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Monday, September 15, 2014

Ben-Shahar & Schneider Symposium, Part I: Aditi Bagchi, Curiosity Makes the Cat

This is the first in a series of posts that are part of a virtual symposium on the new book by Omri Ben-Shahar and Carl E. Schneider,  More Than You Wanted to Know: The Failure of Mandated Disclosure.  Biographies for the first week's contributors can be found here.  The authors' introduction to the symposium can be found here.

BagchiAditi Bagchi teaches Contracts and Labor Law at the Fordham University School of Law, where she is an Associate Professor. 

Omri Ben-Shahar and Carl Schneider make a persuasive case that mandatory disclosure is no panacea for complex decisions.  We do not use much of the information we are given, nor would we make objectively superior decisions were we to try.  Since disclosure is expensive, though not for the state that requires it, we should not take on its costs with exaggerated expectation of benefit.  Some regulatory effort should be redirected to other methods, including mandatory regulation of conduct.

In the course of making these important points, Ben-Shahar and Schneider make other, harder claims.  Fundamentally, they boil down to the one in the title, i.e., mandatory disclosure gives us more than we want to know.  In particular, they claim “mandated disclosure is based on “false assumptions about what people think, do, and want.” (p.94) But the authors provide more evidence of what we do than evidence of what we think or want.  Revealed preferences about disclosure (preferences gleaned ex post from how we use it, or don’t) may diverge from both considered individual preferences and collective preferences about an aggregate state of affairs.

One of the interesting moves Ben-Shahar and Schneider make is to talk about mandatory disclosure as such, generalizing across contexts.  For example, their claims apply both to standard terms in consumer contracting and medical information relevant to patient decision-making.  It is useful, though, to distinguish between small and big decisions because distinct considerations bear on each.

Let us start with big decisions, such as whether to undergo a proposed medical treatment, or which mortgage or retirement plan to select.  Ben-Shahar and Schneider argue that people lack the ability and desire to process technical information relevant to these decisions.  We appropriately rely instead on advisers to direct us to the best treatment, mortgage or retirement plan.  Although the authors might be right about some of the political dynamics that best explain growth of mandatory disclosure in these areas, they do not consider one of the arguments that may best justify disclosure.

Our demand for information may be aspirational.  Because we see ourselves as agents directing our lives rather than passively experiencing them, we want to make the basic contour of our lives as much the product of our own agency as possible.  Yet we do not always act in accord with our reflective view of ourselves; we forfeit the chance to direct our lives in meaningful ways.  We want to know more about our bodies and what will happen to us than we can muster the will to learn.  Financial consumers infer from our responsibility for our choice of mortgage or retirement plan – responsibility that our systems of contract, employment, bankruptcy and social security impute to us – that we should acquire knowledge sufficient to exercise control prudently.  But we do not make it happen.

Ben-Shahar and Schneider observe that most people are unable to understand financial decision-making.  It seems likely, though, that we can understand enough to exercise better control than we do, but fail even to do that.  Maybe Ben-Shahar and Schneider are right that complexity and frequency of choice make it very hard to proceed through life as we aspire to do in principle.  Although they characterize this as rational conservation of energy, in light of my own reflective judgment that I should know more, my failure to do so should be regarded as just that.

Morethan Failure to exercise my own agency in a manner I endorse is a common moral failure, as human as the aspiration to agency itself.  But in this context, the state can make it marginally easier to avoid the shortfall by lowering the marginal cost of processing critical facts.  Exercising better judgment about a retirement plan need not entail, for example, acquiring the skill to predict which fund will perform best.  It can be enough to learn just enough about funds to be able to identify those that have characteristics suitable for someone with my retirement aims.  These characteristics may be reductive and legally defined.

Of course, I cannot report that individuals want more information; I am only suggesting some good reasons to think we might want it even though we don’t always use it.  It is difficult to show directly how people think about major decisions.  But consider a counterfactual: The information we are now provided about mortgages and funds is simply taken away.  Doctors cease to explain treatment options in detail.  Would we react to this change favorably?  Actually, we need not rely on the hypothetical.  Notwithstanding the evidence that people do not choose their health care plans or doctors with great care, they are told that henceforth they will be deprived of such choice.  Contrary to an aside in the book (p.63), people did seem to get quite upset at the prospect.

One might dismiss our preferences about information and choice as ill-considered because meeting them does not assure satisfaction of our preferences over concrete goods and services.  But why credit our preferences about the objects of choice over our considered preferences about the process of choice?  Our desire for information, derivative as it may be from our very self-conception, is no less worthy of satisfaction in its own right, even at a cost.

Ben-Shahar and Schneider mischaracterize the “autonomy” interest at issue and the discontent that drives mandatory disclosure. That studying disclosure is unpleasant and may even make us “feel” less autonomous (p. 74) does not imply that disclosure in fact undermines autonomy, because autonomy is not an emotional state.  Autonomy is served by making it easier for people to abide by their own regulative principles even where the principles are burdensome and we have a poor track record.  The principles of conduct we endorse upon reflection are the work-products of our capacity for practical reason.  We are not always adequately motivated by the judgments we make in that mode.  But those judgments about who we are and how we should live have special standing, even in the face of evidence that we are not quite what we aspire to be.

Ben-Shahar and Schneider may be right that information about products and services will only result in more efficient consumption if we know ourselves (p. 108).  But advocates of disclosure need not assume that we know ourselves as an empirical matter.  A liberal state should usually operate under a regulative presumption that each of us knows ourselves better than anyone else because we are in important ways of our own making, constituting ourselves by way of the values we endorse.  Because, for many of us, those values likely include a commitment to navigating important life decisions with understanding and deliberateness, our related preference for information to aid us in that effort should not be set aside lightly.

Because the best argument for disclosure sometimes lies in our self-understanding as choosing agents rather than our knowledge of ourselves as consumers or even patients, we can decline to defer to experts without suspecting that they are cheating or tricking us.  We vary on a range of dimensions implicated by big decisions – we value different aspects of physical experience, we have different levels of risk aversion, our financial aims reflect broader life projects.  Big decisions rely on and substantially impact fundamental features of ourselves.  Sometimes, we do not wish to put ourselves on auto-pilot even if we are less likely to hit a bump.

Other times we are okay with auto-pilot.  Turning to the small decisions (which cell-phone carrier?), it seems unlikely that our self-conceptions are very bound up with exercising judgment in a thoughtful way (though a case could be made, with respect to the totality of such decisions).  But there is an alternative way to conceptualize our preferences about information in the retail context too.

Boilerplate is usually more than any one of us wants to know about each of the transactions we enter.  But key to boilerplate is its uniformity and pervasiveness.  The terms that govern your transaction probably apply to me too; in fact, they govern most of us.  We collectively prefer that terms that govern our life are disclosed to us, even if most of us will not undertake to read those terms. We may not care much about particular terms but we do care about living in a society where legally binding rules are public.  Indeed, we have long required laws that govern us to be published, even though most of us do not read those either.

