Contracts Commons^™

Turning Wisconn Valley Into The Next Silicon Valley: Reforming Wisconsin Non-Compete Law To Attract High-Tech Employers, Kelly Krause

Marquette Law Review

The July 2017 arrival of Taiwanese tech-giant Foxconn and the

establishment of the Wisconn Valley Science and Technology Park in Wisconsin

reflects a larger trend in the United States to reinvent the nation’s

manufacturing economy with high-tech production. High-tech employers have

substantial interests in retaining employees in order to protect their valuable

proprietary information and market share. Non-compete agreements, also

known as restrictive covenants or covenants not to compete, are often the legal

device used to secure these interests. This Comment argues that to attract and

retain employers in the tech industry, Wisconsin should reform its non-compete

law by adopting …

American V. British Rule: The Impact Of James G. Davis Construction Corp. V. Hrgm Corp. On Fee-Shifting Provisions In The Maryland And D.C. Area, Maxwell Terhar

American University Business Law Review

No abstract provided.

The Singapore Convention And The Metamorphosis Of Contractual Litigation, Jean-Christophe Boulet

Cardozo Journal of Conflict Resolution

This article addresses the grounds provided for in Article 5 of the Singapore Convention for the refusal of enforcement of a settlement agreement or for the refusal of a settlement agreement as evidence that the dispute has been resolved. It is divided into three sections. The first section briefly places these grounds in the context of the Singapore Convention as a whole as well as the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The second section is devoted to a more detailed examination of the various grounds listed in Article 5 of the Convention, …

Inclusion Riders And Diversity Mandates, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

In this piece, I situate these sorts of diversity requests within the broader context of other customer/client preferences that implicate Title VII. To be sure, the “inclusion riders” are not literal customer/client requests, but rather requests from celebrities who are themselves being hired by the employer for a specific project. Broadly speaking, however, they raise the same legal issue regarding third-party preferences that implicate protected characteristics under Title VII.

As a starting point, the general rule within employment discrimination law is that customer preferences cannot justify discriminatory treatment by employers. That baseline has led courts to rule that employers cannot, …

Contracting For Human Rights: Looking To Version 2.0 Of The Aba Model Contract Clauses, Sarah Dadush

American University Law Review

No abstract provided.

Private Law Remedies, Human Rights, And Supply Contracts, Jennifer S. Martin

American University Law Review

No abstract provided.

How To Design And Conduct Negotiation Simulations In Contract Drafting, Naveen Thomas

Faculty Scholarship

No abstract provided.

Online Terms As In Terrorem Devices, Colin P. Marks

Faculty Articles

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 hardpressed 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 …

Why Police Should Protect Complainant Autonomy, Randall K. Johnson

Faculty Works

This Essay does its work in, at least, three ways. First, it encourages better use of scarce public sector resources by calling for reform of the police complaint intake process. Next, this Essay identifies the causes of police complaint inefficiencies by critically-assessing how intake is done by the Chicago Police Department (CPD). Lastly, it provides guidance about how to achieve CPD intake reform by better protecting complainant autonomy. Complainant autonomy, at least in this Essay, is defined as a real party in interest’s (i.e. an injured citizen’s) right to control how its allegations are framed by a nominal plaintiff (i.e. …

Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo

UF Law Faculty Publications

This article investigates the values and latent policies, which have shaped the development of Chinese law in the area of the availability of specific performance (SP) as a contractual remedy. The National People’s Congress (Legislature) and Supreme People’s Court in China have addressed the remedial structure of Chinese contract law, namely, the availability of the remedy of SP as opposed to the awarding of damages-only. The law is clear that the remedies of SP and damages are ordinary remedies that a claimant is free to choose between. The question that is confronted in this article is whether in practice the …

Contract Interpretation Enforcement Costs: An Empirical Study Of Textualism Versus Contextualism Conducted Via The West Key Number System, Joshua M. Silverstein

Law Faculty Scholarship

This Article sets forth an empirical study of a central issue in the judicial and academic debate over the optimal method of contract interpretation: Whether “textualism” or “contextualism” best minimizes contract enforcement costs. The study measured enforcement costs in twelve ways. Under each of those measures, there was no statistically significant difference in the level of interpretation litigation between textualist and contextualist regimes. Accordingly, the study finds no support for either the textualist hypothesis that contextualism has higher enforcement costs or the contextualist counter-hypothesis that textualism has higher enforcement costs.

The study herein was conducted via the West Key Number …

Fingerprints: An Impressionistic And Empirical Evaluation Of Richard Posner’S Impact On Contract Law, Jeffrey L. Harrison

UF Law Faculty Publications

Richard Posner’s retirement after 36 years on the federal bench presents an ideal opportunity to reflect on his sometimes controversial career as a scholar and a judge. Since his principal scholarly work, Economic Analysis of Law, has been cited in legal scholarship over 7500 times a good working hypothesis is that his impact on law has been substantial. This article considers his impact on contract law. Two lines of research were conducted: one line explores the impact of Judge Posner’s scholarly writings on judicial opinions; the other line examines the impact of his opinions on other courts.

