Contracts Commons^™

Internet Challenges To Business Innovation, Nancy Kim

Faculty Scholarship

No abstract provided.

Marybeth Peters Is Almost Right: An Alternative To Her Proposals To Reform The Compulsory License Scheme For Music, William Henslee

Journal Publications

Since Napster made mass digital downloads and online piracy available and accessible in June of 1999, the music industry has been under attack. Traditionally, record companies have received their revenue from phonorecord sales and use of the music in film, television, and advertisements. Performers have received their income from record companies based on a percentage of the sales income after the company has recouped its investment in the artist.

With the current technology and digital marketing available, all of the players in the music business believe that the revenue distribution models need to change but, to date, have been reluctant …

Uncertainty, Reliance, Preliminary Negotiations And The Hold Up Problem, Juliet P. Kostritsky

Faculty Publications

Recently, two scholars, Alan Schwartz and Robert Scott, have cast doubt on the conventional view that courts would find liability and award reliance damages in precontractual cases that resembled the famous Hoffman v. Red Owl case. They have argued that courts deny recovery for reliance in cases involving precontractual preliminary negotiation but regularly grant reliance recovery following a preliminary agreement. They identify a pattern or sequence in which success is likely and then provide an analytical framework to justify liability. When parties reach a preliminary agreement that also includes an agreement that they both invest simultaneously and one party strategically …

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

Pace Law Review

No abstract provided.

Implied, Inferred, And Imposed: Default Rules And Adhesion Contracts - The Need For Radical Surgery, Peter Linzer

Pace Law Review

No abstract provided.

Wood V. Lucy: The Overlap Between Interpretation And Gap-Filling To Achieve Minimum Decencies, Nicholas R. Weiskopf

Pace Law Review

No abstract provided.

Neutral Standardizing Of Contracts, Joseph M. Perillo

Pace Law Review

No abstract provided.

Exploring (Social) Class In The Classroom: The Case Of Lucy, Lady Duff-Gordon, Miriam A. Cherry

Pace Law Review

No abstract provided.

Teaching Ethics In Context: Wood V. Lucy, Lady Duff-Gordon In The First Year Curriculum, Celia R. Taylor

Pace Law Review

No abstract provided.

Integrating Academic Skills Into First Year Curricula: Using Wood V. Lucy, Lady Duff-Gordon To Teach The Role Of Facts In Legal Reasoning, Deborah Zalesne, David Nadvorney

Pace Law Review

No abstract provided.

What It's Worth To Do Your Best, Andrew Tettenborn

Pace Law Review

No abstract provided.

Cardozo, Anti-Formalism, And The Fiction Of Noninterventionism, Larry A. Dimatteo

Pace Law Review

No abstract provided.

A Picture Of The New York Court Of Appeals At The Time Of Wood V. Lucy, Lady Duff-Gordon, Meredith R. Miller

Pace Law Review

No abstract provided.

Wood V. Duff-Gordon And The Modernist Cult Of Personality, Megan Richardson, David Tan

Pace Law Review

No abstract provided.

An Employment Contract Instinct With An Obligation: Good Faith Costs And Contexts, Robert C. Bird

Pace Law Review

No abstract provided.

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

Pace Law Review

No abstract provided.

Copyright Preemption Of Contracts, Christina Bohannan

Maryland Law Review

No abstract provided.

After The Battle Of The Forms: Commercial Contracting In The Electronic Age, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

Legal Consciousness And Contractual Obligations, Kojo Yelpaala

McGeorge School of Law Scholarly Articles

No abstract provided.

Is A Burrito A Sandwich? Exploring Race, Class, And Culture In Contracts, Marjorie Florestal

Michigan Journal of Race and Law

A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts-so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on "common sense" and a single definition of sandwich-"two thin pieces of bread, …

Exploring (Social) Class In The Classroom: The Case Of Lucy, Lady Duff-Gordon, Miriam A. Cherry

Faculty Publications

(Excerpt)

Wood v. Lucy, Lady Duff-Gordon (the "Lucy Case") presents a rich teaching vehicle for the first year of contracts for multiple reasons. Another participant in this symposium has discussed the Lucy Case to laud its value in teaching fact analysis or issue spotting. Others have commented upon the case for its doctrinal utility in explaining the concepts of illusory contracts, exclusive dealing and best efforts. The historical background, the opinions of Benjamin Cardozo and the opportunity to introduce feminist jurisprudence and law and economics concepts into the first year course are also fertile ground for discussion. Knowing …

