ContractsProf Blog

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

A Member of the Law Professor Blogs Network

Tuesday, March 25, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 320 Will Ticket Scalpers Meet the Same Fate as Spinal Tap Drummers? The Sale and Resale of Concert and Sports Tickets 
Gregory M. Stein 
University of Tennessee College of Law 
2 257 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman 
University of Southern California 
3 176 Soft Law in the Organization and General Conduct of Commercial Arbitration Proceedings 
Thomas Stipanowich 
Pepperdine University School of Law 
4 149 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels 
Duke University - School of Law
5 114 Sovereign Bonds and National Relativism: Can New York Law Contracts Safely Cross the Atlantic? 
Mathias Audit 
University of Paris Ouest Nanterre La Defense 
6 106 Intuitions About Contract Formation 
Tess Wilkinson‐Ryan and David A. Hoffman 
University of Pennsylvania Law School and Temple University - James E. Beasley School of Law 
7 94 Text and Context: Contract Interpretation as Contract Design 
Ronald J. GilsonCharles F. Sabel and Robert E. Scott 
Stanford Law School, Columbia University - Law School and Columbia University - Law School 
8 92 Foreclosure and the Failures of Formality, or Subprime Mortgage Conundrums and How to Fix Them 
Joseph William Singer 
Harvard Law School 
9 87 Boilerplate Shock 
Gregory H. Shill 
University of Denver Sturm College of Law 
10 86 The Political Economy of Regulating Contract 
Aditi Bagchi 
Fordham University School of Law

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

RankDownloadsPaper Title
1 257 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman 
University of Southern California 
2 149 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels 
Duke University - School of Law 
3 114 Sovereign Bonds and National Relativism: Can New York Law Contracts Safely Cross the Atlantic? 
Mathias Audit 
University of Paris Ouest Nanterre La Defense 
4 106 Intuitions About Contract Formation 
Tess Wilkinson‐Ryan and David A. Hoffman 
University of Pennsylvania Law School and Temple University - James E. Beasley School of Law 
5 104 Coasean Keep-Away: Voluntary Transaction Costs 
Jordan M. BarryJohn William Hatfield and Scott Duke Kominers 
University of San Diego School of Law, University of Texas at Austin and Harvard University 
6 94 Text and Context: Contract Interpretation as Contract Design 
Ronald J. GilsonCharles F. Sabel and Robert E. Scott 
Stanford Law School, Columbia University - Law School and Columbia University - Law School 
7 86 The Political Economy of Regulating Contract 
Aditi Bagchi 
Fordham University School of Law 
8 85 Cases and Controversies: Some Things to Do with Contracts Cases 
Charles L. Knapp 
University of California Hastings College of the Law 
9 76 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein 
University of Chicago - Law School 
10 70 The Utopian Promise of Private Law 
Hanoch Dagan 
Tel Aviv University - Buchmann Faculty of Law 

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

Wednesday, March 19, 2014

New in Print

Pile of BooksDavid Crump, The Economic Purpose of the Contract Clause, 66 SMU L. Rev. 687 (2013)

Rebecca Schoff Curtin, Hackers and Humanists: Transactions and the Evolution of Copyright. 54 IDEA 103 (2013).

David G. Epstein, and students Adam L. Tate & William Yaris, Fifty: Shades of Grey--Uncertainty about Extrinsic Evidence and Parol Evidence after All These UCC Years. 45 Ariz. St. L.J. 925 (2013) 

Frank L. Schiavo, An Alternative Approach to the Parol Evidence Rule: A Rejection of the Restatement (Second) of Contracts; Mitchill v. Lath revisited. 41 Cap. U. L. Rev. 759 (2013)

Emanwel J. Turnbull, Account Stated Resurrected: The Fiction of Implied Assent in Consumer Debt Collection, 38 Vt. L. Rev. 339 (2013) 

Manuel A. Utset, Transitive Counterparty Risk and Financial Contracts, 78 Brook. L. Rev. 1441 (2013)

Plus: this from the Chicago Kent Law Review

Kent Law ReviewVol. 89, Issue 1

Symposium on Fringe Economy Lending and Other Aberrant Contracts

SYMPOSIUM EDITOR
Sarah Howard Jenkins,
Charles C. Baum Distinguished Professor of Law

Articles

Table of Contents (Full Listing of PDF Articles)

Symposium Introduction
Sarah Howard Jenkins
89 Chi.-Kent L. Rev. 3 (2014)

I. Fringe Economy Lending—The Problem, Its Demographics, and Proposals for Change

Third Party Funding of Personal Injury Tort Claims: Keep the Baby and Change the Bathwater
Terrence Cain
89 Chi.-Kent L. Rev. 11 (2014)

An Economic Perspective on Subprime Lending
Michael H. Anderson
89 Chi.-Kent L. Rev. 53 (2014)

Females on the Fringe: Considering Gender in Payday Lending Policy
Amy J. Schmitz
89 Chi.-Kent L. Rev. 65 (2014)

II. Other Solutions for Fringe Economy Lending

Interest Rate Caps, State Legislation, and Public Opinion: Does the Law Reflect the Public’s Desires?
Timothy E. Goldsmith & Nathalie Martin
89 Chi.-Kent L. Rev. 115 (2014)

An Economic Investigation of Rent-to-Own Agreements
Michael H. Anderson
89 Chi.-Kent L. Rev. 141 (2014)

III. Securitization of Fringe Economy Receivables—A Lender’s Issue

Securitization of Aberrant Contract Receivables
Thomas E. Plank
89 Chi.-Kent L. Rev. 171 (2014)

IV. Other Aberrant Contract Concerns

Legal Uncertainty and Aberrant Contracts: The Choice of Law Clause
William J. Woodward Jr.
89 Chi.-Kent L. Rev. 197 (2014)

Some Economic Insights Into Application of Payments Doctrine: Walker Thomas Revisited
James W. Bowers
89 Chi.-Kent L. Rev. 229 (2014)

V. Atypical Consumer Agreements as Aberrant Contracts

Situational Duress and the Aberrance of Electronic Contracts
Nancy S. Kim
89 Chi.-Kent L. Rev. 265 (2014)

Tax Ferrets, Tax Consultants, Bounty Hunters, and Hired Guns: The Property Tax Netherworld Fueled by Contingency Fees and Champertous Agreements
J. Lyn Entrikin
89 Chi.-Kent L. Rev. 289 (2014)

Tenure, the Aberrant Consumer Contract
James J. White
89 Chi.-Kent L. Rev. 353 (2014)

Are You Free to Contract Away Your Right To Bring a Negligence Claim?
Scott J. Burnham
89 Chi.-Kent L. Rev. 379 (2014)

 

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

Tuesday, March 18, 2014

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For
Contracts & Commercial Law eJournal

