ContractsProf Blog

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

A Member of the Law Professor Blogs Network

Tuesday, February 4, 2014

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 

December 6, 2013 to February 4, 2014

RankDownloadsPaper Title
1 346 Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose 
Lyman Johnson
Washington and Lee University - School of Law
2 201 Where the FCRA Meets the FDCPA: The Impact of Unfair Collection Practices on the Credit Report 
Mary Spector
Southern Methodist University - Dedman School of Law
3 163 An Economic Theory of Fiduciary Law 
Robert H. Sitkoff
Harvard Law School
4 149 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
5 127 Executive Benefits Insurance Agency V. Arkison: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? 
Elizabeth GibsonJonathan M. Landers
University of North Carolina (UNC) at Chapel Hill - School of Law, Scarola Malone & Zubatov LLP
6 110 Beyond International Commercial Arbitration? The Promise of International Commercial Mediation 
S.I. Strong
University of Missouri School of Law
7 103 Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ 
Douglas H. GinsburgJoshua D. Wright
George Mason University - School of Law, Faculty, George Mason University - School of Law, Faculty
8 99 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law
9 90 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law
10 82

Limits of Procedural Choice of Law 
S.I. Strong
University of Missouri School of Law,

 

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  
December 6, 2013 to February 4, 2014

RankDownloadsPaper Title
1 149 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
2 99 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law
3 90 Private Law: Commutative or Distributive? 
Dan Priel
York University - Osgoode Hall Law School
4 90 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law
5 75 The Two-Contract Approach to Liquidated Damages: A New Framework for Exploring the Penalty Clause Debate 
Michael Pressman
University of Southern California
6 67 Sovereign Pari Passu and the Litigators of the Lost Cause 
Joseph Cotterill
Financial Times
7 65 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub
Vermont Law School
8 64 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein
University of Chicago - Law School
9 56 Expressive Remedies in Private Law 
Andrew S. Gold
DePaul University - College of Law
10 49 Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration 
Charles W. Tyler
Yale Law School,

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

Tuesday, January 28, 2014

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 

November 29, 2013 to January 28, 2014

RankDownloadsPaper Title
1 331 Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose 
Lyman Johnson
Washington and Lee University - School of Law
2 199 Where the FCRA Meets the FDCPA: The Impact of Unfair Collection Practices on the Credit Report 
Mary Spector
Southern Methodist University - Dedman School of Law
3 153 An Economic Theory of Fiduciary Law 
Robert H. Sitkoff
Harvard Law School
4 140 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
5 124 Executive Benefits Insurance Agency V. Arkison: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? 
Elizabeth GibsonJonathan M. Landers
University of North Carolina (UNC) at Chapel Hill - School of Law, Scarola Malone & Zubatov LLP
6 104 Beyond International Commercial Arbitration? The Promise of International Commercial Mediation 
S.I. Strong
University of Missouri School of Law
7 97 Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ 
Douglas H. GinsburgJoshua D. Wright
George Mason University - School of Law, Faculty, George Mason University - School of Law, Faculty
8 93 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law
9 88 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law
10 65 Sovereign Pari Passu and the Litigators of the Lost Cause 
Joseph Cotterill
Financial Times

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

November 29, 2013 to January 28, 2014

RankDownloadsPaper Title
1 140 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
2 93 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law
3 88 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law
4 75 Private Law: Commutative or Distributive? 
Dan Priel
York University - Osgoode Hall Law School
5 65 Sovereign Pari Passu and the Litigators of the Lost Cause 
Joseph Cotterill
Financial Times
6 63 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub
Vermont Law School
7 55 Expressive Remedies in Private Law 
Andrew S. Gold
DePaul University - College of Law
8 54 Forward: Review of Baird, Eisenberg & Bix on Contract Doctrine 
Lisa Esther Bernstein
University of Chicago - Law School
9 49 Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration 
Charles W. Tyler
Yale Law School
10 48 Protecting Reliance 
Victor P. Goldberg
Columbia Law School

January 28, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, January 27, 2014

Bid Case in Indiana

Last week, we noted Michael Dorelli and Kimberly Cohen's recent article in the Indiana Law Review on developments in contracts law in Indiana.   This week, we will be summarizing some of the important cases discussed in that article.  

SchoolEast Porter County School Corporation v. Gough, Inc. is a pretty typical bid case.  Gough, Inc. (Gough) submitted a bid of around $3 million to the East Porter County School Coporation (the County) on some additions, presumably to school buildings.  Just after the deadline for the submission of bids, but likely before the bids were unsealed, Gough tried to withdraw its bid, claiming that its bid was the result of an inadvertent clerical error.  One month later, the County awarded the contract to Gough.  Gough's president notified the County that the bid was incorrect and stated that Gough would not accept the contract.  Gough returned the contract to the County unsigned.

When the County tried to enforce the contract, Gough brought suit, seeking a declaration that its bid be rescinded and its bid bond released.  The County counterclaimed, alleging breach of contract by both Gough and its bid bonding agency, Travelers Casualty and Surety Company of America (Travelers).  The trial court granted the Gough and Travelers summary judgment, citing a 1904 case that permitted excuse of a contractor's bid based on mistake.  

