Contracts Commons^™

Why Contracts Scholars Should Read Legal Philosophy: Positivism, Formalism, And The Specification Of Rules In Contract Law, Curtis Bridgeman

Cardozo Law Review

No abstract provided.

Litigation And The Optimal Combination Of Vague And Precise Clauses In Contracts, Alvaro E. Bustos

Faculty Working Papers

In this paper we determine the optimal combination of precise and vague clauses written in contracts when the parties face writing and enforcement costs, the second ones in the form of litigation. We show that the parties may prefer to write vague instead of precise clauses not only because they are cheaper to write but also because they are cheaper to enforce. We extend Battigalli and Maggi (2002) to model the decision of a principal who chooses clauses to describe the actions that an agent has to perform. As both players observe nature imperfectly they may call for a court …

Turned On Its Head?: Norms, Freedom, And Acceptable Terms In Internet Contracting, Richard Warner

All Faculty Scholarship

Is the Internet turning contract law on its head? Many commentators contend it is. Precisely this issue arises in current controversies over end user license agreements (EULAs) and Terms of Use agreements (TOUs, the agreements governing our use of web sites). Commentators complain that, in both cases, the formation process unduly restricts buyers’ freedom; and, that sellers and web site owners exploit the process to impose terms that deprive consumers of important intellectual property and privacy rights. The courts ignore the criticisms and routinely enforce EULAs and TOUs. There is truth on both sides of this court/commentator divide. EULAs and …

Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler

Faculty Working Papers

In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of expressive law, the law's articulation of a behavior can sometimes create self-fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated that …

Principled Pluralism And Contract Remedies, C. Scott Pryor

McGeorge Law Review

No abstract provided.

Anti-Social Contracts: The Contractual Governance Of Virtual Worlds, Joshua A.T. Fairfield

Scholarly Articles

Virtual worlds have seized the imaginations of millions of people who now live, work, and play together in these new environments. But all is not well. These online communities are ruled nearly exclusively by contract law, through end-user licence agreements, terms of service, and codes of conduct. Contracts are a critical means of helping two (or a few) people negotiate their preferences. But online communities are made up of enormous and shifting populations that have no time or ability to negotiate agreements with every other community member. Relying on contracts alone thus threatens the investments and creativity that go into …

An Ontology For Autonomic License Management, Qian Zhao, Mark Perry

Computer Science Publications

The license agreement can be seen as the knowledge source for a license management system. As such, it may be referenced by the system each time a new process is initiated. To facilitate access, a machine readable representation of the license agreement is highly desirable, but at the same time we do not want to sacrifice too much readability of such agreements by human beings. Creating an ontology as a formal knowledge representation of licensing not only meets the representation requirements, but also offers improvements to knowledge reusability owing to the inherent sharing nature of such representations. Furthermore, the XML-based …

Anatomy Of An Experiment: Consolidation Of Eu Contract Law, Ljiljana Biuković

All Faculty Publications

This article analyzes the process of harmonization of Contract Law in the European Union (EU) in the context of the general debate on the need for international harmonization of commercial law on one hand, and, on the other hand, in the context of the integration of the European market and the omnipresent European discussions on the need for harmonization, appropriate methodologies for reform and on the institutional competence to pursue the harmonization process. Part II of the article establishes interrelationships between major international harmonization efforts in the area of contract law. Part III focuses on the current situation in the …

Good Faith And Fair Dealing In Commercial Leasing: The Right Doctrine In The Wrong Transaction, 41 J. Marshall L. Rev. 275 (2008), Daniel B. Bogart

UIC Law Review

No abstract provided.

Selling The Payments: Predatory Lending Goes Primetime, 41 J. Marshall L. Rev. 587 (2008), Dustin Fisher

UIC Law Review

No abstract provided.

