January 17, 2013
Teaching Sales, Issue 3: Distribution Agreements
Whether or not distributorship agreements should be covered under UCC Article 2 as contracts for the sale of goods seems to be a case very similar to that of software contracts. That is, some courts assume that such contracts are covered under Article 2 without looking very carefully to see whether the contract is predominantly one for the sale of goods. In the case of software contracts, as discussed yesterday, if the transactions are really about licenses, the assumption that Article 2 applies is not warranted unless the parties have stipulated that they want their agreement to be governed by Article 2, and according to this very helpful comment, they usually stipulate that they do not want the agreement to be governed by Article 2.
A distribution agreement is more likely to involve the sale of goods, and so it is more like the mixed contracts that we talked about on Tuesday. That is, a distributorship agreement will often entail both a service agreement and an agreement for the sale of goods. If so, then the court should analyze the contract under either the predominant purpose test or the gravamen of the action test as discussed in Tuesday's post, depending on the jurisdiction. But it seems that some courts do not do that, either mistaking precedents in which distributorship agreements are treated as governed by Article 2 as establishing a blanket rule or preferring a bright line rule in which all distributorships are governed by Article 2.
January 16, 2013
Teaching Sales, Issue 2: When Is Software a Good and What of the Cloud?
This is the second in a series of posts on issues that arise in a Sales course.
As Holly K. Towle lays it out in, Enough Already: It Is Time to Acknowledge that UCC Article 2 Does not Apply to Software and Other Information, 52 S. Tex. L. Rev. 531 (2011), many courts simply apply Article 2 to software licenses without much consideration of the law of licenses Others apply the law of licenses, which she thinks is appropriate. Her approach makes sense when we're talking about mass-marketed software provided to consumers through licenses. In fact, courts ought to take notice of the fact that all U.S. jursdictions have now clarified the status of software as a "general intangible" and not a good through the revisions to UCC Article 9 adopted in all fifty states.
But what of custom-made software that may not be licensed but sold to the client who will be its exclusive user? My impression from the limited caselaw I have reviewed on the subject suggests that courts recognized early on that software consists of both tangible and intangible elements. They seem to have assumed that the intangible elements (the services provided in developing software, for example) could be easily separated from the tangible elements (the disks, drives or hardware associated with the delivery of the software). On this line of reasoning, only the latter are goods. That distinction strikes me as artificial. Unless the deal involves a lot of hardware, the cost of the "goods" is trivial compared to the costs of software development, and in fact, with digital downloads and cloud computing, there may not be a good at issue at all. That is, my office used to be cluttered with the boxes that held the disks on which my software came to me. I may have naively thought of software as a good then because those boxes made software look like a good. Now, my software either comes pre-loaded or I download it without the aid of a disk or external drive. Now it looks much less good-like, but of course, how it looks should not matter.
Towle draws on IP law to argue that software is really "information" and information ought to be treated differently from tangible goods. I'm not sure I understand why that distinction matters if we are dealing with a sale rather than a license. A lot of things that we consider goods are really just information, in the sense that Towle uses it. Books are just information, but a sale of books is a sale of goods (although she is correct that you cannot return a lousy novel based on a breach of the implied warranty of merchantability). There are lots of other items that we buy about which is could be said that the costs of development constitute a large part of the costs of the good, but the UCC does not ask about cost breakdowns; it just asks if the subject of the transaction is moveable at the time that it is identified to the contract. Electricity has been held to be a good because it moves. So does information. More particularly, custom-made software, White & Summers point out, does not really seem much different from any other specially-manufactured good, which the UCC treats as a good for the purposes of Article 2.
I recommend Towle's article. She has persuaded me that courts err in trying to apply Article 2 to software licensing transactions, but when it comes to custom-designed software that is actually sold, rather than licensed, to the end user, I think a strong case can be made for applying Article 2.
I do not know if the software design companies agree to flat out sell the software they develop. It might be safer for them to license it so that they can re-use the code for other businesses that might need similar software designed for their specific needs. If that's the way these deals are done, it follows from Towle's reasoning that licensing law, rather than Article 2 should apply to those transactions as well.
January 15, 2013
Teaching Sales, Issue 1: Mixed Contracts Under the UCC
As indicated in Monday's post, I am teaching Sales for the first time this semester, and this is the first in what I hope will be a series of posts in which I highlight but do not resolve tricky issues addressed in the course.
The situation is quite common. A contract involves the provision of both services and goods: a construction contract covers both building supplies and labor costs; a medical contract covers both the costs of the surgery and the prosthetic device to be inserted in toto the body; a software company will both design and maintain the software, while also providing computer hardware to run it. Are these transactions covered under Article 2?
Most courts seem to favor a version of the "predominant purpose" test, although it goes by various names. In such cases, the court's analysis aims to determine whether the contract is predominantly one for goods or one for services. But what does it mean to have services of goods predominate? It could mean that the parties thought of the contract as one for good or as one for services, in which case the inquiry will largely turn on the parties' testimony, although if the contract is named "Sercies Agreement" or "Purchase Agreement" that might help. Or the court might have to look to which component counted for a larger portion of the contract price.
Contracts scholar and FOB (Friend of the Blog) Steven Feldman (pictured) has provided a more detailed account of the predominant purpose test including a list of factors that courts (in his example in Tennessee) weigh in appyling that test:
Where a contract has a mix of goods and services, relevant criteria for determining whether the UCC will control a contract will include the contract language, the nature of the seller's business, the reason for entering the contract, and the amounts charged under the contract for the goods and services.
Fleet Business Credit, LLC v. Grindstaff, Inc., 2008 WL 2579231 (Tenn. Ct. App. 2008). But the fact that the test is multi-factor and nuanced only renders it more problemmatic in my view, on which more below.
Other courts use the gravamen of the action test. They look not to what the contract as a whole was about but to whether the issues in the case relate to faulty service or faulty goods. So, for example, I am using the Whaley & McJohn casebook on sales, which includes a Maryland case about a faulty diving board installed as part of the installation of an in-ground pool. The case related not to the installation of the pool but to the design of the board, which was slippery on the end. The court applied the gravamen of the action test and found that the UCC applied.
