ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Thursday, March 5, 2015

Artistic license

Artistic License

The official portrait of former President Bill Clinton has been completed.  See it here.   It was painted in the “conservative realistic style” … maybe a little too realistic and not sufficiently conservative?

According to the artist, Nelson Shanks, the bluish shadow of a person that you see on the mantelpiece next to Clinton is that of Monica Lewinski in her infamous blue dress.  You got that right: the artist himself has admitted that he purposefully scarred the picture just as the Lewinsky scandal scarred Clinton’s second term.  The artist has apparently caught quite some flak for having done this.  Regardless of artistic freedom and setting aside all thoughts about the scandal per se, what is, after all, at issue here is a contract for artwork depicting a former President of the United States of America.  A bit more respect may have been in order.  This was not any regular client having a portrait done; it’s in effect the entire nation that commissioned this work.  Perhaps a subjective satisfaction clause would have been in order here.  Even if it had been any “regular” client, deliberately depicting one’s paying client in a highly controversial light seems to me to be in questionable taste. 

On the other hand, the argument has been made that if the artist had been held to certain contractual stipulations, the portrait of the 42nd President would have been “stiff and untrue.”  

That’s not the case?  Take a look and judge for yourself.  While much has been made of Clinton holding an actual, gash, newspaper – so retro – the strange positioning of his fingers on his hip looks more bizarre to me.  An indication of his alleged two-sided look at what constituted “the truth” in certain contexts?  To me, it looks more like the V sign for, perhaps, Clinton’s ultimate victory over at least some of the political and other challenges he faced.  

 

 

 

March 5, 2015 in Commentary, Government Contracting, In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

Want a Class with that Barrista Job?

Last year, Starbucks announced a new corporate-supported educational program that one year later is still viable: Starbucks will reimburse its full-time workers for taking online classes with Arizona State University.  Partial tuition (58%) will be offered to freshmen and sophomores and full tuition for juniors and seniors as long as credits are earned within the past 18 months so as to keep students on track.  

As you may have noticed if you are a Starbucks customer, very many of its employees appear to be college-aged.  In fact, 70% of Starbucks’ workforce are either in school already or have had to drop out because of various personal difficulties.  

This program seems to be a benefit to employees who cannot afford to go to school full time (or even part time), but who desire and education.  What is remarkable is also how few “strings” are attached to the program.  For example, the employees do not even have to stay with Starbucks after the completion of their degree.  Said CEO Howard Schultz (still the CEO): "We want to attract and retain great people. We want to provide [our employees] with new tools and new resources to have advancements in the company.” 

What is in it for ASU?  This has been said to be a coup for the university, which already has one of the nation’s largest and most highly regarded online programs.   Of course, Starbucks has a large amount of employees with, presumably, many coming and going, so ASU now has access to a large database of potential students, something many universities – private and public - are craving in these competitive times.

For the students and the university, rates may be discounted.  This is normal in this type of situation.   What would truly make a difference would be if the rates could become so reduced for students that they would, in effect, have no out-of-pocket costs altogether. 

What, to me, is interesting about this situation is that a public university has found out workable model for online classes and cooperation with a private business venture when many private universities have not. 

The somewhat strange catch here is that ASU cannot enter into any other arrangement with a for-profit business for four years, but that Starbucks is free to advertise its partnerships with a few other schools.

See the contract at issue here.

See Starbucks’ description of the program here.

March 3, 2015 in Commentary, Current Affairs, E-commerce, Food and Drink, Labor Contracts, Teaching, True Contracts | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 379 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 217 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
3 204 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
4 157 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
5 126 Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another 
Lionel Smith 
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law 
6 121 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
7 114 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
8 105 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
9 95 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 
10 89 Virtual Currencies & Federal Law 
Julie Andersen Hill 
University of Alabama - School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 217 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
2 157 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
3 121 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
4 114 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
5 105 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 93 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
7 88 When Faith Falls Short: Bankruptcy Decisions of Churches 
Pamela Foohey 
Indiana University Maurer School of Law 
8 83 The Future of Contract Law in Europe 
Jan M. Smits 
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) 
9 74 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
10 69 Procedural Fairness by the Corporation 
Kish Parella 
Washington and Lee University - School of Law 

 

 

 

March 3, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Thursday, February 26, 2015

California Port and Freshwater Disputes – From Citrus Fruits to Water-Stealing Nudists

Two contracts issues have reappeared recently and both greatly affect the earning abilities of California citrus farmers, among others: the ability to ship products and the ability to grow them in the first place.

