ContractsProf Blog

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

A Member of the Law Professor Blogs Network

Wednesday, March 12, 2014

KCON9 Is Now Available on YouTube

For those of you who made the wide choice to avoid Miami in February (highs in the 80s, lows in the 70s -- it was hell!), you can still enjoy the experience of hearing the papers presented at last month's conference.  The conference organizer, Jennifer Martin, is in the process of making all the sesions  availalbe here.

Here's a taste, Robin West's luncheon address:

  

Ahh, the memories.

March 12, 2014 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 6, 2014

Conference at Emory: Teaching Transactional Law and Skills, June 6-7, 2014

 Educating the Transactional Lawyer of Tomorrow 

Emory University School of Law – June 6-7, 2014 

Emory’s Center for Transactional Law and Practice is delighted to announce its fourth biennial conference on the teaching of transactional law and skills. The conference, entitled “Educating the Transactional Lawyer of Tomorrow,” will be held at Emory Law, beginning at 1:00 p.m. on Friday, June 6th and ending at 3:45 p.m. on Saturday, June 7th.

 

REGISTRATION AND HOTEL

The registration fee for the Conference is $179.00. It includes a pre-Conference lunch beginning at 11:30 a.m., snacks, and a reception on June 6, and breakfast, lunch, and snacks on June 7. We are planning an optional dinner for attendees on Friday evening, June 6, at an additional cost. Attendees are responsible for their own hotel accommodations and travel arrangements. Registration closes Friday, May 30, 2014. 

Special hotel rates for conference participants are available at the Emory Conference Center Hotel, less than one mile from the conference site at Emory Law. Subject to availability, rates are $129 per night.

Free shuttle transportation will be provided between the Emory Conference Center Hotel and Emory Law. To make a reservation, call the Emory Conference Center Hotel at 800.933.6679 and reserve under “The Emory Law Transactional Conference” to obtain the special conference rate.

CALL FOR PROPOSALS

We are accepting proposals immediately, but in no event later than 5 p.m. on Monday, March 17, 2014. We welcome proposals on any subject of interest to current or potential teachers of transactional law and skills, focusing particularly on our overarching theme: “Educating the Transactional Lawyer of Tomorrow.” We expect to address questions like the following:

  • What is the shape of the future employment market for transactional lawyers? Will our students be working at law firms (small, medium, large), as solo practitioners, as in-house counsel, as government attorneys, or as degreed attorneys not practicing law?
  • Who will be the transactional lawyers’ clients? Individuals? Small to mid-sized businesses? Large businesses?
  • How do we best educate our students to become transactional attorneys in each kind of practice setting for each kind of client?
  • In what particular areas of the law will transactional attorneys be most needed? Administrative Law and Regulatory Practice, Health Law, Intellectual Property Law, and International Business Law, to name a few?
  • What are the current best practices for teaching students about each area of transactional law?
  • What skill sets and competencies do legal employers expect new transactional attorneys to possess?
  • What innovative techniques and technology can we use to enhance the teaching of transactional law and skills?
  • How can we teach ethics and professionalism within our transactional law and skills courses?
  • How can we assess the students’ progress toward developing the competencies and professionalism required of effective transactional lawyers?

In addition to proposals addressing the overarching questions listed above, we hope to receive proposals that address and update topics that we have considered in past conferences, such as:

  • Teaching doctrinal transactional law courses
  • Teaching contract drafting and other critical deal skills
  • Teaching transactions in an international setting
  • Teaching transactional skills within first-year doctrinal courses

Each session will be approximately 80 minutes long. We invite you to present your topic individually or with a panel of other participants and we encourage you to make your presentation creative and interactive. We look forward to receiving your proposals so that we can finalize the Program. 

As in prior years, the proceedings of the Conference as well as the materials distributed by speakers will be recorded and published in Transactions: The Tennessee Journal of Business Law, a publication of the Clayton Center for Entrepreneurial Law of The University of Tennessee. Your remarks will be transcribed and you will have the opportunity to edit them. You will also be asked to sign a release permitting publication and broadcast.

Please submit the attached proposal form electronically via the Emory Law website at https://emorylaw.wufoo.com/forms/2014-conference-proposals/ before 5 p.m. on Monday, March 17, 2014.

Beginning March 1, 2014, you can also register for the Conference at our Emory Law website at https://emorylaw.wufoo.com/forms/2014-emory-law-conference-registration/.

If you encounter any technical difficulties in submitting your proposal or in registering online, please contact Edna Patterson, Conference Coordinator, at edna.patterson@emory.edu or 404.727.6506.

March 6, 2014 in Conferences | Permalink | TrackBack (0)

Tuesday, March 4, 2014

Hans Kelsen in America Conference

I wish I could say that this were a Kelsen and Contracts Conference, but I can say that there will be some contracts scholars among the participants.  And that suffices as a hook for me.

For those readers who are not Kelsen accolytes, if you know people who are (especially if they are philosophers, sociologists, or political scientists), please spread the word.

Kelsen Call for Papers

March 4, 2014 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, February 24, 2014

KCON9 Is Over: On to KCON 10 in Vegas

Last weekend's conference was a great success thanks to the efforts of Jennifer Martin and the St. Thomas team.

Miami

It has already been determined that Keith Rowley will host KCON 10 in Las Vegas. 

Las_Vegas_Strip_at_night

February 24, 2014 in Conferences | Permalink | Comments (0) | TrackBack (0)

KCON9: Saturday Afternoon Session

We had an all-star afternoon panel on Contract Law and Social Justice.  The panel was moderated by Robin West, who gave a killer Keynote Speech over lunch.  That speech will be forthcoming in the St. Thomas Law Review, as will Amy Schmitz paper, discussed below, so look out for that.

HartDanielle Hart started off the panel with a paper on Contracts and Inequality.  Her talk took issue with the claim that the state is absent in contract law.  In fact, she regards contract law as public law because the state is neither netural nor minimal, and contract law in action helps to create and perpectuate inequality.  She illustrated her point with a case of a fairly typical subprime mortgage loan to an African-American women in a predominantly minority neighborhood.  The state helped manufacture the desire for homeowneship; the state created the residential housing market through regulation and deregulation of the housing market; and the state decides on enforcement and enforces judgment.  

The result is that law promotes inequality.  Parties to contracts are not equal, but contract law ignores structural inequality in bargaining power and applies rules "neutrally" without adjusting for structural inequality.  Thus the stronger party gets the better end of the bargain.  And getting into contracts is much easier than getting out of them, especially with the new hurdles to litigation including the Twombly/Iqbal line of cases, as well as standard contract terms such as binding arbitration clasues and class action waivers.  The result is an endless cycle in which those with more power continually can use contracts to extract favorable terms in each successive contractual relationship and those without bargaining power are made worse off through unfavorable bargains.  

Returning to her illustration involving the African-American borrower, Professor Hart noted that the banks that made subprime loans before the mortgage meltdown are mostly doing fine, but there is now a remarkable racial disparity in wealth in American households (over $113,000 for White households; about $5-6000 for African American and Hispanic households).  The numbers are very low for African-American and Hispanic households because so much of their wealth was tied up in their homes, which they lost in the subprime crisis.  This illustrates Professor Hart's cycle of contracts law serving the interests the better off at the expense of the poor.

