Contracts Commons^™

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Faculty Scholarship

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

Three Recent Works On Contractual Interpretation [Part 2], John D. Mccamus

Articles & Book Chapters

No abstract provided.

Contractualism In The Law Of Treaties, Omar M. Dajani

McGeorge School of Law Scholarly Articles

No abstract provided.

The Effect Of Franchisor Bankruptcy On Executory Supply Contracts: Does The Franchisee Have A Remedy?, Matthew J. Burne

Barry Law Review

No abstract provided.

It's Time For A Good Hard Look In The Mirror: The Corporate Law Example, John A. Barrett, Jr.

Fordham Journal of Corporate & Financial Law

This Article asserts that the move from the industrial age to the

information age represents a fundamental change to our society on

such a widespread basis that the legal order must reexamine the

premises about how our society functions, assessing whether

foundational elements of U.S. Common Law remain valid. This

Article first confronts briefly the continuing acceptance of certain

foundational premises in contract and intellectual property law,

illustrating that such premises are no longer supported by the

realities of modern society. With fundamental change challenging

multiple areas of law in the information age, this problem is worthy

of widespread inquiry …

Contract Law Walks The Plank: Carnival Cruise Lines V. Shute, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Many-To-Many Contracts, Heidi S. Bond

Faculty Articles

In classical contract law the concept of one-to-one negotiations is familiar: contracts where one party negotiates with the other and, eventually, terms are offered and then accepted. More modern times have made us comfortable with the notion of one-to-many contracts: contracts typically drafted by large corporations and then distributed on a take-it-or-leave-it basis to the masses. This Article discusses a third kind of contract: a many-to-many contract which may look like the standard one-to-many contract in that it is composed of nonnegotiable language. But when the arrangements between the parties are further considered we will see that the point of …

Insurance And Cultural Perspectives On Katrina, Jeffrey E. Thomas

Faculty Works

No abstract provided.

Measuring, Monitoring, Reporting, And Verifying (Mmrv): Negotiating Trust In Transnational Contracts For Redd,, David Takacs

Faculty Scholarship

No abstract provided.

Metaphors, Models, And Meaning In Contract Law, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? This article is an attempt to bridge the gap, combining insights from academic theory and real-world law practice. My claim is that the law as discipline has developed its own powerful but self-contained conceptual framework — in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law, something that is largely the creation of private parties and not the state, requires dealing with legal truth not just …

Contract As Meaning: An Introduction To "Contract As Promise At 30", Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

This is an introductory essay to the volume of the Suffolk Law Review containing the papers from our symposium centered on Charles Fried’s iconic book, 'Contract as Promise' at 30: The Future of Contract Theory. My theme is the relation of theory to practice, particularly in contract law, and why a theoretical orientation, broadly speaking and whether or not so conceived by the practitioner herself, is fundamental to that practitioner making good judgments. Theorizing - imposing coherent and correspondent conceptual order on events in the real world - is not as unrelated to the ordinary work of lawyers (and others) …

The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed, William V. Dorsaneo Iii, C. Paul Rogers Iii.

Faculty Journal Articles and Book Chapters

The primary purpose of this Article is to examine the relationship between basic contract principles and procedural rules that are generally applicable to contract litigation. The evolution of claims and defenses in contract cases has produced contradictions in burdens of pleading and proof in garden-variety contract cases,particularly with respect to the important issue of the plaintiffs performance. The continued evolution of substantive contract law and terminology, and the failure of the rule-making process to take these developments into account has exacerbated the problem. As a result, the federal pleading rules adopted in 1938 and many state procedural rules and statutes …

The Underappreciated Importance Of The Sequence In Which The Issues Are Addressed In Contract Litigation, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Judicial opinions rarely identify the precise sequence in which the issues presented were addressed by the court. Since this sequence is not generally regarded as being significant for the decisions reached, persons later parsing the opinions for their significance rarely go to the considerable trouble involved in acquiring the litigation briefs and interviewing the attorneys and judges involved so as to ascertain this sequence. However, my surmise is that at least in contract litigation the sequence in which the issues are addressed can sometimes be significant or even outcome-determinative for the results. A good example of this is presented by …

The Ball Is In Congress's Court: Contract Support Costs Following Ramah, James J. Linhardt

American Indian Law Review

No abstract provided.

