ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, January 10, 2013

Consideration, Baby, Baby, Baby!

220px-Justin_Bieber_NRJ_Music_Awards_2012With more people acting like citizen journalists these days, celebrities often are exposed for engaging in various activities they'd rather their fans not know about (insert shameless plug for my privacy-related article, The Mythical Right to Obscurity, here).  For example, pictures of Justin Bieber recently surfaced that allegedly show him holding a "blunt," a.k.a. marijuana rolled like a cigarette. How is this related to contracts?  Well, in order to avoid future publication of pictures like the blunt pics, Justin Bieber reportedly is posting signs wherever he socializes which state that any pictures taken of him during the socializing belong to Justin Bieber only.  In other words, if you are hanging out with Justin Bieber, Baby, you are promising not to distribute (take?) any pictures without his express permission.  The questions for our blog are:

(i) Is there a contract? Is my staying in the room, thereby giving him Somebody to Love, acceptance of Justin's proposed terms (like my keeping of the computer in Gateway)?  

(ii) Is there consideration?  Is Justin's staying in the room valid consideration to support my promise not to share pictures of him? Or is everything ok As Long as [He] Love[s] Me?, and

(iii) Has my use of song-related puns in this and other posts grown tiresome?  

In a related post, our own Nancy Kim discussed Chris Brown's practice of requiring fellow partiers to sign a confidentiality agreement.

[Heidi R. Anderson]

January 10, 2013 in Celebrity Contracts | Permalink | TrackBack (0)

Wednesday, January 9, 2013

New in Print

Pile of BooksFans of last year's contest to choose the best contracts law article of the year, heralded as the First Annual ContractsProf Prize may now wonder what became of that contest, which should now be in the midst of its second, annual iteration.

Well, it's a long story, but the short version is, the contest took a lot of time, and we all got too busy.  All four current contributors to the blog, Heidi Anderson, Nancy Kim, Meredith Miller and I read all the finalists and voted on a winner.  This year, we were too busy grading, writing, etc. to be able to organize another contest.  Who knows what the future will hold.  In the meantime, here are some of the top contracts articles that appeared in 2012. 

George M. Cohen, The Financial Crisis and the Forgotten Law of Contracts, 87 Tul. L. Rev. 1 (2012)

Melissa T. Lonegrass, Finding Room for Fairness in Formalism--The Sliding Scale Approach to Unconscionability, 44 Loy. U. Chi. L.J. 1 (2012)

Anat Rosenberg, Separate Spheres Revisited: On the Frameworks of Interdisciplinarity and Constructions of the Market, 24 Law & Lit. 393 (2012)

By the way, in addition to the great panel that the AALS Section on Contracts put on, some of us found other things to do with our time in New Orleans.  I, for example, ate an alligator:




January 9, 2013 | Permalink | TrackBack (0)

Tuesday, January 8, 2013

Weekly Top Tens from the Social Science Research Council

SSRNRECENT HITS (for all papers announced in the last 60 days) 

TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 
November 8, 2012 to January 7, 2013

RankDownloadsPaper Title
1 396 The Cross-Border Freedom of Form Principle Under Reservation: The Role of Articles 12 and 96 CISG in Theory and Practice 
Ulrich G. Schroeter
University of Mannheim - Faculty of Law
2 315 Libertarianism, Law and Economics, and the Common Law 
Todd J. Zywicki
George Mason University - School of Law, Faculty
3 145 Monism and Dualism in International Commercial Arbitration: Overcoming Barriers to Consistent Application of Principles of Public International Law 
S.I. Strong
University of Missouri School of Law
4 144 Sovereign Immunity and Sovereign Debt 
Mark C. Weidemaier
University of North Carolina (UNC) at Chapel Hill - School of Law
5 125 Contracting About Private Benefits of Control 
Ronald J. GilsonAlan Schwartz
Stanford Law School, Yale Law School
6 112 The Historical Origins of America's Mortgage Laws 
Andra C. Ghent
Arizona State University (ASU) - Finance Department
7 109 A People's History of Collective Action Clauses 
Mark C. WeidemaierG. Mitu Gulati
University of North Carolina (UNC) at Chapel Hill - School of Law, Duke University - School of Law
8 86 The Transnationalisation of Commercial Law 
Gralf-Peter CalliessHermann HoffmannJens Mertens
University of Bremen - Faculty of Law, University of Bremen - Faculty of Law, University of Bremen - Faculty of Law
9 75 Class, Mass and Collective Arbitration in National and International Law 
S.I. Strong
University of Missouri School of Law
10 71 The Inalienable Right of Publicity 
Jennifer E. Rothman
Loyola Marymount University - Loyola Law School Los Angeles

