ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

A Member of the Law Professor Blogs Network

Thursday, July 11, 2013

Website for Law Professor's Book about Wrap Contracts Contains a Wrap Contract!

KimThose of you who read the previous post and clicked on the link to get a sneak peak at Nancy Kim's forthcoming book, Wrap Contracts, may have noticed the banner at the top of the screen, which reads:

We use cookies to enhance your experience on our website. By clicking 'continue' or by continuing to use our website, you are agreeing to our use of cookies. You can change your cookie settings at any time.

There may be some irony in this situation, or perhaps it is strategic: the website performs, and makes one of Nancy's points for her.  Wrap contracts are everywhere and have become an unavoidable fact of life for the computer literate.

[JT]

July 11, 2013 in About this Blog, Books, Web/Tech | Permalink | Comments (2) | TrackBack (0)

Documentary on Terms of Use

There's a new documentary about...wait for it....contracts!  Well, if you want to call terms of use "contracts" - which courts seem to want to do.  Here's a link to an article in USA Today  and a link to the the official trailer on YouTube (yes, I get the irony of posting a trailer to YouTube which you can't do without agreeing to their terms of use....).  The clip contains some infuriating quotes from self-interested folks who want to perpetuate consumer ignorance of privacy looting.  One of my favorites-to-hate is the lie that people don't care about privacy - if they did they would do something about it.  But contracts profs know about bounded rationality and the limits of cognition - and we also know about lack of choice, the importance of contract design and effective v. ineffective notice.

I cover all of this ground (and more) in my forthcoming book  but more on that later.... 

 

[Nancy Kim]

July 11, 2013 in In the News, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

New in Print

Tuesday, July 9, 2013

When Non-Competes Attack

FpasqualeOver at Balkinization, University of Maryland Law Prof Frank Pasquale (pictured) has a post about a recent article by Alana Samuels in the L.A. Times.  Samuels' article begins with the now-familiar story of a janitor owed back wages who was forced into an arbitral forum that favored employers.  His arbitration agreement, which was among the papers he signed without reading (and likely without being given the opportunity to read) on the first day of work, also included a class action waiver.  Employers are also emboldened by the pro-business climate engendered by recent SCOTUS decisions to throw in attorneys' fees provisions, thus increasing the risks to employees who seek redress.

The story then proceeds to detail the plight of relatively low-wage workers, such as limo drivers and hair stylists, whose employers force them to sign non-compete clauses, even if they are part-time, meaning that they cannot find work with other businesses, even if they are not getting enough hours from their current employers.  Pasquale reports that non-competes are now starting to kick in at the job application stage.  He reports that at some job fairs, employers will not look at your application unless you sign a "letter of intent," which prevents the applicant from applying elsewhere whie the current application is pending.

It is not clear to me that such a letter would be or could be enforceable.  What is the company's remedy if a potential employee violates the letter of intent?  Presumably, the only remedy would be to refuse to hire, but if the employer is otherwise inclined to hire someone, would that person's failure to abide by the company's b.s. letter of intent really deter the company from hiring?  And if the company does not decide to hire the person, there is obviously no harm to the company and so no way to enfore the letter of intent.  The issue could arise, perhaps, if the company hired someone and then learned that the employee had violated the letter of intent.  But since the employment is almost certainly at-will, what difference does the letter of intent issue make?  The employer still is free to fire or not fire.

[JT]

July 9, 2013 in Commentary, In the News, True Contracts | Permalink | Comments (3) | TrackBack (0)

