ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, April 27, 2017

Weekly Top Ten SSRN Contracts and Commercial Law Downloads (April 27, 2017)

Top-10-wArrowUp

 

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

RECENT TOP PAPERS for all papers first announced in the last 60 days
26 Feb 2017 through 27 Apr 2017

Rank Downloads Paper Title
1 278 Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation
Annemarie Bridy
University of Idaho College of Law
2 254 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 232 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
4 205 'No Money Down' Bankruptcy
Pamela Foohey, Robert M. Lawless, Katherine M. Porter and Deborah Thorne
Indiana University Maurer School of Law, University of Illinois College of Law, University of California - Irvine School of Law and Ohio University - Department of Sociology
5 199 Understanding the Consumer Review Fairness Act of 2016
Eric Goldman
Santa Clara University - School of Law
6 174 Massively Discretionary Trusts
Lionel Smith
McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law
7 164 Self-Driving Contracts
Anthony J. Casey and Anthony Niblett
University of Chicago Law School and University of Toronto - Faculty of Law
8 157 Contracts Ex Machina
Kevin D. Werbach and Nicolas Cornell
University of Pennsylvania, The Wharton School, Legal Studies & Business Ethics Department and University of Pennsylvania - The Wharton School, Legal Studies & Business Ethics Department
9 154 Once Upon a Car: A Tale of Three Ambiguities
Mark Cooney
Western Michigan University Cooley Law School
10 136 A New Perspective on FRAND Royalties: Unwired Planet v. Huawei
Jorge L. Contreras
University of Utah - S.J. Quinney College of Law

 

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

RECENT TOP PAPERS for all papers first announced in the last 60 days
26 Feb 2017 through 27 Apr 2017

Rank Downloads Paper Title
1 260 טעות בכדאיות העסקה: שווי האובייקט, התפתחויות עתידיות, נטילת סיכון ורשלנות הטועה (Mistake as to the Worthwhileness of the Transaction: The Object's Value, Future Developments, Assumption of Risk, and Negligence)
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
2 254 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 232 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
4 182 The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases
Thomas Stipanowich and Veronique Fraser
Pepperdine University School of Law and Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD)
5 164 Self-Driving Contracts
Anthony J. Casey and Anthony Niblett
University of Chicago Law School and University of Toronto - Faculty of Law
6 158 Contracts Ex Machina
Kevin D. Werbach and Nicolas Cornell
University of Pennsylvania, The Wharton School, Legal Studies & Business Ethics Department and University of Pennsylvania - The Wharton School, Legal Studies & Business Ethics Department
7 154 Once Upon a Car: A Tale of Three Ambiguities
Mark Cooney
Western Michigan University Cooley Law School
8 134 What a Contract Has Joined Together Let No Court Cast Asunder: Abolishing Separability and Codifying the Scope of the Provisions of Arbitration Agreements
Taylor Payne and Richard A. Bales
Ohio Northern University, Pettit College of Law, Students and Ohio Northern University - Pettit College of Law
9 112 Boilerplate and Default Rules in Wills Law: An Empirical Analysis
David Horton and Reid K. Weisbord
University of California, Davis - School of Law and Rutgers Law School
10 109 Thinking in Terms of Contract Defences
Andrew D. Dyson, James Goudkamp and Frederick Wilmot-Smith
University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and University of Oxford - Faculty of Law

April 27, 2017 in Recent Scholarship | Permalink

Monday, April 24, 2017

Scholarship Spotlight: "What Did They Know and When Did They Know it? Pretesting and Assessing Learning Outcomes" (Jeffrey Harrison - Florida)

How far does the teaching of contract doctrine take students beyond their initial intuitive view of the applicable legal rules? Jeffrey Lynch Harrison of the University of Florida - Levin College of Law recently posted "What Did They Know and When Did They Know it? Pretesting and Assessing Learning Outcomes," an article that should be of interest to anyone teaching the first-year Contracts course. Here is the abstract:

Jeffrey Harrison (Florida(Abstract

Are legal rules intuitive or, at least, consistent with common sense? In this study, 260 law students at five law schools who had not taken contract law, were presented with eight questions based on specific contracts cases or common contracts issues. They were asked what they felt was the fair or right answer to each question and to formulate the rule they would apply. The purposes of the study were to 1) determine whether contract law is what the untrained person believes it is or should be and 2) experiment with a strategy of pretesting to determine what topics within any course deserve special attention during a semester.

Outside of its classroom implications, Harrison's article also provides some interesting fodder on the issue of the extent to which legal rules in general are--or must be--dependent on given zones of societal norms. "What Did They Know and When Did They Know it? Pretesting and Assessing Learning Outcomes" is available for SSRN download here.

 

April 24, 2017 in Recent Scholarship, Teaching | Permalink | Comments (0)

Thursday, April 20, 2017

Weekly Top Ten SSRN Contracts and Commercial Law Downloads (April 20, 2017)

Top-10 Cube Letters

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

RECENT TOP PAPERS for all papers first announced in the last 60 days
19 Feb 2017 through 20 Apr 2017

Rank Downloads Paper Title
1 271 Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation
Annemarie Bridy
University of Idaho College of Law
2 245 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 224 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
4 207 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
5 191 Understanding the Consumer Review Fairness Act of 2016
Eric Goldman
Santa Clara University - School of Law
6 188 'No Money Down' Bankruptcy
Pamela Foohey, Robert M. Lawless, Katherine M. Porter and Deborah Thorne
Indiana University Maurer School of Law, University of Illinois College of Law, University of California - Irvine School of Law and Ohio University - Department of Sociology
7 161 Massively Discretionary Trusts
Lionel Smith
McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law
8 160 Conceptualizing Cryptolaw
Carla L. Reyes
Stetson University College of Law
9 146 Self-Driving Contracts
Anthony J. Casey and Anthony Niblett
University of Chicago Law School and University of Toronto - Faculty of Law
10 141 Once Upon a Car: A Tale of Three Ambiguities
Mark Cooney
Western Michigan University Cooley Law School

 

