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

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Thursday, November 20, 2014

Styl'n at the International Commercial Arbitration Moot

 

Joe_cocker_1970

In a couple of previous posts I've described the International Commerical Arbitration Moot (ICAM) and detailed some aspects of  this year's problem. None of this is news  to the contracts, sales, and arbitration professors around the country who are involved in this activity. Still I am surprised at how many schools do not have teams. I have also noted the possible use of the yearly ICAM problem as a source or inspiration of exam questions. 

For professors who are interested in starting a team there are many things to consider other than substance. These involve selecting and preparing a team.  Here at Florida this means trimming a class of 30 or so  hopeful students down to a team of 4 to 6.  It is a complicated task. We try as much as possible to hold try outs that resemble the actual competition in Vienna.  Other coaches know that the ICAM competition requires students to know the facts and law with precision and to have certain mannerisms that the mainly European judges find appealing.  For example, speaking slowly is critical since many if not most judges will have English as a second language. Also, the closer the English spoken is to British English, the better. Why? Most of the arbitrators will have learned English abroad. The use of virtually any slang means you should move up your departure date from Vienna because you will not go far in the competition.  "Gonna" must be "going to." "Wanna" must be "want to." No "big bucks." No "you guys." etc.  If there such a thing as an eloquent yet casual style, that seems to work best. Yes, theater is involved and the coaches are directors as much as teachers. Even "costumes" seem to count. I watched a rather uncomfortable session in which an arbitrator dressed down a competitor who had, well,  "dressed down"  by not having the top button of his shirt buttoned. I think most coaches would agree the competition starts when the students arrive at the U.S. departure airport because from that point forward they may be rubbing shoulders with the arbitrators they will encounter in Vienna. 

 

November 20, 2014 in Contract Profs, Film, Miscellaneous, Television, Travel | Permalink | TrackBack (0)

Good Night and Good Luck

I have been a contributing editor at ContractsProf since 2005.  The blog has provided a wonderful platform to share contracts-related news stories (as bizarre as possible), summarize important recent cases and self-promote my scholarship.  When Frank Snyder roped me into this nearly a decade ago, alot of things were different in varying degrees, especially: the Internet, law schools and the market for legal services.  Frank told me at the time that blogging might seem thankless, but it is not.  He said that every so often you meet someone at a conference and they realize you are that person who pointed out the connection between Eminem and Sister Antillico and the NDA Justin Bieber presents to house guests.  Frank was right.  I've met a lot of great people through the blog and its lead to meaningful conversations about contract law and other things.

One of the most rewarding parts of blogging is the record of posts we've created over the years.  Sometimes I will do a "quick and dirty" search on Google for the answer to a contracts question and I find the answer on this blog.  

I have come to the realization that I just do not have the time to commit to the blog right now.  In fact, earlier this week I made a list of things I was going to quit (quite liberating; highly recommended).  I am clearing the decks to focus on writing projects and other pursuits, including my new role at Touro as Director of Solo & Small Practice Initiatives.  It is where my heart is right now, and I am going to follow that.

In short, thanks Jeremy and previous blog overlords for letting me holdover this long.

With much gratitude for this opportunity, here's a reprise of turkey leftovers in time for Thanksgiving.


Goodbye Movie Clips by Ian_Buckwalter

November 20, 2014 in About this Blog, Contract Profs | Permalink | TrackBack (0)

Tuesday, November 4, 2014

New Scholarship on Consumer Misconceptions Regarding Arbitration Clauses

SovernJeff Sovern  (pictured), with whom readers may be familiar from our recent virtual symposium, has a new paper on SSRN, co-authored with three of his St. John's colleagues, Elayne E. Greenberg, Paul F. Kirgis, and Yuxiang Liu.

The paper is titled "'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements." Here’s the abstract, though there’s obviously a lot more in the paper itself:

 

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box or accepting a product. 

This article reports on an empirical study exploring the extent to which consumers are aware of and understand the effect of arbitration clauses in consumer contracts. We conducted an online survey of 668 consumers, approximately reflecting the population of adult Americans with respect to race/ethnicity, level of education, amount of family income, and age. Respondents were shown a typical credit card contract with an arbitration clause containing a class action waiver and printed in bold and with portions in italics and ALLCAPS. Respondents were then asked questions about the sample contract as well as about a hypothetical contract containing what was described as a “properly-worded” arbitration clause. Finally, respondents were asked about their own experiences with actual consumer contracts. 

The survey results suggest a profound lack of understanding about the existence and effect of arbitration agreements among consumers. While 43% of the respondents recognized that the sample contract included an arbitration clause, 61% of those believed that consumers would, nevertheless, have a right to have a court decide a dispute too large for a small claims court. Less than 9% realized both that the contract had an arbitration clause and that it would prevent consumers from proceeding in court. With respect to the class waiver, four times as many respondents thought the contract did not block them from participating in a class action as realized that it did, even though the class action waiver was printed twice in bold in the sample contract, including one time in italics and ALLCAPS. Overall, of the more than 5,000 answers we recorded to questions offering right and wrong answers, only a quarter were correct. 

Turning to respondents’ own lives, the survey asked if they had ever entered into contracts with arbitration clauses. Of the 303 respondents who claimed never to have done so and who also answered a question asking whether they had accounts with certain companies that include arbitration clauses in their contracts, 264, or 87%, did indeed have at least one account subject to an arbitration clause. 

These and other findings reported in this Article should cause concern among judges and policy-makers considering mandatory pre-dispute consumer arbitration agreements. Our results suggest that many citizens assume that they have a right to judicial process that they cannot lose as a result of their acquiescence in a form consumer contract. They believe that this right to judicial process will outweigh what one respondent referred to as a “whimsy little contract.” Our results suggest further that citizens are giving up these rights unknowingly, either because they do not realize they have entered into an arbitration agreement or because they do not understand the legal consequences of doing so. Given the degree of misunderstanding the results demonstrate, we question whether meaningful consent is possible in the consumer arbitration context.

