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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)

Wednesday, July 23, 2014

New in Print

Pile of BooksKenneth A. Adams, Adrian J. Walters & Robert L. Eisenbach III, Termination-on-Bankruptcy Provisions: Some Proposed Language, Business Law Today 1 (June 2014)

Mark Anderson, The Enigma of the Single Entity, 16 U. Pa. J. Bus. L. 497 (2014) 

Richard Frankel, The Arbitration Clause As Super Contract, 91 Wash. U. L. Rev. 531 (2014)

Barbara A. Lee, Student-Faculty Academic Conflicts: Emerging Legal Theories and Judicial Review, 83 Miss. L.J. 837 (2014)

Ganesh Sitaraman, Contracting around Citizens United, 114 Colum. L. Rev. 755 (2014)

Tess Wilkinson-Ryan, A Psychological Account of Consent to Fine Print. 99 Iowa L. Rev. 1745 (2014)

Perry A. Zirkel, Procedural and Substantive Student Challenges to Disciplinary Sanctions at Private--As Compared with Public--Institutions of Higher Education: A Glaring Gap? 83 Miss. L.J. 863 (2014) 

July 23, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, July 22, 2014

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 250 The Privatization of Compliance 
Scott Killingsworth 
Bryan Cave LLP 
2 186 Beauty and Ugliness in Offer and Acceptance 
Kenneth K. Ching 
Regent University - School of Law
3 178 A Psychological Account of Consent to Fine Print 
Tess Wilkinson‐Ryan 
University of Pennsylvania Law School 
4 128 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 
5 106 Ending Class Actions as We Know Them: Rethinking the American Class Action 
Linda S. Mullenix 
University of Texas School of Law 
6 85 Bylaws Mandating Arbitration of Stockholder Disputes? 
Claudia H Allen 
Katten Muchin Rosenman LLP 
7 68 'Gap Filling' by Arbitrators 
Alan Scott Rau 
University of Texas at Austin School of Law 
8 66 The Costs of Corporate Bankruptcy: How Little We Know 
Stephen J. Lubben 
Seton Hall University - School of Law 
9 66 Fraud and Abuse in Mesothelioma Litigation 
Lester Brickman 
Yeshiva University - Benjamin N. Cardozo School of Law 
10 60 Governing Law on Forum-Selection Agreements 
Kevin M. Clermont 
Cornell Law School

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

 

RankDownloadsPaper Title
1 186 Beauty and Ugliness in Offer and Acceptance 
Kenneth K. Ching 
Regent University - School of Law 
2 178 A Psychological Account of Consent to Fine Print 
Tess Wilkinson‐Ryan 
University of Pennsylvania Law School 
3 68 'Gap Filling' by Arbitrators 
Alan Scott Rau 
University of Texas at Austin School of Law 
4 67 'Selling Out' and the Impact of Music Piracy on Artist Entry 
Joshua S. Gans 
University of Toronto - Rotman School of Management 
5 58 Of Priors and of Disconnects 
Margaret Jane Radin 
University of Michigan Law School 
6 55 Behavioral Trade-Offs 
Yuval Feldman and Orly Lobel 
Bar-Ilan University - Faculty of Law and University of San Diego School of Law
7 53 Between Property Law and Contract Law: The Case of Securities 
Matthias Haentjens 
Leiden University - Leiden Law School 
8 53 Alternative Entities in Delaware -- Reintroduction of Fiduciary Concepts by the Backdoor? 
Douglas M. Branson 
University of Pittsburgh School of Law 
9 52 A Eulogy for the EULA 
Miriam A. Cherry 
Saint Louis University - School of Law 
10 51 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 

 

July 22, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, July 16, 2014

New in Print

Pile of BooksJuana Coetzee, The Interplay between INCOTERMS and the CISG, 32 J.L. & Com. 1 (2013).

Robert W. Emerson & Jason R. Parnell, Franchise Hostages: Fast Food, God, and Politics, 29 J.L. & Pol. 353 (2014)

Daniel Goller & Alexander Stremitzer, Breach Remedies Inducing Hybrid Investments, 37 Int'l Rev. L. & Econ. 26 (2014)

Daniel B. Kelly, The Right to Include, 63 Emory L.J. 857 (2014)

Lea-Rachel Kosnik, Determinants of Contract Completeness: An Environmental Regulatory Application, 37 Int'l Rev. L. & Econ. 198 (2014) 

Robert T. Miller, The Coasean Dissolution of Corporate Social Responsibility, 17 Chapman L. Rev. 381 (2014)

Joel D. Hesch, The False Claims Act Creates a "Zone of Protection" that Bars Suits against Employees Who Report Fraud against the Government, 62 Drake L. Rev. 361 (2014)

July 16, 2014 in Recent Scholarship | Permalink | TrackBack (0)