Contracts Commons^™

Contracting Blame, Eric A. Zacks

Law Faculty Research Publications

No abstract provided.

The Influence Of Law And Economics Scholarship On Contract Law: Impressions Twenty-Five Years Later, Jeffrey L. Harrison

UF Law Faculty Publications

This is an update of a work done in conjunction with a contract law conference 25 years ago. My specific assignment was to assess the impact of law and economics scholarship on contract law. I responded by conducting an empirical study of judicial citations to selected law and economics works in order to ascertain the extent to which judges seemed to be relying on the teachings of law and economics. In effect, the effort was part of a general question that concerns all law professors: Does scholarship matter? I have repeated the study with respect to the scholarship sample selected …

Civil Procedure And Contract Law—Contractual Forum-Selection Clauses In Erie Cases: More Than Substance Or Procedure, James C. Mcneal

University of Arkansas at Little Rock Law Review

The enforceability of forum-selection clauses is one of the most litigated jurisdictional issues in federal district courts. In a globalized society, forum-selection clauses reduce uncertainty. However, they present unique problems and, although they are liberally enforced by state and federal courts, forum-selection clauses are not always enforced by the forum court. Enforcement of forum-selection clauses is especially complex in diversity actions in federal court.

Forum-selection clauses appear substantive and often have substantive effects; however, they operate procedurally. Federal courts unanimously hold that the validity of a forum-selection clause is a procedural question and therefore the question of validity is decided …

Applying Economic Loss Doctrine To Article 2 Transactions: A Doctrine At A Loss, Jennifer S. Martin

St. Thomas Law Review

The purpose of this Essay is to analyze the treatment and the types of tort and strict liability claims that courts are likely to redirect toward the Code's Article 2 remedies. Part I of this Essay examines the typical application of the economic loss doctrine. Part II considers the bargain policy underlying the Code that supports imposition of the economic loss doctrine in a variety of claims touching Article 2 matters. Part III outlines how the principles of the economic loss doctrine are a limited vehicle for resolution of claims that lie at the outer edges of the bargain as …

Courts Have Answers To The Military Contractors’ So-Called Political Questions Raised In Carmichael V. Kellogg, Brown & Root Services, Inc., Kaelin Patrick Kuhn

Catholic University Law Review

No abstract provided.

The Underappreciated Importance Of The Sequence In Which The Issues Are Addressed In Contract Litigation, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Judicial opinions rarely identify the precise sequence in which the issues presented were addressed by the court. Since this sequence is not generally regarded as being significant for the decisions reached, persons later parsing the opinions for their significance rarely go to the considerable trouble involved in acquiring the litigation briefs and interviewing the attorneys and judges involved so as to ascertain this sequence. However, my surmise is that at least in contract litigation the sequence in which the issues are addressed can sometimes be significant or even outcome-determinative for the results. A good example of this is presented by …

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Faculty Scholarship

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Faculty Scholarship

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

Law By Non Sequitur: Norcon V. Niagara Mohawk, Victor P. Goldberg

Faculty Scholarship

Under the common law, a contracting party could only demand assurance of performance if the other party was insolvent. If a party had reasonable grounds for insecurity, the UCC §2-609 allowed it demand adequate assurance even if the counterparty were solvent. The Restatement (Second) adopted the same rule for non-goods. In NorCon v. Niagara Mohawk the New York court extended the adequate assurance doctrine for some non-goods contracts. Although the decision seems to imply that there is some relation between the NorCon facts and its conclusion as to the law, there is none. Relying primarily on material available to the …

Using Contract Terms To Get Ahead Of Prospective Ediscovery Costs And Burdens In Commercial Litigation, Jay Brudz, Jonathan M. Redgrave

Richmond Journal of Law & Technology

During the course of the twentieth century, American and international businesses reacted to the increasing costs and uncertainties of the American civil legal system by trying to create certainty through contractual provisions wherever possible. In particular, businesses developed contractual provisions that set forth procedural boundaries to potential disputes for the purpose of providing greater certainty as to where the dispute would be heard, who would hear it, and what laws would apply. For example, choice of venue and choice of law provisions became commonplace. In addition, clauses dictating the use of alternative dispute resolution procedures were also widely adopted. Substantively, …

Three Recent Works On Contractual Interpretation [Part 2], John D. Mccamus

Articles & Book Chapters

No abstract provided.

