Monday, December 30, 2013
Section on Jurisprudence, January 3, 3:30 PM:
Section on Commercial and Related Consumer Law and Section on Contracts Joint Program: The Future of Consumer Law, January 5, 9 AM
In addition, there will also be a concurrent session during the joint program on the morning of January 5, at 9:50 AM
We look forward to meeting up in New York City!
Wednesday, December 18, 2013
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 ([email protected]) 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.
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
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
Friday, November 22, 2013
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.
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:
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
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 [email protected]
Tuesday, October 22, 2013
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.
Friday, October 18, 2013
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.
Wednesday, September 18, 2013
At the annual International Conference on Contracts coming up in February in Miami, the assembled contracts profs will be be honoring Linda Rusch.
Linda J. Rusch is a retired professor of law as of August 2012. She was the inaugural holder of the Frederick N. and Barbara T. Curley Professor in Commercial Law at the Gonzaga University School fo Law from 2005-2010. She was also a co-director of the Law School’s Commercial Law Center. She graduated from the University of Iowa College of Law with highest distinction and was elected to the Order of the Coif.
Prior to joining Gonzaga, she was a professor of law teaching in the area of commercial law at Hamline University School of Law in St. Paul, Minnesota. Prior to joining the Hamline faculty in 1992, she practiced commercial law and bankruptcy as an associate with the Minneapolis firm of Faegre & Benson, and clerked for the Honorable Milton I. Shadur, United States District Court, Northern District of Illinois.
Over the course of several years, Professor Rusch has been involved in the revision of the Uniform Commercial Code. From 1996-99, she served as the Associate Reporter for the Uniform Law Commission and the American Law Institute Drafting Committee to Revise Article 2 of the UCC. From 2000 to 2003, she served as a co-reporter for and member of the ULC-ALI Drafting Committee to revise UCC Article 7. She also was the Reporter for the ULC Study Committee on Payment Issues from 2008 to 2011. She currently serves as a member of the Permanent Editorial Board of the UCC, and is on the Executive Committee for the PEB,
Professor Rusch is actively involved in many national and local bar groups. She has filled many leadership roles in the American Bar Association Business Law Section, including as a Chair of the Section from 2011-12, as a chair of the Committee on the UCC from 1999-2003. In addition, Prof. Rusch is a past President of the American College of Commercial Finance Lawyers. She is also a member of the American Law Institute and the American College of Bankruptcy. As a member of the American Law Institute, she has participated in the Members Consultative Groups on the development of the Restatement of Restitution, the Principles of Software Contracting, and the Restatement of Torts (Third): Economic Losses.
Prof. Rusch has published numerous articles and books on the Uniform Commercial Code and bankruptcy, and is a frequent lecturer on those topics.
We are looking forward to joining our colleagues in honoring Linda Rusch.
Monday, September 16, 2013
All the details can be found here. Here's the main information:
Join us Winter 2014 in the Sunshine State for
The 9th Annual Conference on Contracts
February 21-22, 2014
The 2014 conclave will be hosted by
St. Thomas University School of Law
and will be chaired by Professor Jennifer S. Martin (pictured).
The Ninth International Conference on Contracts will bring together scholars who teach and work in the areas of contract law and practice for two days of panels and scholarly presentations. The Conference is unique in the breadth of its coverage of contract-related issues and its mix of senior and junior scholars.
One of its chief goals is to foster and encourage dialogue and relationships among scholars at all levels, and to bring together those whose work comes from different perspectives.
For more information about the Conference contact lead conference organizer:
Professor Jennifer S. Martin at (305) 474-2420, or via email at [email protected][JT]
Monday, September 9, 2013
Brooklyn Law School is sponsoring a conference entitled What Law Governs International Commercian Contracts? Divergent Doctrines and the New Hague Principles. More information can be found here.
Here are the basics:
Brooklyn Law School
250 Joralemon Street
Brooklyn, New York
About the Symposium
With the continued dramatic growth of international commerce, a critical question has become even more important: What law governs the contracts behind the commerce? Key issues include:
- In much of the world, courts accept the choice of the parties to a contract as to what law will govern it – but this principle is not accepted everywhere. Even in nations where it is accepted, differences abound.
