Contract Law

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Comment
Volume 92.5
On FRAND-ly Terms: Examining the Role of Juries in Standard-Essential Patent Disputes
Marta Krason
B.S., Massachusetts Institute of Technology; M.S., Stanford University; J.D. Candidate 2026, The University of Chicago Law School.

I would like to thank Professor Jonathan Masur and the editors and staff of The University of Chicago Law Review, including Andy Wang, Zoë Ewing, Jonah Klausner, Karan Lala, Eric Haupt, Eugene DeCosse, and Helen Chamberlin, for their thoughtful advice and insights.

Holders of patents covering technology standards, known as standard-essential patents (SEP), control the rights to an invention with no commercially-viable alternative or that cannot be designed around while still complying with a standard. This gives SEP holders significant leverage in licensing negotiations. Standards development organizations (SDOs) play an important role in curbing opportunistic behavior by patent holders. SDOs require SEP holders to license their patents on fair, reasonable, and non-discriminatory (FRAND) terms. However, courts have mischaracterized FRAND commitments, concluding that these disputes carry a Seventh Amendment guarantee to a jury trial. This mischaracterization undermines the fair resolution of FRAND disputes, and a different approach is necessary. In this Comment, Marta Krason proposes an alternative analytical framework that more accurately characterizes FRAND disputes by drawing on principles from contract and property law, concluding that the constitutionally proper adjudicator is a judge, not a jury.

Contract Law Contracts Intellectual Property Technology
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Volume 92.4
Contract or Prison
S.R. Blanchard

For helpful comments, I am grateful to participants in the Contracts Section Works-in-Progress Panel at the 2023 AALS Annual Meeting; faculty workshops at George Mason Scalia Law School, Indiana University McKinney Law School, Notre Dame Law School, the University of Florida Law School, the University of Texas Law School, Vanderbilt Law School, and Washington University Law School; the Legal Scholarship Workshop at the University of Chicago; the Workshop on Law, Economics, and Justice at the University of Lucerne; CrimFest; the Decarceration Law Conference; the Junior Business Law Scholars Conference; Markelloquium; and to Ian Ayres, Lisa Bernstein, Sam Bray, Christian Burset, Eric Fish, Rick Garnett, Sherif Girgis, Nadelle Grossman, Daniel Markovits, Jide Nzelibe, J. Mark Ramseyer, Christopher Slobogin, Avishalom Tor, Francisco Urbina, and Julian Velasco. Noah Austin, Zack Beculheimer, Gwendolyn Loop, Savannah Shoffner, Tri Truong, and Steven Tu provided excellent research assistance. Any errors are mine.

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the history of economic exploitation using criminal enforcement power harnessed to contract, including in the racial peonage system under Jim Crow. This Article documents this systematic underregulation through the first empirical study of legal regimes for IA contracts. To the extent that the theoretical limits of contract are not presently reflected in the common law of contract, regulatory reforms that better regulate seller and government practices might reduce the risk of exploitation.

Contracts Criminal Law Empirical Analysis
Online
Essay
A Story of Two Holy Grails: How Artificial Intelligence Will Change the Design and Use of Corporate Insolvency Law
Felix Steffek
Felix Steffek is Professor of Law at the University of Cambridge. He serves as Director of the Centre for Corporate and Commercial Law (3CL) and holds a JM Keynes Fellowship in Financial Economics. He is Global Distinguished Professor of Law at the University of Notre Dame, SGRI Visiting Professor at Singapore Management University, and Senior Member of Newnham College.

The author is grateful for the very helpful comments received at the conference on ‘How AI Will Change the Law’ organized by the University of Chicago Coase-Sandor Institute for Law and Economics, the University of Chicago Law Review, and the Oxford Business Law Blog, in particular from Tony Casey who contributed a formal comment.

This Essay explores the two holy grails of AI and the law: predicting court decisions and predicting contracts. While there is some overlap between the two, because in order to draft contracts one needs to know the law, both issues can be functionally distinguished. These two areas, and their importance in the context of increasing AI development, are explored more deeply within the context of corporate insolvency law.

Contracts Corporations
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Volume 89.4
Contractual Evolution
Matthew Jennejohn
Professor of Law, BYU Law School
Julian Nyarko
Assistant Professor of Law, Stanford Law School
Eric Talley
Isidor & Seville Sulzbacher Professor and Faculty Codirector of the Millstein Center for Global Markets & Corporate Ownership, Columbia Law School

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time.

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88.1
Stickiness and Incomplete Contracts
Julian Nyarko
Assistant Professor of Law, Stanford Law School.

