When a person seeks to be relieved from their contractual obligations on the basis of supervening knowledge of a fact existing at the time of contracting that has rendered their performance impracticable or even impossible, and/or has frustrated their purpose in entering into the contract, they would appear to have choice between asserting a mutual mistake enforce-ability defense, or instead asserting one or more of the impossibility, impracticability, or frustration of purpose excuse defenses. Do they in fact have this choice, or does each of these approaches for obtaining relief have its own distinct scope of application, with little if any overlap? If there are circumstances where a person does have this choice, which approach is likely to be more promising as the primary means of seeking relief? There is unfortunately a relative absence of clarifying case law on this question, and this brief article considers the guidance provided by Sections 152 and 266 of the Restatement (Second) of Contracts and the associated Official Comments. The article concludes that where there is a choice available between the two approaches the question as to which one to most aggressively pursue, rather than only plead secondarily in the alternative, turns upon the definition of “materiality” that will be applied by the court with regard to the mutual mistake defense. The mutual mistake defense approach is likely to be the more promising tact in all instances, although perhaps only marginally so if the court applies the most stringent materiality criterion suggested by the Official Comment to Restatement (Second) Section 152.
{"title":"Mutual Mistake or Excuse: Which Approach to Pursue When Seeking Judicial Relief From Contractual Obligations on the Basis of Supervening Knowledge?","authors":"G. Crespi","doi":"10.2139/SSRN.3190644","DOIUrl":"https://doi.org/10.2139/SSRN.3190644","url":null,"abstract":"When a person seeks to be relieved from their contractual obligations on the basis of supervening knowledge of a fact existing at the time of contracting that has rendered their performance impracticable or even impossible, and/or has frustrated their purpose in entering into the contract, they would appear to have choice between asserting a mutual mistake enforce-ability defense, or instead asserting one or more of the impossibility, impracticability, or frustration of purpose excuse defenses. Do they in fact have this choice, or does each of these approaches for obtaining relief have its own distinct scope of application, with little if any overlap? If there are circumstances where a person does have this choice, which approach is likely to be more promising as the primary means of seeking relief? \u0000There is unfortunately a relative absence of clarifying case law on this question, and this brief article considers the guidance provided by Sections 152 and 266 of the Restatement (Second) of Contracts and the associated Official Comments. The article concludes that where there is a choice available between the two approaches the question as to which one to most aggressively pursue, rather than only plead secondarily in the alternative, turns upon the definition of “materiality” that will be applied by the court with regard to the mutual mistake defense. The mutual mistake defense approach is likely to be the more promising tact in all instances, although perhaps only marginally so if the court applies the most stringent materiality criterion suggested by the Official Comment to Restatement (Second) Section 152.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"156 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131586012","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Two Theories of Deterrent Punishment","authors":"Jacob Bronsther","doi":"10.2139/SSRN.3029564","DOIUrl":"https://doi.org/10.2139/SSRN.3029564","url":null,"abstract":"","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122152893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Companies spend billions to promote their brand. But with increased trademark recognition comes the possibility of losing exclusive rights to use that trademark, a process called genericide. Courts have often turned to linguistic evidence, such as dictionaries and media usage, to determine whether a trademark has become generic. These courts merely suggest that linguistic tools reflect a trademark’s meaning. Yet these tools are not the objective indicators that courts have assumed. This Paper discusses why using dictionaries and media usage to prove genericide is a mistake and then turns to evaluating another tool, corpus linguistics. Corpus linguistics, unlike other linguistic tools, may prove beneficial for companies seeking to protect their trademarks. Ultimately, however, linguistic tools — including dictionaries, media usage, and corpus linguistics — cannot prove genericism because linguistic data may, at best, prove a term’s majority usage. But the Lanham Act requires a showing of primary significance. The Paper contends that courts should maintain majority usage and primary significance as distinct concepts and, in this way, should reclaim the primary significance test.