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

November 9, 2012 to January 8, 2013

RankDownloadsPaper Title
1 111 A People's History of Collective Action Clauses 
Mark C. WeidemaierG. Mitu Gulati
University of North Carolina (UNC) at Chapel Hill - School of Law, Duke University - School of Law
2 53 Transnational Private Regulatory Governance: Ambiguities of Public Authority and Private Power 
Peer Zumbansen
York University - Osgoode Hall Law School
3 52 Custom, Contract, and Kidney Exchange 
Kieran HealyKimberly D. Krawiec
Duke University, Duke University - School of Law
4 49 Contracting with Sovereignty: State Contracts and International Arbitration (Book Review) 
A. F. M. Maniruzzaman
University of Portsmouth - School of Law
5 43 Would Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements? 
J. Thomas Oldham
University of Houston - Law Center
6 30 The Role of Public Policy and Mandatory Rules within the Proposed Hague Principles on the Law Applicable to International Commercial Contracts - Updating Note 
Andrew Dickinson
University of Sydney - Faculty of Law,
7 24 Interpretations of Standard Clauses: A Comparative Study of China and UK Contract Law 
Peng Wang
Xi'an Jiaotong University -- School of Law
8 20 Die Bestimmung durch einen Dritten im Europäischen Vertragsrecht – Textstufen transnationaler Modellregelungen (Determination by a Third Party in European Contract Law – A Genetic Comparison of Transnational Model Rules) 
Jens Kleinschmidt
Max Planck Institute for Comparative and International Private Law
9 20 Norms and Law: Putting the Horse Before the Cart 
Barak D. Richman
Duke University - School of Law
10 19 The Duty to Draft Reasonably and Online Contracts 
Nancy S. Kim
California Western School of Law



January 8, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Monday, January 7, 2013

Parking Contract

Below is a parking ticket I got from a parking lot outside of a hotel I stayed at over the holidays.  The fact that the ticket announced itself as a contract caught my attention.  It was as if the busboy in a restaurant, after clearing the table and placing a towel in his waistband, pulled out a pad of paper and announced, "My name's Devon, and I'll be your server tonight."  

Nothing against busboys or servers.  They each have their designated role, and for some reason restaurants keep them separate.  If you ask a busboy to bring you some ketchup, the best he can do is pass word on to the server that you need something, who will then send over the ketchup sommelier who will intimidate you with questions about what you have in mind for what he calls "catsup," what kind of tomato you prefer and if there was a particular vintage you had in mind.  Similarly, it seems a bit ambitious for a simple parking ticket to announce itself as a contract.  That's all I'm saying.

Parking Ticket

At this point, it should not shock us that our knowing assent to terms is not required for the the formation of a consumer contract, but still I found this little parking ticket a bit jarring.  The reason for that is as follows.  At the hotel at which I stayed, you actually don't use the ticket to get in and out of the parking lot; you use your room key, which has no contractual langauge written on it.  Nor were there signs elsewhere in the parking area that I noticed about limitations of liability.  I got the ticket because I parked my car before getting my room key.  

Moreover, the information provided does not seem adequate to establish a contract.  How long can I park my car?  What do I pay for the license to do so.  That information was not provided to me until I checked in to the hotel.  If I had just wandered into that parking lot without checking into the hotel, I would have no information about parking rates, and I'm not sure how a court would go about implying a price term in this case.  Social conventions suggest that I ought to know that by taking a ticket, proceeding through a raised gate and entering a parking lot, I am agreeing to pay for the privilege, but that should not mean they can charge me whatever they please.

If I had parked outside the front entrance of the hotel, unpacked my stuff, registered and then parked my car, I would have used my room key to get into the parking lot and never have received the notice printed on the ticket.  I suspect that the hotel somehow would still have found a way to limit its liabilty for any damage to my (rental) car while it was parked in its lot, but I really have no idea how or if it matters.  It's all for the best, because this way I started my little holiday thinking about contracts.


January 7, 2013 in Miscellaneous, True Contracts | Permalink | Comments (2) | TrackBack (0)