Monday, March 16, 2015
The BBC reports that a German biologist, Stefan Lanka, offered 100,000 Euros to anyone who could prove that measles is a virus. A German doctor, David Barden, gathered evidence from medical studies an claimed his reward. A court found in Dr. Barden's favor. Lanka, who is committed to the view that measles is a psychosomatic response to traumatic separations, has vowed to appeal. It's not clear what Lanka was thinking. He may believe that no proof exists; or he may have believed that no court would be willing to conclude, as a matter of law, that the proof was adequate, and then he could shout to the rooftops that he has not been refuted.
If you would like to learn more about why Mr. Lanka does not believe in viruses, you might find this 20-year-old article on HIV of interest.
Saturday, March 14, 2015
Secret backroom deals conducted in hotels and private apartments. Dedicated phone lines. Market-sharing agreements and price fixing activities. Million-dollar deals. Thinking oil, diamonds, shares or foreign exchange? Think again! Eleven of the top … yoghurt makers in France, including American-owned Yoplait, were recently fined approx. $200 million for the above activities, which affected about 90% of the French yoghurt market and thus “seriously disturbed” it.
Yoplait, the majority of which is owned by U.S.-based General Mills, Inc., actually revealed the cartel under a French law that allows companies to self-report their price fixing activities in exchanged for reduced punishment. So far, the company has received no fines.
Apparently, the French competition authorities are cracking down on deals such as the above. The French government has also recently started cleaning out, so to speak, the ranks among shampoo, toothpaste and various cleaning product manufacturers.
Price fixing does, of course, disturb the free market forces. When shopping in this country, it is remarkable how close prices for various everyday items are. However, that does not mean that prices have been set in any illegal way. Retailers such as gas stations, which are well-known at least in the Los Angeles area to have almost the same prices all the time, could just stick the head out the window to see how the competitors price their products. But if mere yoghurt is worth the above risk, one wonders what else may be going on behind the scenes in the global corporate world. Perhaps it’s better not to know.
Wednesday, March 11, 2015
The Southeastern Association of Law Schools (SEALS) is pleased to once again offer its Prospective Law Professors Workshop as part of its annual meeting. This two-day workshop is for those seeking law teaching jobs in Fall 2015. The Prospective Law Professors Workshop will run on Tuesday, July 28, and Wednesday, July 29, at the Boca Raton Resort & Club.
The workshop will include practice interviews, practice jobtalks, guidance on drafting CVs and FAR forms, and several panel discussions geared toward prospective law professors. There is no supplemental fee to participate. Participants in the workshop need only pay the standard SEALS registration fee.
The number of participants will be limited. For more information on the program, including how to apply, please visit our website at http://sealslawschools.org/seals-prospective-law-professors-workshop/
We all know the feeling of having to pay twice as much - or more - for food and drink in airports compared to most other places. Two vendors at the Los Angeles International Airport (“LAX”) are now taking this practice to the next level: they are suing each other for alleged contracts violations and price gouging.
Boutique retailer Kitson Stores runs two stores at LAX. It apparently charges around $2.55 for a liter of water (roughly a quart) at those stores. Competitor Hudson Group charges $5 a bottle (size unknown, but presumably roughly the same and expensive at any rate). Kitson is alleging that Hudson is gouging passengers with its “hugely inflated” water prices and is trying to force Kitson out of business at the airport. Hudson is countering that Kitson is hardly concerned about consumer price protections, but that this lawsuit is really a diversion from Kitson’s alleged contractual violations.
Whichever turns out to be the case, airport prices are well known to be very high for everything from chewing gum to dinner. Perhaps higher-than-usual rent prices are to blame, at least in part. Of course, airport retailers also enjoy a captive market (almost literally). Consumers are, however, still allowed to bring an empty bottle to the airport and fill it with free water from, for example, the increasing number of “bottle filling stations” that are thankfully also appearing in more and more airports. This does seem to be a case of fake altruism, but is nonetheless a lawsuit that may resolve an important issue.
