ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Tuesday, January 6, 2015

Payback for Payday Lenders

The U.S. Office of the Comptroller of the Currency and Federal Deposit Insurance Corp. plans to create hurdles for lenders of payday and direct deposit advance loans.  Both types of loans are short-term loans intended to help consumers through a rough patch.  Payday loans are available at various storefront locations whereas direct deposit advance loans are for banks’ existing customers.

The problem with these types of loans is that they often trap people into cycles of mounting debt with annual interest rates of more than 500% and the need by some to take out an average of 10 loans a year amounting to a total of more than $3,000.

This is a crackdown on organizations that may be seen to pry on the already weak.  But is it also a setback for financially underprivileged consumers?  After all, if you need money now, you need money now.  I think the new proposed regulations are a step in the right direction as consumer protection, but at the same time, more is needed.  That “more” is a decent living wage so that so many people do not have to live not only paycheck to paycheck, but in fact pre-paycheck to pre-paycheck. 

In his 2015 State of the Union address, President Obama is expected to highlight the nation’s economic growth and falling unemployment rate.  However, as I have written here before, most people in the U.S. still do not see or feel the economic recovery.  Perception is reality.  Let’s hope that the economy soon improves so much that most people feel it.

Hat tip to Professor Miriam Cherry for alerting me to this story.

January 6, 2015 in Commentary, Current Affairs, Legislation | Permalink | Comments (3) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 485 Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation 
S.I. Strong 
University of Missouri School of Law 
2 219 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
3 179 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
4 148 Regulating for Rationality 
Alan Schwartz 
Yale Law School 
5 144 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
6 135 The Justice of Private Law 
Hanoch Dagan and Avihay Dorfman 
Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law 
7 114 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
8 107 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
9 95 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
10 92 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 144 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
2 114 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
3 107 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
4 92 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 
5 74 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
6 66 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
7 63 Unfair Prices in the Common European Sales Law 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
8 52 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
9 50 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
10 48 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 

 

January 6, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, January 5, 2015

Weekly News Roundup

Thanks to the Hattiesburg Patriot, we have a pdf of a decision from the Mississippi Chancery Court striking down a public contract as unconstitutional.  In January 2014, the City of Hattiesburg (the City) entered into a $137 million contract with Groundworx, LLC (Groundworx) for a wastewater treatment system.  In August, the City terminated the contract due to Groundworx's alleged failure to secure financing for the project.  Thomas Blanton intervened, alleging that the contract violates Article VII, Section 183 of Mississippi's constitution, which prohibits the government from lending credit in aid of a private business, and the Due Process clauses of both the Mississippi constitution and the U.S. Constitution's 14th Amendment.  The Chancellor held that the contract was tantamont to the City

Alex_Rodriguez
Flickr photo by Keith Allison 

lending its credit to Groundworx for a public project over which it had no effective control.  It thus violated the Section 183 and both due process clauses and was void ab initio.

As if Alex Rodriguez (pictured at right) did not have enough troubles already, the New York Daily News is wishing him a "Happy Sue Year" and reporting that A-Rod's ex-wife's brother is suing A-Rod for breach of a partnership agreement relating to the sale of Miami real estate.  

Our Uber-lawsuit coverage continues this week with this story from the St. Louis Post Dispatch.  The story reports on a planned class action alleging that Uber breached a contract with consumers by advertising that it shares 20% of fares with drivers as tips when in fact Uber keeps far more than that for itself.  The latest development is just a discovery battle that Uber lost.  It will have to provide relevant e-mails from Uber's CEO, Travis Kalanick.

January 5, 2015 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

Airlines and Calling the Kettle Black

A few days ago, I blogged on the recent lawsuit by United Airlines and Orbitz against the developer of Skiplagged.  One of the causes of action alleged is breach of contract for encouraging the purchase of a ticket to certain destinations only to get off at an interim point to save money.

The airlines themselves may be breaching their contracts with flyers.  For example, when we buy tickets to be flown from point A to point B, that arguably implies being done so without undue delays and, in particular, possibly having to spend the night at your own cost and without your personal belongings in random cities around the world if connections are missed because of flight delays (unless, of course, you choose to spend the night sitting upright in the airport).  Needless to say, if you seek to change your ticket, airlines will either charge extreme high fees and the “difference in price” for doing so or outright prohibit this practice.  I’ve had to change tickets many times in the past, and it has typically only taken an agent about five minutes to do so.  Unconscionabiliy, anyone? 

Here’s what happened to me one cold winter night a few years back: On my way to Denmark from St. Croix, the airline was late taking off and got even more delayed when it “had to” make an unplanned “quick landing” for gas, which was cheaper at the interim airport than at the end destination, and… ice cubes for people’s drinks!  I wish I was kidding, but I’m not.  I missed the once-daily connection out of Atlanta to Copenhagen and had to spend the night in Atlanta in December.  As I was living in tropical St. Croix at the time, I had some warm clothes with me on board the airplane to stay warm there, but had packed my winter gear in my suitcase.  The airline paid for my hotel, but would, in spite of my desperate pleas, not let me have my suitcase back for the night.  Result: I had to travel to and from the hotel, etc., in indoor clothes on what turned out to be an unseasonably cold winter day in Atlanta (yes, I should have brought a warmer jacket on board the plane, but planes to and from the Caribbean are often very small and I always try not to bring too much carry-on items).