The law in Indiana excuses bids based on mistakes in calculation or clerical errors but not based on errors in judgment.  Gough's presidnet submitted an affidavit in which he stated that on the day that Gough submitted its bid, its total of the bids of its subcontractors and its own cost estimates came to just over $3.3 million.  "For psychological reasons," Gough wanted to get the bid below $3.3 million, but they spoke of trying to get to 299 or 2998.  They thus mistakenly wrote down a bid of $2.998 million, which they then arbitrarily cut down to $2,997,900, when they apparently intended $3,299,700.  Gough then quickly realized that the error would result in a $200,000 loss on the project, so Gough attempted to pull the bid.

The Court of Appeals found that, as a result of the error, the minds of the parties never met and the County "would obtain an unconscionable advantage" as a result of Gough's mistake.  Because Gough timely notified the County of the mistake, the County was not in any way harmed by its withdrawal of its bid.  As a result, the Court ruled that the County had no right to enforce Gough's erroneous bid, nor did Traveler's have any obligation to pay its bid bond.  

I have no problem with this result, but the "meeting of the minds" language strikes me as misplaced in this context.  Many contracts professors dislike the phrase "meeting of the minds" because it suggests that subjective agreement on terms is what is required when the test for whether or not a contract formation is objective.  Twenty bishops could attest to Gough's president's veracity and still he would be bound if a contract had actually been formed.  But here no contract was formed because the bid was withdrawn before it was accepted.  In this circumstance, courts should really only ask two questions.  First, was the bid irrevocable?  If so, Gough should bear the burden of its own mistake -- and the existence of the bond suggests that the parties have allocated the burden.  If not, the second question is whether the bid was relied upon, and it was not.  So really the case should turn on whether or not the bid was irrevocable and not on whether the parties "minds" met or on how the court categorizes Gough's mistake.

This is not to find fault with the Court in this case, which simply followed Indiana precedent.  But the case nicely illustrates the difficulties in distinguishing between clerical or calculation errors and errors of judgment.  Sure, Gough's principals made a clerical mistake reducing their bid by $330,000 when they meant to reduce it by only $30,000, but one could also argue that the decision to reduce the bid is a judgment, especially when one does so for "psychological reasons."  Once they made the decision to reduce their bid, the fact that they committed a clerical error in carrying out that judgment is epiphenomenal.  

January 27, 2014 in Commentary, Recent Cases, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 22, 2014

New in Print, Including Books

Pile of BooksRandall S. Davidson & Andrew D. Martin, Mineral Lease Division Revisited-- An Old Doctrine with New Applications, 2 LSU J. Energy L. & Resources 1 (2013)

Michael A. Dorelli & Kimberly L. Cohen, Recent Developments in Indiana Business and Contract Law, 46 Ind. L. Rev. 943 (2013) [we'll be mining this for blog fodder in the weeks to come]

Robert Downey, Edward K. Gross & Stephen T. Whelan, Leases, 68 Bus. Law. 1191 (2013)

Jennifer S. Martin, Sales, 68 Bus. Law. 1173 (2013) [more mining to do here]

And new in books

 

RiceWilly E. Rice, Contract Law: Practice, Interpretation, and Enforcement teaches common-law principles regarding the formation, interpretation and enforcement of contracts and stand-alone promises. More specifically, the casebook discusses theories of recovery, and explains the practicable application of those theories in legal complaints and answers. In addition, the casebook covers Article 2 of the Uniform Commercial Code, which governs the formation and enforcement of sale-of-goods contracts.

Most legal casebooks generally focus on the theoretical. Contract Law, however, covers legal and statutory theories as well as civil procedures, and the practice of law in everyday life. Therefore, the casebook gives first-year students valuable skills that they can use throughout their legal careers.

Contract Law is literally two textbooks in one and can be used for a full year of instruction. Therefore, it is ideal for law school courses in contracts. And, to re-emphasize, the text teaches students how to construct plaintiffs’ complaints, and defendants’ answers using common-law and UCC-related theories of recovery and affirmative defenses.

Robert D. Brain, Brain's Exam Pro on Contracts, Essay

This Exam Pro consists of essay questions actually given by Contracts professors throughout the United States. Every question contains a detailed explanation, along with analytical steps explained in easy-to-understand, basic language, and a step-by-step guide on how to analyze each major issue. Both Professor “model” answers and student “actual” answers are provided to allow students to get a feel for all the issues that could have been discussed on some questions, and what is realistic for a student to actually answer under timed conditions. The Preface includes tips on how to take essay exams. A general “List of Issues” covered on each question is provided, so the student can decide whether or not to use a particular question given the course coverage in the student’s Contracts class. Similarly, an “Index of Issues” is provided so the student can easily find all the questions that deal with a particular substantive issue which allows for repetitive testing on a troublesome issue. Each answer includes cross-references to the applicable sections of the Restatement (Second) Contracts and the Uniform Commercial Code, and citations to the more important cases in Contracts law, allowing the student to easily match the subject matter of the question to his or her outline and class discussion. Cross-references are included in every answer to relevant portions of Sum & Substance: Quick Review of Contracts, allowing for easy reference if more substantive knowledge is either needed or desired.