KerenHila Keren next presented her paper on Contract Law and the Responsive State, in which she addressed what can be done in light of the very depressing state of things as described in Professor Hart's paper.  Professor Keren regards contracts as a mode of social regulation and offered ways in which we can use contracts law to further socially desireable ends.  She does so in the context of two patterns of market exploitation.  The first is "predatory prenups;" that is, prenups in which a woman is coerced into a marriage relationship because of particular vulnerabilities.  Second, in predatory loan agreements, people enter into unfavorable loans because they were vulnreable, low-income, unsophisticated, first-time buyers. 

Inequalities are increased if judges refuse to intervene to protect exploited parties.  Professor Heren agrees with Professor Hart that judges are increasingly refusing to intervene.  Her proposal is to replace our neo-liberal theory with a revamped vulnerability theory to underpin contracts doctrine.  Neo-liberal theory associates equality with non-discrimination; vulnerability theory focuses on the right of individuals to participate in society and to have their human dignity recognized and protected.  Neo-liberal theory regards the subject as the private, autonomous individual; under vulnerability theory we are all vulnerable and interconnected.  Finally, neo-liberal theory regards the state as a threat to individual freedom, while vulnerability theory desires a responsive state that will address human vulnerabilities.  In the contractual context, the responsive state simply refuses to enforce exploitative contracts.

Vulnerability theory eanbles us to appreciate that vulnerability is a normal part of life that arises as a product of state policies and politics.  Permitting exploitation of such vulnerabilities harms human dignities, and the responsive state ought not to permit such exploitation.   Professor Keren supports the recognition of a right not to be exploited through contractual means, and she notes that European law recognizes a norm against contractual exploitation.  In the U.S., where that norm is not legislatively enacted (and the prospects are dim), we might be able to make due with a beefed-up version of the doctrine of unconscionability.  

SchmitzAmy Schmitz gave a talk on Acccess to Consumer Remedies in the Squeaky Wheel System.  Her talk built on this paper from the Pepperdine Law Review.  By "squeaky wheel," Professor Schmitz refers to the fact that only 1/3 of consumers do anything when dissatisfied with a product and few go beyond just calling and complaining.  Very wealthy consumers are the most likely to complain about non-conforming consumer goods.  Those "squeaky wheels" often get the remedy they wanted and they end up being loyal customers because they are satisfied with customer service.  

The same goes with sales.  White men are more likely to bargain than women or minority groups.  An Ian Ayres study indicated that women paid a 40% mark-up over men in car sales and African Americans and Hispanics paid a 100% mark up over white male consumers.  Most people do not bargain or seek to change terms when they enter into contracts, and most people do not read or pay attention to most contractual terms.

So, how do we bring back remedies?  How do we compel sellers to stand by their goods? Professor Schmitz suggests that we need a new "handshake" to ignite justice in business-to-consumer contracting.  She thinks online dispute resolution (ODR) might be a way to do so in a low-cost, flexible, user-friendly and non-intimidating manner.

KnappCharles Knapp delivered a paper called Unconscionability: Once More Unto the Breach.  He has been tracing the progress of unconscionability doctrine in the U.S. in a series of law review articles, including this one and this one.  His main argument at this point is that courts have developed a comprehensive body of law on unconscionability.  The doctrine comes up a lot in all sorts of contexts, and the courts know how to deal with unconscionability.  The doctrine is more pervasive than one might think.  Unconscionable behavior also comes up frequently in the interpretation of state and federal statutes.  Courts have also recognized unconscionability as a sword as well as a shield, permitting recovery of large claims based on court findings that certain agreements are unconscionable.  Judges with conscience should not enforce unconscionable agreements because lots of people and corporations do not have consciences.

LinzerPeter Linzer commented on the papers.  He noted Chuck Knapp's important contribution in helping us to recognize that unsconscionability is not a doctrine that we embraced in the 60s and 70s and then it ran its course.  It is alive and well and continues to permit court to invalidate contracts when "something smells bad."  He noted that consumer contracts are far more complex today than they were in the age of face-to-face transactions, because we work through intermediaries (Amazon, Google, credit card companies) each of which has its own terms that we agree to by clicking or using the product.  

Professor Linzer expressed some skepticism that merchants will embrace Professor Schmitz's online dispute resolution mechanisms.  Doctrinal solutions to the problems of form contracts also fail because consumers don't want to litigate, and if they do, the odds are stacked against them.  He therefore prefers the European route of banning certain contractual provisions through blacklists and greylists.  So, we could simply ban pre-dispute binding arbitration in consumer contracts or choice of forum clauses that force the world to come to (e.g.) Microsoft when Microsoft already operates globally.   The new Consumer Financial Protection Bureau may be the entity that can actually do these things.  

Finally, Professor Linzer noted that consumer spending accounted for 71% of the GDP last year.  That makes contracts law an issue of public law.

February 24, 2014 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, February 22, 2014

KCON9: Second Saturday Morning Panel: Contracts & Employment

MillerOur own Meredith Miller started the panel with a paper on Getting Paid: Contracting in the Naked Economy.  Professor Miller's paper is in part a reflection on her experience with freelancers who have been doing work in the new economy and have been experiencing a hard time getting paid.  The amount due often does not rise to a level that would justify litigation.  Professor Miller began by discussing "the rise in independent work," which is a lose category encompassing the "jobless but not workless." These people are often highly skilled, and big companies prefer to have consultants rather than employees because of liabilities and costs attendant to employees that are not associated with contractual relations with constultants.  

On the other side, there is a literature promoting the benefits to workers in being independent workers.  There are advantages to not having a boss, to not having to commute, not having face-time at work, etc.  Why deal with people when you can stay home in the company of your cats?  But there are significant problems associated with being an independent worker, including significantly, not getting paid.  Professor Miller presented staggering statistics indicating that a very high percentage of independent workers have a hard time getting paid, and a very small percentage of them hire an attorney or actually proceed to court.  She illustrated the problem with this video.

 

Professor Miller suggested simple solutions for independent workers such as clear definitions and expectations in contracts, payments schedules, process payments or payments in advance, terminations fees and attorneys fees in cases of non-payment.  She recommended the Shake App as a means for quickly throwing together useable contracts.  She also discussed legislative reforms, such as New York's proposed Freelancer Payment Protection Act, and potential private solutions.

RachelarnowrichmanRachel Arnow-Richman next gave her paper on Modifying Employment ContractsProfessor Arnow-Richman began by discussing the abysmal case law on employment law, and by suggesting that modification is just another area in which the law is bad for workers and largely incoherent.  Employment is generally at will these days, and so the notion of modification is difficult because it is not entirely clear that there is a contract to modify.  The agreements are relational and the obligations are indefinite.  Still, where the employer regards the modification as legally binding (e.g., the creation of non-competes, arbitration provisions, or retraction or modification of a previously promulgated employer policy), the doctrine of modification is applicable. 

Professor Arnow-Richman noted two general approaches that have been applied to modification.  The unilateral approach focuses on the employee's at-will status with the employee's continued employment constituting the consideration for the modifcation.  For example, a Colorado case recently upheld the imposition of a non-compete clause on an at-will employmee because the employer can terminate the contract at any point.  If the employer can terminate, it can also introduce a new contract with new terms that the employee accepts by continuing employment.  This approach is troubling, because the worker obviously derives no benefit, and the notion that the benefit was continued employment is a sort of fiction, since that employment is still terminable at will.  Some courts enforce such unilateral modifications only in the case of some additional consideration, such as a raise.  In the at-will context, this is not all that helpful, since the additional consideration will not be relevant to the employee if she is sacked the following day.