Before 1978, U.S. airlines were required under “Rule 240” to offer seats on a competitor’s next flight if that would be the fastest way of getting the traveler to his or her destination.  Airlines created after deregulation were never required to follow that rule, but older airlines such as Delta, United and Continental apparently still adhere to the rule.  Funny that they never seem to mention that when they delay you significantly.  Next time you fly, it may pay to scrutinize your contract of carriage more carefully to ascertain your rights in case of a delay. 

It may be time for Congress to reintroduce a Rule 240-type requirement on airlines, especially as these have become extremely good at flying full – even at overcapacity - and thus often do not have extra space for passengers that have missed their flights.  Good customer service often seems to have given way to airlines’ “me first” attitude in the name of hearing the highest profits possible by nickel-and-diming most aspects of airline travel on, at least, economy class.

Feeling empathetic towards the airlines?  Don’t.  Full or nearly full flights in conjunction with declining gas prices have enabled U.S.-based airlines to earn the highest profit margins in decades.  One trade group estimates that airline made 6% profit margins in 2014, higher than the highest rates in the 1990s.  Of course, the task of businesses is to make as much money as they can.  But at least they should live up to their own contracts of carriage and other contracts principles just as they claim passengers and website developers should.

Here’s a hat tip to Professor Miriam Cherry and other contracts professors on a well-known industry list serve for news about this story.  All opinion and thoughts above are my own.

January 2, 2015 in Commentary, Contract Profs, Contracts Profs Weekly Spotlight, Current Affairs, Famous Cases, In the News, Recent Cases, Travel | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2014

Flying the Less Friendly Skies

Last month, United Airlines and Orbitz filed a by-now famous lawsuit against the 22-year-old computer specialist who created the website Skiplagged.com.  This website helps consumers find the cheapest round-trip airfare possible by buying tickets to a destination to which the traveler does not actually intend to travel, but instead getting off at a layover point which is the truly intended destination and discarding the last portion of the ticket.  Roundtrip tickets to certain popular destinations are often much cheaper than to other destinations sought by fewer passengers even though the more popular destinations are further away from one’s point of origin. 

To not cause the airline and other passengers undue trouble and delays, this practice, of course, requires not checking in luggage which, it seems, fewer and fewer travelers do anyway (next time you fly, notice the rush to get on board first with suitcases often much bigger than officially allowed and airline personnel deliberately ignoring this for reasons of “competition”).

The cause of action for this lawsuit?  “Unfair competition,” and breach of contract because of “strictly prohibited travel,” and tortuous interference with contract.

Unfair competition?  I admit that I have not yet read the rather long complaint, but I look forward to doing so very soon.  At first blush, however, how can “unfair” can it really be to assist consumers in finding airfare that they want at the best prices available?  United Airlines recognizes that there is a discrepancy between its prices to very popular destinations and others on the way, but claims [cite] that if many people “take advantage” of that price differential, it could “hurt the airlines.”  Come again?  Does it really matter that a customer – with no checked-in luggage – pays whatever price the airline itself has set but simply decides not to use up the entire item purchased?  Doesn’t that simply let the airline save gas and potentially give the empty seat to potential stand-by customers?  Does it matter to a newspaper that I choose to not read the sports pages? Must I eat the heal of my bread even though I don't like it?  What if I really don't like my bread and would rather eat a donut instead, as I thought might be the case?

The issue of breach of contract is arguably a closer one.  If airlines “strictly prohibit” the practice of only using part of a ticket, it may be promissory fraud to buy a ticket if one intends at the time of purchase to only use part of it.  This could also relate to the purchase of a round-trip ticket only to use it one-way as that too is often cheaper than a one-way ticket, as Justice Scalia found out himself recently.

The Skiplagged.com creator argues that he is only taking advantage of “inefficiencies” in airline travel that travelers have known about for a long time.  To me, it seems that airline contracting should work both ways as other types of contracting: airlines take advantage of their bargaining positions as well as their sophisticated knowledge of current and future air travel supply and demand structures.  They should do so!  I applaud them for that.  Jet travel has certainly made my personal and professional life much better than without relatively cheap air travel.  But every first year contracts law student also knows (or should know!) that contracting is not and should not be a one-way street.  Consumers too are getting more and more sophisticated when it comes to airline travel and other types of online contracting.  Websites enable us to inform ourselves about what we wish to spend our money on.  As long as consumers do not break the laws or violate established contracting principles, that does not strike me as “unfair competition,” that is simply informed consumerism in a modern capitalist society from which airlines and others have already benefited greatly.

Airlines, wake up: how about working with your customers instead of trying to fight them and modern purchasing trends?  How’s this for a thought: start offering one-way tickets for about half of a round-trip ticket just like other transportation vendors (trains, buses, subways) do.  Don’t you think that could set you apart from your competition and thus even earn you more customers?  If you can fly for a certain amount of money to a certain city, let people pay that only and then simply sell a second ticket for the remaining leg to the more popular end destination where the same plane is headed anyway.  Let people off the bus if they want to!  Let some one else on instead.  It doesn’t seem that hard to figure out how to work with current purchasing trends and your customers instead of resisting the inevitable.

For another grotesquely inappropriate lawsuit by United Airlines against its own customer, see Jeremy’s blog here.

I will blog more on this issue over the days to come.  For now, I’m glad I don’t have to head to an airport.  Happy New Year!