RECENT TOP PAPERS
 for all papers first announced in the last 60 days 

16 Jan 2014 through 17 Mar 2014

RankDownloadsPaper Title
1 316 Will Ticket Scalpers Meet the Same Fate as Spinal Tap Drummers? The Sale and Resale of Concert and Sports Tickets 
Gregory M. Stein 
University of Tennessee College of Law 
2 250 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman 
University of Southern California 
3 146 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels 
Duke University - School of Law 
4 110 Sovereign Bonds and National Relativism: Can New York Law Contracts Safely Cross the Atlantic? 
Mathias Audit 
University of Paris Ouest Nanterre La Defense 
5 92 Foreclosure and the Failures of Formality, or Subprime Mortgage Conundrums and How to Fix Them 
Joseph William Singer 
Harvard Law School 
6 81 The Political Economy of Regulating Contract 
Aditi Bagchi 
Fordham University School of Law
7 78 Cases and Controversies: Some Things to Do with Contracts Cases 
Charles L. Knapp 
University of California Hastings College of the Law 
8 76 Boilerplate Shock 
Gregory H. Shill 
University of Denver Sturm College of Law 
9 74 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein 
University of Chicago - Law School 
10 84 Zombie Mortgages, Real Estate, and the Fallout for the Survivors 
David P. Weber 
Creighton University - School of Law 

SSRN Top Downloads For
LSN: Contracts (Topic)

RECENT TOP PAPERS for all papers first announced in the last 60 days  
16 Jan 2014 through 17 Mar 2014

RankDownloadsPaper Title
1 250 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman 
University of Southern California 
2 146 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels 
Duke University - School of Law 
3 110 Sovereign Bonds and National Relativism: Can New York Law Contracts Safely Cross the Atlantic? 
Mathias Audit 
University of Paris Ouest Nanterre La Defense 
4 87 Coasean Keep-Away: Voluntary Transaction Costs 
Jordan M. BarryJohn William Hatfield and Scott Duke Kominers 
University of San Diego School of Law, University of Texas at Austin and Harvard University 
5 81 The Political Economy of Regulating Contract 
Aditi Bagchi 
Fordham University School of Law 
6 78 Cases and Controversies: Some Things to Do with Contracts Cases 
Charles L. Knapp 
University of California Hastings College of the Law 
7 74 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein 
University of Chicago - Law School 
8 68 The Utopian Promise of Private Law 
Hanoch Dagan 
Tel Aviv University - Buchmann Faculty of Law 
9 65 Intuitions About Contract Formation 
Tess Wilkinson‐Ryan and David A. Hoffman 
University of Pennsylvania Law School and Temple University - James E. Beasley School of Law 
10 64 Text and Context: Contract Interpretation as Contract Design 
Ronald J. GilsonCharles F. Sabel and Robert E. Scott 
Stanford Law School, Columbia University - Law School and Columbia University - Law School

 

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

Wednesday, March 12, 2014

KCON9 Is Now Available on YouTube

For those of you who made the wide choice to avoid Miami in February (highs in the 80s, lows in the 70s -- it was hell!), you can still enjoy the experience of hearing the papers presented at last month's conference.  The conference organizer, Jennifer Martin, is in the process of making all the sesions  availalbe here.

Here's a taste, Robin West's luncheon address:

  

Ahh, the memories.

March 12, 2014 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

New in Print from Carolina Academic Press

Tuesday, March 11, 2014

Weekly Top Tens from the Social Science Research Network

SSRN Top Downloads For Contracts & Commercial Law eJournal

SSRNRECENT TOP PAPERS for all papers first announced in the last 60 days 
9 Jan 2014 through 10 Mar 2014

RankDownloadsPaper Title
1 309 Will Ticket Scalpers Meet the Same Fate as Spinal Tap Drummers? The Sale and Resale of Concert and Sports Tickets 
Gregory M. Stein 
University of Tennessee College of Law 
2 241 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman 
University of Southern California 
3 145 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels 
Duke University - School of Law 
4 124 Limits of Procedural Choice of Law 
S.I. Strong 
University of Missouri School of Law 
5 108 Sovereign Bonds and National Relativism: Can New York Law Contracts Safely Cross the Atlantic? 
Mathias Audit 
University of Paris Ouest Nanterre La Defense 
6 88 Foreclosure and the Failures of Formality, or Subprime Mortgage Conundrums and How to Fix Them 
Joseph William Singer 
Harvard Law School 
7 80 Zombie Mortgages, Real Estate, and the Fallout for the Survivors 
David P. Weber 
Creighton University - School of Law 
8 75 Cases and Controversies: Some Things to Do with Contracts Cases 
Charles L. Knapp 
University of California Hastings College of the Law 
9 75 The Political Economy of Regulating Contract 
Aditi Bagchi 
Fordham University School of Law 
10 73 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein 
University of Chicago - Law School 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS
 for all papers first announced in the last 60 days  

10 Jan 2014 through 11 Mar 2014

RankDownloadsPaper Title
1 242 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman 
University of Southern California 
2 146 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels 
Duke University - School of Law 
3 109 Sovereign Bonds and National Relativism: Can New York Law Contracts Safely Cross the Atlantic? 
Mathias Audit 
University of Paris Ouest Nanterre La Defense 
4 76 The Political Economy of Regulating Contract 
Aditi Bagchi 
Fordham University School of Law 
5 75 Cases and Controversies: Some Things to Do with Contracts Cases 
Charles L. Knapp 
University of California Hastings College of the Law 
6 73 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein 
University of Chicago - Law School 
7 67 The Utopian Promise of Private Law 
Hanoch Dagan 
Tel Aviv University - Buchmann Faculty of Law 
8 59 Intuitions About Contract Formation 
Tess Wilkinson‐Ryan and David A. Hoffman 
University of Pennsylvania Law School and Temple University - James E. Beasley School of Law 
9 54 Text and Context: Contract Interpretation as Contract Design 
Ronald J. GilsonCharles F. Sabel and Robert E. Scott 
Stanford Law School, Columbia University - Law School and Columbia University - Law School 
10 44 Are You Free to Contract Away Your Right to Bring a Negligence Claim? 
Scott J. Burnham 
Gonzaga University School of Law 

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

Wednesday, March 5, 2014

Nutrition Labels and "Natural" Foods

As a follow-up on Nancy's post from last week on Nutrition Labels and Wrap Contracts, I would like to call attention to a new paper posted on SSRN by my colleague Nicole Negowetti (pictured).  The paper is called Defining "Natural" Foods: The Search for a "Natural" Law, and here is the abstract:

NegowettiBecause the FDA has refused to codify a uniform or enforceable definition of “natural” food, each food manufacturer determines its own standard for the term. Unlike the certified organic label, no government agency, certification group, or other independent entity ensures that “natural” claims have merit. Generally, the term “natural” means that a food has been minimally processed, contains no artificial ingredients or preservatives, is healthy and wholesome. However, food producers are not prohibited by law from using pesticides, genetically modified crops, fumigants, solvents, and toxic processing aids. Consumers and food producers are both disadvantaged by the inconsistent meanings and uses of the term. Recent surveys demonstrate that while consumers demand “natural” products, they are confused regarding the term’s meaning. A proliferation of consumer protection lawsuits against food producers has flooded the courts over the past two years. Food producers truly committed to producing “natural” products are competing with manufacturers who loosely interpret the term, produce and sell cheaper, inferior, and not-so-“natural” products. In light of the FDA’s reluctance to codify a “natural” definition, this Article will evaluate the recent decisions in the “natural” lawsuits and the attempts by courts, legislatures, the food industry, and retailers to establish a “natural” standard. The Article concludes that the search for an enforceable and comprehensive “natural” standard is futile. It predicts that the term “natural” has proven to be so confusing to consumers that the significance of the term has likely been diluted. Furthermore, because the claim has been so legally troublesome for food manufacturers, use of “natural” on food labels will surely be on the decline.