The gravamen of the action test seems right to me, and I'm surprised that more states have not adopted it. Predominant purpose is vague and hard to apply, and it seems artibtrary that whether or not a contractor's work should be covered on a warranty should turn on whether 45% of 55% of the cost was related to the provision of goods. Moreover, the fact that a party sold a good as part of a services contract should not affect the warranties that run with the sale of a good. And on the other side, if there was a failure in the services provided in connection with a provision of goods, then the warranties that relate to the goods should not be relevant in an assessment of whether or not the service provider was at fault.
The gravamen rule also seems better to me in terms of putting the parties on notice of potential liabilities in store. Faced with a multi-factor test like the predominant purpose test, parties to mixed contracts cannot know in advance whether their contract will be governed by the UCC or not. If the gravamen rule applies, parties should always know that the UCC will apply to the goods portion of the contract. And if a service provider wants to protect itself from liability relating to the goods it installs, that legal certainty can be very valuable.
January 14, 2013
I am teaching Sales this semester for the first time. It's pretty exciting actually. I expect to be posting a lot of issues that are new to me since I've never covered the material before. I have not read widely in the area, so there are probably answers out there to my questions, but I don't have time to research them all. Or sometimes I suspect there will not be clear answers. In either case, I invite contracts scholars and practitioners to weigh in with references to relevant cases or scholarship or with opinions.
- When should mixed contracts be treated as contracts for the sale of goods: predominant purpose v. gravamen of the action test?
- When is a contract relating to software a contract for the sale of goods and does the emergence of the cloud change our perspective on the issue?
- Why should a distribution agreement be treated as a contract for the sale of goods?
December 14, 2012
Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
The title of this post references Richard Arum and Josipa Roksa's influential 2011 book, Academically Adrift: Limited Learning on College Campuses. For the sake of argument, let's assume that this book accurately reflects the state of higher education. That is, let us assume the following:
- Undergraduates attending U.S. colleges and universities report that learning is not their top priority;
- Students make alarmingly little academic progress, especially in terms of critical thinking, complex reasoning and writing, during their four years of undergraduate education;
- The gap between students who get a lot out of their undergraduate educations and those who get little is at least persistent and perhaps growing;
In addition, let us adopt the hypothesis that our students are not adults, but emerging adults. That is, let us assume that our students are not fully formed, cognitively or emotionally. They are beginning to accept the responsibiltiies of adulthood, but they are not really there yet.
For those of you who have been following this series of posts, the answer might not be surprising. Students are not learning the skills that a liberal arts education used to provide. One way to make certain that they develop those skills is by providing a liberal arts education in law school. It would not be a traditional liberal arts education but a liberal arts education designed to meet the needs of twenty-somethings rather than teens, and clearly oriented towards arriving at practical, professional goals. As I suggested before, for most law schools, the model should be small, cloistered liberal arts education, at least in the first year, rather than the research university model. In some ways, designing this curriculum is easy and a lot of fun, because we already know what our students want to do career-wise. We don't have to design a one-size, fits-all curriculum that would be appropriate for both English majors and engineers and everything in between. Whether our law students are English majors or engineers, they still need the same package of professional skills necessary for the legal profession.
While tuition pressures and student impatience and immaturity are pushing reform towards a shorter law school curriculum, our students really need a longer and more intense learning experience in law school. Most but not all law schools would benefit from a first year designed to get students' critical thinking, complex reasoning and writing skills to the level that, twenty years ago, was presumptively already achieved after college. That means they need to take a lot of small, writing-intensive courses while also learning professional skills and training for an ethically challenging, client-centered practice.
Finding a way to deliver such an education without greatly increasing our students' debt-load is of course the great challenge. One option would be to create a hybrid model in which the first two years of legal education focus on the sort of liberal arts cognitive and ethical skills development that I discussed above, combined with the sort of integrated doctrinal education that has been subject of previous posts. The second two years (yes, the second two years) should be underwritten by prospective employers who work collaboratively with law schools to develop a curriculum that is part apprenticeship, part law clinic and part bar preparation. So, while law school now takes four years, students only pay for two of them, with the firms or businesses covering remaining tuition costs in lieu of salaries for their apprentices. In principle, all four years of such a legal education could be rewarding and challenging for the students, and they would emerge far better prepared for practice that they are under the current system.
This is just one idea for addressing our students' needs, if in fact the assumptions that inform this design are accurate. I am agnostic on the question of whether undergraduates really are academically adrift and are emerging rather than fully matured adults. Like everyone in the academy, I have my own views, but I admit that they are anecdotal and unscientific. I have chosen these assumptions because they seem to be informing a lot of the ideas for change that are driving the movement for curricular reform at law schools today. But I think there is a disconnect between the problem and the solution.
Law schools are playing a game of "Can You Top This?" by touting their clinical and skills training programs, because that seems to be what the students and the market are demanding. But if students lack basic cognitive skills, as well as maturity, what is the rush to get them into practice? We all need to slow down. If the assumptions listed above are informing calls for change, we need to wait for our students to become adults before we force them to deal with adult problems. We can't expect them to magically develop critical thinking, complex reasoning and writing skills by simply throwing them into practice. We also should not give up on their cognitive development because, if the emerging adulthood literature is right, our students are still capable of intellectual growth of a kind that our adult brains cannot match.
As educators, our main concern is providing our students with the training they need so that they can succeed in the profession of their choosing. But as legal educators, we also have to consider the needs of our students' future clients. The fact that our students want to serve clients as soon as possible is not a sufficient reason to let them do so before they are ready both in terms of their cognitive development and their maturity.
I should add that my thoughts in this area have been influenced by the work of two of my colleagues, Susan Stuart (right) and Ruth Vance (left), who are engaged in a scholarly project devoted to working out the long-term consequences for legal education of the latest research into the preparedness and cognitive development of the current generation of law students. My thoughts here only scratch the surface of the subject matter. And those interested in the topic should look for Ruth and Susan's work, which we all hope will be coming to a law journal near you in the near future.
December 13, 2012
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
As I have mentioned in previous posts. one way to make it possible to integrate real, concentrated skills training across the curriculum without hiring a score of new legal writing and skills training instructors is to have doctrinal faculty and legal writing and skills training faculty work with doctrinal faculty to build a coordinated curriculum. I think a consequence of this decision would have to be the eventual development of custom-made teaching materials and the rejection of traditional, subject-based casebooks. My own experience in putting together my own materials for many of the courses I teach is that one can save the students 70-80% of the costs associated with buying course materials by simply putting together materials using legal materials in the pubic domain and exercises of one's own design.