 The second approach, which Professor Arnow-Richman prefers, is to require advance notice as the consideration.  This approach relates to a paper she gave at the AALS Section on Contracts meeting in 2013, which is now forthcoming in the Florida Law Review.  There have been cases in which courts have upheld modifications based on reasonable notice.  Unfortunately, the courts do not seem to know why they are doing so.  Still, Professor Arnow-Richman thinks that there is way to make sense of this approach, and it turns on treating even at-will employment as a bilateral contract.  If we so understand at-will employment, and we should, since employment begins with a promissory acceptance and the parties generally anticipate a long-term relationship, then reasonable notice is a standard term for modification.

February 22, 2014 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

KCON9: First Saturday Morning Session

I had the pleasure of chairing a panel populated by four young scholars all writing on Behavior, Bargaining, Incentives and Contract.

ChingKenneth Ching went first with his paper on Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts.  His paper focused on Cardozo's celebrated opinion in Jacob & Youngs v. Kent in which Cardozo held that, although Jacob & Youngs had not installed Reading pipes as called for in the contract, it had nonetheless substantially performed the contract by installing pipes of similar quality.  Professor Ching maintains that Cardozo was wrong on both the facts and the law in the case.  The contract in the case made clear that complete performance was a condition of payment, and the law was clear (then and now) that there can be no substantial performance of a condition.  Moreover, even if it were possible to substantially perform conditions, Jacob & Youngs did not do so, as Cardozo would have noted had he actually applied the test to the facts of the case.

The case is but a gateway to Professor Ching's larger point about collectivist and individualist approaches to contracts law.  Judge Cardozo's opinion seems to take a collectivist (or parternalist) approach to the doctrinal problems that the case raises.  That is, Cardozo thinks we are all better off if people aren't held to unreasonable terms that would require the destruction of a home to replace pipes with virtually identical pipes.  Judge McLaughlin's dissent seems to be more individualist, focusing on Kent's perspective and his right to insist on the contracts rights for which he had bargained.  Professor Ching's approach rejects both collectivist and individualist approaches.  He favors a Thomist approach that  tries to resolve conflict in line with reason and with the goal of promoting human flourishing.  Cardozo's opinion might be attractive from a Thomist perspective. Responding to a question, Professor Ching acknowledged that James Gordely, whose approach informs Professor Ching's, would find for Jacob & Youngs based on unconscionability.  Still, Professor Ching maintains, Judge Cardozo reached the wrong result because of his mischaracterization of the facts and the law.

VersteaNext up was Andrew Verstein who gave a (his first ever) Prezi presentation (which was super cool) on Ex Tempore Contracting.  His paper takes on a tradition that distinguishes between ex ante and ex post approaches to contracts interpretation.  In the former, the parties specify how the contract is to be interpreted ("use Reading pipes"), and in the latter, the parties delegate  interpretation to an adjudicator ("use merchantable pipes").  In the ex ante approach, the parties determine the meaning of the terms; in the ex post approach, some neutral third party (court or arbitrator) determines the meaning.  Ideally, parties decide between precise (ex ante) terms and vague (ex post) terms based on the costs and benefits of choosing specific terms in particular contexts.  Parties should draft to minimize the sum of ex ante  and ex post costs.   

But Professor Verstein contends that there is middle ground between before performance and after (alleged) breach.  Some contracts disputes can be resolved during performance.  The parties can specify that a particular third party will resolve disputes that arise during performance (ex tempore), and they can be resolved whether the terms are superficially vague or superficially precise.  The aim remains to reduce the costs of dispute resolution, and there are many situations in which it is most efficient for the parties to agree to ex tempore dispute resolution, especially in construction agreements.  Professor Verstein illustrates this point with the case of the Chinese Ertan Dam, a huge construction project.  All disputes relating to that dam were resolved within six months of the dam's completion.  This fact is attributable to the existence of netural expert panels (dipute boards) that addressed disputes as they arose and were able to sort out most disputes before the parties became too aggrieved.  Reviewing Florida dispute boards, Professor Verstein finds that 98% of disputes are resolved without further conflict and the cost is 10-50% of arbitration.  This is not really dispute resolution, Professor Verstein contends; it is ex tempore contracting.  And, it turns out, this happens a lot more often than we realize.

Professor Verstein's paper is forthcoming in the William & Mary Law Review and can be downloaded here.

EpsteinWendy Netter Epstein next presented her paper on Public Private Contracting and the Reciprocity Norm.  Professor Epstein's thesis is that in some public private contracts it is very difficult for the government to reduce agency costs by writing more detailed contracts.  Picking up on Professor Verstein's theme, Professor Epstein contends that in certain circumstances it is better to have less detailed contracts with mechanisms for ongoing dispute resolution during contract performance.  This approach is most appropriate where there is a shallow market (i.e., very few private contractors bid), a narrow application (e.g., private prisons) or a disempowered group of third-party beneficiaries (e.g., welfare recipients).  

While a lot of scholarship has focused on the need for more detailed contracts in this context so as to provide for strong oversight of private actors working in the public interest.  Professor Epstein suggests that the result has been to increase the size and complexity of government contracts.  However, this solution does not work well because, where there is no well-functioning market, the government cannot effectively moitor and discipline private contractors.  Moreover, one point of outsourcing is to promote innovation and creativity, and excessive government monitoring of private contractors undermines that aim.  Professor Epstein drawns on research in the behavioral sciences and contends that reciprocity norm, which rewards people for kind actions, constrains actors more powerfully than models based on rational actors would predict.  She thus thinks that strict enforcement mechanisms and sanctions regimes often undermine cooperation in the public private contracting context.  Governments might be better served by communicating their positive intentions towards private contractors by entering into looser contracts that would permit the parties to chart the course of the collaboration on an on-going basis as the project proceeds.

Zacks-webFinally, Eric Zacks presented a paper on The Moral Hazard of Contract Drafting.  One party to a contract can act opportunistically as an economic agent of the other party.   The agency relationship arises when one party asks the other party to draft the agreement.  That is a delegation of authority that would then be ratified upon acceptance.  The danger of agency costs arises in that there may be a disparity between the contract as conceived and the contact as written. 

There may be economic value in having one party be the contract preparer.  For example, that party might have greater experience and expertise in contract preparation.  But the drafter may write the contract is such a way as to enable it to take advantage of the other party after performance has begun.  Then the question arises whether the principal (the non-drafting party) is able to monitor the agent (the drafting party).  For example, in consumer contracts, it seems unlikely that non-drafting consumers would be capable of both foreseeing and monitoring the agency costs involved in allowing sellers to draft consumer contracts.  One solution is for the principal to hire an agent (e.g., a lawyer) to monitor the contract.  Or there might be outside monitoring services to prevent opportunistic behavior, such as regulatory agencies or courts, or statutory requirements that certain transactions be written in plain language.  

Courts are less likely to intervene when they think the principal (non-drafting party) is sophisticated and has the means to protect itself against opportunistic behavior by the agent (drafting party).  In the contractual context, we have more limited ways to discourage opportunistic behavior through incentives for good behavior.  

Those not satisfied with this summary of Professor Zacks' argument can download the entire thing here.

