ContractsProf Blog

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

A Member of the Law Professor Blogs Network

Wednesday, March 18, 2015

New in Print KCON IX in St. Thomas Law Review

Pile of BooksThe St. Thomas Law Review has published some of the papers presented at the Ninth International Conference on Contracts (KCON IX) that the St. Thomas University School of Law hosted in 2014.  It's nice to see these in print!

Reza Beheshti, Comparative and Normative Analysis of Damages under the SGA and the CESL, 26 St. Thomas L. Rev. 413 (2014)

Jennifer S. Martin, Contracts: An Introduction to a Symposium and a Few Additional Thoughts, 26 St. Thomas L. Rev. 375 (2014)

Kingsley Martin, Emergence of Contract Standards and Its Future Impact on Legal Education, 26 St. Thomas L. Rev. 570 (2014)

John E. Murray, Jr., The Judicial Vision of Contract--The "Constructed Circle of Assent" and Printed Terms, 26 St. Thomas L. Rev. 386 (2014)

Joseph M. Perillo, Donee Beneficiaries and the Parol Evidence Rule, 26 St. Thomas L. Rev. 496 (2014)

Jeffrey Ritter, Designing and Constructing Commercial Agreements in the 21st century, 26 St. Thomas L. Rev. 506 (2014) 

Roni Rosenberg, The Contract: Between Contract Law and Criminal Jurisprudence, 26 St. Thomas L. Rev. 444 (2014) 

Amy J. Schmitz, Introducing the "New Handshake" to Expand Remedies and Revive Responsibility in eCommerce, 26 St. Thomas L. Rev. 522 (2014)

Robin West, The Right to Contract as a Civil Right, 26 St. Thomas L. Rev. 551 (2014)

March 18, 2015 in Conferences, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, March 17, 2015

New Scholarship from Your Blog Editors

Nancy_kim TelmanOne of the great pleasures of working on the blog is the opportunity to have virtual colleagues as a subject-matter specific supplement to one's local colleagues.  I have for many years admired Nancy Kim's scholarship, and she has been for me, a sounding board and a gateway for entering into the scholarship on electronic contracting, with an especial focus on wrap contracts.  

Now, I am happy to announce that we have collaborated on an article, "Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent."  The article is forthcoming with the Missouri Law Review and available in draft on SSRN.  Here is the abstract:

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the myth of contractual consent muted criticisms that otherwise might be directed at the real data-mining masterminds. By clicking “agree,” consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put and the entities (including the federal government) with whom their information would be shared. We also question the distinction between governmental actors and private actors in this realm, as the Internet giants increasingly exploit contractual mechanisms to operate with quasi-governmental powers in their relations with consumers. We propose that, in their efforts to better protect consumer data, regulators and policymakers should demand more than mere contractual consent as an indicator of consumers’ grant of permission for the use of their data.

Here is a short (2 minute) video of me discussing the article:

 

March 17, 2015 in About this Blog, 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 

Rank

DownloadsPaper Title
1 317 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
2 163 The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning 
Symeon C. Symeonides 
Willamette University - College of Law 
3 155 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
4 143 Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another 
Lionel Smith 
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law 
5 126 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 112 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
7 103 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 
8 101 The Future of Contract Law in Europe 
Jan M. Smits 
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) 
9 99 Virtual Currencies & Federal Law 
Julie Andersen Hill 
University of Alabama - School of Law 
10 88 Insider Trading in Commodities Markets 
Andrew Verstein 
Wake Forest University School of Law

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

RankDownloadsPaper Title
1 317 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
2 163 The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning 
Symeon C. Symeonides 
Willamette University - College of Law 
3 155 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
4 126 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
5 112 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 107 When Faith Falls Short: Bankruptcy Decisions of Churches 
Pamela Foohey 
Indiana University Maurer School of Law 
7 101 The Future of Contract Law in Europe 
Jan M. Smits 
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) 
8 81 Procedural Fairness by the Corporation 
Kish Parella 
Washington and Lee University - School of Law 
9 80 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
10 72 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 

March 17, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, March 10, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 299 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
2 148 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
3 135 Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another 
Lionel Smith 
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law 
4 119 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
5 109 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law
6 102 When Faith Falls Short: Bankruptcy Decisions of Churches 
Pamela Foohey 
Indiana University Maurer School of Law 
7 99 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 
8 99 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
9 95 Virtual Currencies & Federal Law 
Julie Andersen Hill 
University of Alabama - School of Law 
10 91 The Future of Contract Law in Europe 
Jan M. Smits 
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) 

