ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

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 (0)

Thursday, September 22, 2016

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

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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:

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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)

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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)

Friday, August 19, 2016

Scholarship Spotlight - "Arrested Development: Rethinking the Contract Age of Majority for the 21st Century Adolescent" (Wayne Barnes - Texas A&M)

Amongst a litany of fuzzy-on-the-margins doctrines like promissory estoppel and unconscionability, the age of majority for contractual capacity stands out as a relatively settled and bright-line topic. Or does it? In a piece forthcoming in the Maryland Law Review, my Texas A&M colleague Wayne Barnes argues that increasing evidence suggests that the mass movement of the age of majority from 21 to 18 was ultimately a misguided reform. Here is his abstract:

Barnes_wayne1The contract age of majority is currently age 18. Contracts entered into by minors under this age are generally voidable at the minor’s option. This contract doctrine of capacity is based on the policy of protecting minors from their own poor financial decisions and lack of adultlike judgment. Conversely, the age of 18 is currently set as the arbitrary age at which one will be bound to her contract, since this is the current benchmark for becoming an “adult.” However, this article questions the accuracy of age 18 for this benchmark. Until comparatively recently, the age of contract majority had been 21 for centuries. The age was reduced to 18 in the aftermath of protest over the military draft of 18-year-olds during the Vietnam War during the 1960s and 1970s, and the enactment of the Twenty-Sixth Amendment which lowered the voting age from 21 to 18. However, the appropriate age for the military draft bears little to no relation to the appropriate age for voting, or contracting. Moreover, other evidence points in the direction of age 21 as a more appropriate age of majority. First, scientific evidence of brain development has advanced to the point that we now know the brain does not stop developing until well into the 20s, which means the powers of cognition and decision-making are not fully developed until then. Second, sociological evidence suggests that most people do not perceive the full attributes of adulthood as having been reached until at least 21, if not older. Third, other areas of the law have experiences in coming back to age 21 as an appropriate marker of adulthood --- these include the age for purchasing alcohol, the age for obtaining a credit card, and soon (it appears) the age for purchasing cigarettes. This confluence of evidence suggests that the contract age of majority was always appropriately set at age 21, and a return to that age of capacity for contracts will correct a historical misstep in the law.

Professor Barnes's article, "Arrested Development: Rethinking the Age of Majority for the 21st Century Adolescent," is currently available here on SSRN, where the article is also part of the newly-launched Texas A&M University School of Law Legal Studies Research Paper Series.

August 19, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, August 18, 2016

Weekly Top Ten SSRN Contracts Downloads (August 18, 2016)

Top-10-gold-logo

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

Rank Downloads Paper Title
1 177 The Mystery of Mutual Insurers in Lawyers Professional Liability Insurance
Tom Baker and Rick Swedloff
University of Pennsylvania Law School and Rutgers Law School
2 143 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
3 133 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
4 122 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
5 72 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
6 68 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
7 120 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
8 81 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
9 80 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
10 74 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law

 

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

Rank Downloads Paper Title
1 122 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
2 120 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
3 103 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
4 80 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 74 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
6 72 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
7 65 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
8 65 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School
9 60 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
10 55 Taking Stewart Macaulay and Hugh Collins Seriously
John Gava
Adelaide Law School

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

Wednesday, August 10, 2016

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

This week's Top Ten lists come a day early due to travel tomorrow by yours truly. Enjoy!

Top-ten-green

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

Rank Downloads Paper Title
1 131 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
2 123 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
3 117 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
4 116 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
5 84 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
6 76 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
7 76 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 69 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
9 68 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
10 60 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School


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

Rank Downloads Paper Title
1 117 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
2 116 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
3 96 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
4 84 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
5 76 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
6 69 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
7 68 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
8 60 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School
9 56 The Behaviour of the Average Consumer: A Little Less Normativity and a Little More Reality In CJEU's Case Law? Reflections on Teekanne
Hanna Schebesta and Kai P. Purnhagen
Wageningen UR - Law and Governance Group and Wageningen UR - Law and Governance Group
10 56 The Fiduciary Gap
Kelli Alces Williams
Florida State University - College of Law

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

Thursday, August 4, 2016

Weekly Top Ten SSRN Contracts Downloads (August 4, 2016)

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

Rank Downloads Paper Title
1 121 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
2 111 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
3 109 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
4 82 The Legal Writer, Making Offers No One Can Refuse: Effective Contract Drafting — Part 5
Gerald Lebovits
Columbia University - Law School
5 72 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
6 68 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
7 67 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 64 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
9 58 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School
10 65 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law

 

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

Rank Downloads Paper Title
1 111 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
2 109 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
3 88 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
4 82 The Legal Writer, Making Offers No One Can Refuse: Effective Contract Drafting — Part 5
Gerald Lebovits
Columbia University - Law School
5 72 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
6 68 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
7 65 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
8 64 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
9 58 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School
10 55 The Legal Writer, Making Offers No One Can Refuse: Effective Contract Drafting — Part 4
Gerald Lebovits
Columbia University - Law School

