ContractsProf Blog

Coming Next Week: Two Guest Posts on Kenneth Adams' Contracts Drafting Style Manual

Next week, we will have two guests posts reviewing Kenneth A. Adams, A Manual of Style for Contract Drafting (3d ed.).

From the book's website:

With A Manual of Style for Contract Drafting, Kenneth A. Adams has created a uniquely in-depth survey of the building blocks of contract language. First published in 2004, it offers those who draft, review, negotiate, or interpret contracts an alternative to the dysfunction of traditional contract language and the flawed conventional wisdom that perpetuates it. This manual has become a vital resource throughout the legal profession, in the U.S. and internationally.

This is the third edition of A Manual of Style for Contract Drafting. One-third longer than the second edition (published in 2008) and in a larger format, it contains much new material and has otherwise been revised and supplemented, making it even more essential.

This manual's focus remains how to express contract terms in prose that is free of the archaisms, redundancies, ambiguities, and other problems that afflict traditional contract language. With exceptional analysis and an unmatched level of practical detail, Adams highlights common sources of confusion and recommends clearer and more concise alternatives. This manual is organized to facilitate easy reference, and it illustrates its analysis with numerous examples. Consult it to save time in drafting and negotiation and to reduce the risk of dispute.

Our reviewers are:

Daniel D. Barnhizer, Professor of Law & The Bradford Stone Faculty Scholar, Michigan State University College of Law.  

Professor Barnhizer graduated with honors from Harvard Law School, where he served as managing editor of the Harvard Environmental Law Review. After graduation, he was a judicial clerk for the Honorable Richard L. Nygaard, U.S. Court of Appeals for the 3rd Circuit, and for the Honorable Robert B. Krupansky, U.S. Court of Appeals for the 6th Circuit, sitting by designation on the U.S. District Court for the Northern District of Ohio. Professor Barnhizer has practiced as a litigator with the law firms of Hogan & Hartson and Cadwalader, Wickersham & Taft. Before joining the MSU College of Law faculty, he was an adjunct professor of law at American University - Washington College of Law, where he taught legal reasoning, research, and writing. At MSU Law, he teaches Contracts, Contract Theory, Business Enterprises, Securities Litigation, and Legal History.

Some of Professor Barnhizers scholarship can be found here.

Irma S. Russell, Dean and Professor of Law, University of Montana School of Law.

Prior to coming to Montana, Dean Russell was the NELPI Professor and Director of the National Energy-Environment Law & Policy Institute at the University of Tulsa College of Law.  She became Dean of the University of Montana School of Law in 2009.

Dean Russell is immediate past chair of the ABA Section of Environment, Energy and Resources and the immediate past chair of the AALS Section of Natural Resources and Energy Law.  She is a newly appointed member of the Board of Dividing the Waters, an organization of judges and lawyers focused on issues of water adjudication in the Western United States.  She has served as the chair of the Professionalism Committee of the ABA Section of Legal Education and Admission to the Bar and as a member of the ABA Standing Committee on Professionalism and the ABA Standing Committee on Ethics and Professional Responsibility.  She also has served as a member of the Executive Committee and Secretary of the AALS Natural Resources Section and as chair of chair of the AALS Section on Professional Responsibility, the AALS Section on Socio-Economics, and as a member of the Publications Committee of the Center for Professional Responsibility.

Dean Russell earned undergraduate degrees in liberal arts and education, a master’s degree in English literature, and her law degree at the University of Kansas. She clerked for The Honorable James K. Logan, United States Court of Appeals for the Tenth Circuit. Russell engaged in private practice for several years in Kansas, Missouri, and Tennessee.

We look forward to some stimulating reviews and hopefully some fans of the book (and Ken Adams' blog on legal drafting) will chime in as well.

[JT]

We Salute Our New (Singular) Overlord

As many of you may already have noticed, Blog Emperor Paul Caron has announced a signfiicant change at the Law Professor Blogs Network, of which the ContractsProf Blog is a part.  Here is the announcment:

Law Professor Blogs LLC announces today that co-founder Paul L. Caron has purchased the 50% interest of co-founder Joseph A. Hodnicki and now owns 100% of the company.

Paul Caron:  "I will always be grateful to Joe for partnering with me nine years ago to launch TaxProf Blog and shortly thereafter the Law Professor Blogs Network. TaxProf Blog and the Law Professor Blogs Network would not exist today had Joe not partnered with me in their conception, design, and operation. I am delighted that Joe will continue to serve as the Co-Editor of Law Librarian Blog, one of the most influential law librarian blogs in the country."

Joe Hodnicki:  "When Paul and I first ventured into this web publishing space we had no idea where it might take us. It certainly has been an interesting experience for both of us as we worked to develop the Law Professor Blogs Network. The legal blogosphere has matured over the years. It is now recognized as an acceptable communications medium for law professors, something it was not when we launched the Network. While I must scale back my involvement in the Network’s affairs, by selling my interest to Paul I am confident the blogs we have published will continue to be some of the best law-related blogosphere destinations for news, analysis and commentary on the topics they address. I look forward to forthcoming Network developments under Paul’s leadership."

