Sunday, January 22, 2017
In times with enough serious and often depressing news, I thought I would bring you this little neat story (with profuse apologies to everyone, including my co-bloggers, for my virtual absence for a few months):
An Apollo 11 bag used to protect moon rocks samples was stolen by Max Ary, a former curator convicted in 2006 of stealing and selling space artifacts that belonged to the Cosmosphere space museum in Hutchinson, Kansas. Mr. Ary subsequently served two years in prison and was sentenced to pay more than $132,000 in restitution. Space artifacts found in his home, including the Apollo 11 bag, were forfeited to meet that debt. However, the Apollo 11 bag was incorrectly identified as Ary's and subsequently sold to Nancy Carlson for $995 in February 2015 at a Texas auction held on behalf of the U.S. Marshals Service.
The government petitioned the court to reverse the sale and return the lunar sample bag to NASA, alleging that due to a mix up in inventory lists and item numbers, the lunar sample bag that was the subject of the April 2014 forfeiture order was mistakenly thought to be a different bag and that no one, including the United States, realized at the time of forfeiture that this bag was used on Apollo 11. The government cited cases where federal courts vacated or amended forfeiture orders, including where inadequate notice was provided to a property owner, as a justification for the bag's return to NASA.
Judge J. Thomas Marten ruled in the U.S. District Court for Kansas that Ms. Carlsen obtained the title to the historic artifact as "a good faith purchaser, in a sale conducted according to law." With her title to the bag now ordered by the Kansas court, Carlson needs to file a motion in the U.S. District Court for Texas for its return from NASA's Johnson Space Center in Houston. However, “[t]he importance and desirability of the [lunar sample] bag stems solely and directly from the efforts of the men and women of NASA, whose amazing technical achievements, skill and courage in landing astronauts on the moon and returning them safely [to Earth] have not been replicated in the almost half a century since the Apollo 11 landing," the judge wrote … Perhaps that fact, when reconsidered by the parties, will allow them to amicably resolve the dispute in a way that recognizes both of their legitimate interests," J. Marten wrote.
H/t to Professor Miriam Cherry for bringing this story to my attention.
Wednesday, December 7, 2016
Recently, Donald Trump famously tweeted that “Boeing is building a brand new 747 Air Force One for future presidents, but costs are out of control, more than $4 billion. Cancel order!” Trump has not said why he believes the planes will cost "more than $4 billion." Boeing says it currently has an Air Force One contract worth $170 million.
This raises several contractual issues that could be used as an interesting issue-spotting practice for our students. At first blush, it seems like an impossible attempt at a breach of contract that would, conversely, at least give very reasonable grounds for insecurity if not constitute an anticipatory repudiation outright.
Needless to say, Trump’s remark that “[w]e want Boeing to make a lot of money, but not that much money” finds no support in contract law. One contractual party has no control over how much money the other party should make. One would have thought that Trump – as a staunch “market forces” supporter – would have understood and embraced that idea, but that either was not the case or he is flip-flopping in that respect as well.
Digging deeper into the story, however, it turns out that “not even [Boeing] can estimate the cost of the program at this time, since the Pentagon has not even decided all the bells and whistles it wants on the new Air Force One." Further, “without knowing all the security features, it is hard to estimate the cost … and the Air Force isn't even sure whether it wants two or three of the planes.” Does a contract even exist at this point, then, when the essential terms have apparently not been mutually agreed upon, or is there simply an unenforceable agreement to agree? A valid argument cold be made for the latter, I think.
Mr. Trump has been accused of overestimating the cost of the planes. Does he, however, have a point? “So far[,] the Air Force has budgeted $2.9 billion through 2021 for two new Air Force Ones.” It is not inconceivable that the price tag may, in these circumstances, run higher than that. That circularity goes back to the essential terms – the price in this case – arguably not having been decided on yet.
There might, of course, be other issues in this that I have not seen in my admittedly hasty review of the story, but it is interesting how the media jumps at a legally related story without thoroughly or even superficially attempting to get the law right.
