ContractsProf Blog

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

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Thursday, September 13, 2012

CSLSA Conference: Submission Deadline Approaching

Annual Scholarship Conference

October 19-20

Cleveland-Marshall College of Law

Cleveland

The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio.  We invite law faculty from across the country to submit proposals to present papers or works in progress.

            The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines.  The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment.  More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. 

To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at Missy.Lonegrass@law.lsu.edu by September 22, 2012. Any late submissions will be considered on a space available basis only.

For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers.  To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at ely001@uark.edu.

            In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools.  If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at cld3@uakron.edu.

     For more information about CSLSA, visit our website at http://cslsa.us/.

[JT]

September 13, 2012 in Conferences | Permalink | TrackBack (0)

Friday, September 7, 2012

Panel on Military Contractors at American University's Washington College of Law

American_University_Washington_College_of_Law_Logo

 

Coming Wednesday, September 12, 2012 at American University's Law School:

A panel discussion featuring:

Panelists:
Laura Dickinson, Oswald Symister Colclough Research Professor of Law, George Washington University. Author, Outsourcing War and Peace: Protecting Public Values in an Era of Privatized Foreign Affairs (Yale Univ. Press 2011)
Capt. Chad Fisher, U.S. Army. Chief, Branch IV, Government Appellate Division, U.S. Army Legal Services Agency; counsel for the United States in Ali.
Lt. Col Peter Kageleiry, Jr., U.S. Army. Senior Appellate Attorney, U.S. Army Defense Appellate Division; counsel for the Defendant-Appellant in Ali.
Moderator:
Steve Vladeck, Professor of Law and Associate Dean for Scholarship, Washington College of Law

Topic:

On July 18, the highest court in the U.S. military justice system—the circuit-level Article I Court of Appeals for the Armed Forces (“CAAF”)—issued the most significant ruling on the scope of U.S. military jurisdiction in the past 25 years. In its unanimous decision in United States v. Ali, 71 M.J. 256 (2012), CAAF upheld a 2006 amendment to the federal military code that authorizes the trial by court-martial of “persons serving with or accompanying an armed force in the field,” including civilian contractors, during most overseas (and some domestic) military deployments. In so holding, CAAF distinguished a long line of Supreme Court decisions rejecting military jurisdiction over civilians both because the defendant in this case is a non-citizen and because his offense took place during a “contingency operation.” This panel of experts—including the opposing counsel before CAAF in Ali—will debate the merits of the court’s decision and seek to assess its potentially significant implications going forward with regard to contractor liability, the future of military jurisdiction in general, and the power of the military over civilians in particular.

Here's the flyer

Here's the website

[JT]

September 7, 2012 in Conferences, Government Contracting, Law Schools | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 29, 2012

A Reminder from the AALS Section on Contracts

CALL FOR SUBMISSIONS

AALS Section on Contracts, 2013 Annual Meeting Program

AALS

The Executive Committee of the AALS Contracts Section solicits proposals for presentations at the Section’s Annual Meeting program, The Law of Contracts or Laws of Contracts?, to be held in New Orleans, Louisiana on Saturday, January 5, 2013.

             In The Path of the Law, Oliver Wendell Holmes wrote,

"There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant."

This story was meant to ridicule the Vermont justice, but he may have been ahead of his time.  This year’s Section Meeting will revisit perennial and fundamental questions about “contract law” as a legal rubric.  Is it preferable to analyze “contracts” as a category, or to disperse contracts into “churn–like” categories, such as sales, consumer protection, employment, family relations, intellectual property, securities, and so on?  To what extent does the experience of one type of contract justify generalizations about “contract law”? Conversely, what kinds of contracts implicate context-specific practices, markets, or policy concerns justifying specialized analysis and/or doctrine? 

The Section seeks three to five presentations that address these and related questions.  We welcome papers that address these questions broadly as well as those that more narrowly discuss the doctrinal, transactional, or policy characteristics of a specific contractual context.

Submissions:

Full-time faculty members of AALS member law schools are eligible to submit proposals.  Please e-mail an abstract or proposal (500 words or fewer) to section chair Thomas Joo (twjoo@ucdavis.edu) by 5:00 p.m. (Pacific Time) September 7, 2012.  Drafts and completed papers are welcome (though not required), but must be accompanied by an abstract.  Please indicate whether the paper has been published or accepted for publication (and if so, provide the anticipated or actual date of publication).  There is no publication requirement, but preference will be given to papers that will not have been published by the date of the Annual Meeting.

