ContractsProf Blog

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

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Wednesday, June 11, 2014

New York Times Editorial Board Weighs In on Non-Competes

Obviously persuaded by our coverage of their coverage, The New York Times today editorialized on the overuse of non-competes.  The Times makes strong economic arguments against non-competes:

  • they limit workers' opportunities to seek better jobs within their profession;
  • workers subject to non-competes change jobs less frequently and earn less money over time;
  • states like California that refuse to enforce non-competes create a better environment for entrepreneurship; and
  • low-level employees who are now being subjected to non-compete agreements have no bargaining power with which to challenge them and do not willingly consent to them.

There may be economic studies that dispute the first three bullet points.  On the blog, we have tended to emphasize the fourth bullet point.  The argument against that point is not empirical.  Rather, those who support the enforcement of one-sided boilerplate terms contend that it is generally more efficient to enforce such terms than to expect that each agreement will be negotiated on an individual basis.

As Nancy Kim has argued, that might be okay, so long as the creators of boilerplate contracts are subject to a duty to draft those agreements reasonably.  One interesting approach along similar lines is the solution proposed in Ian Ayres & Alan Schwartz, The No-Reading Problem in Consumer Contract Law, 66 Stan. L. Rev. 545 (2014).

June 11, 2014 in Commentary, In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

New in Print

Tuesday, June 10, 2014

Your Kids as a Free Facebook Marketing Tool Against Your Will

By Myanna Dellinger

What would you say if you found out that Facebook used your kids’ names and profile pictures to promote various third-party products and services to other kids?  Appalling and legally impossible as minors cannot contract?  That’s just what a group of plaintiffs (all minors) attempting to bring a class action lawsuit against Facebook argued recently, but to no avail. Here’s what happened:

Kids sign up on Facebook, “friend” their friends and add other information as well as their profile pictures.  Facebook takes that information and display it to your kids’ friends, but alongside advertisements.  The company  insists that they do “nothing more than take information its users have voluntarily shared with their Facebook friends, and republish it to those same friends, sometimes alongside a related advertisement.” How does this happen?  A program called “Social Ads” allows third parties to add their own content to the user material that is displayed when kids click on each other’s information. 

The court dismissed the complaint, finding no viable theory on which it could find the user agreements between the kids and Facebook viable.  In California, where the case was heard, Family Code § 6700 sets out the general rule for minors’ ability to contract: “… a minor may make a contract in the same manner as an adult, subject to the power of disaffirmance.”  The plaintiffs had argued that as a general rule, minors cannot contract.  That, said the court, is turning the rule on its head: minors can, as a starting point, contract, but they can affirmatively disaffirm the contracts if they wish to do so.  In this case, they had not sought to do so before bringing suit. 

Plaintiffs also argued that under § 6701, minors cannot delegate their power to, in effect, appoint Facebook as their agent who could then use their images and information.  Wrong, said the court.  Kids signing up on Facebook is “no different from the garden-variety rights a contracting party may obtain in a wide variety of contractual settings.  Facebook users have, in effect, simply granted Facebook the right to use their names in pictures in certain specified situations in exchange for whatever benefits they may realize from using the Facebook site.” 

In its never-ending quest to increase profits, Corporate America once again prevailed.  Even children are not free from being used for this purpose.  The only option they seemed to have had in this situation would have been to disaffirm the “contract;” in other words, to stop using Facebook.  To me, that does not seem like a difficult choice, but I imagine the vehement protests instantly launched against parents asking their kids to stop using the popular website.  Of course, kids are a highly attractive target audience.  Some already have quite a bit of disposable income.  They are all potential long-time customers for products/services not directed only at kids.  Corporate name recognition is important in connection with this relatively impressionable audience.  But is this acceptable?  After all, there is an obvious reason why minors can disaffirm contracts.  This option, however, would often require intense and perhaps undesirable parent supervision.  In 2014, it is probably unreasonable to ask one’s kids not to be on social media (although the actual benefits of it are also highly debatable). 

Although the legal outcome of this case is arguably correct, its impacts and the taste it leaves in one’s mouth are bad for unwary minors and their parents.

June 10, 2014 in Commentary, Current Affairs, E-commerce, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

NYT Article on Noncompete Clauses: They're Everywhere!

In August of last year, the WSJ reported that companies were easing up on executive noncompetes.  Two days later, the WSJ reported that litigation over noncompetes was on the rise.  As Jeremey Telman wrote here on the blog yesterday, the NY Times reported that noncompetes are everywhere.  So which is it?

My guess is that noncompetes are increasingly widespread in non-executive contracts - the examples in the NY Times piece involved a 19-year old summer camp counselor, a pesticide sprayer and a hair stylist.  At the same time, the popularity of the non-compete may be waning in executive contracts where they are less likely to have an in terrorem effect.  

Here's a taste of the NY Times article: 

Noncompete clauses are now appearing in far-ranging fields beyond the worlds of technology, sales and corporations with tightly held secrets, where the curbs have traditionally been used. From event planners to chefs to investment fund managers to yoga instructors, employees are increasingly required to sign agreements that prohibit them from working for a company’s rivals.

There are plenty of other examples of these restrictions popping up in new job categories: One Massachusetts man whose job largely involved spraying pesticides on lawns had to sign a two-year noncompete agreement. A textbook editor was required to sign a six-month pact.

A Boston University graduate was asked to sign a one-year noncompete pledge for an entry-level social media job at a marketing firm, while a college junior who took a summer internship at an electronics firm agreed to a yearlong ban.

“There has been a definite, significant rise in the use of noncompetes, and not only for high tech, not only for high-skilled knowledge positions,” said Orly Lobel, a professor at the University of San Diego School of Law, who wrote a recent book on noncompetes. “Talent Wants to be Free.” “They’ve become pervasive and standard in many service industries,” Ms. Lobel added.

Because of workers’ complaints and concerns that noncompete clauses may be holding back the Massachusetts economy, Gov. Deval Patrick has proposed legislation that would ban noncompetes in all but a few circumstances, and a committee in the Massachusetts House has passed a bill incorporating the governor’s proposals. To help assure that workers don’t walk off with trade secrets, the proposed legislation would adopt tough new rules in that area.