Law Professor Blogs LLC is the nation's only network of legal blogs edited primarily by law professors. Law Professor Blogs LLC owns and operates over 40 legal blogs, edited by over 100 law professors, law librarians and practitioners. Editors include leading scholars and educators who are committed to providing the web destination for law professors, practitioners, government and nonprofit lawyers, legal information professionals and students in their respective fields.

This blog owes its existence to Paul and Joe's vision, and both have intervened at times to help us with behind-the-scenes technical issues beyond our abilities.  The announcement reflects the fact that we are here dealing with two class acts.  

And so, thanks to Joe for all of his support over the years, and we look forward to our continued collaboration with Paul.

[JT]

Boilerplate Symposium: Week 3

For those who missed it, over the last two weeks we posted nine mini reviews of Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law as well as Professor Radin's resposnes to those reviews.  

The prior posts can be found here: 

• Peter Alces on consent;
• Theresa Amato on proposed solutions to the problems posed by Boilerplate;
• Andrew Gold on the question of whether boilerplate is contractual;
• David Horton on mass arbitration and democratic degradation; 
• Ethan Leib on the fetishization of consent;
• Brian Bix on democratic degradation;
• Oren Bar-Gill on consent without reading;
• Daniel Schwarcz on a tort-based approach to standard form contracts;
• Kim Krawiec on contracts as disclosure, Part I and Part II; and
• Margaret Jane Radin's responsesm, Part I and Part II

This week, we will feature posts from the following contracts scholars:

Aditi Bagchi teaches Contracts and Labor Law at the Fordham University School of Law, where she is an Associate Professor. Her writing in contract theory challenges classical views of contractual obligation. For example she questions its promissory foundation (Separating Contract and Promise, Promises and Permissions in Contract) and its fully voluntary character (Promises and Permissions in Contract, Normative Triangulation in Contract Interpretation). She has argued that contract may be multilateral and dynamic (Parallel Contract) and has examined considerations of distributive justice in the formation, interpretation, and enforcement of contract (Distributive Injustice and Private Law, Managing Moral Risk: the Case of Contract, Distributive Justice and Contract). She has explored these issues with respect to employment and consumer contracts in particular (The Myth of Equality in the Employment Relation, Unequal Promises, Unions and the Duty of Good Faith in Employment Contracts). Professor Bagchi also has a related interest in the comparative political economy of contract, labor, and corporate law (The Political Economy of Contract Regulation, Varieties of Employee Ownership, The Political Economy of Merger Regulation). For a full list of her publications and current projects, se her Research page.

Jean Braucher is the Roger C. Henderson Professor of Law at the University of Arizona’s James E. Rogers College of Law (Tucson), where she has taught since 1998. Prior to joining the faculty at the University of Arizona, Professor Braucher served as the Gustavus H. Wald Research Professor of Law at the University of Cincinnati College of Law. She has also served as a visiting professor of law at Cornell Law School, University of Texas School of Law and Boston College Law School.  Since 2007, Professor Braucher has served as the Distinguished Scholar and Chair of the Wisconsin Contracts Project of the Institute for Legal Studies at the University of Wisconsin Law School. The Project is dedicated to a socio-legal approach to contract law and to revising the Contracts casebook by Stewart Macaulay et al., which Professor Braucher has joined as an author.  Prof. Braucher specializes in bankruptcy, contracts and commercial law. 

Charles Calleros is a Professor of Law at Arizona State University's Sandra Day O'Connor College of Law.  Professor Calleros’ research interests include international and comparative contract law; international conflict of laws; the intersection of free speech with race and gender discrimination; and various issues regarding legal education. At ASU, he teaches Contracts, International Contracts, Civil Rights Legislation, and Legal Method and Writing. At the Universite Paris Descartes, he annually teaches short courses in Common Law Legal Method, Comparative and International Contracts, and International Conflict of Laws.  Professor Calleros is a member of the American Law Institute.  In addition to earning several teaching awards over the years, he received the ABA’s Spirit of Excellence Award in 2011 and received an award in 2010 from the Arizona State Bar Committee on Minorities and Women in the law for his work in mentoring programs and outreach to youth in the community. Prior to joining the College faculty in 1981, he clerked for Circuit Judge Procter Hug Jr., of the U.S. Court of Appeals. Professor Calleros is past-President of Region XIV of the Hispanic National Bar Association.

Peter Linzer is a Professor of Law at the University of Houston Law Center, where he has taught since 1984.  Before going into teaching, Professor Linzer practiced law both as a Wall Street lawyer and as an Assistant Corporation Counsel for the City of New York. Professor Linzer is a member of the American Law Institute.  Professor Linzer has served as the Chair of the Contracts Section of the Association of American Law Schools and is a Board Certified civil appellate specialist. He served for nearly a decade on the Pattern Jury Charge Committee of the State Bar of Texas. His principal academic subjects include Contracts; Constitutional Law; Equal Protection; First Amendment; International Contracting; Transactional Clinic; Contract Negotiation and Drafting; Introduction to American Law (for foreign LL. M. candidates); and Torts. Working with experienced practitioners, he pioneered a transactional course in international contracting that sees students negotiate and draft documents in simulated international deals.  A list of his publications can be found here.

