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Valparaiso Univ. Law School

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Friday, March 2, 2012

Live Blogging from the Spring Contracts Conference: Contracts in Action I

Our colleauge here at the blog, Meredith Miller moderated the first of three panels united under the broad rubric of Contracts in Action.

ZalesneProfessor Debra Zalesne began her presentation by noting that "non-traditional families" have become the norm.  Despite that, and despite the advances in recognition of same-sex marriage, family law remains relatively heteronormative and often assumes traditional family structures.  Her presentation focused on cohabitation agreements.  Some courts treat such agreements as commercial contracts, ignoring the relationship between the parties and attendant family law issues. Other courts focus on the non-marital relationship and refuse to enforce the agreement, either because they are contrary to public policy or because they lack consideration.  So cohabitation agreements that refer to the love and companionship at the heart of the relationship is likely to be struck down, while those couched in purely commercial terms (housekeeping, nursing, etc.) are more likely to be enforced.  As a result, the law treats non-married couples differently from married couples, since commercial agreements between married partners would ordinarily be set aside as lacking consideration.

Courts similarly disagree about the status of co-parenting contracts, but most commonly, courts ignore such agreements in favor of the best-interests-of-the-child standard.  Professor Zalesne would like to see courts doing the work and trying to give effect to contractual agreements while also looking out for the best interests of the child.

Zacks-webProfessor Erich Zacks presented a paper on cognitive bases of judges and juries in the context of contract preparatio nand execution.  There is large literature on how cognitive biases affect our contracting behavior, and we know from that literature that an actor (say an advertising executive) aware of our cognitive biases can manipulate us to get us to behave in certain ways, e.g. to purchase products that we would not purchase if we were acting raionally.  But Professor Zacks more or less flips this literature around to see if parties who are themselves engaged in a contracting process can do so with an eye to the cognitive biases of judges and juries in order to improve the likelihood that a court will enforce an agreement in the way they want, in part by getting the judge or jury to feel a certain way about the parties.  

So, for example, let's say that I signed a car rental agreement with unfavorable terms because I had just completed a five-hour flight, had no opportunity to negotiate the terms, and had a long line of people waiting behind me.  What the court sees is that I signed in four different places on a form with bold face terms just above or next to my signature.  The very form of the contract sends signals that situate the contract in a good posture for enforcement, rendering my tale of traveling woe relatively unimportant.

Similarly, recitals are a good locus for framing language that can signal to the court the nature of the agreement and the positions of the parties.  Disclosures can be in plain English so that a judge or a jury looking at the disclosure will think, "Hmmm, I understand this and I would not have agreed to it."  All of this suggests that courts are influenced to find consent when there was no substantive consent in part because contracts are designed to exploit cognitive biases so as to promote their enforcement.  

Aaron Goldstein proposes that courts, when considering a facially unambiguous contract, should permit extrinsic evidence only of public and conventional meaning of terms, like trade usage, but they should exclude extrinsic evidence of the parties' subjective intent, such a course of performance and course of dealing.  Mr. Goldstein points out the dangers of a strict imposition of the plain meaning rule in such contexts because it permits parties with more bargaining power (especially in the context of form contracts) to impose one-sided terms in their favor.  But letting in all sorts of extrinsic evidence also creates dangers given the unreliability of people's membories of the facts and circumstances surrounding the formation of the contract.

Goldstein0a
Mr. Goldstein advocates a middle path, what he calls the public meaning rule.  When interpreting facially unambiguous contractual provisions, courts should permit the introduction of extrinsic evidence of the public and conventional meaning of the contract terms.  They should not permit introduction of extrinsic evidence that illuminates nothing more than subjective intent.  Such evidence is relevant in the equitable context, where the court is less interested in the meaning of the agreement than in enforcing the parties' agreement in a way that accords with fundamental fairness.  Recognizing that consumers have no opportunity to bargain for terms when they agree to form contracts, Mr. Goldstein acknowledges that his public meaning rule approach would be inappropriate in the context of consumer contracts of adhesion.  There again, courts must be more attuned to the sorts of extrinsic evidence of subject understandings relevant to determining the equity and fairness of such agreements.  