Here's a link to the rest of the article.

June 10, 2014 in In the News, Labor Contracts | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
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RankDownloadsPaper Title
1 788 Aftermarketfailure: Windows XP's End of Support 
Andrew Tutt 
Yale University - Information Society Project 
2 166 The FTC and Privacy and Security Duties for the Cloud 
Daniel J. Solove and Woodrow Hartzog 
George Washington University Law School and Samford University - Cumberland School of Law 
3 139 Public-Private Contracting and the Reciprocity Norm 
Wendy Netter Epstein 
DePaul University - College of Law 
4 126 Payment after Actavis 
Michael A. Carrier 
Rutgers University School of Law - Camden 
5 105 From Status to Contract: The Unhappy Case of Johann Sebastian Bach 
Jonathan Yovel 
Yale Law School; NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of Law
6 103 Personal and Proprietary Remedies for Breach of Confidence: Nearer to Breach of Fiduciary Duty or Breach of Contract? 
Graham Virgo 
University of Cambridge - Faculty of Law 
7 102 The Incoherent Role of Bargaining Power in Contract Law 
Max N. Helveston and Michael S. Jacobs 
DePaul University - College of Law and DePaul University - College of Law 
8 93 The Europeanisation of Contract Law and the Proposed Common European Sales Law 
Hector Lewis MacQueen 
University of Edinburgh - School of Law 
9 88 Good Faith in Contract: Why Australian Law is Incoherent 
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University of Sydney - Faculty of Law 
10 79 Refining Rectification 
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Victoria University of Wellington - Faculty of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
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RankDownloadsPaper Title
1 176 The Evolving Private International Law/Substantive Law Overlap in the European Union 
Ronald A. Brand 
University of Pittsburgh - School of Law
2 145 Public Lands and the Federal Government's Compact-Based 'Duty to Dispose': A Case Study of Utah's H.B. 148 — The Transfer of Public Lands Act 
Donald J. Kochan 
Chapman University, The Dale E. Fowler School of Law 
3 139 Public-Private Contracting and the Reciprocity Norm 
Wendy Netter Epstein 
DePaul University - College of Law 
4 105 From Status to Contract: The Unhappy Case of Johann Sebastian Bach 
Jonathan Yovel 
Yale Law School; NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of Law
5 102 The Incoherent Role of Bargaining Power in Contract Law 
Max N. Helveston and Michael S. Jacobs 
DePaul University - College of Law and DePaul University - College of Law 
6 102 Personal and Proprietary Remedies for Breach of Confidence: Nearer to Breach of Fiduciary Duty or Breach of Contract? 
Graham Virgo 
University of Cambridge - Faculty of Law 
7 93 The Europeanisation of Contract Law and the Proposed Common European Sales Law 
Hector Lewis MacQueen 
University of Edinburgh - School of Law 
8 88 Good Faith in Contract: Why Australian Law is Incoherent 
John Carter 
University of Sydney - Faculty of Law 
9 79 Refining Rectification 
David McLauchlan 
Victoria University of Wellington - Faculty of Law 
10 76 Beauty and Ugliness in Offer and Acceptance 
Kenneth K. Ching 
Regent University - School of Law 

 

June 10, 2014 in Recent Scholarship | Permalink | TrackBack (0)

The (Im)morality of Disclosure and Contract Design

I've been thinking a lot about contract design, disclosure and consent recently, and had a chance to read Tess Wilkinson-Ryan, A Psychological Account of Consent to Fine Print, 99 IOWA L. REV. 1745 (2014) which (from the abstract):

 "aims to unpack the beliefs, preferences, assumptions and biases that constitute our assessments of assent to boilerplate.  Research suggests that misgivings about procedural defects in consumer contracting weigh heavily on judgments of contract formation, but play almost no role in judgments of blame for transactional harms.  Using experimental methods from the psychology of judgment and decision-making, I test the psychological explanations for this disjunction, including motivated reasoning and reliance on availability heuristics." 

Wilkinson-Ryan concludes that, while disclosures may not have noticeable effects on the assent process (i.e. whether consumers read or understand terms), they have "enormous effects on how we understand transactional harms."  In other words, we are more likely to understand that the consumer has consented and that the consumer is to blame for having consented if the particular disputed issue has been disclosed. 

Wilkinson-Ryan covers the same territory that Eric Zacks covered in a couple of earlier articles having to do with contracting behavior by firms and the effect of contract design on how consumers perceive their moral obligations.  In the first article, Contracting Blame, 15 Univ. of Penn. J. of Bus. L. 169 (2012) Zacks (I’m quoting from the abstract again):

 “explores the impact of the cognitive biases of judges and juries in the context of contract preparation and execution....This Article makes a novel link between behavioral literature and contract preparation and suggests that contract preparers may be able to manipulate adjudicators’ cognitive biases systematically. Exclusive of the economic bargain, contract provisions can provide attributional 'clues' about the contracting context that inform and reassure judicial interpreters that a particular contracting party is more blameworthy than another....In light of the significant implications of the existence and prospective use of such attributional clues for contract law theory and judgment, this Article proposes a broader contextual and adjudicative focus when contemplating contract law reforms.”

In the second, Shame, Regret and Contract Design, 97 Marquette L. Rev. (forthcoming), Zacks argues (again from the abstract):

“(c)ontracts can encourage individuals to feel shame, to blame themselves, to believe that contracts are sacred promises that should be specifically performed, to utilize faulty judgment heuristics when determining contract costs, and to rely on misperceived social norms with respect to challenging or breaching contracts. This may influence them not to breach or challenge an otherwise uneconomical, unconscionable, or illegal contract.” 

 
The takeaway from these three articles?  Firms are manipulating consumers through disclosure and contract design into performing contracts without real consent.  The question then is what to do about it.