- Should the ability of parties to select the law governing their contract be approached differently in the increasingly prevalent world of international commercial arbitration?
- In many arbitral systems, parties may select not only the law of a sovereign state, but also “rules of law” emanating from non-state sources, such as “principles” promulgated by international organizations. Should courts show the same deference to the parties’ choice of non-state law?
The Hague Principles on Choice of Law in International Contracts, prepared by the Hague Conference on Private International Law and now nearing completion, are expected to be quite influential, both in establishing the principle of party autonomy to select the law governing commercial contracts and in developing the principle and its limits.
This symposium addresses the important issues described above – from the perspectives of both current law and the “best practices” represented by the draft Hague Principles.
Monday, August 26, 2013
The annual Central States Law Schools Association conference is coming up. The conference is not subject specific, but usually includes panels on contracts and commerial law. In my experience, it provides a very pleasant, intimate, and collegial setting in which to present one's scholarship.
Although CSLSA is a regional association of law schools, membership is not a prerequisite to attend and present. Faculty from all schools are welcome.
Monday, June 3, 2013
[Editor's note: We interrupt our Boilerplate Symposium to bring you this report from Shubhs Ghosh on another discussion of Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law.
A panel of five contracts law scholars met to discuss Margaret Radin’s Boilerplate in front of an audience of over thirty attendees at the annual Law & Society meeting in Boston on Saturday, June 1, 2013. Tal Kastner of Princeton University did a great job moderating and raising a provocative discussion. Although scheduled to end at 6:15 pm, the attendees stayed until almost 7 pm. What follows is a brief write-up of the discussion with my own comments interspersed.
The readers included Stewart Macaulay, David Campbell, Aditi Bagchi, Peter Benson, and Guy Rub, speaking in that order. Stewart was positive about the book and began his comments with a reminder of the anti-lawsuit attitude given voice in tort reform. The restrictions on rights that occur through boilerplate, he suggested, is a further reflection of this attitude as boilerplate drafters limit remedies and rights of consumers and their access to courts. As Stewart put it, advocates of court reform complain about money-chasing tort and class action attorneys but there is no mention of how much corporate lawyers make in drafting rights-limiting boilerplate clauses. Stewart ended his comments with skepticism about Radin’s proposals for top down reform from the legislature, whether federal or state.
David Campbell was more critical of the book, especially what he described as Radin’s idealized portrait of the contract bargain. Not all terms are always deliberated by the parties, but nonetheless contract terms can be read into the contract by courts. He was particularly skeptical that the solution lay outside contract. Properly applied, doctrines like formation, unconscionability and other contract terms can limit the negative applications of boilerplate. Unfortunately, some courts in the United States have not been enforcing the existing law in a reasonable manner.
Aditi Bagchi emphasized Radin’s theme of democratic degradation, boilerplate’s role in limiting key rights of citizenship through terms that remove rights of access to courts and compensation for injury. Although Aditi was less concerned with loss of procedural rights (such as class actions), she agreed that boilerplate terms should receive greater scrutiny when they involve limitations on compensation for personal injuries. Introducing the concept of a social wage, Aditi made the point that liberal society extols contractual freedom as part of a broader array of rights delineated in tort, property and other regimes. What society deems to be waivable through contract rests on choices regarding what should be allocated through markets and what should be allocated through political processes. Boilerplate allows a shift of these choices without democratic deliberation. The market de facto and de jure determines individual rights.
Peter Benson elaborated on some of the critical points raised by David Campbell. Introducing a comparative perspective from Canada and the EU, where boilerplate terms are regulated, Peter emphasized doctrines within the United States that could also serve to limit the imposition of noxious terms through boilerplate. The challenge Peter posed is identifying a legal standard for what terms would be deemed noxious, or troublesome. Commenting on Radin’s development of such standards subsequent to the publication of her book, Peter questioned whether such standards would be workable. He described them as highly manipulable and indeterminate.
Guy Rub ended the formal comments with criticisms of Radin’s proposed market-based and state-based solutions. Disclosure-type solutions would not work even if disclosures were simplified and coded so that they could be readily digested. Consumers either would tune such information out or would be willing to trade off unfavorable terms for a lower price. Similarly, any legislative solution would be subject to the same capture that gave rise to boilerplate. Guy provided the example of federal legislation on arbitration as an example. Guy did suggest grass roots-like solutions involving activism through exposure of noxious terms through social media and blogs. Such activism could be more effective, he suggested, than top-down regulation.