November 4, 2014 in Contract Profs, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2014

More on the Puzzling ICAM Problem

 

Crossword_puzzle_with_lady_in_black_coat

As I noted about a month ago the problem for the 2015 International Commercial Artbitration Moot is wonderful for those who like crossword puzzles, solving problems, reading mysteries, or doing detective work. There are facts, deadends, and read herrings galore. No one goes for a big sleep as far as I can tell but there is the dreaded issue of "fundamental breach." In fact, that appears to be the centerpiece of the problem. Just to make it a little twisty, the fundamental breach is by the buyer whose letter of credit may not conform to the contract. Since even that would be too simple, there is a second letter of credit that may or may not conform but which came after the first arguably non comforming one. There are phone calls, emails, letters, accusations, and even an emergency arbitration that, maybe, should not have occurred at all.

At my school 32 students are now writing briefs for the claimants side of the case and preparing for their oral arguments next week. There is something here even for profs not involved in the Moot. Just reading the problem will spark all kinds of ideas for exam questions suitable for  the basic contracts course.

 

October 31, 2014 in Conferences, Contract Profs, Games, Law Schools, Meetings, Teaching | Permalink | Comments (0) | TrackBack (0)

Posting a Positive Review on Yelp? Not Unless You Haven’t Posted Numerous Other Times Before

A few weeks ago, we blogged here about how some businesses may pay customers to remove negative reviews from sites such as TripAdvisor.

The blog raised the question of just how reliable online reviews are given this practice and, potentially, the business itself (or friends/family) posting numerous positive reviews, thus making for an entirely fake overall review.

Here’s a twist on that: Yelp will actually remove posts without notifying either the reviewed business or the review poster if the latter has not posted enough other reviews on Yelp.  Of course, Yelp decides just how many other reviews are “enough.”

This happened recently to my husband, who is an extremely busy IT professional, but who nevertheless got such a good experience from a small local business that he took the time to post a for him rare review of the business with pictures of the product we had bought.  A few days later, the business owner contacted him to ask why he had taken the review down again.  He had not, but Yelp had for the above reason.

Of course, Yelp probably wants to avoid the occasional rage posting or an overly rosy review.  However, the above practice seems unethical and unreasonable.  Review sites will by nature have both good and bad reviews.  Yelp has chosen to believe that if a person only posts one thing, it must by definition by unreliable as being too far on either end of the spectrum.  However, the truth of the matter is that a lot of busy professionals do not have the time for or interest in posting a large amount of reviews.  That, of course, does not make an occasional review unreliable, perhaps quite the opposite: if you don’t post a lot of views, the ones you do must reflect truly good or bad experiences. 

Not only does Yelp waste reviewer’s time like this, but it does not even explain this policy on its guidelines section of its website.

A healthy dose of skepticism towards review websites seems warranted, which probably does not surprise too many of us.

October 31, 2014 in Contract Profs, Current Affairs, E-commerce, Web/Tech | Permalink | TrackBack (0)

Friday, October 24, 2014

A Great Day For Contracts Law

Today, October 24, 2014, is a banner day for contracts law because today is the date for two major conferences honoring two giants in the field.

First UC Hastings is hosting a Symposium to Honor Professor Chuck Knapp's 50th Year of Law Teaching.  Here is the schedule for that.

Knapp8:15 - 8:45  Registration and Breakfast

8:45 – 9:00 Introduction & Welcome

9:00-10:30   Panel I -- The State of Contract Law

Professor Jay Feinman, Rutgers University - Camden

Professor William Woodward, Santa Clara University

Professor Danielle Kie Hart, Southwestern Law School

Moderator – Professor Harry G. Prince, UC Hastings College of Law

10:30-10:45  Break

10:45-12:15  Panel II -- The Role of Casebooks in the Future of Contract Law

Professor Deborah Post, Touro Law Center

Professor Carol Chomsky, University of Minnesota

Professor Thomas Joo, UC Davis

Moderator – Professor Nathan M. Crystal, University of South Carolina

12:15-1:15  Lunch:  Marvin Anderson Lecture – Professor Keith Rowley, UNLV 

1:15-1:30  Break

1:30-3:00 Panel III -- The Politics of Contract Law

Professor Peter Linzer, University of Houston

Professor Judith Maute, University of Oklahoma

Professor Emily M. S. Houh, University of Cincinnati

Moderator – Professor Jeffrey Lefstin, UC Hastings College of Law

3: 15-4:45 Panel IV -- The Future of Unconscionability as a Limit on Contract Enforcement

Professor David Horton, UC Davis

Professor Hazel Glenn Beh, University of Hawaii

Moderator – Professor William S. Dodge, UC Hastings College of Law

4:45-5:00  Concluding Remarks

In addition, the Temple Law Review is hosting a symposium in honor of Bill Whitford:

Whitfordsymposiumlogo (1)

 

And here is the schedule for that:

9:00 - 9:30 Introductory Remarks9:30 - 10:45The Bankruptcy Research Database - Its Development and Impact

Moderator:
Professor Tom C.W. Lin
Speakers:
  • Douglas Baird: The Transformation of Large Corporate Reorganizations 1979-2014 Seen Through the Lens of the BRD
  • Bob Lawless: What Legal Empiricists Do Best
  • Lynn LoPucki: Measuring Bankruptcy Success
  • David Skeel: Rediscovering Corporate Governance in Bankruptcy: The LoPucki and Whitford Studies

11:00 - 12:15 The Lifecycle of Consumer Transactions: Consumer Contracting, Protection, and Bankruptcy

Moderator:
Professor Hosea H. Harvey
Speakers:
  • Melissa Jacoby: Superdelegation
  • Ethan Leib: Contra Proferentem and the Role of the Jury in Contract Interpretation
  • Angela Littwin: Why Process Consumer Complaints? Then and Now
  • Katherine Porter: The Ideal of Rough Justice: Consumer Protection as Business, and Business in Consumer Protection

12:30 - 1:45Lunch Break

  • Brief video-presentation from a special guest
  • Talk: Bob Hillman: Precedent in Contract Cases and The Importance(?) of the Whole Story; Response by Bill Whitford

2:00 - 3:15 Mixed Methods: Comparative Law, Comparative Methods

Moderator:
Professor Salil K. Mehra
Speakers:
  • Stewart Macaulay: Bill Whitford: A New Legal Realist Seeking to Understand Law Outside the Law School's Doors
  • Iain Ramsay: US Exceptionalism and the Comparative Study of Consumer Bankruptcy
  • Jay Westbrook: The Application of the Model Law on Cross-Border Insolvency in the United States, Canada, and the United Kingdom
  • Jean Braucher: Examination as a Method of Consumer Protection

3:30 - 4:00 Free for All: What Don't You Know That You Should Know? 

