Monday, July 7, 2014
H/T to Eric Goldman for sharing with the list a new case from Judge Lucy Koh of the federal district court of Northern California. Tompkins v. 23andMe provides a detailed analysis of 23andMe's wrap contracts. The case involves the same Terms of Service presented as a hyperlink at the bottom of the website's pages, and then later, post-purchase and at the time of account creation, as a hyperlink that requires a "click" in order to proceed (which I refer to as a "multi-wrap" as it's neither browsewrap nor clickwrap but a little of both). The court says the former presentation lacks notice, but the latter constitutes adequate formation. Eric Goldman provides a detailed analysis of the case here.
Not surprisingly, the Terms contained a unilateral modification clause which was briefly discussed in the context of substantive unconscionability. It was not, however, raised as a defense to formation, i.e. to argue that the promises made by 23andme were illusory.
Friday, July 4, 2014
Michelle Meyer (pictured) has a very detailed post on this subject over at The Faculty Lounge. Her approach is different from Nancy's, focusing narrowly (but thoroughly) on the question of whether an Institutional Review Board (IRB) could have approved the FB experiment. There Meyer arrives at a different conclusion than I think Nancy would arrive at. Meyer thinks an IRB could have and should have approved the FB experiment based on informed consent (although she recognizes that one could dispute whether such consent was actually present), and Nancy, I think correctly, questions whether there are very strong arguments that FB users knowingly agreed to this kind of experiment when they agreed to FB's terms.
Wednesday, July 2, 2014
Today's New York Times features a story about a new ride-sharing service called BlaBlaCar. The idea is simple -- it's just an internet ride board. Riders share with drivers the cost of travel between two cities. Drivers are forbidden from profiting from the ride share; BlaBlaCar takes a 12% cut. Cost savings over common carriers are significant, ranging according to the NY Times from 33% to 67%
The gimmick is the BlaBla part. Riders can indicate how much they want to talk en route. If you mark Bla, you want to ride in silence (or perhaps you want everyone to know that they can talk all they want but you will be hooked in to your iPod). If you mark BlaBlaBla, other riders (and the driver) are on notice that you will not shut up for six straight hours.
I don't think this would work for me. It's a question of etiquette and signaling. This might be useful if one could be more specific: e.g., BlaBla#WorldCup or BlaBlaBla#Kardashians or BlaBlaBla#MyElderlyMother'sHealthProblemsandMyRecentBreak-up would be useful to know in advance. If I were being honest, I would proclaim BlaBlaBla#HansKelsen, but that would guarantee me a train ticket. I might strategize and put Bla, because it seems more likely than not that I would not find all that much in common with my fellow passengers. But what if they turn out to be interesting? Can I BlaBlaBla, if I promised only Bla? Then, the next time I use BlaBlaCar, I might regret my misanthropy and commit to BlaBlaBla. Would I be a jerk if, after half an hour of conversations about pop stars or the best gear for rock climbing, I pulled out my iPod?
Of course, the odds are that most users of BlaBlaCar are young and interesting (to me), but I am old and boring (to them). So I should put BlaBlaBla because I am interested in hearing what 20- or 30-somethings are doing these days as they commute between European cities, but I would advise them to Bla me, because they likely do not want to hear about Hans Kelsen. This is based on my recent visit with my niece and three nephews whose BlaBlaBla fascinated me (when I could follow it) but who found my Bla, well, blah, or even bleh, but certainly nothing above meh.
But the question of legal liabilities does nag. BlaBlaCar seems rather blithe about the issues. The driver's insurance covers the possibility of injuries to passengers, and women who are wary of sharing cars with strange men can opt to ride only with other women. As for the rest, riders can rely on reviews of drivers and steer away from those who seem sketchy. This is all certainly an improvement over the level of risks assumed by, say, hitchhikers.
BlaBlaCar's terms of service put passengers on notice that the site cannot guarantee that they will be insured:
However BlaBlaCar gives no warranty or assurance in this regard and it is the Driver’s responsibility to verify that their insurance provides adequate cover.
As for other concerns, BlaBlaCar attempts to cover them under its Good Conduct Charter.