Wilkinson-Ryan’s article raises interesting questions about whether disclosure requirements have unintended consequences.  I think her article provides additional support for Omri Ben Shahar and Carl Schneider's book, More Than You Wanted to Know:  The Failure of Mandated Disclosure (Princeton, 2014).*  But rather than concluding that disclosure is a lousy way to address the problem of consent (which it often is), I came to a slightly different conclusion based upon one of her studies. That study found that "making the firm's behavior more salient changed how subjects ranked the blameworthiness of the parties." Wilkinson-Ryan notes that, "(u)nless participants are prompted to think about the firm's drafting process as a set of choices, the drafter's role is not a salient factor in judgments of blame." In my book, Wrap Contracts, and elsewhere, I argue that courts should stop focusing on consumer's "duty to read" and focus instead on the company's "duty to draft reasonably."  In other words, courts should consider whether the drafting firm could have presented and drafted the contract terms in a better, more understandable fashion rather than on whether the adherent "should" have noticed the terms. This shifts the burden of form contracting - and Wilkinson-Ryan's studies suggest, the moral blame -- from the non-reading consumer to the bad-drafting, morally culpable, company.   Of course, requiring companies to draft reasonably (as distinguished from providing “reasonable notice”) doesn’t get us all the way there – but it may help shift the focus away from blaming the adherent-victim  to thinking about the immorality of the drafting firm.


*This blog plans to host a symposium on their book sometime in the fall so stay tuned.

**Boycott Amazon and buy this book from the publisher's website. 

June 10, 2014 in Commentary, Miscellaneous, Recent Scholarship | Permalink | TrackBack (0)

Monday, June 9, 2014

The Latest in One-Sided Boilerplate Terms

Summer Camp 1
Counselor Training, Part I: How to Be Drowned by the Campers

Today's New York Times reports on the extension of non-compete agreements to categories of employment not previously subject to them.  This isn't really news, but it is nice to see the Times giving serious space  to the issue, which I view as just another one-sided boilerplate term that employers are imposing on their employees.  The difference here is that courts don't enforce non-competes if they overreach.  However, the reality is that courts rarely get the opportunity to review non-competes, either because employees don't have the resources to fight them or because, as illustrated in the Times article, competitors are sometimes reluctant to risk a suit and so they do not hire people subject to non-competes, even if those non-competes might be unreasonable.

The over-the-top example with which the Times starts its story is about a woman whose job offer as a summer camp counselor was withdrawn because of a non-compete.  She had worked three previous summers at a Linx-operated summer camp, and her terms of employment there included a non-compete of which she was (of course) unaware.  Here is what Linx's founder had to say in defense of the non-compete:

 “Our intellectual property is the training and fostering of our counselors, which makes for our unique environment,” he said. “It’s much like a tech firm with designers who developed chips: You don’t want those people walking out the door. It’s the same for us.” He called the restriction — no competing camps within 10 miles — very reasonable.

A few points.  First, if your training and fostering of counselors creates a unique environment, then that training and fostering will not transfer when counselors switch to other camps that will presumably train and foster their counselors in other ways.  If that's not the case, then there is nothing special or unique about the way you train and foster your counselors and thus no reason (except throwing up barriers to competition) not to allow counselors to work elsewhere.

Summer Camp 2
Post Training: Wear Life Vests

Second, I just put my daughter on a bus for summer camp.  I was a counselor at a summer camp for two years.  Most camps now belong to a trade organization that sets down strict rules about safety and counselor training.  It is unlikely that what Linx does is unique, and again, to the extent that it is unique, it is not transferable.  

Third, a ten mile non-compete would be reasonable except that it is ten miles from any Linx camp, and Linx operates 30 camps in the area.  So seen, the rule means that counselors who work at Linx camps cannot then work at any other camp in the region.  There is no justification for this.  If Linx has intellectual property to protect, it can do so, but Linx's founder's comparison of his camps to a tech firm strikes me as farfetched.  I doubt that Linx has any intellectual property relating to its training of counselors.  It is not as if a 19-year-old camp counselor comes to her new camp and impresses the people there with her knowledge from her past counseling experience.  Each camp has its own traditions.  If she says it is better to discard the leeches one pulls off the campers after a lake swim, they are not going to listen to her if the camp tradition is to move the leeches to the infirmary so that they can be "repurposed."  What Linx is trying to do with this non-compete likely has less to do with protecting intellectual property than it does to establishing a stranglehold on the market of qualified camp counselors.  

The Times story contrasts the employment situation in California, which does not enforce non-competes with that of Massachusetts, which does.  But freedom of contract nad free enterprise still seem to have the upper hand in Massachusetts, as the following quote form the Times illustrates:

Michael Rodrigues, a Democratic state senator from Fall River, Mass., said the government should not be interfering in contractual matters like noncompetes. “It should be up to the individual employer and the individual potential employee among themselves,” he said. “They’re both adults.”

This is the typical nonsense underlying the enforcement of boilerplate.  The camp counselor in the story was 19 years old, which means she was actually an infant when she signed the non-compete.   But even if she could match the sophistication of the business that hired her, how does Mr. Rodrigues expect the negotiation to take place?  In his mind it would go something like this:

Business: Here's the contract.

Employee: Okay, let me read it over and strike out all the terms that I don't like.

Business: Sure, take as long as you like and then we can negotiate over each term to which you object.

And here's the reality:

Business: Here's the contract.

Employee: Okay, let me read it over and strike out all the terms that I don't like.

Business: Well, actually, this is a form contract, and it's take it or leave it.  Even if you wanted to object, I don't have any authority to change any of the terms.  Either you sign this or you don't work here.

But even that is an exaggeration of the amount of consideration that goes in to the signing of employment contracts.  They are not read at all and they are not expected to be read at all.  And not reading them is the rational thing to do as potential employees have no bargaining power that they could  deploy to challenge objectionable terms.  

