Wednesday, March 18, 2015
The St. Thomas Law Review has published some of the papers presented at the Ninth International Conference on Contracts (KCON IX) that the St. Thomas University School of Law hosted in 2014. It's nice to see these in print!
Reza Beheshti, Comparative and Normative Analysis of Damages under the SGA and the CESL, 26 St. Thomas L. Rev. 413 (2014)
Jennifer S. Martin, Contracts: An Introduction to a Symposium and a Few Additional Thoughts, 26 St. Thomas L. Rev. 375 (2014)
Kingsley Martin, Emergence of Contract Standards and Its Future Impact on Legal Education, 26 St. Thomas L. Rev. 570 (2014)
John E. Murray, Jr., The Judicial Vision of Contract--The "Constructed Circle of Assent" and Printed Terms, 26 St. Thomas L. Rev. 386 (2014)
Joseph M. Perillo, Donee Beneficiaries and the Parol Evidence Rule, 26 St. Thomas L. Rev. 496 (2014)
Jeffrey Ritter, Designing and Constructing Commercial Agreements in the 21st century, 26 St. Thomas L. Rev. 506 (2014)
Roni Rosenberg, The Contract: Between Contract Law and Criminal Jurisprudence, 26 St. Thomas L. Rev. 444 (2014)
Amy J. Schmitz, Introducing the "New Handshake" to Expand Remedies and Revive Responsibility in eCommerce, 26 St. Thomas L. Rev. 522 (2014)
Robin West, The Right to Contract as a Civil Right, 26 St. Thomas L. Rev. 551 (2014)
Wednesday, March 11, 2015
The Southeastern Association of Law Schools (SEALS) is pleased to once again offer its Prospective Law Professors Workshop as part of its annual meeting. This two-day workshop is for those seeking law teaching jobs in Fall 2015. The Prospective Law Professors Workshop will run on Tuesday, July 28, and Wednesday, July 29, at the Boca Raton Resort & Club.
The workshop will include practice interviews, practice jobtalks, guidance on drafting CVs and FAR forms, and several panel discussions geared toward prospective law professors. There is no supplemental fee to participate. Participants in the workshop need only pay the standard SEALS registration fee.
The number of participants will be limited. For more information on the program, including how to apply, please visit our website at http://sealslawschools.org/seals-prospective-law-professors-workshop/
Monday, February 23, 2015
This Article offers a novel interpretation of contract law, which I call “Contract as Empowerment”. On this view, contract law is neither a mere mechanism to promote efficiency nor a mere reflection of any familiar moral norm—such as norms of promise keeping, property, or corrective justice. Contract law is instead a mechanism of empowerment: it empowers people to use legally enforceable promises as tools to influence other people’s actions and thereby meet a broad range of human needs and interests. It also empowers people in a special way, which reflects a moral ideal of equal respect for persons. This fact explains why contract law can produce genuine legal obligations and is not just a system of coercion.
The purpose of this Article is to introduce contract as empowerment and argue that it reflects the best general interpretation of contract. Contract as empowerment is an “interpretive” theory in the sense that it is simultaneously descriptive, explaining what contract law is, and normative, explaining what contract law should be.
To support contract as empowerment’s interpretive credentials, I identify a core set of doctrines and puzzles that are particularly well suited to testing competing interpretations of contract. I argue that contract as empowerment is uniquely capable of harmonizing this entire constellation of doctrines while explaining the legally obligating force of contracts. Along the way, contract as empowerment offers (1) a more penetrating account of contractual remedies than exists in the current literature; (2) a more compelling account of the consideration requirement and its standard exceptions; and (3) a concrete framework to determine the appropriate role of certain doctrines—like unconscionability—that appear to limit freedom of contract. Contract as empowerment also explains the main differences between claims for breach of contract, promissory estoppel, restitution and quasi-contract. It explains key doctrines and answers key puzzles at each basic stage of contract analysis: formation, interpretation and construction, performance and breach, the standard defenses and the standard remedies.
The whole of this explanation is, moreover, greater than the sum of its parts. Because of its harmonizing power, contract as empowerment demonstrates how a broad range of seemingly incompatible surface values in modern contract law can work together—each serving its own distinctive but partial role—to serve a more fundamental principle distinctive to contract. These surface values include the values of fidelity, autonomy, liberty, efficiency, fairness, trust, reliance and assurance. Although many people think that contract law must involve trade offs between these values, contract as empowerment suggests that tensions between them are not always real. So long as the complex system of rules that governs contracts is fashioned in the right way, these doctrines can work together to serve a deeper and normatively satisfying principle distinctive to contract. This framework can therefore be used to guide legal reform and identify places where market regulation is warranted by the principles of contract in many different contexts of exchange—from those involving consumer goods to labor, finance, credit, landlord-tenant, home mortgages and many others.
There is a further implication of contract as empowerment. Contract as empowerment absorbs many economic insights but gives them a fundamentally different interpretation. It suggests that contracting and modern market activities are not simply spheres where self-interest runs wild. They are instead spheres of moral interaction, which can engage people’s natural sense of obligation and generate genuine legal obligations—at least so long as contract law is simultaneously personally empowering and reflective of a moral ideal of equal respect for persons. An important moral fabric has, in other words, been running through contract law and many forms of modern economic activity for some time now. This fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of the phenomena. Understanding this moral fabric can help people lead better and more integrated lives, as both moral and economic agents. We must, however, learn to strengthen this fabric and protect it from growing tear.
