ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, March 2, 2017

Michael Dorff (Southwestern Law School) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.


Michael Dorff (Southwestern)

Assessing the Assessment: B Lab's Effort to Measure Companies' Benevolence, Seattle University Law Review, Vol. 40, No. 1, 2017

Michael B. Dorff, Southwestern University School of Law

For benefit corporations to persuade their various audiences that they are as beneficial for society as they claim, they need reliable assessments of their social performance. Even if assessments were not required by most states’ benefit corporation statutes, it is difficult to imagine the benefit corporation form could gain credibility without them. Creating measurement tools for these assessments poses the twin challenges of balancing simplicity against validity and weighing vision against inclusiveness. This article examines how B Lab’s popular assessment tool engages these challenges.


SSRN link:

March 2, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Carol Sanger (Columbia) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.


Contracting for Abortion

KCON 12: Intimate Contracts, Consent, and Commodification Panel

Carol Sanger, Barbara Aronstein Black Professor of Law, Columbia University

Sanger_Carol (Columbia)Contracts between intimates or about intimate subjects are now a regular feature of regular contract law. I have recently written about post- adoption visitation agreements, where birthmothers agree to place a child with an adoptive couple in exchange for visitation rights; Bargaining for Motherhood, 41 Hofstra L. Rev. 309 (2012). This paper concerns not the acquisition of a child, but the promise not to have one by agreeing contractually to abort a pregnancy in exchange for consideration.   The topic arose as part of my inquiry into what men take into account when decisions about the disposition of an embryo or fetus is up to them, in such matters as contested embryo cases.  Another source of these decisions is found in surrogacy contracts when the commissioning man (or couple) bargains for the surrogates promise to terminate the pregnancy upon prenatal testing that reveals an anomaly specified in the contract as triggering the abortion provision.  While such contracts have not been specifically enforced, they remain a common feature of surrogacy contracts, perhaps serving an in terrorem function. 

Yet in an interesting 1987 case, L.G. v. H.A.G., the Missouri Court of Appeals upheld a contract between a father and his adult unmarried daughter where he promised to reinstate her in his will if she terminated her pregnancy.  She did, but he didn’t.  The Court found there was nothing against public policy or illegal per se in the daughter’s promise. Indeed, “family harmony and reconciliation were also involved and both … naturally encouraged as a matter of public policy.”  The case puts women’s abortion decisions in an economic framework, and suggests that fathers too have interests in reproductive decisions for which they too are willing to bargain.  

This paper draws from the chapter “Fathers and Fetuses: What Would Men Do” in my new book About Abortion: Terminating Pregnancy in 21st Century America (Harvard U.P.,  March, 2017).

March 2, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Wednesday, March 1, 2017

Gastón de los Reyes (George Washington University: Business) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.


Not from guile, but from entitlement: Lawful opportunism haunts the cracks in contracts

Gastón de los Reyes and Kirsten Martin (George Washington University School of Business)

Abstract (KCON Presentation by Gastón de los Reyes)

Gaston-De-los-Reyes (GWU School of Business)Opportunistic acts are not all cut from the same cloth. While the blatant opportunism that results from “self-interest seeking with guile” is widely acknowledged, the lawful opportunism that Williamson paints as the bane of hybrid governance remains obscure and little understood. We examine the construct of lawful opportunism and empirically explore its connection to the known and studied contracting behaviors of blatant opportunism and cooperation. Using a series of contracting vignette surveys, we demonstrate that lawful opportunism is a theoretically distinct intended behavior across a variety of contracting scenarios. A contractor’s sense of entitlement, we find, is the primary driver of intended lawful opportunism. In contrast, and perhaps surprisingly, the more a contractor views the exchange in economic terms, the less likely they are to act with blatant opportunism. The study has implications for the study of contracting and hybrid governance across disciplines and for prescription to contracting parties.

March 1, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Chris Odinet (Southern University) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.



Christopher K. Odinet


Chris Odinet_photoThe digital economy is changing everything, including how we borrow money. In the wake of the 2008 crisis, banks pulled back in their lending and, as a result, many consumers and small businesses found themselves unable to access credit. In the space left vacant by these traditional financial institutions have come a wave of online firms called marketplace lenders. These platforms are fast making antiques out of many mainstream lending practices, such as face-to-face interviews with loan officers and long paper applications. Instead, through underwriting by automation—utilizing big data (including social media data)—loan processing that once took weeks can now be done overnight. The result of these technological advances has been quicker access to capital, more economic efficiencies, and even greater prospects for access to credit for theunbanked and underbanked. “Click here” is the new “sign on the dotted line.”

