Contracts Commons^™

Framing Address: A Framework For Analyzing Financial Market Transformation, Steven L. Schwarcz

Seattle University Law Review

The title of this Symposium originally was “Rethinking Financial and Securities Markets.” It is, of course, somewhat presumptuous for scholars to try to rethink financial markets per se. Markets, including financial markets, are driven primarily by supply and demand. But scholars can and should try to influence the future of financial markets by rethinking their fundamental aspects. This Symposium presents work from leading scholars in the fields of law, economics, finance, and accounting. I will try to frame the discussion from the perspectives of these four disciplines. First, however, we need to identify what it is about financial markets that …

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

Barras V. Bb&T;: Charting A Clear Path To Apply Concepcion Through A Quagmire Of Divergent Approaches, Jacob Johnson

Mercer Law Review

A recent series of Supreme Court opinions, climaxing in the landmark case AT&T Mobility LLC v. Concepcion, has undermined the validity of applying unconscionability to arbitration agreements and generated divergent opinions in lower courts. The saving clause of the Federal Arbitration Act of 1927, 9 U.S.C. § 2 (FAA saving clause), states that "an agreement in writing to submit to arbitration ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist ... for the revocation of any contract." Until Concepcion, unconscionability was an established ground for revoking arbitration agreements under the FAA saving clause. In …

Legal Entities As Transferable Bundles Of Contracts, Kenneth Ayotte, Henry Hansmann

Michigan Law Review

The large, modern business corporation is frequently organized as a complex cluster of hundreds of corporate subsidiaries under the common control of a single corporate parent. Our Article provides new theory and supportive evidence to help explain this structure. We focus, in particular on the advantages of subsidiary entities in providing the option to transfer some or all of the firm's contractual rights and obligations in the future. The theory not only sheds light on corporate subsidiaries but also illuminates a basic function of all types of legal entities, from partnerships to nonprofit corporations. We show that when, as is …

Nonmarket Values In Family Businesses, Benjamin Means

William & Mary Law Review

Despite the economic importance of family businesses, legal scholarship has often overlooked their distinctive character. Instead, scholars focus on the chosen form of business organization— partnership, corporation, LLC—and assume that the participants are economically rational actors who seek to maximize their individual preferences. This Article contends that family businesses are extensions of family relationships and that nonmarket values affect their goals and governance choices.

Just as family law scholars have shown that contract principles can be applied to regulate intimate relationships, corporate law scholars should recognize that the intimacy of family life often substitutes for arm’s length bargaining in family …

Nlrb V. Yeshiva University: Teacher Participants In University Policy Formulation Deemed Managerial Under Nlra, Valerie A. Moore

Pepperdine Law Review

The development of a "status quo" for teacher bargaining unit certification was brought to an abrupt halt by the recent Supreme Court Yeshiva decision. The author, in agreement with the majority opinion, examines the development of this "status quo" and the cases leading up to and including the Supreme Court's determination that the Yeshiva faculty were managerial employees and thus exempt from coverage under the National Labor Relations Act. Also, the author illustrates the Supreme Court's unfavorable reaction to the National Labor Relations Board's cursory and inconsistent administrative decisions and opinions.

Nearly A Century In Reserve: Organized Baseball: Collective Bargaining And The Antitrust Exemption Enter The 80'S, Nancy Jean Meissner

Pepperdine Law Review

In her comment, the author fashions a compelling argument for congressional elimination of baseball's exemption from federal antitrust laws. After noting that the exemption had been formulated in 1922 by the Supreme Court, the author explains that it has been abused by baseball club owners to create a virtual monopoly over ballplayers through the reserve system. Although the reserve system's control was somewhat diluted in 1976, with the advent of free agency and collective bargaining, club owners are currently negotiating for mandatory compensation for the loss of free agents. The resultant threat of a player's strike has served to focus …

Oral Will Contracts And The Statute Of Frauds In California, 1896-1980: A Summary And Evaluation , Marc P. Bouret

Pepperdine Law Review

There is no longer any certainty that one can successfully argue that purely oral mutual promises to bequeath property are unenforceable due to the Statute of Frauds. The author traces the trends in the oral will contract area during the past eighty years. He then analyzes various exceptions to the Statute of Frauds which have developed to allow oral will contracts to be enforced during the lifetime of the promisor, or more frequently after his or her death.

Herschel Walker V. National Football League: A Hypothetical Lawsuit Challenging The Propriety Of The National Football League's Four-Or-Five Year Rule Under The Sherman Act, A. Randall Farnsworth

Pepperdine Law Review

No abstract provided.

State Preemption Of Cable Television Regulation — Whatever Happened To The Sanctity Of Contract?, William M. Marticorena, Lynda E. Marticorena

Pepperdine Law Review

California Government Code section 53066.1 as recently amended gives cable television operators the right to obtain rate increases even in the face of the city or county franchisor opposition. Since most cable franchise agreements allow the franchisor to control rates for the cable service, there is a conflict between the statute and the franchise contracts. This article examines the issue of whether the statute violates the constitutional provisions against the impairment of contracts and whether the franchisor or a subscriber of the service has the necessary standing to assert the constitutional argument.

