ContractsProf Blog

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

A Member of the Law Professor Blogs Network

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)

Wednesday, November 19, 2014

New in Print

Tuesday, November 18, 2014

Weekly Top Tens from the Social Science Research Network

Aided by the ContractsProf Blog BumpWhimsy Little Contracts is topping the charts.  Behold the power of the Blog!

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

RankDownloadsPaper Title
1 134 '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 
2 104 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
3 94 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
4 92 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
5 83 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
6 74 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
7 71 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
8 69 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
9 62 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
10 57 Contractual Indescendibility 
David Horton 
University of California, Davis - School of Law 

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

RankDownloadsPaper Title
1 74 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
2 69 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
3 62 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
4 56 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School
5 54 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
6 50 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
7 49 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
8 47 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law 
9 40 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 37 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 

 

November 18, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, November 11, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 114 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 113 '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 
3 100 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
4 92 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
5 84 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
6 76 Price Squeezes with Positive Margins in EU Competition Law: Economic and Legal Anatomy of a Zombie 
Nicolas Petit 
University of Liege - School of Law 
7 70 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
8 69 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
9 65 Insurance Agents in the 21st Century: The Problem of Biased Advice 
Daniel Schwarcz and Peter Siegelman 
University of Minnesota Law School and University of Connecticut - School of Law 
10 64 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
1 114 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 68 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
3 63 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School
4 59 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
5 50 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
6 50 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
7 49 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
8 49 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 
9 45 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law
10 37 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 

 

November 11, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, November 5, 2014

New in Print

Pile of BooksLynn Foster,. The Hands of the State: The Railure to Vacate Statute and Residential Renants' Rights in Arkansas. 36 U. Ark. Little Rock L. Rev. 1 (2013)

Damien Geradin, The Meaning of "Fair and Reasonable" in the Context of Third-Party Determination of FRAND Terms, 21 Geo. Mason L. Rev. 919 (2014) 

Joshua D. Wright,  SSOs, FRAND, and Antitrust: Lessons from the Economics of Incomplete Contracts, 21 Geo. Mason L. Rev. 791 (2014) 

Duquesne

Duquesne Law Review Drafting Our Future: Contract Law In 2025, 

52 Duq. L. Rev. 263-413 (2014)

SYMPOSIUM ARTICLES

The Judicial Vision of Contract: The Constructed Circle of Assent and Unconscionability
John E. Murray, Jr. 

The Future of Fault in Contract Law
Robert A. Hillman 

Two Alternate Visions of Contract Law in 2025
Nancy S. Kim

The Future of Many Contracts
Victor P. Goldberg 

A Eulogy for the EULA
Miriam A. Cherry 

The Death of Contracts
Franklin G. Snyder & Ann M. Mirabito

November 5, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, November 4, 2014

New Scholarship on Consumer Misconceptions Regarding Arbitration Clauses

SovernJeff Sovern  (pictured), with whom readers may be familiar from our recent virtual symposium, has a new paper on SSRN, co-authored with three of his St. John's colleagues, Elayne E. Greenberg, Paul F. Kirgis, and Yuxiang Liu.

The paper is titled "'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements." Here’s the abstract, though there’s obviously a lot more in the paper itself:

 

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box or accepting a product. 

This article reports on an empirical study exploring the extent to which consumers are aware of and understand the effect of arbitration clauses in consumer contracts. We conducted an online survey of 668 consumers, approximately reflecting the population of adult Americans with respect to race/ethnicity, level of education, amount of family income, and age. Respondents were shown a typical credit card contract with an arbitration clause containing a class action waiver and printed in bold and with portions in italics and ALLCAPS. Respondents were then asked questions about the sample contract as well as about a hypothetical contract containing what was described as a “properly-worded” arbitration clause. Finally, respondents were asked about their own experiences with actual consumer contracts. 

