Contracts Commons^™

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In The Contracts Of Publicly Held Companies, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Informed parties bargaining for their mutual advantage will tend to agree to provisions that maximize the social surplus. Such bargaining includes provisions regarding the resolution of disputes that might arise under the contract. Thus, if a form of alternative dispute resolution, such as binding arbitration, provides greater social benefits than litigation, the dynamics of the process should tend to induce the parties to include a clause submitting future disputes to arbitration. This Article studies the actual contracting practices of large, sophisticated actors with respect to arbitration clauses. We examined over 2800 contracts, filed with the Securities Exchange Commission (SEC) in …

Tax Consequences When A New Employer Bears The Cost Of The Employee's Terminating A Prior Relationship, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

No abstract provided.

Two Goals For Executive Compensation Reform, Brett H. Mcdonnell

NYLS Law Review

No abstract provided.

First Amendment Protection For False Commercial Speech By A Publisher Regarding The Truthfulness Of Its Publication: A Response To Litigation Arising Over James Frey's A Million Little Pieces, Jason Kessler

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Promissory Estoppel: The Life History Of An Ideal Legal Transplant, Joel M. Ngugi

University of Richmond Law Review

This article hopes to accomplish three things. First, it will revisit the historical origins of the doctrine of promissory estoppel in the American law of contracts and the role that Samuel Williston, the Chief Reporter of the Restatement (First) of Contracts ("First Restatement") played in the evolution of the doctrine. The dominant theory is that Williston conceptualized the new promissory estoppel doctrine in a way that retarded and blunted the doctrine shortly after its birth. This theory is adhered to by both critics and proponents of the expansion of promissory estoppel as a ground of promissory obligation. According to both …

Williston As Conservative-Pragmatist, Mark L. Movsesian

Faculty Publications

In her pathbreaking article, "Restatement and Reform: A New Perspective on the Origins of the American Law Institute, Professor N.E.H. Hull rejects the conventional wisdom about the conservative, even reactionary, character of the First Restatements. The truth, she argues, is more subtle. The Restatements, and the larger ALI project of which they were a part, reflect the "'progressive-pragmatic"' worldview of the law professors most responsible for their creation. These professors were reformers. They rejected the formalism of earlier generations; for them, law was not a conceptual system but a practical tool for promoting beneficial social goals. They tempered their zeal …

How To Create A Commercial Calamity, Robert A. Hillman

Cornell Law Faculty Publications

This Article briefly catalogs the kinds of commercial calamities and then focuses on one of them, namely laws that are so imprecise and ambiguous that judges do not know how to apply them, and lawyers cannot explain them. The Article illustrates the problem with Uniform Commercial Code (UCC) section 2-209, dealing with contract modification and waiver. The paper does not focus on the ambiguities and obfuscations of section 2-209, but on the strategy of lawmaking that inevitably produces such a result. The drafters of section 2-209 ambitiously sought to reform the law, but then lost their nerve. In short, they …

Licenses, Leases And Other Contractual Arrangements For The Exploration And Production Of Petroleum A Comparative Study Between Nigeria And The United States, Omolara Elumelu

LLM Theses and Essays

Much has been written about Oil and Gas leases. This paper focuses on the various Oil and Gas leases and other contractual arrangements for oil and gas exploration and production in Nigeria and the United States. The paper examines the origin, structure, development and mode of operations in both jurisdictions and concludes with a comparative analysis of both jurisdictions.

Plain Meaning Vs. Broad Interpretation: How The Risk Of Opportunism Defeats A Unitary Default Rule For Interpretation, Juliet P. Kostritsky

Kentucky Law Journal

No abstract provided.