 

March 5, 2014 in About this Blog, Food and Drink, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

New in Print from Carolina Academic Press

Nygren & KatzCarolyn J. Nygren & Howard E. Katz, Starting Off Right in Contracts (2d Ed. 2014)

To do their best on the final exam, students need a strategy to approach the course material efficiently and to organize it in a logical manner. This book gives students that and more. In chapters on contract formation, defenses, breach and remedies, and multi-issue fact patterns, the authors show students how to answer sample questions, use a step-by-step method that will improve their ability to analyze contracts problems, and effectively demonstrate their knowledge to the professor.

Charles Calleros & Stephen Gerst, Contracts: An Electronic Text: Cases, Text & Problems (2013 ed.)

Contracts: Cases, Text, and Problems is an electronic casebook available in PDF format. The 2013 edition is updated to July 2013.

Calleros & GerstCreated initially for a four-unit Contracts course at ASU, Professor Calleros designed Contracts: Cases, Text, and Problems as an "open-source" textbook. Other professors of contract law are invited to become “co-authors” by tailoring the book to their own courses. As an open-source book, professors can add, delete, or replace material as dictated by their own teaching styles and points of emphasis. Contracts offers professors a unique and innovative way to teach students in an up-to-date way, with easily customized material, and without being forced to buy multiple books and supplements.

Most topics in the book present material in the fashion in which new associates typically address an assignment in a law office: they (1) consult a secondary source or an expert within the firm for general background information and to identify issues and authority {the book provides treatise-style background information on most topics before diving into the main cases}, (2) associates then study specific decisions on point in the relevant jurisdiction {the book presents plenty of case law, as is customary with any "casebook"}, and (3) they apply their newly synthesized knowledge of the law to the facts of a new dispute or other problem presented to them {the book provides many more exercises and practice exams than the standard casebook, including a fair number of drafting exercises}. The book thus includes the written equivalent of a combination of introductory lecture, case method, and problem method.

To combat the high cost of casebooks, the 509-page book is available at a very modest price for permanent download of any of the electronic formats. Each purchaser is permitted to download the purchased file on any computer or electronic device used exclusively by that purchaser. Purchasers agree not to transfer files to others or to allow others to use their files.

The book analyzes selected provisions of the Restatement (Second) of Contracts but does not reproduce it in its entirety, to avoid advancing the common student practice of treating the Restatement like a collection of statutes. It reproduces most of articles 1 and 2 of the UCC as enacted in Arizona, to better illustrate the nature of the UCC as a uniform code that is adopted and codified by individual state legislatures.

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

Tuesday, March 4, 2014

Weekly Top Tens from the Social Science Research Network

 

With the aid of the ContractsProf Blog Bump, Gregory Stein premiers at #1!

SSRNRECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 

January 3, 2014 to March 4, 2014

RankDownloadsPaper Title
1 303 Will Ticket Scalpers Meet the Same Fate as Spinal Tap Drummers? The Sale and Resale of Concert and Sports Tickets 
Gregory M. Stein
University of Tennessee, Knoxville - College of Law
2 296 An Economic Theory of Fiduciary Law 
Robert H. Sitkoff
Harvard Law School
3 235 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman
University of Southern California
4 140 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels
Duke University - School of Law
5 134 Executive Benefits Insurance Agency V. Arkison: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? 
Elizabeth GibsonJonathan M. Landers
University of North Carolina (UNC) at Chapel Hill - School of Law, Scarola Malone & Zubatov LLP
6 122 Limits of Procedural Choice of Law 
S.I. Strong
University of Missouri School of Law
7 98 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law
8 78 Zombie Mortgages, Real Estate, and the Fallout for the Survivors 
David P. Weber
Creighton University - School of Law
9 74 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub
Vermont Law School, 
Date posted to database: December 24, 2013 
Last Revised: December 24, 2013
10 72 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein
University of Chicago - Law School

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  

January 3, 2014 to March 4, 2014

RankDownloadsPaper Title
1 235 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman
University of Southern California
2 140 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels
Duke University - School of Law
3 98 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law
4 74 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub
Vermont Law School
5 72 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein
University of Chicago - Law School
6 71 Cases and Controversies: Some Things to Do with Contracts Cases 
Charles L. Knapp
University of California - UC Hastings College of the Law
7 57 Mandatory Rules and Default Rules in Insurance Contracts 
Kyle D. LogueTom Baker
University of Pennsylvania Law School, University of Michigan Law School
8 56 The Political Economy of Regulating Contract 
Aditi Bagchi
Fordham University - School of Law
9 54 Crowding In: How Formal Sanctions Can Facilitate Informal Sanctions 
Scott BakerAlbert H. Choi
Washington University in Saint Louis - School of Law, University of Virginia School of Law
10 54 The Utopian Promise of Private Law 
Hanoch Dagan
Tel Aviv University - Buchmann Faculty of Law

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

Thursday, February 27, 2014

Margaret Jane Radin responds

Readers of this blog will remember that last year we hosted a lively symposium on Margaret Jane Radin's book, Boilerplate:  The Fine Print, Vanishing Rights, and the Rule of Law.

Others entered into the discussion in different avenues, including Omri Ben-Shahar with his essay reviewing Radin's book.  Margaret Jane Radin responds to Ben-Shahar's essay here.

The debate about mass consumer form contracts is far from over....

 

February 27, 2014 in Books, Miscellaneous, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 26, 2014

New in Print

Tuesday, February 25, 2014

New Spinal Tap Scholarship

SteinThe University of Tennessee ContractsProf Gregory M. Stein has just posted Will Ticket Scalpers Meet the Same Fate as Spinal Tap Drummers? The Sale and Resale of Concert and Sports Tickets on SSRN.  Here is the abstract:  

Some people purchase concert or sports tickets for their own entertainment and then are unable to use their tickets. They may have a scheduling conflict, or their favorite team may be underperforming. Other people buy tickets with the intention of giving them as gifts. Still others purchase with the goal of reselling the tickets at a profit. This Article examines the transferability of tickets to performances and sporting events.