October 24, 2014 in Conferences, Contract Profs | Permalink | Comments (0) | TrackBack (0)

The New York Times's "The Upshot" Column on Wrap Contracts

Yesterday's New York Times included a "The Upshot" column by Jeremy B. Merrill.  The print version was entitled Online, It's Easy To Lose Your Right to Sue [by the way, why can't the Times be consistent in its capitaliziation of "to"?], but the online version's title tells us how easy, One-Third of Top Websites Restrict Customers' Right to Sue.   The usual way they restrict the right is through arbitration provisions and class-action waivers.  They do so through various wrap mechanisms so that consumers are bound when they click "I agree" to terms they likely have not read and perhaps have not even glanced at.  

Some websites attempt to bind consumers by stating somewhere on their websites that consumers are bound to the website's and the company's terms simply by using the company's website or its products (I'm looking at you, General Mills).  The only thing surprising about this, given the Supreme Court's warm embrace of binding arbitration and class action waivers, is that two-thirds of websites still do not avail themselves of this mechanism for avoiding adverse publicity and legal accountability.

As I was reading this article, it started to sound very familiar -- a lot like reading this blog.  And just as I was beginning to wonder why the Times was not ' quoting our own Nancy Kim, the article did just that:

Wrap Contracts“Courts have been very reluctant to say that browsewrap is not enforceable,” said Nancy S. Kim, a professor at the California Western School of Law and the author of a book about online contracts.

When courts decide whether a website’s terms can be enforced, they look for two things, Ms. Kim said: First, whether the user had notice of the site’s rules; and second, whether the user signaled his or her agreement to those rules. Courts have ruled that simply continuing to use the site signals agreement. When browsewrap agreements have been thrown out, as in the Zappos case, courts have said that the site’s link to the terms wasn’t displayed prominently enough to assume visitors had noticed it.

Congratulations to Nancy on such prominent notice of her scholarship!

And congratulations to the Times for paying attention!

 

October 24, 2014 in About this Blog, Contract Profs, In the News | Permalink | Comments (1) | TrackBack (0)

Monday, October 6, 2014

Vis Problem Is Up

                                                                                             640px-Riesenrad_Vienna

The problem is up for the 22nd Annual International Commerical Arbitration Moot. Between now and early December, teams will write the brief for the Claimant.  In mid January the brief for the Respondent is due. And then, in March,  200-300 teams from law schools around the world will gather in Vienna for the competition. 

There is no limit to the  number of students on a team but they must argue in pairs. Typically one student handles the procedural issues and one the substantive or the CISG issues. There are 4 rounds to start with the 64 highest scoring teams moving on to a single elimination tournament.

The problems  identify an actual arbitration agency whose rules govern the procedures, This year the procedural issues center around whether the Claimant the right to make an emergency appeal to the arbitration agency and whether the Respondent may join the parent company of the Claimant for purposes of its counterclaim.  In one of those puzzles that charactizes the Moot, the parent company "endored" the contract at issue but claims not to be a party do it.

The substantive issue concerns a letter of credit which does not conform (or does it?) to what was called for in the contract. The buyer attempts to "cure" in a sense but the seller says "too late, we have already avoided the contract." Thus, it raises avoidance and cure isssues under the CISG.

This is, at best, a first cut on the problem. As the weeks pass, the problem will reveal itself as the layers are peeled off. 

I am happy to trade notes and views with other interested profs.   

[In the meantime, try to find the third man.]

 

 

October 6, 2014 in Conferences, Contract Profs, Film, Help Wanted, Law Schools, Meetings, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2014

Smoking and the Dangers of Disclosure

The NYT had an article about e-cigarette label warnings today that was eerily appropriate given our symposium on Omri Ben-Shahar and Carl Schneider's book, More Than You Wanted to Know:  The Failure of Mandated Disclosure. The reporter must have been following our blog symposium and seems to have come up with an example that supports the arguments made by Ben-Shahar and Schneider.  The article explains how big tobacco companies have been putting warning labels on their e-cigarette packages that are more extensive than those on their tobacco cigarettes.  There are several possible explanations for why they are doing this, ranging from the least cynical (they want to be good corporate citizens) to the more cynical (they are trying to set up their smaller e-cigarette competitors for later regulation, possibly reduce demand for e-cigs to boost sales of tobacco cigs, and protect themselves from liability). 

I tend to be in the more cynical camp.  Big tobacco companies are both attempting to protect themselves from liability by setting forth as many potential dangers of their product as they can, and they are positioning e-cigarettes as "just as" dangerous, if not more, than plain old tobacco cigarettes.  The article notes something that readers of the book and blog already know - the disclosures have little effect on consumer purchasing decisions because nobody reads them.  The strategy of big tobacco supports the arguments made by Ben Shahar and Schneider that disclosure hurts rather than helps consumers except there's one crucial difference -  the companies are putting these extensive disclosures on the labels themselves.   They are not mandated. By voluntarily disclosing the harms of e-cigs, big tobacco companies both protect themselves from liability and avert regulation.  Doing away with mandated disclosure wouldn't prevent this kind of strategic selective disclosure --selective and strategic in the sense that these companies are only forthcoming with certain products and with certain types of disclosure.  It's revealing that one of the companies claiming that e-cigarettes warrant more extensive disclosure than their tobacco counterparts is RJ Reynolds, which succesfully sued the FDA to prevent mandated graphic warnings on cigarette packages.

So - the battle about disclosure continues to rage....

 

September 29, 2014 in Books, Commentary, Contract Profs, Current Affairs, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, September 15, 2014

More Than You Needed to Know Symposium: The First Six

This week we will begin our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure.  

This week, the symposium will include contributions by the contracts law scholars introduced below:

Bagchi Aditi Bagchi teaches Contracts and Labor Law at the Fordham University School of Law, where she is an Associate Professor. She writes about the nature of contractual obligation, contract interpretation, and questions in political and moral philosophy as they arise in contract.  She has explored these issues with respect to employment and consumer contracts in particular.  She has a related interest in the comparative political economy of contract, labor and corporate law.  

Links to Professor Bagchi's academic papers can be found on SSRN here.

BurtonSteven J. Burton is the John F. Murray Professor of Law at the University of Iowa.  He currently teaches Contracts and a Seminar on Advanced Problems in Contract Law. He joined the law faculty in 1977 after four years with the Office of the Legal Adviser at the U.S. Department of State.