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

RankDownloadsPaper Title
1 299 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
2 148 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
3 119 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
4 109 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
5 102 When Faith Falls Short: Bankruptcy Decisions of Churches 
Pamela Foohey 
Indiana University Maurer School of Law 
6 99 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
7 91 The Future of Contract Law in Europe 
Jan M. Smits 
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) 
8 78 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
9 76 Procedural Fairness by the Corporation 
Kish Parella 
Washington and Lee University - School of Law 
10 72 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center

 

March 10, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, March 3, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 379 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 217 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
3 204 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
4 157 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
5 126 Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another 
Lionel Smith 
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law 
6 121 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
7 114 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
8 105 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
9 95 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 
10 89 Virtual Currencies & Federal Law 
Julie Andersen Hill 
University of Alabama - School of Law 

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

RankDownloadsPaper Title
1 217 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
2 157 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
3 121 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
4 114 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
5 105 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 93 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
7 88 When Faith Falls Short: Bankruptcy Decisions of Churches 
Pamela Foohey 
Indiana University Maurer School of Law 
8 83 The Future of Contract Law in Europe 
Jan M. Smits 
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) 
9 74 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
10 69 Procedural Fairness by the Corporation 
Kish Parella 
Washington and Lee University - School of Law 

 

 

 

March 3, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, February 24, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 372 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 194 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
3 152 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 117 Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another 
Lionel Smith 
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law 
5 105 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
6 97 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
7 92 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 
8 81 Virtual Currencies & Federal Law 
Julie Andersen Hill 
University of Alabama - School of Law 
9 69 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
10 68 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 

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

RankDownloadsPaper Title
1 152 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
2 105 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
3 97 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
4 91 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
5 69 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
6 68 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
7 58 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 
8 58 Procedural Fairness by the Corporation 
Kish Parella 
Washington and Lee University - School of Law 
9 56 Third Party Beneficiaries and Contractual Networks 
Alan Schwartz and Robert E. Scott 
Yale Law School and Columbia University - Law School 
10 46 Dynamic Common Law and Technological Change: The Classification of Bitcoin 
Shawn J. Bayern 
Florida State University - College of Law 

 

February 24, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, February 23, 2015

Session on Contract as Empowerment at K CON X

KarA recent contract law piece, “Contract as Empowerment” was just listed as “Download of the Week” on Larry Solum’s Legal Theory Blog. As many readers of this blog will know, this piece reflects University of Illinois Law Professor Robin Bradley Kar’s latest work on contract theory. The piece combines core arguments from two pieces that we recently highlighted on this bloom, but presents them in a single law review article format. The piece thus distills the ideas and presents them in polished form.
 
For anyone still contemplating attending K-CON at UNLV, an additional Roundtable on Contract as Empowerment has also been added.  This Roundtable will take place on Saturday, February 28th, at 9:00 am at UNLV. Professor Kar will present the theory. Gregory Klass (Georgetown Law), Russell Korobkiin (UCLA Law) and Jeff Lipshaw (Suffolk Law) will offer responses, before leaving time for audience Q&A. 
 
Here is the abstract and link to the article:
 
 

            This Article offers a novel interpretation of contract law, which I call “Contract as Empowerment”. On this view, contract law is neither a mere mechanism to promote efficiency nor a mere reflection of any familiar moral norm—such as norms of promise keeping, property, or corrective justice. Contract law is instead a mechanism of empowerment: it empowers people to use legally enforceable promises as tools to influence other people’s actions and thereby meet a broad range of human needs and interests. It also empowers people in a special way, which reflects a moral ideal of equal respect for persons. This fact explains why contract law can produce genuine legal obligations and is not just a system of coercion.

            The purpose of this Article is to introduce contract as empowerment and argue that it reflects the best general interpretation of contract. Contract as empowerment is an “interpretive” theory in the sense that it is simultaneously descriptive, explaining what contract law is, and normative, explaining what contract law should be.

            To support contract as empowerment’s interpretive credentials, I identify a core set of doctrines and puzzles that are particularly well suited to testing competing interpretations of contract. I argue that contract as empowerment is uniquely capable of harmonizing this entire constellation of doctrines while explaining the legally obligating force of contracts. Along the way, contract as empowerment offers (1) a more penetrating account of contractual remedies than exists in the current literature; (2) a more compelling account of the consideration requirement and its standard exceptions; and (3) a concrete framework to determine the appropriate role of certain doctrines—like unconscionability—that appear to limit freedom of contract. Contract as empowerment also explains the main differences between claims for breach of contract, promissory estoppel, restitution and quasi-contract. It explains key doctrines and answers key puzzles at each basic stage of contract analysis: formation, interpretation and construction, performance and breach, the standard defenses and the standard remedies.

