ContractsProf Blog

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

Tuesday, April 28, 2015

Caveat Emptor and Law School Transparency

In this blog series, we recently raised the issue of whether there is sufficient transparency in relation to law schools via, for example, third-party “watchdog” websites and the law schools’ required ABA disclosures.

In my opinion, transparency is a boon to potential law students in this context.  Granted, much information is publicly available to anyone considering law school nowadays.  But for now, choosing a law degree still remains a surprisingly popular choice despite so many warning signs.  Caveat emptor is still a quasi-viable doctrine, that’s true, and some potential incoming students should, as potential future lawyers, learn to discern hope and belief from facts.  But do they?  Not so much, it appears.

Unfortunately, statistics still show that nationwide, only 51% of law graduates are employed in law firm jobs, well below the trend over the past 25 years.   I know, I know, not everyone wants to work for a law firm, but still; only half of our graduates getting a typical job is astonishingly shocking, I think.  An ABA website function lets the general public find out the number of “bar passage required” jobs held by 2013 graduates – not impressive unless the school is highly ranked or in a relatively remote area of the nation.  See another list of the best and worst performers here.

To put this in perspective: the average debt taken on by law school graduates is $84,000 (for public law schools) and $122,580 (for private law schools); a 37% increase over eight years.  Another source found the 2012 median debt to be $140,616.   So, a ballpark figure shows that an “average” student may well be more than $100,000 in debt for a – certainly in some states such as California – less than 50/50% chance of getting a “real” law job. 

Of course, hope springs eternal, and many students beat the odds and end up, over time at least, in good and hopefully mentally rewarding jobs.  For now, though, the more pressure that’s exerted on keeping law schools honest in relation to job prospects, debt, etc., the better, in my opinion.

April 28, 2015 in Commentary | Permalink | Comments (0) | TrackBack (0)

Thursday, April 23, 2015

On Issue-Spotting and Hiding the Ball

As for the series on law school instruction and law schools in general that Jeremy started here recently: count me in!

I agree with Jeremy’s views that issue-spotting is very important in helping students develop their “practical skills,” as the industry now so extensively calls for.  As Jeremy and Professor Bruckner do, I also never give up trying to have the students correctly issue spot, which in my book not only means spotting what the issues are, but also omitting from their tests and in-class analyses what I call “misfires” (non-issues).  In my opinion, the latter is very necessary not only for bar taking purposes, but also in “real life” where attorneys often face not only strict time limits, but also word limits.

But I’ll honestly admit that my students very often fail my expectation on final tests.  Some cannot correctly spot the issues at all.  Many have a hard time focusing on those aspects of the issues that are crucial and instead treat all issues and elements under a “checklist” approach overwriting the minor issues and treating major issues conclusorily.  Yet others seem to cram in as many issues as they can think of “just in case” they were on the test (yes, I have thought about imposing a word limit on the tests, but worry about doing so for fear of giving any misleading indication of how many words they “should” write, even if indirectly so on my part). 

Maybe all this is my fault … but maybe it isn’t (this too will hopefully add to Professor Bruckner’s probably rhetorical question on how to teach issue-spotting skills).  Every semester, I post approximately a dozen or so take-home problems with highly detailed answer rubrics.  I only use textbooks that have numerous practice problems long and short.  I review these in class.  I also review, in class, numerous other problems that I created myself.  I give the students numerous hints to use commercial essay and other test practice sources.  Yes, all this on top of teaching the doctrinal material.  All this is certainly not “hiding the ball.”  Frankly, I don’t really know what more a law professor can realistically do (other than, of course, trying different practice methods, where relevant, to challenge both oneself and the students and to see what may work better as expectations and the student body change).

So what seems to be the problem?  As I see it, it doesn’t help that at least private law schools at the bottom half of the ranking system have to accept students with lower indicia of success than earlier.  But even that hardly explains the problem (who knows what really does).  Some law schools have to offer remedial writing classes and various other types of extensive academic support to students in their first semesters and beyond.  Some of the problem, in my opinion, clearly stems from the undergraduate-level education our students receive.  In large part, this makes extensive use of multiple-choice questions for assessments and not, as future lawyers would benefit from, paper or essay-writing tests or exercises.  Thus, undergraduate-level schools neither teach students how to spot "issues" from "scratch" nor do they teach them how to write about these.  Numerous time have my students told me that they have not really written anything major before arriving in law school.

Why is that, then?  Isn’t that problem one of time and resources; in other words, the fact that not just law professors, but probably most university professors, are required to research and write extensively in addition to teaching and providing service to their institutions?  For example, see Jeremy’s comments on his busy work schedule here.  Something has to give in some contexts.  At the undergraduate level, maybe it’s creating and grading essays and instead resorting to machine-graded multiple-choice questions and not challenging students sufficiently to consider what the crux of a given academic problem is.  Just a thought.  I am, of course, not saying that we should not conduct research.  I am saying, though, that I find it frustrating that lower-level educations, even renowned ones, cannot seem to figure out how to use whatever resources they do, after all, have to train their students in something as seemingly simple as how to write and how to think critically.

