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Contract Law And The Liberalism Of Fear, Nathan B. Oman 2019 William & Mary Law School

Contract Law And The Liberalism Of Fear, Nathan B. Oman

Faculty Publications

Liberalism’s concern with human freedom seems related to contractual freedom and thus contract law. There are, however, many strands of liberal thought and which of them best justifies contract is a difficult question. In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller offer a vision of contract based on autonomy. Drawing on the work of Joseph Raz, they argue that extending autonomy should be the law’s primary concern, which requires that we extend the range of contractual choices available. While there is much to admire in their work, I argue that autonomy as conceived by Dagan and Heller …


Strangers In The Law: Lawyers' Law And The Other Legal Dimensions, Mauro Bussani 2019 University of Trieste, Italy

Strangers In The Law: Lawyers' Law And The Other Legal Dimensions, Mauro Bussani

Cardozo Law Review

Political and legal theories have long been takingfor granted the idea that law is the province of government and government recognized authorities, including the judiciary. They have concentrated on the processes and principles, by which the form and substance of State law are determined, implemented, and enforced. This law is what I will call official or State law. By contrast, many non-official sites of legal production have always existed and still exist (outside and) inside the West. These sites produce rules that may flourish indifferent to or in opposition to official law and take the settlement of disputes arising out …


Equal Protection Supreme Court Appellate Division Third Department, 2019 Touro University Jacob D. Fuchsberg Law Center

Equal Protection Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.


Due Process Supreme Court Appellate Division Third Department, 2019 Touro University Jacob D. Fuchsberg Law Center

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.


Due Process Supreme Court Appellate Division Second Department, 2019 Touro University Jacob D. Fuchsberg Law Center

Due Process Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.


Sharpening South Carolina's Blue Pencil: An Argument For Codifying A Strict Interpretation Of The Blue-Pencil Doctrine, Miranda B. Nelson 2019 University of South Carolina

Sharpening South Carolina's Blue Pencil: An Argument For Codifying A Strict Interpretation Of The Blue-Pencil Doctrine, Miranda B. Nelson

South Carolina Law Review

No abstract provided.


Split Derivatives: Inside The World's Most Misunderstood Contract, Dan Awrey 2019 Cornell Law School

Split Derivatives: Inside The World's Most Misunderstood Contract, Dan Awrey

Cornell Law Faculty Publications

Derivatives are the "bad boys" of modern finance: exciting, dangerous, and fundamentally misunderstood. These misunderstandings stem from the failure of scholars and policymakers to fully appreciate the unique legal and economic structure of derivative contracts, along with the important differences between these contracts and conventional equity and debt securities. This Article seeks to correct these misunderstandings by splitting derivative contracts open, identifying their constituent elements, and observing how these elements interact with one another. These elements include some of the world's most sophisticated state-contingent contracting, the allocation of property and decision-making rights, and relational mechanisms such as reputation and the …


Malaysia Historical Salvors Revisited:, John P. Given 2019 Loyola Marymount University and Loyola Law School

Malaysia Historical Salvors Revisited:, John P. Given

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.


A Commercial Law For Software Contracting, Michael L. Rustad, Elif Kavusturan 2019 Suffolk University Law School

A Commercial Law For Software Contracting, Michael L. Rustad, Elif Kavusturan

Washington and Lee Law Review

Since the 1980s, software is at the core of most modern organizations, most products and most services. Part II of this Article examines how the U.C.C. evolved as the primary source of law for the first generation of computer contracts during the mainframe computer era. Part III examines how courts have overextended U.C.C. Article 2, as the main source of law for software licensing, to the limits. Part IV argues that the ALI and the NCCUSL should propose a new Article 2B for software licensing. Part V recommends a new Article 2C for “software as a service.”