The survey results suggest a profound lack of understanding about the existence and effect of arbitration agreements among consumers. While 43% of the respondents recognized that the sample contract included an arbitration clause, 61% of those believed that consumers would, nevertheless, have a right to have a court decide a dispute too large for a small claims court. Less than 9% realized both that the contract had an arbitration clause and that it would prevent consumers from proceeding in court. With respect to the class waiver, four times as many respondents thought the contract did not block them from participating in a class action as realized that it did, even though the class action waiver was printed twice in bold in the sample contract, including one time in italics and ALLCAPS. Overall, of the more than 5,000 answers we recorded to questions offering right and wrong answers, only a quarter were correct. 

Turning to respondents’ own lives, the survey asked if they had ever entered into contracts with arbitration clauses. Of the 303 respondents who claimed never to have done so and who also answered a question asking whether they had accounts with certain companies that include arbitration clauses in their contracts, 264, or 87%, did indeed have at least one account subject to an arbitration clause. 

These and other findings reported in this Article should cause concern among judges and policy-makers considering mandatory pre-dispute consumer arbitration agreements. Our results suggest that many citizens assume that they have a right to judicial process that they cannot lose as a result of their acquiescence in a form consumer contract. They believe that this right to judicial process will outweigh what one respondent referred to as a “whimsy little contract.” Our results suggest further that citizens are giving up these rights unknowingly, either because they do not realize they have entered into an arbitration agreement or because they do not understand the legal consequences of doing so. Given the degree of misunderstanding the results demonstrate, we question whether meaningful consent is possible in the consumer arbitration context.

November 4, 2014 in Contract Profs, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 107 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 94 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
3 87 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
4 73 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
5 68 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
6 63 Insurance Agents in the 21st Century: The Problem of Biased Advice 
Daniel Schwarcz and Peter Siegelman 
University of Minnesota Law School and University of Connecticut - School of Law 
7 61 The (Il)Legitimacy of Bankruptcies for the Benefit of Secured Creditors 
Charles W. Mooney 
University of Pennsylvania Law School 
8 61 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
9 58 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
10 51 Selling Stories or You Can't Own This: Cultural Property as a Form of Collateral in a Secured Transaction Under the Model Tribal Secured Transactions Act 
Grant Christensen 
Charlotte Law

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

RankDownloadsPaper Title
1 107 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 61 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
3 58 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
4 55 From Contract to Status: Collaboration and the Evolution of Novel Family Relationships 
Elizabeth S. Scott and Robert E. Scott 
Columbia University - Law School and Columbia University - Law School 
5 51 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
6 49 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
7 48 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
8 46 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
9 43 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law 
10 32 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 

 

November 4, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, October 29, 2014

New in Print

Pile of BooksKenneth A. Adams, Beyond Words, Solicitors Journal, Sept. 30, 2014

Andrea J. Boyack, Common Interest Community Covenants and the Freedom of Contract Myth. 22 J.L. & Pol'y 767 (2014)

Jan De Bruyne, Liability of Classification Societies: Cases, Challenges and Future Perspectives, 45 J. Mar. L. & Com. 181 (2014)

Nancy S. Kim, Boilerplate and Consent, 17 Green Bag 293 (2014)

Jocelyn E. H. Limmer, China's New "Common Law": Using China's Guiding Cases to Understand How to Do Business in the People's Republic of China, 21 Willamette J. Int'l L. & Disp. Resol. 96 (2013) 

Mark R. Matthews, A Doomed Proposal for Uniform Commercial Code Section 2-207: That Official Comment Would Have Led to Confusion, Not Clarity, 44 Cumb. L. Rev. 223 (2013-2014) 

Erin O'Hara O'Connor & Christopher R. Drahozal, The Essential Role of Courts for Supporting Innovation, 92 Tex. L. Rev. 2177 (2014)

Peter B. Rutledge & Christopher R. Drahozal, "Sticky" Arbitration Clauses? The Use of Arbitration Clauses after Concepcion and Amex, 67 Vand. L. Rev. 955 (2014)