At the law school level, some “handholding” and various types of practical assistance is, of course, acceptable.  But to me, the general trend in legal education seems to be moving towards a large extent of explaining, demonstrating, giving examples, setting forth goals, assessments, and so forth.  I agree with what Jeremy said in an earlier post that we should at some point worry about converting the law school education process into one that resembles undergraduate-style (or high school style!) education.

Recall that the United States is not an island unto itself.  Many studies show that our educational system is falling behind international trends.  Where in many other nations in the world (developed and developing), students are expected to come up with, for example, quite advanced research and writing projects for their degrees, we are - at least in some law schools - teaching students just how to write, and what to write about.  This is a sad slippery slope.  Until the American educational sector as such improves, I agree that we should do what we can to motivate and help our students.  But I also increasingly wish that our “millennial” students would take matters into their own hands more and take true ownership of learning what they need to learn for a given project or class with less handholding, albeit of course still some guidance.  Nothing less than that will be expected from them in practice. 

April 23, 2015 in Commentary, Contract Profs, Current Affairs, In the News, Law Schools, Teaching | Permalink | Comments (4) | TrackBack (0)

Issue Spotting: A Response to a Comment

Howard Law's Matthew Bruckner has posed some challenging questions for me in the comments to the second post in this series.  He writes:

To the point raised in your post though, even experienced lawyers benefit from headnotes on cases, reading treatises, learning to pick up on contextual clues, etc. And your casebook likely has a table of contents that situates the case you're reading in class within a range of issues and sub-issues. I suppose that if you situate the case for the students, there is a risk that students will stop trying to pick up these contextual clues for themselves. But if you don't, there is also a risk that students won't ever appreciate why you read a case in the first instance, etc.

ScholarMatthew has a point.  There are lots of shortcuts to issue spotting for those students who are on top of things enough to use them.  I have a running joke with my students in both contracts and business associations.  If a student has a hard time identifying the issue in the case or (in contracts) tells me that the issue is whether one party breached (always a good place to start), I tell them to check the syllabus and see what subject matter we are covering on that day.  After some laughter and shuffling of papers, we approach an identification of the issue and establish once again that students do not look at syllabi and certainly would not benefit from 12-14 page syllabi identifying SLOs.

But that is just the beginning of an issue-spotting exercise, because as we progress through the semester, I also use issue-spotting as a mechanism of review.  So, for example, when we get to affirmative defenses, we may have cases in which extrinsic evidence, the statute of frauds and interpretive issues also arise.  In discussing damages, in addition to those issues, there might also be questions of affirmative defenses or even problems in formation.  I use Socratic questioning to see if students can find those issues as well.  And I really do aspire to treat the Socratic questions as means of reminding them, through step-by-step questioning, of things they knew in their past life (that is, three weeks ago, when the relevant doctrine was still stored in short-term memory).  For me the Socratic method is, in this instance, both about teaching them the right questions to ask of a case and about reminding them that they can do this on their own.

Matthew Bruckner's comment continues:

We definitely practice reading cases, extracting relevant facts and issues, understanding a case' procedural history in my 1L contracts class. But by second semester, I'm giving them the issue flat out and then we spend the whole class working on legal analysis trying to understand why the court reached the conclusion that it did.

I never give up on issue spotting.  It is not only relevant in the litigation context.  But as I'm sure Professor Bruckner knows, it is also the best mechanism for helping transactional lawyers prevent the contract they are drafting from becoming Exhibit A to the complaint.  Issue spotting is relevant whether the client is coming to you with a transaction gone wrong or a contemplated transaction.  The challenge facing transactional attorneys is all the harder because they have to entertain ideas of what might go wrong and figure out the best way to insulate the client from liability if what might happen does happen.

I am near the end of teaching a bar prep course for the first time.  I had my 3L students write about twenty practice bar exam essays, and at the end of the semester, I am still reminding them: IRAC, IRAC, IRAC.

Links to Related Posts:

The Current Series 

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 23, 2015 in Commentary, Teaching | Permalink | Comments (2) | TrackBack (0)

Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?

This is the fifth in a series of posts on reform in legal education.  Related posts are listed at the bottom of this post.

ScholarA few years ago, I was at a conference on national security law, and one of the scholars there, a Navy veteran, suggested that the military had made a wrong turn in entrusting knowledge of the law of armed conflict to JAG officers.  As impressed as he was with the commitment of those JAG officers to the rule of law, he thought it would be better if all officers were expected to know the law of armed conflict rather than having a rudimentary introduction to the relevant law but relying on the expertise of JAG officers in the decision-making process.  The attendant JAG officers were unanimous in their opposition to this notion, and I'm in no position to judge the merits of the claim, but the idea stuck with me.  

I think we have a similar situation in law schools.  In the 1980s and 1990s, law schools created legal writing programs, and they hired a legal writing faculty to teach in those programs.  Like JAG officers with respect to the law of armed conflict, dedicated legal writing faculty members have thought about legal writing -- and related subject matters such as legal reasoning and legal research -- in different and deeper ways than traditional doctrinal instructors had done or now do.  They are our trusty repository of information about how our students think, write and reason and of pedagogical innovations that will help them do better.  

