ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, November 6, 2012

Weekly Top Tens from the Social Science Research Network

SSRNRECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 

September 6, 2012 to November 5, 2012

RankDownloadsPaper Title
1 239 Queues in Law 
Ronen PerryTal Zarsky
University of Haifa - Faculty of Law, University of Haifa - Faculty of Law
2 147 Seduction by Contract: Law, Economics and Psychology in Consumer Markets - Introduction 
Oren Bar-Gill
New York University (NYU) - School of Law
3 143 Rethinking the Nature of the Firm: The Corporation as a Governance Object 
Peer Zumbansen
York University - Osgoode Hall Law School
4 134 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law, 
Date posted to database: September 25, 2012 
Last Revised: September 30, 2012
5 130 Another Step Towards Harmonization in EU Contract Law: The Common European Sales Law 
Maud PiersCedric Vanleenhove
Ghent University, Ghent University
6 121 When Nudges Fail: Slippery Defaults 
Lauren E. Willis
Loyola Law School Los Angeles
7 94 Intellectual Property and Agriculture: The Case on Soybeans and Monsanto 
Marcelo Dias VarellaMarcelo Dias Varella
University Center of Brasilia, University of California, Berkeley - School of Law
8 79 Moving Beyond Naïve Foreclosure Analysis 
Joshua D. Wright
George Mason University - School of Law, Faculty
9 76 Consequences of An Ineffective Agreement to Use the Common European Sales Law 
Caroline HarveyMichael Schillig
University of Oxford, University of London - King's College London
10 67 Mass Procedures as a Form of 'Regulatory Arbitration' – Abaclat v. Argentine Republic and the International Investment Regime 
S.I. Strong
University of Missouri School of Law

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  

September 6, 2012 to November 5, 2012

RankDownloadsPaper Title
1 143 Rethinking the Nature of the Firm: The Corporation as a Governance Object 
Peer Zumbansen
York University - Osgoode Hall Law School
2 134 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law
3 130 Another Step Towards Harmonization in EU Contract Law: The Common European Sales Law 
Maud PiersCedric Vanleenhove
Ghent University, Ghent University
4 121 When Nudges Fail: Slippery Defaults 
Lauren E. Willis
Loyola Law School Los Angeles
5 110 Harmonization of Private International Law in Europe and Application of Foreign Law: The Madrid Principles of 2010 
Carlos Esplugues
University of Valencia - Faculty of Law
6 79 Moving Beyond Naïve Foreclosure Analysis 
Joshua D. Wright
George Mason University - School of Law, Faculty
7 66 Lexis Nexus Complexus: Comparative Contract Law and International Accounting Collide in the IASB-FASB Revenue Recognition Exposure Draft 
Kurt S. SchulzkeGerlinde Berger-WalliserPier Luigi Marchini
Kennesaw State University, University of Connecticut, University of Parma - Department of Economics
8 63 Lewellyn Slept Here: A Short History of Sticky Contracts and Feudalism 
Cheryl B. PrestonEli McCann
Brigham Young University - J. Reuben Clark Law School, Unaffiliated Authors - affiliation not provided to SSRN
9 60 The Subprime Mortgage Crisis and Economic Checks and Balances 
Chunlin Leonhard
Loyola University New Orleans College of Law
10 56 Misrepresentation: The Restatement's Second Mistake 
Stephanie R. Hoffer
Ohio State University (OSU) - Michael E. Moritz College of Law

 

[JT]

November 6, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 5, 2012

Contracts Limerick of the Week: Special Guest Poet, Chris Osborn


OsbornThis week we have a guest blogger, Chris Osborn (pictured), a relative newcomer to the world of contracts profs, but already setting cases to Limericks.  Below is Chris's summary of Hooters of America v. Phillips, 173 F.3d 933 (4th Cir. 1999).

In Phillips, a waitress employed at a Hooters restaurant in Myrtle Beach, SC reported to her manager that she had been sexually harassed by the local franchise owner’s brother.  Ms. Phillips claimed that the manager responded that she should “let it go,” whereupon she resigned and retained counsel.  When her attorney contacted the franchisor, Hooters of America, Inc. (Hooters), and gave notice of the claim, Hooters invoked an arbitration clause in an employment agreement that the claimant had signed several years after she was hired.  Hooters then filed a declaratory judgment action in federal district court and a motion to enjoin the plaintiff from filing suit (which was treated as a motion to compel arbitration).  

In opposing the motion, Ms. Phillips contended that the arbitration clause was not entered knowingly and voluntarily, was unconscionable, and was not supported by consideration.   The U.S. District Court for the District of South Carolina found the arbitration clause unenforceable, holding inter alia that since the clause was not contained in her initial employment contract, it had to be supported by some additional consideration.  The court then examined the mutual promise to arbitrate unenforceable.  In particular, the court found that the arbitration Rules & Procedures bound the employee but gave the employer alone the right to terminate the agreement to arbitrate at any time on 30 days’ notice.  Moreover, the Rules and Procedures also held the employer to significantly less onerous pleading, discovery, and trial procedures.  Accordingly, the court ruled that Hooters’ promise to arbitrate was illusory (which makes it reminiscent of another case recently reduced to a Limerick, Vassilkovska), and thus it could not serve as consideration for the employee’s promise to submit her claims to arbitration.

The Fourth Circuit affirmed.

Here are the (three!) Limericks:

When Miss Phillips, crying conduct discriminatory
Sought redress for her boss’ tomfoolery
            Her employer said, “Wait,
            You made a promise to arbitrate!”
But the court ruled the whole thing illusory.

“When harassed on the job (wouldn’t ya know?)
A young Hooter’s girl could not “let it go….”
            When the restaurant stalled,
            The court was appalled
“Was there any consideration here?  No. “

When a harassed young waitress brought suit
Her employer did not give a hoot
            It tried to stay litigation
            And demand arbitration
But the court ruled the sham clause was moot.

[JT]

November 5, 2012 in Contract Profs, Limericks, Teaching | Permalink | Comments (0) | TrackBack (0)

Friday, November 2, 2012

A Claim of Impracticability

Just last week I proclaimed to our inimitable editor D.A. Jeremy Telman that I was renewing my vows to the blog.  Since that promise, Hurricane Sandy happened and I am without power and water.  So, I have to claim impracticability.  I will start posting again shortly.

[Meredith R. Miller]

November 2, 2012 in About this Blog, Miscellaneous | Permalink | TrackBack (0)