ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, August 19, 2016

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

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

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

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

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

Thursday, August 18, 2016

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

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

Rank Downloads Paper Title
1 177 The Mystery of Mutual Insurers in Lawyers Professional Liability Insurance
Tom Baker and Rick Swedloff
University of Pennsylvania Law School and Rutgers Law School
2 143 The Puzzle of PDVSA Bond Prices
Paolo Colla, Anna Gelpern and G. Mitu Gulati
Bocconi University - Department of Finance, Georgetown University Law Center and Duke University School of Law
3 133 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
4 122 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
5 72 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
6 68 Sizing up Private Law
Andrew S. Gold and Henry E. Smith
DePaul University College of Law and Harvard Law School
7 120 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
8 81 Are Validation Notices Valid? An Empirical Evaluation of Consumer Understanding of Debt Collection Validation Notices
Jeff Sovern and Kate E. Walton
St. John's University - School of Law and St. John's University - Department of Psychology
9 80 Contractual Arbitrage
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
10 74 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law

 

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

Rank Downloads Paper Title
1 122 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
2 120 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
3 103 Does High Auditor Litigation Risk Discourage Corporate Innovation?
Mahfuz Chy and Ole-Kristian Hope
University of Toronto, Rotman School of Management, Students and University of Toronto - Rotman School of Management
4 80 Contractual Arbitrage
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
5 74 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
6 72 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
7 65 The Role of Contract: Stewart Macaulay's Lessons from Practice
Brian Bix
University of Minnesota Law School
8 65 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School
9 60 Coverage Information in Insurance Law
Daniel Schwarcz
University of Minnesota Law School
10 55 Taking Stewart Macaulay and Hugh Collins Seriously
John Gava
Adelaide Law School

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

Wednesday, August 10, 2016

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

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

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

Rank Downloads Paper Title
1 131 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
2 123 The Puzzle of PDVSA Bond Prices
Paolo Colla, Anna Gelpern and G. Mitu Gulati
Bocconi University - Department of Finance, Georgetown University Law Center and Duke University School of Law
3 117 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
4 116 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
5 84 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
6 76 Contractual Arbitrage
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
7 76 Are Validation Notices Valid? An Empirical Evaluation of Consumer Understanding of Debt Collection Validation Notices
Jeff Sovern and Kate E. Walton
St. John's University - School of Law and St. John's University - Department of Psychology
8 69 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
9 68 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
10 60 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School


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

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

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

Thursday, August 4, 2016

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

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

Rank Downloads Paper Title
1 121 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
2 111 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
3 109 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
4 82 The Legal Writer, Making Offers No One Can Refuse: Effective Contract Drafting — Part 5
Gerald Lebovits
Columbia University - Law School
5 72 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
6 68 Contractual Arbitrage
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
7 67 Are Validation Notices Valid? An Empirical Evaluation of Consumer Understanding of Debt Collection Validation Notices
Jeff Sovern and Kate E. Walton
St. John's University - School of Law and St. John's University - Department of Psychology
8 64 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
9 58 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School
10 65 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law

 

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

Rank Downloads Paper Title
1 111 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College
2 109 The Jurisprudence of Paper Clips
Robert A. James
Pillsbury Winthrop Shaw Pittman LLP
3 88 Does High Auditor Litigation Risk Discourage Corporate Innovation?
Mahfuz Chy and Ole-Kristian Hope
University of Toronto, Rotman School of Management, Students and University of Toronto - Rotman School of Management
4 82 The Legal Writer, Making Offers No One Can Refuse: Effective Contract Drafting — Part 5
Gerald Lebovits
Columbia University - Law School
5 72 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
6 68 Contractual Arbitrage
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
7 65 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
8 64 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
9 58 Justice Scalia's Jiggery-Pokery in Federal Arbitration Law
David S. Schwartz
University of Wisconsin Law School
10 55 The Legal Writer, Making Offers No One Can Refuse: Effective Contract Drafting — Part 4
Gerald Lebovits
Columbia University - Law School

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

Thursday, July 28, 2016

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

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

Rank Downloads Paper Title
1 191 Is Rule of Law an Equilibrium Without Private Ordering?
Gillian K. Hadfield and Barry R. Weingast
USC Law School and Department of Economics and Stanford University, Department of Political Science
2 133 On the Surprising Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market
Meirav Furth-Matzkin
Harvard Law School
3 110 Optimal Defaults in Consumer Markets
Oren Bar-Gill and Omri Ben-Shahar
Harvard Law School and University of Chicago Law School
4 70 Enhancing Moral Relationships Through Strict Liability
Seana Shiffrin
University of California, Los Angeles (UCLA) - School of Law
5 64 Consent in Online Contracts - Mindless or Mindful?
Dasuni Wijayasriwardena
Queen Mary University of London
6 60 Are Validation Notices Valid? An Empirical Evaluation of Consumer Understanding of Debt Collection Validation Notices
Jeff Sovern and Kate E. Walton
St. John's University - School of Law and St. John's University - Department of Psychology
7 58 Contractual Arbitrage
Stephen J. Choi, G. Mitu Gulati and Robert E. Scott
New York University School of Law, Duke University School of Law and Columbia University - Law School
8 58 The Art of Promise and Power of Contract
Robin Bradley Kar
University of Illinois College of Law
9 58 Form and Substance in Equitable Remedies
Stephen A. Smith
McGill University - Faculty of Law
10 107 The Moral Impermissibility of Efficient Breach
Adam Rigoni
Arizona State University (ASU) - Barrett, the Honors College

 

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

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

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

Thursday, July 21, 2016

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

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

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

 

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

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

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

Tuesday, July 19, 2016

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

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

Here is Professor Bernstein's abstract:

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

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

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

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

Thursday, July 14, 2016

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

Top-10 Scrolling

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

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

 

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

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

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

Thursday, July 7, 2016

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

TopTen Stamp-808x455

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

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

 

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

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

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

Tuesday, July 5, 2016

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

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

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

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

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

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

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

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

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

Thursday, June 30, 2016

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

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

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

 

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

Thursday, June 23, 2016

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

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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)

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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)

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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)