Enjoining Politically Motivated Strikes In Federal Courts: The Jacksonville Bulk Terminals Case, Mark A. Ozzello

Pepperdine Law Review

The United States Supreme Court, in Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Association, acknowledged that a work stoppage entirely motivated by political goals constitutes a "labor dispute" within the Norris-La Guardia Act which is prohibited from injunctive relief by a federal court. In so ruling, the Supreme Court found the Boys Markets, Inc. v. Retail Clerks Union and Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO exceptions, which allow an injunction to issue pending arbitration in situations where the dispute underlying the work stoppage is arbitrable, to be inapplicable to the no-strike clause in the collective-bargaining agreement scrutinized. …

Beyond Nondiscrimination: At&T Mobility Llc V. Concepcion And The Further Federalization Of U.S. Arbitration Law, Edward P. Boyle, David N. Cinotti

Pepperdine Dispute Resolution Law Journal

The article presents information on the court case of AT&T Mobility LLC v. Concepcion that was decided by the U.S. Supreme Court and which questioned the preemption of state law and the Federal Arbitration Act related to the enforcement of arbitration agreement. The unconscionability doctrine, the case law related to arbitration and the contract law is discussed. The interpretation of arbitration law is also discussed.

Doe V. Ministry Of Health, Elyakim Rubinstein, Isaac Amit, Daphne Barak-Erez

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This is a petition against the First and Second Respondents’ decision not to permit the Petitioner (a single woman, born in 1974) to use sperm donations by an anonymous donor (the Third Respondent), which were preserved for her (for a fee). The Petitioner had her first daughter from the Third Respondent’s donation. She is now interested in undergoing an additional insemination process with that …

The Tort Foundation Of Duty Of Care And Business Judgment, Robert J. Rhee

UF Law Faculty Publications

This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort prinicples is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, …

Reasonable Expectations: Seeking A Principled Application, William A. Mayhew

Pepperdine Law Review

No abstract provided.

The Evolving Doctrine Of Union Liability For Health And Safety In The Workplace. Warning: Collective Bargaining Can Be Hazardous To Your Union's Health, Jeffrey S. Wohlner

Pepperdine Law Review

No abstract provided.

Consumer Debt And Usury: A New Rationale For Usury , Robin A. Morris

Pepperdine Law Review

No abstract provided.

Mediation Of Marital Disputes Before It Is Too Late: A Proposal For Premarital Contract Provisions For Mediation Of Disputes Within The Intact Family And At Separation , Robert F. Cochran Jr.

Pepperdine Law Review

No abstract provided.

Liability Of Political Candidates And Their Staffs For Campaign Committee Obligations , Anthony J. Mohr

Pepperdine Law Review

No abstract provided.

The Implications Of Alternative Dispute Resolution Processes For Decisionmaking In Administrative Disputes, Wallace Warfield

Pepperdine Law Review

No abstract provided.

The Unjustified Furor Over Securities Arbitration, Gilbert R. Serota

Pepperdine Law Review

No abstract provided.

Gottesman V. Vardi, Uzi Vogelman, Salim Joubran, Noam Sohlberg

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Second Appellant (hereinafter referred to as "Gottesman") is an architect who designed a unique dwelling (hereinafter referred to as "the house") for the Respondent (hereinafter referred to as "Vardi"). Gottesman asked to photograph the house in order to showcase it on his firm's website. Vardi refused. In addition, Gottesman published computer simulations of Vardi's house on the website without giving details that would …

It's All Mine - Or At Least Part Of It Is: A California Look At Property Apportionment Between The Families Of An Interstate And An Intestate's Predeceased Spouse, Robert G. Popovich

Pepperdine Law Review

No abstract provided.

The Changing Face Of Mary Carter Agreements In California: The Aftermath Of Abbott Ford And Proposition 51, Thomas M. Gross

Pepperdine Law Review

No abstract provided.

The Overruling Of Royal Globe: A "Royal Bonanza" For Insurance Companies, But What Happens Now?, Michael J. Gainer

Pepperdine Law Review

No abstract provided.

It Hertz To Be Number One: The Collision Damage Waiver Is Being Attacked On Multiple Fronts , Michael G. Dawson

Pepperdine Law Review

No abstract provided.

Aspects Of Labor Law Affecting Labor-Management Cooperation In The Railroad And Airline Industries, Henry H. Perritt Jr.

Pepperdine Law Review

No abstract provided.

What Happens To Our Facebook Accounts When We Die?: Probate Versus Policy And The Fate Of Social-Media Assets Postmortem, Kristina Sherry

Pepperdine Law Review

More than 580,000 Facebook users in the U.S. will die this year, raising numerous legal questions as to the disposition of their Facebook pages and similar “digital assets” left in a state of legal limbo. While access to and ownership of decedents’ email accounts has been philosophized for nearly a decade, this Comment focuses on the additional legal uncertainties posed by “digital death” in the more amorphous realm of “social media.” Part II explores the implications of digital death by conceptualizing digital assets and surveying the underlying legal principles of contractual policies, probate, property, and privacy concerns. Part III surveys …

Contract Theory And The Failures Of Public-Private Contracting, Wendy Netter Epstein

All Faculty Scholarship

The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap. It considers how economic analysis of contract law, in particular efficiency theory and agency theory, bear upon the unique problems of public-private …

Beyond Notice And Choice: Privacy, Norms, And Consent, Richard Warner, Robert Sloan

All Faculty Scholarship

Informational privacy is the ability to determine for yourself when and how others may collect and use your information. Adequate informational privacy requires a sufficiently broad ability to give or withhold free and informed consent to proposed uses.

Notice and Choice (sometimes also called “notice and consent”) is the current paradigm for consent online. The Notice is a presentation of terms, typically in a privacy policy or terms of use agreement. The Choice is an action signifying acceptance of the terms, typically clicking on an “I agree” button, or simply using the website. Recent reports by the Federal Trade Commission …