Cheryl Preston is the Edwin M Thomas Professor of Law at Brigham Young University's J. Reuben Clark Law School, where she has taught since 1989.  Professor Preston is a nationally recognized expert in Internet contracts, the contract infancy doctrine, legal protections for minors, and Internet regulation. Professor Preston also publishes on the relationship of law and popular culture images, law and religion, and feminist legal theory. She produced an educational DVD, entitled Fashioning Women in Law. Her DVD won the prestigious Chris Award at the 2003 Columbus International Film Festival.  Prior to joining BYU's faculty, Professor Preston served as a law clerk to the Honorable Monroe G. McKay, United States Court of Appeals for the Tenth Circuit and was in private practice for ten years.  A list of her publications can be found here.

Guy A. Rub is an Assistant Professor at the Ohio State University Moritz College of Law.  Professor Rub is an expert in the intersection between intellectual property law and economic theory. Prior to joining Moritz, he was practicing at Munger, Tolles & Olson LLP in Los Angeles.  Professor Rub has studied law on three continents. He completed his studies as an SJD candidate and received an LL.M. degree from the University of Michigan Law School; a master's degree in Law & Economics from the University of Madrid; a European Master in Law and Economics from the Erasmus University in Rotterdam, Netherlands; and a LL.B. degree from Tel-Aviv University. He was a law clerk to the Hon. Rina S. Meshel of the Tel-Aviv Appellate Court.  His recent article, Contracting Around Copyright: the Uneasy Case for Unbundling Rights in Creative Works, was published in the University of Chicago Law Review.  A list of his publiactions can be found here.

Thanks to all of our contributors.  We look forward to an exciting finale to our symposium!

[JT]

News Flash: SCOTUS Takes a Contracts Case

 

Coach Seat, Actual Size

We blogged about this case before.  Since that time, a panel of the Ninth Circuit issued a new opinion that is available here.  

 

You can read more about the case on SCOTUSblog, which provides this summary of the case here in a roundup of all the cases on which the Court granted Cert on the same day:

The Court agreed to decide whether airline passengers who are removed from a “frequent flyer” entitlement list have a right under state law to sue the airline for alleged violation of a promise that they could continue to enjoy the benefits.   The case of Northwest, Inc., v. Ginsberg (12-462) tests whether such legal claims are preempted by federal law governing regulation of commercial air service.

SCOTUSblog also provides this statement of the issue in the case:

Issue: Whether the court of appeals erred in holding, in contrast with the decisions of other circuits, that respondent’s implied covenant of good faith and fair dealing was not preempted under the Airline Deregulation Act because such claims are categorically unrelated to a price, route, or service, notwithstanding that respondent’s claim arises out of a frequent-flyer program (the precise context of American Airlines, Inc. v. Wolens ) and manifestly enlarged the terms of the parties’ undertakings, which allowed termination in Northwest’s sole discretion.

We are looking forward to the Supreme Court's ruling (although the tea leaves seem pretty clear), and we hope that they cite to our earlier post as (some kind of) authoirty.

[JT]

Boilerplate Symposium, Week 2

For those who missed it, last week we posted five responses to Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law.

We heard from: 

• Peter Alces on consent;
• Theresa Amato on proposed solutions to the problems posed by Boilerplate;
• Andrew Gold on the question of whether boilerplate is contractual;
• David Horton on mass arbitration and democratic degradation; and 
• Ethan Leib on the fetishization of consent

This week, we will feature posts from the following contracts scholars:

Oren Bar-Gill is a Professor of Law and Co-Director of the Center for Law, Economics and Organization, New York University School of Law, where he has taught since 2005.  Professor Bar-Gill’s scholarship focuses on the law and economics of contracts and contracting.   Before joining the faculty at NYU, he was at Harvard University, where he was a Fellow at the Society of Fellows, as well as an Olin Fellow at Harvard Law School.  Professor Bar-Gill holds a B.A. (economics), LL.B., M.A. (law & economics) and Ph.D. (economics) from Tel-Aviv University, as well as an LL.M. and S.J.D. from Harvard Law School. Bar-Gill served in the Israeli JAG, from 1997-1999, where he participated in criminal, administrative and constitutional proceedings before various courts including the Israeli Supreme Court and the IDF Court of Appeals.  A list of his publications can be found here.  A link to our recent symposium on his book, Seduction by Contract, can be found here. 

