Prepublication Publications

Many law professors now post essentially complete drafts of their articles on SSRN and/or on university-sponsored working paper websites prior to submitting those articles for journal review and possible publication. This “prepublication publication,” so to speak, is useful for both authors and their readers, but it raises some self-plagiarism issues. There does not yet appear to be a broad consensus among journal editors on how those issues should be addressed. I argue that this increasingly common practice of SSRN and working paper prepublication of articles prior to their submission for journal review should be recognized as entirely appropriate, particularly if this prior publication is disclosed in the journal submission or is otherwise called to the attention of the journal editors. I also argue that in light of this practice law journals should rather substantially change the way that they operate. They should move to a wholly online format and provide only article abstracts and website links for the articles that they “accept,” rather than editing the articles and then providing their readers with full article texts

How Should the Statute of Frauds Apply to Reliance-Based Contracts?

The “sufficient writing” requirements of the Statute of Frauds were formulated with bargain-based contracts in mind. It is often difficult if not impossible for persons to meet those requirements for reliance-based contracts, since this would require them to produce a writing signed by the promisor that not only sufficiently evidenced the promise, but also provided sufficient evidence of the other elements of such reliance-based contracts: the foreseeability of their subsequent reliance upon the promise, the fact of their reliance, and that failure to enforce the promise would be unjust. There are several ways that courts can avoid the harsh results of applying the usual Statute of Frauds sufficient writing criteria to reliance-based contracts: (1) regard promises made binding through reliance as not constituting “contracts” subject to the Statute of Frauds, (2) relax the sufficient writing requirement for reliance-based contracts to require only evidence that the promise was made, or (3) estop the promisor from asserting a Statute of Frauds defense, under appropriate circumstances. This short article argues that the third approach is the best one for courts to pursue, and that sufficient guidance for courts as to when to apply estoppel is provided by Section 139 of the Restatement (Second) of Contracts

“Firm Offers” Under UCC Section 2-205 Should Be Treated the Same Way as Are Offers Included in Option Contracts

“Firm offers” under Section 2-205 of the Uniform Commercial Code are irrevocable for a period of time in accordance with the terms of that provision. But should those statutorily irrevocable offers be treated the same way as offers that are included in option contracts, and that are thereby contractually irrevocable, for the application of the “death or legal disability of the offeror” doctrine, or the “rejection or counteroffer” rules, or the “mailbox rule”? Or should firm offers be treated in a different fashion, as are offers not included in option contracts, for those purposes? This article argues that firm offers should be treated in the same way as are offers included in option contracts for those purposes

How Should the Statute of Frauds Apply to Reliance-Based Contracts?

The “sufficient writing” requirements of the Statute of Frauds were formulated with bargain-based contracts in mind. It is often difficult if not impossible for persons to meet those requirements for reliance-based contracts, since this would require them to produce a writing signed by the promisor that not only sufficiently evidenced the promise, but also provided sufficient evidence of the other elements of such reliance-based contracts: the foreseeability of their subsequent reliance upon the promise, the fact of their reliance, and that failure to enforce the promise would be unjust. There are several ways that courts can avoid the harsh results of applying the usual Statute of Frauds sufficient writing criteria to reliance-based contracts: (1) regard promises made binding through reliance as not constituting “contracts” subject to the Statute of Frauds, (2) relax the sufficient writing requirement for reliance-based contracts to require only evidence that the promise was made, or (3) estop the promisor from asserting a Statute of Frauds defense, under appropriate circumstances. This short article argues that the third approach is the best one for courts to pursue, and that sufficient guidance for courts as to when to apply estoppel is provided by Section 139 of the Restatement (Second) of Contracts