August 4, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, July 28, 2016

Weekly Top Ten SSRN Contracts Downloads (July 28, 2016)

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

Rank Downloads Paper Title
1 191 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
2 133 On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market
Meirav Furth-Matzkin
Harvard Law School
3 110 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
4 70 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
5 64 Consent in Online Contracts - Mindless or Mindful?
Dasuni Wijayasriwardena
Queen Mary University of London
6 60 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 58 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 58 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
9 58 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
10 107 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College

 

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

Rank Downloads Paper Title
1 191 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
2 133 On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market
Meirav Furth-Matzkin
Harvard Law School
3 107 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
4 100 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
5 84 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
6 78 International Investment Law and ISDS: Mapping Contemporary Latin America
Katia Fach Gómez and Catharine Titi
University of Zaragoza and French National Centre for Scientific Research (CNRS)
7 78 The Legal Writer, Making Offers No One Can Refuse: Effective Contract Drafting — Part 5
Gerald Lebovits
Columbia University - Law School
8 70 Private Law and the European Constitutionalisation of Values
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
9 70 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
10 64 Consent in Online Contracts - Mindless or Mindful?
Dasuni Wijayasriwardena
Queen Mary University of London

July 28, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, July 21, 2016

Weekly Top Ten SSRN Contracts Downloads (July 21, 2016)

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

Rank Downloads Paper Title
1 610 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
2 163 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
3 144 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
4 120 On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market
Meirav Furth-Matzkin
Harvard Law School
5 117 Current Trends in Consumer Junk Debt Buyer Litigation
Peter A. Holland
The Holland Law Firm
6 105 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
7 98 Reining in the Big Promise of Big Data: Transparency, Inequality, and New Regulatory Frontiers
Philipp Hacker and Bilyana Petkova
Humboldt University of Berlin and European University Institute
8 96 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
9 94 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
10 94 Once Upon a Transaction: Narrative Techniques and Drafting
Susan Chesler and Karen J. Sneddon
Arizona State University (ASU) - Sandra Day O'Connor College of Law and Mercer Law School

 

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

Rank Downloads Paper Title
1 610 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
2 163 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
3 144 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
4 120 On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market
Meirav Furth-Matzkin
Harvard Law School
5 105 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
6 94 Once Upon a Transaction: Narrative Techniques and Drafting
Susan Chesler and Karen J. Sneddon
Arizona State University (ASU) - Sandra Day O'Connor College of Law and Mercer Law School
7 94 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
8 77 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
9 75 The Legal Writer, Making Offers No One Can Refuse: Effective Contract Drafting — Part 5
Gerald Lebovits
Columbia University - Law School
10 74 International Investment Law and ISDS: Mapping Contemporary Latin America
Katia Fach Gómez and Catharine Titi
University of Zaragoza and French National Centre for Scientific Research (CNRS)

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

Tuesday, July 19, 2016

Scholarship Spotlight: "Custom in the Courts" as to UCC Trade Usage (Lisa Bernstein - Chicago)

Contract-InterpretationEmpirical analysis testing the desirability of norms of contract doctrine is a welcome thing, and an recent article by Lisa Bernstein (University of Chicago), "Custom in the Courts," draws upon an impressive quantity of data in contradicting one of the pillars of the received wisdom of Article 2 of the Uniform Commercial Code. As it happens, flexible contract interpretation relying on norms of trade usage is not necessarily beneficial.

Here is Professor Bernstein's abstract:

BernsteinLisa (Chicago)This Article presents an empirical study of the trade usage cases decided under the Uniform Commercial Code from 1970 to 2007. It then draws on the study’s findings to revisit the debate over the desirability of the trade usage component of the incorporation strategy — the interpretive approach that directs courts to look to course of dealing, course of performance, and usage of trade to interpret contracts and fill contractual gaps. Although the strategy is generally defended on the grounds that, as compared to a more formalistic adjudicative approach, it will reduce specification costs without unduly increasing interpretive error costs, the study reveals that the empirical assumptions on which this defense is based are highly questionable. More specifically, it shows that usages are not typically demonstrated through the introduction of the types of “objective evidence” that the strategy’s defenders suggest will reduce the risk of interpretive error — such as expert witness testimony, industry trade codes, or statistical evidence that a particular practice is widely observed. Rather, usages are most commonly established solely through the testimony of the parties or their employees. Expert testimony is introduced in at most 31.5% of the cases, the introduction of trade codes is rare, and there were no cases in the study in which the regularity with which a practice was observed was demonstrated through statistical evidence rather than the mere assertion of a witness.