October 29, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, October 28, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 211 Rolling Back the Repo Safe Harbors 
Edward R. MorrisonMark J. Roe and Christopher S. Sontchi 
Columbia Law School, Harvard Law School and United States Bankruptcy Courts, District of Delaware 
2 96 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law
3 87 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
4 84 Contract Law and Regulation 
Giuseppe Bellantuono 
University of Trento - Faculty of Law 
5 82 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
6 76 Performance-Based Consumer Law 
Lauren E. Willis 
Loyola Law School Los Angeles 
7 66 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
8 66 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
9 62 Insurance Agents in the 21st Century: The Problem of Biased Advice 
Daniel Schwarcz and Peter Siegelman 
University of Minnesota Law School and University of Connecticut - School of Law 
10 62 Price Squeezes with Positive Margins in EU Competition Law: Economic and Legal Anatomy of a Zombie 
Nicolas Petit 
University of Liege - School of Law 

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

RankDownloadsPaper Title
1 96 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 60 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
3 52 From Contract to Status: Collaboration and the Evolution of Novel Family Relationships 
Elizabeth S. Scott and Robert E. Scott 
Columbia University - Law School and Columbia University - Law School
4 45 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
5 45 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
6 45 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
7 43 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
8 41 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law
9 40 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law 
10 29 The Network Contract in Italy: A Third Route between 'Contract' and 'Organisation'? 
Maurizio Sciuto 
Università degli Studi di Macerata

 

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

Tuesday, October 21, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 202 Rolling Back the Repo Safe Harbors 
Edward R. MorrisonMark J. Roe and Christopher S. Sontchi 
Columbia Law School, Harvard Law School and United States Bankruptcy Courts, District of Delaware 
2 168 Featuring People in Ads (2014 Edition) 
Eric Goldman and Rebecca Tushnet 
Santa Clara University - School of Law and Georgetown University Law Center 
3 131 Contract as Empowerment Part II: Harmonizing the Case Law 
Robin Bradley Kar 
University of Illinois College of Law 
4 94 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
5 86 Three Models of Promissory Estoppel 
Andrew Robertson 
Melbourne Law School 
6 82 Contract Law and Regulation 
Giuseppe Bellantuono 
University of Trento - Faculty of Law
7 73 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
8 71 Performance-Based Consumer Law 
Lauren E. Willis 
Loyola Law School Los Angeles 
9 66 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
10 60 Insurance Agents in the 21st Century: The Problem of Biased Advice 
Daniel Schwarcz and Peter Siegelman 
University of Minnesota Law School and University of Connecticut - School of Law 

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

RankDownloadsPaper Title
1 168 Featuring People in Ads (2014 Edition) 
Eric Goldman and Rebecca Tushnet 
Santa Clara University - School of Law and Georgetown University Law Center 
2 131 Contract as Empowerment Part II: Harmonizing the Case Law 
Robin Bradley Kar 
University of Illinois College of Law 
3 94 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
4 59 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
5 55 Disclaimers of Contractual Liability and Voluntary Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
6 48 Wolves of the World Wide Web: Reforming Social Networks’ Contracting Practices 
Michael L. Rustad and Thomas H. Koenig 
Suffolk University Law School and Northeastern University 
7 48 From Contract to Status: Collaboration and the Evolution of Novel Family Relationships 
Elizabeth S. Scott and Robert E. Scott 
Columbia University - Law School and Columbia University - Law School 
8 45 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
9 42 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
10 38 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law

 