Wednesday, February 18, 2015
For those of you who are still trying to decide whether or not to attend, it looks like a great conference, featuring two of our bloggers, Nancy Kim and Myanna Dellinger.
10th International Conference on Contracts
William S. Boyd School of Law, UNLV
February 27 & 28, 2015
8:15-8:45 Registration and Continental Breakfast (Moot Court Lobby)
8:45-9:00 Welcome and Announcements (Moot Court Auditorium)
9:00-10:45 Whose Contract Law Is It Anyway? (Moot Court Auditorium)
Chair: Dov Waisman
Danielle Hart, How Does Bargaining Power Affect Contract Litigation Outcomes?
Larry DiMatteo, How Private is Private Contract Law?
H.G. Prince, How Does the California Supreme Court’s Contracts Jurisprudence Relate to Its Ideological Composition?
Hila Keren, Whose Freedom of Contract?
Consent (or Lack Thereof) (BSL 102)
Shawn Bayern, Offer and Acceptance in Modern Contract Law: A Needless Concept
Chunlin Leonhard, Consent in Contract: A Dangerous Fiction
Kenneth Ching, What We Consent to When We Consent to Form Contracts: Market Price
Eric Zaks, Bonding and Contract Drafting: Paying a Premium for Foregoing Genuine Consent
11:00-12:30 Contract Terms I (Moot Court Auditorium)
Royce Barondes, Frictions and the Persistence of Inferior Contract Terms
Mark Gergen, Privity's Shadow: Exculpatory Terms in Extended Forms of Private Ordering
Joshua Silverstein, Using the West Digest System as a Data Collection and Coding Device for Empirical Legal Scholarship: Demonstrating the Method Via a Study of Contract Interpretation
Comparative and International I (BSL 102)
Mateja Djurovic, Europeanisation of Contract Law Through the Judicial Activity of the European Court of Justice
Glennys Spence, A Pound of Flesh: A Comparative Analysis of the Group of Companies Doctrine and the Alter Ego Theory in International Commercial Arbitration
Jane Winn, Contracting Out of the Nation State: The Role of Global Private Regulators
12:30-1:45 Lunch (Barrick Museum Garden)
1:45-3:30 Roundtable: Perspectives on the Restatement (Third) of the Law of Consumer Contracts (Moot Court Auditorium)
Chair: Omri Ben-Shahar (U. of Chicago)
Robin Kar (U. of Illinois)
Nancy Kim (California Western)
Gregory Klass (Georgetown)
David McGowan (U. of San Diego)
3:30-3:45 Break (Moot Court Lobby)
3:45-5:30 Consumer Protection (Moot Court Auditorium)
Susanne Augenhofer, Self-Regulation and the Interface of Consumer Protection and Corporate Governance
David Friedman, Addressing Fictitious Pricing: Discounting of Retail Goods and Deceptive Prior-Reference Pricing
Timothy Hall, Contractual Limitation of Personal Fitness and Health Data Tracking: An Empirical Analysis
Jim Hawkins, Are Bigger Companies Better for Low-Income Borrowers?: Evidence from Payday and Title Loan Advertisements
Performance & Enforcement (BSL 102)
Pamela Edwards, “The Best Interests of the League”: Contractual Limits of Sports Leagues Commissioners' Powers to Discipline Team Owners
Orit Gan, The Justice Element of Promissory Estoppel
Victor Goldberg, Buffalo’s Field of Dreams: Kenford Co. v. Erie County
Jennifer Martin, Avoiding Unpleasant Surprises in Resales Under 2-706
6:00-9:00 Reception & Dinner (Barrick Museum Exhibition Hall)
8:30-9:00 Breakfast (Moot Court Lobby)
9:00-10:30 Storytelling and Contracts (Moot Court Auditorium)
Chair: Keith Rowley
Lenora Ledwon, Bonds, Promises, and Contracts in the Narco-Western: Freedom of (and From) Contract in Breaking Bad
Deborah Post, Story Telling and Normative Analysis
Debora Threedy, Cooper on Contracts: Popular Culture and the Paradox of Relational Contracts
Comparative and International II (BSL 102)
Myanna Dellinger, Rethinking Force Majeure in U.S. and International Contracts Law
Larry DiMatteo, A Case Study in Comparative Contract Law: Late Acceptance, Right to Cure, and Anticipatory Repudiation in Common, Civil, and Chinese Contract Laws
Irina Sakharova, Finance Lease Contracts: International and Comparative Perspectives
10:45-12:15 Digital Giants Gone Wild! (Moot Court Auditorium)
Michael Rustad & Thomas Koenig, Wolves of the World Wide Web: Reforming Social Media Provider’s Contracting Practices
Nancy Kim, Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent
Joasia Luzak, Wanted: A Bigger Stick – On Unfair Terms in Consumer Contracts with Online Service Providers
Sacred Cows (BSL 102)
Mark Burge, Thinking Outside the Four Corners of Contract Doctrine in the Legal Education Crisis
Victor Goldberg, Rethinking Jacob and Youngs v. Kent
Jeff Lipshaw, Does Contract Theory Matter?
