ContractsProf Blog

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

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Monday, November 18, 2013

Wrap Contracts Symposium, Part II: Miriam Cherry on The Duty to Draft Reasonably

This is the second in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Our second guest blogger, Miriam A. Cherry, is a visiting professor at the University of Missouri School of Law and a tneured professor law at Saint Louis University. 

The Duty to Draft Reasonably

CherryProfessor Nancy Kim’s “Wrap Contracts” is a foundational book, one that delves deeply into recent cases surrounding online contracting.  Based on existing strands of contract theory, Prof. Kim expresses concern about the ways in which wrap contracts reinforce, and in many instances, amplify, one-sided contracting that may harm consumers in adhesion contracts.  Pointing to a recent study, Kim notes that it would cost the average American Internet user the equivalent of $3,534 a year to read the privacy policies of each website that he or she visits.” (213)  Noting that wrap contracts bear little similarity to the model of free assent that undergirds traditional contract theory, Kim sensibly argues for a more balanced model of drafting and enforcement.

Prof. Kim is not alone in calling for a more level playing field between businesses and consumers.  Indeed, Margaret Jane Radin’s recent book, Boilerplate, contains a similar approach, and earlier work by legal academics, Todd Rakoff and Fredrich Kessler, provided what is now a well-understood and well-articulated argument against contracts of adhesion.  The approach finds support in decades of writing by legal academics, ethicists, journalists, and consumer advocates, who have all voiced similar problems with the one-sided nature of adhesion contracts.  

Wrap ContractsGranted, wrap contracts are different – and perhaps even more disturbing – than the original adhesion contracts that engendered them.  But the fact remains that wrap contracts spring from  - and build on – the same set of problematic assumptions that underlie adhesion contracts.  Given that this literature is well-known, Prof. Kim faces a high hurdle to say something interesting and new. 

The piece of Prof. Kim’s solution that most resonated was her idea of imposing a “duty to draft reasonably,” (176).  Her solution would seem to be the converse of the current idea that consumers have a “duty to read.”  Right now this is a one-sided duty without a corresponding responsibility on businesses posting wrap contracts or adhesion contracts.  Some of the devices she describes in the book – how some online businesses have used wrap contracts as sword, shield, and crook (in instances where consumers are subject to overreaching behavior) reinforce the impression that Prof. Kim’s recommended intervention is needed.  As such, imposing such a reasonableness requirement to make a wrap contracts enforceable seems eminently sensible.  Prof. Kim’s book is timely, well-researched, and will play an important role in the debates about adhesion and wrap contracts that are sure to happen in years to come.   

[Posted, on Miriam Cherry's behalf, by JT]

November 18, 2013 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wrap Contracts Symposium, Part I: Ryan Calo

This is the first in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Today's contributor, Ryan Calo, is an assistant professor at the University of Washington School of Law  and the Faculty Director of the Tech Policy Lab at the University of Washington.  He previously served as a director at the Stanford Law School Center for Internet and Society (CIS) where he remains an Affiliate Scholar.  

Ryan Calo

I am delighted to contribute to this online symposium around Nancy Kim’s new book, Wrap Contracts: Foundations and Recommendations.  Even if you are closely familiar, as I am, with Kim’s previous work, I recommend picking up a copy; the author both synthesizes and meaningfully extends her important thinking on the evolving role of contracts in a digital world.  The sophisticated practitioner, too, has something to gain, particularly from later parts of the book where Kim explores the origins and strategic uses of wrap contracts and makes recommendations that attorneys may one day encounter in a court opinion or Federal Trade Commission complaint. 

Indeed, Kim is one of only a handful of legal scholars (another is Woodrow Hartzog, whom Kim mentions) who engage in a sustained way with the growing importance of interface design (i.e., the very look and feel of a website or digital product) on contemporary contract formation and enforcement.  You see this, for instance, in her wonderful discussion of responsible drafting in Chapter 11.  And while I cannot show causation, as opposed to correlation, I would note that the Federal Trade Commission has in recent years brought enforcement proceedings based in part on interface design, in one case hiring a human-computer interaction specialist to act as an expert witness.

What has most amazed me in my own examination of this space is the range of possibilities the digital environment offers.  If there were one critical note I would sound about Kim’s otherwise substantively and methodologically comprehensive book, it is that she does not always countenance the full boundaries of consumer experience.  Kim cites to Oren Bar-Gill (at page 83) for the proposition that the growing complexity of contracts hides their true costs from the imperfectly rational consumer.  Kim also develops various scenarios in Chapter 10 meant to underscore the powerlessness consumers feel to address conflicts with web companies.  But the prospect for mischief is worse still: As the short title of Bar-Gill’s book, Seduction By Contract, suggests, companies may leverage what they know about consumer psychology to design purposefully disadvantageous terms.  I would (and do) go further in forthcoming work, arguing that firms increasingly control every aspect of their interaction with consumers.  We should expect this control, coupled with the firms’ meticulous knowledge of consumers and their economic incentive to maximize profit, to lead to a wider variety of digital abuses than Kim acknowledges.  Contract becomes not a just a shield against liability here but, in a few instances, a species of license for ethically questionable business practices.

Wrap ContractsSimilar criticisms could focus on Kim’s pessimistic assessment of the potential prospective advantages that a more mediated world might have for consumers. Kim explores how a better understanding of design can improve disclosure and contract in an online environment.  I certainly agree, as Kim notes, that the digital nature of contemporary commerce could result in enhanced disclosure, and maybe even drag notice beyond inscrutable prose and into the twenty-first century.  But what I expected and did not see—what I hope still to see from Kim—is a response to the work of Scott Peppet.  Peppet argues that increased digitalization could, if anything, strengthen the traditional understanding of freedom of contract by conferring on consumers radical new tools of evaluation and comparison.  I would want to understand why the dangerous ascendance of wrap contracts is not substantially offset by other digital developments that empower consumers.  (Eric Goldman recently made this comment about my work, so it is top of mind).

To summarize: Kim’s is a rich and engaging book that I would recommend to anyone who is intellectually curious about consumer contracts or whose professional life in some way depends on them.  I learned a lot and agree with many of Kim’s recommendations.  By way of critique, I would say only that Kim’s book does not answer every single fascinating question about digital contract.  Perhaps no book could, nor would I necessarily want hers to.  Then I would not so eagerly anticipate Kim’s future work. 

