ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, December 1, 2016

Weekly Top Ten SSRN Contracts Downloads (December 1, 2016)

Our SSRN Top Ten Downloads lists now return after a Thanksgiving hiatus last Thursday.

Top-10-3D

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 506 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
2 368 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
3 308 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
4 278 Inside Safe Assets
Anna Gelpern and Erik F. Gerding
Georgetown University Law Center and University of Colorado Law School
5 236 Online RPM and MFN Under Antitrust Law and Economics
Pinar Akman and D. Daniel Sokol
University of Leeds and University of Florida - Levin College of Law
6 222 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
7 128 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
8 127 Crowdfunding Investment Contracts
Jack Wroldsen
Oklahoma State University Spears School of Business
9 108 The Illiberty of Contract
Donald J. Smythe
California Western School of Law
10 189 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 506 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
2 368 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
3 308 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
4 222 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
5 189 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law
6 128 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
7 127 Crowdfunding Investment Contracts
Jack Wroldsen
Oklahoma State University Spears School of Business
8 108 The Illiberty of Contract
Donald J. Smythe
California Western School of Law
9 91 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
10 86 First or Second Best? Judicial Law-Making in European Private Law
Chantal Mak
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

December 1, 2016 in Recent Scholarship | Permalink | Comments (0)

Friday, November 18, 2016

Scholarship Spotlight: "The Promise and Problems of Universal, General Theories of Contract Law" (Brian Bix - Minnesota)

Do theories of contract law actually explain what they purport to explain? Legal philosopher and contracts scholar Brian Bix (University of Minnesota) suggests in a concise but content-packed piece entitled The Promise and Problems of Universal, General Theories of Law that the answer to that question is usually no.

 Here is Professor Bix's abstract:

Brian Bix (Minnesota)There is a growing literature offering (competing) theories of particular doctrinal areas – theories of contract law, tort law, property law, criminal law, restitution law, etc. As theories of doctrinal areas – and, not limited in title or description to the doctrinal area of a particular jurisdiction or time period – they purport to describe, explain, or (and) justify all past, present, and possible versions of that doctrinal area. The audacious ambition of such claims has done little to slow the supply of these theories, though it may explain why so few among these projects pause to consider explicitly their methodology and grounds. In this paper, I explore what may justify these sorts of theories, and what problems they need to overcome. I use examples primarily from contract law, as it is the area I know best, but I suspect that the promise and problems of general theories of other areas of law will be similar. Part I examines what is meant by general and universal theories. Part II considers the practice of rational reconstruction, a practice that is both often at the core of what theorists of doctrinal areas do, and central to how they justify their project. Part III reflects more generally on the factors that might cause caution about the project of general theory. Part IV comes from the other direction, looking at the considerations that motivate or ground general theories. And Part V adds a few comments on prescriptive theories.

Contract theories thus provide useful paradigms for explaining and understanding doctrine, but they might do better to disclaim their implicit claim to universality. Bix concludes, in part, with the observation that "[t]he mere fact that theories of doctrinal areas that are implicitly or explicitly universal and general are taken seriously, and not dismissed immediately as nonsense, indicates that they have some grounding in the rules and practices of legal systems."

Professor Bix's article, The Promise and Problem of Universal, General Theories of Contract Law is available for SSRN download here.

November 18, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, November 17, 2016

Weekly Top Ten SSRN Contracts Downloads (November 17, 2016)

 

  Top-10-handwritten



SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

1 488 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
2 326 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
3 293 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
4 269 Inside Safe Assets
Anna Gelpern and Erik F. Gerding
Georgetown University Law Center and University of Colorado Law School
5 223 Online RPM and MFN Under Antitrust Law and Economics
Pinar Akman and D. Daniel Sokol
University of Leeds and University of Florida - Levin College of Law
6 174 Is Privacy Policy Language Irrelevant to Consumers?
Lior Strahilevitz and Matthew B. Kugler
University of Chicago Law School and Northwestern University - Pritzker School of Law
7 171 Optimal Fee-Shifting Bylaws
Albert H. Choi
University of Virginia School of Law
8 171 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law
9 166 Tort Reform through the Backdoor: A Critique of Law & Apologies
Yonathan A. Arbel and Yotam Kaplan
Harvard Law School and Hebrew University of Jerusalem
10 119 Crowdfunding Investment Contracts
Jack Wroldsen
Oklahoma State University Spears School of Business

