Volume 7 / Number 2 / Summer 2003

This page contains the abstracts, as well as links to the complete document on Westlaw.com, for the articles in our Summer 2003 Issue.

 

Introduction

 

The Eighth Annual Lewis & Clark Business Law Forum: The Role of Law in Small Business Transactions
Amy C. Bushaw
Westlaw

 

Articles

 

The Quest for Bargains in an Age of Contractual Formalism: Strategic Initiatives for Small Businesses
Blake D. Morant
Westlaw
Two of the largest challenges for small businesses are the competitive nature of a free market system dominated by large corporate entities and navigation of the requirements of contractual formalism. This Article analyzes the difficulty faced by small businesses to contract efficiently for goods and services, which is necessary to remain competitive. First, the author summarizes the contributions of small businesses to the general economy, thus emphasizing the need for their continued success. The Article details some problems faced by small businesses based on an informal survey of businesses in Rockbridge County, Virginia. The author then documents the bargaining difficulties faced by small businesses. The Article concludes with recommendations for improving the efficiency of bargaining for small businesses.

I Mean What I Say, I Think: The Danger to Small Businesses of Entering into Legally Enforceable Agreements That May Not Reflect Their Intentions
Janet W. Steverson
Westlaw
Small businesses want and need legally enforceable contracts, both informal and formal, for a variety of reasons. Because small businesses cannot always afford to hire attorneys to provide guidance regarding contract law, contract law should consist of clear and definite principles that would enable small businesses to obtain sufficient guidance in order that courts would enforce their agreements in the manner intended by the small businesses. Thus, this Article concludes that the courts should adopt a modified “liberal” parol evidence rule and a modified “context” rule of interpretation. Such reform will balance the need for certainty in contracts and better effectuate the parties’ intentions.

Cyberlawyering and the Small Business: Software Makes Hard Law (But Good Sense)
Justin D. Leonard
Westlaw
Due to rapid advances in computing technology, small businesses have access to a wide variety of legal resources that enhance, or even replace, the services typically provided by attorneys. Cyberlawyering, the idea of replacing lawyers with computers, is no longer science fiction (or wishful thinking). This Article first juxtaposes an overview of current cyberlawyering applications available to the small business with a discussion of the effects of “postprofessionalism” on the legal community in order to demonstrate why the regulation of cyberlawyering applications must be addressed with both sensitivity and immediacy. By analyzing unauthorized practice of law regulations and the ethical rules governing lawyers, the author explains how cyberlawyering’s benefits to society, such as public education and economic efficiency, outweigh the potential harm. While the author admits that lawyers are here to stay, so too are cyberlawyering applications. Rather than taking an extreme position (censorship or ignorance), the Article urges the Bar to address these issues today—not in self-protection, but to fulfill its duty to protect the public interest.

The Failed Promise of the UCITA Mass-Market Concept and its Lessons for Policing of Standard Form Contracts
Jean Braucher
Westlaw
Standard form contracts are useful, but they also tempt drafters to overreach. The law responds by policing such contracts in various ways, including enhanced disclosure requirements and greater substantive review. Weak market discipline of standard forms is not only a problem in consumer contracts, but also in some business-to-business transactions. In practice, however, the law has tended to focus policing efforts on the consumer context. This Article examines the seemingly promising innovation of the mass-market concept in the Uniform Computer Information Transactions Act and concludes that the statute is too broad and the definition of the mass-market concept too narrow to result in effective procedural or substantive oversight of standard forms. The author argues for a more inclusive mass-market concept and for narrow, targeted statutes to better address specific contracting abuses.

Contractual Relations in Small Business: Do the Benefits of a Custom-Made Contract Outweigh the Costs?
Scott J. Burnham
Westlaw
This brief Article analyzes whether the benefits of a custom-made contract outweigh the costs to a small business. The author discusses and distinguishes the different types of contracts. Then, the author reviews the situations where the benefits of a custom-made contract may outweigh the costs. The Article concludes by explaining the substantial advantages for small business of using custom-made contracts over form contracts.