The interactions continued with Peggy’s responses. She took issue with some broad characterizations of her book, particularly her view of an idealized contract. Her concern is with overreaching by business entities in drafting terms that severely limit the rights of consumers. As she pointed out, she never said that no rights can be waived or limited. But some companies go too far in limiting their liability in the daycare and elder care contexts. Such noxious terms, she suggested, may have more to do with insurance companies than with the actual service providers. Nonetheless, the market dynamics lead to a market failure that occurs through boilerplate terms that severely shift risks to consumers in market transactions. The world does not have to be that way. Drawing a connection with her work on market inalienability, Peggy argued that boilerplate forces consumers to alienate fundamental attributes of citizenship through take it or leave it offers. Sympathetic to the comments on her proposed solutions, she tantalizingly suggested that a possible solution would be a return to an earlier common law of contract that existed before the law took a pro-business turn. She appealed to an older generation of common law judges to offer a correction to this turn. I wondered whether such judges actually exist anymore.
Discussion afterward was lively. Tal Kastner emphasized points about democratic degradation and the decline of communication and deliberation. Richard Lempert pointed out the betrayal of trust that occurs with boilerplate as consumers are invited to trust companies through the signing of boilerplate terms that are designed to “screw consumers.” Richard suggested that government may be trustworthy than private businesses, contrary to contemporary rhetoric. Amy Kastely raised a point about the drafting of the Restatement on Consumer Contracts that might exacerbate the problems with boilerplate. Robert Gordon questioned whether boilerplate should even be referred to as private ordering since it represented the imposition of terms by dominant players backed up by the sanctioning power of the state. Other points (which I could not attribute) were made about the regulatory approach to standard terms in the Netherlands and the possibilities of consumer activism to expose consumer-unfriendly terms that prominent companies impose through boilerplate.
The Author Meets Reader panel was a stimulating event. My own thoughts are that in some instances boilerplate in contract is used to realign the rights of consumers without having to engage in the democratic process. The consumer rights that companies may want to delimit could be imposed through legislation. In many instances, such legislative efforts would fail. Boilerplate provides a way to impose a change in underlying entitlements without having to engage the political process. In such situations, there is a real threat to the democratic process as market processes dominate.
The discussion of private power, public power, and individual rights made me think of Shelly v. Kramer, the landmark case in which judicial enforcement of racially restrictive covenants were deemed to be state action for the purposes of the Equal Protection Clause. If boilerplate is substituting for legislation, then perhaps noxious terms should be the basis for a due process or other constitutional violation. I raise this point to highlight the underlying issues as well as to pinpoint solutions. No court would be likely to adopt such a broad reading of Shelly v Kramer, a case that has already been limited to its narrow facts. But where constitutional efforts invariably fail activism on the legislative and through market pressure serve as more effective alternatives. Margaret Jane Radin’s Boilerplate is a great book about legal reform in a world where contracts and market processes have been used to displace democratic deliberation and legislation.
[Posted, on Shubha Ghosh's behalf, by JT]
Tuesday, May 7, 2013
CALL FOR PAPERS: CLASSCRITS VI: Stuck in Forward? Debt, Austerity & the Possibility of the Political
Stuck in Forward?
Debt, Austerity and the Possibilities of the Political
Southwestern Law School &
U.C. Davis School of Law
Keynote Speaker: Professor Akhil Gupta, Department of Anthropology
Director, Center for India and South Asia, University of California, Los Angeles
What are the possibilities and alternatives for a genuinely progressive economic project in an age of resurgent neoliberal policies and politics, worldwide shifts in population and demographics, and hegemonic economics?
How can we address the challenges of our age including, but not limited to: globalization; shifting power relationships between the developed world and formerly “third world” countries; massive intergenerational and upward transfers of wealth; abject poverty; staggering debt; wage stagnation; a declining middle class; an increasingly dysfunctional food system; and environmental and climate risks that will require concerted national and international efforts.