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 488 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
2 326 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
3 293 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
4 171 Optimal Fee-Shifting Bylaws
Albert H. Choi
University of Virginia School of Law
5 171 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law
6 141 Signing Without Reading
Gerrit De Geest
Washington University in Saint Louis - School of Law
7 119 Crowdfunding Investment Contracts
Jack Wroldsen
Oklahoma State University Spears School of Business
8 106 The Illiberty of Contract
Donald J. Smythe
California Western School of Law
9 92 Financial Contracting in Crowdinvesting: Lessons from the German Market
Lars Klöhn, Lars Hornuf and Tobias Schilling
Humboldt University of Berlin - Faculty of Law, University of Trier and Humboldt University of Berlin - Faculty of Law
10 84 First or Second Best? Judicial Law-Making in European Private Law
Chantal Mak
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

 

November 17, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, November 10, 2016

Weekly Top Ten SSRN Contracts Downloads (November 10, 2016)

Top-10-thumbsup

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 431 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
2 297 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
3 277 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
4 264 Inside Safe Assets
Anna Gelpern and Erik F. Gerding
Georgetown University Law Center and University of Colorado Law School
5 206 Online RPM and MFN Under Antitrust Law and Economics
Pinar Akman and D. Daniel Sokol
University of Leeds and University of Florida - Levin College of Law
6 172 Is Privacy Policy Language Irrelevant to Consumers?
Lior Strahilevitz and Matthew B. Kugler
University of Chicago Law School and Northwestern University - Pritzker School of Law
7 163 Tort Reform through the Backdoor: A Critique of Law & Apologies
Yonathan A. Arbel and Yotam Kaplan
Harvard Law School and Hebrew University of Jerusalem
8 160 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law
9 158 Optimal Fee-Shifting Bylaws
Albert H. Choi
University of Virginia School of Law
10 128 The Grey Hole Problem in Commercial Boilerplate
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 432 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
2 297 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
3 277 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
4 160 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law
5 158 Optimal Fee-Shifting Bylaws
Albert H. Choi
University of Virginia School of Law
6 131 Signing Without Reading
Gerrit De Geest
Washington University in Saint Louis - School of Law
7 110 Crowdfunding Investment Contracts
Jack Wroldsen
Oklahoma State University Spears School of Business
8 102 The Illiberty of Contract
Donald J. Smythe
California Western School of Law
9 83 Financial Contracting in Crowdinvesting: Lessons from the German Market
Lars Klöhn, Lars Hornuf and Tobias Schilling
Humboldt University of Berlin - Faculty of Law, University of Trier and Humboldt University of Berlin - Faculty of Law
10 77 First or Second Best? Judicial Law-Making in European Private Law
Chantal Mak
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

 

November 10, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, November 3, 2016

Weekly Top Ten SSRN Contracts Downloads (November 3, 2016)

Top10-Granite


SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 273 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
2 265 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
3 245 Inside Safe Assets
Anna Gelpern and Erik F. Gerding
Georgetown University Law Center and University of Colorado Law School
4 188 Online RPM and MFN Under Antitrust Law and Economics
Pinar Akman and D. Daniel Sokol
University of Leeds and University of Florida - Levin College of Law
5 158 Is Privacy Policy Language Irrelevant to Consumers?
Lior Strahilevitz and Matthew B. Kugler
University of Chicago Law School and Northwestern University - Pritzker School of Law
6 156 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
7 154 Tort Reform through the Backdoor: A Critique of Law & Apologies
Yonathan A. Arbel and Yotam Kaplan
Harvard Law School and Hebrew University of Jerusalem
8 142 Optimal Fee-Shifting Bylaws
Albert H. Choi
University of Virginia School of Law
9 134 Engineering Humans with Contracts
Brett M. Frischmann and Evan Selinger
Yeshiva University - Benjamin N. Cardozo School of Law and Rochester Institute of Technology - Department of Philosophy
10 120 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 273 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
2 265 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
3 156 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
4 142 Optimal Fee-Shifting Bylaws
Albert H. Choi
University of Virginia School of Law
5 124 Signing Without Reading
Gerrit De Geest
Washington University in Saint Louis - School of Law
6 120 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law
7 106 The Expanding Circle of Contract Law
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
8 102 Crowdfunding Investment Contracts
Jack Wroldsen
Oklahoma State University Spears School of Business
9 98 The Illiberty of Contract
Donald J. Smythe
California Western School of Law
10 78 Promissory Estoppel and the Origins of Contract Law
Eric Alden
Northern Kentucky University, Chase College of Law

November 3, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, October 27, 2016

Weekly Top Ten SSRN Contracts Downloads (October 27, 2016)

