ContractsProf Blog

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

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Monday, February 16, 2015

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)

Tuesday, February 10, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 359 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 169 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
3 139 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 124 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
5 123 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
6 93 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 
7 79 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 
8 77 Genealogies of Lex Mercatoria 
Nikitas Hatzimihail 
University of Cyprus, Department of Law 
9 75 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
10 67 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 

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

RankDownloadsPaper Title
1 139 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
2 124 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
3 93 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 
4 89 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 79 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 75 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
7 60 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
8 56 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 
9 53 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
10 42 Third Party Beneficiaries and Contractual Networks 
Alan Schwartz and Robert E. Scott 
Yale Law School and Columbia University - Law School 

 

February 10, 2015 in Recent Scholarship | Permalink | TrackBack (0)

District Court Had Inadequate Cause for Intervention in an Arbirtration

9th CirIn Sussex v. U.S. Dist. Ct. for the Dt. of Nevada, Las Vegas, Petitioners filed a writ of mandamus seeking to overturn the District Court's disqualification of an arbitrator for "evident partiality."  The underlying arbitration involved several civil actions against Turnberry/MGM Grand Towers, LLC, the developer and seller of a condominium project.  Turnberry sought removal of the arbitrator, who had become involved in business ventures, which he characterized as "completely dormant," through which he sought to create a fund as an investment vehicle that would provide capital for litigation. The District Court granted Turnberry's motion to disqualify the arbitrator.

On a writ of mandamus, the Ninth Circuit applies the "clear error" standard.  The Ninth Circuit articulated its test for when a District Court may intervene in an arbitration in Aerojet-General Corp. v. Am. Arbitration Ass’n, 478 F.2d 248 (9th Cir. 1973).  That test provides that a court should intervene only in "extreme cases."  The Ninth Circuit characterized this standard as very close to a blanket rule against court intervention in an ongoing arbitration.  

Applying this standard, the Ninth Circuit found that the District Court had clearly erred in disqualifying the arbitrator.  The Court stressed that this case, in which it was not established that the arbitrator's modest business venture would prejudice him against either party, was "emphatically not" the sort of extreme case that would warrant court intervention.

The Petition was granted.

February 10, 2015 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Weekly News Roundup

Sly Stone
Sly Stone by Chris Hakkens

According to Randall Roberts in the L.A. Times, a Los Angeles Superior Court jury ruled for the Sylvester Stewart (aka funk legend Sly Stone, at left) in his action against his ex-manager Gerald Goldstein, attorney Glenn Stone and Even St. Productions Ltd.  It's the usual story.  Sly Stone suffered from drug addiction and ran into hard times when defendants proposed a commercial association in 1989.  Stone successfully alleged unjust enrichment and breach of contract, claiming that he never saw the money that the enterprise earned through his music.  A jury awarded Stone $5 million.  Even St. Productions filed for bankruptcy in 2013, and the other defendants say that they plan to appeal.  

According to Fox Connecticut, a fraternity member who was suspended from Quinnipiac University in a hazing incident is suing the university and four of its officers for breach of contract.  He alleges that his tuition payment entailed a contractual commitment and that the university did not live up to its end of the bargain because he was not fairly treated.  He has other claims against the university sounding in Connecticut's Unfair Trade Practices Statute and in the implied duty of good faith and fair dealing.

 And . . . at long last, the Steven Salaita saga has made its way into a complaint.  We blogged about this story before here and here and here.  His 39-page complaint alleges statutory violations under 42 USC §§ 1983 and 1985, as well as promissory estoppel, breach of contract, tortious interference, and spoilation of evidence.

February 9, 2015 in Celebrity Contracts, Current Affairs, In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 351 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 168 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
3 163 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
4 162 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
5 136 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
6 121 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
7 102 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
8 78 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 
9 75 Genealogies of Lex Mercatoria 
Nikitas Hatzimihail 
University of Cyprus, Department of Law 
10 71 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 

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

RankDownloadsPaper Title
1 168 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
2 163 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
3 136 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 102 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
5 88 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 
6 78 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 
7 71 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
8 65 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 55 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 
10 52 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 

 

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

Monday, February 2, 2015

Weekly News Roundup

In Benz-Elliott v. Barrett Enterp., LP, the Tennessee Supreme Court clarified the method for determining the statute of limitations when a case raises multiple claims.  In such cases, the court must determine the gravamen of each claim and the nature of damages sought.  In this case, which involved a sale of property, plaintiff alleged breach of contract and sought contractual damages.  The Supreme Court reversed the Court of Appeals, which had dismissed plaintiff's claim based on a three-year statute of limitations relating to property claims.   The six-year statute of limitations for breach of contracts should apply to plaintiff's claims, which were reinstated.