Wednesday, November 30, 2016
The lease for the Trump International Hotel, housed in Washington’s historic Old Post Office Pavilion owned by the federal General Services Administration (“GSA”), contains a clause forbidding elected officials from involvement. Trump, as president, essentially would be both landlord and tenant.
That may be an ethical problem as well as a federal contract law violation. Trump would oversee the GSA and appoint its administrator ― a conflict of interest with his hotel interest. GSA officials are looking into the matter.
Steven Schooner and Daniel Gordon, former government officials who specialize in federal contract law, have recommended that GSA “immediately end the hotel lease relationship, before Trump becomes president” to avoid ethics problems. Of course, if GSA terminates the lease contract, it risks litigation potentially with… Trump as a winner.
However, says Schooner, that’s a risk worth running. “In the end, it’s just a frigging lease.” It would also be a president heavily involved in private business affairs over which he would exercise significant power, real and perceived. But that may just be how our country is developing these days. We frown on similar behaviors in relation to other countries, but when it comes to our own, we are apparently either becoming accepting of unacceptable behaviors or powerless to do much about them.
Thursday, November 24, 2016
As our friends on the Faculty Lounge just announced, Dean Schwartz was just forced to step down as Dean of the University of Arkansas, Little Rock, School of Law. Why? After the recent presidential election, he sent an email to students offering counseling to those upset by the results. Similar initiatives were undertaken around the nation in places so politically and geographically different as the University of South Dakota and Occidental College in Los Angeles.
Apparently, what really cost Dean Schwartz his position was his personal opinion given in the email, namely that the services would be offered to students who “feel upset” following the “most upsetting, most painful, most disturbing election season of my lifetime.”
A colleague of Schwartz's, Robert Steinbuch, who previously tussled with Schwartz over diversity in admissions, explained [cite to FL]: “If you tell people every time they lose they’re entitled to counseling, you elevate the perceived level of wrong beyond what it is. Most assuredly, Democrats are disappointed a Republican won. I recall when the Democratic Party won the Presidency twice each of the previous two elections. I knew plenty of people who were disappointed at that time, but I didn’t know anybody that needed grief counseling. I think when we tell people that they need some form of grief counseling we are normalizing hysteria and suggesting there’s something immoral or wrong about our democratic process.”
How incredibly misunderstood and off point. First, there really is something wrong about our democratic process when repeatedly, the person winning most of the popular votes in an election does not become the president. Similarly, our two-party only, “winner takes it all” system is arguably not a sufficiently faceted system that can be considered to be a true representative, deliberative democracy. But I get that, the system should then be changed before the next election. That won’t happen, just like time after time, mass shooting episodes don’t cause a change to our gun laws or the mass murder situation in general. Such is our country, and so be it, apparently.
What is incredible to me in relation to the above is not Schwartz’ alleged normalization of “hysteria” (read: justified outrage), it is attempts to make this particular election appear normal. It simply was not. Everyone seems to agree on that, Democrats and Republicans alike. In fact, note that many Republicans were outraged as well – and for good reason. Should it be acceptable that we now have a President who, for example, is proud that he “grabs women by the pussy” and “just start[s] kissing them” whether or not they want it? Someone who claims that he is “smart” for not paying taxes for, apparently, many years to a country that he wants to lead, even though he could easily afford doing so? A person who, in spite of sound science proving otherwise until at least yesterday claimed that climate change is a “hoax made up by the Chinese”?
I would hope not. But as we see, apparently that is what we just have to put up with and not even opine about, even in legal academia, in the form of a sentence as innocuous as one that refers to simple, but honest, feelings shared by millions of other people as well.
Throughout history, censorship has never proved particularly effective. As a nation, if we seek to revert to such strategies, we are truly in trouble. Schwartz’ comments may well have upset Republican law students, but maybe that in and of itself would have had some value, especially in an academic setting where thoughts are valued for being just that; thoughts that just might help improve our nation.
