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.
Wednesday, December 2, 2015
Greetings! I am very excited to be joining the fantastic ContractsProf Blog team, and I am especially grateful to Myanna Dellinger for providing the opportunity. I can't wait to get started digging into contract law issues here.
I am an Assistant Professor at the University of Mississippi School of Law, and my specialty is actually intellectual property, with a focus on copyright and trademark. In addition to dealing with IP and entertainment law contracts in my classes, I also teach first-year Contracts.
I've devoted a lot of my scholarly energy to the IP implications of fandom (if you want to talk to me about fanfiction, my inbox is always open!) and am more broadly interested in the ways in which legal regimes get practically interpreted by laypeople in everyday life. Of course, in our contract-heavy lives in which every website we visit assumes we've read their terms and conditions, inexpert understandings (and misunderstandings) of contract law arise all the time (my favorite is the citation to the UCC to protect the privacy of Facebook statuses that circulates every once in a while). I am really looking forward to blogging about these and other contract law issues and exploring contract law with all of you and the rest of the awesome contributors!
I have been looking forward to the resumption of my posts on ContractsProf blog, but sometimes events overtake us. It is with the greatest regret that I report that our colleague Louis F. Del Duca, Professor Emeritus at Penn State Law, died suddenly on 30 November 2015. An announcement from his law school is available here.
Lou was one of my co-authors on Global Issues in Contract Law (“GICL”), and a beloved friend and colleague for all of us. He was the longest-serving faculty member in the history of Penn State – Dickinson Law, and an internationally recognized scholar in commercial and comparative law. His influence in the “internationalization” of American legal education was profound. His inspiration on the development of West Academic’s Global Issues series was palpable.
At the time of his passing, Lou, I and our coauthors were finishing up the preparation of the GICL second edition. We all feel fortunate to have had this one last interaction with Lou, and I look on GICL second as a small remembrance of our friend and colleague. Godspeed Lou!
Tuesday, December 1, 2015
Changes are underway at the ContractsProf Blog, and I am delighted to be one of them. Thanks to Myanna Dellinger for giving me the opportunity to join a team building on over a decade of quality content established by our founder (and my faculty colleague) Frank Snyder, outgoing editor Jeremy Telman, and many others throughout the years.
Who is this guy, anyway? Glad you asked. I am an Associate Professor of Law at Texas A&M University School of Law in Fort Worth, proud home for two years of the esteemed International Conference of Contracts that, as Jeremy mentioned here, has been closely associated with this blog since its inception. My major scholarly interests are in contracts (seriously, did you think I would NOT say "contracts" here?), commercial law (especially payment systems), and the interaction of both fields with legal skills and practice. I came to the academy after eight years of practice in the areas of business and commercial litigation and related transactions. Despite some occasional flirtations with theory, I have yet to shake off my greater interest in how lawyers actually make things work. So I've learned to live with that, and I'm most fortunate to be at a law school with colleagues and an administration who support the grab-bag of things I do.
My current work, which I hope to discuss here occasionally (while skillfully avoiding off-putting narcissism in the process), involves the intersection of private contract law with public regulation in the rapidly developing area of emerging payment systems. Where exactly are the best dividing lines between private and public law, especially in an age where the lag between technology and law seriously strains the institutional capacity of legal systems? Perhaps we can find some answers to that overarching question and have some fun along the way. I should, in the interest of full disclosure, confess that I think contract law is fun.
I look forward to the adventure, and I appreciate anyone who is along for the ride.
Thursday, November 5, 2015
Bumping this back up to the top:
Here are the basics:
11th International Conference on Contracts (KCON XI)
Feb. 26 and 27, 2016
St. Mary’s University School of Law
San Antonio, Texas
The St. Mary’s University School of Law is pleased to host the International Conference on Contracts — a two-day conference designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, thought experiments, as-yet-fully-formed ideas for scholarship, and pedagogical innovations and to network with colleagues — and potential collaborators or mentors — from around the country and other parts of the world.
