Table of Contents

Licenses and the Property/Contract Interface

Christina Mulligan, Brooklyn Law School

Smart Contracts: Terminology, Technical Limitations and Real World Complexity

Eliza Karolina Mik, Singapore Management University

Against Market Insularity: Market, Responsibility, and Law

Avihay Dorfman, Tel Aviv University - Buchmann Faculty of Law

A Proposal for UNCITRAL to Develop a Model Law on Warehouse Receipts

Marek Dubovec, National Law Center for Inter-American Free Trade
Adalberto Elias, National Law Center For Inter-American Free Trade

Autonomy of the Arbitration Clause and Invalid Contracts: All is Fair in Arbitration?

Rumana Islam, University of Dhaka - Department of Law

Tales from a Form Book: Stock Stories and Transactional Documents

Susan Chesler, Arizona State University (ASU) - Sandra Day O'Connor College of Law
Karen J. Sneddon, Mercer University - Walter F. George School of Law


CONTRACTS & COMMERCIAL LAW eJOURNAL

"Licenses and the Property/Contract Interface" Free Download
Indiana Law Journal, Forthcoming

CHRISTINA MULLIGAN, Brooklyn Law School
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End-User License Agreements exist on the property/contract interface, creating rights and obligations whose natures blend in rem and in personam characteristics. This Article argues that EULAs’ hybrid status indicates that these licenses will be most economically efficient and socially beneficial when they are less standardized than property interests and less flexible than contract interests can be. In particular, more effective EULA regulation can be achieved by providing better notice to licensees about the content of licenses and by creating substantive legal protections for licensees. Possible protective measures involve regulating how courts and other legal actors should approach use-restrictive license terms and revocable licenses.

But any specific suggestions pale in comparison to the more general insight that EULAs’ location on the property/contract interface provides. There are structural reasons to believe that EULAs will neither be just nor economically efficient so long as their terms are enforced as though they are contractual, while their violations are punished with supercompensatory and injunctive property remedies. While the best corrective protections may vary as the subjects of EULAs change, legal actors must broadly recognize that licensors, licensees, and third-parties can be better off if the law of EULAs is crafted in light of their hybrid nature.

"Smart Contracts: Terminology, Technical Limitations and Real World Complexity" Free Download

ELIZA KAROLINA MIK, Singapore Management University
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If one is to believe the popular press and many “technical writings,? blockchains create not only a perfect transactional environment but also obviate the need for banks, lawyers and courts. The latter will soon be replaced by smart contracts: unbiased and infallible computer programs that form, perform and enforce agreements. Predictions of future revolutions must, however, be distinguished from the harsh reality of the commercial marketplace and the technical limitations of blockchain technologies. The fact that a technological solution is innovative and elegant need not imply that it is commercially useful or legally viable. Apart from attempting a terminological “clean-up? surrounding the term smart contract, this paper presents some technological and legal constraints on their use. It confronts the commonly made claims concerning their ability to automate the transacting process and to ensure perfect performance. It also examines the possibility of reducing contractual relationships into code and the ability to integrate smart contracts with the complexities of the real world. A closer analysis reveals that smart contracts can hardly be regarded as a semi-mythical technology liberating the contracting parties from the shackles of traditional legal and financial institutions. While some of their technical features seem prima facie attractive, especially to non-lawyers, a closer analysis reveals their many shortcomings.

"Against Market Insularity: Market, Responsibility, and Law" Free Download
Cornell Journal of Law and Public Policy, 2018

AVIHAY DORFMAN, Tel Aviv University - Buchmann Faculty of Law
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In this paper, I take stock of some leading attempts to drive a wedge between distinctively market reasoning and practical (including moral) reasoning. Although these attempts focus on different normative foundations — the epistemology of market interaction, the autonomy of its participants, the stability-enhancing quality of markets, and the authority of democratic decision-making — they are of a piece insofar as they seek to trivialize the role of private responsibility for realizing the demands of morality and justice. Essentially, they seek to insulate, at least to an important extent, the market practice of doing well from the demands of doing right. I argue that they each fail, and that their respective failures motivate the pursuit of a more successful conception of the interaction between markets and morality. I argue that the key to developing this conception is law and, in particular, the legal forms of interaction that lie at the center of economic markets. Rather than merely facilitating any number of desirable goals, these legal forms construct the moral landscape within which market participants act. This observation opens the door for a better account of the ineliminable place of moral responsibility in and around the market.

