Contracts Commons^™

The Future Of Fault In Contract Law, Robert A. Hillman

Cornell Law Faculty Publications

According to judicial opinions, the Restatement (Second) of Contracts, and some analysts, the reasons for failing to perform a contract, whether willful, negligent, or unavoidable, have little or no bearing in determining contract liability. Contract liability is said to be “strict,” meaning that the reasons for nonperformance are irrelevant in determining the injured party’s rights. In this Article, I argue that the reasons for failing to perform, which focus on whether non-performance is the promisor’s fault, are crucially important in the resolution of many, perhaps most disputes under contract law.

Contracts Symposium Issue: Featured Speaker: The Right To Contract As A Civil Right, Robin West

Georgetown Law Faculty Publications and Other Works

The "right to contract," whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. The individual himself, we generally believe, and only the individual, should decide the scope and terms of his affirmative, voluntary, and other-regarding undertakings. When he does so through contract, the individual and only the individual should determine the terms under which he will perform those duties. The civil rights laws of the nineteenth, twentieth, and early twenty-first centuries, and the various rights they create interfere with these natural freedoms.

So, …

Subject To Review? Consideration, Liquidated Damages And The Penalty Jurisdiction, Eliza Mik

Research Collection Yong Pung How School Of Law

The paper examines the relationship between what seem to be basic principles in contract law: "consideration need not be adequate" and "the rule against penalties applies only to sums payable on breach." The 'reluctant inspiration' lies in the recent Australian case of Andrews v. Australia and New Zealand Banking Group Ltd, which establishes that the absence of breach or an obligation to avoid the occurrence of an event upon which a sum becomes payable, does not render such sum incapable of being characterized as a penalty. This decision constitutes an unexpected divergence from the position in most other common law …

Order On Defendant's Motion To Dismiss Plaintiffs' Verified Complaint (Harmony Land Company, Llc Et Al.), Elizabeth E. Long

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

No abstract provided.

Order Granting Interlocutory Injunction (Runzhou Zhang Et Al.), Melvin K. Westmoreland

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

No abstract provided.

Federalism And Business Decisions In The October 2005 Term, Carter G. Phillips

Touro Law Review

No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981, Eileen Kaufman

Touro Law Review

No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981, Leon Friedman

Touro Law Review

No abstract provided.

Fiduciary Discretion, D. Gordon Smith, Jordan C. Lee

Faculty Scholarship

Discretion is an important feature of all contractual relationships. In this Article, we rely on incomplete contract theory to motivate our study of discretion, with particular attention to fiduciary relationships. We make two contributions to the substantial literature on fiduciary law. First, we describe the role of fiduciary law as “boundary enforcement,” and we urge courts to honor the appropriate exercise of discretion by fiduciaries, even when the beneficiary or the judge might perceive a preferable action after the fact. Second, we answer the question, how should a court define the boundaries of fiduciary discretion? We observe that courts often …

Order On Defendants' Motion To Compel Against Non-Party Wells Fargo (Global Aerospace Inc.), Elizabeth E. Long

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

No abstract provided.

Order On Valuation Of Shares Under Shareholder Agreement (Justin Fouse Et Al.), John J. Goger

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

No abstract provided.

The Essential Role Of Courts For Supporting Innovation, Erin O'Hara O'Connor, Christopher R. Drahozal

Scholarly Publications

Commercial parties commonly resolve their disputes in arbitration rather than courts. In fact, some estimate that as many as 90 percent of international commercial contracts opt for arbitration of future disputes, and others claim that some industries never resort to courts. However, a study of arbitration clauses in a wide variety of contracts, including franchise agreements, CEO employment contracts, technology contracts, joint venture agreements and consumer cell phone contracts, reveals that parties very often carve out a right to resort to courts for the resolution of claims designed to protect information, innovation, and reputation. Studies of international and cross-border contracts …

Fulton County Business Court: A Specialized Solution For The Modern Business Community, Megan K. Johnson

Georgia State University Law Review

Business courts or complex commercial divisions are growing in popularity as an effective tool to channel the most complex civil cases into one place before experienced judges with the background and training necessary to resolve the sophisticated issues often presented in those cases. According to North Carolina Business Court Judge Ben F. Tennille, one of the first judicial advocates of the business court model, the evolution of specialty business courts is a necessary response to “‘the rapidly increasing complexity, rate of change and globalization of business.’”

In 2005, Fulton County Superior Court launched a Business Case Division (“Fulton Business Court”) …

Religion, Women, And The Holy Grail Of Legal Pluralism, Shiva Falsafi

Cardozo Law Review

No abstract provided.