Brian Bix is the Frederick W. Thomas Professor for the Interdisciplinary Study of Law and Language at the University of Minnesota Law School, where he has taught since 2001.  He teaches in the areas of jurisprudence, family law, and contract law. He holds a joint appointment with the Department of Philosophy.received his B.A., summa cum laude, Phi Beta Kappa, from Washington University in St. Louis in 1983; his J.D., magna cum laude, from Harvard Law School in 1986; and his D.Phil. in Law from Balliol College, Oxford University, in 1991. Professor Bix taught at Quinnipiac University School of Law, as Associate Professor (1995-1997) and Professor (1998-2001). He was a Visiting Professor of Law at Georgetown University Law Center during the spring semester of 2000 and at George Washington University Law School in the fall of 1999. Professor Bix was the Lecturer in Jurisprudence and Legal Reasoning at King's College, University of London, from 1991 to 1993; he taught at St. Edmund Hall, Oxford University, from 1989 to 1990. He was a law clerk for Justice Benjamin Kaplan at the Massachusetts Appeals Court (1993-95, while on leave from the King's College), and he also clerked for Judge Stephen Reinhardt, Ninth Circuit Court of Appeals (1987-1988), and Justice Alan Handler, New Jersey Supreme Court (1986-1987). He is a member of the American Law Institute.  A list of his publications can be found here.

Kimberly D. Krawiec is the Kathrine Robinson Everett Professor of Law at the Duke University School of Law.  She is an expert on corporate law and teaches courses on securities, corporate, and derivatives law. Her research interests span a variety of fields, including the empirical analysis of contract disputes; the choice of organizational form by professional service firms, including law firms; forbidden or taboo markets; corporate compliance systems; insider trading; derivatives hedging practices; and “rogue” trading.  Prior to joining academia, Professor Krawiec was a member of the Commodity & Derivatives Group at the New York office of Sullivan & Cromwell. She has served as a commentator for the Central European and Eurasian Law Initiative (CEELI) of the American Bar Association and on the faculty of the National Association of Securities Dealers Institute for Professional Development at the Wharton School of Business. She holds a juris doctorate from Georgetown University and a bachelor’s degree from North Carolina State University.  A visiting professor at Duke Law during the 2008-09 academic year, Krawiec also has taught law at the University of Virginia, the University of North Carolina, Harvard, and Northwestern, where she received the 1999-2000 Robert Childres Award for Teaching Excellence.  A list of her publications can be found here.

Daniel Schwarcz received his A.B. magna cum laude from Amherst College and his J.D. magna cum laude from Harvard Law School.  After law school, Schwarcz clerked for Judge Sandra Lynch of the U.S. Court of Appeals for the First Circuit (2003-2004), and later was an associate at Ropes & Gray in Boston, MA (2004-2005).  He served for two years as a Climenko Fellow at Harvard Law School (2005-2007) before being appointed Associate Professor of Law at the University of Minnesota School of Law in 2007.  He visited at UCLA School of Law for the Spring, 2013 semester.  Professor Schwarcz teaches insurance law, health care regulation and finance, contract law, and commercial law.  His research primarily focuses on consumer protection and regulation in property/casualty and health insurance markets.  In 2011, his article, "Reevaluating Standardized Insurance Policies," 77 University of Chicago Law Review (2011), received the Liberty Mutual Prize for an exceptional article on insurance law and regulation.  He has also published articles in The Virginia Law Review, Minnesota Law Review, North Carolina Law Review, William and Mary Law Review, and Tulane Law Review.  A full list of his publications can be found here.

We look forward to another lively week of contributions by our guest bloggers.

[JT] 

Boilerplate Symposium: The First Five

We begin our online symposium on Margaret Jane Radin's book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law with five posts this week.  This post will serve to introduce our guest bloggers.

Peter A. Alces is the Rollins Professor of Law and Cabell Research Professor of Law at the College of William & Mary School of Law, where he has taught since 1991.  He is the author of A Theory of Contract Law: Empirical Insights and Moral Psychology; Commercial Contracting; The Law of Suretyship and Guaranty; Bankruptcy: Cases and Materials; Cases, Problems and Materials on Payment Systems; The Commercial Law of Intellectual Property; Sales, Leases and Bulk Transfers; The Law of Fraudulent Transactions; and Uniform Commercial Code Transactions Guide. He has also published  articles in the Northwestern, Michigan, Minnesota, Illinois, North Carolina, Fordham, California, Texas, and William and Mary Law Reviews, and the Emory, Ohio State and Georgetown Law Journals. 

Theresa Amato is the executive director Citizen Works which she started with Ralph Nader in 2001. After earning her degrees from Harvard University and the New York University School of Law, where she was a Root-Tilden Scholar, Amato clerked in the Southern District of New York for the Honorable Robert W. Sweet. She was a consultant to the Lawyers Committee for Human Rights (Human Rights First) and wrote an influential human rights report on child canecutters in Haiti and the Dominican Republic. She then became the youngest litigator at Public Citizen Litigation Group, where she was the Director of the Freedom of Information Clearinghouse in Washington D.C.  In 1993, Amato founded the nationally-recognized, Illinois-based Citizen Advocacy Center and served as its executive director for eight years. She currently serves as its Board President.  Most recently, she has launched Fair Contracts.org to reform the fine print in standard form contracts.  In 2009, The New Press (New York) published her book, Grand Illusion: The Myth of Voter Choice in a Two-Party Tyranny.  She also appears prominently in the Sundance-selected and Academy Awards short-listed documentary “An Unreasonable Man.”  

