The Ethics of Invalid and \u27Iffy\u27 Contract Clauses, in Symposium: Contracting Out of the Uniform Commercial Code

This Symposium focuses on the extent to which attorneys can use agreed terms to supplant or “bump” the provisions of the Uniform Commercial Code (UCC). The articles in this Symposium demonstrate that the degree to which attorneys customarily “contract out” varies considerably from UCC article to article. In reality, though, the issues surrounding contracting out of UCC provisions are not limited to the UCC, statutes, or other codified rules. Most “repeat players” in the market periodically ask their lawyers to redraft their standard-form contracts in ways that increasingly favor the drafter. Some of these lawyers may intentionally draft clauses that are *488 already invalid, are about to be invalid, or pose ethical issues. Even though the clauses may be marginally valid, their efforts may be with or without their clients\u27 urgings. Other lawyers are not deliberate in their drafting efforts that “push the line” or include invalid clauses, but do so “because everyone else does it” or because their legal research is deficient. These invalid and iffy clauses raise ethical issues, and a few of them violate the rules of professional responsibility. The core of this Article focuses on violations of the Model Rules of Professional Conduct (MRPC or Model Rules), with small excursions into the Restatement (Third) of the Law Governing Lawyers, as well as ethical, but uncodified, considerations. Admittedly, the literature on professional responsibility and ethics of the legal profession is thin on “transactional” issues; that is, those that lawyers confront when they put together transactional relationships. As such, many of the conclusions in this Article are based on inferences and analogies from the existing (but thin) literature that applies to transactional ethics. My primary expertise is in commercial law rather than in legal ethics and professional responsibility. This Article is written from the former perspective, as an invitation to those in the latter field to do more work on the subject of “drafting on the edge.

Frontispiece on Good Faith: A Functional Approach within the UCC

This article examines areas of the law with thin jurisprudences on good faith, and how the Uniform Commercial Code’s (UCC’s) express statutory rules have become an active laboratory of experiments on good faith. Part I discusses the general obligation of good faith under the UCC. Part II lays out and discusses how the specific UCC provisions on good faith serve one or more of the following functions: restrict the exercise of one-sided power in a contract, in order to avoid unfair or unexpected results; restrict the range of possible responses to defective performance or to an unexpected event, in order to salvage the contractual relationship or preserve the parties\u27 negotiating positions; impose a duty to mitigate losses, in order to avoid giving the aggrieved party a windfall beyond the expectations of the contract; and protect the innocent third party buyer or purchaser against claims of the original owner and other claimants. This functional analysis of good faith in the UCC results in clearer definitions of “good faith” in each of the four categories discussed through a determination of the function that good faith serves in each type of situation

The Definitional Hub of e-Commerce: Record

This Article is a drafting history and a white paper on “record,” setting out the ABA\u27s Working Group on Electronic Writings and Notices\u27 (WG) deliberations and choices, the WG\u27s interactions with concurrent and subsequent UCC redraft committees, the principles and policies underlying the WG\u27s final decisions, and uses of “record” in subsequent statutes

Frontispiece on Good Faith: A Functional Approach within the UCC

This article examines areas of the law with thin jurisprudences on good faith, and how the Uniform Commercial Code’s (UCC’s) express statutory rules have become an active laboratory of experiments on good faith. Part I discusses the general obligation of good faith under the UCC. Part II lays out and discusses how the specific UCC provisions on good faith serve one or more of the following functions: restrict the exercise of one-sided power in a contract, in order to avoid unfair or unexpected results; restrict the range of possible responses to defective performance or to an unexpected event, in order to salvage the contractual relationship or preserve the parties\u27 negotiating positions; impose a duty to mitigate losses, in order to avoid giving the aggrieved party a windfall beyond the expectations of the contract; and protect the innocent third party buyer or purchaser against claims of the original owner and other claimants. This functional analysis of good faith in the UCC results in clearer definitions of “good faith” in each of the four categories discussed through a determination of the function that good faith serves in each type of situation

A Decade of Developments in Performance-Based Legal Education

This tribute summarizes some of the accomplishments of William Mitchell college of Law in performance-based learning in legal education between 1986 and 1996. It first chronicles developments in the first-and second-year performance-based courses and then turns to upper-level curricular developments. At each point, it touches on course development and scholarship--the parallel tracks pursued by faculty focusing on performance-based legal education. As a result of these developments, the college is well positioned to contribute to the growth of performance-based learning in legal education nationally

A Decade of Developments in Performance-Based Legal Education

This tribute summarizes some of the accomplishments of William Mitchell college of Law in performance-based learning in legal education between 1986 and 1996. It first chronicles developments in the first-and second-year performance-based courses and then turns to upper-level curricular developments. At each point, it touches on course development and scholarship--the parallel tracks pursued by faculty focusing on performance-based legal education. As a result of these developments, the college is well positioned to contribute to the growth of performance-based learning in legal education nationally

Our Perspective on IRAC

In this brief article, the authors present their view of IRAC, an acronym for Issue, Relevant law, Application to facts, and Conclusion. The authors conclude that IRAC can be taught so that students understand not only why it is useful as a thinking and writing tool, but also that proper use of it requires judgment and creativity. When IRAC is presented this way, the authors assert, it can serve first-year students well as they study legal writing. And they will operate accordingly, even without being aware of its influence, during their years as practicing lawyers