            The whole of this explanation is, moreover, greater than the sum of its parts. Because of its harmonizing power, contract as empowerment demonstrates how a broad range of seemingly incompatible surface values in modern contract law can work together—each serving its own distinctive but partial role—to serve a more fundamental principle distinctive to contract. These surface values include the values of fidelity, autonomy, liberty, efficiency, fairness, trust, reliance and assurance. Although many people think that contract law must involve trade offs between these values, contract as empowerment suggests that tensions between them are not always real. So long as the complex system of rules that governs contracts is fashioned in the right way, these doctrines can work together to serve a deeper and normatively satisfying principle distinctive to contract. This framework can therefore be used to guide legal reform and identify places where market regulation is warranted by the principles of contract in many different contexts of exchange—from those involving consumer goods to labor, finance, credit, landlord-tenant, home mortgages and many others.

            There is a further implication of contract as empowerment. Contract as empowerment absorbs many economic insights but gives them a fundamentally different interpretation. It suggests that contracting and modern market activities are not simply spheres where self-interest runs wild. They are instead spheres of moral interaction, which can engage people’s natural sense of obligation and generate genuine legal obligations—at least so long as contract law is simultaneously personally empowering and reflective of a moral ideal of equal respect for persons. An important moral fabric has, in other words, been running through contract law and many forms of modern economic activity for some time now. This fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of the phenomena. Understanding this moral fabric can help people lead better and more integrated lives, as both moral and economic agents. We must, however, learn to strengthen this fabric and protect it from growing tear.

February 23, 2015 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

New in Print

Getting Close to K Con X!

For those of you who are still trying to decide whether or not to attend, it looks like a great conference, featuring two of our bloggers, Nancy Kim and Myanna Dellinger.

Las vegas at night

10th International Conference on Contracts

William S. Boyd School of Law, UNLV

February 27 & 28, 2015 

Preliminary Program

   UNLV logo

Fri. 2/27

8:15-8:45         Registration and Continental Breakfast (Moot Court Lobby)

8:45-9:00         Welcome and Announcements (Moot Court Auditorium)

9:00-10:45      Whose Contract Law Is It Anyway? (Moot Court Auditorium)

Chair: Dov Waisman

Danielle Hart, How Does Bargaining Power Affect Contract Litigation Outcomes?

Larry DiMatteo, How Private is Private Contract Law?

H.G. Prince, How Does the California Supreme Court’s Contracts Jurisprudence Relate to Its Ideological Composition?

Hila Keren, Whose Freedom of Contract?

Consent (or Lack Thereof) (BSL 102)

Chair: TBA

Shawn Bayern, Offer and Acceptance in Modern Contract Law: A Needless Concept

Chunlin Leonhard, Consent in Contract: A Dangerous Fiction

Kenneth Ching, What We Consent to When We Consent to Form Contracts: Market Price

Eric Zaks, Bonding and Contract Drafting: Paying a Premium for Foregoing Genuine Consent

10:45-11:00    Break

11:00-12:30    Contract Terms I (Moot Court Auditorium)

Chair: TBA

Royce Barondes, Frictions and the Persistence of Inferior Contract Terms

Mark Gergen, Privity's Shadow: Exculpatory Terms in Extended Forms of Private Ordering

Joshua Silverstein, Using the West Digest System as a Data Collection and Coding Device for Empirical Legal Scholarship: Demonstrating the Method Via a Study of Contract Interpretation

Comparative and International I (BSL 102)

Chair: TBA

Mateja Djurovic, Europeanisation of Contract Law Through the Judicial Activity of the European Court of Justice

Glennys Spence, A Pound of Flesh: A Comparative Analysis of the Group of Companies Doctrine and the Alter Ego Theory in International Commercial Arbitration

Jane Winn, Contracting Out of the Nation State: The Role of Global Private Regulators

12:30-1:45      Lunch (Barrick Museum Garden)

1:45-3:30         Roundtable: Perspectives on the Restatement (Third) of the Law of Consumer Contracts (Moot Court Auditorium)

Chair: Omri Ben-Shahar (U. of Chicago)

Robin Kar (U. of Illinois)

Nancy Kim (California Western)

Gregory Klass (Georgetown)

David McGowan (U. of San Diego)

3:30-3:45         Break (Moot Court Lobby)

3:45-5:30         Consumer Protection (Moot Court Auditorium)

Chair: TBA

Susanne Augenhofer, Self-Regulation and the Interface of Consumer Protection and Corporate Governance

David Friedman, Addressing Fictitious Pricing: Discounting of Retail Goods and Deceptive Prior-Reference Pricing