After presenting the study’s findings, the Article reexamines the core justifications for the strategy in light of them. It concludes that because the strategy is likely to increase both specification costs and interpretive error costs, and has particularly negative effects on contracts between large multi-agent firms as well as on the types of outsourcing contracts and contracts for innovation that are increasingly important parts of the modern economy, it should be abandoned in favor of a more formalist approach to contract interpretation, at least in contracts between businesses.

Professor Bernstein's article is published in the Northwestern University Law Review at 110 Nw. U. L. Rev. 63 (2015) and is available for SSRN download here.

July 19, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, July 14, 2016

Weekly Top Ten SSRN Contracts Downloads (July 14, 2016)

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

Rank Downloads Paper Title
1 601 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
2 136 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
3 133 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
4 112 Current Trends in Consumer Junk Debt Buyer Litigation
Peter A. Holland
University of Maryland Francis King Carey School of Law
5 109 On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market
Meirav Furth-Matzkin
Harvard Law School
6 102 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
7 93 Assessment of Damages: Three Specific Problems – The Draft Common European Sales Law in Context
Reinhard Zimmermann
Max Planck Institute for Comparative and International Private Law
8 91 Once Upon a Transaction: Narrative Techniques and Drafting
Susan Chesler and Karen J. Sneddon
Arizona State University (ASU) - Sandra Day O'Connor College of Law and Mercer Law School
9 90 Reining in the Big Promise of Big Data: Transparency, Inequality, and New Regulatory Frontiers
Philipp Hacker and Bilyana Petkova
Humboldt University of Berlin and European University Institute
10 88 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School

 

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

1 601 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
2 136 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
3 134 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
4 109 On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market
Meirav Furth-Matzkin
Harvard Law School
5 102 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
6 93 Assessment of Damages: Three Specific Problems – The Draft Common European Sales Law in Context
Reinhard Zimmermann
Max Planck Institute for Comparative and International Private Law
7 93 Equity in LLC Law?
Mohsen Manesh
University of Oregon School of Law
8 91 Once Upon a Transaction: Narrative Techniques and Drafting
Susan Chesler and Karen J. Sneddon
Arizona State University (ASU) - Sandra Day O'Connor College of Law and Mercer Law School
9 87 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
10 70 The Legal Writer, Making Offers No One Can Refuse: Effective Contract Drafting — Part 5
Gerald Lebovits
Columbia University - Law School

July 14, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, July 7, 2016

Weekly Top Ten SSRN Contracts Downloads (July 7, 2016)

TopTen Stamp-808x455

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

Rank Downloads Paper Title
1 593 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
2 130 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
3 129 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
4 109 Current Trends in Consumer Junk Debt Buyer Litigation
Peter A. Holland
University of Maryland Francis King Carey School of Law
5 91 Assessment of Damages: Three Specific Problems – The Draft Common European Sales Law in Context
Reinhard Zimmermann
Max Planck Institute for Comparative and International Private Law
6 89 Once Upon a Transaction: Narrative Techniques and Drafting
Susan Chesler and Karen J. Sneddon
Arizona State University (ASU) - Sandra Day O'Connor College of Law and Mercer Law School
7 87 Reining in the Big Promise of Big Data: Transparency, Inequality, and New Regulatory Frontiers
Philipp Hacker and Bilyana Petkova
Humboldt University of Berlin and European University Institute
8 86 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
9 85 Nudging and Autonomy. A Philosophical and Legal Appraisal
Philipp Hacker
Humboldt University of Berlin
10 82 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College

 

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

Rank Downloads Paper Title
1 593 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
2 130 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
3 129 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
4 91 Assessment of Damages: Three Specific Problems – The Draft Common European Sales Law in Context
Reinhard Zimmermann
Max Planck Institute for Comparative and International Private Law
5 91 Equity in LLC Law?
Mohsen Manesh
University of Oregon School of Law
6 89 Once Upon a Transaction: Narrative Techniques and Drafting
Susan Chesler and Karen J. Sneddon
Arizona State University (ASU) - Sandra Day O'Connor College of Law and Mercer Law School
7 82 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
8 76 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
9 74 On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market
Meirav Furth-Matzkin
Harvard Law School
10 68 The Contract Clause during the Civil War and Reconstruction
James W. Ely
Vanderbilt University - Law School

July 7, 2016 in Recent Scholarship | Permalink | Comments (0)

Tuesday, July 5, 2016

Scholarship Spotlight: An Empirical Study of Unenforceable Contract Terms (Meirav Furth-Matzkin - Harvard)

While the enforceability of many contract terms discussed in this space can be a matter of good faith dispute, other terms are clearly beyond the pale of enforcement. What is the impact of potentially in terrorem use of invalid contract clauses on the general non-lawyer population? Meirav Furth-Mazkin (Harvard S.J.D. Program, John M. Olin Fellow) has conducted a fascinating empirical study on point entitled On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market. Here is her abstract:

