Saturday, December 13, 2008
Please plan to attend the Contracts Section's program and business meeting at the AALS Annual Meeting in sunny San Diego. The topic for this year's panel is "Immutable Rules and Contract Law."
Chosen from among those who the planning committee invited to submit a proposal and those who submitted a proposal in response to a general call for papers I posted to this web site and sent to the AALS Contracts listserv in September, this year's presenters are Kenneth Ayotte (Northwestern), Robert P. Bartlett, III (Georgia), and Tom Joo (UC-Davis), who will be speaking about the following topics:
Kenneth Ayotte & Patrick Bolton (Columbia-Business), "Optimal Property Rights in Financial Contracting"
In this paper we propose a theory of optimal property rights in a financial contracting setting. Following recent contributions in the property law literature, we emphasize the distinction between contractual rights, that are only enforceable against the parties themselves, and property rights, that are also enforceable against third parties outside the contract. Our analysis starts with the following question: which contractual agreements should the law allow parties to enforce as property rights? Our proposed answer to this question is shaped by the overall objective of minimizing due diligence (reading) costs and investment distortions that follow from the inability of third-party lenders to costlessly observe pre-existing rights in a borrower’s property. Borrowers cannot reduce these costs without the law’s help, due to an inability to commit to protecting third-parties from redistribution. We find that the law should take a more restrictive approach to enforcing rights against third-parties when these rights are i) more costly for third-parties to discover, ii) more likely to redistribute value from third-parties, and iii) less likely to increase efficiency. We find that these qualitative principles are often reflected in observed legal rules, including the enforceability of negative covenants; fraudulent conveyance; corporate veil-piercing; and limits on assignability. In this paper we propose a theory of optimal property rights in a financial contracting setting.
Robert P. Bartlett, III & Victoria Plaut (Georgia-Psychology), "Blind Consent? A Social Psychological Investigation of Non-Readership of Click-Through Agreements"
Across two studies we aimed to measure empirically the extent of non-readership of clickthrough agreements (CTAs), identify the dominant social representations that exist about CTAs, and experimentally manipulate these representations in order to decrease automatic non-reading behavior. In our initial questionnaire study (Study 1), as predicted, the vast majority of participants reported not reading CTAs and the most prevalent social representations of CTAs contributing to non-readership included: they are too long and time-consuming, they are all the same, they give one no choice but to agree, they are not important, the companies are reputable, and they are irrelevant. Manipulating these representations on a simulated music web site (Study 2) revealed an increase in readership. The greatest effect on comprehension of CTA terms and rates of rejection came from manipulating the length representation. These results demonstrate support for the influence of social representations on CTA readership, provide evidence against the common "limited cognition" perspective on non-readership, and suggest that presenting CTAs in a shorter, more readable format can increase CTA readership and comprehension as well as shopping of CTA terms.
It is routinely stated that the defining aspect of contract law is that parties control their obligations. But in fact the most fundamental, and immutable, rule of contract law points in the opposite direction: every "contractual" arrangement of the parties is potentially subject to broad judicial review. The law empowers courts to supply critical aspects of incomplete contracts. This power is commonly described as the passive facilitation of the parties' intent. But "contract law" includes the potential that a court, in some extreme cases, will abrogate party intent by rewriting or refusing to enforce agreements to which parties did agree. Moreover, even run-of-the-mill "contract law" cases often turn on questions as to which which the contracting parties' intent cannot be discerned. In such cases, the fundamental "objective theory" of contract holds that subjective agreement of the parties is not necessary, as long as a court believes parties' actions should be "objectively" interpreted to manifest consent.
Analyzing the legitimacy of this broad court power lies in recognizing the implicit policy judgments courts apply. This is made difficult by the fact that these judgments tend to be cloaked in rhetoric that invokes notions of consent. For example, the "objective theory" consistently uses the term "consent" even while conceding that subjective agreement is unnecessary. Recognizing courts' implicit policy judgments then demands an explanation of whether courts are qualified to make them. Conservative market economics offers a theoretical explanation for the importance of the parties in contract -- their purportedly unique ability to value entitlements and trade them in utility-enhancing ways. A realistic modern theory of contract must recognize that parties do not control contracts and thus requires a theoretical explanation for judicial role.