December 31, 2014 in Commentary, Contract Profs, Current Affairs, E-commerce, Famous Cases, Travel, True Contracts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2014

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 481 Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation 
S.I. Strong 
University of Missouri School of Law 
2 210 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
3 176 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
4 139 Regulating for Rationality 
Alan Schwartz 
Yale Law School 
5 133 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
6 126 The Justice of Private Law 
Hanoch Dagan and Avihay Dorfman 
Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law 
7 108 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
8 104 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
9 91 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
10 89 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 133 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
2 108 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
3 104 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
4 89 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law
5 74 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
6 60 Unfair Prices in the Common European Sales Law 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
7 50 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
8 49 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
9 35 Sham and Trusts 
Matthew Conaglen 
University of Sydney - Faculty of Law 
10 33 Contractual Freedom and Family Business 
Benjamin Means 
University of South Carolina School of Law 

 

December 30, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, December 29, 2014

No-tipping policies and increased minimum salaries

CNN reports that more and more restaurants are implementing no-tipping policies as, perhaps, a way of differentiating themselves from competitors.  For example, one restaurant builds both tax and gratuity into menu prices, allegedly resulting in its servers averaging about $16.50 an hour.  I have argued here before that it seems fair to me that the burden of compensating one’s employees should fall on the employer and not on, as here, restaurant patrons feverishly having to do math calculations at the end of a meal.

The law does not yet support employment contracts ensuring fair compensation of restaurant and hotel employees.  For example, federal law requires employers to pay tipped workers only $2.13 an hour as long as the workers earn at least the federal minimum wage of $7.25 an hour.  Talk about burden shifting…

But change seems to be on the way with private initiatives such as the restaurant no-tipping policy.  In Los Angeles, the City Council has approved an ordinance that raises the minimum wage for workers in hotels of more than 300 rooms to $15.37 an hour.  Of course, this will mainly affect large hotel chains, which predictably resisted the ordinance citing to issues such as the need to stay competitive price-wise and threatened circumventing the effect of the new law by laying off or not hiring workers to save money.  Funny since many of these hotels have been making vast amounts of money for a long time on, arguably, overpriced hotel rooms attracting a clientele that does not seem overly concerned about paying extra for things that are free in most lower-priced hotels (think wifi) and thus probably could somehow internalize the cost of fairly compensating its blue-collar workers. 

Much has been said about the “1%” problem and a fair living wage.  No reason to repeat that here.  However, it is thought-provoking that whereas the U.S. recession officially ended in June 2009 – five years ago - 57% of the U.S. population still believed that the nation was in a recession in March 2014.

Contracting and the economy is, of course, to a large extent a matter of seeking the best bargain one can obtain for oneself.  But even in industrialized nations such as ours, there is something to be said for also ensuring that not only the strongest, most sophisticated and wealthiest reap the benefits of the improved economy.  So here’s to hoping that more initiatives such as the ones mentioned above are taken in 2015.  At the end of 2014, it’s still “the economy, s$%^*&.”

December 29, 2014 in Commentary, Current Affairs, Labor Contracts, Legislation | Permalink | TrackBack (0)

Weekly News Roundup

TargetOn December 18th, the District Court for the District of Minnesota ruled on defendant's motion to dismiss in In re: Target Corporation Customer Data Security Breach Litigation.  The case relates to the hacking of 110 million Target customers last December.  Plaintiffs allege violations of state consumer protection laws, negligence and breach of contracts, both express and implied, among other things.  The court dismissed most claims with prejudice.  The breach of an implied contract claim survived, as a jury will have to determine whether plaintiffs can establish the terms of an implied contract.   The court dismissed the breach  of an express contract claim without prejudice.   Plaintiffs will be given an opportunity to specify what federal laws Target allegedly breach through its allegedly inadquate measures for safeguarding its customers' data.


And if you are looking for evidence that airlines really don't care what we think of them, look no further than United's motion to dismiss in Mamakos v. United Airlines, Inc.  In the case, plaintiff alleges the following:

  • United Airlines
    Photo by Luis Argerich
    She saw an empty seat on one of three legs of her trip from New York to Alaska;
  • She moved into that seat;
  • Stewardesses informed her that she would have to pay a $109 premium for the seat;
  • She did not want to pay and so moved back to her original seat;
  • United then removed her from the aircraft and, when she resisted had her arrested; and
  • United then cancelled her ticket and her return ticket.

United accepts the truth of these allegations for the purposes of its motion but maintains that it still did not breach its contract with plaintiff because of Rule 5(B) of United's Contract of Carriage (incorporated by reference into plaintiff's ticket), which permits United to cancel a reservation if the passenger refuses to pay for the applicable Ticket.  Apparently, once plaintiff's behind made contact with a premium seat, she was bound to pay or be forcibly ejected form the aircraft.  Sheesh.  

Really United?  Worth litigating?

December 29, 2014 in In the News, Recent Cases, Travel | Permalink | Comments (0) | TrackBack (0)

Lost in the Fine Print Document to Be Screened at AALS

Lost

Join Alliance for Justice at the Association of American Law Schools’ (AALS) Annual Meeting to celebrate the release of the new short documentary,

Lost in the Fine Print

Examining the Impact of Forced Arbitration

Saturday, January 3, 2015

MARRIOT WARDMAN PARK HOTEL
2660 Woodley Road NW, Washington, DC
Room Wilson C, Mezzanine Level

8:30PM

Cocktails and refreshments provided

Please RSVP here

Watch the trailer

Buried in everyday agreements for products, services, and jobs is fine print saying when you are harmed, you can’t go before an impartial jury or judge. Instead, these forced arbitration clauses send you to a decision-maker picked by the company that wronged you. Not surprisingly, one study found that arbitrators rule for companies over consumers 94 percent of the time. And you’re stuck with their decision because there’s no appeal. It’s a rigged system that helps companies evade responsibility for violating anti-discrimination, consumer protection, and public health laws.