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

RECENT TOP PAPERS for all papers first announced in the last 60 days
19 Feb 2017 through 20 Apr 2017

Rank Downloads Paper Title
1 259 טעות בכדאיות העסקה: שווי האובייקט, התפתחויות עתידיות, נטילת סיכון ורשלנות הטועה (Mistake as to the Worthwhileness of the Transaction: The Object's Value, Future Developments, Assumption of Risk, and Negligence)
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
2 245 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 224 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
4 207 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
5 175 The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases
Thomas Stipanowich and Veronique Fraser
Pepperdine University School of Law and Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD)
6 146 Self-Driving Contracts
Anthony J. Casey and Anthony Niblett
University of Chicago Law School and University of Toronto - Faculty of Law
7 141 Once Upon a Car: A Tale of Three Ambiguities
Mark Cooney
Western Michigan University Cooley Law School
8 140 Contracts Ex Machina
Kevin D. Werbach and Nicolas Cornell
University of Pennsylvania, The Wharton School, Legal Studies & Business Ethics Department and University of Pennsylvania - The Wharton School, Legal Studies & Business Ethics Department
9 130 What a Contract Has Joined Together Let No Court Cast Asunder: Abolishing Separability and Codifying the Scope of the Provisions of Arbitration Agreements
Taylor Payne and Richard A. Bales
Ohio Northern University, Pettit College of Law, Students and Ohio Northern University - Pettit College of Law
10 109 Boilerplate and Default Rules in Wills Law: An Empirical Analysis
David Horton and Reid K. Weisbord
University of California, Davis - School of Law and Rutgers Law School

April 20, 2017 in Recent Scholarship | Permalink | Comments (0)

Thursday, April 13, 2017

Weekly Top Ten SSRN Contracts and Commercial Law Downloads (April 13, 2017)

Top-10-gold-logo

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

RECENT TOP PAPERS for all papers first announced in the last 60 days
12 Feb 2017 through 13 Apr 2017

Rank Downloads Paper Title
1 262 Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation
Annemarie Bridy
University of Idaho College of Law
2 232 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 221 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
4 194 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
5 185 'No Money Down' Bankruptcy
Pamela Foohey, Robert M. Lawless, Katherine M. Porter and Deborah Thorne
Indiana University Maurer School of Law, University of Illinois College of Law, University of California - Irvine School of Law and Ohio University - Department of Sociology
6 184 Understanding the Consumer Review Fairness Act of 2016
Eric Goldman
Santa Clara University - School of Law
7 178 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
8 151 Massively Discretionary Trusts
Lionel Smith
McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law
9 142 Conceptualizing Cryptolaw
Carla L. Reyes
Stetson University College of Law
10 131 Self-Driving Contracts
Anthony J. Casey and Anthony Niblett
University of Chicago Law School and University of Toronto - Faculty of Law

 


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

RECENT TOP PAPERS for all papers first announced in the last 60 days
12 Feb 2017 through 13 Apr 2017

Rank Downloads Paper Title
1 256 טעות בכדאיות העסקה: שווי האובייקט, התפתחויות עתידיות, נטילת סיכון ורשלנות הטועה (Mistake as to the Worthwhileness of the Transaction: The Object's Value, Future Developments, Assumption of Risk, and Negligence)
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
2 232 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 221 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
4 194 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
5 178 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
6 167 The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases
Thomas Stipanowich and Veronique Fraser
Pepperdine University School of Law and Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD)
7 131 Self-Driving Contracts
Anthony J. Casey and Anthony Niblett
University of Chicago Law School and University of Toronto - Faculty of Law
8 127 Once Upon a Car: A Tale of Three Ambiguities
Mark Cooney
Western Michigan University Cooley Law School
9 121 What a Contract Has Joined Together Let No Court Cast Asunder: Abolishing Separability and Codifying the Scope of the Provisions of Arbitration Agreements
Taylor Payne and Richard A. Bales
Ohio Northern University, Pettit College of Law, Students and Ohio Northern University - Pettit College of Law
10 111 Contracts Ex Machina
Kevin D. Werbach and Nicolas Cornell
University of Pennsylvania, The Wharton School, Legal Studies & Business Ethics Department and University of Pennsylvania - The Wharton School, Legal Studies & Business Ethics Department

 

April 13, 2017 in Recent Scholarship | Permalink | Comments (0)

Thursday, April 6, 2017

Weekly Top Ten SSRN Contracts and Commercial Law Downloads (April 6, 2017)

Top10-Granite

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

RECENT TOP PAPERS for all papers first announced in the last 60 days
5 Feb 2017 through 6 Apr 2017

Rank Downloads Paper Title
1 250 Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation
Annemarie Bridy
University of Idaho College of Law
2 226 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 217 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
4 215 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
5 186 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
6 180 Understanding the Consumer Review Fairness Act of 2016
Eric Goldman
Santa Clara University - School of Law
7 176 What Brexit Means for the Interpretation and Drafting of Financial Contracts
Matthias Lehmann and Nihal Dsouza
University of Bonn and University of Bonn
8 175 'No Money Down' Bankruptcy
Pamela Foohey, Robert M. Lawless, Katherine M. Porter and Deborah Thorne
Indiana University Maurer School of Law, University of Illinois College of Law, University of California - Irvine School of Law and Ohio University - Department of Sociology
9 173 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
10 141 Massively Discretionary Trusts
Lionel Smith
McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law

 

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

RECENT TOP PAPERS for all papers first announced in the last 60 days
5 Feb 2017 through 6 Apr 2017

Rank Downloads Paper Title
1 255 טעות בכדאיות העסקה: שווי האובייקט, התפתחויות עתידיות, נטילת סיכון ורשלנות הטועה (Mistake as to the Worthwhileness of the Transaction: The Object's Value, Future Developments, Assumption of Risk, and Negligence)
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
2 226 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 217 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
4 215 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
5 186 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
6 173 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
7 157 The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases
Thomas Stipanowich and Veronique Fraser
Pepperdine University School of Law and Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD)
8 119 Self-Driving Contracts
Anthony J. Casey and Anthony Niblett
University of Chicago Law School and University of Toronto - Faculty of Law
9 104 Once Upon a Car: A Tale of Three Ambiguities
Mark Cooney
Western Michigan University Cooley Law School
10 103 Boilerplate and Default Rules in Wills Law: An Empirical Analysis
David Horton and Reid K. Weisbord
University of California, Davis - School of Law and Rutgers Law School