{"title":"Reclaiming the Primary Significance Test: Dictionaries, Corpus Linguistics, and Trademark Genericide","authors":"Neal A. Hoopes","doi":"10.2139/ssrn.3025850","DOIUrl":"https://doi.org/10.2139/ssrn.3025850","url":null,"abstract":"Companies spend billions to promote their brand. But with increased trademark recognition comes the possibility of losing exclusive rights to use that trademark, a process called genericide. Courts have often turned to linguistic evidence, such as dictionaries and media usage, to determine whether a trademark has become generic. These courts merely suggest that linguistic tools reflect a trademark’s meaning. Yet these tools are not the objective indicators that courts have assumed. This Paper discusses why using dictionaries and media usage to prove genericide is a mistake and then turns to evaluating another tool, corpus linguistics. Corpus linguistics, unlike other linguistic tools, may prove beneficial for companies seeking to protect their trademarks. Ultimately, however, linguistic tools — including dictionaries, media usage, and corpus linguistics — cannot prove genericism because linguistic data may, at best, prove a term’s majority usage. But the Lanham Act requires a showing of primary significance. The Paper contends that courts should maintain majority usage and primary significance as distinct concepts and, in this way, should reclaim the primary significance test.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"231 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123021645","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A review essay discussing Danielle Keats Citron’s Hate Crimes in Cyberspace (Harvard University Press 2014) and Amy Adele Hasinoff’s, Sexting Panic: Rethinking Criminalization, Privacy and Consent (University of Illinois Press 2015). Both books consider the risks and harms in cyberspace, blaming of victims, and the interaction between law and online expression. Citron documents widespread hate speech, cyberstalking, revenge porn, and other speech that especially targets women online. Hasinoff, grounded in feminist and cultural studies, emphasizes the positive aspects of the agency girls who sext voluntarily display in exploring and displaying their sexuality, arguing that advising girls that control of their own lives must lead them refuse to sext (a widespread approach) deprives them of voice. Both books analyze law and propose legal reforms, and both also explore the relationship between social norms and legal regimes. Ross’s review finds commonality in the authors’ arguments that women “have a right to sexual expression without fear of moral or legal repercussions” and that both ultimately “look to greater self-policing by the technology industry,” and to promoting “cultural transformation” as much as legal change.
{"title":"Taming the Wild West: Online Excesses, Reactions and Overreactions","authors":"Catherine J. Ross","doi":"10.2139/SSRN.2782646","DOIUrl":"https://doi.org/10.2139/SSRN.2782646","url":null,"abstract":"A review essay discussing Danielle Keats Citron’s Hate Crimes in Cyberspace (Harvard University Press 2014) and Amy Adele Hasinoff’s, Sexting Panic: Rethinking Criminalization, Privacy and Consent (University of Illinois Press 2015). Both books consider the risks and harms in cyberspace, blaming of victims, and the interaction between law and online expression. Citron documents widespread hate speech, cyberstalking, revenge porn, and other speech that especially targets women online. Hasinoff, grounded in feminist and cultural studies, emphasizes the positive aspects of the agency girls who sext voluntarily display in exploring and displaying their sexuality, arguing that advising girls that control of their own lives must lead them refuse to sext (a widespread approach) deprives them of voice. Both books analyze law and propose legal reforms, and both also explore the relationship between social norms and legal regimes. Ross’s review finds commonality in the authors’ arguments that women “have a right to sexual expression without fear of moral or legal repercussions” and that both ultimately “look to greater self-policing by the technology industry,” and to promoting “cultural transformation” as much as legal change.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128271703","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The high legal realist period of the 1930s was not known for its criminal law scholarship, while until fairly recently, criminal law theory was not as well-developed as those fields that had faced a realist and post-realist critique. This Essay attempts to address these issues by describing in detail the criminal law scholarship of Thurman Arnold, a prominent realist whose best known academic writings were his mid-1930s monographs on the New Deal and resistance to it. Arnold’s criminal law scholarship serves as a forgotten link between the classical doctrinal work that dominated midcentury legal academic work on criminal law and the more socially- and culturally-focused scholarship of recent decades. Reconsidering Arnold’s sociological, doctrinal, and cultural analysis of criminal law, law enforcement, and the criminal trial informs our understanding of the history of criminal law scholarship, legal realism, and post-realist legal theory.