Narrated by former U.S. Secretary of Labor Robert Reich, AFJ’s new 20 minute documentary Lost in the Fine Print tells the story of three everyday people who found themselves trapped in the system of forced arbitration—and the impact of this system on their lives and livelihoods. The cocktail reception will feature a film screening and brief remarks.

Featured Speakers:

Nan Aron, President, Alliance for Justice
Paul Kirgis, Professor, St. John’s University School of Law and Chair, AALS Section on Alternative Dispute Resolution
Nancy Kim, Professor of Law, California Western School of Law; Chair, AALS Section on Contracts and author, Wrap Contracts 
Judith Resnik, Arthur Liman Professor of Law, Yale Law School
Michelle Schwartz, Director of Justice Programs, Alliance for Justice

Host Committee (in formation):

*All titles and university affiliations are listed for identification purposes only.

Theresa A. Amato, Distinguished Scholar in Residence, Loyola University Chicago

Frank Askin, Distinguished Professor of Law, Robert E. Knowlton Scholar, and Director of Constitutional Rights Clinic, Rutgers School of Law—Newark
Robin Bradley Kar, Professor of Law and Philosophy, University of Illinois College of Law
Raymond H. Brescia, Associate Professor of Law and Director of the Government Law Center, Albany Law School
Katherine S. Broderick, Dean and Professor of Law, University of the District of Columbia David A. Clarke School of Law
Sarah E. Burns, Professor of Clinical Law, NYU School of Law
Erwin Chemerinsky, Dean of the School of Law, University of California, Irvine

Liz Ryan Cole, Professor, Vermont Law School
James E. Coleman, Jr., John S. Bradway Professor of the Practice of Law; Director, Center for Criminal 
Justice and Professional Responsibility and Co-Director, Wrongful Convictions Clinic, Duke University School of Law
Joshua P. Davis, Associate Dean for Academic Affairs & Director, Center for Law and Ethics, University of San Francisco School of Law
Peter Edelman, Professor of Law, Georgetown University Law Center
Catherine Fisk, Chancellor’s Professor of Law, University of California, Irvine School of Law 
Celeste Hammond, Professor and Director, Center for Real Estate Law, John Marshall Law School
Ann C. Hodges, Professor of Law, University of Richmond School of Law
Michael Hunter Schwartz, Dean and Professor of Law, University of Arkansas at Little Rock William H. Bowen School of Law
Robert A. Katz, Professor of Law, Indiana University Robert H. McKinney School of Law
Amalia D. Kessler, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, Stanford Law School
Peter Linzer, Professor of Law, University of Houston Law Center
Dennis O. Lynch, Professor and Dean Emeritus, University of Miami School of Law
Margaret L. Moses, Professor of Law and Director, International Law and Practice Program, Loyola University Chicago School of Law
David B. Oppenheimer, Clinical Professor of Law & Director of Professional Skills, UC Berkeley School of Law
Nancy Polikoff, Professor of Law, American University Washington College of Law
Margaret Jane Radin, Henry King Ransom Professor of Law, University of Michigan Law School and author of Boilerplate
Maritza Reyes, Associate Professor of Law, Florida A&M University College of Law
Daniel B. Rodriguez, Dean and Harold Washington Professor, Northwestern University School of Law and President, AALS
Florence Wagman Roisman, William F. Harvey Professor of Law and Chancellor’s Professor, Indiana University Robert H. McKinney School of Law
Kathryn Sabbeth, Assistant Professor of Law, University of North Carolina School of Law
Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law 
Shirin Sinnar, Assistant Professor of Law, Stanford Law School
Jean Sternlight, Director of the Saltman Center for Conflict Resolution and Michael and Sonja Saltman Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law
Joan Vogel, Professor of Law, Vermont Law School
Adam Zimmerman, Associate Professor of Law, Loyola Law School, Los Angeles

PS: Lost in the Fine Print is a game-changer. It demystifies the concept of forced arbitration, and urges us to demand change. Nationwide, law professors are using the film as a resource to educate students about this issue. Click here to download or order your free copy of the film.

Alliance for Justice
11 Dupont Circle, NW
2nd Floor
Washington, DC 20036
202-822-6070
www.afj.org

AFJ West Coast Office
436 14th Street
Ste. 425
Oakland, CA 94612
510-444-6070
www.afj.org

December 29, 2014 in Conferences, Film | Permalink | Comments (0) | TrackBack (0)

Friday, December 26, 2014

First Circuit Uses Its Thesaurus and Denies Motion to Compel Arbitration

Roget_P_M
P. M. Roget, Author of the First Thesaurus

In Joca-Roca Real Estate, LLC v. Brennan, the First Circuit affirmed the District Court's denial of plaintiff's motion to compel arbitration after nine months of discovery, which involved 16 depositions and four telephone conferences with the District Court Judge to settle discovery disputes.  As the learned court put it, plaintiff provided no explanation for its cunctation.  The District Court denied to motion to compel arbitration, holding that plaintiff had waived its right to arbitrate.  The First Circuit affirmed.