[JT]

March 2, 2012 in Conferences, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Lifetime Achievement Panel: Mel Eisenberg

EisenbergKeith Rowley has put together a panel consisting of Shawn Bayern, Omri Ben-Shahar, and Mark Gergen to honor Melvin Eisenberg, who is the fourth honoree for Lifetime Achievement at the Spring Contracts Conference.

Professor Bayern stressed Professor Eisenberg's fundamental refusal to reduce contracts law to any one unifying principle.  Law must be justified by relevant social propositions: including morality, policy and experiential propositions. Not meaning to criticize theorists who view contracts as promise, or as plan, etc., Professor Beyern regards such views as undoubtedly useful but incomplete when considered from the perspective of Professor Eisenberg's appreciation of contracts as contracts.  In addition, Professor Bayern highlighted Professor Eisenberg's contributions to and critiques of the field of law and economics.  Professor Bayern notes that Professor Eisenberg's work is often not categorized under the rubric as law and economics because although Eisenberg utilizes economic theory, he reaches conclusions that are not usually associated with law and economics.  But Professor Bayern challenges more traditional L&E types to attempt to refute any of Professor Eisenberg's arguments, which he (Professor Bayern) summarized as showing that, while economic models might make sense in the abstract world of rational actors, they do not help us understand the real world of contractual relations.

Omri Ben Shahar again stressed Mel Eisenberg's contributions in the realm of law and economics, recognizing Eisenberg as law and economics pioneer.  Eisenberg's approach to L&E enables economic analysis to improve in resolution.  Because Eisenberg focuses not on generating new theoretical models but on applying them in concrete situations, he can test and refine economic models and help them achieve greater clarity and specificity.   Professor Ben Shahar elaborated on Professor Eisenberg's substantive contributions in refining our understandings of disgorgement, the bargain theory of consideration and procedural unconscionability doctrine.

Mark Gergen celebrated Mel Eisenberg as the best exemplar of his generation of the great pragmatic tradition in contracts scholarship.  Professor Gergen illustrated this by comparing and contrasting Professor Eisenberg's work with that of last year's honoree, Stewart Macauley.  After noting the extent of overlap between the two scholars, Professor Gergen identified the key distinction that Mel Eisenberg more clearly sees the limitations of contracts doctrine.  Contracts may be about relationships, but it cannot repair such relationships when they are broken.  There may be damages, but often the parties just must go their separate ways.  Professor Gergen also contrasted Mel Eisenberg's work with that of another giant of Mel's generation of conracts scholars, Professor Robert Scott, especially in their estimation of the value of litigation and their faith in courts.

Ultimately, all agreed that Mel Eisenberg's scholarship defies easy categorization but is always characterized by lucidity, clarity and persuasiveness.  The pleasure of reading Mel Eisenberg's scholarship is that you always learn by reading him and emerge either persuaded or knowing, because of the clarity of Eisenberg's writing and his transparency in identifying his assumptions, exactly why you disagree.

As expected, Professor Eisenberg was gracious in his remarks, noting that he is currently at work on a book on contracts, and indicating that there is still some "open texture" in his work that he can work on with the help of the comments he received on his work.  

[JT]

March 2, 2012 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Live from the Springs Contracts Conference I: Don't Mess with Val Ricks

V-ricksWe are under way in San Diego.  Eniola has done an amazing job putting it all together; she has welcomed us, and we are now in the first panel.

I hope to be able to say something more about the excellent papers by Moshe Gelbard and Charles Calleros.  But Val Ricks clearly stole the show with his impassioned defense of the doctrine of consideration.  Learned contracts scholars from around the globe threw him questions, and his answer never changed.

Doctrine of assent?

Covered by the doctrine of consideration.

Affirmative defenses?

Best explained by the doctrine of consideration.

Will Romeny win the nomination?

Only if he properly appreciates the doctrine of consideration!

What is the meaning of life?

Since at least the 16th century, life has been nothing more than an elaboration of the doctrine of consideration.

[JT]

March 2, 2012 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Greetings from New Zealand!

I am spending a semester in beautiful Wellington, New Zealand where I will be teaching a course in advanced contracts at Victoria University. During my time here, I plan to occasionally post observations about the contracting culture and make sweeping (i.e. lacking in empirical evidence, see earlier post about Zev Eigen's article) generalizations about what that might mean.