{"title":"The Dramas of Criminal Law: Thurman Arnold’s Post-Realist Critique of Law Enforcement","authors":"Mark Fenster","doi":"10.2139/SSRN.1328681","DOIUrl":"https://doi.org/10.2139/SSRN.1328681","url":null,"abstract":"The high legal realist period of the 1930s was not known for its criminal law scholarship, while until fairly recently, criminal law theory was not as well-developed as those fields that had faced a realist and post-realist critique. This Essay attempts to address these issues by describing in detail the criminal law scholarship of Thurman Arnold, a prominent realist whose best known academic writings were his mid-1930s monographs on the New Deal and resistance to it. Arnold’s criminal law scholarship serves as a forgotten link between the classical doctrinal work that dominated midcentury legal academic work on criminal law and the more socially- and culturally-focused scholarship of recent decades. Reconsidering Arnold’s sociological, doctrinal, and cultural analysis of criminal law, law enforcement, and the criminal trial informs our understanding of the history of criminal law scholarship, legal realism, and post-realist legal theory.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"154 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123276165","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There would seem to be very little rationale to reject the “prima facie tort” in modern practice. It is wholly consistent with the broad principles of law applied everyday in courthouses across Oklahoma, the United States, and other common law systems. Indeed, it was originated as a theory to explain the commonalities shared by all intentional torts. And negligent torts follow a very similar pattern – there are not statutes or cases purporting to comprehend all negligent acts. Rather the trier of fact, in many circumstances, is responsible for weighing the conduct of the defendant and determining whether a duty exists, and, if so, whether that duty has been breached. Similarly, equitable relief is available to correct certain wrongs that cannot otherwise be addressed. There is no hard and fast rule that defines the outer boundaries of equity. The same principles are at work with prima facie tort. We as a society simply do not condone conduct which is intended to harm without good reason, and, at its core, that is exactly what our legal system was created to address. Oklahoma has historically recognized the existence of a tort for malicious wrong, although notably without using the term “prima facie tort.” If properly applied, the tort, regardless of the semantic designation, will continue to fill an important albeit limited role in modern jurisprudence.
{"title":"The Pride of the Common Law: Oklahoma's Struggle with the Prima Facie Tort Action","authors":"Matthew C Kane, I. London","doi":"10.2139/SSRN.2652770","DOIUrl":"https://doi.org/10.2139/SSRN.2652770","url":null,"abstract":"There would seem to be very little rationale to reject the “prima facie tort” in modern practice. It is wholly consistent with the broad principles of law applied everyday in courthouses across Oklahoma, the United States, and other common law systems. Indeed, it was originated as a theory to explain the commonalities shared by all intentional torts. And negligent torts follow a very similar pattern – there are not statutes or cases purporting to comprehend all negligent acts. Rather the trier of fact, in many circumstances, is responsible for weighing the conduct of the defendant and determining whether a duty exists, and, if so, whether that duty has been breached. Similarly, equitable relief is available to correct certain wrongs that cannot otherwise be addressed. There is no hard and fast rule that defines the outer boundaries of equity. The same principles are at work with prima facie tort. We as a society simply do not condone conduct which is intended to harm without good reason, and, at its core, that is exactly what our legal system was created to address. Oklahoma has historically recognized the existence of a tort for malicious wrong, although notably without using the term “prima facie tort.” If properly applied, the tort, regardless of the semantic designation, will continue to fill an important albeit limited role in modern jurisprudence.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133345182","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Water usage is governed through a variety of mechanisms, including government administration and market tools. In 2006-2008 Barcelona’s region, a water scarce area, suffered a drought comparable to the one faced today by the US West. This article surveys a variety of techniques which were or could have been used to address these scarcity challenges. Spanish water regulations established water markets in 1999 but neither the design, nor its implementation were optimal. In addition to the design and implementation flaws, the response to the 2006-2008 drought crisis shows how emergency measures highjack water markets as a viable solution to water scarcity. Emergency responses bail out urban voters while no structural solutions to make water use in the agricultural sector more efficient are adopted. Neither the urban suppliers nor the agricultural sector has, thus, incentives to participate in a water market and droughts are to be managed using ad hoc solutions. Lessons for the US West can be drawn because that crisis’ responses are no different than the ones that could be undertaken by states west of the 100th meridian to tackle the current drought.
{"title":"All Dried Out: How Responses to Drought Make Droughts Worse","authors":"Vanessa Casado Pérez","doi":"10.2139/SSRN.2633147","DOIUrl":"https://doi.org/10.2139/SSRN.2633147","url":null,"abstract":"Water usage is governed through a variety of mechanisms, including government administration and market tools. In 2006-2008 Barcelona’s region, a water scarce area, suffered a drought comparable to the one faced today by the US West. This article surveys a variety of techniques which were or could have been used to address these scarcity challenges. Spanish water regulations established water markets in 1999 but neither the design, nor its implementation were optimal. In addition to the design and implementation flaws, the response to the 2006-2008 drought crisis shows how emergency measures highjack water markets as a viable solution to water scarcity. Emergency responses bail out urban voters while no structural solutions to make water use in the agricultural sector more efficient are adopted. Neither the urban suppliers nor the agricultural sector has, thus, incentives to participate in a water market and droughts are to be managed using ad hoc solutions. Lessons for the US West can be drawn because that crisis’ responses are no different than the ones that could be undertaken by states west of the 100th meridian to tackle the current drought.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116288187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed a right to present defenses. The defendants also both claimed that the mechanisms in place in those cases — the consideration of nonparties in imposing punitive damages and the use of sampling to litigate a large class action — violated that right. The Supreme Court agreed, a death knell for the advocated use of both mechanisms to counteract tort law’s under-litigation problem: the fact that not all injured persons sue, precluding tort law’s ability to achieve effective deterrence. This Article argues that procedural due process theories do not support such a right. The process-based theory provides only a flexible level of participation and the defendants in both Philip Morris and Dukes had a meaningful opportunity to participate. The outcome-based theory also does not support such a right because the total damage obligations produced by the mechanisms are actually accurate. Even though no procedural due process right precludes the consideration of nonparties and sampling, the mechanisms are still problematic because of how they shift the burden of proof. The burden, however, is based in substantive law. And substantive law can be changed to help alleviate the harmful effects of tort law’s under-litigation problem.
