Clinicians, Practitioners, And Scribes: Drafting Client Work Product In A Small Business Clinic,
2012
Western New England University School of Law
Clinicians, Practitioners, And Scribes: Drafting Client Work Product In A Small Business Clinic, Robert R. Statchen
NYLS Law Review
No abstract provided.
Insurance And Cultural Perspectives On Katrina,
2012
University of Missouri - Kansas City, School of Law
Insurance And Cultural Perspectives On Katrina, Jeffrey E. Thomas
Faculty Works
No abstract provided.
Measuring, Monitoring, Reporting, And Verifying (Mmrv): Negotiating Trust In Transnational Contracts For Redd,,
2012
UC Hastings College of the Law
Measuring, Monitoring, Reporting, And Verifying (Mmrv): Negotiating Trust In Transnational Contracts For Redd,, David Takacs
Faculty Scholarship
No abstract provided.
Metaphors, Models, And Meaning In Contract Law,
2012
Suffolk University Law School
Metaphors, Models, And Meaning In Contract Law, Jeffrey M. Lipshaw
Suffolk University Law School Faculty Works
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? This article is an attempt to bridge the gap, combining insights from academic theory and real-world law practice. My claim is that the law as discipline has developed its own powerful but self-contained conceptual framework — in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law, something that is largely the creation of private parties and not the state, requires dealing with legal truth not just …
Contract As Meaning: An Introduction To "Contract As Promise At 30",
2012
Suffolk University Law School
Contract As Meaning: An Introduction To "Contract As Promise At 30", Jeffrey M. Lipshaw
Suffolk University Law School Faculty Works
This is an introductory essay to the volume of the Suffolk Law Review containing the papers from our symposium centered on Charles Fried’s iconic book, 'Contract as Promise' at 30: The Future of Contract Theory. My theme is the relation of theory to practice, particularly in contract law, and why a theoretical orientation, broadly speaking and whether or not so conceived by the practitioner herself, is fundamental to that practitioner making good judgments. Theorizing - imposing coherent and correspondent conceptual order on events in the real world - is not as unrelated to the ordinary work of lawyers (and others) …
The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed,
2012
Southern Methodist University, Dedman School of Law
The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed, William V. Dorsaneo Iii, C. Paul Rogers Iii.
Faculty Journal Articles and Book Chapters
The primary purpose of this Article is to examine the relationship between basic contract principles and procedural rules that are generally applicable to contract litigation. The evolution of claims and defenses in contract cases has produced contradictions in burdens of pleading and proof in garden-variety contract cases,particularly with respect to the important issue of the plaintiffs performance. The continued evolution of substantive contract law and terminology, and the failure of the rule-making process to take these developments into account has exacerbated the problem. As a result, the federal pleading rules adopted in 1938 and many state procedural rules and statutes …
The Underappreciated Importance Of The Sequence In Which The Issues Are Addressed In Contract Litigation,
2012
Southern Methodist University, Dedman School of Law
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 Ball Is In Congress's Court: Contract Support Costs Following Ramah,
2012
University of Oklahoma College of Law
The Ball Is In Congress's Court: Contract Support Costs Following Ramah, James J. Linhardt
American Indian Law Review
No abstract provided.
Powerful Buyers And Merger Enforcement,
2012
Seattle University School of Law
Powerful Buyers And Merger Enforcement, John B. Kirkwood
Faculty Articles
Although large buyers like Walmart and Tyson Foods occupy important positions in the American economy, antitrust law remains focused on the conduct of sellers. Moreover, when mergers of buyers have been challenged, the cases have been based on a single theory – that the merger would create a dominant buyer (or group of buyers) that would exploit small, powerless suppliers. Most powerful buyers, however, face suppliers with power of their own, and in such cases, the buyers exert “countervailing power,” which can also be anticompetitive. Yet buyer mergers that reduce competition through the exercise of countervailing power are not addressed …
To Be Or Not To Be (A Parent)? - Not Precisely The Question: The Frozen Embryo Dispute,
2012
Bar-Ilan University
To Be Or Not To Be (A Parent)? - Not Precisely The Question: The Frozen Embryo Dispute, Yehezkel Margalit
Cardozo Journal of Equal Rights & Social Justice
The article explores the legal and ethical complexities surrounding disputes over frozen embryos, particularly focusing on the balance between the right to become a parent and the right to avoid parenthood. It examines the legal status of frozen embryos and proposes a compromise solution where the objecting spouse is granted nonparenthood status, allowing the other partner to use the embryos without imposing parenthood on the unwilling party. The analysis emphasizes the importance of legal parenthood for societal welfare and the challenges posed by evolving reproductive technologies.
