Contracts Commons^™

“What’S Past Is Prologue”: The Story Of The Sale Of The University Of Puget Sound School Of Law To Seattle University, Annette E. Clark

Seattle University Law Review

When the Seattle University Law Review editorial staff invited me to write an updated history of the Seattle University School of Law in honor of our 50th anniversary, I planned to start the narrative with the year 1989, which was where the prior written history (authored by former Law Library Director Anita Steele and published by the Law Review) had left off. It also happens to be the year when I graduated from this law school and joined the tenure-track faculty, so 1989 seemed like a propitious place to begin. However, as I began to do the research necessary to …

A Path Forward: Litigating The Treaty-Based Claims Of Children Sexually Abused In The Indian Health Service System, Peter B. Janci, Stephen F. Crew, Zachary Pangares

Seattle University Law Review

In 1855, representatives for the United States traveled to the Great Plains with orders to seek peace with Blackfoot Nation so the westward expansion of “civilized” white settlers could continue without interruption. After weeks of negotiations, the United States plan materialized. The terms of these promises were memorialized on October 17, 1855, in a treaty between the United States government and Blackfoot Nation.

One hundred and sixty-seven years later, representatives for the United States and the Blackfoot Nation convened in Rapid City, South Dakota to discuss the U.S. government’s breach of the treaty’s terms. Eight Native men, including three from …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Blood On The Tracks, Thomas D. Russell

Seattle University Law Review

Streetcars were the greatest American tortfeasors of the early twentieth century, injuring approximately one in 331 urban Americans in 1907. This empirical study presents never-before-assembled data concerning litigation involving streetcar companies in California during the early twentieth century.

This Article demonstrates the methodological folly of relying upon appellate cases to describe the world of trial court litigation. Few cases went to trial. Plaintiffs lost about half their lawsuits. When plaintiffs did win, they won very little money. Regarding the bite taken out of the street railway company, the Superior Court was a flea.

Professor Gary Schwartz and Judge Richard Posner …

The Shape Of Consumer Contracts, Andrea Boyack

Faculty Publications

Modern consumer contracts are the bane of contract law and theory. Freedom of contract justifications are premised on party autonomy and transactional efficiency, but theories justifying contract enforcement fail to explain why the law should treat company-crafted terms as presumptively binding on consumers. Consumer protection advocates point out that lower thresholds for manifesting assent endorsed by the recent Restatement of the Law of Consumer Contracts may result in consumers being bound to terms of which they were reasonably unaware. Other scholars point out that mere knowledge of company terms and conditions does almost nothing to protect consumers in any case …

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch

Seattle University Law Review

Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity, and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …

America’S Hidden Citizens: The Untold Stories Of The Unconscionable Deportations Of Its International Adoptees, Halley Cody

Seattle University Law Review

This Note addresses how the U.S. should rectify the harms it has perpetrated on non-citizen adoptees by amending the current deportation statutes to prevent their deportation. Part I addresses the history of adoption in the U.S. and related effects on immigration law. Part II highlights the stories of Adam Crapser and Philip Clay, who were adopted by American families who failed to naturalize them as minors, and who were subsequently deported after they sustained criminal records. Part III examines the policy goals behind deportation as a consequence of criminal convictions, as well as remedies instituted to prevent unwarranted deportation and …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks

Faculty Articles

Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world's largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland's biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan's Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG, which lost $5.5 billion. Archegos itself lost $20 billion over two days. The unique characteristics of total return swaps and …

How Reputational Nondisclosure Agreements Fails (Or, In Praise Of Breach), Mark Fenster

UF Law Faculty Publications

Investigative reporters and the #MeToo movement exposed the widespread use of nondisclosure agreements intended to maintain confidentiality about one or both contracting parties’ embarrassing acts. These reputational NDAs (RNDAs) have been widely condemned and addressed in the past half-decade by legislators, activists, and academics. Their exposure, often via victims’ breaches, revealed a curious and distinct dilemma for the non-breaching party whose reputation is vulnerable to disclosure. In most contracts, non-breaching parties might choose to forgo enforcement because of the cost and uncertain success of litigation and the availability of other pathways to a satisfactory resolution. Parties to a RNDA, by …

Critical Theory & Commercial Law In The Sunshine, Christopher D. Hampson

UF Law Faculty Publications

In recent years, Florida and other states have attempted to expel critical legal theory, critical race theory, and all things “woke” from their institutions of higher education. At a time of professional cautiousness and chilled speech, this Essay aims to bring these ideas into the sunshine. I provide a rough background on critical theory and how it helps make sense of commercial law, including Contracts and Bankruptcy, two courses I teach at the University of Florida. Critical theory can help students learn how to navigate complex systems of laws, analyze the policy implications of legal rules, and represent their future …

Deconstructing Employment Contract Law, Rachel Arnow-Richman, J.H. Verkerke

UF Law Faculty Publications

Employment contract law is an antiquated, ill-fitting, incoherent mess. But no one seems inclined to fix this problem. Employment law scholars, skeptical of employees’ ability to bargain, tend to disregard contract law and advocate for just-cause and other legislative reforms to eliminate at-will employment. And contracts scholars largely ignore employment cases—viewing them, with some justification, as part of a peculiar, specialized body of law wholly divorced from general contract jurisprudence. As a result of this undesirable employment law exceptionalism, courts lack the tools needed to resolve recurring disputes.