This year, we will be honoring Professor Peter Linzer of the University of Houston Law Center (pictured) with the Lifetime Achievement Award for his contributions to the field of contract law.
Call for Papers
Submissions are cordially invited for the 11th Annual International Conference on Contracts, the largest annual scholarly and educational conference devoted to Contracts and related areas of commercial law. Papers and works in progress are welcome from those who study contracts from any perspective, whether doctrinal, pedagogical, theoretical, empirical, historical, economic, critical, comparative or interdisciplinary.
Works that take an international or civil law approach are also welcome. Junior scholars are particularly encouraged to participate. Those interested in proposing and organizing panels of three to five presenters on specific themes are especially encouraged to do so.
Individual submissions should be made by a brief abstract (one page is sufficient) of the paper or work in progress that includes contact information for the author(s). Individual submissions will be placed on panels with like submissions. Panel proposals should include the name and contact information of the moderator or organizer, and a summary of the proposed papers or works in progress. There is no publication commitment for the conference, but organizers of individual panels are free to arrange for publication on their own.
Submissions: The deadline is Monday, Dec. 11, 2015. Proposals submitted earlier will be accepted on a rolling basis. Proposals submitted after the deadline will be accepted on a space-available basis.
Submissions should be directed to:
Professor Colin P. Marks
The conference program will begin both Friday and Saturday mornings at 9 a.m. Breakfast and conversational opportunities will start earlier. The conference will continue until about 5:30 p.m. each day.
The Menger Hotel in downtown San Antonio is holding a block of rooms from the nights of Thursday, Feb. 25, 2016 through Saturday, Feb. 27, 2016 at a rate of $139 per night (plus tax) for a single or double occupancy room or $149 per night (plus tax) for a triple or quadruple occupancy room.
The deadline for hotel registration at the conference rate is Feb. 5, 2016. The sooner you book the more likely we will be able to get the hotel to make the conference rate available to additional attendees once the initial block is booked and the deadline passes.
Though shuttles will be provided to and from the conference and hotel, should you wish to drive, parking rates for the group are: $20 valet plus tax, (subject to change/for Hotel guest only). There are also various city lots around the hotel which cost between $12 and $20 per day.
We’ll provide transportation between the Menger and the law school for the conference as well as forFriday’s dinner venue at the Plaza Club in downtown San Antonio. Attendees who prefer to stay elsewhere are responsible for their own transportation.
Your registration fee will cover the costs of breakfast and lunches both days and a reception and dinnerFriday evening, as well as morning and afternoon refreshments during breaks, which will include coffee, fruit, baked goods and other items.
Tuesday, October 13, 2015
Congratulations to Cardozo Law's Mitchell Engler (pictured) on the publication of his Pay for Play: The Compensated Leisure Flow of Contract Damages, available for download here on SSRN. The article is published in the George Mason Law Review. Here is the abstract:
Contract damages aim to leave the injured party in as good a position as if the contract had been fulfilled. But discharged laborers often obtain a much better result due to the lack of a reduction for their excused work effort on breach. After first exposing the problematic ramifications of this unjustified deviation, this Article then provides two workable corrections.
Legal neglect of the labor/leisure tradeoff primarily explains the defect. Under this economic principle, workers must sacrifice valuable leisure to get paid. Contract law, however, can provide discharged workers compensated leisure: full payment despite retention of their leisure time after the breach. Interestingly, legal disregard of the leisure tradeoff also permeates the current firestorm over the value of a law degree. Evidencing a pattern of leisure time neglect, legal analyses similarly overstate service contract damages and the value of a law degree.
