ContractsProf Blog

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

Friday, September 4, 2015

Martha Ertman at the Faculty Lounge

ErtmanI just noticed that Martha Ertman (pictured) will be a guest blogger at The Faculty Lounge.  As the introductory post notes,

Her new book is  Love’s Promises: How Formal & Informal Contracts Shape All Kinds of Families.  More broadly, she rights about the role of contracts in intimate relationships.   Here full cv is here

We look forward to seeking lots of great posts on contracts law in the Lounge.

September 4, 2015 in Contract Profs, Recent Scholarship, Weblogs | Permalink

Uber's Employees: Employees or Independent Contractors?

Yesterday, we blogged here about important considerations regarding whether an employee will be seen as an employee or a contractor.

In O'Connor v. Uber Technologies, U.S. District Judge Edward Chen just ruled that Uber's drivers may  pursue their arguments that they were employees in the form of a class-action suit. One of the reasons was that Uber admitted that they treated a large amount of its drivers "the same."

Of course, millions of dollars may be at stake in this context.  Profit margins are much higher for companies such as Uber, Lyft, Airbnb and other so-called "on demand" or "sharing economy" companies. That is because the companies do not have to pay contractors for health insurance benefits, work-related expenses, certain taxes, and the like.  But seen from the driver/employee's point of view, getting such benefits if they are truly employees is equally important in a country such as the United States where great disparities exist between the wealthy (such as the owners of these start-up companies) and the not-so-wealthy, everyday workers.

Plaintiffs are represented by renowned employee-side attorney Shannon "Sledgehammer" Liss-Riordan who represented and won a major suit by skycaps against American Airlines some years ago, so sparks undoubtedly will fly in the substantive hearings on this issue.

September 4, 2015 in Current Affairs, E-commerce, Famous Cases, In the News, Labor Contracts, True Contracts, Web/Tech | Permalink | Comments (0)

Thursday, September 3, 2015

The NLRB and Independent Contractors

The National Labor Relations Board recently issued a decision , Browning-Ferris Industries of California, Inc., d/b/a/ BFI Newby Island Recyclery,  that establishes a new standard for determining who is a joint employer.  

BFI Newby Island Recyclery hired Leadpoint, a staffing services company, to provide some workers for its recyclery.  BFI and Leadpoint had signed a temporary labor services agreement which could be terminated by either party upon thirty days' notice.  The agreement stated that Leadpoint was the sole employer of the workers and that nothing in the Agreement shall be construed as creating an employment relationship between BFI and the personnel supplied by Leadpoint.  In other words, the agreement contained language that is pretty standard in independent contractor agreements.  The agreement also provided that Leadpoint would recruit, interview, test, select and hire personnel for BFI.  BFI was not involved in Leadpoint's hiring procedures.  BFI, however, had the authority to "reject any Personnel and...discontinue the use of any personnel for any or no reason."  Again, this is fairly standard language in independent contractor agreements.  In a departure from precedent, the NLRB ruled that a company that hires a contractor to provide workers may be considered a joint employer of those workers if it has the right to control them even if it does not actively supervise them. The dissenters were rather unhappy and their opinions are worth reading as they lay out the expected impact of the ruling.  

It's a significant decision and one that should make lawyers take another look at their clients' independent contractor agreements to see whether they contain language that indicates the potential to control the contractor's employees. While the language in the contract was not the only factor influencing the Board's decision, it was an important one.

September 3, 2015 in Current Affairs, Labor Contracts, Miscellaneous | Permalink | Comments (0)

Wednesday, September 2, 2015

New in Print: Hastings Law Journal Special Issue for Charles L. Knapp

Last year, Hastings Law hosted a conference in honor of Charles L. Knapp.  The proceedings of that conference are now in print.  Abstracts can be found here on the Hastings Law Journal homepage.

Hastings-Law-Journal
Contract Law Present and Future: A Symposium to Honor Professor Charles L. Knapp on Fifty Years of Teaching Law

Harry G. Prince

Volume 66, Issue 4, 871-878

Full Article

HLJ IssueCasebooks and the Future of Contracts Pedagogy

Carol L. Chomsky

Volume 66, Issue 4, 879-898

Full Article

Under the Sun: Casebooks and the Future of Contracts Teaching

Thomas W. Joo

Volume 66, Issue 4, 899-914

Full Article

“Contraps”

William J. Woodward, Jr.