One thing that I have noticed is that I haven't had to sign any form contracts since I arrived. I am thinking hard about this, but I honestly can't think of any except maybe at hotels and even then, those forms don't seem to contain the frightening litany of all the things the hotel won't be responsible for that you too often find in US standard forms (you know, "You agree not to indemnify and hold us harmless from any loss of limb, maiming, mayhem, other horrific catastrophic incident arising from your participation in this activity even if it was entirely our fault....") True, I haven't gone bungee jumping or white water rafting (yet), but I did dive into the freezing cold open ocean to swim with dolphins with my two children. (The fun ended when a family of orca appeared). Guess what? The dolphin company didn't ask me to sign a form. Could this have something to do with the fact that New Zealand is a much less litigious country than the U.S.? Is it less litigious because it's smaller, everyone feels like they are "in it together"? Or is it something else? Fewer lawyers? (I don't know if there are fewer lawyers per capita actually but I warned you that my posts would be highly unscientific).

While there seem to be fewer form contracts thrust in people's faces, there are a great many more notices. I rather like these notices as they are eye-catching, amusing and sometimes mysterious. I particularly like the road signs that don't pussy foot around: "TEXT AND DRIVE, SOMEONE DIES," "SLOW DOWN, STAY IN MANTROL". Notices, of course, are not contracts but they can serve some of the same functions. I've blogged about this in the past, and will blog more about this in the future as it is something I have been working on for a while. For now, I'll leave you with this image.

Wellington NZ (640x480) (640x480)

[Nancy Kim]

March 2, 2012 in Travel | Permalink | Comments (0) | TrackBack (0)

Thursday, March 1, 2012

But where's the consideration, Chris?

I'm apparently a bit behind in my celebrity contracts gossip otherwise I would blogged about this earlier - apparently Chris Brown (yes, he of the restraining order fame) attended Rihanna's 24th birthday party. But before he stepped foot inside the party house (aka the Hearst Mansion), he tried to make the guests who were already inside sign a confidentiality agreement, presumably to keep mum about his attendance. Not everyone signed, and Brown's rep claims that only workers and those who snapped a picture of Brown were asked to sign the NDA. The burning question for contracts profs everywhere is, Where's the consideration? Presumably the guests, the workers and the picture-snappers were already at the party and had already snapped his picture. Presumably none of them knew that he would appear and probably couldn't care less that he was there - it wasn't like they were trying to induce him to attend the party and it's not like their invitation was conditional upon their signing the agreement. As for the picture snappers - hey, he never gave them permission and unless there's a privacy claim (which I doubt), what's to stop them? I doubt this type of agreement would be enforceable. Who says consideration is a non-issue in contract law?

But there's an even bigger, more burning question that contracts profs want to know WHY THE HELL WAS CHRIS BROWN AT RIHANNA'S PARTY IN THE FIRST PLACE GIVEN THEIR HISTORY OF VIOLENT ABUSE??!!

[Nancy Kim]

March 1, 2012 in Celebrity Contracts, Commentary | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 29, 2012

Best Contracts Scholarship of 2011: And the Winner Is . . . .

Ben-Shahar, OmriOmri Ben-Shahar, Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School.  The winning article, Fixing Unfair Contracts, was published in 63 Stan. L. Rev. 869 (2011).

 Here is the abstract to Professor Ben-Shahar's article:

Various doctrines of contract and consumer protection law allow courts to strike down unfair contract terms. A large literature has explored the question which terms should be viewed as unfair, but a related question has never been studied systematically—what provision should replace the vacated unfair term? How should a distributively unfair contract be fixed? This Article demonstrates that the law uses three competing criteria for a replacement provision: (1) the most reasonable term; (2) a punitive term, strongly unfavorable to the overreaching party; and (3) the minimally tolerable term, which preserves the original term as much as is tolerable. The Article explores in depth the third criterion—the minimally tolerable term—under which the smallest intervention that is necessary is applied. This criterion, which has received no prior scholarly notice, is surprisingly prevalent in legal doctrine. The Article surveys its ubiquity and explores its conceptual and normative underpinnings.