The shipping situation was - and still is - affected greatly by the recent employment contract dispute between shipping companies and dockworkers.  Recently, the parties reached a tentative deal on a new five-year contract after months of discussions that ended with a roughly 3% wage increase each year, a hike in pensions and continued union jurisdiction over the maintenance of truck trailers.  While the dispute was going on, many oranges destined for Chinese New Year celebrations overseas rotted away as activities in and around the ports of Los Angeles and Long Beach were impacted.  The docks still aren’t expected to return to normal until well into the season for Valencia oranges and past the season for navel oranges.  Importers of cars, among other things, have also recently expressed their problems keeping up with the demand for imported cars (which is huge in California).

For citrus and other farmers, the shipping problem is exacerbated by the ongoing very severe drought that California is experiencing for the fourth year in a row and that so far has resulted in 41% of the state finding itself in the most severe category of water shortages. 

While farmers up and down California’s agricultural San Joaquin Valley vehemently protest  P1030121
regulations limiting their access to freshwater, others are taking matters into their own hands: they simply steal water.  From the apparently more and more typical situation of subcontractors using fire hydrants without permits to people driving away with water from fire hydrants in trucks, siphoning it off canals, or tinkering with the pipes of their neighbors or local water providers, farmers are not the only ones getting desperate for water. 

Since we are talking California, there has to be a “weird” twist to the story: in the Silicon Valley, a water district has removed irrigation pipes that rangers say allowed … a nudist colony to make unauthorized water diversions from a waterfall. 

There is even a phrase for thieves of this nature: “water bandits.”  This situation is only about to get worse as the drought is predicted at above 80% certainty to become the worst in 1,000 years.    Some cities such as Los Angeles are offering tax initiatives for removing residential lawns.  Nonetheless, Californians will still have to grapple with the contractual and other rights to access to water – saline or otherwise - for some time to come.

February 26, 2015 in Current Affairs, Food and Drink, In the News, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Away!

Things may be a big sleepy here on the blog for the next two weeks.  I leave today for a two-week Spring Break course with my law students.

I hope that I will be able to post a few times during the trip, at least keeping up with our regular weekly features, but things might get a big hectic once I leave the country.

February 26, 2015 in About this Blog | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2015

Weekly Top Tens from the Social Science Research Network

SSRN
SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 372 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 194 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
3 152 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 117 Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another 
Lionel Smith 
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law 
5 105 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
6 97 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
7 92 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 
8 81 Virtual Currencies & Federal Law 
Julie Andersen Hill 
University of Alabama - School of Law 
9 69 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
10 68 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 152 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
2 105 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
3 97 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
4 91 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
5 69 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
6 68 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
7 58 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 
8 58 Procedural Fairness by the Corporation 
Kish Parella 
Washington and Lee University - School of Law 
9 56 Third Party Beneficiaries and Contractual Networks 
Alan Schwartz and Robert E. Scott 
Yale Law School and Columbia University - Law School 
10 46 Dynamic Common Law and Technological Change: The Classification of Bitcoin 
Shawn J. Bayern 
Florida State University - College of Law 

 

February 24, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, February 23, 2015

Contract Modifications – Differing Standards for Pop Stars?

2012 American Idol winner Phillip Phillips has lodged a “bombshell petition” with the California Labor Commissioner seeking to void contracts that Phillips now finds manipulative, oppressive, and “fatally conflicted.”  

Before winning season 11 of “American Idol,” Phillips signed a series of contracts with show producer “19 Entertainment” governing such issues as his management, recording and merchandising activities.  These contracts are allegedly very favorable to 19 Entertainment, for example allowing the company as much as a 40% share of any moneys made from endorsements, withholding information from Phillips about aspects of his contractual performance such as the name of his album before it was announced publicly, and  requiring Phillips to (once) perform a live show once without compensation.  19 Entertainment has also lined up such gigs for Phillips as performing at a World Series Game, appearing on “Ellen,” the “Today Show,” and “The View.”

It is apparently not unusual for those on successful TV reality shows to renegotiate deals at some point once their career gets underway.  Phillips claims that he too frequently requested this, but that 19 Entertainment turned his requests down.  Can he really expect them to agree to post-hoc contract modifications?