Gambling, Commodity Speculation, And The 'Victorian Compromise', Joshua C. Tate

Faculty Journal Articles and Book Chapters

This Essay examines two major strands of nineteenth-century jurisprudence related to gambling: Southern cases defining public and private space for the purpose of state gambling statutes, and Northern cases applying the intent to deliver test to speculative contracts. The Essay argues that both lines of cases reflect what Lawrence Friedman has termed the Victorian compromise: A strong official stance against immoral behavior is conjoined with de facto acceptance of many questionable practices, provided that they are conducted in a manner acceptable to the elite. The Essay concludes that nineteenth-century judges sought to preserve the semblance of a strict prohibition against …

Rediscovering The Public Interest: An Analysis Of The Common Law Governing Post-Employment Non-Compete Contracts For Media Employees, Cathy Packer, Johanna Cleary

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why U.S. Federal Criminal Penalties For Dealing In Illicit Cultural Property Are Ineffective, And A Pragmatic Alternative, Derek Fincham

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Clicking And Cringing, Nancy Kim

Faculty Scholarship

Shrinkwrap, clickwrap, and browsewrap licenses have complicated contract law by introducing nontraditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in "rolling contract" situations. In this Article, I propose that a consumer's assent to a transaction should not be transmuted into blanket assent to each individual term of a …

If You Prompt Them, They Will Rule: The Warranty Of Habitability Meets New Court Information Systems, Mary Zulack

Faculty Scholarship

A recent conference on housing rights invited participants to think about the impacts, actual and potential, of the judge-made doctrine of the implied warranty of habitability in residential tenancies. This essay focuses on the warranty, and suggests establishing technology systems for judges to help them give new
life to the doctrine and thereby to accelerate actual repair of rental housing through court mandates.

The conference attendees seemed to agree that when trial judges are presented with claimed breaches of the warranty of habitability, they have not, on the whole, used the doctrine to order that repairs actually be effectuated. They …

A Critique Of The Efficient Performance Hypothesis, Jody S. Kraus

Faculty Scholarship

The classic economic justification of contract law’s default remedy of expectation damages is grounded on the efficient breach hypothesis: that promisors should be permitted and encouraged to breach when the net gains from breach exceed the net gains from performance. Expectation damages ensure that all and only efficient breaches will occur because promisors will find breach profitable only if its benefits exceed the value of performance to the promisee. The efficient breach hypothesis, and the defense of expectation damages that rests on it, has long been criticized for being inconsistent with the moral intuition that promisors necessarily forfeit their right …

Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott

Faculty Scholarship

For decades there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly attributable to the unfortunate case of Hoffman v. Red Owl Stores and to the unusual degree of scholarly attention that it has attracted. A careful examination of the record of the Hoffman case reveals facts that are much different from conventional understanding. The disagreement between Joseph Hoffman and Red Owl Stores resulted from a fundamental misunderstanding between the parties regarding the terms of Hoffnan's capital contribution to the franchise. The misunderstanding was largely a product of Hoffnan's penchant for moving assets …

Precontractual Liability And Preliminary Agreements, Alan Schwartz, Robert E. Scott

Faculty Scholarship

For decades, there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly due to scholars' failure to recover the law in action governing precontractual liability issues. In this Article, Professors Schwartz and Scott show first that no liability attaches for representations made during preliminary negotiations. Courts have divided, however, over the question of liability when parties make reliance investments following a "preliminary agreement." A number of modern courts impose a duty to bargain in good faith on the party wishing to exit such an agreement. Substantial uncertainty remains, however, regarding when this duty …

Transactional Economics: Victor Goldberg's Framing Contract Law, Mark P. Gergen, Victor P. Goldberg, Stewart Macaulay, Keith A. Rowley

Faculty Scholarship

Professor Mark Gergen: Thank you. It is an honor to speak to this group and to be on a panel with Stewart Macaulay, Keith Rowley, and Victor Goldberg. I have an enormous amount of respect for the three. Keith had the misfortune of being a student of mine in Federal Income Tax.