This is a difficult task, and as the third post in this series suggested, part of the costs of such change would be those of re-training a faculty hired to teach a traditional curriculum so that they could become effective teachers of an integrated curriculum. But there is another potential problem. What of academic freedom? What if the faculty members don't want to change?
One option would be the whipping post and the pillory (pictured).
According to the AAUP Statement of Principles on Academic Freedom, instructors are "entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject." Read broadly, as I believe it should be, this means that an instructors' determination about how best to deliver her material to her students need not bow to an institutional curriculum with which she does not agree. The reason for this braod construction of academic freedom is that, if tenured faculty could be disciplined or terminated for not teaching in a certain way, their perceived departure from institutional pedagogical norms could become the purported grounds for a termination that is in fact motivated by other, impermissible considerations, such as political views, dogged opposition to the law school or university administration, age, race, sexual preference, etc. A new curriculum cannot become the means by which the law school rids itself of inconvenient colleagues.
Ideally, with adequate faculty vetting, discussion, participation and buy-in, the transition from a traditional curriculum to an integrated curriculum could go smoothly. In many institutions that attempt to transformation, however, the transition to a new curriculum will likely have to take place slowly, perhaps piece-meal. If only the torts professors are willing to coordinate with the legal writing and skills training programs, then only that part of the curriculum will be coordinated. If the program is clearly a success and the students clamor for greater integration, then perhaps the more recalcitrant professors can slowly be won over.
December 12, 2012
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Brian Tamanaha (pictured).
I admit that I have not read Professor Tamanaha's book cover-to-cover, but I've read a number of his blog posts and a lot of commentary about his book, so I think I have a fairly good handle on his main points and without endorsing the book in its entirety, I think that much of what he says in Failing Law Schools is relevant to on-going discussions on curricular reform. That is, I agree with Tamanaha's argument (as I understand it) to the extent that he faults law schools for modeling themsevles on research universities in which faculty members are rewarded for high-profile, cutting-edge research with reduced administrative responsibilities and lighter teaching loads.
But, as I argued in a previous post, the solution is not to turn the clock back to a pre-Langdellian era in which law schools were simply glorified apprenticeships, and instructors were practitioners who taught part-time. Instead, some law schools should models themselves not on great research universities but on great liberal arts colleges. The professors at great liberal arts colleges engage in scholarly research, often at a very high level, but their primary allegience is to their own community.
When I was a doctoral student, I was befriended by an emeritus professor who had taught at that institution for nearly seventy years. He was a historian of international reknown in his field. He had also chaired the department, been actively engaged in university administration and was the first chair of the Ivy League athletic eligibility committee. In addition, he had served for thirty-two years as the Mayor of the small town abutting the university.
When I came to know him, he was at work on a history of the university. He told me that the most important change that he had experienced during his career, which spanned most of the 20th century, was that the department had changed from one in which what mattered most was the esteem in which one was held by one's colleagues and students to one in which what mattered most was the esteem in which one was held by professors at other universities. The change saddened him. It diminished the place's sense of itself as a community defined by a spirit of collegiality and common purpose.
I would like to see some law schools abandon the hope of being imitatio Harvards in favor of becoming imitatio Haverfords (or Oberlins or Grinnells, etc.). Moreover, such a change is what our students need. Increasingly, our students come to us without the benefit of a traditional liberal arts education that prepares them for the challenges of legal practice. Legal education needs to provide that grounding in basic reasoning, professional development, and writing skills before we throw them into the world of practice.
Unfortunately, it is not what our students want, or at least I don't think it is what they want. Like a lot of law professors, I introduce a lot of theoretical and interdisciplinary perspectives into my courses. This time of year, when students finally avail themselves of my office hours, they often ask whether "any of that theory that we talked about in class" will be covered on the exam. They clearly hope that the answer will be no, and when the answer is yes, I can almost see them doing the mental calculation to try to deremine how well they will have to do on the rest of the exam to make up for their complete inability or unwillingness to wrestle with what seems terribly impractical to them. They shouldn't worry, since I grade on a curve and they are mostly in the same boat.
Many law students come from unsatisfying experiences in the world of work. It is completely understandable if their attitude is, "Look, I got a college degree, and it didn't qualify me to have a career. I came to law school to learn practical skills, not to waste more tuition dollars on 'academics.'"
It is understandable that they think that, but in many cases, students were not able to find satisfying work before law school because they lack the cognitive abilities, reasoning and writing skills that they would need to succeed. And they won't succeed after law school without those abiliites skills either.
And so, I still believe that law professors need to be teacher/scholars, actively engaged in scholarship and in the lives of their communities and in their students' intellectual development. 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.
In addition, as I have noted in a different context, I think our students need to be part of the academic enterprise. The very best training I received in my law school happened at my journal, when I first engaged in meaningful research, not of my own choosing, with something (albeit just the sources for claims made in law review articles) at stake.
December 11, 2012
Thoughts On Curricular Reform III: The Costs of Change
Some of my colleagues think that the costs of change pale in comparaison to the costs of carrying on as if nothing has changed in the legal profession. "Change or die," or something like that, is the slogan. If those are my only options, then change it is!
Actually, even if our backs are not exactly up against the wall, it is certainly healthy for law schools to think in a fundamental way about what it is we are doing. Are we serving our students well? Are we serving the legal profession well? Are we serving the consumers of legal services well? Where does legal scholarship fit in with the overall mission of legal education? It is possible to get intp a professional groove that can then develop into a rut. In the process, one can lose sight of these questions.
That said, carrying out the sorts of reforms that the Carnegie Report has called for in the current economic climate raises certain challenges. Reformers almost universally call for more of an emphasis on practical skills training in law schools and for a reduction in the costs of legal education. It is hard to imagine how to do both simultaneously. Skills training is simply more expensive than doctrinal teaching. It is hard to do legal writing courses well when the class size exceeds 25, and really class sizes around 15 are optimal. Few law schools have the resources to achieve that sort of faculty/student ratio in all legal writing courses. Law clinics should have no more than ten students per faculty member.