Timothy Hall, Contractual Limitation of Personal Fitness and Health Data Tracking: An Empirical Analysis

Jim Hawkins, Are Bigger Companies Better for Low-Income Borrowers?: Evidence from Payday and Title Loan Advertisements 

Performance & Enforcement (BSL 102)

Chair: TBA

Pamela Edwards, “The Best Interests of the League”: Contractual Limits of Sports Leagues Commissioners' Powers to Discipline Team Owners

Orit Gan, The Justice Element of Promissory Estoppel

Victor Goldberg, Buffalo’s Field of Dreams: Kenford Co. v. Erie County

Jennifer Martin, Avoiding Unpleasant Surprises in Resales Under 2-706 

6:00-9:00         Reception & Dinner (Barrick Museum Exhibition Hall)

 

Sat. 2/28

8:30-9:00         Breakfast (Moot Court Lobby)

9:00-10:30      Storytelling and Contracts (Moot Court Auditorium)

Chair: Keith Rowley

Lenora Ledwon, Bonds, Promises, and Contracts in the Narco-Western: Freedom of (and From) Contract in Breaking Bad

Deborah Post, Story Telling and Normative Analysis

Debora Threedy, Cooper on Contracts: Popular Culture and the Paradox of Relational Contracts

Comparative and International II (BSL 102)

Chair: TBA

Myanna Dellinger, Rethinking Force Majeure in U.S. and International Contracts Law

Larry DiMatteo, A Case Study in Comparative Contract Law: Late Acceptance, Right to Cure, and Anticipatory Repudiation in Common, Civil, and Chinese Contract Laws

Irina Sakharova, Finance Lease Contracts: International and Comparative Perspectives

10:30-10:45    Break 

10:45-12:15    Digital Giants Gone Wild! (Moot Court Auditorium)

Chair: TBA

Michael Rustad & Thomas Koenig, Wolves of the World Wide Web: Reforming Social Media Provider’s Contracting Practices

Nancy Kim, Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent

Joasia Luzak, Wanted: A Bigger Stick – On Unfair Terms in Consumer Contracts with Online Service Providers

Sacred Cows (BSL 102)

Chair: TBA

Mark Burge, Thinking Outside the Four Corners of Contract Doctrine in the Legal Education Crisis

Victor Goldberg, Rethinking Jacob and Youngs v. Kent

Jeff Lipshaw, Does Contract Theory Matter?

12:15-1:45      Lunch (RAJ 4th Floor Faculty Lounge)

Keynote: Stewart Macaulay

Comments: Chuck Knapp

                       Peter Linzer

 

1:45-3:30         Roundtable: Perspectives on More Than You Wanted to Know: The Failure of Mandated Disclosure (Moot Court Auditorium)

Chair: Omri Ben-Shahar (U. of Chicago)

Susanne Augenhofer (Humboldt U.-Berlin)

Jeffrey Stempel (UNLV)

Stacey Tovino (UNLV)

TBA

3:30-3:45         Break (Moot Court Lobby)

3:45-5:15         Contract and Families (Moot Court Auditorium)

Chair: TBA

Erez Aloni, Mistaking Neoclassicism for Pluralism in Family Law

Christie Matthews, Contract Law, Race, and Intrafamilial Transactions

Contract Terms II (BSL 102)

Chair: TBA

Sid DeLong, Construction Contracts (N.B.: It’s not what you think)

Peter Gerhart, Good Faith Contract Performance and the Reasonable Person

Allen Kamp, UCC Interpretation versus Plain Meaning Interpretation: A Question of Purpose

5:15-5:30         Conference Wrap-Up (Moot Court Auditorium)

February 18, 2015 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 366 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 180 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
3 147 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 102 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
5 94 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 86 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 
7 85 Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another 
Lionel Smith 
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law 
8 69 Virtual Currencies & Federal Law 
Julie Andersen Hill 
University of Alabama - School of Law 
9 67 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
10 63 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 

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

RankDownloadsPaper Title
1 147 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
2 102 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law
3 94 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
4 90 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
5 67 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
6 63 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
7 58 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law
8 54 Third Party Beneficiaries and Contractual Networks 
Alan Schwartz and Robert E. Scott 
Yale Law School and Columbia University - Law School 
9 42 Dynamic Common Law and Technological Change: The Classification of Bitcoin 
Shawn J. Bayern 
Florida State University - College of Law 
10 41 Passive Consumers vs. The New Online Disclosure Rules of the Consumer Rights Directive 
Joasia Luzak 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 

February 17, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, February 10, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 359 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 169 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
3 139 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 124 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
5 123 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
6 93 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
7 79 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
8 77 Genealogies of Lex Mercatoria 
Nikitas Hatzimihail 
University of Cyprus, Department of Law 
9 75 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
10 67 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 

