Contracts Commons^™

The Regression Of "Good Faith" In Maryland Commercial Law, Lisa D. Sparks

University of Baltimore Law Forum

“Good faith,” in the affirmative or as the absence of bad faith, has always been a challenge to define and judge as a matter of conduct, motive, or both. Different tests apply a subjective standard, an objective standard, or even a combination of the two. Some parties may be held to different expectations than others. This determination of good faith has always been fact-driven and somewhat transcendental. Until recently, however, the question invoked a construct of fairness, resting on a two-pronged metric, at least insofar as several key titles of the Maryland Uniform Commercial Code were concerned. Since June 1, …

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …

Hurrah For The Consumer Financial Protection Bureau: Consumer Arbitration As A Poster Child For Regulation, Jean R. Sternlight

St. Mary's Law Journal

Abstract forthcoming.

A House Divided Against Itself Cannot Stand: The Need To Federalize Surrogacy Contracts As A Result Of A Fragmented State System, 49 J. Marshall L. Rev. 1155 (2016), Brett Thomaston

UIC Law Review

This comment will explain the necessity for federal regulation of surrogacy contracts by analyzing the current state of surrogacy laws across the United States. This will be accomplished by examining the fragmented state system and how this largely ignored area of the law has been a feeding ground for widespread forum shopping and inconsistent results. This comment will then address the public policy reasons in support of enforcing these contracts. Next, this comment will examine the avenues of congressional power for regulating these types of contracts. Lastly, this comment will propose that the federal government implement legislation containing key language …

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Closing A Parol Evidence Rule Loophole: The Consideration Exception And The Preexisting Duty Rule, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

When Lightning Strikes: Hadley V. Baxendale's Probability Standard Applied To Long-Shot Contracts, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Student-Athletes Vs. Ncaa: Preserving Amateurism In College Sports Amidst The Fight For Player Compensation, Audrey C. Sheetz

Brooklyn Law Review

While student-athletes are the backbone of the $11 billion college sports industry, they do not currently receive any of this revenue derived from the use of their names, images, and likenesses. The National College Athletic Association’s mission is to maintain the amateur status of student-athletes. In doing so, it precludes student-athletes from receiving any type of compensation outside of the actual cost of tuition. Amateurism, as a concept, promotes the distinction between professional and student athletes, and is the crux of the NCAA’s argument for prohibiting the compensation of student-athletes. Recently, however, the controversy surrounding the amateur status of college …

Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi

Brooklyn Law Review

In the federal criminal justice system, plea bargaining remains the predominant method for disposing of cases. An important provision in most plea agreements consists of the waiver of the defendant’s right to appeal the conviction or sentence. This note explores the constitutional, contractual, and policy implications of a recent Third Circuit decision that would allow specific performance as a remedy where a defendant’s only breach of the plea agreement consists of filing an appeal arguably precluded by an appellate waiver provision. This note argues that the approach taken by the Third Circuit in United States v. Erwin could effectively preclude …

Liberalism’S Fine Print: Boilerplate’S Allusion To Human Nature, Kenneth K. Ching

Marquette Law Review

None

The Ethics Of Non-Traditional Contract Drafting, Lori D. Johnson

Scholarly Works

A new generation of contract drafters faces increasing commentary advising them to change traditional contract terms into plain language constructions. Yet, traditional, tested terms have consistent meanings, and when these meanings benefit client objectives, advocates should consider retaining them. This article posits that failing to do so can impact a lawyer’s ethical obligations. Specifically, an attorney’s duties of competence, allocation of authority, diligence, and communication under the Model Rules of Professional Conduct require careful thought about modernizing tested contract terms. These duties require the ethical drafter to research whether the use of a traditional, tested term advances a client goal …

Contracting Trademark Fame?, Leah Chan Grinvald

Scholarly Works

Contracts abound in today's highly digitized society. Did you snap a pic and upload it to Instagram? You entered into a contract. Did you check your friends' statuses on Facebook? Yep, you also entered into a contract. Did you know you entered into a contract or even if you were aware of this fact, did you know the terms to which you agreed? Probably not. But despite this, we are all obligated by these contracts, so long as we are somehow made aware that we could read the terms at some point if we had the inclination to do so. …

Opinion & Dissent: Magic Words, Lori D. Johnson

Scholarly Works

No abstract provided.

Hurrah For The Consumer Financial Protection Bureau: Consumer Arbitration As A Poster Child For Regulation, Jean R. Sternlight

Scholarly Works

Drawing on economic, psychological and philosophical considerations, this Essay considers whether consumers should be "free" to "agree" to contractually trade their opportunity to litigate in a class action for the opportunity to bring an arbitration claim against a company. The Essay suggests that by looking at the CFPB's regulation through these three lenses, one sees that the regulation is desirable—even a poster child—for the potential value of regulation when market forces are not sufficient to protect individual or public interests.

Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz

Faculty Publications

Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of “law in action.” In recognition of that contribution, this Article focuses on law in action with respect to consumers’ quest to obtain remedies regarding their business-to-consumers (“B2C”) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access …

Contracts (Supplementary Cases): 2016-17, Robert E. Forbes

Osgoode Course Casebooks

Course Number 1010

A Study On The Legality Of Royalty Collection Clauses After Expiration Of Patent Rights, 15 J. Marshall Rev. Intell. Prop. L. 213 (2016), Wei-Lin Wang

UIC Review of Intellectual Property Law

Whether a contract clause may permit a patent owner to continuously collect royalty payments from a licensee after the expiration of its patent rights is a highly controversial issue in practice. Some believe that because patent rights are a kind of monopoly granted by the government, it shall not be extended after expiration; otherwise, it shall be regarded as patent misuse and/or unfair competition as the case may be. Nonetheless, others believe that this kind of clause is actually beneficial to a licensee because the licensee is allowed to make royalty payments throughout the whole patent term and even after …

Using The West Key Number System As A Data Collection And Coding Device For Empirical Legal Scholarship: Demonstrating The Method Via A Study Of Contract Interpretation, Joshua M. Silverstein

Law Faculty Scholarship

Empirical research is an increasingly important type of legal scholarship. Such research generally requires the collection and coding of large quantities of data. These tasks pose critical challenges for legal scholars. Most crucially, they are often resource-intensive. The primary purpose of this article is to explain how researchers can use the West Key Number System to dramatically streamline the process of data collection and coding. The article accomplishes this, in part, through a demonstration: it employs the Key Number System to conduct an empirical study of contract interpretation.

Contract interpretation is one of the most significant areas of commercial law. …

College Football Coaches’ Pay And Contracts: Are They Overpaid And Unfairly Treated?􀀃, Randall Thomas, Lawrence Van Horn

Indiana Law Journal

College football coaches’ employment contracts and compensation garner public attention and scrutiny in much the same way as those of corporate CEOs. In both cases, the public perception is that they must be overpaid and pampered. Economic theory claims that for coaches and CEOs to be overpaid, they must be receiving compensation in excess of the value they create for their organizations. However, both receive pay-for-performance compensation, which structurally aligns their compensation with value creation. This means we need to examine the underlying structure of the contract that gives rise to the observed compensation to determine whether they are appropriately …

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien

Faculty Scholarship

This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes …

The Way We Pay Now: Understanding And Evaluating Performance-Based Executive Pay, David I. Walker

Faculty Scholarship

Over the last ten years, performance-based equity pay, and particularly performance shares, have displaced stock options as the primary instrument for compensating executives of large, public companies in the U.S. This article examines that transformation, analyzing the structure and incentive properties of these newly important instruments and evaluating the benefits and risks from an investor’s perspective. Notable observations include the following: Although technically “stock” instruments, performance shares mimic the incentive characteristics of options. But performance shares avoid the tax, accounting, and other constraints that have led to uniform grants of non-indexed, at the money options. Performance share plans can be …

Mind The Gap, Charles H. Ii Brower

Law Faculty Research Publications

No abstract provided.

For Richer, Not Poorer: Premarital Waivers Of Spousal Support In California, J. Nicholas Marfori

Loyola of Los Angeles Law Review

California law is fairly straightforward with respect to premarital agreements that seek to alter community property rights in the event of a divorce. But it is unclear and unsettled with respect to those agreements that seek to limit or waive spousal support. Although California prohibits courts from enforcing premarital waivers of spousal support if it would be unconscionable to do so at the time of enforcements, courts have not articulated a clear standard for what that means. California made its first attempt to do so in In re Marriage of Facter. This Article considers that decision in illustrating how current …

Anderson V. Sanchez 132 Nev. Adv. Op. 34 (Apr. 28 2016), Cassandra Ramey

Nevada Supreme Court Summaries

The Supreme Court of Nevada held that the doctrine of mutual mistake is not grounds for rescission of a contract when the party bears the risk of mistake. The party bears the risk of mistake if the party is aware at the time of the formation of the contract that they only have limited knowledge of the facts to which the mistake relates, but treats that knowledge as sufficient, the court will allocate the risk of mistake to that party.

Pricing Contract Terms In A Crisis: Venezuelan Bonds In 2016, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena

Faculty Scholarship

As of this writing in June 2016, the markets are predicting Venezuela to be on the brink of default. On June 1, 2016, the 6 month CDS contract traded at about 7000bps which translates into a likelihood of default of over 90%. Our interest in the Venezuelan crisis is that its outstanding sovereign bonds have a unique set of contractual features that, in combination with its near-default status, have created a natural experiment. This experiment has the potential to shed light on one of the long standing questions that sits at the intersection of the fields of law and finance, …

The Will As An Implied Unilateral Arbitration Contract, E. Gary Spitko

Faculty Publications

A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator’s provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by her contest, seeks to increase her inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that the will is not a contract and the opposition to enforcement of …

Need For Informed Consent In The Age Of Ubiquitous Human Testing, Caitlyn Kuhs

Loyola of Los Angeles Law Review

No abstract provided.

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 …

Modernizing Informed Consent: Expanding The Boundaries Of Materiality, Nadia N. Sawicki

Faculty Publications & Other Works

Informed consent law’s emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician’s personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, …

Panel 1: Issues In The U.S. For Chinese Businesses, Cindy Yang, Jamie D. Underwood, Mark Cohen

Cardozo Journal of International and Comparative Law

The symposium examines the bidirectional intellectual property (IP) challenges between the U.S. and China, highlighting that while Chinese businesses face significant IP issues in the U.S., American companies also encounter complexities in China. The discussion emphasizes the evolving nature of IP litigation in both countries, with a focus on fashion and brand protection. Panelists provide insights into strategies for navigating these challenges, including the use of design patents, trademarks, and trade dress, as well as the role of administrative bodies like the U.S. International Trade Commission (ITC).