Contracts Commons^™

Neither Contract Nor Tort: Salomon Triumphant?, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

This is a note on three cases: Palmer Birch v Lloyd [2018] 4 WLR 164, Gruber v AIG Management France SA [2018] EWHC 3030 (Comm) and Bumi Armada Offshore Holdings Ltd v Tozzi Srl [2019] 1 SLR 10.

Falcon Driftwood V. Day Chief, 19-Ap-12 (Blkft. Tr. Ct. App., Jan. 29, 2020), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court resolved a contract dispute for the sale of a trailer, in favor of the Plaintiff after the Respondent failed to make payments and pay insurance for the trailer to the Plaintiff pursuant to the legally binding contract. The Plaintiff retained legal title until such time as Respondent paid for the trailer in full. The Court reversed the lower court determination and ruled that the Respondent is to return the trailer, in the same condition received by the respondent, within 10 days.

Johnson Order Denying Defendants’ Motion For Protective Order, Kelly Lee Ellerbee

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Contract Rights Under The I-864 Affidavit Of Support: Seventh Circuit's Reasoning Binds Courts' Hands In A Shifting Landscape For Public Charge Doctrine, John T. Burger

St. John's Law Review

(Excerpt)

Courts are currently split on the issue of whether a mitigation of damages defense is available to sponsors to the Affidavit. Leading cases, including Liu, rely upon the unique nature of the form to assert that such defenses are precluded. This Note will argue that the I-864 should be treated under the same principles as a typical common-law contract. Part I of this Note will trace the history of the I-864 form, primarily focusing on the legislation and case law rendering the form an enforceable contract. Part II will discuss Liu v. Mund, focusing extensively on the United States …

Perspective: Impracticability And Frustration In A Time Of Covid-19, Michael Van Alstine

Maryland Carey Law

No abstract provided.

Statutes And The Common Law Of Contracts: A Shared Methodology, Juliet P. Kostritsky

Faculty Publications

This chapter explores the intersection between, or the impact of, statutes on contract law, and compares the relative importance of, and intersections between, statutory and common law in contract.

Why Choose Ltas? An Empirical Study Of Ohio Manufacturer’S Contractual Choices Through A Bargaining Lens, Juliet P. Kostritsky, Jessica Ice

Faculty Publications

This paper contributes to recent scholarship regarding Long Term Agreements (LTAs) by providing empirical evidence that suppliers are more likely to undertake the costs of an LTA if the transaction requires significant capital expenditures or the potential for large sunk costs. Through a survey of a random group of 63 Ohio supplier/manufacturers, the paper explores why supplier/manufacturers with a full range of contractual and non-contractual solutions might choose one set of arrangements over others. It then seeks to link its findings to a broader theory of how parties bargain to solve durable problems under conditions of uncertainty, sunk costs and …

Reframing Housing: Incorporating Public Law Principles Into Private Law, Kristen Barnes

College of Law - Faculty Scholarship

A new public-private law paradigm is developing with respect to the relationship of the state to private contracts. The paradigm melds private law concepts like unconscionability, good faith, and fair dealing with the public human rights principles of dignity and vulnerability. I trace this paradigm shift in the context of the housing law of Spain, where several rich cultural and legal resources have inspired a new sensibility with regard to residential mortgage loan contracts, rental agreements, and the overall duties and obligations of governments to address the citizenry's housing needs. Although this reorientation reflects decisions from the European Court of …

Whistleblowing In The Compliance Era, Jeffrey R. Boles, Leora Eisenstadt, Jennifer M. Pacella

Georgia Law Review

International events over the last year have propelled the
importance of whistleblowers to the forefront. It is increasingly
evident that whistleblowers provide immense value to society.
Yet, for years, whistleblowers have been victims of retaliation,
commonly experiencing threats, discrimination, and
employment termination due to their reporting. Against the
backdrop of a society heavily defined by compliance-focused
initiatives—where organizations and industries construct
robust compliance programs, internal policies, and codes of
conduct—this Article highlights a significant gap in legal
protections for would-be whistleblowers. While compliance
initiatives demonstrate that active self-regulation is
increasingly a staple of organizational governance, this Article
pinpoints the problems …

Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo

Northwestern Journal of International Law & Business

This article investigates the values and latent policies in the area of the availability of specific performance (SP) as a contractual remedy, which have shaped the development of Chinese law. The National People’s Congress (Legislature) and Supreme People’s Court in China have addressed the remedial structure of Chinese contract law, namely, the availability of the remedy of SP as opposed to the awarding of damages only. The law is clear that the remedies of SP and damages are ordinary remedies that a claimant is free to choose between. The question that this article confronts is whether in practice the equality …

Robo-Bureaucrat And The Administrative Separation Of Powers, Matthew Seipel

Cardozo Law Review de•novo

This Essay argues that the administrative state's use of artificial intelligence (AI) creates concentrated, unchecked power at the agency leadership level. The Essay draws from Professor Jon Michaels' theory of the administrative separation of powers, and it describes how AI in government disrupts this separation. To alleviate this concern, the Essay puts forward one modest proposal: Congress should amend federal public sector labor law to require collective bargaining over an agency’s decision to use AI.

Easy As Abc: Why The Abc Test Should Be Adopted As The Sole Test Of Employee–Independent Contractor Status, Eric Markovits

Cardozo Law Review de•novo

This Note examines the features and history of the three most commonly used tests for employee classification before advocating that the ABC test be more broadly adopted going forward.

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Faculty Scholarship

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement ("DRM"), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Cordes

Northwestern Journal of International Law & Business

Investor-state contracts are regularly used in low- and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how …

Crowding Out Theory: Protecting Shareholders By Balancing Executives’ Incentives In France, The United States, & China, Palden Flynn

Northwestern Journal of International Law & Business

This paper explores the differences between executive compensation regimes in France, the United States, and China. It asks whether there is a link between state regulation of real options as a form of executive compensation and state regulation of shareholder protections. This paper argues that if a country regulates the use of real options as compensation, then that country is also more likely to have strong shareholder protection laws. This argument seems to be true based on a descriptive review of executive compensation law and shareholder protections in France, the United States, and China.

If it is true that countries …

De Facto Shareholder Primacy, Jeff Schwartz

Maryland Law Review

No abstract provided.

The Myth Of Optimal Expectation Damages, Theresa Arnold, Amanda Dixon, Madison Sherrill, Mitu Gulati

Marquette Law Review

A much-debated question in contract law scholarship is what the optimal measure of damages for breach should be. The casebook answer—drawing from the theory of efficient breach—is expectation damages. This standard answer, which was a major contribution of the law and economics field, has come under attack by theoreticians within that field itself. To shed an empirical perspective on the question, we look at data on the types of damages provisions parties contract for themselves in international debt contracts. Specifically, we examine issuer call provisions, which are economically equivalent to damages for prepayment, yet not viewed as legally problematic in …

A Commitment To The Whole Athlete: Embracing The Role Of Cannabinoids In Collegiate Athletics, Kelli Rodriguez Currie

Seattle University Law Review

Cannabinoids can be a highly effective way for athletes to combat various kinds of pain associated with intense training. Derivatives of cannabis, such as marijuana, have been used for centuries as a form of pain relief. Part I of this Article discusses how cannabinoids are used in sports medicine. Part II discusses the different approaches to marijuana and cannabidiol use across sports leagues. Part III highlights the inconsistencies between the NCAA’s approach to testing for substance abuse and its investment in student-athletes’ well-being. Part IV discusses how the NCAA must focus on student-athlete health. Finally, Part V concludes that the …

Revisiting The Enforceability Of Online Contracts: The Need For Unambiguous Assent To Inconspicuous Terms, Tom Mozingo

Seattle University Law Review

In determining the enforceability of online contracts, namely those formed from the use of smartphone applications, courts typically look to whether the contract terms were reasonably conspicuous or communicated to the consumer. With the rise of “browse-wrap” contracts, where terms are not directly communicated to the consumer or where the consumer is not required to click the equivalent of an “I agree” button clearly manifesting assent to the terms, courts have inconsistently applied the reasonable communicativeness standard to the detriment of consumers and application developers alike. This Comment will explore the development of browse-wrap contracting jurisprudence and the need to …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.