Meirav Furth-MatzkinThis paper explores the prevalence of unenforceable terms in consumer contracts. Taking the residential rental market in the Greater Boston Area as a test case, the study analyzes a sample of 70 leases in terms of Massachusetts Landlord and Tenant Law. The paper’s findings reveal that landlords frequently use legally dubious — as well as clearly invalid — provisions in their contracts. Building on psychological insights and on a survey-based study of 279 tenants, the paper suggests that such clauses may significantly affect tenants’ decisions and behavior. In particular, when a problem or a dispute with the landlord arises, tenants are likely to perceive the terms in the lease contract as enforceable and forgo valid legal rights and claims. In light of this evidence, the paper discusses preliminary policy prescriptions.

The article's introduction further describes the study and its findings:

Residential LeaseThe study draws a distinction between clauses that are unenforceable and clauses that are enforceable but misleading. While not unenforceable per se, misleading clauses are nonetheless as likely to misinform tenants about their mandatory rights and remedies by misrepresenting the legal state of affairs. Additionally, the paper reports not only the inclusion of provisions that misrepresent the legal state of affairs, but also the exclusion of some of the tenant’s rights and remedies from the lease altogether.

The study’s findings demonstrate that residential leases not only frequently omit various rights and remedies that the law bestows upon tenants, but also include unenforceable clauses that conflict with the law and misleading clauses that misrepresent it. As shown below, 99% of the leases in the sample (69 out of 70) include at least one unenforceable or misleading clause. Such clauses shift responsibilities and liabilities from landlords to tenants, restrict or abolish tenants’ mandatory rights and remedies, and so on. When tenants’ rights and remedies are finally mentioned in these contracts, they are often inaccurately described to the detriment of tenants.

These findings may suggest that landlords are not sufficiently deterred from using unenforceable and misleading clauses in their leases. Such clauses might be included either intentionally—to exert profit— or by mistake, out of landlords’ ignorance of the law or their expectation that it will change. Even if landlords do not knowingly insert UMCs into their contracts, if the costs of including unenforceable terms are low, landlords may have little incentive to ensure that their contracts comply with the mandatory regulation governing them.

On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market is available for download from SSRN here.

July 5, 2016 in Recent Scholarship | Permalink | Comments (1)

Thursday, June 30, 2016

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (June 30, 2016)

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

Rank Downloads Paper Title
1 587 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
2 125 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
3 123 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
4 101 Current Trends in Consumer Junk Debt Buyer Litigation
Peter A. Holland
University of Maryland Francis King Carey School of Law
5 89 Assessment of Damages: Three Specific Problems – The Draft Common European Sales Law in Context
Reinhard Zimmermann
Max Planck Institute for Comparative and International Private Law
6 83 Reining in the Big Promise of Big Data: Transparency, Inequality, and New Regulatory Frontiers
Philipp Hacker and Bilyana Petkova
Humboldt University of Berlin and European University Institute
7 82 Nudging and Autonomy. A Philosophical and Legal Appraisal
Philipp Hacker
Humboldt University of Berlin
8 81 Once Upon a Transaction: Narrative Techniques and Drafting
Susan Chesler and Karen J. Sneddon
Arizona State University (ASU) - Sandra Day O'Connor College of Law and Mercer Law School
9 70 EU Legislation in Progress: Contracts for Supply of Digital Content to Consumers
Rafał Mańko
European Parliamentary Research Service
10 68 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School

 

June 30, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, June 23, 2016

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (June 23, 2016)

Top Ten Logo 1

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

Rank Downloads Paper Title
1 581 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
2 115 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
3 107 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
4 99 Current Trends in Consumer Junk Debt Buyer Litigation
Peter A. Holland
University of Maryland Francis King Carey School of Law
5 81 Assessment of Damages: Three Specific Problems – The Draft Common European Sales Law in Context
Reinhard Zimmermann
Max Planck Institute for Comparative and International Private Law
6 79 Reining in the Big Promise of Big Data: Transparency, Inequality, and New Regulatory Frontiers
Philipp Hacker and Bilyana Petkova
Humboldt University of Berlin and European University Institute
7 77 Nudging and Autonomy. A Philosophical and Legal Appraisal
Philipp Hacker
Humboldt University of Berlin
8 74 Once Upon a Transaction: Narrative Techniques and Drafting
Susan Chesler and Karen J. Sneddon
Arizona State University (ASU) - Sandra Day O'Connor College of Law and Mercer Law School
9 64 The Contract Clause during the Civil War and Reconstruction
James W. Ely
Vanderbilt University - Law School
10 64 EU Legislation in Progress: Contracts for Supply of Digital Content to Consumers
Rafał Mańko
European Parliamentary Research Service

June 23, 2016 in Recent Scholarship | Permalink | Comments (0)