Contracts Commons^™

Incorporating Legal Claims, Maya Steinitz

Notre Dame Law Review

Recent years have seen an explosion of interest in commercial litigation funding. Whereas the judicial, legislative, and scholarly treatment of litigation finance has regarded litigation finance first and foremost as a form of champerty and sought to regulate it through rules of legal professional responsibility (hereinafter, the “legal ethics paradigm”), this Article suggests that the problems created by litigation finance are all facets of the classic problems created by “the separation of ownership and control” that have been a focus of business law since the advent of the corporate form. Therefore, an “incorporation paradigm,” offered here, is more appropriate. “Incorporating …

The Contractual Family: The Role Of The Market In Shaping Family Formations And Rights, Deborah Zalesne

Cardozo Law Review

Even with federal recognition of marriage equality and the increasing number of states that allow same-sex marriage, marriage is not available or not desirable to everyone. Yet marriage remains a prerequisite to many legal protections. Despite the popularity and prevalence of alternative reproductive technologies (ART) as a means of having a child when natural childbirth is not feasible, biology similarly remains a prerequisite to many legal protections and rights over one's children. Within this paradigm, the ever-growing number of families and couples not fitting the traditional mold are forced to search other areas of the law, such as contract law, …

Offer And Acceptance In Modern Contract Law: A Needless Concept, Shawn J. Bayern

Scholarly Publications

The fundamental law of contract formation has retained the formalistic character of classical contract law. The offer-and-acceptance paradigm fits poorly with modern contracting practice, and it obscures and complicates contract doctrine. More importantly, extending it threatens to produce undesirable results. Instead of the offer-and-acceptance paradigm, this Essay proposes that contract formation be analyzed using the same general interpretive inquiry that governs other questions concerning the intent of contracting parties.

Analyzing the processes of contract formation in this manner points the way toward a further-reaching reconsideration of the purposes of contract-formation law in the first place. In particular, this Essay proposes …

Constructive Ambiguity: Ip Licenses As A Case Study, Michal Shur-Ofry, Ofer Tur-Sinai

University of Michigan Journal of Law Reform

Ambiguity in contracts is often perceived as undesirable. A certain level of ambiguity, however, can have significant virtues: reducing transaction costs associated with foreseeing and negotiating remote contingencies; facilitating the closing of efficient transactions that would not otherwise close; increasing the adaptability and “anti-fragility” of contracts in the face of unforeseen developments; and preserving trust between the parties. Some contracts are more likely to benefit from a certain degree of ambiguity. Relying on multi-disciplinary literature, this Article systematically analyzes ambiguity’s merits and identifies three principal features of transactions that are positively correlated to the virtues of ambiguity: (1) long duration, …

The New Conflict Of Laws Code Provisions Of The Federal Republic Of Germany: Introductory Comment And Translation, Rainer Gildeggen, Jochen Langkeit

Georgia Journal of International & Comparative Law

No abstract provided.

The Joint Venture And Related Contract Laws Of Mainland China And Taiwan: A Comparative Analysis, Clyde D. Stoltenberg, David W. Mcclure

Georgia Journal of International & Comparative Law

No abstract provided.

A New And Old Theory For Adjudicating Standardized Contracts, Eric Mills Holmes, Dagmar Thürmann

Georgia Journal of International & Comparative Law

No abstract provided.

Georgia Interlocal Risk Management Agency, Order On Defendant's Motion To Dismiss, Elizabeth E. Long

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Jay Ordan, Order On Defendants' Motion For Summary Judgment, Elizabeth E. Long

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

The Social Life Of Blood, Milk & Sperm, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Fundamental Changes In The Llc: A Study In Path Divergence And Convergence, Joan Macleod Heminway

Book Chapters

No abstract provided.

Sketches Of A Redemptive Theory Of Contract Law, Emily Houh

Faculty Articles and Other Publications

This Article is about the game we call contract law and what it does and means to those who, at one time or another, have been categorically barred from play. How have "outsider" players-such as racial minorities, women, and sexual minorities -entered the game and, subsequently, how have its governing rules-that is, contract doctrines applied or not applied to them? On the flipside, how have common law contract doctrines responded to the entry of new players in the game? And, to the extent contract law has so responded, why has it done so? In asking and responding to these questions, …

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Law Faculty Scholarship

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Law And Economic Exploitation In An Anti-Classification Age, Hila Keren

Florida State University Law Review

Does our legal system permit the economic exploitation of extreme vulnerability? Focusing on predatory housing loans—a thriving business at the dawn of the twenty-first century—this Article argues that the answer in most cases is yes. Under an individualistic neoliberal paradigm, borrowers are held liable for their contracts, even if they were targeted with predatory practices. Further, borrowers’ attempts to resort to antidiscrimination law, and frame their exploitation as “reverse redlining,” have offered no real answer. An important yet undertheorized explanation for this problem is the impact of the Supreme Court’s anti-classification jurisprudence on lower courts. In an anti-classification age, even …

Efficient Contextualism, Peter M. Gerhart, Juliet P. Kostritsky

Faculty Publications

This Article recommends an economic methodology of contract interpretation that enables the court to maximize the benefits of exchange for the parties and thereby enhance the institution of contracting. We recommend a methodology that asks the parties to identify the determinants of a surplus maximizing interpretation so that the court can determine whether the determinants raise issues that need to be tried. We thus avoid the false choice between textualist and contextualist methodologies, while allowing the parties and the court to avoid costly litigation. For textualist courts, our methodology helps the judge determine when the terms the parties used are …

The Fiduciary Gap, Kelli A. Alces

Scholarly Publications

No abstract provided.

Marital Contracting In A Post-Windsor World, Martha M. Ertman

Florida State University Law Review

No abstract provided.

Prove Me Wrong Cases And Consideration Theory, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Seeing The Whole Elephant: A Comprehensive Framework For Analyzing Resource-For-Infrastructure Contracts As Intended By The Parties, Dunia P. Zongwe

Southern African Journal of Policy and Development

The current state of scientific knowledge on resource-for-infrastructure (R4I) contracting is unclear and based on inadequate empirical grounds. As a result, it is not easy to tell a R4I contract apart from other forms of international business transactions, let alone describe it in a comprehensive, accurate and meaningful way. Such state of affairs is concerning given the dramatic transformative impact of R4I contracts. This article sheds light on R4I contracts and proposes a broad framework for analyzing these multibillion-dollar deals. It looks to the contracting parties’ intentions – as expressly set out in the texts of contractual and official documents …

Mixed Transactions For Goods And Services: The Need For Consistency In Choosing The Governing Law, Austin Bodnar

St. Thomas Law Review

Imagine you are about to lose your home insurance after your provider contacted you stating that all homes with a pool are required to have a fence around the property. You quickly find a company that sells and installs fences and enter into a contract with them. You pay a fortune for the fence, but your insurance is saved. Shortly thereafter, the fence proves to be faulty, and the company refuses to fix the problem. Now, you sue under certain warranties that are provided by the Uniform Commercial Code ("U.C.C."), but the court finds that the U.C.C. does not apply …