Andrew Gold is a professor of law at the Depaul University College of law.  His primary research interests address legal theory and the law of corporations. Following graduation from Duke University School of Law, he clerked with the Honorable Daniel Manion of the Seventh Circuit, and with the Honorable Loren Smith of the Court of Federal Claims. After his clerkships, he joined Skadden, Arps, Slate, Meagher & Flom, where he practiced corporate litigation. Professor Gold's article, "A Property Theory of Contract," was lead article in the 2009 volume of the Northwestern University Law Review. His recent publications also include articles in the William and Mary, U.C. Davis, and Maryland law reviews. In 2007, Professor Gold received the College of Law's Award for Excellence in Scholarship, and, in 2010, he received the Award for Excellence in Teaching. During the 2011-2012 academic year, Professor Gold was a Visiting Scholar at Harvard Law School, and in Fall 2011, he was an HLA Hart Visiting Fellow at the University of Oxford. His scholarship has focused on contract theory; private law theory; fiduciary duties in corporate law; and Section 10(b) of the Securities Exchange Act.

David Horton joined the UC Davis faculty in 2012, after three years at Loyola Law School, Los Angeles.  He received his B.A. cum laude from Carleton College in 1997 and his J.D. from UCLA School of Law in 2004.  At UCLA, he was elected to the Order of the Coif and served as Chief Articles Editor of the UCLA Law Review.  He then practiced at Morrison & Foerster in San Francisco and clerked for the Honorable Ronald M. Whyte of the United States District Court for the Northern District of California.  From 2007 to 2009, he taught legal research and writing at UC Berkeley School of Law.  Horton’s research focuses on wills and trusts, federal arbitration law, and contracts.  His recent work has appeared or will soon appear in the NYU Law Review, Northwestern University Law Review, Georgetown Law Journal, UCLA Law Review, Notre Dame Law Review, North Carolina Law Review, University of Colorado Law Review, and Virginia Law Review in Brief, among others.  He also wrote an amicus brief on behalf of contracts professors in AT&T Mobility LLC v. Concepcion, the recent Supreme Court case. 

Ethan J. Leib is a noted expert in constitutional law, legislation, and contracts.  His most recent book, Friend v. Friend: Friendships and What, If Anything, the Law Should Do About Them (2011), explores the benefits of legal recognition of friendship and was published by Oxford University Press.  He has three forthcoming articles on public law subjects: one in the Journal of Political Philosophy examining fiduciary principles in political representation; one in the California Law Review applying the fiduciary principle to the activity of judging within democracies; and one in The University of Chicago Law Review exploring whether elected judges should be interpreting statutes differently from their appointed colleagues.  Leib's other academic writing has appeared in journals such as the Yale Law Journal, Northwestern University Law Review, UCLA Law Review, Constitutional Commentary, Election Law Journal, Journal of Legal Education, Law & Philosophy, and elsewhere.  He has also written for a broader audience in the New York Times, USA Today, SF Chronicle, Policy Review,Washington Post, New York Law Journal, The American Scholar, and The New Republic.  Before joining Fordham, Leib was a Professor of Law at the University of California–Hastings.  He has served as a Law Clerk to Chief Judge John M. Walker, Jr., of the U.S. Court of Appeals for the Second Circuit and as an Associate at Debevoise & Plimpton LLP in New York.

We look forward to a stimulating fortnight of exchanges on this important new book.

[JT]

Foretaste of Our Online Symposium on Margaret Jane Radin's Boilerplate

Next week, we will begin an online sympsoium on Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law.  Here is a description of the book provided by the publisher's websit

Boilerplate--the fine-print terms and conditions that we become subject to when we click "I agree" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets--pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order.

Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices

But before we kick off the symposium, we have a timely new review of the book from Omri Ben-Shahar (pictured) that is forthcoming in the Michigan Law Review.  The review is entitled Regulation through Boilerplate: An Apologia, and here is a description from SSRN:

This essay reviews Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights, And The Rule Of Law (Princeton Press, 2013). It responds to two of the book’s principal complaints against boilerplate consumer contracts: that they modify people’s rights without true agreement to, or even minimal knowledge of, their terms; and that the provisions they unilaterally enact are substantively intolerable. I argue, counter-intuitively, that contracts with long fine prints are no more complex and baffling to consumers than any alternative boilerplate-free templates of contracting. Therefore, there is no alternative universe in which consumers enter simpler contracts better informed of the legal terms. In addition, I argue that any policy that mandates consumer-friendlier arrangements (such as ones that eliminate boilerplate arbitration clauses, warranty disclaimers, or data collection) would hurt consumers in an unintended but potentially costly way.

