ContractsProf Blog

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Valparaiso Univ. Law School

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Monday, November 14, 2011

TOS, Wikileaks and Twitter

Here's another case involving browsewraps or "terms of service" (also known as " the contract that nobody reads") and the way they may interact with other laws in unexpected or surprising ways. A judge recently relied upon Twitter's privacy policy in a case involving Wikileaks. In that case, Judge Liam O'Grady upheld an order allowing federal prosecutors to gain access to information on Twitter accounts held by Wikileaks and by three Wikileaks associates.

The judge held that the individuals had no reasonable expectation of privacy in the Twitter account information, in part, because they were notified via Twitter's privacy policy that the company may retain IP address information. As Christopher Soghoian notes, however, the policy cited by the court is from 2010; the Wikileaks individuals signed up with Twitter in 2008 under another policy. That policy, dated 2007, included this sentence: "We do not associate your IP address with any personally identifiable information to identify you personally, except in case of violation of the Terms of Service."  Not surprisingly, however, the old version also contained the following language which is typically found in online "agreements":

"This Privacy Policy may be updated from time to time for any reason; each version will apply to information collected while it was in place."

I'm not sure whether these "updated from time to time" provisions are or should be valid. In any event, it's important to note that Judge O'Grady specifically did not rule on whether the privacy policy was binding as a contract; rather, the privacy policy was used as evidence weighing in favor of finding that the individuals "voluntarily revealed their IP address information to Twitter."

In other words, while the privacy policy may or may not be binding as a "contract," it was relevant as notice. The standard in determining "reasonable expectation of privacy" under the Fourth Amendment is objective and the consideration of the "totality of the circumstances" included the privacy policy.

But does the language in the 2007 (as opposed to the 2010) policy create a reasonable expectation that the IP address information would not be released to law enforcement authorities. I don't think it does as a matter of interpretation, especially because the 2007 version specifically states that Twitter "may disclose any information to respond "to claims, legal process (including subpoenas)….to prevent or stop any illegal, unethical, or legally actionable activity, or to comply with the law."

[Nancy Kim]

November 14, 2011 in Current Affairs, Recent Cases, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, October 24, 2011

Round-up From the Blawgs

Above the Law reports on law-related things, including hottie lawyers, up for sale on e-Bay.

Gordon Smith reports on The Conglomerate about the recent contracts conference honoring the scholarship of Stewart Macauley.  By the way, if anyone out there attended and wants to file a report, please feel free to send us a guest post.  

Our partners in the Law Professor Blogs Network over at the Workplace Prof Blog have a couple of posts that are revelant to contracts.  First, Richard Bales reports on benefits cuts at Wal-Mart here.  Professor Bales also writes about a new Catalyst Report that finds that women are not to blame for the pay inequality that they suffer.  

Finally, over at Feminist Law Professors, Bridget Crawford often asks "Where are the Women?" when women are unrepresented or underrepresented in publications or conferences.  Well, the answer to "Where are the women writing on contracts law?" is not on the Feminist Law Professors blog.  It's here at the ContractsProf Blog.  


October 24, 2011 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 11, 2011

"Disappeared Contractors": David Isenberg on Steven Schooner on Contractor Deaths in Iraq & Afghanistan

PMSCs David Isenberg, author of Shadow Force: Private Secuity Contractors in Iraq has a provocative new piece on HuffPo in which he argues that private military and security contractors (PMSCs) are like the "disappeared" victims of dictatorial rule.  This is not of course literally true, in that the bodies of PMSCs who are killed abroad are returned so that families can mourn and bury their dead.  However, Isenberg finds the analogy fitting because we do not recognize or track the extent to the which PMSCs are bearing the burden on the on-going War on Terror.

He relies on the scholarship and testimony of Geroge Washington University Law School Professor friend-of-the-blog Steven L. Schooner.  Professor Schooner has written about this topic in an article co-authored with GWU law student Collin D. Swan, called "Dead Contractors: The Unexamined Effect of Surrogates on the Public's Casualty Sensitivity," about which we have previously blogged here.