One could cut the costs of law schools by relying more on adjuncts or even on lawyers who might volunteer to oversee extended externships and apprenticeship programs. One could rely more on online education. But these solutions might impose unacceptable costs in terms of the quality of legal education. In order for legal education to progress, we should develop a post-Langdellian model, rather than revert to pedagogical practices abandoned with good reason at the turn of the 20th century.
The other cost of change has to do with use of faculty resources to best advantage. A law school that hired faculty members based on one model of legal education must consider the serious challenges the school must overcome in order to use the same faculty to deliver a completely different currciulum. It may be necessary to re-train the faculty to teach a different way, but training might not help if the faculty members do not entirely buy in to the need for fundamental change.
At our law school, we are exploring teaching skills across the curriculum as a way to introduce skills training into doctrinal courses without have to hire twenty new faculty members. In a previous post, I suggested that this might require us to jettison existing course materials, because the approach entails coordination of instruction across courses. Lawyering exercises are to be designed that will relate to what is being taught in multiple doctrinal courses, and instructors in those courses will be involved in simulations, problems, and other forms of assesment. The burdens of actually doing the assessment, actually giving feedback to students, would presumably be more evenly distributed that they currently are, among doctrinal and skills instructors.
As the comments on the last post in this series suggested, there are already casebooks designed to address the recommendations of the Carnegie Report. But if the aim is not only the integration of skills and ethical lawyering training into doctrinal courses but also the coordination of doctinal courses with a lawyering program, existing course materials may not be up to the task, because existing course materials are still designed with traditional doctrinal divisions (contracts, civil procedure, torts, property, criminal law, etc.) in mind and may not integrate (for example) exercises in contracts and civil procedure or torts and property. And if the aim is to structure the learning environment in a way that makes sense across the curriculum, that is hard to do in the traditional law school environment in which each faculty members develops her course in splendid isolation.
December 10, 2012
Thoughts on Curricular Reform II: Teaching Materials
The 2007 Carnegie Report on Legal Education recommends that law schools do more to integrate the components of legal education.
Recommendation #1 ("Offer an Integrated Curriculum") from the executive summary of the Carnegie Report reads as follows:
To build on their strengths and address their shortcomings, law schools should offer an integrated, three-part curriculum: (1) the teaching of legal doctrine and analysis, which provides the basis for professional growth; (2) introduction to the several facets of practice included under the rubric of lawyering, leading to acting with responsibility for clients; and (3) exploration and assumption of the identity, values and dispositions consonant with the fundamental purposes of the legal profession. Integrating the three parts of legal education would better prepare students for the varied demands of professional legal work. In order to produce such integrative results in students’ learning, however, the faculty who teach in the several areas of the legal curriculum must first communicate with and learn from each other.
Recommendation #2 ("Join 'Lawyering,' Professionalism and Legal Analysis from the Start") is similar:
The existing common core of legal education needs to be expanded to provide students substantial experience with practice as well as opportunities to wrestle with the issues of professionalism. Further, and building on the work already underway in several law schools, the teaching of legal analysis, while remaining central, should not stand alone as it does in so many schools. The teaching of legal doctrine needs to be fully integrated into the curriculum. It should extend beyond case-dialogue courses to become part of learning to “think like a lawyer” in practice settings.
All of this suggests that curricular reform needs to start in the first year and that we need to re-design our first- year courses in coordination with our colleagues who teach legal skills courses such as legal writing, legal research and drafting courses.
So, how does one design a contracts course that can address these recommendations? Certainly casebook authors can defend their offerings as including practical exercises that supplement the study of case law with modes of learning that come closer to mimicking law practice than does the traditional case method. But it is difficult to work through those exercises effectively in the large-class settings that typifies the first-year experience. If you have 70-100 contracts students, you cannot readily sit down with them individually or in small groups to discuss their approach to problem sets or their attempts to negotiate a deal.
One way to bring more skills training into the first year is to integrate doctrinal courses and skills training courses. Drafting, negotiating, mediating, client interviewing exercises that are part of a lawyering program can be coordinated so as to relate to the subject matters of the first-year courses that are being taught at the same time. But that means that the lawyering projects have to have issues that are relevant to what is being taught at the same time in (say) contract and civil procedure or to criminal law and property.
If one is going to go this route, it seems to me, each law school is going to have to generate its own teaching materials. In the alternative, teams of legal scholars can create integrated curricular materials that they can then sell to law schools for adoption. Or perhaps a little of both. Perhaps a law school can develop a first-year curriculum for its students, and if it seems effective, it can then sell a license to other law schools to use the materials for their students.
In any case, it seems to me that existing casebooks are inadequate to meet the need for a fundamental rethinking of our approach to legal education. Mind you, I write all this as someone who is not fully on board with the Carnegie Report's recommendations; that is, as someone who, as I wrote in the first post on this subject, is actually quite satisfied that versions of the case method can be effective in the first year. But if legal educators are going to heed the call for fundamental reforms, we have to acknowledge that our current teaching materials are not up to the task.
December 07, 2012
Thoughts on Curricular Reform I: The Problem
My law school, like many others, is in the throes of curricular reform. I would like to share with our readership some ruminations on the experience in a series of posts. Very little of what follows is specific to my law school's process. That process is on-going and I cannot write with any specificity about what changes we are planning to adopt, as we have yet to come to firm conclusions.
Less than ten years into teaching, I am already something of a dinosaur. I have previously published a limited defense of the case method and the Socratic method (a lengthier version is still available on SSRN). I still believe that a flexible, soft Socratic approach to teaching can be very effective for contemporary law students, especially if supplemented by mini lectures and problems. However, after eighteen months of work with our curriculum committee, I am persuaded that many within the legal academy are prepared to jettison the Langdellian heritage in favor of more hands-on teaching methods.
Like most academics, and probably like most people, I am confident that my own method for doing what I do is a good one. Unfortunately, there is no reliable empirical evidence to demonstrate the effectiveness of my teaching method over others. We have not undertaken a systematic study to determine whose contracts students go on to pass the bar at the highest rates or whose contracts students are most likely to be successful transactional lawyers or commercial litigators. My students respond well to my approach to law teaching (to judge by my student evaluations, which is the best evidence I've got, faulty though it is), and they seem to master the concepts that we cover in my contracts course as well as they ever have (to judge by steady medians on the multiple-choice portions of my exam). But I am willing to entertain the hypothesis that they could do better through other methods, and I believe I have a professional obligation to experiment responsibly to try to discover what works best for today's law students.