April 6, 2017 in Recent Scholarship | Permalink | Comments (0)

Thursday, March 30, 2017

Weekly Top Ten SSRN Contracts Downloads (March 30, 2017)

Top-10-wArrowUp

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

RECENT TOP PAPERS for all papers first announced in the last 60 days
29 Jan 2017 through 30 Mar 2017

Rank Downloads Paper Title
1 300 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law
2 242 Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation
Annemarie Bridy
University of Idaho College of Law
3 219 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
4 211 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
5 202 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
6 180 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
7 171 Understanding the Consumer Review Fairness Act of 2016
Eric Goldman
Santa Clara University - School of Law 
8 167 What Brexit Means for the Interpretation and Drafting of Financial Contracts
Matthias Lehmann and Nihal Dsouza
University of Bonn and University of Bonn
9 166 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
10 161 'No Money Down' Bankruptcy
Pamela Foohey, Robert M. Lawless, Katherine M. Porter and Deborah Thorne
Indiana University Maurer School of Law, University of Illinois College of Law, University of California - Irvine School of Law and Ohio University - Department of Sociology

 

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

RECENT TOP PAPERS for all papers first announced in the last 60 days
29 Jan 2017 through 30 Mar 2017

Rank Downloads Paper Title
1 300 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law
2 255 טעות בכדאיות העסקה: שווי האובייקט, התפתחויות עתידיות, נטילת סיכון ורשלנות הטועה (Mistake as to the Worthwhileness of the Transaction: The Object's Value, Future Developments, Assumption of Risk, and Negligence)
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
3 219 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
4 211 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
5 202 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
6 180 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
7 166 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School 
8 150 The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases
Thomas Stipanowich and Veronique Fraser
Pepperdine University School of Law and Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD)
9 102 Self-Driving Contracts
Anthony J. Casey and Anthony Niblett
University of Chicago Law School and University of Toronto - Faculty of Law
10 101 What a Contract Has Joined Together Let No Court Cast Asunder: Abolishing Separability and Codifying the Scope of the Provisions of Arbitration Agreements
Taylor Payne and Richard A. Bales
Ohio Northern University, Pettit College of Law, Students and Ohio Northern University - Pettit College of Law

 

March 30, 2017 in Recent Scholarship | Permalink | Comments (0)

Monday, March 27, 2017

Scholarship Spotlight: "Laws as Implied Contract Terms" (Steven W. Feldman - U.S. Army Corps of Engineers)

We at ContractsProf Blog love to highlight recent scholarship by our readers! If you are the author of a recent work of contracts or commercial law scholarship that you have posted on SSRN, send me (Mark Edwin Burge) a copy of your abstract along with an SSRN link, and we may spotlight your work here. Today's spotlight is on a new article by Steven W. Feldman.

Spotlight2

Laws as Implied Contract Terms: The Divergent Approaches and a Proposed Solution

University of Pennsylvania, Journal of Business Law, Vol. 19 Issue No. 4, Forthcoming

Steven W. Feldman (U.S. Army Corps of Engineers)

Available at SSRN: https://ssrn.com/abstract=2926643

Abstract

The great majority of state and federal courts accept the common law rule that courts in construing contracts may incorporate relevant, unmentioned laws as implied contract terms. Dating back to the early nineteenth century, this principle of contract construction is said to be a basic legal concept of longstanding and accepted use. 

SteveFeldmanDespite the doctrine’s pervasive theoretical and practical importance as a silent factor in every contract, courts have failed to articulate a consistent, convincing policy and doctrinal rationale. Most courts also have overlooked numerous doctrinal deficiencies, gaps, and contradictions and they have not acknowledged the decisions restricting or even rejecting the precept. Similarly, no commentator has provided an in-depth treatment even though there are nearly 1200 decisions on this topic.

This Article is the first effort in the literature to undertake a comprehensive descriptive and normative analysis of what will be called the “implied incorporation doctrine.” Replete with presumptions and legal fictions, the principle is an uneasy merger of the rules of statutory and contract construction. This problematic melding of statutory and contractual principles is the main reason for the divergent approaches and doctrinal contradictions. After canvassing the key issues surrounding the principle, I will propose a uniform formulation that better maintains the legal and logical differences between laws and contract.

March 27, 2017 in Recent Scholarship | Permalink | Comments (0)

Thursday, March 23, 2017

Weekly Top Ten SSRN Contracts Downloads (March 23, 2017)

Top-ten-green

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

RECENT TOP PAPERS for all papers first announced in the last 60 days
22 Jan 2017 through 23 Mar 2017

Rank Downloads Paper Title
1 278 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law
2 236 Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation
Annemarie Bridy
University of Idaho College of Law
3 207 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
4 197 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
5 187 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
6 175 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
7 162 What Brexit Means for the Interpretation and Drafting of Financial Contracts
Matthias Lehmann and Nihal Dsouza
University of Bonn and University of Bonn
8 161 Understanding the Consumer Review Fairness Act of 2016
Eric Goldman
Santa Clara University - School of Law
9 157 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
10 148 Comparative Contract Law and Development: The Missing Link?
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo

 

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

RECENT TOP PAPERS for all papers first announced in the last 60 days
22 Jan 2017 through 23 Mar 2017

Rank Downloads Paper Title
1 278 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law
2 252 טעות בכדאיות העסקה: שווי האובייקט, התפתחויות עתידיות, נטילת סיכון ורשלנות הטועה (Mistake as to the Worthwhileness of the Transaction: The Object's Value, Future Developments, Assumption of Risk, and Negligence)
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
3 207 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
4 197 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
5 187 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
6 175 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
7 157 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
8 148 Comparative Contract Law and Development: The Missing Link?
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
9 137 The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases
Thomas Stipanowich and Veronique Fraser
Pepperdine University School of Law and Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD)
10 135 Contracting Over Privacy: Introduction
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School

March 23, 2017 in Recent Scholarship | Permalink | Comments (0)

Wednesday, March 22, 2017

Robert Brain (Loyola Los Angeles) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

KCON12-Logo

A PROPOSAL TO ELIMINATE UCC § 2-315

Robert Brain, Loyola Law School, Los Angeles

            It is my contention that UCC § 2-315, the provision on the implied warranty of fitness for a particular purpose, is: (1) unnecessary; and (2) causes more problems than it solves.  As such, I believe it should be eliminated from the UCC.

