Contracts Commons^™

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Incomplete Contracts And Future Data Usage, Jens Frankenreiter, Talia B. Gillis, Dan Svirsky

Scholarship@WashULaw

Most major jurisdictions require websites to provide customers with privacy policies. For consumers, a privacy policy's most important function is to provide them with a description of the online service provider's current privacy practices. We argue that these policies also serve a second, often-overlooked function: they allocate residual data usage rights to online services or consumers, including the power to decide whether a service can modify its privacy practices and use consumer data in novel ways. We further argue that a central feature of the E.U.'s General Data Protection Regulation (GDPR), one of the most comprehensive and far-reaching privacy regulatory …

Introductory Remarks, Ethan Bordman, Ira S. Dizengoff, Sophie Dizengoff

Cardozo Arts & Entertainment Law Journal

The article discusses the legal implications and challenges surrounding college athletes' rights to profit from their name, image, and likeness (NIL), following the NCAA's 2021 decision to lift its ban on athletes cashing in on their fame. The symposium explores the evolving legal landscape, including regulatory frameworks, equity issues, and the role of collectives, highlighting the need for clearer guidelines to address the complexities arising from this change.

Bound To A Mast: Matelotage And The Queer Contract In Shakespeare's Twelfth Night And The Tempest, Agnese Palumbo

Comparative Literature M.A. Essays

Analyzing the language of a 1699 matelotage contract and locating that same terminology in Shakespeare’s maritime plays, this essay argues that there is a thematic and genealogical link between the contractual forms of homosocial union that existed during the premodern and early modern periods and the bonds shared by male characters in those plays where a “sea change” occurs. First, the essay delineates a history of matelotage and of contractual bonds; then, it establishes this homosocial dynamic as an additional point of inquiry for male relationships in Shakespeare. Critical attention has largely overlooked this queer contract, and prioritized a focus …

Undoing Undue Influence: How The Doctrine Can Avoid Judicial Subjectivity By Omitting The Vulnerability Element, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

The utility of the doctrine of undue influence has been declining for several decades because of its inclusion of the element of vulnerability or, put another way, inquiry into the mind of the one allegedly being influenced. I argue that the courts’ inquiry into the mind of the influencee to determine whether this person was vulnerable is not a useful construct as an element of the doctrine. This Article addresses three contexts in which assessing one’s vulnerability is problematic: (1) in the contract formation process occurring in the general population (meaning not within a high-control group), such as the …

“Buy Now, Pay Later: No Fees. No Credit Check.”, Elaine Lee

Seattle Journal of Technology, Environmental, & Innovation Law

Afterpay and Affirm, are financial technology (“fintech”) platforms that allow consumers to split their low-cost purchases into four installment payments–with seemingly no interest, fees, or hard credit inquiries. Similar to retailer fees on credit card transactions, these companies generate most of their profits as the intermediary between consumers and merchants. By flaunting celebrities like A$AP Rocky and Keke Palmer, the loan products are heavily advertised as the “cool” alternative to traditional credit cards and are particularly well-received among Millennials and Generation Z (“Gen Z”) consumers. Consequently, consumer advocates are duly concerned that lenders irresponsibly extend credit to a young generation, …

Mfns In Digital Distribution: Anticompetitive Effects Examined Through Modern Gaming Distribution, Ryan Wolff

Seattle Journal of Technology, Environmental, & Innovation Law

Most Favored Nation clauses and their place within digital distribution agreements is a problem that seems yet to be resolved. The argument that entities with large enough market share in their respective market can utilize these provisions to ensure that they remain on top is a contested topic that is actively being challenged in the courts. The lawsuit against Valve, the video game publisher and distributor, provides a lens through which the potential harms and advantages of these provisions can be examined. In analyzing the finer points of this situation potential solutions can be designed to, in a perfect world, …

And A Second Opinion For All... And Anything Else? The Jack Eichel Saga And Issues Of Medical Autonomy, Seth Warshaw

Cardozo Arts & Entertainment Law Journal

The note examines the legal and bioethical implications of the Jack Eichel Saga, focusing on the dispute between Eichel and the Buffalo Sabres regarding medical treatment under the NHL Collective Bargaining Agreement (CBA). It argues that the current CBA's "due consideration" standard for team physicians fails to adequately protect players' medical autonomy and informed consent rights. The analysis concludes that the Sabres would likely prevail in arbitration due to the narrow interpretation of the CBA's provisions, but the dispute highlights the need for reforms to align the CBA with ethical medical standards and enhance player autonomy.

Among Us: Impostor Syndrome And Barriers To Black Success, Deshayla M. Strachan

Cardozo Journal of Equal Rights & Social Justice

Black women are going places-but they're not going into the practice of law. While law schools are becoming more diverse, the legal profession is not. The lack of diversity in the legal profession, coupled with existing implicit bias, causes heightened Impostor Syndrome in women, especially Black women, as well as women from other underrepresented groups. The harder the impostor feelings hit, the more difficult it is to retain women of color in the legal profession. Emotions associated with Impostor Syndrome (e.g., feelings of insufficiency) begin upon entry into the legal profession, as many roadblocks prevent marginalized groups from gaining admission …

Contract Production In M&A Markets, Stephen J. Choi, Mitu Gulati, Matthew Jennejohn, Robert E. Scott

Faculty Scholarship

Contract scholarship has devoted considerable attention to how contract terms are designed to incentivize parties to fulfill their obligations. Less attention has been paid to the production of contracts and the tradeoffs between using boilerplate terms and designing bespoke provisions. In thick markets everyone uses the standard form despite the known drawbacks of boilerplate. But in thinner markets, such as the private deal M&A world, parties trade off costs and benefits of using standard provisions and customizing clauses. This Article reports on a case study of contract production in the M&A markets. We find evidence of an informal information network …