[Posted, on Ryan Calo's behalf, by JT]

November 18, 2013 in Books, Commentary, Recent Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, November 14, 2013

New Scholarship from Peggy Radin

RadinReaders who followed our Boilerplate symposium or who are otherwise fans of Peggy Radin's work will be interested to know that she has not rested on her laurels since the publication of Boilerplate.  She has some scholarship forthcoming, and you can get a sneak preview over at SSRN.  

Here are some titles and abstracts:

 
This chapter develops an analytical framework that could help legal analysts – especially common law judges – make better decisions about boilerplate in the context of rights deletions deployed by firms against consumers. It is based on one aspect of the author’s recent work, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton University Press, 2012). A great deal of mass-market boilerplate – such as hidden lists of terms that recipients have no idea exist – should not be treated as contractual, and should be regulated by other means. But when courts insist on treating boilerplate as contractual, I encourage them to consider an improved analysis. That analysis takes into account three factors: (1) the nature of the right of recipients deleted by the boilerplate; (2) the quality of consent to the boilerplate deletion; and (3) the extent of social dissemination of the deletion. Two particular features of current doctrine should be improved. The procedural/substantive requirement in unconscionability doctrine is misapplied when a judge ignores the nature of the right once she concludes that the quality of consent is adequate, because some rights are market-inalienable, or partially market-inalienable. Market-inalienable rights tend to be rights that are constitutive of civil society, that are not salient to individual decision-makers, and/or that are important for the progress or well-being of the collective as a whole. Also, the notion of reasonable expectation should be avoided because it engenders a truly mischievous positive/normative ambiguity, and seems to license a conclusion that the more something is imposed on people, no matter what it is, the more it is permissible. The approach taken here need not be interpreted as innovative, because it can be understood as a reinvigoration of principles of equity that have been corrupted.
 
 
In today’s US, transactions between firms and consumers (including businesses in the position of consumers) routinely contain fine-print terms deleting rights to legal remedies against the firm, such as exculpatory clauses, waivers of consequential damages, and mandatory pre-dispute arbitration clauses. This chapter argues that such remedial rights should not be treated as mere default rules routinely waivable by recipients of fine-print contracts (‘boilerplate’), because such rights deletions threaten the rule of law by undermining rights structures that are central to the state’s obligations toward the public. When remedial rights are subject to easy waiver by boilerplate, they place recipients into a situation that might be called quasi-anarchy; that is, a one-sided situation resembling the anarchy that the state is supposed to supplant. Moreover, they underwrite a scheme of privatization that amounts to exercise of arbitrary power over recipients; and they transgress the principle of equality before the law by separating people that retain legal rights from people that do not. Such rights should remain situated in the public realm, and subject to a species of market-inalienability. This chapter thus argues for a modified version of the public/private distinction, related to maintaining the rule of law.
 
Happy reading
 
[JT]

November 14, 2013 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 13, 2013

New in Print

Tuesday, November 12, 2013

Evolving EULAs

EULA imageHello, I’m one of the new contributors. Thanks for letting me feed the beast.

I’ll be writing some mini-reviews of recent articles and essays. If you have something fresh that you’d like reviewed, e-mail me (kching@regent.edu).

Today I’m reviewing Set in Stone? Changes and Innovation in Consumer Standard-Form Contracts, 88 N.Y.U. L. Rev. 240 (2013), by Florencia Marotta-Wurgler of New York University School of Law and Robert B. Taylor.

Set in Stone studies the evolution of End User License Agreements (EULAs) by comparing their 2003 content to their 2010 content. The article provides a wealth of data about EULA development based on company type, product type, term type, word count, “bias” toward seller or buyer, innovative terms, legal representation, and impact of litigation on terms.

The article focuses on changes in EULAs’ relative buyer-friendliness. For example, a EULA that has changed to inform buyers of their right to return a product has become relatively more buyer-friendly, but a EULA that has changed to allow a seller to remotely disable a buyer’s software is relatively less buyer-friendly.

The article concludes that EULAs are becoming relatively less buyer-friendly. Surprise!

Data provides the great joy of quibbling over its meaning. For example, is a EULA that informs buyers they can return a product really buyer-friendly? Such notice may render the EULA more enforceable, which actually may be more seller-friendly. But quibbling aside, Set in Stone makes a major contribution simply by giving us a treasure trove of data.

A few thoughts on this important article:

More data, please: Set in Stone measures EULAs’ relative buyer-friendliness, but it acknowledges that it lacks the price information we would need to determine whether EULAs are increasing welfare or merely redistributing wealth. This is the big question, isn’t it? Hopefully some enterprising, empirically-minded scholar will relate Set in Stone to the relevant pricing data and tell us whether we’re better off now than we were ten years ago.

Democratic degradation: Set in Stone does provide evidence of the democratic degradation described in Margaret Radin’s Boilerplate. Set in Stone notes that EULAs increasingly include terms that allow sellers to control buyers’ performance through technological means as opposed to litigation. For example, some EULAs allow sellers to remotely terminate a buyer’s ability to use software when the seller deems the software has been misused. Isn’t this like a liquidated damages clause that lets the seller unilaterally determine the buyer has breached and provides the buyer’s ATM pin number? Should buyers have their day in court before sellers enjoy their remedies? Even if buyers were receiving price discounts in exchange for their legal rights, we might think such seller self-help mechanisms are contrary to our basic political arrangements.

Lawyers as product engineers: Set in Stone suggests that EULAs are more susceptible to innovation than other contracts. So, if contracts are product components, perhaps lawyers can engineer better products. Entrepreneurial lawyers could identify EULAs containing inefficient terms and revise them to create economic surplus. Lawyers could be trained to identify and eliminate EULA inefficiencies. In-house lawyers could be transformed from cost centers to profit centers. And all without doing any math! Well, we might have to do some math.

