Monday, February 16, 2015
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.
Thursday, February 12, 2015
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?
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.
Wednesday, February 11, 2015
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.
Friend 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?"
Tuesday, February 10, 2015
SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS
In 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.
Monday, February 9, 2015
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.
Tuesday, February 3, 2015
SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS
Monday, February 2, 2015
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.
Eric 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.
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.
Giles 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)
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.
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
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
Wednesday, January 28, 2015
Friday, January 30, 2015
Please join us on Friday, Jan. 30 on campus at Georgetown University Law Center for the Global Sales Law Conference: The CISG at 35: Challenges Today.
The morning will begin with registration and morning refreshments at 8:30 AM, with the program beginning at 9:00 AM.
There is no registration fee but space is limited, so please RSVP by completing the form linked here.
On the occasion of the 35th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), Georgetown’s Center on Transnational Business and the Law and the UNCITRAL Secretariat will host a one day event addressing the present status of the CISG and future options.
Panelists will discuss trends in the use of the CISG in North American legal practice, the future of uniform contract law, and the promotion and role of the CISG in international economic development.
The goal is to take stock of current developments, in particular those relevant for the United States and Canada (e.g., opting out; withdrawal of declarations; CESL and other related projects); to foster greater awareness of the CISG among practitioners; and to explore the contribution of the CISG to legal technical assistance.
This event is co-sponsored by Penn State University - Dickinson Law, the American Branch of the International Law Association, the American Society of International Law, the ABA Section of International Law, the Institute of International Commercial Law, Pace Law School, and the International Law Institute.
The conference will be held on the campus of Georgetown Law, at:
Gewirz Student Center
120 F Street, NW, 12th Floor
Washington, DC 20001
The Law Center is within easy walking distance of Union Station and the Judiciary Square Metro Station. Commerical parking is readily available in the area.
Please find reduced-rate hotel information toward the bottom of this page.
Please click here to register to attend this event.
Registration and Morning Refreshments
9:00 - 9:30 am
Welcome and Overview
Prof. David P. Stewart, on behalf of Dean William Treanor, Georgetown University Law Center
Renaud Sorieul, The Secretary, UNCITRAL
9:30 - 10:30 am
Panel 1: CISG’s Impact on Practice/Current Trends
Moderator: Jack Graves, Professor of Law, Touro Law Center
Franco Ferrari, Professor of Law, New York University School of Law
Claire M. Germain, Associate Dean for Legal Information & Clarence J. TeSelle Professor of Law, Frederic G. Levin College of Law, University of Florida
Peter J. Tucci, Partner, Fox Rothschild LLP
10:30 - 11:00 am
11:00 am - 12:00 pm
Panel 2: Future Options and Related Texts
Moderator: Gregory Klass, Associate Dean for Research and Academic Programs, Georgetown Law
Henry Gabriel, Professor of Law, Elon University School of Law
Clayton Gillette, Max E. Greenberg Professor of Contract Law, New York University School of Law
John J. Kim, Assistant Legal Adviser for Private International Law, U.S. Department of State
12:00 - 1:30 pm
Luncheon Keynote Address
Hon. Claire Reade, Former Assistant USTR for China Affairs
1:30 - 2:45 pm
Panel 3: CISG in Foreign Legal Systems
Moderator: Vikki M. Rogers, Director of the Institute of International Commercial Law, Pace Law School
Hdeel Abdelhady, MassPoint Legal and Strategy Advisory PLLC
Robin Effron, Professor of Law, Brooklyn Law School
Peter Mazzacano, Founder & Editor, CISG Canada
2:45 - 4:00 pm
Panel 4: Technical Assistance and Rule of Law
Moderator: Louis F. Del Duca, Professor of Law, Emeritus, Penn State Dickinson School of Law
Issam Michael Saliba, Law Library of Congress and International Council for Middle East Studies
Stephen D. Gardner, Chief Counsel, Commercial Law Development Program, U.S. Department of Commerce
Muna B. Ndulo, Director of the Berger International Legal Studies Program and Director of the Institute for African Development, Cornell University
Don Wallace, Chairman, International Law Institute; Professor Emeritus, Georgetown Law
4:00 - 5:00 pm
Concluding Panel: Closing Discussion
UNCITRAL Secretary Sorieul and Moderators
Comments and Questions from the Floor
5:00 - 6:00 pm
Reception, Hotung Faculty Dining Room
Tuesday, January 27, 2015
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.
SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS
Monday, January 26, 2015
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.
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.
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 email@example.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
Sunday, January 25, 2015
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.
An 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 Post, muses 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.
Friday, January 23, 2015
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.