ContractsProf Blog

ContractsProf Blog Nominated to Lexis/Nexis Top 25 Business Law Blogs

We received word yesterday that the ContractsProf Blog was nominated to be among LexisNexis top 25 business law blogs.  Unfortunately, the day we received word was the day the opportunity ended to encourage our readers to "talk up" our blog on the LexisNexis site and thereby get us over the hump and into the top 25.

Apparently, but for a missed e-mail, that glory could have been ours.  And you, Dear Reader, could have had the chance to register and LexisNexis's website so that you could proclaim your love of this blog to all the world!

Cruel Kismet!

Nonetheless, congratulations to those enterprising blogs that made the list.  Worthy rivals all.

[JT]

A Mini-Report from the Wisconsin Contracts Law Conference

Earlier this week, we invited participants in the recent contracts conference honoring the scholarship of Stewart Macauley held at the University of Wisconsin at Madison to send in accounts of the proceedings.

Claire Hill from the University of Minnesota provides the following account:

The recent conference at the University of Wisconsin, Madison, to honor Stewart Macaulay’s work, was just as it should have been – a felicitous mix of empirics and theory, in sociology, economics, law and philosophy, on relational contracts, norms, networks, what contract law can and can’t do, what we should be teaching our students, what we shouldn’t be teaching our students, what people use contracts to do, what they don’t use contracts to do, what they shouldn’t or can’t use contracts to do, and much more. My contribution was on mistakes in complex business contracts. It was great fun to collect examples and quotes (one was “Commas all over the place. Complete confusion.”) I’m very grateful to have been invited to such a wonderful and well-organized event.    

[Posted on behalf of Claire Hill by JT]

New in Print

Peter A. Alces, A Theory of Contract Law: Emirical Insights and Moral Psychology (Oxford 2011)

Uri Benoliel, The Behavioral Law and Economics of Franchise Tying Contracts,  41 Rutgers L.J. 527(2010).

Victor Goldberg, Traynor (Drennan) Versus Hand (Baird):Much Ado About (Almost) Nothing, J. Legal Analysis Advance Access (Oct. 7, 2011)

Michael H. Hoffheimer, Conflicting Rules of Interpretation and Construction in Multi-jurisdictional Disputes, 63 Rutgers L. Rev. 599 (2011)

Jan M. Smits, Rethinking the Usefulness of Mandatory Rights of Withdrawal in Consumer Contract Law: The Right to Change Your Mind? 29 Penn St. Int'l L. Rev. 671 (2011)

Huma T. Yasin, Playing Catch-up: Proposing the Creation of Status-based Regulations to Bring Private Military Contractor Forms within the Purview of International and Domestic Law. 25 Emory Int'l L. Rev. 411- (2011)

Noah D.Zatz,  Beyond Misclassification: Tackling the Independent Contractor Problem without Redefining Employment. 26 A.B.A. J. Lab. & Emp. L. 279 (2011).

[JT]

Weekly Top Tens from the Social Science Research Network

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 
August 25, 2011 to October 24, 2011

Rank	Downloads	Paper Title
1	305	The Reasonable Person  Alan D. Miller, Ronen Perry,  University of Haifa - Faculty of Law, University of Haifa - Faculty of Law
2	276	Managing Disputes Through Contract: Evidence from M&A  John C. Coates, IV,  Harvard Law School
3	169	The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences  Jessica Tillipman,  The George Washington University Law School
4	161	The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion and the Future of American Arbitration  Thomas Stipanowich,  Pepperdine University School of Law
5	114	Analyzing Law - A Framework for Understanding Law of All Sorts and for All Purposes (Cases, Exercises and Commentary)  Neil K. Komesar,  University of Wisconsin - Madison
6	109	Lochner and Constitutional Continuity  David Bernstein,  George Mason University - School of Law, Faculty
7	96	To Perform or Pay Damages  Gregory Klass,  Georgetown University - Law Center
8	85	The Essence of Economics - Behavior, Choice and Comparison  Neil K. Komesar,  University of Wisconsin - Madison
9	80	Online User Account Termination and 47 U.S.C. §230(c)(2)  Eric Goldman,  Santa Clara University - School of Law
10	77	The General Principles of Civil Law: Their Nature, Roles and Legitimacy  Martijn W. Hesselink,  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  
August 25, 2011 to October 24, 2011