Stuck in Forward? Debt, Austerity and the Possibilities of the Political will address these questions by bringing together scholars, economists, activists, policymakers, and others to critically examine and take stock of who wins, who loses, how the law facilitates the hierarchical and spatial distribution of winners and losers, and how we may use law and politics to develop both real and utopian interstitial spaces of classlessness within the new post-recession global order.
We invite panel proposals and paper presentations that speak to this year’s theme as well as to general ClassCrits themes. In addition, we extend a special invitation to junior scholars (i.e., graduate students or any non-tenured faculty member) to submit proposals for works in progress . A senior scholar as well as other scholars will comment upon each work in progress in a small, supportive working session.
Please visit the ClassCrits website for more information about this year’s themes and topics.
For the full call for proposals, contact any member of the Conference Planning Committee:
Danielle Kie Hart, Southwestern Law School
Tonya Brito, The University of Wisconsin Law School
Athena Mutua, SUNY Buffalo Law School
Lucille Jewel, John Marshall Law School
Martha McCluskey, SUNY Buffalo Law School
Jessica Owley, SUNY Buffalo Law School
Matthew Titolo, West Virginia University College of Law
René Reich-Graefe, Western New England University School of Law
Monday, March 25, 2013
Online Symposium on Oren Bar-Gill's Seduction By Contract, Part IID: Alan White, The New Law and Economics and the Subprime Mortgage Crisis
This is the fifth in a series of posts on Oren Bar-Gill's recent book, Seduction by Contract: Law Economics, and Psychology in Consumer Markets. The contributions on the blog are written versions of presentations that were given last month at the Eighth International Conference on Contracts held in Fort Worth, Texas. This post is the fourth (and last) of a series within the series contributed by Professor Alan White of the CUNY School of Law (pictured at right).
Part III: Prescriptions for Future Mortgage Regulation When Information Is Not Enough
In my prior posts, I discussed two aspects of Oren Bar-Gill’s book chapter on subprime mortgages: the behavioral economics insights that describe how these disastrous contracts came to be, and the norms and values that the law should promote in regulating the mortgage market in light of the subprime fiasco. I now turn to the conclusion of the chapter, and its policy recommendations. In brief, Oren proposes two steps, an all-in loan price disclosure by means of an improved annual percentage rate (APR) formula, and requiring disclosures earlier in the mortgage shopping process. “Disclosure regulation is the right place to start . . . A disclosure mandate seems to provide . . . an effective response to the behavioral market failure in the subprime and Alt-A mortgage markets.”
Given the range of regulatory tools already adopted by Congress, the Federal Reserve and the CFPB, and the extensive damage done by the subprime mortgage market, this prescription is surprisingly timid. Oren acknowledges that Dodd-Frank includes substantive regulation of contract terms, but nevertheless adheres to a very traditional economist’s solution – fix information problems and the market will maximize welfare.
But the whole point of behavioral economics, in the context of mortgage loans, is that information isn’t enough. Even borrowers who understand risky and expensive loan terms will still choose them, and suffer welfare harms as a result. Subprime brokers were also very adept at using mandatory disclosures to mislead consumers and reframe choices. Moreover, Oren nicely summarizes the evidence that literacy and math skills of most adults are not up to the task of assessing mortgage risk and making complex price trade-offs, for example with adjustable rates and prepayment penalties, even with perfect disclosures.
Although the recommendations are not presented as exclusive, Oren implicitly comes out favoring consumer autonomy as the primary norm for mortgage regulation. To my mind this evades some more difficult choices for the law of mortgage contracts, where serious attention to welfare maximization and economic equity would call for stronger legal intervention, but where we can recognize that autonomy is a value as well.
On the question of foreclosure risk, for example, the Dodd-Frank act is paternalistic. It requires lenders to make a reasonable determination of the borrower’s repayment ability, i.e. it prohibits excessive foreclosure risk. The new law’s regulatory approach is an interesting balance between consumer autonomy and welfare maximization. The CFPB is charged with prescribing contract terms that are deemed safe, and loans with those terms are immune from legal attack. Loans outside the safe harbor contract design are legal, but may be attacked under the broad affordability standard in the statute. This is a form of nudging or choice architecture advocated by other behavioral economists.