FootballEric Macramalla reports in Forbes that a Jets fan attempted to sue Bill Belichick, the New England Patriots and the NFL on behalf of a class of season ticket holders for having secretly recorded and then destroyed videotapes revealing signals given by New York Jets coaches (which players variously interpreted as "fumble," "drop the pass" and "miss your defensive assignment," inter alia).  The suit was dismissed because the their seasons' tickets only permitted them to watch the game, which they did.  Macramalla predicts similar suits may follow the great under-inflated ball scandal, which, lets face it, is a great distraction from all the other scandals facing the NFL these days.

February 2, 2015 in In the News, Recent Cases, Sports | Permalink | Comments (0) | TrackBack (0)

Ride Sharing Services: It Just Keeps Getting Better!

NYC_Taxi_in_motion
Photo by The Wordsmith


We have had quite a few posts about Uber, Lyft and other ride-sharing services, but they just keep popping up in the news, and the wrinkles are always unexpected and fascinating.  Saturday's New York Times reported that the companies allow drivers to rate their passengers.  If you get a bad rating, you'd better hail a cab or [shudder] take public transportation.  It's not such a strange thing to be rated by a service-provider you pay, the Times point out.  After all, students pay tuition to attend law school, and yet we grade them.  But of course, students know that going in.  Probably most passengers don't expect to be rated.  What a wonderful century we inhabit -- so many opportunities to pass judgment on perfect strangers!  

And what sort of behavior will get you a bad rating?  It may be simple things like asking the driver to turn the heat/air conditioning/radio up or down.  One rider expressed her angst about being thought insensitive or lacking in interpersonal skills if she took a call or did work while riding.  Even Uber's CEO, one of the few riders with access to his own rating, was downgraded from five stars as a passenger to four.  He attributes the lackluster reviews to work stress.  He blames himself.  "I was not as courteous as I should have been.”  He should watch out.  You can be banned from Uber, which siad in a blog post that it only wants to serve "the most respectful riders."

The article suggests that two-way review systems are inevitable, even though they may be inaccurate.  A comparison of a site that allowed two-way reviews with one that allowed only one-way review found that the two-way system leads to far more positive reviews.  

What goes around comes around.  I would not put it past these companies to monitor their drivers' ratings of passengers.  The company may find its own ways to retaliate against drivers who complain about passengers who do nothing more offensive than behaving like busy people who are getting a ride from a stranger as part of a commercial transaction.

February 2, 2015 in Commentary, In the News, Travel | Permalink | Comments (0) | TrackBack (0)

New in Print (including a new book!)

Books 5Giles Cuniberti, The International Market for Contracts: The Most Attractive Contract Laws. 34 Nw. J. Int'l L. & Bus. 455 (2014) 

Robert W. Emerson, Fortune Favors the Franchisor: Survey and Analysis of the Franchisee's Decision whether to Hire Counsel, 51 San Diego L. Rev. 709 (2014)

Shelby D. Green, Contesting Disclaimer-of-Reliance Clauses by Efficiency, Free Will, and Conscience: Staving off Caveat Emptor, 2 Tex. A&M L. Rev 1 (2014)

Cameron S. Hamrick & Michelle E. Litteken, CICA Stay Overrides at the Court of Federal Claims: What Government Contractors Need to Know, 43 Pub. Cont. L.J. 687-713 (2014)

James W. Nelson, GAO-COFC Concurrent Bid Protest Jurisdiction: Are Two Fora Too Many? 43 Pub. Cont. L.J. 587 (2014).

