ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, July 21, 2016

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

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

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

 

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

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

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

Tuesday, July 19, 2016

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

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

Here is Professor Bernstein's abstract:

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

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

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

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

Thursday, July 14, 2016

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

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

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

 

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

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

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

Thursday, July 7, 2016

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

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

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

 

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

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

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

Tuesday, July 5, 2016

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

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

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

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

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

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

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

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

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

Thursday, June 30, 2016

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

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

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

 

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

Thursday, June 23, 2016

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

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

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

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

Friday, June 17, 2016

Scholarship Spotlight: Noncompete Agreements as Thirteenth Amendment Violations (Ayesha Bell Hardaway - Case Western)

Non_Comp_AgreementsCovenants not to compete have long been recognized as a species of contract raising a host of public policy concerns, but at what point do these concerns rise from being issues of policy to being constitutional concerns? The Thirteenth Amendment often makes a brief appearance in the contracts curriculum in discussions of why specific performance is usually not available for personal services or employment contracts. That is, the notion of an employee being compelled by law to work in a job from which she has resigned raises uncomfortable analogues to slavery and other forced labor. In her recent article, "The Paradox of the Right to Contract: Noncompete Agreements as Thirteenth Amendment Violations," Ayesha Bell Hardaway (Case Western) raises the Thirteenth Amendment in a different setting, the enforcement of noncompetition agreements against at-will low-skilled employees. Here is her abstract:

There is a growing trend across the nation for employers to require low-level, unskilled workers to execute noncompete agreements as a condition of being hired to work as an at-will employee. The application of noncompete agreements in low-wage positions occupied by unskilled workers is outside of the original scope and purpose of such agreements. These individuals lack both bargaining power and protection from being terminated without cause. Moreover, upon termination of their employment, the executed noncompete agreement can legally prevent these workers from securing employment with another company.

Ayesha_bell_hardaway ) Case WesternThe enforcement of noncompete agreements in these circumstances may require low-level, unskilled workers to choose between lengthy bouts of unemployment or what would essentially amount to “wage slavery.” The Reconstruction Era debates reveal that the Thirteenth Amendment’s prohibition against slavery and indentured servitude was intended to prevent such injustices. Though Section 1 of the amendment contains only thirty-two words, the debates held before, during and after the ratification of the amendment provide a full illustration as to what Congress deemed to be “fair and just labor relations” in America. That original notion of “fair and just labor relations” provides timeless and substantive guidance on how to identify and rectify power imbalances in employer-employee relationships.

This paper will argue that contemporary noncompete agreements between employers and unskilled, low-wage workers is a violation of the Thirteenth Amendment. Part I discusses the original intent of the Thirteenth Amendment to protect both African Americans and working-class white Americans. Part II identifies the types of imbalanced work conditions denounced by the Reconstruction Era Congress as “perpetuations of slavery” as well as benefits of free, or non-enslaved, labor identified by Congress and illustrates why contemporary noncompete agreements between employers and unskilled workers is outside of that original purpose. Part III discusses Bailey v. Alabama and Ford v. Jermon to illustrate that, at one point, the judiciary correctly interpreted and applied the laws to employment-related disputes as the legislature intended. The paper concludes by suggesting that courts should re-examine the Thirteenth Amendment and its historical context to void noncompete agreements for low-wage, at-will unskilled employees.

Contracts professors are not the most frequent residents ofthe realm of Constitutional Law, so an article like Professor Hardaway's that successfully occupies space in both areas is well worth noting.  "The Paradox of the Right to Contract: Noncompete Agreements as Thirteenth Amendment Violations" is available at 39 Seattle U. L. Rev. 957 (2016) and is available for SSRN download here.