[JT]

CBC Radio Interview with Margaret Radin

Next month, we will host an online symposium on Margaret Radin's recent book, Boilerplate.  

For those who can't wait to get a sesne of the book, you can listen to a Canadian Broadcasting interview with Professor Radin here.

Irony of ironies: in order to listen to this, I had to download an upgrade of Adobe Flash Player, and of course that required my agreement to boilerplate terms and conditions.

There is no escape from boilerplate.

[JT]

Online Symposium on Oren Bar-Gill's Seduction By Contract

For those of you who missed the discsussion Oren Bar-Gill's book at the Eighth International Conference on Contracts held in Fort Worth, TX last month, we will be providing a written version of the panel over the next week or so.  As we did at the conference, each commentator on the book will address a different substantive chapter (the introductory chapter sets out the model that informs the three substantive chapters).  Professor Bar-Gill will then weigh in with his responses at the end.  

The participants are as follows:

Professor Angela Littwin will address Seduction by Contract's chapter on credit cards.   Professor Littwin studies bankruptcy, consumer, and commercial law from an empirical perspective. Most recently, she has written about pro se filers in bankruptcy and the relationship between consumer credit and domestic violence. She was one of the principal investigators on the 2007 Consumer Bankruptcy Project, which has been the leading study of consumer bankruptcy for the past 25 years.

Professor Littwin received her undergraduate degree from Brown University and graduated from Harvard Law School in 2002. After law school, she clerked for the Honorable Rosemary Barkett of the U.S. Court of Appeals for the Eleventh Circuit and founded ROAD (Reaching Out About Depression), a community-organizing project for low-income women. Prior to her appointment at the University of Texas School of Law, she was a Climenko Fellow and Lecturer on Law at Harvard Law School. 

Professor Littwin teaches bankruptcy, secured credit, and a seminar on the regulation of credit cards at the University of Texas School of Law, where she has been on the faculty since 2008.

Here recent publications include:

• Escaping Battered Credit: A Proposal for Repairing Credit Reports Damaged by Domestic Violence, 161 University of Pennsylvania Law Review 363 (2013);
• Coerced Debt: The Role of Consumer Credit in Domestic Violence, 100 California Law Review951 (2012); and
• The Do-It-Yourself Mirage: Complexity in the Bankruptcy System, in Broke: How Debt Bankrupts the Middle Class at 157 (Katherine Porter, ed., Stanford: Stanford University Press, 2012).

Professor Littwin's post can be found here.

Professor Alan White, who will comment on the book's chapter on mortgages, joined the faculty at the CUNY School of Law in 2012. He teaches consumer law, commercial law, bankruptcy, comparative private law and contracts. He is a nationally recognized expert on credit regulation and the residential mortgage market. Professor White is a past member of the Federal Reserve Board’s Consumer Advisory Council, a member of the American Law Institute, and is currently serving as reporter for the Uniform Law Commission’s project on a Residential Real Estate Foreclosure statute. He is quoted frequently in the national media, including the New York Times, the Wall Street Journal and the Washington Post, in connection with his research on the foreclosure crisis. He has published a number of research papers and articles on housing, credit and consumer law issues, and testified before Congress and at federal agency hearings on the foreclosure crisis, bankruptcy reform and predatory mortgage lending.

Before becoming a full-time teacher, Professor White was a supervising attorney at the North Philadelphia office of Community Legal Services, Inc., and was also a fellow and consultant with the National Consumer Law Center in Boston and adjunct professor with Temple University Law School and Drake University School of Law. His legal services practice included representation of low-income consumers in mortgage foreclosures, class actions, bankruptcies, student loan disputes, and real estate matters. Mr. White received his B.S. from the Massachusetts Institute of Technology and his J.D. from the New York University School of Law.

His recent publications include:

• Losing the Paper – Mortgage Assignments, Note Transfers and Consumer Protection, 24 Loyola Consumer Law Journal 468 (2012)
• Credit and Human Welfare: Lessons from Microcredit in Developing Nations, 69 Washington & Lee Law Review 1093 (2012)
• The Impact of Federal Pre-emption of State Anti-Predatory Lending Laws on the Foreclosure Crisis, 31 Journal of Policy Analysis and Management 367 (2012) (with Lei Ding, Carolina Reid and Roberto Quercia)
• The Impact of State Anti-Predatory Lending Laws on the Foreclosure Crisis, 21 Cornell Journal of Law & Public Policy 247 (2011) (with Lei Ding, Carolina Reid and Roberto Quercia)
• State Anti-Predatory Lending Laws and Neighborhood Foreclosure Rates, 33 Journal of Urban Affairs 451 (2011) (with Lei Ding, Carolina Reid and Roberto Quercia)

Alan's first post is here.

Alan's second post is here.

Alan's third post is here.

Alan's fourth post is here.

Professor Nancy Kim will address Seduction by Contract's chapter on cell phone contracts.  