For helpful comments and suggestions, I thank Adam Badawi, Douglas Baird, Robert Bartlett, Andrew Bradt, Guy-Uriel Charles, Benjamin Chen, Adam Chilton, Albert Choi, Ryan Copus, Robert Cooter, John Coyle, Kevin Davis, John DeFigueredo, Josh Fischman, Jeffrey Gordon, Joe Grundfest, Mitu Gulati, Andrew Guzman, Deborah Hensler, Tim Holbrook, Bert Huang, William Hubbard, Matthew Jennejohn, Francine Lafontaine, Katerina Linos, Jonathan Masur, Justin McCrary, Joshua Mitts, Kevin Quinn, Bertrall Ross, Sarath Sanga, Robert Scott, Megan Stevenson, Eric Talley, Glenn West, Diego Zambrano, and Eyak Zamir, as well as the participants of workshops at Columbia Law School, NYU School of Law, Stanford Law School, the University of Chicago Law School, University of Virginia School of Law, University of Michigan Law School, UC Davis School of Law, University of Hamburg Faculty of Law, the 2020 American Bar Association M&A Committee Meeting, the 2020 Association of American Law Schools Annual Meeting, the 2020 Stanford-IACCM Symposium, the 2019 Northwestern Conference on Law and Textual Analysis, the 2019 Annual Empirical Contracts Workshop at Penn, the 2019 Annual Meeting of the German Law and Economics Association, the 2018 Conference on Empirical Legal Studies, the 2018 Conference on Empirical Legal Studies in Europe, and the 2018 International Conference on the Economics of Litigation.

In the 1990s, Sprint PCS, one of the leading telecommuni-cations companies in the United States, created a wireless af-filiate program.
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86 Special
Unlikely Resurrection: Richard Posner, Promissory Estoppel, and The Death of Contract
Douglas G. Baird
Harry A. Bigelow Distinguished Service Professor, The University of Chicago Law School

I thank Saul Levmore for his thoughtful comments. The Frank Greenberg Fund provided generous research support for this Essay.

Many of Richard Posner’s opinions boldly confront great questions. But equally important are those that, in the aggregate, illuminate discrete areas of the law and make them easier to understand.

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86.2
Personalizing Mandatory Rules in Contract Law
Omri Ben-Shahar
Leo and Eileen Herzel Professor of Law, The University of Chicago.

We thank Oren Bar-Gill and participants in The University of Chicago Law Review Symposium on Personalized Law for their comments, and Tal Abuloff and Tom Zur for excellent research assistance.

Ariel Porat
Alain Poher Professor of Law at Tel Aviv University and Fischel-Neil Distinguished Visiting Professor of Law at The University of Chicago.
Mandatory rules in contract law are meant to protect people from “bad” terms.
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85.6
Relational Contracts of Adhesion
David A. Hoffman
Professor of Law, University of Pennsylvania Law School

I would like to thank the individuals who agreed to be interviewed for this article: Hissan Bajwa, Michal Rosenn, Bonnie Broeren, Rob Chesnut, Eric Goldman, Jay Monahan, Ari Shahdadi, Curtis Anderson, Ed Ferguson, Michael Cheah, Hansen Tong, and Miranda Lerner. Katherine Schloss Ackerman (Penn ’17), Elyssa Eisenberg (Penn ’18), and Michelle Kao (Penn ’18) provided research assistance. Tom Baker, Shyam Balganesh, Danielle Citron, Zev Eigen, Meirav Furth-Matzkin, Eric Goldman, Ethan Leib, Sophia Lee, Greg Klass, Florencia Marotta-Wurgler, Melanie McMenamin, Lior Strahilevitz, Rick Swedloff, Michael Risch, Tess Wilkinson-Ryan, David Wishnick, and participants at faculty workshops at the University of Pennsylvania, Boston University, UC Hastings, Villanova University, University of Chicago, and the Second Empirical Contracts Working Group provided useful feedback.

Consumer contract theory is myopically focused on the unread fine print. Because consumers don’t read their contracts, firms can make “hidden” terms worse without lowering prices.

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Article
Contrived Threats versus Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail
Einer Elhauge
Carroll and Milton Petrie Professor of Law, Harvard Law School.

I am grateful for funding from the Petrie-Flom Center and Harvard Law School and for helpful comments from Michael Abramowicz, Jonathan Adler, Albert Alschuler, Scott Altman, Ian Ayres, William Baude, Adam Cox, Elizabeth Emens, Richard Fallon, Joe Farrell, Brian Fitzpatrick, Charles Fried, John Goldberg, Wendy Gordon, Rick Hills, Bert Huang, Daryl Levinson, John Manning, Eric Rasmusen, Chris Robertson, Louis Michael Seidman, Christopher Serkin, Steven Shavell, Suzanna Sherry, Sonja Starr, Matt Stephenson, Cass Sunstein, Mark Tushnet, Adrian Vermeule, Abe Wickelgren, and participants in the Harvard Law Faculty Workshop, the Harvard Law and Economics Workshop, the Vanderbilt Law Faculty Workshop, and the 2014 Yale conference on Medicare and Medicaid.

I.  Threats That Induce Contract Modifications

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