Professor Burton is the author or co-author of five books: Elements of Contract Interpretation (Oxford University Press, 2009); An Introduction to Law and Legal Reasoning (Wolters, Kluwer, 3d ed. 2006); Principles of Contract Law (West, 4th ed. 2012); Contractual Good Faith: Formation, Performance, Breach, Enforcement (Little, Brown & Co., 1995) (with Eric G. Andersen); and Judging in Good Faith (Cambridge University Press, 1992). He has editedThe Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr. (Cambridge University Press, 2000) and co-edited American Arbitration Principles and Practise (Practising Law Institute, 2008) (with Robert B. von Mehren and George W. Coombe, Jr.). He is also the author of numerous journal articles, including "The New Judicial Hostility to Arbitration: Federal Preemption, Contract Unconscionability, and Agreements to Arbitrate" 2006 Journal of Dispute Resolution 469; "Combining Conciliation with Arbitration in International Commercial Disputes," 18 Hastings Journal of International and Comparative Law 637 (1995); "Good Faith in Articles 1 and 2 of the Uniform Commercial Code: The Practice View," 35 William and Mary Law Review 1533 (1994); "Default Rules, Legitimacy, and the Authority of a Contract," 2 Southern California Interdisciplinary Law Journal 115 (1993); "Racial Discrimination in Contract Performance: Patterson and a State Law Alternative," 25 Harvard Civil Rights - Civil Liberties Law Review 431 (1990); "Ronald Dworkin and Legal Positivism," 73 Iowa Law Review 109 (1987); and "Breach of Contract and the Common Law Duty to Perform in Good Faith," 94 Harvard Law Review369 (1980).

CaloRyanRyan Calo is an assistant professor of law at the University of Washington, where he co-directs the Tech Policy Lab, and an affiliate scholar at the Stanford Center for Internet and Society. Professor Calo researches the intersection of law and emerging technology, with an emphasis on robotics and the Internet. His work on drones, driverless cars, privacy, and other topics has appeared in law reviews and major news outlets, including the New York Times, the Wall Street Journal, and NPR. Professor Calo has also testified before the full Judiciary Committee of the United States Senate and was a speaker at the Aspen Ideas Festival.

Links to Professor Calo's academic papers can be found on SSRN here.

HillmanRobert Hillman is the Edwin H. Woodruff Professor of Law at Cornell University.  He has written extensively on contracts and contract theory, the Uniform Commercial Code, and related jurisprudence.  His articles have appeared in the Stanford, NYU, Columbia, Chicago, Michigan, Northwestern, Duke, and Cornell law reviews, and he is the author of The Richness of Contract Law (1997) and a coauthor of the Sixth Edition of White, Summers, and Hillman, Uniform Commercial Code (2012 through 2014).  A 1972 graduate of Cornell Law School, Professor Hillman clerked for the Hon. Edward C. McLean and the Hon. Robert J. Ward, both U.S. District Judges for the Southern District of New York. After private practice with Debevoise & Plimpton in New York City, he began his teaching career at the University of Iowa College of Law. Hillman joined the Cornell Law School Faculty in 1982, and, in addition to teaching and authoring or co-authoring several major contracts and commercial law works, he served as Associate Dean from 1990-1997. An arbitrator, consultant on commercial litigation, and the Reporter for the American Law Institute's Principles of the Law of Software Contracts, Professor Hillman teaches contracts, commercial law, and the law of e-commerce. He also teaches a class on the nature, functions, and limits of law for Cornell University's Government Department.

Professor Hillman's c.v., including a list of publications can be found here.

LeibEthan Leib is Professor of Law at Fordham Law School. He teaches in contracts, legislation, and regulation.  His most recent book, Friend v. Friend: Friendships and What, If Anything, the Law Should Do About Them  explores the costs and benefits of the legal recognition of and sensitivity to friendship; it was published by Oxford University Press.  Leib’s latest scholarly articles will appear in Legal Theory (on fiduciary and promissory theory) and the Georgetown Law Journal (on “regleprudence” and OIRA).  He has also written for a broader audience in the New York Times, USA Today, Policy Review, Washington Post, New York Law Journal, The American Scholar, and The New Republic.  Before joining Fordham, Leib was a Professor of Law at the University of California–Hastings in San Francisco.  He has served as a Law Clerk to then-Chief Judge John M. Walker, Jr., of the U.S. Court of Appeals for the Second Circuit and as a Litigation Associate at Debevoise & Plimpton LLP in New York.

Linkes to Professor Leib's academic papers can be found on SSRN here.

WillisLauren Willis is Professor of Law at the Loyola Law School, Los Angeles.  Professsor Willis clerked for the Office of the Solicitor General of the United States and for Judge Francis D. Murnaghan, Jr. of the United States Court of Appeals for the Fourth Circuit.  Before coming to academia, she was a litigator in the Housing Section of the Civil Rights Division of the U.S. Department of Justice and worked with the U.S. Federal Trade Commission on predatory mortgage lending litigation.   Professor Willis joined the Loyola faculty in 2004.  She has also taught at Stanford Law School, the University of Pennsylvania Law School and  Harvard Law School.  She was honored by Loyola’s graduating day class with the 2008 Excellence in Teaching award.  

Her recent publications include:

 Stay tuned.  It's going to be a very interesting week on the blog!

 

 

September 15, 2014 in About this Blog, Contract Profs, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 8, 2014

Count Down to ICAM (the Vis)

                                                                                             Vienna_Opera_(night)

 

I am sure most readers know what the CISG is. I was surprised to learn that some are not aware of the International Commercial Arbitration Moot (ICAM) held in Vienna annually over the weekend and then into the week just prior to Easter. It is maybe the most rewarding experience I have had as a teacher. The organizers of the Moot release the problem on the first Friday of October. It is usually a spawling but somewhat realistic fact pattern,  Typically there are procedural issues and substantive issues dealing, obviously, with international contract law. Over two hundred teams from around the world gather for 4 days of prelims.  The top 64 then go into a single elimination tournament. 

