Contracts Commons^™

Innovative Transactional Pedagogies, Joan Macleod Heminway, Michael A. Woronoff, Lyman P.Q. Johnson

Scholarly Articles

Our law schools are embracing in a more powerful way innovative transactional pedagogies that address not only theory, policy, and doctrine, but also legal skills. This transcribed panel discussion explores three of these pedagogies – teaching corporate finance as advanced contract drafting, teaching numeracy, and teaching substance and skill in contract drafting through the use of in-office meetings and analytical memos – and describes how they are being implemented in law teaching. The panel was part of the “Transactional Education: What’s Next?” conference hosted by the Emory University School of Law’s Center for Transactional Law and Practice on June 4-5, …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson

Scholarly Articles

This short article is based on a talk at Emory Law School on Transactional Lawyering. One overall pedagogical aim of a transactional course (or any business contract drafting course) is to link skills training with insistence on in-depth substantive learning about law and business. In this way, skills training – although acknowledged to be practical – also can be recognized as intellectually demanding, a point not always appreciated by proponents of more traditional law teaching. Two techniques for making the connection – in-office meetings and detailed “companion” analytical memos – are described.

Fingerprints Of Equitable Estoppel And Promissory Estoppel On The Statute Of Frauds In Contact Law, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

In The Wake Of Coast Federal: The Plain Meaning Rule And The Anglo American Rhetorical Ethic, Kemit A. Mawakana

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Conditional Sale Doctrine In A Post-Quanta World And Its Implications On Modern Licensing Agreements, 11 J. Marshall Rev. Intell. Prop. L. 295 (2011), William Lafuze, Justin Chen, Lavonne Burke

UIC Review of Intellectual Property Law

The exclusive rights of a patent owner to exclude others from making, using, or selling patented inventions are limited by the doctrine of patent exhaustion. This doctrine, also known as the first sale doctrine, states that upon the first authorized sale of a patented article in the United States, the article is removed from the patent monopoly, thus losing its patent protection. As a result of this first sale, any subsequent use or sale of the patented article is not an infringement of its corresponding patent. The Federal Circuit further established the conditional sale doctrine in Mallinckrodt, Inc. v. Medipart, …

Website Design As Contract, Woodrow Hartzog

American University Law Review

No abstract provided.

Political Risk And Sovereign Debt Contracts, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

Default on sovereign debt is a form of political risk. Issuers and creditors have responded to this risk both by strengthening the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and by creating terms that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce …

Justifying Board Diversity, Lawrence M. Solan, James A. Fanto, John M. Darley

Faculty Scholarship

No abstract provided.

Thoughts On The Divergence Of Promise And Contract, Ian C. Bartrum

Scholarly Works

This essay offers some brief thoughts on Seana Shiffrin‘s recent work regarding the divergence of contractual and promissory norms. The author conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the “moral” duties she posits. The author suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and that, in fact, keeping strictly promissory duties outside the scope of state coercion actually facilitates a strong …

Letting The Arbitrator Decide Unconscionability Challenges, 26 Ohio St. J. On Disp. Resol. 1 (2011), Karen H. Cross

UIC Law Open Access Faculty Scholarship

This article examines how courts are allocating jurisdictional questions relating to unconscionability to the arbitrator, and assesses the approach of U.S. courts to this issue from a historical and comparative perspective. The U.S. allocation rule is evolving toward one of deference to the arbitrator, allowing the arbitrator to make an initial determination of whether there is an enforceable agreement to arbitrate. As a matter of timing, the U.S. approach is becoming more similar to that of France. Such an approach, especially in the commercial sphere, has the potential to be relatively efficient and consistent. But in the context of mandatory …

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, 59 Clev. St. L. Rev. 693 (2011), Julie M. Spanbauer

UIC Law Open Access Faculty Scholarship

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a "madam" sold a house used for prostitution to another "madam." The opinion is the last in a long line of cases which speak specifically to the issue of enforcement of facially legitimate contracts that in some manner involve or are related to prostitution. It is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law of …

Consumer Protection Initiatives In The Eu Mortgage Market: A Behavioral Economics Based Critique And Proposal, 25 Temp. Int'l & Comp. L.J. 1 (2011), Debra Pogrund Stark, Jessica M. Choplin

UIC Law Open Access Faculty Scholarship

No abstract provided.

