Contracts Commons^™

Using Contract Law To Resolve Frozen Pre-Embryo Disputes, Allyson Wade

Maryland Law Review

No abstract provided.

Must American Artists Starve?

Florida A & M University Law Review

This legal essay proposes a solution to the problem of artist and publisher compensation as deprived by MMA and discusses the realities and limitations of pursuing a Takings Clause violation under the Fifth Amendment. It further proposes a modern perspective on copyrighted works as property to lay the intellectual foundation for copyright reform and offers that the “best efforts” standard should replace the “commercially reasonable efforts” standard since modernizing copyright law is essential to the music industry. Lastly, the author suggests a practical approach to pursuing a Due Process claim under the Fifth Amendment.

The Criminal Legal System Doesn’T Care About Your Mental Illness, Fredrick E. Vars

Cardozo Law Review de•novo

Why would a beloved small-town doctor with no history of violence suddenly strangle his father to death? The Other Dr. Gilmer is a gripping account of the search for an answer to this question. It turns out the doctor has a rare neurological disorder that likely caused the killing. If only the diagnosis had come before trial, the author believes, the doctor would not have been convicted of first-degree murder and sentenced to life without parole. That belief is appealing, but naïve. Jails and prisons are full of people with mental illness. Misdiagnosis is not the reason. A close examination …

New York's Requirements For Contractual Definiteness With Application To The Formation Of Investment Vehicles, Royce De R. Barondes

Faculty Publications

A review of 82 modern New York cases reveals an unexpected frequency of authority requiring contractual definiteness as to what may reasonably appear to be minor terms.
Illustrative are cases holding inadequately definite ordinary ways preliminary agreements may express compensation on a percentage of net basis. Other unexpected authority (i) is less willing than expected to allow subsequent actions to provide sufficient definiteness to initially indefinite agreements and (ii) denies the enforceability of confidentiality provisions and a right of first refusal.
The survey includes some unexpected support for contracts specifying a plausibly material portion of the consideration with inadequate definiteness …

Illusory Privacy, Thomas Haley

Indiana Law Journal

For decades, regulators, consumer advocates, and privacy theorists have grappled with one of privacy’s most important questions: how to protect private information that consumers unwittingly give away with the click of an “I accept” button. Reform efforts remain mired in a morass of text, focusing on the increasing volume and complexity of firms’ terms of service and privacy policies. This Article moves beyond such existing approaches. By analyzing terms of service and privacy policies from hundreds of top websites—which this Article calls “platform terms”—this Article demonstrates that the prevailing “notice and consent” paradigm of privacy regulation cannot provide meaningful protection. …

Regulating Noncompetes Beyond The Common Law: The Uniform Restrictive Employment Agreement Act, Stewart J. Schwab

Indiana Law Journal

The common law has never treated a post-employment noncompete agreement between employer and employee like an ordinary contract. Rather, a court will enforce a noncompete only if it is reasonably tailored in time, geography, and scope of business to further a legitimate employer interest. Suppressing competition is an understandable but not legitimate interest.

While the common-law approach works well enough for some occupations, it is problematic for both workers and employers in many cases. It is a challenge for workers who don’t know about the noncompete until after starting work, for lowwage workers who are unlikely to have trade secrets …

Do Social Movements Spur Corporate Change? The Rise Of “Metoo Termination Rights” In Ceo Contracts, Rachel Arnow-Richman, James Hicks, Steven Davidoff Solomon

Indiana Law Journal

Do social movements spur corporate change? This Article sheds new empirical and theoretical light on the issue through an original study of executive contracts before and after MeToo. The MeToo movement, beginning in late 2017, exposed a workplace culture seemingly permissive of high-level, sex-based misconduct. Companies typically responded slowly and imposed few consequences on perpetrators, often allowing them to depart with lucrative exit packages. Why did companies reward rather than penalize bad actors, and has the movement disrupted this culture of complicity?

The passage of time since the height of the movement allows us to investigate these issues empirically, using …

Wise Up! Why It’S Time To Dump Reed V. Wiser And Get Real About Third-Party Actions, David Cluxton

Journal of Air Law and Commerce

The Warsaw Convention of 1929 and the Montreal Convention of 1999 (Conventions) are international treaties governing the liability of the air carrier for damage arising during international carriage by air, e.g., passenger death or bodily injury. The foundation for the applicability of these Conventions is the contract of carriage. However, given the nature of the air transport operations and their technological complexity, a given accident can result from several causes attributable to different parties. The plaintiff (e.g., the passenger) may have the option of suing, not only the carrier based on the contract of carriage, but, alternatively, an airframe or …

Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French

Faculty Scholarship

Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would …

Protect And Serve, Marissa Jackson Sow

Law Faculty Publications

There exists a substantial body of literature on racism and brutality in policing, police reform and abolition, the militarization of the police, and the relationship of the police to the State and its citizenry. Many theories abound with respect to the relationship between the police and Black people in the United States, and most of these theories rest upon the basic assumption—undergirded by constitutional, civil rights, and human rights law—that Black people in the United States are entitled to due process and equal protection when they are in contact with the police or other law enforcement officers.