Disclosing standard terms to each of us effectively discloses terms to “us” as a political and economic community (though thinking of it this way may alter the form of disclosure we require).  Not only for instrumental reasons but also for reasons having to do with transparency, legitimacy and access, we want the rules by which we operate to be out there for us to jointly reference, evaluate and perhaps revise, by way of public discourse and politics.  The mandatory regulation that Ben-Shahar and Schneider recommend as occasional substitutes for disclosure can only come about once we, as a community, know the terms that we reject.

In other words, sometimes I really do want to know more.  And sometimes I don’t, but we do.

September 15, 2014 in Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

More Than You Needed to Know Symposium: The First Six

This week we will begin our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure.  

This week, the symposium will include contributions by the contracts law scholars introduced below:

Bagchi Aditi Bagchi teaches Contracts and Labor Law at the Fordham University School of Law, where she is an Associate Professor. She writes about the nature of contractual obligation, contract interpretation, and questions in political and moral philosophy as they arise in contract.  She has explored these issues with respect to employment and consumer contracts in particular.  She has a related interest in the comparative political economy of contract, labor and corporate law.  

Links to Professor Bagchi's academic papers can be found on SSRN here.

BurtonSteven J. Burton is the John F. Murray Professor of Law at the University of Iowa.  He currently teaches Contracts and a Seminar on Advanced Problems in Contract Law. He joined the law faculty in 1977 after four years with the Office of the Legal Adviser at the U.S. Department of State.

Professor Burton is the author or co-author of five books: Elements of Contract Interpretation (Oxford University Press, 2009); An Introduction to Law and Legal Reasoning (Wolters, Kluwer, 3d ed. 2006); Principles of Contract Law (West, 4th ed. 2012); Contractual Good Faith: Formation, Performance, Breach, Enforcement (Little, Brown & Co., 1995) (with Eric G. Andersen); and Judging in Good Faith (Cambridge University Press, 1992). He has editedThe Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr. (Cambridge University Press, 2000) and co-edited American Arbitration Principles and Practise (Practising Law Institute, 2008) (with Robert B. von Mehren and George W. Coombe, Jr.). He is also the author of numerous journal articles, including "The New Judicial Hostility to Arbitration: Federal Preemption, Contract Unconscionability, and Agreements to Arbitrate" 2006 Journal of Dispute Resolution 469; "Combining Conciliation with Arbitration in International Commercial Disputes," 18 Hastings Journal of International and Comparative Law 637 (1995); "Good Faith in Articles 1 and 2 of the Uniform Commercial Code: The Practice View," 35 William and Mary Law Review 1533 (1994); "Default Rules, Legitimacy, and the Authority of a Contract," 2 Southern California Interdisciplinary Law Journal 115 (1993); "Racial Discrimination in Contract Performance: Patterson and a State Law Alternative," 25 Harvard Civil Rights - Civil Liberties Law Review 431 (1990); "Ronald Dworkin and Legal Positivism," 73 Iowa Law Review 109 (1987); and "Breach of Contract and the Common Law Duty to Perform in Good Faith," 94 Harvard Law Review369 (1980).

CaloRyanRyan Calo is an assistant professor of law at the University of Washington, where he co-directs the Tech Policy Lab, and an affiliate scholar at the Stanford Center for Internet and Society. Professor Calo researches the intersection of law and emerging technology, with an emphasis on robotics and the Internet. His work on drones, driverless cars, privacy, and other topics has appeared in law reviews and major news outlets, including the New York Times, the Wall Street Journal, and NPR. Professor Calo has also testified before the full Judiciary Committee of the United States Senate and was a speaker at the Aspen Ideas Festival.

Links to Professor Calo's academic papers can be found on SSRN here.

HillmanRobert Hillman is the Edwin H. Woodruff Professor of Law at Cornell University.  He has written extensively on contracts and contract theory, the Uniform Commercial Code, and related jurisprudence.  His articles have appeared in the Stanford, NYU, Columbia, Chicago, Michigan, Northwestern, Duke, and Cornell law reviews, and he is the author of The Richness of Contract Law (1997) and a coauthor of the Sixth Edition of White, Summers, and Hillman, Uniform Commercial Code (2012 through 2014).  A 1972 graduate of Cornell Law School, Professor Hillman clerked for the Hon. Edward C. McLean and the Hon. Robert J. Ward, both U.S. District Judges for the Southern District of New York. After private practice with Debevoise & Plimpton in New York City, he began his teaching career at the University of Iowa College of Law. Hillman joined the Cornell Law School Faculty in 1982, and, in addition to teaching and authoring or co-authoring several major contracts and commercial law works, he served as Associate Dean from 1990-1997. An arbitrator, consultant on commercial litigation, and the Reporter for the American Law Institute's Principles of the Law of Software Contracts, Professor Hillman teaches contracts, commercial law, and the law of e-commerce. He also teaches a class on the nature, functions, and limits of law for Cornell University's Government Department.

Professor Hillman's c.v., including a list of publications can be found here.

LeibEthan Leib is Professor of Law at Fordham Law School. He teaches in contracts, legislation, and regulation.  His most recent book, Friend v. Friend: Friendships and What, If Anything, the Law Should Do About Them  explores the costs and benefits of the legal recognition of and sensitivity to friendship; it was published by Oxford University Press.  Leib’s latest scholarly articles will appear in Legal Theory (on fiduciary and promissory theory) and the Georgetown Law Journal (on “regleprudence” and OIRA).  He has also written for a broader audience in the New York Times, USA Today, Policy Review, Washington Post, New York Law Journal, The American Scholar, and The New Republic.  Before joining Fordham, Leib was a Professor of Law at the University of California–Hastings in San Francisco.  He has served as a Law Clerk to then-Chief Judge John M. Walker, Jr., of the U.S. Court of Appeals for the Second Circuit and as a Litigation Associate at Debevoise & Plimpton LLP in New York.

Linkes to Professor Leib's academic papers can be found on SSRN here.

WillisLauren Willis is Professor of Law at the Loyola Law School, Los Angeles.  Professsor Willis clerked for the Office of the Solicitor General of the United States and for Judge Francis D. Murnaghan, Jr. of the United States Court of Appeals for the Fourth Circuit.  Before coming to academia, she was a litigator in the Housing Section of the Civil Rights Division of the U.S. Department of Justice and worked with the U.S. Federal Trade Commission on predatory mortgage lending litigation.   Professor Willis joined the Loyola faculty in 2004.  She has also taught at Stanford Law School, the University of Pennsylvania Law School and  Harvard Law School.  She was honored by Loyola’s graduating day class with the 2008 Excellence in Teaching award.  