Less Than I Wanted To Know: Why Do Ben-Shahar And Schneider Attack Only 'Mandated' Disclosure?, Margaret Jane Radin

Law & Economics Working Papers

This essay responds to a new book by Omri Ben Shahar and Carl E. Schneider, entitled MORE THAN YOU WANTED TO KNOW: THE FAILURE OF MANDATED DISCLOSURE (Princeton, 2014). The book is an elaborate disclosure of why disclosure fails. It is hard to disagree with the fact that widespread deficits in consumer reading, understanding and decisionmaking undermine the efficacy of disclosures, and the book provides plenty of data to show this. But the authors do not much confront the fact that many mandates for disclosures are a response to what happens when firms are free to design their own fine …

The Nfl: Growing Into Its Death, Cole J. Molnar

Honors Theses

The following document is about concussions in the National Football League (NFL). This thesis explores a principal question; is the NFL doing enough to warn its players about the long-term effects of multiple concussions? I start by covering what a concussion is, how it can be diagnosed e.g., what the symptoms are, and some of the long-term effects on the human brain. Other topics that are discussed include the history of football (including how it was born), the history of professional football (early years up to present time), head injuries in football, litigation, and potential solutions. Most of my research …

Summary Of Century Sur. Co. V. Casino W., Inc., 130 Adv. Nev. Op. 42, Michael Paretti

Nevada Supreme Court Summaries

The court determined whether two distinct provisions of an insurance policy regarding air pollution were subject to multiple reasonable interpretations.

Summary Of Lavi V. Eighth Judicial District Court, 130 Nev. Adv. Op. 38, Danielle Barraza

Nevada Supreme Court Summaries

The Court determined whether waiver of the “one-action rule” of NRS 40.430 terminates the procedural requirements for bringing a deficiency judgment action within six months of foreclosure under NRS 40.455.

Summary Of Schleining V. Cap One, Inc., 130 Nev. Adv. Op. 36, Laura Guidry

Nevada Supreme Court Summaries

The Court determined two issues: 1) whether NRS 40.453 invalidates a guarantor’s contractual waiver of the statutory right to be mailed a notice of default and 2) whether NRS 107.095 requires strict or substantial compliance by lenders giving notice of default, and if substantial compliance is sufficient, whether there was substantial compliance in this case.

Terms Of Use: Reflections On A Theme, Eliza Mik

Research Collection Yong Pung How School Of Law

The paper presents multiple perspectives on the unpopular but omnipresent terms of use (or "ToUs"), i.e. terms and conditions contained in a link at the bottom of many websites. ToUs serve different functions: from governing the transaction taking place on a website, (e.g. contracts of sale) to the very act of browsing. Accordingly, every browsing experience has both a commercial and a legal tint. On a theoretical level ToUs raise concerns with regards to their validity as legally binding contracts as well as to their incorporation. Both formation and incorporation converge on the presence and quality of contractual intention. The …

Licence Agreements And Copyright: An Examination Of The Issues, Lisa Di Valentino

FIMS Presentations

In this presentation I will discuss some of the factors that are relevant to an understanding of the relationship between copyright and private ordering of legal obligations such as licensing agreements and technological protection measures. I will conclude that there is a strong argument to be made that provisions purporting to limit fair dealing and other exceptions may be unenforceable.

Order On Motions To Compel Discovery (Southern Telecom Inc.), Melvin K. Westmoreland

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

No abstract provided.

Common Capital: A Thought Experiment In Cross-Border Resolution, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Cross-border bank resolution efforts focus on burden-sharing between bank owners, private creditors and the public. There is little talk of burden-sharing among governments, despite the rich history of governments trying to stick one another with the cost of financial conglomerate failures. There is an unspoken fear that acknowledging the need to allocate losses among governments would undermine post-crisis pledges of No More Bailouts. This symposium essay argues for making government stakes in private financial firms more transparent, and for using the contingent public share as a key to loss allocation among governments in cross-border banking crises.

Order On Defendant's Motion To Dismiss (Pacific Bepure Industry Inc.), Alice D. Bonner

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

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 …

Ex Tempore Contracting, Andrew Verstein

William & Mary Law Review

This Article argues that a cornerstone assumption of contemporary contracts scholarship is misleading and limited. Leading academic commentary explicitly assumes that contractual responsibilities are determined in the following way: parties determine many of their duties ex ante, by specifying terms at the time of contract formation, and leave the rest of the terms vague, for a court to specify ex post if any should prove important. This ex ante / ex post dichotomy is the guiding framework in attempts to understand contract design and interpretation. For example, parties use terms like “merchantable” quality when the cost of being more specific …

Order On Various Motions (Justin Fouse Et Al.), John J. Goger

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

No abstract provided.

Order On Various Motions (Global Aerospace, Inc.), Elizabeth E. Long

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

No abstract provided.

Do You Believe He Can Fly? Royce White And Reasonable Accommodations Under The Americans With Disabilities Act For Nba Players With Anxiety Disorder And Fear Of Flying, Michael A. Mccann

Pepperdine Law Review

This Article examines the legal ramifications of Royce White, a basketball player with general anxiety disorder and obsessive compulsive disorder, playing in the NBA. White's conditions cause him to have a fear of flying, thus making it difficult to play in the NBA. This subject is without precedent in sports law and, because of the unique aspects of an NBA playing career, lacks clear analogy to other employment circumstances. This dispute also illuminates broader legal and policy issues in the relationship between employment and mental illness. This Article argues that White would likely fail in a lawsuit against an NBA …

The Penn State "Consent Decree": The Ncaa's Coercive Means Don't Justify Its Laudable Ends, But Is There A Legal Remedy?, Matthew J. Mitten

Pepperdine Law Review

No abstract provided.