Contracts Commons^™

Explicit Evidence On An Implicit Contract, Andrew Young, Daniel Levy

ExpressO

We offer the first direct evidence of an implicit contract in a goods market. The evidence we offer comes from the market for Coca-Cola. We demonstrate that the Coca-Cola Company left a substantial amount of written evidence of its implicit contract with its consumers—a very explicit form of an implicit contract. In general, observing implicit contracts directly is difficult because of their implicit nature. In the case of Coca-Cola, however, we are able to document the Company not only saying that it had an important implicit contract with its consumers, but also acting on it. This study makes an additional …

Summary Of State Drywall, Inc. V. Rhodes Design & Dev., 122 Nev. Adv. Op. 11, Eunice Kasiske

Nevada Supreme Court Summaries

State Drywall Inc. (“State Drywall”) appealed the district court’s order awarding Rhodes Design & Development (“Rhodes”) its attorney fees and costs in a breach of contract action pursuant to the cost-shifting provisions of NRCP 68(g) and NRS 17.115(5). State Drywall successfully argued that the district court should have awarded prejudgment interest on the two payments that Rhodes made before trial but after litigation had commenced, and added that prejudgment interest to the judgment awarded in making the comparison to the offer of judgment under NRCP 68(g) and NRS 17.115(5).

Say "Ahhh!": A New Approach For Determining The Cram Down Interest Rate After Till V. Scs Credit, Michael Elson

Cardozo Law Review

No abstract provided.

Choice, Consent, And Cycling: The Hidden Limitations Of Consent, Leo Katz

Michigan Law Review

Most legal scholars assume that if V consents to allow D to do something to him, such consent makes D's actions legally and morally acceptable. To be sure, they are willing to make an exception when consent is given under a specified list of conditions: Force, fraud, incompetence, third-party effects, unequal bargaining power, commodification, paternalism - all of these may be grounds for rejecting the validity of V's consent. We might call scholars who take this view of consent quasi-libertarians. In this Article, I argue against the quasi-libertarian view of consent. My central claim is that the validity of consent …

Book Review: Legal Tenderness, Martha M. Ertman

Faculty Scholarship

No abstract provided.

It’S Not About The Money: The Role Of Preferences, Cognitive Biases And Heuristics Among Professional Athletes, Michael Mccann

Law Faculty Scholarship

Professional athletes are often regarded as selfish, greedy, and out-of-touch with regular people. They hire agents who are vilified for negotiating employment contracts that occasionally yield compensation in excess of national gross domestic products. Professional athletes are thus commonly assumed to most value economic remuneration, rather than the love of the game or some other intangible, romanticized inclination.

Lending credibility to this intuition is the rational actor model, a law and economic precept which presupposes that when individuals are presented with a set of choices, they rationally weigh costs and benefits, and select the course of action that maximizes their …

The Reckless Pursuit Of Dominion: A Situational Analysis Of The Nba And Diminishing Player Autonomy, Michael Mccann

Law Faculty Scholarship

This Article examines required genetic testing of NBA players from a situational vantage point, integrating socio-psychological, legal, and ethical analyses. The core argument may be expressed as follows: required genetic testing of NBA players appears consistent with a broader and largely deleterious agenda by the NBA to control players. Since implementation of the rookie wage scale in 1995 through the recent imposition of a paternalistic player dress code, the NBA has increasingly usurped player autonomy. The NBA's capacity to do so largely rests in its adroit manipulation of the situational influences that influence fans and media. For instance, because of …

Toward Praxis, Emily Houh

Faculty Articles and Other Publications

This Essay, written for a 2005 symposium issue of the U.C. Davis Law Review, responds to an important question posed by the symposium organizers: What is the future of critical race feminism? In this Essay, I use a common law contractual good faith antidiscrimination claim, developed and proposed by me in a series of previously written articles, to help answer that question. While, in the past, my proposed good faith claim aimed principally to operationalize some recurring and foundational insights of critical race theory, such as the race crits' critique of the intentionality requirement in conventional antidiscrimination law, the Davis …

Intellectual Property: Trade Secrets And The Federal Tort Claims Act/Dd Form 882 Over Substance: Caveat Forfeiture, Katherine E. White

Law Faculty Research Publications

No abstract provided.

Book Note, Reviewing Dori Kimel, From Promise To Contract: Towards A Liberal Theory Of Contract, Ian Farrell

Sturm College of Law: Faculty Scholarship

Book review of Dori Kimel's From Promise to Contract: Towards a Liberal Theory of Contract (2003).