Top-10-wArrowUp

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 374 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 285 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
3 240 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
4 240 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
5 235 Inside Safe Assets
Anna Gelpern and Erik F. Gerding
Georgetown University Law Center and University of Colorado Law School
6 172 Online RPM and MFN Under Antitrust Law and Economics
Pinar Akman and D. Daniel Sokol
University of Leeds and University of Florida - Levin College of Law
7 136 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
8 133 Tort Reform through the Backdoor: A Critique of Law & Apologies
Yonathan A. Arbel and Yotam Kaplan
Harvard Law School and Hebrew University of Jerusalem
9 126 Engineering Humans with Contracts
Brett M. Frischmann and Evan Selinger
Yeshiva University - Benjamin N. Cardozo School of Law and Rochester Institute of Technology - Department of Philosophy
10 150 Is Privacy Policy Language Irrelevant to Consumers?
Lior Strahilevitz and Matthew B. Kugler
University of Chicago Law School and Northwestern University - Pritzker School of Law

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 374 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 285 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
3 240 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
4 240 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
5 136 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
6 125 Optimal Fee-Shifting Bylaws
Albert H. Choi
University of Virginia School of Law
7 121 Evolution or Intelligent Design? The Variation in Pari Passu Clauses
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
8 111 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law
9 104 The Expanding Circle of Contract Law
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
10 100 Signing Without Reading
Gerrit De Geest
Washington University in Saint Louis - School of Law

October 27, 2016 in Recent Scholarship | Permalink | Comments (0)

Wednesday, October 26, 2016

Scholarship Spotlight: "Trust and Enforcement in Banking, Bitcoin, and the Blockchain" (Catherine Christopher - Texas Tech)

 

Bitcoin_logo1Bitcoin and other alternative currencies have been of particular interest in the contracts scholarly community for many reasons, including the potential elimination of intermediaries in electronic financial transactions and also the possibility of self-enforcing "smart contracts." In both cases, the major touted feature of the blockchain technology underlying bitcoin is that it allows for transactions to be "trustless." Catherine (Cassie) Christopher (Texas Tech) suggests in a new article, however, that the purported lack of need for trust is overblown and that intermediaries still have an important role to play.

Here is Professor Christopher's abstract:

Cassie-christopherBitcoin has long been touted as a currency and a payment system that relies on cryptography and mathematics rather than trust. But is Bitcoin really trustless? And if so, would that be a good thing? This article under-takes a critical deconstruction of Bitcoin and the blockchain, their themes of democracy and transparency, and the idea that they are trustless. The article then proposes a new conceptualization of the role of trust in business and contracting: the bridging model, which allows for a more nuanced understanding of the interplay between enforcement and trust in contract formation. The bridging model is applied first to traditional banking, to illustrate and analyze the enforcement mechanisms underpinning the U.S. dollar as currency and the banking system as a whole, and to demonstrate that the enforcement mechanisms (government backing and regulation) are not as robust as generally believed. The bridging model is then applied to Bitcoin, to show not only that the system requires more trust than is generally understood, but also that both currency and payment systems benefit from the involvement of trusted intermediaries in response to problems and crises.

"The Bridging Model: Exploring the Roles of Trust and Enforcement in Banking, Bitcoin, and the Blockchain" is published in the Nevada Law Review at 17 Nev. L. Rev. 1 (2016), and is available for SSRN download here.

October 26, 2016 in E-commerce, Recent Scholarship, Web/Tech | Permalink | Comments (0)

Thursday, October 20, 2016

Weekly Top Ten SSRN Contracts Downloads (October 20, 2016)

Top-10 Glass

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 367 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 275 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
3 220 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
4 215 Inside Safe Assets
Anna Gelpern and Erik F. Gerding
Georgetown University Law Center and University of Colorado Law School
5 195 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
6 158 Discussion Draft of a Directive on Online Intermediary Platforms
Christoph Busch, Gerhard Dannemann, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, Humboldt University of Berlin - Faculty of Law, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
7 148 Is Privacy Policy Language Irrelevant to Consumers?
Lior Strahilevitz and Matthew B. Kugler
University of Chicago Law School and Northwestern University - Pritzker School of Law
8 128 Tort Reform through the Backdoor: A Critique of Law & Apologies
Yonathan A. Arbel and Yotam Kaplan
Harvard Law School and Hebrew University of Jerusalem
9 118 Engineering Humans with Contracts
Brett M. Frischmann and Evan Selinger
Yeshiva University - Benjamin N. Cardozo School of Law and Rochester Institute of Technology - Department of Philosophy
10 124 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 367 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 275 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
3 220 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
4 217 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
5 195 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
6 124 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
7 117 Evolution or Intelligent Design? The Variation in Pari Passu Clauses
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
8 116 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
9 100 The Expanding Circle of Contract Law
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
10 97 Optimal Fee-Shifting Bylaws
Albert H. Choi
University of Virginia School of Law