This Article offers a new, comprehensive historical account that exposes the formalistic …

Is "Public Company" Still A Viable Regulatory Category?, George S. Georgiev

Articles

This Article suggests that the ubiquitous "public company" regulatory category, as currently constructed, has outlived its effectiveness in fulfilling core goals of the modern administrative state. An ever-expanding array of federal economic regulation hinges on public company status, but "public company" differs from most other regulatory categories in that it requires an affirmative opt-in by the subject entity. In practice, firms today become subject to public company regulation only if they need access to the public capital markets, which is much less of a business imperative than it once was due to the proliferation of private financing options. Paradoxically, then, …

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

The Failure Of Market Efficiency, William Magnuson

Faculty Scholarship

Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, …

Floating Liens Over Crypto-In-Commerce, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

Commercial law and crypto are colliding. Against the backdrop of explosive growth (and discord) in the digital asset market, there has been a series of recent revisions to American commercial law aimed at addressing new and emerging technologies. These changes to the Uniform Commercial Code (UCC) are designed to facilitate the buying and selling of digital assets as well as their use as collateral. However, to date, the literature exploring these changes has mainly focused on understanding the basics of the new regime. This Essay moves beyond that baseline by showing how the UCC amendments can be used to structure …

Race & International Investment Law: On The Possibility Of Reform And Non-Retrenchment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime’s foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. These critical scholars warn of the imminent reproduction and entrenchment of the systemic inequities, power asymmetries, and investment law’s investor-state dispute settlement (ISDS) regime which is skewed against post-colonial host states. The …

Contract Law Should Be Faith Neutral: Reverse Entanglement Would Be Stranglement For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Faculty Articles

The first section of this Article will outline the ways in which communities—religious and other groups, including the LGBTQ+ community—have used and continue to use private law to achieve meaningful dispute resolution. By diminishing the role of civil courts to review arbitrations, parties may tailor their resolutions to prioritize community values that may be misaligned with secular society. Outside of historical religious usage, private law offers a field ripe for jurisprudential growth. Through alternative dispute resolution, affinity-based minority groups can pave an avenue towards justice which accurately reflects the unique values of their lived experiences.

The second section will provide …

Nfts Rescue Resale Royalties? The Wonderfully Complicated Ability Of Nft Smart Contracts To Allow Resale Royalty Rights, Michael D. Murray

Law Faculty Scholarly Articles

Resale royalty rights (also known by the French phrase, droit de suite or “right of continuation” rights) give artists a right to participate in the proceeds realized from the resale of their works. According to DuBoff, “[w]hile copyright laws give the creator of a work the right to control eproduction of the work, many visual artists do not benefit as directly as print authors do from this aspect of copyright protection.” Unlike print authors, who derive their primary economic return on a literary work through the sale of multiple copies, visual artists receive most of their economic returns from the …

Standard Licensing Template For University Of Akron Startups, Drew Horton

Williams Honors College, Honors Research Projects

In order to facilitate fast, equitable, and effective sublicensing to University of Akron technology startups, spinoffs, and spinouts, an express license was developed. This expresses license was developed by benchmarking existing terms in order to determine market rates. Universities, venture capital firms, and nonprofits were interviewed in order to establish a set of best practice guidelines for the creation of the express license. These results were then tabulated and statistically analyzed in order to determine a series of startup friendly terms that support the University of Akron’s interests. A series of express licenses were then developed from this data. These …

How A Professional Describes Reasons For Working In And Ultimately Leaving The Foster Care Field In The State Of Missouri: A Case Study, Lauren Williams

Graduate Theses/Dissertations

The foster care field continues to have a high turnover rate of the professionals working in the field. While support and work balance are available for some professionals, many face the challenges of heavy workloads, unrealistic expectations, and health sacrifices that lead to many professionals leaving the field. This case study of one former foster care professional’s description of reasons they worked in the field, and reasons they ultimately left the field provides insight of the challenges and support as a foster care professional. The findings of this study are organized into three major themes including “Challenges for Foster Care …

Oppression In American, Islamic, And Jewish Private Law, Rabea Benhalim

University of Colorado Law Review

American, Islamic, and Jewish law all limit the enforcement of private law agreements incases of oppression and exploitation. But each system uses a different justification. The common thread among the three legal systems is the opposition from jurists to enforce contracts with a fundamental aspect of oppression. The reasoning for preventing oppression within the law is distinct to each legal system. The American legal system roots the justification in preserving free will and ensuring actual consent to contract. Islamic l provides justifications based on the divine vision for an equitable and just society articulated in the Quran. Jewish law argues …

Impossibility And Frustration, Jennifer Nadler

All Papers

No abstract provided.

Undoing Undue Influence: How The Doctrine Can Avoid Judicial Subjectivity By Omitting The Vulnerability Element, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

The utility of the doctrine of undue influence has been declining for several decades because of its inclusion of the element of vulnerability or, put another way, inquiry into the mind of the one allegedly being influenced. I argue that the courts’ inquiry into the mind of the influencee to determine whether this person was vulnerable is not a useful construct as an element of the doctrine. This Article addresses three contexts in which assessing one’s vulnerability is problematic: (1) in the contract formation process occurring in the general population (meaning not within a high-control group), such as the …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Redemption, Marissa Jackson Sow

Law Faculty Publications

In 1987, civil rights activist and widow of the Rev. Dr. Martin Luther King, Jr., Coretta Scott King, sued Boston University for approximately 83,000 letters and other documents deposited by her late husband at the University from 1964 to 1965. Dr. King, a Boston University alumnus, chose to house his documents at Boston University over other institutions based on the belief that the documents would be safest there. He stipulated with the University that he was simply giving over custody of the letters, and not ownership thereof; however, he further stipulated that in the event of his death, all documents …

Martins V. Bridgestone Americas Tire Operations, 266 A.3d 753 (R.I. 2022)., Keith Lefevre

Roger Williams University Law Review

No abstract provided.

Rational Contract Design, Naveen Thomas

Faculty Scholarship

No abstract provided.