The Good, The Bad, And The Ugly Of Online Reviews: The Trouble With Trolls And A Role For Contract Law After The Consumer Review Fairness Act, Wayne Barnes

Faculty Scholarship

The advent of the Internet has brought innumerable innovations to our lives. Among the innovations is the meteoric rise in the volume of e-commerce conducted on the Internet. Correspondingly, consumer-posted information about merchants, goods, and services has also begun to be a rich source of information for consumers researching a purchase online. This information takes many forms, but a major category is the narrative review describing the purchase and experience. Such reviews are posted on websites such as Yelp, Amazon and TripAdvisor, on apps, and on social media such as Facebook and Twitter. The amount and volume of reviews has …

To Recognize Or Not? Good Faith Under Nigerian Law Of Contract, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

Unlike jurisdictions such as Canada and the United Kingdom, Nigerian courts have not engaged with the doctrine of good faith. Similarly, there is a dearth of academic scholarship that examines this aspect of the Nigerian law of contract. In this paper, I examine how the Nigerian courts have operationalized the common law of good faith in the performance of contracts. Rather than suggest that good faith as “an organizing principle” has an internally consistent meaning by which we can transplant the doctrine from one jurisdiction to another, or even apply the so-called duty of honest performance as enunciated by the …

Contract Damages, Moral Agency, And Henry James’ The Ambassadors, Jennifer Nadler

Articles & Book Chapters

This paper enters the dispute over the proper interpretation of the expectation measure of damages in contract law. Should damages be measured by the plaintiff’s financial loss or by the cost of acquiring a substitute performance (“cost of cure”)? I begin by presenting a moral (as opposed to an economic or a pragmatic) justification for the traditional contract principle that a plaintiff has a right to compensation for the financial loss flowing from breach but no right to performance. I do so by showing that implicit in the principle that the plaintiff has a right to compensation for financial loss …

Dartmouth College V. Woodward And The Structure Of Civil Society, Ernest A. Young

Faculty Scholarship

No abstract provided.

Ideology And Argument Construction In Contract Law, Michael Fischl

Faculty Articles and Papers

I will offer an extended illustration of the demystification link here and will focus on promissory estoppel, a doctrine that receives sustained attention in the typical US Contracts class and has been the focus of a great deal of scholarship, critical and otherwise, for decades. Following this introduction, the essay proceeds in two parts. In Part II, I introduce promissory estoppel the way I do in my classes, contrasting mainstream, legal realist, and critical ‘stories’ about the history and role of the doctrine in American contract law. I warn my students – as I am warning readers here – that …

Decoding Smart Contracts: Technology, Legitimacy, & Legislative Uniformity, Jared Arcari

Fordham Journal of Corporate & Financial Law

Blockchain technology is increasingly permeating the everyday lives of countless people. Applications of the cutting-edge technology range from secured banking to tracking mortgage titles. A particular blockchain technology, dubbed “smart contracts,” has the potential to revolutionize how individuals and companies securely contract with each other. Smart contracts, however, are not widely employed, mainly because potential users are uncertain of their enforceability as contracts under existing state contract laws. Similar skepticism slowed the acceptance of electronic signatures in the late 1990s, but was resolved ultimately through a model uniform act recognizing electronic signatures’ effectiveness across interstate borders. This Note proposes a …

Art In The Age Of Contractual Negotiation, Christopher G. Bradley, Brian L. Frye

Law Faculty Scholarly Articles

This paper explores the function and purpose of the Artist’s Contrast as a legal document—but not from the perspective of legal enforceability, which is how legal effectiveness is traditionally measured. Rather this paper tells the story of a document that relies upon hallmarks of law (legal language, formality, specificity, and so on) in order to express and attempt to consolidate particular views on artists, artworks, the collectors to whom they sell, and the markets in which they sell. This powerful connection inevitably continues past the moment of sale, and the Artist’s Contract can be read as an attempt to rearrange …

Not From Guile But From Entitlement: Lawful Opportunism Capitalizes On The Cracks In Contracts, Gastón De Los Reyes Jr., Kirsten Martin

Buffalo Law Review

Few concepts have been more pivotal to contract law scholarship over the last forty years than the opportunism attributed ex ante and ex post to contracting parties, yet the lawful form of opportunism identified by Nobel Laureate Oliver Williamson in 1991 remains surprisingly overlooked in favor of the blatant forms of opportunism that result from “self-interest seeking with guile.” This Article extends Williamson’s inchoate account of lawful opportunism and reports the first empirical study of the phenomenon.

The conceptual analysis of lawful opportunism is developed with reference to the bargaining underlying the classic impossibility decision, Taylor v. Caldwell. Three component …