"A Proposal for UNCITRAL to Develop a Model Law on Warehouse Receipts" Free Download

MAREK DUBOVEC, National Law Center for Inter-American Free Trade
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ADALBERTO ELIAS, National Law Center For Inter-American Free Trade
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This article fleshes out a proposal made during the Fourth International Secured Transactions Colloquium, held in March 2017, for UNCITRAL to develop a model legal framework for warehouse receipts. It argues that most developing economies have sufficient warehousing infrastructure and secondary markets, but lack a modern warehouse receipts law. To support this argument, it includes a summary of the recent projects funded by various agencies to promote warehousing of goods, and agricultural commodities in particular. It describes the recent efforts to create a model framework for warehouse receipts and provide guidance on the establishment of a warehouse receipts system by entities such as the Organization of American States, the World Bank Group, and the Food and Agriculture Organization. Furthermore, the article analyzes the work of UNCITRAL in the field of negotiable documents and concludes that such work has not addressed many aspects typically regulated by warehouse receipts laws. The analysis also focuses on the emerging practice of issuing electronic warehouse receipts, their trading through commodity exchanges, and the utilization of emerging technologies, such as blockchain, to dematerialize warehouse receipts. Finally, the article explores the most common modalities of warehousing services, the parties involved in warehouse receipts transactions, the characteristics of warehouse receipts in different jurisdictions, and the benefits of electronic systems, identifying the areas that ought to be covered in a model warehouse receipts framework.

"Autonomy of the Arbitration Clause and Invalid Contracts: All is Fair in Arbitration?" Free Download
Jahangirnagar University Journal of Law, Vol. V, 2017, pp. 141-154

RUMANA ISLAM, University of Dhaka - Department of Law
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The autonomy of the arbitration clause serves a very useful commercial purpose, particularly in international commercial arbitration. Since the doctrine allows the parties to settle down the dispute under the arbitration clause even after termination of the contract itself, it appears that the doctrine serves the necessity of international commercial community with an approach of ‘all is fair in arbitration’. Despite the fact that the doctrine is debated over its conceptual possibility under contract law, it is well established fact that the doctrine has become truly an international rule of law particularly in voidable contracts. However the operability of such autonomous clause is uncertain when it comes to invalid contracts or the contracts which never came into existence. This article will focus on this grey area of international commercial arbitration and will examine the issues and controversies surrounding the issue. The article concludes with the proposition that since such unpredictability would lead the parties in dispute to arbitral forum shopping, the international arbitration law in this area should be made internationally uniform.

"Tales from a Form Book: Stock Stories and Transactional Documents" Free Download
78 Mont. L. Rev. 501 (2017)

SUSAN CHESLER, Arizona State University (ASU) - Sandra Day O'Connor College of Law
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KAREN J. SNEDDON, Mercer University - Walter F. George School of Law
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Legal transactions are stories. They are the stories of marriages, business partnerships, acquisitions, births, and deaths. These stories are built around the hopes, fears, wishes, and concerns of the particular parties to the transaction. But at their core, these stories are not just about the individual circumstances of those parties. At the core of each of these individual stories is a stock story. Virtually every transactional document starts with a form. And stock stories are embedded within each form document. The forms feature ingénues, tricksters, misers, and sages who undertake journeys, confront mutinies, and at times achieve glory.

This article examines the tales of transactions by examining the stock stories within transactional document forms. This article will first define the term “stock story,? highlighting the applicability of the term “stock story? to the law and its primary focus to date on litigation-based legal documents. This article will then identify and analyze the stock stories embedded within a variety of transactional form documents, such as wills, trust agreements, employment contracts, premarital agreements, and advance directives. Specifically, the article will analyze the (a) stock characters, (b) stock plots, (c) stock situations, and (d) stock inevitable outcomes of transactional form agreements. This article will then address the possibilities and pitfalls related to recognition of the stock stories embedded within these transactional forms.

As with the use of stock stories by lawyers in any situation, there is a concern about misrepresenting the unique nature of the individual transaction, as well as the potential for overreliance on the stock story, which may ultimately lead to hindering drafting innovation. Yet to the contrary, the recognition of stock stories in transactional form documents may also allow for effective narrative shortcuts, providing valuable guidance to the formation of the transaction as well as enabling a better understanding of the transaction by the parties, drafters, and courts. Rather than undercut or negate the value of utilizing transactional form documents and transactional form books, this article seeks to use the understanding of transactional form documents as stock stories to better appreciate how to most effectively use such forms in practice.

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Advisory Board

Contracts & Commercial Law eJournal

IAN AYRES
William K. Townsend Professor of Law, Yale University - Yale Law School, Yale University - Yale School of Management

RANDY E. BARNETT
Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago - Law School

CLAYTON P. GILLETTE
Max E. Greenberg Professor of Contract Law, New York University School of Law

ROBERT A. HILLMAN
Edwin H. Woodruff Professor of Law, Cornell Law School

AVERY W. KATZ
Milton Handler Professor of Law, Columbia University - Law School

RANDAL C. PICKER
Leffmann Professor of Commercial Law; Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory, University of Chicago - Law School

ALAN SCHWARTZ
Sterling Professor of Law, Yale Law School

MICHAEL J. TREBILCOCK
Professor and Chair in Law and Economics, University of Toronto - Faculty of Law

ELIZABETH WARREN
Leo E. Gottlieb Professor of Law, Harvard Law School