Volume 66, Issue 4, 915-936

Full Article

The Duty of Good Faith: A Perspective on Contemporary Contract Law

Jay M. Feinman

Volume 66, Issue 4, 937-950

Full Article

Sketches of a Redemptive Theory of Contract Law

Emily M.S. Houh

Volume 66, Issue 4, 951-970

Full Article

Contract as Evil

Peter Linzer

Volume 66, Issue 4, 971-1010

 

Full Article

Curing the Infirmities of the Unconscionability Doctrine

Hazel Glenn Beh

Volume 66, Issue 4, 1011-1046

Full Article

Contractual Indescendibility

David Horton

Volume 66, Issue 4, 1047-1082

Full Article

Is There a “Duty to Read”?

Charles L. Knapp

Volume 66, Issue 4, 1083-1112

Full Article

September 2, 2015 in Conferences, Contract Profs, Recent Scholarship | Permalink

Tuesday, September 1, 2015

Uber’s Safety Checks

Uber.  It just seems to always be in the news for one more lawsuit, doesn’t it.  In late August, the district attorneys for San Francisco and Los Angeles filed a civil complaint against the company alleging that it is making misrepresentations about its safety procedures.  The complaint, i.a., reads that Uber’s “false and misleading statements are so woven into the fabric of Uber’s safety narrative that they render Uber’s entire safety message misleading.” 

On its website, Uber promises that “from the moment you request a ride to the moment you arrive, the Uber experience has been designed from the ground up with your safety in mind” and that “Ridesharing and livery drivers in the U.S. are screened through a process that includes county, federal, and multi-state criminal background checks. Uber also reviews drivers’ motor vehicle records throughout their time driving with Uber.”

However, Uber does not use fingerprint identication technology, which means that the company cannot search state and federal databases, only commercial ones. 

The result? People with highly questionable backgrounds end up being on Uber’s payroll.  For example, one “Uber driver was convicted of second-degree murder in 1982. He spent 26 years in prison, was released in 2008 and applied to Uber. A background report turned up no records relating to his murder conviction. He gave rides to over 1,100 Uber customers.” Yikes.  Another “Another driver was convicted on felony charges for lewd acts with children. He gave over 5,600 rides to Uber customers.” 

Add this to the ongoing lawsuit about whether Uber’s drivers should be legally classified as “employees” or “contractors,” and Uber is in a mound of legal trouble.

Certainly, a misrepresentation seems to have been made if the company deliberately touts its safety and its “industry-leading background check process” yet only uses a commercial database that does not even necessarily ensure that its drivers are who they say they are.

Still, Uber remains one of the most valuable start-ups in the world.  It and similar “sharing economy” companies such as Airbnb have gained a good foothold on a market with a clear demand for new types of services.  So far, so good.  But initial success should not and does not equate with a “free-for all” situation just because these new companies are highly successful, at least initially.  It seems that they are learning that lesson.  Lyft, for example, already settled with prosecutors in regards to its safety.  Perhaps Uber will follow suit.

September 1, 2015 in Commentary, Current Affairs, E-commerce, In the News, Labor Contracts, Web/Tech | Permalink | Comments (0)

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 154 Bitcoin and the Uniform Commercial Code 
Jeanne L. Schroeder 
Yeshiva University - Benjamin N. Cardozo School of Law 
2 147 The Commission's E-Commerce Sector Inquiry – Analysis of Legal Issues and Suggested Practical Approach 
Lars KjølbyeAlessio Aresu and Sophia Stephanou 
Latham & Watkins LLP, Latham & Watkins LLP and Latham & Watkins LLP 
3 130 Common Law Values: The Role of Party Autonomy in Private Law 
Sarah Worthington 
University of Cambridge - Faculty of Law 
4 112 The Laws of Asian International Business Transactions 
Gilles Cuniberti 
Universite du Luxembourg - Faculty of Law, Economics and Finance 
5 111 Legal Aspects of Subordinated Debt Instruments 
Vinod Kothari 
Visiting Faculty, Indian Institute of Management 
6 96 A Comprehensive Theory of Civil Settlement 
J.J. Prescott and Kathryn E. Spier 
University of Michigan Law School and Harvard University - Law School - Faculty 
7 95 The Normative Force of Consent 
Heidi M Hurd 
University of Illinois College of Law 
8 80 Contract Formation and Performance Under the UCC and CISG: A Comparative Case Study
Kurt M. Saunders and Leonard Rymsza 
California State University, Northridge and California State University, Northridge - Department of Business Law 
9 79 Contract as Evil 
Peter Linzer 
University of Houston - University of Houston Law Center 
10 76 Contract Design and the Shading Problem 
Robert E. Scott 
Columbia University - Law School 