On an up note: Happy Thanksgiving, and thanks to Michael Schwartz for being a such a courageous, thoughtful dean and legal scholar!
Greetings from Berlin.
November 24, 2016.
Sunday, November 13, 2016
Allow me to highlight my most recent article, An “Act of God”? Rethinking Contractual Force Majeure in an Era of Anthropogenic Climate Change.
Given anthropogenic climate change, what were previously considered to be inexplicable and unpredictable “acts of God” cannot reasonably be said to be so anymore. They are acts of man. “Extreme” weather events have become the new normal. Accordingly, the contractual force majeure defense, which largely rests on the notion that contractual parties may be exculpated from liability for failed or delayed performances if supervening unforeseen events that the party could not reasonably control or foresee have made a performance impracticable, is becoming outdated in the weather context. It makes little sense to allow contractual parties to escape contractual performance liability for events that are highly foreseeable given today’s knowledge about climate change. Parties can and should take reasonable steps to contractually assess and allocate the risks of severe weather events much more accurately than ever before. Further, they should be better prepared to take reasonable steps to alleviate the effects of severe weather on their contractual performances instead of seeking to avoid liability at the litigation stage.
Time has come for the judiciary to rethink the availability of the impracticability defense based on “extreme” weather for public policy purposes. Perhaps most importantly, by taking a hard look at the doctrine and modernizing it to reflect current on-the-ground reality, the judiciary may help instigate a broader awareness of the underlying pollution problem and need for action at many scales. Meanwhile, a more equitable risk-sharing framework that might become known as “comparative risk sharing” and which would resemble the notion of comparative negligence in torts could be introduced where parties have failed to reach a sufficiently detailed antecedent agreement on the issue. This is surprisingly often the case. Parties often use mere boilerplate phrases that do not reflect today’s highly volatile weather and appurtenant risks.
The law is never static. It must reflect real world phenomena. Climate change is a super-wicked problem that requires attention and legal solutions at many fronts to many problems, including contractual ones. The general public is often said to have lost faith in the judiciary. Given this perception, courts could regain some of that faith in the context of contracts law and force majeure caused by events for which no “God,” other supernatural power, or even nature can be blamed.
The article can be downloaded here.
I apologize that I have not been able to post very many blogs recently and that I will, for family and work reasons, also not be able to do so until January. I trust it that my lovely assistant Ashley and my co-bloggers will keep you intrigues until then!
Monday, October 10, 2016
Exciting news! JOTWELL (the Journal of Things We Like - Lots!) has a new Contracts section - and it has just gone live! David Hoffman (Temple) and I are the Section editors. Aditi Bagchi (Fordham), Dan Barnhizer (Michigan State), Shawn Bayern (Florida State), Omri Ben-Shahar (Chicago), Martha Ertman (Maryland), Robert Hillman (Cornell), Hila Keren (Southwestern), Florencia Marotta-Wurgler (NYU), Eboni Nelson (South Carolina), Robert Scott (Columbia), Tess Wilkinson-Ryan (Pennsylvania) and Eyal Zamir (Hebrew University) are contributing editors so expect to see articles from them over the next few months.
The inaugural article is by Prof. Robert Hillman of Cornell and reviews Aaron Perzanowski & Chris Jay Hoofnagle's article, What We Buy When We Buy Now, (forthcoming U. Pa. L. Rev.). The article raises interesting issues about ownership of digital "goods" and has already sparked interest in the popular press.
Welcome to the world of contracts JOTWELL!
Monday, September 5, 2016
A few days ago, I posted a blog here on Amtrak raising the rent on backyard lots neighboring Amtrak's railroad lines in New York. The rent in some cases went up by 100,000% (!) according to the website of Congressman Joseph Crowley.