What, exactly, is a “ticket”? What property and contract rights does the initial ticket holder acquire? Does the holder have the legal power to transfer these rights? To what extent can the initial ticket seller limit that transferability? Does it matter whether the initial purchaser planned to sell at a profit all along? If there is a profit to be made, who is entitled to keep the resale premium? More generally, what are the economics of the market in ticket sales and resales? 

Part I of this Article asks what legal rights a ticket creates under contract and property law and whether the party who acquires a ticket is legally empowered to reconvey it. Part II looks more globally at the economics of the market in sales and resales of tickets. Part III examines and compares the roles of the private market and the government in transactions involving the sale and resale of event tickets. Finally, Part IV looks to the future, suggesting some directions the ticket resale market may and should take as technology and the law continue to evolve and as the political process functions.
 

 

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

Weekly Top Tens from the Social Science Research Network

SSRNRECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 

December 26, 2013 to February 24, 2014

RankDownloadsPaper Title
1 227 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman
University of Southern California
2 184 An Economic Theory of Fiduciary Law 
Robert H. Sitkoff
Harvard Law School
3 133 Executive Benefits Insurance Agency V. Arkison: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? 
Elizabeth GibsonJonathan M. Landers
University of North Carolina (UNC) at Chapel Hill - School of Law, Scarola Malone & Zubatov LLP
4 131 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels
Duke University - School of Law
5 118 Limits of Procedural Choice of Law 
S.I. Strong
University of Missouri School of Law
6 95 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law
7 76 Zombie Mortgages, Real Estate, and the Fallout for the Survivors 
David P. Weber
Creighton University - School of Law
8 71 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein
University of Chicago - Law School
9 70 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub
Vermont Law School
10 56 Mandatory Rules and Default Rules in Insurance Contracts 
Kyle D. LogueTom Baker
University of Pennsylvania Law School, University of Michigan Law School

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  

December 26, 2013 to February 24, 2014

RankDownloadsPaper Title
1 227 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman
University of Southern California
2 131 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels
Duke University - School of Law
3 95 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law
4 71 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein
University of Chicago - Law School
5 70 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub
Vermont Law School
6 56 Mandatory Rules and Default Rules in Insurance Contracts 
Kyle D. LogueTom Baker
University of Pennsylvania Law School, University of Michigan Law School
7 52 Crowding In: How Formal Sanctions Can Facilitate Informal Sanctions 
Scott BakerAlbert H. Choi
Washington University in Saint Louis - School of Law, University of Virginia School of Law
8 43 Are You Free to Contract Away Your Right to Bring a Negligence Claim? 
Scott J. Burnham
Gonzaga University School of Law
9 41 Cases and Controversies: Some Things to Do with Contracts Cases 
Charles L. Knapp
University of California - UC Hastings College of the Law
10 31 A Proposal in Equity: The Marriage of Undue Influence with Unconscionable Dealing? 
Hamilton Zhao
University of New South Wales (UNSW) - UNSW Law Student

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

Monday, February 24, 2014

KCON9: Saturday Afternoon Session

We had an all-star afternoon panel on Contract Law and Social Justice.  The panel was moderated by Robin West, who gave a killer Keynote Speech over lunch.  That speech will be forthcoming in the St. Thomas Law Review, as will Amy Schmitz paper, discussed below, so look out for that.

HartDanielle Hart started off the panel with a paper on Contracts and Inequality.  Her talk took issue with the claim that the state is absent in contract law.  In fact, she regards contract law as public law because the state is neither netural nor minimal, and contract law in action helps to create and perpectuate inequality.  She illustrated her point with a case of a fairly typical subprime mortgage loan to an African-American women in a predominantly minority neighborhood.  The state helped manufacture the desire for homeowneship; the state created the residential housing market through regulation and deregulation of the housing market; and the state decides on enforcement and enforces judgment.  

The result is that law promotes inequality.  Parties to contracts are not equal, but contract law ignores structural inequality in bargaining power and applies rules "neutrally" without adjusting for structural inequality.  Thus the stronger party gets the better end of the bargain.  And getting into contracts is much easier than getting out of them, especially with the new hurdles to litigation including the Twombly/Iqbal line of cases, as well as standard contract terms such as binding arbitration clasues and class action waivers.  The result is an endless cycle in which those with more power continually can use contracts to extract favorable terms in each successive contractual relationship and those without bargaining power are made worse off through unfavorable bargains.  

Returning to her illustration involving the African-American borrower, Professor Hart noted that the banks that made subprime loans before the mortgage meltdown are mostly doing fine, but there is now a remarkable racial disparity in wealth in American households (over $113,000 for White households; about $5-6000 for African American and Hispanic households).  The numbers are very low for African-American and Hispanic households because so much of their wealth was tied up in their homes, which they lost in the subprime crisis.  This illustrates Professor Hart's cycle of contracts law serving the interests the better off at the expense of the poor.

KerenHila Keren next presented her paper on Contract Law and the Responsive State, in which she addressed what can be done in light of the very depressing state of things as described in Professor Hart's paper.  Professor Keren regards contracts as a mode of social regulation and offered ways in which we can use contracts law to further socially desireable ends.  She does so in the context of two patterns of market exploitation.  The first is "predatory prenups;" that is, prenups in which a woman is coerced into a marriage relationship because of particular vulnerabilities.  Second, in predatory loan agreements, people enter into unfavorable loans because they were vulnreable, low-income, unsophisticated, first-time buyers. 

Inequalities are increased if judges refuse to intervene to protect exploited parties.  Professor Heren agrees with Professor Hart that judges are increasingly refusing to intervene.  Her proposal is to replace our neo-liberal theory with a revamped vulnerability theory to underpin contracts doctrine.  Neo-liberal theory associates equality with non-discrimination; vulnerability theory focuses on the right of individuals to participate in society and to have their human dignity recognized and protected.  Neo-liberal theory regards the subject as the private, autonomous individual; under vulnerability theory we are all vulnerable and interconnected.  Finally, neo-liberal theory regards the state as a threat to individual freedom, while vulnerability theory desires a responsive state that will address human vulnerabilities.  In the contractual context, the responsive state simply refuses to enforce exploitative contracts.

Vulnerability theory eanbles us to appreciate that vulnerability is a normal part of life that arises as a product of state policies and politics.  Permitting exploitation of such vulnerabilities harms human dignities, and the responsive state ought not to permit such exploitation.   Professor Keren supports the recognition of a right not to be exploited through contractual means, and she notes that European law recognizes a norm against contractual exploitation.  In the U.S., where that norm is not legislatively enacted (and the prospects are dim), we might be able to make due with a beefed-up version of the doctrine of unconscionability.  

SchmitzAmy Schmitz gave a talk on Acccess to Consumer Remedies in the Squeaky Wheel System.  Her talk built on this paper from the Pepperdine Law Review.  By "squeaky wheel," Professor Schmitz refers to the fact that only 1/3 of consumers do anything when dissatisfied with a product and few go beyond just calling and complaining.  Very wealthy consumers are the most likely to complain about non-conforming consumer goods.  Those "squeaky wheels" often get the remedy they wanted and they end up being loyal customers because they are satisfied with customer service.  