My argument also suggests that the discourse about mandatory and default rules in contract may incorrectly framed. It assumes there are two kinds of rules: those that the parties can agree to change, and those that they may not. Starting from the normative assumption that parties should presumably be able to change rules, and the descriptive assumption that they can change most rules, it asks for descriptive and normative explanations of exceptions. But as a descriptive matter, true "default rules" may not exist in contract law. That is, because courts always have the power to review any agreement, even an agreement to opt out of court review, there is no way for parties to make a self-enforcing commitment to opt out.
The program begins Friday, January 9, 2009, at 8:30 am in Marina Salon G, South Tower/Level 3, San Diego Marriott Hotel & Marina, and will be followed by a brief business meeting. We hope to see you there.
[Keith A. Rowley]
Saturday, September 6, 2008
The AALS Section on Contracts solicits papers and proposals for our 2009 Annual Meeting program on “Immutable Rules and Contract Law,” scheduled for Friday, January 9, from 8:30-10:00 a.m.
In the last three decades, legal scholars have paid considerable attention to conceptualizing and prudentially designing contractual rules. Most of this attention has been placed on default rules (e.g., Should we prefer "majoritarian" rules that mimic the likely intent of the parties or "penalty" rules that purportedly force information revelation?). Part of this concentration on immutable rules has been due to a sense that the rationales for immutable rules were well understood and widely accepted. In recent years, important contributions within legal scholarship, humanities, and the social sciences have alerted us to a number of ways that contracting may fail (due to transaction costs, cognitive failure, externalities, path dependence, etc), which in turn reasserts the importance of understanding the role of immutable rules. This panel is intended both to survey and to evaluate the set of immutable rules within a system of contract and commercial law, concentrating on three questions: (1) What are the key immutable rules within contract law? (2) What are the principal policy rationales behind immutable rules in contract law? (3) How well equipped is contract law (compared to other areas of law) to contend with these policy concerns.
If you are interested in participating, please e-mail your paper or proposal to email@example.com not later than Monday, September 29, 2008.
[Keith A. Rowley]
Tuesday, September 11, 2007
Hard as it may be for law students to believe, there was a time when the point of law schools was actually to train lawyers. For generations, however, our beloved Mother Ship -- the Association of American Law Schools -- has been working to focus law schools on more important things: generating more law review articles; getting faculty in other departments to recognize that we really are, too, scholars, not Hessian trainers; and cutting teaching loads for tenure-track faculty.
Is the AALS rethinking its mission? Well, maybe. President Nancy Rogers (Ohio State), in an op-ed piece in the National Law Journal, notes that a lot of people have been calling for changes in the way law schools go about actually preparing students for practice. That, she says, will be one of the things talked about at this year's annual AALS Bean Feed and Wiener Roast in New York City, when 3,000 of the Best and Brightest will gather to talk legal education and eat at good restaurants on expense accounts.
We may disagree about how to go about fixing the problem -- fewer law review articles and more time teaching and mentoring don't seem to be on anyone's agenda -- but we can expect the attendees to agree with Rogers that Congress needs to offer some debt relief to students so we can keep charging them really high fees while teaching only nine to twelve semester hours a year.
Disclaimer: We want to remind everyone that the comments on this blog are not the opinions of the Association of American Law Schools, or the Section on Contract Law -- which are obviously fictitious entities which couldn't have any opinions in the first place -- or of the editors of this blog, or of the writers, or possibly of anyone at all.
Wednesday, December 28, 2005
The AALS Contracts Section's program is, as we've mentioned before, scheduled for Saturday, January 7, 2006. But there's a great warm-up planned for Friday, when our sister Section on Commercial and Related Consumer Law presents Commercial Calamities. An A-list of commercial law scholars -- most of them also active Contracts Section members -- will present the Dark Side of Commercial Law.