Professor Bruckner posed the relevant question of whether the now hotly contested leases are truly new leases or the renegotiation of existing ones. I've been trying to find out, but not having seen the actual letter from Amtrak (yet), I've dug through news reports and website of legislators. This is the upshot as best as I can find out right now: It looks like Amtrak is upping the price on _existing_ leases after having had very low prices for years. See, e.g., these statements: "For decades, Amtrak has leased the property underneath the trusses to homeowners for a nominal fee which releases the agency from the burden of maintaining the premises. Residents were given a 30-day notice to accept an unconscionable annual rent increase – in some cases as much as 100,000 percent or tens of thousands of dollars" and "[i]n a letter addressed to homeowners, Amtrak argues that a review of the lease and the premises it covers, indicates the lease is substantially undervalued. For some, the rent will go up from $25 annually to over $26,000 annually. Failure to approve the new rental amount would result in the termination of the lease 30 days from the notice."
To me, that does indeed seem if not outright unconscionable, then certainly in violation of reasonable contractual expectations and the contractual terms what appears to be an already existing contract.
As mentioned, Amtrak does have a good argument in its prices having been exceptionally low for decades, but perhaps market prices should be introduced over time as the lessees get replaced over time with the existing leases somehow being grandfathered in? Granted, the turnover in the NYC real estate market may not be high in the case of lucrative deals, but on the other hand, nobody lives in any home forever. Underlying this story does seem to be the fact that Amtrak got upset not so much about the low rents per se, but the fact that some renters were making profits off them.
Monday, July 11, 2016
A group of 1L students recently caused a stir-up at an anonymous law school by posting an anonymous complaint after their criminal law professor wore a "Black Lives Matter" t-shirt "on campus" (not "to class," apparently). See the letter and the professor's great response here. (For full disclosure, our colleagues on the TaxProf Blog also wrote about the story here ).
Do students, because they enter into a contract with a private law school (or even a public one), have a legitimate reason to complain that their professors wear t-shirts with a socially and legally provocative or at least thought-provoking message? The students wrote, "We do not spend three years of our lives and tens of thousands of dollars to be subjected to indoctrination or personal opinions of our professors."
Is this reasonable, in your opinion? First, this comparison is not apt. In fact, it is an extreme over-exaggeration that barely needs commenting on. The students also comment that the "BLM" movement does not have anything to do with the law, which demonstrates the sad state of ignorance about the law and society in which many of our students - and perhaps especially those in conservative areas such as Orange County, California - find themselves (that's where the anonymous law school is thought to be located). The movement is clearly about very little but the law and policy. Second, students can and should expect to get a quality legal education when attending an ABA-accredited law school, but simply because they pay money for it does not entitle them to only hear about the version of the law that _they_ prefer. In fact, as the professor so correctly notes in his response, the consumer theory should not apply to the content of one's legal education. In other words, students don't pay to only hear part of the message. And as the professor said: students certainly don't pay us _not_ to have an opinion about the classes we teach (note that the Tshirt was worn in connection with a criminal procedure class).
What are your thoughts on this? And why does the law school not publish its name?
Monday, July 4, 2016
Emory University Law School is proud to announce the creation of the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills. The award will be presented at Emory’s sixth biennial conference on the teaching of transactional law and skills in June of 2018.
Tina L. Stark, the founding director of Emory Law’s Center for Transactional Law and Practice and the author of the groundbreaking textbook “Drafting Contracts: How and Why Lawyers Do What They Do,” has worked tirelessly to assure that law students have the opportunity to graduate as practice-ready transactional attorneys. Through her enthusiasm and perseverance, and with considerable grace and vision, she has nurtured the efforts of transactional law and skills educators the world over.
In honor of Tina’s considerable achievements, and in further recognition of her continued service as a beloved teacher and a cherished mentor, the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills will be awarded to an educator who is:
- committed to training students to be practice-ready transactional attorneys
- dedicated to engaging, inspiring, motivating and nurturing students
- devoted to teaching with passion, using creative and innovative methods
- known for achievement in curriculum or program development and pedagogy
- pledged to advance the cause of transactional law and skills education
Nominations for the 2018 Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills will be accepted beginning in June of 2017. Please see the Center for Transactional Law and Practice website for further details about the nomination and selection process in 2017 when the nomination window opens.