There are also important value trade-offs in current debates around fair lending laws, such as how to apply the disparate impact test to mortgage lending, that directly confront the normative conflicts between autonomy, welfare maximization and racial justice. A prescription to begin with disclosure seems ill-suited to addressing the huge impact subprime mortgage lending had on racial wealth distribution in our country, and ill-suited to preventing future systemic mortgage contract failures and their disastrous consequences for homeowners and the economy generally.
[Posted, on Alan White's behalf, by JT]
Monday, March 18, 2013
For those of you who missed the discsussion Oren Bar-Gill's book at the Eighth International Conference on Contracts held in Fort Worth, TX last month, we will be providing a written version of the panel over the next week or so. As we did at the conference, each commentator on the book will address a different substantive chapter (the introductory chapter sets out the model that informs the three substantive chapters). Professor Bar-Gill will then weigh in with his responses at the end.
The participants are as follows:
Professor Angela Littwin will address Seduction by Contract's chapter on credit cards. Professor Littwin studies bankruptcy, consumer, and commercial law from an empirical perspective. Most recently, she has written about pro se filers in bankruptcy and the relationship between consumer credit and domestic violence. She was one of the principal investigators on the 2007 Consumer Bankruptcy Project, which has been the leading study of consumer bankruptcy for the past 25 years.
Professor Littwin received her undergraduate degree from Brown University and graduated from Harvard Law School in 2002. After law school, she clerked for the Honorable Rosemary Barkett of the U.S. Court of Appeals for the Eleventh Circuit and founded ROAD (Reaching Out About Depression), a community-organizing project for low-income women. Prior to her appointment at the University of Texas School of Law, she was a Climenko Fellow and Lecturer on Law at Harvard Law School.
Professor Littwin teaches bankruptcy, secured credit, and a seminar on the regulation of credit cards at the University of Texas School of Law, where she has been on the faculty since 2008.
Here recent publications include:
- Escaping Battered Credit: A Proposal for Repairing Credit Reports Damaged by Domestic Violence, 161 University of Pennsylvania Law Review 363 (2013);
- Coerced Debt: The Role of Consumer Credit in Domestic Violence, 100 California Law Review951 (2012); and
- The Do-It-Yourself Mirage: Complexity in the Bankruptcy System, in Broke: How Debt Bankrupts the Middle Class at 157 (Katherine Porter, ed., Stanford: Stanford University Press, 2012).
Professor Littwin's post can be found here.
Professor Alan White, who will comment on the book's chapter on mortgages, joined the faculty at the CUNY School of Law in 2012. He teaches consumer law, commercial law, bankruptcy, comparative private law and contracts. He is a nationally recognized expert on credit regulation and the residential mortgage market. Professor White is a past member of the Federal Reserve Board’s Consumer Advisory Council, a member of the American Law Institute, and is currently serving as reporter for the Uniform Law Commission’s project on a Residential Real Estate Foreclosure statute. He is quoted frequently in the national media, including the New York Times, the Wall Street Journal and the Washington Post, in connection with his research on the foreclosure crisis. He has published a number of research papers and articles on housing, credit and consumer law issues, and testified before Congress and at federal agency hearings on the foreclosure crisis, bankruptcy reform and predatory mortgage lending.
Before becoming a full-time teacher, Professor White was a supervising attorney at the North Philadelphia office of Community Legal Services, Inc., and was also a fellow and consultant with the National Consumer Law Center in Boston and adjunct professor with Temple University Law School and Drake University School of Law. His legal services practice included representation of low-income consumers in mortgage foreclosures, class actions, bankruptcies, student loan disputes, and real estate matters. Mr. White received his B.S. from the Massachusetts Institute of Technology and his J.D. from the New York University School of Law.