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

Tuesday, January 21, 2014

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 

November 22, 2013 to January 21, 2014

RankDownloadsPaper Title
1 783 The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title 
Adam J. Levitin
Georgetown University - Law Center
2 327 Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose 
Lyman Johnson
Washington and Lee University - School of Law, 
Date posted to database: November 26, 2013 
Last Revised: November 29, 2013
3 195 Where the FCRA Meets the FDCPA: The Impact of Unfair Collection Practices on the Credit Report 
Mary Spector
Southern Methodist University - Dedman School of Law
4 134 An Economic Theory of Fiduciary Law 
Robert H. Sitkoff
Harvard Law School
5 133 Protecting Consumers from Zombie-Debt Collectors 
Neil L. Sobol
Texas A&M University - School of Law
6 132 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
7 122 Executive Benefits Insurance Agency V. Arkison: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? 
Elizabeth GibsonJonathan M. Landers
University of North Carolina (UNC) at Chapel Hill - School of Law, Scarola Malone & Zubatov LLP
8 97 Beyond International Commercial Arbitration? The Promise of International Commercial Mediation 
S.I. Strong
University of Missouri School of Law
9 92 Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ 
Douglas H. GinsburgJoshua D. Wright
George Mason University - School of Law, Faculty, George Mason University - School of Law, Faculty
10 86 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law

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

November 22, 2013 to January 21, 2014

RankDownloadsPaper Title
1 132 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
2 86 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law
3 82 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law,
4 72 Private Law: Commutative or Distributive? 
Dan Priel
York University - Osgoode Hall Law School
5 64 Sovereign Pari Passu and the Litigators of the Lost Cause 
Joseph Cotterill
Financial Times
6 60 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub
Vermont Law School
7 54 Expressive Remedies in Private Law 
Andrew S. Gold
DePaul University - College of Law
8 48 Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration 
Charles W. Tyler
Yale Law School
9 46 Supreme Court on 'Works Contract': Analysis and Ramifications of 'Larsen & Toubro' Decision 
Tarun Jain
Supreme Court of India
10 46 Protecting Reliance 
Victor P. Goldberg
Columbia Law School

 

January 21, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, January 14, 2014

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 

November 15, 2013 to January 14, 2014

RankDownloadsPaper Title
1 772 The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title 
Adam J. Levitin
Georgetown University - Law Center
2 317 Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose 
Lyman Johnson
Washington and Lee University - School of Law
3 192 Where the FCRA Meets the FDCPA: The Impact of Unfair Collection Practices on the Credit Report 
Mary Spector
Southern Methodist University - Dedman School of Law
4 130 Protecting Consumers from Zombie-Debt Collectors 
Neil L. Sobol
Texas A&M University - School of Law
5 121 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
6 116 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
7 115 Executive Benefits Insurance Agency V. Arkison: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? 
Elizabeth GibsonJonathan M. Landers
University of North Carolina (UNC) at Chapel Hill - School of Law, Scarola Malone & Zubatov LLP
8 104 An Economic Theory of Fiduciary Law 
Robert H. Sitkoff
Harvard Law School
9 90 Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ 
Douglas H. GinsburgJoshua D. Wright
George Mason University - School of Law, Faculty, George Mason University - School of Law, Faculty
10 89

Beyond International Commercial Arbitration? The Promise of International Commercial Mediation 
S.I. Strong
University of Missouri School of Law

 

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

November 15, 2013 to January 14, 2014

RankDownloadsPaper Title
1 121 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
2 116 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
3 82 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law
4 74 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law
5 62 Sovereign Pari Passu and the Litigators of the Lost Cause 
Joseph Cotterill
Financial Times
6 54 Expressive Remedies in Private Law 
Andrew S. Gold
DePaul University - College of Law
7 49 Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students 
Jennifer Taub
Vermont Law School
8 48 Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration 
Charles W. Tyler
Yale Law School
9 44 Protecting Reliance 
Victor P. Goldberg
Columbia Law School
10 42 Supreme Court on 'Works Contract': Analysis and Ramifications of 'Larsen & Toubro' Decision 
Tarun Jain
Supreme Court of India

January 14, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Thursday, January 9, 2014

New in Print, Including Books

Only one article this week:

Robert W. Emerson and Uri Benoliel, Can Franchisee Associations Serve as a Substitute for Franchisee Protection Laws? 118 Penn St. L. Rev. 99 (2013)

But also a new book:

Mitchill Book

Contract Law and Contract Practice: Bridging the Gap Between Legal Reasoning and Commercial Expectation