June 17, 2016 in Recent Scholarship | Permalink

Thursday, June 16, 2016

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

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

Rank Downloads Paper Title
1 575 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
2 112 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
3 96 Current Trends in Consumer Junk Debt Buyer Litigation
Peter A. Holland
University of Maryland Francis King Carey School of Law
4 76 Nudging and Autonomy. A Philosophical and Legal Appraisal
Philipp Hacker
Humboldt University of Berlin
5 63 EU Legislation in Progress: Contracts for Supply of Digital Content to Consumers
Rafał Mańko
European Parliamentary Research Service
6 61 Once Upon a Transaction: Narrative Techniques and Drafting
Susan Chesler and Karen J. Sneddon
Arizona State University (ASU) - Sandra Day O'Connor College of Law and Mercer Law School
7 63 The Contract Clause during the Civil War and Reconstruction
James W. Ely
Vanderbilt University - Law School
8 70 Assessment of Damages: Three Specific Problems – The Draft Common European Sales Law in Context
Reinhard Zimmermann
Max Planck Institute for Comparative and International Private Law
9 70 Reining in the Big Promise of Big Data: Transparency, Inequality, and New Regulatory Frontiers
Philipp Hacker and Bilyana Petkova
Humboldt University of Berlin and European University Institute
10 64 Contracts Governing the Use of Websites
Eliza Karolina Mik
Singapore Management University

 

SSRN Top Downloads For SSRN Logo (small)
LSN: Contracts (Topic)

This list does not contain a current update by SSRN.

June 16, 2016 in Recent Scholarship | Permalink

Friday, June 10, 2016

Scholarship Spotlight: "Is Rule of Law an Equilibrium Without Private Ordering?" (Gillian K. Hadfield, USC & Barry R. Weingast, Stanford)

Rule-of-lawEnforceability of promises by ultimate resort to governmental power is a cornerstone of contract doctrine. If you don't believe that statement, go re-read section 1 of the Restatement (Second) of Contracts. Nonetheless, Professors Gillian Hadfield (University of Southern California, Law) and Barry Weingast (Stanford, Political Science) take a different approach to theorizing about law generally, an approach suggesting--among other things--that the law of contracts does not hinge first and foremost upon the role of government at all. Hadfield and Weingast instead assert that a "legal system cannot achieve rule of law . . . unless there is an essential role for private, decentralized, enforcement of law." Here is the authors' abstract:

Gillian Hadfield (Southern Cal)Almost all theorizing about law begins with government. In a series of papers we challenge this orthodoxy. Our “what-is-law” approach places private enforcement at the center of a theory of law. The critical public component that distinguishes legal from social order is not public enforcement but rather a public, common knowledge, and stewarded normative classification institution that designates what is and what is not acceptable conduct in a community. Law emerges, we argue, to better coordinate and incentivize decentralized collective punishment (that is, private ordering: sanctions imposed by individuals not in an official capacity.)

Our work to date shows that the social order produced by a centralized classification institution supported exclusively by decentralized enforcement is characterized by several normatively attractive features. We call these features legal attributes. They include features routinely understood in the legal philosophical literature as characteristic of the rule of law: generality, published, clear, prospective, and stable.

Barry Weingast (Stanford-PolySci)Importantly, the legal attributes we identify do not arise from normative claims about law. Rather, they arise from our positive analysis sustaining an equilibrium based on centralized classification when enforcement requires the voluntary participation of ordinary citizens. These legal attributes are necessary to secure coordination and incentive compatibility in a regime of fully decentralized enforcement. Without them, the effort to sustain an equilibrium based on centralized classification fails. A regime characterized by rule of law is only an equilibrium, we argue, when enforcement of public classifications includes an important component of private enforcement. Without the discipline imposed by the need to incentivize and coordinate private enforcers, a government cannot succeed in sustaining law.

"Is Rule of Law and Equilibrium Without Private Ordering?" is a fascinating piece of interdisciplinary scholarship addressing both political science and legal philosophy perspectives on a topic of immense interest to contracts scholars (among many others). Hadfield and Weingast's article is available for SSRN download here

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

Thursday, June 9, 2016

Weekly Top Ten SSRN Contracts Downloads (June 9, 2016)

