Contract Law

Registering Relationships

Despite the dramatic changes in family structure in the past decades—including the unprecedented and skyrocketing number of families who live in nonmarital arrangements— marriage and marriage-mimic institutions remain the only legal options for the recognition of relationships. This regulatory regime leaves millions of Americans without the means to establish and protect relationship rights. This Article suggests that the legal issues arising from nonmarital relationships would be best addressed if more options for legal recognition of such relationships were offered. Accordingly, this Article presents the primary principles of a registration-based marriage alternative that is founded on contract: “registered contractual relationships” (RCRs). This legal institution would offer couples the option to sign—and deposit with the state—a contract defining the partners’ obligations and rights vis-a?-vis one another and changing their status to that of “registered partners.” Registered partners would receive most of the rights and benefits that the state provides for married couples. Registration would not require a solemnization process nor any ceremonial or religious component and would provide an easy way to dissolve relationships in cases where couples do not have minor children. This model enjoys the flexibility of contracts and the certainty of official registration. It promotes greater autonomy in family formation in two ways: it allows more choice among state-sanctioned mechanisms, and it allows people to design the terms of their relationships, rather than imposing the one-size-fits-all structure of marriage. The introduction of RCRs would have far-reaching legal and societal consequences. RCRs would provide a functional model for registration and termination of partnerships, offer an alternative that is not associated with marriage's symbolism and that acts to reduce the harm that symbolism creates, and accommodate a wide range of family structures. At the same time, they would efficiently address the state’s need to regulate some aspects of relationships in the interest of avoiding and mediating conflicts and of encouraging couples to think about and negotiate their rights early in their relationships. The Article also looks at the success of the French Pacte Civil de Solidarite? (PACS)—a model that resembles RCRs and provides important lessons to the United States.

Many-to-Many Contracts

In classical contract law, the concept of one-to-one negotiations is familiar: contracts where one party negotiates with the other and, eventually, terms are offered and then accepted. More modern times have made us comfortable with the notion of one-to-many contracts: contracts typically drafted by large corporations and then distributed on a take-it-or-leave-it basis to the masses. This Article discusses a third kind of contract: a many-to-many contract, which may look like the standard one-to-many contract in that it is composed of nonnegotiable language. But when the arrangements between the parties are further considered, we will see that the point of the contract is not for one party to impose its terms on another without question, but for a series of parties to determine the best way to facilitate interchange. In such situations, imposing standard doctrines of contract interpretation may frustrate the purpose of the contract entirely, and for that reason, courts should approach the interpretation of these contracts with care.

The Illusion of Amateurism: A Climate of Tortious Interference in the World of Amateur Sports

When a player-agent pays an NCAA-eligible player in violation of NCAA regulations, the agent usually suffers no consequences. Instead, players and the universities they attend are sanctioned, often harshly. Attempts to find a solution to this problem--NCAA regulations, regulations of professional players associations, and state and federal legislation--have thus far been unsuccessful. There is a potential remedy, however: the tortious interference with contractual relations claim. When a gifted student-athlete decides to attend and play a sport at an NCAA-member university, the student-athlete typically receives a scholarship offer from the school and signs a National Letter of Intent. This Comment establishes that these documents together create a binding contractual relationship between the university and student-athlete. Thus, this Comment concludes, by dealing with a student-athlete in a manner that causes the student-athlete to violate his or her contractual obligation to follow NCAA regulations, the agent improperly interferes with this contractual relationship, opening the agent up to liability to the university for tortious interference with contractual relations. Finally, this Comment analyzes why universities largely have not yet taken advantage of this promising claim.