 But there is a lot still to learn about the online lending marketplace. How do these marketplace lenders work and what kinds of products do they offer? Moreover, what role will they play in the future of American debt and credit markets? This Article explores these questions and assesses current government responses to the nascent industry. It also surveys the currentregulatory landscape for marketplacelenders and analyzes a multi-year dataset of complaints submitted to the CFPB relative to consumer loans offered by these firms.The Article concludes by offering some broad policy considerations for how investors, small businesses, and consumers could be protected in this new world of BitCredit.

March 1, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (1)

Tuesday, February 28, 2017

Colin Marks (St. Mary's) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.


Online and As Is

Colin P. Marks (St. Mary's University School of Law)


Colin Marks (St. Mary's)Online retail is a multi-billion-dollar industry in the United States. Consumers enjoy the ease with which they can browse, click, and order goods from the comfort of their own homes. Though it may come as no surprise to most lawyers, retailers are taking advantage of online transactions by attaching additional terms and conditions that one would not normally find in-store. Some of these conditions are logical limitations on the use of the retailers’ websites, but others go much further, limiting consumers’ rights in a way that would surprise many shoppers. In particular, many online retailers are using these terms to limit implied warranties, selling the goods “as is,” and limiting remedies, as well as adding a host of other limitations. This article does not discuss the effects of online terms and conditions, but rather starts with exploring a very basic question: How prevalent are certain terms and conditions? While these terms and conditions may seem to be ever-present in online transactions, there have been few attempts thus far to empirically record the frequency of their use in retail transactions involving goods. This article remedies the situation by exploring the mode by which consumers assent, the prevalence of warranty and liability limitation clauses, and the prevalence of other common clauses used by the largest retailers in the United States.

SSRN Download Available Here

February 28, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Charles Calleros (Arizona State) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.


U.S. Unconscionability and Article 1171 of the New French Civil Code: Achieving Balance in Statutory Regulation and Judicial Intervention

(forthcoming in Georgia Journal of International and Comparative Law)

Professor Charles R. Calleros,

Sandra Day O’Connor College of Law, Arizona State University

  Charles Calleros (Arizona State)Abstract

            Perhaps the most notable development in commercial law in 2016 is the revision of contract law in the French Civil Code, the first comprehensive revision since the adoption of the 1804 Napoleonic Code. Perhaps the most notable innovation in that revision is article 1171, which empowers a judge to strike down an ancillary provision of an adhesion contract if it would otherwise create a significant imbalance between the parties.  

            Compared to the U.S. unconscionability doctrine, article 1171 adds to existing French legislation in a cautious manner and should not spark serious concerns about interference with freedom of contract. Instead, the more interesting questions are (1) whether the French judiciary will sufficiently embrace and exercise the authority afforded it under article 1171 to achieve its limited goals, and (2) whether lawmakers in the United States can overcome the American resistance to legislative and executive intervention sufficiently to emulate French and European control of abusive terms through a combination of legislative, administrative, and judicial regulation.

February 28, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Sunday, February 26, 2017

Iowa Bill Proposal: To Get Faculty Position, Must Have Correct Political Affiliation

Just when you think the political debacle in this country cannot get anymore grotesque, here's a recent proposal by Iowa State Senator March Chelgren: to counter the liberal slant at Iowa's three public universities, the job candidates' political affiliations would have had to be considered.   Why?  To ensure "balanced speech" and avoid the "liberal slant" in public universities these days. 

Under SF 288, the universities would use voter registration information when considering job applicants, and could not make any hire that would cause declared Democrats or Republicans on the faculty to outnumber the other party by more than 10%.

Demonstrating the very deep and logical (not!) argument, check this line of thinking: Chelgren said professors who want to be hired could simply change their party affiliation to be considered for the position.  "We have an awful lot of taxpayer dollars that go to support these fine universities," he said. "(Students) should be able to go to their professors, ask opinions, and they should know publicly whether that professor is a Republican or Democrat or no-party affiliation, and therefore they can expect their answers to be given in as honest a way possible. But they should have the ability to ask questions of professors of different political ideologies."


