Contracts Commons^™

On The Stickiness Of Default Rules, Omri Ben-Shahar, John A. E. Pottow

Articles

It was once perceived, and still is commonly taught, that default rules in contract law must mimic efficient arrangements. Otherwise, these rules impose needless transaction costs upon parties who seek to opt out of them to reach more efficient positions. In settings where these costs are high, parties might find themselves "stuck" in a default, unable to reach the outcome that they prefer. The strong version of this account-that the only factor that can make an inefficient default rule stick is the direct cost of drafting a tailored provision-has been gradually reappraised. It is by now recognized that factors beyond …

Foreword [To Boilerplate: Foundations Of Market Contracts Symposium], Omri Ben-Shahar

Articles

It is tempting to open this symposium with yet another "boilerplate" salute to the challenge that standard-form contracts pose for contract law doctrine. You may have seen many tributes to this fundamental problem. If I were to offer my own variation on this familiar introduction, I would have perhaps tried to come up with an original spin to induce you to read forward another paragraph or two. I would probably have talked about a major divide within contract law between the "law of negotiations" and "product regulation." The former is the body of doctrines that determine the legal consequences of …

Got Wheels? Article 2a, Standardized Rental Car Terms, Rational Inaction, And Unilateral Private Ordering, Irma S. Russell

Faculty Law Review Articles

This article considers the system of unilateral private ordering by form contracts: the presumptions of a free market and free bargaining. It questions whether the system of constrained judicial oversight that serves to insulate bargaining from governmental control should extend to standardized consumer contracts that emphatically dispense with bilateral ordering. It also questions whether the unilateral private ordering presented by standardized contracts effects a cost savings for society, a construct with apparently universal acceptance today. This article considers the application of Article 2A to standard form contracts in the most common consumer leasing transaction -- renting a car.

Part II …

Uniform Commercial Code Survey: Sales, Keith A. Rowley, Carolyn L. Dessin, Larry T. Garvin, Robyn L. Meadows

Scholarly Works

2005 Uniform Commercial Code Survey: Sales

Opting Out Or Copping Out? An Argument For Strict Scrutiny Of Individual Contracts, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Careful What You Wish For — Freedom Of Contract And The Necessity Of Careful Scrivening, Daniel S. Kleinberger

Faculty Scholarship

No abstract provided.

Beyond Unconscionability: Class Action Waivers And Mandatory Arbitration Agreements, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

We live in an age of convenience. From financial transactions to electronic correspondence, we frequently deal with large corporations that provide services in our daily lives. One of the prices we pay for the convenience of these transactions, however, is that our commercial relationships increasingly are based on standard form contracts written by large corporations. While these standard form contracts are necessary to an economically efficient society, the growing use of mandatory arbitration provisions and clauses that prohibit class actions in these contracts raises the spectre of corporate abuse.

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David Gamage, Allon Kedem

Articles by Maurer Faculty

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification a fact that has confounded generations of scholars and created a mess of case law.

This article argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability of …

Harmonizing The Law In Waiver Of Fundamental Rights: Jury Waiver Provisions In Contracts, Wayne Klomp

Nevada Law Journal

No abstract provided.

An Authors' Rights-Based Copyright Law: The Fairness And Morality Of French And American Law Compared, Jean-Luc Piotraut

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Formalism In American Contract Law: Classical And Contemporary, Mark L. Movsesian

Faculty Publications

It is a universally acknowledged truth that we live in a formalist era—at least when it comes to American contract law. Much more than the jurisprudence of a generation ago, today's cutting-edge work in American contract scholarship values the formalist virtues of bright-line rules, objective interpretation, and party autonomy. Policing bargains for substantive fairness seems more and more an outdated notion. Courts, it is thought, should refrain from interfering with market exchanges. Private arbitration has displaced courts in the context of many traditional contract disputes. Even adhesion contracts find their defenders, much to the chagrin of communitarian scholars.