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

Rank Downloads Paper Title
1 2,737 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
2 564 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
3 141 (In)Efficient Breach of Contract
Daniel Markovits and Alan Schwartz
Yale Law School and Yale Law School
4 126 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
5 104 Understanding Privacy Policies: Content, Self-Regulation, and Markets
Florencia Marotta-Wurgler
New York University School of Law
6 104 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
7 86 Current Trends in Consumer Junk Debt Buyer Litigation
Peter A. Holland
University of Maryland Francis King Carey School of Law
8 74 Nudging and Autonomy. A Philosophical and Legal Appraisal
Philipp Hacker
Humboldt University of Berlin
9 72 The Enforceability of Agreements to Negotiate in Good Faith: The Impact of Bhasin v Hrynew and the Organizing Principle of Good Faith in Common Law Canada
Tamara Buckwold
Faculty of Law, University of Alberta
10 70 The Implications of Modern Business-Entity Law for the Regulation of Autonomous Systems
Shawn Bayern
Florida State University - College of Law

 

SSRN Top Downloads For SSRN Logo (small)
LSN: Contracts (Topic)

Rank Downloads Paper Title
1 412 Major League Soccer as a Case Study in Complexity Theory
Steven A. Bank
University of California, Los Angeles (UCLA) - School of Law
2 147 Algorithmic Contracts
Lauren Henry Scholz
Yale University - Information Society Project
3 136 The Logic of Contract in a World of Treaties
Julian Arato
Brooklyn Law School
4 125 Contracts Without Terms
Tess Wilkinson‐Ryan
University of Pennsylvania Law School
5 115 (Mis)perceptions of Law in Consumer Markets
Oren Bar-Gill and Kevin E. Davis
Harvard Law School and New York University School of Law
6 114 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
7 111 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
8 89 The Rise of the Platform Economy: A New Challenge for EU Consumer Law?
Christoph Busch, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
9 76 Farewell to Unjustified Enrichment?
Nils Jansen
University of Muenster
10 75 The Common Law of Contract and the Default Rule Project
Alan Schwartz and Robert E. Scott
Yale Law School and Columbia University - Law School

June 9, 2016 in Recent Scholarship | Permalink

Monday, June 6, 2016

Scholarship Spotlight: Narrative Techniques and Drafting (Susan M. Chesler - Arizona State & Karen J. Sneddon - Mercer)

OnceUponATimeCan storytelling have anything useful to inform contract drafting? Perhaps surprisingly, according to Susan Chesler (Arizona State) and Karen Sneddon (Mercer), the answer is yes. As is befitting scholars of narrative, the authors make a persuasive case.  In Once Upon a Transaction: Narrative Techniques and Drafting, Chesler and Sneddon argue that techniques usually associated with legal analysis and persuasion have a place in facilitating more effective transactional drafting. Here is their abstract:

Susan Chesler (Arizona State)A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent's belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story. These stories, made with provisions and clauses, result in the formation of contracts, agreements, and wills. Conceptualizing transactions as narratives benefits the negotiation, drafting, implementation, interpretation, and, ultimately, enforceability of the transactional document.

Karen Sneddon - MercerThis article showcases the use of narrative techniques applicable to the drafting of transactional documents. Tethered to the fundamental principles of good drafting, the article will highlight the use of stock stories, plot and narrative movement, character, point of view, narrative setting, themes, and motifs across a spectrum of transactional documents.

After working through drafting examples utilizing narrative methods such as stock stories, point of view, and setting, the authors ultimately conclude that "[r]ather than injecting uncertainty or bloating a document with unnecessary information, narrative techniques can spur innovation while remaining grounded within the principles of good drafting," and that effective drafting can "draw upon narrative techniques to facilitate conceptualization, construction, and ultimately implementation of the transaction."

The potential toolkit for transactional lawyers described in Professors Chesler and Sneddon's article provides a fascinating way to think outside the box for effective drafting. Once Upon a Transaction was recently published in the Oklahoma Law Review and is available for SSRN download here.