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

RankDownloadsPaper Title
1 147 The Commission's E-Commerce Sector Inquiry – Analysis of Legal Issues and Suggested Practical Approach 
Lars KjølbyeAlessio Aresu and Sophia Stephanou 
Latham & Watkins LLP, Latham & Watkins LLP and Latham & Watkins LLP 
2 130 Common Law Values: The Role of Party Autonomy in Private Law 
Sarah Worthington 
University of Cambridge - Faculty of Law 
3 112 The Laws of Asian International Business Transactions 
Gilles Cuniberti 
Universite du Luxembourg - Faculty of Law, Economics and Finance 
4 96 A Comprehensive Theory of Civil Settlement 
J.J. Prescott and Kathryn E. Spier 
University of Michigan Law School and Harvard University - Law School - Faculty 
5 95 The Normative Force of Consent 
Heidi M Hurd 
University of Illinois College of Law 
6 88 The Ties That Bind: LLC Operating Agreements as Binding Commitments 
Joan MacLeod Heminway 
University of Tennessee College of Law
7 80 Contract Formation and Performance Under the UCC and CISG: A Comparative Case Study
Kurt M. Saunders and Leonard Rymsza 
California State University, Northridge and California State University, Northridge - Department of Business Law 
8 79 Contract as Evil 
Peter Linzer 
University of Houston - University of Houston Law Center 
9 77 צדק פרוצדורלי וצדק מהותי בדיני חוזים: עושק וכפייה כמקרי מבחן
(Procedural and Substantive Fairness in Contract Law: Exploitation and Duress as Test Cases)
 
Eyal Zamir 
Hebrew University of Jerusalem - Faculty of Law 
10 76 Contract Design and the Shading Problem 
Robert E. Scott 
Columbia University - Law School 

 

 

September 1, 2015 in Recent Scholarship | Permalink

Monday, August 31, 2015

Contract Drafting Sources that Promote Substance Over Style

 
Now that we are back in school, I wanted to draw attention to a couple of great new resources for those who are teaching contract drafting or those who would like to incorporate some contract drafting concepts or clauses into their Contracts courses.  The first is an informative article by Lori Johnson, a Professor-in-Residence at University of Nevada, Las Vegas Faculty_Johnson_LoriSay The Magic Word:  A Rhetorical Analysis of Contract Drafting Choice, 65 SYRACUSE L. REV. 451 (2015). One of my pet peeves is when contract drafting stylists advocate the modification or even wholesale deletion of contract terms without understanding their underlying purpose simply because it "sounds better."  Johnson explains why it's important to distinguish between legalese without substance (words such as heretofore, whereas, etc.) and legal terms that have a substantive purpose.  I found this article to be refreshing because it focuses on the substance of contract clauses, not just drafting style, with the ultimate goal of protecting the client's interest.

DCT-head-shot-linked-in-2015-06Speaking of the substance of contract clauses -- the second helpful resource is Houston-based attorney D.C. Toedt's Common Draft, an online resource that is basically an encyclopedia of various contract clauses.  It's quite an effort and well worth exploring. 

August 31, 2015 | Permalink | Comments (0)

Washington Post Exposes Scam that Takes Advantage of Recipients of Structured Settlements

The article is here.

It speaks for itself.

There are a million reasons why these contracts, which offer pennies on the dollar on the present value of the settlement, should not be enforced.  Feel free to offer your legal theories in the comments!