12:15-1:45 Lunch (RAJ 4th Floor Faculty Lounge)
Keynote: Stewart Macaulay
Comments: Chuck Knapp
1:45-3:30 Roundtable: Perspectives on More Than You Wanted to Know: The Failure of Mandated Disclosure (Moot Court Auditorium)
Chair: Omri Ben-Shahar (U. of Chicago)
Susanne Augenhofer (Humboldt U.-Berlin)
Jeffrey Stempel (UNLV)
Stacey Tovino (UNLV)
3:30-3:45 Break (Moot Court Lobby)
3:45-5:15 Contract and Families (Moot Court Auditorium)
Erez Aloni, Mistaking Neoclassicism for Pluralism in Family Law
Christie Matthews, Contract Law, Race, and Intrafamilial Transactions
Contract Terms II (BSL 102)
Sid DeLong, Construction Contracts (N.B.: It’s not what you think)
Peter Gerhart, Good Faith Contract Performance and the Reasonable Person
Allen Kamp, UCC Interpretation versus Plain Meaning Interpretation: A Question of Purpose
5:15-5:30 Conference Wrap-Up (Moot Court Auditorium)
Wednesday, January 28, 2015
Friday, January 30, 2015
Please join us on Friday, Jan. 30 on campus at Georgetown University Law Center for the Global Sales Law Conference: The CISG at 35: Challenges Today.
The morning will begin with registration and morning refreshments at 8:30 AM, with the program beginning at 9:00 AM.
There is no registration fee but space is limited, so please RSVP by completing the form linked here.
On the occasion of the 35th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), Georgetown’s Center on Transnational Business and the Law and the UNCITRAL Secretariat will host a one day event addressing the present status of the CISG and future options.
Panelists will discuss trends in the use of the CISG in North American legal practice, the future of uniform contract law, and the promotion and role of the CISG in international economic development.
The goal is to take stock of current developments, in particular those relevant for the United States and Canada (e.g., opting out; withdrawal of declarations; CESL and other related projects); to foster greater awareness of the CISG among practitioners; and to explore the contribution of the CISG to legal technical assistance.
This event is co-sponsored by Penn State University - Dickinson Law, the American Branch of the International Law Association, the American Society of International Law, the ABA Section of International Law, the Institute of International Commercial Law, Pace Law School, and the International Law Institute.
The conference will be held on the campus of Georgetown Law, at:
Gewirz Student Center
120 F Street, NW, 12th Floor
Washington, DC 20001
The Law Center is within easy walking distance of Union Station and the Judiciary Square Metro Station. Commerical parking is readily available in the area.
Please find reduced-rate hotel information toward the bottom of this page.
Please click here to register to attend this event.
Registration and Morning Refreshments
9:00 - 9:30 am
Welcome and Overview
Prof. David P. Stewart, on behalf of Dean William Treanor, Georgetown University Law Center
Renaud Sorieul, The Secretary, UNCITRAL
9:30 - 10:30 am
Panel 1: CISG’s Impact on Practice/Current Trends
Moderator: Jack Graves, Professor of Law, Touro Law Center
Franco Ferrari, Professor of Law, New York University School of Law
Claire M. Germain, Associate Dean for Legal Information & Clarence J. TeSelle Professor of Law, Frederic G. Levin College of Law, University of Florida
Peter J. Tucci, Partner, Fox Rothschild LLP
10:30 - 11:00 am
11:00 am - 12:00 pm
Panel 2: Future Options and Related Texts
Moderator: Gregory Klass, Associate Dean for Research and Academic Programs, Georgetown Law
Henry Gabriel, Professor of Law, Elon University School of Law
Clayton Gillette, Max E. Greenberg Professor of Contract Law, New York University School of Law
John J. Kim, Assistant Legal Adviser for Private International Law, U.S. Department of State
12:00 - 1:30 pm
Luncheon Keynote Address
Hon. Claire Reade, Former Assistant USTR for China Affairs
1:30 - 2:45 pm
Panel 3: CISG in Foreign Legal Systems
Moderator: Vikki M. Rogers, Director of the Institute of International Commercial Law, Pace Law School
Hdeel Abdelhady, MassPoint Legal and Strategy Advisory PLLC
Robin Effron, Professor of Law, Brooklyn Law School
Peter Mazzacano, Founder & Editor, CISG Canada
2:45 - 4:00 pm
Panel 4: Technical Assistance and Rule of Law
Moderator: Louis F. Del Duca, Professor of Law, Emeritus, Penn State Dickinson School of Law
Issam Michael Saliba, Law Library of Congress and International Council for Middle East Studies
Stephen D. Gardner, Chief Counsel, Commercial Law Development Program, U.S. Department of Commerce
Muna B. Ndulo, Director of the Berger International Legal Studies Program and Director of the Institute for African Development, Cornell University
Don Wallace, Chairman, International Law Institute; Professor Emeritus, Georgetown Law
4:00 - 5:00 pm
Concluding Panel: Closing Discussion
UNCITRAL Secretary Sorieul and Moderators
Comments and Questions from the Floor
5:00 - 6:00 pm
Reception, Hotung Faculty Dining Room
Monday, January 26, 2015
Call for Papers
Obligations VIII: Revolutions in Private Law
The Eighth Biennial Conference on the Law of Obligations will be held at the University of Cambridge from 19-22 July 2016, co-hosted by the University of Cambridge Faculty of Law and Melbourne Law School. The biennial Obligations Conferences bring together scholars, judges and practitioners from throughout the common law world to discuss current issues in contract law, the law of torts, equity and unjust enrichment.