June 9, 2014 in Commentary, In the News, True Contracts | Permalink | Comments (1) | TrackBack (0)

Teaching Third Party Beneficiaries, Assignment & Delegation & a New Third Party Beneficiaries Case out of the First Circuit

Last year, my big teaching innovation was to get rid of casebooks and rely instead on cases and ancillary materials that my fellow contracts prof, Mark Adams, and I edited and compiled on a LibGuide.  This coming year, my big innovation will be to add a unit on Third Party Beneficiaries, Assignment and Delegation.  I can do so because we now have a two-credit course on Damages and Equity at the end of our first-year curriculum, and so I do not need to cover remedies in my contracts course.  I will continue to emphasize remedies throughout the course, but we will not end the semester with a unit consisting of cases that focus primarily on remedies issues.  Fare thee well, Peevyhouse, Jacob & Youngs, Hadley, et al.!  I really will miss you.  

I can do so without regrets, as my students will study these cases (or at least the subject matter for which they are the vehicle of presentation) in their Damages and Equity course.  The reason I feel I need to jettison this material in favor of third parties, etc. is that I have recently learned that those subject matters are heavily tested on the multi-state bar exam.  They also are important in practice, and I don't know where they would be covered if not in first-year contracts.

1st CirSo, with that in mind, the recent First Circuit case, Feingold v. John Hancock Life Ins. Co. caught my eye.  The case related to Feingold's mother's insurance policy, which she took out in 1945.  The policy named Mrs. Feingold's late husband as the sole beneficiary.  He apparently pre-decesased her, and she died in 2006.  Feingold had no knowledge of his mother's policy and did not inform John Hancock of her death until 2012.  At that point, he sought information about her policy.  John Hancock issued Feingold a death benefit check of $1,349.71 but provided no further information about his mother's policy.  That policy, it seems, required a named beneficiary to notify the insurer of the policy-holder's death.  Because such a provision was permissible under state law, the trial court found that John Hancock had no duty to notify Feingold of the policy or to independently seek out potential beneficiaries.  

But Feingold also relied on a 2011 Global Resolution Agreement (GRA) entered into by John Hancock and several states.  Under the GRA, John Hancock agreed to alter some of its practices relating to unclaimed property.   Feingold filed a putative class action claiming that he and other members of the class were harmed as third-party beneficiaries of the GRA when John Hancock breached its obligations under the GRA.  

The First Circuit affirmed the District Court's grant of John Hancock's motion to dismiss Feingold's claims.  The First Circuit found that Feingold and the putative class members are not third-party beneficiaries to the GRA.  The GRA contains no language sufficient to overcome the "strong presumption" against third party beneficiaries.   While Feingold alleged that both John Hancock and the states entered into the GRA in order to protect insurance policy beneficiaries, the First Circuit reasoned that Feingold and others like him are at most incidental rather than direct beneficiaries of the GRA.  Under applicable state law, the fact that states were parties to the agreement strengthens the assumption in favor of the third parties' incidental status.

June 9, 2014 in Recent Cases, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 4, 2014

New in Print

Tuesday, June 3, 2014

Texas Supreme Court Finds Settlement Agreement Was Formed Although Mirror Image Rule Not Satisfied

Texas SealAfter two employees of Amedisys, Inc. (Amedisys) went to work for its competitor, Kingwood Home Health Care, LLC (Kingwood), Amedisys sued Kingwood for tortious interference.  The two parties then engaged in a game of legal chicken.  Amedisys threatened that it would not settle below six figures.  Kingwood responded with a settlement offer of $90,000, expecting that Amedisys would reject the offer and trigger Rule 167 of the Texas Civil Practice and Remedies Code, which would allow Kingwood to recover litigation costs if the case went to trial and resulted in a judgment considerably less favorable to Amedisys than the settlement offer.

Amedisys accepted the settlement offer.  This apparently was not what Kingwood wanted or expected, and Kingwood refused to treat Amedisys's response as an acceptance.  Kingwood proceeded with some pre-trial motions, and Amedisys filed an emergency motion for the enforcement of the settlement agreement.  Kingwood claimed that the settlement agreement lacked consideration and that it was fraudulently induced by Amedisys's statement that it would not settle for less than six figures.  Note that Kingwood is thus effectively admitting that it made its settlement offer only in order to avail itself of Rule 167.  After a few more procedural complexities, the trial court granted Amedysis's motion to have the settlement agreement enforced.

On appeal, in addition to its allegations that the settlement agreement lacked consideration and was fraudulently induced, Kingwood claimed that Amedisys's purported acceptance was a counteroffer because it did not match the terms of Kingwood's offer.  While Kingwood offered $90,000 "to settle all claims asserted or which could have been asserted by Amedisys,” Amedisys agreed to accept $90,000 "to settle all monetary claims asserted."  Despite the fact that this argument was first raised on appeal, the Texas Court of Appeals agreed with Kingwood and reversed the trial court's judgment in favor of Amedisys.

Texas FlagThe Supreme Court found that the Court of Appeals acted correctly in considering Kingwood's argument, raised for the first time on appeal, that no contract existed.  Amedisys, as the moving party, bore the burden of proving each element of its claim that Kingwood had breached a contract, including proof of the existence of a contract.  

[Editorializing here: This seems more than a bit off to me.  Amedisys likely thought it had proved the existence of a contract when it presented evidence of offer and acceptance.  At the trial court, Kingwood did not raise any claims that the acceptance was invalid based on the difference in wording between offer and acceptance.  Why should Kingwood be permitted to sit on its legal arguments and save them for appeal?  By not raising them in opposition to Amedisys's motion, Kingwood should have been treated as having waived those arguments.  Otherwise, Amedisys would have to attempt to guess every possible legal challenge that Kingwood might raise to its claims and put them in its motion papers.  In the process, Amedisys would be required to aniticipate every conceivable counterargument to its position, raise and refute each argument.  This places an intolerable burden on the movant.]

While the common law does provide that an acceptance may not qualify or change the material terms of an offer, the Texas Supreme Court found that the differences between offer and acceptance in this case were not material given the full context of the exchanges between the parties.  Amedisys made clear its intention to accept Kingwood's offer on the terms Kingwood presented.  Moreover, there were no additional claims that Amedisys might potentially bring, as the doctrine of res judicata would bar Amedisys for bringing additional, related claims once the suit had been settled.  