Aaron S. Ralph, Transaction Management: A Systemic Approach to Procurement Reform, 43 Pub. Cont. L.J. 621 (2014)

Steven M. Seigel, War Claims and Private Security Contractors: The Strategic and Regulatory Benefits of Paying Host-Nation Claims against U.S. Contractors, 43 Pub. Cont. L.J. 653 (2014)

Heather K. Way, & Lucy Wood. Contracts for Deed: Charting Risks and New Paths for Advocacy. 23 J. Affordable Housing & Commun. Dev. L. 37 (2014)

  Davies

Accessory Liability

Paul S Davies

Accessory liability in the private law is of great importance. Claimants often bring claims against third parties who participate in wrongs. For example, the ‘direct wrongdoer’ may be insolvent, so a claimant might prefer a remedy against an accessory in order to obtain satisfactory redress. However, the law in this area has not received the attention it deserves. The criminal law recognises that any person who ‘aids, abets, counsels or procures’ any offence can be punished as an accessory, but the private law is more fragmented. One reason for this is a tendency to compartmentalise the law of obligations into discrete subjects, such as contract, trusts, tort and intellectual property. This book suggests that by looking across such boundaries in the private law, the nature and principles of accessory liability can be better understood and doctrinal confusion regarding the elements of liability, defences and remedies resolved.

Please click here to view the table of contents for this book

Paul S Davies is an Associate Professor in Law at the University of Oxford and a Fellow of St Catherine’s College, Oxford.

January 2015     9781849462877     302pp     Hardback     RSP: £55  

Discount Price for Contracts Prof Blog Readers: £44

ORDER ON-LINE
Please click here to order online. When ordering online please type the reference 'CONTRACTSPROFBLOG' in the voucher code field and click ‘apply’ to receive the discount.

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530 Fax Number: 01865 510 710

Website: www.hartpub.co.uk   

February 2, 2015 in Books, Government Contracting, Recent Scholarship | Permalink | TrackBack (0)

Wednesday, January 28, 2015

Conference on the CISG at 35

January 28, 2015 in Conferences, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, January 27, 2015

A Contract to Kill but no Intent to

A young Norwegian man has been fined $1,300 for accepting a contract to kill without the intent to follow up on it.  Yes, you read that right: all the authorities could charge this man with was contractual fraud.  Another 21-year old man ordered the killing of a teenage girl who had rejected the man’s romantic advances.  The punishment for the “offeror”?  Two years in prison with most of the sentence suspended because the suspect confessed.

Good thing that these men were caught and convicted of something… sort of a gruesome twist on the old, classic Al Capone story (of course, Capone only pled guilty to tax evasion and prohibition charges).  I know that the Scandinavian countries do not believe in the rehabilitative effects of relatively severe sentences such as those often dished out in the USA, but still...  Two years and $1,300 for an attempted contract on a teenage girl’s head?  That seems too lenient to me. 

January 27, 2015 in Famous Cases, In the News, Miscellaneous, True Contracts | Permalink | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 339 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 164 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
3 154 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
4 149 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
5 134 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
6 118 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
7 96 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
8 75 Genealogies of Lex Mercatoria 
Nikitas Hatzimihail 
University of Cyprus, Department of Law 
9 70 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
10 66 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 

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

RankDownloadsPaper Title
1 164 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
2 149 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
3 134 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 96 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
5 86 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 
6 70 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
7 66 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 54 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 50 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
10 48 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 

 

January 27, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, January 26, 2015

Supreme Court: Sixth Circuit Reasoning Incompatible with Contracts Principles

A group of retirees had worked for the Pleasant Point Polyester Plant.  They retired before Petitioner M&G Polymers (M&G) acquired the plant in 2000.  At the time of that acquisition, M&G entered into a collective bargaining agreement and a pension agreement with a union that represented retirees.  Those agreements created a right to lifetime, contribution-free health care benefits for the retirees, their surviving spouses, and their dependents.  However, in 2006, M&G  announced that it would begin requiring retirees to contribute to the cost of their health care benefits.   Retirees objected that their rights had already vested and could not be withdrawn.  

Scotus-2014
Retirees sued, but M&G claimed that the benefits expired with the termination of the earlier agreements.   The Sixth Circuit, relying on a 1983 precedent sided with the retirees, reasoning that retiree health benefits would not likely be subject to future negotiations.  Earlier precedent in similar cases had found that, even if the agreements at issue are ambiguous, the parties likely intended for them to apply in perpetuity for workers whose rights had vested and who, as retirees, would no longer be able to engage in collective bargaining.  In M&G Polymers USA, LLC v. Tackett, Justice Thomas, writing for the unanimous Court, reversed, finding the Sixth Circuit opinion inconsistent with ordinary principles of contracts law.  