October 21, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, October 14, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 198 Rolling Back the Repo Safe Harbors 
Edward R. MorrisonMark J. Roe and Christopher S. Sontchi 
Columbia Law School, Harvard Law School and United States Bankruptcy Courts, District of Delaware 
2 162 Featuring People in Ads (2014 Edition) 
Eric Goldman and Rebecca Tushnet 
Santa Clara University - School of Law and Georgetown University Law Center 
3 127 Contract as Empowerment Part II: Harmonizing the Case Law 
Robin Bradley Kar 
University of Illinois College of Law 
4 85 Three Models of Promissory Estoppel 
Andrew Robertson 
Melbourne Law School 
5 84 Unbundling Efficient Breach 
Maria BigoniStefania BortolottiFrancesco Parisi and Ariel Porat 
University of Bologna - Department of Economics, University of Bologna - Department of Economics, University of Minnesota - Law School and Tel Aviv University 
6 84 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
7 73 Contract Law and Regulation 
Giuseppe Bellantuono 
University of Trento - Faculty of Law 
8 66 Performance-Based Consumer Law 
Lauren E. Willis 
Loyola Law School Los Angeles 
9 62 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
10 62 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 

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

RankDownloadsPaper Title
1 162 Featuring People in Ads (2014 Edition) 
Eric Goldman and Rebecca Tushnet 
Santa Clara University - School of Law and Georgetown University Law Center 
2 127 Contract as Empowerment Part II: Harmonizing the Case Law 
Robin Bradley Kar 
University of Illinois College of Law 
3 84 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
4 55 Disclaimers of Contractual Liability and Voluntary Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
5 53 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
6 48 From Contract to Status: Collaboration and the Evolution of Novel Family Relationships 
Elizabeth S. Scott and Robert E. Scott 
Columbia University - Law School and Columbia University - Law School 
7 46 Wolves of the World Wide Web: Reforming Social Networks’ Contracting Practices 
Michael L. Rustad and Thomas H. Koenig 
Suffolk University Law School and Northeastern University 
8 45 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
9 41 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
10 31 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law 

October 14, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Friday, October 10, 2014

Guest Post: Robin Kar, The Emerging New Life of Contract Law Studies, Part IV

KarThis is the fourth in a four-part post by Robin Kar that serves as a sort of coda to our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure 

Part I, The Proverbial “Egg,” can be found here.

Part II, Breaking Out of the Shell, can be found here.

Part III, What Is This Emerging New Life? can be found here.

Part IV: Discarding the Last Remnants of the Old Shell

When reading More Than You Wanted to Know together with the reactions in the virtual symposium, I have been struck by two facts. First, we clearly know much more about how mandatory disclosure regimes work than ever before. Details aside, a consensus is emerging that these regimes do not always help consumers make better decisions. Second, despite this increase in knowledge and emerging consensus over the problem, there is even more uncertainty and even less consensus over how consumer protection should be reformed in light of these facts.  

            i.          Diagnosing the Problem

How can more clarity about the empirical facts lead to less clarity about what the law should be? I believe that part of the reason is simple: many of the current debates over these issues are still insufficiently attentive to the rigorous types of argumentation needed to address the purely normative aspects of these questions. To be more specific, the third premise of the classical law and economics movement (see Part I) has not yet been replaced by rigorously developed lines of argumentation from the appropriate cognate fields—as has happened with the first two premises. 

MoreIn saying this, I do not mean to suggest that rigorous argumentation on these topics is lacking. I mean to highlight a sociological fact about the current legal academy. I believe that the right lines of argument have not yet been sufficiently absorbed by contract law scholars who work in and around the law and economics paradigm. Because of the predominance and recent expansions of this paradigm within the study of contract law, this third premise is increasingly assumed or tacitly accepted by many other contract law scholars. This includes many scholars who do work predominantly in law and psychology or engage in straightforward empirical legal research.

In More Than You Wanted to Know, Ben-Shahar and Schneider are, for example, apparently willing to accept that the primary purpose of consumer protection law is to help consumers make better decisions. This is why they recommend better advice instead of more disclosure. But interestingly enough, almost all of the people who have responded critically in this symposium appear to accept—either explicitly or tacitly—either the same normative proposition or the alternative view that consumer protection laws should be set up to promote social welfare more generally. (The most notable exception is Aditi Bagchi’s response—though Steven Burton’s plea that the authors spend more time thinking about obligation may represent a similar thought.)