[KC]

[Image by James Provost]

November 12, 2013 in Commentary, Recent Scholarship, Web/Tech | Permalink | Comments (0) | 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 

September 12, 2013 to November 11, 2013

RankDownloadsPaper Title
1 189 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 130 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
3 125 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
4 105 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
5 95 Interpretation of Written Contracts in England 
Neil H. Andrews
University of Cambridge - Faculty of Law
6 85 The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages 
Jason N. E. Varuhas
University of Cambridge - Faculty of Law
7 79 Is There a 'Duty to Read'? 
Charles L. Knapp
University of California - UC Hastings College of the Law
8 79 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law
9 76 The No Reading Problem in Consumer Contract Law 
Ian AyresAlan Schwartz
Yale University - Yale Law School, Yale Law School,
10 71 Le Nouvel Article 3.3.1 Des Principes Unidroit 2010 Sur Le Contrat Violant Une Règle Impérative: Un Regard Critique Du Point De Vue Du Droit International Privé (A Critical Appraisal of Article 3.3.1 of the PICC on Contracts Infringing Mandatory Rules) 
Gilles Cuniberti
University of Luxembourg

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

September 13, 2013 to November 12, 2013

RankDownloadsPaper Title
1 190 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 132 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
3 129 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
4 109 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
5 95 Interpretation of Written Contracts in England 
Neil H. Andrews
University of Cambridge - Faculty of Law
6 81 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law
7 79 Is There a 'Duty to Read'? 
Charles L. Knapp
University of California - UC Hastings College of the Law
8 68 Unconscionability in American Contract Law: A Twenty-First Century Survey 
Charles L. Knapp
University of California - UC Hastings College of the Law
9 59 Dissenting Statement Pertaining to the Name of an Individual Debtor on a Financing Statement — Appendix to Report on the Amendments to Article 9 of the Uniform Commercial Code 
Kenneth C. KetteringAmelia H. Boss
Temple University - James E. Beasley School of Law, University of Miami - School of Law
10 57 Renegotiation of Work Contract and Work Agreement of Coal Mining Undertaking in Indonesia: Legal Aspect of Renegotiation vs Pacta Sunt Servanda Principle 
Ahmad Redi
University of Indonesia (UI) - Faculty of Law
[JT]

November 12, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, November 6, 2013

New in Print

Tuesday, November 5, 2013

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 

September 5, 2013 to November 4, 2013

RankDownloadsPaper Title
1 240 Bankruptcy During Foreclosure: Home Preservation Through Chapters 7 and 13 
Roberto QuerciaMelissa B. JacobyMark R. LindbladLing WangHuifang Zhao
UNC Center for Community Capital, University of North Carolina (UNC) at Chapel Hill - Department of City and Regional Planning, University of North Carolina (UNC) at Chapel Hill - School of Law, University of North Carolina (UNC) at Chapel Hill, University of North Carolina (UNC) at Chapel Hill
2 177 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
3 120 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
4 101 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
5 100 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
6 97 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
7 86 Interpretation of Written Contracts in England 
Neil H. Andrews
University of Cambridge - Faculty of Law
8 73 Is There a 'Duty to Read'? 
Charles L. Knapp
University of California - UC Hastings College of the Law
9 62 Property as Platform: Coordinating Standards for Technological Innovation 
Henry E. Smith
Harvard Law School
10 60 Cross-Debarment: A Stakeholder Analysis 
Christopher R. Yukins
George Washington University - Law School

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

September 5, 2013 to November 4, 2013

RankDownloadsPaper Title
1 177 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 120 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
3 101 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
4 100 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
5 97 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
6 86 Interpretation of Written Contracts in England 
Neil H. Andrews
University of Cambridge - Faculty of Law
7 73 Is There a 'Duty to Read'? 
Charles L. Knapp
University of California - UC Hastings College of the Law
8 60 Cross-Debarment: A Stakeholder Analysis 
Christopher R. Yukins
George Washington University - Law School
9 54 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law
10 43 Social Media and the Rise in Consumer Bargaining Power 
Wayne Barnes
Texas A&M University (TAMU) - School of Law

[JT]

November 5, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, October 30, 2013

New in Print

Pile of BooksKeir X. Bancroft, Regulating Information Security in the Government Contracting Industry: Will the Rising Dide Lift All the Boats? 62 Am. U. L. Rev. 1145 (2013)

Roman Majtan, The Self-Cleaning Dilemma: Reconciling Competing Objectives of Procurement Processes, 45 Geo. Wash. Int'l L. Rev. 291 (2013) 

Carol Dougherty Rasnic, Shootout at the ECJ Corral: Management 4, Labor 0; European Labor Dispute Law after Viking Line, 9 S.C. J. Int'l L. & Bus. 353 (2013)

Joseph Slater & Elijah Welenc, Are Public-Sector Employees "Overpaid" Relative to Private-Sector Employees? An Overview of the Studies, 52 Washburn L.J. 533 (2013)

Jessical Tillipman, The Congresional War on Contractors, 45 Geo. Wash. Int'l L. Rev. 235 (2013)

Matthew P. Vafidis, No Sanity Clause: Thoughts on the Bill of Lading Package Limitation, 25 U.S.F. Mar. L.J. 235 (2012-13)

David P. Weber, Restricting the Freedom of Contract: A Fundamental Prohibition, 16 Yale Hum. Rts. & Dev. L.J. 51 (2013)

[JT]

October 30, 2013 in Government Contracting, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 29, 2013

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 

August 30, 2013 to October 29, 2013

RankDownloadsPaper Title
1 169 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 115 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
3 98 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
4 95 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
5 67 Is There a 'Duty to Read'? 
Charles L. Knapp
University of California - UC Hastings College of the Law
6 61 The Interpretation and Fairness of Standardized Terms: Certainty and Predictability Under the CESL and the CISG Compared 
Nicole Kornet
Maastricht University - European Private Law Institute (M-EPLI), Maastricht University - METRO Institute
7 60 Property as Platform: Coordinating Standards for Technological Innovation 
Henry E. Smith
Harvard Law School
8 57 Cross-Debarment: A Stakeholder Analysis 
Christopher R. Yukins
George Washington University - Law School
9 55 Rejecting the Right to International Arbitration on Domestic Public Policy Grounds - The Case of Tethyan Copper Company in Pakistan 
Faisal Daudpota
Advocate High Court
10 55 Can We Be Obliged to Be Selfless? 
Lionel Smith
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law,