Her recent publications include:

 Stay tuned.  It's going to be a very interesting week on the blog!

 

 

September 15, 2014 in About this Blog, Contract Profs, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Introducing the Virtual Symposium on "More That You Wanted to Know"

We begin our upcoming virtual symposium with this introduction provided by the authors of the book that we are subjecting to strict scrutiny, Omri Ben-Shahar and Carl E. Schneider.

Morethan  MORE THAN YOU WANTED TO KNOW: The Failure of Mandated Disclosure 

When he famously wrote 100 years ago, “Sunlight is the best of disinfectants,” Justice Louis Brandeis began a century of disclosure law.  How do we protect borrowers and investors? Disclosure! How do we help patients choose safe treatments and good health plans? Disclosure! How do we regulate websites’ privacy policies? Disclosure!

In area after area, mandated disclosure is lawmakers’ favorite way to protect people facing unfamiliar challenges.  Truth in lending laws, informed consent, food labeling, conflicts-of-interests regulation, even Miranda warnings, all arose because lawmakers rightly worried that uninformed and inexperienced people might make disastrous choices.

Brandeis was wrong. True, these laws have a worthy goal – equipping us to make better decisions. But in sector after sector, studies steadily show that mandated disclosure has been almost as useless as it is ubiquitous. Financial crises have bred mandates for decades — the Securities Act of 1933, truth-in-lending laws in the 60s and 70s, Sarbanes-Oxley in 2002, and, after the 2008 crisis, the Dodd-Frank Act.  But each new crisis occurred despite the old elaborate disclosure requirements.

In our new book MORE THAN YOU WANTED TO KNOW: The Failure of Mandated Disclosure, we explain that mandated disclosure has become the regulatory default.  It is politically easy for legislatures and convenient for courts. 

Sunlight doesn’t disinfect because mandated disclosure is so ill-suited to address the problems it faces – and, in fact, can do more harm than good. Consider one of the most heroic efforts to get disclosure right. “Know Before You Owe” is a new regulation issued by the Consumer Financial Protection Bureau, the agency responsible to reform consumer credit markets. The Bureau recognized that people took bad mortgages because they misunderstood the terms. To prevent this, the Bureau heeded the Dodd-Frank mandate to promote “comprehension, comparison, and choice.” After much intelligent work, the Bureau has a new, simpler form that has done well in laboratory tests:

Bedsheet 1 Bedsheet 2

 

 

 

 

Gone are the tiny fonts and the overloaded lines of the old form (on right). The new form (on left) is a masterpiece of design, declaring the dawn of a new era of smart and simplified disclosure, designed by lawmakers schooled in decision sciences and cost-benefit analysis.

But mortgage disclosure has to work in the bank, not in the regulators’ lab. When borrowers arrive at a real-world loan closing, they will get the Bureau’s new form and almost 50 other disclosure forms about issues like insurance, taxation, privacy, security, fraud, and constitutional rights.  The new form is part of a stack more than 100 pages high, courtesy of many laws from many lawmakers over many years.  Nobody plows through all this. And no single agency has the authority to pare down the stack. 

Despite failures, disclosures are growing in number and in length. In health care, informed consent sheets now look like the fine print web users click “I Agree” to, thoughtlessly.  Just reviewing the privacy disclosures received in one year would take a well-educated fast reader 76 work days, for a national total of over 50 billion hours and a cost in readers’ time greater than Florida’s GDP. In banking law, to describe the many fees in a garden variety checking account, the average disclosure is twice as long (and quite as dismaying) as Romeo and Juliet (111 pages).

In internet commerce, if you want to buy an iTunes song you are told (as the law requires) to click the agreement to the disclosed terms.   Do you read before clicking?  Of course not.   Florencia Marotta-Wurgler and co-authors have showed that only one in a thousand software shoppers spend even one second on the terms page.  And if you do print out the iTunes terms, you confront 32 feet of print in 8-point font (See Ben-Shahar’s photo with the iTunes Scroll below).  Hard as you read, you can’t understand the words, what the clauses mean, or why they matter.

Omri 1

What about simplifying with just a few scores or letters, like A, B, and C grades for restaurant hygiene?  Alas, boiling complex data down to a manageable form usually eliminates or distorts relevant factors.  So a recent study by Daniel Ho at Stanford found that the volatility of restaurant cleanliness and the discretion given to inspectors make hygiene scores unreliable and even misleading – and do not detectably help public health.  There is almost no evidence that the simplest of all scores – the loan’s APR – has helped people make better loan decisions, and there is plenty of evidence that it didn’t. 

If disclosures are so futile, why do lawmakers keep mandating them?  Because disclosure mandates look like easy solutions to hard problems.  When crises occur, lawmakers must act.  Regulation with bite provokes bitter battles (often stalemate); mandated disclosure wins sweet accord (near unanimity).  Mandated disclosure appeals to both liberals (personal autonomy and transparency) and conservatives (efficient markets).   And as one financier admitted, "I would rather disclose than be regulated."  

But disclosures are not just inept. They can be harmful. Disclosure mandates spare lawmakers the pain of enacting more effective but less popular reforms.  Disclosures help firms avoid liability, even when they act deceptively or dangerously. Disclosures can be inequitable, for complex language is likelier to be understood by those who are highly educated and to overwhelm and confuse those who aren’t. Mandated disclosures can crowd out better information (time spent “consenting” patients cannot be spent treating them). 

We are often asked what should replace mandated disclosure.  If it does not work, little is lost in abandoning it.  And if it cannot work, the rational response is not to search for another (doomed) panacea, but to bite the bullet and ask which social problems actually require regulation and what regulation might actually lessen the problem. We do not envy lawmakers the hard work of helping people cope with the modern consumer’s life.  But persisting in mandating disclosures is, as Samuel Johnson said of second marriages, the triumph of hope over experience.

Ben-Shahar is Leo and Eileen Herzel Professor of Law, University of Chicago.

Schneider is the Chauncey Stillman Professor of Law and Professor of Internal Medicine, University of Michigan.

September 12, 2014 in About this Blog, Books, Recent Scholarship, True Contracts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Introducing the Authors: More Than You Wanted to Know

Next week, we on the ContractsProf Blog will be hosting a virtual symposium on Omri Ben-Shahar & Carl Schneider's new book, More Than You Wanted to Know: The Failure of Mandated Disclosure.  
The symposium will feature contributions from Aditi Bagchi, Steven Burton, Ryan Calo, Robert Hillman, Nancy Kim, Ethan Leib and Lauren Willis, among others.  The first five will go up next week, followed by more the following week, with responses from the authors interspersed.

Tomorrow, we will post the authors' introduction to the symposium, which summarizes the argument of the book.  For now, we just introduce the authors themselves.  