 

 

 

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

Thursday, June 2, 2016

Weekly Top Ten SSRN Contracts Downloads (June 2, 2016)

Top10DeskSign

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

Rank Downloads Paper Title
1 2,725 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
2 533 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
3 134 (In)Efficient Breach of Contract
Daniel Markovits and Alan Schwartz
Yale Law School and Yale Law School
4 124 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
5 98 Understanding Privacy Policies: Content, Self-Regulation, and Markets
Florencia Marotta-Wurgler
New York University School of Law
6 94 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
7 73 Noncompetes in the U.S. Labor Force
Evan P Starr, Norman Bishara and J.J. Prescott
University of Maryland Robert H Smith School of Business, The Stephen M. Ross School of Business at the University of Michigan and University of Michigan Law School
8 68 The Implications of Modern Business-Entity Law for the Regulation of Autonomous Systems
Shawn Bayern
Florida State University - College of Law
9 67 The Enforceability of Agreements to Negotiate in Good Faith: The Impact of Bhasin v Hrynew and the Organizing Principle of Good Faith in Common Law Canada
Tamara Buckwold
Faculty of Law, University of Alberta
10 64 Nudging and Autonomy. A Philosophical and Legal Appraisal
Philipp Hacker
Humboldt University of Berlin

 

SSRN Top Downloads For SSRN Logo (small)
LSN: Contracts (Topic)

Rank Downloads Paper Title
1 412 Major League Soccer as a Case Study in Complexity Theory
Steven A. Bank
University of California, Los Angeles (UCLA) - School of Law
2 147 Algorithmic Contracts
Lauren Henry Scholz
Yale University - Information Society Project
3 136 The Logic of Contract in a World of Treaties
Julian Arato
Brooklyn Law School
4 125 Contracts Without Terms
Tess Wilkinson‐Ryan
University of Pennsylvania Law School
5 115 (Mis)perceptions of Law in Consumer Markets
Oren Bar-Gill and Kevin E. Davis
Harvard Law School and New York University School of Law
6 114 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
7 111 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
8 89 The Rise of the Platform Economy: A New Challenge for EU Consumer Law?
Christoph Busch, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
9 76 Farewell to Unjustified Enrichment?
Nils Jansen
University of Muenster
10 75 The Common Law of Contract and the Default Rule Project
Alan Schwartz and Robert E. Scott
Yale Law School and Columbia University - Law School

June 2, 2016 in Recent Scholarship | Permalink | Comments (0)

Friday, May 27, 2016

Scholarship Spotlight: What We Buy When We 'Buy Now' (Aaron Perzanowski - Case Western & Chris Jay Hoofnagle - Cal-Berkeley)

BuyNowButtonBlueContracts in the digital age continue to raise novel issues of mutual assent and interpretation, and misunderstanding by individual users crosses over into consumer law as well.  In What We Buy When We 'Buy Now, authors Aaron Perzanowski (Case Western) and Chris Jay Hoofnagle (California - Berkeley) generate and analyze empirical data on consumer understanding of contracts for digital wares, concluding that this area is ripe for action by the Federal Trade Commission. Here is the authors' abstract:

Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like “buy now,” “own,” and “purchase.” Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent — it depends on shifting business models, the success and failure of platforms, and often on the maintenance and availability of DRM authentication systems years after the consumer clicked “buy now.”

This article presents the results of the first-ever empirical study of consumers' perceptions of the marketing language used by digital media retailers. We created a fictitious Internet retail site, surveyed a nationally representative sample of nearly 1300 online consumers, and analyzed their perceptions through the lens of false advertising and unfair and deceptive trade practices. The resulting data reveal a number of insights about how consumers understand and misunderstand digital transactions. A surprisingly high percentage of consumers believe that when they “buy now,” they acquire the same sorts of rights to use and transfer digital media goods that they enjoy for physical goods. The survey also strongly suggests that these rights matter to consumers. Consumers are willing to pay more for them and are more likely to acquire media through other means, both lawful and unlawful, in their absence. Our study suggests that a relatively simple and inexpensive intervention — adding a short notice to a digital product page that outlines consumer rights in straightforward language — is an effective means of significantly reducing consumers’ material misperceptions.

Sales of digital media generate hundreds of billions in revenue, and some percentage of this revenue is based on deception. Presumably, if consumers knew of the limited bundle of rights they were acquiring, the market could drive down the price of digital media or generate competitive business models that offered a different set of rights. We thus turn to legal interventions, such as state false advertising law, the Lanham Act, and federal unfair and deceptive trade practice law as possible remedies for digital media deception. Because of impediments to suit, including arbitration clauses and basic economic disincentives for plaintiffs, we conclude that the Federal Trade Commission (FTC) could help align business practices with consumer perceptions. The FTC’s deep expertise in consumer disclosures, along with a series of investigations into companies that interfered with consumers’ use of media through digital rights management makes the agency a good fit for deceptions that result when we “buy now.”