My colleagues have shared with me a substantial body of empirical work that suggests that our current students do not study or learn through the same methods that I used when I was a law student. The current generation also arrives at law school less well-prepared in precisely the cognitive areas in which legal studies make the most rigorous demands. I am not entirely persuaded that the science on which these conclusions are based is entirely reliable, but I am willing to set aside my skepticism for the sake of the thought experiment of trying to devise a curriculum that would meet our students where they are.
In future posts, I hope to consider the following subjects:
- The impact of curricular reform on teaching materials: is this the death of casebooks?
- The costs of moving to a more skills-based curriculum
- The balance of teaching and scholarship in the 21st-century law school
- Coordinating teaching strategies with colleagues while preseving academic freedom
- Balancing meeting students where they are, in terms of maturity and development of cognitive abilities, with pushing students so that they can adapt to challenging professional environments
November 05, 2012
Contracts Limerick of the Week: Special Guest Poet, Chris Osborn
This week we have a guest blogger, Chris Osborn (pictured), a relative newcomer to the world of contracts profs, but already setting cases to Limericks. Below is Chris's summary of Hooters of America v. Phillips, 173 F.3d 933 (4th Cir. 1999).
In Phillips, a waitress employed at a Hooters restaurant in Myrtle Beach, SC reported to her manager that she had been sexually harassed by the local franchise owner’s brother. Ms. Phillips claimed that the manager responded that she should “let it go,” whereupon she resigned and retained counsel. When her attorney contacted the franchisor, Hooters of America, Inc. (Hooters), and gave notice of the claim, Hooters invoked an arbitration clause in an employment agreement that the claimant had signed several years after she was hired. Hooters then filed a declaratory judgment action in federal district court and a motion to enjoin the plaintiff from filing suit (which was treated as a motion to compel arbitration).
In opposing the motion, Ms. Phillips contended that the arbitration clause was not entered knowingly and voluntarily, was unconscionable, and was not supported by consideration. The U.S. District Court for the District of South Carolina found the arbitration clause unenforceable, holding inter alia that since the clause was not contained in her initial employment contract, it had to be supported by some additional consideration. The court then examined the mutual promise to arbitrate unenforceable. In particular, the court found that the arbitration Rules & Procedures bound the employee but gave the employer alone the right to terminate the agreement to arbitrate at any time on 30 days’ notice. Moreover, the Rules and Procedures also held the employer to significantly less onerous pleading, discovery, and trial procedures. Accordingly, the court ruled that Hooters’ promise to arbitrate was illusory (which makes it reminiscent of another case recently reduced to a Limerick, Vassilkovska), and thus it could not serve as consideration for the employee’s promise to submit her claims to arbitration.
The Fourth Circuit affirmed.
Here are the (three!) Limericks:
When Miss Phillips, crying conduct discriminatory
Sought redress for her boss’ tomfoolery
Her employer said, “Wait,
You made a promise to arbitrate!”
But the court ruled the whole thing illusory.
“When harassed on the job (wouldn’t ya know?)
A young Hooter’s girl could not “let it go….”
When the restaurant stalled,
The court was appalled
“Was there any consideration here? No. “
When a harassed young waitress brought suit
Her employer did not give a hoot
It tried to stay litigation
And demand arbitration
But the court ruled the sham clause was moot.
October 29, 2012
Contracts Limerick of the Week: Bloor v. Falstaff Brewing
At right is a drawing of the Ballantine brewery in Newark as it appeared in the late 19th century. Founded in 1840, the brewery grew to be one of the largest in the United States by the end of the 19th century. Recognizing that nobody without a gut full of beer could enjoy the American passtime, Ballantine cleverly partnered with the New York Yankees. Through its partnership of that storied team, Ballantine grew to become the third most popular beer in the United States.
Sadly, in the 1960s the brand declined. As Judge Friendly recounts in his opinion for the Second Circuit in Bloor v. Falstaff Brewing Corp., in 1969, the brewery suffered the indignity of acquisition by a real estate conglomerate with no experience in brewing. After bleeding money for a few years, the conglomerate sold Ballantine to Falstaff Brewing Corporation in return for some cash and a promise to use "its best efforts to promote and maintain a high volume of sales" of Ballantine beer. If it ceased to sell the beer entirely, the contract provided for liquidated damages.
Falstaff chose not to promote Ballantine beer. It's marketing strategy was summarized by Falsataff's controlling shareholder as follows: We sell beer, F.D.B. the brewery. You come and get it. That didn't work very well for Ballantine, and its volume of sales plummeted. The trustee of what remained of Ballantine sued alleging breach of the best efforst clause and seeking liquidated damages. Judge Friendly's conclusion is summarized below:
Bloor v. Falstaff Brewing Corp. Limerick
Falstaff had to adhere
To its deal to sell Ballantine beer.
Volume’s not killer
When there’s Bud, Coors and Miller.
Still, its efforts must be sincere.
October 22, 2012
Larry Cunningham Responds, Part III: What’s Next for Contracts in the Real World?
Lawrence A. Cunningham is the Henry St. George Tucker III Research Professor of Law at the George Washington University Law School. He is also the author of Contracts in the Real World.
Thanks to all participants for their wonderful contributions to the on-line symposium about Contracts in the Real World: Stories of Popular Contracts and Why They Matter.
As the reviews suggest about readers finding the stories fun and the lessons enjoyable, you may be able to guess that I found researching and writing them fun and enjoyable too. Many of the stories were originally written, in a slightly different form, for this blog. Many of those stories generated productive comments.
I therefore must thank not only my fellow perma-bloggers here at Concurring Opinions for the opportunity to develop these ideas on this site, but also to many readers of the site for their thoughtful contributions. Double that gratitude for having allowed so much space to be devoted to the book these past several days.
Beyond contracts, several publishers and I believe that there is a series in this approach to the content and presentation of many law school subjects. That would certainly seem apt for other traditional 1L courses such as Torts, Property, Criminal Law and Civil Procedure.
Many are tempted to envision that such a series would resemble that forged a decade or so ago by Paul Caron, but it would be entirely different in substance and audience. Paul’s series dug deeply into the classics in the spirit of legal archeology, of tremendous interest and value to scholars, but less to students. This series is almost the opposite: using the classics but moving away from them toward contemporary cases that draw upon and illuminate them.
