Contracts Commons^™

Representations & Warranties, Fraud, And Risk Shifting: An Analytical Framework, Steven L. Schwarcz

Faculty Scholarship

Do violations of contractual representations and warranties (“R&Ws”) merely shift risk by giving rise to contract-breach damages, or can they also give rise to fraud claims? This question is at the heart of numerous lawsuits, including billions of dollars of securitization-related litigation. Many agreements governing the issuance of securities in these transactions limit R&W breach claims to a sole contractual remedy—curing the violation or repurchasing nonconforming loans that caused the violation. Although parties making the R&Ws argue that this sole remedy should adequately shift risk, investor plaintiffs contend that it insufficiently shifts the risk if the violations are extensive. Plaintiffs …

Ucc § 2-510: A Commercial Law Blunder?, Steven L. Schwarcz

Faculty Scholarship

Commercial law, as codified by the Uniform Commercial Code ("UCC"), recognizes certain important policy goals and commercial realities as a basis to override property law. Among other provisions, § 2-509 of the UCC allocates the risk of loss to goods in transit to the party who controls and would be expected to insure the goods, whether or not that party owns the goods at the time of their loss. Promoting commercial reality over the "arbitrary shifting" of rights based on property has been widely praised. Shortly after that risk-of-loss provision was enacted, however, it was modified by an additional UCC …

Sign Here: How Parental Waivers Exceed The Bounds Of Parents' Fundamental Rights, Carissa Hansen

Mitchell Hamline Law Review

No abstract provided.

Minnesota Rebalances Long-Standing Contract-For-Deed Law, Larry M. Wertheim

Mitchell Hamline Law Review

No abstract provided.

Teaching The Choice Between Vagueness And Precision In Contracts, Naveen Thomas

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Beyond Discrimination: Market Humiliation And Private Law, Hila Keren

University of Colorado Law Review

Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Oops! The Unfortunate (But Basic) Error In The New Ucc Article 12, David Frisch, Nicole Dalrymple

Law Faculty Publications

The Uniform Law Commission and American Law Institute have recognized the need for commercial law to govern digital transactions and responded with the proposed addition of a new article to the Uniform Commercial Code (the “Code” or “UCC”), Article 12. Article 12 will govern the transfer of property rights in a particular category of digital assets (controllable electronic records), which would include commonly known digital assets, such as bitcoin and non-fungible tokens (“NFTs”). Although the addition of Article 12 should provide more certainty in transactions involving current and emerging technologies, there is a fundamental problem with the article as it …

Oops! The Unfortunate (But Basic) Error In The New Ucc Article 12, David Frisch, Nicole Dalrymple

Law Student Publications

The Uniform Law Commission and American Law Institute have recognized the need for commercial law to govern digital transactions and responded with the proposed addition of a new article to the Uniform Commercial Code (the “Code” or “UCC”), Article 12. Article 12 will govern the transfer of property rights in a particular category of digital assets (controllable electronic records), which would include commonly known digital assets, such as bitcoin and non-fungible tokens (“NFTs”). Although the addition of Article 12 should provide more certainty in transactions involving current and emerging technologies, there is a fundamental problem with the article as it …

Wild Horse Concepts, Llc V. Hasbro, Inc., 286 A.3d 848 (R.I. 2023)., Aidan L. Boisvert

Roger Williams University Law Review

No abstract provided.

Music, Mayhem, And A Mississippi: Still Burning-The Hope Of Smothering The Deleterious Effects Of Deliberate Indifference, Angela Dixon

Cardozo Journal of Equal Rights & Social Justice

The article argues that the deliberate indifference standard, as applied in Eighth Amendment jurisprudence, fails to adequately address inhumane and unconstitutional prison conditions, particularly in Mississippi. It critiques the standard for prioritizing prison officials' intent over objective conditions, allowing systemic neglect and racial disparities to persist. The analysis advocates for a shift toward an objective standard to better protect human dignity and hold prison administrators accountable.

Atmed Treatment Ctr., Inc. V. Travelers Indem. Co., 285 A.3d 352 (R.I. 2022), Catherine R. Enos

Roger Williams University Law Review

No abstract provided.