At my school, like others, we organize a course around the Moot. In the fall, the students first have 5 weeks of regular class sessions on the CISG followed by an exam.  After that, the problem comes out and they have 4-6 weeks to write their briefs.  Finally, there are oral arguments. From those exercises, 4 to 6 students are selected to be on the team. (all students earn 3 credits whether they make the team or not) Those students must prepare a claimant's and a respondent's brief and practice twice a week until the competition. It requires dedication.  

There are a couple of drawbacks. First is it expensive to send students and a coach to Vienna. At Florida we have been fortunate to have support from the International Section of the State Bar, private donors, and the Law School. Second, the judging in Vienna can be hit and miss. In the four day premlinary period the abitrators (3 each per session) may apply different standards and are sometimes not well prepared. Thus, the goals be for the students must be to learn at much as they can, network, and enjoy, for a few days, interacting with students from all  over the world. The winning teams are always superb but some left out of the tournament may also be superb. 

I realize there are maybe only a handful of people out there who do not know of this opportunity but I've found it to be very worthwhile (and also hardwork)

September 8, 2014 in Conferences, Contract Profs, Law Schools, Meetings, Teaching | Permalink | Comments (1) | TrackBack (0)

Thorough Discussion of the Contractual Issues in the Salaita Case from Robin Kar

Ker

We've posted about Robin Kar's recent legal scholarship here and here.   Readers can have a look at Kar's method in action in this post on the Illinois Law Faculty Blog.

In our first post about the Salaita case, we lamented how few posts really wrestled with the contractual  (or promissory estoppel) issues in the case.  Professor Kar’s post is the most detailed investigation of the contractual issues to appear to date.  We also queried whether Salaita's potential constitutional claims against the University of Illinois might turn on the question of whether or not he had a contract with that institution, which is also the institution at which Professor Kar (pictured, at right) teaches.  Kar notes:

Critics of the Chancellor’s decision argue that, even if there was no contract, Salaita’s rights to academic freedom vis-à-vis the University of Illinois should apply with equal force at the hiring as at the firing stage.

Professor Kar seems to disagree.  He does not rule out entirely the possibility of constitutional and academic freedom claims in the absence of a contract, but he does note that "the existence of a contract should change the nature of the underlying arguments on both sides of this case." 

Peofessor Kar's analysis is both passionate, in dealing with an issue that is creating genuine anguish at his institution, and dispassionate, in treating the Salaita case as a forum for the elaboration of his theory of contract law as empowerment. Based on the publicly-available facts, Professor Kar thinks Salaita's contractual claims are quite strong.  As he puts it, "If the publicly known facts are all there is to know about this case, then I believe there very likely was a contract in this case, and that it may well have been breached."  This is so because (in short), Salaita's offer letter incorporated by reference the American Association of University Professors' (AAUP) principles of academic freedom, and the AAUP interprets those principles to require (at least) warnings hearings before someone in Salaita's position can have his offer letter revoked.  At this point, Professor Kar argues, his view of contract as empowerment becomes relevant to the analysis:

The power of the marketplace—in both academic and non-academic contexts—depends on parties’ capacities to make commitments that have certain objective elements to them. In this particular case, this means that the condition of Board of Trustee approval gave the Board some authority to refuse Salaita’s appointment—but not necessarily the authority it subjectively believes it has. If the Board’s unwillingness to approve this appointment reflects an undisclosed and idiosyncratic understanding of its authority, which diverges too sharply from the shared understandings of the national academic community, then there is likely a contract here.  And it may well have been breached.

Professor Kar then proceeds to a discussion of the way out for the University of Illinois, which probably would involve a retreat.  If the facts are as Professor Kar believes them to be, the Chancellor should "admit that the Salaita decision was in error and state that this matter is—properly speaking—outside of her hands."

I do not disagree with Professor Kar's analysis but I would like to push him on one point that I think is vital in this case and in his theory of empowerment generally.  As a normative theory, I find Professor Kar's theory attractive, but I wonder about its applicability to situations of grossly unequal bargaining power, and I believe the Salaita case is such a situation.  Professor Kar takes up this issue in earnest at the end of the second part of his work on contract as empowerment   On page 73, Professor Kar acknowledges that parties "rarely enter into contracts from perfectly equal bargaining positions" and he notes that, "[i]t would therefore be significantly disempowering if parties were only bound by contracts negotiated in these circumstances."

But parties are routinely bound in circumstances when they have no real bargaining power.   In such circumstances, even if Professor Kar is right that contracts law ought to be about empowerment, much of contract law (and this point has been made at great length by Peggy Radin, Nancy Kim, Oren Bar-Gill and others), is currently extremely disempowering for ordinary consumers and even for small businesses when (as in Italian Colors) they have to contract with corporate behemoths.  

Professor Kar's assessment of Salaita's contractual claims turns on communal understandings of the contractual obligations that arise in such circumstances:

The University of Illinois is part of a much larger academic community, which extends well beyond the confines of Illinois.  Its contractual interactions with other members of this community will thus be subjected to some tests for consistency with national understandings of how these interactions typically work. This includes national understandings about the appropriate relationship between government-appointed entities, like the Board of Trustees, and faculty decisions about hiring at academic institutions that aim to pursue knowledge impartially and in the absence of political influence.

 As the conversation that has been taking place on the blogosphere thus far suggests, there may be no national consensus on the subject.  Some contracts scholars will agree with Professor Kar; others, like Dave Hoffman, think that Salaita's contractual and promissory estoppel claims are weak, and they are weak precisely because Salaita lacked the bargaining power to protect himself.  And if Salaita's case were to go before an adjudicatory body, it will not be decided based on whether contracts ought to be empowering but on whether the already empowered University of Illinois can escape any contractual obligation that might empower Professor Salaita.

 

September 8, 2014 in Commentary, Contract Profs, Current Affairs, In the News, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, August 21, 2014

Contracts and the Case of Steven Salaita

A lot of ink has been spilled over this subject, and I don't have much to add, except to note that I have not seen a very many good discussions of the contract issues.  

The very short version of the story, as best I can cobble it together from blog posts, is that the University of Illinois offered a position in its American Indian Studies program to Steven Salaita, who had previously been teaching at Virginia Tech.  According to this article in the Chicago Tribune, the U of I sent Professor Salaita an offer letter, which he signed and returned in October 2013.  Professor Salaita was informed that his appointment was subject to approval by the U of I's Board of Trustees, but everyone understood that to be pro forma.  In August 2014, Salaita the U of I Chancellor notified Professor Salaita that his appointment would not be presented to the Board and that he was no longer a candidate for a position.  According to the Tribune, the Board next meets in September, after Professor Salaita's employment would have begun.  The Chancellor apparently decided not to present Professor Salaita's contract for approval because of his extensive tweets on the Isreali-Palestinian conflict, which may or may not be anti-Semitic, depending on how one reads them.  