Wednesday, June 25, 2014
In 2006, Jacqueline Goldberg signed an agreement* to purchase two hotel condominium units in Trump Tower Chicago, a 92-story building in downtown Chicago that comprises residential condo units, hotel condo units and all of the amenities one expects to find in a hotel (pictured at left). Some of these amenities are called "common elements" in which each individual purchaser of the condo units has rights. But the agreement into which Ms. Goldberg entered included a "change clause" that permitted the Trump Organizations to modify those rights with either the notice to or approval by the purchasers. Ms. Goldberg attempted to negotiate for a return of her deposit if she disapproved of the changes, but the Trump Organizations refused. Three such changes took place before Ms. Goldberg signed the agreement.
But then came the fourth change, to which Ms. Goldberg strenuously objected. She refused to close on the deal and demanded a return of her $516,000 deposit. The Trump Organizations placed her deposit in escrow, and she sued, alleging breach of contract and other causes of action. Some of her claims were dismissed, some were tried before a jury, and some were tried before a judge. Both the jury and the judge found for the Defendants. Ms. Goldberg appealed to the Seventh Circuit, resulting in Judge Posner's opinion upholding the District Court in Goldberg v. 401 North Wabash Venture LLC.
Ms. Goldberg's common law allegations basically came down to a claim that the Trump Organizations had engaged in a bait and switch -- she had bought the condos as an investment and had been led to believe that they would have a certain value. After the changes, that value was diminished. Judge Posner rejected this characterization of the agreement, since Ms. Goldberg, "a wealthy and financially sophisticated Chicago businesswoman," was aware of the change clause and had even attempted to have it removed. On the facts, there was no deception. She took a risk when she entered into the agreement with the change clause included.
Of more interest to us, Judge Posner concluded that Ms. Goldberg's breach of contract claim collapsed once her "bait-and-switch" theory was eliminated. While there is a duty of good faith, Judge Posner reminded Ms. Goldberg that it applies only in the performance of a contract, not in its formation. There follows an interesting discussion of law and equity. Ms. Goldberg challenged the trial judge's decision to decide on her breach of contract claim rather than submit the question to the jury. Judge Posner noted that rescission is an equitable, not a legal, remedy, and under both Illinois and Federal law, there is no right to a jury trial on an equitable claim.
One could imagine that Ms. Goldberg might have argued that the Trump Organizations breached the duty of good faith and fair dealing in the performance of the contract. After all, the bait might have occurred in the formation of the contract, but the switch occurred during performance. Ms. Goldberg would then have to show that while some changes were to be expected under the change clause, the actual changes that the Trump Organizations engaged in were not in the contemplation of the parties at the time they entered into the contract and undermined the original agreement (or something like that). It's not clear that Ms. Goldberg could have made such a showing. It seems that the Trump Organizations had good reasons for the changes that were made. In any case, if she were making that sort of argument, I think Ms. Goldberg would not have sought rescission of the agreement but enforcement of the original agreement without the changes.
Finally, one might see this as another example of corporations getting to impose unreasonable terms on a consumer. Here, Judge Posner has very little sympathy for the plaintiff, despite her advanced age, because of her sophistication. But the facts make clear that even she, who bought two condos as an investment, had no bargaining power as to the terms at issue. Posner undoubtedly applied the law correctly, but just think, if a person with Ms. Goldberg's means has no bargaining power as to one-sided and potentially unreasonable terms, what chance do the rest of us have?
For a different take on the same case, check out my law school's student law blog, the VALPOLAWBLOG, where you can find this post by student Faith Alvarez.
*Following Judge Posner's example, we simplify things by making it one agreement and ignore the complexities of the various Trump entities by referring to those entities collectively as the Trump Organizations.
Wednesday, May 28, 2014
As announced here on the TaxProf Blog, the Law Professor Blogs Network has added another member to its roster. The REFinBlog began in November 2012 and it is edited by Brad Borden (Brooklyn) and David Reiss (Brooklyn). The blog tracks developments in the real estate finance industry.
We welcome REFinBlog to the LPBN family and as always wish the contributors to our new sibling happy blogging.