Both established and junior legal scholars are invited to submit proposals to present papers addressing the conference theme, broadly interpreted, which is described as follows:
Revolutions in thinking about our governing rules often cause palpable shifts in their foundations: 2016 is the 350th anniversary of Newton’s ‘discovery’ of gravity, and the 100th anniversary of Einstein’s ‘discovery’ of general relativity. It is also the 50th anniversary of the publication of Goff and Jones’ The Law of Restitution, and the 500th anniversary of the publication of Sir Thomas More’s Utopia. What changes mark the most significant paradigm shifts in private law? What effects have they brought? What has provoked them in the past, and what might deliver them in the future? These questions are relevant across the entire sweep of the law, and are common to all jurisdictions. We hope that this theme and its underlying questions will provoke serious discussion about the types of issues which unsettle the law, and how we as lawyers help to resolve the ructions.
Anyone wishing to offer a paper should submit a working title and an abstract (of no more than 500 words) by email to firstname.lastname@example.org by 30 June 2015. Papers will be selected on the basis of quality, originality, engagement with the conference theme and fit with other papers being presented at the conference. Those offering papers will be notified by 31 July 2015 at the latest whether their papers have been accepted. A waiting list may be established, depending on the level of interest.
All presenters whose offers of papers are accepted will be expected to meet their own travel and accommodation costs and to pay a discounted registration fee. Speakers will be asked to submit fully written draft papers by 15 June 2016 for distribution to delegates via a password-protected website. As with previous Obligations Conferences, it is proposed that a small number of selected papers focused on the conference theme will be published in an edited collection following the conference.
Further information about the Obligations Conference series can be found at www.obsconf.com.
Sarah Worthington, Andrew Robertson and Graham Virgo
Sunday, January 25, 2015
Earlier this month, the Contracts sections hosted a program on Contracts, Technology and Legal Gaps. We had an excellent line-up of expert panelists: Eric Goldman (Santa Clara), Woodrow Hartzog (Samford), Corynne McSherry (Electronic Frontier Foundation), Jane Winn (U. of Washington) and Deborah Zalesne (CUNY). For those of you who were unable to attend, the podcast for the program is now available here.
Monday, January 19, 2015
Law in an Information Society
A Festschrift in Honor of Richard Craswell
We live in a time when information—about costs, parties, alternatives, and laws—is more important than ever before. This symposium brings together 25 leading scholars in law and economics, contracts, commercial law, antitrust law, and other topics relating to how litigants, regulators, and policymakers can use information to inform their decisionmaking.
The Stanford Law Review is pleased to present this symposium to celebrate Professor Craswell and his tremendous contributions across many areas of law. Articles will be presented by Ian Ayres and Barry Nalebuff, Louis Kaplow, Alan Schwartz, Christine Jolls, and Tess Wilkinson-Ryan and David Hoffman, and papers will be presented by Matthew Spitzer and Richard Brooks. Many other noted scholars from around the country will serve as discussants.
Attendance is free: See a full schedule and register HERE!
Monday, December 29, 2014
Join Alliance for Justice at the Association of American Law Schools’ (AALS) Annual Meeting to celebrate the release of the new short documentary,
Lost in the Fine Print
Examining the Impact of Forced Arbitration
Saturday, January 3, 2015
MARRIOT WARDMAN PARK HOTEL
Buried in everyday agreements for products, services, and jobs is fine print saying when you are harmed, you can’t go before an impartial jury or judge. Instead, these forced arbitration clauses send you to a decision-maker picked by the company that wronged you. Not surprisingly, one study found that arbitrators rule for companies over consumers 94 percent of the time. And you’re stuck with their decision because there’s no appeal. It’s a rigged system that helps companies evade responsibility for violating anti-discrimination, consumer protection, and public health laws.
Narrated by former U.S. Secretary of Labor Robert Reich, AFJ’s new 20 minute documentary Lost in the Fine Print tells the story of three everyday people who found themselves trapped in the system of forced arbitration—and the impact of this system on their lives and livelihoods. The cocktail reception will feature a film screening and brief remarks.
Nan Aron, President, Alliance for Justice
Paul Kirgis, Professor, St. John’s University School of Law and Chair, AALS Section on Alternative Dispute Resolution
Nancy Kim, Professor of Law, California Western School of Law; Chair, AALS Section on Contracts and author, Wrap Contracts
Judith Resnik, Arthur Liman Professor of Law, Yale Law School
Michelle Schwartz, Director of Justice Programs, Alliance for Justice
Host Committee (in formation):
*All titles and university affiliations are listed for identification purposes only.