A Psychological Investigation Of Consumer Vulnerability To Fraud: Legal And Policy Implication, 35 Law & Psychol. Rev. 61 (2011), Jessica M. Choplin, Debra Pogrund Stark, Jasmine N. Ahmad

UIC Law Open Access Faculty Scholarship

No abstract provided.

To Agree Or Not To Agree: Treatment Of Postnuptial Agreements Under Oklahoma Law, Stephen T. Gary

Oklahoma Law Review

No abstract provided.

The Constitutional And Contractual Controversy Of Suspicionless Drug Testing Of Public School Teachers, Amanda H. Cooley, Marka B. Fleming, Gwendolyn Mcfadden Wade

Oklahoma Law Review

No abstract provided.

The Demise Of Class Actions Will Not Be Televised, Benjamin Sachs-Michaels

Cardozo Journal of Conflict Resolution

As evidenced by two recent Cardozo Journal of Conflict Resolution articles, class action waivers in arbitration clauses are currently a hot topic in the field of conflict resolution. With increasing frequency, arbitrators and courts are presented with class action waivers in compulsory arbitration agreements prohibiting the aggregation of claims. This Note argues that some courts have reversed course in their treatment of class action waivers contained in arbitration clauses. There is a new movement to find class waivers, and the arbitration clauses that harbor them, unenforceable. This Note further argues that while plaintiffs uniformly oppose class action waivers, defendants widely …

You Don’T Own Me: Why Work For Hire Should Not Be Applied To Sound Recordings, 10 J. Marshall Rev. Intell. Prop. L. 695 (2011), William Henslee, Elizabeth Henslee

UIC Review of Intellectual Property Law

Many recording artists and songwriters never reap the rewards of their work. America’s first professional songwriter died in poverty at the age of thirty-seven. At the Congressional level the situation has described recording artists as “one group of creators who get ripped off more than anybody else in any other industry”. As we approach 2013, there will be a new line of cases that deal with authors of sound recordings attempting to terminate their copyright assignment to the record companies. While the most efficient and frugal solution would be legislative action, the most probable outcome is expensive, fact-intensive litigation. Congress …

Comparative Efficiency In International Sales Law, Larry A. Dimatteo, Daniel Ostas

UF Law Faculty Publications

The article employs the method of the economic analysis of law (EAL) in a comparative context. In particular, it assesses the efficiency of select provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is the law of the United States and over 70 other countries. It reflects a culmination of a century-old process of failed attempts to achieve an international sales law. The drafting process involved intense negotiation and compromise between representatives of the common and civil law legal traditions. As a result, the CISG provides in an interesting amalgam of civil …

Justice, Employment, And The Psychological Contract, Larry A. Dimatteo, Robert C. Bird, Jason A. Colquitt

UF Law Faculty Publications

The paper is a multidisciplinary collaboration between contract law, employment law and management scholars and draws from the fields of law, management, and psychology. After reviewing and noting the gaps in the employment and justice literatures, this paper presents the findings of a survey of 763 participants to measure whether certain variables—procedural and substantive fairness, as well as educating employees on the principle of employment at will—impact the propensities of employees to retaliate and litigate at the time of discharge.

The survey results are significant and striking. We find statistically significant reductions in retaliation and litigation rates when survey respondents …

Contract, Uncertainty, And Innovation, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

Faculty Scholarship

Contract today increasingly links entrepreneurial innovations to the efforts and finance necessary to transform ideas into value. In this chapter, we describe the match between a form of contract that “braids”1 formal and informal contractual elements in novel ways and the process by which innovation is pursued.

Traynor (Drennan) Versus Hand (Baird): Much Ado About (Almost) Nothing, Victor P. Goldberg

Faculty Scholarship

Most Contracts casebooks feature either Baird v. Gimbel or Drennan v. Star Paving to illustrate the limits on revocability of an offer. In this article an analysis of the case law yields three major conclusions. First, as is generally known, in the contractor-subcontractor cases Drennan has prevailed. However, both it and its spawn, Restatement 2d E 87(2), have had almost no impact outside that narrow area. Moreover, almost all the cases involve public construction projects – private projects account for only about ten percent of the cases. This suggests that private parties have managed to resolve the problem contractually. Public …

