ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, December 3, 2015

Farewell Post V: The Shark's Farewell (Move or Die)

Shark that stopped moving . . .

As editor of this blog, I would often tell contributors that a blog is a shark: it has to move or it dies.  That's why it is important to post often.  But it's also why it is good for us to change the guard from time to time.  After a while, one's posts tend to re-tread familiar ground, and it is time for me to get out of the way and let new voices come forward.

I am happy to see that some new contributing editors are already posting on the blog.  I wish them and the continuing editors happy blogging.  But their arrival suggests it is time for me to sign off.

I am moving to new hunting grounds.  Readers interested in my post-blog scholarship (deemed "interesting and recommended" by the Legal Theory Blog) can have a look at SSRN, where my newest piece just appeared.  Here's the abstract:

Originalism in constitutional interpretation continues to grow in its reach, its sophistication, its practical applicability and its popular support.  Although originalism first developed in the 1960s as a doctrine of judicial modesty, originalist judges are now far more confident in their ability to discern the Constitution’s original meaning and thus are willing to strike down legislative enactments inconsistent with that meaning.  Two aphorisms by the leading practitioners of originalism sum up originalism’s journey.  Justice Scalia, writing in the 1980s, conceded that originalism was merely “the lesser evil” and consoled himself with the Chestertonian dictum that “a thing worth doing is worth doing badly.”  Justice Thomas places fewer limitations on his own belief in originalist method and adopts as his motto “any job worth doing is worth doing right.”  The challenge for contemporary originalism is that it is not the sort of thing that G.K. Chesterton thought was worth doing badly, but it also may be the sort of thing that is very difficult to do right.


Anyone interested in my full farewells can find links to the other posts in this series below.  Thanks once again to Frank Snyder for inviting me to join this blog, to Paul Caron for creating the blog network of which this blog is a part, and to my fellow bloggers, past and present.  I have made a number of connections through this blog, and I hope that they will continue, as I continue to be interested in the subjects I have helped the blog cover over the past decade.

Farewell Post IV: Students and Tipping Points

Farewell Post III: Misplaced Anger

Farewell Post II: Still Crazy About Blogging after All These Years

Farewell Post I: Why Junior Faculty Members Should Blog

December 3, 2015 in About this Blog, Commentary | Permalink | Comments (2)

Wednesday, December 2, 2015

Joining the Team: Stacey Lantagne (Ole Miss)

Greetings! I am very excited to be joining the fantastic ContractsProf Blog team, and I am especially grateful to Myanna Dellinger for providing the opportunity. I can't wait to get started digging into contract law issues here.  

I am an Assistant Professor at the University of Mississippi School of Law, and my specialty is actually intellectual property, with a focus on copyright and trademark. In addition to dealing with IP and entertainment law contracts in my classes, I also teach first-year Contracts.

I've devoted a lot of my scholarly energy to the IP implications of fandom (if you want to talk to me about fanfiction, my inbox is always open!) and am more broadly interested in the ways in which legal regimes get practically interpreted by laypeople in everyday life. Of course, in our contract-heavy lives in which every website we visit assumes we've read their terms and conditions, inexpert understandings (and misunderstandings) of contract law arise all the time (my favorite is the citation to the UCC to protect the privacy of Facebook statuses that circulates every once in a while). I am really looking forward to blogging about these and other contract law issues and exploring contract law with all of you and the rest of the awesome contributors!

December 2, 2015 in About this Blog, Contract Profs | Permalink | Comments (0)

Tuesday, December 1, 2015

Joining the Team: Mark Edwin Burge (Texas A&M)

Changes are underway at the ContractsProf Blog, and I am delighted to be one of them.  Thanks to Myanna Dellinger for giving me the opportunity to join a team building on over a decade of quality content established by our founder (and my faculty colleague) Frank Snyder, outgoing editor Jeremy Telman, and many others throughout the years.

Who is this guy, anyway? Glad you asked. I am an Associate Professor of Law at Texas A&M University School of Law in Fort Worth, proud home for two years of the esteemed International Conference of Contracts that, as Jeremy mentioned here, has been closely associated with this blog since its inception. My major scholarly interests are in contracts (seriously, did you think I would NOT say "contracts" here?), commercial law (especially payment systems), and the interaction of both fields with legal skills and practice. I came to the academy after eight years of practice in the areas of business and commercial litigation and related transactions. Despite some occasional flirtations with theory, I have yet to shake off my greater interest in how lawyers actually make things work. So I've learned to live with that, and I'm most fortunate to be at a law school with colleagues and an administration who support the grab-bag of things I do.