Hence, there is a normative assumption running through many of the current debates. The assumption is that consumer protection laws should be shaped to promote either better subjective choice or human welfare more generally. But is this normative premise true? And before we even get to that question: how might we determine whether it is true?

After the jump, I will pursue these questions. I will suggest that we cannot get clearer about the appropriate shape of consumer protection law, however, until we ask the right normative questions. And I will suggest that we are not yet doing that in major areas of contract law studies.

Continue reading

October 10, 2014 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2014

Guest Post: Robin Kar, The Emerging New Life of Contract Law Studies, Part III

KarThis is the third in a four-part post by Robin Kar that serves as a sort of coda to our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure 

Part I, The Proverbial “Egg,” can be found here.

Part II, Breaking Out of the Shell, can be found here.

Part III: What IsThis Emerging New Life?

In Part II, I described how More Than You Wanted to Know seeks to answer psychological and empirical questions relevant to consumer protection law based not on ungrounded psychological premises or the kind of abstract theoretical reasoning that is typically associated with the classical law and economics paradigm but rather on actual psychological and empirical research. I suggested that these methodological moves explain the power of the book to take us much closer to the truth about use and sufficiency of mandatory disclosure regimes to cure a host of problems in consumer contracting.

As someone interested in methodology and the sociology of knowledge production in the legal academy, I find developments like these incredibly interesting. I am fascinated by the fact that they are often viewed as developments internal to the law and economics movement—even though they essentially dispense with some of its early guiding premises and draw on methodologies from other cognate fields.

The movement to replace classical economic assumptions about human decision-making with psychological facts is, for example, sometimes called “behavioral economics”. But what is really happening is that classical economic assumptions about human psychology are being replaced with direct psychological research into the relevant facts. Similarly, the move to replace economic modeling with rigorous empirical research is sometimes called “econometrics”. But what is really happening—at least within the legal academy—is that fewer law and economics scholars are making predictions about legal rules based merely on theoretical modeling and more are engaging in genuine empirical research. When they do this, they typically use statistical and other methods developed in the social sciences more generally—and not methods specific to the field of economics.  

Morethan In my view, one of the greatest virtues of some parts of the law and economics movement is that it has been willing to revise many of its early premises and adopt methodologies from other fields when necessary to make its scholarship better track the truth. This willingness is also one of its greatest sources of continuing strength. Because of this willingness, the field has essentially been able to absorb a broad range of criticisms, while continuing to broaden in influence and produce scholarship that better tracks the truth. More Than What You Wanted to Know is a wonderful example of this development—at least when it come to curing distortions caused by the first two premises of the classical law and economics paradigm.  (For a description of these 3 premises, see here.)  

Still, as far as I know, there is not yet any name for the move to replace ungrounded economic assumptions about how to assess normative arguments (i.e., premise 3 from Part I) with rigorous thought developed by experts in the appropriate cognate fields. These are the fields of moral, legal and political philosophy, along with the field of meta-ethics. Corresponding to this fact, there is not yet as robust an acknowledgment of the need for this move within many influential contract law circles.

When I say I believe significant new life may be emerging in the study of contract law, I am nevertheless referring to the possibility that all three of the classical law and economics premises be replaced with rigorous lines of evidence and argumentation drawn from the correct cognate fields. I am referring to a highly interdisciplinary research program that draws on (1) our best contemporary psychological findings into decision-making and how humans operate with legal rules when asking psychological questions relevant to contract law, (2) rigorous empirical research into the consequences of different legal rules when adopted by groups with real human psychologies, and (3) philosophically well-grounded argumentation and debate over the normative propositions that are most relevant to contract law.

I am describing a hope, not an expectation—because it is we, as a field, who will decide whether this new life fully emerges. 