August 31, 2015 in In the News, True Contracts | Permalink | Comments (0)

New in Print

Pile of BooksMatthew D. Cain, Antonio J. Macias & Steven Davidoff Solomon, Broken Promises: The Role of Reputation in Private Equity Contracting and Strategic Default. 40 J. Corp. L. 565 (2015)

Phillip Lee, A Contract Theory of Academic Freedom, 59 St. Louis U. L.J. 461 (2015)

Daniel P. O'Gorman, Contract Law and Fundamental Legal Conceptions: An Application of Hohfeldian Terminology to Contract Doctrine, 33 Miss. C.L. Rev. 317 (2015)

Cheryl B. Preston, "Please Note: You Have Waived Everything": Can Notice Redeem Online Contracts? 64 Am. U. L. Rev. 535 (2015) 

Eric A. Zacks & Dustin A. Zacks, A Standing Question: Mortgages, Assignment, and Foreclosure, 40 J. Corp. L. 705 (2015)

August 31, 2015 in Recent Scholarship | Permalink

Friday, August 28, 2015

Weekly News Roundup

Justin_BieberIn breaking Bieber news, HuffPo reports that Justin Bieber (pictured, left) claimed breach of contract in canceling a scheduled appearance in Montreal.  The venue where Bieber was scheduled to perform seems to belieber the young artist, as it posted on its Facebook page a notice that neither it nor Mr. Bieber were liable for the cancellation.  Bieber himself tweeted the cancellation, specifically referring to the promoter's breach (and to lying, but we prefer the legal jargon).


In Presidential candidate news, the Wisconsin Gazette reported that Wisconsin GovernorScottWalkertaxpayers might have to pay $50 million in damages because Governor Scott Walker (pictured, right) breached a contract that his predecessor had entered into to modernize the states rail service.  According to the Gazette, Spanish train-maker Talgo sued the state for $66 million.  The case settled, with the state agreement to pay nearly $10 million on top of the $42 million it had already paid for trains that it never received. 

The Washington Post reports that a Maryland firm, CNSI, that lost a $200 million contract when its Senior Vice President blew the whistle on irregularities in the award of the contract.  CNSI won a contract to process medicaid claims for the state of Louisiana while one of its former executives was Louisiana's Secretary of the Department of Health and Hospitals.  The contract was cancelled in 2013 and the Secretary of the Department of Health and Hospitals has been indicted for perjury.  CNSI claims that the whistle blower was a disgruntled employee who breached his contract and tortiously interfered.  An investigation into possible wrongdoing by CNSI in connection with the contract is ongoing.

August 28, 2015 in Celebrity Contracts, Government Contracting, In the News | Permalink | Comments (0)

Tuesday, August 25, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 140 The Commission's E-Commerce Sector Inquiry – Analysis of Legal Issues and Suggested Practical Approach 
Lars KjølbyeAlessio Aresu and Sophia Stephanou 
Latham & Watkins LLP, Latham & Watkins LLP and Latham & Watkins LLP 
2 122 Common Law Values: The Role of Party Autonomy in Private Law 
Sarah Worthington 
University of Cambridge - Faculty of Law
3 111 Legal Aspects of Subordinated Debt Instruments 
Vinod Kothari 
Visiting Faculty, Indian Institute of Management 
4 108 The Laws of Asian International Business Transactions 
Gilles Cuniberti 
Universite du Luxembourg - Faculty of Law, Economics and Finance 
5 90 A Comprehensive Theory of Civil Settlement 
J.J. Prescott and Kathryn E. Spier 
University of Michigan Law School and Harvard University - Law School - Faculty
6 75 Contract Formation and Performance Under the UCC and CISG: A Comparative Case Study 
Kurt M. Saunders and Leonard Rymsza 
California State University, Northridge and California State University, Northridge - Department of Business Law 
7 72 Contract as Evil 
Peter Linzer 
University of Houston - University of Houston Law Center 
8 71 The Normative Force of Consent 
Heidi M Hurd 
University of Illinois College of Law 
9 67 Contract Design and the Shading Problem 
Robert E. Scott 
Columbia University - Law School 
10 63 The Risks of Shadow Insurance 
Daniel Schwarcz 
University of Minnesota Law School 