February 22, 2014 in Conferences, Government Contracting, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 21, 2014

KCON 9: Friday Afternoon Session: Contract Interpretation

BayernShawn Bayern presented his work in progress on Meta-contextualist Contract Interpretation.  Although Professor Bayern began by suggesting that, non-withstanding his previous presentations at this conference in which he denounced formalism and defended contextualist approaches, he really thinks that if asked in any given context, which interpretive regime should apply to a particular transaction, his answer is, "it depends."  In short, the answer to the question of textualism vs. contextualism is contextual.  Thus, Professor Bayern is a meta-contextualist.  Parties should be able to determine what interpretive regime will apply to them.  It might well be textualist, but (ah ha!), the text of the parties' agreement should not be dispositive in determining that issue.  Rather, courts should look to the context informing that agreement.   Happily, this seems to be what courts do.  If the parties make clear that they intend to be bound by their text, then courts should take a textual approach.  Otherwise, they should not just rely on the text, regardless how clear it is, but should review the text in the context of the negotiations.  After all, a contract negotiated at gunpoint should not be binding regardless of its clarity.

Gerhart_peterPeter Gerhart then presented his paper co-authored with Juliet Kostritsky, Efficient Contextualism.  The main point of the paper, like Professor Bayern's, is that the distinction between contextual and textual approaches is not particularly useful.  Our real goal is to get at the parties' obligations, and whether we do that with text or context does not really matter.  Both approaches, if pursued one-sidedly, have significant drawbacks.  Textualism can lead to literalism and absurd results.  Contextualism, if unconstrained, can be terribly inefficient and capricious.

Instead Professor Gerhart proposes "efficient contextualism" through determinate reasoning, which requires each party to identify the facts that must be true in order for their interpretation to succeed.  While Professor Bayern thinks that the methodology appropriate to each contract must be determined with specific reference to the context in which that contract was negotiated, Professor Gerhard suggests that there can be a uniform approach to interpretation that would in fact be what unites the law of contracts.  He used the facts of Jacob & Youngs v. Kent to illustrate.  What does "use Reading Pipe" mean in the context of that agreement and what result is surplus maximizing?  The answer depends on what the parties knew or reasonably should have known and intended at the time of the agreement.  Determinate reasoning should promote efficiency by narrowing the issues in dispute which can then be settled either through motion practice or by a quick trial to resolve the few factual disputes on which the parties' differing contractual interpretations hinge.

Amir14Finally, Amir Pichhadze (pictured left in an image from the Yazigallery), an SJD candidate at the University of Michigan whose recent successes have garnered a lot of attention, presented his paper on Transfer Pricing & Contractual Interpretation.  The subject matter of his paper is complex, so I will post an abstract that he has shared with me:

As the OECD’s Transfer Pricing Guidelines (“TPG”) and US Regulations recognize, the contractual terms of a controlled transaction are a ‘relevant circumstance’ (i.e. ‘comparability factor’) that ought to be taken into account when conducting the transfer pricing comparability analysis.

The purpose of this paper is to identify that domestic contractual interpretation law has a critical role in this comparability analysis. Firstly, it makes it possible to ascertain the substance of the terms, as they were intended by the parties. This is essential in order to properly recognized and give effect to the transaction as it was structured by the parties. Second, the parties’ contractual intentions make it possible to determine whether the controlled transaction’s surrounding circumstances are linked to the transfer price, which would make them a ‘relevant circumstance’ in the comparability analysis.

In Canada v. GlaxoSmithKline Inc. (“Glaxo case”), for example, if Glaxo Canada intended in the controlled transaction [which was a Supply Agreement with Adechsa, an associated foreign company] to bundle payments for goods received under the expressed terms of the controlled transaction as well as for services received from its parent company [Glaxo Group, which is located in the UK] under a separate Licence Agreement, then that Licence Agreement would have to be taken into account as a ‘relevant circumstance’ because it is linked to (i.e. it has an impact on) the transfer price.

 Part 1 of this paper identifies that in order to properly ascertain Glaxo Canada’s contractual intentions, in the Supply Agreement, the courts had to interpret that agreement by applying the relevant principles from Canada’s contractual interpretation law. By failing to do so, the courts have risked making an error of law in their analysis. The extent of their error will be explored in part 2 of this paper. The analysis of the courts’ approach in this case ought to serve an important function. It ought to alert courts in other countries to recognize the role that their domestic contractual interpretation law has in the transfer pricing comparability analysis, so that they avoid making the same errors as those made by the Canadian courts.

February 21, 2014 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

KCON 9 Lunch Speaker: Kingsley Martin

Kingsley Martin of KM Standards gave a luncheon address on "The Emergence of Contracts Standards and Its Future Impact on Legal Education."  He introduced us to some very impressive technology that can greatly increase the efficiency with which practicing attorneys review standard agreements.  Here's what it looked like:

Kingsley Martin

This technology enables an attorney to review a new document, say a merger agreement, by comparing it to a database of say 15 similar documents.  It immediately identifies the provisions that are similar to those found in the database, those found in the new document and not in the database, and those not found in the new document but common in other, similar agreements.  An attorney can then quickly pinpoint what is missing from the document and might need to be added and what unusual provisions might regard careful scrutiny.  

More particularly, the technology can also use the database to identify the most common language used in standard provisions and also variations in standard provisions so that one can see the range of how parties work out standard terms and pick out the language that is best suited for a particular deal. 

The steps are to identify the unitary elements of standard form agreements, identify the clauses components and then draft clauses in clear, standard English.  Ultimately, Martin thinks that such the technology can help attorneys negotiate optimal terms.  For example, if you are trying to find optimal compensation in an employment agreement at a public company, you could go on to EDGAR and get all the filings that disclose compensation terms.  The parties then should be able to discern from the data an appropriate compensation package.

How might this affect teaching?  He thinks his basic contracts clauses could be reduced to playing cards.  One might then run various simulations with students (or one could just choose to characterize the exercise as a "game" that they students "play").  The students can then choose and negotiate using the various cards and see if they can work out a satisfactory deal.  Or they may not be able to achieve a satisfactory deal through the use of common terms, and then the challenge is to see if they can draft unique language suitable to their ends.

Anyone interested in seeing what the cards might look like can check them out here.

February 21, 2014 in Conferences, Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)

And We're Off!

Jennifer MartinJennifer Martin (picutured at left), who did a simply incredible job putting together this conference, welcomed us this morning to sunny Florida.

We then got under way with a plenary session on the work of Linda Rusch (pictured below at right), the conference's honoree.  Candace Zierdt chaired the session and introduced Louis Higgins from West Academic.  He spoke of how great it has been for him to work with Linda as an author.  He claimed that in working with Linda on about 20 books(!), she has never once missed a deadline.

Amy Boss, whom Stephen Sepinuck recognized as the reigning "Queen of the UCC," then spoke of Linda's career as both an academic and as a law reformer.  Linda read a number of comments from an impressive array of  judges and practitioners who have worked with Linda on law reform projects.  Linda is the type of person whose work often goes unnoticed, because it takes place outside of the spotlight among small groups of extremely well-informed experts on commercial law but often comes to shape both complex federal regulations and state statutes.  People uniformly compliment Linda for her creativity and organization and for her sense of humor.  People are willing to work with Linda on all manner of projects because she is extremely competetent, organized, efficient, approachable and enjoyable to work with.  She clearly understands the theoretical underpinnings of commercial law but she never loses sight of the practical.