It is a problematic model.  It creates a hierarchical division of labor within faculties, generating resentments on all sides, and it does not serve our students as well as would an integrated curriculum in which legal writing, reasoning and research were treated as integral to every doctrinal course.  Students think that legal writing is a separate subject matter, and they don't all have the instinct to apply the skills, techniques and intellectual habits to which they are exposed in legal writing to their work for doctrinal courses.  

One response has been to ask doctrinal courses to incorporate more skills training into doctrinal courses.  Another has been to add additional courses and required credits in courses in which students work on legal writing and reasoning skills.  To keep with the theme of this series, the result is that traditional legal education gets squeezed.  We are asked to do more in less time.  I propose we consider doing more in more time by integrating legal writing and reasoning into the traditional doctrinal curriculum and eliminate independent writing programs.

Schools have been  very creative in staffing their legal writing programs (involving visiting faculty, contract faculty, adjuncts, VAPs, and tenured and tenure-track faculty in teaching legal writing and research).  There likewise could be innumerable models (which would preferably involve integrating current legal writing faculty members into traditional classroom teaching) for integrating teaching doctrine and skills.

Let the innovations begin!

Links to Related Posts:

The Current Series 

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 23, 2015 in Commentary, Teaching | Permalink | Comments (0) | TrackBack (0)

Friday, April 17, 2015

My Advice to Law School Transparency: Declare Victory and Move On

I'm going to keep this one brief and provocative.

Six years ago, when Law School Transparency (LST) came into existence, law schools had some problems with transparency.  The problems were not actionable.  As Michael Simkovic details here and elsewhere (and I will have many more positive things to say about Simkovic's and Frank McIntyre's scholarship in later posts), law schools have always disclosed employment outcomes in accordance with federal Bureau of Labor Statistics categories of employment and unemployment.  Now, all law schools include on their websites 509 disclosures that are far more detailed about employment outcomes, as well as lots of other useful information about bar passage rates and the scores of incoming students (new 1Ls only, alas).  

The fight is now mostly over debt loads, but again, as Michael Simkovic puts it:

Data from the U.S. Department of Education shows that law students, even at low ranked law schools, remain much less likely to default than most student borrowers.  This is true even though law students typically graduate with higher debt levels.

While student debt loads are a huge concern, law students still are not defaulting on their loans.  

So, at this point what exactly is the purpose of LST's campaign against law schools? 

LST's website identifies its goals as Reform, Information and Accountability.  I would say that LST has succeeded on Information and Accountability.  Don't take it from me.  Here is what Deborah Merritt, who has been quite critical of Simkovic and McIntyre, has to say on the subject:

[T]oday’s law schools publish a wealth of data about their employment outcomes; most of that information is both user-friendly and accurate.

As to LST's main claim on Reform: "American legal education is broken because it is systematically unfair and unaffordable," LST and I will have to agree to disagree.  Still, two out of three ain't bad.  LST can take credit for having contributed to an environment in which law schools are forced to provide information about student outcomes in a way that really helps students make more informed decisions about whether to go to law school or whether to choose a particular school.

Congratulations, LST.  You've won.  You've done some real social good.  You and others have persuaded college graduates not to go to law school.  Unfortunately, that might not be good advice, since Simkovic and McIntyre's research shows that students who go to law school are, on the whole, better off for having done so.  

So you can now declare victory and move on to larger projects.  Why not use your model to attack other sectors of the economy that, when compared with law schools, are much less transparent, much more important, far less inclined to self-criticism and far more resistant to outside calls for change?


April 17, 2015 in Commentary, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

SLOs and Why I Hide the Ball (and Why You Don't Have To)