Advancing A Surrogate-Focused Model Of Gestational Surrogacy Contracts,
2012
University of Minnesota
Advancing A Surrogate-Focused Model Of Gestational Surrogacy Contracts, Catherine London
Cardozo Journal of Equal Rights & Social Justice
The article examines the ethical, legal, and feminist implications of commercial surrogacy, arguing that the practice raises significant concerns about the commodification and exploitation of women and children. It critiques the current legal framework for its inconsistency and paternalistic approach, which often restricts women's reproductive freedom. The analysis advocates for a surrogate-focused contract model to address these issues, emphasizing the need to empower surrogates by granting them greater autonomy and bargaining power in surrogacy arrangements. This approach aims to balance the interests of all parties while minimizing the risk of exploitation.
Using Contract Terms To Get Ahead Of Prospective Ediscovery Costs And Burdens In Commercial Litigation,
2012
University of Richmond
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, …
The Hierarchy That Wasn’T There: Elevating “Usage” To Its Rightful Position For Contracts Governed By The Cisg,
2012
Saint Louis University School of Law
The Hierarchy That Wasn’T There: Elevating “Usage” To Its Rightful Position For Contracts Governed By The Cisg, William P. Johnson
All Faculty Scholarship
Under domestic U.S. sales law, usage of trade is relevant in ascertaining the meaning of an agreement, and it can be used to supplement, qualify, or explain an agreement. However, usage of trade may not be used under domestic U.S. sales law to contradict a written agreement. Moreover, any course of performance or course of dealing between the parties will prevail over inconsistent usage of trade. The United Nations Convention on Contracts for the International Sale of Goods, or CISG, similarly provides for consideration of usage to establish the terms of the agreement between the parties, as well as to …
Bargaining For Motherhood: Postadoption Visitation Agreements,
2012
Columbia Law School
Bargaining For Motherhood: Postadoption Visitation Agreements, Carol Sanger
Faculty Scholarship
This Article is about the use of contract in family formation. More specifically, I want to look at how contract is now used by parents in the process of acquiring children and, as we shall see, also as a means of retaining interests in those same children under the developing regime of open adoption.
Credit Risk Transfer Governance: The Good, The Bad, And The Savvy,
2012
New York Law School
Credit Risk Transfer Governance: The Good, The Bad, And The Savvy, Houman B. Shadab
Articles & Chapters
Goldman Sachs and American International Group on the eve of the 2008 financial crisis were bound together through a web of credit risk transfer (CRT) contracts in the form of credit default swaps (CDSs) and synthetic collateralized debt obligations (CDOs). Synthetic CDOs enabled certain hedge funds to profit from the ultimate bursting of the housing bubble due to the funds’ savvy in understanding CRT better than their counterparties. This Article constructs a novel theory of CRT that extends the insights of creditor governance theory to CRT transactions. By doing so, this Article establishes a framework for good CRT governance. CRT …
Sharpening The Blunt Blue Pencil: Renewing The Reasons For Covenants Not To Compete In North Carolina,
2012
University of Oklahoma College of Law
Sharpening The Blunt Blue Pencil: Renewing The Reasons For Covenants Not To Compete In North Carolina, Jon J. Lee, Kimberly Burke
Faculty Articles
Covenants not to compete are often included in modern employment contracts to prevent employees from working for competitors for a specified amount of time after termination of employment. Although such covenants were initially unenforceable at common law because they represented invalid restraints on trade, most jurisdictions today enforce covenants not to compete where such covenants are reasonable. Jurisdictions differ, however, in their treatment of unreasonable covenants, choosing from one of three approaches: the all-or nothing approach, which prohibits a court from striking out or modifying any part of a covenant; the "strict blue pencil doctrine," which allows a court to …
Does The Constitution Protect Economic Liberty?,
2012
Georgetown University Law Center
Does The Constitution Protect Economic Liberty?, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The author defends the proposition that the Court in Lochner v. New York was right to protect the liberty of contract under the Fourteenth Amendment. He does not defend its use of the Due Process Clause to reach its result. As he explains, the Court should have been applying the Privileges or Immunities Clause. Nor does he contend that the Court was correct in its conclusion that the maximum‐hours law under consideration was an unconstitutional restriction on the liberty of contract. Although the statute may well have been unconstitutional, the author does not take the time to evaluate that claim. …
It's About Time,
2012
University of Richmond
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 …
"Do-Not-Track" As Contract,
2012
Vanderbilt University Law School
"Do-Not-Track" As Contract, Joshua A.T. Fairfield
Vanderbilt Journal of Entertainment & Technology Law
Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically--telephone numbers do not change, whereas Internet protocol (IP) addresses may …
A Short And Happy Guide To Contracts,
2012
University of Richmond
A Short And Happy Guide To Contracts, David G. Epstein
Law Faculty Publications
In this book we will reveal the rules of contract law in as straightforward and clear a fashion as they permit. But we will also talk some about policy and the difference between the two. Policy reflects the normative objectives we want to attain, and the rules are the vehicles for getting us there. In this book, we are going to break the subject of contracts into seven short questions: 1. Has a deal been made? 2. Is the deal enforceable? 3. Are there defenses to enforcement of the deal? 4 What are the terms of the deal? 5. When …