We particularly encourage submissions from contracts scholars who have been active in the field for ten years or less, especially those who are pre-tenured, as well as more senior scholars whose work may not be widely known to members of the Contracts Section.  We will give some preference to those who have not recently participated in the Section’s annual meeting program. 

Thank you for your consideration.  Please contact Thomas Joo or any other Executive Committee Member if you have any questions.

 

AALS Section on Contracts Executive Committee

Curtis Bridgeman

Danielle Hart

Thomas Joo (Chair)

Larry Garvin (Chair-Elect)

Emily Houh

Nancy Kim (Secretary)

[JT]

August 29, 2012 in Conferences | Permalink | TrackBack (0)

Monday, June 25, 2012

Call for Submissions for the 2013 AALS Annual Meeting

CALL FOR SUBMISSIONS 

AALS Section on Contracts, 2013 Annual Meeting Program

Aalslogo

The Executive Committee of the AALS Contracts Section solicits proposals for presentations at the Section’s Annual Meeting program, The Law of Contracts or Laws of Contracts?, to be held in New Orleans, Louisiana on Saturday, January 5, 2013.

             In The Path of the Law, Oliver Wendell Holmes wrote,

"There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant."

This story was meant to ridicule the Vermont justice, but he may have been ahead of his time.  This year’s Section Meeting will revisit perennial and fundamental questions about “contract law” as a legal rubric.  Is it preferable to analyze “contracts” as a category, or to disperse contracts into “churn–like” categories, such as sales, consumer protection, employment, family relations, intellectual property, securities, and so on?  To what extent does the experience of one type of contract justify generalizations about “contract law”? Conversely, what kinds of contracts implicate context-specific practices, markets, or policy concerns justifying specialized analysis and/or doctrine? 

The Section seeks three to five presentations that address these and related questions.  We welcome papers that address these questions broadly as well as those that more narrowly discuss the doctrinal, transactional, or policy characteristics of a specific contractual context.

Submissions:

Full-time faculty members of AALS member law schools are eligible to submit proposals.  Please e-mail an abstract or proposal (500 words or fewer) to section chair Thomas Joo (twjoo@ucdavis.edu) by 5:00 p.m. (Pacific Time) September 7, 2012.  Drafts and completed papers are welcome (though not required), but must be accompanied by an abstract.  Please indicate whether the paper has been published or accepted for publication (and if so, provide the anticipated or actual date of publication).  There is no publication requirement, but preference will be given to papers that will not have been published by the date of the Annual Meeting.

We particularly encourage submissions from contracts scholars who have been active in the field for ten years or less, especially those who are pre-tenured, as well as more senior scholars whose work may not be widely known to members of the Contracts Section.  We will give some preference to those who have not recently participated in the Section’s annual meeting program. 

Thank you for your consideration.  Please contact Thomas Joo or any other Executive Committee Member if you have any questions.

 

AALS Section on Contracts Executive Committee

Curtis Bridgeman

Danielle Hart

Thomas Joo (Chair)

Larry Garvin (Chair-Elect)

Emily Houh

Nancy Kim (Secretary)

[JT]

June 25, 2012 in Conferences | Permalink | TrackBack (0)

Thursday, April 12, 2012

The Trouble with Totten

Lincoln HeadAt the Spring Contracts Conference last month, I presented the contracts law portion of my article, Intolerable Abuses: Rendition for Torture and the State Secrets Privilege.  That article is now in print, 63 Alabama Law Review 429 (2012), but as the electronic version has not yet appeared on the Law Review website, you can get the draft version (which is substantively the same as the print version) on SSRN.

The portion that I presented at the conference, "The Trouble with Totten" is about an 1875 case brought by the estate of William Lloyd a Civil War spy. As I summarized the case previously:

In Totten, the administrator for the estate of William A. Lloyd brought a claim against the government, seeking to recover for the breach of an espionage contract.   He alleged that Lloyd had entered into an agreement with President Abraham Lincoln in which Lloyd infiltrated enemy territory during the Civil War in order to provide the U.S. Government with vital information relating to the military forces and fortifications of the Confederacy.   For these services, Lloyd was to be paid $200/month plus expenses.  Honest Abe allegedly paid Lloyd only expenses.  

Justice Field, writing in 1875, found that the subject matter of the contract was a secret and that both parties must have known at the time of their agreement that their lips would be “for ever sealed respecting the relation of either to the matter.”  In order to protect the public interest in having an effective arm of the government that could engage in secret services, the Court ruled that there could be no claim for breach of a secret contract because the existence of the contract was itself a secret that could not be disclosed.