This Article uses …

Basketball On Strike: The All-Stars Of The Fight For Racial Equality, Sherif Robert Hesni Jr.

Vanderbilt Journal of Entertainment & Technology Law

National Basketball Association players have a long history of fighting against racial injustice. In August 2020, players participated in the most attention-grabbing endeavor to date: a league-wide strike against racial discrimination in the United States. Refusing to play games entails financial risk for players because of a no-strike clause in the collective bargaining agreement between the National Basketball Players Association and National Basketball Association team governors. Team governors can fine, bench, or fire players for refusing to play. However, it may be infeasible to discipline players for attempting to fight for racial equality—-players are extremely important to the well-being of …

Debunking The Standardized Nature Of Insurance Policies, Elizabeth Sousa

Fordham Journal of Corporate & Financial Law

This article discredits the conventional view of insurance policies as standardized contracts that do not vary across insurance companies and policyholders. Contrary to this view, there are wide variations in policy language in both the admitted and non-admitted insurance markets. These deviations reduce the perceived benefit of insurance policies as standardized contracts intended to promote predictability and lower transaction costs for policyholders by focusing only on the most salient terms. Nowhere is this deviation more apparent than with Commercial General Liability (CGL) policies defendants are turning to in the current opioid litigation.

The opioid epidemic has been plaguing the United …

A New Methodology For The Analysis Of Visuals In Legal Works, Michael D. Murray

Law Faculty Scholarly Articles

The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. To date, the scholarship on visuals in legal communications has been heavily descriptive, with some forays into the ethical and practical considerations of the use of “visualized” legal works. No one has yet devised a comprehensive analytical methodology that draws upon the disciplines of visual literacy, visual cultural studies, visual rhetoric, and mise en scène analysis to evaluate …

Locking Down 'Reasonable' Cybersecurity Duty, Charlotte A. Tschider

Faculty Publications & Other Works

Following a data breach or other cyberattack, the concept of “reasonable” duty, broadly construed, is essential to a plaintiff’s potential causes of action, such as negligence, negligence per se, breach of contract, breach of fiduciary duty, and any number of statutory claims. The impact of an organization’s discretionary choices, such as whether to take specific security steps for a system, may result in potential risk to an individual, another organization, or the organization itself. Although organizations regularly engage in cybersecurity risk analysis, they may not understand what practices will be considered reasonable in a court of law and are therefore …

When Binding Doesn't Really Mean Binding: The Early Decision College Application, Jean Steadman

Mitchell Hamline Law Review

No abstract provided.

Whiteness As Contract, Marissa Jackson Sow

Washington and Lee Law Review

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

Whiteness As Guilt: Attacking Critical Race Theory To Redeem The Racial Contract, Marissa Jackson Sow

Faculty Publications

The year of racial justice awakening following George Floyd’s 2020 murder have been accompanied by a rise in attacks on Black thought, including Critical Race Theory, led by far-right activists who are invested in maintenance of a white supremacist status quo in the United States. This Essay uses artist Kara Walker’s 2014 Sugar Sphinx to contextualize the critiques on Critical Race Theory and other manifestations of Black intellectualism as a campaign for perpetual absolution of white guilt, and even redemption of white supremacy, that is openly embraced by white nationalists but also secretly nourished—and cherished—by the white liberal elite.

Aspen American Insurance Co. V. East Coast Precast & Rigging Llc Et Al., 252 A.3d 249 (R.I. 2021), Corey Sherman

Roger Williams University Law Review

No abstract provided.

2021 Surveys Of Rhode Island Law

Roger Williams University Law Review

No abstract provided.

Twitter V. Musk: The "Trial Of The Century" That Wasn't, Ann M. Lipton, Eric L. Talley

Faculty Scholarship

The months-long saga over Elon Musk's on-again, off-again acquisition of Twitter provided considerable entertainment for lawyers and laypeople alike. But for those of us who teach business law, it also provided a unique (and in certain ways, vexing) opportunity to show real-time examples of the legal principles that are the grist for courses in contracts, corporations, corporate finance, and mergers and acquisitions.

Both of us found ourselves incorporating the saga into our classroom discussions, which in turn informed our own thinking about how the dynamic played out. Although we were both relatively active on social media (indeed on Twitter itself) …