Ormi 3Omri Ben-Shahar earned his PhD in Economics and SJD from Harvard in 1995 and his BA and LLB from the Hebrew University in 1990. Before coming to Chicago, he was the Kirkland & Ellis Professor of Law and Economics at the University of Michigan. Prior to that, he taught at Tel-Aviv University, was a member of Israel's Antitrust Court and clerked at the Supreme Court of Israel. He teaches contracts, sales, insurance Law,  consumer law, e-commerce, food and drug law, law and economics, and game theory and the law. He writes in the fields of contract law and consumer protection. Ben-Shahar is the Kearny Director of the Coase-Sandor Institute for Law and Economics, and the Editor of the Journal of Legal Studies. He is also the Co-Reporter with Oren Bar-Gill for the Restatement Third of Consumer Contracts.

A list of Professor Ben-Shahar's publications can be found here.

SchneiderCarl E. Schneider, the Chauncey Stillman Professor of Law and Professor of Internal Medicine, teaches courses on law and medicine, regulating research, property, the sociology and ethics of the legal profession, and writing briefs. His scholarship criticizes the dominant regulatory ideas in the law of medical ethics, particularly as they are applied to subjects like the relationship between doctor and patient, the use of advance directives, physician-assisted suicide, and human-subject research. His The Practice of Autonomy: Patients, Doctors, and Medical Decisions (Oxford University Press, 1998), which analyzes the malign effects of making patient autonomy the regulatory summum bonum, is an example of that project. Prof. Schneider is also the coauthor of two casebooks. With Marsha Garrison, he wrote The Law of Bioethics: Individual Autonomy and Social Regulation (West, 2009, second edition), a pioneering casebook in its subject. With Margaret F. Brinig, he wrote An Invitation to Family Law (West, 2007, third edition), an innovative family-law casebook. He recently served on the President's Bioethics Council and has been a visiting professor at Cambridge University, the University of Tokyo, Kyoto University, and the United States Air Force Academy.

A list of Professor Schneider's publications can be found here.

September 11, 2014 in About this Blog, Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Getting Paid in the Naked Economy

I've posted a short paper to SSRN titled "Getting Paid in the Naked Economy."  It is not too academicky, which may delight some and disturb others.  Here's the abstract:

“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013), http://www.accenture.com/SiteCollectionDocuments/PDF/Accenture-Future-of-HR-Rise-Extended-Workforce.pdf). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on. . . workers who aren’t employees at all.” Id. The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.”

It is not new or novel to recognize that, from a legal perspective, there are many benefits to employers who hire independent contractors rather than employees. There have long existed incentives for employers to characterize workers as independent. What is shifting, however, is the workers’ narrative about independence. At least for creative and highly skilled workers, the changing narrative is one of free agency: ditch the man and chart your own course, which writers and entrepreneurs Ryan Coonerty and Jeremy Neuner have dubbed the “naked economy.” (Coonerty & JNeuner, The Rise of the Naked Economy: How to Benefit from the Changing Workplace (Palgrave MacMillan 2013)).

Why is this economy “naked”? While acknowledging vulnerability, the reference to nudity appears to emphasize freedom: “stripping work bare” to reinvent it with the essentials required for productivity and satisfaction. This frame of mind places high value on control and flexibility. It eschews the rigid 9-5 workday, with its commute and face time. It emphasizes work-life balance, changes in technology that allow for flexibility and the dream of charting one’s own destiny. All of these factors are coalescing to push people (at least, creative and highly skilled people) to choose independence.

Independent work, however, has its drawbacks. One of the significant problems in the independent workforce is nonpayment of invoices. 40% of respondents to a Freelancers Union survey reported trouble collecting unpaid fees from clients. (Freelancers Union, Independent, Innovative, and Unprotected: How the Old Safety Net Is Failing America’s New Workforce (2010), http://fu-res.org/pdfs/advocacy/2010_Survey_Full_Report.pdf). Of those respondents, 83% reported getting paid late; 33% reported never getting paid; and 28% reported getting paid less than billed. Id.

This short paper addresses independent workers’ very specific and all-too-common difficulties in getting paid. It is written for a mixed audience; it is intended to be both practical and accessible. There is hope that it will further the academic conversation, but it is also written for attorneys, policymakers and independent workers. Part I defines the naked economy and tracks the rise in independent work. Part II discusses the problem of nonpayment. Parts III, IV and V, respectively, provide an overview of the contractual tools, legislative reforms and market responses that are evolving to minimize the risk of nonpayment. The paper concludes that technology and private enterprise are evolving to meet the challenges of the independent workforce; however, contracting norms and legal structures must also rise to address the vulnerabilities of free agency.

 It is available here.

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

Wednesday, September 10, 2014

Upcoming Online Symposium: Margaret Jane Radin on Ben-Shahar & Schneider, More That You Wanted to Know

Ormi 3 SchneiderStarting next week we will be hosting an online symposium on the new book by Omri Ben-Shahar (left) and Carl E. Schneider (right), More Than You Wanted to Know: The Failure of Mandated Disclosure.  As is our wont, the symposium will consist of a fortnight's worth of commentary on the book, provided by contracts profs from around the county, and responses from the authors.  

In the meantime, we hope to whet our readers' appetities with this review of the book from Margaet Peggy Radin, author of  Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, which was itself the subject of an online symposium here on the blog.  Radin's review has the provocative title: "Less Than I Wanted to Know: Why do Ben-Shahar and Schneider Attach Only 'Mandated' Disclosures?"  Here is the abstract from SSRN:

This essay responds to a new book by Omri Ben Shahar and Carl E. Schneider, entitled MORE THAN YOU WANTED TO KNOW: THE FAILURE OF MANDATED DISCLOSURE (Princeton, 2014). The book is an elaborate disclosure of why disclosure fails. It is hard to disagree with the fact that widespread deficits in consumer reading, understanding and decisionmaking undermine the efficacy of disclosures, and the book provides plenty of data to show this. But the authors do not much confront the fact that many mandates for disclosures are a response to what happens when firms are free to design their own fine print. The same consumer decisionmaking deficits the authors here elaborate exist when the disclosure (allegedly contractual) is created by private firms; and firms take advantage of those deficits. If mandated disclosure is abandoned, as the authors recommend, do the authors think recipients of bad boilerplate should just be on their own? The authors did not consider that question as part of their project in this book.