The Isenberg piece provides extensive quotations from Professor Schooner's testimony before the congressionally mandated Commission on Wartime Contracting.  The gist of the exerpted portions is that we now have more PMSC casualties than military casualties in Iraq and that trend is spreading to Afghanistan as well.  These deaths are not reported in the way military deaths are.  PMSC deaths thus impose a lower cost in terms of public tolerance for continued war than do military deaths.  Professor Schooner also notes, without allocating blame, that the government does more to protect members of the military than it does for PMSCs.


October 11, 2011 in Contract Profs, Government Contracting, In the News, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, October 6, 2011

Freaks and Gleeks

Ayres Freakonomics blogger and Yale ContractsProf, Ian Ayres, has teamed up with his 14-year-old Gleek daughter to write a song, and now he's offering an iTunes gift card worth up to $500 to the winner of a contest to guess which lyrics are his.  

It's really two contests in one.  The first contest is to guess which of three songs peformed by his daughter Professor Ayres co-wrote and also to specify a line that he authored.  That contest ends October 31st.  The second contest is to predict the total number of views for the three songs.  The deadline for that contest is October 10th.  Winner of the first contest will get a gift card; winner of the second contest will get signed copies of two of Professor Ayres' books. 

The details of the contest are here.

And as an additional incentive, Professor Ayres offers a special bonus: If the winning entry happens to come from a student or ContractsProf who use the Ayres & Speidel casebook, he and/or his daughter will perform a song of the winner's choosing in a "personal Skype concert."  He did not specify that the song has to be one of the three relevant to the contest, so I recommend demanding a performance of Queen's "Bohemian Rhapsody."


October 6, 2011 in Contract Profs, Music, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, July 25, 2011

Are We Missing (Some of ) Our Target Audience(s)?

CJ Roberts As many have noted, e.g., here and here, Chief Justice Roberts doesn't have much use for law reviews.  Here is the money quote, as provided by the Volokh Conspiracy:

Pick up a copy of any law review that you see, Roberts said, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

We will assume that the Chief Justice is exaggerating for effect, as he must have rubbed shoulders with enough academics to know that very few law professors are very much interested in Kant's views, the 18th century or Bulgaria.  Still, it is true that most academics do not write with courts or even practitioners in mind.  While we might hope to have some sort of long-term effect on policy, I think most of us write in conversation with each other and with our students.  Scholarship is often inspired by Supreme Court decisions that, in the opinion of the author, have strayed from wise policy, precedent or both.  It is no surprise that the author of such opinions would find such scholarship tiresome.  

While perusing the blog of one of this blog's readers, Kenneth A. Adams, I came across the following:

Every so often I glance at ContractsProf Blog’s regular “New in Print” posts (e.g., here) and “Weekly Top Tens from the Social Science Research Network” posts (e.g., here). So far, I haven’t been tempted to read any of the law review articles listed, because I haven’t seen anything that seems as if it treats, in a compelling way, what you should say in a contract, or how you should say whatever you want to say.

I think I would have to agree with everything after "because", but I also find it hard to imagine why anybody would write a law review article about this topic, given that there are practical books on contracts drafting (including one by Kenneth A. Adams).  I have a hard time trying to articulate why this subject is not an attractive topic for a law review article but an eminently sensible book project.  I have occasionally heard colleagues disparage law review articles as "mere practitioners' notes."  Heaven forfend that my work ever be so labeled, but it is a real danger, as I'm not sure how one makes the determination.  

It also occurs to me that I read law reviews occasionally when clerking for my judge and when researching constitutional issues for my firm's Supreme Court appellate practice but never (that I recall) while litigating contracts disputes.  Should we academics be making more of an effort in this area?


July 25, 2011 in About this Blog, Commentary, Recent Scholarship, Weblogs | Permalink | Comments (2) | TrackBack (0)

Thursday, July 21, 2011

Alan White on JP Morgan's Attempt to Evade State Law

Alan Friend of the blog, Alan White, reports here on a case currently before the 4th Circuit.  The case is Epps v. JP Morgan Chase, which was decided last November in the Maryland District Court.

Here is Alan's commentary:

In a case now before the 4th Circuit Court of Appeals, Chase Bank asserts that it may repossess an auto loan borrower’s car without complying with consumer protections in state commercial law.   The Maryland District Court found for Chase Bank, concluding that 1) the National Bank Act preempts state repossession notice law and 2) Chase was not bound by the mandatory loan contract term specifically incorporating Maryland repossession law, because as an assignee of the contract, Chase had not voluntarily agreed (!) to the choice of law provision. 