Mitigating Risk, Eradicating Slavery, Ramona Lampley 2019 St. Mary's University School of Law

Mitigating Risk, Eradicating Slavery, Ramona Lampley

Faculty Articles

For U.S. companies with forced labor or child labor in the supply chain, litigation is on the rise. This Article surveys the current litigation landscape involving forced labor in the supply chain. It ultimately concludes that domestic corporations that source from international suppliers should adopt the Model Contract Clauses drafted by the ABA Business Law Section Working Group to Draft Human Rights Protections in International Supply Contracts ("Working Group"). This Article traces the origins of cases involving supply chain forced labor, beginning with the early employee negligence cases that form the backdrop of existing case law and the cornerstone of …


Recovering Misdirected Trust Assets In The Face Of Torrens Indefeasibility, Alvin W. L. SEE 2019 Singapore Management University

Recovering Misdirected Trust Assets In The Face Of Torrens Indefeasibility, Alvin W. L. See

Research Collection Yong Pung How School Of Law

Where misdirected trust asset consists of, or becomes invested in,registered land, whether the beneficiary could recover it from the recipient isdoubtful given that the Torrens system, through the principle ofindefeasibility, effects a substantial reversal of the priority rules under thegeneral law. The key to unravelling the seemingly contradictory cases on thistopic is to be sensitive to the diversity in drafting and interpretation of thedifferent Torrens legislations, with particular focus on whether the principleof indefeasibility also protects registered volunteers. Through a comparative studyof the Torrens jurisdictions in Australia and Singapore, this article highlightshow the position differs from jurisdiction to jurisdiction and …


A Reformulated Test For Unconscionability, Vincent OOI, Walter YONG 2019 Singapore Management University

A Reformulated Test For Unconscionability, Vincent Ooi, Walter Yong

Research Collection Yong Pung How School Of Law

Apart from its interesting facts, this case, BOM v BOK [2018] SGCA 83, is significant for its rejection of a “broad” doctrine of unconscionability, the existence of which has been a matter of some debate in English law, and which has been accepted in Australia (see Commercial Bank of Australia Ltd v Amadio (1983) 151 C.L.R. 447; (1983) 46 A.L.R. 402). It also proposes a new test for the doctrine of unconscionability that is narrower than Amadio, based on the requirements inCresswell v Potter [1978] 1 W.L.R. 255. The test for unconscionability in English law has been a matter of …


Liquidated Damages: An Analysis Of Their Use And Effectiveness, Alfredo N. Aragon 2019 California Polytechnic State University, San Luis Obispo

Liquidated Damages: An Analysis Of Their Use And Effectiveness, Alfredo N. Aragon

Construction Management

A construction company’s success and/or failure is dependent upon project completion with respect to time and budget. Failure to meet the contract completion date results in a loss of profit for owners and contractors alike. In order to help mitigate project delays, liquidated damage clauses have been included into construction contracts. Incorporating provisions within the construction contracts in the form of liquidated damages aims to help shift the financial burden when there is a failure to meet contractual obligations, hopefully offering quick compensation for delays. Unlike general or actual damages, liquidated damages are pre-defined and agreed upon prior to entering …


Impact Transaction - Using Collective Impact Relational Contracts To Redefine Social Change In The Urban Core, Patience A. Crowder 2019 University of Denver Sturm College of Law

Impact Transaction - Using Collective Impact Relational Contracts To Redefine Social Change In The Urban Core, Patience A. Crowder

Tennessee Journal of Race, Gender, & Social Justice

Called a “protest anthem” for urban America, Inner City Blues, the final single from R&B artist Marvin Gaye’s award-wining album What’s Going On, documents American urban life by detailing the systemic barriers to economic independence and social equality that plagued urban residents and the impact of these barriers on their daily lives. The song (and album) were released in 1971 as Gaye’s journalistic exploration of the poverty-induced challenges and frustrations of urban life. Almost fifty years later, unfortunately, not much has changed. This is because the operation of law in urban communities historically not been designed to work for …


Preface, Peter L. Strauss 2019 Columbia Law School

Preface, Peter L. Strauss

Chicago-Kent Law Review

No abstract provided.