Very arguably not.  Under the notion of a pre-existing legal duty, a party simply cannot expect that the other party to a contract should have to or, much less, should be willing to change the contractually expected exchange of performances.  This seems to be especially so in relation to TV reality shows where the entire risk/benefit analysis to the producer is that the “stars” may or may not hit it big.  For hopeful stars, the same considerations apply: their contracts may lead them to fame and fortune… or not.  That’s the whole idea behind these types of contracts.  Of course, if industry practice is to change the contracts along the way and if both parties are willing to do so, they are free to do so.  Otherwise, the standards for contractual modifications are probably the same for entertainment stars as for “regular” contractual parties. 

Another issue in this case is whether an “agent” is a company or a physical person.  Under the California Talent Agencies Act (“TAA”), only licensed “talent agents” can procure employment for clients.   Phillips is attempting to apply the TAA to entertainment companies like 19 Entertainment.  If Phillips is successful, the ramifications may be significant for the entertainment industry in which companies very often negotiate deals with performers without taking the TAA into account.  In Citizens United v. Federal Election Commission, the United States Supreme Court famously gave personal rights to corporations, albeit only in the election context.   Time will tell how California looks at the issue of corporate personhood and responsibilities in the entertainment context.

Adjudications under the controversial TAA are notoriously slow and could leave contractual parites in “limbo” for a very long time.  Time and patience is not what Hollywood parties are known to have a lot of, so stay tuned for the outcome of this dispute.

February 23, 2015 in Celebrity Contracts, Current Affairs, In the News, Legislation, Television, True Contracts | Permalink | Comments (0) | TrackBack (0)

Session on Contract as Empowerment at K CON X

KarA recent contract law piece, “Contract as Empowerment” was just listed as “Download of the Week” on Larry Solum’s Legal Theory Blog. As many readers of this blog will know, this piece reflects University of Illinois Law Professor Robin Bradley Kar’s latest work on contract theory. The piece combines core arguments from two pieces that we recently highlighted on this bloom, but presents them in a single law review article format. The piece thus distills the ideas and presents them in polished form.
 
For anyone still contemplating attending K-CON at UNLV, an additional Roundtable on Contract as Empowerment has also been added.  This Roundtable will take place on Saturday, February 28th, at 9:00 am at UNLV. Professor Kar will present the theory. Gregory Klass (Georgetown Law), Russell Korobkiin (UCLA Law) and Jeff Lipshaw (Suffolk Law) will offer responses, before leaving time for audience Q&A. 
 
Here is the abstract and link to the article:
 
 

            This Article offers a novel interpretation of contract law, which I call “Contract as Empowerment”. On this view, contract law is neither a mere mechanism to promote efficiency nor a mere reflection of any familiar moral norm—such as norms of promise keeping, property, or corrective justice. Contract law is instead a mechanism of empowerment: it empowers people to use legally enforceable promises as tools to influence other people’s actions and thereby meet a broad range of human needs and interests. It also empowers people in a special way, which reflects a moral ideal of equal respect for persons. This fact explains why contract law can produce genuine legal obligations and is not just a system of coercion.

            The purpose of this Article is to introduce contract as empowerment and argue that it reflects the best general interpretation of contract. Contract as empowerment is an “interpretive” theory in the sense that it is simultaneously descriptive, explaining what contract law is, and normative, explaining what contract law should be.

            To support contract as empowerment’s interpretive credentials, I identify a core set of doctrines and puzzles that are particularly well suited to testing competing interpretations of contract. I argue that contract as empowerment is uniquely capable of harmonizing this entire constellation of doctrines while explaining the legally obligating force of contracts. Along the way, contract as empowerment offers (1) a more penetrating account of contractual remedies than exists in the current literature; (2) a more compelling account of the consideration requirement and its standard exceptions; and (3) a concrete framework to determine the appropriate role of certain doctrines—like unconscionability—that appear to limit freedom of contract. Contract as empowerment also explains the main differences between claims for breach of contract, promissory estoppel, restitution and quasi-contract. It explains key doctrines and answers key puzzles at each basic stage of contract analysis: formation, interpretation and construction, performance and breach, the standard defenses and the standard remedies.

