Contracts Commons^™

Beyond Section 230 Liability For Facebook, Nancy S. Kim

St. John's Law Review

(Excerpt)

In October 2021, a former Facebook employee, Frances Haugen, publicly revealed that the company's internal research documented harms that its products caused some of its users. The company’s response was sadly predictable. It questioned the reliability of Haugen’s testimony, asserted its commitment to doing the right thing, and then diverted the public’s attention by changing its name to Meta. The company’s deny-and-distract tactics were, by now, all too familiar and provided few answers.

More than any other platform company, Facebook has found itself at the center of controversy. Its advertisement-supported business model relies upon user engagement which means that …

Ahs International, Llc V. Assembly Atlanta, Et. Al., Order On Defendant's Motion For Leave To Amend For Attorney's Fees, Kelly Lee Ellerbe

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Obey Or Abey: An Empirical Examination Of Abeyance Agreements In Public School Discipline, Rachael K. Cox

Northwestern University Law Review

“Exclusionary discipline” is widely understood to mean the typical responses to student misbehavior in public schools: suspension and expulsion. But sometimes their lesser-known counterpart, the abeyance agreement, swoops in before the suspension or expulsion is effectuated and gives the student a “second chance” to avoid such exclusionary discipline—provided the student complies with the terms of the agreement. It sounds simple, but the reality is far more complicated. Without a clearly defined, regulated, and tracked practice, abeyance agreements are an off-record discipline device used at the sole discretion of public school district administrators. Joining a landscape of urgent concerns over the …

Fixing Standard-Form Contracts, Shirly Levy

University of Cincinnati Law Review

Consumers are at a disadvantage when it comes to standard-form contracts – information gaps, weak bargaining power, and behavioral biases are all at work against them. Moreover, in the digital age, many consumers do not even attempt to read the lengthy contracts they instantaneously approve. Manipulation by sophisticated commercial parties is therefore guaranteed.

The literature offers various ways to alleviate this problem, including nudges and carefully crafted contractual default rules, but the question remains - how can the content of a consumer contract that no one reads be improved? This article draws lessons from the financial market, where shareholders and …

Tidewater Fleet Supply, Llc V. Jason L. Mccard, Et. Al., Order On Defendant's Motion To Dismiss, Kelly Lee Ellerbe

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Force Majeure & Covid-19: A Clause Changed?, Claudia Petcu

DePaul Business & Commercial Law Journal

No abstract provided.

The Kinder, Gentler Irs? Where?, Harvey Gilmore

DePaul Business & Commercial Law Journal

No abstract provided.

Greensky, Llc V. Wellness Program Services, Llc Dba Trusii, Et. Al., Order And Judgment, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Choice Of Law And Time, Part Ii: Choice Of Law Clauses And Changing Law, Jeffrey L. Rensberger

Georgia State University Law Review

Modern choice of law analysis usually honors the parties’ contractual choice of governing law. But what happens when the law selected by the parties changes between the time of their contracting and the time of litigation? Or what if the law of the state whose law would otherwise apply changes so that its policy is now offended by the choice of law clause although its policy was not violated when the parties contracted? These questions raise the often-overlooked temporal aspect of choice of law analysis. Should courts regard the law to be applied as fixed to the time of the …

Misrepresentation And Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Contract theorists naturally focus on the duty to perform. This chapter argues they should also pay attention to duties of candor in the contracting context. The most obvious example of such duties can be found in the misrepresentation defenses, which aim to ensure that contractual undertakings are sufficiently voluntary and to allocate the costs of defective consent. But other laws of deception, such as the torts of negligent misrepresentation and deceit, are also integral to the law of contracts. Separate liability in tort for both pre- and post-formation misrepresentations helps parties who mistrust one another determine whether an exchange is …

Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael Heller

Notre Dame Law Review

When should specific performance be available for breach of contract? This question—at the core of contract—divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and the personal services exclusion, …

A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker

Notre Dame Law Review

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.

The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …

A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker

Faculty Scholarship

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.

The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …

Zombies Attack Inadvertent Partnerships!—How Undead Precedents Killed By Uniform Statutes Still Roam The Reporters, Joseph K. Leahy

University of Richmond Law Review

Recently, the Texas Supreme Court breathed new life into some ancient zombies—zombie precedents, that is!—which have long lurked in the shadows of the nation’s partnership formation caselaw. This Article tells the story of those undead cases—describing them, debunking them, and plotting their demise.