The First Circuit began its analysis with the standard for a finding of implied waiver by conduct:

In determining whether a conduct-based waiver has occurred, we ask whether there has been an undue delay in the assertion of arbitral rights and whether, if arbitration supplanted litigation, the other party would suffer unfair prejudice.

Although the sage court noted plaintiff's asseveration that the District Court had applied the wrong standard, the perspicacious court considered a salmagundi of factors in determining that the District Court had applied the correct standard in finding prejudice.  The sagacious court, for example, noted that plaintiff gave no reason for its inital decision to eschew arbitration and that its motion to compel was not raised in a timeous manner.  In fact, the timing suggested that plaintiff had decided to try arbitration because it was facing an impending motion for summary judgment and the sapient court would not "condone the use of an arbitration clause as a parachute when judicial winds blow unfavorably."

The standard for showing prejudice in cases such as this one is not terribly exacting.  Defendant had to pay for nine months of discovery.  Time is also a valuable commodity, and the transfer into a new forum would have caused additional delay.  Delay itself does not constitute prejudice, but here, the erudite court noted, delay was protracted and the litigation-related activities were copious.  

December 26, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 23, 2014

The Hobbit and the Meaning of a Bargain

I recently saw the last Hobbit movie, The Battle of the Five Armies.  I found it highly entertaining and was delighted to find a discussion about contracts between Bard, the leader of Laketown, and the King of the Dwarves, Thorin Oakenshield, during a pivotal moment in the movie.  The two engage in a back-and-forth about the meaning of a bargain, contract defenses (coercion and duress), and the importance of keeping promises.  In short, all the issues that come up regularly on this blog.  This isn't the first time that contracts have come up in a Hobbit movie. The morality of promise-keeping is an important theme in the movie as it has been in the others. 

Speaking of the Hobbit, the Weinstein brothers have lost their fight against Warner Bros. over the profits to the last two Hobbit movies.  As discussed previously on this blog, the issue involved the meaning of "first motion picture" of each book but not "remakes."  The Hobbit book was split into three movies and the Weinsteins argued that they should get a percentage from each movie; Warner Bros. claimed that they should only get royalties from the first Hobbit movie.  Unfortunately for contracts enthusiasts, the matter was sent to arbitration against the wishes of the Weinstein Bros. who wanted it to play out in court so we may never find out the basis for the arbitrator's ruling.

 

 

December 23, 2014 in Current Affairs, Film, Film Clips, Miscellaneous | Permalink | Comments (1) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 475 Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation 
S.I. Strong 
University of Missouri School of Law 
2 207 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
3 174 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
4 131 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
5 131 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
6 131 Regulating for Rationality 
Alan Schwartz 
Yale Law School 
7 122 The Justice of Private Law 
Hanoch Dagan and Avihay Dorfman 
Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law 
8 103 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
9 103 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
10 88 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 131 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
2 131 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
3 103 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
4 103 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
5 88 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 
6 81 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 
7 70 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
8 58 Unfair Prices in the Common European Sales Law 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
9 47 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
10 44 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 

 

 

December 23, 2014 in Recent Scholarship | Permalink | TrackBack (0)

News Flash: Guy Who Never Signed Arbitration Agreement Can Not Be Forced into Arbitration

Really?  This is a thing now?  The District Court held that a company can bind a consumer to an arbitration provision and class action waiver in a rolling contract of adhesion.  Fortunately, the Ninth Circuit didn't buy it, but why is it even a close call?

9th CirIn November 2011, Erik Knutson bought a Toyota which came with a 90-day subscription to Siriux XM Radio (Sirius).  About a month into his trial subscription, Sirius sent Knutson a "welcome kit."  That welcome kit included a customer agreement with an arbitration clause and class action waiver.  According to the customer agreement, its terms became binding if Knutson did not contract Sirius to cancel his 90-day trial within three business days.  Knutson also received unsolicited phone calls from Sirius on his cell phone.  He filed a putative class action suit against Sirius for violations of the federal Telephone Consumer Protection Act.  

Sirius cited to the arbitration clause and moved to compel arbitration.  The District Court granted Sirius's motion to compel.  In Knutson v. Sirius XM Radio, Inc. The Ninth Circuit reversed.  The opinion is unanimous and careful.  The Court explains why Mr. Knutson never assented to any terms and was not bound in any way to Sirius.  Knutson never bought anything from Sirius and never knew that he was entering into a contact.  

December 23, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, December 22, 2014

Gift or Curse?

After years of conducting research on the genes of various animals, George Doe (a pseudonym), an accomplished biologist with a PhD in cellular and molecular biology, decides to have his own genes examined for fun and to discover whether he may be genetically predisposed to cancer.  He buys a test kit online from one the many companies that provide such services these days.  He is so excited about the process that he also buys a kit for his mother and father as gifts.  They all have their genes tested.  George finds out that he is not predisposed to cancer.  But that’s not it.  He also finds out that another male who has had his own genes tested and is thus registered with the same company is “50% related” to George.  This can only mean one of three things: this other male is George’s grandfather, uncle or … half brother.  After intense and testy family discussions, George’s father apparently admits that he had fathered this other male before marrying George's mother.  George’s parents are now divorced and the entire family torn apart with no one talking to each other.