            The whole of this explanation is, moreover, greater than the sum of its parts. Because of its harmonizing power, contract as empowerment demonstrates how a broad range of seemingly incompatible surface values in modern contract law can work together—each serving its own distinctive but partial role—to serve a more fundamental principle distinctive to contract. These surface values include the values of fidelity, autonomy, liberty, efficiency, fairness, trust, reliance and assurance. Although many people think that contract law must involve trade offs between these values, contract as empowerment suggests that tensions between them are not always real. So long as the complex system of rules that governs contracts is fashioned in the right way, these doctrines can work together to serve a deeper and normatively satisfying principle distinctive to contract. This framework can therefore be used to guide legal reform and identify places where market regulation is warranted by the principles of contract in many different contexts of exchange—from those involving consumer goods to labor, finance, credit, landlord-tenant, home mortgages and many others.

            There is a further implication of contract as empowerment. Contract as empowerment absorbs many economic insights but gives them a fundamentally different interpretation. It suggests that contracting and modern market activities are not simply spheres where self-interest runs wild. They are instead spheres of moral interaction, which can engage people’s natural sense of obligation and generate genuine legal obligations—at least so long as contract law is simultaneously personally empowering and reflective of a moral ideal of equal respect for persons. An important moral fabric has, in other words, been running through contract law and many forms of modern economic activity for some time now. This fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of the phenomena. Understanding this moral fabric can help people lead better and more integrated lives, as both moral and economic agents. We must, however, learn to strengthen this fabric and protect it from growing tear.

February 23, 2015 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2015

In Memoriam: Marvin A. Chirelstein

Chirelstein bookMarvin A. Chirelstein, Professor Emeritus at Columbia Law School, died on February 16th.  He was 86.

I never met Professor Chirelstein, but his book (at left) was a revelation to me.  I read it while taking first year contracts.  My first year contracts course was rigorous and stimulating, but Chirelstein's book gave me my first inkling that contracts law and lore could be entertaining and fun.  I brought that edition with me to work, where it sat in my office until it went down with the World Trade Center.  When I became a contracts prof, I started getting the new editions, and I was always happy to see how the book was updated.  It still sits on my shelf as a trusted reference book that I recommend to students, hoping to kindle in them the same enthusiasm for the subject that it kindled in me.

A notice is available on the Columbia Law School website and in the New York Times.

February 19, 2015 in Contract Profs | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

New in Print

Getting Close to K Con X!

For those of you who are still trying to decide whether or not to attend, it looks like a great conference, featuring two of our bloggers, Nancy Kim and Myanna Dellinger.

Las vegas at night

10th International Conference on Contracts

William S. Boyd School of Law, UNLV

February 27 & 28, 2015 

Preliminary Program

   UNLV logo

Fri. 2/27

8:15-8:45         Registration and Continental Breakfast (Moot Court Lobby)

8:45-9:00         Welcome and Announcements (Moot Court Auditorium)

9:00-10:45      Whose Contract Law Is It Anyway? (Moot Court Auditorium)

Chair: Dov Waisman

Danielle Hart, How Does Bargaining Power Affect Contract Litigation Outcomes?

Larry DiMatteo, How Private is Private Contract Law?

H.G. Prince, How Does the California Supreme Court’s Contracts Jurisprudence Relate to Its Ideological Composition?

Hila Keren, Whose Freedom of Contract?

Consent (or Lack Thereof) (BSL 102)

Chair: TBA

Shawn Bayern, Offer and Acceptance in Modern Contract Law: A Needless Concept

Chunlin Leonhard, Consent in Contract: A Dangerous Fiction

Kenneth Ching, What We Consent to When We Consent to Form Contracts: Market Price

Eric Zaks, Bonding and Contract Drafting: Paying a Premium for Foregoing Genuine Consent

10:45-11:00    Break

11:00-12:30    Contract Terms I (Moot Court Auditorium)

Chair: TBA

Royce Barondes, Frictions and the Persistence of Inferior Contract Terms

Mark Gergen, Privity's Shadow: Exculpatory Terms in Extended Forms of Private Ordering

Joshua Silverstein, Using the West Digest System as a Data Collection and Coding Device for Empirical Legal Scholarship: Demonstrating the Method Via a Study of Contract Interpretation

Comparative and International I (BSL 102)

Chair: TBA

Mateja Djurovic, Europeanisation of Contract Law Through the Judicial Activity of the European Court of Justice