Because the Court of Appeals declined to rule on Kingwood's additional defenses, the Supreme Court remanded the case back to the Court of Appeals for resolution of those issues.

For those who would like to explore the Mirror Image Rule with students, this is a pretty interesting case, and the Texas Supreme Court provides a video recording of the oral arguments, so that would be pretty cool to share with students as well.

June 3, 2014 in Commentary, Recent Cases, Teaching | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
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RankDownloadsPaper Title
1 785 Aftermarketfailure: Windows XP's End of Support 
Andrew Tutt 
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2 156 The FTC and Privacy and Security Duties for the Cloud 
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George Washington University Law School and Samford University - Cumberland School of Law 
3 132 Public-Private Contracting and the Reciprocity Norm 
Wendy Netter Epstein 
DePaul University - College of Law 
4 124 Payment after Actavis 
Michael A. Carrier 
Rutgers University School of Law - Camden 
5 100 From Status to Contract: The Unhappy Case of Johann Sebastian Bach 
Jonathan Yovel 
Yale Law School; NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of Law
6 93 Personal and Proprietary Remedies for Breach of Confidence: Nearer to Breach of Fiduciary Duty or Breach of Contract? 
Graham Virgo 
University of Cambridge - Faculty of Law 
7 83 The Europeanisation of Contract Law and the Proposed Common European Sales Law 
Hector Lewis MacQueen 
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8 81 Good Faith in Contract: Why Australian Law is Incoherent 
John Carter 
University of Sydney - Faculty of Law 
9 80 Financial Fair Play ou "Oligopoleague" de clubs rentiers: Elements d'analyse en droit de la concurrence ('Financial Fair Play' or Rent-Seeking 'Oligopoleague'?: A Preliminary Analysis of the UEFA's Break Even Requirement Under the EU Competition Rules) 
Nicolas Petit 
University of Liege 
10 73 The Incoherent Role of Bargaining Power in Contract Law 
Max N. Helveston and Michael S. Jacobs 
DePaul University - College of Law and DePaul University - College of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
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RankDownloadsPaper Title
1 171 The Evolving Private International Law/Substantive Law Overlap in the European Union 
Ronald A. Brand 
University of Pittsburgh - School of Law 
2 140 Public Lands and the Federal Government's Compact-Based 'Duty to Dispose': A Case Study of Utah's H.B. 148 — The Transfer of Public Lands Act 
Donald J. Kochan 
Chapman University, The Dale E. Fowler School of Law
3 132 Public-Private Contracting and the Reciprocity Norm 
Wendy Netter Epstein 
DePaul University - College of Law 
4 100

From Status to Contract: The Unhappy Case of Johann Sebastian Bach 
Jonathan Yovel 
Yale Law School; NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of Law

5 93 Personal and Proprietary Remedies for Breach of Confidence: Nearer to Breach of Fiduciary Duty or Breach of Contract? 
Graham Virgo 
University of Cambridge - Faculty of Law 
6 83 The Europeanisation of Contract Law and the Proposed Common European Sales Law 
Hector Lewis MacQueen 
University of Edinburgh - School of Law 
7 81 Good Faith in Contract: Why Australian Law is Incoherent 
John Carter 
University of Sydney - Faculty of Law 
8 73 The Incoherent Role of Bargaining Power in Contract Law 
Max N. Helveston and Michael S. Jacobs 
DePaul University - College of Law and DePaul University - College of Law 
9 65 Refining Rectification 
David McLauchlan 
Victoria University of Wellington - Faculty of Law 
10 63 Beauty and Ugliness in Offer and Acceptance 
Kenneth K. Ching 
Regent University - School of Law 

June 3, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, June 2, 2014

Divided Mississippi Supreme Court Strikes One-Sided Arbitration Clause as Unconscionable

Mississippi SealPlaintiffs in Caplan Enterprises, Inc. v. Ainsworth signed two versions of a delayed-deposit agreement with a business called Zippy Check.  The agreements included two versions of arbitration clauses that applied to all of plaintiffs' potential claims, but Zippy Check remained free to pursue all judicial remedies.  In addition, plaintiffs' potential damages were limited to the price paid by plaintiffs for services rendered.

In 2010, plaintiffs brought actions against Zippy Check, alleging fraudulent misrepresentation and predatory lending.  Zippy Check moved to compel arbitration.  The trial court found the aribtration clauses in both versions of the agreement to be unconscionable and unenforceable.  The appellate court found only one version to be unenforceable.  The Mississippi Supreme Court agreed with the trial court.  Its analysis focused on the substantive unconconscionability of the arbitration clauses.  Apparently, a showing of substantive unconscionability alone is enough in Mississippi, at least in connection with adhesion contracts.  The Supreme Court concluded that while arbitration agreements need not impose identifical obligations on each side, "under the particular facts of this case, the arbitration agreements were unreasonably favorable to Zippy Check, oppressive, unconscionable, and unenforceable."

Two dissenting Justices found that plaintiffs had not demonstrated procedural unconscionability because "plaintiffs presented no evidence that they were 'prevented by market factors, timing[,] or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.'"  The dissenting Justices also noted that Mississippi does not require mutuality of obligation in arbitration clauses and thus found no substantive unconscionability in the arbitration agreements at issue in the case.

June 2, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

New in Print: Books, Part III

Stefan Grundmann, et al. (eds.), The Organizational Contract: From Exchange to Long-Term Network Cooperation in European Contract Law (Ashgate 2013)

  • Organizational ContractThis book introduces and develops the paradigm of the organisational contract in European contract law. Suggesting that a more radical distinction should be made between contracts which regulate single or spot exchanges and contracts that organize complex economic activities without creating a new legal entity, the book argues that this distinction goes beyond that between spot and relational contracts because it focuses on the organizational dimension of contracting and its governance features. Divided into six parts, the volume brings together a group of internationally renowned experts to examine the structure of long-term contractual cooperation; networks of contracts; knowledge exchange in long-term contractual cooperation; remedies and specific governance rules in long-term relationships; and the move towards legislation. The book will be of value to academics and researchers in the areas of private law, economic theory and sociology of law, and organizational theory. It will also be a useful resource for practitioners working in international contract law and international business transaction law.