A very sad affair.  Of course, nothing appears to be contractually wrong with this case: at the bottom of one’s profile with www.23andme.com, the company that provided the tests in this case, George and his family had checked a small box indicating for them to do so “if you want to see close family members in this search program.”  The company is said to have close to one million people in its database.  With modern science, close family members can easily be identified out of such data if opting into being notified. 

Here, the company does not appear to have done anything wrong legally.  Quite the  opposite: if anything, the above shows that the buyers in these situations may not be sufficiently mentally prepared for the information they may discover through DNA testing.  Arguably, they should be.  After all, the old adage “watch out what you ask for, you may get it” still rings true.

But isn’t this situation akin to the various other situations we have blogged a lot about here this past year where customers buy various items online and click – or not – on various buttons, thus signaling at least alleged acceptance of, for example, terms of service requiring arbitration instead of lawsuits in case of disputes?  As I have argued, many people probably just clicks such buttons without fully realizing what the legal or, in cases such as the above, factual results may be.  Should online vendors be required either legally to make such check boxes or other online indicia of acceptance a lot more obvious?  Or should they at least be required to do so for reasons of business ethics? 

I think so.  Most working people are exceptionally busy these days.  Frankly, not many of us take the time to scrutinize the various implications - legal or otherwise – of the purchases we make online, especially because the agreements we accept in cyberspace are presented so very differently online, yet are so deceptively similar in legal nature that we probably feel pretty comfortable with simply clicking “I accept” as the vast majority of such transactions present no or only minor problems for us? And aren’t the vendors the party with the very best knowledge of some, if not most, of the problems that arise in these contexts?  How hard would it really be for them to make sure that they use all the “bells and whistles” to truly put people on notice of what typical problems encountered may be, exactly to avoid legal problems down the road?  One would think so, although, of course, customers also carry some of the burden of educating ourselves about what we buy and what that may mean.  This is perhaps especially so when such delicate issues as the above are involved.

For George Doe, the above unfortunately turned out to be much more of a curse that kept on giving instead of a gift that kept on giving.

On behalf of your blogging team here at ContractsProfs Blog: Happy Holidays!

December 22, 2014 in Commentary, Current Affairs, E-commerce, Miscellaneous, Science, Web/Tech | Permalink | TrackBack (0)

International Conference on Contracts X: Call for Papers and Panel Proposals

Call for Participation and Proposals
10th International Conference on Contracts (KCON 10)
William S. Boyd School of Law, UNLV
Las Vegas, Nevada February 27 & 28, 2015
 
 
UNLV's William S. Boyd School of Law is pleased to again 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.
 
Invitation: We invite paper, presentation, and panel proposals exploring any aspect of contract law, theory, and policy writ large (including, but not limited to, bankruptcy/insolvency, commercial law, consumer law, dispute resolution regimes, employment law, family law, insurance law, legal systems, and restitution, in addition to more traditional contract topics) from a behavioral, comparative, critical, doctrinal, economic, empirical, equitable, historical, institutional, interdisciplinary, jurisprudential, pedagogical, philosophical, policy-driven, or political perspective.  We also solicit volunteers to serve as moderators or discussants for panels that are not "packaged deals."
 
The CFPs issued earlier this year for the AALS Section on Contracts' and Section on Commercial and Related Consumer Law's January annual meeting programs each yielded more excellent proposals than either section can accommodate in Washington.  There are also issues of weather, timing, politics, and expense that may keep some away from the AALS annual meeting.  We strongly encourage those who submitted papers or proposals to either section -- successfully or unsuccessfully -- to submit to us.  KCON 10's attendance will almost certainly exceed that of any single session at AALS and, although there will be some overlap in the audience, there will also be plenty of fresh eyes and ears in February in Las Vegas.
 
The organizers intend to organize a panel in memory of our dear friend and colleague Jean Braucher and another to discuss Omri Ben-Shahar & Carl Schneider's recent book, More Than You Wanted to Know: The Failure of Mandated Disclosure.  A couple of other panel ideas are already brewing.  Those efforts, even if all bear fruit, still leave room for many more presenters, moderators, and discussants.
 
We will try to accommodate as many presenters, moderators, and discussants as possible.  We particularly encourage junior scholars and those who work in non-U.S. legal systems to propose papers or panels and to volunteer to serve as a discussant or moderator.  We also welcome anyone who wishes to attend the conference without presenting or serving as a discussant or moderator.  The educational and networking benefits alone are worth the price of admission.
Publication: There is no publication requirement for conference participants, although experience suggests that individual papers and panels often find good homes.  The Nevada Law Journal encourages participants to submit individual and panel papers and hopes to publish several works from the conference in upcoming issues.
 
Submitting a Proposal: If you would like to propose a presentation or panel, please e-mail a title, brief description, and any supporting materials by January 23, 2015 to keith.rowley@unlv.edu or snail-mail it to me at the address below; if you would like to discuss or moderate, please let me know your interests and availability by January 23.  We will evaluate proposals as they come in and will consider on a space-available basis any we receive after January 23.
 
Preliminary Schedule: The conference program will begin both Friday andSaturday morning no later than 9:00 a.m. (grazing and conversational opportunities will start earlier) and will run until 5:00 or 5:30 p.m. each day.
 