Theresa A. Amato, Distinguished Scholar in Residence, Loyola University Chicago
Frank Askin, Distinguished Professor of Law, Robert E. Knowlton Scholar, and Director of Constitutional Rights Clinic, Rutgers School of Law—Newark
Robin Bradley Kar, Professor of Law and Philosophy, University of Illinois College of Law
Raymond H. Brescia, Associate Professor of Law and Director of the Government Law Center, Albany Law School
Katherine S. Broderick, Dean and Professor of Law, University of the District of Columbia David A. Clarke School of Law
Sarah E. Burns, Professor of Clinical Law, NYU School of Law
Erwin Chemerinsky, Dean of the School of Law, University of California, Irvine
Liz Ryan Cole, Professor, Vermont Law School
James E. Coleman, Jr., John S. Bradway Professor of the Practice of Law; Director, Center for Criminal
Justice and Professional Responsibility and Co-Director, Wrongful Convictions Clinic, Duke University School of Law
Joshua P. Davis, Associate Dean for Academic Affairs & Director, Center for Law and Ethics, University of San Francisco School of Law
Peter Edelman, Professor of Law, Georgetown University Law Center
Catherine Fisk, Chancellor’s Professor of Law, University of California, Irvine School of Law
Celeste Hammond, Professor and Director, Center for Real Estate Law, John Marshall Law School
Ann C. Hodges, Professor of Law, University of Richmond School of Law
Michael Hunter Schwartz, Dean and Professor of Law, University of Arkansas at Little Rock William H. Bowen School of Law
Robert A. Katz, Professor of Law, Indiana University Robert H. McKinney School of Law
Amalia D. Kessler, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, Stanford Law School
Peter Linzer, Professor of Law, University of Houston Law Center
Dennis O. Lynch, Professor and Dean Emeritus, University of Miami School of Law
Margaret L. Moses, Professor of Law and Director, International Law and Practice Program, Loyola University Chicago School of Law
David B. Oppenheimer, Clinical Professor of Law & Director of Professional Skills, UC Berkeley School of Law
Nancy Polikoff, Professor of Law, American University Washington College of Law
Margaret Jane Radin, Henry King Ransom Professor of Law, University of Michigan Law School and author of Boilerplate
Maritza Reyes, Associate Professor of Law, Florida A&M University College of Law
Daniel B. Rodriguez, Dean and Harold Washington Professor, Northwestern University School of Law and President, AALS
Florence Wagman Roisman, William F. Harvey Professor of Law and Chancellor’s Professor, Indiana University Robert H. McKinney School of Law
Kathryn Sabbeth, Assistant Professor of Law, University of North Carolina School of Law
Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law
Shirin Sinnar, Assistant Professor of Law, Stanford Law School
Jean Sternlight, Director of the Saltman Center for Conflict Resolution and Michael and Sonja Saltman Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law
Joan Vogel, Professor of Law, Vermont Law School
Adam Zimmerman, Associate Professor of Law, Loyola Law School, Los Angeles
PS: Lost in the Fine Print is a game-changer. It demystifies the concept of forced arbitration, and urges us to demand change. Nationwide, law professors are using the film as a resource to educate students about this issue. Click here to download or order your free copy of the film.
Monday, December 22, 2014
Wednesday, December 10, 2014
I read an interesting article the other day about parties to a contract agreeing to a broad arbitration provision and then carving out some issues that would be litigated should a problem arise. As with many others, I am involved in the International Commerical Arbitration Moot and, when I read the article, the issue seemed familiar. That is because this year's problem includes a contract with the following two provisions:
"Art. 20 All disputes arising out of or in connection with the present contract shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with the said Rules. The seat of arbitration shall be Vindobona,
Danubia, and the language of the arbitration will be English. The contract, including this clause,
shall be governed by the law of Danubia.
Art 21: Provisional measures
The courts at the place of business of the party against which provisional measures are sought
shall have exclusive jurisdiction to grant such measures."
As you would expect, one of the parties in the problem asks for interim relief from the ICC while the other says interim measures are for courts only. Very often, if not most of the time, the Moot problem is inspired by an actually case. Some years the students are able to find the case and, while it is never quite exactly on point, it can be helpful.
I could not help but wonder if this issue within this year's problem was inspired by a botched effort to carve interim relief out from the general provision. It would be pretty sloppy to draft something like the above but my hunch is that it has happened.
I am curious to know how other ICAM team coaches have dealt with the issue. In particular, does the word "finally" in Article 20 have any particular signficance?
he AALS Contracts Section is sponsoring/co-sponsoring the following two programs at the AALS 2015 Annual Meeting.
The Contract Section annual meeting program will be on Saturday, January 3, 2015 at 1:30-3:15pm
Mind the Gap! – Contracts, Technology and Legal Gaps
Technological innovation has created new challenges for the law. New technologies often create legal and ethical questions in areas such as privacy, employment, reproduction and intellectual property.
Courts and legislatures are often slow to address these questions. To fill the legal gap created by rapid advancements in technology, businesses and individuals attempt to reduce their risk and uncertainty through private ordering. In what ways have contracts been used to privately legislate in the gap created by technological advancements? What are, or should be, the limits of consent and contracting where emerging technologies are involved? What are some of the concerns? Our panel of experts will address these and other issues.
Eric Goldman, Professor, Santa Clara University School of Law
Woodrow N. Hartzog, Associate Professor, Samford University Cumberland School of Law (topic: “The Unique Role of Contracts and Design in Mediated Environments")
Nancy S. Kim (moderator), California Western School of Law
Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation
Jane Winn, Professor, University of Washington School of Law (topic: “Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century American Sales")
Deborah Zalesne, Professor, CUNY School of Law (topic: “The Contractual Family: Modern Solutions for Modern Day Families”).
In addition, and new this year, the Contracts Section and the Section on Consumer and Commercial Law will hold a joint program aimed at pedagogy and new law teachers.
Saturday, January 3, 2015 at 5:15pm-6:30pm
Teaching in the Contracts/Commercial/Consumer Law Curriculum: Challenges and Innovations
This program addresses the many issues faced by new law teachers the areas of contracts commercial and consumer law. Because of the overlapping nature of these three subject areas, new law teachers in any one of these subject areas may often teachin on one or both of the other subject areas. Each of these areas, however, has its unique challenges. Experienced law teachers in contracts, commercial law and consumer law will discuss the techniques, strategies and tools they use to teach their students, and the relevance and value of bringing and eliciting diverse perspectives into the classroom.