The main argument in the blogosphere is over whether or not the U of I's conduct is a violation of academic freedom. But there is also a secondary argument over whether Professor Salaita has a breach of  contract of promissory estoppel claim against the U of I.  The list of impressive posts and letters on the whole Salaita incident include:

Michael Dorf on Verdict: Legal Analysis and Commentary from Justia

Katherine Franke, et al. in a letter to the U of I Chancellor

Brian Leiter commenting on the Franke letter on Brian Leiter's Law School Reports

Michael Rothberg, in a letter to the U of I Chancellor

Steven Lubet at The Faculty Lounge here and here

Jonathan Adler on the Volokh Conspiracy here, here and here

Finally, Dave Hoffman stepped in on Concurring Opinions to address the promissory estoppel issues  and then answers Michael Dorf's response 

Hoffman makes strong arguments that there was no breach of contract here, because the offer was clearly conditional on Board approval.  There are arguments that the promise breached was a failure to present Salaita's employment to the Board, but the remedy for that breach would simply be presentment, at which point both the claim and the appointment would go away (unless U of I has a change of heart on the matter).  

We would have to know more about the process to make a more educated guess about whether or not a breach of contract claim here could succeed.  I think it is relevant that, at the point Salaita was informed that the offer was rescinded, the Board could not meet before his employment would have begun.  I suspect that his courses were already scheduled and that students had, at least provisionally, registered for them.  I wonder if there were any announcements on the U of I website crowing about their recent hires.  All of this would be relevant, it seems to me, to the state of mind of the parties regarding whether or not a contract had been made.  It would be very sad for all of us in academia if it turned out to be the case that our offer letters mean nothing until the Board has spoken, as acceptance of a position usually involves major life changes, including giving notice at current jobs, moving to a new city, selling and buying a residence, etc.

I have no doubt that Dave Hoffman is right that promissory estoppel claims rarely succeed.  I do think that some versions of the facts presented here suggest that this one might be a winner nonetheless or, as Hoffman suggests, is the kind of claim that is worth bringing at least in order to make the threat of discovery on the subject a strong inducement to the U of I to settle the case.  But the remedy for promissory estoppel is probably not really the remedy Salaita seeks.  

Professor Salaita's claims -- his academic freedom and constitutional claims -- go beyond the issues of contract and promissory estoppel.  A lot has been written on this situation, and I haven't had a chance to read everything carefully, but I have yet to see a clear discussion of whether those claims hinge on Professor Salaita's contractual claims.  It seems likely to me that if he had no contract, then he had no free speech or academic freedom rights vis a vis the U of I.  And I don't think a promissory estoppel claim would get him such protections either.  Or do people think that universities have a generalizable erga omnes duty to protect academic freedom?

ADDENDUM

Dave Hoffman has an additional post up on Concurring Opinions here.  

August 21, 2014 in Conferences, Contract Profs, In the News, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Save the Dates: Knapp Conference & KCON 10

KnappThe University of California Hastings College of the Law is sponsoring a symposium to honor Professor Charles L. Knapp (left) on the completion of his 50th year of law teaching. (He began his teaching career at NYU School of Law in fall 1964.)

The day-long program will take place on October 24, 2014  and will include four panels that will focus on areas that are of particular interest to Professor Knapp, but will also address topics with broad appeal to contract law scholars. 




8:15 - 8:45  Registration and Breakfast

8:45 – 9:00 Introduction & Welcome

9:00-10:30   Panel I -- The State of Contract Law

Professor Jay Feinman, Rutgers University - Camden

Professor William Woodward, Santa Clara University

Professor Danielle Kie Hart, Southwestern Law School

Moderator – Professor Harry G. Prince, UC Hastings College of Law

10:30-10:45  Break

10:45-12:15  Panel II -- The Role of Casebooks in the Future of Contract Law

Professor Deborah Post, Touro Law Center

Professor Carol Chomsky, University of Minnesota

Professor Thomas Joo, UC Davis

Moderator – Professor Nathan M. Crystal, University of South Carolina

12:15-1:15  Lunch:  Marvin Anderson Lecture – Professor Keith Rowley, UNLV 

1:15-1:30  Break

1:30-3:00 Panel III -- The Politics of Contract Law

Professor Peter Linzer, University of Houston

Professor Judith Maute, University of Oklahoma

Professor Emily M. S. Houh, University of Cincinnati

Moderator – Professor Jeffrey Lefstin, UC Hastings College of Law

3: 15-4:45 Panel IV -- The Future of Unconscionability as a Limit on Contract Enforcement

Professor David Horton, UC Davis

Professor Hazel Glenn Beh, University of Hawaii

Moderator – Professor William S. Dodge, UC Hastings College of Law

4:45-5:00  Concluding Remarks

5:00-5:30 Break

5:30 Reception and Dinner – UC Hastings Skyroom - [Limited space and requires separate registration with fee.]

*Papers will be published in a symposium issue of the Hastings Law Journal.

 

Location Information:
UC Hastings - Mary Kay Kane Hall  (View Map)
200 McAllister St 
San Francisco, CA 94102
San Francisco
Room: Alumni Center

Rowley

Contact Information:
Name: Roslyn Foy
Email: foyr@uchastings.edu


The Marvin  Anderson Lecture will be presented during the luncheon by Professor Keith Rowley of UNLV (right).  Registration for the program is free except that the reception and dinner require a separate registration and payment of a fee.

And speaking of Keith Rowley, he has announced that UNLV's William S. Boyd School of Law will host the 2015 International Conference on Contracts (a.k.a. "KCON10") February 27 & 28, 2015.

The conference was held there in 2010, so we hope to return and win back all the money we lost at the craps tables five years ago.  

Las_Vegas_Strip_at_night

August 20, 2014 in Conferences, Contract Profs | Permalink | TrackBack (0)

Monday, August 11, 2014

Northwestern Law’s Zev J. Eigen’s New Drafting Exercise

EigenNorthwestern University Law School’s Zev J. Eigen (pictured), visiting at NYU School of Law this fall, has developed a new online contract drafting practicum for first year students. 