 

September 10, 2014 in About this Blog, Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

New in Print

Tuesday, September 9, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 293 Facilitating Mergers and Acquisitions with Earnouts and Purchase Price Adjustments 
Albert H. Choi 
University of Virginia School of Law 
2 286 The Scope and Potential of FTC Data Protection 
Woodrow Hartzog and Daniel J. Solove 
Samford University - Cumberland School of Law and George Washington University Law School 
3 193 Contract as Empowerment: A New Theory of Contract 
Robin Bradley Kar 
University of Illinois College of Law 
4 149 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
5 131 Governing Law on Forum-Selection Agreements 
Kevin M. Clermont 
Cornell Law School 
6 129 Featuring People in Ads (2014 Edition) 
Eric Goldman and Rebecca Tushnet 
Santa Clara University - School of Law and Georgetown University Law Center 
7 127 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center 
8 108 Contract as Empowerment Part II: Harmonizing the Case Law 
Robin Bradley Kar 
University of Illinois College of Law 
9 99 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
10 92 Leases and Executory Contracts in Chapter 11 
Kenneth Ayotte 
University of California, Berkeley - School of Law

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

RankDownloadsPaper Title
1 193 Contract as Empowerment: A New Theory of Contract 
Robin Bradley Kar 
University of Illinois College of Law 
2 149 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
3 129 Featuring People in Ads (2014 Edition) 
Eric Goldman and Rebecca Tushnet 
Santa Clara University - School of Law and Georgetown University Law Center 
4 127 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center 
5 108 Contract as Empowerment Part II: Harmonizing the Case Law 
Robin Bradley Kar 
University of Illinois College of Law 
6 98 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
7 89 Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law 
Jeffrey M. Lipshaw 
Suffolk University Law School 
8 86 Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law
9 83 The Death of Contracts 
Franklin G. Snyder and Ann M. Mirabito 
Texas A&M University School of Law and Baylor University - Hankamer School of Business 
10 79 Credible Threats 
Saul Levmore and Ariel Porat 
University of Chicago Law School and Tel Aviv University 

September 9, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, September 8, 2014

Thorough Discussion of the Contractual Issues in the Salaita Case from Robin Kar

Ker

We've posted about Robin Kar's recent legal scholarship here and here.   Readers can have a look at Kar's method in action in this post on the Illinois Law Faculty Blog.

In our first post about the Salaita case, we lamented how few posts really wrestled with the contractual  (or promissory estoppel) issues in the case.  Professor Kar’s post is the most detailed investigation of the contractual issues to appear to date.  We also queried whether Salaita's potential constitutional claims against the University of Illinois might turn on the question of whether or not he had a contract with that institution, which is also the institution at which Professor Kar (pictured, at right) teaches.  Kar notes:

Critics of the Chancellor’s decision argue that, even if there was no contract, Salaita’s rights to academic freedom vis-à-vis the University of Illinois should apply with equal force at the hiring as at the firing stage.

Professor Kar seems to disagree.  He does not rule out entirely the possibility of constitutional and academic freedom claims in the absence of a contract, but he does note that "the existence of a contract should change the nature of the underlying arguments on both sides of this case." 

Peofessor Kar's analysis is both passionate, in dealing with an issue that is creating genuine anguish at his institution, and dispassionate, in treating the Salaita case as a forum for the elaboration of his theory of contract law as empowerment. Based on the publicly-available facts, Professor Kar thinks Salaita's contractual claims are quite strong.  As he puts it, "If the publicly known facts are all there is to know about this case, then I believe there very likely was a contract in this case, and that it may well have been breached."  This is so because (in short), Salaita's offer letter incorporated by reference the American Association of University Professors' (AAUP) principles of academic freedom, and the AAUP interprets those principles to require (at least) warnings hearings before someone in Salaita's position can have his offer letter revoked.  At this point, Professor Kar argues, his view of contract as empowerment becomes relevant to the analysis:

The power of the marketplace—in both academic and non-academic contexts—depends on parties’ capacities to make commitments that have certain objective elements to them. In this particular case, this means that the condition of Board of Trustee approval gave the Board some authority to refuse Salaita’s appointment—but not necessarily the authority it subjectively believes it has. If the Board’s unwillingness to approve this appointment reflects an undisclosed and idiosyncratic understanding of its authority, which diverges too sharply from the shared understandings of the national academic community, then there is likely a contract here.  And it may well have been breached.

Professor Kar then proceeds to a discussion of the way out for the University of Illinois, which probably would involve a retreat.  If the facts are as Professor Kar believes them to be, the Chancellor should "admit that the Salaita decision was in error and state that this matter is—properly speaking—outside of her hands."

I do not disagree with Professor Kar's analysis but I would like to push him on one point that I think is vital in this case and in his theory of empowerment generally.  As a normative theory, I find Professor Kar's theory attractive, but I wonder about its applicability to situations of grossly unequal bargaining power, and I believe the Salaita case is such a situation.  Professor Kar takes up this issue in earnest at the end of the second part of his work on contract as empowerment   On page 73, Professor Kar acknowledges that parties "rarely enter into contracts from perfectly equal bargaining positions" and he notes that, "[i]t would therefore be significantly disempowering if parties were only bound by contracts negotiated in these circumstances."

But parties are routinely bound in circumstances when they have no real bargaining power.   In such circumstances, even if Professor Kar is right that contracts law ought to be about empowerment, much of contract law (and this point has been made at great length by Peggy Radin, Nancy Kim, Oren Bar-Gill and others), is currently extremely disempowering for ordinary consumers and even for small businesses when (as in Italian Colors) they have to contract with corporate behemoths.  

Professor Kar's assessment of Salaita's contractual claims turns on communal understandings of the contractual obligations that arise in such circumstances:

The University of Illinois is part of a much larger academic community, which extends well beyond the confines of Illinois.  Its contractual interactions with other members of this community will thus be subjected to some tests for consistency with national understandings of how these interactions typically work. This includes national understandings about the appropriate relationship between government-appointed entities, like the Board of Trustees, and faculty decisions about hiring at academic institutions that aim to pursue knowledge impartially and in the absence of political influence.

 As the conversation that has been taking place on the blogosphere thus far suggests, there may be no national consensus on the subject.  Some contracts scholars will agree with Professor Kar; others, like Dave Hoffman, think that Salaita's contractual and promissory estoppel claims are weak, and they are weak precisely because Salaita lacked the bargaining power to protect himself.  And if Salaita's case were to go before an adjudicatory body, it will not be decided based on whether contracts ought to be empowering but on whether the already empowered University of Illinois can escape any contractual obligation that might empower Professor Salaita.

 

September 8, 2014 in Commentary, Contract Profs, Current Affairs, In the News, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2014

New in Print

Tuesday, September 2, 2014

Weekly Top Tens from the Social Science Research Network

Kelsen Bust
It is a bit alarming to see that Jeff Lipshaw's Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law has made the top-ten list.  His article is supposed to appear in a book that I am editing, and my theory is that the American legal academy doesn't care about Hans Kelsen (pictured).  So, if Jeff's paper succeeds, the book is wrong, and Jeff's paper will never see the light of day!