Emily E. Kadens, Northwestern University School of Law
Jennifer S. Martin (moderator) St. Thomas University School of Law
Deborah Waire Post, Touro College, Jacob D. Fuchsberg Law Center
M. Dee Pridgen, University of Wyoming College of Law
Anthony Eudelio Varona, American University, Washington College of Law
We look forward to seeing you next month!
The AALS Contracts Section Executive Committee
Danielle K. Hart
Emily M.S. Houh
Nancy S. Kim
Val D. Ricks
Wednesday, December 3, 2014
Yale/Stanford/Harvard Junior Faculty Forum
June 16-17, 2015, Harvard Law School
Yale, Stanford, and Harvard Law Schools announce the 16th session of the Yale/Stanford/Yale Junior Faculty Forum to be held at Harvard Law School on June 16-17, 2015 and seek submissions for its meeting.
The Forum’s objective is to encourage the work of scholars recently appointed to a tenure-track position by providing experience in the pursuit of scholarship and the nature of the scholarly exchange. Meetings are held each spring, rotating at Yale, Stanford, and Harvard. Twelve to twenty scholars (with one to seven years in teaching) will be chosen on a blind basis from among those submitting papers to present. One or more senior scholars, not necessarily from Yale, Stanford, or Harvard, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal is discourse on both the merits of particular papers and on appropriate methodologies for doing work in that genre. We hope that comment and discussion will communicate what counts as good work among successful senior scholars and will also challenge and improve the standards that now obtain. The Forum also hopes to increase the sense of community among American legal scholars generally, particularly among new and veteran professors.
TOPICS: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2015 meeting, the topics will cover these areas of the law:
- Civil Litigation and Dispute Resolution
-Contracts and Commercial Law
- Corporate and Securities Law
- Intellectual Property
- International Business Law
- Private Law Theory and Comparative Private Law
- Property, Estates, and Unjust Enrichment
A jury of accomplished scholars, again not necessarily from Yale, Stanford or Harvard, with expertise in the particular topic, will choose the papers to be presented. There is no publication commitment, nor is published work eligible. Yale, Stanford, or Harvard will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.
QUALIFICATIONS: There is no limit on the number of submissions by any individual author. To be eligible, an author must be teaching at a U.S. law school in a tenured or tenure-track position and must not have been teaching at either of those ranks for a total of more than 7 years. American citizens teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years, and that they earned their last degree after 2005. International scholars are not eligible for this forum, but are invited to submit to the Stanford International Junior Faculty Forum. We accept co-authored submissions, but each of the coauthors must be individually eligible to participate in the JFF. Papers that will be published prior to the forum in June are not eligible.
PAPER SUBMISSION PROCEDURE:
Electronic submissions should be sent to Jennifer Minnich ( jminnich at law.harvard.edu), with the subject line “Junior Faculty Forum.” The deadline for submissions is March 1, 2015. Remove all references to the author(s) in the paper. Please include in the text of the email and also as a separate attachment a cover letter listing your name, the title of your paper, your contact email and address through June 2015, and which topic your paper falls under. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed both to Adriaan Lanni ( adlanni at law.harvard.edu) and her assistant, Jennifer Minnich ( jminnich at law.harvard.edu).
FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Gabby Blum ( gblum at law.harvard.edu) or Adriaan Lanni ( adlanni at law.harvard.edu) at Harvard Law School, Richard Ford ( rford at stanford.edu) at Stanford Law School, or Christine Jolls ( christine.jolls at yale.edu) or Yair Listokin ( yair.listokin at yale.edu) at Yale Law School.
Friday, October 31, 2014
As I noted about a month ago the problem for the 2015 International Commercial Artbitration Moot is wonderful for those who like crossword puzzles, solving problems, reading mysteries, or doing detective work. There are facts, deadends, and read herrings galore. No one goes for a big sleep as far as I can tell but there is the dreaded issue of "fundamental breach." In fact, that appears to be the centerpiece of the problem. Just to make it a little twisty, the fundamental breach is by the buyer whose letter of credit may not conform to the contract. Since even that would be too simple, there is a second letter of credit that may or may not conform but which came after the first arguably non comforming one. There are phone calls, emails, letters, accusations, and even an emergency arbitration that, maybe, should not have occurred at all.
At my school 32 students are now writing briefs for the claimants side of the case and preparing for their oral arguments next week. There is something here even for profs not involved in the Moot. Just reading the problem will spark all kinds of ideas for exam questions suitable for the basic contracts course.
Friday, October 24, 2014
Today, October 24, 2014, is a banner day for contracts law because today is the date for two major conferences honoring two giants in the field.
First UC Hastings is hosting a Symposium to Honor Professor Chuck Knapp's 50th Year of Law Teaching. Here is the schedule for that.
