Contracts Commons^™

Pricing Contract Terms In A Crisis: Venezuelan Bonds In 2016, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena

Faculty Scholarship

As of this writing in June 2016, the markets are predicting Venezuela to be on the brink of default. On June 1, 2016, the 6 month CDS contract traded at about 7000bps which translates into a likelihood of default of over 90%. Our interest in the Venezuelan crisis is that its outstanding sovereign bonds have a unique set of contractual features that, in combination with its near-default status, have created a natural experiment. This experiment has the potential to shed light on one of the long standing questions that sits at the intersection of the fields of law and finance, …

The Will As An Implied Unilateral Arbitration Contract, E. Gary Spitko

Faculty Publications

A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator’s provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by her contest, seeks to increase her inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that the will is not a contract and the opposition to enforcement of …

Need For Informed Consent In The Age Of Ubiquitous Human Testing, Caitlyn Kuhs

Loyola of Los Angeles Law Review

No abstract provided.

Zygote Zeitgeist: Legal Complexities In The Expanding Practice Of Embryo Donation, Noah Geldberg

Loyola of Los Angeles Law Review

In recent decades, individuals and couples facing the issue of infertility have been able to achieve parenthood through advances in assisted reproductive technology (ART), such as embryo donation. This Article evaluates the current law governing embryo donation, considers the different approaches courts and legislatures have taken to regulate embryo donation, and advocates for an approach that best balances the policy arguments underlying those approaches. Ultimately, this Article argues that contract law, rather than laws surrounding adoption, should govern embryo donations. This Article further argues that state legislatures should clarify the effectiveness of contract law within the field of embryo donation …

Modernizing Informed Consent: Expanding The Boundaries Of Materiality, Nadia N. Sawicki

Faculty Publications & Other Works

Informed consent law’s emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician’s personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, …

Contracts: A Question Of Consideration: Medical Staff Bylaws As An Enforceable Contract—Medical Staff Of Avera Marshall Regional Medical Center V. Avera Marshall, Alexander Hsu

Mitchell Hamline Law Review

No abstract provided.

Panel 1: Issues In The U.S. For Chinese Businesses, Cindy Yang, Jamie D. Underwood, Mark Cohen

Cardozo Journal of International and Comparative Law

The symposium examines the bidirectional intellectual property (IP) challenges between the U.S. and China, highlighting that while Chinese businesses face significant IP issues in the U.S., American companies also encounter complexities in China. The discussion emphasizes the evolving nature of IP litigation in both countries, with a focus on fashion and brand protection. Panelists provide insights into strategies for navigating these challenges, including the use of design patents, trademarks, and trade dress, as well as the role of administrative bodies like the U.S. International Trade Commission (ITC).

Kcon Xi Essay Introduction: Compulsory Arbitration And Adhesion Contracts In The Age Of Donald Trump, Peter Linzer

St. Mary's Law Journal

Remarks of Peter Linzer on receiving the Lifetime Achievement Award from the 11th International Contracts Conference (K-CON XI). Revised after Election Day, 2016.

The Cfpb Anti-Arbitration Proposal: Let's Just Give Arbitration A Chance., Ramona L. Lampley

St. Mary's Law Journal

Abstract forthcoming.

An App For Third Party Beneficiaries, Alexandra W. Cook, J. Kyle Lowder, Michelle Sonntag

Law Student Publications

Every year, more than 100 reported court opinions consider the question of whether an outsider can sue for damages under a contract made by others-in part because the law is so ambiguous. While contract enforcement by a third party is controlled largely by the facts of the particular case, it also materially depends upon the relevant legal standards. At present, not just the standards, but also the reasons for these standards, are unclear. Eighty years ago, Lon Fuller, a professor teaching contracts at a then-Southern law school, and William Perdue, a student at that school, significantly clarified and improved decision …

El Nuevo Pacto Protestante: La Influencia De La Teología Protestante En El Derecho De Bienes Y Contratos, Brian Mccall

Faculty Books and Book Chapters

Es imposible disociar la moral (o la ética) de la doctrina teológica. Como Richard Weaver explicó en el pasado siglo, las ideas tienen consecuencias. Por lo tanto, un cambio de doctrina teológica irá inevitablemente acompañado por un cambio en las normas que gobiernan la conducta. Dado que la ley humana es relativa a los usos y costumbres de la comunidad para la cual se dicta y se desarrolla a la luz de aquéllos, tales cambios terminarán abriéndose paso en las leyes. Después de quinientos años, las nuevas doctrinas del protestantismo han producido sus efectos sobre la moral y el derecho. …

Sovereign Debt: Now What?, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

The sovereign debt restructuring regime looks like it is coming apart. Changing patterns of capital flows, old creditors’ weakening commitment to past practices, and other stakeholders’ inability to take over, or coalesce behind a viable alternative, have challenged the regime from the moment it took shape in the mid-1990s. By 2016, its survival cannot be taken for granted. Crises in Argentina, Greece, and Ukraine since 2010 exposed the regime’s perennial failures and new shortcomings. Until an alternative emerges, there may be messier, more protracted restructurings, more demands on public resources, and more pressure on national courts to intervene in disputes …

Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting, Patrick Myers

University of Michigan Journal of Law Reform

Websites and mobile applications provide immeasurable benefits to both users and companies. These services often collect vast amounts of personal information from the individuals that use them, including sensitive details such as Social Security numbers, credit card information, and physical location. Personal data collection and dissemination leave users vulnerable to various threats that arise from the invasion of their privacy, particularly because users are often ignorant of the existence or extent of these practices. Current privacy law does not provide users with adequate protection from the risks attendant to the collection and dissemination of their personal information. This Note advocates …

Scratching The Seven-Year Itch: A Call To Reform California Labor Code Section 2855(B), Alyssa Kaplun

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Introductions, Matthew Diller

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Content Creators, Virtual Goods: Who Owns Virtual Property?, Kenneth W. Eng

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

Open Sesame: The Myth Of Alibaba's Extreme Corporate Governance And Control, Yu-Hsin Lin, Thomas Mehaffy

Brooklyn Journal of Corporate, Financial & Commercial Law

In September 2014, Alibaba Group Holding Limited (Alibaba) successfully launched a $25 billion initial public offering (IPO), the largest IPO ever, on New York Stock Exchange. Alibaba’s IPO success witnessed a wave among Chinese Internet companies to raise capital in U.S capital markets. A significant number of these companies have employed a novel, but poorly understood corporate ownership and control mechanism—the variable interest entity (VIE) structure and/or the disproportional control structure. The VIE structure was created in response to the Chinese restriction on foreign investments; however, it carries the risk of being declared illegal under Chinese law. The disproportional control …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Journal of Law and Policy

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science, and commerce. These two cases exemplified the debate regarding domestic surrogacy—a debate that has now been raging for decades. A new ethical and legal debate …

Personal Injury Victims As Insurance Collection Agents: Erisa Preemption Of State Antisubrogation Laws, Jonathan P. Connery

Journal of Law and Policy

The Employee Retirement Income Security Act (ERISA) was enacted in 1974 to protect the pension rights of employees nationwide. However, due to its broad preemptive powers, ERISA has since developed into a tool used by health insurers to recover millions of dollars in tort damages meant to benefit employees with ERISA health plans. This practice, known as subrogation, has been met with legislative backlash in the form of state antisubrogation statutes, which attempt to limit the enforceability of subrogation clauses found in almost all ERISA health plans. However, many courts have held that ERISA preempts these antisubrogation statutes, thereby affirming …