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

RankDownloadsPaper Title
1 276 Facilitating Mergers and Acquisitions with Earnouts and Purchase Price Adjustments 
Albert H. Choi 
University of Virginia School of Law 
2 231 The Scope and Potential of FTC Data Protection 
Woodrow Hartzog and Daniel J. Solove 
Samford University - Cumberland School of Law and George Washington University Law School 
3 170 Contract as Empowerment: A New Theory of Contract 
Robin Bradley Kar 
University of Illinois College of Law 
4 147 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
5 124 Governing Law on Forum-Selection Agreements 
Kevin M. Clermont 
Cornell Law School 
6 121 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center 
7 104 Featuring People in Ads (2014 Edition) 
Eric Goldman and Rebecca Tushnet 
Santa Clara University - School of Law and Georgetown University Law Center
8 94 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
9 87 Contract as Empowerment Part II: Harmonizing the Case Law 
Robin Bradley Kar 
University of Illinois College of Law 
10 82 Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law

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

RankDownloadsPaper Title
1 170 Contract as Empowerment: A New Theory of Contract 
Robin Bradley Kar 
University of Illinois College of Law 
2 147 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
3 121 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center 
4 104 Featuring People in Ads (2014 Edition) 
Eric Goldman and Rebecca Tushnet 
Santa Clara University - School of Law and Georgetown University Law Center 
5 94 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
6 87 Contract as Empowerment Part II: Harmonizing the Case Law 
Robin Bradley Kar 
University of Illinois College of Law 
7 82 Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law 
8 77 Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law 
Jeffrey M. Lipshaw 
Suffolk University Law School 
9 76 The Death of Contracts 
Franklin G. Snyder and Ann M. Mirabito 
Texas A&M University School of Law and Baylor University - Hankamer School of Business 
10 76 Credible Threats 
Saul Levmore and Ariel Porat 
University of Chicago Law School and Tel Aviv University 

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

Wednesday, August 27, 2014

New in Print

Pile of BooksJames Matthew Davis, Say what? The resolution of ambiguous written agreements in West Virginia, 116 W. Va. L. Rev. 917 (2014)

Gregory R. Day, Market Failure, Pari Passu, and the Law and Economics Approach to the Sovereign Debt Crisis, 22 Tul. J. Int?l & Comp. L. 225 (2014)

Thalia Gonzalez & Giovanni Saarman, Regulating Pollutants, Negative Externalities, and Good Neighbor Agreements: Who Bears the Burden of Protecting Communities? 41 Ecology L.Q. 37 (2014)

David Horton, Indescendibility, 102 Cal. L. Rev. 543 (2014)

Steven Olenick, Jenna Kochen and Jason Sosnovsky, Finding a Solution: Getting Professional Basketball Players Paid Overseas, 15 Tex. Rev. Ent. & Sports L. 1 (2013)

Robert J. Romano, Analyzing the United States -- Japanese Player Contract Agreement: Is This Agreement in the Best Interest of Major League Baseball Players and If Not, Should the MLB Players Association Challenge the Legality of the Agreement as a Violation of Federal Law? 15 Tex. Rev. Ent. & Sports L. 19 (2013)

Elizabeth I. Winston, Sowing the Seeds of Protection. 2014 Wis. L. Rev. 445

August 27, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, August 26, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 262 Facilitating Mergers and Acquisitions with Earnouts and Purchase Price Adjustments 
Albert H. Choi 
University of Virginia School of Law 
2 208 The Scope and Potential of FTC Data Protection 
Woodrow Hartzog and Daniel J. Solove 
Samford University - Cumberland School of Law and George Washington University Law School 
3 159 Contract as Empowerment: A New Theory of Contract 
Robin Bradley Kar 
University of Illinois College of Law
4 146 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law
5 121 Governing Law on Forum-Selection Agreements 
Kevin M. Clermont 
Cornell Law School 
6 117 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center
7 91 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law
8 78 Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law
9 78 Leases and Executory Contracts in Chapter 11 
Kenneth Ayotte 
University of California, Berkeley - School of Law 
10 72 The Death of Contracts 
Franklin G. Snyder and Ann M. Mirabito 
Texas A&M University School of Law and Baylor University - Hankamer School of Business 

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

RankDownloadsPaper Title
1 159 Contract as Empowerment: A New Theory of Contract 
Robin Bradley Kar 
University of Illinois College of Law 
2 146 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
3 117 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center 
4 91 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
5 78 Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law 
6 72 The Death of Contracts 
Franklin G. Snyder and Ann M. Mirabito 
Texas A&M University School of Law and Baylor University - Hankamer School of Business 
7 71 Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law 
Jeffrey M. Lipshaw 
Suffolk University Law School 
8 67 Credible Threats 
Saul Levmore and Ariel Porat 
University of Chicago Law School and Tel Aviv University 
9 56 Legal Regulation of Combating Corruption. Report of the LSGL's Research Group 
Eduard IvanovAnnette van der MerwePhilip StevensThiago BottinoLie Uema do Carmo,Paulo Clarindo GoldschmidtHeloisa EstellitaMurat OnokLaura ScomparinSerena QuattrocoloMichael NietschTunde OgowewoDean Sudarshan and Maria Lúcia de Pádua Lima 
National Research University Higher School of Economics, University of Pretoria, University of Pretoria - Faculty of Law, FGV Direito Rio, Fundacao Getulio Vargas (FGV-EESP), Fundacao Getulio Vargas (FGV-EESP), Fundacao Getulio Vargas (FGV-EESP), Koc University, University of Turin, University of Turin, EBS Universität für Wirtschaft und Recht, King's College London – The Dickson Poon School of Law, O.P. Jindal Global University (JGU) - Jindal Global Law School (JGLS) and São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP 
10 43 Disclaimers of Contractual Liability and Voluntary Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 

 

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

Monday, August 25, 2014

More New on SSRN from Robin Kar

KarA few weeks ago, we noted that University of Illinois' Robin Kar's new article, Contract as Empowerment: A New Theory of Contract was available on SSRN.  The article has since been recommended as the "Download of the Week" and praised by Larry Solum on his Legal Theory Blog as "deeply interesting and important."

In our last post, we alerted readers of more to come from Professor Kar, and here it is:  Contract as Empowerment II: Harmonizing the Case Law.  Here is the abstract from SSRN.

In Contract as Empowerment, at http://ssrn.com/abstract=2476148, I develop a new theory of contract, “Contract as Empowerment”. This article applies that theory to a broad range of doctrinal problems and argues that contract as empowerment offers the best general interpretation of contract law. 

The argument proceeds in two stages. First, I identify a core set of legal doctrines, which provide an especially suitable test for different interpretations of contract. Second, I argue that contract as empowerment has the unique capacity to explain this entire constellation of doctrines. Along the way, contract as empowerment offers (1) a more compelling account of the consideration doctrine than exists in the current literature; (2) a more penetrating account of the expectation damages remedy; and (3) a concrete framework to determine the appropriate role of certain doctrines like unconscionability, which limit freedom of contract. Contract as empowerment also explains key doctrines and answers central puzzles at each basic stage of contract analysis. When coupled with its other normative and explanatory advantages, contract as empowerment thus offers the best general interpretation of contract. 