The competition was fierce, but of the five finalists, Professor Ben-Shahar's article was the only one that was in everyone's top two. Thanks to all who participated in the process for selecting our first annual top contracts law review article.  Thanks especially to the blog editors, Eniola Akindemowo, Heidi Anderson, Nancy Kim, and Meredith Miller for reading each of the five finalists and helping to choose the winner.

Congratulations, Professor Ben-Shahar, and thank you for your singular contributions to contracts scholarship.  We look forward to seeing you at the Spring Contracts Conference this weekend.

[JT]

February 29, 2012 in About this Blog, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 28, 2012

Best Contracts Scholarship of 2011: Honorable Mentions, Part IV

Two weeks ago we announced the top vote getters in our search for the best contracts scholarship of 2011.  We, the editors of the blog then voted for our favorites among those five, which are:

Omri Ben-Shahar, Fixing Unfair Contracts, 63 Stan. L. Rev. 869 (2011)

Robert A. Caplen, Turning Esch to Dust? The State of Supplementation of the Administrative Record in Bid Protests before the Court of Federal Claims, 12 Whittier L. Rev. 197 (2011)

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

Juliet P.Kostritsky, Interpretive Risk and Contract Interpretation: A Suggested Approach for Maximizing Value2 Elon L. Rev. 109 (2011)

Kemit A. Mawakana, In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic, 11 U. Md. L.J. Race, Religion, Gender & Class 39 (2011)

The voting confirmed the quality of the competition, as each of the finalists had its supporters, with three different articles receiving at least one vote for #1 among the five of us who voted.

In order to draw out the suspense as long as possible, we will count down to #1 Casey Kasem style, except that our honorable mentions are in no particular order. 

Kostritsky_julietHonorable mention #4 goes to Juliet Kostritsky, Everett D. & Eugenia S. McCurdy Professor of Contract Law at the Case Western Reserve University School of Law.

Jody S. Kraus and Robert E. Scott, in Contract Design and the Structure of Contractual Intent (84 N.Y.U. L. Rev. 1023  (2009)), have urged courts to enforce the contractual terms that the parites have chosen, unless they have given the court an invitation to exercise equitable powers through the use of terms such as "best efforts."  According to Professor Kostritsky, the result is that Kraus and Scott divide the world of contracts in to those capable of strict enforcement and those with open terms.  Professor Kostritsky takes issue with this view and urges courts to use a variety of tools of interpretation, whether or not the contractual terms are specific, including: "ordinary meaning, trade usage, the entire contract, the purpose of the contract, the surrounding circumstances, and reasonableness."  Courts should aim to "maximize gains from trade and minimize deadweight losses and transaction costs."

Professor Kostritsky's articles reviews numerous situations in which courts have made interpretive interventions despite the lack of open-ended terms in the contracts or delegations of interpretive authority to the courts.  Professor Kostritsky favors such interventions whenever the court determines that the costs of intervention are less than the net benefits and efficiency gains that will result from intervention.  In determining whether or not to intervene, courts should consider the following factors: (1) whether the intervention is likely to curb opportunistic behavior; (2) the ease and cost of the court’s intervening; (3) whether the court can intervene by constructing a liability rule or deciding a legal question based on considerations of projected effects on parties’ behavior given average assumptions about human behavior; (4) whether there are impediments to express contracting; (5) whether informal sanctioning mechanisms exist; and (6) the effect of intervention on the prospect of uncontrolled discretion in a performance obligation.

[JT]

February 28, 2012 in About this Blog, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

Stephen_Colbert_at_RallyStephen Colbert (pictured) often makes a big deal about the "Colbert Bump" that candidates get from appearing on his show, but that's nothing compared to the Berggren Bump that contracts profs get when ContractsProf Blog Intern 2.0 Justin Berggren posts about their work.  Take as a case in point Zev Eigen, whose work Empirical Studies of Contract was enjoying the respectful obscurity that all too often greets works of serious scholarship.   But now that Justin has given his endorsement of Professor Eigen's project, he's sprung to the top of the Law & Society: Contracts Top Ten!