The same goes with sales.  White men are more likely to bargain than women or minority groups.  An Ian Ayres study indicated that women paid a 40% mark-up over men in car sales and African Americans and Hispanics paid a 100% mark up over white male consumers.  Most people do not bargain or seek to change terms when they enter into contracts, and most people do not read or pay attention to most contractual terms.

So, how do we bring back remedies?  How do we compel sellers to stand by their goods? Professor Schmitz suggests that we need a new "handshake" to ignite justice in business-to-consumer contracting.  She thinks online dispute resolution (ODR) might be a way to do so in a low-cost, flexible, user-friendly and non-intimidating manner.

KnappCharles Knapp delivered a paper called Unconscionability: Once More Unto the Breach.  He has been tracing the progress of unconscionability doctrine in the U.S. in a series of law review articles, including this one and this one.  His main argument at this point is that courts have developed a comprehensive body of law on unconscionability.  The doctrine comes up a lot in all sorts of contexts, and the courts know how to deal with unconscionability.  The doctrine is more pervasive than one might think.  Unconscionable behavior also comes up frequently in the interpretation of state and federal statutes.  Courts have also recognized unconscionability as a sword as well as a shield, permitting recovery of large claims based on court findings that certain agreements are unconscionable.  Judges with conscience should not enforce unconscionable agreements because lots of people and corporations do not have consciences.

LinzerPeter Linzer commented on the papers.  He noted Chuck Knapp's important contribution in helping us to recognize that unsconscionability is not a doctrine that we embraced in the 60s and 70s and then it ran its course.  It is alive and well and continues to permit court to invalidate contracts when "something smells bad."  He noted that consumer contracts are far more complex today than they were in the age of face-to-face transactions, because we work through intermediaries (Amazon, Google, credit card companies) each of which has its own terms that we agree to by clicking or using the product.  

Professor Linzer expressed some skepticism that merchants will embrace Professor Schmitz's online dispute resolution mechanisms.  Doctrinal solutions to the problems of form contracts also fail because consumers don't want to litigate, and if they do, the odds are stacked against them.  He therefore prefers the European route of banning certain contractual provisions through blacklists and greylists.  So, we could simply ban pre-dispute binding arbitration in consumer contracts or choice of forum clauses that force the world to come to (e.g.) Microsoft when Microsoft already operates globally.   The new Consumer Financial Protection Bureau may be the entity that can actually do these things.  

Finally, Professor Linzer noted that consumer spending accounted for 71% of the GDP last year.  That makes contracts law an issue of public law.

February 24, 2014 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, February 22, 2014

KCON9: Second Saturday Morning Panel: Contracts & Employment

MillerOur own Meredith Miller started the panel with a paper on Getting Paid: Contracting in the Naked Economy.  Professor Miller's paper is in part a reflection on her experience with freelancers who have been doing work in the new economy and have been experiencing a hard time getting paid.  The amount due often does not rise to a level that would justify litigation.  Professor Miller began by discussing "the rise in independent work," which is a lose category encompassing the "jobless but not workless." These people are often highly skilled, and big companies prefer to have consultants rather than employees because of liabilities and costs attendant to employees that are not associated with contractual relations with constultants.  

On the other side, there is a literature promoting the benefits to workers in being independent workers.  There are advantages to not having a boss, to not having to commute, not having face-time at work, etc.  Why deal with people when you can stay home in the company of your cats?  But there are significant problems associated with being an independent worker, including significantly, not getting paid.  Professor Miller presented staggering statistics indicating that a very high percentage of independent workers have a hard time getting paid, and a very small percentage of them hire an attorney or actually proceed to court.  She illustrated the problem with this video.

 

Professor Miller suggested simple solutions for independent workers such as clear definitions and expectations in contracts, payments schedules, process payments or payments in advance, terminations fees and attorneys fees in cases of non-payment.  She recommended the Shake App as a means for quickly throwing together useable contracts.  She also discussed legislative reforms, such as New York's proposed Freelancer Payment Protection Act, and potential private solutions.

RachelarnowrichmanRachel Arnow-Richman next gave her paper on Modifying Employment ContractsProfessor Arnow-Richman began by discussing the abysmal case law on employment law, and by suggesting that modification is just another area in which the law is bad for workers and largely incoherent.  Employment is generally at will these days, and so the notion of modification is difficult because it is not entirely clear that there is a contract to modify.  The agreements are relational and the obligations are indefinite.  Still, where the employer regards the modification as legally binding (e.g., the creation of non-competes, arbitration provisions, or retraction or modification of a previously promulgated employer policy), the doctrine of modification is applicable. 

Professor Arnow-Richman noted two general approaches that have been applied to modification.  The unilateral approach focuses on the employee's at-will status with the employee's continued employment constituting the consideration for the modifcation.  For example, a Colorado case recently upheld the imposition of a non-compete clause on an at-will employmee because the employer can terminate the contract at any point.  If the employer can terminate, it can also introduce a new contract with new terms that the employee accepts by continuing employment.  This approach is troubling, because the worker obviously derives no benefit, and the notion that the benefit was continued employment is a sort of fiction, since that employment is still terminable at will.  Some courts enforce such unilateral modifications only in the case of some additional consideration, such as a raise.  In the at-will context, this is not all that helpful, since the additional consideration will not be relevant to the employee if she is sacked the following day.

 The second approach, which Professor Arnow-Richman prefers, is to require advance notice as the consideration.  This approach relates to a paper she gave at the AALS Section on Contracts meeting in 2013, which is now forthcoming in the Florida Law Review.  There have been cases in which courts have upheld modifications based on reasonable notice.  Unfortunately, the courts do not seem to know why they are doing so.  Still, Professor Arnow-Richman thinks that there is way to make sense of this approach, and it turns on treating even at-will employment as a bilateral contract.  If we so understand at-will employment, and we should, since employment begins with a promissory acceptance and the parties generally anticipate a long-term relationship, then reasonable notice is a standard term for modification.

February 22, 2014 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

KCON9: First Saturday Morning Session

I had the pleasure of chairing a panel populated by four young scholars all writing on Behavior, Bargaining, Incentives and Contract.

ChingKenneth Ching went first with his paper on Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts.  His paper focused on Cardozo's celebrated opinion in Jacob & Youngs v. Kent in which Cardozo held that, although Jacob & Youngs had not installed Reading pipes as called for in the contract, it had nonetheless substantially performed the contract by installing pipes of similar quality.  Professor Ching maintains that Cardozo was wrong on both the facts and the law in the case.  The contract in the case made clear that complete performance was a condition of payment, and the law was clear (then and now) that there can be no substantial performance of a condition.  Moreover, even if it were possible to substantially perform conditions, Jacob & Youngs did not do so, as Cardozo would have noted had he actually applied the test to the facts of the case.