Bob Brain (Loyola LA)             The implied warranty of fitness for a particular purpose is unnecessary because a fitness case is, in truth, an express warranty case and can be analyzed under § 2-312.  The only difference from what the Code now recognizes as an express warranty situation and a fitness situation is that the attribute of the good comes initially from the buyer and not the seller.  However, in both cases that parties are contracting based on a shared belief that the good has certain, specified (not implied) qualities.  This can be seen by the two situations below:

             Situation One: A scuba diver walks into a dive shop, looking for a watch that will be waterproof down to 200 feet. She tells the sales associate that she’s looking for a watch for a deep dive.  The clerk says, “This one is guaranteed to be watertight down to 200 feet.” She buys the watch.

             Situation Two: The same woman walks into the same shop and talks to the same associate.  She says, “I’m doing deep diving, and am looking for a dive watch that will stay watertight down to 200 feet.”  The associate picks up the same watch as before, and says, “Here you go.”  The woman buys the watch.

            If the watch starts leaking at 60 feet, under current law, the woman would sue for breach of express warranty under Situation One, but would have to sue for breach of the implied warranty of fitness under Situation Two. The legitimate expectation of the consumer is identical in the two situations and should be analyzed identically.  If the words and actions of the associate in Situation Two are taken as affirming the 200 foot watertight attribute initially broached by the buyer, there is no difference between the two. As such, what are now fitness cases could, and should, be analyzed as breaches of express warranty.

            Conceptually it is difficult to justify the fitness warranty as an “implied” warranty.  In the merchantability cases under § 2-314, it is the attribute of the good – that it is of ordinary quality, for example – that is implied into the transaction.  But under § 2-315, the attribute of the good is expressed; what is “implied” is some representation by the seller as to that expresses attribute, but as noted above, the words and actions of the seller can easily be viewed as communicating that the seller is warranting the attribute under existing law.  It is an “implied” warranty in the same way we say a contract by conduct is an “implied-in-fact” contract.  But we treat implied-in-fact contracts as if they were express contracts, and we should so the same for fitness.

             Another issue is that courts have problems determining whether particular cases should be analyzed as a fitness or a merchantability case.  For example, suppose the buyer asks for “heavy-duty hiking boots” and suppose the shoes come apart upon their first wearing.  Is the proper claim that the boots are not fit as ordinary heavy-duty hiking boots (or even as just boots), or is it a fitness problem because they do not measure up as heavy-duty boots?  Courts have struggled with this issue from the first English case in which the fitness warranty was birthed. 

March 22, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink

Thursday, March 16, 2017

Weekly Top Ten SSRN Contracts Downloads (March 16, 2017)

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SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

RECENT TOP PAPERS for all papers first announced in the last 60 days
15 Jan 2017 through 16 Mar 2017

Rank Downloads Paper Title
1 263 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law
2 225 Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation
Annemarie Bridy
University of Idaho College of Law
3 193 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
4 182 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
5 162 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
6 158 Copyright Survives: Rethinking the Copyright-Contracts Conflict
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
7 153 What Brexit Means for the Interpretation and Drafting of Financial Contracts
Matthias Lehmann and Nihal Dsouza
University of Bonn and University of Bonn
8 147 Understanding the Consumer Review Fairness Act of 2016
Eric Goldman
Santa Clara University - School of Law
9 146 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
10 145 Comparative Contract Law and Development: The Missing Link?
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo

 

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

RECENT TOP PAPERS for all papers first announced in the last 60 days
15 Jan 2017 through 16 Mar 2017

Rank Downloads Paper Title
1 263 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law
2 193 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 182 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
4 162 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
5 146 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
6 145 Comparative Contract Law and Development: The Missing Link?
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
7 134 Contracting Over Privacy: Introduction
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
8 110 The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases
Thomas Stipanowich and Veronique Fraser
Pepperdine University School of Law and Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD)
9 109 History and Theory of Good Faith Performance in the United States
Steven J. Burton
University of Iowa - College of Law
10 83 Contract Exposition and Formalism
Gregory Klass
Georgetown University Law Center

March 16, 2017 in Recent Scholarship | Permalink | Comments (0)

Friday, March 10, 2017

Deborah Zalesne (CUNY) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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Choosing “Choice” in the Age of ART: Designer Babies and the Case for Genetic Selection

Deborah Zalesne (City University of New York School of Law)

ABSTRACT 

While rapidly developing Assisted Reproductive Technology (“ART”) such as in vitro fertilization, surrogacy, artificial insemination, IUI, fertility medication, intracytoplasmic sperm injection, cryopreservation, and pre-implantation genetic diagnosis, offer new pathways to parenthood, this capacity has challenged our collective notions about family. Ethical questions that arise require rethinking the traditional view of family as something “organic” and “natural” and as a “self-contained unit.”

Deborah Zalesne (CUNY)New technologies allow for far-reaching reproductive decision-making that was not possible even a generation ago. Parents can now select the sex, race, or other characteristics of an embryo to be implanted. Parents can also choose to cryopreserve their embryos to allow for implantation in the future, or choose to terminate or reduce a pregnancy because of birth defects or multiples. With the opportunities presented by reproductive autonomy and choice come legal and ethical chaos of sorts, and a division that pits consent against state and public interest.