Contract Regulation, With And Without The State: Ruminations On Rules And Their Sources, David Snyder

Scholarly Articles in Law Reviews & Journals

This paper, commenting on the work of Jýrgen Basedow, addresses the legal regulation of economic relations in the context of globalization. The paper applies the idea of the mixed jurisdiction, traditionally focused on legal systems that partake of both the common law and the civil law, to the complex of privately made law and publicly made law that governs contemporary economic relations. Differing criteria that might be used to assess and choose between competing rules or competing systems of rule generation are evaluated, and normative considerations are raised. The paper proposes a model to demonstrate how privately made law, though …

More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Unintelligent Design In Contract, Peter A. Alces

Faculty Publications

Scholars have expended considerable energy in the effort to "discover" a normative theory of Contract. This Article surveys that effort and concludes that something fundamental about Contract has been missed and has frustrated the search from the outset. Succinctly, Contract doctrine resists the neat formulation theory requires. Theorists' perspectives on Contract may be generalized as attempts to impute either deontology or consequentialism to the Contract law. Focusing largely on deontological constructions of Contract, this Article demonstrates the inconsistencies among the extant heuristics-promise, reliance, and transfer-and more importantly, the failure of any of those constructions to provide a coherent explanation of …

Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins

Faculty Publications

No abstract provided.

Rethinking Contract Practice And Law In Japan, John O. Haley

Vanderbilt Law School Faculty Publications

This article explores "the Japanese advantage" in the enforcement of ex ante contract commitments in comparison with the United States, arguing that ostensible convergence of Japanese and United States contract practice in on-going business relationships is based on very different assumptions and conditions. Writing in the early 1960s Takeyoshi KaWashima in Japan and Stewart Macaulay in the United States described prevailing views and practices related to business agreements. Their respective observations indicated a tendency in both countries to avoid formal, legally enforceable contacts. For over four decades scholars on both sides of the Pacific have tended view these observations as …

Clarifying The Boundary Between The Parol Evidence Rule And The Rules Governing Subsequent Oral Modifications, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

In this article, the author analyzes the rules that govern the legal effectiveness of oral agreements that purport to modify written contracts. The article includes a discussion of four situations that raise difficult questions of whether oral agreements should be regarded as pre-written contract agreements (rather than as subsequent oral modifications) for purposes of the parol evidence rule. The author concludes that no doctrinal changes are called for in the contract formation timing rules currently applicable to these situations unless such changes are accompanied by broader judicial enforcement of no-oral-modification clauses.

The Software Licensing Dilemma, Nancy Kim

Faculty Scholarship

This Article makes two arguments. First, the dilemma posed by software transactions-sales or licenses?-should be answered by dynamic contract law. Dynamic contract law has as its objective effectuating the intent of the parties but weighs that objective against policy considerations. Second, the validity of a license grant should not be inextricably tied to the validity of the contract as a whole. The problem with relying on contract doctrine in the context of software licensing is that, too often, the application of that doctrine is static and formalistic. A new doctrine is not necessary to address software licensing issues; rather, the …

Mistakes, Changed Circumstances And Intent, Nancy Kim

Faculty Scholarship

The most common contract defenses are duress, unconscionability, incapacity, fraud, and the basic assumption. defenses4 of mutual mistake, unilateral mistake, impossibility, frustration of purpose and commercial impracticability. In this Article, I limit my discussion to basic assumption defenses. Several prevailing rationales explain why a party should be allowed to escape contractual liability despite the sufficiency of consideration where there has been a failure of a basic assumption material to the transaction. No single rationale or principle, however, unifies all basic assumption defenses. Several commentators have noted that similar fact patterns applying a given doctrine often yield inconsistent results. Parties’ employment …

Objectivity And Subjectivity In Contract Law: A Copernican Response To Professor Shiffrin, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

This is a response to Seana Shiffrin's recent and important contribution to the continuing debate whether there is a universal moral or economic truth at the heart of contract law. Her most significant advance toward a general theory of promise and contract is not, however, her analysis of the divergence of morality and contract, but instead her identification of the critical moment at which the interposition of the public in a private matter occurs or is contemplated. This essay carries that theme forward, suggesting that a universal justification for contract law is not possible because the law, by its very …