The case is but a gateway to Professor Ching's larger point about collectivist and individualist approaches to contracts law.  Judge Cardozo's opinion seems to take a collectivist (or parternalist) approach to the doctrinal problems that the case raises.  That is, Cardozo thinks we are all better off if people aren't held to unreasonable terms that would require the destruction of a home to replace pipes with virtually identical pipes.  Judge McLaughlin's dissent seems to be more individualist, focusing on Kent's perspective and his right to insist on the contracts rights for which he had bargained.  Professor Ching's approach rejects both collectivist and individualist approaches.  He favors a Thomist approach that  tries to resolve conflict in line with reason and with the goal of promoting human flourishing.  Cardozo's opinion might be attractive from a Thomist perspective. Responding to a question, Professor Ching acknowledged that James Gordely, whose approach informs Professor Ching's, would find for Jacob & Youngs based on unconscionability.  Still, Professor Ching maintains, Judge Cardozo reached the wrong result because of his mischaracterization of the facts and the law.

VersteaNext up was Andrew Verstein who gave a (his first ever) Prezi presentation (which was super cool) on Ex Tempore Contracting.  His paper takes on a tradition that distinguishes between ex ante and ex post approaches to contracts interpretation.  In the former, the parties specify how the contract is to be interpreted ("use Reading pipes"), and in the latter, the parties delegate  interpretation to an adjudicator ("use merchantable pipes").  In the ex ante approach, the parties determine the meaning of the terms; in the ex post approach, some neutral third party (court or arbitrator) determines the meaning.  Ideally, parties decide between precise (ex ante) terms and vague (ex post) terms based on the costs and benefits of choosing specific terms in particular contexts.  Parties should draft to minimize the sum of ex ante  and ex post costs.   

But Professor Verstein contends that there is middle ground between before performance and after (alleged) breach.  Some contracts disputes can be resolved during performance.  The parties can specify that a particular third party will resolve disputes that arise during performance (ex tempore), and they can be resolved whether the terms are superficially vague or superficially precise.  The aim remains to reduce the costs of dispute resolution, and there are many situations in which it is most efficient for the parties to agree to ex tempore dispute resolution, especially in construction agreements.  Professor Verstein illustrates this point with the case of the Chinese Ertan Dam, a huge construction project.  All disputes relating to that dam were resolved within six months of the dam's completion.  This fact is attributable to the existence of netural expert panels (dipute boards) that addressed disputes as they arose and were able to sort out most disputes before the parties became too aggrieved.  Reviewing Florida dispute boards, Professor Verstein finds that 98% of disputes are resolved without further conflict and the cost is 10-50% of arbitration.  This is not really dispute resolution, Professor Verstein contends; it is ex tempore contracting.  And, it turns out, this happens a lot more often than we realize.

Professor Verstein's paper is forthcoming in the William & Mary Law Review and can be downloaded here.

EpsteinWendy Netter Epstein next presented her paper on Public Private Contracting and the Reciprocity Norm.  Professor Epstein's thesis is that in some public private contracts it is very difficult for the government to reduce agency costs by writing more detailed contracts.  Picking up on Professor Verstein's theme, Professor Epstein contends that in certain circumstances it is better to have less detailed contracts with mechanisms for ongoing dispute resolution during contract performance.  This approach is most appropriate where there is a shallow market (i.e., very few private contractors bid), a narrow application (e.g., private prisons) or a disempowered group of third-party beneficiaries (e.g., welfare recipients).  

While a lot of scholarship has focused on the need for more detailed contracts in this context so as to provide for strong oversight of private actors working in the public interest.  Professor Epstein suggests that the result has been to increase the size and complexity of government contracts.  However, this solution does not work well because, where there is no well-functioning market, the government cannot effectively moitor and discipline private contractors.  Moreover, one point of outsourcing is to promote innovation and creativity, and excessive government monitoring of private contractors undermines that aim.  Professor Epstein drawns on research in the behavioral sciences and contends that reciprocity norm, which rewards people for kind actions, constrains actors more powerfully than models based on rational actors would predict.  She thus thinks that strict enforcement mechanisms and sanctions regimes often undermine cooperation in the public private contracting context.  Governments might be better served by communicating their positive intentions towards private contractors by entering into looser contracts that would permit the parties to chart the course of the collaboration on an on-going basis as the project proceeds.

Zacks-webFinally, Eric Zacks presented a paper on The Moral Hazard of Contract Drafting.  One party to a contract can act opportunistically as an economic agent of the other party.   The agency relationship arises when one party asks the other party to draft the agreement.  That is a delegation of authority that would then be ratified upon acceptance.  The danger of agency costs arises in that there may be a disparity between the contract as conceived and the contact as written. 

There may be economic value in having one party be the contract preparer.  For example, that party might have greater experience and expertise in contract preparation.  But the drafter may write the contract is such a way as to enable it to take advantage of the other party after performance has begun.  Then the question arises whether the principal (the non-drafting party) is able to monitor the agent (the drafting party).  For example, in consumer contracts, it seems unlikely that non-drafting consumers would be capable of both foreseeing and monitoring the agency costs involved in allowing sellers to draft consumer contracts.  One solution is for the principal to hire an agent (e.g., a lawyer) to monitor the contract.  Or there might be outside monitoring services to prevent opportunistic behavior, such as regulatory agencies or courts, or statutory requirements that certain transactions be written in plain language.  

Courts are less likely to intervene when they think the principal (non-drafting party) is sophisticated and has the means to protect itself against opportunistic behavior by the agent (drafting party).  In the contractual context, we have more limited ways to discourage opportunistic behavior through incentives for good behavior.  

Those not satisfied with this summary of Professor Zacks' argument can download the entire thing here.

February 22, 2014 in Conferences, Government Contracting, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 21, 2014

KCON 9: Friday Afternoon Session: Contract Interpretation

BayernShawn Bayern presented his work in progress on Meta-contextualist Contract Interpretation.  Although Professor Bayern began by suggesting that, non-withstanding his previous presentations at this conference in which he denounced formalism and defended contextualist approaches, he really thinks that if asked in any given context, which interpretive regime should apply to a particular transaction, his answer is, "it depends."  In short, the answer to the question of textualism vs. contextualism is contextual.  Thus, Professor Bayern is a meta-contextualist.  Parties should be able to determine what interpretive regime will apply to them.  It might well be textualist, but (ah ha!), the text of the parties' agreement should not be dispositive in determining that issue.  Rather, courts should look to the context informing that agreement.   Happily, this seems to be what courts do.  If the parties make clear that they intend to be bound by their text, then courts should take a textual approach.  Otherwise, they should not just rely on the text, regardless how clear it is, but should review the text in the context of the negotiations.  After all, a contract negotiated at gunpoint should not be binding regardless of its clarity.

