ContractsProf Blog

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

A Member of the Law Professor Blogs Network

Wednesday, January 28, 2015

Conference on the CISG at 35

January 28, 2015 in Conferences, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, January 27, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 339 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 164 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
3 154 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
4 149 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
5 134 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
6 118 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
7 96 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
8 75 Genealogies of Lex Mercatoria 
Nikitas Hatzimihail 
University of Cyprus, Department of Law 
9 70 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
10 66 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 

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

RankDownloadsPaper Title
1 164 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
2 149 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
3 134 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 96 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
5 86 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
6 70 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
7 66 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
8 54 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
9 50 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
10 48 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 

 

January 27, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Friday, January 23, 2015

Merchantability Applied to Legal Scholarship

Katowice Fair Building Collapse graphic

 

We know that merchantability means passing without objection in the trade. If law review articles were goods, what would that trade be? For law professors, it  seems like it is second and third year law students.  At some level it would also reviewers of works when a professor is considered for promotion. Recently, though, a colleague of mine and I did a bit of research and began to wonder if acceptable in the trade -- as defined by law students and law professors --  is a meaningful strandard within the trade of academia.

Law professors who do research are generally spending the money of others. The actual buyers are, therefore, those who pay  for the scholarship. Let's add that they have no idea what the standard is but would uniformly agree that every article should make someone or something better off and should reflect high quality research. Students and reviewers should be regarded as agents for those paying the bills.

If that is the measure of merchantability (and why wouldn't it be) then editors and reviewers should apply that standard in their own decisions. Clearly they do not and left to their narrow and inappropriate standard for merchantability we have  massive amounts of scholarship that, let's face  it, is written to justify being granted tenure.  There is little verification that most, no matter how carefully done or clever, actually benefits anyone. Some of it -- a small percentage -- is cited but rarely for the substantive points made as opposed to piggy-backing on a fact asserted in the first work.  Morever the research is often sloppy.  Here is an example. I recently read an article that makes the claim that a certain area of law is now consistent with empirical studies. I looked at the cite and it was to another professor who had not actualy done any empirical work and did not quite say what was claimed. And the work cited by that professor was not on the point made in the first article. In fact the most frequent cite is  the hearsay cite in which the author makes a claim because someone else made the same claim.

I expect readers of this will disagree but shouldn't the test of merchatability mean making someone or something (even if a fish) better off and shouldn't documentation be careful and accurate? Don't misunderstand, much of scholarship meets these standards. But much of what currently passes in the trade without objection does not. 

January 23, 2015 in Commentary, Current Affairs, Law Schools, Miscellaneous, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, January 22, 2015

Recent Scholarship: Mark Burge

Burge_Mark_100webTexas A & M School of Law Contracts Prof Mark Burge (pictured) has posted a new article on SSRN: 

Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code

The Abstract is provided below, and the article is available for download here

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1 301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This article contends that this political failure within the simultaneous success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred, not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that “no one is above the law” and the related ideal of maintaining “a government of laws, and not of men.” Proposed section 1-301 transgressed those ideals by taking something labeled as “law” and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not—to an American audience—make sense in theory.

January 22, 2015 in Legislation, Recent Scholarship | Permalink | TrackBack (0)

Wednesday, January 21, 2015

New in Print (including books!)

Pile of BooksJason T. Brown & Zijian Guan, Click to Accept (You Now Have No Rights!), 31 Hofstra Lab. & Emp. L.J. 411 (2014) 

Larry A. DiMatteo (ed.), International Sales Law: A Global Challenge (Cambridge University Press 2014)

Martin Hogg & Larry A. DiMatteo (eds.), Comparative Contract Law:  British and American Perspectives (Oxford University Press 2015) (forthcoming)

Mark Kesten, Collateral Damage: Will the 360 Deal Be the Next Victim of California's Talent Agencies Act, 43 Sw. L. Rev. 397 (2014)

Karen E. Sandrik, Formal but Forgiving: A New Approach to Patent Assignments, 66 Rutgers L. Rev. 299 (2014)

Lynn A. Stout, Killing Conscience: The Unintended Behavioral Consequences of "Pay for Performance," 39 J. Corp. L. 525 (2014)

January 21, 2015 in Books, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, January 20, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 316 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law
2 160 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
3 141 The Justice of Private Law 
Hanoch Dagan and Avihay Dorfman 
Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law 
4 140 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
5 138 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
6 116 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
7 111 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
8 110 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department
9 99 Patent Pledges 
Jorge L. Contreras 
University of Utah - S.J. Quinney College of Law 
10 99 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 

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

RankDownloadsPaper Title
1 160 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
2 140 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law
3 116 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
4 111 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
5 99 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 
6 87 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
7 84 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
8 68 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
9 51 Sham and Trusts 
Matthew Conaglen 
University of Sydney - Faculty of Law 
10 46 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 

January 20, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, January 19, 2015

What's So Great about Being the Master of the Offer?