February 26, 2017 in Commentary, Contract Profs, Current Affairs, Government Contracting, In the News, Labor Contracts, Legislation | Permalink

Friday, February 24, 2017

KCON Lifetime Achievement Honoree for 2017: Deborah Post

Tonight's Casablanca Nights Moroccan dinner will be highlighted by the presentation of the KCON Lifetime Achievement Award to Deborah Post, but first is a panel tribute and presentation. Meredith Miller read Professor Post's moving personal narrative on Williams v. Walker-Thomas Furniture Co. Professor Post's coauthors Deborah Zalesne and Nancy Ota presented a humorous tribute and partial roast in an appropriately ContractProf form: The Restatement of Deborah Post, complete with chapters, sections, and defined terms.

KCON12-Deborah Post 2

Seated in red at left: Deborah Post. At the front panel from left: Meredith Miller (standing), Deborah Zalesne, and Nancy Ota

KCON12-Deborah Post 1

Through the years.

KCON12-Deborah Post Restatement

Sample from "The Restatement of Deborah Post."



February 24, 2017 in Contract Profs | Permalink

Wednesday, February 22, 2017

KCON XII Schedule for Saturday, February 25 (Day Two)

(Post 2 of 2)

The Twelfth International Conference on Contracts kicks off this Friday! This year's model of ContractProf Blog's favorite conference, better known as KCON, will be held at Southwestern Law School in Los Angeles, and yours truly will be blogging from the event. While I hesitate to promise true live blogging, I'm confident--having recently taught my 1Ls the concept of quasi-contractual obligations--that "quasi-live blogging" is well within the realm of possibility. I look forward to the fun and quality time with our readers and colleagues this weekend.

Below, for your reading pleasure, is the final schedule for the second day of the conference.  The first day's schedule is posted here.  Day two highlights include the keynote address, "Enhancing Moral Relationships Through Strict Liability," delivered by Seana Shiffrin, Professor of Philosophy, UCLA & Pete Kameron Professor of Law & Social Justice, UCLA Law School.



8:30 - 9:00 a.m. Registration and Continental Breakfast (3rd Floor Lobby)

9:00 - 10:00 a.m. Panel Session 5

Contract Law: Looking Toward Asia (BW 390)

Mindy Chen-Wishart, Oxford University

Moderator: Tan Zhong Xing, National University of Singapore

10:00 - 10:15 a.m. Break (3rd Floor Lobby)

10:15 - 11:45 a.m. Panel Session 6

Theorizing Contract Law (BW 390)

Eli Bukspan, The Interdisciplinary Center, Herzliya, Radzyner Law School "Direct Incidence of Human Rights in the Private Sphere: Contract Law as the Missing Link"

Peter Gerhart, Case Western Reserve University School of Law "Promises and Obligations"

Enrique Guerra-Pujol, University of Central Florida, College of Business Administration "Illegal/Immoral Promises"

Nathan Oman, William & Mary Law School "The Dignity of Commerce: Markets and the Moral Foundations of Contract Law"

Moderator: Carol Sanger, Columbia Law School

Empirical Approaches (BW 370)

Gaston De Los Reyes, The George Washington University School of Business "Not From Guile But From Entitlement: Lawful Opportunism Haunts the Cracks in Contracts"

Colin Marks, St. Mary’s University School of Law "Online Terms and Conditions"

Christopher Odinet, Southern University Law Center "Bitcredit"

Moderator: Michael Kelly, University of San Diego School of Law

12:00 – 1:30 p.m. Lunch and Keynote Address (Louis XVI Room, 2nd Floor)

"Enhancing Moral Relationships Through Strict Liability" Seana Shiffrin, Professor of Philosophy, UCLA & Pete Kameron Professor of Law & Social Justice, UCLA Law School

1:45 – 3:15 p.m. Panel Session 7

Contract Law Meets Reality (BW 390)

Rachel Arnow-Richman, University of Denver, Sturm College of Law "Noncompetition, Good Faith, and the Bilateral Employment Contract"

Allen Kamp, John Marshall Law School "Wellness Programs and Consent"

Thomas Joo, UC Davis School of Law "The Law in the High Castle: Breach of Contract and Alternative History"

Eric Zacks, Wayne State UniversitySchool of Law "The Statute of Limitations and Acceleration Clauses in Mortgage Foreclosure Cases"

Moderator: Keith Rowley, UNLV Boyd School of Law

Inside the UCC (BW 370)

Robert Brain, Loyola Law School, Los Angeles "A Proposal to Eliminate UCC 2-315"

Jennifer Martin, St. Thomas University School of Law "Contracting to Address Human Rights Violations in Supply Agreements"