Our readers are likely familier with Professor Kim, who joined the faculty of the California Western School of Law in fall 2004.  She has also taught as a visiting faculty member at The Ohio State University, Moritz College of Law, Rady School of Management at the University of California, San Diego and Victoria University in Wellington, New Zealand. 

Prior to joining the faculty at California Western, Professor Kim was Vice President of Business and Legal Affairs of a multinational software and services company. She has worked in business and legal capacities for several Bay Area technology companies and was an associate in the corporate law departments at Heller, Ehrman, White & McAuliffe in San Francisco and Gunderson, Dettmer in Menlo Park. 

While in law school, Professor Kim was Associate Editor of the California Law Review and Associate Editor of the Berkeley Women’s Law Journal. After graduating from law school, she was a Women’s Law and Public Policy Fellow at Georgetown University Law Center and a Ford Foundation Fellow at UCLA School of Law. Professor Kim is a member of the State Bar of California and a past recipient of the Wiley W. Manuel Award for pro bono services for her work with the Asian Pacific American Legal Center. 

Professor Kim currently serves as Chair-elect of the section on Contracts and as a member of the executive committee of the section on Commercial and Related Consumer Law of the American Association of Law Schools.  She is a contributing editor to the Contracts Law Prof Blog, the official blog for the AALS Section on Contracts. Her scholarly interests focus on culture and the law, contracts, women and the law, and technology. 

Her book, Wrap Contracts: Mass Consumer Contracts in an Information Society is due out later this year.  Some of her publications can be found here. 

Nancy's first post is here.

Nancy's second post is here.

Finally, Oren Bar-Gill will respond to the comments on his book.  Oren Bar-Gill is a Professor of Law and Co-Director of the Center for Law, Economics and Organization, New York University School of Law, where he has taught since 2005.  

Professor Bar-Gill’s scholarship focuses on the law and economics of contracts and contracting.   Before joining the faculty at NYU, he was at Harvard University, where he was a Fellow at the Society of Fellows, as well as an Olin Fellow at Harvard Law School.  Professor Bar-Gill holds a B.A. (economics), LL.B., M.A. (law & economics) and Ph.D. (economics) from Tel-Aviv University, as well as an LL.M. and S.J.D. from Harvard Law School. Bar-Gill served in the Israeli JAG, from 1997-1999, where he participated in criminal, administrative and constitutional proceedings before various courts including the Israeli Supreme Court and the IDF Court of Appeals.

A list of his publications can be found here.

Professor Bar-Gill's contribution to our forum can be found here.

We look forward to a lively exchange, and we hope readers will feel free to weigh in.

[JT] 

Closing in on 1 Million!!!

If our numbers hold, we will welcome our 1 millionth visitor within the next week. If we could gather all of our visitors in one place, we'd like to think they would look something like this:

You people, you are the real heroes!

Thanks for visiting.

[JT]

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]

Away!

Dear Readers,

Next week might be a bit slower than usual on the blog.  As you read this, I am pedaling my way from Chicago to Michigan.  It's not that long a ride for a serious bike rider, but I'm a law prof. . . .   If I survive, my posts should start showing up again some time in the middle of the week.

Taken from the Wikimedia Commons, this image shows an example of a loaded touring bicycle with drop bars and 700c wheels.  The picture is taken on the Tibetan Plateau, in the Amdo Region. Brought to you courtesy of Keithonearth

[JT]

Guest Post by Professor Moshe Gelbard

We are always delighted to post contributions from Contracts Profs not currently associated with the blog.  Today we are pleased to introduce Moshe Gelbard, whose work may be familiar to some of our readers because of his presentations at the annual Contracts Law spring conferences. 

Professor Gelbard teaches at the Netanya Academic College, where he is a Senior Lecturer in the School of Law.  This past Spring Semster, he was a Visiting Professor at Touro College's Jacob D. Fuchsberg Law Center. He has two publications forthcoming in U.S. Law Reviews. His co-authored piece with David Elkins, The Remedy of Price Reduction in Mixed Legal Systems, is forthcoming in the Stetson Law Review, and his Pre-dispute Arbitration Clauses in Consumer Contracts, is forthcoming in the Touro Law Review. 

His guest post will appear later today.

[JT]

Heidi Anderson, Neal Katyal and the Contracts Angle in the Obamacare Decision

Yesterday, our co-blogger, Heidi Anderson (pictured left), was ahead of the curve, writing about the Court's decision on the Medicaid provision of the Affordable Care Act (Obamacare) when everyone else was writing about the individual mandante.  Heidi noted that Chief Justice Roberts, joined by Justices Breyer and Kagan, voted to strike the provision of Obamacare that would deprive states of all Medicaid funding if they rejected Obamacare's Medicaid expansion.  The four dissenters rejected Medicaid expansion in its entirety.  In so doing, both sides relied on contracts law concepts, which they understood in terms of undue influence but which Heidi described as more akin to an argument based in economic duress.  Given Chief Justice Roberts' characterization of the financial inducement in the Medicaid Provision as "a gun to the head" (Slip Op. at 51), we do seem to be in the realm of duress.