His recent publications include:
- Losing the Paper – Mortgage Assignments, Note Transfers and Consumer Protection, 24 Loyola Consumer Law Journal 468 (2012)
- Credit and Human Welfare: Lessons from Microcredit in Developing Nations, 69 Washington & Lee Law Review 1093 (2012)
- The Impact of Federal Pre-emption of State Anti-Predatory Lending Laws on the Foreclosure Crisis, 31 Journal of Policy Analysis and Management 367 (2012) (with Lei Ding, Carolina Reid and Roberto Quercia)
- The Impact of State Anti-Predatory Lending Laws on the Foreclosure Crisis, 21 Cornell Journal of Law & Public Policy 247 (2011) (with Lei Ding, Carolina Reid and Roberto Quercia)
- State Anti-Predatory Lending Laws and Neighborhood Foreclosure Rates, 33 Journal of Urban Affairs 451 (2011) (with Lei Ding, Carolina Reid and Roberto Quercia)
Alan's first post is here.
Alan's second post is here.
Alan's third post is here.
Alan's fourth post is here.
Professor Nancy Kim will address Seduction by Contract's chapter on cell phone contracts.
Our readers are likely familier with Professor Kim, who joined the faculty of the California Western School of Law in fall 2004. She has also taught as a visiting faculty member at The Ohio State University, Moritz College of Law, Rady School of Management at the University of California, San Diego and Victoria University in Wellington, New Zealand.
Prior to joining the faculty at California Western, Professor Kim was Vice President of Business and Legal Affairs of a multinational software and services company. She has worked in business and legal capacities for several Bay Area technology companies and was an associate in the corporate law departments at Heller, Ehrman, White & McAuliffe in San Francisco and Gunderson, Dettmer in Menlo Park.
While in law school, Professor Kim was Associate Editor of the California Law Review and Associate Editor of the Berkeley Women’s Law Journal. After graduating from law school, she was a Women’s Law and Public Policy Fellow at Georgetown University Law Center and a Ford Foundation Fellow at UCLA School of Law. Professor Kim is a member of the State Bar of California and a past recipient of the Wiley W. Manuel Award for pro bono services for her work with the Asian Pacific American Legal Center.
Professor Kim currently serves as Chair-elect of the section on Contracts and as a member of the executive committee of the section on Commercial and Related Consumer Law of the American Association of Law Schools. She is a contributing editor to the Contracts Law Prof Blog, the official blog for the AALS Section on Contracts. Her scholarly interests focus on culture and the law, contracts, women and the law, and technology.
Her book, Wrap Contracts: Mass Consumer Contracts in an Information Society is due out later this year. Some of her publications can be found here.
Nancy's first post is here.
Nancy's second post is here.
Finally, Oren Bar-Gill will respond to the comments on his book. Oren Bar-Gill is a Professor of Law and Co-Director of the Center for Law, Economics and Organization, New York University School of Law, where he has taught since 2005.
Professor Bar-Gill’s scholarship focuses on the law and economics of contracts and contracting. Before joining the faculty at NYU, he was at Harvard University, where he was a Fellow at the Society of Fellows, as well as an Olin Fellow at Harvard Law School. Professor Bar-Gill holds a B.A. (economics), LL.B., M.A. (law & economics) and Ph.D. (economics) from Tel-Aviv University, as well as an LL.M. and S.J.D. from Harvard Law School. Bar-Gill served in the Israeli JAG, from 1997-1999, where he participated in criminal, administrative and constitutional proceedings before various courts including the Israeli Supreme Court and the IDF Court of Appeals.
A list of his publications can be found here.
Professor Bar-Gill's contribution to our forum can be found here.
We look forward to a lively exchange, and we hope readers will feel free to weigh in.
Friday, March 8, 2013
Survey in Connection with Upcoming Symposium on Contracts Casebooks
The Washington Law Review is preparing to host a print symposium in December 2013 on the exciting new contracts book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, by Prof. Lawrence A. Cunningham of George Washington University (published by Cambridge University Press in 2012). This innovative text embraces a modern, narrative approach to contract law, exploring how cases ripped from the headlines of recent years often hinge on fundamental principles extracted from the classic cases that appear in contracts casebooks. Such an approach suggests new ways to imagine modern casebooks.
In addition to an article by Professor Cunningham, the WLR will also publish pieces in the December 2013 issue of the Washington Law Review by, among others:
Before the symposium, participants are interested in learning from contracts professors around the country. The purpose of this survey is to gather information about the material being taught in contracts classes, and the advantages and/or deficiencies of the approaches taken by current contracts textbooks.
The WLR would be grateful if you would complete our online survey by April 15.