Tuesday, March 10, 2015
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Friday, March 6, 2015
The always excellent Bob Sullivan recently wrote a post on his blog about the nastiness that resulted from Curt Schilling's proud daddy post. (The nastiness is seriously nasty). As Sullivan points out, and which I've argued here and here, online companies like Twitter have a business responsibility to make sure the services they offer are safe. Online, of course, everything turns into a debate about free speech, even when the so-called speech is obviously obscenity (and please, don't argue with me about this one - if you saw the tweets, you would agree that a "reasonable person" would think they were obscene) and even though the billion dollar companies are not state actors. The problem is that Section 230 of the Communications Decency Act has been construed very broadly by courts to protect websites like Twitter from liability for content posted by others. That gives these companies little incentive to invest resources into policing their sites. But as Sullivan notes, if they don't start to clean up their sites, people might start leaving in droves.
So what should businesses do? One thing they could do is start taking their contracts seriously. We are all familiar with clickwrap and browsewrap agreements that nobody reads. They often contain codes of conduct or, in the case of Twitter, "content boundaries." Companies can start making these agreements more readable and salient. They can start by actually enforcing them. For example, Twitter can enforce their content boundaries by kicking users off the site or charging them a fine for violating the rules (maybe after a warning) which may help defray the costs of policing the site....They can also design their contracts so they are more readable and post a "warning" that abusive tweets will be subject to a fine or suspension and force users to "click" to acknowledge they have read the warning. I suspect that many who tweet impulsively later regret it so a warning at point of posting/sending might make some think twice.
I realize that hiring people to evaluate each reported post might take time so that the best solution would be software that flags certain posts and sends a warning to the user to reconsider the post. It could also contain a reminder that the user will be liable for damages if the tweet is defamatory. All this scary stuff is in the contract - but because it is contained behind a hyperlink, few users will actually read it. An email delivered to the users, reminding them of their contractual obligations and the scary things (public condemnation, suspension or expulsion from the site, liability for lawsuits, maybe even criminal prosecution if the tweet is threatening enough) that might happen to them if they violate these obligations, might be more effective. Some users may voluntarily take down the post in response to the automated email which may cut down on the number of tweets subject to human review.
Of course, contracts can only do so much, but they might help.
Thursday, March 5, 2015
The official portrait of former President Bill Clinton has been completed. See it here. It was painted in the “conservative realistic style” … maybe a little too realistic and not sufficiently conservative?
According to the artist, Nelson Shanks, the bluish shadow of a person that you see on the mantelpiece next to Clinton is that of Monica Lewinski in her infamous blue dress. You got that right: the artist himself has admitted that he purposefully scarred the picture just as the Lewinsky scandal scarred Clinton’s second term. The artist has apparently caught quite some flak for having done this. Regardless of artistic freedom and setting aside all thoughts about the scandal per se, what is, after all, at issue here is a contract for artwork depicting a former President of the United States of America. A bit more respect may have been in order. This was not any regular client having a portrait done; it’s in effect the entire nation that commissioned this work. Perhaps a subjective satisfaction clause would have been in order here. Even if it had been any “regular” client, deliberately depicting one’s paying client in a highly controversial light seems to me to be in questionable taste.
On the other hand, the argument has been made that if the artist had been held to certain contractual stipulations, the portrait of the 42nd President would have been “stiff and untrue.”
That’s not the case? Take a look and judge for yourself. While much has been made of Clinton holding an actual, gash, newspaper – so retro – the strange positioning of his fingers on his hip looks more bizarre to me. An indication of his alleged two-sided look at what constituted “the truth” in certain contexts? To me, it looks more like the V sign for, perhaps, Clinton’s ultimate victory over at least some of the political and other challenges he faced.
Tuesday, March 3, 2015
Last year, Starbucks announced a new corporate-supported educational program that one year later is still viable: Starbucks will reimburse its full-time workers for taking online classes with Arizona State University. Partial tuition (58%) will be offered to freshmen and sophomores and full tuition for juniors and seniors as long as credits are earned within the past 18 months so as to keep students on track.