Unravelling The Myth Around Open Source Licences - An Analysis From A Dutch And European Law Perspective, Lucie Guibault, Ot Van Daalen

Books

Open source software licences are based on two fundamental principles: the possibility for users to use the software for any purpose and the possibility to modify and redistribute it without prior authorisation from the initial developer. Some open source software licences, like the General Public Licence (GPL), also impose a corollary obligation on the licensee: to make the source code available to other developers. The idea behind this form of licensing is that when programmers can read, redistribute and modify the source code for a piece of software, the software evolves. A number of legal challenges need to be addressed …

Navigating Residential Attorney Approvals: Finding A Better Judicial North Star, 39 J. Marshall L. Rev. 171 (2006), Debra Pogrund Stark

UIC Law Review

No abstract provided.

The Great Vanishing Benefit, Employer Provided Retiree Medical Benefits: The Problem And Possible Solutions, 39 J. Marshall L. Rev. 785 (2006), Larry Grudzien

UIC Law Review

No abstract provided.

Why Sell What You Can License?, Contracting Around Statutory Protection Of Intellectual Property, Elizabeth I. Winston

Scholarly Articles

Historically, the transfer of goods has been through sale, a model regulated by public legislation. Increasingly, however, the transfer of goods is occurring through licensing, a model regulated by private legislation. Privately-legislated licenses - for such chattels as musical and written works and agricultural goods - are being used to circumvent publicly-legislated restrictions on intellectual property. Private legislation should not circumvent public legislation, and intellectual property owners should not be allowed to circumvent the statutory scheme for protection of intellectual property. Licenses that augment publicly-legislated protection of intellectual property support the traditional role of contracts and should be enforced. Licenses …

When Are Agreements Enforceable? Giving Consideration To Professor Barnett's Consent Theory Of Contract, James Maxeiner

All Faculty Scholarship

This address considers five points: (1) the place of theory in American contract law; (2) the basic elements of Professor Barnett's theory are; (3) how these elements are similar to Continental law; (4) what it says about the American legal world that Barnett's theory has been discussed without reference to Continental systems; and, finally, (5) why I believe the American model is not a good one for a future European Civil Code but also hope that such a Code will become law.

Incomplete Contracts In A Complete Contract World, Kimberly D. Krawiec, Scott Baker

Faculty Scholarship

This paper considers the role that contract doctrine should play in facilitating optimal investment in contractual relationships. All contracts are incomplete in the sense that they do not specify the optimal actions for the buyer and seller in every future contingency. This incompleteness can lead to both under and over-investment in resources specifically targeted to the needs of the other contracting party. To solve these investment problems, economists and legal scholars have looked to complicated contractual solutions and the ownership of assets. This Article offers another solution: contract doctrine. Specifically, we propose a contractual default rule applicable to all contract …

The Ethics Of Invalid And 'Iffy' Contract Clauses, In Symposium: Contracting Out Of The Uniform Commercial Code, Christina L. Kunz

Faculty Scholarship

This Symposium focuses on the extent to which attorneys can use agreed terms to supplant or “bump” the provisions of the Uniform Commercial Code (UCC). The articles in this Symposium demonstrate that the degree to which attorneys customarily “contract out” varies considerably from UCC article to article. In reality, though, the issues surrounding contracting out of UCC provisions are not limited to the UCC, statutes, or other codified rules. Most “repeat players” in the market periodically ask their lawyers to redraft their standard-form contracts in ways that increasingly favor the drafter. Some of these lawyers may intentionally draft clauses that …

Judicial Incorporation Of Trade Usages: A Functional Solution To The Opportunism Problem, Juliet P. Kostritsky

Faculty Publications

Article 2 of the UCC directed courts to look to business norms as a primary means of interpreting contracts. Recently the new formalists have attacked this strategy of norm incorporation as a misguided one that will lead inevitably to significant error costs. Accordingly, they have embraced plain meaning as the preferred interpretive strategy. This article argues that the strategy of rejecting trade usages unless they are part of the express contract is too rigid. The rejection is premised on an overly narrow cost/benefit analysis that fails to account for the functional role that such usages may play in curbing opportunistic …

Appellate Review Of A "Strong Basis In Evidence" In Public Contracting Cases, Nicki Herbert

University of Colorado Law Review

In the context of state and local affirmative action programs in public contracting, federal circuit courts have split on the appropriate standard of appellate review of a district court's finding of a "strong basis in evidence, " a finding necessary to uphold the constitutionality of such programs. Using as a backdrop the premise that Rule 52(a) establishes a critical procedural requirement to which federal circuit courts should consistently adhere, the author discusses the history of the "strong basis in evidence" standard, appellate review in the federal court system generally, and the analysis used by federal appellate courts to resolve the …

The Often Imitated, But Not Yet Duplicated, Revised Uniform Commercial Code Article 1, Keith A. Rowley