If you have any questions about the award, please contact Sue Payne at firstname.lastname@example.org.
H/T: D.C. Toedt, On Contracts
Sunday, July 3, 2016
Tuesday, May 24, 2016
Pretty darned bad! Imagine this: A law student starts giving professional legal advice while still in law school. The advice is rendered to a 78-year-old Chinese-American with limited English skills and experience with the American legal system. The student renders the advice in person, over the phone, and in extensive e-mail exchanges. He even persuades the client to “assign” the lawsuit to the student so that the student would be “better able to control the suit and properly advise” the client. In doing so, the student promises to “minimize any legal costs to [the client] before [the student] getting [sic] his license by doing all the work he can carry on for said case.” The students subsequently graduates (from a California law school not accredited by the ABA, according to the website of the State Bar of California), passes the bar, and becomes the formally retained lawyer for the client.
The new graduate sues a party on behalf of his client. The graduate also names his own client on a lawsuit for an unrelated matter “only as a matter of legal procedure.” Additionally, the graduate sues his client’s defendants! The advice he renders is thought to be legally incorrect by a mediator. The client thus fires the graduate. The State Bar of California brings disciplinary proceedings against the new graduate for conflict of interest matters as well as the unauthorized practice of law. The graduate stipulates to the charges and is suspended for some time. Trial is brought against the graduate by his former client for professional negligence, breach of fiduciary duty, unlawful business practice, breach of contract, and fraud. The client wins a judgment of $552,412.
You guessed it! The graduate does not pay. Rather, he appears in some subsequent judgment debtor proceedings, but disputes the court’s personal jurisdictions (that argument is waived once an appearance has been made, by the way). He submits briefs to the court misciting passages from outdated Matthew Bender Civil Procedure practice treaties. He refuses to produce tax returns to show his income. The court has to order him to do so. He goes bankrupt, and produces a “myriad” of inconsistent stories in the case. As the court said, “a few examples should suffice:
- Yan testified he sold his membership in an LLC to two persons for $650,000, but could not remember their names.
- Yan testified that his mother provided him checks, but could not remember: whether the checks numbered more than a hundred; when the most recent check was received; or when his mother last worked or her last job.
- Yan testified that he was the sole support for his children, supported solely by his income, which for 2014 was “less than [$]10,000.” The support included rent, which included $8,400 in 2014, but he refused to provide the identity of the person to whom the rent was paid. Yan was asked the source of the money to pay his children's rent, and he said it was from his “income.” Asked if that was from legal fees, Yan said, “I don't know.”
- Enough is enough.”
The monetary judgment against the graduate was affirmed. Years later, at least one other disciplinary matter has been brought against the graduate.
The question is: is this just one example of an unusually rotten apple? Or does this point to the assertion made by many that California really does not need a number of unaccredited law schools on top of the already large amount of ABA-accredited ones? (But note too that even the trial court record contains “no evidence of anything, only assertions as to what occurred, though [the plaintiff’s] assertions are supported by various exhibits” and not disputed by the defendant. There were, for example, “no reporter’s transcript, nor any real evidence – that is, sworn evidence….”
Comment below! The case is Charles Li v. Demas Yan, 2016 WL 1757283.
Wednesday, March 16, 2016
We now reach the last of our series of posts highlighting the proceedings at the KCON XI: The Eleventh International Conference on Contracts, with videos covering the final concurrent sessions held on Saturday, February 27, 2016. This ending is a worthwhile moment point to note that KCON XII is set for next February at Southwestern Law School in Los Angeles. I hope we will get to see many of you in southern California next year! Details will certainly show up in this space.