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

RankDownloadsPaper Title
1 140 The Commission's E-Commerce Sector Inquiry – Analysis of Legal Issues and Suggested Practical Approach 
Lars KjølbyeAlessio Aresu and Sophia Stephanou 
Latham & Watkins LLP, Latham & Watkins LLP and Latham & Watkins LLP 
2 122 Common Law Values: The Role of Party Autonomy in Private Law 
Sarah Worthington 
University of Cambridge - Faculty of Law 
3 108 The Laws of Asian International Business Transactions 
Gilles Cuniberti 
Universite du Luxembourg - Faculty of Law, Economics and Finance 
4 90 A Comprehensive Theory of Civil Settlement 
J.J. Prescott and Kathryn E. Spier 
University of Michigan Law School and Harvard University - Law School - Faculty 
5 83 The Ties That Bind: LLC Operating Agreements as Binding Commitments 
Joan MacLeod Heminway 
University of Tennessee College of Law 
6 77 צדק פרוצדורלי וצדק מהותי בדיני חוזים: עושק וכפייה כמקרי מבחן
(Procedural and Substantive Fairness in Contract Law: Exploitation and Duress as Test Cases)
 
Eyal Zamir 
Hebrew University of Jerusalem - Faculty of Law 
7 75 Contract Formation and Performance Under the UCC and CISG: A Comparative Case Study 
Kurt M. Saunders and Leonard Rymsza 
California State University, Northridge and California State University, Northridge - Department of Business Law 
8 72 Contract as Evil 
Peter Linzer 
University of Houston - University of Houston Law Center 
9 71 The Normative Force of Consent 
Heidi M Hurd 
University of Illinois College of Law 
10 67 Contract Design and the Shading Problem 
Robert E. Scott 
Columbia University - Law School 

 

August 25, 2015 in Recent Scholarship | Permalink

Monday, August 24, 2015

Contracting to Pollute

Hugely successful auto-maker Tesla is making very good money not only on its electric cars, but also on its contracts selling zero emission credits to rivaling automakers. New environmental standards in eleven states require that by 2025, 15% of a car company’s sold fleet must be so-called “zero emission” vehicles.  If a company cannot meet existing standards, they can purchase zero emissions credits from other companies that can. Tesla is one of those.

This year, Tesla has sold approximately $68 million worth of credits to competing automakers, which represents 12% of its overall revenue. Overall, Tesla is doing very well: its net profit for the first quarter of this year was more than $11 million and its shares have been reported to be up more than 165% so far this year.

This raises the question that I also raised here on this blog in another post earlier this summer: is the emissions trading scheme a good idea, or does it simply allow for glorified “contracts to pollute”? As with many other things in the law, both could be seen to be the case. See this report that casts doubt on whether carbon credits help or hurt the agenda. Some call them "hot air,"perhaps for good reason. But at least Tesla is, hopefully, challenging other automakers to innovate to pollute less.

Another question, though, is the use of the euphemism “zero emissions.” Electric vehicles are arguably better seen from an environmental point of view than traditional cars, but they are not “zero” emissions.  They could, instead, be called “emissions elsewhere” vehicles.  That, of course, does not sound nearly as good. However, the electricity used for electric cars is produced somewhere. The true question is: by what means? If the electricity stems from dirty coal-fired power plants, the solution is not as good as it sounds, although concentrating the pollution in one large plant may be better than having many individual cars produce power on the road. That is a question for another forum. Suffice it to say that choice is good, and if car buyers could also in all locales could always decide exactly how to source their electricity (from, for instance, solar power), the matter would be different. That is not (yet) the case. So for now, “zero emission” vehicles are actually not so.

August 24, 2015 in Current Affairs, In the News, Legislation, Travel, Web/Tech | Permalink | Comments (0)

Good Enough Notice -- Even if Not for Assent

A recent case out of the Eastern District of California, Handy v. LogMeIn, found that there was notice good enough to defeat a consumer's claims under California's Unfair Competition and False Advertising Laws -- even if that notice might not be sufficient for contract formation.

Darren Hardy obtained LogMeInFree which was provided free of charge and allowed users to remotely access a desktop computer from another computer.  Some time later, he purchased Ignition for $29.99 which allowed him to access a computer using a tablet or smart phone.  Four years later, the defendant, LogMeIn, discontinued the free LogMeIn product although it offered LogMeInPro for $49/year for two computers.  Handy claimed that LogMeIn, when marketing Ignition, should have informed consumers that LogMeInFree could be discontinued in the future.