As you may have noticed if you are a Starbucks customer, very many of its employees appear to be college-aged. In fact, 70% of Starbucks’ workforce are either in school already or have had to drop out because of various personal difficulties.
This program seems to be a benefit to employees who cannot afford to go to school full time (or even part time), but who desire and education. What is remarkable is also how few “strings” are attached to the program. For example, the employees do not even have to stay with Starbucks after the completion of their degree. Said CEO Howard Schultz (still the CEO): "We want to attract and retain great people. We want to provide [our employees] with new tools and new resources to have advancements in the company.”
What is in it for ASU? This has been said to be a coup for the university, which already has one of the nation’s largest and most highly regarded online programs. Of course, Starbucks has a large amount of employees with, presumably, many coming and going, so ASU now has access to a large database of potential students, something many universities – private and public - are craving in these competitive times.
For the students and the university, rates may be discounted. This is normal in this type of situation. What would truly make a difference would be if the rates could become so reduced for students that they would, in effect, have no out-of-pocket costs altogether.
What, to me, is interesting about this situation is that a public university has found out workable model for online classes and cooperation with a private business venture when many private universities have not.
The somewhat strange catch here is that ASU cannot enter into any other arrangement with a for-profit business for four years, but that Starbucks is free to advertise its partnerships with a few other schools.
See the contract at issue here.
See Starbucks’ description of the program here.
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Thursday, February 26, 2015
Two contracts issues have reappeared recently and both greatly affect the earning abilities of California citrus farmers, among others: the ability to ship products and the ability to grow them in the first place.
The shipping situation was - and still is - affected greatly by the recent employment contract dispute between shipping companies and dockworkers. Recently, the parties reached a tentative deal on a new five-year contract after months of discussions that ended with a roughly 3% wage increase each year, a hike in pensions and continued union jurisdiction over the maintenance of truck trailers. While the dispute was going on, many oranges destined for Chinese New Year celebrations overseas rotted away as activities in and around the ports of Los Angeles and Long Beach were impacted. The docks still aren’t expected to return to normal until well into the season for Valencia oranges and past the season for navel oranges. Importers of cars, among other things, have also recently expressed their problems keeping up with the demand for imported cars (which is huge in California).
For citrus and other farmers, the shipping problem is exacerbated by the ongoing very severe drought that California is experiencing for the fourth year in a row and that so far has resulted in 41% of the state finding itself in the most severe category of water shortages.
While farmers up and down California’s agricultural San Joaquin Valley vehemently protest
regulations limiting their access to freshwater, others are taking matters into their own hands: they simply steal water. From the apparently more and more typical situation of subcontractors using fire hydrants without permits to people driving away with water from fire hydrants in trucks, siphoning it off canals, or tinkering with the pipes of their neighbors or local water providers, farmers are not the only ones getting desperate for water.
Since we are talking California, there has to be a “weird” twist to the story: in the Silicon Valley, a water district has removed irrigation pipes that rangers say allowed … a nudist colony to make unauthorized water diversions from a waterfall.
There is even a phrase for thieves of this nature: “water bandits.” This situation is only about to get worse as the drought is predicted at above 80% certainty to become the worst in 1,000 years. Some cities such as Los Angeles are offering tax initiatives for removing residential lawns. Nonetheless, Californians will still have to grapple with the contractual and other rights to access to water – saline or otherwise - for some time to come.
Things may be a big sleepy here on the blog for the next two weeks. I leave today for a two-week Spring Break course with my law students.
I hope that I will be able to post a few times during the trip, at least keeping up with our regular weekly features, but things might get a big hectic once I leave the country.
Tuesday, February 24, 2015
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Monday, February 23, 2015
2012 American Idol winner Phillip Phillips has lodged a “bombshell petition” with the California Labor Commissioner seeking to void contracts that Phillips now finds manipulative, oppressive, and “fatally conflicted.”