TeachingThe ABA, and I hear, I other accreditation bodies are now looking for faculty members to identify student learning objectives and student learning outcomes (SLOs) on a class-by-class, hour-by-hour basis.  I have been told that there are model syllabi circulating that include such learning objectives and learning outcomes, and that they are 12-14 pages long. 
I have Googled the subject and everything the literature I have seen on student learning outcomes and objectives strikes me as thoughtful, sophisticated, and completely misguided as to the nature and purposes of legal education.  Sophisticated schools like Stanford and the University of Connecticut circulate complex documents with graphs and charts and tables about how to draft the perfect SLOs.   These documents are clearly oriented towards undergraduate education.
The model syllabi (and PowerPoints) that Hastings Law provides on the subject provide about as much information about SLOs as I typically include in a course description.  But I don't put that course description in my syllabus because it is more usefully placed in our Bulletin, which students look at when they are deciding what course to take.  I could cut and paste the same information into a syllabus, but students will not read it if it is on the syllabus, and I will just waste paper in distributing it.  What really amazes me about the model syllabi that Hastings supplies is that they lack the things that I think make a syllabus valuable: daily schedules of assigned readings, assignments due and topics to be discussed on a given day (which is my preferred version of SLOs).
ScholarYou are not a great educator because you announce student learning objectives and student learning outcomes or because you use the words formative and summative assessments to refer to periodic quizzes, homework assignments and a final exam or because you use the word intentional as an adjective usually preceded by "more" when intention is not really a matter of degrees.  All of that jargon just demonstrates that you have drunk the Kool-Aid and not that your students can pass the bar and function as lawyers.
Students already cannot be relied on to read my 3-5 page syllabus.  They certainly would not read a 12-14 page syllabus, so adding SLOs to my syllabus just wastes effort and trees.  But that is not my main objection to SLOs.  My main learning objective is to teach law students how to figure out on their own what lessons they are supposed to be deriving from reading cases, statutes, treaties, regulations, deposition testimony or a news story, etc..  Telling students the SLOs undermines my pedagogy.
And hiding the ball is part of the pedagogy.  Unless they are dealing with corporate counsel, my students' clients will not come into their offices and say, "I have a contract dispute and I need you to research how these three jurisdictions (the only three that could possibly matter) will deal with different terms under UCC § 2-207."  Even if corporate counsel did say that, a good lawyer will usually have to look over the entire transaction and see if there are additional issues worth looking at.  But the usual situation is that your client tells you a version of the facts and you have to find the legal issues in a fluid situation in which you discover through the use of your legal skills that your client did not tell you the full story.  The process of dealing with that world has to begin in law school, and it will not begin well if I tell my students  at the beginning of every hour what skills or doctrine they are supposed to develop in the next 50 minutes.  
Fellow educators: Perhaps you disagree with me.  Perhaps you had terrible experiences as a law student with professors who never told you what you were supposed to be accomplishing in a course, and you would never teach the way you were taught.  To you I say, fine.  If you have found a way to teach that enables you to transmit the material to your students, and your students emerge enriched and empowered, keep doing what you are doing.  My way would not work for you, and your way might not work for me.  But legal education will not be enriched if we replace one system in which everybody teaches the same way (the myth of the Socratic drone faculty) with another system in which everybody teaches law school as if it were college (or high school).

April 15, 2015 in Commentary, Teaching | Permalink | Comments (7) | TrackBack (0)

Friday, April 3, 2015

Playing Fair Down Under

In New Zealand, a ban on unfair terms in consumer contracts has taken effect and will, according to the Commerce Commission, will be enforced starting immediately.   The regulation forms part of the 2013 Fair Trading Act.  Australia introduced a similar ban in 2010.

The Consumer Organization “Consumer NZ” has launched its “Play Fair” campaign to increase awareness of the new law and related consumer issues.   According to Consumer NZ, companies had been given plenty of notice of the upcoming ban and thus to review their contracts in order to remove unfair terms, but had to a large extent failed to do so.

The Act will apply to standard-form consumer contracts often used by electricity retailers, gyms, TV service providers and many others.

But what makes a term “unfair”?  The Act defines a term as unfair if it would “would cause a significant imbalance between the rights of the company and the consumer, is not reasonably necessary to protect the legitimate interests of the company, [or] would cause detriment, whether financial or otherwise, to the consumer if it were to be applied or relied on.”   The Act contains a list of terms that courts are likely to regard as unfair.  This covers terms that would allow a company to unilaterally vary the terms of the contract, renew or terminate it, penalize consumers for breaching or terminating the contract, vary the price without giving consumers the right to terminate the contract, or vary the characteristics of the goods or services to be supplied.  

After intense lobbying by the insurance industry, that industry was exempted from the ban.

Even though this Act is a consumer protection device, only the New Zealand Commerce Commission can, for now, enforce it.  The contemplated fine for violations is $600,000.

In the USA, there are, of course, various statutory and common law protections against unfair terms such as those contained in the UCC as well as fraud protections.  However, the deterrence effect of these does not seem effective in relation to at least some industries.  Alternatively, perhaps the protections are not broad enough, sufficiently well-known, or sufficiently easy to enforce.  Or perhaps people just give up and deal with other companies, or pay what they are asked to do by the companies. 

I personally just spent no less than two hours chatting online with a major health care provider over their sudden allegation that a certain doctor I had used was “not in network” (with me thus allegedly owing a few thousand dollars to the insurance company) despite that particular provider being listed on the provider’s own website as “in network” and the doctor having confirmed this.  Eventually and after numerous contractual and factual arguments, I was able to persuade provider that I was right.  But how many others in my situation would simply give up and cave in to, as was the case, the provider’s repeated bootstrapping arguments that “their ultimate price was fair”?

Only two days later, I heard from a moving company that had agreed to move a car for me for $500 (and confirmed this twice) that the “price is actually $600.”  When I told them no, it is not, they repeated their allegation that “we did not have a contract.”  After telling them a few things about contract formation and modification principles and after declining listening to their attempted, time-consuming warnings about using other companies that were “scam artists,” I am now looking for a new contract another vendor.

Despite whatever legal protections we may officially have in this country against consumer fraud, it is still rampant.  New Zealand’s government enforcement system is interesting, but time will tell if they have more success preventing consumer fraud than we do here.