Framing Contract Law offers a wealth of information about familiar cases. Victor argues that in construing contracts, courts should be attentive to how people engineer contracts to minimize transaction costs. He shows that courts often err in this regard, imposing unnecessary costs. To make his case, Victor delves …

Legal Determinacy And Moral Justification, Jody S. Kraus

Faculty Scholarship

Since this is a conference on law and morality, and the topic of this panel is theories of contract law, I thought it particularly appropriate to ask how a theory of contract law can provide a moral justification for contract law. That question can be answered only by providing a more general account of how a legal theory can provide a moral justification for any area of the private law. In this preliminary Essay, I argue that in order morally to justify the private law, a theory of the private law must derive reasons from a normative political theory that …

Sales, Carolyn L. Dessin, Keith A. Rowley, Robyn L. Meadows, Larry T. Garvin

Akron Law Faculty Publications

This article provides an annual survey of developments in sales law under Article 2 of the Uniform Commercial Code (UCC). The authors analyze significant judicial decisions from the preceding year, focusing on topics such as contract formation, the statute of frauds, warranties, remedies, and risk of loss. The survey highlights how courts have interpreted and applied UCC provisions, offering insights into emerging trends and potential areas of contention in sales law. By examining these developments, the article serves as a valuable resource for practitioners and scholars seeking to understand the evolving landscape of UCC Article 2 jurisprudence.

Slapping Around The First Amendment: An Analysis Of Oklahoma’S Anti-Slapp Statute And Its Implications On The Right To Petition, Laura Long

Oklahoma Law Review

No abstract provided.

Three Pictures Of Contract: Duty, Power And Compound Rule, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A fundamental divide among theories of contract law is between those that picture contract as a power and those that picture it as a duty. On the power-conferring picture, contracting is a sort of legislative act, in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law puts duties on persons entering into agreements for consideration whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing -- a question that should lie at …

Lawyers Asleep At The Wheel? The Gm-Fisher Body Contract, Victor P. Goldberg

Faculty Scholarship

In the analysis of vertical integration by contract versus ownership one event has dominated the discussion – General Motors' merger with Fisher Body in 1926. The debates have all been premised on the assumption that the ten-year contract between the parties signed in 1919 was a legally enforceable agreement. However, it was not. Because Fisher's promise was illusory the contract lacked consideration. This note suggests that GM's counsel must have known this. It raises a significant question in transactional engineering: what is the function of an agreement that is not legally enforceable.

Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Search Interest In Contract, Joshua Fairfield

Articles by Maurer Faculty

Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation-centered view of contract leads courts to try to determine the meaning of the parties where no meaning was negotiated and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, they lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the reality of contracting …

Constructive Haiku And The Law Of Contracts: Raintree County Memorial Library Occasional Paper No. 3, Douglass Boshkoff

Articles by Maurer Faculty

No abstract provided.

Opting Out: Procedural Fair Use, Michael Mattioli

Articles by Maurer Faculty

This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright's doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn't want their books scanned. Despite this measure, two major authors' groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract …

Arbitration Of Nursing Home Claims: Oklahoma Goes Its Own Way, Stanley A. Leasure

Oklahoma Law Review

No abstract provided.

Contracts Without Law: Sovereign Versus Corporate Debt, Mitu Gulati, George G. Triantis

Faculty Scholarship

Although extralegal enforcement is widely acknowledged, the conventional understanding of written contract provisions, such as the complex and detailed provisions in bond contracts, is that they are drafted to be enforced by law. This framing neglects the value of contracts in shaping extralegal forces, particularly where litigation is unlikely or not possible. Sovereign debt contracts provide an example in which lengthy and detailed contracts play a key role even though the debtor is largely litigation-proof. We examine how contract provisions in sovereign debt contracts improve the efficiency of creditor control outside the realm of legal enforcement.

Comments On The European Commission’S Proposal For A Regulation Of The European Parliament And The Council On The Law Applicable To Contractual Obligations (Rome I), Ralf Michaels, Jürgen Basedow, Wolfgang Wurmnest

Faculty Scholarship

No abstract provided.