October 20, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, October 13, 2016

Weekly Top Ten SSRN Contracts Downloads (October 13, 2016)

Top-10 wStars

 

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 362 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 221 Making America Worse: Jobs and Money at Trump Casinos, 1997-2010
Jonathan C. Lipson
Temple University - James E. Beasley School of Law
3 206 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 152 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
5 146 Is Privacy Policy Language Irrelevant to Consumers?
Lior Strahilevitz and Matthew B. Kugler
University of Chicago Law School and Northwestern University - Pritzker School of Law
6 121 Tort Reform through the Backdoor: A Critique of Law & Apologies
Yonathan A. Arbel and Yotam Kaplan
Harvard Law School and Hebrew University of Jerusalem
7 115 Evolution or Intelligent Design? The Variation in Pari Passu Clauses
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
8 111 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
9 150 Discussion Draft of a Directive on Online Intermediary Platforms
Christoph Busch, Gerhard Dannemann, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, Humboldt University of Berlin - Faculty of Law, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
10 167 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 363 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 214 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
3 206 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 167 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
5 115 Evolution or Intelligent Design? The Variation in Pari Passu Clauses
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
6 111 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
7 99 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
8 90 The Reform of the French Law of Obligations: Les Jeux Sont Faits
Jan M. Smits and Caroline Calomme
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) and Maastricht European Private Law Institute (M-EPLI)
9 84 'All the World's a Stage': The Seven Ages of Unjust Enrichment
Graham Virgo
University of Cambridge - Faculty of Law
10 96 The Expanding Circle of Contract Law
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)

October 13, 2016 in Recent Scholarship | Permalink | Comments (0)

Monday, October 10, 2016

JOTWELL - Contracts section

Exciting news!  JOTWELL (the Journal of Things We Like - Lots!) has a new Contracts section - and it has just gone live!  David Hoffman (Temple) and I are the Section editors.  Aditi Bagchi (Fordham), Dan Barnhizer (Michigan State),  Shawn Bayern (Florida State), Omri Ben-Shahar (Chicago), Martha Ertman (Maryland),  Robert Hillman (Cornell), Hila Keren (Southwestern), Florencia Marotta-Wurgler (NYU), Eboni Nelson (South Carolina), Robert Scott (Columbia), Tess Wilkinson-Ryan (Pennsylvania) and Eyal Zamir (Hebrew University) are contributing editors so expect to see articles from them over the next few months. 

The inaugural article is by Prof. Robert Hillman of Cornell and reviews Aaron Perzanowski & Chris Jay Hoofnagle's article, What We Buy When We Buy Now, (forthcoming U. Pa. L. Rev.).  The article raises interesting issues about ownership of digital "goods" and has already sparked interest in the popular press.

Welcome to the world of contracts JOTWELL!

 

 

October 10, 2016 in Commentary, Contract Profs, Miscellaneous, Recent Scholarship, Web/Tech | Permalink | Comments (0)

Thursday, October 6, 2016

Weekly Top Ten SSRN Contracts Downloads (October 6, 2016)

Top-10 Scrolling

SSRN Top Downloads For SSRN Logo (small)
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 354 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 197 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
3 161 The Puzzle of PDVSA Bond Prices
Paolo Colla, Anna Gelpern and G. Mitu Gulati
Bocconi University - Department of Finance, Georgetown University Law Center and Duke University School of Law
4 146 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
5 134 Is Privacy Policy Language Irrelevant to Consumers?
Lior Strahilevitz and Matthew B. Kugler
University of Chicago Law School and Northwestern University - Pritzker School of Law
6 120 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
7 119 Discussion Draft of a Directive on Online Intermediary Platforms
Christoph Busch, Gerhard Dannemann, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, Humboldt University of Berlin - Faculty of Law, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
8 116 Tort Reform through the Backdoor: A Critique of Law & Apologies
Yonathan A. Arbel and Yotam Kaplan
Harvard Law School and Hebrew University of Jerusalem
9 110 Evolution or Intelligent Design? The Variation in Pari Passu Clauses
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
10 109 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law

 

SSRN Top Downloads For SSRN Logo (small)
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 354 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 210 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
3 197 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 120 The Law of Smart Contracts
Max Raskin
New York University (NYU), School of Law
5 110 Evolution or Intelligent Design? The Variation in Pari Passu Clauses
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
6 109 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
7 94 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
8 90 The Expanding Circle of Contract Law
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
9 75 Ordinary Contract Principles
Robert A. Hillman
Cornell Law School
10 62 Human Rights and English Contract Law: Parallel Worlds?
Francois du Bois
University of Leicester - School of Law

October 6, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, September 29, 2016