This zombie tale begins with the supposed black-letter law of partnership formation. In nearly every state, formation of a general partnership is governed by one of two uniform partnership acts. Under both acts, a business relationship ripens into a partnership whenever the statutory definition of partnership is satisfied. The parties’ intent to become “partners” (or not) is …

What’S In The Contract?: Rockefeller, The Hague Service Convention, And Serving Process Abroad, Thomas G. Vanderbeek

Vanderbilt Law Review

Today’s global economy relies on transnational commerce. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), implemented in 1965, encouraged transnational commerce by establishing a streamlined mechanism for serving foreign parties with process. More reliable international service methods helped ensure parties that they could resolve disputes with foreign parties through the courts. The Hague Service Convention thus created a bridge between civil and common law procedures on service while reducing some of the risks of engaging in business with foreign parties.

At the same time, the Hague Service Convention frequently …

Is There Force In Force Majeure After Covid-19 Or In The Freedom To Negotiate Risk?, Sara Lazarevic

University of Miami Inter-American Law Review

This note explores the impact COVID–19 has had on contracting parties who have attempted to implicate force majeure provisions. An inquiry of recent cases reveals varying degrees of success and tension when parties turn towards force majeure text. This Note analyzes common law alternatives, discusses the implication of force majeure clauses as applied under Mexican and American law, highlights the implications that have played out in recent court decisions, and discusses post–pandemic implications that could affect how parties conduct cross–border transactions in the future.

Galaxy Next Gen. V. Elhert, Order On Counterclaim Defendants' Motion To Dismiss, Kelly Lee Ellerbe

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Hard Truths: Cracking Open The Case Of Whether Hard Seltzer Is Beer, Scott Fraser

University of Miami Law Review

Following the line of cases asking questions such as what is a chicken, and is a burrito a sandwich, comes the next deep legal issue, what is beer? How do we determine this seemingly simple question? Do we simply know it when we see (or taste) it? Does it require a mix of specific ingredients or certain processes? Or, if we should rely on definitions, do we look to the dictionary, history, or statutes? In a dispute in the United States District Court for the Southern District of New York, the court is asked to resolve this question. Courts have …

What A Waste! An Evaluation Of Federal And State Medical And Biohazard Waste Regulations During The Covid-19 Pandemic And Their Impact On Environmental Justice, Samantha Newman

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Evolution Of Chapter 11: How Corporate Restructuring Has Evolved And Its Important Role In The Recovery Of A Struggling Economy, Eduardo Cervantes

DePaul Business & Commercial Law Journal

No abstract provided.

Covid-19 Vs. Constitution; Limited Government's Unlimited Response, John A. Losurdo

DePaul Business & Commercial Law Journal

No abstract provided.

The "No License, No Chips" Policy: When A Refusal To Deal Becomes Reasonable, Sheng Tong

DePaul Business & Commercial Law Journal

No abstract provided.

The Dark Triad: Private Benefits Of Control, Voting Caps And The Mandatory Takeover Rule, Jorge Brito Pereira

DePaul Business & Commercial Law Journal

No abstract provided.

Foreseeability Conventions, John Fabian Witt, Morgan Savige

Cardozo Law Review

How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate …

The Scope Of Generic Choice Of Law Clauses, Tanya J. Monestier

Journal Articles

Non-proceduralists have the perception that questions of jurisdiction or choice of law are just preliminary issues that need to be dealt with before getting to the real dispute, the things that matter. What they do not realize is that these preliminary issues are often, themselves, the real dispute. They are the lever which permits litigation to proceed or which stops a claim dead in its tracks. Thus, these procedural matters — often dismissed as technicalities — have the potential to shape the dispute in significant ways.

Take for instance, a staple of commercial and consumer contracting: the ubiquitous choice of …

Just Kidding? The Problem Of Unenforceable Waivers Of Liability, Anthony J. Sebok

Articles

No abstract provided.

Bernard Parks, Et. Al. V. Kelly King, Et. Al., Ordr On Defendants' Motion For Summary Judgment And Motion To Dismiss, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

A “Duty To Write” Smart Contracts That Unsophisticated Users Have A “Duty To Read”, Chase Webber

Minnesota Journal of Law, Science & Technology

No abstract provided.

Galaxy Next Gen. V. Elhert, Order On Discovery Issues, Kelly L. Ellerbe

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Scaling Daos Through Fiduciary Duties, Alex Dolphin

BYU Law Review

DAOs (Decentralized Autonomous Organizations) are a unique type of business organization due in large part to their directly democratic governance structure. Owners of DAOs, “tokenholders,” do not delegate control to a board or a general partner. Rather, tokenholders directly control a DAO and must approve every action that a DAO takes. Because tokenholders do not delegate control to an agent, the principal-agent problem is tempered in DAOs. The principal-agent problem is the basis for the fiduciary duties that govern traditional business organizations. These fiduciary duties are meant to prevent agents entrusted with power by their principals from self-dealing. Some have …