Thursday, April 24, 2014
Second, as announced on the TaxProf Blog here, the Law Professor Blogs Network is thrilled to announce the launch of Clinical Law Prof Blog, edited by Jeff Baker (Pepperdine) with these contributing editors:
- Bryan Adamson (Seattle)
- Kim Bart (Duke)
- Kelly Behre (UC-Davis)
- Warren Binford (Willamette)
- Kristina Campbell (UDC)
- Tanya Cooper (Alabama)
- Meta Copeland (Mississippi College)
- Jill Engle (Penn State)
- Carrie Hagan (Indiana)
- D’lorah Hughes (Arkansas (Fayetteville))
- Robert Lancaster (LSU)
- Inga Laurent (Gonzaga)
- Kelly McTear (Faulkner)
- Kelly Olson (Arkansas (Little Rock))
- Brittany Stringfellow Otey (Pepperdine)
- Danny Schaffzin (Memphis)
- Kelly Terry (Arkansas (Little Rock))
- Virgil Wiebe (St. Thomas)
From Jeff's inaugural post:
We hope to amplify and magnify the work of clinical law professors, to share resources and ideas and to collaborate with our colleagues online and in social media who are serving our community. We write to advance the twin causes of good teaching and justice.
Welcome, and happy blogging.
Monday, April 14, 2014
Six months ago, we reported that our blog is ranked #41 in the top 50 law blogs (or blawgs) and that we had experienced a healthy 9% growth in our readership over the previous 12-month period.
Today, Paul Caron announced on the TaxProf Blog that we have climbed to #35, with a 79.9% increase in our readership.
Thanks to all of our contributors and to our readers. We hope the upward trend continues.
Monday, March 24, 2014
- Comparative Law Prof Blog, edited by Shawn Marie Boyne (Indiana), Monica Eppinger (Saint Louis), Lissa Griffin (Pace) & Shitong Qiao (NYU)
- Human Rights At Home Blog, edited by Martha F. Davis (Northeastern) & Margaret Drew (Northeastern)
- Law and Economics Prof Blog, edited by Gerrit De Geest (Washington U.), Ben Depoorter (UC-Hastings), Brian Galle (Boston College), David Gamage (UC-Berkeley), Shi-Ling Hsu (Florida State), Murat C. Mungan (Florida State), Eric Rasmusen (Indiana) & Manuel A. Utset, Jr. (Florida State)
- Legislation Law Prof Blog, edited by Kevin Barry (Quinnipiac), Emily Benfer (Loyola-Chicago), Sara K. Rankin (Seattle) & Joel Rogers (Wisconsin)
To all the new start-ups, we say: Welcome and we look forward to your posts.
Wednesday, January 8, 2014
As noted here on the TaxProf Blog, the mother of all LPBN Blogs, the Law Professor Blogs Network enjoyed a record-setting 2013, with traffic up 87.5% over 2012 as total network page views topped 18 million. Eighteen of the network's blogs are among the 50 most popular blogs edited by law professors. Four network blogs were named to the ABA Blawg 100 ("the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal"), and one network blog was named to the ABA Blawg 100 Hall of Fame.
- Appellate Advocacy Blog, edited by David R. Cleveland (Valparaiso), Kendall D. Isaac (Appalachian), Tonya Kowalski (Washburn) & Todd Bruno (Charleston)
- Business Law Prof Blog, edited by C. Steven Bradford (Nebraska), Joshua P. Fershee (West Virginia), Marcia L. Narine (St. Thomas), Stefan J. Padfield (Akron) & Anne Tucker (Georgia State)
- Civil Rights Law & Policy Blog, edited by Andrew M. Ironside
- Education Law Prof Blog, edited by Derek Black (South Carolina), LaJuana Davis (Cumberland) & Areto Imoukhuede (Nova)
- Elder Law Prof Blog, edited by Kim Dayton (William Mitchell), Rebecca C. Morgan (Stetson) & Katherine C. Pearson (Penn State)
- Gender and the Law Prof Blog, edited by by John Kang (St. Thomas) & Tracy A. Thomas (Akron)
- Law Deans on Legal Education Blog, edited by I. Richard Gershon (Mississippi), Paul E. McGreal (Dayton) & Cynthia L. Fountaine (Southern Illinois)
- Marijuana Law, Policy & Reform, edited by Douglas A. Berman (Ohio State)
- Securities Law Prof Blog, edited by Eric C. Chaffee (Toledo)
Thursday, November 21, 2013
As announced here on the TaxProf Blog, the Mother Ship of the Law Professor Blogs Network, the latter welcomes to its family the Appellate Advocacy Blog edited by David R. Cleveland (Valparaiso), Kendall D. Isaac(Appalachian), Tonya Kowalski (Washburn), and Todd Bruno (Charleston).