LogMeIn's "Terms and Conditions of Use" stated that users accepted

 "BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS, CLICKING THE "SUBMIT"  OR "ACCEPT" BUTTONS, SIGNING, USING ANY OF THE PRODUCTS OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THESE TERMS .  ."

The Terms allowed the company to "to modify or discontinue any Product for any reason or no reason with or without notice to You or the Contracting Party. LMI shall not be liable to You or the Contracting Party or any third party should LMI exercise its right to revise these Terms or modify or discontinue a Product."  It also allowed the company to "in its sole discretion immediately terminate these Terms and this subscription, license and right to use any Product if . . . LMI decides, in its sole discretion, to discontinue offering the Product. LMI shall not be liable to You, the Contracting Party or any third party for termination of the Service or use of the Products . . ."

The plaintiff argued that he didn't remember being prompted to review the Terms and Conditions prior to buying Ignition or during his use of it.  He also stated that if he had known that LogMeInFree would be discontinued, he would not have purchased Ignition.

California's False Advertising Law (Cal. Bus. & Prof. Code section 17500) states that it is unlawful for any company to make any untrue or misleading statement in advertising.  California Unfair Competition Law (Cal. Bus. &  Prof. Code section 17200) prohibits "unlawful, unfair, or fraudulent" business practices.  Because the plaintiff's claims under both Laws relied upon claims that the defendant engaged in knowing deception, the plaintiff was subject to the heightened pleading standards of Rule 9(b) of the FRCP. 

The Court granted the defendant's motion to dismiss because the plaintiff failed to meet the heightened pleading standard for fraud.  It found that the plaintiff failed to provide sufficient factual detail to state his claims for several reasons although I'll only discuss the contract-related one.  The court found that LogMeIn provided notice that LogMeInFree could be terminated in its Terms and Conditions of Use.  While Handy argued that the Terms were not binding as they were a "browsewrap," the court stated that missed the point:

   "Whether the Terms and Conditions constituted an enforceable contract is irrelevant to whether the Terms and Conditions related to LogMeInFree provided notice to prospective purchasers of the Ignition app that LogMeInFree could be discontinued....the fact that Defendant posted on its website information that told users that LogMeInFree could be terminated undermines Plaintiff's claims. Though this information was not forced on Plaintiff through a clickwrap, the evidence makes clear that Defendant did publish the fact that it reserved the right to terminate the free app, LogMeInFree."

In other words, the court found that terms on a website could provide sufficient notice to defeat a claim based upon deception even if the notice wasn't sufficient to meet the standards for contractual assent. 

 

 

August 24, 2015 in Recent Cases, Web/Tech | Permalink | Comments (0)

Friday, August 21, 2015

They Did It!

Earlier this summer, I blogged on cheating website Ashley Madison promising to provide "100% discreet service" and a group of hackers threatening to reveal the website's customers if the website was not removed.  Well, it was not, and this past week, the group made good on its promise or threat, depending on how one views the issue, to make the stolen database easily available to the general public

In spite of Ashley Madison's promise to be "100% discreet" (whatever that means), the fine print used in its contracts also states, "We cannot ensure the security or privacy of information you provide through the Internet."  No contractual promises seen to have been breached if that had been the only promise made.  But as Steve Hedley wrote in his comment (see below), some of those inconvenienced by the hack include a number who paid a fee of $19 specifically for a "full delete". Does US contract law really allow Ashley Madison to take their money and then rely on fine print to justify a complete failure?  That is a very good point and indeed does not seem to be the case.  It could, of course, be that those who paid for a full delete got it and were _not_ among the ones in the publicized batch, but judging solely from media reports on this account, complaints have been made that the promised "full deletes" were not undertaken, so it seems that at least some that paid _additional_ money to become deleted from the website did not get what they paid for.  That's a breach.  Thanks, Steve Hedley, for that comment. 

But the matter is more serious and sad than that: the website was/is apparently also used for finding homosexual partners, which is illegal and carries the death penalty in countries such as Iran, Saudi Arabia, and the United Arab Emirates, where two users were listed.

Not surprisingly, this story again shows the importance of internet data security.  One would think that after the recent HomeDepot, Target and other database breach episodes, people would have learned, but apparently, this is not the case.