Folks on the Contracts & Commercial Law Top Ten, you'd better watch out if you are north of #5.  And the rest of you, perhaps it's time you had your people contact Justin's people.  But don't come on too strong.  Start by taking him to lunch.

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

December 30, 2011 to February 28, 2012


Rank Downloads Paper Title
1 422 The Scope and Implications of Stern v. Marshall, 131 S. Ct. (2011)
Michael St. Patrick Baxter, Elizabeth Gibson, Randal C. Picker, R. Patrick Vance,
Covington & Burling LLP, University of North Carolina (UNC) at Chapel Hill - School of Law, University of Chicago - Law School, Jones Walker - New Orleans Office
2 359 Choice of Law in the American Courts in 2011: Twenty-Fifth Annual Survey
Symeon C. Symeonides,
Willamette University - College of Law
3 160 Bankruptcy, Backwards: The Problem of Quasi-Sovereign Debt
Anna Gelpern,
American University Washington College of Law
4 134 The Proposal for a Regulation on a Common European Sales Law: Shortcomings of the Most Recent Textual Layer of European Contract Law
Horst Eidenmueller, Nils Jansen, Eva-Maria Kieninger, Gerhard Wagner, Reinhard Zimmermann,
University of Munich, University of Muenster, University of Wuerzburg, University of Bonn, Max Planck Institute for Comparative and International Private Law,
5 133 Empirical Studies of Contract
Zev J. Eigen,
Northwestern University School of Law
6 111 Contract Theory: Is There a Path Through the Theoretical Jungle?
Martin Hogg,
University of Edinburgh - School of Law
7 104 Boomer-Ang Eldercare: Deductible Claim?
Wendy C. Gerzog,
University of Baltimore - School of Law,
Date posted to database: February 6, 2012
Last Revised: February 6, 2012
8 96 Judging Lite: How Arbitrators Use and Create Precedent
Mark C. Weidemaier,
University of North Carolina (UNC) at Chapel Hill - School of Law,
9 87 The WTO’s Revised Government Procurement Agreement - An Important Milestone Toward Greater Market Access and Transparency in Global Public Procurement Markets
Robert D. Anderson, Steven L. Schooner, Collin D. Swan,
World Trade Organization, George Washington University - Law School, George Washington University - Law School
10 78 A Radical View of Legal Pluralism
Jan M. Smits,
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI),

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

December 30, 2011 to February 28, 2012

Rank Downloads Paper Title
1 132 Empirical Studies of Contract
Zev J. Eigen,
Northwestern University School of Law
2 111 Contract Theory: Is There a Path Through the Theoretical Jungle?
Martin Hogg,
University of Edinburgh - School of Law
3 96 Judging Lite: How Arbitrators Use and Create Precedent
Mark C. Weidemaier,
University of North Carolina (UNC) at Chapel Hill - School of Law
4 77 Aggregation and Law
Ariel Porat, Eric A. Posner,
Tel Aviv University, University of Chicago - Law School,
Date posted to database: December 20, 2011
Last Revised: February 23, 2012
5 65 A Dual Approach to Contract Remedies
Michael D. Knobler,
Yale University - Law School,
Date posted to database: December 9, 2011
Last Revised: February 10, 2012
6 60 Beyond Ex Post Expediency - An Ex Ante View of Rescission and Restitution
Richard R. W. Brooks, Alexander Stremitzer,
Yale University - Law School, UCLA School of Law
7 54 Contract Law's Inefficiency
David M. Driesen,
Syracuse University - College of Law
8 53 Private Law and Moral Practices Part 1: Contract
Prince Saprai, George Letsas,
University College London - Faculty of Laws , University College London - Faculty of Laws
9 50 Non-State Law in the (Proposed) Hague Principles on Choice of Law in International Contracts
Genevieve Saumier, Lauro Gama,
McGill University - Faculty of Law, PUC-Rio
10 48 Contracts Meet Henry Ford
Barak D. Richman,
Duke University - School of Law

[JT]

February 28, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Best Contracts Scholarship of 2011: Honorable Mentions, Part III

Two weeks ago we announced the top vote getters in our search for the best contracts scholarship of 2011.  We, the editors of the blog then voted for our favorites among those five, which are:

Omri Ben-Shahar, Fixing Unfair Contracts, 63 Stan. L. Rev. 869 (2011)

Robert A. Caplen, Turning Esch to Dust? The State of Supplementation of the Administrative Record in Bid Protests before the Court of Federal Claims, 12 Whittier L. Rev. 197 (2011)

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

Juliet P.Kostritsky, Interpretive Risk and Contract Interpretation: A Suggested Approach for Maximizing Value2 Elon L. Rev. 109 (2011)

Kemit A. Mawakana, In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic, 11 U. Md. L.J. Race, Religion, Gender & Class 39 (2011)

The voting confirmed the quality of the competition, as each of the finalists had its supporters, with three different articles receiving at least one vote for #1 among the five of us who voted.

In order to draw out the suspense as long as possible, we will count down to #1 Casey Kasem style, except that our honorable mentions are in no particular order.  

GoldbergHonorable mention #3 goes to Victor Goldberg, Jerome L. Greene Professor of Transactional Law at Columbia Law School.

Professor Goldberg provides the following useful summary of his article:

Most Contracts casebooks feature either Baird v. Gimbel or Drennan v. Star Paving to illustrate the limits on revocability of an offer. In this article an analysis of the case law yields three major conclusions. First, as is generally known, in the contractor–subcon- tractor cases Drennan has prevailed. However, both it and its spawn, Restatement 2d 87(2), have had almost no impact outside that narrow area. Moreover, almost all the cases involve public construction projects—private projects account for only about ten percent of the cases. This suggests that private parties have managed to resolve the problem contractually. Public contract law is encrusted with regulations, which courts and contracts scholars have ignored. The result is a peculiar phenomenon—a supposedly general contract doctrine that applies only in a specific context, but which ignores the features of that context.

 [JT]

February 28, 2012 in About this Blog, Government Contracting, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 27, 2012

Recent Scholarship: Zev Eigen on Empirical Studies of Contract

In Empirical Studies of Contract,  Zev Eigen, examines scholarly works published in the last seven years from the fields of, among others, law, management, sociology, psychology, and law and economics to report the trend of empirical analysis of the relationship of contracting party behavior to contract terms.  Eigen aims to determine whether scholars are asking the right questions and whether their methods are producing reliable empirical data. 

EigenProfessor Eigen briefly reviews the history and evolution of contracts doctrine and the trend noted as early as 1963 (by Stewart Macaulay) of a growing “discord between how contract is experience and how the law assumes contract is experienced.”  He next presents the methods used to classify the papers reviewed.  Professor Eigen classified 113 empirical papers according to the eight questions they sought to answer.  These eight questions are then sorted in relation to two propositional poles: 1) Contracts are a product of how drafters and signers interpret the law; and 2) Contracts are a product of factors exogenous to the law. 

The paper’s findings include the following: 1) researchers are increasingly persuaded that actors do not behave rationally or in ways that optimize efficiency; 2) moral constraints are important in understanding how individuals interpret contractual obligations; and 3) there has been a notable rise in scholarly exploration of form contracting.

Professor Eigen recommends that scholars improve the substance and methods of collecting empirical data.  He notes in the scholarship a disproportionate focus on certain questions and corresponding neglect of others.  He makes a number of suggestions for empirical projects that scholars might undertake.  As to method, Professor advocates more qualitative analysis as well as the observation that forty percent of the papers evaluated used experimental methodologies, a relatively high percentage. 

Based on his review of recent empirical works on contracts, Professor Eigen concludes that they review “the fungibility of contract law in . . . post-Durkheimian and post-Weberian contemporary life, wherein the role of law is reduced, and perhaps more importantly, compartmentalized.”  In our world, contract law parallels or shadows “extra-legal sources of power, authority, status and norms of exchange” rather than moderating and mediating social and economic exchange on its own.

