3,858 research outputs found

    Brief of Douglas Laycock, James E. Pfander, Alexander A. Reinert and Joanna C. Schwartz as Amici Curiae in Support of Petitioners

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    Amici are legal scholars whose focus includes remedies, federal courts, the separation of powers, and constitutional law. They have a strong professional interest in the proper development of the law, which includes accounting for the best available empirical evidence and structural legal principles bearing on the questions here at issue. Amici are Douglas Laycock, Robert E. Scott, Distinguished Professor of Law at the University of Virginia School of Law; James E. Pfander, Owen L. Coon Professor of Law at the Pritzker School of Law at Northwestern University; Alexander A. Reinert, Max Freund Professor of Litigation and Advocacy at the Benjamin N. Cardozo School of Law; and Joanna C. Schwartz, Professor of Law at UCLA Law School

    A Lesson on Some Limits of Economic Analysis: Schwartz and Scott on Contract Interpretation

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    Contract interpretation has been a hot topic of scholarly debate since 2003, when Professors Alan Schwartz of Yale and Robert E. Scott of Columbia published their provocative article, Contract Theory and the Limits of Contract Law, much of which develops an efficiency theory of contract interpretation. In 2010, they published a restatement of this theory and reply to critics, which has not yet drawn much commentary. This Article suggests that, even as restated, their theory offers an object lesson on some limits of economic analyses of the law. The Article assumes that their central argument is mathematically and economically impeccable. It suggests, however, that the theory nonetheless fails. Their central argument rests on a naïve understanding of the nature of language and the legal context of contract interpretation. Their efficiency claim neglects an alternative theory that does not rest on economics, but that probably would support a more efficient law. And their basic premise—that efficiency should be the sole goal of a law for business contracts—makes the theory strikingly vulnerable. In particular, virtually everyone, Schwartz and Scott included, agrees that rule of law values should constrain all laws. When considered, however, they doom Schwartz and Scott’s interpretation theory, as they may doom any monist theory

    Sovereign Debt and the Three and a Half Minute Transaction: What Sticky Boilerplate Reveals about Contract Law and Practice

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    The Three and a Half Minute Transaction: Boilerplate and the Limits of Contractual Design, by Mitu Gulati and Robert E. Scott, is a cautionary tale about modern legal practice where the protagonist is the standard sovereign debt contract. The book discloses an undeniable flaw in sovereign bond boilerplate (the widely used pari passu clause) that, in spite of expensive, sophisticated lawyering, perpetuates a risky disconnect between party intent and contract terms. The fact that boilerplate terms persist even in elite sovereign-lending practices suggests that the problem of over-reliance on standard form language is ubiquitous.When contract terms diverge from client risk management and intent, lawyers have neither provided clients proper representation nor justified their fees. Situated in the context of sovereign debt failures and a profession at the crossroads, the authors\u27 engaging book sounds a well-researched wake-up call to the law. This review explains the context of their study and then builds upon their findings. This review explores two questions suggested but not addressed in The Three and a Half Minute Transaction, namely: What does boilerplate stickiness reveal about the continuing validity of certain contract law doctrines, and what does it suggest for the evolving role of the modern transactional attorney? The conclusion on both accounts is that transactional law practice requires a systemic overhaul, re-focusing lawyerly attention from bulk production of contracts to innovations in contract research and design

    Hard Cases Under the Convention on the International Sale of Goods: A Proposed Taxonomy of Interpretative Challenges

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    CISG was formally uniform at the time of its adoption. It used the same words in all of the jurisdictions adopting it. But uniform words are not enough to guarantee uniform application. For many commentators, in fact, the most significant impediment to the continued existence or efficacy of the CISG is the lack of uniform interpretive outcomes in hard CISG cases – cases where a CISG provision is vague either on its face or in its application. Without greater uniformity of interpretive outcomes, these commentators suggest, the CISG will, over time, fail to supply standard solutions to similar contracting problems and thus fail to supply the predictability that parties need. In this Article, Professor Allen Blair argues that these commentators start with an exaggerated expectation about the kind and degree of uniformity called for by the CISG and demanded by parties. Contrary to the standard conception of CISG interpretation, uniformity of interpretive outcomes is an improper goal with respect to CISG provisions cast as open-textured standards, and any effort to harden these standards into rigid rules could, in fact, undermine the efficiency goals of contracting parties

    Variation in Boilerplate: Rational Design or Random Mutation?

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    Standard contract doctrine presumes that sophisticated parties choose their terminology carefully because they want courts or counterparts to understand what they intended. The implication of this “Rational Design” model of rational behavior is that courts should pay careful attention to the precise phrasing of contracts. Using a study of the sovereign bond market, we examine the Rational Design model as applied to standard-form contracting. In NML v. Argentina, federal courts in New York attached importance to the precise phrasing of the boilerplate contracts at issue. The industry promptly condemned the decision for a supposedly erroneous interpretation of a variant of a hoary boilerplate clause. Utilizing data on how contracting practices responded to the decision, we ask whether the market response indicates that parties in fact intended for the small variations in their contract language to embody a particular meaning. We find the data supports a model closer to random mutation rather than rational design

    Parol Evidence Rules and the Mechanics of Choice

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    Scholars have to date paid relatively little attention to the rules for deciding when a writing is integrated. These integration rules, however, are as dark and full of subtle difficulties as are other parts of parol evidence rules. As a way of thinking about Hanoch Dagan and Michael Heller’s The Choice Theory of Contracts, this Article suggests we would do better with tailored integration rules for two transaction types. In negotiated contracts between firms, courts should apply a hard express integration rule, requiring firms to say when they intend a writing to be integrated. In consumer contracts, standard terms should automatically be integrated against consumerside communications, and never integrated against a business’s communications. The argument for each rule rests on the ways parties make and express contractual choices in these types of transactions. Whereas Dagan and Heller emphasize the different values at stake in different spheres of contracting, differences among parties’ capacities for choice — or the “mechanics of choice” — are at least as important

    America’s Working Families

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    [Excerpt] Working families throughout America are increasingly being squeezed—they are working longer today to pay for middle-class living than they had to 25 years ago. Nationally, today’s families are facing a combination of stagnant incomes and staggering cost increases for health care, education, housing, transportation and, especially now, fuel. In 2005, the average two-earner family needed to work 31.5 weeks a year to pay for taxes and health care, housing, college and transportation costs, compared with 30.2 weeks in March 2001 and 28.7 weeks in March 1979. After paying for those basic needs, that average family had 951lessthanfamiliesin2000and951 less than families in 2000 and 1,702 less than families in 1980 to pay for other basic items as well as to save for retirement
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