Professors Perzanowski's and Hoofnagle's article is forthcoming in the University of Pennsylvania Law Review in 2017, but you can download their current draft here.

May 27, 2016 in E-commerce, Recent Scholarship | Permalink | Comments (1)

Thursday, May 26, 2016

Weekly Top Ten SSRN Contracts Downloads (May 26, 2016)

Top-10 Cube Letters

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

1 2,708 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
2 467 What We Buy When We 'Buy Now'
Aaron Perzanowski and Chris Jay Hoofnagle
Case Western Reserve University School of Law and University of California, Berkeley - School of Information
3 187 How Do LLC Owners Contract Around Default Statutory Protections?
Peter Molk
Willamette University - College of Law
4 124 The Rise of the Platform Economy: A New Challenge for EU Consumer Law?
Christoph Busch, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
5 119 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
6 90 Understanding Privacy Policies: Content, Self-Regulation, and Markets
Florencia Marotta-Wurgler
New York University School of Law
7 84 (In)Efficient Breach of Contract
Daniel Markovits and Alan Schwartz
Yale Law School and Yale Law School
8 83 Immoral Promises
Enrique Guerra-Pujol
University of Central Florida
9 80 Probate Lending
David Horton and Andrea Cann Chandrasekher
University of California, Davis - School of Law and University of California, Davis - School of Law
10 70 Noncompetes in the U.S. Labor Force
Evan P Starr, Norman Bishara and J.J. Prescott
University of Maryland Robert H Smith School of Business, The Stephen M. Ross School of Business at the University of Michigan and University of Michigan Law School

 

SSRN Top Downloads For SSRN Logo (small)
LSN: Contracts (Topic)

Rank Downloads Paper Title
1 412 Major League Soccer as a Case Study in Complexity Theory
Steven A. Bank
University of California, Los Angeles (UCLA) - School of Law
2 147 Algorithmic Contracts
Lauren Henry Scholz
Yale University - Information Society Project
3 136 The Logic of Contract in a World of Treaties
Julian Arato
Brooklyn Law School
4 125 Contracts Without Terms
Tess Wilkinson‐Ryan
University of Pennsylvania Law School
5 115 (Mis)perceptions of Law in Consumer Markets
Oren Bar-Gill and Kevin E. Davis
Harvard Law School and New York University School of Law
6 114 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
7 111 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
8 89 The Rise of the Platform Economy: A New Challenge for EU Consumer Law?
Christoph Busch, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
9 76 Farewell to Unjustified Enrichment?
Nils Jansen
University of Muenster
10 75 The Common Law of Contract and the Default Rule Project
Alan Schwartz and Robert E. Scott
Yale Law School and Columbia University - Law School

May 26, 2016 in Recent Scholarship | Permalink | Comments (0)

Wednesday, May 25, 2016

Scholarship Spotlight: Freedom of Contract Under the Federal Arbitration Act (Steven W. Feldman)

Arbitration-Shadow1For a topic that--superficially, at least--is a dry matter of procedure, arbitration provokes a great amount of spirited debate from both its proponents and detractors. I freely admit to falling on the side of the detractors, but that is not necessarily the home for all of our readers. A recently-published article in the Michigan State Law Review by Steven W. Feldman (U.S. Army Corps of Engineers) not only provides a welcome perspective from a blog reader outside the bubble of academia, but he also articulates a position far more favorable to the current state of Supreme Court jurisprudence under the Federal Arbitration Act than do some of us who frequently find the sky to be falling.  Here is Feldman's abstract:

SteveFeldmanIn her article, Disappearing Claims and the Erosion of Substantive Law, published in the June 2015 issue of the Yale Law Journal, J. Maria Glover argues that the Court’s recent arbitration decisions reflect a “fundamental shift” in the normative prerogatives that support “the Court’s freedom-of-contract conception of arbitration.” The Court, she asserts, has devised the view that “such freedom enabled private parties to change the mechanisms of adjudication, but not to change the scope of obligations under substantive law.” Glover is especially critical that the Court’s recent decisions have “[a]bandoned [the] descriptive and normative premise that freedom of contract was justified in the arbitration context because it would result in more cost-effective procedures for ‘settling’ disputes.”