Comparing Agency Costs In Contract Production: Private Equity M&A Versus Corporate And Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Different areas of transactional practice, such as M&A or high-yield bonds and sovereign bonds, vary in terms of the degree to which they are afflicted by agency problems. In some areas, clients are actively involved in deal making, and in others they are not present until well after the deal is done. If vulnerability to agency problems differs, and these agency problems impact the quality of contract production, one would expect those differences to appear when comparing contract production across practice areas. This Article compares one feature of contract production — the problems of encrusted and sticky boiler-plate — across …

Debt Textualism And Creditor-On-Creditor Violence: A Modest Plea To Keep The Faith, Eric L. Talley, Sneha Pandya

Faculty Scholarship

In this article, we argue that debt textualism played a key role in laying the groundwork for our present malaise by encouraging contracts to become increasingly bloated, complex, and rigid up to the point of buckling completely. The dense contractual landscape wrought by debt textualism, when freshly populated with a calculating coterie of financial mercenaries, has transformed corporate lending markets into an elaborate and costly contest of Hunger Games-worthy contractual “gotcha” where (a) lenders scour loan agreements for unappreciated loopholes to undercut borrowers; (b) borrowers do the same in an attempt to counteract lenders; and (c) permutated coalitions from …

Can Contract Emancipate? Contract Theory And The Law Of Work, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work.

Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by – and relegated to – employment and labor law. But contract law is not what contract theorists claim. Neither …

Stop Threatening Nails With Wrenches: Why Military Contractor Misdeeds Abroad Should Be Handled Using The Uniform Code Of Military Justice Rather Than The Current Civilian First Strategy, Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

Many legal violations by military contractors are never addressed through the legal system. This is despite Congress having enacted two laws that attempt to hold contractors accountable for crimes committed abroad. The reason for this gap is that the military has adopted a civilian-first strategy where the primary choice of prosecution is delegated to the Department of Justice. This is a mistake. This article explains why the civilian-first strategy has been so unsuccessful and how the military can appropriately move to a military-first strategy. Doing so would provide the military better control over the Total Force, which is particularly important …

A Contractual Relationship With Environmental Justice, Seema Kakade

American University Law Review

While corporations have long grappled with environmental issues, environmental justice is different. Corporations regularly manage compliance with environmental permits over a polluting facility’s long lifespan. Justice issues, however, are a fast-growing space for corporations as they wrestle with employee, government, customer, and public demands to step up for the communities that are directly impacted by the pollution their facilities produce. This Article explores the relationship between corporate polluters and impacted communities, with a focus on private-ordering tools like contracts. Such a focus enriches environmental justice law’s traditional focus on government decisionmakers, moving instead to corporate decision-making about where, how, and …

Gender Inequality In Contracts Casebooks: Representations Of Women In The Contracts Curriculum, Deborah Zalesne

FIU Law Review

Gender has always explicitly or implicitly played a critical role in contracting and in contracts opinions—from the early nineteenth century, when married women lacked the legal capacity altogether to contract, through the next century, when women gained the right to contract but continued to lack bargaining power and to be disadvantaged in the bargaining process in many cases, to today, when women are present in greater numbers in business and commerce, but face continued, yet less overt, obstacles. Typical casebooks provide ample offerings for discussions of the ways in which parties can be and have been disadvantaged because of their …

Waivers, Keith N. Hylton

Faculty Scholarship

Waiver contracts are agreements in which one party promises not to sue the other for injuries that occur during their contractual relationship. Waivers are controversial in the consumer context, especially when presented in standard form, take-it-or-leave-it contracts. The law on waivers appears muddled, with no consistent doctrine or policy among the courts on enforceability. The aim of this paper is to offer a consistent set of policies that can form the foundation of a consistent set of doctrines, leading ultimately to a more apparently consistent treatment of waivers in the courts. The most basic piece of this paper’s framework is …

Standard Licensing Template For University Of Akron Startups, Drew Horton

Williams Honors College, Honors Research Projects

In order to facilitate fast, equitable, and effective sublicensing to University of Akron technology startups, spinoffs, and spinouts, an express license was developed. This expresses license was developed by benchmarking existing terms in order to determine market rates. Universities, venture capital firms, and nonprofits were interviewed in order to establish a set of best practice guidelines for the creation of the express license. These results were then tabulated and statistically analyzed in order to determine a series of startup friendly terms that support the University of Akron’s interests. A series of express licenses were then developed from this data. These …

How To Interpret A Vending Machine: Smart Contracts And Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A smart contract is software designed to do the job of a legal contract: ensuring the performance of parties who might not otherwise trust one another to do so. By running a smart contract on blockchain, users can lock themselves into future performances without relying on a third-party enforcer or platform host, thereby realizing a “fully trustless” exchange. This new technology has wide range of potential applications, and contracts are likely to become an increasingly common part of the economy.

Some have argued that smart contracts represent a new type of legal contract, analogizing the software’s code to a contractual …

Prospecting, Sharecropping, And The Recording Industry, Olufunmilayo B. Arewa, Matt Stahl

Vanderbilt Journal of Entertainment & Technology Law

Digital-era disruption has had a significant impact on the recording industry and the business of music more generally. Digital-era music disruption draws attention to patterns of continuity within the recording industry. Notably, despite widespread use of digital technologies for the creation, dissemination, and consumption of music, core recording industry business models largely still draw from the predigital era. Recording industry business models have long been compared to other exploitative business models based on debt, including the sharecropping business. Business models in the recording industry have been a source of dispute by a broad range of recording artists, including highly successful …