In this and prior cases, the Court held, the Sixth Circuit had departed from contracts principles by placing a thumb on the scales in favor of retiree benefits.    The Sixth Circuit's "assessment of likely behavior in collective bargaining is too speculative and too far removed from the context of any particular contract to be useful in discerning the parties’ intention," the Court found.  In addition, the Sixth Circuit approach misapplies the presumption against illusory promises.  The Sixth Circuit  found that agreements such as the one at issue would be illusory if benefits could be withdrawn from some potential beneficiaries.  The Court pointed out that a contract cannot be partly illusory.  If it provides benefits some poetntial beneficiaries, that suffices to render the contract non-illusory.   Moreover, the Sixth Circuit ignoreed both the traditional contracts presumption that contractual rights usually terminate with the underlying agreement and the presumption against contracts rights that vest for life.  The Court remanded the case with instructions that the lower courts should apply ordinary contracts principles

Justices Ginsburg, Breyer, Sotomayor and Kagan concurred.  They agreed that ordinary contracts principles should govern the interpretation of the agreements at issue.  However, they rejected M&G's contention that the retirees need to show "clear and express" language that their rights had vested.  The concurring Justices pointed to provisions that might support the retirees' claims and joined the opinion of the Court in urging the lower courts to review the agreements in light of ordinary contracts principles and without a thumb on the scales in favor of a finding of vested rights.

 

January 26, 2015 in Labor Contracts, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Call for Papers: Obligations: Revolutions in Private Law

Call for Papers

Obligations VIII: Revolutions in Private Law

The Eighth Biennial Conference on the Law of Obligations will be held at the University of Cambridge from 19-22 July 2016, co-hosted by the University of Cambridge Faculty of Law and Melbourne Law School. The biennial Obligations Conferences bring together scholars, judges and practitioners from throughout the common law world to discuss current issues in contract law, the law of torts, equity and unjust enrichment.

Both established and junior legal scholars are invited to submit proposals to present papers addressing the conference theme, broadly interpreted, which is described as follows:

Revolutions in thinking about our governing rules often cause palpable shifts in their foundations: 2016 is the 350th anniversary of Newton’s ‘discovery’ of gravity, and the 100th anniversary of Einstein’s ‘discovery’ of general relativity.  It is also the 50th anniversary of the publication of Goff and Jones’ The Law of Restitution, and the 500th anniversary of the publication of Sir Thomas More’s Utopia.  What changes mark the most significant paradigm shifts in private law?  What effects have they brought?  What has provoked them in the past, and what might deliver them in the future?  These questions are relevant across the entire sweep of the law, and are common to all jurisdictions.  We hope that this theme and its underlying questions will provoke serious discussion about the types of issues which unsettle the law, and how we as lawyers help to resolve the ructions.  

Anyone wishing to offer a paper should submit a working title and an abstract (of no more than 500 words) by email to obligations8@gmail.com by 30 June 2015. Papers will be selected on the basis of quality, originality, engagement with the conference theme and fit with other papers being presented at the conference. Those offering papers will be notified by 31 July 2015 at the latest whether their papers have been accepted. A waiting list may be established, depending on the level of interest.

All presenters whose offers of papers are accepted will be expected to meet their own travel and accommodation costs and to pay a discounted registration fee. Speakers will be asked to submit fully written draft papers by 15 June 2016 for distribution to delegates via a password-protected website. As with previous Obligations Conferences, it is proposed that a small number of selected papers focused on the conference theme will be published in an edited collection following the conference.

Further information about the Obligations Conference series can be found at www.obsconf.com.

Sarah Worthington, Andrew Robertson and Graham Virgo
Conference conveners

January 26, 2015 in Conferences | Permalink | TrackBack (0)

Sunday, January 25, 2015

Podcast Now Available for AALS Annual Meeting 2015 - Mind the Gap!

Earlier this month, the Contracts sections hosted a program on Contracts, Technology and Legal Gaps.  We had an excellent line-up of expert panelists:  Eric Goldman (Santa Clara), Woodrow Hartzog (Samford), Corynne McSherry (Electronic Frontier Foundation), Jane Winn (U. of Washington) and Deborah Zalesne (CUNY).  For those of you who were unable to attend, the podcast for the program is now available here.

