Contracts Commons^™

Two Alternate Visions Of Contract Law In 2025, Nancy Kim

Faculty Scholarship

Part I of this essay examines how businesses have shaped the evolution of contract’s form from the past to the present and ex-plains how courts have responded by reshaping contract law.1 Part II of this essay anticipates changes in the business landscape and explains how these changes might create new challenges for contract law. Part III predicts two alternative visions for contract law in 2025. The first is as a diminished body of law, made nearly irrelevant by other laws and preempted by private rules administered by non-judicial entities. The second vision is that of a robust contract law administered …

What Boilerplate Said: A Response To Omri Ben-Shahar (And A Diagnosis), Margaret Jane Radin

Law & Economics Working Papers

This essay responds to Omri Ben-Shahar’s review of my book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton 2013). Ben-Shahar’s review (available at: http://ssrn.com/abstract=2255161) unfortunately does not convey the nature of this book to possible readers. His preconceptions – reflecting primarily what I call “old-school Chicago”--apparently caused him to believe that some strong version of “autonomy” was the focus of my book. Instead, the book’s purpose is to gather together a broad range of ideas relevant to boilerplate, in order to encourage readers to consider opportunities for improving our theory and practice. It makes detailed suggestions …

Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck

Scholarly Publications

In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.

Contesting Disclaimer-Of-Reliance Clauses By Efficiency, Free Will, And Conscience: Staving Off Caveat Emptor, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article hopes to make evident two trends seemingly in conflict. The first trend is toward raising the standards of probity and veridicality in contractual relations toward greater accountability and liability on market actors operating outside traditional bounds. The first is expressed by new rules that: require good faith and fair dealing between parties; ensure sellers are obligated to disclose material facts about a property otherwise unavailable to buyers; and make wrongdoing parties liable to non-parties who foreseeably relied on the wrongdoers' contractual undertakings. This trend promises to avert injury, achieve efficiency, and seems to accord with society's evolving notions …

Mass Arbitration And Democratic Legitimacy, David Horton

University of Colorado Law Review

This Article reviews Margaret Jane Radin's dazzling new book, Boilerplate. Radin makes two central claims about the widespread use of adhesion contracts. First, she argues that the heavy saturation of fine print causes "normative degradation," the erosion of contract law's bedrock requirement of consent. Second, and more provocatively, she contends that the lockstep use of standard forms permits private actors to override the public laws and thus causes "democratic degradation." This Article uses developments in consumer and employment arbitration as a proving ground for Radin's democratic degradation thesis. Spurred on by the United States Supreme Court's interpretation of the Federal …

A Nihilistic View Of The Efficient Breach, Jeffrey L. Harrison

UF Law Faculty Publications

This article began as a reaction to an article by Daniel Makovits and Alan Schwartz in the Virginia Law Review, “The Myth of the Efficient Breach. . . .” In their article they offer what they call “new defenses” of the expectation interest as a contract remedy. Much of their analysis has been anticipated by others. Plus, in my view the law and economics concepts they seem to rely on lost their legitimacy years ago. Their article was the catalyst for this broader examination of forty years of writing about the efficient breach and an assessment of where it has …

Expanded Merchant Tort Liability, Democratic Degradation, And Mass Market Standard Form Contracts—A Two-Part Critique Of Boilerplate: The Fine Print, Vanishing Rights, And The Rule Of Law (Part Ii), Steven W. Feldman

Cleveland State Law Review

Analyzing a difficult subject that pervades contract law and which is vital to the national economy, many scholars have written about boilerplate contracts. With her 2013 book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, Professor Margaret Jane Radin weighs in on the discussion. In a complement to existing contract remedies against abusive boilerplate, she proposes a new tort that she calls “intentional deprivation of basic legal rights.” She also identifies another new tort theory that deems abusive boilerplate to be a defective “product” under the law of products liability.

Radin further contends that these merchant practices …

Contracts: An Introduction To A Symposium And A Few Additional Thoughts, Jennifer S. Martin

St. Thomas Law Review

On February 21, 2014, the St. Thomas University School of Law opened a symposium entitled simply "Contracts" in conjunction with the Ninth Annual International Conference on Contracts hosted by the School of Law. The decision of the St. Thomas Law Review to sponsor and conduct a symposium on the simple broad reaching topic of contract law with this esteemed group was a natural decision and exciting opportunity. Contract law has long been a foundation study for students and scholars with a rich history and significance to individuals and businesses alike. Significantly, as reflected by Dr. Roni Rosenberg in his essay …

Donee Beneficiaries And The Parol Evidence Rule, Joseph M. Perillo

St. Thomas Law Review

Donee beneficiaries are pretty peculiar. They own the rights created by a contract created by others. Their rights have primacy over the promisee's rights' but the promisees have enforceable rights as well. The donee beneficiaries may be totally unaware of these enforceable rights for which they have not given consideration. For purposes of this essay, "donee beneficiary" means any intended beneficiary other than a creditor beneficiary. A creditor beneficiary is a promisor who assumes a debt that "will satisfy an obligation of the promisee to pay money to the beneficiary . ... " Thus defined, third party donee beneficiaries are …