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

August 30, 2013 to October 29, 2013

RankDownloadsPaper Title
1 169 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 115 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
3 98 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
4 95 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
5 67 Is There a 'Duty to Read'? 
Charles L. Knapp
University of California - UC Hastings College of the Law
6 61 The Interpretation and Fairness of Standardized Terms: Certainty and Predictability Under the CESL and the CISG Compared 
Nicole Kornet
Maastricht University - European Private Law Institute (M-EPLI), Maastricht University - METRO Institute
7 57 Cross-Debarment: A Stakeholder Analysis 
Christopher R. Yukins
George Washington University - Law School
8 40 Social Media and the Rise in Consumer Bargaining Power 
Wayne Barnes
Texas A&M University (TAMU) - School of Law
9 40 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law
10 38 Horizontal Application of the Charter of Fundamental Rights 
Dorota Leczykiewicz
University of Oxford - Faculty of Law

[JT]

October 29, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, October 23, 2013

New in Print

Pile of BooksThis week, we feature two journals that devoted special issues to contracts law.  First is 58 Villanova Law Review, No. 4: Norman J. Shachoy Symposium: Assessing the CISG and Other International Endeavors to Unify International Contract Law

Michael Bridge, An Overview of the CISG and an Introduction to the Debate about the Future Convention, 58 Vill. L. Rev. 487 (2013)

Renaud Sorieul, Emma Hatcher and Cyril Emery, Possible Future Work by UNCITRAL in the Field of Contract Law: Preliminary Thoughts from the Secretariat, 58 Vill. L. Rev. 491 (2013)

Keith Loken, A New Global Initiative on Contract Law in UNCITRAL: Right Project, Right Forum? 58 Vill. L. Rev. 509 (2013) 

Anna Veneziano, The Soft Law Approach to Unification of International Commercial Contract Law: Future Perspectives in Light of UNIDROIT's Experience, 58 Vill. L. Rev. 521 (2013)

Special Topics Under the CISG 

Djakhongir Saidov, Article 35 of the CISG: Reflecting on the Present and Thinking about the Future, 58 Vill. L. Rev. 529 (2013) 

Ulrich G. Schroeter, Defining the Borders of Uniform International Contract Law: the CISG and Remedies for Innocent, Negligent, or Fraudulent Misrepresentation, 58 Vill. L. Rev. 553 (2013)

Tolle-Lege-Logo-Final2International Perspectives 

Shiyuan Han, Principles of Asian Contract Law: An Endeavor of Regional Harmonization of Contract Law in East Asia. 58 Vill. L. Rev. 589 (2013)

Alejandro Osuna-Gonzalez, The Interpretation in Mexico of the United Nations Convention on Contracts for the International Sale of Goods, 58 Vill. L. Rev. 601 (2013)

Lisa Spagnolo, Law Wars: Australian Contract Law Reform vs. CISG vs. CESL, 58 Vill. L. Rev. 623 (2013)

Related International Instruments and Organizations 

Luca G. Castellani, An Assessment of the Convention on the Limitation Period in the International Sale of Goods through Case Law. 58 Vill. L. Rev. 645 (2013)

Henry Deeb Gabriel, UNIDROIT Principles as a Source for Global Sales Law. 58 Vill. L. Rev. 661 (2013)

Jan Ramberg, CISG and UPICC as the Basis for an International Convention on International Commercial Contracts, 58 Vill. L. Rev. 681 (2013)

Looking Toward the Future 

Larry A.  DiMatteo, CISG as Basis of a Comprehensive International Sales Law, 58 Vill. L. Rev. 691 (2013)

Ingeborg Schwenzer, Who Needs a Uniform Contract Law, and Why? 58 Vill. L. Rev. 723 (2013)

Pilar Perales Viscasillas, Applicable Law, the CISG, and the Future Convention on International Commercial Contracts, 58 Vill. L. Rev. 733 (2013)

Bruno Zeller, Attorneys' Fees--Last Ditch stand? 58 Vill. L. Rev. 761 (2013)

Transactions-Vol14-Spring-2013-Number-2-Cover-208x300The other is TRANSACTIONS: THE TENNESSEE JOURNAL OF BUSINESS LAW, NO. 3:

Sue Payne, In Dreams Begin Responsibilities: A Five-Step Plan for the Continued Development of Transactional Law and Skills Education, 14 Transactions 297 (2013)

Tina L. Stark, At the Heart of the Matter: Reading Contracts and Dealing with Risk, 14 Transactions 309 (2013)

Dana Malkus, Scott Stevenson, Eric J. Gouvin and Usha Rodrigues, The Lawyer's Toolbox: Teaching Students about Risk Allocation. 14 Transactions 319 (2013) 

Paula J. Williams, Kris Anne Tobin, Eric Franklin and Robert J. Rhee, Tackling "Arithmophobia": Teaching How to Read, Understand, and Analyze Financial Statements. 14 Transactions 341 (2013) 

Kimberly Y.W. Holst and Stephen L. Sepinuck. Contract Drafting: Teaching with Forms, 14 Transactions 361 (2013)

Jean Whitney, Lori D. Johnson, Richard Rawson and Carol Morgan, Across the Curriculum: Integrating Transactional Skills Instruction, 14 Transactions 383 (2013)

Sue Payne, The First Year: Integrating Transactional Skills. 14 Transactions 403 (2013) 

Jay Finkelstein and Karl Okamoto, Simulations: Collaborative Experiential Learning, 14 Transactions 419 (2013) 

Carol Newman, George W. Kuney, M. Jan Connell and Dennis R. Honabach, Preparing the Transactional Lawyer: From Doctrine to Practice, 14 Transactions 447 (2013)

Charles Fox, Contract Drafting: Teaching Critical Lawyering Skills, 14 Transactions 463 (2013)

Lisa Reel Schmidt, Steve Garland and Robert Statchen, Preparing "Main Street" Lawyers: Practicing without Big Firm Experience, 14 Transactions 473 (2013) 

Karen J. Sneddon, Susan M. Chesler, Stacey Bowers and Dana M. Warren, Measuring Student Progress: Assessing and Providing Feedback, 14 Transactions 489 (2013)

Gregory M. Duhl and Jaclyn Millner, Transactions and Settlements: Creating Balance a in Legal Education, 14 Transactions 517 (2013)

Lenne Espenschied and Bruce G. Luna, More on Doctrinal Courses: Integrating Transactional Skills, 14 Transactions 535 (2013)