Rethinking The Laws Of Good Faith Purchase, Alan Schwartz, Robert E. Scott

Faculty Scholarship

This Essay is a comparative economic analysis of the disparate doctrines governing the good faith purchase of stolen or misappropriated goods. We argue that prior treatments have misconceived the problem. An owner will take optimal precautions to prevent theft if she is faced with the loss of her goods; and a purchaser will make an optimal investigation into his seller's title if faced with the loss of the goods. An owner and a buyer cannot both be faced with the full loss, however. This presents a problem of "double moral hazard" and it cannot be solved in a first-best efficient …

Construction Defects: Are They “Occurrences”?, Chris French

Faculty Scholarship

An issue in the area of insurance law that has been litigated frequently in recent years is whether construction defects are “occurrences” under Commercial General Liability (“CGL”) insurance policies. The courts have been divided in deciding the issue and in their approaches to analyzing the issue. This article addresses how the issue should be analyzed and concludes that construction defects are “occurrences”. The relevant rules of insurance policy interpretation dictate that construction defects are “occurrences”. Policy language should be interpreted in such a way as to fulfill the reasonable expectations of the policyholder when the policy is construed as a …

Contract Law Now — Reality Meets Legal Fictions, Danielle Kie Hart

University of Baltimore Law Review

Modern contract law is designed to achieve a fundamental objective, namely, to ensure that voluntary agreements between private parties are legally binding. The appropriateness of this objective and the assumptions underlying it are rarely questioned. Legal scholars, practitioners, and policymakers alike presuppose that the binding nature of contracts is a desirable and positive feature of our legal system. But are the assumptions underlying the modern contract system sound? Do people behave in the way that contract law supposes? And are the concepts of voluntary, informed consent and freedom from state interference really the hallmarks of the modern contract system? This …

Contracts Meet Henry Ford, Barak D. Richman

Faculty Scholarship

Legal scholars and legal educators view contracts as a welfare-maximizing (or optimal risk-allocating) device for two or more parties. Because we cling to this principal-driven paradigm, we think of lawyers only as the proverbial “transaction cost engineers,” the loyal agents of parties to a transaction. And whenever we observe contracts that appear to be suboptimal, we blame agency costs. We instead should apply the literature on organizational economics to understand the production of contracts by the modern law firm. This literature better illustrates how law firms organize, why they produce the products they do, and why those products sometimes exhibit …

You Do Have To Keep Your Promises: A Disgorgement Theory Of Contract Remedies, Peter Siegelman, Steven Thel

Faculty Articles and Papers

Contract law is generally understood to require no more of a person who breaches a contract than to give the injured promisee the "benefit of the bargain." The law is thus assumed to permit a promise-breaker to keep any profit remaining from breach, after putting the victim in the position he would have been in had the promise been performed. This conventional description is radically wrong: across a wide range of circumstances, standard contract doctrines actually do require people to keep their promises, or to disgorge their entire profit from breach if they do not. Rather than protecting the expectation …

Equitable Estoppel To Compel Arbitration In New York: A Doctrine To Prevent Inequity, Matthew Berg

Cardozo Journal of Conflict Resolution

Arbitration, as a favored alternative to court systems, finds its validity in both state and federal law. The Federal Arbitration Act ("FAA") was enacted in 1925 unopposed, reflecting a strong favored alternative by the federal government to the Article III courts. This presumption was established in Section 2 of the FAA, which provides that contracts that include an arbitration clause "shall be valid, irrevocable, and enforceable" unless a court finds "grounds as exist at law or in equity for the revocation of any contract [or clause]."

Three Recent Works On Contractual Interpretation [Part 1], John D. Mccamus

Articles & Book Chapters

No abstract provided.

The Uncorporation And The Unraveling Of 'Nexus Of Contracts' Theory, Grant M. Hayden, Matthew T. Bodie

All Faculty Scholarship

This is a review of The Rise of the Uncorporation, by Larry E. Ribstein (Oxford University Press 2010). The Rise of the Uncorporation gives a compelling account of the increasing reliance on business forms other than the corporation. These new organizational forms - such as limited liability companies, limited liability partnerships, partnerships, and the like - give businesses greater freedom to structure themselves in ways that best facilitate their particular needs. And this, according to Ribstein, is an unqualified good, for it allows firms to operate more efficiently than if they were forced to assume an intensely regulated form.

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