Three papers are particularly interesting to Contracts folks. Victor Goldberg (Columbia) will tee off on Wood v. Lucy, Lady Duff Gordon. and its unfortunate effect on UCC 2-306. Bob Hillman (Cornell) will take a 9-iron and work over UCC 2-209 (the one on modification, rescission, and waiver), an "example of both substantive chaos and drafting disaster." Bob Scott (Virginia) will take on that casebook staple, Hoffman v. Red Owl. Also on tap are Amy Boss (Temple) and Jim White (Michigan). Larry Garvin (Ohio State) will moderate. Here's the official description.
Despite, or perhaps because of, the brilliance of its framers and the interests of its users, commercial law has at least its share of errors, omissions, archaisms, peculiarities, and downright stupidities. Our session is devoted to airing our favorite annoyances about commercial law, ranging from problems with specific provisions to problems with structure and form. Our aim here is not to be particularly constructive but rather to be interestingly critical, though in the course of criticism doubtless some hints toward improvement will emerge.
Today’s panelists are drawn from a larger group whose accumulated grievances will be collected in a symposium to be published in the Ohio State Law Journal. Each participant will present a pet peeve, with plenty of time for Section members to add their own (or, at whatever peril, to defend a cherished doctrine or structure against the attacks of others).
The session is scheduled for 1:30 to 3:15. The Section business meeting will take place at the conclusion.
Tuesday, December 27, 2005
There are some things of interest to Contracts profs (besides our own annual session) at the AALS Annual Meeting, slated for January 3-7, 2006, at the Marriott Wardman Park in D.C. On Wednesday, January 4, there's a program on transational law. Breakout panels include two sessions on Contracts -- Aribtation, Comparative Concepts (Remedies). Speakers will include Janet Levit (Tulsa), Hannah L. Buxbaum (Indiana-Bloomington). William S. Dodge (Cal-Hastings), Ruth E. Gordon (Villanova), Andrea K. Bjorklund (Cal-Davis), David V. Snyder (Tulane), and Kellye Y. Testy (Seattle).
Tuesday, November 29, 2005
The ABA Cyberspace Law Committee's Winter Working Meeting will take place at the offices of Potter Anderson & Corroon LLP in Wilmington, Delaware, on Friday and Saturday, January 27-28, 2006. The group historically has been involved in some interesting and important project, and they're always interested in getting more academics involved. According to the organizers:
The Winter Working Meeting attracts Internet and technology lawyers from around North America. If you have not attended the Committee's "WWM" in the past, it is not to be missed -- this is where we roll up our sleeves and get some real work done with our colleagues without a heavy schedule of Section and Association gatherings. We especially encourage everyone who has joined the Cyberspace Law Committee this year to attend the Winter Working Meeting.
A block of rooms at the Hotel DuPont will be available at a discounted rate. Hotel reservations must be made by January 5, 2006 to take advantage of the ABA group rate. The Committee will also hold its traditional Friday evening dinner, which is always great fun and a good opportunity to connect with Committee members and guests. The deadline to register for the meeting and dinner is January 13, 2006.
To find out about membership, and to sign up for the meeting, you can visit the Committee Web Site.
Tuesday, August 2, 2005
The ABA Cyberspace Law Committee’s Working Group on Electronic Contracting Practices is inviting those interested in, well, Electronic Contracting Practices, to join them at the Annual Meeting in Chicago this week. The ABA Annual Meeting starts Thursday, August 4, and the Committee meeting will be Sunday, August 7, at 3:30. Details are here. The rest of the interesting stuff going on at the meeting is available from the ABA Cyberspace Law Committee Blog.
Friday, July 29, 2005
Friday, July 15, 2005
Today (Friday) is the deadline for advance registration for the American Bar Association Annual Meeting in Chicago, August 4-9. The lead speakers (Justice Stevens, Justice Ginsburg, Attorney General Gonzalez, and Senator Clinton) aren’t likely to talk much about contracts issues, but the Business Law Section has lots of good program. Registration is here.
If you're going to be in the Windy City, remember that Thursday night, Aug. 4, is the Birthday Bash at Buddy Guy’s Legends, one of the world’s great blues clubs. In celebration, from Lonnie Johnson's Chicago Blues:
Chicago's all right to visit,
But please don't hang around.