As these technologies develop, questions arise as to whether, as a society, we should allow market forces and private contracting to control their use – in effect allowing the market to decide what is right or wrong. Is leaving development of reproductive technology to the demands of the market equivalent to saying nothing is right or wrong – only efficient or inefficient, wealth maximizing, or not wealth maximizing? Or, rather, does the market represent the natural course of change and the inevitable direction of society, with regulation of technology in these areas simply inhibiting progress? There is no single answer to these questions that can be applied across the board to all the various existing and emerging technologies.  I argue, however, that where there is tension between individual reproductive choice and other moral values, the use of reproductive technologies is most often best left to the choice of individuals and the innovation of the market. 

My presentation highlights some of the ethical issues that arise from the reproductive capabilities that have developed over the past decades, focusing specifically on the unique ethical issues that arise from pre-implantation genetic testing. (I will also briefly discuss ethical issues surrounding gamete donation and surrogacy, which can result in more than two legal or biological parents; the creation, selection, freezing, and destruction of embryos; and prenatal testing, selective abortion and selective reduction.) Much of the resistance to these technologies stems from long-held and deeply ingrained beliefs about the purity of reproduction and motherhood. As technology continues to create reproductive possibilities that were once unheard of or considered fantasy, the purity of motherhood, pregnancy, reproduction, and family are threatened, creating controversy and debate. My talk examines some potentially troubling contract clauses that can give reproduction choices to intended parents that did not exist before technology facilitated it. I attribute some of the resulting ethical concern to societal hesitance to deviate from traditional family norms, looking specifically at the sacredness of motherhood and primacy of biology in definitions of parenthood.

Ultimately, I argue for emphasis on consent and market freedom, and for more rigorous and consistent enforcement of reproductive agreements. The law, by its nature, is slow to respond and slow to capture societal mood, which is constantly evolving. Artificial insemination, for example, was originally, over a century ago, thought to be scandalous, but opinions softened eventually. Since law necessarily lags behind social momentum, family law and regulation are often ill equipped to address adequately the myriad ethical issues that have arisen and are likely to arise as technology advances further. Even as family law adapts, it will never be able to keep pace with the rapid developments happening in reproductive technology and accommodate all possible non-normative relationships, ever growing based on cultural and social shifts, and made even more accessible through technology. Regulation of new technologies can thwart progress, inhibiting the development of important medical procedures. Consent, market forces, and contract law, on the other hand, which are based on individual needs, individual desires, and societal demand, are the best arena for dealing with rapid technological momentum.

People have a fundamental right, both morally and legally, to privacy and freedom when it comes to reproduction, so intervention where there are private reproductive agreements is not usually justified. Individual choice should guide reproduction (whether natural or artificially mediated), and a free market and private contracting are the best vehicles for delivering assisted reproductive services and for responding to individual choice. Assisted reproduction, like sexual reproduction, is not a social enterprise. Although it often involves more than two parties, it is still based on private arrangements and should be governed by rules of privacy and autonomy. 

The SSRN link to the full paper is: http//ssrn.com/abstract=2930290

March 10, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (1)

Thursday, March 9, 2017

Weekly Top Ten SSRN Contracts Downloads (March 9, 2017)

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SSRN Top Downloads For
Contracts & Commercial Law eJournal

RECENT TOP PAPERS for all papers first announced in the last 60 days SSRN Logo2
8 Jan 2017 through 9 Mar 2017

Rank Downloads Paper Title
1 251 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law 
2 202 Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation
Annemarie Bridy
University of Idaho College of Law
3 179 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
4 168 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
5 152 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
6 144 What Brexit Means for the Interpretation and Drafting of Financial Contracts
Matthias Lehmann and Nihal Dsouza
University of Bonn and University of Bonn
7 137 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
8 128 Contracting Over Privacy: Introduction
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
9 93 Understanding the Consumer Review Fairness Act of 2016
Eric Goldman
Santa Clara University - School of Law
10 138 Comparative Contract Law and Development: The Missing Link?
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo

 

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

RECENT TOP PAPERS for all papers first announced in the last 60 days SSRN Logo2
8 Jan 2017 through 9 Mar 2017

Rank Downloads Paper Title
1 251 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law
2 179 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 168

Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School

4 152 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
5 138 Comparative Contract Law and Development: The Missing Link?
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
6 137 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
7 128 Contracting Over Privacy: Introduction
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
8 109 History and Theory of Good Faith Performance in the United States
Steven J. Burton
University of Iowa - College of Law
9 86 The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases
Thomas Stipanowich and Veronique Fraser
Pepperdine University School of Law and Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD)
10 80 Contract Exposition and Formalism
Gregory Klass
Georgetown University Law Center

March 9, 2017 in Recent Scholarship | Permalink | Comments (0)

Wednesday, March 8, 2017

Orit Gan (Sapir College, School of Law) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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Gett Abuse

Orit Gan (Sapir College, School of Law)

SapirLogoUnder Jewish law divorce occurs when the husband writes and delivers and the wife accepts a gett. Until wife is granted a gett she may not remarry or date. Some men use the gett as a bargaining chip to extort favorable economic divorce agreements. In other words men threaten women by refusing to grant them a gett unless they will succumb to their financial demands. This is gett abuse.

Women who pay for their gett resist enforcement of the divorce agreements by claiming duress, and U.S. courts usually accept such claims. However, based on anti-commodification theories I claim that trading the gett for money should be prohibited. I suggest that gett should be an inalienable right for two reasons. Women pay for a gett under conditions of severe inequality. They are coerced by the necessities of the situation. Moreover, this exchange has a degrading effect. Women's autonomy, dignity and freedom are corrupted and diminished by trading the gett. In an ideal world a gett should not be commodified.

However, we do not live in an ideal world. In today's reality, trading a gett also has advantages for women. Paying for a gett is their only way to break free from the marriage. The alternative is staying married against their will. Furthermore, women bring tort claims against their husbands in civil courts for gett refusal claiming emotional distress. Women then leverage the compensation that they are awarded to get a gett. They use the tort claim to improve their bargaining power and trade the damages awarded for a gett.

Therefore both commodification and non-commodification of gett have both advantages and disadvantages for women. A way out of this double bind dilemma is to recognize incomplete commodification.