Tactics And Terms In The Negotiation Of Electronic Resource Licenses, Kincaid C. Brown

Law Librarian Scholarship

This chapter introduces the reader to the realm of electronic resource license agreements. It provides the reader with an overview of basic contract law as it relates to electronic resource licensing. The chapter then discusses the electronic resource license negotiation process as well as license agreement term clauses. The aim of this chapter is to provide librarians with an understanding of basic licensing concepts and language in order to aid librarians in the review and negotiation of their own license agreements. The author hopes to impart lessons and tips he has learned in reviewing and negotiating license agreements with a …

What If Seeds Were Not Patentable?, Elizabeth I. Winston

Scholarly Articles

In 2001, the United States Supreme Court held that seeds were patentable subject matter - a decision, I assert, of much discussion and little impact. Protection of agricultural intellectual property through private ordering, used both to expand the protection available through public ordering and to circumvent the restrictions public ordering places on owners of intellectual property, has provided the incentives necessary to promote investment and innovation in seeds. It has not been the patentability of seeds that has led to agricultural advances, but rather the profitability of licensing agricultural intellectual property. What if seeds were not patentable? So what if …

Construing The National Labor Relations Act The Nlrb And Method Of Statutory Construction, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

E-Contract Doctrine 2.0: Standard Form Contracting In The Age Of Online User Participation , Shmuel I. Becher, Tal Z. Zarsky

Michigan Telecommunications & Technology Law Review

The growing popularity of e-commerce transactions revives the perennial question of consumer contract law: should non-salient provisions of consumer standard form contracts be enforced? With the focus presently on an ex-ante analysis, scholars debate whether consumers can and should read standardized terms at the time of contracting. In today's information age, such a focus might be misguided. The online realm furnishes various tools, so-called "Web 2.0" applications, which encourage the flow of information from experienced to prospective consumers. This Article, therefore, reframes the analysis of online consumer contracts while taking into account this new flow of information. In doing so, …

Can We Dicker Online Or Is Traditional Contract Formation Really Dying - Rethinking Traditional Contract Formation For The World Wide Web, Tatiana Melnik

Michigan Telecommunications & Technology Law Review

When most people imagine the process of contract formation, they picture two people sitting down and negotiating, arguing about particular contract provisions and particular contract terminology, and maybe even involving attorneys to draft an "official" version of the contract. Regardless of the specific details people imagine, traditional contract formation generally involves some form of negotiation between two parties where they choose one set of terms over another. In modern society, however, such negotiation happens very rarely. People enter into many contracts on a daily basis, for example, when they purchase goods or services online. Online purchases are governed by computers, …

Beyond Unconscionability: The Case For Using "Knowing Assent" As The Basis For Analyzing Unbargained-For Terms In Standard Form Contracts, Edith R. Warkentine

Seattle University Law Review

Much scholarship questioning the enforcement of standard form contract terms offers interesting insights into possible approaches a court can take in analyzing the issue, but the literature largely fails to examine what courts actually do in these cases. This Article identifies the gap between what scholars are saying about standard form contracts and what courts are doing about them. It notes that courts have not accepted the scholarship that urges a nontraditional approach to analyzing assent. Rather-with but a few exceptions—what has emerged is a case-by-case unconscionability analysis in which courts focus narrowly on particular terms and conditions in standard …

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

Scholarly Works

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

Selling It First, Stealing It Later: The Trouble With Trademarks In Corporate Transactions In Bankruptcy, Xuan-Thao Nguyen

Articles

Why does AI get two bites of the “Apple” trademark? Should AI be allowed to grant the right to use the trademark “perpetual and exclusive” with the sale of the music division and steal it back for free, ten years later? This article is part of an ongoing and broader inquiry into the intersection of trademark, contract and bankruptcy laws. This article argues that recent bankruptcy decisional law, notably the In re Exide Technologies decision, misunderstands the “perpetual and exclusive” trademark transaction, deeming it as an ordinary “license” when it is truly an outright sale. This article explains that the …

Services As Capital Contributions: Understanding Kovacik V. Reed, Royce De R. Barondes

Faculty Publications

This essay examines the capital accounting of Kovacik v. Reed, leading authority addressing allocation of losses between a partner who contributed only property and another who contributed only services. Kovacik posits that such parties having agreed to share profits equally have implicitly agreed their contributions were of equal value. This essay shows that such an agreement would not produce the result Kovacik reaches. The Kovacik result is instead produced by the following implausible implicit agreement between the parties: The value of the services provided by the services partner to be treated as a capital contribution equals the amount the partnership …

Who's Afraid Of The Cisg? Why North Carolina Practitioners Should Learn A Thing Or Two About The 1980 United Nations Convention On The Contracts For The International Sale Of Goods, Alicia Jurney Whitlock, Boris S. Abbey

Campbell Law Review

Part I of this article will discuss the history and purpose of the CISG. Part II will consider the applicability of the CISG to international commercial contracts where one contracting party is from the United States. Part III will discuss some notable differences between the CISG and North Carolina law. Finally, Part IV will consider situations in which the CISG may better serve the interests of parties to a contract for the international sale of goods than the U.C.C. or North Carolina common law.