You'll find the cool chicks and high slicks
And, boy, all those mellow fellows.
But when your bankroll is gone,
You're just another chump
That's dropped into town.
My first night in Chicago,
My friends really treated me fine.
Then overnight they all changed,
Like Daylight Savings Time.
And everything I wanted
I had to lay my money down on the line.
Wednesday, July 6, 2005
The ABA's Cyberspace Law Committee is planning a big meeting at the ABA annual summer bean feed, scheduled for this for August 4-9 in year in Chicago. The Committee -- a bunch of the nicest and most welcoming folks you're likely to work with -- is always drumming for more members, particularly law school professors and scholars interested in aspects of e-commerce, whether doctrinal, theoretical, or technical. And they're always happy to let you crash their committee meetings to see if you're interested.
Click on the "read more" link for Chair Vince Polley's invitation and outline of the festivities. Click here to register. Tomorrow, July 7, is the last day to submit reservations to ensure you get to attend the semi-legendary Cyberspace Dinner!
Sunday, May 29, 2005
Thursday, March 24, 2005
The ABA's Cyberspace Law Committee will be involved in a lot of things at the upcoming meeting in Nashville, and they'd love to have more law professors get involved. They're involved in a wide range of activities, including issues of electronic contracting. One panel of particular interest, which includes Chris Kunz and Dan Kleinberger of William Mitchell, will deal with indemnification clauses, and there's an excellent intro section for those who want a grounding in the basics of the e-commerce phenomenon. For Committee Chair Vince Polley's invitation, click below.
Thursday, March 10, 2005
Friday, February 11, 2005
The Supreme Court Economic Review, an "interdisciplinary journal that seeks to provide a forum for scholarship in law and economics, public choice and constitutional political economy" is looking for papers. If you’re the sort of person who actually knows what "constitutional political economy" is, this may be something you’re interested in. Click the link for the call for papers.
Thursday, February 10, 2005
Today is the last day to get the Early Bird Registration Discount for the ABA Section of Business Law’s Spring Meeting in Nashville. The meeting is scheduled for March 31-April 3, and you get $50 off if you register by today. The meeting brochure is here and you can register online here.
Friday, January 14, 2005
How to deal with consumer issues in a modern, digital economy will be the subject of an interesting one-day conference coming up at the University of Washington School of Law (left). The school’s Shidler Center for Law, Commerce & Technology is hosting Is Consumer Protection an Anachronism in the Information Economy? on Friday, March 4.
The conference apparently intends to take the question seriously—it’s bringing together a wide mix of both market-oriented and state-oriented scholars. There should be some particularly entertaining exchanges on a panel devoted to contract law issues, which is moderated by an attorney for Consumers Union but will include Richard Epstein (Chicago), Clay Gillette (NYU), Jean Braucher (Arizona), Bob Hillman (Cornell) and Anita Ramasastry (Washington).
Organizers say that they’re negotiating with publishers for a possible book incorporating the papers. More information and registration is available at the LCT website.
Tuesday, January 11, 2005
The final panelists have been set for the AALS Midyear Contracts Conference in Montréal on Exploring the Boundaries of Contract Law. Papers were solicited for two panels, and the selection committee has announced the winning efforts.
The first session, Implications of Limited Rationality for Contract and Commercial Law, will be moderated by organizing chair Bob Hillman (Cornell). Panelists will be Marcus Cole (Stanford), Manuel Utset (Utah), and Danielle Kie Hart (Southwestern).
Omri Ben-Shahar (Michigan) will moderate the second, Revisiting A Classic: Charles Knapp’s "Enforcing the Contract to Bargain." The panelists will be Chuck Knapp (Cal-Hastings), Kristin Madison (Penn), Alan Schwartz (Yale), and Amy Schmitz (Colorado).
Details on the conference, which will be held June 14-17, are on the AALS program page.
Saturday, January 8, 2005
The annual program hits its high point this afternoon, with the Contracts Section program at 1:30 p.m. Chair Juliet Kostritsky leads a panel on "Incomplete Contracts: The Implications for Contract Law." Panelists are Richard Craswell (Stanford), Avery Katz (Columbia), and Bob Scott and George Triantis (Virginia). The business meeting follows.