RuschNext, Neil Cohen spoke of Linda's constant presence in the firmament of commercial law.  Her work has not been flashy and evanscent.  Rather, she is a steady reminder that there are ways to improve on our work and our understanding of commercial law while also working at improving the law itself.  He commended her for her successful revision of Article 7 and for the "unbuilt architecture" of the revised Article 2 that the ALI approved but then fell at the Uniform Law Commission.   Professor Cohen made the excellent point that the remedies sections in the original Article 2, which are extremely well-conceived, are not especially well drafted.  Linda was significantly involved in reconceptualizing, re-organization and re-writing the Article 2 remedies sections.  The failure of state legislatures to adopt the revised Article 2 is a loss to all of us who teach the subject matter, because the legal principles are far more clearly laid out in the revised version (thanks to Linda's work) than they were in the original.

Larry Garvin spoke of having met Linda early in the process of UCC revision in 1996 and watched her move from back-bencher to leader in undertaking elegant revisions, especially to the Article 2 damages sections.  Professor Garvin basically added his "I agree" to Professor Cohen's comments and then moved on to an appreciation of Linda's scholarly work since the UCC revisions, focusing especially on her article in the SMU Law Review on the ongoing struggle for balance in Article 2 and on Linda's 2003 Temple Law Review article on products liability.  In sum, Professor Garvin noted that Linda's scholarship and law reform efforts generally are characterized by clarity and balance.

Finally, Stephen Sepinuck spoke on behalf of the younger scholars who have benefited from Linda's support and mentoring.  Professor Sepinuck highlighted as his favorite of Linda's articles her 2008 article in the Chicago-Kent Law Review on payment systems.   When the time comes to revisit the laws of payment systems, Professor Sepinuck suggested that this article will provide the basis for that work.  He also noted that the reason very few people know anything about the UCC's Article 7 is that Linda's draft made that section so clear that Article 7 issues almost never need to be litigated.   He also noted her important contributions to the Restatement (3d) of Restitution and Unjust Enrichment so as to make certain that nothing in the Restatement is inconsistent with anything in the UCC.

Linda said a few quick words of thanks to the panelists, whom she had gotten to know at many meetings at mediocre hotels in medium-sized cities close to major airports.  Professor Zierdt announced that the entire panel will be available on YouTube, so that's somethign to look for soon.

February 21, 2014 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

LIVE! From Miami

A number of us from the blog are here at KCON 9 in Miami -- the 9th Annual International Conference on Contracts.  We may do some live blogging on the panels, or we may just reflect afterwards on the sessions.  But for now, let's just say, highs in the 80s, lows in the 70s.

South Beach

'Nuf said.

February 21, 2014 in Conferences, Travel | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 18, 2014

A Conference to Honor Chuck Knapp

Save the Date:  Symposium to Honor Professor Chuck Knapp’s

50th Year of Law Teaching – October 24, 2014

  KnappThe University of California, Hastings College of the Law is sponsoring a symposium to honor Professor Chuck Knapp on the completion of his 50th year of law teaching.  (He began his teaching career at NYU School of Law in fall 1964.)  The date for the event is Friday, October 24, 2014, and it will be held on the campus of UC Hastings in San Francisco.  

The day-long program will include four panels that will focus on areas that are of particular interest to Professor Knapp, but that will also address topics with broad appeal to contract law scholars. The panel topics include:  

*The State of Contract Law

*The Future of Unconscionability as a Limit on Contract Enforcement

*The Politics of Contract Law

*The Role of Casebooks in the Future of Contract Law

Confirmed speakers include:

  • Professor Hazel Glenn Beh, University of Hawaii
  • Professor Carol Chomsky, University of Minnesota
  • Professor Jay Feinman, Rutgers University – Camden
  • Professor Danielle Kie Hart, Southwestern Law School
  • Professor David Horton, UC Davis
  • Professor Emily M. S. Houh, University of Cincinnati
  • Professor Thomas Joo, UC Davis
  • Professor Russell Korobkin, UCLA
  • Professor Peter Linzer, University of Houston
  • Professor Judith Maute, University of Oklahoma
  • Professor Deborah Post, Touro Law Center
  • Professor William Woodward, Temple University

Questions may be directed to Professor Harry G. Prince at UC Hastings by email at princeh@uchastngs.edu and by telephone at 415-565-4790.

February 18, 2014 in Conferences, Contract Profs | Permalink | TrackBack (0)

Monday, February 17, 2014

Teaching Conference at the University of Arkansas at Little Rock

Assessment Across The Curriculum

Institute for Law Teaching and Learning

Spring Conference 2014

Saturday, April 5, 2014 

“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning.  The conference will take place on Saturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas. 

Conference Content:  Sessions will address topics such as

  • ·         Formative Assessment in Large Classes
  • ·         Classroom Assessment Techniques
  • ·         Using Rubrics for Formative and Summative Assessment
  • ·         Assessing the Ineffable: Professionalism, Judgment, and Teamwork
  • ·         Assessment Techniques for Statutory or Transactional Courses

By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions. 

Who Should Attend:  This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.

Conference Structure:  The conference opens with an optional informal gathering on Friday evening, April 4.  The conference will officially start with an opening session onSaturday, April 5, followed by a series of workshops.  Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference.  The conference ends at 4:30 p.m. on Saturday.  Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law).  

Conference Faculty:  Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).

Accommodations:  A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201.  Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com.  The group code to use when making reservations for the conference is “LAW.” 

February 17, 2014 in Conferences | Permalink | TrackBack (0)

Tuesday, January 21, 2014

GLOBAL K: July Conference in Athens

There is a Call for Papers from the Athens Institute for Education and Research (ATINER) that readers of Global K might be interested in. The 11th annual International Conference on Law will be held 14-17 July 2014, in Athens, Greece, and there is usually a number of panels and presentations related to contracts and transactional law. Sponsored by ATINER’s Law Research Unit, this is a distinctly interdisciplinary and international event, with scholars from around the globe and all career levels exchanging views in both formal and informal venues. Panels will be organized around the expressed interests of those submitting abstracts. A post-conference, peer-review process will lead to publication of a volume(s) of final conference papers. The general deadline to submit abstracts for the law conference was 15 December 2013, with acceptance decisions within four weeks of submission. However, if you are interested in presenting, please send me your abstract, and I shall submit it to the organizing committee, of which I am a member.

 

In the eight years that I have been attending the conferences and events sponsored by ATINER, I have found the programs and the participants to be fascinating and refreshing. The interdisciplinary edge of the conferences and the genuinely cosmopolitan spirit that pervades them has made these a source of intellectual inspiration and friendship among academic colleagues from around the world.

 

ATINER was established in 1995 as an independent academic association with the mission to become a forum where academics and researchers from all over the world could meet in Athens to exchange ideas on their research and to discuss future developments in their disciplines. Since 1995, ATINER has organized more than 200 international conferences, symposia and events. It has also published approximately 150 books. Academically, ATINER consists of  twenty-seven Research Unitsorganized under six Research Divisions. Each Research Unit organizes an annual conference and undertakes various large and small research projects. Academics and researchers are more than welcome to become members and contribute to ATINER's objectives. If you want to become a member, you download the membership form. For more information about ATINER, you can visit the ATINER website or email to info@atiner.gr.