[JT and Justin Berggren]

February 27, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Best Contracts Scholarship of 2011: Honorable Mentions, Part II

Two weeks ago we announced the top vote getters in our search for the best contracts scholarship of 2011.  We, the editors of the blog then voted for our favorites among those five, which are:

Omri Ben-Shahar, Fixing Unfair Contracts, 63 Stan. L. Rev. 869 (2011)

Robert A. Caplen, Turning Esch to Dust? The State of Supplementation of the Administrative Record in Bid Protests before the Court of Federal Claims, 12 Whittier L. Rev. 197 (2011)

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

Juliet P.Kostritsky, Interpretive Risk and Contract Interpretation: A Suggested Approach for Maximizing Value2 Elon L. Rev. 109 (2011)

Kemit A. Mawakana, In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic, 11 U. Md. L.J. Race, Religion, Gender & Class 39 (2011)

The voting confirmed the quality of the competition, as each of the finalists had its supporters, with three different articles receiving at least one vote for #1 among the five of us who voted.

In order to draw out the suspense as long as possible, we will count down to #1 Casey Kasem style, except that our honorable mentions are in no particular order.  

Kemit_mawakanaHonrable mention #2 goes to Kemit A. Mawakana, In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic, 11 U. Md. L.J. Race, Religion, Gender & Class 39 (2011)

Kemit Mawakana is Associate Professor of Law at the University of the District of Columbia's David A Clarke School of Law, where he teaches contracts and the Community Development Law Clnic. 

Professor Mawakana's article uses anthropological work to highlight the danger that injustices will arise as a result of the Federal Circuit's embrace of the plain meaning rule (PMR) in Coast Federal Bank, FSB v. United States, 323 F.3d 1035 (Fed. Cir. 2003) (en banc).  Dr. Ani developed the concept of the rhetorical ethic (RE) which she associates with Euro-American culture.  The RE assists Euro-Americans in the maintenance of power, enabling them to talk of lofty principles such as peace and goodwill while in fact engaging in war and other destructive practices.  According to Dr. Ari, "Nowhere other than in European culture do words mean so little as indices of belief."

After an introductory section providing examples of the RE at work in U.S. society ("All men are created equal . . ."), Professor Mawakana takes us through the history of the PMR.  Applying the PRM in the contractual context, courts give words their plain, ordinary, and literal meaning, even if that meaning differs from the parties intention and even if it yields to harsh or inequitable results.  The PMR fell into disfavor in the 20th century, havnig been rejected by the Restatement (Second) of Contract and by the Uniform Commercial Code, but some jurisdictions still follow the PMR, and the Federal Circuit embraced it in its 2003 decision in Coast Federal

Professor Mawakana next reviews the facts and history of Coast Federal, in which the Federal Circuit en banc reversed a panel decision, finding that the PMR applied to this very complex case with a tortured history.  He reviews arguments for an against the PMR, and then, in a concluding section explains the PMR with the assistance of Dr. Ari's RE theory.  From this perspective, the PMR is an embodiment of RE and injects hypocrisy into the pursuit of justice.  Professor Mawakana's solution is simple: permit the introduction of extrinsic evidence in contractual disputes.

[JT]

February 27, 2012 in About this Blog, Government Contracting, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Best Contracts Scholarship of 2011: Honorable Mentions, Part I

Two weeks ago, we announced the top vote getters in our search for the best contracts scholarship of 2011.  We, the editors of the blog then voted for our favorites among those five, which are:

Omri Ben-Shahar, Fixing Unfair Contracts, 63 Stan. L. Rev. 869 (2011)

Robert A. Caplen, Turning Esch to Dust? The State of Supplementation of the Administrative Record in Bid Protests before the Court of Federal Claims, 12 Whittier L. Rev. 197 (2011)

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

Juliet P.Kostritsky, Interpretive Risk and Contract Interpretation: A Suggested Approach for Maximizing Value2 Elon L. Rev. 109 (2011)

Kemit A. Mawakana, In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic, 11 U. Md. L.J. Race, Religion, Gender & Class 39 (2011)

The voting confirmed the quality of the competition, as each of the finalists had its supporters, with three different articles receiving at least one vote for #1 among the five of us who voted.

In order to draw out the suspense as long as possible, we will count down to #1 Casey Kasem style, except that our honorable mentions are in no particular order.  