The logic of the lower court opinion is remarkable.  It seems to suggest that even the repossession rules of Article 9 of the Uniform Commercial Code could be preempted by the National Bank Act and OCC regulations.  What is truly extraordinary, however, is the idea that a national bank could on the one hand invoke the privilege, created by the UCC and other state law, to repossess collateral without judicial process, while on the other hand disregarding the restrictions and consumer protections that accompany that privilege.  If the entirety of state commercial and debt collection law conflicts with the National Bank Act, then there was no state law basis for Chase to seize Ms. Epps' car, and the purported repossession was nothing more than grand theft.

Thanks for the tip, Alan!


July 21, 2011 in Contract Profs, Recent Cases, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

All Hail Blog Emperor Paul Caron

On the occasion of his 20,000th post.

That is a truly phenomenal number of posts!  He's done it all since 2004, meaning that he has averaged nearly 3000 posts a year for seven years.  That's over 250 posts a month, nearly 60 a week, over eight a day!!  Every three hours another post.  While you are sleeping, Paul Caron posts at least twice.  Go to a movie?  He posted.  Make dinner, eat, do the dishes?  Post.  Post on your blog?  Several posts, no doubt.  Try to get some scholarship done.  Fuhgetaboutit.  You don't want to know just how much more productive Paul is than you are.

 While we were at work on this post, he's already got four new posts up.  That's right, it's 20,004 and counting.

And by the way, his blog is about tax law and he't got a bazillion readers.  


July 6, 2011 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 5, 2011

New Blog

United-Nations The UNCITRAL Model Procurement Blog has arrived here!

According to its home page, its mission is a follows: 

This blog covers developments regarding the UN Commission on International Trade Law (UNCITRAL) Model Procurement Law, the text of which was adopted on July 1, 2011.

Welcome to the Blogosphere!  May your pageviews be plentiful.


July 5, 2011 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, June 17, 2011

CRS on Presidential Authority to Impose Requirements on Contractors

CRS Thanks to the Federal of American Scientists' Secrecy News Blog, we are able to link to this new report form the Congressional Research Service, authored by Vanessa K. Burrows & Kate M. Manuel,  "Presidential Authority to Impose Requirements on Federal Contractors." 

Here is the executive summary:

Executive orders requiring agencies to impose certain conditions on federal contractors as terms of their contracts have raised questions about presidential authority to issue such orders. Recently, the Obama Administration circulated, but did not issue, a draft executive order directing “every contracting department and agency” to require contractors to “disclose certain political contributions and expenditures.” The draft order cites the President’s constitutional authority, as well as his authority pursuant to the Federal Property and Administrative Services Act of 1949 (FPASA), which authorizes the President to prescribe any policies or directives that he considers necessary to promote “economy” or “efficiency” in federal procurement. The draft executive order refers to FPASA’s goals in that it directs actions “to ensure the integrity of the federal contracting system in order to produce the most economical and efficient results for the American people.” The draft order has been characterized by some as an “abuse of executive branch authority” because it resembles the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act that the 111th Congress considered, but did not pass. If issued, the draft order may face legal challenge.

The outcome of legal challenges to particular executive orders pertaining to federal contractors generally depends upon the authority under which the order was issued and whether the order is consistent with or conflicts with other statutes. Courts will generally uphold orders issued under the authority of FPASA so long as the requisite nexus exists between the challenged executive branch actions and FPASA’s goals of economy and efficiency in procurement. Such a nexus may be present when there is an “attenuated link” between the requirements and economy and efficiency, or when the President offers a “reasonable and rational” explanation for how the executive order at issue relates to economy and efficiency in procurement. However, particular applications of presidential authority under the FPASA have been found to be beyond what Congress contemplated when it granted the President authority to prescribe policies and directives that promote economy and efficiency in federal procurement.

Some courts and commentators also have suggested that Presidents have inherent constitutional authority over procurement. A President’s reliance on his constitutional authority, as opposed to the congressional grant of authority under the FPASA, is more likely to raise separation of powers questions.