Weekly Top Ten SSRN Contracts Downloads (September 29, 2016)

Top-ten-books

SSRN Top Downloads For SSRN Logo (small)
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 336 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 190 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
3 161 The Puzzle of PDVSA Bond Prices
Paolo Colla, Anna Gelpern and G. Mitu Gulati
Bocconi University - Department of Finance, Georgetown University Law Center and Duke University School of Law
4 142 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
5 122 Is Privacy Policy Language Irrelevant to Consumers?
Lior Strahilevitz and Matthew B. Kugler
University of Chicago Law School and Northwestern University - Pritzker School of Law
6 114 Tort Reform through the Backdoor: A Critique of Law & Apologies
Yonathan A. Arbel and Yotam Kaplan
Harvard Law School and Hebrew University of Jerusalem
7 106 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
8 104 Discussion Draft of a Directive on Online Intermediary Platforms
Christoph Busch, Gerhard Dannemann, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, Humboldt University of Berlin - Faculty of Law, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
9 95 Engineering Humans with Contracts
Brett M. Frischmann and Evan Selinger
Yeshiva University - Benjamin N. Cardozo School of Law and Rochester Institute of Technology - Department of Philosophy
10 93 Consumer Protection in the Age of Big Data
Max N. Helveston
DePaul University - College of Law

 

SSRN Top Downloads For SSRN Logo (small)
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 336 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 209 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
3 190 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 106 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
5 92 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
6 87 Evolution or Intelligent Design? The Variation in Pari Passu Clauses
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
7 86 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
8 85 The Expanding Circle of Contract Law
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
9 71 Ordinary Contract Principles
Robert A. Hillman
Cornell Law School
10 56 Promissory Estoppel and the Origins of Contract Law
Eric Alden
Northern Kentucky University, Chase College of Law

September 29, 2016 in Recent Scholarship | Permalink | Comments (0)

Friday, September 23, 2016

Scholarship Spotlight: Is Privacy Policy Language Irrelevant to Consumers? (Lior Strahilevitz - Chicago & Matthew B. Kugler - Northwestern)

Privacy PolcyAuthors' Abstract:      

Consumers almost never read privacy policies, but if they did read such policies closely how would they interpret them? This article reports the results of two experiments in which census-weighted samples of more than a thousand Americans read short excerpts from Facebook, Yahoo, and Google’s privacy policies concerning the use of facial recognition software and automated content analysis on emails. The question of what consumers have consented to under these policies has been central in recent high-stakes class action lawsuits. Experimental subjects were randomly assigned to read language from either the current policies, which explicitly describe Facebook, Yahoo, and Google’s controversial practices, or language from policies that were adjudicated to be insufficient to notify consumers about the companies’ practices. Despite evidence that many experimental subjects read these privacy policy excerpts closely, subjects who saw the explicit policy language and those who saw the ambiguous/vague policy language did not differ in their assessment of whether their assent to that language would allow Facebook, Yahoo, and Google to engage in the practices at issue. More surprisingly still, even though consumers rated both Facebook’s use of facial recognition software and Google and Yahoo’s use of automated content analysis as highly intrusive, they generally regarded their assent to even vague privacy policy language as allowing the companies to engage in those practices. Also, only a little more than a third of the participants expressed a willingness to pay any money to avoid automated content analysis of their emails. A replication study that included strong measures of participant attention confirmed the results from the first experiment and suggests that those reading the policies more carefully were not more likely to draw distinctions between them.

Our study shows that courts and laypeople can understand the same privacy policy language quite differently. Taken together, these results provide important evidence for the propositions that (1) social norms and user experiences with technological applications, not privacy policies, will drive users’ understanding of the nature of their bargain with firms, that (2) this is the case even when users read those policies reasonably carefully, that (3) most users of email and social networking sites believe that Facebook, Yahoo, and Google are authorized to engage in controversial and invasive practices implicating user privacy, and that (4) there is presently little reason to expect the development of a robust market for premium privacy-protective email and social networking applications in the United States.
 