As envisioned, each book in the new series would be written by a single author and consist in drawing on contemporary events to illustrate how the principles from the classic cases continue to be relevant. Professors are a target audience, of course, but as colleagues such as Susan and others stress, students get enormous value from such works. We also continue to believe that such books have strong appeal to some cohort within the segment of general readers of non-fiction.
What else is next for Contracts in the Real World? Miriam has written a full-length review essay of the book, entitled “Learning Contracts Through Current Events,” which will appear in the Hawaii Law Review. (If there ever should be a live symposium of the book, the next book, or the series, I know where I’d propose it be held.) Ron Collins and his colleagues have invited me to come to the University of Washington next term to give a faculty presentation on the book and its pedagogical aims.
In addition, the chief editor at Cambridge University Press, John Berger, promises to have a stack of the books with him at CUP’s booth at the 2013 AALS annual meeting in New Orleans (another potential symposium destination). Scholars noodling on the idea of a series might wish to let John know about that–please let me know as well as I will be eager to coordinate such a project as series editor.
Thanks again to everyone who contributed to this symposium (and to the preparation of the book).
[Posted by JT]
Larry Cunningham Responds, Part II: Method for Contracts in the Real World
Lawrence A. Cunningham is the Henry St. George Tucker III Research Professor of Law at the George Washington University Law School. He is also the author of Contracts in the Real World.
Before wrapping up the symposium about Contracts in the Real World, this is the second of two posts on main themes drawn by the wonderful contributions. This one concerns methodology, the book’s approach, content and organization—and what more might be done in pursuit of such a new model of pedagogy.
The approach of using contemporary examples to illuminate venerable principles and classic cases seems warmly received, for many different reasons, elaborated in many different ways by all the contributors, including two students. It is nice to know the many different ways in which the book has spoken to readers. The value of that reach was summed up best, perhaps, by Nancy, when she stressed that retaining student attention is at least half the battle in law teaching.
I appreciated Tom’s point that reading this book does not feel like work in the way that reading many teaching books can. As Nancy, Don and Ron stated explicitly and others noted implicitly, the current teaching environment imposes new demands on teachers of contracts (really profs throughout the law school and much of the university). Finding ways to draw students in is vital.
Worth expanding on a bit are Erik’s interesting observations about the book’s layout and compatibility with given casebooks. Susan referenced having assigned Contracts in the Real World as a companion to the Dawson, Harvey, Henderson, Baird casebook, which I have used many times, including during the period when I was writing this. My selections of potential stories, and how to build them (in the ways Dave and Jake and others helpfully explained) was initially strongly influenced by that book.
But I wanted to be sure it fit with others. So I carefully examined a dozen of the most popular casebooks and prepared correlation charts between my discussions and those books. I tried to fill in the connections by drawing on the most often reprinted cases. I tried to find the most interesting stories that could connect to them. I ended up with more than 100 stories in various draft forms and settled on the 45 that are in the book.
That process and inventory posed a challenge concerning organization and sequencing. But it also gave me the advantage of freedom—not being wedded to any given table of contents. Erik notes the effect when he compares my organization to that of the casebook he uses: expanding a reader’s understanding.
There should be other books in this line. I appreciate Jennifer’s suggestion that this could be a stand alone teaching text for a law school course, but Miriam Cherry and I envision a more complete coursebook being built out of this one. Several publishers have expressed interest in such a project and we are working to develop it. Much of the organization would follow that of Contracts in the Real World, with “main cases” or “main deals” consisting of opinions or contracts summarized there, along with the supporting classic cases now found in most books.
It would be a coursebook, as Ron imagines, and could well include the effort to discern questions, to which Don referred, such as “what were they trying to do?” and “was this a good way to do it?” It will continue the bridge-building between worlds that Tom applauded. I think it would be wonderful to include, in the book or in an on-line companion, as Erik suggests, the text of at least some of the contracts for inspection. In preparing Contracts in the Real World, I obtained every contract that I could and have them in electronic form. I hasten to add that not every one of them would prove to be a useful teaching tool, but many would.
It is also important, I believe, as Don and Erik both suggested, to give many more examples of deals not resolved in court—such as the Conan-NBC deal and many others discussed in the book. We will try to develop case study modules to present such material in a way that both works within the prevailing law school teaching model and advances pedagogical imperatives.
[Posted by JT]
Larry Cunningham Responds, Part I: Politics in Contracts
Lawrence A. Cunningham is the Henry St. George Tucker III Research Professor of Law at the George Washington University Law School. He is also the author of Contracts in the Real World.
Before wrapping up the symposium about Contracts in the Real World, I wanted to offer two posts on main themes of the contributions–which were wonderful.
The first concerns the role of politics in contract law adjudication. It emerged as a theme from several posts, explicitly by Dave and Miriam, implicitly byJake’s discussion of Baby M and by Nancy’s of ProCD, and more obliquely in Tom’s (and Miriam’s) reference to my notion of the “sensible center” in contract law.
Perhaps the safer way to put the point would be to say that the common law of contracts is among the least political of subjects in law. The book does recognize the potential for political factors, of course, including variation among states. And while it celebrates the impressive power of the common law of contracts to deal neutrally with change, it also notes limits.
This is most explicit in the case of Baby M and its contrast with California’s Baby Calvert. I agree with Jake, and his agreement with Dave, that these two cases illustrate the driving role that judicial worldviews, and perhaps local state outlooks, can play in the approach to a case and the outcome.
The pairing of the two cases helps to show such features, in a context where opposition seems particularly acute. This is the context of “public policy,” an area where the common law of contracts is often inferior to administrative or legislative solutions precisely because at stake are exquisitely political decisions. That’s why p. 56 notes that judges on both (or all) sides of the debate about surrogacy contracts “usually concede that better solutions are likely to come from legislation. As magisterial as the common law of contracts is, many of society’s vexing puzzles should be resolved by the legislative branch of government.”
The differences between California and New Jersey on surrogacy contracts reminds me of the differences, to which Dave adverts, between California and New York on the parol evidence rule. In California, Chief Justice Roger Traynor helped to forge a weak parol evidence rule, stressing context and reflecting skepticism of the unity of language, compared to New York, where judges since Andrews and Cardozo (noted at pp 7-8) have shown greater interest in finality and the security of exchange transactions.