I have subsequently learned more details about Mr. Lloyd's exploits on behalf of President Lincoln (he was Lincoln's personal spy) and about why President Lincoln stiffed him (Lincoln was dead by the time Lloyd returned from his assignment).  The source of the information is Douglas E. Markle's book, Spies and Spymasters of the Civil War.  The information provided in the book is also available online here.  Unfortunately, Mr. Markle's book contains a bibliography but no citation apparatus, so I cannot identify or further explore his sources.  A letter to his publisher went unanswered and I have no other contact information for him. 

As I would like to pursue the matter further -- I think the case would be a great subject for a Law Story -- I would appreciate any suggestions our readers might offer about how I might get further information about the life of William A. Lloyd, personal spy to Preisdent Lincoln.

[JT]

April 12, 2012 in Conferences, Famous Cases, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 5, 2012

University of Chicago to Host Conference on European Contract Law

The conference will be hosted by the Institute for Law and Economics and the University of Chicago Law School and held April 27-28, 2012. 

Here is a list of the participants and the topics of their presentaions.

Conference Program

UofC LawThomas Ackermann, Ludwig-Maximilians University, Munich
Public Supply of Optional Standardized Consumer Contracts: A Rationale for the Common European Sales Law?

Douglas Baird, University of Chicago Law School
Precontractual Disclosure and the European Sales Law

Omri Ben-Shahar, University of Chicago Law School, and Oren Bar-Gill, New York University Law School
Regulatory Techniques in Consumer Protection: A Critique of the Common European Sales Law

Lisa Bernstein, University of Chicago Law School
Custom and the CESL

Fabrizio Cafaggi, European University Institute, Florence
CESL and precontractual liability from a status to a transaction based approach

Horst Eidenmuller, University of Munich
What can be wrong with an Option? The proposal for an Optional Common European Sales Law

Richard Epstein, New York University Law School, Hoover Institution, University of Chicago Law School
Harmonization, Heterogeneity, and Regulation: Why the Common European Sales Law Should Be Scrapped

Fernando Gomez, Universidad Pompeu Fabra, Barcelona
Optional Law for Firms and Consumers: An Economic Analysis of Opting into the Common European Sales Law

Stefan Grundmann, Humboldt Universitat, Berlin
The Desirability of an Optional European Contract Law—and the Impact of a Particular Code Design on this Question

William Hubbard, University of Chicago Law School
Another Look at the Eurobarometer Contract Law Survey Data

Saul Levmore, University of Chicago Law School
Harmonization, Preferences, and Convergence

Ariel Porat, University of Chicago Law School and Tel Aviv Law School
Mistake under the Common European Sales Law

Eric Posner, University of Chicago Law School
The Questionable Basis of the Common European Sales Law: The Role of an Optional Instrument in Jurisdictional Competition

Jan Smits, Maastricht University
Contract Law as Optional Law: On the Potential and Limits of Choice

Gerhard Wagner, Universitat Bonn
Buyers' Remedies under the CESL: Rejection, Rescission, and the Seller's Right to Cure

Simon Whittaker, Oxford University
Identifying Legal Costs of the Operation of the Common European Sales Law:  Legal Framework, Scope of the Uniform Law and National Judicial Evaluations

More details are available here.

[JT]

April 5, 2012 in Conferences | Permalink | TrackBack (0)

Monday, March 5, 2012

Thanks to Eniola Akindemowo!

EniolaThe Spring Contracts Conference was a huge success, thanks largely to the hard work of our co-blogger Eniola Akindemowo.  She was so busy dealing with logistics during the conference that she did not have enough time to hang out with many of the conferees, and we were remiss in failing to thank her properly.  But it was a great event, and it ran very smoothly, despite the fact that, through no fault of Professor Akindemowo, we got a late start on planning the conference this year.  As is always the case, the conference featured the usual heady mix of familiar faces, up-and-coming scholars, and practitioners with a scholarly bent.  We delighted in the opportunity to recognize Mel Eisenberg with a lifetime achievement award and Omri Ben-Shahar for his award-winning article, Fixing Unfair Contracts.

San Diego was a great location for the conference, and the Thomas Jefferson School of Law did a great job of hosting.  They have a truly magnificent new building, and rooms and tech support could not have been better for a conference such as ours.  The conference ran on time from start to finish, we all received well-organied binder with short versions of the conference papers, and I don't think I've ever attended a conference at which all of the PowerPoint presentations came off without a hitch.  