Daniel O’Gorman, Barry University, Dwayne O. Andreas School of Law "Contract Law’s Predominant Purpose Test and the Law/Fact Dichotomy" Moderator: Mark Wessman, Tulane University Law School

3:15 - 3:30 p.m. Break (3rd Floor Lobby)

3:30 - 5:00 p.m. Panel Session 8

Contracts in the Digital Age (BW 370)

Daniel Barnhizer, Michigan State University College of Law "Exploring the Normative Implications of Automation of Contract Law and Dispute Resolution"

Nicolas Cornell, University of Pennsylvania, Wharton School of Business "Smart Contracts and Ex Post Adjudication"

Michael Malloy, University of the Pacific, McGeorge School of Law "Contracts in a Digital Age: My Teenage Tech Advisors Rescue Dad"

Moderator: Mark Burge, Texas A&M University School of Law

Intimate Contracts, Consent & Commodification (BW 390)

Orit Gan, Sapir College, School of Law "Gett Abuse"

Nancy Kim, California Western School of Law "Consentability: Are There Limits to Consent?"

Carol Sanger, Columbia Law School "Contracting for Abortion"

Deborah Zalesne, CUNY School of Law "Choosing ‘Choice’ in the Age of Art"

Moderator: Kaiponanea Matsumura, Arizona State University, Sandra Day O’Connor College of Law

5:00 - 5:15 p.m. Closing Remarks (BW 390)


February 22, 2017 in Conferences, Contract Profs | Permalink

KCON XII Schedule for Friday, February 24 (Day One)

(Post 1 of 2)

The Twelfth International Conference on Contracts kicks off this Friday! This year's model of ContractProf Blog's favorite conference, better known as KCON, will be held at Southwestern Law School in Los Angeles, and yours truly will be blogging from the event. While I hesitate to promise true live blogging, I'm confident--having recently taught my 1Ls the concept of quasi-contractual obligations--that "quasi-live blogging" is well within the realm of possibility. I look forward to the fun and quality time with our readers and colleagues this weekend.

Below, for your reading pleasure, is the final schedule for the first day of the conference.  Day one highlights include the presentation of the KCON Lifetime Achievement Award to Deborah Post.  You can find the Saturday schedule in a subsequent post.



8:15 - 8:45 a.m. Registration and Continental Breakfast (3rd Floor Lobby)

8:45 - 9:00 a.m. Welcome and Opening Remarks (BW 390) Susan Westerberg Prager Dean and CEO, Southwestern Law School

9:00 - 10:30 a.m. Panel Session 1:

Reconsidering Remedies (BW 370)

Shawn Bayern, Florida State University College of Law "The Limitations of the Expectation Interest in Contract Law"

Jean Powers, South Texas College of Law "Paying for What You Get—Restitution for Breach of Contract"

Dov Waisman, Southwestern Law School "The Hadley Rule and After-Arising Risks"

Moderator: Moshe Gelbard, The Netanya Academic College School of Law

Taking a Second Look (BW 390)

Sidney DeLong, Seattle University School of Law "The Farmer and the Cowman Should Be Friends: Coase, Cows, Corn, and Coercion"

Hila Keren, Southwestern Law School "Emotional Value and the Value of Emotions"

Meredith Miller, Touro Law Center "One Judge’s Legacy and the New York Court of Appeals: Mr. Justice Cardozo and the Law of Contracts"

Guy Rub, The Ohio State University, Moritz College of Law "Copyright Survives: The Copyright-Contract Conflict Revisited"

Moderator: Keith Rowley, UNLV Boyd School of Law

10:30 - 10:45 a.m. Break (3rd Floor Lobby)

10:45 - 12:15 p.m. Panel Session 2

Comparative & International Perspectives (BW 370)

Reza Beheshti, University of Nottingham School of Law (unfortunately banned from participating in person by Executive Order; participating via Skype) "Whether the Doctrine of ‘Adequate Assurance’ Should Be Introduced Into English Contract Law"

Charles Calleros, Arizona State University, Sandra Day O’Connor College of Law "U.S. Unconscionability and Article 1171 of the New French Civil Code: Achieving Balance in Statutory Regulation and Judicial Intervention"

Robert E. Lutz, Southwestern Law School "The Role of ‘Contracts’ in International Law: Treaties and Arbitration"

Moderator: Lauren Willis, Loyola Law School, Los Angeles

The Challenges of Teaching: Materials and Tricks (BW 390)