 

August 21, 2015 in Commentary, Current Affairs, E-commerce, In the News, Web/Tech | Permalink | Comments (2)

Thursday, August 20, 2015

Teaching Again . . . and Thinking about Goods

We started up again this week, so I am once again having the pleasure of introducing students to the glorious realm of contracts law.  Today, we will be delving into Article 2 of the Uniform Commercial Code for the first time, starting with concepts like "goods" and "merchants."  I use Blum's Examples and Explanations as a supplement to the cases I use with my students.  He has a series of questions about whether various transactions are sales of goods.  One involves the sale of a cow.  

Cow_female_black_white
I have a fantasy Socratic exchange about this example:

Me: Is a cow a good?
Student: Yes, it is a good.
Me: How do you know that a cow is a good?
Student: A cow is a good because UCC §2-105 defines "goods" to include all things moveable at the time identified for sale.  It also specifies that the unborn young of animals are goods, so it follows a fortiori that the animals themselves also must be goods.
Me: Interesting, but the answer I was looking for was "because it moooooooooves."

Blum then moves on to more difficult examples involving hybrid contracts.  The Contracts Listserv has been hopping with discussion of this very topic.  I remain puzzled by the preference for the preponderant purpose test.  As I argued here, the gravamen of the action test makes far more sense to me.

August 20, 2015 in Commentary, Teaching | Permalink | Comments (0)

Wednesday, August 19, 2015

New in Print

Tuesday, August 18, 2015

Forthcoming Scholarship from Your Blog Editors

Nancy_kim Telman2Nancy S. Kim and I have an article, Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent, forthcoming in the Missouri Law Review, and that journal has been kind enough to feature our abstract on their homepage.  

We look forward to seeing this one in print, and as usual the work has improved throughout the editing process, but if you can't wait for the final version, a draft is still up on SSRN.

Or, if you want the elevator speech, you can watch this video.

 

August 18, 2015 in About this Blog, Recent Scholarship | Permalink | Comments (0)

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 151 Corporate Legacy 
Andrew A. Schwartz 
University of Colorado Law School 
2 132 The Commission's E-Commerce Sector Inquiry – Analysis of Legal Issues and Suggested Practical Approach 
Lars KjølbyeAlessio Aresu and Sophia Stephanou 
Latham & Watkins LLP, Latham & Watkins LLP and Latham & Watkins LLP 
3 119 Common Law Values: The Role of Party Autonomy in Private Law 
Sarah Worthington 
University of Cambridge - Faculty of Law 
4 113 Overcoming the Knowledge Problem in Behavioral Law and Economics: Uncertainty, Decision Theory, and Autonomy 
Philipp Hacker 
Humboldt University of Berlin 
5 110 Legal Aspects of Subordinated Debt Instruments 
Vinod Kothari 
Visiting Faculty, Indian Institute of Management 
6 105 The Laws of Asian International Business Transactions 
Gilles Cuniberti 
Universite du Luxembourg - Faculty of Law, Economics and Finance 
7 86 A Comprehensive Theory of Civil Settlement 
J.J. Prescott and Kathryn E. Spier 
University of Michigan Law School and Harvard University - Law School - Faculty
8 71 Contract Formation and Performance Under the UCC and CISG: A Comparative Case Study 
Kurt M. Saunders and Leonard Rymsza 
California State University, Northridge and California State University, Northridge - Department of Business Law 
9 68 Contract as Evil 
Peter Linzer 
University of Houston - University of Houston Law Center 
10 65 Secret Consumer Scores and Segmentations: Separating Consumer 'Haves' from 'Have-Nots' 
Amy Schmitz 
University of Colorado Law School 