Powerful Buyers And Merger Enforcement, John B. Kirkwood

Faculty Articles

Although large buyers like Walmart and Tyson Foods occupy important positions in the American economy, antitrust law remains focused on the conduct of sellers. Moreover, when mergers of buyers have been challenged, the cases have been based on a single theory – that the merger would create a dominant buyer (or group of buyers) that would exploit small, powerless suppliers. Most powerful buyers, however, face suppliers with power of their own, and in such cases, the buyers exert “countervailing power,” which can also be anticompetitive. Yet buyer mergers that reduce competition through the exercise of countervailing power are not addressed …

Freedom Of Contract In An Augmented Reality: The Case Of Consumer Contracts, Scott R. Peppet

Publications

This Article argues that freedom of contract will take on different meaning in a world in which new technology makes information about places, goods, people, firms, and contract terms available to contracting parties anywhere, at any time. In particular, our increasingly "augmented reality" calls into question leading justifications for distrusting consumer contracts and strengthens traditional understandings of freedom of contract. This is largely a descriptive and predictive argument: This Article aims to introduce contract law to these technologies and consider their most likely effects. It certainly has normative implications, however. Given that the vast majority of consumer contracting occurs in …

Computable Contracts, Harry Surden

Publications

This Article explains how and why firms are representing certain contractual obligations as computer data. The reason is so that computers can read and process the substantive aspects of contractual obligations. The representation of contractual obligations in data instead of (or in addition to) the traditional written language form - what this Article calls "data-oriented contracting" - allows for the application of advanced computer processing abilities to substantive contractual obligations. Certain financial contracts exemplify this model. Equity option contracts are routinely represented not as contract documents written in ordinary language - but as data records intended to be processed by …

Corporate Control And Credible Commitment, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

The separation of control and ownership – the ability of a small group effectively to control a company though holding a minority of its cash flow rights – is common throughout the world, but also is commonly decried. The control group, it is thought, will use its position to consume excessive amounts of project returns, and this injures minority shareholders in two ways: there is less money and the controllers are not maximizing firm value. To the contrary, we argue here that there is an optimal share of the firm that compensates the control group for monitoring managers and otherwise …

The Measure Of A Mac: A Quasi-Experimental Protocol For Tokenizing Force Majeure Clauses In M&A; Agreements, Eric L. Talley, Drew O'Kane

Faculty Scholarship

This paper develops a protocol for using a familiar data set on force majeure provisions in corporate acquisitions agreements to tokenize and calibrate a machine-learning algorithm of textual analysis. Our protocol, built on regular expression (RE) and latent semantic analysis (LSA) approaches, serves to replicate, correct, and extend the hand-coded data. Our preliminary results indicate that both approaches perform well, though a hybridized approach improves predictive power further. Monte Carlo simulations suggest that our results are generally robust to out-of-sample predictions. We conclude that similar approaches could be used more broadly in empirical legal scholarship, especially including in business law.

Law By Non Sequitur: Norcon V. Niagara Mohawk, Victor P. Goldberg

Faculty Scholarship

Under the common law, a contracting party could only demand assurance of performance if the other party was insolvent. If a party had reasonable grounds for insecurity, the UCC §2-609 allowed it demand adequate assurance even if the counterparty were solvent. The Restatement (Second) adopted the same rule for non-goods. In NorCon v. Niagara Mohawk the New York court extended the adequate assurance doctrine for some non-goods contracts. Although the decision seems to imply that there is some relation between the NorCon facts and its conclusion as to the law, there is none. Relying primarily on material available to the …

Virtue Ethics And Efficient Breach, Avery W. Katz

Faculty Scholarship

The concept of "efficient breach" – the idea that a contracting party should be encouraged to breach a contract and pay damages if doing so would be more efficient than performance – is probably the most influential concept in the economic analysis of contract law. It is certainly the most controversial. Efficient breach theory has been criticized from both within and without the economic approach, but its most prominent criticism is that it violates deontological ethics – that the beneficiary of a promise has a right to performance, so that breaching the promise wrongs the promisee.

This essay argues that …

Bargaining For Motherhood: Postadoption Visitation Agreements, Carol Sanger

Faculty Scholarship

This Article is about the use of contract in family formation. More specifically, I want to look at how contract is now used by parents in the process of acquiring children and, as we shall see, also as a means of retaining interests in those same children under the developing regime of open adoption.

To Be Or Not To Be (A Parent)? - Not Precisely The Question: The Frozen Embryo Dispute, Yehezkel Margalit

Cardozo Journal of Equal Rights & Social Justice

The article explores the legal and ethical complexities surrounding disputes over frozen embryos, particularly focusing on the balance between the right to become a parent and the right to avoid parenthood. It examines the legal status of frozen embryos and proposes a compromise solution where the objecting spouse is granted nonparenthood status, allowing the other partner to use the embryos without imposing parenthood on the unwilling party. The analysis emphasizes the importance of legal parenthood for societal welfare and the challenges posed by evolving reproductive technologies.

