Contracts Commons^™

How Can Federal Actors Compete On Noncompetes? Examining The Need For And Possibility Of Federal Action On Noncompetition Agreements, Robert Mcavoy

Dickinson Law Review (2017-Present)

Employees have been frustrated by the restrictiveness of noncompete agreements and confused about their enforceability for decades. The added complication of choice-of-law provisions in employment contracts with noncompetes creates a sea of unpredictability for both employees and employers.

Each state applies its own policy to noncompete agreements. While every state treats noncompetes differently than typical contract provisions, a broad spectrum exists between the states that are friendly and those that are hostile to the enforcement of noncompetes. Employees and employers often fail to understand whether their noncompete is enforceable under the jurisdiction chosen by the contract, and courts override choice-of-law …

Controlling Fairness In Standard Form Contracts: What Can Courts Do, And What Should They Do?, Marcus Moore

All Faculty Publications

Unfair terms in standard form contracts are one of Contract Law's most notorious and enduring problems. The vast transnational literature on this, now a century old, has long worked out its contours, even as it still searches for more effective solutions. The central problem can be simply stated: A form drafter's ability to dictate terms-characteristically unknown and unbargained by the parties who are form recipients-allows, in the absence of any other legal control, for the incorporation of one-sided terms favouring the drafting party. The implications are significant: The exhaustive list of terms typical of such contracts, combined with the pervasiveness …

Whiteness As Contract, Marissa Jackson Sow

Faculty Publications

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 …

Frustration, The Mac Clause, And Covid-19, Andrew A. Schwartz

Publications

COVID-19's impact on business has been exasperating—but is it Frustrating? The Frustration doctrine of contract law excuses a party from its contractual obligations when an extraordinary event completely undermines the principal purpose of making the deal. This doctrine has long been a marginal player in contract litigation, as parties rarely invoked it—and usually lost when they did.

The COVID-19 pandemic, however, is precisely the type of extraordinary event that Frustration was designed to address, and the courts have been inundated over the past year by a wave of colorable Frustration claims. This timely Article describes the Frustration doctrine and explores …

The Uncertain Role Of Reliance In The Enforcement Of Charitable Subscriptions, Christine Abely

Lewis & Clark Law Review

In cases where charitable promises are made and later retracted, the Restatement (Second) of Contracts provides conflicting guidance as to how a court should factor in reliance by the charity when considering whether to enforce the promised donation by way of promissory estoppel. Specifically, the text of § 90(2) within the Second Restatement provides that a charitable subscription is binding “without proof that the promise induced action or forbearance.” The adoption of this provision represented a departure from the requirement of reliance historically necessary for the enforcement of most types of promises by promissory estoppel. According to the Second Restatement, …

Don’T “Estop” Me Now: Estoppel, Government Contract Law, And Sovereign Immunity If Congress Retroactively Repeals Public Service Loan Forgiveness, Michael J. Cole

Lewis & Clark Law Review

This Article discusses whether Direct Loan borrowers can obtain recourse against the federal government using either promissory or equitable estoppel theories if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. The Article addresses various hurdles, including sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article also contends that most, if not all, equitable estoppel claims would likely fail before a court. The Article then offers …

The Other Hand Formula, Maytal Gilboa, Yotam Kaplan

Lewis & Clark Law Review

A defendant who obtained an undeserved benefit at the plaintiff’s expense must make restitution of that benefit. This is the fundamental maxim of the law of unjust enrichment, allowing recovery based on the defendant’s gain rather than on the plaintiff’s loss. Unfortunately, liability in unjust enrichment is notoriously unprincipled. The key problem is that scholars and courts cannot agree on the correct manner for distinguishing meritorious claims from non-meritorious ones in this important area of the law.

To correct this deficiency, the present Essay provides a simple mathematical formula explaining when plaintiffs should be able to recover the defendant’s gain …

Ukrainian Refugees, Race, And International Law's Choice Between Order And Justice, Marissa Jackson Sow

Law Faculty Publications

The resurgence of racist rhetoric and policies concerning people fleeing the war in Ukraine serves as a reminder that the ostensible goals of the 1951 Convention Relating to the Status of Refugees and 1967 Protocol are regularly eschewed by states making decisions about how to allocate grants of asylum. This Essay makes the claim that racial tiering of protection-seekers demonstrates that states use international refugee law to negotiate their national whiteness contracts and to secure racially hegemonic geopolitical ordering.