Glennys Spence, A Pound of Flesh: A Comparative Analysis of the Group of Companies Doctrine and the Alter Ego Theory in International Commercial Arbitration

Jane Winn, Contracting Out of the Nation State: The Role of Global Private Regulators

12:30-1:45      Lunch (Barrick Museum Garden)

1:45-3:30         Roundtable: Perspectives on the Restatement (Third) of the Law of Consumer Contracts (Moot Court Auditorium)

Chair: Omri Ben-Shahar (U. of Chicago)

Robin Kar (U. of Illinois)

Nancy Kim (California Western)

Gregory Klass (Georgetown)

David McGowan (U. of San Diego)

3:30-3:45         Break (Moot Court Lobby)

3:45-5:30         Consumer Protection (Moot Court Auditorium)

Chair: TBA

Susanne Augenhofer, Self-Regulation and the Interface of Consumer Protection and Corporate Governance

David Friedman, Addressing Fictitious Pricing: Discounting of Retail Goods and Deceptive Prior-Reference Pricing

Timothy Hall, Contractual Limitation of Personal Fitness and Health Data Tracking: An Empirical Analysis

Jim Hawkins, Are Bigger Companies Better for Low-Income Borrowers?: Evidence from Payday and Title Loan Advertisements 

Performance & Enforcement (BSL 102)

Chair: TBA

Pamela Edwards, “The Best Interests of the League”: Contractual Limits of Sports Leagues Commissioners' Powers to Discipline Team Owners

Orit Gan, The Justice Element of Promissory Estoppel

Victor Goldberg, Buffalo’s Field of Dreams: Kenford Co. v. Erie County

Jennifer Martin, Avoiding Unpleasant Surprises in Resales Under 2-706 

6:00-9:00         Reception & Dinner (Barrick Museum Exhibition Hall)

 

Sat. 2/28

8:30-9:00         Breakfast (Moot Court Lobby)

9:00-10:30      Storytelling and Contracts (Moot Court Auditorium)

Chair: Keith Rowley

Lenora Ledwon, Bonds, Promises, and Contracts in the Narco-Western: Freedom of (and From) Contract in Breaking Bad

Deborah Post, Story Telling and Normative Analysis

Debora Threedy, Cooper on Contracts: Popular Culture and the Paradox of Relational Contracts

Comparative and International II (BSL 102)

Chair: TBA

Myanna Dellinger, Rethinking Force Majeure in U.S. and International Contracts Law

Larry DiMatteo, A Case Study in Comparative Contract Law: Late Acceptance, Right to Cure, and Anticipatory Repudiation in Common, Civil, and Chinese Contract Laws

Irina Sakharova, Finance Lease Contracts: International and Comparative Perspectives

10:30-10:45    Break 

10:45-12:15    Digital Giants Gone Wild! (Moot Court Auditorium)

Chair: TBA

Michael Rustad & Thomas Koenig, Wolves of the World Wide Web: Reforming Social Media Provider’s Contracting Practices

Nancy Kim, Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent

Joasia Luzak, Wanted: A Bigger Stick – On Unfair Terms in Consumer Contracts with Online Service Providers

Sacred Cows (BSL 102)

Chair: TBA

Mark Burge, Thinking Outside the Four Corners of Contract Doctrine in the Legal Education Crisis

Victor Goldberg, Rethinking Jacob and Youngs v. Kent

Jeff Lipshaw, Does Contract Theory Matter?

12:15-1:45      Lunch (RAJ 4th Floor Faculty Lounge)

Keynote: Stewart Macaulay

Comments: Chuck Knapp

                       Peter Linzer

 

1:45-3:30         Roundtable: Perspectives on More Than You Wanted to Know: The Failure of Mandated Disclosure (Moot Court Auditorium)

Chair: Omri Ben-Shahar (U. of Chicago)

Susanne Augenhofer (Humboldt U.-Berlin)

Jeffrey Stempel (UNLV)

Stacey Tovino (UNLV)

TBA

3:30-3:45         Break (Moot Court Lobby)

3:45-5:15         Contract and Families (Moot Court Auditorium)

Chair: TBA

Erez Aloni, Mistaking Neoclassicism for Pluralism in Family Law

Christie Matthews, Contract Law, Race, and Intrafamilial Transactions

Contract Terms II (BSL 102)

