Effective Contract Drafting: Indentifying The Building Blocks Of Contracts,
2013
University of Nevada, Las Vegas -- William S. Boyd School of Law
Effective Contract Drafting: Indentifying The Building Blocks Of Contracts, Lori D. Johnson
Scholarly Works
No abstract provided.
Understanding Financial Derivatives,
2013
University of Missouri - Kansas City, School of Law
Understanding Financial Derivatives, Timothy E. Lynch
Faculty Works
Derivatives are commonly defined as some variation of the following: a financial instrument whose value is derived from the performance of a secondary source such as an underlying bond, commodity or index. But this definition is both over-inclusive and under-inclusive. Thus, not surprisingly, derivatives are largely misunderstood, including by many policy makers, regulators and legal analysts. It is important for interested parties such as policy makers to understand derivatives, because the types and uses of derivatives have exploded in the last few decades, and because these financial instruments can provide both social benefits and cause social harms. This Article presents …
Dysfunctional Contracts And The Laws And Practices That Enable Them: An Empirical Analysis, 46 Ind. L. Rev. 797 (2013),
2013
John Marshall Law School
Dysfunctional Contracts And The Laws And Practices That Enable Them: An Empirical Analysis, 46 Ind. L. Rev. 797 (2013), Debra Pogrund Stark, Jessica M. Choplin, Eileen Linnabery
UIC Law Open Access Faculty Scholarship
While many courts refuse to strike down these clauses under the unconscionability test, this Article argues that the results from the Remedies Experiment should lead courts to adopt a different set of tests for ruling on the enforceability of limitation-of-remedy clauses in home purchase contracts. Part I of this Article highlights the relevant results from two empirical studies Professor Stark conducted regarding major problems with the fairness of purchase agreement forms used by residential real estate developers in Illinois. Part I also discusses the lack of home purchaser understanding of key relevant laws and legal documents examined in an empirical …
Freedom Of Contracts,
2013
Columbia Law School
Freedom Of Contracts, Hanoch Dagan, Michael Heller
Faculty Scholarship
“Freedom of contracts” has two components: (1) the familiar freedom to bargain for terms within a contract and (2) the long-neglected freedom to choose from among contract types. Theories built on the first freedom have reached an impasse; attention to the second points toward a long-elusive goal, a liberal and general theory of contract law. This theory is liberal because it develops an appealing conception of contractual autonomy grounded in the actual diversity of contract types. It is general because it explains how contract values – utility, community, and autonomy – properly relate to each other across contract types. Finally, …
Constraints On Private Benefits Of Control: Ex Ante Control Mechanisms Versus Ex Post Transaction Review,
2013
Columbia Law School
Constraints On Private Benefits Of Control: Ex Ante Control Mechanisms Versus Ex Post Transaction Review, Ronald J. Gilson, Alan Schwartz
Faculty Scholarship
We ask how to regulate pecuniary private benefit consumption. These benefits can compensate controlling shareholders for monitoring managers and investing effort in implementing projects. Controlling shareholders may consume excessive benefits, however. We argue (a) ex post judicial review of controlled transactions dominates ex ante restrictions on the controlled structures: the latter eliminate efficiencies along with abuses of the controlled company form; (b) controlling shareholders should be permitted to contract with investors over private benefit levels. Both work with better courts. Hence, we recommend creating a European-level corporate court, whose jurisdiction parties can invoke by contract.
A Presumptively Better Approach To Arbitrability,
2013
University of Michigan Law School
A Presumptively Better Approach To Arbitrability, John A. E. Pottow, Jacob Brege, Tara J. Hawley
Articles
One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator's purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of "arbitrability" that necessarily arises when one party disputes the contractual validity of the underlying "container" contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no …
Forest Carbon (Redd+), Repairing International Trust, And Reciprocal Contractual Sovereignty,
2013
UC Hastings College of the Law
Forest Carbon (Redd+), Repairing International Trust, And Reciprocal Contractual Sovereignty, David Takacs
Faculty Scholarship
No abstract provided.