This Article responds that Glover’s key premises and conclusions are unsupported. Instead, the Court has endorsed the major principles of freedom of contract in its arbitration jurisprudence. The better view is that (1) freedom of contract in arbitration cases properly construed is not limited to devising streamlined cost-effective procedures but is broadly construed to allow parties the leeway to select the terms governing the arbitration; (2) the need to enforce the parties’ mutual assent exists independently from arbitral efficiency, and the enforcement of mutual assent takes priority over arbitral efficiency when there is a conflict; (3) pure freedom of contract (which Glover says is the current state of the law) does not exist because many limits from law and public policy (largely unmentioned by Glover) maintain the integrity of the arbitral process; and (4) Italian Colors is a legitimate evolution, and not a revolution, in FAA practice and procedure.

The complete article, Steven W. Feldman, Italian Colors and Freedom of Contract under the Federal Arbitration Act: Has the Supreme Court Enabled Disappearing Claims and the Erosion of Substantive Law?, is now in print at 2016 MICH. ST. L. REV. 109 and is available for download here.

 

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

Friday, May 20, 2016

Scholarship Spotlight: "The Arbitration Bootstrap" (Christopher R. Leslie, UC-Irvine)

Arbitration-clause-300x200The federal law of arbitration has become an increasingly prominent intruder into the state law of contracts over the last few decades, largely because of the Supreme Court's interpretive morphing of the Federal Arbitration Act into a super-statute that elevates contractual arbitration clauses to a privileged and practically unassailable realm. In a recently published article in the Texas Law Review, Christopher R. Leslie (University of California - Irvine) posits--correctly, in my opinion--that courts have overreached in construing congressional intent behind the FAA. He also proposes specific limitations on otherwise unconscionable contract terms that have been "bootstrapped" onto an arbitration clause in the post-Concepcion era. Here is the abstract:

ChristopherRLeslie(UCIrvine)Arbitration clauses in contracts require consumers to waive their rights to bring litigation in court. The clauses are often unavoidable because firms include arbitration clauses in contracts of adhesion. In recent years, firms have begun to load their arbitration clauses with unconscionable terms unrelated to arbitration itself. For example, firms insert terms that shorten statutes of limitations, reduce damages, or prohibit injunctive relief. These contract terms are considered unconscionable – and, thus, unenforceable – in many states. However, the Supreme Court has interpreted the Federal Arbitration Act (the FAA) to require judicial deference to arbitration clauses. Consequently, many courts allow firms to bootstrap unenforceable contract terms into an enforceable arbitration clause in order to make those unconscionable contract terms enforceable.

The Supreme Court has invoked the legislative intent of the 1925 Congress in order to assert that the FAA applies to consumer contracts. Courts have further suggested that Congress intended arbitration clauses to be enforced as written and that this requires deference to anti-consumer terms that would otherwise be found unconscionable under state law. Finally, the Supreme Court has asserted that the FAA preempts all state efforts to police arbitration clauses, including basic notification requirements.

This Article examines the actual legislative history of the FAA and explains that Congress never intended the FAA to apply to consumer contracts. Congress was exclusively concerned with the enforceability of arbitration agreements between sophisticated businesses in commercial disputes. Congress never considered the possibility that retailers would impose mandatory arbitration clauses on their customers, let alone that these arbitration clauses would be structured to limit damages, to truncate statutes of limitation, or to otherwise remove procedural protections from consumers. The congressional intent that courts should enforce anti-consumer terms in arbitration clauses is an imagined one.