I recently came across an article by Professor Sidney Kwestel that has many good and interesting things to say about the UCC's famous battle of the forms section, 2-207.  However, Professor Kwestel suggests the UCC § 2-207(2)'s "knock out rule" cannot be right because it violates "a basic contract concept--that the offeror is the master of the offer."  

Master Yoda
Now that's a real master

I've always understood the "rule" that the offeror is the master of the offer to mean only that: (1) the offeror is free to revoke the offer at any time before acceptance; and (2) under the common law, the offeror can treat any purported acceptance that is not a mirror image of the offer as a rejection of the offer and a counteroffer.  In my view, the notion is hardly a "basic concept."  It's more like a slogan.  You think you are the master of your offer.  Big deal.  I'll make you a counteroffer.  Then I'm the master.  Oooh la la.  

Professor Kwestel thinks it absurd that an expression of assent could operate as assent to some terms but not others.  However, the result is worse for the offeror under the common law.   Under the last shot rule, the counterofferor's terms do not just knock out the offeror's terms, they replace them.  Since the UCC's version of the battle of the forms eliminates both the mirror image rule and the last shot rule, it reduces the slogan to its first meaning -- it only permits revocation at any time before acceptance.  The result is much more even-handed as to whose terms govern, and I count that as a win.

Certainly there are problems about what to do with different terms under § 2-207, and Professor Kwestel's article is very good about illuminating the difficulty navigating between the text of the section and the reporter's comments.  While I can easily concede that it has its flaws, I think the problems with the knock-out rule are more textual than conceptual. 

January 19, 2015 in Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Stanford Conference in Honor of Richard Craswell

Who Knows?:
Law in an Information Society

A Festschrift in Honor of Richard Craswell

Feb. 6-7, 2015 on the Stanford Law School campus

Stanford

We live in a time when information—about costs, parties, alternatives, and laws—is more important than ever before. This symposium brings together 25 leading scholars in law and economics, contracts, commercial law, antitrust law, and other topics relating to how litigants, regulators, and policymakers can use information to inform their decisionmaking.

The Stanford Law Review is pleased to present this symposium to celebrate Professor Craswell and his tremendous contributions across many areas of law. Articles will be presented by Ian Ayres and Barry Nalebuff, Louis Kaplow, Alan Schwartz, Christine Jolls, and Tess Wilkinson-Ryan and David Hoffman, and papers will be presented by Matthew Spitzer and Richard Brooks. Many other noted scholars from around the country will serve as discussants.

 Attendance is free: See a full schedule and register HERE!

January 19, 2015 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 13, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 513 Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation 
S.I. Strong 
University of Missouri School of Law 
2 282 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
3 156 Regulating for Rationality 
Alan Schwartz 
Yale Law School 
4 153 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
5 138 The Justice of Private Law 
Hanoch Dagan and Avihay Dorfman 
Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law 
6 131 Legal by Design: A New Paradigm for Handling Complexity in Banking Regulation and Elsewhere in Law 
Paul LippeDaniel Martin Katz and Dan Jackson 
OnRamp Systems, Michigan State University - College of Law and Northeastern University - NuLawLab 
7 130 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
8 118 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
9 113 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
10 104 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 

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

RankDownloadsPaper Title
1 153 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
2 130 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
3 113 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
4 95 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 
5 83 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
6 81 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
7 79 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
8 65 Unfair Prices in the Common European Sales Law 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
9 62 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
10 47 Sham and Trusts 
Matthew Conaglen 
University of Sydney - Faculty of Law 

 

January 13, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, January 7, 2015

New in Print

Pile of BooksKimberly C. Emery & Robert E. Emery, Who Knows What Is Best for Children? Honoring Agreements and Contracts between Parents Who Live Apart, 77 Law & Contemp. Probs. 151 (2014)

Susan Landrum, Much Ado about Nothing?: What the Numbers Tell Us about How State Courts Apply the Unconscionability Doctrine to Arbitration Agreements, 97 Marq. L. Rev. 751 (2014)

Bonnie Spiro Schinagle, Considering the Individualized Education Program: A Call for Applying Contract Theory to an Essential Legal Document, 17 CUNY L. Rev. 195 (2013)

Gregory Scopino, Regulating Fairness: The Dodd-Frank Act's Fair Dealing Requirement for Swap Dealers and Major Swap Participants, 93 Neb. L. Rev. 31 (2014)

Eric A. Zacks, Shame, Regret, and Contract Design, 97 Marq. L. Rev. 695 (2014)