Before winning season 11 of “American Idol,” Phillips signed a series of contracts with show producer “19 Entertainment” governing such issues as his management, recording and merchandising activities. These contracts are allegedly very favorable to 19 Entertainment, for example allowing the company as much as a 40% share of any moneys made from endorsements, withholding information from Phillips about aspects of his contractual performance such as the name of his album before it was announced publicly, and requiring Phillips to (once) perform a live show once without compensation. 19 Entertainment has also lined up such gigs for Phillips as performing at a World Series Game, appearing on “Ellen,” the “Today Show,” and “The View.”
It is apparently not unusual for those on successful TV reality shows to renegotiate deals at some point once their career gets underway. Phillips claims that he too frequently requested this, but that 19 Entertainment turned his requests down. Can he really expect them to agree to post-hoc contract modifications?
Very arguably not. Under the notion of a pre-existing legal duty, a party simply cannot expect that the other party to a contract should have to or, much less, should be willing to change the contractually expected exchange of performances. This seems to be especially so in relation to TV reality shows where the entire risk/benefit analysis to the producer is that the “stars” may or may not hit it big. For hopeful stars, the same considerations apply: their contracts may lead them to fame and fortune… or not. That’s the whole idea behind these types of contracts. Of course, if industry practice is to change the contracts along the way and if both parties are willing to do so, they are free to do so. Otherwise, the standards for contractual modifications are probably the same for entertainment stars as for “regular” contractual parties.
Another issue in this case is whether an “agent” is a company or a physical person. Under the California Talent Agencies Act (“TAA”), only licensed “talent agents” can procure employment for clients. Phillips is attempting to apply the TAA to entertainment companies like 19 Entertainment. If Phillips is successful, the ramifications may be significant for the entertainment industry in which companies very often negotiate deals with performers without taking the TAA into account. In Citizens United v. Federal Election Commission, the United States Supreme Court famously gave personal rights to corporations, albeit only in the election context. Time will tell how California looks at the issue of corporate personhood and responsibilities in the entertainment context.
Adjudications under the controversial TAA are notoriously slow and could leave contractual parites in “limbo” for a very long time. Time and patience is not what Hollywood parties are known to have a lot of, so stay tuned for the outcome of this dispute.
This Article offers a novel interpretation of contract law, which I call “Contract as Empowerment”. On this view, contract law is neither a mere mechanism to promote efficiency nor a mere reflection of any familiar moral norm—such as norms of promise keeping, property, or corrective justice. Contract law is instead a mechanism of empowerment: it empowers people to use legally enforceable promises as tools to influence other people’s actions and thereby meet a broad range of human needs and interests. It also empowers people in a special way, which reflects a moral ideal of equal respect for persons. This fact explains why contract law can produce genuine legal obligations and is not just a system of coercion.
The purpose of this Article is to introduce contract as empowerment and argue that it reflects the best general interpretation of contract. Contract as empowerment is an “interpretive” theory in the sense that it is simultaneously descriptive, explaining what contract law is, and normative, explaining what contract law should be.
To support contract as empowerment’s interpretive credentials, I identify a core set of doctrines and puzzles that are particularly well suited to testing competing interpretations of contract. I argue that contract as empowerment is uniquely capable of harmonizing this entire constellation of doctrines while explaining the legally obligating force of contracts. Along the way, contract as empowerment offers (1) a more penetrating account of contractual remedies than exists in the current literature; (2) a more compelling account of the consideration requirement and its standard exceptions; and (3) a concrete framework to determine the appropriate role of certain doctrines—like unconscionability—that appear to limit freedom of contract. Contract as empowerment also explains the main differences between claims for breach of contract, promissory estoppel, restitution and quasi-contract. It explains key doctrines and answers key puzzles at each basic stage of contract analysis: formation, interpretation and construction, performance and breach, the standard defenses and the standard remedies.