April 3, 2015 in Commentary, Current Affairs, Legislation, True Contracts | Permalink | Comments (0) | TrackBack (0)

Thursday, April 2, 2015

August Wilson's Two Trains Running and R.2d Section 228

HamI just saw the Goodman Theater's production of August Wilson's Two Train's Running.  It is a great play, and this is a first-rate production in every way.  One character, Hambone, is a reification of contracts injustice.  Hambone painted a fence for an offstage character, Lutz.  Lutz promised to pay Hambone a chicken for his work and a ham if Hambone did an especially good job.  Lutz paid Hambone a chicken.  This occurred nine years prior to the action in the play.  Hambone's lines in the play consist almost entirely of "Give me my ham!" and "He gonna give me my ham!"  At one point, another character teaches him some additional slogans like "Black is beautiful," but Hambone is never too far from his mantra, as the aggrieved non-breaching party.

Although the play never references R.2d § 228, we are clearly in the realm of conditions of satisfaction.  Hambone's entitlement to the ham should have been determined on an objective basis.  All of the characters in the play seem agreed that, were such a standard applied, a finder of fact would certainly award Hambone a ham.  But Hambone is Black, poor, and ill-equipped for a legal battle.  Lutz is white and so powerful that he is able to define Hambone's character without ever suffering the indignity of appearing on stage. 

Does Hambone ever get his ham?  I don't want to give away too much so I will just say, yes and no.

April 2, 2015 in Commentary, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, March 30, 2015

On a Lighter Note: Valet Service Companies Needing to Take Crash Course on Contracts

Earlier this month, Los Angeles-area media reported a somewhat humorous of a valet service that gave away a relatively expensive new car to a random guy claiming that he had "lost the [valet] ticket."  Yup, the valet service actually just gave the car to the man who was sporting an Ohio state tattoo.  (Of course, this story is not funny for the frustrated car owner).

But wait, the story gets weirder than that (it is, after all, LA, where we worry a lot about our cars...): the valet service sent the responsible employee home and referred the customer to his insurance company.  Initial reports indicated that the insurance company did not want to pay for this loss as no theft had occurred... as is always the case, however, the media did not follow up on the end of this story, to the best of my knowledge.

Another valet contract that you must read and that was shared today on the AALS listserv for Contract Professors reminded me of this story.  Hat tip to Professor Davis!


Valet companies may have to brush up on their contract writing skills soon...

March 30, 2015 in Commentary, Contract Profs, Current Affairs, Famous Cases, In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2015

Water Contracts and Adequate Assurances (to Continue Business as Usual)

Some weeks ago, I blogged here about water rights and shortages in drought-ridden California.  Of course, California is not the only state where contractual water rights interface with development and public health concerns. 

In Ohio, shale driller Gulfport Energy recently filed suit against the town of Barnesville for rights to extract water for Gulfport’s fracking operations.  Gulfport had a contract with Barnesville entitling it to draw water from a local reservoir at one cent per gallon.  Under the contract, Gulfport would be able to draw the water unless the village determined that such action would endanger public health.  Water rights were subsequently also issued to another driller.  In the fall of 2014, the village told Gulfport to stop drawing water from the reservoir because of too low water levels.  Gulfport’s suit now asks for adequate assurances of performance of the water contract to ensure that it can continue its fracking operations. 

Whether that is a good idea is another story.  From a short-term perspective: yes, we need energy preferably domestically sourced to avoid international supply interruptions and the geopolitical problems that are associated with importing energy raw materials.  But fracking and fossil fuel production in general are associated with other severe problems including heavy water usage in the case of fracking.  Such water, the argument goes, is better used for other things such as farming and household consumption. 

Business as usual for fracking companies may not be the best idea seen from a societal point of view.  Contracts rights are only a small part of this much bigger problem.  However, time seems to have come for governments to incorporate escape clauses not only for “public health concerns” into water contracts, but also for drought concerns.  This is not always done, as the above case shows, but such a relatively easy step could help solve at least some contractual disputes.  In times of increasing temperatures and decreasing rainfall in some areas, such contract drafting may well make sense.

March 26, 2015 in Commentary, Current Affairs, Food and Drink, Government Contracting, True Contracts | Permalink | TrackBack (0)

Where Congress Won't Act, Private Ordering Fills a Gap

ThermometerToday's New York Times reports that Microsoft will require the companies with which it partners, its contractors and vendors who employ more than 50 workers, to provide their employees who do work for Microsoft with 15 days of annual paid sick leave and vacation time.  Microsoft expects that it will have to increase its pay to these partners to help them with the added expense of the policy.  

As the Times points out, it is a very American approach to the protection of workers' rights.   Congress will not act and only a few state legislatures have done so.  Microsoft, like other large technology companies, can afford to provide decent wages and benefits to its workers.  However, companies increasingly prefer to contract work out to small companies that do not treat their workers nearly as well.  

The Times notes that the gap is not only between skilled computer programmers and unskilled or semi-skilled janitors or groundskeepers but also between whites and African Americans and Latinos.  While the latter, traditionally-underrepresented minorities account for our 3-4% of tech workers, they account for 75% of janitorial and maintenance workers.  Eschewing Google's and Facebook's approaches of replacing contract workers with its own employees, entitled to company benefits, Microsoft has explained its move in a manner also consistent with the great American tradition of enlightened self interest.  Microsoft general counsel explained that: 1) happy workers are more productive; and 2) sick workers who come to work can infect others.  