Gerhart_peterPeter Gerhart then presented his paper co-authored with Juliet Kostritsky, Efficient Contextualism.  The main point of the paper, like Professor Bayern's, is that the distinction between contextual and textual approaches is not particularly useful.  Our real goal is to get at the parties' obligations, and whether we do that with text or context does not really matter.  Both approaches, if pursued one-sidedly, have significant drawbacks.  Textualism can lead to literalism and absurd results.  Contextualism, if unconstrained, can be terribly inefficient and capricious.

Instead Professor Gerhart proposes "efficient contextualism" through determinate reasoning, which requires each party to identify the facts that must be true in order for their interpretation to succeed.  While Professor Bayern thinks that the methodology appropriate to each contract must be determined with specific reference to the context in which that contract was negotiated, Professor Gerhard suggests that there can be a uniform approach to interpretation that would in fact be what unites the law of contracts.  He used the facts of Jacob & Youngs v. Kent to illustrate.  What does "use Reading Pipe" mean in the context of that agreement and what result is surplus maximizing?  The answer depends on what the parties knew or reasonably should have known and intended at the time of the agreement.  Determinate reasoning should promote efficiency by narrowing the issues in dispute which can then be settled either through motion practice or by a quick trial to resolve the few factual disputes on which the parties' differing contractual interpretations hinge.

Amir14Finally, Amir Pichhadze (pictured left in an image from the Yazigallery), an SJD candidate at the University of Michigan whose recent successes have garnered a lot of attention, presented his paper on Transfer Pricing & Contractual Interpretation.  The subject matter of his paper is complex, so I will post an abstract that he has shared with me:

As the OECD’s Transfer Pricing Guidelines (“TPG”) and US Regulations recognize, the contractual terms of a controlled transaction are a ‘relevant circumstance’ (i.e. ‘comparability factor’) that ought to be taken into account when conducting the transfer pricing comparability analysis.

The purpose of this paper is to identify that domestic contractual interpretation law has a critical role in this comparability analysis. Firstly, it makes it possible to ascertain the substance of the terms, as they were intended by the parties. This is essential in order to properly recognized and give effect to the transaction as it was structured by the parties. Second, the parties’ contractual intentions make it possible to determine whether the controlled transaction’s surrounding circumstances are linked to the transfer price, which would make them a ‘relevant circumstance’ in the comparability analysis.

In Canada v. GlaxoSmithKline Inc. (“Glaxo case”), for example, if Glaxo Canada intended in the controlled transaction [which was a Supply Agreement with Adechsa, an associated foreign company] to bundle payments for goods received under the expressed terms of the controlled transaction as well as for services received from its parent company [Glaxo Group, which is located in the UK] under a separate Licence Agreement, then that Licence Agreement would have to be taken into account as a ‘relevant circumstance’ because it is linked to (i.e. it has an impact on) the transfer price.

 Part 1 of this paper identifies that in order to properly ascertain Glaxo Canada’s contractual intentions, in the Supply Agreement, the courts had to interpret that agreement by applying the relevant principles from Canada’s contractual interpretation law. By failing to do so, the courts have risked making an error of law in their analysis. The extent of their error will be explored in part 2 of this paper. The analysis of the courts’ approach in this case ought to serve an important function. It ought to alert courts in other countries to recognize the role that their domestic contractual interpretation law has in the transfer pricing comparability analysis, so that they avoid making the same errors as those made by the Canadian courts.

February 21, 2014 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

And We're Off!

Jennifer MartinJennifer Martin (picutured at left), who did a simply incredible job putting together this conference, welcomed us this morning to sunny Florida.

We then got under way with a plenary session on the work of Linda Rusch (pictured below at right), the conference's honoree.  Candace Zierdt chaired the session and introduced Louis Higgins from West Academic.  He spoke of how great it has been for him to work with Linda as an author.  He claimed that in working with Linda on about 20 books(!), she has never once missed a deadline.

Amy Boss, whom Stephen Sepinuck recognized as the reigning "Queen of the UCC," then spoke of Linda's career as both an academic and as a law reformer.  Linda read a number of comments from an impressive array of  judges and practitioners who have worked with Linda on law reform projects.  Linda is the type of person whose work often goes unnoticed, because it takes place outside of the spotlight among small groups of extremely well-informed experts on commercial law but often comes to shape both complex federal regulations and state statutes.  People uniformly compliment Linda for her creativity and organization and for her sense of humor.  People are willing to work with Linda on all manner of projects because she is extremely competetent, organized, efficient, approachable and enjoyable to work with.  She clearly understands the theoretical underpinnings of commercial law but she never loses sight of the practical.

RuschNext, Neil Cohen spoke of Linda's constant presence in the firmament of commercial law.  Her work has not been flashy and evanscent.  Rather, she is a steady reminder that there are ways to improve on our work and our understanding of commercial law while also working at improving the law itself.  He commended her for her successful revision of Article 7 and for the "unbuilt architecture" of the revised Article 2 that the ALI approved but then fell at the Uniform Law Commission.   Professor Cohen made the excellent point that the remedies sections in the original Article 2, which are extremely well-conceived, are not especially well drafted.  Linda was significantly involved in reconceptualizing, re-organization and re-writing the Article 2 remedies sections.  The failure of state legislatures to adopt the revised Article 2 is a loss to all of us who teach the subject matter, because the legal principles are far more clearly laid out in the revised version (thanks to Linda's work) than they were in the original.

Larry Garvin spoke of having met Linda early in the process of UCC revision in 1996 and watched her move from back-bencher to leader in undertaking elegant revisions, especially to the Article 2 damages sections.  Professor Garvin basically added his "I agree" to Professor Cohen's comments and then moved on to an appreciation of Linda's scholarly work since the UCC revisions, focusing especially on her article in the SMU Law Review on the ongoing struggle for balance in Article 2 and on Linda's 2003 Temple Law Review article on products liability.  In sum, Professor Garvin noted that Linda's scholarship and law reform efforts generally are characterized by clarity and balance.

Finally, Stephen Sepinuck spoke on behalf of the younger scholars who have benefited from Linda's support and mentoring.  Professor Sepinuck highlighted as his favorite of Linda's articles her 2008 article in the Chicago-Kent Law Review on payment systems.   When the time comes to revisit the laws of payment systems, Professor Sepinuck suggested that this article will provide the basis for that work.  He also noted that the reason very few people know anything about the UCC's Article 7 is that Linda's draft made that section so clear that Article 7 issues almost never need to be litigated.   He also noted her important contributions to the Restatement (3d) of Restitution and Unjust Enrichment so as to make certain that nothing in the Restatement is inconsistent with anything in the UCC.

Linda said a few quick words of thanks to the panelists, whom she had gotten to know at many meetings at mediocre hotels in medium-sized cities close to major airports.  Professor Zierdt announced that the entire panel will be available on YouTube, so that's somethign to look for soon.

