Legal History Commons^™

Commerce, Commonality, And Contract Law: Legal Reform In A Mixed Jurisdiction, Christopher K. Odinet

Faculty Scholarship

This Article explores the tradition/reform dichotomy as it exists in certain jurisdictions that, because of their unique history and nature, are particularly susceptible to the struggle between legal tradition and legal reform — mixed jurisdictions. In order to more closely examine the tradition/reform dichotomy and its theoretical and practical effects, this Article analyzes the role that traditional legal institutions play in the legal reform process through the lens of America’s lone mixed jurisdiction — Louisiana.

By exploring Louisiana’s subtle, yet prevalent, anchor-like legal conundrum caused by the struggle between progress and tradition — the process of mooring oneself to existing …

Contract Law And Fundamental Legal Conceptions: An Application Of Hohfeldian Terminology To Contract Doctrine, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Reservations And The Cisg: The Borderland Of Uniform International Sales Law And Treaty Law After Thirty-Five Years, Ulrich G. Schroeter

Brooklyn Journal of International Law

No abstract provided.

Law In Ancient Egyptian Fiction, Russ Versteeg

Georgia Journal of International & Comparative Law

No abstract provided.

Sheppard V. Taylor, 5 Peters 675 (1831): Deception On The High Seas And The Quest For Lost Wages, Steven Zerhusen

Legal History Publications

This Article follows the case of the ship Warren, which set sail in 1806 to take part in illicit trade with the Spanish colonies, unbeknownst to all on board except for the supercargo. After dealing with the suicide of the captain and capture in Concepcion Bay, Chile, the crew languished for years in Spanish prison. After trying for almost 20 years the proceeds of the ship were finally returned to the owners, and the crew filed petition. Not until 1831 was their libel upheld, and wages from their voyage 25 years earlier to be paid to the crew. This article …

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Contract Law And The Hand Formula, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Rise And Fall Of Unconscionability As The 'Law Of The Poor', Anne Fleming

Georgetown Law Faculty Publications and Other Works

What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed "unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. …

Oral Will Contracts And The Statute Of Frauds In California, 1896-1980: A Summary And Evaluation , Marc P. Bouret

Pepperdine Law Review

There is no longer any certainty that one can successfully argue that purely oral mutual promises to bequeath property are unenforceable due to the Statute of Frauds. The author traces the trends in the oral will contract area during the past eighty years. He then analyzes various exceptions to the Statute of Frauds which have developed to allow oral will contracts to be enforced during the lifetime of the promisor, or more frequently after his or her death.

The Implications Of Alternative Dispute Resolution Processes For Decisionmaking In Administrative Disputes, Wallace Warfield

Pepperdine Law Review

No abstract provided.

The Unjustified Furor Over Securities Arbitration, Gilbert R. Serota

Pepperdine Law Review

No abstract provided.

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic approaches to …

Promise Etc., Gregory Klass

Georgetown Law Faculty Publications and Other Works

This Article examines the moral obligations contractual agreements generate. It distinguishes a narrow sense of "promise," central to autonomy theories, according to which to promise is to communicate an intention to undertake an obligation by the very communication of that intention. Not every agreement involves promises in this sense. Yet nonpromissory agreements too commonly generate moral obligations. And even when a party promises to perform, her promise need not be the only reason for her moral obligation to do so. Other possible reasons include reliance, an invitation to trust, implicit or explicit, principles of reciprocity, and the harm that nonperformance …

Contract And Dispossession, Deborah W. Post

Scholarly Works

This Essay, part of a collection of essays on the same theme, argues that contract law has become an instrument of oppression and dispossession rather than liberation. Having offered a critique, the challenge then is to consider whether it is possible to restore the liberatory potential of contract. The symposium, Post-Marxism, Post-Racialism & Other Fables of the Dispossession, was an invitation to consider the contemporary relevance of Marxist theory.

There are two reference points in this cultural critique. One is the importance of social position in a jurisprudence that embraces objectivity; the uncritical and unreflective reliance on hegemonic social …

Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy

Pepperdine Dispute Resolution Law Journal

This article identifies the basis and limits of the parties' abilities to define and enforce discovery in an ex ante contract. Despite the deficiencies of litigation, the free, public dispute resolution forum of the civil justice system provides significant value in commercial disputes. That value can be used to maximum mutual advantage only if parties replace the infinite discovery permitted in conventional litigation with the finite discovery contracted in Economical Litigation Agreement (ELA) litigation. This article will help parties to understand the benefit and enforceability of the ELA.

Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Bejamin F. Tennille, Lee Applebaum, Anne Tucker Nees

Pepperdine Dispute Resolution Law Journal

The assumed compatibility between ADR and specialized courts is largely unexamined. Without being able to statistically validate the motivations and preferences of individual disputants in a manner to draw generalized conclusions, this article examines the relationship between ADR and specialized business courts by looking at how the two are structurally intertwined through existing procedural rules and implementation practices. Part I of this article describes the foundational structures and concepts behind both ADR and specialized business courts, as well as the similarities and differences between them. Part II explores the existing formal structural relationship between ADR and specialized courts by examining …

Review Of Compact, Contract, Covenant: Aboriginal Treaty Making In Canada. By J.R. Miller., Sidney L. Harring

Great Plains Research: A Journal of Natural and Social Sciences (through 2013)

In Canada, the term First Nations explicitly recognizes a nation-to-nation relationship between the Crown and the original inhabitants of North America that requires treaty making as the primary political and legal process for the taking of Indian lands and the incorporation of Indian nations into the multinational Canadian state. There are great political difficulties embodied in this process, including the continued impoverishment and marginalization of the First Nations, and the repeated failure of successive Canadian governments to carry out their responsibilities under these treaties, but the treaty process remains the required process. J.R. Miller, perhaps Canada's leading scholar of Aboriginal …

The Productive Tension Between Official And Unofficial Stories Of Fault In Contract Law, Martha M. Ertman

Faculty Scholarship

Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of …

Expectation Damages The Objective Theory Of Contracts And The Hairy Hand Case A Proposed Modification To The Effect Of Two Classical Contract Law Axioms In Cases Involving Contractual, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Margae, Inc. V. Clear Link Technologies, Jonathan Goodman

NYLS Law Review

No abstract provided.

Right Of Publicity Licensing In A New Age: No Doubt V. Activision Publishing, Inc., Marta Baffy

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel Bently, Jane C. Ginsburg

Faculty Scholarship

The rise in the seventeenth and eighteenth centuries of a professional class of writers stimulated authors' demands for better remuneration from their writings. The increase in authors who sought to live from their work, rather than from patronage or personal fortune, likely provided at least one impulse for the author-protective provisions of the 1710 Statute of Anne. Under the regime of printing privileges that preceded the Statute of Anne, authors generally received from publisher-booksellers a one-time payment, made when the authors surrendered their manuscripts for publication. Authors whose works enjoyed particularly high demand might negotiate additional payments for new editions …

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Fault At The Contract-Tort Interface, Roy Kreitner

Michigan Law Review

The formative period in the history of contract and tort (in the second half of the nineteenth century) may be characterized by the cleavage of contract and tort around the concept of fault: tort modernized by moving from strict liability to a regime of "no liability without fault," while contract moved toward strict liability. The opposing attitudes toward fault are puzzling at first glance. Nineteenth-century scholars of private law offered explanations for the opposition, reasoning that alternative ideas about fault account for the different character of state involvement in enforcing private law rights: tort law governs liabilities imposed by law …

The Flight To New York: An Empirical Study Of Choice Of Law And Choice Of Forum Clauses In Publicly-Held Companies' Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cardozo Law Review

We study choice of law and choice of forum in a data set of 2,882 contracts contained as exhibits in Form 8-K filings by reporting corporations over as six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. These material contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. They therefore provide evidence of efficient ex ante solutions to contracting problems. In prior work examining merger contracts, acquiring firms incorporated in Delaware tended to select Delaware law or a Delaware forum to govern disputes …

The Law And The Host Of The Canterbury Tales, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein

Michigan Law Review

Modern law often rests on the assumption that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central distinction is one that holds parties in gratuitous transactions only to the standard of care that they bring to their own affairs, while insisting on the higher objective standard of ordinary care in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out in particular lines of business in effect warrant their ability …

Aging Out Of Foster Care: Enforcing The Independent Living Program Through Contract Liability, Jennifer Sapp

Cardozo Law Review

No abstract provided.

Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler

Faculty Working Papers

In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of expressive law, the law's articulation of a behavior can sometimes create self-fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated that …

The Enduring Legacy Of Wood V. Lucy, Lady Duff-Gordon, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

To mark the ninetieth anniversary of the decision, Pace University School of Law sponsored a Symposium, The Enduring Legacy of Wood v. Lucy, Lady Duff-Gordon, to reconsider the case and to appreciate the accomplishments of Lucy, Lady Duff-Gordon, who as Lucile, became one of the twentieth century's most innovative fashion designers. The Symposium brought together leading contracts scholars from as far away as Australia and England as well as experts on Lucile from the worlds of fashion, museums and fashion scholarship.

The Symposium examined legal issues raised by the decision through panels that focused upon: implication, interpretation and default terms; …