Chair: TBA

Sid DeLong, Construction Contracts (N.B.: It’s not what you think)

Peter Gerhart, Good Faith Contract Performance and the Reasonable Person

Allen Kamp, UCC Interpretation versus Plain Meaning Interpretation: A Question of Purpose

5:15-5:30         Conference Wrap-Up (Moot Court Auditorium)

February 18, 2015 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Chapman University Faces Litigation over $12 Million Gift

According to this story in the LA Times, James and Catherine Emmi are seeking the return of $3 million that they have already donated as part of a $12 million charitable pledge to Chapman University.  They are also asking the University to renounce any claim to the remaining $9 million.  If the account is accurate, the Emmis seem to be claiming that:

  • they never made the $12 million pledge;
  • the University took advantage of James Emmi's "confusion in his old age" and preyed on him for the donation (are they alleging mental incapacity or undue influence?);
  • the University harassed the couple by inviting them to events, sending them cards and "referring to them as family";
  • the University breached its agreement with the Emmis by 
    • not publicly recognizing them in a 2013 ceremony, and
    • not making sufficient progress on "Emmi Hall."

It is not clear how the Emmis account for their having already made a $3 million payment towards the $12 million pledge that they claim they never made.  

[H/T Miriam Cherry]

February 18, 2015 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 366 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 180 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
3 147 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 102 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
5 94 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 86 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 
7 85 Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another 
Lionel Smith 
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law 
8 69 Virtual Currencies & Federal Law 
Julie Andersen Hill 
University of Alabama - School of Law 
9 67 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
10 63 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 147 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
2 102 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law
3 94 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
4 90 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
5 67 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
6 63 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
7 58 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law
8 54 Third Party Beneficiaries and Contractual Networks 
Alan Schwartz and Robert E. Scott 
Yale Law School and Columbia University - Law School 
9 42 Dynamic Common Law and Technological Change: The Classification of Bitcoin 
Shawn J. Bayern 
Florida State University - College of Law 
10 41 Passive Consumers vs. The New Online Disclosure Rules of the Consumer Rights Directive 
Joasia Luzak 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 

February 17, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Submitting a Law Review Article about Wrap Contracts through a Wrap Contract

I've been away from the submission process for a few years.  In the meantime, Scholastica has entered the picture, which from an author's view is simply an expensive headache, and more journals are encouraging authors to submit directly through either e-mail or their own online submissions process. 

Having been a historian before becoming a law professor, I am still grateful for the advantages of student-edited law journals and authors' ability to submit to scores of journals simultaneously.  I still believe that this process is better for authors and not significantly less arbitrary that double-blind peer review.  Lots of scholarship gets published that does not end up getting used or cited under both systems, but the peer review process banishes lots of possibly meritorious scholarship to the dung-heap of history based on the opinions of two people whose reasoning might be insufficient to justify such a heavy penalty.

That said, I do find a new feature of online submission processes disquieting.  At least one journal that encourages authors to submit through their online submission form features a Submission Agreement that includes a link to a separate page containing the journal's "attribution and usage policies."  The latter are incorporated by reference, and thus one must agree to them in advance before submitting the article.  There is nothing particularly onerous in the Submission Agreement or the usage policies, but the problem is that authors submit to dozens or scores of journals.  The journals cannot really expect authors (or their administrative assistants who submit on their behalves) to read through boilerplate terms.  So there we have it -- forms that purport to bind law professors to terms to which they have not meaningfully consented.  This is especially ironic if, like me, you have been writing about the dangers of form contracts and the degraded version of "consent" in this context. 

The practice is especially irksome as the submission process does not otherwise involve a contract.  When I submit my article to multiple journals for publication, I am submitting an invitation for offers.  I have no obligation to the journals, and they have no obligation to me.  They don't even have to read my piece before rejecting it, nor do they have to respond in any way to me.  And if they do offer to accept my piece (which, note, is typically described as an "offer to publish" not as an "acceptance"), I can reject that offer and go merrily on my way.  

The introduction of form contracts at the submission state --  a point at which the parties have no legal relationship -- is simply unnecessary.