It brings us especial pleasure to welcome this blog to the Network because my colleague, David Cleveland (pictured), is a founding editor. Soon the Valpo Blog Network will rival Paul Caron's Blog Empire.
From the inaugural post:
Welcome to the Appellate Advocacy Blog on the Law Professor Blogs Network. On this blog, we plan to address a wide variety of issues related to appellate justice. This includes appellate court advocacy and practice, principles of appellate justice, appellate court jurisprudence on current issues, and legislative developments affecting the courts. We hope to keep our readers informed about cases and issues on appeal as well as scholarship, research, conferences, and news related to appellate courts. Our interest is in appellate advocacy and justice, broadly conceived, including state, federal, tribal, and international appellate courts. We hope that this blog will provide useful information, interesting perspectives, and fodder for engaging discussions.
We look forward to your posts.
Wednesday, October 9, 2013
I am very interested to see what the Law School Deans have to say on their new blog on legal education. This is a subject that interests us over at the ContractsProfs Blog as well. The Deans have already posted in praise of the ABA recommendation that the 20-hour/week limit on employment for full-time students be eliminated. I agree with the logic of the argument -- the ABA does not prohibit students from doing anything else (moot court competition, law review, student government, video games) more than twenty hours a week, so why should it prohibit employment?
Still, I think there is an answer. There may be students who can work more than 20 hours a week and still excel in law school, but I think they would be exceptional. For most students, law school is hard in ways that college is not. And they do not realize that coming in. They worked through college, so they think they can work their way through law school. But by the time they learn that law school presents new challenges, they have already done permanent damage to their transcripts. The 20-hour rule is profilactic, so it is bound to be overinclusive, but this is probably a situation where a bright-line rule makes sense.
It is true that students can spend time in non-remunerative activities to their heart's content but I think there is a difference. Students can tell both themselves and their professors, "I'm sorry; I don't have time to prepare for your class because I have a job." That excuse will not work as well with any other activity. And to the extent that students are putting in extra hours in activities like moot court competitions, law review, clinical work or pro-bono legal activities, those are all part of their legal educations.
The argument that students need to work to support themselves doesn't necessarily fly, since many of them are working in jobs that pay very little compared to the debt they are incurring. They are far better off getting the most out of their investment in legal education than they are earning pocket money. These sentiments open me up to the accusation of paternalism, and I cannot deny that the accusations score a palpable hit. But in an educational context in which much of the curriculum is required, and a good deal more of it is very strongly recommended, I think we crossed that line long ago in far more substantial ways.
One of the main things that I try to get across, especially to first-year students, is that this, meaning law school, is their job now. There may be personal crises and family emergencies that call out for our students' attention, but students have to negotiate those demands and the demands of law school just as they would those demands and the demands of the working world. The law school curriclum is not going to wait for them. If students are distracted when we go over the statute of frauds and the parol evidence rule, they should not expect to be able to catch up when we are covering remedies. There just won't be time.
It is fine with me if the ABA gets rid of the 20-hour rule, but if it did so, I would recommend that my own law school adopt its own 20-hour rule for our students, with the possibility of exemptions (perhaps issued by the Dean of Students) in special cases when we know the student can handle the demands of both work and school. If we are going to have paternalist rules, they should come from within the house rather than from our ABA Big Brother's house.
Tuesday, October 8, 2013
From the inaugural post:
We are pleased to introduce our new blog devoted to legal education from the perspective of law deans. We hope this blog will provide a place where you will find information, opinions, and thoughts about a range of topics and issues related to legal education. The editors of this blog are Dean Richard Gershon of the University of Mississippi School of Law, Dean Paul McGreal of the University of Dayton School of Law, and Dean Cynthia Fountaine of the Southern Illinois University School of Law. We look forward to sharing our thoughts about legal education with you and hope you enjoy our blog.