The gett abuse analysis has broader implications. For example, the gett abuse analysis may be applicable to custody negotiations. Spouses bargain for their children's custody and maintenance upon divorce. Studies show that women are willing to waive financial rights in order to get custody. This transaction may have the corruption and coercion effects and therefore custody may also be an inalienable right.

March 8, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Tuesday, March 7, 2017

Hila Keren (Southwestern Law School) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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Emotional Value and the Value of Emotions

Hila Keren, Ph.D. (Southwestern Law School)

Hila Keren (Southwestern)American contract law has demonstrated an ongoing and long-lasting reluctance to award remedies to a party to a contract who suffered an emotional harm due to a breach by the other party. Such reluctance stands in clear contrast to the treatment of other harms coming from a breach of contract, namely economic and physical harms. In this paper I argue for equal treatment of all harms caused by a breach of contract and against the legal marking of emotional harms as unfit for the general effort of contract law to compensate injured parties.

For many decades legal theorists have debated the aptness of a special and tightfisted legal response to emotional harms, highlighting both aspects relating to the nature of law and the qualities of the emotions. For example: Is the law, with its rational logic, able to address affective problems? Are emotions uniquely easier to fake or inflate?

Hila Keren KCON12 SlideMy paper brings to the debate a fresh set of arguments. Analyzing the issue from the perspective of the novel approach of law and emotions, I argue that the reluctance to award damages for emotional harms reflects and reinforces law’s “hyper-rationality,” i.e., the broader legal misunderstanding and mistreatment of emotions. More importantly, taking emotions seriously and in an interdisciplinary fashion, I contend that for the last four decades we have been subject to a rapidly increasing dominance of a neoliberal worldview that has operated to reconfigure the meaning of the emotions themselves. This significant shift, I submit, makes compensation for emotional harms more necessary than ever before. 

In particular, I show how neoliberalism has made key positive emotions, such as happiness, an essential part of our human capital and thus has turned these emotions into economic assets—indistinguishable from those the law is eager to protect by contractual remedies. Similarly, neoliberalism has reframed negative emotions of the sort engendered by breach of contract—anxiety or anger for example—as a cause of depreciation of one’s human capital, making such harms impossible to tell apart from other contractual injuries. In a neoliberal world that constantly requires people to invest expensive resources in maintaining their emotional “portfolio,” I conclude, there is an urgent need to bring the conventional reluctance to compensate for emotional harms to an end.

 

March 7, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Allen Kamp (John Marshall - Chicago) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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WELLNESS PROGRAMS UNDER THE AFFORDABLE CARE ACT—A STATUTORY DEFINITION OF “VOLUNTARY”

Allen R. Kamp (John Marshall Law School - Chicago)

          Can Congress force you to eat your broccoli?  To the Supreme Court in NFIB v. Sibelius, the answer is no under the Commerce Clause, but yes under the Taxation Clause.[1] But can your employer force you to eat it? The answer may well be yes.

Allen Kamp (JMLS Chicago)         An employer could have this ability under wellness programs.” Wellness program” is a defined term under the Affordable Care Act.[2] Wellness programs may include monitoring of vital functions and activity that may report activity 24/7.[3] A certain activity level may be required, for example, 5,500 steps a day. Wellness programs may also require meeting such goals as lowering body/mass ratio or cholesterol levels.[4]

          The ACA authorizes wellness programs if they are “voluntary.” The term is numerically defined, unlike legal definitions of duress and unconscionably, which may invalidate some contracts. Employers can reduce employees’ pay by 30% of the total amount of the insurance costs of the employee’s insurance and be “voluntary.” (The total cost includes both the employee and the employer’s contribution.[5] Thirty percent of the average cost of insurance is more than $5,000 per year.[6] For a low wage employee, this penalty is a high percentage of his income.[7]

          The Equal Employment Opportunity Commission has issued a regulation that adopts the ADA definition of “voluntary.” [8]

          Although the definition of voluntary will probably not be decided for years, wellness programs starkly pose the issue of the limits of employer power under the employment contract  Thanks to modern technology, such biometric data as activity level and pulse can be monitored 24/7.[9] A blood test now can reveal he presence of nicotine, cholesterols, glucose, and a great amount of other data such as nicotine use.[10] Should the employer be allowed to monitor employee behavior and vitals 24/7? Wellness programs can include exercise programs (for example, 5,500 steps a day), taking part in health improvement counseling (e.g., weight loss or smoking cessation), and attainment of certain goals, such as lower cholesterol and body/mass index. Should an employer be able to mandate an exercise regime? Should an employer be able to require either achievement of a change in an employee’s body with the threat of sanctions or firing if the change fails to take place?

          The rule may well be that Congress cannot force one to eat one’s broccoli, at least under the Commerce Clause, but one’s employer may well be able to. One can, of course, find another job (one without a wellness program), while one cannot opt out of a federal law. But finding a new job for many is difficult and finding one without a wellness program could be harder.

          We can engage in law professor speculation. Given that assesment to contract terms is found in the most extenuated contexts (See, e.g., Carnival Cruise). Does the ADA definition actually represent  an advance towards a meaningful definition of consent?

          This leads to my final point, which is a dig at my libertarian friends and colleagues. The libertarian premise is that if government power is limited, human freedom is increased. Is there, however, a Law of Conservation of Power in a society parallel to the Law of Conservation of Energy, that the amount of energy in a closed system remains constant? Does the amount of power in a society remain constant, so that if power is diminished in one place it just goes somewhere else?

[1] Nat’l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 567 U.S.___ (2012).

[2] Patient Protection and Affordable Care Act § 1201(4), 42 U.S.C. § 300gg-4(j)(1)(A) (2012).

[3] E.g., the Fitbit.

[4] Although many federal statutes regulate wellness, none deal with the problems of employee privacy or employer control over employees per se. Statutes which may apply to wellness programs in are the Affordable Care Act (ACA), The Americans With Disability Act (ADA), the Genetic Information Non-Disclosure Act (GINA), HIPPA, and Title VII. The main current legal controversies center around the ACA, the ADA and GINA.

[5] 42 U.S.C. § 300gg-4(j)(3)(A) (2012).