January 25, 2015 in Conferences, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Weekly News Roundup

BasketballAn Ohio appellate court upheld a $1.2 million breach of contract judgment against Kent State's men's basketball coach, Geno Ford.  The judgment enforced a liquidated damages clause entitling Kent State to damages equal to Ford's annual salary ($300,000) multipled by the number of years remaining on his contract at the point of breach.  In Kent State University v. Ford, Coach Ford tried to characterize the liquidated damages clause as a penalty.  The court applied Ohio law to determine whether at the time the contract was entered into: 1) damages were uncertain; 2) the damages provided for in the contract were not unconscionable; and 3) the parties intended for damages to follow a breach.  The court upheld the trial court's determination that the standard was satisfied in this case. Coach Ford can take consolation in the fact that his salary is short of Jim Harbaugh's by an order of magnitude.

PetaPixel.com reports on a wedding photographer who, after charging a couple $6000 to shoot a wedding album, sought an additional $150 for the album cover.  The couple balked, so the photographer is refusing to hand over the photographs and is threatening to charge them an additional $250 "archive fee" if they do not pay up in a month.  PetaPixel draws the following lesson from the story: 

This all goes to show that as a photographer, you should never rely on verbal agreements when it comes to conditions and charges. Always get everything in writing.

Maybe.  The photographer herself has an extremely lengthy blog post about the entire affair in which she claims that everything should have been clear from the written contract.  PetaPixel's story makes it seem like an additional charge was added after the contract had been entered into, and if that's the case, the couple might well have balked whether or not the new terms were in writing.

Contracts Prof/Con Law Prof Randy Barnett, writing at the Volokh Conspiracy picked up by the Washington Postmuses interestingly on the applicability of the contractual duty of good faith to the President's duty to faithfully execute the laws in the Constitution's Take Care clause.  This helps Barnett reconcile his empathy for the President's refusal to enforce federal drug laws in the face of permissive state laws permitting use of marijuana with his opposition to the President's new initiative on immigration.  I've never been persuaded that the contractual analogy is particularly useful in Constitutional interpretation.  Suggesting that the contracts doctrine of "good faith" provides a useful gloss on the Take Care clause strikes me as a stretch, but Professor Barnett is always stimulating.

January 25, 2015 in Commentary, Contract Profs, In the News, Recent Cases, Sports | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

Merchantability Applied to Legal Scholarship

Katowice Fair Building Collapse graphic

 

We know that merchantability means passing without objection in the trade. If law review articles were goods, what would that trade be? For law professors, it  seems like it is second and third year law students.  At some level it would also reviewers of works when a professor is considered for promotion. Recently, though, a colleague of mine and I did a bit of research and began to wonder if acceptable in the trade -- as defined by law students and law professors --  is a meaningful strandard within the trade of academia.

Law professors who do research are generally spending the money of others. The actual buyers are, therefore, those who pay  for the scholarship. Let's add that they have no idea what the standard is but would uniformly agree that every article should make someone or something better off and should reflect high quality research. Students and reviewers should be regarded as agents for those paying the bills.

If that is the measure of merchantability (and why wouldn't it be) then editors and reviewers should apply that standard in their own decisions. Clearly they do not and left to their narrow and inappropriate standard for merchantability we have  massive amounts of scholarship that, let's face  it, is written to justify being granted tenure.  There is little verification that most, no matter how carefully done or clever, actually benefits anyone. Some of it -- a small percentage -- is cited but rarely for the substantive points made as opposed to piggy-backing on a fact asserted in the first work.  Morever the research is often sloppy.  Here is an example. I recently read an article that makes the claim that a certain area of law is now consistent with empirical studies. I looked at the cite and it was to another professor who had not actualy done any empirical work and did not quite say what was claimed. And the work cited by that professor was not on the point made in the first article. In fact the most frequent cite is  the hearsay cite in which the author makes a claim because someone else made the same claim.

I expect readers of this will disagree but shouldn't the test of merchatability mean making someone or something (even if a fish) better off and shouldn't documentation be careful and accurate? Don't misunderstand, much of scholarship meets these standards. But much of what currently passes in the trade without objection does not. 

January 23, 2015 in Commentary, Current Affairs, Law Schools, Miscellaneous, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)