  • Contents: Preface: Society of European Contract Law (SECOLA): Part I Overview: The contractual basis of long-term organization - the overall architecture, Stefan Grundmann, Fabrizio Cafaggi and Giuseppe Vettori. Part II The Structure of Long-Term Contractual Cooperation: Dissecting long-term contracts: a law and economics approach, Mireia Artigot i Golobardes and Fernando Gómez Pomar; Contractual networks, contract design, and contract interpretation: the case of credit cards, Clayton P. Gillette; The lion, the fox and the workplace: fundamental rights and the politics of long-term contractual relationships, Chantal Mak. Part III Network of Contracts: ‘And if I by Beelzebub cast out devils…’: an essay on the diabolics of network failure, Gunther Teubner; Contracts with network effects: is the time now right?, Roger Brownsword; Networks of contracts and competition law, Michael Martinek. Part IV Knowledge Exchange in Long-Term Contractual Cooperation: Good faith related duties of disclosure and a view on franchising, Massimo Bianca; Trade secrets vs skill and knowledge, Aurea Suñol; Long-term relationships: networks and exchange of knowledge in production and distribution contracts, Marco Gobbato. Part V Remedies and Specific Governance Rules in Long-Term Relationships: Contract remedies - a relational perspective, Yehuda Adar and Moshe Gelbard; Contract governance within corporate governance: a lesson from the global financial crisis, Florian Möslein. Part VI Towards Legislation?: The nemesis of European private law: contractual nexus as a legislative conundrum, Marc Amstutz; Towards a legal framework for transnational European networks?, Fabrizio Cafaggi and Stefan Grundmann; Index.

June 2, 2014 in Books, Recent Scholarship | Permalink | TrackBack (0)

Friday, May 30, 2014

SDNY Enforces Hyperlinked Arbitration Clause and Class Action Waiver

BambooLast month, the District Court for the Southern District of New York granted a motion to dismiss brought by defendant Gilt Groupe, Inc. (Gilt) in Starke v. Gilt Groupe, Inc.  Adam Starke (Starke) sought to bring a class action claim against Gilt for allegedly misrepresenting on its website that its textiles were made from bamboo fibers when they are in fact made from bamboo derivatives (rayon).  

Gilt is an online shopping website that specializes in "flash sales" of short duration.  In order to purchase items on the website, one must become a Gilt member.  One does so by clicking on a "sign-up" box that states that the consumer agrees to be bound by Gilt's Terms of Membership.  Once click on the mouse brings the consumer to Gilt's "Terms and Conditions," which are governed by Gilt's Terms of Use.  A second click brings one to those terms which include, in paragraph 16, an arbitration agreement and a class action waiver.  

Starke claimed both that he never effectively agreed to the arbitration agreement and class action waiver and that they are unconscionable.  Relying on a 2012 case invovling similar challenges to Facebooks click-through terms and conditions, the District Court quickly concluded: 

Regardless of whether he actually read the contract's terms, Starke was directed exactly where to click in order to review those terms, and his decision to click the "Shop Now" button represents his assent to  them.

Yes, this is indeed how mass-market boilerplate rights-deletion scheme works.  Clicking twice, and carefully reading  both documents would have increased the time involved in Starke's transaction substantially.  Neither Starke nor Gilt, which specializes in "flash sales," wants that.   The terms are not intended to be read.  Nor do we know that Starke could have understood the significance of the arbitration clause and class action waiver had he read them.  In addition, what is Starke's alternative?  The District Court blithely directs Starke to Amazon.com.  What do you know?  Amazon also has an arbitration clause and a class-action waiver!  [In fairness, I've always found Amazon's customer service to be excellent -- they take returns and cover shipping on returns, so Starke probably would have been better off with them -- Amazon also accurately described the product at issue in Starke's case.]  SDNY, you're part of the problem.

Starke did not seem to raise any serious grounds for finding the arbitration agreement unconscionable.  

[This post has been edited to fix errors that a reader called to the author's attention.]

May 30, 2014 in Commentary, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 28, 2014

Is Economics Dangerous?

                                                                                                 2008-08-19_Flat_tire

 

Although the case is a bit old at this point, it is still one I assign to my law and economics students when we cover contracts. The case,  Specialty Tires of American, Inc. v. The CIT Group/Equipment Financing, Inc., 82 F. Supp. 2d 434 (2000), involves the sale of tire presses which the seller is unable to deliver. The defense is based on a theory of impracticability. So far, so good and the outcome may be the appropriate one. Nevertheless, it appears that the judge may had a course in economics at some point, hopefully not my own. In justifying the decision he reasons:  

"[J]udicial discharge of CIT's [the seller] promise under these circumstances leaves Specialty [the buyer] in no worse a position than it would have occupied without the contract; either way, it would not have these presses, and it has only been able to locate and purchase three similar used presses on the open market since CIT's failure to deliver. On the other hand, CIT is relieved of the obligation to pay damages. Accordingly, excuse for impracticability would appear to be a Pareto-optimal move . . .increasing CIT's welfare while not harming Specialty. This too is a valid policy reason for imposing the risk of loss on Specialty. SeeCalamari & Perillo, supra § 13.1, at 496. Thus, economic analysis confirms as sound policy the result suggested by the caselaw. . . . "

Putting aside that there are no Pareto Optimal moves -- optimality is a state, "superior" and "inferior" are "moves" --  how is it that a contracting party in possession of the promise of another party is not worse off if that promise is excused? I am not sure how the logic of the decision could be contained. Every time one party wants out of a contract, there  is the potential for that party to be better off  and for the other party to be in the position he or she was in before making the contract.  But that is  hardly the question.

More to come on the dangers of Paretian standards in contract law. 