International Contract Law
- Moderator: Mark Burge, Texas A&M University
- Pablo Lerner, Ramat Gan School of Law, Constructive Trusts in Israeli Land Contracts – Contract as Key
- Dr. Lachmi Singh-Rodrigues, University of West of England, Avoidance of the Contract and the Seller’s Right to Cure Under the CISG
- Qi Gao, Beihang University School of Law, Consumer Protection under Chinese Contract Law
- Watch the panel video
Public Policy Considerations in Contract Law
- Moderator: David A. Grenardo, St. Mary’s University School of Law
- Wayne Barnes, Texas A&M University, Arrested Development: Rethinking the Age of Majority in the 21st Century
- Mayanna Dellinger, University of South Dakota, Contracts to Kill Endangered Species: Public Policy Arguments
- Joan MacLeod Heminway, The University of Tennessee College of Law, The LLC Operating Agreement and its Relation to Contract
- Hao Jiang, Tulane University, Freedom of Contract Under State Supervision
- Watch the panel video
Tuesday, March 15, 2016
Here, we continue our series of posts highlighting the proceedings at KCON XI, which are available courtesy of our friends at St. Mary's University School of Law. This set comes from the second concurrent sessions held on Saturday, February 27, 2016. You can view each video by clicking on the link following the applicable list of speakers.
- Moderator: Dov Waisman, Southwestern Law School
- Danielle Hart, Southwestern Law School, Contract Law & Ideology
- Creola Johnson, The Ohio State Univesity Moritz College of Law, Contractual Duplicity: Creditors Force Consumers into Arbitration While Exploiting the Criminal Justice System to Arrests Consumers Who Cannot Pay
- Hila Keren, Southwestern Law School, Scalia on Contracts: The Dissemination of Neoliberal Logic
- Matthew Titolo, West Virginia, Neoliberalism’s Fine Print
- Watch the panel video
- Moderator: Colin P. Marks, St. Mary’s University School of Law
- Daniel Barnhizer, Michigan State University College of Law, Contracts and Automation: Exploring the Normativity of Codability
- Stacy-Ann Elvy, New York Law School, The Internet of Things (IOT) and Bargaining Disparity
- Max N. Helveston, DePaul University, Regulating the Digital Marketplace
- Watch the panel video
Monday, March 14, 2016
Video recordings of most of the proceedings at KCON XI are available courtesy of our friends at St. Mary's University School of Law, and we are pleased to highlight and share those with you here. This set comes from the first concurrent sessions held on Saturday, February 27, 2016. You can view each video by clicking on the link following the applicable list of speakers.
- Moderator: Jennifer Martin, St. Thomas University
- Shawn Bayern, Florida State University, The Failure of Law and Economics
- Sidney DeLong, Seattle University, Jephthah’s Daughter and Morally -Efficient Breach
- Orit Gan, Sapir College, Peres Academic Center, The Many Faces of Contractual Consent
- Val D. Ricks, South Texas College of Law, Contract Doctrine as Contract Theory
- Watch the panel video
- Moderator: Nancy Kim, California Western School of Law
- Yehuda Adar, University of Haifa, Pre-Contractual Disgorgement
- Moshe Gelbard, Netanya Academic College School of Law, Pre-Contractual Disgorgement
- Roger Halson, University of Leeds, UK, Liquidated Damages and “Penalty” Clauses in the UK: A New Approach
Sunday, March 13, 2016
Video recordings of most of the proceedings at KCON XI are available courtesy of our friends at St. Mary's University School of Law, and we are pleased to highlight and share those with you here. This set comes from the presentation on Friday, February 26, 2016, of the conference's Lifetime Achievement Award to Professor Peter Linzer of the University of Houston Law Center. In keeping with the theme of honoring Professor Linzer, the presentation is paired with a panel that he moderated on Saturday, February 27, 2016 on the Consumer Financial Protection Bureau. You can view each video by clicking on the link following the applicable description.