The Efficacy Of The Negative Injunction In Breach Of Entertainment Contracts, 46 J. Marshall L. Rev. 409 (2013),
2013
UIC School of Law
The Efficacy Of The Negative Injunction In Breach Of Entertainment Contracts, 46 J. Marshall L. Rev. 409 (2013), Eliot Axelrod
UIC Law Review
No abstract provided.
A Lesson On Some Limits Of Economic Analysis: Schwartz And Scott On Contract Interpretation,
2013
University of Iowa
A Lesson On Some Limits Of Economic Analysis: Schwartz And Scott On Contract Interpretation, Steven J. Burton
Indiana Law Journal
Contract interpretation has been a hot topic of scholarly debate since 2003, when Professors Alan Schwartz of Yale and Robert E. Scott of Columbia published their provocative article, Contract Theory and the Limits of Contract Law, much of which develops an efficiency theory of contract interpretation. In 2010, they published a restatement of this theory and reply to critics, which has not yet drawn much commentary. This Article suggests that, even as restated, their theory offers an object lesson on some limits of economic analyses of the law. The Article assumes that their central argument is mathematically and economically impeccable. …
Solidifying Arkansas's Liquidated Damage Law After S.O.G.-San-Ore-Gardner V. Missouri Pacific Railroad Co.: It's Not All Water Under The Bridge,
2013
University of Arkansas Little Rock
Solidifying Arkansas's Liquidated Damage Law After S.O.G.-San-Ore-Gardner V. Missouri Pacific Railroad Co.: It's Not All Water Under The Bridge, David C. Jung
University of Arkansas at Little Rock Law Review
The construction of the Benzal Bridge over the White River in rural Arkansas brought about years of litigation between Missouri Pacific Railroad Company and contractor San Ore-Gardner, the crux of which was whether the liquidated damages provision in the parties' contract was enforceable. The liquidated damages provision at issue provided that San Ore-Gardner would be liable to Missouri Pacific Railroad Company for damages in the amount of $600 per day if performance of the contract was not completed within the specified time period. Although Missouri Pacific Railroad Company did contribute to the over two year delay in completion of the …
Contract Stories: Importance Of The Contextual Approach To Law,
2013
University of Florida Levin College of Law
Contract Stories: Importance Of The Contextual Approach To Law, Larry A. Dimatteo
UF Law Faculty Publications
How law is taught is at the center of the debate over the need to change legal education to better prepare students for a difficult and changing marketplace for legal services. This Article analyzes the benefits of using “stories” to teach law. The stories to be discussed relate to contract law: this Article asks whether they can be used to improve the method and content of teaching law. The ruminations offered on teaching contract law, however, are also relevant to teaching other core, first-year law courses.
Asking The First Question: Reframing Bivens After Minneci,
2013
Benjamin N. Cardozo School of Law
Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan
Articles
In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a …
Consumer Financial Services Arbitration: What Does The Future Hold After Concepcion?,
2013
University of Maryland Francis King Carey School of Law
Consumer Financial Services Arbitration: What Does The Future Hold After Concepcion?, Alan S. Kaplinsky, Mark J. Levin
Journal of Business & Technology Law
No abstract provided.