So thanks to Professor Akindemowo for all of her hard work in setting up and hosting the conference.  Until next year.

[JT]

March 5, 2012 in Conferences, Law Schools | Permalink | Comments (0) | TrackBack (0)

An Unconscionable Final Panel at the Spring Contracts Conference

The last panel of the conference (well, one of two final panels, as the conference usually had two going at once) was dedicated to the doctrine of unconscionability.  We regret that we could not do justice to all of the panels at the conference, as we had to choose in each case which of two panels to attend.  Similarly, not all of the presentations lent themselves to blogging, so here we will just focus on one of the papers from the unconscionability panel.

LonegrassMMelissa Lonegrass, Associate Professor of Law at LSU's Paul M. Herbert Law Center, presented a version of her article, soon to be appearing (we hope) in a law review near you, "Finding Room for Fairness in Formalism: The Sliding Scale Approach to Unconscionability."  She has noted courts' increasing use a sliding scale approach to unconscionability analysis.  That is to say, rather than looking at the procedural and substantive prongs of unconscionability independently, courts view both elements in tandem.  For example, even if there is little procedural unconscionability, a court might find a contract or a provision in a contract unconscionable if there is a great deal of substantive unconscionabiility (and theoretically vice versa).   

Professor Lonegrass's research suggests that there has been relaxation of both prongs in the sliding scale analysis.  So courts find procedural unconscionability satisfied whenever there are contracts of adhesion.  Courts find substantive unconscionability when the terms are unreasonable.  Nobody's conscience needs to be shocked these days.  

Professor Lonegrass defends the sliding scale on the ground that it enables courts to be more sensitive to disparities of bargaining power that are inherent in consumer transactions.  It also addresses formalist concerns regarding the doctrine of unconscionability and have prevented the doctrine from gaining wider currency.  The sliding scale approach retains the procedural inquiry but better enables courts to identify evidence of the lack of genuine consumer assent.   By setting aside unhelpful markers of deficient assent, the sliding scale actually makes the application of the unconscionability doctrine more predictable, thus answering concerns about the doctine's effect on the enforceability of commercial agreements.

She recommends a retention of the dual prong approach, but would de-emphasize consumer characteristics of markers of assent in favor of a focus on disaparities in bargaining power.  Finally, she encourages courts to embrace a lower threshhold (reasonableness instead of "shocks the conscience") for substantive unconscionability.

[JT]

March 5, 2012 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Spring Contracts Live: Contractual Fairness

HartProfessor Danielle Hart of Southwestern Law School presented her paper on Contract Law and Inequality.  She would eradicate the public/private law distinction in an effort to shift the frame from the current free market, neo-liberal frame to one that focuses on the propensity of law to promote inequality.  In particular, Professor Hart views contract law as public law because of the extent of state involvement in every aspect of contracting.  

Her paper focuses on bargaining power, a term that we use all the time but rarely pause to define.  Professor Hart supplements the realist view that bargaining power is a form of property with Pierre Boudieu's notion that capital is any form of power that can be used to obtain an advantage.  

Professor Hart identifies three cardinal principles of barganing power.  1) Bargaining power has never been and never will be distributed equally; 2) bBargaining power is always "inerested" in the Bourdieuvian sense; and 3) finally (and depressingly) unequal bargaining power begets unequal bargaining power. Unequal bargaining power affects bargains all the time, but contracts law addresses it (and then inadequately) only in cases when there is both an actionable misuse of inequality of bargaining power and undue advantage taking.

Professor Hart presents a fully realized, theoretically complex approach to some fundamental contractual concepts, to which it is hard to do justice in 1/3 of a blog post.  We'll have to look forward to the publication of her paper.

KerenProfessor Hila Keren, Professor Hart's colleague at Southwestern Law School, presented what she described as an example of Professor Hart's thesis, Consenting Under Stress.  Her presentation focused on a 10th Circuit case, Gascho, in which a nurse with 35 years of experience agreed to a separation agreement with her employer, abandoning her Title VII claims, while under conditions of extreme stress.  The stress was mostly the product of her husband, who beat her, raped her and then demanded a divorce, and who was also her boss and had fired her after having an affair with his (and her) co-worker.  The court articulated the doctrine of stress as a ground for excusing a party's duties under a contract.  The doctrine, so understood, is very limited, and for that, according to Professor Keren, we have Judge Posner's Selmer decision to thank. The 10th Circuit affirmed the District Court's dismissal of the suit, finding that Ms. Gascho had not presented evidence from which a reasonable jury could conclude that the agreement was valid.  