Tuesday, September 10, 2013
- Business Law Prof Blog, by C. Steven Bradford (Nebraska), Eric C. Chaffee (Toledo), Joshua P. Fershee (West Virginia), Marcia L. Narine (St. Thomas), Stefan J. Padfield (Akron) & Anne Tucker (Georgia State)
- Education Law Prof Blog, by Derek Black (South Carolina) LaJuana Davis (Cumberland) & Areto Imoukhuede (Nova)
- Elder Law Prof Blog, by Kim Dayton (William Mitchell), Rebecca C. Morgan (Stetson) & Katherine C. Pearson (Penn State)
- Marijuana Law, Policy & Reform, by Douglas A. Berman (Ohio State)
We welcome our colleagues to the wonderful world of blogging and wish them all great success.
Friday, August 23, 2013
If you are reading this post, and if it is not the first post you have ever read on the ContractsProf Blog, then you have noticed that we have a new look. All of this is thanks to a global re-design at the Law Professor Blog Network (LPBN), headed up by Paul Caron (pictured).
This is our third day with the new look, and the impact on our readership has been dramatic! Of course, the uptick in our readership is also explained in part by the advent of a new semester, always a good time for people to check in, and by the very exciting symposium on the contracts scholarship of Stewart Macaulay, which ought to be attracting some new readers. Still, our daily readership has tripled since the re-design, and we have never had results like that either at the beginning of a new academic year or in connection with one of our virtual symposia. So, we think a great deal of the credit has to go to the re-design.
The re-design includes a bunch of new features with which we ourselves are not yet fully aware. We will tell you more about them as we play around with the platform and discover its nuances. Paul Caron has himself explained the purposes behind the redesign in this piece that is availabe on SSRN. Here is an excerpt from the abstract:
The re-design will (1) optimize each blog for viewing across a variety of platforms (desktop, laptop, tablet, and smart phone); (2) better integrate social media; (3) provide more robust analytics with richer and more accurate readership data; and (4) strengthen our partnership with Wolters Kluwer/Aspen Publishers and provide additional avenues for monetization
We here at the ContractsProf Blog cannot equal the expertise of the TaxProfs in money matters, but our interpretation of the last line of Paul's abstract is that the re-design is going to make us all rich!
Thursday, August 15, 2013
According to Ken's post, he offered his services as a drafting instructor to two prestigious law schools (Ken has been teaching drating courses every Fall since 2005) and was told that those schools don't offer stand-alone contracts drafting courses. Rather, they teach contracts drafting in the context of courses on "Deals."
Ken has eloquent arguments in favor of stand-alone contracts courses, and the comments sections add further support for his position. He will get no argument here. I agree with Ken that drafting should be a stand-alone course, and I suspect that it is at most law schools. Still, I think there are reasons for teaching drafting as part of a substantive course that Ken does not consider, so I throw them out there:
One of the knocks on contemporary legal education (see, e.g. The Carnegie Report and Best Practices) is that the components of legal education (doctrine, practical skills, ethics) have been compartmentalized such that the students do not learn how to become lawyers in the proper contexts and have difficulties translating theoretical constructs into the actual practice of law. So, in an ideal world, one would learn contracts drafting in the context of a substantive course in which one also learned about the legal and business environments in which real contracts are drafting. Such a course would (again, in an ideal world) also include simulations in which students could learn other practical lawyering skills (client counseling, negotiation, etc.), as well as confront ethical challenges.
In a previous post, we called attention to Deborah Zalesne and David Nadvorney's Teaching to Every Student: Explicitly Integrating Skills and Theory into the Contracts Class, which can be used in a course that covers both doctrine and skills. So, I think the sort of integrated approach that certain, unnamed, prestigious law schools are attempting has its theoretical appeal. For my part, since I have only four credits and fourteen weeks to take studens from zero to Llewellyn, I am grateful that my law school has a separate contracts drafting course that students can take in the second year. That doesn't mean that practical exercises have no place in a first-year contracts course, but given everything else we try to accomplish in that course, we can only offer a taste of drafting in the first year.
Friday, June 7, 2013
Next week, we will have two guests posts reviewing Kenneth A. Adams, A Manual of Style for Contract Drafting (3d ed.).
From the book's website:With A Manual of Style for Contract Drafting, Kenneth A. Adams has created a uniquely in-depth survey of the building blocks of contract language. First published in 2004, it offers those who draft, review, negotiate, or interpret contracts an alternative to the dysfunction of traditional contract language and the flawed conventional wisdom that perpetuates it. This manual has become a vital resource throughout the legal profession, in the U.S. and internationally.