The Dilemma Of Public–Private Partnerships As A Vehicle For The Provision Of Regional Transport Infrastructure Development In Africa,
2013
Dalhousie University Schulich School of Law
The Dilemma Of Public–Private Partnerships As A Vehicle For The Provision Of Regional Transport Infrastructure Development In Africa, Olabisi D. Akinkugbe
Articles, Book Chapters, & Popular Press
With regional economic integration (REI) as a major strategy for development, the African continent hosts a plethora of regional economic communities of varying ambition longevity and success. While in the 1970s, political-economic ideas built mainly on the “developmental state” informed the design of most of these agreements, the change in economic thought in the 1980s which ushered in the “neoliberal turn” has since influenced the design of most REI schemes in Africa, including the New Partnership for African Development. However, among other factors, inadequate transport infrastructure linking regions poses a major impediment to regional trade and development in Africa. The …
Jacques De Werra (Ed.), Research Handbook On Intellectual Property Licensing,
2013
Dalhousie University Schulich School of Law
Jacques De Werra (Ed.), Research Handbook On Intellectual Property Licensing, Lucie Guibault
Articles, Book Chapters, & Popular Press
In the laws of most jurisdictions in the world, IP licenses are an unnamed form of contract, most often of a hybride nature, for which no specific legal framework exists, save for rare exceptions. As a result, the formation, content and interpretation of IP licences call for the application of relevant norms from numerous other fields of the law, such as contract law, property law, commercial law, consumer law etc. Despite efforts of harmonisation at the international and regional levels, these related areas of the law remain to a large extent nationally determined, influenced by the legal tradition of each …
Digital Content Contracts For Consumers,
2013
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
Digital Content Contracts For Consumers, Marco Loos, Chantal Mak, Lucie Guibault, Lodewijk Pessers, Natali Helberger
Articles, Book Chapters, & Popular Press
The application of consumer law to digital content contracts encounters a number of obstacles. Some of these are rather typical for digital content markets, e.g., the legal consequences of the classification of digital content as “goods” or “services”, and more importantly, the absence of general benchmarks to evaluate the conformity of digital content. Other problems, such as the limited usefulness of consumer information and the position of underage consumers, are not as such reserved to digital consumers, but they are amplified in the digital content markets. Moreover, particular attention is paid to the complex relationship between copyright law and consumer …
At&T Mobility And The Future Of Small Claims Arbitration,
2013
Elisabeth Haub School of Law at Pace University
At&T Mobility And The Future Of Small Claims Arbitration, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
This article focuses on small claims arbitration and examines the impact of AT&T Mobility on the legitimacy of the process. Part II of the article describes the Supreme Court’s AT&T Mobility decision, which held that the FAA preempts a California rule that declared a class arbitration waiver in a consumer contract unconscionable. Part III describes the primary features of the two options remaining for the Concepcions—small claims court and small claims arbitration, as well as their perceived advantages and disadvantages. Part IV demonstrates that courts have endorsed simplified arbitration. Part V examines whether simplified arbitration is a fair method of …
A Presumptively Better Approach To Arbitrability,
2013
University of Michigan Law School
A Presumptively Better Approach To Arbitrability, John A. E. Pottow, Jacob Brege, Tara J. Hawley
Law & Economics Working Papers
One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator’s purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of “arbitrability” that necessarily arises when one party disputes the contractual validity of the underlying “container” contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no …
Tzedek Tzedek Tirdofi: How Female Religious Court Advocates Can Mitigate A Lack Of Judicial Review Of The American Beth Din System,
2013
Benjamin N. Cardozo School of Law
Tzedek Tzedek Tirdofi: How Female Religious Court Advocates Can Mitigate A Lack Of Judicial Review Of The American Beth Din System, Raquel J. Greenberg
Cardozo Journal of Equal Rights & Social Justice
No abstract provided.
Larry From The Left: An Appreciation,
2013
Saint Louis University School of Law
Larry From The Left: An Appreciation, Matthew T. Bodie, Grant M. Hayden
All Faculty Scholarship
This essay approaches the scholarship of the late Professor Larry Ribstein from a progressive vantage point. It argues that Ribstein's revolutionary work upended the "nexus of contracts" theory in corporate law and provided a potential alternative to the regulatory state for those who believe in worker empowerment and anti-cronyism. Progressive corporate law scholars should look to Ribstein's scholarship not as a hurdle to overcome, but as a resource to be tapped for insights about constructing a more egalitarian and dynamic economy.