Carol Chomsky, University of Minnesota Law School Materials: "Casebooks and the Future of Contracts Pedagogy"

Benjamin Templin, Thomas Jefferson School of Law Materials: "The Future of Casebooks"

David Epstein, University of Richmond School of Law Tricks: "Teaching Conditions"

Sean Scott, Loyola Law School, Los Angeles Tricks: "Parol Evidence Rule"

Robert Brain, Loyola Law School, Los Angeles Tricks: "Parol Evidence Rule"

Moderator: Charles Knapp, UC Hastings College of the Law

12:30 - 1:45 p.m. Lunch and Keynote Panel (Salle Moderne, 5th Floor) "Negotiating Complex Contracts: Behind the Scenes of the La Guardia Project" Harout Dimijian (Associate), M. Elizabeth Dubeck (Partner), Denise Raytis (Partner), Eric A. S. Richards (Partner), O’Melveny & Myers, LLP

2:00 - 3:30 p.m. Panel Session 3

Application of Contract Principles in the Entertainment Industry (BW 390)

Michael Blaha, Law Offices of Michael R. Blaha "Protection of Idea Disclosures by Implied-in-Fact Contracts"

Kia Kamran, Attorney at Law "The Esoteric Nature of Music Agreements"

Robert Lind, Southwestern Law School "Contracts and the Intersection with Copyright Termination"

Moderator: Danni Hart, Southwestern Law School

Contracts in the Corporate Setting (BW 370)

Michael Dorff, Southwestern Law School "Assessing the Assessment: B Lab’s Effort to Measure Companies’ Benevolence"

Pamela Edwards, CUNY School of Law "Have Public Benefit Corporations Benefitted the Public? The Rise of PBCs in the Service of Social Justice"

Mark Gergen, UC Berkeley School of Law "Privacy, Privity, and Collective Private Ordering"

Moderator: Summer Kim, UC Irvine School of Law

3:30 - 3:45 p.m. Break (3rd Floor Lobby)

3:45 - 5:15 p.m. Panel Session 4

The Contracting Process: Behavioral & Experimental Perspectives (BW 390)

Eyal Zamir, Hebrew University of Jerusalem, Faculty of Law "Marketing Techniques, Pricing Methods, and the Law of Consumer Contracts"

Russell Korobkin, UCLA School of Law "Bargaining with the CEO: The Case for ‘Negotiate First, Choose Second’"

Tess Wilkinson-Ryan, University of Pennsylvania Law School "The Perverse Consequences of Disclosing Standard Terms"

Dave Hoffman, University of Pennsylvania Law School "From Promise to Form: How Contracting Online Changes Consumers"

Moderator: Deborah Post, Touro Law Center

5:15 - 5:25 p.m. Short Break (3rd Floor Lobby)

5:25 - 5:55 p.m. The Legacy of Deborah Post: Lifetime Achievement Award Recipient (BW 390)

Meredith Miller, Touro Law Center Deborah Zalesne, CUNY School of Law Moderator: Danni Hart, Southwestern Law School

6:00 - 6:30 p.m. Reception

6:30 - 9:00 p.m. Dinner, Lifetime Achievement Award, Live Music (Louis XVI Room, 2nd Floor)



February 22, 2017 in Conferences, Contract Profs | Permalink | Comments (0)

Sunday, February 19, 2017

The Contracts Case that No Judge Wants to Hear

In McNair v. Superior Court (6 Cal.App.5th 1227 (Cal. App. 2016), a college football coach brought suit against National Collegiate Athletic Association (“NCAA”) for, among other issues, interference with and breach of contract. That’s hardly unusual. What is unusual is the fact that the case has so far been assigned to … eight judges in five years!

In 2011, for example, NCAA moved t Maricopa-County-Judges
strike McNair’s complaint under the California anti-SLAPP statute. The trial court denied that motion. The NCAA appealed. The appellate court affirmed in “large part, but reversed a small portion.” The NCAA then filed a second peremptory challenge to the trial judge who had denied the anti-SLAPP motion. Without even giving McNair a chance to file an opposition but with full knowledge that an opposition was, in fact, forthcoming, the trial judge disqualified himself. McNair petitioned for a write of mandate contending that the trial court erred as a matter of law and asking the appellate court to issue a write directing the court to vacate its order accepting the postappeal peremptory challenge.