Brian K. Krumm, Joan MacLeod Heminway and Michael J. Higdon, A Case Study in Transactional Centers and Certificate/Concentration Programs: From Program Design to Student Experience, the Clayton Center for Entrepreneurial Law, 14 Transactions 569 (2013) 

Judith A. Rosenbaum, Transactional Drafting: Teaching Tips, 14 Transactions 591 (2013)

Douglas Levene, International Students: How to Teach Transactional Skills. 14 Transactions 603 (2013)

[JT]

October 23, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, October 22, 2013

In Defense of Student-Edited Journals

Meredith Miller's post from yesterday touched on a topic that most law professors have considered at some point or other.  For years, there has been a movement to replace student-edited law reviews with a more professional model.  Judge Posner threw his support behind an operation called PRSM -- the Peer Reviewed Scholarship Marketplace.  But the idea has not caught on (judging by the stagnating PRSM membership).  In my view, it is a fine thing to have different models out there, so it is fine with me that some student-edited journals are experimenting with peer review (and I hear anecdotally that many student-edited journals have been doing so informally all along).  But my main point here is to stress how we all benefit from student-edited journals, and law professors should stop griping and realize how lucky they are to have the current arrangement.  

I have written on this subject before here, emphasizing the benefits students derive from their work on law journals.  Here is the heart of my argument from that previous post:

 Some of the best training that happens at law schools happens at law reviews.  I came to law school with ten years of scholarly experience under my belt, because I had written a doctoral dissertation, published historical scholarship and taught before making the jump to law school.  Still, my skills as a researcher skyrocketed in my third year as a law student when I was responsible for overseeing a team of cite and substance editors on a number of review essays that we published in our Review of Law and Social Change.  The evidentiary standards for legal scholarship are far more exacting than they are in the humanities and the non-quantitative social sciences.  No claim can be made without authority.  As a result, I became a far more intrepid researcher, and I unlearned intellectual habits acceptable to my former field of study and adopted intellectual habits essential to successful lawyering.  

In this post, I would like to address some of the advantages of student-edited journals from the author's perspective.  The main advantages of student-edited journals is that they are plentiful and rely on free labor.  Since as I explained above, the labor is a valuable component of legal education, I don't feel too badly for the students who are not paid for their editorial work.  But their efforts are responsible for raising the level of legal scholarship well above that of other humanities and social sciences.  

Having more journals to publish in is good.  Allow these adorable kids to explain:

 

You see, it's not complicated.

When I was a historian, I submitted articles for peer review.  I waited 3-6 months for readers' reports.  Sometimes the readers' reports were positive, and my article got published without further editing beyond typesetting.  Other times I was told to revise and re-submit.  In general, I would say that the suggested revisions were recommendations that I recast my own research to satisfy the reviewer, and I was not always convinced that doing so would enhance the quality of the piece.  But I would do my best to revise, and there were times when my attempts to satisfy the reviewer were unsuccessful.  I could move on to the next journal, but I don't think I ever did.  I published in a specialized field, and there were usually only a couple of journals where it made sense for me to publish.  The universe of qualified reviewers was also limited.  Two of my historical writings, to which I devoted months of work were never published, and one of them should have been.  

Without a doubt, legal scholars benefit from being able to submit simultaneously to scores of publications.  If none of those publications bite, we wait six months for the next round and try our luck with a fresh crop of editors who may not have the benefit of a meaningful institutional memory.  At some point, worthwhile scholarship finds its way into print, and as long as the publication is included on a database, and most journals are, students, attorneys, and scholars can find it regardless of the prestige of the publication.  

Okay, so what is the downside?

One potential downside is that a lot of useless nonesense gets published.  I would be very interested to see evidence that peer review prevents the publication of useless nonesense.  People bandy about the statistic that 40% of law review articles are never cited.  Okay, is a higher percentage of peer reviewed material cited?  In any case, as I wrote in another post:

As for scholarship itself, Brian Leiter was here a few weeks ago to deliver our annual Seegers Lecture on Jurisprudence.  In response to a question about the value of scholarship, he said something very close to my view.  Most of what gets published is a dead end.  But a certain percentage of it is very valuable, and there is no way of telling ex ante which scholarship is going to move the ball in a meaningful way.  That's why we need lots of people doing their best to move the ball and why we need to continue to support faculty scholarship. 

The other downside is that students are incompetent as editors not only in selection but also in the way they deal with the text.  This, I say, is nonsense.  Peer review may be more rigorous but peer editing clearly is not.  Whenever I have submitted essays for peer review, the final product is almost identical to the original, except for formatting and the repair of the odd typo.  Student editors work hard to improve the quality and clarity of the writing, and they also find authority where it is lacking.  They make us seem much more lucid, knowledgeable and careful than we really are -- or than we are when we first submit our offerings up for publication.  

The last time I published in a peer-review, peer-edited journal, my piece was: 1) accepted, 2) rejected following a coup on the editorial board, and 3) re-accepted after the coup unraveled.  The re-acceptance was conditional on revisions.  The readers' reports came to me nearly two years after the original submission, but I received many vague missives from the journal suggesting that I had very little time to make the necessary changes or the journal would pass on publication.  I made the requisite changes (which were idiotic and necessitated a new research project) and re-submitted.  For months, I heard nothing.  My inquiries recieved no response until I received the page proofs.  The page proofs corresponded to my original draft.  That's right, the "professional editors" who insisted that I revise my article were then prepared to publish my article without the revisions.  Publication followed some months later, about two years after the article was first accepted for publication.  I know we all have horror stories about student editors, but could they really have done much worse than that?

I have been storing these thoughts up for a while, hoping that I would one day have the time to publish them in a student-edited law journal.  For now, a blog post will have to do.