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 

May 10, 2013 to July 9, 2013

RankDownloadsPaper Title
1 218 Can an Arbitrator Conduct Independent Legal Research? If Not, Why Not? 
Paul Bennett Marrow
New York Law School
2 78 Contracts as Technology 
Kevin E. Davis
New York University (NYU) - School of Law
3 73 Interpreting Investment Treaties as Incomplete Contracts: Lessons from Contract Theory 
Wolfgang Alschner
Graduate Institute of International and Development Studies
4 69 Avoiding Insult to Injury: Extending and Expanding Cancellation of Indebtedness Income Tax Exemptions for Homeowners 
Dustin A. Zacks
King, Nieves & Zacks PLLC
5 67 In Quest of the Arbitration Trifecta, or Closed Door Litigation?: The Delaware Arbitration Program 
Thomas Stipanowich
Pepperdine University School of Law
6 64 To Skin a Cat: Qui Tam Actions as a State Legislative Response to Concepcion 
Janet Cooper Alexander
Stanford Law School
7 61 The No Reading Problem in Consumer Contract Law 
Ian AyresAlan Schwartz
Yale University - Yale Law School, Yale Law School
8 49 Dispute Resolution in Public Contracts: Lessons from Select International Best Practices 
Sandeep Verma
Ministry of Defence, Government of India
9 48 Sex Matters: Considering Gender in Consumer Contracts 
Amy Schmitz
University of Colorado at Boulder - School of Law,
10 46 Monitoring, Reporting, and Recalling Defective Financial Products 
Daniel Schwarcz
University of Minnesota Law School

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

May 10, 2013 to July 9, 2013

RankDownloadsPaper Title
1 72 Interpreting Investment Treaties as Incomplete Contracts: Lessons from Contract Theory 
Wolfgang Alschner
Graduate Institute of International and Development Studies
2 64 Do the Right Thing: Indirect Remedies in Private Law 
Daphna Lewinsohn-Zamir
Hebrew University - Faculty of Law
3 61 The No Reading Problem in Consumer Contract Law 
Ian AyresAlan Schwartz
Yale University - Yale Law School, Yale Law School,
4 56 Disclosing Corporate Disclosure Policies 
Victoria L. Schwartz
Pepperdine University School of Law, University of Chicago - Law School
5 49 Dispute Resolution in Public Contracts: Lessons from Select International Best Practices 
Sandeep Verma
Ministry of Defence, Government of India
6 48 Sex Matters: Considering Gender in Consumer Contracts 
Amy Schmitz
University of Colorado at Boulder - School of Law
7 44 The One and the Many: Translating Insights from Constitutional Pluralism to European Contract Law Theory 
Chantal Mak
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
8 43 An Analytical Framework for Legal Evaluation of Boilerplate 
Margaret Jane Radin
University of Michigan Law School
9 42 Mediation at the Intersection with Contract Law: The Settlement Agreement 
Anna Giordano Ciancio
Unaffiliated Authors - Independent
10 33 A Psychology of Choice of Laws 
Gary Low
Singapore Management University - School of Law, Maastricht European Private Law Institute

[JT]

July 9, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Monday, July 8, 2013

Are Contracts Enforceable in Nirvana?

Nirvana_around_1992My colleague, David Herzig, called my attention to this weekend's New York Times Magazine, which featured an article about Jason Everman, who was briefly a member of two very successful bands, Nirvana (pictured) and Soundgarden.  According to the article, Everman was too introverted to make it on tour, and he was fired from both bands for being moody.  He bounced around with other bands for a while and eventually enlisted with the armed forces.  He is now a decorated war hero and veteran of the Special Forces, where, according to the article, moodiness is not a big problem.  

The part that piqued David's interest was early on, when Everman first joined Nirvana.  According to the Times, Nirvana had just recorded its first album, Bleach, but they owed their producer money.  Everman paid $606.17 to cover the debt, and the record eventually sold over 2 million copies.  Kurt Cobain bragged that the band never even reimbursed Everman his $600.  David thought maybe there would be some contractual angle that would lead to a recovery for Everman.  The article suggests that Everman has moved on, and that's probably the right move both for the sake peace of mind and from the legal perspective, at least based on the facts as reported in the Times.

There is no suggestion in the article of a contract.  It seems like Everman was just being a good guy and giving his friends some money.  At best, he might have expected to be paid back, so a legal case would entitle him to $606.17 plus interest.  Or he might have just been helping his bandmates in the expectation that the record's success would enable them to tour and to profit from being Nirvana, a privilege that Everman enjoyed for a while, before his bandmates discovered that he wasn't the person with whom they wanted to be stuck in a tour van.  

[JT]

July 8, 2013 in Commentary, In the News | Permalink | Comments (0) | TrackBack (0)