February 17, 2015 in Commentary, True Contracts | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Weekly News Roundup

372px-Lady_Gaga_during_the_ArtRave_Tour
Lady Gaga by nikotransmission

An interesting test for contracts rights of first refusal.  As reported here in Indianapolis Business Journal (IBJ.com), an Indianapolis-based media company, Emmis Communications (Emmis) is suing a Los Angeles radio personality Kurt Alexander (known as "Big Boy").  The latter received a generous offer from iHeartMedia, which Emmis claims to have matched.  Big Boy is jumping ships nonetheless, so Emmis is suing for breach of contract.

According to this account in the Bangor Daily, a Maine author, Tess Garritsen will get to refile her claims against Warner Bros. for breach of contract in connection with the studio's film, Gravity.  A District Court in California dismissed her complaint but has allowed her twenty days to amend and refile.  The complaint is based on a $1 million contract Gerritsen signed in 1999 to sell the book’s feature film rights to a company that was eventually purchased by Warner Bros.  Gerritsen has admitted that the film "is not based on" her book, but she asserts that the book clearly inspired the film.  

According to this story on NJ.com, a Federal District Judge rejected a motion to set aside a $7.3 million jury award in Wendy Starland's suit against record producer Rob Fusari.  The payoff was in consideration of Starland's discovery of Stefani Germanotta, aka Lady Gaga (pictured).

February 16, 2015 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Your Smart TV May Be Engaged in Intelligence Work

Back in 2013, we mused about the seeming disconnect between public outrage at NSA data mining and the lack of comparable outrage with respect to private data mining.  Nancy Kim and I have been writing in this area, and a recent report in the ABA Journal provides additional fodder for our scholarship.  

One of the things that makes television's "smart" these days is that they have the ability to respond to voice commands.  If you have this feature on, the television transmits your information to a third party, according to Samsung.  If you turn the voice recognition feature off, your television still gathers the data but it does not transmit it.  

Smart_TV
Photo by LG

Over at Salon, Michael Price gives us reasons why we should be afraid of our smart tvs.  Having reviewed his television's 46-page privacy policy, Price concludes that it has the capability to collect a staggering amount of data.  One could turn off the television's "smart" features, but that can affect your television's ability to do some of the things you bought it for.  Just as we cannot choose which channels the cable providers send us, we can only choose from packages, we apparently cannot choose to have a television with some "smart" features unless we are willing to invite Big Brother into our living rooms.

February 16, 2015 in About this Blog, Commentary, Television, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Thursday, February 12, 2015

Bar Prep Teaching

This year, I am teaching a bar preparation course on contracts, which is being offered for the first time at my Law School.  This is a lot of fun for me -- I like teaching contracts both semesters because it keeps my mind more focused on the subject.  It's also fun to teach the material in a different way -- no cases, as some familiarity with the case law is assumed at this point, so I just give mini refresher lectures and then move on to the homework assignment.

So it's fun, but it's also a lot of work.  I give my students four multiple choice questions each day, and they have to turn in their answers -- explaining why the right answer is wrong and the wrong answers are wrong.  The idea is to both solidify their understanding of the doctrine and alert them to the strategy behind bar exam "distractors" -- that is, wrong answers that are trying to trick students into mistaking them for correct answers.  Most days, they also have to write a short essay, designed to be akin to MEE questions.  

Because I am teaching such a course myself, I read with some interest David Frakt's recent post on The Faculty Lounge on the value of in-house bar prep courses.  But I was taken aback by the comments.  The anonymous or pseudonymous commentators asked the following rhetorical questions:

  • Does bar prep make students better lawyers?
  • What good is passing the bar when there are no jobs for lawyers anyway?
  • Don't law schools have an obligation to refrain from flooding the market with unemployable lawyers?

I think this is a case of massive anger that is massively misdirected.  Students are in law school.  They want to stay in law school and they want to become lawyers.  I have met with many students facing dismissal from my Law School for poor academic performance.  The ones I have spoken to all are willing to do whatever it takes to stay in, and they are furious with us when we dismiss them.  So we put the time and the energy into bar prep courses because it is what our students need.  Some of them need it because they won't do the work without the additional kick in the pants.  Others need it because they have many natural gifts that will make them great lawyers, but excelling at standardized tests is not one of them.  We are trying to get them over that hurdle so that they can have the careers for which they are otherwise qualified.