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 distinct 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, among others. The current theory suggests that many seeming conflicts between doctrines that serve these values are not, in fact, zero-sum games. So long as the complex interlocking rules of contract are fashioned in the right way, these doctrines can work together to serve a deeper and normatively satisfying principle of empowerment distinctive to contract. This framework can be used to guide legal reform and identify places where market regulation is warranted and needed in many different contexts of exchange — from those involving consumer goods to labor, finance, credit, landlord-tenant, home mortgages and many others.

There is also a deeper implication of contract as empowerment. Contract as empowerment reinterprets the basic nature of contract law and many related forms of economic activity. It suggests that contract law is not simply a set of rules that aim to maximize efficiency and promote personal consumption, rooted solely in competition and self-interest run wild. Contract law is instead a set of rules that produce genuine legal obligations in part because its rules are simultaneously personally empowering and reflective of a deeper moral ideal of equal respect for persons. If — as this article argues — this represents the best general interpretation of contract, then contracts and many related market activities have a distinctive moral fabric that has been running through them for some time now. This moral fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of these phenomena. Contract as empowerment seeks to cure these distortions. It can lead to a distinctive societal self-understanding, which better integrates economic activity into lives that brim with moral and civic virtue.

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

Tuesday, August 19, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 240 Facilitating Mergers and Acquisitions with Earnouts and Purchase Price Adjustments 
Albert H. Choi 
University of Virginia School of Law 
2 173 The Scope and Potential of FTC Data Protection 
Woodrow Hartzog and Daniel J. Solove 
Samford University - Cumberland School of Law and George Washington University Law School
3 142 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
4 112 Governing Law on Forum-Selection Agreements 
Kevin M. Clermont 
Cornell Law School 
5 108 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center 
6 84 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
7 77 Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law 
8 75 Leases and Executory Contracts in Chapter 11 
Kenneth Ayotte 
University of California, Berkeley - School of Law 
9 68 The Death of Contracts 
Franklin G. Snyder and Ann M. Mirabito 
Texas A&M University School of Law and Baylor University - Hankamer School of Business 
10 68 Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law 
Jeffrey M. Lipshaw 
Suffolk University Law School 

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

RankDownloadsPaper Title
1 142 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
2 108 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center 
3 84 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
4 77 Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law 
5 68 The Death of Contracts 
Franklin G. Snyder and Ann M. Mirabito 
Texas A&M University School of Law and Baylor University - Hankamer School of Business 
6 68 Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law 
Jeffrey M. Lipshaw 
Suffolk University Law School 
7 65 Credible Threats 
Saul Levmore and Ariel Porat 
University of Chicago Law School and Tel Aviv University 
8 61 A Eulogy for the EULA 
Miriam A. Cherry 
Saint Louis University - School of Law 
9 59 Consent and Sensibility: A Review of Margaret Jane Radin's Book, 'Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law' 
Michelle Boardman 
George Mason University School of Law 
10 48 Legal Regulation of Combating Corruption. Report of the LSGL's Research Group 
Eduard IvanovAnnette van der MerwePhilip StevensThiago BottinoLie Uema do Carmo,Paulo Clarindo GoldschmidtHeloisa EstellitaMurat OnokLaura ScomparinSerena QuattrocoloMichael NietschTunde OgowewoDean Sudarshan and Maria Lúcia de Pádua Lima 
National Research University Higher School of Economics, University of Pretoria, University of Pretoria - Faculty of Law, FGV Direito Rio, Fundacao Getulio Vargas (FGV-EESP), Fundacao Getulio Vargas (FGV-EESP), Fundacao Getulio Vargas (FGV-EESP), Koc University, University of Turin, University of Turin, EBS Universität für Wirtschaft und Recht, King's College London – The Dickson Poon School of Law, O.P. Jindal Global University (JGU) - Jindal Global Law School (JGLS) and São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP 

 

 

August 19, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, August 12, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 169 Facilitating Mergers and Acquisitions with Earnouts and Purchase Price Adjustments 
Albert H. Choi 
University of Virginia School of Law 
2 166 The Scope and Potential of FTC Data Protection 
Woodrow Hartzog and Daniel J. Solove 
Samford University - Cumberland School of Law and George Washington University Law School 
3 148 Bylaws Mandating Arbitration of Stockholder Disputes? 
Claudia H Allen 
Katten Muchin Rosenman LLP 
4 134 Bankers and Chancellors 
William W. Bratton and Michael L. Wachter 
Institute for Law and Economics, University of Pennsylvania Law School and University of Pennsylvania Law School - Institute for Law and Economics 
5 133 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
6 106 Governing Law on Forum-Selection Agreements 
Kevin M. Clermont 
Cornell Law School 
7 103 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center 
8 73 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
9 69 Leases and Executory Contracts in Chapter 11 
Kenneth Ayotte 
University of California, Berkeley - School of Law 
10 68 Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law 

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

RankDownloadsPaper Title
1 133 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
2 103 The Rise and Fall of Unconscionability as the 'Law of the Poor' 
Anne Fleming 
Georgetown University Law Center 
3 73 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
4 68 Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law 
5 64 The Death of Contracts 
Franklin G. Snyder and Ann M. Mirabito 
Texas A&M University School of Law and Baylor University - Hankamer School of Business 
6 59 A Eulogy for the EULA 
Miriam A. Cherry 
Saint Louis University - School of Law 
7 58 Consent and Sensibility: A Review of Margaret Jane Radin's Book, 'Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law' 
Michelle Boardman 
George Mason University School of Law 
8 54 FAA Preemption after Concepcion 
Christopher R. Drahozal 
University of Kansas School of Law 
9 54 Credible Threats 
Saul Levmore and Ariel Porat 
University of Chicago Law School and Tel Aviv University 
10 43 Classical Competition and Freedom of Contract in American Laissez Faire Constitutionalism 
Nicola Giocoli 
University of Pisa 

 

August 12, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, August 6, 2014

New on SSRN from Robin Kar

Robin Kar (pictured) has just posted an ambitious piece, Contract as Empowerment: A New Theory of Contract on SSRN.  The submission is still under review right now, so you can be among the first to download it!  Here is the abstract:

KarModern contract theory is in a quandary. As Alan Schwartz and Robert E. Scott have observed: “Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be.” This article aims to cure these deficiencies with a novel theory, “Contract as Empowerment”.