Professor Keren then undertakes an analysis of our legal understanding of stress.  Courts treat stress as a subjective feeling, but Professor Keren, drawing on a scientific understanding of stress, questions the accuracy of that description.  Stress is actually a predictable human response to certain external events.  She proposes a solution that would take stress a lot more seriously as a physiological response to external factors that could indeed negate a claim that a party had knowingly and willingly consented to an agreement. The paper has many more illustartions of the harsh consequences of courts' misunderstanding of stress.

MillerFinally, our co-blogger, Meredith Miller presented her paper on Party Sophistication and Pluralism in Contract, building on her 2010 article that appeared in the Missouri Law Review.  This paper grows out of last year's conference celebrating the 30th anniversary of the publication of Charles Fried's Contract as Promise.  At that conference, Roy Kreitner delivered a paper on the new pluralism in contract theory. 

Isaiah Berlin defines value pluralism as a recognition of the fact that human goals are many, not all of them are commensurable, and they are in potential conflict with one another.  So it is with contract law, say pluralists.  They disagree with monists who seek to elevate one value above all others in order to unify contracts theory.  Identifying parties as sophisticated or unsophisticated provides an ordering mechanism that helps us to determine which contracts principles to prioritize in different contexts.  When courts and scholars are trying to navigate a pluralist system, they ask whether parties are sophisticated, and they elevate certain principles or others depending on their conclusion as to sophistication.  Those interested in Meredith's take on how courts should go about determining sophistication need to look to her Missouri Law Review piece linked to above.

[JT]

March 5, 2012 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

More Live Blogging (but with Time Delay) Saturday Morning Arbitration Panel

Mark-BurgeMark Burge, Associate Professor of Law at Texas Wesleyan University School of Law, presented a paper, “Too Clever by Half: A Cautionary Tale in Socio-Legal Legitimacy Starring the Uniform Commercial Code,” which focuses on the failure of the revised UCC Section 1-301 (relating to choice of law) to win adoption, despite the fact that 40 states have adopted the rest of the revisions to Article 1 of the UCC.   In Professor Burge's view, Section 1-301 failed because it violated a fundamental social idea of the American legal and political system in that it undermined the principle that laws ought to be generally applicable.

Revised Section 1-301 would have created different standards for choice of law for consumer and commercial transactions.  The proposed Section would have permitted parties in non-consumer transactions to choose the laws of any state to govern their transactions.  The proposal seemed a logical extension of the tendency in the common law.  While the First Restatement provided rules for choice of law from which the parties could not deviate, the Second Restatement allowed parties to choose which law will govern their agreement, so long as the forum jurisdiction bears some relation to the transaction.  The revised Section extended that logic by removing the restrictions and justified this move by noting that parties are already free to choose governing law if they opt for arbitration under the Federal Arbitration Act. 

Professor Burge’s thesis is that state legislatures rejected the revised Section because of a visceral abreaction to the possibility that parties would agree to have their agreements governed by the laws of an utterly random jurisdiction.  The visceral reaction arises, Professor Burge suggests, from the Section’s “un-American” diversion from the traditional rule that there must be some connection between the transaction and the jurisdiction whose laws will govern the transaction.

GravesJack Graves, Professor of Law at the Touro College Jacob D. Fuchsberg Law Center, presented his paper, forthcoming the American Review of International Arbitration, “Court Litigation over Arbitration Agreements: Is It Time for a New Default Rule?”  Professor Graves’ thesis is bold and simple: we need a new international convention making arbitration the default legal rule for the resolution of international commercial disputes, that is business-to-business international transactions.  Such a convention is necessary because arbitration is far more efficient and effective, but those advantages are negated by parties’ ability to litigate arbitrability, turning one relatively fast and inexpensive legal process into two, one of which is expensive and protracted.  At the heart of Jack's presentation was a wonderful extended metaphor of court proceedings torpedoing arbitration in a maritime case.

Horton2David Horton, currently a Professor at Loyola Law School – Los Angeles.  Starting next year, he will join the faculty at the University of California, Davis, School of Law, who has guest blogged for us in the past (more than once!), presented a paper on the vindication of rights doctrine.  For years, courts favored litigation over arbitration and held that federal statutory claims could not be adjudicated adequately in arbitral bodies.  In the 1980s, things shifted, as courts abolished this non-arbitrability doctrine in favor of the vindication of rights doctrine, placing the burden plaintiffs to provide concrete proof that arbitration thwarts federal statutory rights. 