My current work, which I hope to discuss here occasionally (while skillfully avoiding off-putting narcissism in the process), involves the intersection of private contract law with public regulation in the rapidly developing area of emerging payment systems. Where exactly are the best dividing lines between private and public law, especially in an age where the lag between technology and law seriously strains the institutional capacity of legal systems? Perhaps we can find some answers to that overarching question and have some fun along the way. I should, in the interest of full disclosure, confess that I think contract law is fun.

I look forward to the adventure, and I appreciate anyone who is along for the ride.


December 1, 2015 in About this Blog, Commentary, Conferences, Contract Profs, E-commerce | Permalink | Comments (0)

Sunday, November 29, 2015

Exciting Changes to Your ContractsProf Blog Team

As you perhaps know, Jeremy Telman wishes to stop blogging for the ContractsProf Blog after around a decade of doing so. He is posting a small series of farewell posts these days, but will not blog anymore after the end of the semester. We wish him very well in his diverse future professional efforts.

I have promised to take over as the lead editor of the ContractsProf Blog. I have big shoes to fill after Jeremy’s departure, but will try my very best to post as many timely, thought-provoking and, hopefully, quirky posts as possible. As you may have noticed, I tend to like to focus on issues that relate to consumer problems, environmental matters, and the new economy. I also plan to incorporate a global angle when I come across relevant material.

Additionally, I am building up and continuing a great team of co-bloggers. First, Nancy Kim, Jeffrey Harrison and Michael Malloy will continue blogging when they can. I am also welcoming new bloggers Stacey Lantagne and Mark Burge. Over the next few days, they will introduce themselves directly online.

Happy end of the semester!

November 29, 2015 in About this Blog | Permalink

Monday, November 23, 2015

Farewell Post III: Misplaced Anger

Rage of AchillesA lot of people are angry at the legal academy.  They are angry about falling bar passage rates and limited career opportunities.  They are angry that law schools do not do enough to prepare them for the bar or for practice and that tuition is too high given what traditional legal education can accomplish.  The anger, to the extent that it comes from law graduates who worked hard and still cannot find satisfying work as attorneys, is understandable.  Directing that anger at law professors is also understandable but in most cases unjustified.  

We did not create the market conditions.  We, for the most part, are not even the architects of the policies that determine admissions standards or tuition.  We are very limited in the extent to which we can innovate because we are subject to ABA educational guidelines that increasingly (and often unhelpfully) micro-manage our operations.  Almost every innovation that would improve legal education would also make legal education more expensive.  

I want to outline two arguments in this post.  First, legal academics and administrators at unranked law schools are people of good will who are trying to continue to serve people who ardently aspire to become attorneys.  Second, the legal profession is also full of people of good will, but collectively the legal profession is behaving as professions always do in times of economic contraction: they are raising barriers to entry so as to protect their incomes and their self-created monopoly in the provision of specialized services.

What is going on at unranked law schools is pretty simple.  For decades, such law schools accepted students who, for the most part, could not have gotten in to more highly-ranked law schools.  For decades, the overwhelming majority of such students went on to pass the bar and enter the legal profession.  As Michael Simkovic and Frank McIntyre have shown, those students are financially better off for having done so, and without the lower-ranked schools, they never would have had the careers they now have.  Unranked law schools started dipping deeper into the applicant pool when that pool shrunk considerably in size, believing that they had the ability to identify students who could succeed in law school and in the legal profession and that they could address the needs of the academically underprepared with beefed-up academic success programs and curricula more geared towards bar preparation.  

Evidence is mounting that law schools were overly sanguine about their ability to help students in the bottom quartile of the national LSAT pool.  But evidence is also beginning to suggest that the pool has bottomed out and begun to grow again.  That should mean that unranked law schools that are competing for students may have a larger pool of students to compete over, and so long as schools learn their lesson and keep growth and costs down, that should mean that they can begin to increase their admissions standards back towards where they were a decade ago.  In five years, the crisis may well have passed and the law schools over which the sword of Damocles currently hangs will be crowing about gaudy bar passage and employment rates.  

This result is far preferable to shutting down existing law schools.  Right now, we have overcapacity, but it law schools disappear, they are unlikely to reappear.  And if, as seems likely, the law schools that close are the unranked law schools, the losses will hit underserved communities the hardest.  I will have more to say about who those communities are and why keeping them out of the legal profession is a big problem in the next post in this series.