Lifetime Achievement Award Ceremony Honoring Peter Linzer (held at the Plaza Club)
- Moderator: Peter Linzer, University of Houston
- Richard Frankel, Drexel University
- Ramona Lampley, St. Mary’s University School of Law
- Jean Sternlight, University of Nevada, Las Vegas
- Watch the panel video
Saturday, March 12, 2016
Video recordings of most of the proceedings at KCON XI are available courtesy of our friends at St. Mary's University School of Law, and we are pleased to highlight and share those with you here. This set comes from the third concurrent sessions held on Friday, February 26, 2016. You can view each video by clicking on the link following the applicable list of speakers.
- Moderator: Daniel Barnhizer, Michigan State University College of Law
- Mark Edwin Burge, Texas A&M University, Contract Law in Emerging Payment Systems
- Catherine Christopher, Texas Tech University, Virtual Currency
- Angela Walch, St. Mary’s University School of Law, Blockchains as Infrastructure
- Watch the panel video
- Moderator: Danielle Hart, Southwestern Law School
- Nadelle Grossman, Marquette University, Transactional Contracts and Textbook Simulation Discussion
- Russell Korobkin, UCLA School of Law, Bargaining with the CEO: The Case for “Negotiate First, Choose Second”
- Jane Winn, University of Washington, Framework Contracts and the New Managerial Revolution
- Watch the panel video
Friday, March 11, 2016
Video recordings of most of the proceedings at KCON XI are available courtesy of our friends at St. Mary's University School of Law, and we are pleased to highlight and share those with you here. This set comes from the second concurrent sessions held on Friday, February 26, 2016. You can view each video by clicking on the link following the applicable list of speakers.
Innovations in Teaching and Mentoring
- Moderator: Robert D. Brain, Loyola Law School Los Angeles
- Keith A. Rowley, UNLV William S. Boyd School of Law
- Frank G. Snyder, Texas A&M University
- Ben Templin, Thomas Jefferson School of Law, The New Pedagogy: Here’s the ball. Let’s play catch
- Watch the panel video
Contract Law in an Administrative and Regulatory Context
- Moderator: James W. Fox Jr., Stetson University College of Law
- Hazel Beh, University of Hawai’i, Insurance as the AntiContract
- David Friedman, Willamette University College of Law, Refining Advertising Regulation
- Peter Marchetti, Texas Southern University, Thurgood Marshall School of Law, Bankruptcy “Clawback” Provisions: Congress Needs to Amend Section 546
- Chris French, Penn State Law, The Illusion of Insurance Contracts
- Watch the panel video
Thursday, March 10, 2016
Video recordings of most of the proceedings at KCON XI are available courtesy of our friends at St. Mary's University School of Law, and we are pleased to highlight and share those with you here. This set comes from the first concurrent sessions held on Friday, February 26, 2016. You can view each video by clicking on the link following the applicable list of speakers.
Professorial Professions: Creating a Student-centered Contracts Classroom
- Moderator: Hazel Beh, University of Hawai’i
- Charles Calleros, Arizona State University
- Myanna Dellinger, University of South Dakota
- Frank G. Snyder, Texas A&M University
- Adrian J. Walters, Chicago-Kent College of Law
- Deborah Post, Touro Law Center, Politically Conscious Pedagogy
- Watch the panel video
What You Thought You Knew About Remedies in Sales Transactions May Not Be True: Highlights in Article 2 Remedies and Contracting for Limitations
- Moderator: Mark Burge, Texas A&M University
- Sidney DeLong, Seattle University, The Notice of Breach Dilemma: Conflict and Cooperation in Eastern Airlines v. McDonnell Douglas
- Nancy Kim, California Western School of Law, Teaching UCC Remedies from Concept to Clause
- Colin Marks, St. Mary’s University School of Law, On-Line and As Is
- Jennifer Martin, St. Thomas University, Opportunistic Resales and the UCC
- Watch the panel video
Sunday, January 31, 2016
Ian Kerr of the University of Ottawa's Centre for Law, Technology and society has an interesting post from last September on a topic of that has been of occasional discussion on this blog, and which I came across only recently. In "The Arrival of Artificial Intelligence and 'The Death of Contract,'" Kerr outlines some of the foreseeable challenges facing today's students of contract law due to disruptive technology:
On the market today are a number of AI products that carry out contract review and analysis. Kira, an AI system used to review and analyze more than US$100 billion worth of corporate transactions (millions of pages), is said to reduce contract review times by up to 60%. Likewise, a Canadian product called Beagle (“We sniff out the fine print so you don’t have to”) is faster than any human, reading at .05 seconds per page. It reads your contract in seconds and understands who the parties are, their responsibilities, their liabilities, how to get out of it and more. These are amazing products that improve accuracy and eliminate a lot of the “grunt work” in commercial transactions.