Those differences, in the doctrine and underlying attitudes, are real. But as this example shows and Dave notes, this is not so easy to classify in political or ideological terms. It may be due more to New York’s history as a commercial center and may reflect something about how California is just a more relaxed place in general.
I think the example of ProCD, about which Miriam, Nancy and Jake commented, is an instance of the potential but vague role of politics or judicial worldview in contract adjudication. In the book, I summarize the case as a possible precedent for the main case, which concerned consumers “assenting” to inconspicuous terms in an on-line license—the Netscape spyware case. The ProCD precedent, I note, pointed in opposite directions for the Netscape case, forcing the judge to choose whether to follow in its path or not. The judge chose not to. The related facts seem to support that outcome. So far so good.
But given the charged setting of electronic commerce, I suspected that readers would have a sneaking suspicion that something else is going on. So I identify the judges—something done rarely in the book, as follows: at page 28 “[ProCD was written by] Frank Easterbrook, the federal judge in Chicago appointed by President Ronald Reagan” . . . and at page 27 “Netscape was written by Judge Sonia Sotomayor for a federal appellate court in New York, several years before her promotion by President [Barack] Obama to the U.S. Supreme Court.”
The real problem with ProCD may be more akin to the real problem with Baby M: even the common law of contracts nods. The issues are so novel and vexing that legislatures should act. Even the UCC—part of a long tradition in sales law recognizikng the limits of the common law—may not be readily adaptable to the world of electronic commerce, as Miriam’s post about ProCD hints.
But to return to the broader thrust of the sensible center and the generally apolitical quality of contract law, consider two points Jennifer made in her post. The first concerns the political fury that erupted amid the AIG bonus contracts. While politicians were calling for scalps and the company’s PR team intoned about the sanctity of contracts, Jennifer notes the op-ed I wrote summarizing the comparatively cool tools and results recognized by the common law of contracts.
Jennifer also calls attention to the list of conclusions at the end of Contracts in the Real World. Look at those statements of earthy contract law (some listed here) and it will be difficult to deny the truth or to detect a political or ideological edge within the spectrum of American political discourse. Let contract law do its knitting, and my own answer to Dave’s excellent question is that contract law really is pragmatic.
[Posted by JT]
Umo O. Ironbar on Cunningham: A Law Student’s Viewpoint on Contracts in the Real World
As promised, the following is contributed by Professor Miriam Cherry's student, Umo O. Ironbar:
As a 1L student at Saint Louis University, reading the conditions materials in Professor Lawrence Cunningham’s Contracts in the Real World Stories of Popular Contracts was refreshing.
We looked at a deal that Kevin Costner went into for the creation of massive bronze bison sculptures which would be put in place in his luxury resort in South Dakota named The Dunbar (a tribute to his successful production of his 1990 movie “Dancing With Wolves). Another case we looked at was Charlie Sheen’s “play-or-pay” contract with Warner Brothers.
These cases are still so vivid in my mind because I actually knew who the parties were. Unlike other cases that could have been found in my regular contracts textbook, I did not have to wait until the notes and questions sections after the cases to know why these cases were so important or infamous, or why they made the selection into the textbook out of the hundreds of thousands of cases that have been tried.
I grew up watching Kevin Costner and Charlie Sheen on the big screen and television. They are both successful actors – and both had more than their share of controversy. When we read about Charlie Sheen our class was abuzz and more people wanted to speak and contribute to the class discussion. For me and many of my fellow classmates, the excitement came in part because Charlie Sheen was everywhere in the news and Internet. Everyone was just waiting to see what new eccentric behavior he was going show at any given time or day.
And here in my contracts class, we were actually talking about his legal issues. For me, it made the concepts we were learning more real. Conditions as defined by Restatement (Second) of Contracts, Section 224 made more sense to me. Conditions were no longer just words that were only used in law school academia.
I feel like many of the law students who will read Professor Cunningham’s contracts book will find it easier to follow the parties who are involved in the cases. Sometimes the biggest obstacle in understanding a case and what it is about is just being able to follow who the parties are and thus why they are in court. In using cases that involve people and stories we as students are familiar with, the materials make it easier for us to grasp the concepts and laws the courts are using to resolve breach of contract cases.[Posted by JT]
Jennifer Taub on Cunningham: “Unpopular” Contracts and Why They Matter
Professor Lawrence Cunningham knows the law and his audience. With Contracts in the Real World: Stories of Popular Contracts and Why They Matter, he brings contract doctrine to life. Cunningham concisely, yet colorfully, covers how courts resolve a variety of deals gone wrong. This book is ideal to help students develop an understanding of how the law is used to sort between those bargains that will be enforced and those that will not, as well as what remedies are available when things do not go as the parties to the agreement initially planned.
Contracts in the Real World has considerable range. It starts with a wrecked wedding party, an event few experience though many may fear. A dispute between a couple and a banquet hall venue results from a regional power outage during the reception. This fact pattern echoes the type of phone call a recent law graduate might receive from an exasperated family member punctuated with the dreaded question — you’re a lawyer, can we get our money back? The book provides a sensible explanation of how the wedding dilemma would resolve, and weaves together this type of personal situation with more public, celebrities’ disputes and classic contract decisions. These classic decisions are better appreciated in this fashion, when they are used to explain the outcomes of more modern disputes. For example, Sherwood v. Walker (the fertile cow – mutual mistake case) dating back to 1887 resonates when it is used to analyze a divorce settlement dispute concerning millions of dollars invested with Bernard Madoff’s Ponzi scheme.
What makes the book particularly compelling, is that mixed in with relatable fact patterns and entertaining battles are significant matters of policy.Contracts in the Real World accomplishes this, for example, when it covers some very unpopular contracts. These include the infamous agreements under which American International Group (AIG) paid out $165 million in cash bonuses to roughly 400 employees. According to the New York Times, among those who received more than $1 million a piece were 73 employees of the AIGFP business unit. This was the same business unit that helped enable the housing bubble and related Financial Crisis of 2008 by providing credit protection (selling credit default swaps) on high-risk mortgage-linked securities. The AIG bonuses were announced in 2009, just months after the US government paid $85 billion for a nearly 80% ownership stake in AIG. This was a part of the $182 billion government commitment to rescue the giant insurance firm when it approached insolvency due, in large part, to its inability to make payments to counterparties on its credit default swaps.