[6] Letter from Congressional Members, Robert C. Scott, Elizabeth Warren, Patty Murray, Louis McIntosh Slaughter, Richard Blumenthal, Janice D. Schakowsky, and Sherrod Brown to Jerry R. Yang, Chair of the EEOC (Feb. 2, 2016), http://democrats.edworkforce.house.gov/sites/democrats.edworkforce.house.gov/files/2016-02-11%20Letter%20to%20EEOC%20Chair%20Yang%20re.%20GINA%20Proposed%20Rule.pdf

[7] This brings the ACA into conflict with at least two other federal acts, the ADA and GINA. Both prevent health information from being disclosed to the employer. Note that the ADA is a law designed to prevent discrimination against the disabled and focuses on that problem, not the privacy aspects of wellness programs. The ADA defines “voluntary” as not being based on any sanction for non-agreement to participation in a wellness program. GINA has a similar provision, with the non-disclosure extending to spouses. So which Act controls? At present it is open question. The ACA is the later act and following the ADA or GINA would make its voluntary section meaningless. But the ACA Regulations do say that the ACA does not limit the ADA. The AARP has sued the E.E.O. C., seeking to have the regulation invalidated. See Complaint,  ww.aarp.org/content/dam/aarp/aarp_foundation/litigation/pdf-beg-02-01-2016/AARP-v-EEOC-complaint.pdf

[8] (3) Incentives offered for employee wellness programs. The use of incentives (financial or in-kind) in an employee wellness program, whether in the form of a reward or penalty, will not render the program involuntary if the maximum allowable incentive available under the program (whether the program is a participatory program or a health-contingent program, or some combination of the two, as those terms are defined in regulations at 26 CFR 54.9802-1(f)(1)(ii) and (iii), 29 CFR 2590.702(f)(1)(ii) and (iii), and 45 CFR 146.121(f)(1)(ii) and (iii), respectively) does not exceed:

(i) Thirty percent of the total cost of self-only coverage (including both the employee's and employer's contribution) of the group health plan in which the employee is enrolled when participation in the wellness program is limited to employees enrolled in the plan;

(ii) Thirty percent of the total cost of self-only coverage under the covered entity's group health plan, where the covered entity offers only one group health plan and participation in a wellness program is offered to all employees regardless of whether they are enrolled in the plan;

(iii) Thirty percent of the total cost of the lowest cost self-only coverage under a major medical group health plan where the covered entity offers more than one group health plan but participation in the wellness program is offered to employees whether or not they are enrolled in a particular plan; and

(iv) Thirty percent of the cost of self-only coverage under the second lowest cost Silver Plan for a 40-year-old non-smoker on the state or federal health care Exchange in the location that the covered entity identifies as its principal place of business if the covered entity does not offer a group health plan or group health insurance coverage.

29 C.F.R. 1630 (d) (2). Published 5/17/16, e-version.

 [9] See webpage of Fitbit advertising the use of the device in wellness programs.

[10] My latest blood test showed that I drink too much water and consume too many saturated fats and sugars.

March 7, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Monday, March 6, 2017

Guy Rub (Ohio State) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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Copyright Survives: Rethinking the Copyright-Contracts Conflict

Guy A. Rub (The Ohio State University Michael E. Moritz College of Law)

Guy Rub (Ohio State)Copyright law consists of legal norms that govern certain actions with respect to creative works fixed in a tangible medium of expression. Contracts allow individuals to create legal norms with respect to creative (and non-creative) works that are fixed (and those that are not fixed) in a tangible medium of expression. This potential overlap in legal norms can create tension between the two. This tension is typically discussed under the auspice of copyright preemption doctrine.

The leading decision on this matter is Judge Easterbrook’s 1996 decision in ProCD v. Zeidenberg. In that case, the Seventh Circuit held that a contract that restricted the use of factual information was not preempted by the Copyright Act and therefore enforceable. The reaction among copyright scholars was swift and passionate. In dozens of articles and books, spreading over two decades, scholars cautioned that if the ProCD approach is broadly adopted, the results would be dire. Through contracts, the rights of copyright owners would run amok, expand, and in doing so they would invade, shrink, and possibly destroy the public domain. Contracts, we were repeatedly warned throughout the years, would kill copyright law.

 This Article challenges this scholarly consensus by studying the 288 court opinions that have dealt with the copyright-contract conflict over the past four decades. This examination reveals surprising facts: Notwithstanding the scholars’ warnings, ProCD’s approach won the day and was embraced by most federal circuit courts. However, the doomsday scenarios scholars warned against did not materialize. The overall effect of contracts on the size and scope of the public domain, or over copyright law as a whole, seems minimal. The Article explains this discrepancy and shows that contracts are an ineffective tool to control information because they are too weak of a device to threaten or replace copyright law. Indeed, to paraphrase Mark Twain, the reports of the death of copyright were greatly exaggerated.

 The Article concludes by placing this analysis in context, as part of a broader ongoing discussion on the desirability and enforceability of standard-form agreements.

 The Article is available for SSRN download here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2926253

March 6, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Eric Zacks (Wayne State) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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The Statute of Limitations, Res Judicata, and Acceleration Clauses in Mortgage Foreclosures

Eric A. Zacks (Wayne State University Law School)

ABSTRACT

Eric Zacks (Wayne State)The high volume of foreclosures during and following the Great Recession in the United States has led to the revelation of many troubling lending practices. It also has led to problematic judicial decisions that erode borrower protection by curtailing or eliminating procedural requirements and substantive defenses with respect to foreclosure. My article examines the treatment of statute of limitation and related defenses after a loan has been accelerated following a default. In particular, one would expect the formalism that is used to justify strict enforcement of the loan instruments for foreclosure purposes would also be employed when mortgagors fail to comply with statutory, common law, or contractual requirements regarding mortgage assignment, enforcement, acceleration, or foreclosure. In each instance, however, mortgagors are often instead protected by a contextual or equitable approach that seeks to preserve their right to foreclose. Some courts have ignored the traditional rule that acceleration under a contract starts the clock for statute of limitation purposes or that acceleration consolidates the loan instrument into a single obligation as opposed to an installment obligation. Instead, these courts have permitted lenders to accelerate loans repeatedly without triggering the statute of limitations or res judicata defenses. Consequently, lenders are permitted to assert foreclosure claims with respect to the same underlying debt amount over and over again. Instead of being used as a last-resort, acceleration and the subsequent foreclosure process can now be wielded as a significant threat to borrowers throughout the life of their home loan. My article explores the tendency of, and justification for, adjudicators to liberalize the foreclosure process and provides a critique of this approach.