[JT] 

October 22, 2013 in Conferences, In the News, Law Schools, 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 

August 22, 2013 to October 21, 2013

RankDownloadsPaper Title
1 156 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 109 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
3 98 Indescendibility 
David Horton
University of California, Davis - School of Law
4 94 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
5 89 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
6 77 Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts 
Kenneth K. Ching
Regent University - School of Law
7 75 A Presumptively Better Approach to Arbitrability 
John A. E. PottowJacob BregeTara J. Hawley
University of Michigan Law School, University of Michigan at Ann Arbor - University of Michigan Law School, University of Michigan Law School
8 68 Law Wars: Australian Contract Law Reform vs CISG vs CESL 
Lisa Spagnolo
Monash University - Faculty of Law
9 60 Managing Our Money: The Law of Financial Fiduciaries as a Private Law Institution 
Hanoch DaganSharon Hannes
Tel Aviv University - Buchmann Faculty of Law, Tel Aviv University - Buchmann Faculty of Law
10 59 Property as Platform: Coordinating Standards for Technological Innovation 
Henry E. Smith
Harvard Law School

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

August 22, 2013 to October 21, 2013

RankDownloadsPaper Title
1 156 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 109 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
3 94 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
4 89 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
5 77 Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts 
Kenneth K. Ching
Regent University - School of Law
6 57 Is There a 'Duty to Read'? 
Charles L. Knapp
University of California - UC Hastings College of the Law
7 50 Cross-Debarment: A Stakeholder Analysis 
Christopher R. Yukins
George Washington University - Law School
8 49 The Interpretation and Fairness of Standardized Terms: Certainty and Predictability Under the CESL and the CISG Compared 
Nicole Kornet
Maastricht University - European Private Law Institute (M-EPLI), Maastricht University - METRO Institute
9 42 Software Tools for the Visualization of Definition Networks in Legal Contracts 
Michael CurtottiEric McCreathSrinivas Sridharan
Australian National University (ANU), Australian National Univerity, University of California, San Diego (UCSD)
10 31 Horizontal Application of the Charter of Fundamental Rights 
Dorota Leczykiewicz
University of Oxford - Faculty of Law

[JT]

October 22, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Monday, October 21, 2013

NYT's Adam Liptak on Lackluster Legal Scholarship (or, On Elephants Swatting Flies)

In case you didn't see it, Adam Liptak's Sidebar column in the New York Times takes aim at student-edited law reviews with such zingers as: "Law reviews are such a target-rich environment for ridicule that it is barely sporting to make fun of them."  Liptak gets it mostly right in describing the dismal status quo, incluing the utter lack of relevance of most law review articles to the practicing bar.  (I had a law professor who said the best way to keep a secret is in a law review article and I tend to think he was right). 

I am shocked that this story is newsworthy and I don't necessarily agree with the prescription that "blind screening, peer review and more training for the student editors" would make all the difference.  But I am most grateful that Liptak's column references a 1936 essay by Yale Professor Fred Rodell titled “Goodbye to Law Reviews.”  It made my day.  Check out the abstract:

It is doubtless of no concern to anyone that this is probably my last law review article. As a matter of fact, this makes one more article than I had originally planned to write. It was something in the nature of a New Year's resolution. Yet the request to do a piece about law reviews seemed a golden opportunity to make my future absence from the "Leading Articles, Authors" lists a bit more pointed than would the business of merely sitting in a comer, sucking my thumb, and muttering Boo. Keeping well in line with two traditions—a course which lawyers will readily understand—I decided to break the resolution and not wait for opportunity's second knock. This, then, is by way of explaining why I do not care to contribute further to the qualitatively moribund while quantitatively mushroom-like literature of the law.

There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground. And though it is in the law reviews that the most highly regarded legal literature—and I by no means except those fancy rationalizations of legal action called judicial opinions—is regularly embalmed, it is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so-called style. The average law review writer is peculiarly able to say nothing with an air of great importance. When I Used to read law reviews, I used constantly to be reminded of an elephant trying to swat a fly.

Just proves that there is nothing new to say.

[Meredith R. Miller]

October 21, 2013 in Commentary, In the News, Law Schools, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Supplier Codes of Conduct and Working Conditions in the Global Supply Chain

Please allow me this moment of shameless self-promotion.  I just posted a draft to SSRN titled "Corporate Codes of Conduct and Working Conditions in the Global Supply Chain: Accountability through Transparency in Private Ordering."  What began as a musing on whether the supplier codes of transnational corporations should be viewed through the lens of contract law evolved into a regulatory piece about transparency.  It has a little something for everyone: contract law, employment law, international law, human rights, corporate governance and securities regualtion.  All inspired by a summer abroad course I taught in Vietnam.  Here's the abstract:

In early 2012, Apple Inc. had its very own “Nike moment.” The mainstream news media raised issues concerning working conditions at a Foxconn factory in China that manufactures iPads. The press accounts described serious and sometimes deadly safety problems, excessive overtime, underage workers, and even a rash of suicides. More recently, massive and deadly tragedies in Bangladesh garment factories have captured United States media attention. This negative publicity has renewed questions about how to achieve humane conditions for workers at factories that supply goods to transnational companies (“TNCs”). 

Prompted by the negative media attention, Apple publicized its “Supplier Code of Conduct” and voluntarily joined the Fair Labor Association (“FLA”), a non-profit consortium of companies, universities and organizations committed to improving working conditions through accountability and transparency. These steps to voluntarily undertake higher standards can only be understood with reference to the greater context of international guiding principals and the setbacks in implementing them.

International labor standards have remained largely aspirational and the International Labor Organization (“ILO”) lacks meaningful enforcement power. Moreover, United States labor and employment laws generally do not apply extraterritorially. For these reasons, much of the more recent standard setting has been undertaken voluntarily by TNCs through their own codes of conduct or by joining a non-profit standard-setting organization. For example, through its “Supplier Code of Conduct” Apple has ostensibly committed itself to improving working conditions in the factories that manufacture its products. By joining the FLA, it has agreed to independent audits of its suppliers. 

Given the lack of mechanisms to enforce international standards and the presumption against extraterritorial application of United States law abroad, it is tempting to view the self-regulatory nature of supplier codes through the lens of contract law. Although the codes of conduct may be incorporated by reference in supply contracts, they do not bring any stronger enforcement mechanisms to workers in the international supply chain. While the codes use legalistic language, they are carefully written to avoid the risk of creating liability. The codes typically do not fix the TNCs to a firm commitment to monitor and audit suppliers and, therefore, often echo the aspirational nature of ILO standards. Even where promises of monitoring can be found in the code language, it is not likely that workers can enforce those promises as third party beneficiaries. 