 

Michael P. Malloy

 

January 21, 2014 in Conferences | Permalink | TrackBack (0)

Monday, December 30, 2013

GLOBAL K: Socio-Economics Programs at the AALS Annual Meeting

As you may have read in Jeremy’s recent post, there are a number of programs at the AALS Annual Meeting in January 2014 that will be of interest to the Contracts-minded. I want to alert you to two unusual offerings that have a cross-over interest for Contracts scholars and teachers – (i) the day-long Annual Meeting of the Society of Socio-Economists (SOS) on the opening day of the AALS meeting on Thursday, 2 January 2014, from 9:00 a.m. to 5:30 p.m., at the New York Hilton Midtown; and, (ii) the extended program of the AALS Section on Socio-Economics on Sunday, 5 January 2014, from 9:00 a.m.to 5:00 p.m. One can drop in and out of sessions on either day.

 

I believe that the socio-economics approach to economic analysis enhances the understanding of the dynamics of contracts law and policy, and as a result I have become a member of SOS and expect to participate actively in these programs. The interdisciplinarity of the approach and its integration of economic analysis with other related methodologies make this approach particularly productive in the context of contracts. Socio-economics begins with the assumption that economic behavior and phenomena are not wholly governed or described by any one analytical discipline, but are embedded in society, polity, culture, and nature.  Hence, drawing in an integrated fashion on economics, sociology, political science, psychology, anthropology, biology and other social and natural sciences, and other disciplines, socio-economics regards competitive behavior as a subset of human behavior within a societal and natural context that both enables and constrains competition and cooperation.  Instead of assuming that individual pursuit of self-interest automatically or generally tends toward an optimal allocation of resources, socio-economics assumes that societal sources of order are necessary for people and markets to function efficiently.  People are not only rational actors pursuing only self-interest, and socio-economics seeks a more encompassing interdisciplinary understanding of economic behavior open to the assumption that individual choices are shaped not only by notions of rational action but also by emotive and humane expectations.

 

The following link leads to the SOS Annual Meeting web page and describes the Thursday program and provides an additional link that leads to a registration form (separate from the AALS Annual Meeting registration): SOS Annual Meeting.

 

To cover the expenses of the SOS Annual Meeting, there is a $75 registration fee ($10 for students). Registration allows the registrant and one additional person to attend. However, I understand that there is a partial reduction or complete waiver of the registration fee available, by making a request to  socioeconomics@aol.com (click or paste). The registration fee does not include the $15 cost of the box luncheon.  However, participants may attend the luncheon address without purchasing a box lunch.

 

For the Thursday SOS Annual Meeting, I would particularly direct your attention to certain topics introduced during the morning plenary session and then picked up in concurrent sessions later in the day: (i) Socio-Economic Theory; (ii) Sustainable Economic Recovery and Growth; and, (iii) Ownership and Wealth Distribution.

 

During the extended Section Program on Sunday, I would especially commend your attention to the following concurrent session from 9:50 - 10:50 a.m.: Exposing the Myth of Consent: Strictures from Neuroscience, Economics, and Relational Contracting, featuring Jennifer Drobac (Indiana - Indianapolis), Oliver Goodenough (Vermont), Robin Kar (Law and Philosophy, Illinois), Amanda Pustilnik (Maryland), and Margaret Ryzner (Indiana - Indianapolis).

 

 

Michael P. Malloy

 

December 30, 2013 in Conferences | Permalink | TrackBack (0)

Sessions of Interest at the AALS Annual Meeting This Week

AalslogoHere are some panels going on at the Annual Meeting in New York starting January 2nd that will be of interest to our readers:

Section on Jurisprudence, January 3, 3:30 PM:

Session Details 

Contract theorists have offered a number of different rationales to explain the central doctrines of contract law.  Contract law does not, however, operate in isolation: it interacts with other areas of the law (both public and private) to underwrite modern market activity, and thereby shapes larger economic relations and patterns of economic growth and decay.  Theorizing about contract thus inevitably invites deeper reflection on the place of public regulation in the private sphere.  

This session will discuss different approaches to contract theory, with special attention to their capacity to explain not only the simplest cases of classical contracting (i.e., where two parties of relatively equal bargaining power explicitly discuss and reach agreement on the complete terms of a bargain) but also the way modern contracting has developed in practice (i.e., where phenomena like form contracts, contracts of adhesion and boilerplate often dominate).  It will also discuss some of the outstanding problems for contract theory, including the declining role of voluntariness in modern contracting. What challenges do facts like these present for contract theory, and how might contract theory begin to address these challenges in a more holistic way?  Some new theories and emerging ideas will be discussed. 

 
Speaker: Aditi Bagchi, Fordham University School of Law 
Speaker: Robin B. Kar, University of Illinois College of Law 
Speaker: Avery W. Katz, Columbia University School of Law 
Speaker: Liam B. Murphy, New York University School of Law 
Speaker: Margaret-Jane Radin, The University of Michigan Law School 
Moderator: Ekow Yankah, Benjamin N. Cardozo School of Law 
 

  

NYC Panorama

Section on Commercial and Related Consumer Law and Section on Contracts Joint Program: The Future of Consumer Law, January 5, 9 AM

Session Details 

Consumer law is in the midst of rapid and probably substantial change, both in the U.S. and abroad. Stateside, we see change at every level of contract and commercial law, both in areas governed by thecommon law and in areas occupied by statutes and regulations. For the former, the largest recentdevelopment is the just-underway Restatement (Third) of Consumer Contracts, though to some degree other ALI projects have addressed particular aspects of consumer law (for example, the Principles of Software Contracts). NCCUSL similarly has taken up consumer contracting in the last decade or two, mainly with rather focused projects, but at time with broad-based ones (such as the attempts to revise and then amend Article Two of the UCC).  Federal law has likewise gone through upheaval in the aftermath of Dodd-Frank, in large part through the creation of the Consumer Financial Protection Bureau and the new activities of the Federal Trade Commission. Nor has the Supreme Court been silent, as its recent decisions on class arbitration attest. Outside the U.S., there have been many substantial attempts to rethink consumer contracting, of which recent European Union Directives on Consumer Rights and on

Alternative Dispute Resolution for Consumer Contracts are prominent examples.

In this joint session, a broad range of participants will discuss these developments from many perspectives—law reformers, academics (both legal and non-legal), regulators, the regulated, the courts. We anticipate many opportunities for give-and-take among panelists and between panelists and theaudience.

 .

Speakers
 
Speaker: Oren Bar-Gill, New York University School of Law 
Speaker: Omri Ben-Shahar, The University of Chicago, The Law School 
Co-Moderator: Amelia H. Boss, Drexel University School of Law 
Speaker: Ms. Julie Brill, Federal Trade Commission 
Co-Moderator: Larry T. Garvin, The Ohio State University, Michael E. Moritz College of Law 
Speaker: James Hawkins, University of Houston Law Center 
Speaker: Ms. Gail Hillebrand, Consumer Financial Protection Bureau 
Speaker: Florencia Marotta-Wurgler, New York University School of Law 
Speaker: David C. Vladeck, Georgetown University Law Center 

 

NYC Panorama
 

In addition, there will also be a concurrent session during the joint program on the morning of January 5, at 9:50 AM

Exposing the Myth of Consent: Strictures from Neuroscience, Economics, and Relational Contracting
Speaker: Jennifer A. Drobac, Indiana University Robert H. McKinney School of Law 
Speaker: Oliver R. Goodenough, Vermont Law School 
Speaker: Robin B. Kar, University of Illinois College of Law 
Speaker: Amanda C. Pustilnik, University of Maryland Francis King Carey School of Law 
Speaker: Margaret Ryznar, Indiana University Robert H. McKinney School of Law 

 

We look forward to meeting up in New York City!