This is …

Identity Theft: Tribute Bands, Grand Rights, And Dramatico-Musical Performances, Brent Giles Davis

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Thou Shalt Not Go About As A Talebearer Among Thy People": Jewish Law And The Private Facts Tort, Elie Mischel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A Social Dimension In European Private Law The Call For Setting A Progressive Agenda, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

I. The Europeanization of Private Law: Legal Sources, Ideology and Process: 1. Legal Sources in European Private Law. 2. Technocracy at work: What is the Common Frame of Reference? 3. The Ideological Divide: Neo-liberalism versus Social Justice in European Contract law. 4. The Social Justice Manifesto and the Legitimacy of the Process. 5. The Scholarly Industry and its Dark Sides. II. Social contract law and Social Europe, part of the problem or part of the solution?: 1. The "Social" Critique of Formalism in Contract Law and its historical inadequacy. 2. The Critique of the Social and its erasure in the …

An Empirical Analysis Of Ceo Employment Contracts: What Do Top Executives Bargain For?, Randall Thomas, Stewart J. Schwab

Vanderbilt Law School Faculty Publications

In this paper, we examine the key legal characteristics of 375 employment contracts between some of the largest 1500 public corporations and their Chief Executive Officers. We look at the actual language of these contracts, asking whether and in what ways CEO contracts differ from what are thought of as standard employment contract features for other workers. Our data provide some empirical answers to several common assertions or speculations about CEO contracts, and shed light on whether these contracts are negotiated solely to suit the preferences of CEOs or have provisions that insure that the employers' interests are also safeguarded. …

Walking The Line Between Contract And Tort In Construction Disputes: Assessing The Use Of Negligent Misrepresentation To Recover Economic Loss After Presnell, Steven M. Henderson

Kentucky Law Journal

No abstract provided.

The Propriety Of Expanded Judicial Review Under The Faa: Achieving A Balance Between Enforcing Parties' Agreements According To Their Terms And Maintaining Arbitral Efficiency, Eric Chafetz

Cardozo Journal of Conflict Resolution

After an arbitration is concluded, the arbitrator or panel issues an award. An award is analogous to a court's judgment. Parties to an arbitration award can voluntarily comply with the award, without court intervention. However, unlike a trial where a judge's order marks the end of the proceedings, an arbitrator's award has no actual legal affect without court intervention. Court intervention occurs when a party files a motion either to confirm or to vacate an arbitration award.

Duty And Consequence: A Non-Conflating Theory Of Promise And Contract, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

I argue that the debate between deontologists and consequentialists of contract law conflates and therefore unduly confuses the analysis of each of them. The debate is a reprise of the philosophic debate between rationalists and empiricists. Present-day legal contract consequentialists (in the empirical tradition) see reason (pure or practical) as unhelpful or worse in telling us what we ought to do. Pragmatism and consequential analysis of default rules, if anything, dominate the discussion. But the present-day contract rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. The deontological concept of contract as promise …

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

Akron Law Faculty Publications

This article provides a comprehensive survey of significant developments in sales law under Article 2 of the Uniform Commercial Code (UCC) during the year 2005. The authors analyze key judicial decisions that interpret and apply various provisions of Article 2, covering topics such as contract formation, the statute of frauds, warranties, performance, remedies, and risk of loss. By examining these cases, the article offers insights into how courts are shaping the landscape of sales law, highlighting trends and emerging issues that practitioners and scholars should be aware of.

Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix

Articles

The focus of this Article is the interrelated set of issues that have arisen, on one hand, from Internet transactions regarding the downloading of free or purchased software, as well as other Internet sales, and on the other hand, the distinctive transactional problems that modern business practices have created under the rubric of "shrink-wrap" or "terms in the box"—a late presentation of terms associated with the sale of computers or the licensing of software (with the terms included in the packaging, rather than presented to the user ahead of time)—but not necessarily confined to those transactions.

Such transactions raise novel …

The Impact Of Eu Unfair Contract Terms Law On U.S. Business-To-Consumer Internet Merchants, Jane K. Winn, Mark Webber

Articles

This article focuses on the application of European Union unfair contract terms law to retail Internet transactions that U.S. businesses might engage in with European consumers. It compares attitudes toward consumer protection regulation in the U.S. and the EU to provide some context within which the specific provisions of unfair contract terms law can be understood.

While many lawyers and legal academics in the U.S. who study the development of online markets are aware of the profound differences in U.S. and EU information privacy laws, the magnitude of the divergence in consumer electronic contracting law is not as widely recognized. …

Improving The Rolling Contract, Stephen E. Friedman

American University Law Review

This article addresses the increasingly common problem of buyers finding important contract terms inside the box of a newly purchased item instead of learning about them before or during purchase. The failure of courts to develop a satisfactory approach to deciding which contact terms sellers may provide after purchase is of great significance in light of the rapid proliferation of rolling contracts. In this article, Friedman proposes a mechanism that will ensure that sellers have the flexibility to defer presentation of some terms but that will also protect purchasers against the unfair imposition of unexpected and important terms arriving at …

Assignability Of Covenants Not To Compete: When Can A Successor Firm Enforce A Noncompete Agreement?, Adam Schneid

Cardozo Law Review

No abstract provided.