The whole of this explanation is, moreover, greater than the sum of its parts. Because of its harmonizing power, contract as empowerment demonstrates how a broad range of seemingly incompatible surface values in modern contract law can work together—each serving its own distinctive but partial role—to serve a more fundamental principle distinctive to contract. These surface values include the values of fidelity, autonomy, liberty, efficiency, fairness, trust, reliance and assurance. Although many people think that contract law must involve trade offs between these values, contract as empowerment suggests that tensions between them are not always real. So long as the complex system of rules that governs contracts is fashioned in the right way, these doctrines can work together to serve a deeper and normatively satisfying principle distinctive to contract. This framework can therefore be used to guide legal reform and identify places where market regulation is warranted by the principles of contract in many different contexts of exchange—from those involving consumer goods to labor, finance, credit, landlord-tenant, home mortgages and many others.
There is a further implication of contract as empowerment. Contract as empowerment absorbs many economic insights but gives them a fundamentally different interpretation. It suggests that contracting and modern market activities are not simply spheres where self-interest runs wild. They are instead spheres of moral interaction, which can engage people’s natural sense of obligation and generate genuine legal obligations—at least so long as contract law is simultaneously personally empowering and reflective of a moral ideal of equal respect for persons. An important moral fabric has, in other words, been running through contract law and many forms of modern economic activity for some time now. This fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of the phenomena. Understanding this moral fabric can help people lead better and more integrated lives, as both moral and economic agents. We must, however, learn to strengthen this fabric and protect it from growing tear.
Thursday, February 19, 2015
I never met Professor Chirelstein, but his book (at left) was a revelation to me. I read it while taking first year contracts. My first year contracts course was rigorous and stimulating, but Chirelstein's book gave me my first inkling that contracts law and lore could be entertaining and fun. I brought that edition with me to work, where it sat in my office until it went down with the World Trade Center. When I became a contracts prof, I started getting the new editions, and I was always happy to see how the book was updated. It still sits on my shelf as a trusted reference book that I recommend to students, hoping to kindle in them the same enthusiasm for the subject that it kindled in me.
A notice is available on the Columbia Law School website and in the New York Times.
Wednesday, February 18, 2015
Sarah Abramowicz, Contractualizing Custody, 83 Fordham L. Rev. 67 (2014)
Rachel Arnow-Richman, Mainstreaming Employment Contract Law: The Common Law Case for Reasonable Notice of Termination, 66 Fla. L. Rev. 1513 (2014)
Daniel P. O'Gorman, Contract Law and the Hand Formula, 75 La. L. Rev. 127 (2014)
Kaiponanea T. Matsumura, Binding Future Selves, 75 La. L. Rev. 71 (2014)
Benjamin Means, The Contractual Foundation of Family-Business Law, 75 Ohio St. L.J. 675 (2014)
Glenn D. West, That Pesky Little Thing Called Fraud: An Examination of Buyers' Insistence upon (and Sellers' Too Ready Acceptance of) Undefined "Fraud Carve-Outs" in Acquisition Agreements. 69 Bus. Law. 1049 (2014)
For those of you who are still trying to decide whether or not to attend, it looks like a great conference, featuring two of our bloggers, Nancy Kim and Myanna Dellinger.
10th International Conference on Contracts
William S. Boyd School of Law, UNLV
February 27 & 28, 2015
8:15-8:45 Registration and Continental Breakfast (Moot Court Lobby)
8:45-9:00 Welcome and Announcements (Moot Court Auditorium)
9:00-10:45 Whose Contract Law Is It Anyway? (Moot Court Auditorium)
Chair: Dov Waisman
Danielle Hart, How Does Bargaining Power Affect Contract Litigation Outcomes?
Larry DiMatteo, How Private is Private Contract Law?
H.G. Prince, How Does the California Supreme Court’s Contracts Jurisprudence Relate to Its Ideological Composition?
Hila Keren, Whose Freedom of Contract?