The Article concludes that courts should stop asserting that the FAA mandates enforcement of unconscionable terms so long as they reside in an arbitration clause. When confronting unconscionable terms in arbitration clauses, courts can take one of three actions: enforce the unconscionable terms; sever the unconscionable terms; or strike the arbitration clause as a whole because it is so overrun by unconscionable terms. The Article explains why only the latter two options are consistent with Congressional intent and good public policy.

The Arbitration Bootstrap is available for SSRN download here, and it is in print as 94 Texas L. Rev. 265 (2016).

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

Thursday, May 19, 2016

Weekly Top Ten SSRN Contracts Downloads (May 19, 2016)

TopTen Stamp-808x455

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

Rank Downloads Paper Title
1 423 Major League Soccer as a Case Study in Complexity Theory
Steven A. Bank
University of California, Los Angeles (UCLA) - School of Law
2 180 How Do LLC Owners Contract Around Default Statutory Protections?
Peter Molk
Willamette University - College of Law
3 167 Algorithmic Contracts
Lauren Henry Scholz
Yale University - Information Society Project
4 138 The Logic of Contract in a World of Treaties
Julian Arato
Brooklyn Law School
5 119 (Mis)perceptions of Law in Consumer Markets
Oren Bar-Gill and Kevin E. Davis
Harvard Law School and New York University School of Law
6 118 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
7 118 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
8 116 The Rise of the Platform Economy: A New Challenge for EU Consumer Law?
Christoph Busch, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
9 83 Understanding Privacy Policies: Content, Self-Regulation, and Markets
Florencia Marotta-Wurgler
New York University School of Law
10 78 (In)Efficient Breach of Contract
Daniel Markovits and Alan Schwartz
Yale Law School and Yale Law School

 

SSRN Top Downloads For SSRN Logo (small)
LSN: Contracts (Topic)

Rank Downloads Paper Title
1 412 Major League Soccer as a Case Study in Complexity Theory
Steven A. Bank
University of California, Los Angeles (UCLA) - School of Law
2 147 Algorithmic Contracts
Lauren Henry Scholz
Yale University - Information Society Project
3 136 The Logic of Contract in a World of Treaties
Julian Arato
Brooklyn Law School
4 125 Contracts Without Terms
Tess Wilkinson‐Ryan
University of Pennsylvania Law School
5 115 (Mis)perceptions of Law in Consumer Markets
Oren Bar-Gill and Kevin E. Davis
Harvard Law School and New York University School of Law
6 114 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
7 111 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
8 89 The Rise of the Platform Economy: A New Challenge for EU Consumer Law?
Christoph Busch, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
9 76 Farewell to Unjustified Enrichment?
Nils Jansen
University of Muenster
10 75 The Common Law of Contract and the Default Rule Project
Alan Schwartz and Robert E. Scott
Yale Law School and Columbia University - Law School

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

Thursday, May 12, 2016

Scholarship Spotlight: The Role of The CISG in U.S. Contract Practice: An Empirical Study (John F. Coyle, UNC)

Cisg_logoOngoing globalization and increasing importance of international trade has led to calls for a greater international component to the Contracts curriculum in U.S. law schools. The United Nations Convention on the International Sale of Goods (CISG) has been one of the chief beneficiaries of those calls. CISG coverage in a Contracts course, after all, singlehandedly adds treaties, international trade, and comparative law perspectives to the traditional course materials. A fair question, however, is to what extent the CISG has become relevant to the actual businesses in America--future clients of many of our students. Fortunately, John F. Coyle of the University of North Carolina has analyzed and written about some enlightening empirical evidence on that question.  Here is the abstract:

JohnFCoyle (UNC)The United Nations Convention on Contracts for the International Sale of Goods (CISG) operates as an “international” version of UCC Article 2 — it supplies the governing law when a U.S. company enters into a contract for the sale of goods with a foreign counterparty. Scholars have long debated the role that the CISG plays in contract practice in the United States. Some argue that the CISG has come to be embraced, if slowly, by U.S. lawyers. Others contend that the CISG has yet to achieve widespread acceptance within the U.S. legal community. Prior studies have sought to resolve this debate by looking to surveys of practicing attorneys. This Essay seeks to shed light on this question by looking to actual contracts entered into by U.S. companies.

