January 10, 2013
Consideration, Baby, Baby, Baby!
With 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 9, 2013
New in Print
Fans 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 8, 2013
Weekly Top Tens from the Social Science Research Council
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal
November 8, 2012 to January 7, 2013
January 7, 2013
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.
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.