8:45 – 9:00 Introduction & Welcome
9:00-10:30 Panel I -- The State of Contract Law
Professor Jay Feinman, Rutgers University - Camden
Professor William Woodward, Santa Clara University
Professor Danielle Kie Hart, Southwestern Law School
Moderator – Professor Harry G. Prince, UC Hastings College of Law
10:45-12:15 Panel II -- The Role of Casebooks in the Future of Contract Law
Professor Deborah Post, Touro Law Center
Professor Carol Chomsky, University of Minnesota
Professor Thomas Joo, UC Davis
Moderator – Professor Nathan M. Crystal, University of South Carolina
12:15-1:15 Lunch: Marvin Anderson Lecture – Professor Keith Rowley, UNLV
1:30-3:00 Panel III -- The Politics of Contract Law
Professor Peter Linzer, University of Houston
Professor Judith Maute, University of Oklahoma
Professor Emily M. S. Houh, University of Cincinnati
Moderator – Professor Jeffrey Lefstin, UC Hastings College of Law
3: 15-4:45 Panel IV -- The Future of Unconscionability as a Limit on Contract Enforcement
Professor David Horton, UC Davis
Professor Hazel Glenn Beh, University of Hawaii
Moderator – Professor William S. Dodge, UC Hastings College of Law
4:45-5:00 Concluding Remarks
In addition, the Temple Law Review is hosting a symposium in honor of Bill Whitford:
And here is the schedule for that:
9:00 - 9:30 Introductory Remarks9:30 - 10:45The Bankruptcy Research Database - Its Development and Impact
- Douglas Baird: The Transformation of Large Corporate Reorganizations 1979-2014 Seen Through the Lens of the BRD
- Bob Lawless: What Legal Empiricists Do Best
- Lynn LoPucki: Measuring Bankruptcy Success
- David Skeel: Rediscovering Corporate Governance in Bankruptcy: The LoPucki and Whitford Studies
11:00 - 12:15 The Lifecycle of Consumer Transactions: Consumer Contracting, Protection, and Bankruptcy
- Melissa Jacoby: Superdelegation
- Ethan Leib: Contra Proferentem and the Role of the Jury in Contract Interpretation
- Angela Littwin: Why Process Consumer Complaints? Then and Now
- Katherine Porter: The Ideal of Rough Justice: Consumer Protection as Business, and Business in Consumer Protection
12:30 - 1:45Lunch Break
- Brief video-presentation from a special guest
- Talk: Bob Hillman: Precedent in Contract Cases and The Importance(?) of the Whole Story; Response by Bill Whitford
2:00 - 3:15 Mixed Methods: Comparative Law, Comparative Methods
- Stewart Macaulay: Bill Whitford: A New Legal Realist Seeking to Understand Law Outside the Law School's Doors
- Iain Ramsay: US Exceptionalism and the Comparative Study of Consumer Bankruptcy
- Jay Westbrook: The Application of the Model Law on Cross-Border Insolvency in the United States, Canada, and the United Kingdom
- Jean Braucher: Examination as a Method of Consumer Protection
3:30 - 4:00 Free for All: What Don't You Know That You Should Know?
Monday, October 6, 2014
The problem is up for the 22nd Annual International Commerical Arbitration Moot. Between now and early December, teams will write the brief for the Claimant. In mid January the brief for the Respondent is due. And then, in March, 200-300 teams from law schools around the world will gather in Vienna for the competition.
There is no limit to the number of students on a team but they must argue in pairs. Typically one student handles the procedural issues and one the substantive or the CISG issues. There are 4 rounds to start with the 64 highest scoring teams moving on to a single elimination tournament.
The problems identify an actual arbitration agency whose rules govern the procedures, This year the procedural issues center around whether the Claimant the right to make an emergency appeal to the arbitration agency and whether the Respondent may join the parent company of the Claimant for purposes of its counterclaim. In one of those puzzles that charactizes the Moot, the parent company "endored" the contract at issue but claims not to be a party do it.
The substantive issue concerns a letter of credit which does not conform (or does it?) to what was called for in the contract. The buyer attempts to "cure" in a sense but the seller says "too late, we have already avoided the contract." Thus, it raises avoidance and cure isssues under the CISG.
This is, at best, a first cut on the problem. As the weeks pass, the problem will reveal itself as the layers are peeled off.
I am happy to trade notes and views with other interested profs.
[In the meantime, try to find the third man.]
Monday, September 8, 2014
I am sure most readers know what the CISG is. I was surprised to learn that some are not aware of the International Commercial Arbitration Moot (ICAM) held in Vienna annually over the weekend and then into the week just prior to Easter. It is maybe the most rewarding experience I have had as a teacher. The organizers of the Moot release the problem on the first Friday of October. It is usually a spawling but somewhat realistic fact pattern, Typically there are procedural issues and substantive issues dealing, obviously, with international contract law. Over two hundred teams from around the world gather for 4 days of prelims. The top 64 then go into a single elimination tournament.
At my school, like others, we organize a course around the Moot. In the fall, the students first have 5 weeks of regular class sessions on the CISG followed by an exam. After that, the problem comes out and they have 4-6 weeks to write their briefs. Finally, there are oral arguments. From those exercises, 4 to 6 students are selected to be on the team. (all students earn 3 credits whether they make the team or not) Those students must prepare a claimant's and a respondent's brief and practice twice a week until the competition. It requires dedication.
There are a couple of drawbacks. First is it expensive to send students and a coach to Vienna. At Florida we have been fortunate to have support from the International Section of the State Bar, private donors, and the Law School. Second, the judging in Vienna can be hit and miss. In the four day premlinary period the abitrators (3 each per session) may apply different standards and are sometimes not well prepared. Thus, the goals be for the students must be to learn at much as they can, network, and enjoy, for a few days, interacting with students from all over the world. The winning teams are always superb but some left out of the tournament may also be superb.