"Reverse Divisibility" And "Subsequent Modification": Expanding The Scope Of Justified Non-Performance In Multiple Contract Situations, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Parties to a contract sometimes invoke divisibility arguments in an attempt to recharacterize the contract as being two or more separate contracts. This is often done in order to limit the justified non-performance consequences of a breach of contract on their part. This short article considers the often-overlooked symmetrical possibility of a non-breaching party attempting to recharacterize two or more facially separate but closely related contracts as a single contract, expanding the scope of their justified non-performance rights after one contract is breached. I describe two complementary arguments justifying such a single-contract recharacterization of the relationship as the "reverse divisibility" …

Using State And Local Governments’ Purchasing Power To Combat Wage Theft, Courtlyn G. Roser-Jones

Washington and Lee Law Review

Regulatory efforts to curb wage theft are failing. And for good reason: these laws generally empower individual workers to pursue their rights when employers neglect to pay them what they are owed and deter employers with substantial penalties. But the vast majority of workers do not take formal action against their employers. So, when the penalties for committing wage theft are almost entirely triggered by claims workers do not bring, they do not deter employer behavior. Instead, because the likelihood of being penalized at all is so low, some employers make profit-maximizing decisions to commit wage theft on a large …

Machines Make Mistakes Too: Planning For Ai Liability In Contracting, Mark Sayre, Kyle Glover

Journal of Law, Technology, & the Internet

Recent advances in artificial intelligence have set off a frenzy of commercial activity, with companies fearful that they may fall behind if they are unable to quickly incorporate the new technology into their products or their internal processes. At the same time, numerous scholars from the machine learning community have warned of the fundamental risks that uninhibited use of artificial intelligence poses to society. The question is not whether artificial intelligence will cause harm, but when, and how. The certainty of future harm necessitates that legal scholars and practitioners examine the liability implications of artificial intelligence. While this topic has …

Medical Taking Of Human Biological Material V. Traditional “Art Looting”: Henrietta Lacks And The Complex Ethical And Legal Liability Questions Raised By Her Unfortunate Case, Alyaa Chace

Touro Law Review

During a poignant saga of American history, Henrietta Lacks stands as an emblem of both scientific triumph and ethical controversy. In 1951, Mrs. Lacks, a tobacco farmer and mother of five, visited Johns Hopkins Hospital for treatment of what was later discovered to be advanced stage cervical cancer. Her doctors treated her with radium, which was standard practice at the time. However, Mrs. Lacks’s cancer rapidly metastasized and she ultimately passed away just months later on October 4, 1951, at the age of 31. During the course of her treatment, Mrs. Lacks’s cells were non-consensually removed for purposes of scientific …

It's More Than Just A Family Issue: A Global Analysis Of Parentage Assumption Law In Relation To Surrogacy, Jordan Chrispell

University of San Francisco Law Review

No abstract provided.

Having Fun While Learning: Pedagogical Techniques For Teaching Contract Drafting, Robin Boyle

Faculty Publications

(Excerpt)

Welcome everyone. Thank you very much for coming. It’s so exciting that we’re all together. I was looking forward to this conference. I’m Robin Boyle and I haven’t been here in a long time, unfortunately. So, it’s wonderful to come back and to see all of you.

My foray into contract drafting began about twenty years ago, when I started teaching Drafting Litigation Documents and Contracts (3 credits), which had a contract drafting component. The school also created a standalone Contract Drafting course (2 credits). The books that I’ve been using over the years have been very helpful. I …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Addressing New York's Scaffolding Issue Through An Arbitration Framework, Jared Man

Cardozo Journal of Conflict Resolution

New York City is one of the most, if not the most, famous cities in the world. Whether it is the melting pot of cultures, the signature attitude of its residents, or the numerous attractions, people flock to New York to either see the city with their own eyes or end up moving here to become part of the city itself. However, one of New York's most notable features is the beautiful architecture it boasts. Every neighborhood comes with its own distinct feeling once you pass through it, which in large part has to do with kinds of buildings that …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Faculty Scholarship

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

Crypto: The Prospect Of Regulatory Competition, Charles M. Yablon

Articles

No abstract provided.

Sex & Startups, Jens Frankenreiter, Talia B. Gillis, Eric L. Talley

Scholarship@WashULaw

Venture capital is widely perceived to have a gender problem. Both founders seeking capital and the investors themselves are overwhelmingly male, fomenting concerns about how—and how fairly—the VC sector distributes its economic gains. Although gender disparities in funding are well documented, we still know little about whether the governance of VC-backed startups similarly manifests gender imbalances. This knowledge gap is critical, since VC investments often carry strings attached, in the form of cash flow and control rights that can vary substantially from deal to deal.

This study unveils a first-of-its-kind dataset that offers detailed insights into the governance of VC-backed …

Contract-Wrapped Property, Danielle D'Onfro

Scholarship@WashULaw

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions …

Introductory Remarks, Carly Rothstein

Cardozo Arts & Entertainment Law Journal

This introductory remark explores the implications of recent Supreme Court decisions in Bad Spaniels and Andy Warhol on intellectual property law, focusing on the evolving landscape of copyright and trademark protections. It highlights the challenges and opportunities these rulings present for balancing artistic expression, cultural norms, and legal frameworks. The symposium serves as a platform for scholars and practitioners to discuss these developments and their broader impact on IP law and policy.