In the event that Congress seeks to enlarge or cabin presidential exercises of authority over federal contractors, Congress could amend FPASA to clarify congressional intent to grant the President broader authority over procurement, or limit presidential authority to more narrow “housekeeping” aspects of procurement. Congress also could pass legislation directed at particular requirements of contracting executive orders. For example, in the 112th Congress, legislation has been introduced in response to the draft executive order (e.g., H.R. 1906; H.R. 1540, § 847; H.R. 2017, § 713).


June 17, 2011 in Government Contracting, Recent Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, June 13, 2011

Great Discussion of Contracts Teaching

Glom Over at the Glom and featuring contributions from:

Larry Cunningham (George Washington)

 Gillian Hadfield (Univ. of Southern California)

 Claire Hill (Minnesota)

Usha Rodrigues (Georgia) 

Erik Gerding (New Mexico)

[JT, H/T to Alan White]

June 13, 2011 in Teaching, Weblogs | Permalink | TrackBack (0)

Thursday, April 28, 2011

Update: More Links to Commentary on AT&T Mobility v. Concepcion

Angel Harvey Rosenfeld and Todd Foreman on Consumer Watchdog don't care for the opinion much.

Andrew Cohen weighs in in The Atlantic here with the following bottom line:

This AT&T Mobility decision marks another shoe dropped on the heads of individuals who have sought fair redress against corporate interests this Term. But the next shoe from the Court's conservatives, due by the end of June in Wal-Mart v. Dukesisn't going to fall from the sky. Instead it's going to kick all those employment discrimination plaintiffs right in the ass. Just you watch.

For a sampling of what California class-action attorneys think of the ruling, there is this piece by Petra Pasternak in The Recorder

Daniel Fisher suggests on that the new consumer protection agency currently headed on an interim basis by Elizabeth Warren (pictured at left comforting a consumer facing mortgage foreclosure) will get medieval on this ruling's buttocks.

PCWorld's Nancy Gohring provides commentary here.  

"Chris in Paris" concludes on the Americablog that "Corporate America wins again."

On Public Citizen's blog, Deepak Gupta calls the decision, "a crushing blow to American consumers and employees."


April 28, 2011 in In the News, Recent Cases, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 27, 2011

Another Supreme Court Decision on Arbitration

Supreme_Court_US_2010 Today, the U.S. Supreme Court decided AT&T Mobility LLC, v. Concepcion.  Here is the opinion.  In a nutshell, the Court determined by a 5-4 majority that California's Discover Bank rule, which permits courts to strike as unconscionable any arbitration provision that prohibits class actions, was preempted by the Federal Arbitration Act.  Take a guess which Justices were in the majority!

Lacking the expertise to delve into the Serbonian Bog of the Court's recent arbitration rulings, we refer our readers to the following sites:

SCOTUSblog does its usual reliable job providing background to the case here.

The ADR Prof Blog has posts up by Paul Kirgis -- discussing recent scholarship by Lawrence Cunningham -- Paul Kirgis discussing the Court's opinion, and Sarah Cole.   

We will try to update the list as new responses are posted.



April 27, 2011 in Recent Cases, Recent Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, April 11, 2011

Law Prof Smacks Down Apple for Faulty iPad Cover

As the picture below illsturates, Apple is very proud of the new smart cover for the iPad 2.  It's held on by magnets.  Magnets!  And look!  It doubles as a carpal-tunnel reducing stand.

Perhaps the new cover isn't quite so smart as it at first appears.  Ohio State University Moritz College of Law Professor Emeritus Douglas Whaley reports on his blog about how he went mano a corpo with Apple over the cover. and came out smelling as sweet as a new tablet.  Here's the story, as told by Professor Whaley:

[T]he Apple people are very proud of the new cover for iPad 2. They shouldn't be. First of all, it only covers the front of the iPad which has a glass facing. Secondly, it's held on by magnets at one end. Seven days after I got the new iPad, it slipped from my car seat in the garage, stripping its magnet cover as it fell to the floor, creating a crack on the glass. Seven days.

When Professor Whaley tried to return the iPad, the Apple folks told him that the warranty did not cover accidental damage.  Big mistake, Apple.  Big mistake.  You messed with the wrong guy!  Professor Whaley wrote to Apple, told his story, and then issued the following warning:

Your cover is in violation of the implied warranty of merchantability, section 2-214 of the Uniform Commercial Code, a statute in effect in all jurisdictions in this country except Louisiana. My Small Claims action (the court has jurisdiction up to $2000) will be filed with that as the theory. 