Promissory Estoppel And The Protection Of Interpersonal Trust , John J. Chung

Cleveland State Law Review

This paper examines the role of trust in promissory estoppel and the extent to which the law should protect trust when a promise is made. Part II of this Article summarizes some of the scholarship discussing the nature and role of trust. In particular, it discusses the role of trust in a market economy, and the related role of trust in Contracts law. Part III examines whether there is a difference between trust and reliance, and whether it matters. Part III further asserts that a separate discussion of trust is beneficial because it has the potential to guide and inform …

Ethical Issues In Collaborative Lawyering, Barbara Glesner Fines

Faculty Works

No abstract provided.

Cardozo's Opinion In Lady Lucy's Case: Formative Unconscionability, Impracticality And Judicial Abuse, Monroe H. Freedman

Pace Law Review

No abstract provided.

Corporations And The Market For Law, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

The state competition for corporate law has long been studied as a distinct phenomenon. Under the traditional view, corporations are subject to a unique choice-of-law rule, the “internal affairs doctrine” (IAD). This rule is explained as a historical accident, or by the special logistics of the corporate contract. The resulting market for corporate law appears to have special characteristics, particularly including the dominance of the single state of Delaware. This article challenges the traditional view. It shows that the corporate law market is best understood as a special application of the general market for law. Parties to many types of …

Public Symbol In Private Contract: A Case Study, Anna Gelpern, Mitu Gulati

Center for Contract and Economic Organization

This Article revisits a recent shift in standard form sovereign bond contracts to promote collective action among creditors. Major press outlets welcomed the shift as a milestone in fighting financial crises that threatened the global economy. Officials said it was a triumph of market forces. We turned to it for insights into contract change and crisis management. This article is based on our work in the sovereign debt community, including over 100 interviews with investors, lawyers, economists, and government officials. Despite the publicity surrounding contract reform, in private few participants described the substantive change as an effective response to financial …

The Enduring Legacy Of Wood V. Lucy, Lady Duff-Gordon, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

To mark the ninetieth anniversary of the decision, Pace University School of Law sponsored a Symposium, The Enduring Legacy of Wood v. Lucy, Lady Duff-Gordon, to reconsider the case and to appreciate the accomplishments of Lucy, Lady Duff-Gordon, who as Lucile, became one of the twentieth century's most innovative fashion designers. The Symposium brought together leading contracts scholars from as far away as Australia and England as well as experts on Lucile from the worlds of fashion, museums and fashion scholarship.

The Symposium examined legal issues raised by the decision through panels that focused upon: implication, interpretation and default terms; …

Fulfilling Lucy's Legacy: Recognizing Implicit Good-Faith Obligations Within Explicit Job Duties, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Wood v. Lucy, Lady Duff-Gordon is often cited for the principle that every contract contains an implied covenant of good faith and fair dealing. Yet the very source of that decision--the New York Court of Appeals--has been emphatically unwilling to recognize an implied good-faith covenant in the context of employment relationships, given the judicial presumption of employment at will. This essay criticizes the New York Court of Appeals' conclusion that the implied covenant of good faith and fair dealing must yield to the presumption of employment at will, and advocates a more balanced approach.

Nota Sobre El Contracte De Col·Laboració Publicoprivada [Notes On The Public-Private Partnership Contract], Vanessa Casado-Pérez

Faculty Scholarship

No abstract provided.

Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg

W&M Law Student Publications

No abstract provided.

Promissory Estoppel And The Protection Of Interpersonal Trust, John J. Chung

Law Faculty Scholarship

No abstract provided.