The Demands of an Interpretive Theory of Contract
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Professor Robin Kar’s Contract as Empowerment represents a thoughtful and ambitious effort to introduce a unified general theory of contract law that, in his words, “offers a fundamental reinterpretation of the basic principles that animate contract law” and that, on this basis, can harmonize the “central doctrinal challenges for modern contract theory.”
For helpful comments on earlier drafts, I thank Sania Anwar, Ian Ayres, Abbe Gluck, Adi Goldiner, Hanoch Dagan, Doron Dorfman, Klaas Eller, Elizabeth Emens, Jasmine Harris, Avery Katz, Craig Konnoth, Juliet Kostritsky, Shirley Lin, Daniel Markovits, Petros Mavroidis, Jamelia Morgan, Szymon Osmola, David Pozen, Jessica Roberts, Emily Rock, Elle Rothermich, Kate Sapirstein, Ani Satz, Michael Ashley Stein, Karen Tani, and Cristina Tilley, as well as participants in the Junior Scholars Conference at Northeastern School of Law (2024), the Junior Faculty Forum at Richmond School of Law (2024), the 47th Health Law Professors Conference (2024), and the Ninth Annual Health Law Works-in-Progress Retreat at Seton Hall Law School (2025). Lastly, I thank the editors of The University of Chicago Law Review for their insightful and helpful edits and suggestions.
In this Article, Yaron Covo argues that disability rights law in the United States is shaped not only by civil rights statutes but also by contract law doctrines. Contract law surfaces in the disability rights context through judicial determinations of accommodations negotiations and spending clause language in disability rights statutes. The Article argues that this intertwining has eroded rights under statutes meant to promote equality and protect vulnerable classes. The Article concludes with two recommendations: replacing the “individualized” negotiation model with a uniform model and adding certain mandatory rules and defaults in the disability rights context.
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.
Thanks to Omri Ben-Shahar, Dick Craswell, Ariel Porat, and D.C. Toedt for helpful comments.