The ABA is the guardian of our profession.  What do professions and professional organizations do?  Following Magali Sarfatti Larson, we can conceive of the legal profession as a group of trained experts attempting to establish a monopoly over a market in services.  The key to control over a market for professionals becomes control over the production of producers. By limiting the supply of credentialed practitioners, professionals assure themselves a favorable bargaining position in the market for their knowledge and services. (Magali Sarfatti Larson, The Rise of the Professions: A Sociological Analysis 29-30 (1977)). As Larson points out, professions do not so much meet existing needs as shape or channel the needs of consumers  (id. at 58).  In order for a profession to succeed, it needs to convince the members of society as a whole that its services are necessary and that only people with a certain kind of expertise and credentialing are qualified to provide such services.   

And so, when the going gets tough, barriers to entry rise.  Recent trends of (often steeply) lower bar passage rates and the steady drumbeat calling for greater scrutiny of law schools viewed as underperforming are consistent with how Larson's model predicts professional organizations will respond to economic pressures.  But it also threatens to add a new and ugly chapter to the history of the ABA.

Many have written about the racist bias underlying the establishment of the ABA (e.g., Daria Roithmyer, Deconstructing the Distinction between Bias and Merit, 85 Cal. L. Rev. 1449, 1476 (1997)).   I do not think there is any such intentional bias at work today, but the organizations so eager to mete out death sentences to law schools that serve underrepresented minorities and the academically underprivileged need to think about what the legal profession will look like in 2025 if their wishes all come true.   

November 23, 2015 in About this Blog, Commentary, Teaching | Permalink

Wednesday, November 18, 2015

Farewell Post II: Still Crazy About Blogging after All These Years

BeforeI'm not stopping because I'm burned out.  I still love blogging, and I wouldn't be surprised if, after a hiatus, I want to come back to blogging in some form.  I'm stopping because I think I've maxed out on the benefits I can derive for myself and my law school from this enterprise, and it is time for me to find new ways to contribute.  Also, look how blogging has aged me, as evidenced in these photographs of me taken before I started blogging (left) and after (right).

ShinerMoving on feels especially urgent given what is going on in the legal academy and in unranked law schools like mine in particular.  Posts III and IV in this series will elaborate on that subject.  Given the challenges that my current students face and that I face in teaching them, I am contemplating a complete re-tooling of my approach to teaching contracts.  I have requested a year off from teaching contracts next year so that I can teach a couple of legal writing/legal reasoning courses and get better insights into where my students are at in those areas when they get to law school.  I also need to learn from my skills-training colleagues so that I can better incorporate skills training into doctrinal teaching when I go back to teaching contracts, as I very much hope to do.  

At the same time, at age 52, I am beginning to think about what remains of my career as an academic and what sort of an impact I think I can have in the 10-15 years that remain to me as an active scholar and teacher.  It is already clear to me that my most important impact is going to be in the classroom.  Although I would like to think that I have original ideas and can contribute to an academic debate that can move the law or inform policy decisions, the likelihood of that is small, as it is for most of us mortals.  Still, perhaps out of vanity, I have three book projects that I think will keep me occupied into my sixties.  One is an edited collection on Hans Kelsen, which is under contract and which I hope will come out next year.  The second is an intellectual history of originalism in constitutional adjudication, as a judicial practice, an academic approach and a popular movement.  The third will be on theories of public international law,  I have a typology of public international law theories that I use in presenting the material to my students.  I've always wished there were a book that did this the way it needs to be done. Oona Hathaway and Harold Koh edit a collection which is very useful, but for some reason they have not decided to organize the material the way I organize it.  I'm kidding.  My organization is unique, and I will only know if it makes sense once the book is well underway.  So, I have assigned myself the task of writing that book.

None of these projects relates to contracts law, and so the prospects for me returning to contracts scholarship before retirement are remote.  I expect that I will continue to follow the blog, use it as a resource, refer students to it, and feel pride that I contributed to it for nearly a decade.  But I need to allocate my dwindling intellectual energies elsewhere.  Producing a book every five years is something I think I can still handle while focusing on Job 1, which is helping my students pass the bar and prepare for their legal careers.

November 18, 2015 in About this Blog, Commentary, Teaching | Permalink | Comments (0)

Monday, November 16, 2015

Farewell Post I: Why Junior Faculty Members Should Blog

I have told my co-bloggers and the Blog Emperor that I intend to step down from the blog at the end of the semester.  I am leaving things in good hands.  Nancy Kim will continue as a contributing editor, and Myanna Dellinger has agreed to step up as editor.  I hope that this post will aid Myanna in her efforts to attract new contributors.  The more different voices we feature on the blog, the more we can attract new readers and move others from occasional to habitual readers.  