Further, it would be misguided to treat the supplier codes of conduct as exposing TNCs to contractual liability. The codes are voluntarily enacted and self-imposed; once the codes potentially subject TNCs to contract claims, there is a disincentive to adopt the codes in the first place. Indeed, many TNCs that rely on global suppliers have yet to adopt a code of conduct or join an organization like the FLA.

Given these challenges, this paper shifts focus away from attempts to enforce global standards or apply contract principles to the private ordering of supplier codes of conduct. Instead, this paper argues that a model of transparency may be the most promising path to holding TNCs accountable for working conditions in the factories of their suppliers. The central normative claim of this paper is that the United States should require TNCs to disclose whether they have a supplier code of conduct, the terms of that code and who does the monitoring and auditing of suppliers. Disclosure requirements are more likely to encourage TNCs to voluntarily undertake standards that reflect best practices. The focus on transparency falls squarely within the recent push to require companies to report on more than strictly financial information.

Conditions for workers in the supply chain will only improve if required by the source of demand for the products they are employed to manufacture. Despite the fact that self-imposed codes have been criticized as platitudes or public relations stunts, some TNCs have made more concrete commitments to monitoring and auditing their suppliers. Adding transparency to the supply chain will make it relatively easy for interest groups to rate a TNC’s commitment to improving working conditions. A disclosure model that brings information to the United States marketplace and informs the demand for products may have the greatest potential to increase TNCs’ accountability and improve working conditions in factories across the globe.

You can download it here.  Comments, suggestions and wagging fingers are all welcomed.

[Meredith R. Miller]

October 21, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Friday, October 18, 2013

U. of Chicago Law to Host Panel on the Contracts Scholarship of Douglas Baird

Baird, Douglas 2013Lunchtime Panel: Baird's Contracts
Date: Wednesday, October 23, 2013 - 12:15pm - 1:30pm
Location: 
 Classroom II
Contact info: Marjorie Holme, mholme@uchicago.edu

Reconstructing Contracts: The Contracts Scholarship of Douglas Baird

A panel of leading scholars discuss Douglas Baird's pathbreaking work on Contract Law published in his new book "Reconstructing Contracts."

  • Avery Katz, Vice Dean and Milton Handler Professor of Law, Columbia Law School
  • Stewart Macaulay, Malcolm Pitman Sharp Professor & Theodore W. Brazeau Professor, University of Wisconsin Madison Law School
  • Ariel Porat, The Alain Poher Chair in Private Law, Faculty of Law, Tel Avivi University

Moderated by Omri Ben-Shahar, Leo and Eileen Herzel Professor of Law and Economics and Kearney Director of the Coase-Sandor Institute for Law & Economics, University of Chicago Law School

Lunch will be provided.

 

[JT]

October 18, 2013 in Books, Conferences, Contract Profs, Recent Scholarship | Permalink | TrackBack (0)

Wednesday, October 16, 2013

New in Print

Pile of BooksJennifer Camero, Level Up: Employing the Commerce Clause to Federalize the Sale of Goods, 50 San Diego L. Rev. 89 (2013)

Michael Klausner, Fact and Fiction in Corporate Law and Governance. 65 Stan. L. Rev. 1325(2013)

Stanley C. Nardoni, A Matter of Rnterest: Illinois Courts Should Return to the Rraditional Rule for Awarding Prejudgment Interest in Insurance Coverage Cases, 37 S. Ill. U. L.J. 305 (2013)

Mary Szto, Contract in My Soup: Chinese Contract Formation and Ritual Eating and Drunkenness. 25 Pace Int'l L. Rev. 1 (2013)

And we also have a new book in print this week:

Deborah L. Threedy, Developing Professional Skills: Contracts (West, 2013)

We have noted some of Professor Threedy's pedagogical innovations on this blog recently, so it is nice to see that this book will enable her to share her insights with students beyond the University of Utah.

[JT]

October 16, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, October 15, 2013

Weekly Top Tens from the Social Science Research Network

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

August 16, 2013 to October 15, 2013

RankDownloadsPaper Title
1 133 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 102 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
3 98 Indescendibility 
David Horton
University of California, Davis - School of Law
4 83 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
5 83 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
6 76 Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts 
Kenneth K. Ching
Regent University - School of Law
7 75 A Presumptively Better Approach to Arbitrability 
John A. E. PottowJacob BregeTara J. Hawley
University of Michigan Law School, University of Michigan at Ann Arbor - University of Michigan Law School, University of Michigan Law School
8 58 Property as Platform: Coordinating Standards for Technological Innovation 
Henry E. Smith
Harvard Law School
9 55 Law Wars: Australian Contract Law Reform vs CISG vs CESL 
Lisa Spagnolo
Monash University - Faculty of Law
10 55 Managing Our Money: The Law of Financial Fiduciaries as a Private Law Institution 
Hanoch DaganSharon Hannes
Tel Aviv University - Buchmann Faculty of Law, Tel Aviv University - Buchmann Faculty of Law

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

August 16, 2013 to October 15, 2013

RankDownloadsPaper Title
1 133 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 102 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
3 83 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
4 83 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
5 76 Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts 
Kenneth K. Ching
Regent University - School of Law
6 49 Is There a 'Duty to Read'? 
Charles L. Knapp
University of California - UC Hastings College of the Law
7 45 Cross-Debarment: A Stakeholder Analysis 
Christopher R. Yukins
George Washington University - Law School
8 44 The Interpretation and Fairness of Standardized Terms: Certainty and Predictability Under the CESL and the CISG Compared 
Nicole Kornet
Maastricht University - European Private Law Institute (M-EPLI), Maastricht University - METRO Institute
9 38 Software Tools for the Visualization of Definition Networks in Legal Contracts 
Michael CurtottiEric McCreathSrinivas Sridharan
Australian National University (ANU), Australian National Univerity, University of California, San Diego (UCSD)
10 28 Social Media and the Rise in Consumer Bargaining Power 
Wayne Barnes
Texas A&M University (TAMU) - School of Law

[JT]

October 15, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, October 9, 2013

New in Print (and on SSRN)

Pile of BooksDaniela Caruso, The Baby and the Bath Water: The American Critique of European Contract Law, 61 Am. J. Comp. L. 479 (2013)