Consent (or Lack Thereof) (BSL 102)
Shawn Bayern, Offer and Acceptance in Modern Contract Law: A Needless Concept
Chunlin Leonhard, Consent in Contract: A Dangerous Fiction
Kenneth Ching, What We Consent to When We Consent to Form Contracts: Market Price
Eric Zaks, Bonding and Contract Drafting: Paying a Premium for Foregoing Genuine Consent
11:00-12:30 Contract Terms I (Moot Court Auditorium)
Royce Barondes, Frictions and the Persistence of Inferior Contract Terms
Mark Gergen, Privity's Shadow: Exculpatory Terms in Extended Forms of Private Ordering
Joshua Silverstein, Using the West Digest System as a Data Collection and Coding Device for Empirical Legal Scholarship: Demonstrating the Method Via a Study of Contract Interpretation
Comparative and International I (BSL 102)
Mateja Djurovic, Europeanisation of Contract Law Through the Judicial Activity of the European Court of Justice
Glennys Spence, A Pound of Flesh: A Comparative Analysis of the Group of Companies Doctrine and the Alter Ego Theory in International Commercial Arbitration
Jane Winn, Contracting Out of the Nation State: The Role of Global Private Regulators
12:30-1:45 Lunch (Barrick Museum Garden)
1:45-3:30 Roundtable: Perspectives on the Restatement (Third) of the Law of Consumer Contracts (Moot Court Auditorium)
Chair: Omri Ben-Shahar (U. of Chicago)
Robin Kar (U. of Illinois)
Nancy Kim (California Western)
Gregory Klass (Georgetown)
David McGowan (U. of San Diego)
3:30-3:45 Break (Moot Court Lobby)
3:45-5:30 Consumer Protection (Moot Court Auditorium)
Susanne Augenhofer, Self-Regulation and the Interface of Consumer Protection and Corporate Governance
David Friedman, Addressing Fictitious Pricing: Discounting of Retail Goods and Deceptive Prior-Reference Pricing
Timothy Hall, Contractual Limitation of Personal Fitness and Health Data Tracking: An Empirical Analysis
Jim Hawkins, Are Bigger Companies Better for Low-Income Borrowers?: Evidence from Payday and Title Loan Advertisements
Performance & Enforcement (BSL 102)
Pamela Edwards, “The Best Interests of the League”: Contractual Limits of Sports Leagues Commissioners' Powers to Discipline Team Owners
Orit Gan, The Justice Element of Promissory Estoppel
Victor Goldberg, Buffalo’s Field of Dreams: Kenford Co. v. Erie County
Jennifer Martin, Avoiding Unpleasant Surprises in Resales Under 2-706
6:00-9:00 Reception & Dinner (Barrick Museum Exhibition Hall)
8:30-9:00 Breakfast (Moot Court Lobby)
9:00-10:30 Storytelling and Contracts (Moot Court Auditorium)
Chair: Keith Rowley
Lenora Ledwon, Bonds, Promises, and Contracts in the Narco-Western: Freedom of (and From) Contract in Breaking Bad
Deborah Post, Story Telling and Normative Analysis
Debora Threedy, Cooper on Contracts: Popular Culture and the Paradox of Relational Contracts
Comparative and International II (BSL 102)
Myanna Dellinger, Rethinking Force Majeure in U.S. and International Contracts Law
Larry DiMatteo, A Case Study in Comparative Contract Law: Late Acceptance, Right to Cure, and Anticipatory Repudiation in Common, Civil, and Chinese Contract Laws
Irina Sakharova, Finance Lease Contracts: International and Comparative Perspectives
10:45-12:15 Digital Giants Gone Wild! (Moot Court Auditorium)
Michael Rustad & Thomas Koenig, Wolves of the World Wide Web: Reforming Social Media Provider’s Contracting Practices
Nancy Kim, Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent
Joasia Luzak, Wanted: A Bigger Stick – On Unfair Terms in Consumer Contracts with Online Service Providers
Sacred Cows (BSL 102)
Mark Burge, Thinking Outside the Four Corners of Contract Doctrine in the Legal Education Crisis
Victor Goldberg, Rethinking Jacob and Youngs v. Kent
Jeff Lipshaw, Does Contract Theory Matter?
