (MLPs) in providing services to vulnerable populations. Through a systematic review, the study explored the current state of MLPs and their effectiveness in addressing SDOH to reduce health disparities. The other purpose is to assist Agape Legal Service, Inc. (AGAPE), a non-profit organization, in completing their strategic plan, which aims to address the legal needs of vulnerable populations within the Inland Empire. The systematic review …

Proving The Matrix: On The Admissibility And Use Of Prior Negotiation Evidence As An Aid To Contractual Interpretation, Daniele Bertolini

Osgoode Hall Law Journal

This article examines the relevance and admissibility of prior negotiation evidence in contract interpretation. According to a long-established common law rule (“exclusionary rule”), the evidence of pre-contract negotiations is not admissible as an aid to contract interpretation. This study argues that the exclusionary rule is unjustified and should be abandoned. Judges should be allowed to use prior negotiation evidence to support inferences about the existence of the empirical facts constituting the relevant factual matrix, while the use of such evidence should not be allowed to support interpretive inferences about the meaning of the contract language. The distinction between empirical and …

Melissa Benton, Et. Al, V. Lynn Linnane, Et. Al., Order On Pending Motions, Wesley B. Tailor

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

A Unicorn No More? The No-Trade Clause And Its Potential To Reshape Nba Contractual Negotiations, Paul Gerstle

Vanderbilt Journal of Entertainment & Technology Law

The no-trade clause, which, in the simplest of terms, allows a player to block his organization from trading him, is somewhat of a unicorn in NBA contractual circles. It has been sparsely used in the National Basketball Association (NBA) history, and there are certainly some good reasons for this. Allowing a player to control his fate without any potential for a trade puts his team in a straitjacket. Thus, teams have long kept their distance from the no-trade clause, with only ten players in NBA history having a no-trade clause in their contract. Most of these players have been legends …

Statutory Contracts, Jeff Gordon

Vanderbilt Law School Faculty Publications

Private law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself One solution, however, is to entrust private sector allies as vessels of long-term commitment. As a matter of political economy, that solution draws on policy-feedback theory. As a matter of law, the solution rests on a mechanism that Congress already uses but has not recognized its …

"Price Discrimination" Discrimination, Talia B. Gillis

Faculty Scholarship

Credit price personalization, where lenders set prices based on individual borrower and loan characteristics, is a common practice across many loan types, with conventional accounts of its harms focusing on the ways in which risk-based pricing, or setting prices based on borrowers’ credit risk, can lead to disparities for protected groups like racial minorities and women. This Article examines an often-overlooked yet potentially harmful form of price personalization — charging borrowers different rates based on their willingness-to-pay, known as price discrimination — and argues that this practice can exploit vulnerable borrowers, including protected groups like racial minorities and women, by …

Upaya Hukum Bagi Pembeli Akibat Penerbitan Sertipikat Pengganti Dalam Pengikatan Jual Beli (Studi Putusan Nomor 646/Pid.B/2023/Pn. Mtr.), Alda Anabela Adelina

Indonesian Notary

Penelitian ini meneliti tentang penerbitan sertipikat pengganti setelah akta Pengikatan Jual Beli dibuat oleh Notaris. Penerbitan sertipikat pengganti tersebut dilakukan dengan alasan hilang dengan menyerahkan surat keterangan dari kepolisian. Hal tersebut mengakibatkan terdapat 2 (dua) dokumen fisik yakni sertipikat tanah dengan nomor yang sama. Hal tersebut berakibat kerugian terhadap pihak pembeli yang menguasai fisik sertipikat pertama karena dengan penerbitan sertipikat pengganti membatalkan sertipikat terdahulu. Kasus tersebut yang terjadi dalam Putusan Nomor 646/Pid.B/2023/PN.Mtr. Penelitian ini menganalisis kedudukan akta Pengikatan Jual Beli yang kemudian terdapat penerbitan sertipikat pengganti berdasarkan Putusan Nomor 646/Pid.B/2023/PN.Mtr. dan menganalisis upaya hukum yang bisa dilakukan pembeli untuk memperjuangkan …

Keabsahan Perjanjian Perkawinan Yang Dicatatkan Debitor Setelah Dinyatakan Pailit Pasca Putusan Mahkamah Konstitusi Republik Indonesia Nomor 69/Puu-Xiii/2015 (Studi Putusan-Putusan Pengadilan), Nadira Ratunanda Wirjono

Indonesian Notary

Penelitian ini mengkaji keabsahan perjanjian perkawinan yang dicatatkan debitor setelah dinyatakan pailit berdasarkan analisis dari beberapa putusan-putusan pengadilan. Fokus utama penelitian ini adalah analisis perubahan regulasi pencatatan perjanjian perkawinan pasca berlakunya Putusan Mahkamah Konstitusi Nomor 69 Tahun 2015, serta kekuatan mengikatnya perjanjian perkawinan yang dibuat sebelum debitor dinyatakan pailit namun belum dicatatkan terhadap kreditur yang mengajukan permohonan pailit. Untuk itu, penelitian ini menggunakan pendekatan doktrinal, dimana analisis dilakukan terhadap putusan Mahkamah Agung Nomor 894 K/Pdt.Sus-Pailit/2019, putusan Mahkamah Agung Nomor 461 K/Pdt.Sus-Pailit/2019, dan putusan Mahkamah Agung Nomor 562 K/Pdt.Sus-Pailit/2021 dalam bentuk penelitian studi pustaka yang menggunakan data-data sekunder, yakni dari berbagai …