Emergence On Contract Standards And Its Future Impact On Legal Education, Kingsley Martin

St. Thomas Law Review

Let me start with a story. It was almost thirty years ago that I graduated from Harvard Law School and joined my first law firm. I distinctly remember my first assignment, which was to draft a credit agreement. Despite my education, I had no clue how to perform the assignment. I had to do it the same way as everyone else, which was to go around the corridors, bang on some doors, get some examples, sit down and start to read them. I have no doubt that my first few attempts and, in all likelihood, years' worth of drafts, were …

The Contract: Between Contract Law And Criminal Jurisprudence, Roni Rosenberg

St. Thomas Law Review

The structure of the essay is as follows: Part I presents the general legal premise that enables the conviction of one who has caused harm by an omission in cases where the duty to act originates in a contractual obligation and highlights U.S. case law on this topic. Part II distinguishes between the duty to act that originates in a contract and a similar duty that is mentioned in case law and literature: the actual assumption of responsibility for a potential victim. Part III introduces various scenarios to assist in examining which contracts can serve as a source of a …

Designing And Constructing Commercial Agreements In The 21st Century, Jeffrey Ritter

St. Thomas Law Review

In the 21s century, commercial agreements crafted by attorneys structure relationships in which the administration and execution of those relationships is largely, if not exclusively, governed through the use of digital technologies. These technologies communicate information, record and report activities taken by the parties in furtherance of their relationship, make payments of monies and other compensation, and provide the evidence with which disputes among the parties will be resolved. All of these functions are designed and executed through technology systems that monitor and record activities that are the basis for determining compliance with the requirements of those agreements at a …

Introducing The New Handshake To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

St. Thomas Law Review

Accordingly, this essay discusses how use of ODR [online dispute resolution] systems may help address the problematic results of the SWS [squeaky wheel system] in B2C [business to consumer] exchanges. Part II of the essay discusses possible reasons why the SWS has flourished in the consumer marketplace and provides some of the applicable behavioral, social, and empirical research." Part III then uncovers problematic consequences of the SWS in B2C exchanges, and Part IV proposes the "New Handshake" through tailored ODR systems that offer consumers efficient and fair means for accessing remedies with respect to their purchases." Part V concludes with …

Contractualizing Custody, Sarah Abramowicz

Law Faculty Research Publications

Many scholars otherwise in favor of the enforcement of family contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights to children’s custody. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed “intact”—typically consisting of two married parents and their offspring—and those deemed non-intact. Intact families are granted a degree of freedom from government intervention, provided that there is no evidence that children are in any danger of …

The Contractualization Of Family Law In The United States, Fernanda Nicola, Adrienne Hunter Jules

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Fiduciary Character Of Agency And The Interpretation Of Instructions, Deborah A. Demott

Faculty Scholarship

This chapter in a forthcoming book justifies the conventional characterization of common-law agency as a fiduciary relationship. An agent serves as the principal’s representative in dealings with third parties and facts about the world, situating the agent as an extension of the principal for legally-salient purposes. A principal’s power to furnish instructions to the agent is the fundamental mechanism through which the principal exercises control over the agent, a requisite for an agency relationship. The agent’s fiduciary duty to the principal provides a benchmark for the agent’s interpretation of those instructions. The chapter draws on philosophical literature on the identity …

Santa Anna And His Black Eagle: The Origins Of Pari Passu?, Benjamin Chabot, Mitu Gulati

Faculty Scholarship

One of the most debated issues in international finance is the meaning of the pari passu clause in sovereign bonds. The clause is ubiquitous; it is in almost every single foreign-law sovereign bond out there. Yet, almost no one seems to agree on its meaning. One way to cut the Gordian knot is to track down the origins of the clause. Modern lawyers may have simply copied the clause from the documents of their predecessors without understanding its meaning. But surely the people who first drafted the clause knew what it meant. Four enterprising students at Duke Law School may …

Elhauge On Tying: Vindicated By History, Barak D. Richman, Steven W. Usselman

Faculty Scholarship

No abstract provided.

The Unidroit Principles As Global Background Law, Ralf Michaels

Faculty Scholarship

After twenty years of existence, it becomes apparent that the role actually played by the UNIDROIT Principles of International Commercial Contracts (PICC) is quite different from the one originally intended. This article first presents nine surprising findings concerning the actual use of the PICC, as it can be assessed on the basis of published opinions, legislation, and scholarship. It then uses these findings to suggest that the PICC should not be viewed as a code or even a non-state law. Instead, their nature is that of a Restatement of global general contract law, and their function is that of a …

A People’S History Of Collective Action Clauses, Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

For two decades, collective action clauses (CACs) have been part of the official-sector response to sovereign debt crisis, justified by claims that these clauses can help prevent bailouts and shift the burden of restructuring onto the private sector. Reform efforts in the 1990s and 2000s focused on CACs. So do efforts in the Eurozone today. CACs have even been suggested as the cure for the US municipal bond market. But bonds without CACs are still issued in major markets, so reformers feel obliged to explain why they know better. Over time, a narrative has emerged to justify pro-CAC reforms. It …