Recent Supreme Court decisions seem to be moving us in the direction of universal enforcement of arbitration provisions.  But Professor Horton introduces the notion of inalienable rights that cannot be waived and are thus not subject to the policy favoring freedom of contract.  If one’s ability to vindicate one’s federal statutory rights is inalienable – that is, if one cannot agree ex ante to contract terms that would make it impossible for you to vindicate your rights – then certain arbitration provisions might be unenforceable on those grounds.

Professor Horton runs through traditional justifications of inalienability in terms of preventing certain negative externalities or promoting certain positive externalities.   However, Professor Horton concludes that the most promising justification for the inalienability doctrine is the non-commodification theory, according to which permitting certain things to be sold would change the very nature of the thing.

[JT]

March 5, 2012 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 2, 2012

Live Blogging from the Spring Contracts Conference: Contracts in Action I

Our colleauge here at the blog, Meredith Miller moderated the first of three panels united under the broad rubric of Contracts in Action.

ZalesneProfessor Debra Zalesne began her presentation by noting that "non-traditional families" have become the norm.  Despite that, and despite the advances in recognition of same-sex marriage, family law remains relatively heteronormative and often assumes traditional family structures.  Her presentation focused on cohabitation agreements.  Some courts treat such agreements as commercial contracts, ignoring the relationship between the parties and attendant family law issues. Other courts focus on the non-marital relationship and refuse to enforce the agreement, either because they are contrary to public policy or because they lack consideration.  So cohabitation agreements that refer to the love and companionship at the heart of the relationship is likely to be struck down, while those couched in purely commercial terms (housekeeping, nursing, etc.) are more likely to be enforced.  As a result, the law treats non-married couples differently from married couples, since commercial agreements between married partners would ordinarily be set aside as lacking consideration.

Courts similarly disagree about the status of co-parenting contracts, but most commonly, courts ignore such agreements in favor of the best-interests-of-the-child standard.  Professor Zalesne would like to see courts doing the work and trying to give effect to contractual agreements while also looking out for the best interests of the child.

Zacks-webProfessor Erich Zacks presented a paper on cognitive bases of judges and juries in the context of contract preparatio nand execution.  There is large literature on how cognitive biases affect our contracting behavior, and we know from that literature that an actor (say an advertising executive) aware of our cognitive biases can manipulate us to get us to behave in certain ways, e.g. to purchase products that we would not purchase if we were acting raionally.  But Professor Zacks more or less flips this literature around to see if parties who are themselves engaged in a contracting process can do so with an eye to the cognitive biases of judges and juries in order to improve the likelihood that a court will enforce an agreement in the way they want, in part by getting the judge or jury to feel a certain way about the parties.  

So, for example, let's say that I signed a car rental agreement with unfavorable terms because I had just completed a five-hour flight, had no opportunity to negotiate the terms, and had a long line of people waiting behind me.  What the court sees is that I signed in four different places on a form with bold face terms just above or next to my signature.  The very form of the contract sends signals that situate the contract in a good posture for enforcement, rendering my tale of traveling woe relatively unimportant.

Similarly, recitals are a good locus for framing language that can signal to the court the nature of the agreement and the positions of the parties.  Disclosures can be in plain English so that a judge or a jury looking at the disclosure will think, "Hmmm, I understand this and I would not have agreed to it."  All of this suggests that courts are influenced to find consent when there was no substantive consent in part because contracts are designed to exploit cognitive biases so as to promote their enforcement.  

Aaron Goldstein proposes that courts, when considering a facially unambiguous contract, should permit extrinsic evidence only of public and conventional meaning of terms, like trade usage, but they should exclude extrinsic evidence of the parties' subjective intent, such a course of performance and course of dealing.  Mr. Goldstein points out the dangers of a strict imposition of the plain meaning rule in such contexts because it permits parties with more bargaining power (especially in the context of form contracts) to impose one-sided terms in their favor.  But letting in all sorts of extrinsic evidence also creates dangers given the unreliability of people's membories of the facts and circumstances surrounding the formation of the contract.

Goldstein0a
Mr. Goldstein advocates a middle path, what he calls the public meaning rule.  When interpreting facially unambiguous contractual provisions, courts should permit the introduction of extrinsic evidence of the public and conventional meaning of the contract terms.  They should not permit introduction of extrinsic evidence that illuminates nothing more than subjective intent.  Such evidence is relevant in the equitable context, where the court is less interested in the meaning of the agreement than in enforcing the parties' agreement in a way that accords with fundamental fairness.  Recognizing that consumers have no opportunity to bargain for terms when they agree to form contracts, Mr. Goldstein acknowledges that his public meaning rule approach would be inappropriate in the context of consumer contracts of adhesion.  There again, courts must be more attuned to the sorts of extrinsic evidence of subject understandings relevant to determining the equity and fairness of such agreements.  