 

May 28, 2014 | Permalink | TrackBack (0)

New in Print: Books, Part II

 

Pile of Books

Two New Books from Hart Publishing

Contractual Indemnities
By Wayne Courtney

Promises of indemnity are found in many kinds of commercial contracts, not just contracts of insurance. This book examines the nature and effect of contractual indemnities outside the insurance context. It is the first work to provide a detailed account of the subject in English law.

The book presents a coherent theory of the promise of indemnity while also addressing important practical issues, such as the construction of contractual indemnities. The subject is approached from two perspectives. The foundations are laid by examining general principles applicable to indemnities in various forms. This covers the nature of indemnity promises; general principles of construction; the determination of scope; and the enforcement of indemnities. The approach then moves from the general to the specific, by examining separately particular forms of indemnity. Included among these are indemnities against liability to third parties, and indemnities against default or non-performance by third parties.

The book states English law but it draws upon a considerable amount of material from other common law jurisdictions, including Australia, Canada, New Zealand and Singapore. It will appeal to readers from those countries.

Courtney BookWayne Courtney is a Senior Lecturer in the Faculty of Law at the University of Sydney.

Please click here to view the table of contents for this book

April 2014   362pp   Hbk   9781849462907   RSP: £75 / US $150

Discount Price: £60 / US $120

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘CONTRACTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website: http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849462907

Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘CONTRACTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849462907

Russia BookContract Law in Russia

By Maria Yefremova, Svetlana Yakovleva and Jane Henderson

The book explains Russian contract law in a form understandable to lawyers qualified in other countries, especially common law countries. The introduction gives a concise overview of the Russian legal system in general and contract law in particular as well as a brief insight into the history of contract law in Russia. Then the main concepts of Russian contract law are explained, using the conceptual framework of English contract law to make them accessible to someone not familiar with the codified Russian system.

The book not only considers the legislation regulating Russian contractual relations but also includes appropriate case law to show how the legislation is interpreted. The focus is on contract law in Russia as it actually operates, rather than merely the legislative texts, so that it will be directly relevant to legal practitioners and others who wish to acquire knowledge of the practical application of an important element of the Russian legal system, as well as those seeking an insight into the realities of codified law in action.

The target readership therefore includes legal practitioners who have to deal with Russian law, academics and students with an interest in Russian law, the law of contract and comparative civil law, as well as scholars of comparative legal systems and Russian area studies.

Maria Yefremova graduated cum laude from the Faculty of Law at the State University - Higher School of Economics in Moscow and is qualified to practise law in the Russian Federation. She also holds an LLM degree in Public International and European Union Law from the University of Amsterdam. Prior to establishing a legal practice with Svetlana Yakovleva, Maria worked for the Moscow office of White & Case LLC. Maria is currently  Corporate Legal Counsel at Level 3 Communications.

Svetlana Yakovleva graduated cum laude from the Faculty of Law at the State University - Higher School of Economics in Moscow and is qualified to practise law in the Russian Federation. She holds an LLM degree in Law and Economics from the Erasmus University, Rotterdam and the University of Hamburg (EMLE). Svetlana worked for the Moscow office of Debevoise & Plimpton LLP, then established and ran a legal practice with Maria Yefremova. She now holds the position of Legal and Compliance Officer at Allianz Global Assistance Russia.

Jane Henderson is Senior Lecturer in Law at the Dickson Poon School of Law, King's College London, a member of King's Russia Institute and an Adjunct Professor at the University of Notre Dame (USA) in England.

Please click here to view the table of contents for this book

May 2014   326pp   Pbk   9781849462990   RSP: £25 / US $50

Discount Price: £20 / US $40

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘CONTRACTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website: http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849462990

Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘CONTRACTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849462990

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530 Fax Number: 01865 510 710

Website: www.hartpub.co.uk   Hart Publishing Ltd. is registered in England No. 3307205

May 28, 2014 in Books, Recent Scholarship | Permalink | TrackBack (0)

New in Print: Books, Part I

This week on New in Print, we are highlighting recent book-length publications on contracts law, and we have a bit of a backlog, so it may take several posts.

We want to start with a book that will be the subject of an online symposium in the Fall:

Disclosure BookOmri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton, 2014)

Perhaps no kind of regulation is more common or less useful than mandated disclosure--requiring one party to a transaction to give the other information. It is the iTunes terms you assent to, the doctor's consent form you sign, the pile of papers you get with your mortgage. Reading the terms, the form, and the papers is supposed to equip you to choose your purchase, your treatment, and your loan well. More Than You Wanted to Know surveys the evidence and finds that mandated disclosure rarely works. But how could it? Who reads these disclosures? Who understands them? Who uses them to make better choices?

Omri Ben-Shahar and Carl Schneider put the regulatory problem in human terms. Most people find disclosures complex, obscure, and dull. Most people make choices by stripping information away, not layering it on. Most people find they can safely ignore most disclosures and that they lack the literacy to analyze them anyway. And so many disclosures are mandated that nobody could heed them all. Nor can all this be changed by simpler forms in plainer English, since complex things cannot be made simple by better writing. Furthermore, disclosure is a lawmakers' panacea, so they keep issuing new mandates and expanding old ones, often instead of taking on the hard work of writing regulations with bite.

Timely and provocative, More Than You Wanted to Know takes on the form of regulation we encounter daily and asks why we must encounter it at all.

Omri Ben-Shahar is the Leo and Eileen Herzel Professor of Law at the University of Chicago. His books includeBoilerplate: The Foundation of Market ContractsCarl E. Schneider is the Chauncey Stillman Professor of Law and professor of medicine at the University of Michigan. His books include The Practice of Autonomy: Patients, Doctors, and Medical Decisions.