 

September 23, 2016 in Recent Scholarship | Permalink | Comments (1)

Thursday, September 22, 2016

Weekly Top Ten SSRN Contracts Downloads (September 22, 2016)

Top-10-gold-logo

SSRN Top Downloads For SSRN Logo (small)
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 328 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 174 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
3 161 The Puzzle of PDVSA Bond Prices
Paolo Colla, Anna Gelpern and G. Mitu Gulati
Bocconi University - Department of Finance, Georgetown University Law Center and Duke University School of Law
4 139 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
5 102 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
6 100 Discussion Draft of a Directive on Online Intermediary Platforms
Christoph Busch, Gerhard Dannemann, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, Humboldt University of Berlin - Faculty of Law, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
7 86 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
8 86 Consumer Protection in the Age of Big Data
Max N. Helveston
DePaul University - College of Law
9 104 Tort Reform through the Backdoor: A Critique of Law & Apologies
Yonathan A. Arbel and Yotam Kaplan
Harvard Law School and Hebrew University of Jerusalem
10 91 Is Privacy Policy Language Irrelevant to Consumers?
Lior Strahilevitz and Matthew B. Kugler
University of Chicago Law School and Northwestern University - Pritzker School of Law


SSRN Top Downloads For SSRN Logo (small)
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 328 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 206 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
3 174 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 102 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
5 90 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
6 86 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
7 82 The Expanding Circle of Contract Law
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
8 79 Evolution or Intelligent Design? The Variation in Pari Passu Clauses
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
9 62 Ordinary Contract Principles
Robert A. Hillman
Cornell Law School
10 55 The Enforceability of Escalation Clauses Providing for Negotiations in Good Faith Under English Law
Oliver Krauss
Latham & Watkins

September 22, 2016 in Recent Scholarship | Permalink | Comments (0)

Friday, September 16, 2016

Weekly Top Ten SSRN Contracts Downloads (September 16, 2016)

A day late this week, but just as good as (or better than!) ever:

Top10-speech bubble


SSRN Top Downloads For SSRN Logo (small)
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 313 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 160 The Puzzle of PDVSA Bond Prices
Paolo Colla, Anna Gelpern and G. Mitu Gulati
Bocconi University - Department of Finance, Georgetown University Law Center and Duke University School of Law
3 160 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 134 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
5 97 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
6 89 Are Validation Notices Valid? An Empirical Evaluation of Consumer Understanding of Debt Collection Validation Notices
Jeff Sovern and Kate E. Walton
St. John's University - School of Law and St. John's University - Department of Psychology
7 87 Discussion Draft of a Directive on Online Intermediary Platforms
Christoph Busch, Gerhard Dannemann, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, Humboldt University of Berlin - Faculty of Law, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
8 82 Consumer Protection in the Age of Big Data
Max N. Helveston
DePaul University - College of Law
9 82 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
10 79 Will the Supreme Court Agree with the NLRB that Pre-Dispute Employment Arbitration Provisions Containing Class and Collective Action Waivers in Both Judicial and Arbitral Forums Violate the National Labor Relations Act – Whether There is an Opt-Out or Not?
Christine Neylon O'Brien
Boston College - Carroll School of Management

 

SSRN Top Downloads For SSRN Logo (small)
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 313 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 196 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
3 160 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 97 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
5 86 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
6 82 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
7 76 The Expanding Circle of Contract Law
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
8 55 Ordinary Contract Principles
Robert A. Hillman
Cornell Law School
9 53 Evolution or Intelligent Design? The Variation in Pari Passu Clauses
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
10 52 The Enforceability of Escalation Clauses Providing for Negotiations in Good Faith Under English Law
Oliver Krauss
Latham & Watkins

September 16, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, September 8, 2016

Weekly Top Ten SSRN Contracts Downloads (September 8, 2016)

Top10DeskSign

 

SSRN Top Downloads For SSRN Logo (small)
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 289 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 213 The Mystery of Mutual Insurers in Lawyers Professional Liability Insurance
Tom Baker and Rick Swedloff
University of Pennsylvania Law School and Rutgers Law School
3 187 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
4 156 The Puzzle of PDVSA Bond Prices
Paolo Colla, Anna Gelpern and G. Mitu Gulati
Bocconi University - Department of Finance, Georgetown University Law Center and Duke University School of Law
5 120 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
6 90 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
7 88 Are Validation Notices Valid? An Empirical Evaluation of Consumer Understanding of Debt Collection Validation Notices
Jeff Sovern and Kate E. Walton
St. John's University - School of Law and St. John's University - Department of Psychology
8 80 Sovereign Debt: Now What?
Anna Gelpern
Georgetown University Law Center
9 92 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
10 141 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law

 

SSRN Top Downloads For SSRN Logo (small)
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 289 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 187 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
3 141 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 92 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
5 90 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
6 85 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
7 76 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
8 68 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School
9 63 The 2016 Rules of the Australian Centre for International Commercial Arbitration: Towards Further ‘Cultural Reform’
Malcolm Holmes, Luke R. Nottage and Robert Tang
Eleven Wentworth, University of Sydney - Faculty of Law and Allen & Overy LLP
10 61 Taking Stewart Macaulay and Hugh Collins Seriously
John Gava
Adelaide Law School

September 8, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, September 1, 2016

Weekly Top Ten SSRN Contracts Downloads (September 1, 2016)