This move can have a big impact, especially if other major companies follow Microsoft's lead, but I'm not sure that the effects will all be good for workers.  If a contractor has some workers that work for Microsoft and some that don't, the Microsoft jobs suddenly become highly sought-after.  A company may try to stay below the 50-employee threshold to avoid the private regulation.  Or it may divide Microsoft work among its staff (in the interests of internal morale), which might dilute the effects of the regulation.  If you do only 20% of your work for Microsoft, do you only qualify for three days of vacation/sick leave?  It may take a few years (and a few contracts disputes) to work out the kinks.

March 26, 2015 in Commentary, In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

When Contractual Consent Isn't Enough

The problem with constructive consent, or substituting "manifestations of assent" for actual assent, in consumer contracts is that consumers often aren't aware what rights they've relinquished or what they have agreed to have done to them.  Too bad for consumers, right?  Well, it's also too bad for companies.  Companies that rely on contracts to obtain consumer consent may find that what suffices for consent in contract law just won't cut it under other law that seeks actual consumer consent.  Michaels, the arts and crafts store chain, found that out the hard way.  They were recently hit with two class action lawsuits alleging that their hiring process violates the Fair Credit Reporting Act (FCRA).  Job applications clicked an "I Agree" box which indicated "consent" to the terms and conditions which authorized a background check on the applicant.  As this article in the National Law Review explains, the FCRA requires that job applicants receive "clear and conspicuous" standalone notice if they are seeking consent from applicants to obtaining a background report.  A click box likely won't (and shouldn't) cut it.  Contracts that everybody knows nobody reads shouldn't be considered sufficient notice.  It would, of course, be much simpler if contractual consent were more aligned with actual human behavior....

March 19, 2015 in Commentary, Current Affairs, Labor Contracts, Legislation | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

Facebook Cares about Privacy (for Facebook Executives)

The New York Times reported yesterday on the rise of a new type of non-disclosure agreement in connection with home construction.  Basically, rich people associated with the tech industry are making everyone who works on their homes sign sweeping non-disclosure agreements.  

Times reporter Matt Richtel posed a number of questions to workers outside a home that, court documents from a different case reveal, is being renovated for an undisclosed Facebook executive (pictured).  He was able to extract only answers like, "I'm an electrician working on a house."  As to which house, workers would gesture towards a neighborhood and say "one of the ones over there."  But the mystery was not too difficult to solve, as workers swarmed "like ants" on the home, and they have been working on it for two years.  

Matt Richtel does a great job highlighting the irony of the situation.  He quotes Facebook founder Mark Zuckerberg, commenting on Facebook's privacy policies, as follows:  “People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people.”  And yet, in correspondence disclosed in the other case referenced above, Mr. Zuckerberg's attorney wrote, "Mr. Zuckerberg goes to great lengths to protect the privacy of his personal life.”

There is no necessary contradiction between Mr. Zuckerberg's desire to maintain his own privacy and his belief that other people choose not to protect their own.  But Facebook has been pretty aggressive in eroding privacy, in part through a libertarian paternalism in which all the default choices lead to a surrender of privacy, or through extracting waivers of privacy rights by contractual means that do not rise to the level of meaningful, knowing consent.

So yeah.  This is ironic.

March 16, 2015 in Commentary, In the News | Permalink | Comments (0) | TrackBack (0)

Friday, March 6, 2015

Twitter and Cyberbullying - Can Contracts Help?

The always excellent Bob Sullivan recently wrote a post on his blog about the nastiness that resulted from Curt Schilling's proud daddy post.  (The nastiness is seriously nasty).  As Sullivan points out, and which I've argued here and here, online companies like Twitter have a business responsibility to make sure the services they offer are safe.  Online, of course, everything turns into a debate about free speech, even when the so-called speech is obviously obscenity (and please, don't argue with me about this one - if you saw the tweets, you would agree that a "reasonable person" would think they were obscene) and even though the billion dollar companies are not state actors.  The problem is that Section 230 of the Communications Decency Act has been construed very broadly by courts to protect websites like Twitter from liability for content posted by others.  That gives these companies little incentive to invest resources into policing their sites.  But as Sullivan notes, if they don't start to clean up their sites, people might start leaving in droves. 

So what should businesses do?  One thing they could do is start taking their contracts seriously.  We are all familiar with clickwrap and browsewrap agreements that nobody reads.  They often contain codes of conduct or, in the case of Twitter, "content boundaries."  Companies can start making these agreements more readable and salient.  They can start by actually enforcing them.  For example, Twitter can enforce their content boundaries by kicking users off the site or charging them a fine for violating the rules (maybe after a warning) which may help defray the costs of policing the site....They can also design their contracts so they are more readable and post a "warning" that abusive tweets will be subject to a fine or suspension and force users to "click" to acknowledge they have read the warning.  I suspect that many who tweet impulsively later regret it so a warning at point of posting/sending might make some think twice. 