[JT]

March 2, 2012 in Conferences, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Lifetime Achievement Panel: Mel Eisenberg

EisenbergKeith Rowley has put together a panel consisting of Shawn Bayern, Omri Ben-Shahar, and Mark Gergen to honor Melvin Eisenberg, who is the fourth honoree for Lifetime Achievement at the Spring Contracts Conference.

Professor Bayern stressed Professor Eisenberg's fundamental refusal to reduce contracts law to any one unifying principle.  Law must be justified by relevant social propositions: including morality, policy and experiential propositions. Not meaning to criticize theorists who view contracts as promise, or as plan, etc., Professor Beyern regards such views as undoubtedly useful but incomplete when considered from the perspective of Professor Eisenberg's appreciation of contracts as contracts.  In addition, Professor Bayern highlighted Professor Eisenberg's contributions to and critiques of the field of law and economics.  Professor Bayern notes that Professor Eisenberg's work is often not categorized under the rubric as law and economics because although Eisenberg utilizes economic theory, he reaches conclusions that are not usually associated with law and economics.  But Professor Bayern challenges more traditional L&E types to attempt to refute any of Professor Eisenberg's arguments, which he (Professor Bayern) summarized as showing that, while economic models might make sense in the abstract world of rational actors, they do not help us understand the real world of contractual relations.

Omri Ben Shahar again stressed Mel Eisenberg's contributions in the realm of law and economics, recognizing Eisenberg as law and economics pioneer.  Eisenberg's approach to L&E enables economic analysis to improve in resolution.  Because Eisenberg focuses not on generating new theoretical models but on applying them in concrete situations, he can test and refine economic models and help them achieve greater clarity and specificity.   Professor Ben Shahar elaborated on Professor Eisenberg's substantive contributions in refining our understandings of disgorgement, the bargain theory of consideration and procedural unconscionability doctrine.

Mark Gergen celebrated Mel Eisenberg as the best exemplar of his generation of the great pragmatic tradition in contracts scholarship.  Professor Gergen illustrated this by comparing and contrasting Professor Eisenberg's work with that of last year's honoree, Stewart Macauley.  After noting the extent of overlap between the two scholars, Professor Gergen identified the key distinction that Mel Eisenberg more clearly sees the limitations of contracts doctrine.  Contracts may be about relationships, but it cannot repair such relationships when they are broken.  There may be damages, but often the parties just must go their separate ways.  Professor Gergen also contrasted Mel Eisenberg's work with that of another giant of Mel's generation of conracts scholars, Professor Robert Scott, especially in their estimation of the value of litigation and their faith in courts.

Ultimately, all agreed that Mel Eisenberg's scholarship defies easy categorization but is always characterized by lucidity, clarity and persuasiveness.  The pleasure of reading Mel Eisenberg's scholarship is that you always learn by reading him and emerge either persuaded or knowing, because of the clarity of Eisenberg's writing and his transparency in identifying his assumptions, exactly why you disagree.

As expected, Professor Eisenberg was gracious in his remarks, noting that he is currently at work on a book on contracts, and indicating that there is still some "open texture" in his work that he can work on with the help of the comments he received on his work.  

[JT]

March 2, 2012 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Live from the Springs Contracts Conference I: Don't Mess with Val Ricks

V-ricksWe are under way in San Diego.  Eniola has done an amazing job putting it all together; she has welcomed us, and we are now in the first panel.

I hope to be able to say something more about the excellent papers by Moshe Gelbard and Charles Calleros.  But Val Ricks clearly stole the show with his impassioned defense of the doctrine of consideration.  Learned contracts scholars from around the globe threw him questions, and his answer never changed.

Doctrine of assent?

Covered by the doctrine of consideration.

Affirmative defenses?

Best explained by the doctrine of consideration.

Will Romeny win the nomination?

Only if he properly appreciates the doctrine of consideration!

What is the meaning of life?

Since at least the 16th century, life has been nothing more than an elaboration of the doctrine of consideration.

[JT]

March 2, 2012 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 27, 2012

The Spring Contracts Conference Is Only Days Away!!

We will be honoring Professor Melvin Eisenberg for a lifetime of important contributions to contracts scholarship.  We will also be honoring our selection for the best contracts article to appear in 2011 (keep an eye on this blog for an announcement of the winner later this week).  