Before I go, I have a few things to get off my chest, and I will do so in a final series of posts.

SnyderFirst come the thanks (and they will come again at the end).  Nearly ten years ago, I sent a Limerick to Frank Snyder (pictured) and asked him if he would be interested in posting it on this blog.  He responded by inviting me to become a regular contributor.  He showed me the ropes and roped me in to the contracts law community, and for that service, I owe him continual thanks, as the benefits continue to accrue.  While on the blog, I have had many great colleagues, who have helped keep the blog going and added new and interesting perspectives.  Two such colleagues, Nancy Kim and Meredith Miller, merit special thanks because of their long tenure on the blog and because their contributions moved the blog in new directions, both scholarly and quirky, that expanded our readership in ways we could not otherwise have done.  Both served me as sounding boards both in my contracts scholarship and in connection with issues that arose on occasion relating to the blog.  It is a bit odd to describe as friends people you have only spoken with face-to-face on a handful of occasions.  Yet, in unreflective moments, when I confess that I like to go to the International Conferences on Contracts because I get to see my friends there, I have Frank, Meredith and Nancy (and others) in mind.

Which brings me to the second subject I want to tackle in this post.  When I started blogging, I was untenured, and there were a few articles circulating (as well as many more blog posts) suggesting that it might not be a great idea for junior faculty members to blog.  The main concern was that blogging would interfere with serious scholarship.  Based on my own experience, I think this is nonsense.  Blogging can certainly spur scholarship, but I have never been much of a contracts scholar (with the exception of my forthcoming article so-authored with Nancy Kim, my publications tend not to be about contracts).   But blogging also is scholarship, and it is scholarship that is much, much, much more widely read than are law review articles.  This blog gets about 300 unique visitors A DAY.  I think I am doing well if one of my articles gets to 300 downloads TOTAL on SSRN.

And my posts on this blog have been cited in law review articles.  It doesn't happen all that often, but when it does, it is always for the unique substance of the blog post.  My law review articles are sometimes cited for that purpose, but probably more often, my law review articles are cited for some proposition that the author could have found in ten other law review articles.  

But the benefits of blogging to a junior faculty member can also lie elsewhere.  Blogging has certainly kept me on top of new developments in a field in which I teach.  But beyond that, blogging has helped me establish connections with contracts professors throughout the country and sometimes even internationally.  Through our online symposia, I have gotten to work with contracts scholars who are doing the most exciting work in the field.  I hope for better and not for worse, I am known as a contracts professor in ways that I think other contracts professors at "unranked" law schools generally are not, and I expect that my being known (for better and not for worse) also redounds to the benefit of my law school.  By way of contrast, I am not equally well known in the field of international law, although that is where I do most of my writing, and in the community of American scholars who work on Hans Kelsen . . . .  Just joking, all six of them know me.

On the more personal and less professional level, I have had innumerable, rewarding conversations with contracts professors at various conference and gatherings.  Often, these conversations begin with something like, "I saw your post about . . . ." or "Oh yes, I know you from the blog . . . "  We academics are awkward people.  The blog provides a ready ice-breaker, and so I have the blog to thank for providing the gateway to many rewarding exchanges.

For years, I have introduced myself to students as "the editor of the ContractsProf Blog, the official blog of the AALS Section on Contracts."  As I look out at their impassive faces, I tell them that they have now heard my best pick-up line.  I love the joke, especially since I don't know what it means to be the official blog of the AALS Section on Contracts.  I also love it because I think my students think it might be an impressive thing but also that my joking about suggests that I don't take myself too seriously.  

They are dead wrong about that.  When my teenage daughter gets too sassy, I remind her that I am a famous contracts professor.  I sign various school forms "D. A. Jeremy Telman, FCP," and I explain that FCP stands for famous contracts professor. "Dad," my daughter groans, "you are not a famous contracts professor."  "Oh yeah?" I counter.  "Can you name one who is more famous?"

She cannot, and now I have a plaque (Fathers' Day 2015) to prove it!


November 16, 2015 in About this Blog, Commentary, Teaching | Permalink | Comments (0)

Friday, September 11, 2015

Weekly News Roundup

Richard_III_earliest_surviving_portraitVery excited to be able to report on a UCC case from Indiana, JMB Manufacturing, Inc. v. Child Craft, LLC decided by the 7th Circuit.  The opinion is long, but Judge Hamilton's introduction captures its spirit.