False Efficiency and Missed Opportunities in Law and Economics

This Article points out a simple flaw common to many law-and-economics analyses, ranging from fundamental models like the Hand Formula to narrower arguments like those that oppose the doctrine of unconscionability.
The flaw is straightforward: economic analyses of law often assume, either implicitly or explicitly, that when it is more efficient for an activity to occur than for it not to occur, it is efficient for legal rules to encourage the activity. Even on grounds of efficiency alone, however, knowing in isolation whether an activity produces more wealth than its absence is insufficient to conclude that the activity is efficient. The determination of efficient legal rules requires an answer to a further question too often neglected by legal economists: what are the activity's alternatives? Even if an activity is more efficient than its absence, it may produce less wealth (perhaps significantly less wealth) than its alternatives, once its harms are taken into account. Encouraging all activities that appear to produce wealth on their own runs the risk of encouraging opportunistic behavior whose effect is more to transfer wealth than to create it.
As a simple example, a legal regime that followed the Hand Formula would encourage businesses to earn $100,000 by causing $95,000 worth of unavoidable harms to others; that incentive alone, while probably objectionable for other reasons, is not inefficient because, instrumentally speaking, the $100,000 social gains justify the $95,000 social losses. But a rule based on the Hand Formula would also encourage economic actors to engage in that $100,000-earning activity rather than one that paid $90,000 but caused no harms; that incentive is inefficient.
Some economic analyses acknowledge related points, but the law-and-economics movement insufficiently understands the flaw that this Article describes. Similarly, critics of the law-and-economics movement—while aware of other fundamental flaws in legal-economic analysis, such as the inapplicability of the rational-actor model in many circumstances—do not readily enough engage economic models on their own terms. This Article attempts to remedy those oversights, and in doing so, it suggests greater caution in applying economic reasoning to law.

Expanding the Scope of the Principles of the Law of Software Contracts to Include Digital Content

The Principles of the Law of Software Contracts, or the “Principles,” seek to “unify and clarify” the law of software transactions. The drafters, however, excluded “digital content” from the scope of their project. This Essay explains why the scope of the Principles should encompass digital content. The exclusion of digital content creates two different but related problems. The first problem is that it creates what I refer to as “classification confusion.” Given the complexity and speed of technological innovation, the task of distinguishing digital content from software may be difficult for courts. The second problem is that it fails to resolve the conundrum of how to balance the proprietary rights and interests of licensor-owners and the rights and interests of licensee-consumers. This conundrum in turn has created problems of contractual form and user assent that arose out of software transactions but which have much more troubling applications in other contexts. With (and sometimes, even without) a click of a mouse, one can relinquish intellectual property, privacy, and expression rights. This Essay proposes that the Principles should generally apply to digital content. The Principles are an impressive accomplishment and go a long way toward unifying and clarifying the law of software transactions. This Essay urges that they go even further.

The Principals of the Law of Software Contracts: At Odds with Copyright, Consumer, and European Law?

This Article will describe the drafting history of the Principles of the Law of Software Contracts, with particular attention to the extent of consumer and public interest group representation in the process. The drafting process, I will argue, did not take adequate stock of problems identified in the late 1990s with proposed Article 2B of the Uniform Commercial Code, and then the Uniform Computer Information Transactions Act. Persistent problems include provisions encouraging terms that violate public policy, that constitute copyright or patent misuse by attempting to prohibit fair use or withdraw material from the public domain, or that are not properly disclosed before the purchase. The difference between the present situation and the 1990s, however, is that European Union (EU) directives on the subject of consumer protection and electronic commerce are of much greater importance today, particularly given the explosion in e-commerce between the United States and Europe. This Article will analyze whether the Principles do enough to protect the interests of consumers and the public in four key areas: (1) consistency with U.S. federal and state statutory and common law, (2) clear and conspicuous disclosure of all relevant terms and conditions prior to the sale, (3) regulation and prevention of one-sided and unconscionable contract terms, and (4) consistency with EU and domestic European law. The Principles and the comments thereto appear to sanction conduct that is in tension with the federal Copyright and Patent Acts, the common law of several U.S. states, and the EU's directives on Unfair Terms in Consumer Contracts (1993) and Protection of Consumers in Respect of Distance Contracts (1997). The Principles seem to be an imperfect attempt to unify the law of software contracts, codify best practices, and develop the law in a desirable direction. Finally, the Article will discuss when it is appropriate to harmonize U.S. and EU law and public policy.

What's Software Got To Do with It? The ALI Principles of the Law of Software Contracts

In May 2009, the American Law Institute (ALI) approved its Principles of the Law of Software Contracts (Principles). The attempt to codify, or at least unify, the law of software contracts has a long and contentious history, the roots of which can be found in the attempt to add an Article 2B to the Uniform Commercial Code (UCC) in the mid-1990s. Article 2B became the Uniform Computer Information Transactions Act (UCITA) when the ALI withdrew from the project in 1999, and UCITA became the law in only two states, Virginia and Maryland. UCITA became a dirty word, with several states enacting “bomb shelter” provisions to ensure that UCITA would never enter those states by way of a choice of law clause. Although the Principles was conceived, in part, as a counterweight to UCITA, the latter was dead in the water by the time the Principles Project became active. Nevertheless, the Principles Project proceeded apace. This Article examines the results of that decision.