The appellate court this time pointed out that under California law, peremptory challenges to judges may only be filed following a “final judgment.” Cal. Civ. Proc. Code § 170.6(a)(2). A denial of an anti-SLAPP motion is not a final judgment, said the court. NCAA argued that McNair’s writ petition should be denied because, among other things, McNair had not suffered prejudice. However, the court found that McNair had indeed been prejudiced by the trial court’s “abrupt decision” to accept the NCAA’s peremptory challenge before he could oppose it. The court granted McNair’s petition. The case was thus sent back to … the same judge who didn’t want it. Not very reassuring to any of the parties or the general public’s faith in a fair legal system, I am sure. Neither is the fact that our system allows for so many judges in the same case in one single case. Too much and too little… this case definitely seems to be one of too much.

February 19, 2017 in Contract Profs, Sports | Permalink | Comments (0)

Friday, February 3, 2017

No Class Actions For Investment Fraud Claims in the Eighth Circuit

In Holtz v. JPMorgan Chase Bank (the “Bank”), Judge Easterbook recently held that litigants may pursue state law contracts or fiduciary duty claims in an individualized manner, but not in the form of class action law suits under the Securities Litigation Uniform Standards Act of 1998 (“the Litigation Act,” 15 U.S.C. § 78bb (F)).

In the case, the plaintiffs alleged that the Bank gave its employees incentives to place clients’ money on the Bank’s own mutual funds, even when those funds have higher fees or lower returns than competing funds sponsored by third parties. The Bank allegedly failed to inform the clients of this conflict of interest or lied about it. Plaintiffs also argued that banks have fiduciary duty that they simply cannot contract out of under state contract law. J. Easterbrook recognizes that contract claims survive federal statutory pre-emption standards. Here, the Litigation Act is on point. However, to plead misrepresentations or omissions under the Act, the contract claims must not be “material.” (An omission is “material” when a reasonable investor would deem it significant to an investment decision.) In other words, the gravamen of litigation under the Act must, it seems, be statutory, and not purely contractual, issues. If the contractual issues are material, they must be litigated in the form of state law claims.

Per Easterbrook, “there are plenty of ways to bring wrongdoers to account – but a class action that springs from lies or material omissions in connection with federally regulated securities is not among them … If [the plaintiff] wants to pursue a contract or fiduciary-duty claim under state law, she has only to proceed in the usual way: one litigant against another.”

Another win in the “war” against class actions, it seems.

February 3, 2017 in Contract Profs, Current Affairs, Miscellaneous, True Contracts | Permalink | Comments (0)

Sunday, January 22, 2017

Apollo 11 Moon Rock Bag Stolen, Sold to BFPV at Auction, Now Government Wants it Back

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. MoonRockBack

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.

January 22, 2017 in Commentary, Contract Profs, Current Affairs, Famous Cases, Government Contracting, In the News, Miscellaneous, Science | Permalink | Comments (0)

Wednesday, December 7, 2016

Air Force None?

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.

December 7, 2016 in Celebrity Contracts, Commentary, Contract Profs, Current Affairs, Government Contracting, In the News, Travel, True Contracts | Permalink | Comments (0)

Wednesday, November 30, 2016

Trump: Contractual Landlord and Lessee at the Same Time

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.

November 30, 2016 in Celebrity Contracts, Commentary, Contract Profs, Government Contracting, In the News | Permalink | Comments (0)

Thursday, November 24, 2016

A Sad and Regrettable Loss to Contract Law Academia

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.

November 24, 2016 in Commentary, Contract Profs, Current Affairs, In the News, Labor Contracts, Law Schools | Permalink | Comments (2)

Sunday, November 13, 2016

Scholarship highlight: Climate change and the "Act of God" doctrine

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!

November 13, 2016 in About this Blog, Commentary, Contract Profs, Current Affairs, Legislation, Miscellaneous, Science, True Contracts | Permalink

Monday, October 10, 2016

JOTWELL - Contracts section

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!



October 10, 2016 in Commentary, Contract Profs, Miscellaneous, Recent Scholarship, Web/Tech | Permalink | Comments (0)

Monday, September 5, 2016

More on Alleged Property Shark Amtrak

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.

September 5, 2016 in Commentary, Contract Profs, Current Affairs, In the News, Miscellaneous, True Contracts | Permalink | Comments (0)

Monday, July 11, 2016

Do Law Profs Breach a Commercial Educational Agreement by Wearing T-Shirts with a Social Message?

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 Images).

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?

July 11, 2016 in Commentary, Contract Profs, Current Affairs, In the News, Law Schools, True Contracts | Permalink | Comments (0)