Endorsement:

"Ben-Shahar and Schneider have written what for a long time will be the definitive work on regulations that require sellers of goods and services to provide information about their products that sellers will not voluntarily provide but that the regulators believe will help the consumers to make intelligent choices. Apparently these 'mandated disclosures' are ignored by the vast majority of consumers. The authors are unrelievedly negative about the efficacy of mandated disclosures. They are right to be. Their analysis is clear, comprehensive, and convincing."--Judge Richard A. Posner, United States Court of Appeals for the Seventh Circuit

"I read this book with rapt attention. It is magnificent. Ben-Shahar and Schneider have done a masterful job of setting out their case clearly, plainly, and persuasively."--Tom Baker, University of Pennsylvania

"Ben-Shahar and Schneider present a compelling argument. They contend that mandated disclosure is a policy failure that is not easily remedied."--Zev J. Eigen, Northwestern University

"Significant and original. The research is prodigious. I am not aware of another treatment of disclosure that crosses disciplinary lines to this extent, and the analysis is all the more worthwhile for it. Ben-Shahar and Schneider show how disclosures have become pervasive in our society yet are largely ignored and misunderstood."--Clayton Gillette, New York University

Table of Contents:

Preface ix
Part I - The Ubiquity of Mandated Disclosure 1
Chapter 1 Introduction 3
Chapter 2 Complex Decisions, Complex Disclosures 14
Chapter 3 The Failure of Mandated Disclosure 33
Part I - Why Disclosures Fail 55
Chapter 4 "Whatever": The Psychology of Mandated Disclosure 59
Chapter 5 Reading Disclosures 79
Chapter 6 The Quantity Question 94
Chapter 7 From Disclosure to Decision 107
Part III - Can Mandated Disclosure Be Saved? 119
Chapter 8 Make It Simple? 121
Chapter 9 The Politics of Disclosure 138
Chapter 10 Producing Disclosures 151
Chapter 11 At Worst, Harmless? 169
Chapter 12 Conclusion: Beyond Disclosurism 183
Notes 197
Index 225

May 28, 2014 in Books, Recent Scholarship | Permalink | TrackBack (0)

REFinBlog Joins the Law Professor Blogs Network

LPBNAs announced here on the TaxProf Blog, the Law Professor Blogs Network has added another member to its roster.  The REFinBlog began in November 2012 and it is edited by Brad Borden (Brooklyn) and David Reiss (Brooklyn).  The blog tracks developments in the real estate finance industry.  

We welcome REFinBlog to the LPBN family and as always wish the contributors to our new sibling happy blogging. 

May 28, 2014 in About this Blog, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 27, 2014

Author Meets Reader Salon on Wrap Contracts

Law and Society Association's Annual Meeting is only a few days away.  There will be an Author Meets Reader Salon on my book, WRAP CONTRACTS on Friday, 5/30, 8:15am-10:00am in the Duluth Room. Shubha Ghosh (Wisconsin), Danielle Kie Hart (Southwestern) and Juliet Moringiello (Widener) will be joining me in what promises to be a lively discussion about those pesky clickboxes and pop-ups on your screens.  If you are attending the meeting, please stop by and join us!  

May 27, 2014 in Books, Conferences, Contract Profs, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 783 Aftermarketfailure: Windows XP's End of Support 
Andrew Tutt 
Yale University - Information Society Project 
2 212 The Futility of Cost Benefit Analysis in Financial Disclosure Regulation 
Omri Ben-Shahar and Carl E. Schneider 
University of Chicago Law School and University of Michigan Law School 
3 151 The FTC and Privacy and Security Duties for the Cloud 
Daniel J. Solove and Woodrow Hartzog 
George Washington University Law School and Samford University - Cumberland School of Law 
4 129 Public-Private Contracting and the Reciprocity Norm 
Wendy Netter Epstein 
DePaul University - College of Law 
5 120 Payment after Actavis 
Michael A. Carrier 
Rutgers University School of Law - Camden 
6 97 From Status to Contract: The Unhappy Case of Johann Sebastian Bach 
Yale Law School; NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of Law
7 79 Good Faith in Contract: Why Australian Law is Incoherent 
John Carter 
University of Sydney - Faculty of Law 
8 70 The Incoherent Role of Bargaining Power in Contract Law 
Max N. Helveston and Michael S. Jacobs 
DePaul University - College of Law and DePaul University - College of Law 
9 68 The Expectation Measure and Its Discontents 
Shawn J. Bayern and Melvin A. Eisenberg 
Florida State University - College of Law and University of California, Berkeley - School of Law 
10 68 The Europeanisation of Contract Law and the Proposed Common European Sales Law 
Hector Lewis MacQueen 
University of Edinburgh - School of Law 

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

RankDownloadsPaper Title
1 167 The Evolving Private International Law/Substantive Law Overlap in the European Union 
Ronald A. Brand 
University of Pittsburgh - School of Law 
2 139 Public Lands and the Federal Government's Compact-Based 'Duty to Dispose': A Case Study of Utah's H.B. 148 — The Transfer of Public Lands Act 
Donald J. Kochan 
Chapman University School of Law
3 129 Public-Private Contracting and the Reciprocity Norm 
Wendy Netter Epstein 
DePaul University - College of Law 
4 97 From Status to Contract: The Unhappy Case of Johann Sebastian Bach 
Yale Law School; NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of La
5 79 Good Faith in Contract: Why Australian Law is Incoherent 
John Carter 
University of Sydney - Faculty of Law
6 70 The Incoherent Role of Bargaining Power in Contract Law 
Max N. Helveston and Michael S. Jacobs 
DePaul University - College of Law and DePaul University - College of Law 
7 68 The Expectation Measure and Its Discontents 
Shawn J. Bayern and Melvin A. Eisenberg 
Florida State University - College of Law and University of California, Berkeley - School of Law
8 68 The Europeanisation of Contract Law and the Proposed Common European Sales Law 
Hector Lewis MacQueen 
University of Edinburgh - School of Law
9 60 Refining Rectification 
David McLauchlan 
Victoria University of Wellington - Faculty of Law 
10 57 Personal and Proprietary Remedies for Breach of Confidence: Nearer to Breach of Fiduciary Duty or Breach of Contract? 
Graham Virgo 
University of Cambridge - Faculty of Law 

 

May 27, 2014 in Recent Scholarship | Permalink | TrackBack (0)