Accommodations: Bluegreen Club 36 near campus (372 E. Tropicana Avenue, Las Vegas, NV 89169) is holding a block of rooms for Thursday 2/26 throughSaturday 2/28 nights at a rate of $92.00 per night (plus tax) for a deluxe suite or $82.00 per night (plus tax) for a standard suite.  To book a conference-rate suite at Bluegreen Club 36, please call (800) 456-0009 and tell the reservations agent that you are with the UNLV Law School contracts conference.  The deadline for hotel registration at the conference rate is February 4, 2015.  However, I encourage you to book sooner, as we blocked a limited number of rooms and will be better able to get the hotel to make the conference rate available to additional attendees if early registration is robust.
 
For those who prefer to stay on the Las Vegas Strip, we have also secured a smaller block of rooms at the Luxor (3900 Las Vegas Boulevard South, Las Vegas, NV 89119) for Thursday 2/26 through Saturday 2/28 nights for Tower Deluxe rooms (one king bed or two queen beds) at a rate of $40.00 per night (plus tax & $18/night resort fee) for Thursday 2/26, $89.00 per night (plus tax & $18/night resort fee) for Friday 2/27, and $99.00 per night (plus tax & $18/night resort fee) for Friday 2/27.  The Luxor is considerably farther from campus than Bluegreen Club 36, and traffic on and around the Las Vegas Strip can be heavy at times; however, this is an excellent rate that appears to be available for earlier check-in for attendees looking to spend an extra night or two in Las Vegas.  To book a conference-rate room at the Luxor, go to https://aws.passkey.com/event/13031521/owner/4939/home.  The deadline for the conference rate at the Luxor is January 29, 2015.  Again, I encourage you to book sooner, as we blocked a smaller number of rooms there and will be better able to get the Luxor to make the conference rate available to additional attendees if the block fills up quickly.  
 
Transportation: We'll provide transportation between Bluegreen Club 36 and the law school (as well as Friday's dinner venue, if it is off-campus).  If enough attendees book rooms at the Luxor, we will arrange shuttle service to and from there as well.  Attendees who prefer to stay elsewhere are responsible for their own transportation.
 
Sustenance: Your registration fee will cover the costs of lunches both days and a reception and dinner Friday evening, as well as coffee, fruit, and baked goods each morning and cold beverage service and morsels each afternoon.
 
Registration: We're still finalizing the conference registration fee and process.  The registration fee will be no more than $250, which will include Friday evening's conference dinner, at which we will recognize this year's career achievement award recipient.  Additional tickets to Friday's dinner will be available for guests who are not registered for the conference.
 
If you have any questions, please call or e-mail:
 
Keith A. Rowley
William S. Boyd Professor of Law
William S. Boyd School of Law
University of Nevada Las Vegas
4505 S. Maryland Parkway, Box 451003
Las Vegas, NV 89154-1003

 

December 22, 2014 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, December 18, 2014

Walmart and the Opportunity to Reject

It's accepted as generally true that consumers don't read fine print.  Some argue that even if they did read it, (a) they wouldn't understand the terms or (b) they would accept the terms because they want the product.  Well, one woman proved the exception to the conventional wisdom about consumer contracting behavior.  As reported by an ABC affiliate here and Trevor Boeckmann on the Alliance for Justice blog here,  Maria Selva says that she braved Walmart during its Door Buster sales hoping to get a deal on a TV set.  They were sold out but gave her a coupon and told her to pay for it in full at check out.  After paying for it,  they gave her a piece of paper that told her to register online.  When she went online, Selva says that she found out that she would have to give up certain rights, namely the right to file a lawsuit in court.  Selva decided that she didn't want the T.V. that much.  Unfortunately, when she tried to get her money back, she was told that she had to agree to the terms on the website first, they would ship her the T.V., and only then could she return it for a refund.

Easy, huh? (Um, no).  Apparently Walmart didn't get the memo about rolling terms and the opportunity to reject.  Or maybe they assumed the conventional wisdom - that nobody would reject because nobody would read the terms or care what they said.

Fortunately, Selva did get her money back, apparently after being contacted by the news station. 

 

December 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Eleventh Circuit Rejects Claim for a Million Dollar Unilateral Contract

This case arises out of a fact pattern with which many contracts profs may already be familiar.  It's a new twist on Leonard v. PepsiCo., alas with the same result.

James Cheney Mason (Mason) represented defendant Nelson Serrano in a capital murder trial.  Mason gave an interview on NBC news in which he pointed out that his client could not have committed murders in Bartow, Florida on the same day that he was on a business trip in Atlanta Georgia.  Surveillance cameras from the La Quinta Inn in Atlanta established Serrano's presence at the hotel both before and after the murders.  The prosecution claimed that Serrano flew to Orlando, drove to Bartow, committed the murders, drove to Tampa, and flew back to Atlanta in time to show up on the surveillance tapes once again.  Serrano was convicted and sentenced to death.

Dunce_cap_fLaw student Dustin Kolodziej (Kolodziej) watched Mason's interview with NBC after it was edited for broadcast.  In the edited version that Kolodziej saw, Mason seemed to be offering a million dollars to anyone who could get off a plane in Atlanta and make it back to the La Quinta Inn in 28 minutes.  Kolodziej took this as a challenge and as a unilateral offer that he could accept by making the trip in 28 minutes or less.  Kolodziej recorded himself making the trip and sent the recording to Mason with a demand for payment.  Mason refused.