Advancing A Surrogate-Focused Model Of Gestational Surrogacy Contracts, Catherine London

Cardozo Journal of Equal Rights & Social Justice

The article examines the ethical, legal, and feminist implications of commercial surrogacy, arguing that the practice raises significant concerns about the commodification and exploitation of women and children. It critiques the current legal framework for its inconsistency and paternalistic approach, which often restricts women's reproductive freedom. The analysis advocates for a surrogate-focused contract model to address these issues, emphasizing the need to empower surrogates by granting them greater autonomy and bargaining power in surrogacy arrangements. This approach aims to balance the interests of all parties while minimizing the risk of exploitation.

Using Contract Terms To Get Ahead Of Prospective Ediscovery Costs And Burdens In Commercial Litigation, Jay Brudz, Jonathan M. Redgrave

Richmond Journal of Law & Technology

During the course of the twentieth century, American and international businesses reacted to the increasing costs and uncertainties of the American civil legal system by trying to create certainty through contractual provisions wherever possible. In particular, businesses developed contractual provisions that set forth procedural boundaries to potential disputes for the purpose of providing greater certainty as to where the dispute would be heard, who would hear it, and what laws would apply. For example, choice of venue and choice of law provisions became commonplace. In addition, clauses dictating the use of alternative dispute resolution procedures were also widely adopted. Substantively, …

The Interstate Commerce Act, Administered Contracts, And The Illusion Of Comprehensive Regulation, Thomas W. Merrill

Faculty Scholarship

The 125th anniversary of the Interstate Commerce Act invites reflection on what it has contributed to our understanding of public regulation. Perhaps the most important and enduring idea associated with the Act is what we may call the administered contract. At common law, transportation services, like other goods and services, were governed by ordinary contracts between customer and carrier. Building on innovations in English and state railroad legislation, the Interstate Commerce Act developed a different form of contracting. Contracts for transportation services became public acts, understood to have the openness, generality, and binding force of public law. This concept of …

Balancing The Scales: Reforming Georgia's Common Law In Evaluating Restrictive Covenants Ancillary To Employment Contracts, Alan F. Pryor

Georgia Law Review

Crafting effective and enforceable restrictive covenants
ancillary to employment contracts has befuddled and
vexed attorneys, courts, and businesses in Georgia for
decades. Tracing its development through more than four
hundred years of judicial decisions, Georgia's common law
has grown increasingly contradictory, confusing, and
convoluted. Until the passage of the Restrictive Covenant
Act, Georgia judges grew increasingly hostile to restrictive
covenants; however, they failed to maintain a coherent set
of guidelines for evaluating such covenants. The
Restrictive Covenant Act marks a turning point in Georgia
employment law, and this Note provides a defense of the
Act.
The Restrictive Covenant Act is …

Contracts, Victor P. Goldberg

Faculty Scholarship

This article focuses on the general problems confronting parties designing a contractual relationship. Contracts concern the future, which is both uncertain and influenced by the behavior of the parties. This presents the parties with a number of problems, the solutions for which are imperfect. Contract doctrine can facilitate their efforts, but it can also be an impediment. Contract design and contract law are discussed.

Reforming Derivative Taxation, Alex Raskolnikov

Faculty Scholarship

This brief essay outlines three benchmarks for evaluating alternative ways of taxing capital income, summarizes anticipatory, retroactive, and accrual-based proposals for reforming the taxation of derivatives, and offers guidelines for evaluating more limited reforms. It is intended as an introduction to key concepts, tensions, and ideas for reforming the taxation of financial instruments.

The Hierarchy That Wasn’T There: Elevating “Usage” To Its Rightful Position For Contracts Governed By The Cisg, William P. Johnson

All Faculty Scholarship

Under domestic U.S. sales law, usage of trade is relevant in ascertaining the meaning of an agreement, and it can be used to supplement, qualify, or explain an agreement. However, usage of trade may not be used under domestic U.S. sales law to contradict a written agreement. Moreover, any course of performance or course of dealing between the parties will prevail over inconsistent usage of trade. The United Nations Convention on Contracts for the International Sale of Goods, or CISG, similarly provides for consideration of usage to establish the terms of the agreement between the parties, as well as to …