By Catherine Mitchell

An oft-repeated assertion within contract law scholarship and cases is that a good contract law (or a good commercial contract law) will meet the needs and expectations of commercial contractors. Despite the prevalence of this statement, relatively little attention has been paid to why this should be the aim of contract law, how these 'commercial expectations' are identified and given substance, and what precise legal techniques might be adopted by courts to support the practices and expectations of business people. This book explores these neglected issues within contract law. It examines the idea of commercial expectation, identifying what expectations commercial contractors may have about the law and their business relationships (using empirical studies of contracting behaviour), and assesses the extent to which current contract law reflects these expectations. It considers whether supporting commercial expectations is a justifiable aim of the law according to three well-established theoretical approaches to contractual obligations: rights-based explanations, efficiency-based (or economic) explanations and the relational contract critique of the classical law. It explores the specific challenges presented to contract law by modern commercial relationships and the ways in which the general rules of contract law could be designed and applied in order to meet these challenges. Ultimately the book seeks to move contract law beyond a simple dichotomy between contextualist and formalist legal reasoning, to a more nuanced and responsive legal approach to the regulation of commercial agreements.

Catherine Mitchell is a Reader in Law at the University of Hull.

Please click here to view the table of contents for this book

 December 2013   308pp   Hbk   9781849461214  RSP: £50 / €65

Discount Price: £40 / €52

 Hart Publishing is delighted to offer you 20% discount.

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘CONTRACTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website: http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849461214

 Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘CONTRACTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849461214

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530 Fax Number: 01865 510 710

Website: www.hartpub.co.uk   

[JT]

January 9, 2014 in Books, Recent Scholarship, Web/Tech | Permalink | TrackBack (0)

Tuesday, January 7, 2014

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 

November 8, 2013 to January 7, 2014

RankDownloadsPaper Title
1 758 The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title 
Adam J. Levitin
Georgetown University - Law Center
2 312 Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose 
Lyman Johnson
Washington and Lee University - School of Law
3 174 Where the FCRA Meets the FDCPA: The Impact of Unfair Collection Practices on the Credit Report 
Mary Spector
Southern Methodist University - Dedman School of Law
4 129 Protecting Consumers from Zombie-Debt Collectors 
Neil L. Sobol
Texas A&M University - School of Law
5 117 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
6 116 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law,
7 113 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School,
8 108 Executive Benefits Insurance Agency V. Arkison: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? 
Elizabeth GibsonJonathan M. Landers
University of North Carolina (UNC) at Chapel Hill - School of Law, Scarola Malone & Zubatov LLP
9 80 Beyond International Commercial Arbitration? The Promise of International Commercial Mediation 
S.I. Strong
University of Missouri School of Law
10 73 Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ 
Douglas H. GinsburgJoshua D. Wright
George Mason University - School of Law, Faculty, George Mason University - School of Law, Faculty

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

November 8, 2013 to January 7, 2014

RankDownloadsPaper Title
1 117 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
2 116 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
3 113 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School
4 71 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law
5 59 Sovereign Pari Passu and the Litigators of the Lost Cause 
Joseph Cotterill
Financial Times
6 52 Expressive Remedies in Private Law 
Andrew S. Gold
DePaul University - College of Law
7 50 Promises and Expectations 
Florian EdererAlexander Stremitzer
Yale University - School of Management, UCLA School of Law,
8 44 Protecting Reliance 
Victor P. Goldberg
Columbia Law School
9 37 Supreme Court on 'Works Contract': Analysis and Ramifications of 'Larsen & Toubro' Decision 
Tarun Jain
Supreme Court of India
10 36 Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration 
Charles W. Tyler
Yale Law School

[JT]

January 7, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, December 31, 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 

October 31, 2013 to December 30, 2013

RankDownloadsPaper Title
1 747 The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title 
Adam J. Levitin
Georgetown University - Law Center
2 296 Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose 
Lyman Johnson
Washington and Lee University - School of Law
3 176 The No Reading Problem in Consumer Contract Law 
Ian AyresAlan Schwartz
Yale University - Yale Law School, Yale Law School
4 128 Protecting Consumers from Zombie-Debt Collectors 
Neil L. Sobol
Texas A&M University - School of Law,
5 117 The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages 
Jason N. E. Varuhas
University of Cambridge - Faculty of Law
6 114 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
7 106 Boilerplate: A Threat to the Rule of Law?
Margaret Jane Radin
University of Michigan Law School
8 104 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
9 86 Market Reliance and Pledged Patents 
Jorge L. Contreras
American University - Washington College of Law,
10 79 Beyond International Commercial Arbitration? the Promise of International Commercial Mediation 
S.I. Strong
University of Missouri School of Law

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

November 1, 2013 to December 31, 2013

RankDownloadsPaper Title
1 114 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
2 106 Boilerplate: A Threat to the Rule of Law?
Margaret Jane Radin
University of Michigan Law School,
3 104 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School,
4 65 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,
5 63 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law
6 58 Sovereign Pari Passu and the Litigators of the Lost Cause 
Joseph Cotterill
Financial Times
7 51 Expressive Remedies in Private Law 
Andrew S. Gold
DePaul University - College of Law
8 40 Protecting Reliance 
Victor P. Goldberg
Columbia Law School
9 33 Codification of Contract Law: Some Lessons from History 
Warren Swain
University of Queensland - T.C. Beirne School of Law
10 33 Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration 
Charles W. Tyler
Yale Law School