But Professor Whaley is both good cop and bad cop, so he offered a reasonable settlement:

I don't want to sue. I want an iPad 2 (which I otherwise love) that isn't scratched with cracking glass within two weeks of purchase. If you will replace the iPad 2 and refund the money for my cover and I'll be a happy man. 

Please let me hear from you about this by next Wednesday, April 13, 2011.

He then called Apple's customer support and had the following conversation with a supervisor who again tried to rely on the express warranty limitations:

I told him that was probably right, but didn't get rid of the implied warranty under the Uniform Commercial Code, and a cover that won't protect its product won't do. He asked if I sued a lot. Never before, I replied, but a Small Claims Action is easy and we'll let the court decide if a cover that detaches this easily is merchantable. . . . Eventually he returned to the phone and, very efficiently, told me that since I'd always been a good Apple customer they'd decided to make an exception in my case, and would replace my iPad2 at the Apple Store. I told him I was very grateful, he gave me the case number, and the next day I had a new iPad2 (my third). Indeed, at the store it was determined I'd originally been overcharged at the original purchase by $138, for which the store gave me a gift card—I immediately used it to buy insurance on the new iPad2! With Apple's permission, I'm returning Apple's original cover; I'll buy a sturdier one elsewhere.

And so we learn a useful lesson about how to use the law to protect yourself as a consumer without spending a dime on attorneys' fees.  But Professor Whaley leaves us with one final lesson:

I also should note that I do think the Apple cover is badly designed and in breach of the warranty mentioned. It would be unethical to threaten something in which you do not have a good faith belief. 

Amen to that. In addition, keep in mind that the warranty likely does not cover using your new iPad to chop salsa, although for fans of Stephen Colbert, that might now count as an intended use.


The Colbert Report Mon - Thurs 11:30pm / 10:30c
Stephen Gets a Free iPad
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive



April 11, 2011 in Contract Profs, In the News, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)

Thursday, February 17, 2011

The Huffington Post/AOL Merger: Choice and Value in Contracts

Arianna+Huffington+AOL+Maxim+Party+Powered+PH6TdhtTbuhl The Huffington Post/AOL Merger that is rousing indignation in certain quarters  got me thinking about value and choice in contractual bargains. 

What is “a good bargain”?  Is it all in the price?  The price may or may not reflect the value of the subject of the bargain.  It may be underpriced (to the glee of the buyer), or overpriced (to the satisfaction of the seller).   An underlying belief about what the basic value of the subject is must also exist.  Without that underlying belief, judgments about how underpriced or overpriced - and thus, how good or bad - the proposed contractual bargain (price) is, cannot be made.  So, what is the true value of the Huffington Post?  Some see the HuffPo as a barely five year old celebrity upstart that defied expectations to become a remarkably popular blog.   Was it a steal or a bust at 315 million?  

Celebrity, even notoriety, seems admired and  highly valued these days.  And, if admiration is not quite the word, the fact of celebrity -  even where the person concerned is famous for simply being famous – certainly draws our attention.  It is because of this that the 'art' of being a celebrity is a hardnosed business pursuit rather than a frivolous lark.  There is no shortage  of promoters willing to pay someone - anyone - who can attract, however fleetingly, the public’s attention.  In this era of the ever shrinking attention span therefore, the proverbial fifteen minutes of fame is a lifetime in dog celebrity years.  How to explain otherwise the high dollar book deals, and the endorsements that are the badge of even the most tenuous celebutante? 

So, how to quantify the objects of our admiration?  We may not even be dealing with objects but with abstract values if you will – celebrity, popularity, notoriety to name a few.  Might a sampling of celebrity book deal dollar values yield a value index of sorts?  Perhaps - if accurate figures were not so fiercely guarded and exaggerated accounts were not so eagerly circulated.  Perhaps a listing of celebrity books on the New York Times Bestseller List might provide a surrogate of sorts?  One can only hope it was no mean feat for the reflections of a celebutante to make the New York Times Best Seller list at the same time that the memoirs of a former U.S. president did. 

