Intent to Contract

There is a remarkable difference between black-letter contract laws of the United States and England. In England, the existence of a contract is supposedly conditioned on the parties\u27 intent to be legally bound, while section 21 of the Second Restatement of Contracts states that [n]either real nor apparent intention that a promise be legally binding is essential to the formation of a contract. There are also differences within U.S. law on the issue. While section 21 describes courts\u27 approach to most contracts, the parties\u27 intent to contact can be a condition of validity of preliminary agreements, domestic agreements and social arrangements, reporters’ promises of confidentiality to sources, and gratuitous promises. This Article develops an analytic framework for evaluating these rules and examines their relationship to the broader principles that animate contract law. Rules that condition contractual liability on proof of contractual intent must include rules for interpreting that intent. Those interpretive rules will include both interpretive defaults and rules for what it takes to opt-out of the default. By adjusting these default and opt-out rules, the law can achieve different balances between the duty-imposing and power-conferring functions of contract law, or among the various reasons for enforcement. This is demonstrated by an analysis of the rules for gratuitous promises, preliminary agreements, spousal agreements and reporters\u27 confidentiality promises. The results of that analysis include a new argument for the Model Written Obligations Act; a critique of Alan Schwartz and Robert Scott\u27s proposal preliminary agreements and a recommended alternative to it; and recommended changes to the rules for agreements between spouses. Attention to intent to contract requirements also indicates an overlooked aspect of how the enforcement of contracts affects extralegal norms and relationships of trust. Interpretive rules that require parties who want, or who do not want, legal liability expressly to say so are particularly likely to interfere with or erode extralegal forms trust that otherwise create value in transactions

Just a Soul Whose Intentions Are Good? The Relevance of a Defendant\u27s Subjective Intent in Defining a “Destructive Device” Under the National Firearms Act

This Note addresses the three-way circuit split among the U.S. Courts of Appeals over when, and to what extent, a court may consider a defendant\u27s subjective intent in defining a destructive device under the National Firearms Act. The circuit split centers on the Act\u27s ambiguous reference to intent in its definition of a destructive device, which is a statutorily prohibited firearm. After discussing the Act\u27s legislative history and development, this Note considers the role of mens rea in National Firearms Act cases. It next addresses the disagreement among the Courts of Appeals, first detailing three cases that give rise to the disagreement and then discussing additional cases which support each position. Finally, this Note argues that the U.S. Court of Appeals for the Second Circuit\u27s view, espousing a generally objective approach and eschewing a consideration of a defendant\u27s intent outside of a small range of cases, is most consistent with legisl ative history, statutory interpretation, and common sense

Reverse Transplant Tourism

In this article, we propose a novel form of kidney swap, which we label “Reverse Transplant Tourism.” This proposal has the potential to increase the number of successful transplants in the US at a time of great need, while reducing costs. It also will provide benefits to impoverished international patients with willing, compatible donors who otherwise would have no access to transplantation. Instead of non-US kidney donors being offered money through a black market middleman in exchange for one of their kidneys, Reverse Transplant Tourism would provide a legal and ethical exchange of living donor kidneys through kidney-paired donation. In this way, the donors will not receive money for their kidneys, but rather will receive a transplant for someone they love, while also helping a US pair who would otherwise be unable to transplant due to biological incompatibility

The Challenge of Co-Religionist Commerce

This Article addresses the rise of co-religionist commerce in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, coreligionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated. Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if they are to be judicially enforced. But many religious goods and services cannot be accurately translated without religious terms and structures. To address this translation problem, courts could make use of contextual tools of contract interpretation, thereby providing the necessary evidence to give meaning to co-religionist commercial agreements. However, contextual approaches to co-religionist commerce have been undermined by two current legal trends—one in constitutional law, the other in commercial law. The first is New Formalism, which discourages courts from looking to customary norms and relational principles to interpret commercial instruments. The second is what we call Establishment Clause Creep, which describes a growing judicial reticence to adjudicate disputes situated within a religious context. Together, these two legal developments prevent courts from using context to interpret and enforce co-religionist commercial agreements. This Article proposes that courts preserve co-religionist commerce with a limited embrace of contextualism. A thorough inquiry into context, which is discouraged by both New Formalist and many Establishment Clause doctrines, would allow courts to surmise parties\u27 intents and distinguish commercial from religious substance. Empowering the intent of co-religionist parties and limiting the doctrinal developments that threaten to undermine co-religionist commerce can secure marketplace dealings without intruding upon personal faith

Follow the leader or the pack? Regulatory focus and academic entrepreneurial intentions

Drawing on the academic entrepreneurship and regulatory focus theory literature, and applying a multilevel per- spective, this paper examines why university academics intend to engage in formal (spin-off or start-up companies and licensing university research) or informal (collaborative research, contract research, continuous professional development, and contract consulting) commercialization activities and the role local contextual factors, in partic- ular leaders and work-group colleagues (peers), play in their commercialization choices. Based on a survey of 395 science, technology, engineering, and mathematics (STEM) academics working in 14 Scottish universities, the research findings suggest that an individual’s chronic regulatory focus has a direct effect on their formal and informal commercialization intent. The results reveal that the stronger an individual’s chronic promotion focus the stronger their formal and informal commercialization intentions and a stronger individual chronic prevention focus leads to weaker intentions to engage in informal commercialization. In addition, when contextual interaction effects are considered, leaders and workplace colleagues have different influences on commercialization intent. On the one hand, promotion-focused leaders can strengthen and prevention-focused leaders can under certain cir- cumstances weaken a promotion-focused academic’s formal commercialization intent. On the other hand, the level of workplace colleague engagement, acting as a reference point, strengthens not only promotion-focused academ- ics’ intent to engage in formal commercialization activities, but also prevention-focused academics’ corresponding informal commercialization intent. As such, universities should consider the appointment of leaders who are strong role models and have a track record in formal and/or informal commercialization activities and also con- sider the importance workplace colleagues have on moderating an academic’s intention to engage in different forms of commercialization activities

The Challenge of Co-Religionist Commerce

This Article addresses the rise of co-religionist commerce in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, coreligionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated. Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if they are to be judicially enforced. But many religious goods and services cannot be accurately translated without religious terms and structures. To address this translation problem, courts could make use of contextual tools of contract interpretation, thereby providing the necessary evidence to give meaning to co-religionist commercial agreements. However, contextual approaches to co-religionist commerce have been undermined by two current legal trends—one in constitutional law, the other in commercial law. The first is New Formalism, which discourages courts from looking to customary norms and relational principles to interpret commercial instruments. The second is what we call Establishment Clause Creep, which describes a growing judicial reticence to adjudicate disputes situated within a religious context. Together, these two legal developments prevent courts from using context to interpret and enforce co-religionist commercial agreements. This Article proposes that courts preserve co-religionist commerce with a limited embrace of contextualism. A thorough inquiry into context, which is discouraged by both New Formalist and many Establishment Clause doctrines, would allow courts to surmise parties\u27 intents and distinguish commercial from religious substance. Empowering the intent of co-religionist parties and limiting the doctrinal developments that threaten to undermine co-religionist commerce can secure marketplace dealings without intruding upon personal faith