12:15-1:45 Lunch (RAJ 4th Floor Faculty Lounge)
Keynote: Stewart Macaulay
Comments: Chuck Knapp
1:45-3:30 Roundtable: Perspectives on More Than You Wanted to Know: The Failure of Mandated Disclosure (Moot Court Auditorium)
Chair: Omri Ben-Shahar (U. of Chicago)
Susanne Augenhofer (Humboldt U.-Berlin)
Jeffrey Stempel (UNLV)
Stacey Tovino (UNLV)
3:30-3:45 Break (Moot Court Lobby)
3:45-5:15 Contract and Families (Moot Court Auditorium)
Erez Aloni, Mistaking Neoclassicism for Pluralism in Family Law
Christie Matthews, Contract Law, Race, and Intrafamilial Transactions
Contract Terms II (BSL 102)
Sid DeLong, Construction Contracts (N.B.: It’s not what you think)
Peter Gerhart, Good Faith Contract Performance and the Reasonable Person
Allen Kamp, UCC Interpretation versus Plain Meaning Interpretation: A Question of Purpose
5:15-5:30 Conference Wrap-Up (Moot Court Auditorium)
According to this story in the LA Times, James and Catherine Emmi are seeking the return of $3 million that they have already donated as part of a $12 million charitable pledge to Chapman University. They are also asking the University to renounce any claim to the remaining $9 million. If the account is accurate, the Emmis seem to be claiming that:
- they never made the $12 million pledge;
- the University took advantage of James Emmi's "confusion in his old age" and preyed on him for the donation (are they alleging mental incapacity or undue influence?);
- the University harassed the couple by inviting them to events, sending them cards and "referring to them as family";
- the University breached its agreement with the Emmis by
- not publicly recognizing them in a 2013 ceremony, and
- not making sufficient progress on "Emmi Hall."
It is not clear how the Emmis account for their having already made a $3 million payment towards the $12 million pledge that they claim they never made.
[H/T Miriam Cherry]
Tuesday, February 17, 2015
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I've been away from the submission process for a few years. In the meantime, Scholastica has entered the picture, which from an author's view is simply an expensive headache, and more journals are encouraging authors to submit directly through either e-mail or their own online submissions process.
Having been a historian before becoming a law professor, I am still grateful for the advantages of student-edited law journals and authors' ability to submit to scores of journals simultaneously. I still believe that this process is better for authors and not significantly less arbitrary that double-blind peer review. Lots of scholarship gets published that does not end up getting used or cited under both systems, but the peer review process banishes lots of possibly meritorious scholarship to the dung-heap of history based on the opinions of two people whose reasoning might be insufficient to justify such a heavy penalty.
That said, I do find a new feature of online submission processes disquieting. At least one journal that encourages authors to submit through their online submission form features a Submission Agreement that includes a link to a separate page containing the journal's "attribution and usage policies." The latter are incorporated by reference, and thus one must agree to them in advance before submitting the article. There is nothing particularly onerous in the Submission Agreement or the usage policies, but the problem is that authors submit to dozens or scores of journals. The journals cannot really expect authors (or their administrative assistants who submit on their behalves) to read through boilerplate terms. So there we have it -- forms that purport to bind law professors to terms to which they have not meaningfully consented. This is especially ironic if, like me, you have been writing about the dangers of form contracts and the degraded version of "consent" in this context.
The practice is especially irksome as the submission process does not otherwise involve a contract. When I submit my article to multiple journals for publication, I am submitting an invitation for offers. I have no obligation to the journals, and they have no obligation to me. They don't even have to read my piece before rejecting it, nor do they have to respond in any way to me. And if they do offer to accept my piece (which, note, is typically described as an "offer to publish" not as an "acceptance"), I can reject that offer and go merrily on my way.
The introduction of form contracts at the submission state -- a point at which the parties have no legal relationship -- is simply unnecessary.