Contracts, Victor P. Goldberg

Faculty Scholarship

This article focuses on the general problems confronting parties designing a contractual relationship. Contracts concern the future, which is both uncertain and influenced by the behavior of the parties. This presents the parties with a number of problems, the solutions for which are imperfect. Contract doctrine can facilitate their efforts, but it can also be an impediment. Contract design and contract law are discussed.

Contractualism In The Law Of Treaties, Omar M. Dajani

McGeorge School of Law Scholarly Articles

No abstract provided.

The Evolution Of Contractual Terms In Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

In reaction to defaults on sovereign debt contracts, issuers and creditors have strengthened the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce their debt burden; debtors may engage in excessively risky activities using …

Cds Zombies, Anna Gelpern, Mitu Gulati

Faculty Scholarship

This paper examines the contract interpretation strategies adopted by the International Swaps and Derivatives Association (ISDA) for its credit derivatives contracts in the Greek sovereign debt crisis. The authors argue that the economic function of sovereign credit default swaps (CDS) after Greece is limited and uncertain, partly thanks to ISDA’s insistence on textualist interpretation. Contract theory explanations for textualist preferences emphasise either transactional efficiency or relational factors, which do not fit ISDA or the derivatives market. The authors pose an alternative explanation: the embrace of textualism in this case may be a means for ISDA to reconcile the competing political …

The Effect Of Franchisor Bankruptcy On Executory Supply Contracts: Does The Franchisee Have A Remedy?, Matthew J. Burne

Barry Law Review

No abstract provided.

It's Time For A Good Hard Look In The Mirror: The Corporate Law Example, John A. Barrett, Jr.

Fordham Journal of Corporate & Financial Law

This Article asserts that the move from the industrial age to the

information age represents a fundamental change to our society on

such a widespread basis that the legal order must reexamine the

premises about how our society functions, assessing whether

foundational elements of U.S. Common Law remain valid. This

Article first confronts briefly the continuing acceptance of certain

foundational premises in contract and intellectual property law,

illustrating that such premises are no longer supported by the

realities of modern society. With fundamental change challenging

multiple areas of law in the information age, this problem is worthy

of widespread inquiry …

Stoney Road Out Of Eden: The Struggle To Recover Insurance For Armenian Genocide Deaths And Its Implications For The Future Of State Authority, Contract Rights, And Human Rights, Jeffrey W. Stempel, Sarig Armenian, David Mcclure

Scholarly Works

The Armenian Genocide during the waning days of the Ottoman Empire continues to represent one of history’s underappreciated atrocities. Comparatively few people even know about the 1.5 million deaths or the government-sponsored extermination attempt that provided Hitler with a blueprint for the Nazi Holocaust. Unlike the Holocaust, however, there was never any accounting demanded of those responsible for the Armenian Genocide. In the aftermath of both tragedies, insurers seized upon the resulting disarray and victimization to deny life insurance benefits owed as a result of the killings. American-based litigation to vindicate rights under the Armenian polices faced substantial legal and …

Many-To-Many Contracts, Heidi S. Bond

Faculty Articles

In classical contract law the concept of one-to-one negotiations is familiar: contracts where one party negotiates with the other and, eventually, terms are offered and then accepted. More modern times have made us comfortable with the notion of one-to-many contracts: contracts typically drafted by large corporations and then distributed on a take-it-or-leave-it basis to the masses. This Article discusses a third kind of contract: a many-to-many contract which may look like the standard one-to-many contract in that it is composed of nonnegotiable language. But when the arrangements between the parties are further considered we will see that the point of …

It's About Time, David Frisch

Law Faculty Publications

This Article critically evaluates the view widely held by courts that contract claims for lost leisure or personal time do not justify compensation. The thesis of this Article is that while the conventional judicial wisdom may be correct about some forms of nonpecuniary loss, it is entirely wrong regarding lost time. After setting aside assumptions, I show that traditional arguments against this form of recovery are deeply flawed Most importantly, I rely on the recognition of hedonic damages by forensic economists to debunk the myth that loss of time is no more than an everyday aspect of life not worthy …