February 21, 2014 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 18, 2014

Weekly Top Tens from the Social Science Research Network

SSRNRECENT TOP PAPERS for all papers first announced in the last 60 days 
20 Dec 2013 to 18 Feb 2014

RankDownloadsPaper Title

1 204 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman 
University of Southern California 
2 179 An Economic Theory of Fiduciary Law 
Robert H. Sitkoff 
Harvard Law School 
3 131 Executive Benefits Insurance Agency V. Arkison: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? 
Elizabeth GibsonJonathan M. Landers 
University of North Carolina (UNC) at Chapel Hill - School of Law, Scarola Malone & Zubatov LLP
4 124 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels 
Duke University - School of Law 
5 114 Limits of Procedural Choice of Law 
S.I. Strong 
University of Missouri School of Law
6 92 Promises and Expectations 
Florian EdererAlexander Stremitzer 
Yale University - School of Management, UCLA School of Law
7 73 Zombie Mortgages, Real Estate, and the Fallout for the Survivors 
David P. Weber 
Creighton University - School of Law 
8 70 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein 
University of Chicago - Law School 
9 68 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub 
Vermont Law School 
10 53 Mandatory Rules and Default Rules in Insurance Contracts 
Kyle D. LogueTom Baker 
University of Michigan Law School, University of Pennsylvania Law School

RECENT TOP PAPERS for all papers first announced in the last 60 days  
20 Dec 2013 to 18 Feb 2014

RankDownloadsPaper Title

1 201 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman 
University of Southern California 
2 124 Non-State Law in the Hague Principles on Choice of Law in International Contracts 
Ralf Michaels 
Duke University - School of Law 
3 92 Promises and Expectations 
Florian EdererAlexander Stremitzer 
Yale University - School of Management, UCLA School of Law 
4 70 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein 
University of Chicago - Law School 
5 68 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub 
Vermont Law School 
6 53 Mandatory Rules and Default Rules in Insurance Contracts 
Kyle D. LogueTom Baker 
University of Michigan Law School, University of Pennsylvania Law School 
7 50 Crowding In: How Formal Sanctions Can Facilitate Informal Sanctions 
Scott BakerAlbert H. Choi 
Washington University in Saint Louis - School of Law, University of Virginia School of Law 
8 42 Are You Free to Contract Away Your Right to Bring a Negligence Claim? 
Scott J. Burnham 
Gonzaga University School of Law 
9 33 Cases and Controversies: Some Things to Do with Contracts Cases 
Charles L. Knapp 
University of California - UC Hastings College of the Law 
10 30 A Proposal in Equity: The Marriage of Undue Influence with Unconscionable Dealing? 
Hamilton Zhao 
University of New South Wales (UNSW) - UNSW Law Student

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

Monday, February 17, 2014

GLOBAL K: Empirically Speaking

Genuine, rigorous empirical analysis is always welcome in Contracts scholarship. It not only gives context to abstract principles, but also reminds us what is at stake. One of my favorite examples of empirical analysis in Contracts is Peter L. Fitzgerald’s 2008 article The International Contracting Practices Survey Project: An Empirical Study of the Value and Utility of the United Nations Convention on the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts to Practitioners, Jurists, and Legal Academics in the United States. This is where many of us learned – or had our suspicions confirmed – that many practitioners and most judges were ignorant of the UN Convention on Contracts for the International Sale of Goods. In a broad 2006-2007 survey sampling practitioners, law professors, and state and federal judges in California, Florida, Hawaii, Montana, and New York, Professor Fitzgerald noted that U.S. practitioners reported relatively low levels of familiarity with the CISG (30 percent of reporting practitioners).  Even more alarming was his finding that 82 percent of reporting judges indicated that they were “not at all familiar” with the CISG.

 

A fresh and thought-provoking example of empirical analysis has recently appeared, and every Contracts scholar and practitioner should be aware of it. Dysfunctional Contracts and the Laws and Practices That Enable Them: An Empirical Analysis features two empirical studies and an experiment that seem to have significant policy implications for contract law and consumer protection policy as applied to real estate transactions. These were designed and conducted by Professor Debra Pogrund Stark of John Marshall Law School, Dr. Jessica M. Choplin, a psychology professor at DePaul University, and Eileen Linnabery, a graduate student in industrial/organizational psychology at DePaul University.

 

The authors reviewed form purchase agreements used by condominium developers in Chicago, Illinois from 2003-2008, and found that 79 percent of the agreements contained what the authors considered “highly unfair, one-sided remedies clauses.” The form agreements provided that in the event of seller's breach, buyer's sole remedy was the return of the earnest money deposit., which did not cover any of the losses that would normally be the basis for relief in a breach of contract action, whether expectation damages, consequential damages, or reliance damages, or specific performance where that might have otherwise been warranted. In contrast, the contracts provided that in the event of buyer's breach, seller could retain buyer's deposit, typically between 5 and 10 percent of the purchase price. A survey of over one hundred attorneys in Illinois conducted by Professor Stark appears to corroborate the view that there were “serious problems with remedies clauses” in agreements like those in the Condo Contracts Study. The authors argue that these “dysfunctional contracts,” where the relatively more sophisticated party could deliberately default and terminate the contract with virtually no harm to itself, rendered the contracts “no true binding agreement from that party,” in effect unconscionable or illusory. It appears, however, that only a few Florida cases like Blue Lakes Apts., Ltd. v. George Gowing, Inc. and Port Largo Club, Inc. v. Warren have ruled such contracts to be illusory, whereas most state courts looking at the issue have so far rejected that argument.

 

One might wonder about the extent to which courts are influenced by the assumption that these were bargained-for terms, and to that extent should escape such attacks. The authors have something to say about this. They ran a “Remedies Experiment” to gauge non-lawyer awareness of the imbalance of such remedy clauses. They found what they considered “a widespread failure of the participants to understand the impact of this type of clause on their rights after a breach.” This empirical insight might put into question the assumption in many unconscionability cases that buyer understands the clear wording of such clauses and in fact bargained for the result. If this is simply not true – and if the contrary assumption is being relied upon strategically by professional sellers – then perhaps the traditional unconscionability test needs to be rebooted in the real estate development context.

 

The authors conclude that buyers need greater protection, and they advocate four legal reforms in this regard. First, they recommend revision of unauthorized practice of law rules to require attorney review and approval of home purchase contracts, specifically by attorneys specially trained and licensed for this type of representation. Second, they recommend legislation to prohibit remedies clauses that limit buyer remedies to return of deposit and that create safe harbor rules based on mutuality of remedy and true bargaining in the home purchase contract. Third, they argue for the replacement of the substantive unconscionability test for limitation-of-remedies clauses with a “reasonable limitation of remedy” test in the home purchase context. Finally, they recommend legislation mandating award of attorneys’ fees to the prevailing party in litigation involving enforcement of rights in the context of home purchase agreements.

 

Regardless of one’s assessment of the desirability of these suggested reforms – or of their practical and political possibility – the analysis in Dysfunctional Contracts is rigorous, provocative, and compelling. This is a “must read” piece of Contracts scholarship.

 

 

Michael P. Malloy

February 17, 2014 in Commentary, Recent Scholarship | Permalink | TrackBack (0)