[JT]

December 30, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 18, 2013

Last Call for KCON 9 in Miami

Those who are considering proposals for presentation or who would like to serve as moderators  at  the 9th International Conference on Contracts to be held at St. Thomas University in Miami February 21-22, 2014 should send them to Jennifer Martin (jmartin@stu.edu) right away as nearly all panels are full at this point. 

The Call for Papers, as well as travel and registration information, is available at the Conference website.   The  St. Thomas Law Review is doing a Symposium around the Conference and still has a few spots for papers that it will consider for publication if received no later than January 15, 2012.  

Miami
This is going to be a really wonderful conference this year all-conference honoree is Linda Rusch. Prof. Robin West (Georgetown) will be giving the plenary speech on Saturday and Kingsley Martin (KM standards) will be giving the talk at Friday's luncheon. 

Confirmed Participants include:

Kristen Adams - Stetson University

Bader  Almaskari - University of Leicester, England

Rachel Arnow-Richman- University of Denver

Reza Baheshti - University of Leicester, England

Wayne Barnes - Texas A&M University

Daniel  Barnhizer - Michigan State University

Thomas Barton  - California Western School of Law

Shawn Bayern - Florida State University

Christopher Bisping - University of Warwick

Allen Blair   

Amy Boss -  Drexel University

Steve Callandryllo - University of Washington

Miriam Cherry - University of Missouri

Kenneth Ching - Regent University

Neil Cohen      - Brooklyn Law

Nicolas Cornell - University of Pennsylvania - Wharton

Gerrit De Geest - Washington University School of Law

Sidney Delong - Seattle University

Scott Devito - Florida Coastal School of Law

Xingyan Ding - University of Sydney

Timothy Dodsworth - University of Warwick

Pamela Edwards - CUNY School of Law

Zev Eigen  - Northwestern University School of Law

Seyed Reza Ektekhari - Islamic Azad University - Gonabad Branch

Jamie Fox - Stetson University

Caio Gabra  - Federal University of Rio de Janeiro

Larry Garvin - Ohio State University

Peter Gerhart - Case Western

Katie Gianasi - Husch Blackwell L.L.P.

Jim Gibson - University of Richmond

Suren Gomtsyan - Tilburg Law School - Netherlands

Jack Graves -  Touro Law Center

Ariela Gross - USC Gould

Danielle Hart -Southwestern Law School

Max Helveston - DePaul University

Catherine  Imoedemhe - University of Leicester, England

Lyn  K.L. Tjon Soel Len - University of Amsterdam

Hila Keren  - Southwestern Law School

Nancy  Kim -   Cal Western University

Charles Knapp  - UC Hastings College of Law

Christiina Kunz - William Mitchell College of Law

Lenora Ledwon - St. Thomas University

Peter Linzer  - University of Houston

Joasia Luzak  - University of Amsterdam

Colin Marks  - St. Mary's University

Kingsley Martin - KM Standards

Jennifer Martin - St. Thomas University

John     Mayer  - CALI

Meredith Miller - Touro Law Center

Juliet    Moringiello      - Widener University Scool of Law

Murat  Mungan - Florida State University

John     Murray - Duquense University

Masaki Nakabayashi - University of Tokyo

Marcia Narine - St. Thomas University

Wendy Netter Epstein - DePaul University

Karl Okamoto - Drexel University

Joe Perillo  - Fordham University

Amir Pichhadze - University of Michigan (SJD Student)

Michael Pinsof - Attorney

Lucille Ponte   - Florida A&M University, College of Law,

Deborah Post - Touro Law Center

Michael Pratt - Queens University

Cheryl Preston - Brigham Young University

Val Ricks - South Texas College of Law

Roni Rosenberg - Carmel Academic Center, Law School, Israel

Linda Rusch  - Gonzaga University

Amy Schmitz - University of Colorado

Mark Seidenfeld - Florida State University

Gregory Shill -   University of Denver

Frank Snyder - Texas A&M University

Jeremy Telman - Valaparasio University

David Tollen  - Adili & Tollen, L.L.P.

Manuel Usted - Florida State University

Robin West -Georgetown University

Alan White  - CUNY School of Law

Robert Whitman - University of Connecticut

Pat Williams - Columbia Law School

Monica Woodard - St. Thomas University

Eric Zacks   - Wayne State University

Dustin Zacks   - King, Nieves & Zacks

Deborah Zalesne - CUNY School of Law

Candace Zierdt - Stetson University

[JT]

December 18, 2013 in Conferences | Permalink | Comments (1) | TrackBack (0)

Friday, November 22, 2013

KCON 9 in Miami, February 2014

We remind our readers that the Ninth International Conference on Contracts will be held next February in Miami.  All the details can be found here.  Here's the main information:

The 9th Annual Conference on Contracts

February 21-22, 2014

 The 2014 conclave will be hosted by 

St. Thomas University School of Law.  

Submissions

Deadline is Monday, December 16, 2013. 

Proposals submitted earlier will be accepted on a rolling basis. Proposals submitted after the deadline will be accepted on a space-available basis. Submissions should be directed to: 

  Miami

We now have a list of confirmed participatnts; they are:

Kristen Adams – Stetson University
Bader  Almaskari - University of Leicester, England
Reza    Baheshti - University of Leicester, England
Wayne Barnes –  Texas A&M University
Daniel  Barnhizer – Michigan State University
Thomas Barton  – California Western School of Law
Shawn Bayern –  Florida State University
Amy Boss – Drexel University
Steve   Callandryllo – University of Washington
Miriam Cherry –  University of Missouri
Kenneth Ching – Regent University
Neil Cohen      –  Brooklyn Law
Gerrit   De Geest  – Washington University School of Law
Sidney Delong            –  Seattle University
Scott Devito    –  Florida Coastal School of Law
Zev Eigen –  Northwestern University School of Law
Larry   Garvin –  Ohio State University
Katie Gianasi –  Husch Blackwell L.L.P.
Jim Gibson –  University of Richmond
Ariela  Gross   –  USC Gould
Nancy  Kim     –  Cal Western University
Christina Kunz –  William Mitchell College of Law
Lenora  Ledwon – St. Thomas University
Joasia   Luzak  –  University of Amsterdam
Kingsley Martin          –  KM Standards
Jennifer Martin –  St. Thomas University
John Mayer     –  CALI
Murat  Mungan –  Florida State University
Dr. John Murray – Duquense University
Marcia Narine –  St. Thomas University
Wendy Netter Epstein – DePaul University
Karl Okamoto – Drexel University
Joe Perillo        –  Fordham University
Amir    Pichhadze – University of Michigan (SJD Student)
Michael Pinsof - Attorney
Lucille Ponte   – Florida A&M University, College of Law,
Deborah Post –           Touro Law Center
Michael Pratt –            Queens University
Cheryl Preston            –  Brigham Young University
Val Ricks        –  South Texas College of Law