January 7, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, January 6, 2015

Weekly Top Tens from the Social Science Research Network

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

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

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

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

 

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

Tuesday, December 30, 2014

Weekly Top Tens from the Social Science Research Network

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

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

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

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

 

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

Tuesday, December 23, 2014

Weekly Top Tens from the Social Science Research Network

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

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

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

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

 

 

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

Wednesday, December 17, 2014

New in Print

Tuesday, December 16, 2014

Weekly Top Tens from the Social Science Research Network

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

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

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

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

 

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

Wednesday, December 10, 2014

Two Contracts Panels at the AALS Annual Meeting

he AALS Contracts Section is sponsoring/co-sponsoring the following two programs at the AALS 2015 Annual Meeting.  

AALS

The Contract Section annual meeting program will be on Saturday, January 3, 2015 at 1:30-3:15pm

Mind the Gap! – Contracts, Technology and Legal Gaps

 Technological innovation has created new challenges for the law.  New technologies often create legal and ethical questions in areas such as privacy, employment, reproduction and intellectual property.

Courts and legislatures are often slow to address these questions.  To fill the legal gap created by rapid advancements in technology, businesses and individuals attempt to reduce their risk and uncertainty through private ordering.  In what ways have contracts been used to privately legislate in the gap created by technological advancements?  What are, or should be, the limits of consent and contracting where emerging technologies are involved?  What are some of the concerns?  Our panel of experts will address these and other issues. 

Speakers:

Eric Goldman, Professor, Santa Clara University School of Law
Woodrow N. Hartzog, Associate Professor, Samford University Cumberland School of Law (topic: “The Unique Role of Contracts and Design in Mediated Environments")
Nancy S. Kim (moderator), California Western School of Law
Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation
Jane Winn, Professor, University of Washington School of Law (topic: “Llewellyn Has Left the Building:  The Growing Irrelevance of the UCC to 21st Century American Sales")
Deborah Zalesne, Professor, CUNY School of Law (topic:  “The Contractual Family:  Modern Solutions for Modern Day Families”).

In addition, and new this year, the Contracts Section and the Section on Consumer and Commercial Law will hold a joint program aimed at pedagogy and new law teachers.

Saturday, January 3, 2015 at 5:15pm-6:30pm

Teaching in the Contracts/Commercial/Consumer Law Curriculum:  Challenges and Innovations 

This program addresses the many issues faced by new law teachers the areas of contracts commercial and consumer law.  Because of the overlapping nature of these three subject areas, new law teachers in any one of these subject areas may often teachin on one or both of the other subject areas.  Each of these areas, however, has its unique challenges.  Experienced law teachers in contracts, commercial law and consumer law will discuss the techniques, strategies and tools they use to teach their students, and the relevance and value of bringing and eliciting diverse perspectives into the classroom.

Speakers: 

Emily E. Kadens, Northwestern University School of Law
Jennifer S. Martin (moderator) St. Thomas University School of Law
Deborah Waire Post, Touro College, Jacob D. Fuchsberg Law Center
M. Dee Pridgen, University of Wyoming College of Law
Anthony Eudelio Varona, American University, Washington College of Law

We look forward to seeing you next month!

The AALS Contracts Section Executive Committee

Curtis Bridgeman
Richard Brooks
Larry Garvin
Danielle K. Hart
Emily M.S. Houh
Nancy S. Kim
Jennifer Martin
Val D. Ricks

December 10, 2014 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 2, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 329 Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation 
S.I. Strong 
University of Missouri School of Law 
2 163 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
3 140 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
4 130 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
5 123 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
6 113 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
7 103 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
8 98 Regulating for Rationality 
Alan Schwartz 
Yale Law School 
9 96 The Justice of Private Law 
Hanoch Dagan and Avihay Dorfman 
Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law 
10 77 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School

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

RankDownloadsPaper Title
1 130 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
2 77 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
3 77 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 
4 67 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
5 66 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
6 58 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
7 54 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 
8 53 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
9 51 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
10 48 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 

 

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

Wednesday, November 26, 2014

New in Print (including a new book!)

Steven W. Feldman, Mutual Assent, Normative Degradation, and Mass Market Standard Form Contracts (a two-part critique of Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law (part I), 62 Clev. St. L. Rev. 373 (2014).


Alan Schwartz & Joel Watson. Conceptualizing Contractual Interpretation. 42 J. Legal Stud. 1 (2013).

And, for our readers only!