For a range of historically contingent reasons, the classical law and economics movement may just end up serving as the early vehicle (or the proverbial “egg”) for this transition within the legal academy. I believe that would be an incredibly good thing for the study of contract law because it would essentially allow the legal academy to adapt a ready-made set of social and academic networks that are already studying this subject matter intensively and in highly influential manners. But this would also require a much greater appreciation by scholars who work within this paradigm of the need for more rigorous philosophical input on normative questions.

The result would, moreover, not just be an expanded sub-field of law and economics. It would be better described as a fully informed search for the truth. The proverbial “egg” will have given birth to something much, much better.

But we are not yet there yet. There is still too large a disconnect between moral and political philosophers and economists within the legal academy. Hence, a great deal of highly influential work on contract law still risks producing distortion. In Part IV, I will show how this problem still affects many discussions of consumer protection law. I will also make a plea that we work together to breath the right new life into contract law studies going forward.

October 9, 2014 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Guest Post: Robin Kar, The Emerging New Life of Contract Law Studies, Part II

KarThis is the second in a four-part post by Robin Kar that serves as a sort of coda to our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure 

Part I, The Proverbial “Egg,” can be found here.

Part II: Breaking Out of the Shell

As we all know, the law and economics movement has proven a formidable force within the legal academy, especially in relation to subjects like contract law. As recently as 2012, even Charles Fried, the author of Contract as Promise, was forced to acknowledge that “the economic analysis of law may today be the dominant intellectual approach to legal institutions generally and contract law in particular.”

Because of Omri Ben-Shahar’s training and intellectual ties, many will view More Than What You Wanted to Know as a work that is partly internal to the law and economics movement. This affiliation should help the book because it will allow the book to speak credibly to a wide range of influential contract law scholars who currently share this affiliation. The book ultimately challenges one of the early dogmas of the classical law and economics paradigm, as described in my prior post, but—because of the book’s intellectual affiliations—the book can pose this challenge in an especially effective manner.

It should nevertheless be noted that the central insights in the book arise not from anything specific to the field of law and economics but rather from rejection of the field’s first two classical premises. With respect to human psychology (see premise 1 in Part I), Ben-Shahar and Schneider do not simply assume that consumers make more rational decisions whenever more facts are disclosed to them. Instead, they canvass a wealth of psychological evidence to the contrary. This evidence shows that consumers are especially likely to make poorer decisions as their choices become more complex and unfamiliar and when those terms are dictated by sophisticated contracting parties. 

When determining the likely consequences of legal rules (see premise 2 in Part I), the authors similarly avoid abstract economic modeling and turn instead to direct empirical data. They draw this empirical data from a broad range of sources, and the facts suggest that mandatory disclosure regimes have increasingly begun to harm consumers in many contexts. 

Itunes scrollOne reason for this is dynamic. Over time, mandatory disclosure regimes tend to lend increasing complexity and unfamiliarity to even the most banal of transactions. In one particularly poignant example, the authors describe the $.99 purchase of an iTunes song—which was accompanied by 32 feet of complex and often incomprehensible boilerplate (when printed out in a tiny font, as illustrated on the left). One of the underappreciated consequences of mandatory disclosure regimes is that they have increasingly begun to flummox consumers in even the simplest of transactions.

In highlighting facts like these, More Than You Wanted to Know takes us much closer to the truth about mandatory disclosure regimes than classical law and economics methodologies can. Speaking from a purely methodological perspective, it is able to do this because it is willing to abandon the first two premises of the classical paradigm and replace them with something better. It seeks to answer psychological and empirical questions relevant to consumer protection law based not on ungrounded premises but rather on actual psychological and empirical research.

This is an example of the emerging new life that I see in contract law studies. It is a better life because it is more likely to track the truth.

In my next post, I will nevertheless reflect more deeply on this new life. I will ask whether we have gone far enough as a field to make it really come to life. Have we—in other words—gone far enough yet to ensure that our collective research best tracks the truth?

October 9, 2014 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)