The Use Of Soft Law In The Creation Of Legal Norms In International Commercial Law: How Successful Has It Been?, Henry Deeb Gabriel 2019 Elon University

The Use Of Soft Law In The Creation Of Legal Norms In International Commercial Law: How Successful Has It Been?, Henry Deeb Gabriel

Michigan Journal of International Law

In this Article, I examine several interrelated points. After defining soft law in Part II, I briefly set out some of the assumed advantages soft law instruments may have over legislation and regulations in Part III. In Part IV, I examine why some soft law instruments in international commercial law have been successful in creating international legal norms. In this Part, I specifically examine the UNIDROIT Principles of International Commercial Contracts to show how one might gauge success by looking beyond the express purpose of the instrument. I also compare the UNIDROIT Principles of Commercial Contracts with the American Law …


The Visual Artists Rights Act's "Recognized Stature" Provision: A Case For Repeal, Drew Thornley 2019 Stephen F. Austin State University

The Visual Artists Rights Act's "Recognized Stature" Provision: A Case For Repeal, Drew Thornley

Cleveland State Law Review

Using as a case study the recent “5Pointz” litigation, a case involving visual artists’ moral-rights claims to graffiti they drew on a piece of private property in Queens, New York, this article examines the threat that Visual Artists Rights Act (VARA)’s grant to visual artists of the right “to prevent any destruction of a work of recognized stature” poses to common-law property and contract rights. This article advances the argument that the default legal rule should be that the rights of property owners (real or personal), including the right to destroy such properties, trump any moral rights that visual artists …


Offshore Drilling: Combating Regulatory Uncertainty With Contract Law Protection, Jordan M. Steele 2019 Brooklyn Law School

Offshore Drilling: Combating Regulatory Uncertainty With Contract Law Protection, Jordan M. Steele

Brooklyn Journal of Corporate, Financial & Commercial Law

Offshore drilling accounts for billions of dollars in tax revenue every year. It is a pillar of the energy industry and is crucial to the economy. A recent flurry of deregulation, accelerating with the arrival of the Trump administration, highlights the tremendous impact politics has upon the profitability of this sector. The Secretary of the Interior, under the direction of the President, wields the power to regulate and make determinations into where, when, and how private companies can drill offshore. These private companies have contracts with the government for the opportunity to produce and develop oil or gas on the …


Planned Obsolescence And Consumer Protection: The Unregulated Extended Warranty And Service Contract Industry, Larry A. DiMatteo, Stefan Wrbka 2019 University of Florida

Planned Obsolescence And Consumer Protection: The Unregulated Extended Warranty And Service Contract Industry, Larry A. Dimatteo, Stefan Wrbka

Cornell Journal of Law and Public Policy

This Article analyzes the billion-dollar market, mostly unregulated, for Extended Warranties and Service Contracts (EWSCs). EWSCs are ubiquitous in the modern marketplace, offered at every automobile dealership, electronics and appliance store either by a salesperson or the cashier. Incredibly, there is little legal scholarship in this important area where manufacturer-sellers often overreach by preying on consumer vulnerabilities. It will be argued that most sales of EWSCs result in price gouging due to informational asymmetry and behavioral manipulation. This Article looks at two core concepts that are inexorably interconnected- one in the legal world and the other in the world of …


Online Terms As In Terrorem Devices, Colin P. Marks 2019 University of Maryland Francis King Carey School of Law

Online Terms As In Terrorem Devices, Colin P. Marks

Maryland Law Review

Online shopping has quickly replaced the brick-and-mortar experience for a large portion of the consuming public. The online transaction itself is rote: browse items, add them to your cart, and check out. Somewhere along the way, the consumer is likely made aware of (or at least exposed to) the merchant’s terms and conditions, via either a link or a pop-up box. Such terms and conditions have become so ubiquitous that most consumers would be hard-pressed to find a merchant that doesn’t try to impose them somewhere on their website. Though such terms and conditions are pervasive, most consumers do not …


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