The information (in both aggregate form and by individual response) will be distributed to the symposium’s participants, and may be reprinted in the Washington Law Review. Although the survey can be completed anonymously, the WLR invites you to leave your name for attribution if your responses are included in our symposium issue.
Thank you very much for your thoughts,
Thursday, March 7, 2013
The full proceedings of last month's conference in Fort Worth are now available for your viewing pleasure here. Both picture and sound quality are very high. It's a beautiful thing to see and hear!
Monday, March 4, 2013
GW's Government Procurement Law Program is hosting a symposium focusing on the intersection of competition policy and procurement law. The event features two keynote addresses as well as panels, chaired by Professors William E. Kovacic, Steven L. Schooner, and Christopher R. Yukins, that explore the way competition and anti-trust concerns play out in the procurement arena.
Attendance is free, but space is limited. Reserve a seat by emailing Jessie Pierce at [email protected].
Full details can be found here.
In other GW law news, the latest edition of their Government Contracting newsletter is available here.
Sunday, February 24, 2013
The 8th Annual International Conference on Contracts was a success! Thanks to Frank Snyder and Texas Wesleyan for organizing and hosting. All of the panels were videotaped, so we will provide a link once it is made available to us.
The blog was privileged to present a replica of the 5-foot contract from the Hobbit movie to the conference honoree, Chancellor John E. Murray. (Here's an "amazingly detailed" legal analysis of that contract, which includes a non-disclosure provision and a mandatory arbitration clause).
Next year we will trade the Lonestar State for the Sunshine State... so mark your calendars for February 22-23, 2014 at St. Thomas University School of Law in Miami... where we contracts profs will "party in the city where the heat is on, all night on the beach till the break of dawn."
[Meredith R. Miller]
Wednesday, February 20, 2013
Michael J. Davidson, , Lt. Col. (Ret.), U.S. Army, The Twenty-Third Major Frank B. Creekmore Lecture: Where We Came From and Where We May Be Going. 211 Mil. L. Rev. 263 (2012)
Zhiyong Liu, and Ronen Avraham, Ex Ante Versus Ex Post Expectation Damages, 32 Int'l Rev. L. & Econ. 339 (2012)
About a year ago this time, we posted about Melissa Lonegrass's presentation at the Seventh Annual International Conference on Contracts, which was held in San Diego. We now happily note that the published version is now available:
Friday, February 8, 2013
1515 Commerce Street
Fort Worth, Texas 76102
More information is available here.
Monday, January 28, 2013
I'm about to leave Fort Myers, Florida after a great weekend on Captiva Island, where I participated in the George Mason LEC Workshop for Law Professors on the Economics of Contracting. Economists sure know how to organize a workshop. (By the way, the picture depicts a bird that was hanging out on the balcony of my hotel room).
Over at George Mason they understand incentives. Participants pay a $500 deposit that is only refunded after all sessions (including dinners) are attended. After attending all sessions, participants not only see a return of the deposit but additionally receive a $500 honorarium. Lodging and all meals were covered and they couldn't have paid for better weather (on the day I got there the weather was about 70 degrees warmer than New York). I am still waiting for someone to try to sell me a timeshare.
Broadly, the goal of the program is to expose legal academics to economics. The homework (though voluminous) was thoughtfully compiled and the instruction was engaging. Some participants were already fairly exposed to law and economics others (including myself) had tinkered on the margins in researching but had no background whatsoever. I found the material and the teaching very accessible.
The discussion included contractual (and non-contractual) solutions to hold up problems and price readjustment. We also discussed retail price maintenance and slotting fee contracts. I found the discussion of vertical integration most interesting, though I had to suspend my disbelief when told not to consider the liability implications of choosing to employ someone v. hire them as an indpendent contractor. There were other times when I had to suspend disbelief about psychology and decisionmaking capacity. So, I suppose this is the timeshare. While I didn't buy it, I do feel enriched for having spent some time considering these problems through a classical economics lens.
I highly recommend this and other George Mason programs to anyone with even a passing interest in economics. I learned that reputation matters (though to varying degrees depending on which economists you read). Whatever the case may be, George Mason deserves its excellent reputation for organizing these outstanding workshops. Thanks!
[Meredith R. Miller]