Rank	Downloads	Paper Title
1	305	The Reasonable Person  Alan D. Miller, Ronen Perry,  University of Haifa - Faculty of Law, University of Haifa - Faculty of Law
2	275	Managing Disputes Through Contract: Evidence from M&A  John C. Coates, IV,  Harvard Law School
3	161	The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion and the Future of American Arbitration  Thomas Stipanowich,  Pepperdine University School of Law
4	96	To Perform or Pay Damages  Gregory Klass,  Georgetown University - Law Center
5	87	A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye  Sarah Lynnda Swan,  Columbia University - Law School
6	76	The General Principles of Civil Law: Their Nature, Roles and Legitimacy  Martijn W. Hesselink,  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
7	70	Arbitral Power and the Limits of Contract: The New Trilogy  Alan Scott Rau,  University of Texas at Austin School of Law
8	64	Is Private Law Meaningless?  Steve Hedley,  University College Cork (UCC)
9	63	The Law of Contract: An Introduction  Jan M. Smits,  Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
10	62	The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design  G. Mitu Gulati, Robert E. Scott,  Duke University - School of Law, Columbia University - Law School

[JT]

Default Settings, Notice and Contract Design

There have been several interesting articles about company policies in the news in the past couple of weeks. First there was this article which discusses how, as annoyed as customers might be by fees, they stay with their banks. They stay, not out of loyalty, but inertia. This article explains how certain magazine subscriptions are set to automatically renew upon notice. The problem is that the notice is not very noticeable. The next article explains how Google has captured the market for search because it is the default search engine for many users – and because resetting to another default is too complicated. Finally, there’s news here and here that wireless companies have agreed to notify customers when their data usage approaches or exceeds their monthly allotment – and they start to incur excess usage costs.

What all these articles illustrate is the importance of effective notice and default settings -- and how their design is the result of conscious business decisions. Companies get consumers to agree to bank fees, data overage fees and choice of search engine by setting the default to an option that favors the company. Ostensibly customers have a choice. They don’t have to agree to the default. They can affirmatively opt out, but they don’t. The contract (because there is bound to be one) is itself a default setting. The company substitutes notice for an affirmative indication of assent. It has made a choice not to require the customer’s actual assent. Bank fees are slightly different, but even there, the default enables the customer to use the card and assumes they agree to the fees; if they don’t agree, they have to “opt out” by changing their existing habit of using the card.

The design of a contract, including notices, and the choice of default settings really matters. Woody Hartzog has discussed contract design in the context of privacy policies . . Hartzog argues that a company’s privacy settings should constitute part of the agreement with the user. Ryan Calo has done interesting work about “visceral notice” that shows how notice can be rendered in a more effective manner. I’ve argued here and here that we should change the default setting on contractual assent in the online context to presume non-consent, thereby making actual assent a “cost” and making the contracting process part of the product or service offered by the company. [Of course, Arthur Leff made that argument way before I did in a famous essay, Contract as Thing, 19 AM. U. L. REV. 131 (1970).]

Calo’s work on visceral notice will be especially relevant in light of the wireless industry’s agreement to provide customers with text messages to alert them when they approach data usage limitations. Will these companies bombard consumers with so many marketing text messages (for example, to upgrade to another plan) that the usage warnings go ignored? Will users receive more SPAM by marketers, who take advantage of the attention that users will be paying to their texts – with the consequence that users no longer pay attention to their texts?

A broader question -- When there is so much that companies can do to affect the contracting process, especially online, shouldn’t we require them to do it? If a company can provide visceral or visual notice (rather than simply textual notice), why shouldn’t they be required to? If a company can easily enable the customer to indicate assent (by forcing a click, for example) to particular terms, why should we permit “blanket assent” online?

[Nancy Kim]

Round-up From the Blawgs

Above the Law reports on law-related things, including hottie lawyers, up for sale on e-Bay.

Gordon Smith reports on The Conglomerate about the recent contracts conference honoring the scholarship of Stewart Macauley.  By the way, if anyone out there attended and wants to file a report, please feel free to send us a guest post.  

Our partners in the Law Professor Blogs Network over at the Workplace Prof Blog have a couple of posts that are revelant to contracts.  First, Richard Bales reports on benefits cuts at Wal-Mart here.  Professor Bales also writes about a new Catalyst Report that finds that women are not to blame for the pay inequality that they suffer.  

Finally, over at Feminist Law Professors, Bridget Crawford often asks "Where are the Women?" when women are unrepresented or underrepresented in publications or conferences.  Well, the answer to "Where are the women writing on contracts law?" is not on the Feminist Law Professors blog.  It's here at the ContractsProf Blog.  

[JT]