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

RankDownloadsPaper Title
1 139 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
2 124 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
3 93 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
4 89 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
5 79 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 75 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
7 60 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
8 56 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 
9 53 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
10 42 Third Party Beneficiaries and Contractual Networks 
Alan Schwartz and Robert E. Scott 
Yale Law School and Columbia University - Law School 

 

February 10, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, February 3, 2015

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 351 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 168 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
3 163 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
4 162 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
5 136 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
6 121 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
7 102 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
8 78 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
9 75 Genealogies of Lex Mercatoria 
Nikitas Hatzimihail 
University of Cyprus, Department of Law 
10 71 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 

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

RankDownloadsPaper Title
1 168 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
2 163 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
3 136 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 102 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
5 88 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
6 78 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
7 71 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
8 65 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
9 55 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 
10 52 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 

 

February 3, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, February 2, 2015

New in Print (including a new book!)

Books 5Giles Cuniberti, The International Market for Contracts: The Most Attractive Contract Laws. 34 Nw. J. Int'l L. & Bus. 455 (2014) 

Robert W. Emerson, Fortune Favors the Franchisor: Survey and Analysis of the Franchisee's Decision whether to Hire Counsel, 51 San Diego L. Rev. 709 (2014)

Shelby D. Green, Contesting Disclaimer-of-Reliance Clauses by Efficiency, Free Will, and Conscience: Staving off Caveat Emptor, 2 Tex. A&M L. Rev 1 (2014)

Cameron S. Hamrick & Michelle E. Litteken, CICA Stay Overrides at the Court of Federal Claims: What Government Contractors Need to Know, 43 Pub. Cont. L.J. 687-713 (2014)

James W. Nelson, GAO-COFC Concurrent Bid Protest Jurisdiction: Are Two Fora Too Many? 43 Pub. Cont. L.J. 587 (2014).

Aaron S. Ralph, Transaction Management: A Systemic Approach to Procurement Reform, 43 Pub. Cont. L.J. 621 (2014)

Steven M. Seigel, War Claims and Private Security Contractors: The Strategic and Regulatory Benefits of Paying Host-Nation Claims against U.S. Contractors, 43 Pub. Cont. L.J. 653 (2014)

Heather K. Way, & Lucy Wood. Contracts for Deed: Charting Risks and New Paths for Advocacy. 23 J. Affordable Housing & Commun. Dev. L. 37 (2014)

  Davies

Accessory Liability

Paul S Davies

Accessory liability in the private law is of great importance. Claimants often bring claims against third parties who participate in wrongs. For example, the ‘direct wrongdoer’ may be insolvent, so a claimant might prefer a remedy against an accessory in order to obtain satisfactory redress. However, the law in this area has not received the attention it deserves. The criminal law recognises that any person who ‘aids, abets, counsels or procures’ any offence can be punished as an accessory, but the private law is more fragmented. One reason for this is a tendency to compartmentalise the law of obligations into discrete subjects, such as contract, trusts, tort and intellectual property. This book suggests that by looking across such boundaries in the private law, the nature and principles of accessory liability can be better understood and doctrinal confusion regarding the elements of liability, defences and remedies resolved.

Please click here to view the table of contents for this book

Paul S Davies is an Associate Professor in Law at the University of Oxford and a Fellow of St Catherine’s College, Oxford.

January 2015     9781849462877     302pp     Hardback     RSP: £55  

Discount Price for Contracts Prof Blog Readers: £44

ORDER ON-LINE
Please click here to order online. When ordering online please type the reference 'CONTRACTSPROFBLOG' in the voucher code field and click ‘apply’ to receive the discount.

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530 Fax Number: 01865 510 710

Website: www.hartpub.co.uk   

February 2, 2015 in Books, Government Contracting, Recent Scholarship | Permalink | TrackBack (0)

Wednesday, January 28, 2015

Conference on the CISG at 35

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

Tuesday, January 27, 2015

Weekly Top Tens from the Social Science Research Network

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

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

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

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

 

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

Friday, January 23, 2015

Merchantability Applied to Legal Scholarship

Katowice Fair Building Collapse graphic

 

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

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

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

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

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

Thursday, January 22, 2015

Recent Scholarship: Mark Burge

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

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

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

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

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

Wednesday, January 21, 2015

New in Print (including books!)

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

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

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

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

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

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

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

Tuesday, January 20, 2015

Weekly Top Tens from the Social Science Research Network

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

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

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

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

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

Monday, January 19, 2015

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

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

Master Yoda
Now that's a real master

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

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

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

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