Whiteness As Contract, Marissa Jackson Sow

Law Faculty Publications

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 …

Opening Remarks, Christopher J. Buccafusco, Matthew Vernace

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Implied Warranties V. Express Specifications Under The Uniform Commercial Code, David S. Coale, Michael P. Lynn

Oklahoma Law Review

No abstract provided.

Taxing Choices, Tessa R. Davis

FIU Law Review

Tax has a choice problem. At all stages of the making of tax, choice plays a role. Lawmakers consider how tax will impact the range and appeal of choices available to an individual. Scholars critique how tax may drive an individual toward or away from a given choice. Courts craft stories of how an individual had either free or deeply constrained choice, using their perception of the facts to guide their interpretation of tax law. And yet for all the seeming relevance of choice to tax, we have no clear definition of what we mean when we talk about choice …

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

FIU Law Review

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 …

Cancelled: Morality Clauses In An Influencer Era, Annamarie White Carty

Lewis & Clark Law Review

Morality clauses have been a contractual staple in the entertainment, sports, and advertising industries for over a century. Designed to curb illegal and immoral behavior, morality clauses that are used strategically and effectively can provide a powerful safeguard for both parties involved. This Note breaks down traditional morality clauses into three component parts and updates these provisions for the brand–influencer relationship. Doing so allows companies and influencers alike to harness the unparalleled effectiveness of this emerging market while protecting themselves against illegal escapades and shifting social viewpoints on morality.

No Oral Modification Clauses: Autonomy, Certainty Or Presumption?, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

By a judgment of Lord Sumption with which a majority of the court agreed, the Supreme Court in MWB Business Exchange Centres Ltd. v Rock Advertising Ltd. [2018] UKSC 24, [2019] A.C. 119 ruled that a contractual term which prescribed that the contract was not amendable save in writing signed by or on behalf of the parties (a No Oral Modification or “NOM” clause) was effective to invalidate subsequent oral variations to the contract. Lord Burrows later suggested extrajudicially (in P.S. Davies and M. Raczynska (eds.), Contents of Commercial Contracts (London 2020), 49) that Rock Advertising might not find traction …

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each …

Dentistry And The Law: Network Leasing Arrangements And Their Effect On Fees, Dan Schulte Jd

The Journal of the Michigan Dental Association

Dentists entering network leasing arrangements often face uncertainty about fees due to the lack of transparent fee schedules. While leasing companies aim to connect dentists with insurers and plans, the absence of clear payment information poses challenges. Dentists may receive varying amounts for the same services, impacting financial predictability. The article emphasizes the importance of understanding contract terms, obtaining fee schedules, and monitoring patient volume to assess the arrangement's overall benefit.

Lowering The Stakes Of The Employment Contract, Aditi Bagchi

Faculty Scholarship

Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting …

A Process For Politics, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

I argue that consistent and public process observance has a distinctly valuable function in sovereign debt restructuring, with no precise equivalent in national insolvency regimes. National regimes reflect the distribution bargains of their enactment, presumptively legitimate and binding. Debtors and creditors allocate insolvency losses in their shadow, with liquidation as a backstop and politics just outside the frame. All else equal, the restructuring process has a harder job with sovereign debt. There is no liquidation backstop and no default distribution scenario. Each crisis resolution episode must allocate losses from scratch among the country’s citizens, foreign and domestic creditors, and other …

Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, the class action has been in the crosshairs of defense-side procedural warfare. Repeated attacks on the class action by the defense bar, the U.S. Chamber of Commerce, and other defense-side interest groups have been overwhelmingly successful. None proved more successful than the “arbitration revolution”—a forty- year campaign to eliminate class actions through forced arbitration provisions in private contracts. The effects for civil justice have been profound. Scores of claims vanished from the civil justice landscape—claims concerning civil rights, wage theft, sexual harassment, and consumer fraud. The effects for social justice, racial justice, gender justice, and economic justice were …