Special kudos this week to ContractsProf Blog Editor-in-Chief Myanna Dellinger for making both of this week's Top Ten lists! Now, without further ado:

TopTen Stamp-808x455

 

SSRN Top Downloads For SSRN Logo (small)
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 238 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 211 The Mystery of Mutual Insurers in Lawyers Professional Liability Insurance
Tom Baker and Rick Swedloff
University of Pennsylvania Law School and Rutgers Law School
3 173 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
4 153 The Puzzle of PDVSA Bond Prices
Paolo Colla, Anna Gelpern and G. Mitu Gulati
Bocconi University - Department of Finance, Georgetown University Law Center and Duke University School of Law
5 128 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
6 116 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
7 94 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
8 87 Are Validation Notices Valid? An Empirical Evaluation of Consumer Understanding of Debt Collection Validation Notices
Jeff Sovern and Kate E. Walton
St. John's University - School of Law and St. John's University - Department of Psychology
2016
9 86 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
10 82 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law

 


SSRN Top Downloads For SSRN Logo (small)
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 239 Choice of Forum Agreements Under the Brussels I Recast and Under the Hague Convention: Coherences and Clashes
Matthias Weller
EBS Universität für Wirtschaft und Recht
2 173 Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy
Myanna F. Dellinger
University of South Dakota Law School
3 128 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
4 128 Does High Auditor Litigation Risk Discourage Corporate Innovation?
Mahfuz Chy and Ole-Kristian Hope
University of Toronto, Rotman School of Management, Students and University of Toronto - Rotman School of Management
5 94 The Myth of Free
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
6 86 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
7 82 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
8 78 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
9 72 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
10 66 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School

September 1, 2016 in Recent Scholarship | Permalink | Comments (0)

Monday, August 29, 2016

“Trophy hunting” contracts – unenforceable for reasons of public policy

Allow me to highlight my most recent article on the questionable ecosystem viability and contractual common law validity of so-called “trophy hunting” contracts. With these contracts, wealthy individuals in or from, often, the Global North contract for assistance in hunting rare animals for “sport.” Often, these hunts takes place in the Global South where targeted species include giraffes, rhinos, lions, and other vulnerable if not outright threatened or endangered species.  Images
A famous example of this is Minnesota dentist Walter Palmer killing “Cecil the Lion” in 2015 causing widespread outcry in this country and around the world. Trophy hunting also takes place in the USA and Canada, where targeted animals include polar bears, grizzly bears, and big horn sheep.

Trophy hunting should be seen on the background of an unprecedented rate of species extinction caused by several factors. Some affected species are already gone; others are about to follow. Western black rhinoceroses, for example, are already considered to have become extinct in 2011.   The rest of the African rhinoceros population may follow suit within the next twenty years if not sufficiently protected. In the meantime, more than 1.2 million “trophies” of over 1,200 different kinds of animals were imported into the United States just between 2004 and 2015. In addition to the extinction problem, the practice may also have ecosystem impacts because, among many other factors, the trophies often stem from or consist of alpha animals.

UnknownOf course, no one is arguing that rare species should be driven to extinction, in fact, quite the opposite: both trophy hunters and those opposing the practice agree that such species should be conserved for the future. However, the question lies in how to do so. Some argue that trophy hunting creates not only highly needed revenue for some nations, but also brings more attention to the species conservation issue.

I argue that at least until there is much greater certainty than what is currently the case that the practice truly does help the species in the long run (and we don’t have much time for “the long run”!), legal steps must be taken against the trophy hunting. Even when positive law such as hunting laws and/or the Endangered Species Act (“ESA”) do not address the issue (yet), common law courts may declare contracts that have proved to be “deleterious effect upon society as a whole,” “unsavory,” “undesirable,” “nefarious,” or “at war with the interests of society” unenforceable for reasons of public policy. Images-2

In the case of Cecil, African lions had been proposed for listing under the ESA when the animal was killed, but the listing did not take effect until a few months later. The case, others like it, and several studies demonstrate that a sufficient and sufficiently broad segment of the population have come to find the killing of very rare animals so reprehensible that common law courts can declare them unenforceable should litigation on the issue arise. This has been the case with many other contracts over time. The same has come to be the case with trophy hunting. As long as doubt exists as to the actual desirability of the practice from society’s point of view – not that of a select wealthy individuals – the precautionary principle of law calls for nations to err on the side of caution. The United States prescribes to this principle as well.

The article also analyzes how different values such as intrinsic and existence values should be taken into account in attempts to monetize the “value” of the practice. Instead of the here-and-now cash that may contribute to local economies (much revenue is also lost to corruption in some nations), other practices such as photo safaris are found by several studies to contribute more, especially in the long term. (Note that Walter Palmer paid a measly USD 50,000 for his contract with the landowner and local hunting guide).