This is the third edition of A Manual of Style for Contract Drafting. One-third longer than the second edition (published in 2008) and in a larger format, it contains much new material and has otherwise been revised and supplemented, making it even more essential.
This manual's focus remains how to express contract terms in prose that is free of the archaisms, redundancies, ambiguities, and other problems that afflict traditional contract language. With exceptional analysis and an unmatched level of practical detail, Adams highlights common sources of confusion and recommends clearer and more concise alternatives. This manual is organized to facilitate easy reference, and it illustrates its analysis with numerous examples. Consult it to save time in drafting and negotiation and to reduce the risk of dispute.
Our reviewers are:
Daniel D. Barnhizer, Professor of Law & The Bradford Stone Faculty Scholar, Michigan State University College of Law.
Professor Barnhizer graduated with honors from Harvard Law School, where he served as managing editor of the Harvard Environmental Law Review. After graduation, he was a judicial clerk for the Honorable Richard L. Nygaard, U.S. Court of Appeals for the 3rd Circuit, and for the Honorable Robert B. Krupansky, U.S. Court of Appeals for the 6th Circuit, sitting by designation on the U.S. District Court for the Northern District of Ohio. Professor Barnhizer has practiced as a litigator with the law firms of Hogan & Hartson and Cadwalader, Wickersham & Taft. Before joining the MSU College of Law faculty, he was an adjunct professor of law at American University - Washington College of Law, where he taught legal reasoning, research, and writing. At MSU Law, he teaches Contracts, Contract Theory, Business Enterprises, Securities Litigation, and Legal History.
Some of Professor Barnhizers scholarship can be found here.
Irma S. Russell, Dean and Professor of Law, University of Montana School of Law.
Prior to coming to Montana, Dean Russell was the NELPI Professor and Director of the National Energy-Environment Law & Policy Institute at the University of Tulsa College of Law. She became Dean of the University of Montana School of Law in 2009.
Dean Russell is immediate past chair of the ABA Section of Environment, Energy and Resources and the immediate past chair of the AALS Section of Natural Resources and Energy Law. She is a newly appointed member of the Board of Dividing the Waters, an organization of judges and lawyers focused on issues of water adjudication in the Western United States. She has served as the chair of the Professionalism Committee of the ABA Section of Legal Education and Admission to the Bar and as a member of the ABA Standing Committee on Professionalism and the ABA Standing Committee on Ethics and Professional Responsibility. She also has served as a member of the Executive Committee and Secretary of the AALS Natural Resources Section and as chair of chair of the AALS Section on Professional Responsibility, the AALS Section on Socio-Economics, and as a member of the Publications Committee of the Center for Professional Responsibility.
Dean Russell earned undergraduate degrees in liberal arts and education, a master’s degree in English literature, and her law degree at the University of Kansas. She clerked for The Honorable James K. Logan, United States Court of Appeals for the Tenth Circuit. Russell engaged in private practice for several years in Kansas, Missouri, and Tennessee.
We look forward to some stimulating reviews and hopefully some fans of the book (and Ken Adams' blog on legal drafting) will chime in as well.
Tuesday, January 22, 2013
There's a post of potential interest to our readers over at the Legal Sklls Prof Blog, courtesy of Scott Fruehwald.
Here's a taste:
Professor Rip Verkerke [pictured] has developed an innovative contracts course at the University of Virginia School of Law. (full story here) He received a grant "to convert a fall-semester course into a 'hybrid technology-enhanced' offering." In addition to using innovative technology in his class, he redesigned his course as a "flipped" classroom model, "in which students watch pre-recorded lectures outside of class and participate in more interactive learning inside the classroom. . ." His goal for this flipped model is "to promote deeper learning for students." The article states, "he has taken a quantum leap this year in reimagining how to teach Contracts with online tools and a new understanding of how students learn."
Scott Fruehwald adds:
This is exactly the type of class that law schools should be teaching to better prepare their students for the contemporary legal world. Problem-solving exercises force students to apply what they have learned to facts, and studies have shown that students learn more when they apply their knowledge. Small-group discussions, along with the problem-solving exercises, make the students active learners, rather than passive receptacles as the Socratic method does. Education scholarship has determined that frequent formative assessment helps students learn more and remember more. I suspect that Verkerke's nightly quizzes are especially effective. He is also developing metacognitive learning by asking metacognitive questions to his students and causing them to self-reflect. (''What aspect(s) of the materials in this module did you find most difficult or confusing?' is a metacognitive question because it forces the students to "think about their thinking.")