San Diego
For those seeking more information on the conference, at which CLE credits are available, here is the main page.

And for those already stocking up on suntan lotion for the trip to San Diego, here is the conference program.

We at the blog are proud to note one of our own contributors, Eniola Akindemowo, is the conference organizer.  Thanks and congratulations to Eniola for pulling this conference together!

[JT]

February 27, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, February 10, 2012

The Finalists

Tuesday, January 10, 2012

Report from AALS Section Meeting


AalslogoThis year's AALS Contracts section program presentations were thought-provoking and interesting - thanks to Keith Rowley, Tom Joo and Lisa Bernstein for selecting the papers and to Aditi Bagchi, Mohsen Manesh and Emmanuel Voyiakis for their presentations.

At the conclusion of the meeting, Keith Rowley stepped down as Chair (but will remain as immediate past Chair and unofficial Godfather of the Section), and Tom Joo is the new Chair, Larry Garvin the Chair-Elect, and Nancy Kim the Secretary of the section. In addition, Curtis Bridgeman, Emily Houh and Danni Kie Hart will be the new at-large Executive Committee Board members. We look forward to seeing you all at next year's meeting.

[Nancy Kim]

January 10, 2012 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 9, 2012

Another Reminder

Okay folks, you are back from the AALS conference now and all jazzed about the latest contracts scholarship: let your voices be heard!

The polls remain open for the remainder of the month for the first annual ContractsProf Blog prize for the best contracts law article of the year, to be awarded at the Spring Contracts Conference .  That conference will oe be held at the Thomas Jefferson School of Law in San Diego in March.  The winner will receive a cash prize!

Vote (once only, folks) by sending an e-mail with your favorite contracts law review article from the list below to jeremy.telman@valpo.edu.  If your favorite article is not on the list, you may nominate (and/or vote for) an article that is not on this list through the same e-mail address.

The list of entries can be found here.

 [JT]

 

January 9, 2012 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Details for the Spring Contracts Conference . . .

The 7th Annual International Conference on Contracts will be hosted by the Thomas Jefferson School of Law in its new state of the art facility in San Diego California on March 2nd & 3rd 2012.

San Diego

In the fine tradition of previous conferences held at Stetson, UNLV, McGeorge, South Texas, Texas Wesleyan and Gloucester, England, this conference will provide scholars and teachers at all experience levels the opportunity to present, discuss and receive feedback on a wide spectrum of scholarship. Articles recently published, articles-accepted-but-not-yet-published, works-in-progress, not yet fully formed ideas for scholarship or pedagogical innovations are welcome. The conference also provides an eagerly anticipated annual opportunity to network with colleagues, potential collaborators and mentors from the U.S. and around the globe.

Further details about registration and hotel researations re now available here.

[JT]

January 9, 2012 in Conferences | Permalink | TrackBack (0)

Friday, January 6, 2012

Reminder: New Voices Session at the AALS Conference

Please join us at the Contract Section's program, New Voices in Contracts Scholarship, scheduled for Saturday, January 7, 2012, from 1:30 to 3:15 p.m., at the Marriott Wardman Park Hotel.  The program will feature three junior scholars whose proposals the selection committee chose from the many quality responses to our CFP.

In alphabetical order, the featured speakers and their topics are

Aditi Bagchi (University of Pennsylvania Law School), Parallel Contract;

Mohsen Manesh (University of Oregon School of Law), Contractual Freedom under Delaware Alternative Entity Law; and

Emmanuel Voyiakis (London School of Economics & Political Science, Department of Law), Contract Law and Reasons of Social Justice.

There will be a brief business meeting following the program.

[JT]

January 6, 2012 in Conferences, Recent Scholarship | Permalink | TrackBack (0)

Monday, January 2, 2012

Reminder: Get Out and Vote

No, this has nothing to do with Iowa.

This is just a reminder that the polls remain open for the remainder of the month for the first annual ContractsProf Blog prize for the best contracts law article of the year, to be awarded at the Spring Contracts Conference .  That conference will oe be held at the Thomas Jefferson School of Law in San Diego in March.  The winner will receive a cash prize!

Vote (once only, folks) by sending an e-mail with your favorite contracts law review article from the list below to jeremy.telman@valpo.edu.  If your favorite article is not on the list, you may nominate (and/or vote for) an article that is not on this list through the same e-mail address.

The list of entries can be found here.

 [JT]

January 2, 2012 in About this Blog, Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)