Scholarly Works

Unlike Revised Uniform Commercial Code Article 9 (1999), which every state and the District of Columbia enacted within roughly two years of its promulgation, states have been slower to warm to Revised UCC Article 1 (2001). Nearly seven years after the American Law Institute and the National Conference of Commissioners on Uniform State Law promulgated it, thirty-three states have enacted their own versions of Revised UCC Article 1. None of the thirty-three has enacted the uniform version in its entirety. All thirty-three enacting states have rejected the uniform choice-of-law provision (§ 1-301) in favor of retaining language based on pre-Revised …

To Err Is Human, Keith A. Rowley

Scholarly Works

This essay reviews Allan Farnsworth's final book, Alleviating Mistakes: Reversal and Forgiveness for Flawed Perceptions (Oxford U. Press 2004). There are many kinds of mistakes. One kind - a rational, well-intended decision or act that results in unanticipated, negative consequences - was the principal subject of Allan Farnsworth's previous foray into the realm of contractual angst: Changing Your Mind: The Law of Regretted Decisions (Yale U. Press 1998). Another kind - the subject of this book - is a mistake caused by an inaccurate, incomplete, or incompetent mental state at the time of an act or decision that results in …

Improving The Construction And Litigation Resolution Process: The 2005 Amendments To The Washington Condominium Act Are A Win-Win For Homeowners And Developers, Mark F. O'Donnell, David E. Chawes

Seattle University Law Review

On August 1, 2005, significant amendments to the Washington Condominium Act (WCA) became effective. These amendments were intended to substantially reduce water infiltration in multiunit residential buildings and to simplify the condominium construction dispute resolution process. The heart of the amendments is the implementation of alternative dispute resolution (ADR) procedures, as well as fee-shiftingprovisions which require the non-prevailing party to pay the attorney fees and costs of the prevailing party. A decade of lawsuits brought under the WCA by condominium owners associations against builders and developers, and in turn by builders against subcontractors, alleging defects in the ability of the …

The Use Of Mtas To Control Commercialization Of Stem Cell Diagnostics And Therapeutics, Sean O'Connor

Articles

The recent focus on patents as a hindrance to stem cell research may turn out to be a red herring. The real culprits are material transfer agreements (MTAs), which govern the transfer of cell lines and other biological materials. The MTA’s primary purpose in life sciences research is to set contractual rights and obligations between parties where one party transfers biological materials to the other. For example, MTAs often focus on the physical handling, use, and distribution of the materials by the recipient, ensuring that the recipient complies with regulations for research involving humans or animals.

Although these interests are …

You Don’T Have To Be Ludwig Wittgenstein’: How Llewellyn’S Concept Of Agreement Should Change The Law Of Open-Quantity Contracts, Henry Allen Blair

Faculty Scholarship

In this article, Professor Allen Blair examines the preeminent role of exclusivity in open-quantity contracts under the Uniform Commercial Code (“UCC”). Although the text of the UCC does not mandate that open-quantity contracts be exclusive, the vast majority of courts considering the issue have held that exclusivity is necessary to prevent such contracts from failing for lack of mutuality of obligation. The Article traces the historic development of open-quantity agreements, focusing on pre-Code cases recognizing the commercial utility of such agreements but struggling with how to accommodate them under a classical model of contract formation. It was in this historic …

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International Law, Roberto Rosas

Faculty Articles

No abstract provided.

Contract Law—The Collision Of Tort And Contract Law: Validity And Enforceability Of Exculpatory Clauses In Arkansas. Jordan V. Diamond Equipment, 2005 Wl 984513 (2005)., John G. Shram

University of Arkansas at Little Rock Law Review

No abstract provided.

Contracting Out Of Article 2: Minimizing The Obligation Of Performance & Liability For Breach, Sarah Howard Jenkins

Law Faculty Scholarship

No abstract provided.

Contracting Out Of The Ucc, Sarah Howard Jenkins

Law Faculty Scholarship

No abstract provided.

Bearded Ladies Walking On The Brooklyn Bridge, David G. Epstein

Law Faculty Publications

This article discusses the post-Restatement Second use, misuse, and abuse of the terms "bilateral contract" and "unilateral contract" and answers the hypotheticals in the first paragraphs of the article.

Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White

Articles

This Article is structured as follows. Part I compares the terms and conditions in the purchase orders of the Original Equipment Manufacturers (OEMs) and highlights important differences in the substance of these boilerplate provisions. It argues that these differences cannot be easily reconciled with the prediction that sophisticated parties draft the most efficient boilerplate terms. Part II examines how these forms are drafted, how their terms are negotiated, and how the OEMs guard their terms from erosion. It provides some insight on how tailoring occurs and how the internal organization of a party to a deal affects the terms that …