[JT]

December 31, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Thursday, December 26, 2013

Recent Scholarship: Steven Feldman on Brooks & Stremitzer

FeldmanFriend of the blog, Steven Feldman (pictured), has recently published his critique of Richard R.W. Brooks and Alexander Stremitzer's Remedies on and off Contract, which appeared in the Yale Law Journal in 2011.  Feldman's piece, Rescission, Restitution, and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer, appeared in the Valparaiso Law Review earlier this year.  Feldman characterizes Brooks and Stremitzer as arguing that current legal doctrine does not allow for rescission often enough and is too liberal in granting restitution.  They believe that these approaches to damages are based on an exaggerated estimate of the threat to contract stabilitiy posed by rescission.  They contend that parties would often bargain for broad rescission rights even if damages for breach were fully enforceable and costless to enforce.  Greater rights of rescission, they contend, would result in more efficient outcomes because rational parties would negotiate price to avoid breach.  

According to Feldman, Brooks and Stremitzer's argument is not based on a comprehensive survey of case law and relevant statutes.  Rather, Feldman contends, "[t]heir legal analysis consists mainly of isolated references to the U.C.C.," the CISG the Restatement (Third) of Restitution and Unjust Enrichment and the Restatement (Second) of Contracts.  By contrast, Feldman surveys case law and finds that courts follow a principle of "fair redress" that permits equitable remedies rather than rigid formulas for calculating damages.  Moreover, Brooks and Stremitzer's economic model ignores situational and relational considerations that often influence buyers' decisions to seek rescission or to breach.

Feldman's article sets out to show that existing precedent supports a status quo that adequately protects both buyers and sellers.  Based on his review of the case law and statutory authority, Feldman argues:

  • Courts are far more liberal in granting rescission than Brooks and Stremitzer suggest;
  • case law interpreting UCC Sections 2-601 and 2-608 is "decidedly "pro-buyer, allowing buyers to reject goods and to revoke acceptance, both of which are species of rescission that Brooks and Stremitzer overlook;
  • Brooks and Stremitzer ignore both federal statutes and regulations and state consumer protection laws that promote a broad right of consumer rescission;
  • the doctrine of material breach has always been a porous barrier against buyer's rescission rights;
  • merchants often allow customers to rescind in order to maintain good customer relations;
  • courts often allow buyers to rescind as an equitable remedy that accords with the principle of fair redress;
  • while Brooks and Stremitzer contend that allowing buyers to recover in restitution overcompensates them, the election of remedies doctrine generally prevents duplicate recovery for the promisee;
  • allowing both rescission and damages do not create a windfall but simply make the injured party whole; and
  • allowing redress in excess of the contract price in cases such as Boomer v. Muir, 24 P.2d 570 (Cal. Dst. Ct. App. 1933), has a sound legal, normative and economic basis.

In the concluding sections of the article, Feldman contends that Brooks and Stremitzer's approach neglects what Feldman terms "the moral imperative " that would permit recovery in excess of losses on the contract in order to protect the innocent victims of legal wrongs.  He then proceeds to attack their rational choice model by reminding readers of numerous criticisms of rational choice theory, especially of those sounding in relational contracts theory.

Feldman has undertaken a fundamental and multi-pronged critique of a very prominent article on contracts remedies that ought to be be considered by any scholar interested in Brooks and Stremitzer's model.

[JT]

December 26, 2013 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 25, 2013

New in Print, Christmas Edition

Ohansen_Viggo_-_Radosne_Boże_NarodzenieThis week's installment includes a new publication by one of our own.  Jeffrey Harrison provides an introduction to his article in a recent post.  

Shawn J. Bayern & Melvin A. Eisenberg, The Expectation Measure and Its Discontents, 2013 Mich. St. L. Rev. 1 

M. Neil Browne & Lauren Biksacky, Unconscionability and the Contingent Assumptions of Contract Theory, 2013 Mich. St. L. Rev. 211-255

Benjamin P. Cooper, Taking Rules Seriously: The Rise of Lawyer Rules as Substantive Law and the Public Policy Exception in Contract Law, 35 Cardozo L. Rev. 267 (2013) 

Jeffrey L. Harrison, A Nihilistic View of the Efficient Breach, 2013 Mich. St. L. Rev. 167

Manuel Willington, Hold up under Costly Litigation and Imperfect Courts of Law, 29 J.L. Econ. & Org. 1023 (2013)

[JT]

December 25, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, December 24, 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 

October 25, 2013 to December 24, 2013

RankDownloadsPaper Title
1 736 The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title 
Adam J. Levitin
Georgetown University - Law Center
2 293 Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose 
Lyman Johnson
Washington and Lee University - School of Law
3 208 Unconscionability in American Contract Law: A Twenty-First Century Survey 
Charles L. Knapp
University of California - UC Hastings College of the Law
4 175 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
5 174 The No Reading Problem in Consumer Contract Law 
Ian AyresAlan Schwartz
Yale University - Yale Law School, Yale Law School
6 127 Protecting Consumers from Zombie-Debt Collectors 
Neil L. Sobol
Texas A&M University - School of Law
7 113 The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages 
Jason N. E. Varuhas
University of Cambridge - Faculty of Law
8 111 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
9 105 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School
10 99 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, 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)  