I realize that hiring people to evaluate each reported post might take time so that the best solution would be software that flags certain posts and sends a warning to the user to reconsider the post.  It could also contain a reminder that the user will be liable for damages if the tweet is defamatory.  All this scary stuff is in the contract - but because it is contained behind a hyperlink, few users will actually read it.  An email delivered to the users, reminding them of their contractual obligations and the scary things (public condemnation, suspension or expulsion from the site, liability for lawsuits, maybe even criminal prosecution if the tweet is threatening enough) that might happen to them if they violate these obligations, might be more effective.  Some users may voluntarily take down the post in response to the automated email which may cut down on the number of tweets subject to human review. 

Of course, contracts can only do so much, but they might help.


March 6, 2015 in Commentary | Permalink | Comments (2) | TrackBack (0)

Thursday, March 5, 2015

Artistic license

Artistic License

The official portrait of former President Bill Clinton has been completed.  See it here.   It was painted in the “conservative realistic style” … maybe a little too realistic and not sufficiently conservative?

According to the artist, Nelson Shanks, the bluish shadow of a person that you see on the mantelpiece next to Clinton is that of Monica Lewinski in her infamous blue dress.  You got that right: the artist himself has admitted that he purposefully scarred the picture just as the Lewinsky scandal scarred Clinton’s second term.  The artist has apparently caught quite some flak for having done this.  Regardless of artistic freedom and setting aside all thoughts about the scandal per se, what is, after all, at issue here is a contract for artwork depicting a former President of the United States of America.  A bit more respect may have been in order.  This was not any regular client having a portrait done; it’s in effect the entire nation that commissioned this work.  Perhaps a subjective satisfaction clause would have been in order here.  Even if it had been any “regular” client, deliberately depicting one’s paying client in a highly controversial light seems to me to be in questionable taste. 

On the other hand, the argument has been made that if the artist had been held to certain contractual stipulations, the portrait of the 42nd President would have been “stiff and untrue.”  

That’s not the case?  Take a look and judge for yourself.  While much has been made of Clinton holding an actual, gash, newspaper – so retro – the strange positioning of his fingers on his hip looks more bizarre to me.  An indication of his alleged two-sided look at what constituted “the truth” in certain contexts?  To me, it looks more like the V sign for, perhaps, Clinton’s ultimate victory over at least some of the political and other challenges he faced.  




March 5, 2015 in Commentary, Government Contracting, In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

Want a Class with that Barrista Job?

Last year, Starbucks announced a new corporate-supported educational program that one year later is still viable: Starbucks will reimburse its full-time workers for taking online classes with Arizona State University.  Partial tuition (58%) will be offered to freshmen and sophomores and full tuition for juniors and seniors as long as credits are earned within the past 18 months so as to keep students on track.  

As you may have noticed if you are a Starbucks customer, very many of its employees appear to be college-aged.  In fact, 70% of Starbucks’ workforce are either in school already or have had to drop out because of various personal difficulties.  

This program seems to be a benefit to employees who cannot afford to go to school full time (or even part time), but who desire and education.  What is remarkable is also how few “strings” are attached to the program.  For example, the employees do not even have to stay with Starbucks after the completion of their degree.  Said CEO Howard Schultz (still the CEO): "We want to attract and retain great people. We want to provide [our employees] with new tools and new resources to have advancements in the company.” 

What is in it for ASU?  This has been said to be a coup for the university, which already has one of the nation’s largest and most highly regarded online programs.   Of course, Starbucks has a large amount of employees with, presumably, many coming and going, so ASU now has access to a large database of potential students, something many universities – private and public - are craving in these competitive times.

For the students and the university, rates may be discounted.  This is normal in this type of situation.   What would truly make a difference would be if the rates could become so reduced for students that they would, in effect, have no out-of-pocket costs altogether. 

What, to me, is interesting about this situation is that a public university has found out workable model for online classes and cooperation with a private business venture when many private universities have not. 

The somewhat strange catch here is that ASU cannot enter into any other arrangement with a for-profit business for four years, but that Starbucks is free to advertise its partnerships with a few other schools.

See the contract at issue here.

See Starbucks’ description of the program here.

March 3, 2015 in Commentary, Current Affairs, E-commerce, Food and Drink, Labor Contracts, Teaching, True Contracts | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

Submitting a Law Review Article about Wrap Contracts through a Wrap Contract

I've been away from the submission process for a few years.  In the meantime, Scholastica has entered the picture, which from an author's view is simply an expensive headache, and more journals are encouraging authors to submit directly through either e-mail or their own online submissions process. 

Having been a historian before becoming a law professor, I am still grateful for the advantages of student-edited law journals and authors' ability to submit to scores of journals simultaneously.  I still believe that this process is better for authors and not significantly less arbitrary that double-blind peer review.  Lots of scholarship gets published that does not end up getting used or cited under both systems, but the peer review process banishes lots of possibly meritorious scholarship to the dung-heap of history based on the opinions of two people whose reasoning might be insufficient to justify such a heavy penalty.