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

RankDownloadsPaper Title
1 132 The Commission's E-Commerce Sector Inquiry – Analysis of Legal Issues and Suggested Practical Approach 
Lars KjølbyeAlessio Aresu and Sophia Stephanou 
Latham & Watkins LLP, Latham & Watkins LLP and Latham & Watkins LLP 
2 119 Common Law Values: The Role of Party Autonomy in Private Law 
Sarah Worthington 
University of Cambridge - Faculty of Law 
3 105 The Laws of Asian International Business Transactions 
Gilles Cuniberti 
Universite du Luxembourg - Faculty of Law, Economics and Finance 
Date posted to database: 26 Jun 2015 
Last Revised: 26 Jun 2015
4 86 A Comprehensive Theory of Civil Settlement 
J.J. Prescott and Kathryn E. Spier 
University of Michigan Law School and Harvard University - Law School - Faculty 
5 81 The Ties That Bind: LLC Operating Agreements as Binding Commitments 
Joan MacLeod Heminway 
University of Tennessee College of Law 
6 75 צדק פרוצדורלי וצדק מהותי בדיני חוזים: עושק וכפייה כמקרי מבחן
(Procedural and Substantive Fairness in Contract Law: Exploitation and Duress as Test Cases)
 
Eyal Zamir 
Hebrew University of Jerusalem - Faculty of Law 
7 71 Contract Formation and Performance Under the UCC and CISG: A Comparative Case Study 
Kurt M. Saunders and Leonard Rymsza 
California State University, Northridge and California State University, Northridge - Department of Business Law 
8 67 Contract as Evil 
Peter Linzer 
University of Houston - University of Houston Law Center 
9 63 Contract Design and the Shading Problem 
Robert E. Scott 
Columbia University - Law School 
10 54 Liberty at the Borders of Private Law 
Donald J. Smythe 
California Western School of Law 

 

 

August 18, 2015 in Recent Scholarship | Permalink

Monday, August 17, 2015

Something Really Interesting Is Going on in Iowa

 

Iowa_law_school1It's not the Caucuses -- duh!

FACULTY POSITIONS

 

            THE UNIVERSITY OF IOWA COLLEGE OF LAWanticipates hiring several tenured/tenure track faculty members and clinical faculty members (including a director for field placement program) over the coming year. Our goal is to find outstanding scholars and teachers who can extend the law school’s traditional strengths and intellectual breadth. We are interested in all persons of high academic achievement and promise with outstanding credentials. Appointment and rank will be commensurate with qualifications and experience. Candidates should send resumes, references, and descriptions of areas of interest to:  Faculty Appointments Committee, College of Law, The University of Iowa, Iowa City, Iowa  52242-1113.

            THE UNIVERSITY OF IOWA is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran.

August 17, 2015 in Help Wanted, Law Schools | Permalink

Contract Dispute Keeps Top Athlete off U.S. Track & Field Team

Symmonds
By Phil Roeder from Des Moines, IA, USA

I often begin my course by telling students that contracts facilitate mutually beneficial transactions.  So, if they want to be the kind of attorneys who make the world a better place, transactional work is the place to be.  But sometimes one-sided contracts drawn up in a context of vastly unequal bargaining power can prevent mutually beneficial transactions from taking place.  This seems to be occurring in the case of Nick Symmonds, a six-time U.S. outdoor champion at 800 meters who won a silver medal at the 2013 World Championships.  According to this story in the New York Times, Symmonds has been left off the U.S. team for the 2015 Worlds taking place later this month because he refused to sign a contract.

Symmonds refused to sign a vaguely-worded document that seemed to require that athletes wear Nike gear exclusively, even in their free time.  Nike, according to the Times, has committed to sponsoring U.S. Track & Field to the tune of $20 million per year through 2040.  But that contract might interfere with Symmonds' contractual obligations with his own sponsor, the running-shoe company, Brooks.  According to the Times, athletes were instructed to pack only Nike-branded or non-branded apparel for the World Championships.  Symmonds points out that Brooks is paying for him to wear its brand at important events.  If he is prohibited from doing so, why would Brooks continue to sponsor him.  Symmonds is all for the Stars and Stripes, but he also has to worry about dollars and cents.  He estimates that 75% of his income comes through sponsorships.

Symmonds does not object to wearing Nike apparel at official events.  He objects to the vague language that seems to preclude him from supporting his sponsor when he is not at official events.  Some are saying that Symmonds is taking this position because he has no chance to medal at the Worlds anyway, so he has nothing to lose.  The photo above shows him winning the US championships in 2010.  He won again in 2015.  If that guy has no chance, what does it say about the rest of the team?

August 17, 2015 in Celebrity Contracts, Sports, True Contracts | Permalink | Comments (0)