October 25, 2013 to December 24, 2013

RankDownloadsPaper Title
1 207 Unconscionability in American Contract Law: A Twenty-First Century Survey 
Charles L. Knapp
University of California - UC Hastings College of the Law
2 175 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
3 111 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
4 105 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School
5 99 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
6 70 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
7 63 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
8 59 Formalizing Gratuitous and Contractual Transfers: A Situational Theory 
Adam J. Hirsch
University of San Diego
9 57 Sovereign Pari Passu and the Litigators of the Lost Cause 
Joseph Cotterill
Financial Times
10 55 The Practice of Promise and Contract 
Liam B. Murphy
New York University (NYU) - School of Law

[JT]

December 24, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, December 18, 2013

New in Print

Pile of Books
Steven M.  Davidoff & Christina M. Sautter, Lock-up Creep, 38 J. Corp. L. 681 (2013)

Christopher M. Foulds, For Whom Should the Corporation Be Sold? Diversified Investors and Efficient Breach in Omnicare v. NCS, 38 J. Corp. L. 733 (2013) 

Sean J. Griffith, The Omnipresent Specter of Omnicare, 38 J. Corp. L. 753 (2013)

Hon. J. Travis Laster, Omnicare's Silver Lining, 38 J. Corp. L. 795 (2013)

Kate Litvak, Monte Carlo Simulation of Contractual Provisions: An Application to Default Provisions in Venture Capital Limited Partnership Agreements, 98 Cornell L. Rev. 1495 (2013)

Brian J.M. Quinn, Omnicare: Coercion and the New Unocal Standard, 38 J. Corp. L. 835 (2013)

Megan W. Shaner, Revisiting Omnicare: What Does Its Status 10 Years Later Tell Us? 38 J. Corp. L. 865 (2013)

Hon. E. Norman Veasey, Ten Years after Omnicare: The Evolving Market for Deal Protection Devices, 38 J. Corp. L. 891 (2013)

[JT]

December 18, 2013 in Famous Cases, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, December 17, 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 

October 18, 2013 to December 17, 2013

RankDownloadsPaper Title
1 722 The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title 
Adam J. Levitin
Georgetown University - Law Center
2 286 Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose 
Lyman Johnson
Washington and Lee University - School of Law
3 200 Unconscionability in American Contract Law: A Twenty-First Century Survey 
Charles L. Knapp
University of California - UC Hastings College of the Law
4 171 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
5 169 The No Reading Problem in Consumer Contract Law 
Ian AyresAlan Schwartz
Yale University - Yale Law School, Yale Law School
6 114 Protecting Consumers from Zombie-Debt Collectors 
Neil L. Sobol
Texas A&M University - School of Law
7 110 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
8 107 The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages 
Jason N. E. Varuhas
University of Cambridge - Faculty of Law
9 99 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School
10 98 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law

 

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

October 18, 2013 to December 17, 2013

RankDownloadsPaper Title
1 199 Unconscionability in American Contract Law: A Twenty-First Century Survey 
Charles L. Knapp
University of California - UC Hastings College of the Law
2 171 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
3 110 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
4 99 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School
5 98 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law
6 86 The Contract Management Body of Knowledge: Understanding an Essential Tool for the Acquisition Profession 
Steven L. SchoonerNeal J Couture
George Washington University - Law School, George Washington University - Law School
7 68 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
8 62 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
9 58 Sovereign Immunity and Enforcement of Awards in International Commercial Arbitration 
Faizat Badmus-Busari
Tulane University - Law Schoo
10 58 Formalizing Gratuitous and Contractual Transfers: A Situational Theory 
Adam J. Hirsch
University of San Diego

[JT]

December 17, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Thursday, December 12, 2013

Contracts Research: The Actors and the Audience

Kareem-Abdul-Jabbar_LipofskyI happen to agree with the recent New York Times article on the usefulness of legal research.  As many will recall, the basic idea was that a great deal of what is published is only that -- it exists in print and is largely unread or impractical. Part of the problem is that writing is a bit like hazing. Young people must do it to join the fraternity even if they have little new to say.  Another problem is the actor and audience problem. Law professors appear are both. As writers they are the actors and as readers they are the audience  -- the only audience. So they  play their part and then rush back to the audience to applaud the "acts" of  others. In these instances the work may be so theoretical that it is only of interest to very few, if any,  and perhaps useful to no one at all. This is related to or the same as  the skyhook problem as described by Monroe Freedman. As I understand it,  work that is too theoretical and too burdened by assumptions is comparable to engineers talking about the impossible.  Monroe H. Freedman, A Critique of Philosophizing About Lawyers' Ethics," 25 Geo. J. Legal Ethics 91 (2012).