{"title":"Tort Law's Deterrent Effect and Procedural Due Process","authors":"J. Lens","doi":"10.2139/SSRN.2306348","DOIUrl":"https://doi.org/10.2139/SSRN.2306348","url":null,"abstract":"The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed a right to present defenses. The defendants also both claimed that the mechanisms in place in those cases — the consideration of nonparties in imposing punitive damages and the use of sampling to litigate a large class action — violated that right. The Supreme Court agreed, a death knell for the advocated use of both mechanisms to counteract tort law’s under-litigation problem: the fact that not all injured persons sue, precluding tort law’s ability to achieve effective deterrence. This Article argues that procedural due process theories do not support such a right. The process-based theory provides only a flexible level of participation and the defendants in both Philip Morris and Dukes had a meaningful opportunity to participate. The outcome-based theory also does not support such a right because the total damage obligations produced by the mechanisms are actually accurate. Even though no procedural due process right precludes the consideration of nonparties and sampling, the mechanisms are still problematic because of how they shift the burden of proof. The burden, however, is based in substantive law. And substantive law can be changed to help alleviate the harmful effects of tort law’s under-litigation problem.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126915463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper discusses the attempts by the Navajo Nation and the States of Arizona and New Mexico to create standard contract clauses for agreements between the Nation and those states. The Nation and the States have numerous contractual relationships, primarily concerning funding for Nation programs, but also concerning law enforcement, rights-of-way grants, and other issues. Sovereignty issues on both sides have complicated the contracting process, as the Nation and the states have legislatively-mandated contract clauses that each must include in their agreements. Further, dispute resolution issues have caused friction, as each side possesses sovereign immunity but allows arbitration if enforcement of an award is brought in its own court system. In an attempt to resolve these issues, the Nation and the states recently have established standard contract clauses that apply generally to agreements between the sovereigns. The standard clauses allow for arbitration of disputes, with enforcement against the states in state court, and against the Nation in Navajo Nation court. In the case of Arizona, the standard clauses also cover discrimination, citizenship verification, and other issues. Though all issues have not been resolved by these clauses, and it remains to be seen how such clauses will be implemented, the standard contract clause model can be useful to other tribes and states who seek efficient and consistent methods of contracting without sacrificing core principles of tribal and state sovereignty.
{"title":"Standard Clauses in State-Tribal Agreements: The Navajo Nation Experience","authors":"Paul Spruhan","doi":"10.2139/ssrn.1930589","DOIUrl":"https://doi.org/10.2139/ssrn.1930589","url":null,"abstract":"The paper discusses the attempts by the Navajo Nation and the States of Arizona and New Mexico to create standard contract clauses for agreements between the Nation and those states. The Nation and the States have numerous contractual relationships, primarily concerning funding for Nation programs, but also concerning law enforcement, rights-of-way grants, and other issues. Sovereignty issues on both sides have complicated the contracting process, as the Nation and the states have legislatively-mandated contract clauses that each must include in their agreements. Further, dispute resolution issues have caused friction, as each side possesses sovereign immunity but allows arbitration if enforcement of an award is brought in its own court system. In an attempt to resolve these issues, the Nation and the states recently have established standard contract clauses that apply generally to agreements between the sovereigns. The standard clauses allow for arbitration of disputes, with enforcement against the states in state court, and against the Nation in Navajo Nation court. In the case of Arizona, the standard clauses also cover discrimination, citizenship verification, and other issues. Though all issues have not been resolved by these clauses, and it remains to be seen how such clauses will be implemented, the standard contract clause model can be useful to other tribes and states who seek efficient and consistent methods of contracting without sacrificing core principles of tribal and state sovereignty.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114921572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：