Here are the basics:

The practicum is designed to give students a taste for real world contract drafting on behalf of clients. Students are randomly assigned to one of two roles --either representing an employer or a recently hired employee. They negotiate and memorialize the terms of employment their respective clients have already agreed upon. Students will be assigned counterparts within their classes and will negotiate the terms of the contracts through an online portal.

The practicum is set up so that all of the logistical work is done by the software and Professor Eigen. For instance, the software will pair students and email them information about their counterparts. Instructions, participants’ confidential role information, and general instructions will be available through the portal. After student pairs upload their contracts, the software will analyze their work product. Students and professors will receive analytical results in case you wish to spend class time discussing their performance. That is, there is very little work for you if you wish to run it, and you can use almost no class time on it if you wish. Professor Eigen provides a “Professor’s Guide” offering more information including some suggested class discussion points.

There is also an interesting technology-related component of the practicum. If you contact Professor Eigen directly, he will provide more detailed information about it to you.

Instructors who would like to know more about this practicum, and are considering using it in their classrooms this fall should contact Professor Eigen directly: z-eigen@northwestern.edu

August 11, 2014 in Contract Profs, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 6, 2014

New on SSRN from Robin Kar

Robin Kar (pictured) has just posted an ambitious piece, Contract as Empowerment: A New Theory of Contract on SSRN.  The submission is still under review right now, so you can be among the first to download it!  Here is the abstract:

KarModern contract theory is in a quandary. As Alan Schwartz and Robert E. Scott have observed: “Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be.” This article aims to cure these deficiencies with a novel theory, “Contract as Empowerment”.

Contract as Empowerment is a deontological (duty-based) theory, rooted in a special strand of social contract theory known as “contractualism”. The theory nevertheless differs from more familiar deontological theories, which are typically rooted in moral intuitions about promising, autonomy or reliance. Because of its foundation in social contract theory, contract as empowerment can absorb a number of important economic and psychological insights, which have traditionally given efficiency theories explanatory advantages over traditional deontological theories. But contract as empowerment can absorb these insights without subjecting them to thoroughgoing economic interpretation. It can thereby produce a more robust, unified and normatively satisfying account of many core areas of doctrine. Among other things, contract as empowerment offers a more compelling account of the consideration doctrine than exists in the current literature; a better account of the expectation damages remedy (both descriptively and morally); and a special way of understanding the appropriate role of certain doctrines like unconscionability, which regulate private market activity by making the scope or content of contractual obligations depend on facts other than contracting parties’ subjective wills. 

This last fact provides a major point of contrast with most existing theories of contract. One of the most striking features of the way that standard debates between deontological and consequentialist theories have been framed in this area of the law is that general theories on both sides typically share a key implication. They imply that legal doctrines that invite courts to police bargains for fairness reflect alien intrusions into the basic subject matter of contract. Contract as empowerment suggests that this framing has been distorting our understanding of contracts (and hence modern markets) for some time now. It offers an alternative framework, which understands both private market empowerment and some market regulations as direct expressions of the same fundamental principles. Because this framework is principled, it can help depoliticize a range of currently heated debates about the appropriate scope and role of market regulation. This framework can be applied to many different forms of market exchange—from those in consumer goods to labor, finance, credit, mortgages and many others.

This article is the first in a two part series. Contract as Empowerment introduces and develops the theory of contract as empowerment. Contract as Empowerment II applies the theory to a range of doctrinal problems and argues that contract as empowerment offers the best general interpretation of contract law.

Professor Kar promises that a follow-up article is coming soon.  Stay tuned.

August 6, 2014 in Contract Profs, Recent Scholarship | Permalink | TrackBack (0)

Monday, July 14, 2014

Court Finds that Party Who Signed "Flounder" Is Not Bound to New Employment Agreement

FlounderIn Random Ventures, Inc. v. Advanced Armament Corp., the District Court for the Southern District of New York found that a party that wrote the word "flounder" on a signature line was not bound by the document on which he scribbled that word.

For the full context, you would have to read the 117-page District Court opinion.  Our highly-consdensed summary is as follows:

Kevin Brittingham formed a company, Advanced Armament Corp. (AAC) that designed and manufactured silencers for firearms.  AAC thrived and in 2009, a large firearms manufacturer, Remington Arms Company (Remington) acquired it.  Remington paid $10 million up front, and Brittingham was to get another $8 million if he was still around as an AAC employee (now Remington's subsidiary) in 2015.  He was terminated at the end of 2011 and his partner from the original business, Lynsey Thompson, was terminated one month later.  Both Brittingham and Thompson sued for breach of contract and breach of the covenant of good faith.  

The Court noted that Brittingham socialized with his clients by riding dirt bikes, engaging in aerial pig hunts and attending strip clubs.  He ran a successful business but, as the Court observed, he is nobody's idea of a perfect fit for a corporate culture.  Tensions arose in the relationship over AAC's compliance with federal regulations relating to the handling of firearms.  The Court concluded unequivocally that Remington (not Brittingham) bore responsibility for the compliance failures.  Nontheless, Remington suspended Brittingham and Thompson over compliance issues.

Remington offered Brittingham a new employment agreement.  The agreement was really an ultimatum: either sign this acknowledgment that we have grounds to terminate you for cause and then you can return to work on a probationary basis or consider yourself terminated for cause right now.  Of course, termination for cause would cost Brittingham $8 million.  The court characterized this document as an $8 million hold-up (with or without a silencer?), which Brittingham "consistently refused to execute."  Eventually Brittingham (or someone) scribbled "Flounder" on the signature line and faxed the agreement to Remington.   The Court seems to have found that the scribble did not bind Brittingham, since a sophisticated party like "Remington could not reasonably have been duped into believing Brittingham had adequately executed the proposed amended EA based on the scribbling on the last page."  But it is not clear that such a finding is necessary to the Court conclusion, since Remington never executed the new agreement.

It seems that the Court's finding that the agreement was not enforceable did not actually turn on the issue of signature.  The Court refused to enforce an agreement that Brittingham could be terminated for cause when, in fact, no grounds for termination for cause existed.  

To the extent that Brittingham and Thompson did agree to amended employment terms, however, the Court finds as a factual matter that they did so under false pretenses – as determined above, defendants did not have Cause to terminate either plaintiff at the time of their suspensions.