Finally, the article draws in arguments under the public trust doctrine and the state ownership of wildlife doctrine. Ethically, these animals belong to all of us (or none of us). Images-1

Trying to save rare animals by shooting them simply flies in the face of common sense. It also very arguably violates notions of national and international law.

August 29, 2016 in Commentary, Current Affairs, Famous Cases, In the News, Legislation, Recent Scholarship, Science, Travel, True Contracts | Permalink | Comments (0)

Thursday, August 25, 2016

Weekly Top Ten SSRN Contracts Downloads (August 25, 2016)

Top-10

SSRN Top Downloads For SSRN Logo (small)
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 206 The Mystery of Mutual Insurers in Lawyers Professional Liability Insurance
Tom Baker and Rick Swedloff
University of Pennsylvania Law School and Rutgers Law School
2 149 The Puzzle of PDVSA Bond Prices
Paolo Colla, Anna Gelpern and G. Mitu Gulati
Bocconi University - Department of Finance, Georgetown University Law Center and Duke University School of Law 
3 123 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
4 89 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
5 86 Are Validation Notices Valid? An Empirical Evaluation of Consumer Understanding of Debt Collection Validation Notices
Jeff Sovern and Kate E. Walton
St. John's University - School of Law and St. John's University - Department of Psychology
6 83 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
7 82 Contractual Arbitrage
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
8 75 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
9 75 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
10 69 Consumer Protection in the Age of Big Data
Max N. Helveston
DePaul University - College of Law

 

SSRN Top Downloads For SSRN Logo (small)
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 123 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
2 112 Does High Auditor Litigation Risk Discourage Corporate Innovation?
Mahfuz Chy and Ole-Kristian Hope
University of Toronto, Rotman School of Management, Students and University of Toronto - Rotman School of Management
3 83 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
4 82 Contractual Arbitrage
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
5 75 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
6 75 Causa and Consideration – A Comparative Overview
Dimitar Stoyanov
New Bulgarian University, Department of Law
7 74 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
8 68 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
9 65 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School
10 56 Taking Stewart Macaulay and Hugh Collins Seriously
John Gava
Adelaide Law School

August 25, 2016 in Recent Scholarship | Permalink | Comments (0)

Sunday, August 21, 2016

Scholarship Spotlight - "Undermining Justice: The Two Rises of Freedom of Contract and the Fall of Equity" (Hila Keren - Southwestern Law School)

Voldemort-SpellThe number of United States Supreme Court cases whose names have crossed over into becoming widespread epithets is relatively few, but the leading contender from this group that also has contract-law implications is surely Lochner v. New York. Indeed, in a fit Harry Potter-inspired analysis a few years ago (which you can read here if you are so inclined), I actually had the chance to write:

Lochner!” cried Voldemort, striking the bakery workers with a bolt of green light. . . . Harry had seen Professor Moody demonstrate the Unforgivable Doctrines, but nothing in the classroom prepared him to see substantive due process used on human beings.

More recently and more seriously, however, Hila Keren at Southwestern Law School has raised the possibility of "neoliberal-Lochnerism" at the intersection of the doctrines of arbitration and freedom of contract. She suggests that the result can be unjust in the same vein as were the much castigated doctrines of the early twentieth century. Here is her abstract:

 

Hila Keren (Southwestern)This article explores a crucial moment in American legal history, known as the Lochner era, in which the rise of freedom of contract was sharp enough to defeat equity concerns, and then argues that a second rise of the freedom of contract has recently been developed by the Supreme Court in the domain of arbitration agreements. It contends that this second rise is not only a revival of Lochnerism but also, and more so, what the article names “neoliberal-Lochnerism”: a process of legal dissemination of neoliberal common sense outside of the world of contracts. Via close reading of leading recent cases, the article demonstrates that the genus of arbitration agreements now allowed by the US Supreme Court represents an assault on fairness, morality, and justice that is larger than the eye can see at first glance. The result, it is argued, is “law without equity”, a form of neoliberal jurisprudence that allows, and even incentivizes, humans who have accumulated enough power to act opportunistically. Without equity’s restraining power, the article concludes, those possessing a combination of economic means, political influence, and intellectual sophistication can and will exploit the legal rules to undermine justice.

Professor Keren's article, "Undermining Justice: The Two Rises of Freedom of Contract and the Fall of Equity," has been published in the Canadian Journal of Comparative and Contemporary Law and is available for SSRN download here.

August 21, 2016 in Recent Scholarship | Permalink | Comments (0)