In sum, Professor Verkerke's Contracts class is a model of what a law school class should be. Hats off to Professor Verkerke!
The rest can be found here.
Wednesday, December 26, 2012
Over at Prawfsblawg, Jeff Lipshaw (pictured, left) has an extended discussion of "legal realism" and contracts pedagogy, and a few other prawfs jump in with interesting comments.
Meanwhile, over at Concurring Opinions, Gaia Bernstein (pictured right) has a post on legislative prohibitions on egg and sperm donor anonymity and the impact of such prohibitions on surrogacy. According to Bernstein, such prohibitions are common abroad and are gaining ground in the U.S. She has an article on the subject, which can be found here.
Also at Concurring Opinions, Dave Hoffman has this short post about a provision in credit agreements providing that collection calls are not to be treated as "unsolicited." Dave suggests that screening calls from one's bank might then be construed as a breach of contract, but a comment suggests that the provision only protects the bank against any allegation that it has violated "do not call" list regulations.
Wednesday, December 19, 2012
Stop me if you've heard this one before - Facebook changes its Terms in a way that its users find offensive and invasive of their privacy. Uproar ensues and Facebook promises that the changes are harmless and everyone is just overreacting. Facebook backs off, a little, and then pushes the boundaries a little further next time, regaining even more ground against its users. Sound familiar?
I think the public backlash is a very good thing since it reminds companies that there are at least some people who are reading their online agreements. Unfortunately, they are usually only reading the terms of companies that already have a monopoly in the marketplace. It's not easy for unhappy Facebookers, Googlers or Instagramers to pick up their content and go elsewhere - where would they go?
What makes my skin crawl, however, is the misleading reassurances doled out by companies when they are called on their online agreements. Instagram, for example, states on its blog that users shouldn't fear, because it respects them, really it does:"Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.
I always want you to feel comfortable sharing your photos on Instagram and we will always work hard to foster and respect our community and go out of our way to support its rights."
While it may be true that Instagram users own their content, Instagram does take a pretty broad license from its users:
As Instagram knows, it doesn't need to own your content in order to use it as if it owned it. All it needs is a broad license, like the one it has. Note that it has the right to "use" the content - and doesn't define what that means or restrict that use very much.
- "provide personalized content and information to you and others, which could include online ads or other forms of marketing
- provide, improve, test, and monitor the effectiveness of our Service
- develop and test new products and features
- monitor metrics such as total number of visitors, traffic, and demographic patterns"
I found this sentence particularly sneaky:
"We will not rent or sell your information to third parties outside Instagram (or the group of companies of which Instagram is a part) without your consent, except as noted in this Policy"
Did you like the "except as noted in this Policy" ? And, as Contracts profs know, "consent" means something other than what a layperson might think - it can mean just using a website in many cases. There is similar broad language here:
"We may also share certain information such as cookie data with third-party advertising partners. This information would allow third-party ad networks to, among other things, deliver targeted advertisements that they believe will be of most interest to you."
I'm not as concerned about the targeted advertisements (which doesn't mean I'm not concerned at all) as I am about the "such as" and "among other things."
And remember, the Terms do expressly state:
"Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you."
The company reassures its users, on its blog that it is not their "intention" to "sell" user photos. The company says it is working on language to make that clear. Let's hope so, but my guess is that they are probably going to use more mealy language like "at the moment" or "sell as a good defined under the UCC," or something that leaves wide open the possibility that it can make money off user photos by selling them to third party advertisers.
I'd suggest you save Granny some embarrassment and delete that photo now.
Monday, December 10, 2012
Over on Concurring Opinions, Larry Cunningham has a far stronger response to the decision, noting especially that there were no dissents from the Supreme Court's per curam decision. He calls for Congress to sort out the robes:
In numerous past SCOTUS cases, dissenting opinions were routinely filed exposing the flaws in the Court’s jurisprudence. The recent per curium opinion may signal capitulation, indicating that there are no longer any Justices prepared to object to these mistakes. That defeat means it is clearly time for Congress to rein the Court in. It should make it clear that state courts are responsible for developing and applying state contract law, not SCOTUS, federal courts or private arbitrators.
There is a lively comment section following Larry's post.