 Hart Publishing is delighted to offer you 20% discount on this title

 English and European Perspectives on Contract and Commercial Law

Essays in Honour of Hugh Beale

Edited by Louise Gullifer and Stefan Vogenauer

Beale BookThe purpose of this book is to honour the influential and wide-ranging work of Professor Hugh Beale, who retires from full time teaching at Warwick University this year. It contains essays by twenty-five very distinguished authors, each of whom has worked with Professor Beale as a co-author, as a teaching colleague, during his time as Law Commissioner of England and Wales, or as part of the study groups working in Europe on contract and commercial law. The essays reflect different aspects of Professor Beale's interests. Some concentrate on English contract law, either from a historical or a current perspective, while others are focused on aspects of European contract law.  There are four essays looking at current issues relating to security and financing, and, as befits a former Law Commissioner, three essays on law reform. The essays in the final section discuss trends in transnational and European commercial law. This book brings together the reflections of eminent writers from all over Europe on important issues facing contract and commercial law, and will be of interest to all scholars and practitioners working in these areas.

Louise Gullifer is Professor of Commercial Law at the University of Oxford, and is Fellow and Tutor in Law at Harris Manchester College, Oxford. She is an associate member of 3 Verulam Buildings and a Bencher of Gray's Inn.

Stefan Vogenauer is Linklaters Professor of Comparative Law at the University of Oxford, Director of the Oxford Institute of European and Comparative Law, and a Fellow of Brasenose College, Oxford.

October 2014     9781849465496     424pp     Hardback     RSP: £65

Discount Price: £52  

Order Online in the US

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

US website: http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849465496

Order Online in the UK, EU and ROW

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

UK, EU and ROW website: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465496

November 26, 2014 in Books, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, November 25, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 291 Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation 
S.I. Strong 
University of Missouri School of Law 
2 155 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
3 131 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
4 126 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
5 118 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
6 110 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
7 100 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
8 77 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
9 74 Regulating for Rationality 
Alan Schwartz 
Yale Law School 
10 73 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 

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

RankDownloadsPaper Title
1 126 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
2 77 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
3 73 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 
4 66 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
5 58 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law
6 58 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
7 50 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
8 50 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
9 47 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 
10 39 Unexpected Circumstances Arising from Word War I and Its Aftermath: 'Open' versus 'Closed' Legal Systems 
Janwillem Oosterhuis 
Maastricht University - Faculty of Law 

 

November 25, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 24, 2014

Blogosphere Debate on "Whimsy Little Contracts"

SovernFriend of the blog Jeff Sovern, and his co-authors are creating quite a stir with their article that has been topping the charts on SSRN, 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements.

You can follow the discussion in the blogosphere at these sites:

Alan S. Kaplinsky and Mark J. Levin start things off  on Ballard Spahr's CFPB Monitor.  They make two main points.  First,  arbitration language  is generally quite easy to understand.  Second, it does not matter whether or not consumers know what they are getting into when they enter into a credit card agreement with an arbitartion clause if consumer arbitration is actually good for consumers.

Jeff Sovern responds on the Consumer Law and Policy blog to a number of the CFPB Monitor points, but on the main question of whether or not consumers benefit from arbitration, he concedes that the study did not attempt to answer that question  Rather, the point is that the basis for such arbitration is consent, and his study shows that consumers do not give meaningful consent to arbitration.

On the ADR Prof Blog, Sovern's co-author Paul Kirgis has a short response, the substance of which is as follows:

Levin and Kaplinsky don’t actually address the core problem we address in our article–that citizens are being unwittingly and unwillingly forced to give up important (and constitutionally guaranteed) procedural rights. Their point–and it is the point arbitration advocates almost invariably make–is that arbitration can be better for consumers than litigation. That may very well be true, at least some of the time. (See my post on the benefits of limited consumer arbitration here.) But it doesn’t answer the right question.

Kaplinsky and Levin have filed their response on Ballard Spahr's CFPB Monitor. They reiterate their argument, citing numerous court opinions, that arbitration clauses can be readily understood by consumers.  They remind readers that the purpose of the Federal Arbitration Act was to prevent courts from treating arbitration agreements differently from other agreements.  An arbitration clause in an otherwise enforceable agreement ought to be enforceable just as any other term in the agreemnt would be.

My questions in these debates are always the same.  If arbitration clasues are potentially beneficial to consumers, why make them mandatory?  Provide for arbitration as an option and make clear that if a consumer chooses to arbitrate, she cannot also sue.  In addition, what of class action waivers, which now often accompany arbitration provisions?  Kaplinsky and Levin claim that some studies show that plaintiffs do better off in individual arbitrations than they do in class actions, but I don't know how studies could show that since (so the argument goes), in some cases plaintiffs won't file claims at all unless they can do so through class actions.

November 24, 2014 in Commentary, Recent Scholarship, Weblogs | Permalink | Comments (1) | TrackBack (0)