This case presents a merchant’s creative effort to avoid the limited remedies that contract law provides for a seller’s delivery of non-conforming goods. After the seller delivered about $90,000 worth of nonconforming wood products, the buyer sought recovery from both the seller and its president personally for tort damages on a tort theory, that they negligently misrepresented the quality of the delivered goods.

The district court ruled in favor of the buyer and awarded damages of more than $2.7 million on the theory that the non-conforming goods caused the complete destruction of the buyer’s business. This damages theory echoed the proverb of Poor Richard’s Almanack (“A little neglect may breed mischief; for want of a nail, the shoe was lost; for want of a shoe the horse was lost; for want of a horse the rider was lost; for want a rider the battle was lost.”), and Shakespeare’s story of Richard III [pictured], where the loss of a horse led in turn to the loss of a battle, the death of a king, and the loss of a kingdom. Cf. Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854) (damages for breach of contract limited to consequences reasonably contemplated by both parties when they made contract).

We reverse the award of damages against the seller and the seller’s president, but for reasons that do not depend on the flawed “want of a nail” theory. Under Indiana law, a buyer who has received non-conforming goods cannot sue a seller for negligent misrepresentation to avoid the economic loss doctrine, which limits the buyer to contract remedies for purely economic losses. See Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010). Second, there is no basis for transforming the buyer’s breach of contract claim into a tort claim for negligent misrepresentation to hold the seller’s president personally liable. See Greg Allen Construction Co., Inc. v. Estelle, 798 N.E.2d 171 (Ind. 2003). In all other respects, we affirm the judgment of the district court. 

The opinion includes a lengthy discussion of Indiana's economic loss doctrine.   

The Complete Colorado provides this report about a court's grant of a preliminary injunction empowering a teachers' union to continue in its role as sole entity empowered to negotiate a new contract with the local school board.  The ruling keeps the union's existing contract in force until its breach of contract claim can be heard, but the grant of the P.I. suggests the likelihood that the union will succeed on the merits of its claim.  But the ultimate remedy remains unclear.

And in news that will make you say, "What the . . .???" we learn from this article from the Washington Times that Ashley Madison claims that its new users are flocking to its website after news of its massive security breach, about which Myanna Dellinger has written herehere and here.   Other than quoting a spokesperson for the company who blathered about happy return customers, he Times does not speculate on the relationship between the scandal and the increase in users.  Knock yourself out.


September 11, 2015 in About this Blog, In the News, Labor Contracts | Permalink | Comments (0)

Tuesday, August 18, 2015

Forthcoming Scholarship from Your Blog Editors

Nancy_kim Telman2Nancy S. Kim and I have an article, Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent, forthcoming in the Missouri Law Review, and that journal has been kind enough to feature our abstract on their homepage.  

We look forward to seeing this one in print, and as usual the work has improved throughout the editing process, but if you can't wait for the final version, a draft is still up on SSRN.

Or, if you want the elevator speech, you can watch this video.


August 18, 2015 in About this Blog, Recent Scholarship | Permalink | Comments (0)

Tuesday, April 28, 2015

Legal Education in the News and on the Blogosphere

I began this series with the question: Why Is the Legal Academy Incapable of Standing Up for Itself?  Paul Campos thinks we are doing far too much of that, going so far as to compare those of us who think legal education is worth defending with Holocaust deniers.   Fortunately for us, I suppose, this blog isn't on anybody's radar, but in any case I think it bears noting that I value the contributions of people who have shed critical light on legal education, although I don't agree that it is anything approaching a scam.  I have gained valuable insights from the work of Law School Transparency, Brian Tamanaha, Deborah Merritt, and Bill Henderson on our sister blog, The Legal Whiteboard, among others.

That said, there is another side of the story.  Legal education is constantly re-forming itself in fundamental ways.  Clinical education has only been with us since the 70s; legal writing programs took off in a major way in the 80s and 90s.  Both represent fundamental shifts in pedagogy in response to perceived deficits in the legal education model.  Those programs continue to develop and expand, now supplemented with robust ASP programs.  All of these things jack up the costs of legal education and all in the name of better preparing students for the profession.  Nobody is fiddling while our students burn.  In fact, at this point, it is clear that everybody in the debate passionately believes that they have the best interests of our students at heart, and I do not doubt their sincerity.  