Miriam A. Cherry, Learning Contracts through Current Events: ... (Reviewing Lawrence Cunningham, Contracts in the Real World: Stories of Popular Contracts and Why They Matter), 35 U. Haw. L. Rev. 129 (2013)

Philip E. Cleary, Benevolent Maleficence: How a Well-Intentioned Legislature and a Deferential Court Combined to Stunt the Development of Massachusetts Product Liability Law. 8 UMass L. Rev. 14 (2013) 

Sinai Deutch, Consumer Contracts Law as a Special Branch of Contract Law--the Israeli Model. 29 Touro L. Rev. 695 (2013)

Ricard Gil, The Interplay of Formal and Relational Contracts: Evidence from Movies. 29 J.L. Econ. & Org. 681 (2013)

Jack Graves, Penalty Clauses as Remedies: Exploring Comparative Approaches to Enforceability, 29 Touro L. Rev. 681 (2013)

Jeffrey B. Hammond, Conscience as Contract. Conscience as Covenant, 4 Faulkner L. Rev. 433 (2013)

Robert L. McFarland, Are Religious Arbitration Panels Incompatible with Law? Examining "Overlapping Jurisdictions" in Private Law. 4 Faulkner L. Rev. 367 (2013) 

Miller
Our Very Own Meredith Miller!
Meredith R. Miller, Party Sophistication and Value Pluralism in Contract, 29 Touro L. Rev. 659 (2013)

Ruth Plato-Shinar, The Banking Contract as a Special Contract: the Israeli Approach. 29 Touro L. Rev. 721 (2013)

Stephen F.  Ross and Lindsay Berkstresser, Using Contract Law to Tackle the Coaching Carousel, 47 U.S.F. L. Rev. 709 (2013) 

James M. Wilton and Andrew G. Devore. Trademark Licensing in the Shadow of Bankruptcy, 68 Bus. Law. 739 (2013)

In addition, we have this new article posted on SSRN: 

Anca D. Chirita, The Impact of the European Union Crisis on Law, Policy and Society  

Abstract:

The purpose and methodology of this article is as follows: first, to understand the general nature of the current crisis (banking, financial, debt, currency, constitutional, political) from a socio-legal, economic, ideological and political perspective; then, to analyse the complexity of the multiple causes which have led to the current crisis in particular areas of law (financial, banking, securities, contract, competition and corporate law) in which it has manifested itself and the sectors of the economy it has affected; and, finally, to criticise law in action and the management of the crisis through political decision-making (state intrusiveness), that is, the various responses and reactions to the crisis and the effectiveness of the measures implemented by policy-makers and enforcers, and, inter alia, to question the constitutional legitimacy of the TBTF (Too-Big-to-Fail) theory as a predominant doctrine and criterion of state intervention in the economy.

A multi-layered level of economic, social, and political governance is envisaged through insights from microeconomics, by looking at how economic agents have affected individuals such as consumers; from macroeconomics, by looking at how state intervention in the economy has impacted upon taxpayers and the human and social costs of the crisis; and from political economy by looking through the lenses of ideology and policy and reflecting on the role of neoliberalism today.

To conclude, the heavy reliance on the TBTF doctrine became a European ‘Too Big to Crash’ test which signals past memories and fears of an eventual repeat of the 1929 Wall Street crash, which to date has been avoided by all possible methods of political intervention. Unfortunately, competition law could be seen as the scapegoat of this unprecedented restructuring of the banking and financial markets through competition policy’s illegitimate and undeserved but generous state aid to benefit mostly inefficient and unscrupulous financial game players. This last recognition leads us to question the adequate measures of profit-seeking capitalism.

[JT]

October 9, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, October 8, 2013

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 

August 8, 2013 to October 7, 2013

RankDownloadsPaper Title
1 145 Improving Contract Quality: Modularity, Technology, and Innovation in Contract Design 
George G. Triantis
Stanford University - Law School
2 118 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
3 117 'Sticky' Arbitration Clauses?: The Use of Arbitration Clauses after Concepcion and Amex 
Christopher R. DrahozalPeter B. Rutledge
University of Georgia - School of Law, University of Kansas School of Law
4 98 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
5 95 Indescendibility 
David Horton
University of California, Davis - School of Law
6 78 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
7 76 Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts 
Kenneth K. Ching
Regent University - School of Law
8 63 A Presumptively Better Approach to Arbitrability 
John A. E. PottowJacob BregeTara J. Hawley
University of Michigan Law School, University of MIchigan Law School, University of Michigan Law School
9 62 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
10 57 Property as Platform: Coordinating Standards for Technological Innovation 
Henry E. Smith
Harvard Law School

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

August 8, 2013 to October 7, 2013

RankDownloadsPaper Title
1 118 Freedom of Contracts 
Michael A. HellerHanoch Dagan
Tel Aviv University - Buchmann Faculty of Law, Columbia University - Columbia Law School
2 117 'Sticky' Arbitration Clauses?: The Use of Arbitration Clauses after Concepcion and Amex 
Christopher R. DrahozalPeter B. Rutledge
University of Georgia - School of Law, University of Kansas School of Law
3 98 A Model Litigation Finance Contract 
Maya SteinitzAbigail Field
University of Iowa - College of Law, Unaffiliated Authors - Independent
4 78 The Challenge of Boilerplate 
Robin Bradley Kar
University of Illinois at Urbana-Champaign - College of Law
5 76 Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts 
Kenneth K. Ching
Regent University - School of Law
6 62 Distributive Justice and Contract 
Aditi Bagchi
Fordham University - School of Law
7 43 Cross-Debarment: A Stakeholder Analysis 
Christopher R. Yukins
George Washington University - Law School
8 41 The Interpretation and Fairness of Standardized Terms: Certainty and Predictability Under the CESL and the CISG Compared 
Nicole Kornet
Maastricht University - European Private Law Institute (M-EPLI), Maastricht University - METRO Institute
9 37 Centripetal Force: The Law of Unjust Enrichment Restated in England and Wales 
Kit Barker
TC Beirne School of Law
10 34 Software Tools for the Visualization of Definition Networks in Legal Contracts 
Michael CurtottiEric McCreathSrinivas Sridharan
Australian National University (ANU), Australian National Univerity, University of California, San Diego (UCSD)

[JT]

October 8, 2013 in Recent Scholarship | Permalink | TrackBack (0)