I realize there are maybe only a handful of people out there who do not know of this opportunity but I've found it to be very worthwhile (and also hardwork)
Friday, August 29, 2014
If you write about arbitration, dispute resolution in general, or related topics (mandatory arbitration clauses come immediately to mind), you may be interested in presenting your current research at the AALS ADR Section’s Eighth Annual Works-in-Progress Conference in November 2014 at . Southwestern Law School
The Conference: The Conference has traditionally provided a welcoming and interactive forum where scholars from across the country can share their current research, obtain feedback, exchange ideas, reconnect with colleagues and build new collaborative working relationships. At the conference, junior and senior dispute resolution scholars present their current work-in-progress, ranging from research ideas for a future article to full draft papers. Conference attendees share their insights about the presentation topic and offer constructive feedback to the presenter.The Schedule: The Conference will begin with a welcoming reception hosted by Southwestern on the evening of Thursday, November 6. Friday, November 7 will feature a full day of presentations, along with continental breakfast, luncheon and dinner for all registrants hosted by Southwestern. The Conference will conclude on Saturday, November 8 with a half-day of presentations, as well as continental breakfast and lunch hosted by Southwestern.Registration: Registration is now open for this year’s Conference. To register or to get more information, please go to www.swlaw.edu/adrwip. There is no registration fee; attendees are responsible for their own travel and lodging expenses.
Thursday, August 21, 2014
Unfortuantely, this conference, scheduled for October 24, 2014, conflicts with the conference in honor of Charles Knapp, about which we posted yesterday. You will have to choose. Killer line-ups for both.
You can find details for the Bill Whitford conference here.
Here is the schedule:
9:00 - 9:15 Introductory Remarks
9:30 - 10:45 The Bankruptcy Research Database - Its Development and Impact
- Douglas Baird
- Bob Lawless
- Lynn LoPucki
- David Skeel
11:00 - 12:15 The Lifecycle of Consumer Transactions: Consumer Contracting, Protection, and Bankruptcy
- Melissa Jacoby
- Ethan Leib
- Angela Littwin
- Katherine Porter
12:30 - 1:45 Lunch Break
- Brief video-presentation from a special guest
- Talk: Bob Hillman on Teaching Contracts; Response by Bill Whitford
2:00 - 3:15 Mixed Methods: Comparative Law, Comparative Methods
- Stewart Macaulay
- Iain Ramsey
- Jay Westbrook
- Jean Braucher
3:30 - 4:00 Free for All: What Don't You Know That You Should Know?
A lot of ink has been spilled over this subject, and I don't have much to add, except to note that I have not seen a very many good discussions of the contract issues.
The very short version of the story, as best I can cobble it together from blog posts, is that the University of Illinois offered a position in its American Indian Studies program to Steven Salaita, who had previously been teaching at Virginia Tech. According to this article in the Chicago Tribune, the U of I sent Professor Salaita an offer letter, which he signed and returned in October 2013. Professor Salaita was informed that his appointment was subject to approval by the U of I's Board of Trustees, but everyone understood that to be pro forma. In August 2014, Salaita the U of I Chancellor notified Professor Salaita that his appointment would not be presented to the Board and that he was no longer a candidate for a position. According to the Tribune, the Board next meets in September, after Professor Salaita's employment would have begun. The Chancellor apparently decided not to present Professor Salaita's contract for approval because of his extensive tweets on the Isreali-Palestinian conflict, which may or may not be anti-Semitic, depending on how one reads them.
The main argument in the blogosphere is over whether or not the U of I's conduct is a violation of academic freedom. But there is also a secondary argument over whether Professor Salaita has a breach of contract of promissory estoppel claim against the U of I. The list of impressive posts and letters on the whole Salaita incident include:
Michael Dorf on Verdict: Legal Analysis and Commentary from Justia
Finally, Dave Hoffman stepped in on Concurring Opinions to address the promissory estoppel issues and then answers Michael Dorf's response
Hoffman makes strong arguments that there was no breach of contract here, because the offer was clearly conditional on Board approval. There are arguments that the promise breached was a failure to present Salaita's employment to the Board, but the remedy for that breach would simply be presentment, at which point both the claim and the appointment would go away (unless U of I has a change of heart on the matter).
We would have to know more about the process to make a more educated guess about whether or not a breach of contract claim here could succeed. I think it is relevant that, at the point Salaita was informed that the offer was rescinded, the Board could not meet before his employment would have begun. I suspect that his courses were already scheduled and that students had, at least provisionally, registered for them. I wonder if there were any announcements on the U of I website crowing about their recent hires. All of this would be relevant, it seems to me, to the state of mind of the parties regarding whether or not a contract had been made. It would be very sad for all of us in academia if it turned out to be the case that our offer letters mean nothing until the Board has spoken, as acceptance of a position usually involves major life changes, including giving notice at current jobs, moving to a new city, selling and buying a residence, etc.
I have no doubt that Dave Hoffman is right that promissory estoppel claims rarely succeed. I do think that some versions of the facts presented here suggest that this one might be a winner nonetheless or, as Hoffman suggests, is the kind of claim that is worth bringing at least in order to make the threat of discovery on the subject a strong inducement to the U of I to settle the case. But the remedy for promissory estoppel is probably not really the remedy Salaita seeks.
Professor Salaita's claims -- his academic freedom and constitutional claims -- go beyond the issues of contract and promissory estoppel. A lot has been written on this situation, and I haven't had a chance to read everything carefully, but I have yet to see a clear discussion of whether those claims hinge on Professor Salaita's contractual claims. It seems likely to me that if he had no contract, then he had no free speech or academic freedom rights vis a vis the U of I. And I don't think a promissory estoppel claim would get him such protections either. Or do people think that universities have a generalizable erga omnes duty to protect academic freedom?
Dave Hoffman has an additional post up on Concurring Opinions here.