That was how an Article by Daniel Markovits and Alan Schwartz, "The Myth of the Efficient Breach: New Defenses of the Expectancy Interest," 97 Va. L. Rev. 1939 (2011), struck me.  Why write anything further about the efficient breach?  Of course, as always the joke was on me. I immediately set out to write yet another article about efficient breach which essentially says it does not exist, and Markovits and Schwartz are covering ground that is in large part both old and irrelevant. And with that I became the actor, the audience, and an actor acting out the roles of the actor an audience. I think this means my article, "A Nihilistic View of the Efficient Breach" 2013 Mich St.L. Rev. 167 , was a skyhook for skyhooks. If any of this interest to you and I hope not. Here is the link.

I realized why we do much of our writing. It's fun and we are addicted to ideas. It's a pretty good job! But are we at times too self indulgent?

Jeff "Jake" Harrison

December 12, 2013 in Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 11, 2013

New in Print

Pile of BooksJennifer Camero, Zombieland: Seeking Refuge from the Statute of Frauds in Contracts for the Sale of Services or Goods, 82 UMKC L. Rev. 1 (2013)

James B. Helmer, Jr., False Claims Act: Incentivizing Integrity for 150 Years for Rogues, Privateers, Parasites and Patriots, 81 U. Cin. L. Rev. 1261 (2013)

Alan S. Kaplinsky & Mark J. Levin, Consumer Financial Services Azrbitration: What Does the Future Hold after Concepcion? 8 J. Bus. & Tech. L. 345 (2013) 

Nicole F. Munro & Peter L. Cockrell, Drafting Arbitration Agreements: A Practitioner's Guide for Consumer Credit Contracts, 8 J. Bus. & Tech. L. 363 (2013)

Alexander A. Reinert & Lumen N. Mulligan, Asking the First Question: Reframing Bivens after Minneci, 90 Wash. U. L. Rev. 1473 (2013)

[JT]

December 11, 2013 in Government Contracting, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, December 10, 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 

October 11, 2013 to December 10, 2013

RankDownloadsPaper Title
1 669 The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title 
Adam J. Levitin
Georgetown University - Law Center,
2 190 Unconscionability in American Contract Law: A Twenty-First Century Survey 
Charles L. Knapp
University of California - UC Hastings College of the Law
3 167 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
4 163 The No Reading Problem in Consumer Contract Law 
Ian AyresAlan Schwartz
Yale University - Yale Law School, Yale Law School
5 112 Protecting Consumers from Zombie-Debt Collectors 
Neil L. Sobol
Texas A&M University - School of Law
6 108 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
7 104 The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages 
Jason N. E. Varuhas
University of Cambridge - Faculty of Law
8 97 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School
9 97 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law
10 81 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)  

October 11, 2013 to December 10, 2013

RankDownloadsPaper Title
1 190 Unconscionability in American Contract Law: A Twenty-First Century Survey 
Charles L. Knapp
University of California - UC Hastings College of the Law,
2 167 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law,
3 108 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
4 97 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School
5 97 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law
6 65 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
7 62 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
8 58 Formalizing Gratuitous and Contractual Transfers: A Situational Theory 
Adam J. Hirsch
University of San Diego
9 55 Sovereign Immunity and Enforcement of Awards in International Commercial Arbitration 
Faizat Badmus-Busari
Tulane University - Law School
Last Revised: October 25, 2013
10 48 An Experimental Test of the Effectiveness of Terms & Conditions 
Zev J. Eigen
Northwestern University School of Law

[JT]

December 10, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Thursday, December 5, 2013

New in Print

Pile of BooksAndreas Abegg, The Legitimacy of the Contracting State, 76 Law & Contemp. Probs. 139 (2013)

Marc Amstutz, Contract Collisions: An Evolutionary Perspective on Contractual Networks, 76 Law & Contemp. Probs. 169 (2013)

Alexis J. Bernstein, Price Realism Analysis in Fixed-Price Contracting: Improving the Evaluation Process, 42 Pub. Cont. L.J. 793 (2013)

Eli Bukspan, Trust and the Triangle Expectation Model in Twenty-First Century Contract Law, 11 DePaul Bus. & Com. L.J. 379 (2013)

Hugh Collins, The Vanishing Freedom to Choose a Contractual Partner, 76 Law & Contemp. Probs. 71 (2013)

Hanoch Dagan, Autonomy, Pluralism, and Contract Law Theory, 76 Law & Contemp. Probs. 19 (2013)

Pasquale Femia, Desire for Text: Bridling the Divisional Strategy of Contract. 76 Law & Contemp. Probs. 151-168 (2013)

Veronica J. Finkelstein, Dollars and Horse Sense: Why Prudent Buyers and Sellers Should Account for Article 2 of the Uniform Commercial Code in Their Equine Sales Contracts, 5 Ky. J. Equine, Agri., & Nat. Resources L. 181 (2012-2013)

