Consumer Contract Exchanges And The Problem Of Adhesion,
2011
University of Colorado Law School
Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz
Publications
Businesses and sophisticated parties have long used "contract exchanges," like the Chicago Board of Trade, to obtain a fair price and protect themselves from market volatility. These contract exchanges have greatly benefited both their participants and the public at large, but participation was long limited to a wealthy few. A decade ago, however, Internet websites, including Hotwire and Priceline, brought the power of contract exchanges directly to consumers, allowing regular people to flex their collective bargaining power to obtain low prices on travel services. Even more recently, other such "consumer contract exchanges," including Prosper and MoneyAisle, have organized vibrant markets …
Sifre V. Sifre,
2011
New York Law School Class of 2011
In Re Healthsouth Corp. Securities Litigation,
2011
New York Law School Class of 2011
In Re Healthsouth Corp. Securities Litigation, Adam Paul Gordon
NYLS Law Review
No abstract provided.
Contract Is Not Promise; Contract Is Consent,
2011
Georgetown University Law Center
Contract Is Not Promise; Contract Is Consent, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In the 1980s, Charles Fried was right to focus on what was missing from both the “death of contract” and “law and economics” approaches to contract law: the internal morality of contract. But he focused on the wrong morality. Rather than embodying the morality of promise-keeping, the enforcement of contracts can best be explained and justified as a product of the parties’ consent to be legally bound. In this essay, I observe that, in Contract as Promise, Fried himself admits that the “promise principle” cannot explain or justify two features that are at the core of contract law: the objective …
The Demise Of Class Actions Will Not Be Televised,
2011
Benjamin N. Cardozo School of Law
The Demise Of Class Actions Will Not Be Televised, Benjamin Sachs-Michaels
Cardozo Journal of Conflict Resolution
As evidenced by two recent Cardozo Journal of Conflict Resolution articles, class action waivers in arbitration clauses are currently a hot topic in the field of conflict resolution. With increasing frequency, arbitrators and courts are presented with class action waivers in compulsory arbitration agreements prohibiting the aggregation of claims. This Note argues that some courts have reversed course in their treatment of class action waivers contained in arbitration clauses. There is a new movement to find class waivers, and the arbitration clauses that harbor them, unenforceable. This Note further argues that while plaintiffs uniformly oppose class action waivers, defendants widely …
The Unenforceable Corrupt Contract: Corruption And Nineteenth Century Contract Law,
2011
Fordham University School of Law
The Unenforceable Corrupt Contract: Corruption And Nineteenth Century Contract Law, Zephyr Teachout
Faculty Scholarship
This paper explores the 19th century practice of courts refusing to enforce "corrupt" contracts as against public policy.
The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name,
2011
Penn State Law
The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French
Faculty Scholarship
How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …
Salary Caps In Professional Sports: Closing The Kovalchuk Loophole In National Hockey League Player Contracts,
2011
Benjamin N. Cardozo School of Law
Salary Caps In Professional Sports: Closing The Kovalchuk Loophole In National Hockey League Player Contracts, Simon Bernstein
Cardozo Arts & Entertainment Law Journal
No abstract provided.
Equitable Estoppel To Compel Arbitration In New York: A Doctrine To Prevent Inequity,
2011
Benjamin N. Cardozo School of Law
Equitable Estoppel To Compel Arbitration In New York: A Doctrine To Prevent Inequity, Matthew Berg
Cardozo Journal of Conflict Resolution
Arbitration, as a favored alternative to court systems, finds its validity in both state and federal law. The Federal Arbitration Act ("FAA") was enacted in 1925 unopposed, reflecting a strong favored alternative by the federal government to the Article III courts. This presumption was established in Section 2 of the FAA, which provides that contracts that include an arbitration clause "shall be valid, irrevocable, and enforceable" unless a court finds "grounds as exist at law or in equity for the revocation of any contract [or clause]."
Outsourcing Modularity, And The Theory Of The Firm,
2011
Vanderbilt University Law School
Outsourcing Modularity, And The Theory Of The Firm, Margaret M. Blair, Erin O'Hara O'Connor, Gregg Kirchhoefer
Vanderbilt Law School Faculty Publications
Firms have increasingly moved productive activities from within to outside the firm through outsourcing arrangements. According to some estimates, the value of outsourcing contracts has been nearly 100 billion dollars per year since 2004. Firm outsourcing happens for a number of reasons, including to save labor costs, capture the benefits of regulatory arbitrage, and take advantage of economies of scale in the provision of firm needs. We review a number of outsourcing contracts for evidence that contract techniques are used to help modularize the relationship between the firm and its service provider. Consistent with what modularity theory might predict, some …
Defending Disclosure In Software Licensing,
2011
Cornell Law School
Defending Disclosure In Software Licensing, Robert A. Hillman, Maureen O'Rourke
Cornell Law Faculty Publications
This Article surveys prominent kinds of disclosures in contract law-of facts, contract terms, and performance intentions. We show why the disclosure tool, although subject to substantial criticism, promotes important social values and goals, including efficiency, autonomy, corrective justice, fairness, and the legitimacy of the contract process. Further, proposals to replace disclosure with other alternatives are unrealistic because they are too expensive or complex. Our working example is the American Law Institute's Principles of the Law of Software Contracts.
Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act,
2011
University of Colorado Law School
Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act, Andrew A. Schwartz
Publications
In the 1960s and 1970s, American society came to the considered conclusion that if eighteen-year-olds can be drafted to fight and possibly die for their country, they should be treated as adults under the law. Thus, in 1971, the Twenty-Sixth Amendment to the United States Constitution, which lowered the voting age to eighteen from twenty one, was proposed and ratified in just three months, making it the fastest amendment in American history. The minimum age for federal and state jury service was also lowered to eighteen from twenty one. And, with regard to contract law, every state passed legislation reducing …
Consent To Retaliation: A Civil Recourse Theory Of Contractual Liability,
2011
William & Mary Law School
Consent To Retaliation: A Civil Recourse Theory Of Contractual Liability, Nathan B. Oman
Faculty Publications
In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was an enacted penalty clause: “If I breach this contract, let it be done to me as we are doing to the goat.” This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promise making, or by the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the …
The Three And A Half Minute Transaction: Boilerplate And The Limits Of Contract Design,
2011
Columbia Law School
The Three And A Half Minute Transaction: Boilerplate And The Limits Of Contract Design, Mitu Gulati, Robert E. Scott
Faculty Scholarship
Last fall we gave a faculty workshop at the Hofstra University School of Law on an early version of our book manuscript, The Three and a Half Minute Transaction. The resulting debate was lively and the discussion ranged over a wide variety of topics. The end result, much to our delight, was that the editors of the Hofstra Law Review suggested a symposium where they would invite a group of eminent scholars and practitioners to react to the manuscript. The hope was that those reactions would generate a further debate akin to the one we had at the workshop. …
The Use Of The Intent Doctrine To Expand The Rights Of Intended Homosexual Male Parents In Surrogacy Custody Disputes,
2011
Benjamin N. Cardozo School of Law
The Use Of The Intent Doctrine To Expand The Rights Of Intended Homosexual Male Parents In Surrogacy Custody Disputes, Perri Koll
Cardozo Journal of Equal Rights & Social Justice
The note advocates for the expansion of parental rights for homosexual male couples through surrogacy by promoting the intent doctrine and amending existing laws. It highlights the inconsistency in legal approaches across states and suggests that recognizing intended parenthood, regardless of sexual orientation, is essential for equality. The proposed solutions include adopting the intent doctrine nationwide and revising the Uniform Parentage Act to include same-sex couples.
Teaching Gender As A Core Value In The Firstyear Contracts Class,
2011
Florida International University College of Law
Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone
Faculty Publications
No abstract provided.
The Board Of Contract Appeals: A Historical Perspective,
2011
American University Washington College of Law
The Board Of Contract Appeals: A Historical Perspective, The Honorable Jeri Kaylene Somers
American University Law Review
No abstract provided.
Market Realities Do Not Embody Necessary Economic Theory: Why Defendants Deserve A Safe Harbor Under Section 2 Of The Sherman Act For Exclusive Dealing,
2011
University of Georgia School of Law
Market Realities Do Not Embody Necessary Economic Theory: Why Defendants Deserve A Safe Harbor Under Section 2 Of The Sherman Act For Exclusive Dealing, Danielle N. Paschal
Georgia Law Review
Exclusive dealing agreements are a form of vertical
restraint. They are often procompetitive and treated as
presumptively legal. Although claims against
anticompetitive agreements may be pursued under
numerous antitrust laws, claims have been brought more
recently under section 2 of the Sherman Act. Antitrust
laws generally focus on the percentage of foreclosure.
Section 2 of the Sherman Act, though, requires a smaller
percentage of foreclosure of distribution channels than
other antitrust laws. Analysis under section 2 of the
Sherman Act also focuses on the actual effects of the
agreement in the relevant market. Determining the
agreement's actual effects on the …
After Frustration: Three Cheers For Chandler V. Webster,
2011
Columbia Law School
After Frustration: Three Cheers For Chandler V. Webster, Victor P. Goldberg
Faculty Scholarship
Performance of a contract can be excused by a number of circumstances, notably impossibility, impracticability, and frustration. When performance is excused there remains the question of how to treat any payments or expenditures that were made prior to the occurrence of the contract-frustrating event. In Chandler v. Webster, the English courts decided over a century ago that the parties should be left where they were at the time of the frustrating event. Forty years later that holding was overturned so that now recovery might be had both for restitution of payments made prior to the event and for expenditures …
Contract, Uncertainty, And Innovation,
2011
Columbia Law School
Contract, Uncertainty, And Innovation, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott
Faculty Scholarship
Contract today increasingly links entrepreneurial innovations to the efforts and finance necessary to transform ideas into value. In this chapter, we describe the match between a form of contract that “braids”1 formal and informal contractual elements in novel ways and the process by which innovation is pursued.