The Court rejected Remington's argument that by writing "Flounder" and by returning to work, Brittingham had waived any objection to the amended employment agreement.  The Court construed Brittingham's act as one of defiance rather than as one of waiver.  

Thanks to Professor Royce de Rohan Baronedes who blogged about the case here and alerted us to its existence.

Interesting aside related to Nancy Kim's post from February about Rocket from the Crypt and acceptance by tattoo.  Before it was acquired, Brittingham's company ran a promotion promsing a free silencer to anyone bearing a tattoo with his company's logo.  The promo cost the company $250,000.

July 14, 2014 in Contract Profs, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2014

Eighth Circuit Upholds Constitutionality of Civility Clause in Termination of Professor

University_of_South_DakotaChristopher Keating was a tenure-track professor of physics at the University of South Dakota.  He did not get along with the only other full-time physics professor at the university.  Keating filed a grievance against her with their department head.  She responded with an accusation of sexual harrassment against Keating.  After two heated exchanges with Keating, the department head rejected Keating's claims.   Some time later, having been reprimanded for not seeking approval from either his colleague or the department chair for something that required such approval, Keating explained in an e-mail that he would not seek approval from his colleague because "she is a lieing [sic], back-stabbing sneak."

After that academic year ended, Keating was informed that his employment contract would not be renewed, because his e-mail violated Appendix G to the university's employment policy, which reads:

Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.

Keating challenged his termination, alleging that the "civility clause" was unconstitutionally vague in violation of the U.S. Constitution's Due Process Clause.  The District Court granted Keating the declaratory relief he sought.  In Keating v. University of South Dakota, the Eighth Circuit reversed.  

In the public employment context, the Eighth Circuit noted, the standard for vagueness is not as stringent as in the criminal context.  "Standards are not void for vagueness as long as ordinary persons using ordinary common sense would be notified that certain conduct will put them at risk of discharge.”   The Eighth Circuit found that the civility clause was neither facially void for vagueness nor impermissibly vague as applied to Keating.  The Court read the offending e-mail in the broader context of Keating's refusal to work with his colleagues or to even communicate with his immediate superiors.  So seen, the Court had little difficulty finding that Keating had failed to comport himself in ways that "preserve and strengthen willingness to cooperate."

Arthur_LeonardProfessor Arthur Leonard, of New York Law School (pictured),  posted a link to this case and queried whether the civility clause could pass contractual (as opposed to constitutional) tests for vagueness.   One wonders what sort of evidence either party would have to put forward to persuade the court as to the meaning of "civil" in this context.  Those of us in the academy can likely come up with plenty of examples of interactions with colleagues in which one or more university employees can be said to have acted in ways that were not civil.  Still, it is rare to see someone put in writing his principled opposition to cooperation and communication with his one disciplinary colleague and his department chair.  Could Keating show contractual vagueness by pointing to rampant and unpunished incivility on the part of other university employees, or does the university have discretion to terminate any given professor who, in its determination, crossed the line of incivility?

In short, if universities are free to point to a civility clause whenever they want to terminate a professor, tenure means nothing.  Keating was not yet tenured, but as to the constitutional and contractual issues, I don't think tenure would change the outcome of the case.  On the other hand, a civility clause might be a useful tool that university administrators can use in extreme cases when a faculty member -- even a tenured faculty member -- is so unprofessional as to degrade the working environment for his or her colleagues.  In this case, the fact that Keating called his colleague a lying, back-stabbing sneak" may be less significant than his statement that he would not trust his department chair or communicate with the university's only other full-time physics professor.

July 7, 2014 in Commentary, Contract Profs, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2014

D-lightful Student Gets Litigious

Mcherry3Thanks to Miriam Cherry (left) for sharing this one:

I love this fact pattern: as reported in the National Law Journal, a student who received a D in contracts is suing the law school he attended, as well as his contracts professor, claiming that the professor deviated from the syllabus by counting quizzes towards the final grade.  He claims $100,000 in harm because the D in contracts resulted in his suspension from the law school.  He could not transfer to a different law school because he was ineligible for a certificate of good standing.  

The case is a cautionary tale.  It appears that the syllabus indicated that the quizzes would be optional.  The professor then announced in class that the quizzes would actually count.  The plaintiff claims to have been uanaware of the change or at least adversely affected by it.  I say it is a cautionary tale because I sometimes make changes to my syllabus, usually in response to student feedback.  I make sure to e-mail all students to make certain that everyone is aware of the changes and I obsessively remind students of the changes because I worry about precisely what happened here.  It may well be that the defendant contracts prof did the same, although the National Law Journal article states that the change was evidenced by the handwritten notes of another student.


There is an interesting exchange on the merits of the case in the comments to the ABA Journal article on this subject.  Apparently, there is some case law stating that a syllabus is a contract.  For the most part, I think such a rule would benefit instructors.  No student could complain about my attendance or no-technology policies because I could tell them (doing my best Comcast imitation) that by continuing to attend my course, they had agreed to my terms.  But many of the commentators think that written contracts can never be orally modified.  I don't think a syllabus is a contract because I don't think there are parties to a syllabus and I don't think there is intent to enter into legal relations.  Things might be different if the syllabus identified itself as a contract and informed students of the manner of acceptance of its terms.

PeterLinzerFriend of the blog, Peter Linzer (right), chimes in (comment #13) and succinctly dismisses this notion that a contract not within the Statute of Frauds cannot be orally modified.  In any case, he thinks the claim is best understood as sounding in promissory estoppel, and plaintiff's claim fails because, in short, he cannot claim to have reasonably relied on a promise just because he missed class or did not pay attention when that promise was retracted.  

June 26, 2014 in Commentary, Contract Profs, In the News, Recent Cases, Teaching | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 27, 2014

Author Meets Reader Salon on Wrap Contracts

Law and Society Association's Annual Meeting is only a few days away.  There will be an Author Meets Reader Salon on my book, WRAP CONTRACTS on Friday, 5/30, 8:15am-10:00am in the Duluth Room. Shubha Ghosh (Wisconsin), Danielle Kie Hart (Southwestern) and Juliet Moringiello (Widener) will be joining me in what promises to be a lively discussion about those pesky clickboxes and pop-ups on your screens.  If you are attending the meeting, please stop by and join us!  

May 27, 2014 in Books, Conferences, Contract Profs, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)