The public outrage over the AIG bonuses is included in Chapter 3 which covers the concepts of “excuses and termination.” These bonus contracts were entered into in early 2008, well before the bailout. The agreements which promised bonus payments in 2009 and 2010 were designed to encourage employees to stay with AIGFP. In response to an irate public, in 2009, AIG which was by then a ward of the state, insisted that the contracts with these employees were ironclad. Yet, the company did not publicly reveal the actual language of the agreements nor were legal theories that would have excused performance discussed. Those opposed to paying the bonuses, including certain members of Congress suggested imposing up to a 100% tax on them. In this manner even the opposition seemed to treat as true the faulty premise that contract law requires all agreements to be performed without any exceptions. Cunningham attempted to correct this misperception. In a contemporary op-ed in the NYT and in Contracts in the Real World he suggested that contract doctrine might have been a moderating measure, an alternative to either unexamined payments on the one hand or demands for government confiscation, on the other. It also would have been a teachable moment. Though that moment passed, through this book, the lesson is not lost.
Finally, beyond these thoughtful presentations of popular and unpopular contracts, this book includes in the final chapter twenty statements the reader is invited to determine are true or false, to test comprehension of contract law. This useful list serves as a proxy for the book’s (and a course’s) intended learning outcomes. Given the comprehensive scope and easy style of Cunningham’s book, this is a natural choice to assign as a supplement to a casebook. Or, one might be tempted to use it as the primary textbook, and supplement it with the UCC, a number of the referenced cases and other favorites, highlighting where jurisdictions vary. Students may learn faster when they are so guided and engaged. Should this leave extra time in the semester, it might be used for contract negotiation and drafting, skills that nearly all attorneys need but few learn in law school.
[Posted by JT]
Cherry on Cunningham, Post III: Using Contracts in the Real World in the Classroom
Aside from the deeper theoretical questions that Prof. Cunningham raises about contract theory in Contracts in the Real World, the heart of the book is in its fun, rollicking, and thoroughly modern examples.
Every contracts professor should take a look at this book to glean ideas for real-world examples and hypotheticals. Even if your textbook is stuck in the world of itinerant homesteaders, ships using astrolabes for navigation, and delayed industrial components (shout out to Kirksey, Raffles, and Hadley v. Baxendale!), your students will appreciate the use of some fun celebrity stories to liven up the classroom discussion.
The last time that I taught Contracts, for example, I did a series of hypotheticals based on Charlie Sheen’s contractual troubles. Based on Prof. Cunningham’s materials, I was able to structure some hypotheticals based on Sheen for my unit on conditions. The students seemed to appreciate it, and in fact, I have asked a student from my class last year to share her impressions with our blog readers. It appears here.
[Posted by JT]
Don Langevoort on Cunningham: Contracts and "Contracting"
Donald C. Langevoort is the Thomas Aquinas Reynolds Professor at Georgetown Law.
Like all the reviewers so far, I am a big fan of Larry’s book. My interest in his approach comes partly from his way of bringing the subject alive, but more (and the book varies in the extent to which it does this deliberately) because it moves readers toward situating themselves in the time and place at which the bargain was struck and events play themselves out. Erik Gerding makes this point, too, and I want to elaborate on it. A case like Wood v. Lucy Lady Duff Gordon asks why the deal was expressed as it was, and thus what was the deal, really? There is a good bit of writing in law and economics that tries to theorize about deal-making, and Victor Goldberg, among others, have done some very rich work on Lucy, among other cases. I desperately want to engage my contracts students with these ideas, but find it hard to do without devoting more time than my 4 credits in a semster allows. “Contracts in the Real World” gives the students a base for many of these intuitions (especially the chapter on interpretation and parol evidence), and I hope that it will at least stimulate their interest in thinking more about contract doctine in this way. What I hope for most is that Larry or some reader will follow up on this volume with another dealing more explicitly with the “what were they trying to do?” and “was this a good way to do it?” questions. I’m familiar with a couple of efforts in this direction, but so far they don’t work for me. The person who pulls off that book in a rich, sophisticated but engaging way will earn my undying gratitude. For now, however, I’m happy enough that Larry has given contracts students and teachers not only a great introduction to the human workings of contract law, but also some valuable impressions of the work-a-day world out of which some very interesting deals were conceived.
[Posted by JT]
Susan Heyman on Cunningham: Best Book for 1L Contracts
Susan Schwab Heyman is an Associate Professor of Law at Roger Williams University. Some of her scholarship can be found here on the SSRN. Full disclosure: she was once Cunningham’s student in Contracts.
Larry Cunningham’s provocative account of contract law in his new book Contracts in the Real World: Stories of Popular Contracts and Why they Matter is remarkable. First, it provides a clear and easily cognizable overview of many topics including the leading cases covered in most first-year contracts courses. Rather than providing readers with a treatise, he quickly gets to the essence of various topics including formation, unenforceable bargains, excuses, remedies, unjust enrichment, interpretation, modification, conditions, and third party beneficiaries.
The clarity with which Cunningham explains convoluted principles deeply embedded in contract doctrine makes it easy for general readers and particularly first-year students to understand. Remarkably Cunningham is able to write with a flair and without legalese, while still preserving scholarly sophistication and retaining legal detail. His book is therefore enlightening not only for general readers or law school students but also for academics, practitioners or anyone interested in contract law.
Second, Cunningham demonstrates classic contract law’s capacity to resolve popular contemporary problems. He closely examines cases which seemingly only fascinate some of us as students or academics in such areas as mistake and frustration deriving from a fertile cow, a cancelled coronation, and the blockade of the Suez Canal. He then applies these old chestnut cases to recent disputes involving overstated investments due to the Madoff ponzi scheme and Donald Trump’s delayed payments on his loans due to the Great Recession. This approach teaches students that cases with even archaic facts can significantly impact contemporary legal disputes.
This book is a great supplement to traditional contracts casebooks as it puts the issues from century old cases into modern contexts. In fact, I recommended this book to my students as a supplement to the Dawson, Harvey, Henderson, Baird casebook and have received only favorable feedback on the selection. Students have found Cunningham’s approach helpful in conceptualizing how various topics in contract law fit together. The book will not only enlighten students, but will also fascinate general readers, academics and practitioners.
[Posted by JT]