Practicalities also play a role as recognition of the flaw does not itself yield a ready solution. Current law’s mitigation offset for new work might seem to be the most feasible response. But mitigation does not apply if the new work is insufficiently comparable or if the worker could handle both jobs under the lost volume doctrine. Given mitigation’s limited scope, I demonstrate a superior offset. In theory, the contract price should be reduced by the worker’s lowest acceptable price for the job. With such reduction, the worker would receive just his real benefit, limited to the “surplus” value of the deal. I propose a novel way to estimate this proper offset: a sliding scale percentage reduction keyed to probability findings on job comparability or lost volume capacity. Labor elasticity studies provide another innovative way to estimate the offset as such studies calibrate the impact of wage changes on hourly work choices. Either approach would enhance the law’s coherence, fairness, and efficiency.
Friday, September 25, 2015
Yonathan Arbel has a post over on the New Private Law blog about the publication of the 2d edition of Charles Fried's classic Contract as Promise.
The post also includes a video of a panel discussion on the publication, which is embedded below.
Thursday, September 17, 2015
Omri Ben-Shahar (left) and Lior Strahilevitz (right) are hosting a conference October 16 & 17 at the University of Chicago Law School. The conference is sponsored by the Coase-Sandor Institute for Law and Economics.. The flyer is here.
Confirmed participants include:
Alessandro Acquisti, Carnegie Mellon University
Kristen Anderson, Federal Trade Commission
Ian Ayres, Yale University
Oren Bar-Gill, Harvard University
Omri Ben-Shahar, University of Chicago
Jaspreet Bhatia, Carnegie Mellon University
Richard Brooks, Columbia University
Aaron Burstein, Federal Trade Commission
Adam Chilton, University of Chicago
Ariel Feldman, University of Chicago
Sebastien Gay, University of Chicago
Matthew Kugler, U.S. Court of Appeals, 7th Circuit
Florencia Marotta-Wrugler, New York University
Kirsten Martin George, Washington University
Randy Picker, University of Chicago
Joel Reidenberg, Fordham University
Paul Schwartz, University of California, Berkeley
Lior Strahilevitz, University of Chicago
Friday, September 4, 2015
I just noticed that Martha Ertman (pictured) will be a guest blogger at The Faculty Lounge. As the introductory post notes,
Her new book is Love’s Promises: How Formal & Informal Contracts Shape All Kinds of Families. More broadly, she rights about the role of contracts in intimate relationships. Here full cv is here.
We look forward to seeking lots of great posts on contracts law in the Lounge.
Wednesday, September 2, 2015
Last year, Hastings Law hosted a conference in honor of Charles L. Knapp. The proceedings of that conference are now in print. Abstracts can be found here on the Hastings Law Journal homepage.
Contract Law Present and Future: A Symposium to Honor Professor Charles L. Knapp on Fifty Years of Teaching Law
Harry G. Prince
Volume 66, Issue 4, 871-878
Carol L. Chomsky
Volume 66, Issue 4, 879-898
Under the Sun: Casebooks and the Future of Contracts Teaching
Thomas W. Joo
Volume 66, Issue 4, 899-914
William J. Woodward, Jr.
Volume 66, Issue 4, 915-936
The Duty of Good Faith: A Perspective on Contemporary Contract Law
Jay M. Feinman
Volume 66, Issue 4, 937-950
Sketches of a Redemptive Theory of Contract Law
Emily M.S. Houh
Volume 66, Issue 4, 951-970
Contract as Evil
Volume 66, Issue 4, 971-1010
Curing the Infirmities of the Unconscionability Doctrine
Hazel Glenn Beh
Volume 66, Issue 4, 1011-1046
Volume 66, Issue 4, 1047-1082
Is There a “Duty to Read”?
Charles L. Knapp
Volume 66, Issue 4, 1083-1112
Monday, August 10, 2015
We shared with our readers Professor Robin Kar's views on the case a while back.
You can find Professor Kar's latest here.
Tuesday, August 4, 2015
A new Los Angeles Times investigation has revealed that nine out of ten students drop out of unaccredited law schools in California. Of the few students that graduate, only one in five ultimately become a lawyer. In other words, a mere 2% of the people that initially enroll in an unaccredited law school end up being attorneys. Shameful at best. One example of one person who did not make it as an attorney is former Los Angeles mayor Antonio Villaraigosa who went to “People’s College of Law” and took the bar four times, but never passed.