Contract as Empowerment is a deontological (duty-based) theory, rooted in a special strand of social contract theory known as “contractualism”. The theory nevertheless differs from more familiar deontological theories, which are typically rooted in moral intuitions about promising, autonomy or reliance. Because of its foundation in social contract theory, contract as empowerment can absorb a number of important economic and psychological insights, which have traditionally given efficiency theories explanatory advantages over traditional deontological theories. But contract as empowerment can absorb these insights without subjecting them to thoroughgoing economic interpretation. It can thereby produce a more robust, unified and normatively satisfying account of many core areas of doctrine. Among other things, contract as empowerment offers a more compelling account of the consideration doctrine than exists in the current literature; a better account of the expectation damages remedy (both descriptively and morally); and a special way of understanding the appropriate role of certain doctrines like unconscionability, which regulate private market activity by making the scope or content of contractual obligations depend on facts other than contracting parties’ subjective wills. 

This last fact provides a major point of contrast with most existing theories of contract. One of the most striking features of the way that standard debates between deontological and consequentialist theories have been framed in this area of the law is that general theories on both sides typically share a key implication. They imply that legal doctrines that invite courts to police bargains for fairness reflect alien intrusions into the basic subject matter of contract. Contract as empowerment suggests that this framing has been distorting our understanding of contracts (and hence modern markets) for some time now. It offers an alternative framework, which understands both private market empowerment and some market regulations as direct expressions of the same fundamental principles. Because this framework is principled, it can help depoliticize a range of currently heated debates about the appropriate scope and role of market regulation. This framework can be applied to many different forms of market exchange—from those in consumer goods to labor, finance, credit, mortgages and many others.

This article is the first in a two part series. Contract as Empowerment introduces and develops the theory of contract as empowerment. Contract as Empowerment II applies the theory to a range of doctrinal problems and argues that contract as empowerment offers the best general interpretation of contract law.

Professor Kar promises that a follow-up article is coming soon.  Stay tuned.

August 6, 2014 in Contract Profs, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, August 5, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 271 The Privatization of Compliance 
Scott Killingsworth 
Bryan Cave LLP 
2 194 A Psychological Account of Consent to Fine Print 
Tess Wilkinson‐Ryan 
University of Pennsylvania Law School 
3 163 The Scope and Potential of FTC Data Protection 
Woodrow Hartzog and Daniel J. Solove 
Samford University - Cumberland School of Law and George Washington University Law School 
4 159 Facilitating Mergers and Acquisitions with Earnouts and Purchase Price Adjustments 
Albert H. Choi 
University of Virginia School of Law 
5 141 Bylaws Mandating Arbitration of Stockholder Disputes? 
Claudia H Allen 
Katten Muchin Rosenman LLP
6 134 Bankers and Chancellors 
William W. Bratton and Michael L. Wachter 
Institute for Law and Economics, University of Pennsylvania Law School and University of Pennsylvania Law School - Institute for Law and Economics 
7 100 Governing Law on Forum-Selection Agreements 
Kevin M. Clermont 
Cornell Law School 
8 99 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
9 67 Alternative Entities in Delaware -- Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law 
10 67 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 

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

RankDownloadsPaper Title
1 194 A Psychological Account of Consent to Fine Print 
Tess Wilkinson‐Ryan 
University of Pennsylvania Law School 
2 99 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
3 67 Alternative Entities in Delaware -- Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law
4 67 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law 
5 61 Of Priors and of Disconnects 
Margaret Jane Radin 
University of Michigan Law School 
6 60 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
7 57 A Eulogy for the EULA 
Miriam A. Cherry 
Saint Louis University - School of Law 
8 54 Consent and Sensibility: A Review of Margaret Jane Radin's Book, 'Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law' 
Michelle Boardman 
George Mason University School of Law 
9 51 FAA Preemption after Concepcion 
Christopher R. Drahozal 
University of Kansas School of Law 
10 47 The Death of Contracts 
Franklin G. Snyder and Ann M. Mirabito 
Texas A&M University School of Law and Baylor University - Hankamer School of Business 

 

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

Wednesday, July 30, 2014

New in Print

Pile of BooksDavid Crump, Should the Commercial Landlord Have a Duty to Mitigate Damages after the Tenant Abandons? A Legal and Economic Analysis, 49 Wake Forest L. Rev. 187 (2014)

Robert W. Emerson, Franchise Contract Interpretation: A Two-Standard Approach, 2013 Mich. St. L. Rev. 641

Kish Vinayagamoorthy, Apologies in the Marketplace, 33 Pace L. Rev. 1081 (2013)

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

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

Tuesday, July 29, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 261 The Privatization of Compliance 
Scott Killingsworth 
Bryan Cave LLP 
2 189 Beauty and Ugliness in Offer and Acceptance 
Kenneth K. Ching 
Regent University - School of Law 
3 185 A Psychological Account of Consent to Fine Print 
Tess Wilkinson‐Ryan 
University of Pennsylvania Law School 
4 149 The Scope and Potential of FTC Data Protection 
Woodrow Hartzog and Daniel J. Solove 
Samford University - Cumberland School of Law and George Washington University Law School
5 130 Ending Class Actions as We Know Them: Rethinking the American Class Action 
Linda S. Mullenix 
University of Texas School of Law 
6 129 Bankers and Chancellors 
William W. Bratton and Michael L. Wachter 
Institute for Law and Economics, University of Pennsylvania Law School and University of Pennsylvania Law School - Institute for Law and Economics 
7 127 Facilitating Mergers and Acquisitions with Earnouts and Purchase Price Adjustments 
Albert H. Choi 
University of Virginia School of Law
8 119 Bylaws Mandating Arbitration of Stockholder Disputes? 
Claudia H Allen 
Katten Muchin Rosenman LLP 
9 95 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
10 93 Nationalize the Clearinghouses! 
Stephen J. Lubben 
Seton Hall University - School of Law 

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

RankDownloadsPaper Title
1 189 Beauty and Ugliness in Offer and Acceptance 
Kenneth K. Ching 
Regent University - School of Law 
2 185 A Psychological Account of Consent to Fine Print 
Tess Wilkinson‐Ryan 
University of Pennsylvania Law School 
3 95 What We Consent to When We Consent to Form Contracts: Market Price 
Kenneth K. Ching 
Regent University - School of Law 
4 68 'Selling Out' and the Impact of Music Piracy on Artist Entry 
Joshua S. Gans 
University of Toronto - Rotman School of Management 
5 62 Alternative Entities in Delaware -- Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law 
6 61 Of Priors and of Disconnects 
Margaret Jane Radin 
University of Michigan Law School 
7 60 The Construction of Commercial Contracts 
John Carter 
University of Sydney - Faculty of Law
8 56 Behavioral Trade-Offs 
Yuval Feldman and Orly Lobel 
Bar-Ilan University - Faculty of Law and University of San Diego School of Law 
9 54 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
10 53 A Eulogy for the EULA 
Miriam A. Cherry 
Saint Louis University - School of Law 

 

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