Friday, January 7, 2005
The Mother Ship never stops innovating. Taking account of the problem of America's unhealthy diet, they've come up with a new approach to the beverage and snack stations between panels. Outside the meeting rooms they have large tables covered with piles of cups, but on which coffee and snack foods are never placed. There are tea bags, but no hot water. It's certainly good for us, but there were a lot of yawns at the mid-morning sessions. Yesterday was the day to skip out for a frolic, because traditional San Francisco drizzle is coming down today. Nothing can dampen the spirits of the crowds milling around the Hilton lobby, though. The ring of caffeine-free conversation of little knots of lively people echoes off the big inverted-wedding-cake chandeliers. The lobby is nice, but could use some remodeling. For example, the center is dominated by a large globe that is badly out of date, since it is labeled with places like "India orientalis," "Turcheftan," and the place that ought to be Siberia, although misshaped, is labeled "Carthaio." Australia, in particular, seems to be missing. Last night's Gala was a huge success, with hundreds of people standing packed together and looking for familiar faces. Most popular pickup line: "So, what's your research agenda?" More panels are on tap for this afternoon, and will certainly look interesting to those interested in those sorts of things. There are a good many social events tonight. SALT is having its Robert Cover Study Group. The topic will be, "The Attack of Civil Liberties." The brochure doesn't mention who or what they're attacking, but the best guess is the Bush Administration. It's at 7 p.m. Also at 7 p.m., the people who the real work in law schools, the Legal Writing folks, are having their Blackwell Award Reception and giving out their Golden Pen Award. The two items that look the best, though, are Vermont Law School's "Taste of Vermont" Reception from 7 to 9 p.m., and Samford/Cumberland's "12th Annual Dean's Dessert." See you there.
The Mother Ship never stops innovating. Taking account of the problem of America's unhealthy diet, they've come up with a new approach to the beverage and snack stations between panels. Outside the meeting rooms they have large tables covered with piles of cups, but on which coffee and snack foods are never placed. There are tea bags, but no hot water. It's certainly good for us, but there were a lot of yawns at the mid-morning sessions.
Yesterday was the day to skip out for a frolic, because traditional San Francisco drizzle is coming down today. Nothing can dampen the spirits of the crowds milling around the Hilton lobby, though. The ring of caffeine-free conversation of little knots of lively people echoes off the big inverted-wedding-cake chandeliers. The lobby is nice, but could use some remodeling. For example, the center is dominated by a large globe that is badly out of date, since it is labeled with places like "India orientalis," "Turcheftan," and the place that ought to be Siberia, although misshaped, is labeled "Carthaio." Australia, in particular, seems to be missing.
Last night's Gala was a huge success, with hundreds of people standing packed together and looking for familiar faces. Most popular pickup line: "So, what's your research agenda?"
More panels are on tap for this afternoon, and will certainly look interesting to those interested in those sorts of things. There are a good many social events tonight. SALT is having its Robert Cover Study Group. The topic will be, "The Attack of Civil Liberties." The brochure doesn't mention who or what they're attacking, but the best guess is the Bush Administration. It's at 7 p.m.
Also at 7 p.m., the people who the real work in law schools, the Legal Writing folks, are having their Blackwell Award Reception and giving out their Golden Pen Award.
The two items that look the best, though, are Vermont Law School's "Taste of Vermont" Reception from 7 to 9 p.m., and Samford/Cumberland's "12th Annual Dean's Dessert." See you there.
Thursday, January 6, 2005
Just when you thought they couldn't do it, the AALS has managed to hold its Annual Conference at a hotel that is just as big a rabbit warren as the Godawful Marriot Wardman Park. Here at the San Francisco Hilton, conference registration is up six escalators and around the corner from the main lobby. The message center is down the hall, around the corner, up two different escalators, down a hallway, hang a left, go down a short flight of stairs, go left again . . . .
There's a ton of stuff going on today, but this is being typed in the lobby of the Hilton, whose wireless network costs $.25 a minute to use, and so you can go read it yourself at the AALS website.