The Essay draws upon a hand-collected dataset of more than 5,000 contracts — along with interviews with several lawyers who had a hand in their drafting — in an attempt to better understand the role that the CISG plays in U.S. contract practice. The Essay shows that: (1) many U.S. companies reflexively exclude the CISG without inquiring as to whether it would apply of its own force, (2) U.S companies virtually never select the CISG as the law to govern their agreements, (3) there is no industry or geographic location within the United States where the CISG has been affirmatively embraced, (4) some U.S. companies that had selected the CISG in the past now have a policy of excluding it from their contracts, and (5) U.S. companies are frequently unaware that selecting the law of a U.S. state can result in the application of the CISG.

These findings suggest a number of important insights. First, they show that past surveys of U.S. lawyers dramatically overstate the extent to which the CISG has gained acceptance within the U.S. legal community. Second, they indicate that contract practice with respect to the CISG can and does vary from nation to nation. The dataset contracts show that Chinese solar companies, in contrast to their U.S. counterparts, have embraced the CISG. Third, and finally, they highlight the potential unfairness of requiring unsophisticated U.S. companies to litigate international contract disputes under a set of treaty rules that are routinely avoided by their more sophisticated brethren.

Professor Coyle's article, The Role of The CISG in U.S. Contract Practice: An Empirical Study is available as an SSRN download here and is forthcoming in the University of Pennsylvania Journal of International Law.

May 12, 2016 in Recent Scholarship | Permalink | Comments (0)

Weekly Top Ten SSRN Contracts Downloads (May 12, 2016)

Top-10 Scrolling

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

Rank Downloads Paper Title
1 418 Major League Soccer as a Case Study in Complexity Theory
Steven A. Bank
University of California, Los Angeles (UCLA) - School of Law
2 176 How Do LLC Owners Contract Around Default Statutory Protections?
Peter Molk
Willamette University - College of Law
3 160 Algorithmic Contracts
Lauren Henry Scholz
Yale University - Information Society Project
4 143 Contract, Consent, and Fiduciary Relationships
Lionel Smith
McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law
5 137 The Logic of Contract in a World of Treaties
Julian Arato
Brooklyn Law School
6 117 (Mis)perceptions of Law in Consumer Markets
Oren Bar-Gill and Kevin E. Davis
Harvard Law School and New York University School of Law
7 117 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
8 115 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
9 95 The Rise of the Platform Economy: A New Challenge for EU Consumer Law?
Christoph Busch, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
10 79 Will-Substitutes and Creditors: Canada and the US
Lionel Smith
McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law

 

SSRN Top Downloads For SSRN Logo (small)
LSN: Contracts (Topic)

Rank Downloads Paper Title
1 412 Major League Soccer as a Case Study in Complexity Theory
Steven A. Bank
University of California, Los Angeles (UCLA) - School of Law
2 147 Algorithmic Contracts
Lauren Henry Scholz
Yale University - Information Society Project
3 136 The Logic of Contract in a World of Treaties
Julian Arato
Brooklyn Law School
4 125 Contracts Without Terms
Tess Wilkinson‐Ryan
University of Pennsylvania Law School
5 115 (Mis)perceptions of Law in Consumer Markets
Oren Bar-Gill and Kevin E. Davis
Harvard Law School and New York University School of Law
6 114 Contract as Empowerment
Robin Bradley Kar
University of Illinois College of Law
7 111 Illegality as a Defence in Contract
Andrew Burrows
University of Oxford - Faculty of Law
8 89 The Rise of the Platform Economy: A New Challenge for EU Consumer Law?
Christoph Busch, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska and Fryderyk Zoll
University of Osnabrück - European Legal Studies Institute, European Legal Studies Institute Osnabrueck / Radboud University Nijmegen, Universität Osnabrück - European Legal Studies Institute and Universität Osnabruck
9 76 Farewell to Unjustified Enrichment?
Nils Jansen
University of Muenster
10 75 The Common Law of Contract and the Default Rule Project
Alan Schwartz and Robert E. Scott
Yale Law School and Columbia University - Law School

May 12, 2016 in Recent Scholarship | Permalink | Comments (0)