Daniel P. Graham, et al., Federal Circuit Year-in-Review 2012: Guarding the Gates of Government Contracts Litigation, 42 Pub. Cont. L.J. 695 (2013)

Thomas Gutmann, Some Preliminary Remarks on a Liberal Theory of Contract, 76 Law & Contemp. Probs. 39 (2013)

Lorenz Kahler, Contract-Management Duties as a New Regulatory Device, 76 Law & Contemp. Probs. 89 (2013)

Bertram Lomfeld, Contract as Deliberation, 76 Law & Contemp. Probs. 1 (2013) 

Michael Ian Morrison, The Acquisition Supply Chain and the Security of Government Information Technology Purchases, 42 Pub. Cont. L.J. 749 (2013)

Douglas R. Richmond, The Consent Judgment Quandary of Insurance Law, 48 Tort Trial & Ins. Prac. L.J. 537 (2013)

Florian Rodl, Contractual Freedom, Contractual Justice, and Contract Law (Theory), 76 Law & Contemp. Probs. 57  (2013) 

Alessandro Somma, Private Law as Biopolitics: Ordoliberalism, Cocial Market Economy, and the Public Dimension of Contract, 76 Law & Contemp. Probs. 105 (2013)

Dan Wielsch, Relational Justice, 76 Law & Contemp. Probs. 191 (2013) 

Peer Zumbansen, Transnational Private Regulatory Governance: Ambiguities of Public Authority and Private Power, 76 Law & Contemp. Probs. 117 (2013)

[JT] 

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

Wednesday, December 4, 2013

Unconscionability Shui

RatUnconscionability and the Contingent Assumptions of Contract Theory, 2013 Mich. St. L. Rev. 211  (2013), by Dr. M. Neil Browne and Lauren Biksacky, argues that basic assumptions of liberal contract theory – for example, that contracts are made by rational and informed parties – don’t hold. Therefore, courts should find more contracts unconscionable.

This short article would be a nice primer for law students on basic liberal contract theory, especially in conjunction with some Judge Posner readings. The authors argue that people often yield to irrational motives. They get in bar fights. They have road rage. They buy books on feng shui. Judge Posner might respond that the human rationality economists speak of is that of pigeons or rats, not angels. Dr. Browne, himself an economist, seems to take exception to that conception of human beings.

The article argues courts can do better than simply making people keep their ratty promises. Courts can allow people to be their best, most-informed selves by invalidating “irrational” promises made under distorting influences like advertising and cognitive biases. Courts can and should step in like adults over wayward children and guide them toward eudaimonia.

Yet the article notes that despite research showing people are often irrational and ill-informed, courts are not finding more contracts unconscionable. Why? The article doesn’t answer, but the reason is probably that to do so seems unworkable. If human irrationality were grounds for invalidating a contract, how many contracts would be secure? The law tends to be a great guardian of the status quo, and apparently some people like books about feng shui.

[Kenneth Ching]

[Image by Vicky TGAW]

December 4, 2013 in Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 3, 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 

October 4, 2013 to December 3, 2013

RankDownloadsPaper Title
1 586 The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title 
Adam J. Levitin
Georgetown University - Law Center
2 185 Unconscionability in American Contract Law: A Twenty-First Century Survey 
Charles L. Knapp
University of California - UC Hastings College of the Law
3 161 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law
4 146 The No Reading Problem in Consumer Contract Law 
Ian AyresAlan Schwartz
Yale University - Yale Law School, Yale Law School
5 103 The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages 
Jason N. E. Varuhas
University of Cambridge - Faculty of Law
6 98 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
7 95 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law
8 92 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School
9 80 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
10 74 Protecting Consumers from Zombie-Debt Collectors 
Neil L. Sobol
Texas A&M University - School of Law

 

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

October 4, 2013 to December 3, 2013

RankDownloadsPaper Title
1 185 Unconscionability in American Contract Law: A Twenty-First Century Survey 
Charles L. Knapp
University of California - UC Hastings College of the Law
2 161 Contract Law and Theory -- Three Views of the Cathedral 
Eyal Zamir
Hebrew University of Jerusalem - Faculty of Law,
3 98 Deutsche Bank and the Use of Promises in Islamic Finance Contracts 
Jon M. TrubyKarim Ginena
Hamad Bin Khalifa University, Qatar University - College of Law
4 95 Contract and Property Law: Distinct, but not Separate 
Sjef van Erp
Maastricht European Private Law Institute, University of Maastricht - Faculty of Law
5 92 Boilerplate: A Threat to the Rule of Law? 
Margaret Jane Radin
University of Michigan Law School
6 64 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,
7 60 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
8 57 Formalizing Gratuitous and Contractual Transfers: A Situational Theory 
Adam J. Hirsch
University of San Diego
9 52 Sovereign Immunity and Enforcement of Awards in International Commercial Arbitration 
Faizat Badmus-Busari
Tulane University - Law School
10 47 An Experimental Test of the Effectiveness of Terms & Conditions 
Zev J. Eigen
Northwestern University School of Law

[JT]

December 3, 2013 in Recent Scholarship | Permalink | TrackBack (0)