Contract law permits a wide exercise of choice here.  As one person’s trash may be another’s  treasure, it is the buyer’s (or seller’s) choice to make a deal that might seem a bad idea to someone else.  Choice is the operative word – if the party was misled, unduly influenced or improperly threatened for example, the deal will of course be voidable. 

Twenty years ago, America On Line (AOL) was a profitable media giant.  A decade later, a less vibrant AOL consented to become a part of the Time Warner group.   Seen as a bad idea at the time by some and now viewed as possibly the worst merger deal in history,  there was no suggestion when it all ended badly, that it was anything other than an ill-advised gamble.    Now a very publicly ailing member of a reputably dying breed of media and print enterprises, AOL has by this merger bought itself a chance to turn around it’s all but inevitable demise.

Presuming that this can only be a good deal for AOL which had to do something, anything, or die, what about the Huffington Post?  Did the HuffPo get ‘good value’ for the trade?  The jury is out on whether the deal  will be a vindicated or regretted.  Contractually speaking, however, a contractual party is entitled to exactly what he or she bargained for – nothing more, nothing less.  Full performance of a party’s side of the bargain discharges that party’s duty to perform, while the unexcused non performance of even part of a due duty is a breach per the Restatement of Contracts (2nd) §235. 

The bargain, ideally, was shaped by the parties preferences.  A party may thus receive as the exchange, if she chooses, a little something now whose value at the time of contracting is greater to her than its face value. She may promise to pay, if she wishes, double, threefold or more of that face value in exchange, sometime in the future.  She may choose, conversely, to pay big money for a subject of seemingly slight value in the hope that the potential she sees will soon be realized.  If that potential is unrealized, she will wear the risk.  Unfair tactics and public policy aside, the law is content to permit her to assign whatever value she chooses to the subject of her desire be it increased popularity, an entry pass into a stronger corporate group, or a chance to play with the big boys. 

Should we conclude therefore that value is in the eye of the beholder, and that the measure of a subject’s value is how much people are willing to pay for it?  This is a logical deduction,  but only one side of the value-is-determined-subjectively v objectively jurisprudential debate.   It must be harder in any event, to quantify the value of celebrity musings without reference to sponsored endorsements, celebrity impact rankings and such.  It evidently is just as difficult, if not more so, higher up the food chain.  Take our example of  a very popular upstart website/blog.  Analyses of monitored acquisition deals indicate that online media sites are typically acquired for 1½ times the amount of their generated revenues.  Launched barely five years ago, the Huffington Post was acquired for 315 million - reportedly five times its generated revenue.  It is hard to know whether this figure is a hardnosed assessment of the HuffPo’s worth, or a reflection of the fact that the negotiations were between an ailing giant and an ambitious upstart fledgling.

If all goes well, the ultimate verdict may one day be that the HuffPo was a steal at 315 M.  It is possible that Adrianna Huffington may come to rue the bargain that looked oh so good at the time.  If AOL’s profitability hemorrhage is not stemmed by this deal, on the other hand, its 315 M payout will be just one more milestone in its march to oblivion. There is no contractual rule against a deal that was, with hindsight, ruefully underpriced or fatally expensive.   Contract law will be content where the regretted deal, truly bargained for and not compromised by vitiating factors, was based upon a freely quantified exchange. 

The parties considered the bargain.  They assessed its value.   Once you have done that, “you pays your money and you takes your choice.”


[Eniola O Akindemowo]

February 17, 2011 in Celebrity Contracts, Commentary, Current Affairs, E-commerce, In the News, True Contracts, Weblogs | Permalink | Comments (0) | TrackBack (0)

Arianna Huffington: New Media Diva or Feudal Pirate Plantation-Owner?

Arianna_Huffington The blogosphere has erupted with chatter regarding the recent acquisition of the Huffington Post by America Online (Sidebar: was anyone else surprised to learn that AOL still exists?) for a reported $315 million. While estimates of how much Arianna Huffington (shown at left prior to having herself gilded) personally profited from the sale greatly vary, it is safe to say that she made somewhere in the ballpark of $20 million to $30 million. In light of this, commentators have come out of the woodwork to both praise and question the Huffington Post model. From the journalists, the message is basically this: Arianna, you've got hate mail!