March 6, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Friday, March 3, 2017

Michael Malloy (Pacific McGeorge) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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Michael P. Malloy, Ph.D. (University of the Pacific McGeorge School of Law)

Contracts in a Digital Age: My Teenaged Tech Advisors Rescue Dad

Abstract

Michael Malloy (Pacific McGeorge)Contracting in a digital age isn’t just a change in time or place, it is in many respects potentially a change in orientation. Confronting that change initially involved improvising an assimilation of e-contracting into our unstated assumptions about the way contracts are created and the way they are performed, but some adjustment in the framework has been necessary as e-contracting has flourished. It has now been 25 years since the Third Circuit decided Step-Saver Data Systems, Inc. v. Wyse Technology, subjecting box top terms to those assumptions, and 20 years since the Seventh Circuit decided ProCD, Inc. v. Zeidenberg, distinguishing Step-Saver and embracing shrink wrap terms, leading the way to the easy application of click wrap terms. As we have moved from telex to facsimile, to e-mail, to texting, to direct communication between computers, and so on to as yet unknown methods – new technology almost always creates new challenges for contract law. My paper calls for the recognition of new analysis and adaptable principles for electronic contracting on its own terms, but without abandoning the objectives underlying contract law.

 

March 3, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink

Eyal Zamir (Hebrew University of Jerusalem) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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Pricing Methods, Marketing Techniques, and the Law of Consumer Contracts

Eyal Zamir (Hebrew University of Jerusalem, Faculty of Law)

(Based on a forthcoming book, Behavioral Law and Economics (co-authored with Doron Teichman, OUP)) 

Introduction

  Eyal Zamir (Hebrew University)           In our daily life, we all manipulate, and are being manipulated by, others. As Eladar Shafir has put it, being manipulated is an integral part of the human condition. Marketeers do it for a living.

            Firms employ various marketing and pricing methods, which arguably exploit consumers’ heuristics and biases, to enhance their sales and profits. Some of these techniques are clearly illegitimate and even illegal. Others raise difficult questions regarding their legitimacy and the appropriate legal response to them. In my presentation I will describe a few pricing and marketing techniques that are not obviously illegitimate, and raise the question of whether they should be regulated. I intentionally use the language of “raise the question,” because I will not offer definitive answers.

            The methodological perspective I use is commonly described as behavioral law and economics. A primary contribution of behavioral law and economics lies in the identification of behavioral market failures. In addition to traditional market failures, such as monopolies and information problems, markets may fail to promote social utility due to deviations from the assumption that all players in the market are rational maximizers of their utility.

            However, I will not limit myself to the behavioral-economic perspective, as behavioral insights are equally relevant to non-economic perspectives that highlight other values in lieu of, or in addition to, maximizing aggregate human welfare. These include respect for autonomy, fairness, and distributive justice.

            However, due to time limitations, I will neither be able to consider all of these perspectives, nor to delve into the choice between different regulatory measures: disclosure duties, compulsory interventions, and mere nudges. Some people identify the behavioral perspective with the use of nudges, but this is a mistake. Behavioral findings may justify more intrusive regulation. I believe that mandatory regulation is often warranted, and that paternalism—despite its bad PR—is often justified. But I will not go into these issues today.

            Relatedly, the pricing and marketing techniques I will discuss are used not only in consumer transactions, but in commercial ones, as well. Hence, my discussion is not limited to the consumer sphere, although the normative considerations in commercial transactions may be different.

March 3, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink

Thursday, March 2, 2017

Weekly Top Ten SSRN Contracts Downloads (March 2, 2017)

Top-10-3D

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

RECENT TOP PAPERS for all papers first announced in the last 60 days
1 Jan 2017 through 2 Mar 2017

Rank Downloads Paper Title
1 785 Risk and Anxiety: A Theory of Data Breach Harms
Daniel J. Solove and Danielle Keats Citron
George Washington University Law School and University of Maryland Francis King Carey School of Law
2 312 Empirical Findings on International Arbitration: An Overview
Christopher R. Drahozal
University of Kansas School of Law
3 238 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law
4 157 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
5 156 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
6 146 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
7 134 What Brexit Means for the Interpretation and Drafting of Financial Contracts
Matthias Lehmann and Nihal Dsouza
University of Bonn and University of Bonn
8 134 Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation
Annemarie Bridy
University of Idaho College of Law
9 131 Comparative Contract Law and Development: The Missing Link?
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
10 124 Contracting Over Privacy: Introduction
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School

 

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

RECENT TOP PAPERS for all papers first announced in the last 60 days 
1 Jan 2017 through 2 Mar 2017

Rank Downloads Paper Title
1 238 Rise of the Digital Regulator
Rory Van Loo
Boston University School of Law
2 157 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
3 156 Interpreting Contracts via Surveys and Experiments
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
4 146 Interpretation and Construction in Contract Law
Gregory Klass
Georgetown University Law Center
5 131 Comparative Contract Law and Development: The Missing Link?
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
6 124 Contracting Over Privacy: Introduction
Omri Ben-Shahar and Lior Strahilevitz
University of Chicago Law School and University of Chicago Law School
7 122 The Deformation of Contract in the Information Society
Margaret Jane Radin
University of Michigan Law School
8 108 Failures in Law Making: The Case of Arbitration Law in India
Badrinath Srinivasan
Independent
9 107 History and Theory of Good Faith Performance in the United States
Steven J. Burton
University of Iowa - College of Law
10 92 The Limits of Interpretation in the Law of Contract
Andrew Robertson
Melbourne Law School

March 2, 2017 in Recent Scholarship | Permalink | Comments (0)