Roni Rosenberg –  Carmel Academic Center, Law School, Israel
Linda Rusch    –  Gonzaga University
Mark Seidenfeld – Florida State University
Gregory Shill – University of Denver
Frank   Snyder –  Texas A&M University
Jeremy Telman –  Valparaiso University
David  Tollen  – Adili & Tollen, L.L.P.
Manuel Usted – Florida State University
Robin  West    –  Georgetown University
Robert Whitman – University of Connecticut
Eric Zacks       – Wayne State University
Deborah Zalesne         – CUNY School of Law Martin, Jennifer (2)
Candace Zierdt           –  Stetson University

For more information about the Conference contact lead conference organizer:

Professor Jennifer S. Martin (pictured)
at (305) 474-2420, or via email at jmartin@stu.edu

[JT]

November 22, 2013 in Conferences | Permalink | TrackBack (0)

Tuesday, October 22, 2013

In Defense of Student-Edited Journals

Meredith Miller's post from yesterday touched on a topic that most law professors have considered at some point or other.  For years, there has been a movement to replace student-edited law reviews with a more professional model.  Judge Posner threw his support behind an operation called PRSM -- the Peer Reviewed Scholarship Marketplace.  But the idea has not caught on (judging by the stagnating PRSM membership).  In my view, it is a fine thing to have different models out there, so it is fine with me that some student-edited journals are experimenting with peer review (and I hear anecdotally that many student-edited journals have been doing so informally all along).  But my main point here is to stress how we all benefit from student-edited journals, and law professors should stop griping and realize how lucky they are to have the current arrangement.  

I have written on this subject before here, emphasizing the benefits students derive from their work on law journals.  Here is the heart of my argument from that previous post:

 Some of the best training that happens at law schools happens at law reviews.  I came to law school with ten years of scholarly experience under my belt, because I had written a doctoral dissertation, published historical scholarship and taught before making the jump to law school.  Still, my skills as a researcher skyrocketed in my third year as a law student when I was responsible for overseeing a team of cite and substance editors on a number of review essays that we published in our Review of Law and Social Change.  The evidentiary standards for legal scholarship are far more exacting than they are in the humanities and the non-quantitative social sciences.  No claim can be made without authority.  As a result, I became a far more intrepid researcher, and I unlearned intellectual habits acceptable to my former field of study and adopted intellectual habits essential to successful lawyering.  

In this post, I would like to address some of the advantages of student-edited journals from the author's perspective.  The main advantages of student-edited journals is that they are plentiful and rely on free labor.  Since as I explained above, the labor is a valuable component of legal education, I don't feel too badly for the students who are not paid for their editorial work.  But their efforts are responsible for raising the level of legal scholarship well above that of other humanities and social sciences.  

Having more journals to publish in is good.  Allow these adorable kids to explain:

 

You see, it's not complicated.

When I was a historian, I submitted articles for peer review.  I waited 3-6 months for readers' reports.  Sometimes the readers' reports were positive, and my article got published without further editing beyond typesetting.  Other times I was told to revise and re-submit.  In general, I would say that the suggested revisions were recommendations that I recast my own research to satisfy the reviewer, and I was not always convinced that doing so would enhance the quality of the piece.  But I would do my best to revise, and there were times when my attempts to satisfy the reviewer were unsuccessful.  I could move on to the next journal, but I don't think I ever did.  I published in a specialized field, and there were usually only a couple of journals where it made sense for me to publish.  The universe of qualified reviewers was also limited.  Two of my historical writings, to which I devoted months of work were never published, and one of them should have been.  

Without a doubt, legal scholars benefit from being able to submit simultaneously to scores of publications.  If none of those publications bite, we wait six months for the next round and try our luck with a fresh crop of editors who may not have the benefit of a meaningful institutional memory.  At some point, worthwhile scholarship finds its way into print, and as long as the publication is included on a database, and most journals are, students, attorneys, and scholars can find it regardless of the prestige of the publication.  

Okay, so what is the downside?

One potential downside is that a lot of useless nonesense gets published.  I would be very interested to see evidence that peer review prevents the publication of useless nonesense.  People bandy about the statistic that 40% of law review articles are never cited.  Okay, is a higher percentage of peer reviewed material cited?  In any case, as I wrote in another post:

As for scholarship itself, Brian Leiter was here a few weeks ago to deliver our annual Seegers Lecture on Jurisprudence.  In response to a question about the value of scholarship, he said something very close to my view.  Most of what gets published is a dead end.  But a certain percentage of it is very valuable, and there is no way of telling ex ante which scholarship is going to move the ball in a meaningful way.  That's why we need lots of people doing their best to move the ball and why we need to continue to support faculty scholarship. 

The other downside is that students are incompetent as editors not only in selection but also in the way they deal with the text.  This, I say, is nonsense.  Peer review may be more rigorous but peer editing clearly is not.  Whenever I have submitted essays for peer review, the final product is almost identical to the original, except for formatting and the repair of the odd typo.  Student editors work hard to improve the quality and clarity of the writing, and they also find authority where it is lacking.  They make us seem much more lucid, knowledgeable and careful than we really are -- or than we are when we first submit our offerings up for publication.  

The last time I published in a peer-review, peer-edited journal, my piece was: 1) accepted, 2) rejected following a coup on the editorial board, and 3) re-accepted after the coup unraveled.  The re-acceptance was conditional on revisions.  The readers' reports came to me nearly two years after the original submission, but I received many vague missives from the journal suggesting that I had very little time to make the necessary changes or the journal would pass on publication.  I made the requisite changes (which were idiotic and necessitated a new research project) and re-submitted.  For months, I heard nothing.  My inquiries recieved no response until I received the page proofs.  The page proofs corresponded to my original draft.  That's right, the "professional editors" who insisted that I revise my article were then prepared to publish my article without the revisions.  Publication followed some months later, about two years after the article was first accepted for publication.  I know we all have horror stories about student editors, but could they really have done much worse than that?

I have been storing these thoughts up for a while, hoping that I would one day have the time to publish them in a student-edited law journal.  For now, a blog post will have to do.

[JT] 

October 22, 2013 in Conferences, In the News, Law Schools, Recent Scholarship | Permalink | TrackBack (0)

Friday, October 18, 2013

U. of Chicago Law to Host Panel on the Contracts Scholarship of Douglas Baird

Baird, Douglas 2013Lunchtime Panel: Baird's Contracts
Date: Wednesday, October 23, 2013 - 12:15pm - 1:30pm
Location: 
 Classroom II
Contact info: Marjorie Holme, mholme@uchicago.edu

Reconstructing Contracts: The Contracts Scholarship of Douglas Baird

A panel of leading scholars discuss Douglas Baird's pathbreaking work on Contract Law published in his new book "Reconstructing Contracts."

  • Avery Katz, Vice Dean and Milton Handler Professor of Law, Columbia Law School
  • Stewart Macaulay, Malcolm Pitman Sharp Professor & Theodore W. Brazeau Professor, University of Wisconsin Madison Law School
  • Ariel Porat, The Alain Poher Chair in Private Law, Faculty of Law, Tel Avivi University

Moderated by Omri Ben-Shahar, Leo and Eileen Herzel Professor of Law and Economics and Kearney Director of the Coase-Sandor Institute for Law & Economics, University of Chicago Law School

Lunch will be provided.

 

[JT]

October 18, 2013 in Books, Conferences, Contract Profs, Recent Scholarship | Permalink | TrackBack (0)