The Strategy Of Boilerplate, Robert B. Ahdieh

Michigan Law Review

That boilerplate is pervasive is hardly surprising. In a variety of ways, standardized terms in day-to-day contracts serve an essential cost-saving function. By this measure, one might expect less frequent reliance on boilerplate in high-value contracts among sophisticated parties. Yet standard terms would appear to be no less widespread in contracts among the sophisticated. Notwithstanding their representation by able counsel, charged to craft comprehensive and detailed, but also particularized, contracts, such parties will commonly conclude agreements comprised heavily of traditional terms--contracting norms of a sort-rather than terms tailored to the distinct features of their particular bargain. Examples of seemingly suboptimal …

Boilerplate Today: The Rise Of Modularity And The Waning Of Consent, Margaret Jane Radin

Michigan Law Review

Thanks to the vision of Omri Ben-Shahar and the excellence of the scholars contributing to this symposium, students of the law of commercial exchange transactions will now understand how important and interesting, and indeed exciting, boilerplate really is. The various presentations are so rich that my assigned task of commentary cannot approach an adequate summation. Instead of attempting such a task, therefore, I will take up a slightly different one. My commentary will relate some of the ideas presented in the symposium to two themes that I think are significant for the groundwork of contract today: the growing modularity of …

The Law And Sociology Of Boilerplate, Todd D. Rakoff

Michigan Law Review

In my view, the scholarship presented at this symposium demonstrates that, in order to analyze form contracts and boilerplate successfully, one must carry out a set of operations that embodies an approach I will call law and sociology. But I presume I was invited to be a commentator at this conference on boilerplate not because the article I wrote on one branch of the subject awhile back exemplified this methodological approach, but because it took a rather strong substantive position. And so I think I ought first to say a brief word about that. The article in question concerned contracts …

The Law And Economics Of Contracts, Benjamin E. Hermalin, Avery W. Katz, Richard Craswell

Faculty Scholarship

This paper, which will appear as a chapter in the forthcoming Handbook of Law and Economics (A.M. Polinsky & S. Shavell, eds.), surveys major issues arising in the economic analysis of contract law. It begins with an introductory discussion of scope and methodology, and then addresses four topic areas that correspond to the major doctrinal divisions of the law of contracts. These areas include freedom of contract (i.e., the scope of private power to create binding obligations), formation of contracts (both the procedural mechanics of exchange, and rules that govern pre-contractual behavior), contract interpretation (what consequences follow when agreements are …

Is The Cisg Benefiting Anybody?, Gilles Cuniberti

Vanderbilt Journal of Transnational Law

The Convention on Contracts for International Sale of Goods (CISG) was supposed to increase legal certainty and reduce the transaction costs of international buyers and sellers. This Article argues that none of these goals has been met. A survey of 181 court decisions and arbitral awards applying the CISG shows that the vast majority of international buyers and sellers do not address the issue of the law governing their contracts, irrespective of the value at stake. Although the data is not easy to interpret, it follows that international buyers and sellers are simply not concerned with the legal regime governing …

Summary Of Waddell V. L.V.R.V. Inc., 122 Nev. ___, Christian Hale

Nevada Supreme Court Summaries

Appellants Arthur R. Waddell and his wife, Roswitha M. Waddell (the Waddells), entered into a contract to purchase a 1996 Coachmen Santara motor home (the RV) from crossappellant L.V.R.V. Inc., D/B/A Wheeler's Las Vegas RV (Wheeler's). In 1996 the Waddells agreed to purchase the RV and an extended warranty from Wheeler's, and requested that various repairs be performed on the vehicle's engine cooling system, that new batteries be installed, and that the door frames be aligned, prior to delivery. The Waddells took delivery of the RV on September 1, 1997. The Waddells noticed problems with the RV on their first …

An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke

Faculty Scholarship

This Essay, originally presented at Lewis & Clark Law School’s 2006 Distinguished Intellectual Property Visitor lecture, discusses the challenges involved in developing a uniform law of software contracting. Technology and the law have developed since 1995, when the first efforts to codify such a law began. These earlier efforts were largely unsuccessful, and substantial uncertainty still exists in transactions involving software. In this Essay, Dean O’Rourke discusses the American Law Institute’s Principles project that seeks to identify approaches courts could use in adjudicating disputes involving software agreements. The challenges of developing the Principles include the same theoretical, practical and political …