Honorable mention #1 goes to Robert A. Caplen, Turning Esch to Dust? The State of Supplementation of the Administrative Record in Bid Protests before the Court of Federal Claims, 12 Whittier L. Rev. 197 (2011)

CaplenRobert Caplen, shown here in the author photo of his book, Shaken & Stirred: The Feminism of James Bond, was the Articles Editor of the Florida Law Review, a Research Editor of the University of Florida Journal of Law & Public Policy, and a board member of the Florida Journal of International Law. He was a litigation associate at Greenberg Traurig, LLP in Washington until 2007 when he assumed his current responsibilities as clerk for Judge Sweeney at the Court of Federal Claims,  In August 2012, he will begin a one-year clerkship on the Ninth Circuit. 

Those engaged in the lively sub-field of government contracting law may already be familiar with Robert Caplen's article, which addresses the standard for supplementing the administrative record in bid protests heard by the Court of Federal Claims.   His title refers to Esch v. Yuetter, 876 F.2d 976 (D.C. Cir. 1989), which encouraged a flexible approach towards supplementating the administrative record.  The Court of Federal claims addressed the Esch standard recently in Axiom Resource Mgt., Inc. v. U.S., 564 F.3d 1374 (Fed. Cir. 2009) and now calls for a more individuated treatment of motions to supplement the administrative record.

After the introduction, Part II of Mr. Caplen's article addresses legal standards applicable to bid protests in the Court of Federal Claims.  The primary focus of that court's proceedings in bid protests is the administrative record reviewed by the agency whose decision is challenged in the court.  This presents some difficulty, Caplen points out, since the agency whose discretion the court is supposed to review is also the agency that, in its discretion, assembles the administrative record.  The flexible approach set forth in Esch allows parties to supplement the administrative record for various reasons.  

Grounds for permissible supplementation pursuant to Esch include allegations of bias or bad faith and the eight Esch exceptions, which Caplen describes as follows:

(1) when the record before the court does not adequately explain agency action; (2) when the agency does not consider factors relevant to its final decision; (3) when evidence not included in the record was considered by the agency; (4) when a case or issue is so complex that moreevidence is needed to enable a court to understand everything clearly; (5) when evidence arising after the agency action proves one way or another whether the decision was correct; (6) when an agency is sued for its failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases where relief, particularly apreliminary injunction, is at issue.

As Caplen explains, there was some inconsistency in the treatment of the Esch exceptions, with some courts describing them as "factors," while in some cases any one of the exceptions is treated as grounds for supplementing the record.  Almost immediately, other courts criticized Esch.  

According to Caplen, the Federal Circuit had never directly addressed the standard for review of decisions by the Court of Federal Claims to supplement the administrative record prior to Axiom.  He summarizes the Axiom approach as follows:

[T]he Federal Circuit mandated that the court evaluate the agency-assembled record before resorting to supplementation, a process that could potentially allow courts to supplement the record more frequently and survive appellate scrutiny by justifying their decisions upon the use of generic and nebulous language.

 In Axiom, the Federal Circuit disapproved of the Court of Federal Claims' reliance on Esch.  The Federal Circuit found such reliance inappropriate to the extent that it was inconsistent with the general standard, reaffirmed in the Supreme Court's decision in Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985).  Caplen then explores the uncertainties in that standard.  

He notes that the main effect of Axiom is that the Court of Federal Claims has learned not to cite to Esch but to insulate its decisions from review through circumlocutions that achieve the same results as would have been achieved by following Esch.  Caplen notes the significant danger that courts will now allow supplementation more frequently, or more erratically, because the standards announced in Axiom are so vague as to permit a great deal of variation in their implementation.

[JT]

February 27, 2012 in About this Blog, Government Contracting, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

The Spring Contracts Conference Is Only Days Away!!

We will be honoring Professor Melvin Eisenberg for a lifetime of important contributions to contracts scholarship.  We will also be honoring our selection for the best contracts article to appear in 2011 (keep an eye on this blog for an announcement of the winner later this week).  

San Diego
For those seeking more information on the conference, at which CLE credits are available, here is the main page.

And for those already stocking up on suntan lotion for the trip to San Diego, here is the conference program.

We at the blog are proud to note one of our own contributors, Eniola Akindemowo, is the conference organizer.  Thanks and congratulations to Eniola for pulling this conference together!

[JT]

February 27, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)