Unaccredited law schools are said to flourish in California. The state is one of only three in the nation that allow students from unaccredited law schools to take the bar test (the others are Alaska and Tennessee). Unaccredited schools in California are held to very few academic standards by regulatory bodies and, by their very nature, none by accrediting agencies.
Most of the unaccredited law schools are owned by small corporations or even private individuals. One, for example, is owned by a“Larry H. Layton, who opened his school in a … strip mall above a now-shuttered Mexican restaurant. He thought the Larry H. Layton School of Law, which charges about $15,000 a year, would grow quickly. But according to the state bar records, he has had six students since 2010.”
Experts again say that action must be taken. For example, Robert Fellmeth, the Price Professor of Public Interest Law at the University of San Diego School of Law, has stated that unaccredited schools “aren't even diploma mills, they are failure factories. They're selling false hope to people who are willing to put everything out there for a chance to be a lawyer."
As before, the problem goes beyond unaccredited law schools. Several ABA accredited law schools also demonstrate both poor employment and bar passage statistics, although the problem seems to be the most severe when it comes to unaccredited schools.
This story is not new to your or many others. However, it serves as a reminder of the continued importance of both insiders and outsiders taking a renewed look at regulations for (and broader expectations of) law schools in California and beyond. As always, purchasers of anything including educational “services” (which, as the above other and many other studies show, can all too easily turn out to be disservices) should be on the lookout for what they buy. A great deal of naivety by new students seems to be contributing to the problem. However, that does not justify the tactics and perhaps even the existence of some of these educational providers. Having said that, I also – again – cannot help ask myself what in the world some of these students are thinking in believing that they can beat such harsh odds. Hope springs eternal, it seems, when it comes to wanting to become a California attorney.
Thursday, July 23, 2015
You cannot say that we are boring you this week. Our blogs have included considerations on advertising on porn sites and having one’s illicit affairs forgotten contractually. Add to that the news that this week, Roman Catholic nuns, the archdiocese of Los Angeles, the formerly Jesuit student turned California Governor Brown and Pope Francis all had something to say about contracting about major and, admittedly, some minor issues.
To start with the important: Pope Francis famously issued his Encyclical Letter Laudato Si’ “On Care for our Common Home.” In it, he critiques “cap and trade agreements,” which by some are considered to be a mere euphemism for contractual permits to pollute and not the required ultimate solution to CO2 emissions. In the Pope’s opinion, “The strategy of buying and selling carbon credits can lead to a new form of speculation which would not help reduce the emission of polluting gases worldwide. This system seems to provide a quick and easy solution under the guise of a certain commitment to the environment, but in no way does it allow for the radical change which present circumstances require. Rather, it may simply become a ploy which permits maintaining the excessive consumption of some countries and sectors.” Well said.
Governor Brown, however, disagrees: Brown shrugged off Francis' comments. "There's a lot of different ways," he told reporters, "that cap and trade can be part of a very imaginative and aggressive program." Brown, however, does agree with the Pope that we are “dealing with the biggest threat of our time. If you discount nuclear annihilation, this is the next one. If we don’t annihilate ourselves with nuclear bombs then it's climate change. It’s a big deal and he’s on it.”
In less significant contractual news, Roar, Firework, and I Kissed a Girl and I Liked It singer Katy Perry is interested in buying a convent owned by two Sisters of the Most Holy and Immaculate Heart of the Blessed Virgin. Why? Take a look at these pictures. The only problem is who actually has the right to sell the convent to begin with: the Sisters or the archdiocese. When two of the sisters found out the identity of the potential buyer (Perry), they became uninterested in selling to her because of her “public image.” They now prefer selling to a local restaurateur whereas the archdiocese prefers to complete the sale to Perry, although she bid less ($14.5 million) on the property than the restaurateur ($15.5 million). Perry may be about to learn that image is indeed everything in California, even when it comes to the Divine. Perry is no stranger to religion herself as she was, ironically, raised in a Christian home by two pastor parents.