That said, I do find a new feature of online submission processes disquieting.  At least one journal that encourages authors to submit through their online submission form features a Submission Agreement that includes a link to a separate page containing the journal's "attribution and usage policies."  The latter are incorporated by reference, and thus one must agree to them in advance before submitting the article.  There is nothing particularly onerous in the Submission Agreement or the usage policies, but the problem is that authors submit to dozens or scores of journals.  The journals cannot really expect authors (or their administrative assistants who submit on their behalves) to read through boilerplate terms.  So there we have it -- forms that purport to bind law professors to terms to which they have not meaningfully consented.  This is especially ironic if, like me, you have been writing about the dangers of form contracts and the degraded version of "consent" in this context. 

The practice is especially irksome as the submission process does not otherwise involve a contract.  When I submit my article to multiple journals for publication, I am submitting an invitation for offers.  I have no obligation to the journals, and they have no obligation to me.  They don't even have to read my piece before rejecting it, nor do they have to respond in any way to me.  And if they do offer to accept my piece (which, note, is typically described as an "offer to publish" not as an "acceptance"), I can reject that offer and go merrily on my way.  

The introduction of form contracts at the submission state --  a point at which the parties have no legal relationship -- is simply unnecessary.

February 17, 2015 in Commentary, True Contracts | 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, February 12, 2015

Bar Prep Teaching

This year, I am teaching a bar preparation course on contracts, which is being offered for the first time at my Law School.  This is a lot of fun for me -- I like teaching contracts both semesters because it keeps my mind more focused on the subject.  It's also fun to teach the material in a different way -- no cases, as some familiarity with the case law is assumed at this point, so I just give mini refresher lectures and then move on to the homework assignment.

So it's fun, but it's also a lot of work.  I give my students four multiple choice questions each day, and they have to turn in their answers -- explaining why the right answer is wrong and the wrong answers are wrong.  The idea is to both solidify their understanding of the doctrine and alert them to the strategy behind bar exam "distractors" -- that is, wrong answers that are trying to trick students into mistaking them for correct answers.  Most days, they also have to write a short essay, designed to be akin to MEE questions.  

Because I am teaching such a course myself, I read with some interest David Frakt's recent post on The Faculty Lounge on the value of in-house bar prep courses.  But I was taken aback by the comments.  The anonymous or pseudonymous commentators asked the following rhetorical questions:

  • Does bar prep make students better lawyers?
  • What good is passing the bar when there are no jobs for lawyers anyway?
  • Don't law schools have an obligation to refrain from flooding the market with unemployable lawyers?

I think this is a case of massive anger that is massively misdirected.  Students are in law school.  They want to stay in law school and they want to become lawyers.  I have met with many students facing dismissal from my Law School for poor academic performance.  The ones I have spoken to all are willing to do whatever it takes to stay in, and they are furious with us when we dismiss them.  So we put the time and the energy into bar prep courses because it is what our students need.  Some of them need it because they won't do the work without the additional kick in the pants.  Others need it because they have many natural gifts that will make them great lawyers, but excelling at standardized tests is not one of them.  We are trying to get them over that hurdle so that they can have the careers for which they are otherwise qualified.

I certainly understand the anger of the unemployed law students.  I was an unemployed Ph.D. before I went to law school.  I know what professional devastation feels like.  It seems like the "Law School Scam" crowd thinks the solution is to just shut law schools like the one I teach at.  But how would throwing me, my colleagues, and our support staff out of work improve the situation?  It certainly would not improve things for the students we serve, most of whom pass the bar, find work, and do better than they would have done without their degrees.  Law school opened for me a range of career options that would have been completely unthinkable without my J.D.  Why should that opportunity be denied to the current generation of potential law students?

February 12, 2015 in Commentary, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

Construction Contracts that Kill

Property development is often considered a way for local communities to earn more taxes and evolve with times in general.  But when construction and other development is approved in geologically risk areas such as flood zones and things go awfully wrong, is this a mere property and contracts issue, or may criminal liability lie?

In France, the answer is the latter.  The former mayor of the small French seaside town La Faute-sur-Mer  was just sentenced to jail for four years for deliberately hiding flood risks so that he and the town could benefit from the “cash cow” of property development, a French court has held.  His deputy mayor received a two-year sentence in the same plot.

In 2010, the cyclone Xynthia hit western Europe and knocked down seawalls in the French town, leading to severe floods and 29 deaths. 

Wait… a cyclone in France?  Yes.  Climate change is real and it’s here.  Unless we do something about it (which apparently we don’t), things will only get worse.  As on-the-ground steps that could prevent extreme results such as the above are often simply ignored or postponed while more and more research is done and money saved at various government scales, lawsuits will necessarily follow.  The legal disciplines, including contracts law, will have to conform to the new realities of a rapidly changing climate.  For starters, we need to seriously question the wisdom and continued desirability of constructing more and more homes in coastal and other flood prone areas.  Ignoring known risks is, well, criminal.

February 11, 2015 in Commentary, Current Affairs, Government Contracting, Labor Contracts, Science | Permalink | Comments (0) | TrackBack (0)