Meanwhile, just when you thought it was safe to read what the New York Times has to say about legal education, we get another one-sided piece based on a few anecdotes and one piece of scholarship.  I thought I had a lot to say in response, but others have beaten me to it, so I will just provide the links:

Simkovic on Leiter

Stephen Diamond on his own blog

Brian Galle on Prawfsblawg

Deborah Merritt, on whose scholarship the piece relies, on The Law School Cafe 

Links to Related Posts:

The Current Series 

VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself?

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

April 28, 2015 in About this Blog, Commentary, In the News, Law Schools, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2015

New Scholarship from Your Blog Editors

Nancy_kim TelmanOne of the great pleasures of working on the blog is the opportunity to have virtual colleagues as a subject-matter specific supplement to one's local colleagues.  I have for many years admired Nancy Kim's scholarship, and she has been for me, a sounding board and a gateway for entering into the scholarship on electronic contracting, with an especial focus on wrap contracts.  

Now, I am happy to announce that we have collaborated on an article, "Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent."  The article is forthcoming with the Missouri Law Review and available in draft on SSRN.  Here is the abstract:

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the myth of contractual consent muted criticisms that otherwise might be directed at the real data-mining masterminds. By clicking “agree,” consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put and the entities (including the federal government) with whom their information would be shared. We also question the distinction between governmental actors and private actors in this realm, as the Internet giants increasingly exploit contractual mechanisms to operate with quasi-governmental powers in their relations with consumers. We propose that, in their efforts to better protect consumer data, regulators and policymakers should demand more than mere contractual consent as an indicator of consumers’ grant of permission for the use of their data.

Here is a short (2 minute) video of me discussing the article:


March 17, 2015 in About this Blog, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Back in the Saddle

Yael_ronenI have been traveling the past two weeks, leading a group of 25 of my law students on a two-credit course on International Humanitarian Law in Israel and Palestine.   How does a U.S. contracts prof teach a course on the law of armed conflict in Israel?  I get by with a little help from my friends.  We teamed up with an Israeli law college, Sha'arei Mishpat Academic Center (SMAC), and I had the pleasure of c0-designing, co-directing and co-teaching the program with the very accomplished Professor Yaël Ronen (pictured).  My students' experience was enriched by the fact that eight Israeli students from SMAC also participated in the course.

We partnered with Mejdi Tours, which provided us with two tour guides, one Jewish Israeli, one Muslim (Palestinian) Israeli.  Together they gave us their versions of the dual narrative that continues to unwind, side-by-side, each informing the other even when the two sides do not acknowledge the other's perspective.  Nothing beats teaching a course in the place where the subject matter of the course has been written and is being supplemented on a continual basis.

My students chronicled our trip as we went, and those chronicles are in the process of being posted on a Mejdi Tours blog.  While we were teaching our students international humanitarian law, they gave me a lesson in the art of the selfie.

Selfie Lesson

Thanks to Myanna Dellinger and Nancy Kim for keeping stuff happening on the blog while I was off on my frolic and detour.  We now return to our regular programming. . . .

March 17, 2015 in About this Blog, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2015


Things may be a big sleepy here on the blog for the next two weeks.  I leave today for a two-week Spring Break course with my law students.

I hope that I will be able to post a few times during the trip, at least keeping up with our regular weekly features, but things might get a big hectic once I leave the country.

February 26, 2015 in About this Blog | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Your Smart TV May Be Engaged in Intelligence Work

Back in 2013, we mused about the seeming disconnect between public outrage at NSA data mining and the lack of comparable outrage with respect to private data mining.  Nancy Kim and I have been writing in this area, and a recent report in the ABA Journal provides additional fodder for our scholarship.  

One of the things that makes television's "smart" these days is that they have the ability to respond to voice commands.  If you have this feature on, the television transmits your information to a third party, according to Samsung.  If you turn the voice recognition feature off, your television still gathers the data but it does not transmit it.  

Photo by LG

Over at Salon, Michael Price gives us reasons why we should be afraid of our smart tvs.  Having reviewed his television's 46-page privacy policy, Price concludes that it has the capability to collect a staggering amount of data.  One could turn off the television's "smart" features, but that can affect your television's ability to do some of the things you bought it for.  Just as we cannot choose which channels the cable providers send us, we can only choose from packages, we apparently cannot choose to have a television with some "smart" features unless we are willing to invite Big Brother into our living rooms.

February 16, 2015 in About this Blog, Commentary, Television, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Thursday, November 27, 2014

Thanksgiving Feast: Meredith Miller Top Ten List

MeredithThis is a rather unconventional list.  I have just gone back into our archives and picked out one my favorite Meredith posts from each of the ten years since she started blogging here.  It's amazing how well I remember each of these posts!