In Kolodziej v. Mason, the Eleventh Circuit upheld the grant of summary judgment to Mason.  In the unedited version of Mason's interview, it is clear that his challenge was directed at the prosecution and not erga omnes.  Moreover, the Eleventh Circuit found, no reasonable person could construe any statement that Mason made in either the edited or the unedited version of the interview as a serious offer to pay a million dollars to anybody who could travel from the airport to the hotel in 28 minutes.  According to the Court, the context in which the words were uttered (an attempt to poke holes in the prosecution's theory) and the hyperbolic nature of the alleged offer, with its familiar overtones of schoolyard braggadocio, were insufficient to establish Mason's willingness to enter into a contract.

The Court distinguished this case from the classics, Lucy v. Zehmer and Carbolic Smoke Ball and other, equally entertaining cases.  The Court was no more inclined to entertain Kolodziej's claim than it would be to declare Mason a monkey's uncle, if he had chosen that turn of phrase when attempting to illustrate the implausibility of the prosecution's timeline.  

The Court suggested that the entire suit was a result of Kolodziej's inadequate understanding of contracts doctrine (hence the duncecap image above, which by the way, does not represent Kolodziej).  The Court paraphrased Pope and suggested that a little legal knowledge is a very dangerous thing indeed.  As the Court explained,

Kolodziej may have learned in his contracts class that acceptance by performance results in an immediate, binding contract and that notice may not be necessary, but he apparently did not consider the absolute necessity of first having a specific, definite offer and the basic requirement of mutual assent.

This seems more than a bit unfair.  Kolodziej was wrong, but he may have thought it worth the gamble.  He lost his case, but he had quite an experience.  In any case, Judge Cardozo's remark in Allegheny College about how half-truths are sometimes mistaken for the whole truth seems more apposite.  

A classic form of statement identifies consideration with detriment to the promisee sustained by virtue of the promise. Hamer v. Sidway, 124 N. Y. 538, 27 N. E. 256, . . . . So compendious a formula is little more than a half truth. There is need of many a supplementary gloss before the outline can be so filled in as to depict the classic doctrine.

Mistakes of law such as Kolodziej's are common, and learned judges (and even law professors) as well as law students can make them.

 

December 18, 2014 in Commentary, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 17, 2014

New in Print

Tuesday, December 16, 2014

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 451 Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation 
S.I. Strong 
University of Missouri School of Law 
2 197 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
3 166 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
4 131 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
5 119 Regulating for Rationality 
Alan Schwartz 
Yale Law School 
6 117 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
7 114 The Justice of Private Law 
Hanoch Dagan and Avihay Dorfman 
Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law 
8 95 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
9 93 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
Date posted to database: 12 Nov 2014 
Last Revised: 11 Dec 2014
10 85 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 131 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
2 95 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
3 93 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
4 85 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
5 82 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
6 79 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 
7 78 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 
8 68 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
9 63 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
10 57 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 

 

December 16, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Call for Applications: Project on the Foundations of Private Law

Harvard Law School
POSTDOCTORAL FELLOWSHIP, 2015-2017 

HLS

PURPOSE: The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law.   Applicants should be aspiring academic with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law unjust enrichment, restitution, equity, and remedies. The Project welcomes applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law. The Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Project pursuing publishable research that is likely to make a significant contribution to the field of private law, broadly conceived. More information on the Center can be found at: http://www.law.harvard.edu/programs/about/privatelaw/index.html.

PROGRAM: Postdoctoral Fellowships in Private Law are full-time, two-year residential appointments starting in the Fall of 2015. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Project does not impose teaching obligations on fellows, although fellows may teach a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on private law, and other events designated by the Project. Fellows are also expected to help plan and execute a small number of events during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. The Project also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor its Student Fellows.  Finally, fellows will be expected to blog periodically (about twice per month) on our collaborative blog, which is under development.

STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with office space, library access, and a standard package of benefits for employee postdoctoral fellows at the Law School.  The annual stipend will be $50,000 per year.

ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in law. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship in private law and theory. Applicants will be evaluated by the quality and probable significance of their research proposals, and by their record of academic and professional achievement. 

APPLICATION: Applications will be accepted starting December 15, 2014. Completed applications must be received at conner@law.harvard.edu by 9:00 a.m. on February 2, 2015. Please note that ALL application materials must be submitted electronically, and should include:

1. Curriculum Vitae
2. PDFs of transcripts from all post-secondary schools attended.
3. A Research Proposal of no more than 2,000 words describing the applicant’s area of research and writing plans. Research proposals should demonstrate that the applicant has an interesting and original idea about a research topic that seems sufficiently promising to develop further.
4. A writing sample that demonstrates the applicant’s writing and analytical abilities and ability to generate interesting, original ideas. This can be a draft rather than a publication.  Applicants who already have publications may also submit PDF copies of up to two additional published writings.
5. Three letters of recommendation, emailed directly from the recommender. Letter writers should be asked to comment not only on the applicant’s writing and analytical ability, but on his or her ability to generate new ideas and his or her commitment to pursue an intellectual enterprise in this area. To the extent feasible, letter writers should provide not just qualitative assessments but also ordinal rankings. For example, rather than just saying a candidate is “great,” it would be useful to have a statement about whether the candidate is (the best, in the top three, among the top 10%, etc.) among some defined set of persons (students they have taught, people they have worked with, etc.).

All application materials with the exception of letters of recommendation should be e-mailed by the applicant to conner@law.harvard.edu. Letters of Recommendation should be emailed directly from the recommender to the same address.

For questions or additional information, contact:

Bradford Conner, Coordinator, conner@law.harvard.edu.

December 16, 2014 in Help Wanted, Law Schools | Permalink | TrackBack (0)