I certainly understand the anger of the unemployed law students.  I was an unemployed Ph.D. before I went to law school.  I know what professional devastation feels like.  It seems like the "Law School Scam" crowd thinks the solution is to just shut law schools like the one I teach at.  But how would throwing me, my colleagues, and our support staff out of work improve the situation?  It certainly would not improve things for the students we serve, most of whom pass the bar, find work, and do better than they would have done without their degrees.  Law school opened for me a range of career options that would have been completely unthinkable without my J.D.  Why should that opportunity be denied to the current generation of potential law students?

February 12, 2015 in Commentary, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

John E. Murray, 1932-2015

We just received the sad news of Chancellor John E. Murray's death, at age 82.  An obituary can be found here in the Pittsburgh Post-Gazette.  I met Chancellor Murray only once, at the International Conference on Contracts two years ago at which we honored him.  That being the case, I am not well positioned to post a remembrance, and I hope our readers will avail themselves of the comments space to share their recollections.

But I will say this.  Less than two weeks ago, Chancellor Murray chimed in on a thread on the Contracts Prof listserv.  He shared a sober, scholarly rumination on the parol evidence rule and the CISG.  Two weeks earlier, he posted a succinct and complete answer to a question that I had posed on the listserv.  According to the Post-Gazette report, on the day he died, Chancellor Murray thought to get word to his law school Dean that he would need somebody to cover his classes the next day.  From what little I know of him, I can say that he was absolutely dedicated to his students and his colleagues, and he died with his contracts law boots on.

February 12, 2015 in Contract Profs | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 11, 2015

Construction Contracts that Kill

Property development is often considered a way for local communities to earn more taxes and evolve with times in general.  But when construction and other development is approved in geologically risk areas such as flood zones and things go awfully wrong, is this a mere property and contracts issue, or may criminal liability lie?

In France, the answer is the latter.  The former mayor of the small French seaside town La Faute-sur-Mer  was just sentenced to jail for four years for deliberately hiding flood risks so that he and the town could benefit from the “cash cow” of property development, a French court has held.  His deputy mayor received a two-year sentence in the same plot.

In 2010, the cyclone Xynthia hit western Europe and knocked down seawalls in the French town, leading to severe floods and 29 deaths. 

Wait… a cyclone in France?  Yes.  Climate change is real and it’s here.  Unless we do something about it (which apparently we don’t), things will only get worse.  As on-the-ground steps that could prevent extreme results such as the above are often simply ignored or postponed while more and more research is done and money saved at various government scales, lawsuits will necessarily follow.  The legal disciplines, including contracts law, will have to conform to the new realities of a rapidly changing climate.  For starters, we need to seriously question the wisdom and continued desirability of constructing more and more homes in coastal and other flood prone areas.  Ignoring known risks is, well, criminal.

February 11, 2015 in Commentary, Current Affairs, Government Contracting, Labor Contracts, Science | Permalink | Comments (0) | TrackBack (0)

Mark Zuckerberg in a Modern Mitchill v. Lath?

Mcherry3Friend of the blog, Miriam Cherry (pictured) is quoted in this story about a spat between Facebook CEO Mark Zuckerberg and a former neighbor.  The story seems much creepier than the classic icehouse case, Mitchill v. Lath.   Here, plaintiff Mircea Voskerician claims he offered to sell his house to Zuckerberg after pointing out to Zuckerberg that Voskerician was planning to build a large house that overlooked Zuckerberg's master bedroom.  Voskerician alleges that he sold the property to Zuckerberg at a significant discount in return for an oral promise that Zuckerberg would introduce Voskerician, a real estate developer, to Zuckerberg's Silicon Valley contacts.  

Voskerician alleges that Zuckerberg has not honored his end of the deal.  Zuckerberg seems to be denying there was any such deal.  So the interesting contracts question is whether the parol evidence rule will permit introduction of Voskerician's evidence of the oral promise.  Noting that California is quite permissive in the admission of parol evidence, Professor Cherry suggests that Voskerician will be permitted to introduce the evidence.  

If the newspaper account cited above is accurate, it is hard to imagine how Zuckerberg's introduction would have helped Mr. Voskerician.  It might run something like this: "Hey there, Captain of Virtual Industry!  Let me introduce you to this man, here, who was almost my backyard neighbor.  He threatened to do a Rear Window number on me unless I bought him out.  Would you like to do some business with him?" 

February 11, 2015 in Celebrity Contracts, Famous Cases, In the News | Permalink | Comments (0) | TrackBack (0)