Meredith Vintage 2014: John Oliver and Sarah Silverman Tackle Payday Loans

Meredith Vintage 2013: Breaking: Bieber Requires NDA of Guests in His Home

Meredith Vintage 2012: Markets on the Mekong

Meredith Vintage 2011: Don't Buy This: 'Tis the Cyber Season of Reverse Psychology

Meredith Vintage 2010: A Hairy Breach of Contract Suit against Paris Hilton 

Meredith Vintage 2009: Can Mad Men Bring Sexy Back to Contracts?

Meredeith Vintage 2008: Brown on Halloween, Promises & Signed Documents

Meredith Vintage 2007: Law Prof Takes on Cell Phone Company

Meredith Vintage 2006: British Court Must Watch Jerry Springer Show

Meredith Vintage 2005: The Commonality of Computers, French Fries and Arbitration

It was hard to make these choices.  Lots of competition in the Meredith archives!


November 27, 2014 in About this Blog, Celebrity Contracts, Television, Travel | Permalink | Comments (1) | TrackBack (0)

Friday, November 21, 2014

Farewell Meredith!

MeredithMeredith Miller started blogging here before I did.  She holds the record for the contributing editor with the longest tenrue on the blog.  

Her lively, quirky posts were one of the things that attracted me to this site and made it worthwhile to keep coming back.  She has been a steady companion, sounding board and dedicated contributor to our blog, and we will miss her contributions.

But life moves on, and we can only thank Meredith and wish her well in her new endeavors.  In her farewell e-mail to the rest of us, Meredith referenced her blogger's guilt.  Blogs are like sharks; they either move or die.  There have been many weeks when I despaired of finding the time and the content to keep this blog lively when Meredith would post a story that I knew would attract interest and buy the rest of us some time away from the blog.  After nearly ten years of providing us stories and laughts, he has certainly earned her release from blogger's guilt. 

I am hoping to compile a top ten list next week of my favorite Meredith posts.  Please feel free to nominate your favorites in the comments.

November 21, 2014 in About this Blog, Commentary | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Good Night and Good Luck

I have been a contributing editor at ContractsProf since 2005.  The blog has provided a wonderful platform to share contracts-related news stories (as bizarre as possible), summarize important recent cases and self-promote my scholarship.  When Frank Snyder roped me into this nearly a decade ago, alot of things were different in varying degrees, especially: the Internet, law schools and the market for legal services.  Frank told me at the time that blogging might seem thankless, but it is not.  He said that every so often you meet someone at a conference and they realize you are that person who pointed out the connection between Eminem and Sister Antillico and the NDA Justin Bieber presents to house guests.  Frank was right.  I've met a lot of great people through the blog and its lead to meaningful conversations about contract law and other things.

One of the most rewarding parts of blogging is the record of posts we've created over the years.  Sometimes I will do a "quick and dirty" search on Google for the answer to a contracts question and I find the answer on this blog.  

I have come to the realization that I just do not have the time to commit to the blog right now.  In fact, earlier this week I made a list of things I was going to quit (quite liberating; highly recommended).  I am clearing the decks to focus on writing projects and other pursuits, including my new role at Touro as Director of Solo & Small Practice Initiatives.  It is where my heart is right now, and I am going to follow that.

In short, thanks Jeremy and previous blog overlords for letting me holdover this long.

With much gratitude for this opportunity, here's a reprise of turkey leftovers in time for Thanksgiving.

Goodbye Movie Clips by Ian_Buckwalter

November 20, 2014 in About this Blog, Contract Profs | Permalink | TrackBack (0)

Friday, October 24, 2014

The New York Times's "The Upshot" Column on Wrap Contracts

Yesterday's New York Times included a "The Upshot" column by Jeremy B. Merrill.  The print version was entitled Online, It's Easy To Lose Your Right to Sue [by the way, why can't the Times be consistent in its capitaliziation of "to"?], but the online version's title tells us how easy, One-Third of Top Websites Restrict Customers' Right to Sue.   The usual way they restrict the right is through arbitration provisions and class-action waivers.  They do so through various wrap mechanisms so that consumers are bound when they click "I agree" to terms they likely have not read and perhaps have not even glanced at.  