But hey—my Contracts students are no dummies. They can do the math. Crunch the numbers and you have a lot of articling students and legal associates otherwise paid to carry out due diligence who now have their hands in their pockets and are looking for stuff to do in order to meet their daily billables. What will they do instead?
In some ways, such concerns are just teardrops in an ocean full of so-called smart contracts that are barely visible in the murky depths of tomorrow. Their DRM-driven protocols are likely to facilitate, verify, and enforce the negotiation and performance of contracts. In some cases, smart contracts will obviate the need for legal drafting altogether—because you don’t actually need legal documents to enforce these kinds of contracts. They are self-executing; computer code ensures their enforcement.
Kerr's concludes that smart contracts and their technological relatives are no more the death of contract than what Grant Gilmore pronounced, but that the change is worrisome, including to our relational understanding of contract doctrine and its practice:
I suspect we will face some significant changes and I am not sure that it’s all good. Self-executing contracts, like the DRM-systems upon which they are built, are specifically designed to promote the wholesale replacement of relational aspects of contract such as trust, promise, consent and enforcement. As such, they do injury to traditional contract theory and practice. While I have no doubt that an AI-infused legal landscape can to some extent accommodate these losses by creating functional equivalents where historical concepts no longer make sense (just as e-commerce has been quite successful in finding functional equivalents for the hand-written signature, etc.), I do worry that some innovations in AI-contracting could well have a negative effect on human contracting behavior and relationships.
The entire post is worth a read for anyone interested in the impact of technology on contracts.
Wednesday, December 16, 2015
I'm posting this proposal and solicitation of comments at the request of some valued contracts-prof colleagues named below. I hope you'll take them up on their request for feedback, which you can provide directly by clicking on the links associated with their names.
More law schools are no longer regularly or frequently offering courses in (1) payment systems, (2) secured transactions, and/or (3) sales. In part, this happens because these schools do not have faculty members who want to teach the courses. And, in other cases, because students do not sign up for commercial law courses--even if the commercial law courses are taught from 11-12 on Tuesdays and Thursdays.
Most students do not need 42 class hours of payment systems, 42 hours of secured transactions, and 42 hours more of sales. ["What?! I'm appalled by this heretical statement!" - Ed.] Lawyers in a general civil practice do, however, need to have familiarity with core commercial law concepts in order to master the specific statutory provisions that govern the transaction or litigation matter on which they are working. ["Okay, that's better." - Ed.] And, before that, there is a need to pass the state bar exam.
We propose that the needs of such students can best be meet in a two-credit course covering only core commercial law concepts, and we are working on course materials for such a course. We welcome your reasoned arguments against this proposal. Even more welcome would be your suggestions as to how 28 class hours can most effectively be used by students learning core commercial concepts.
We look forward to seeing you at the AALS and receiving your emails.
Hmmm. The idea of commercial law in two credits makes this teacher of payment systems and sales a little queasy (see my initial reaction in the selfie photo at left). Still, I probably wouldn't argue with the proposition that some exposure to commercial law is better than none. I'm curious what the broader contracts community thinks, so I've opened up the comments below. Meanwhile, take advantage of this opportunity to help our colleagues with an interesting project.