Saturday, February 22, 2014
Our 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.
Rachel Arnow-Richman next gave her paper on Modifying Employment Contracts. Professor 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.
I had the pleasure of chairing a panel populated by four young scholars all writing on Behavior, Bargaining, Incentives and Contract.
Kenneth 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.
Next 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.
Wendy 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.
Finally, 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.
Friday, February 21, 2014
Shawn 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.
Peter 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.
Finally, 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.
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:
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.
Jennifer 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.
Next, 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.
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.
Tuesday, February 18, 2014
Save the Date: Symposium to Honor Professor Chuck Knapp’s
50th Year of Law Teaching – October 24, 2014
The 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 email@example.com and by telephone at 415-565-4790.
Monday, February 17, 2014
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.”
Tuesday, January 21, 2014
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 firstname.lastname@example.org.
Monday, December 30, 2013
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 email@example.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).
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 (firstname.lastname@example.org) 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@example.com
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 firstname.lastname@example.org[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]