Today's New York Times contains an op-ed by Neal Katyal (pictured right), that continues Heidi's line of reasoning and illustrates the uncomfortable fit of contracts concepts in the constitutional context. As Katyal puts it:

The health care decision also contains the seeds for a potential restructuring of federal-state relations. For example, until now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds. And it does so in the context of Medicaid, which Congress created and can alter, amend or abolish at any time. The states knew the terms of the deal when they joined — and those terms continue to be enshrined in the federal code.

Katyal proceeds to identify other landmark federal legislation that could also be found unconstitutional based on the reasoning applied to the Medicaid expansion.  

In any case, Katyal makes clear that traditional contracts law concepts do not apply here. If they did, it would constitute duress or undue influence every time Google or other such internet service providers included provisions in their Terms of Service that permit them to "add or remove functionalities or features," "suspend or stop a Service altogether" or "stop providing Services to you, or add or create new limits to our Services at any time."  

Chief Justice Roberts' opinion is premised on the notion that the Federal Government knows that the states have grown dependent on Medicaid funding and that the threat to eliminate all such funding if the states do not accept Medicaid expansion is thus coercive.  As a matter of constitutional law, that may be right, but since one could not positively enjoin Google from changing its services based on the (highly plausible) argument that one had come to depend on those services, contracts law is not particularly helpful here.  

[JT]

Introducing Our Guest Blogger, Danielle Rodabaugh

Every year when I cover the Statute of Frauds, I think about the contracts that I learned were within the Statute: MYLEGS: contracts relating to Marriage; contracts that cannot be performed within one Year; contracts for the sale of Land; Executorship contracts; contracts for the sale of Goods in excess of $500; and Suretyship contracts.  The SoF case law that we cover in first-year contracts is always about goods, land, and the one-year limitation, so I've never really had to worry about the fact that I know nothing about suretyship.  

That may change now, because Danielle Rodabaugh (pictured) will be guest posting here starting tomorrow on topics relating to suretyship law.  

Danielle is the chief editor for SuretyBonds.com, an online surety bond insurance agency that works with professionals across the nation. As a part of the company's ongoing educational outreach program, Danielle writes informational articles that help construction professionals better understand the legal implications involved with the bonding process.

Danielle is the chief editor of the Surety Bonds Insider, an online publication that tracks legal developments within the surety industry and explains how they affect working professionals across the nation. As a graduate of the Missouri School of Journalism, Danielle has a special interest in writing about issues related to changing insurance and finance policies. 

We look forward to some enlightening posts.

[JT]

Summer Slow Down. . . . Off to Vietnam

I apologize in advance that my blogging will be light to non-existent in the next month.  I leave today to travel and then teach in Touro's summer abroad program in Vietnam.

Pursuant to my blogging contract, I believe I promised to post at least once a week. I haven't reviewed the contract in a while, but I believe there is an exemption for summer abroad programs.  Even if not expressly stated, I think the exemption is implicitly established by the previous conduct of Jeremy, our blog overlord editor.

If I don't see you on the blog, have a great month!

[Meredith R. Miller]

NY Times "Ethicist" on Charitable Subscriptions

We crossed virtual swords in the past with The New York Times' original ethicist Randy Cohen.  We reported on harassing him with angry letters denouncing his conflation of law and ethics.  Mr. Cohen saw the error of his ways and apologized sub silentio in a later column on which we reported here.

Now the Times' "The Ethicist" column is authored by Ariel Kaminer who is much better attuned to the distinction between ethics and law, as evidence in this week's column.  Two weeks ago, a correspondent asked Ms. Kaminer if it was permissible to renege on a pledge to a university after learning that the university engages in dubious labor practices.  Ms. Kaminer responded in her column that revoking a pledge is permissible because, "A pledge is a good-faith statement of intent, not a contract written in blood."  This week, Kaminer acknowledges a comment from a Palo Alto attorney, Geoff Rapoport, informing her that charitable pledges are enforceable because the law assumes that they have been relied.on, so her advice could expose her correspondent to a lawsuit.  Mr. Rapoport acknowledged that Ms. Kaminer is in the business of giving ethical advice, and that the ethcial and the legal "only sometimes overlap."  She agreed but regretted not having noted the possibility of legal liability.

Ms. Kaminer is extremeely conscientious to do so.  As she observes, while a suit is possible, it is not likely.  We note that, as the picture on the left indicates, the doctrine in question derives from Judge Cardozo's opinion in Allegheny College, about which we have posted in the past, the holding of which can be found summarized in Section 90(2) of the Restatement (2d) of Contracts.  It appears from Mr. Rarpoport's letter that California follows the Restatment (and Cardozo) on this issue.

[JT]

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

Omri 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]

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 Value, 2 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 #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]

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 Value, 2 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 #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]