Some websites attempt to bind consumers by stating somewhere on their websites that consumers are bound to the website's and the company's terms simply by using the company's website or its products (I'm looking at you, General Mills).  The only thing surprising about this, given the Supreme Court's warm embrace of binding arbitration and class action waivers, is that two-thirds of websites still do not avail themselves of this mechanism for avoiding adverse publicity and legal accountability.

As I was reading this article, it started to sound very familiar -- a lot like reading this blog.  And just as I was beginning to wonder why the Times was not ' quoting our own Nancy Kim, the article did just that:

Wrap Contracts“Courts have been very reluctant to say that browsewrap is not enforceable,” said Nancy S. Kim, a professor at the California Western School of Law and the author of a book about online contracts.

When courts decide whether a website’s terms can be enforced, they look for two things, Ms. Kim said: First, whether the user had notice of the site’s rules; and second, whether the user signaled his or her agreement to those rules. Courts have ruled that simply continuing to use the site signals agreement. When browsewrap agreements have been thrown out, as in the Zappos case, courts have said that the site’s link to the terms wasn’t displayed prominently enough to assume visitors had noticed it.

Congratulations to Nancy on such prominent notice of her scholarship!

And congratulations to the Times for paying attention!


October 24, 2014 in About this Blog, Contract Profs, In the News | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 7, 2014

Introducing our Guest Blogger, Robin Kar's Coda to Our Virtual Symposium on More That You Wanted to Know

KarProfessor Robin Kar is a professor of law and philosophy at the University of Illinois College of Law. He is a faculty affiliate of the Illinois Law and Philosophy Program, the Beckman Institute for Science and Technology (in the Cognitive Psychology Research Group), the Illinois Program in Law, Behavior and he Social Sciences, and the Illinois Network for Neurocultures.  He is Director of the Illinois Center for Interdisciplinary and Comparative Jurisprudence, and a Project Leader for the Illinois Program on Cultures of Law in Global Contexts.  He has a PhD in philosophy, with a special focus on moral psychology, moral, legal and social philosophy, meta-ethics, rational choice and game theory, and the foundations of economics and the social sciences.  Some of his work on moral psychology, the psychology of obligation, and the nature of law and legal obligation can be found in pieces like The Deep Structure of Law and Morality, The Psychological Foundations of Human Rights, Hart’s Response to Exclusive Legal Positivism, and The Two Faces of Morality

Readers of the blog are also likely already familiar with Professor Kar’s recent SSRN Top Ten hits on contract law and theory, Contract as Empowerment: A New Theory of Contract and Contract as Empowerment Part II: Harmonizing the Case Law, along with his piece The Challenge of Boilerplate.  Kar teaches contract law and wide array of jurisprudence and legal theory courses, including seminars like morals, markets and the law.

Professor Kar’s posts serve as a sort of coda to our our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure 

Professor Kar will present his argument in four parts:

Part I: The Proverbial “Egg” suggests that three ungrounded premises of the classical law and economics movement have often caused many people to think that mandatory disclosure regimes have an unwarranted degree of support. 

Morethan Part II: Breaking Out of the Shell describes More Than You Wanted to Know as emerging from the classical law and economics paradigm but as able to challenge one of its central dogmas because it is willing to depart from two of the three core assumptions associated with that classical tradition.  The book seeks to answer psychological and empirical questions based on real psychological and empirical research rather than ungrounded psychological premises and abstract theoretical modeling. This explains why the book is better able to track the truth about mandatory disclosure regimes.   

Part III: What Is This Emerging New Life? outlines a better and even more broadly interdisciplinary paradigm that Professor Kar sees as potentially emerging from these developments. This research program would draw not only on psychological and empirical research to answer any psychological and empirical questions relevant to contract and consumer protection law but also on a broader range of philosophical methods of argumentation to answer any normative questions relevant to these topics. Part III argues that further development toward this interdisciplinary collaboration is needed for contract law studies to better track the truth.      

Part IV: Discarding the Last Remnants of the Old Shell suggests that we still have a way to go in freeing ourselves from the limitations of the classical law and economics paradigm.  It describes how this problem still causes many scholars to ask the wrong normative questions when asking how best to reform consumer protection law—as illustrated both by More Than You Wanted to Know and many of the responses to it in this symposium. This has led to an increase in knowledge about the psychological and empirical facts, but even more uncertainty and less consensus over how best to reform consumer protection law in light of them.  This problem can only be fully addressed by attending better to the right normative questions. 

So what are the right normative questions, you ask?  Stay tuned to find out!

October 7, 2014 in About this Blog, Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 30, 2014

Ben-Shahar & Schneider Symposium: One-Stop Shopping