Thursday, July 16, 2015
Contracts Prof Kermit Mawakana (pictured) has sued the University of District Columbia (UDC) for breach of contract and employment discrimination in connection with his termination from UDC's David A. Clarke School of Law. Last week, the District Court for the District of Columbia issued an opinion in the case. On UDC's motion to dismiss the contract claim, the court found that UDC had breached no express contract but may have breached an implied contract, and it denied the motion.
According to the court, Professor Mawakana was hired in 2006 as an Assistant Professor and promoted to Associate Professor three years later. However when he came up for tenure, his application was denied because he had not met UDC's criteria for scholarship. Professor Mawakana alleged defects in his review process that amounted to a breach of contract. The court found that the review policies did not amount to a contract and thus found no breach of an express contract, but it did find that the complaint alleged sufficient facts "if just barely" for the claim for breach of an implied contract to proceed. The court similarly found that plaintiff had alleged sufficient facts to allow his claim for breach of the implied covenant of good faith and fair dealing to proceed.
The court did not rule on Professor Mawakana's non-contractual claims.
Monday, July 6, 2015
From the Southern University Law Center's Christopher Odinet (pictured) and newly published in the Banking Law Journal:
Payday Lenders, Vehicle Title Loans, and Small-Value Financing: The CFPB's Proposal to Regulate the Fringe Economy
You can find the article on SSRN here, where you can also find this abstract:
The market for payday lenders, businesses that provide vehicle title loans, and other small-value financing players is rife with controversy. Some see them as predatory lenders that weave a web of never-ending debt designed to capture the weakest and most economically vulnerable of society. However, advocates of these financial institutions argue that for many Americans who are otherwise shut out of the conventional lending market, these players provide the only viable source of credit in times of economic hardship. Whatever the view, these businesses, their borrowers, and the credit markets that they together comprise are often referred to in legal and economic research and literature as the "fringe economy." And interestingly, aside from a patchwork of state law rules, this area of the financial services sector is fairly unregulated.
However, on Thursday, March 26, 2015 the U.S. Consumer Financial Protection Bureau released a report outlining the agency's long heralded plans to impose nation-wide regulations on the fringe economy. The first part of this article gives an overview of the fringe economy, the types of services and products it provides, and gives a snapshot of existing, state-based regulations. The second part goes into the nuts and bolts of the proposed rules.
Monday, June 22, 2015
Here is the abstract:
This essay is a reflection on the gap between the real-life practice of contract law and some of the academic theory that tries to explain it. I define “lexical opportunism” as an adversary’s clever lawyering, using contractual text of a complex business arrangement, ironically as devoid of thoughtful drafting or close negotiation as the boilerplate in a consumer contract, but which, when turned into a legal theory, creates a potential for staggering liability beyond all common sense. A multi-billion lawsuit, recently settled, serves as an example, and triggers my discussion of (a) what it means to engage in theoretical assessment in contract law, (b) how the justification of contract law by way of inhibiting economic opportunism is based on the simplest examples, rather than the kind of contract discourse found in any real-world contract worth spending millions to litigate, and (c) how normative theory based on upholding the moral sanctity of promise keeping evaporates when the parties disagree about the meaning of their promises. I argue that both economic and moral theories about contract law fail to account for issues in the use of language and depend on the naïve adoption of the correspondence theory of truth. The nature of language permits opportunism, and the only check on it is the desire, from whatever motivation, not to be opportunistic. I conclude with what I hope are some constructive thoughts about the appropriate use of theory in lawyering, and thereby mitigate my skepticism whether any single theory or discipline is capable of meaningful explanation or prediction about lexical opportunism.