 The Huffington Post employs paid journalists to create original content and editors to sift through the massive content aggregated from AP, Reuters, and major newspapers and magazines, all to draw in readers to their website. Nothing controversial so far. Beyond that, the Huffington Post also features the work of unpaid bloggers who can post their content on the Huffington Post site to benefit from the increased traffic. Up until now, most were content with this arrangement. However, the idea that a relatively small number of people made millions of dollars, at least in part due to the work of “little-guy” bloggers who won’t see a dime, does have many up in arms.

Some decry the transaction as unjust enrichment of the elite at the expense of citizen journalists. For example, David Carr at the New York Times compares the plight of unpaid bloggers at Huffington Post to serfs under feudalism.

Not to be outdone, Tim Rutten of the Los Angeles Times likened Huffington Post’s business model to “a galley rowed by slaves and commanded by pirates” with “overhead that would shame an antebellum plantation.” But there is more to this line of argument than farfetched historical analogies. While Huffington Post now draws most of its traffic from “big name” content, it only got to this point by the work of unpaid bloggers who contributed their time, efforts, and ideas. Without them, HuffPo may have been DOA.

Others praise and defend the Huffington Post model. TJ Walker at Forbes points out that no promise of payment was ever extended to these bloggers. In other words, they knew what they were getting into. And if they feel they are being exploited, Walker argues that you can always “own your own means of production” by starting your own blog on your own terms. Hillary Rosen of HuffPo notes that Huffington Post gives bloggers a platform to let their ideas be known to a larger audience than they might otherwise get themselves.

Will this joint-venture succeed? Will the “blogger serfs” ever receive compensation for their intellectual labors? Who knows? What no one can deny is that the Huffington Post model has changed the way journalism works, and the AOL/HuffPo deal validates that proposition. 

Asked for comment about how this development reflects on their own business model, the managers of the Law Professors Blog Network stated, "We pay our bloggers exactly what they are worth.  And if they don't like being galley slaves rowing for watered grog, they can row without the watered grog."  

Okay team, pass the grog and row!

[JT and Jon Kohlscheen]

February 17, 2011 in E-commerce, In the News, Weblogs | Permalink | Comments (0) | TrackBack (0)

Saturday, September 4, 2010

Lipshaw on Concept, Metaphor and the Synergy of Teaching and Scholarship

Jeffrey Lipshaw has a characteristically thoughtful post over at the Faculty Lounge about how his scholarship is informing his teaching of contracts and a "nascent article" on that topic.  He's even illustrated his thoughts in diagrams.

As always, interesting stuff - go check it out.

[Meredith R. Miller]

September 4, 2010 in Contract Profs, Recent Scholarship, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 12, 2010

Elena Kagan: What's Her View on Contracts?

Kagan3 Over at The Conglomerate, Christine Hurt has helpfully assembled blog posts addressing various issues that have come up in connection with the nomination of Elena Kagan (pictured) to succeed Justice Stevens on the U.S. Supreme Court.  Notably absent in all of these posts is any discussion of or any predictions regarding how Justice Kagan will vote on vital contracts law issues.

For example, although Eugene Volokh, Brian Leiter, Paul Campos, and Mark Tushnet have all weighed in on Kagan's scholarship, none have mentioned her complete failure to address any important doctrinal issues in contracts law.  Has she written about unconscionability?  The battle of the forms?  The concept of fault in contract law?  The prevalence of promissory estoppel claims?  Whether contracts profs should devote one month or two to the doctrine of consideration?  One searches her publications in vain for even a hint of interest in any of these subjects.  A very disappointing record for someone who could be the deciding vote in future battles over enforceability or interpretation of contracts.  Who will set Justice Breyer straight on the consequences of Joe Bananas' actions?  Who will take Justice Scalia aside and explain that the unconscionability doctrine is not about protecting the rights of stupid people?  We can only hope that the Senate confirmation hearings will be as illuminating as they usually are on such issues.  

Professor Hurt points us to Ilya Somin's post at The Volokh Conspiracy on Dean Kagan's decision not to allow military recruiters to visit Harvard's law school because of the military's "don't ask, don't tell" policy.  However, Somin does not mention and Hurt does not note that military recruitment involves contracts.  What are we to infer from Kagan's actions about her attitudes towards promoting the negotiation of binding agreements? 

Hurt similarly alerts us to various concerns, expressed by Elizabeth Nowicki, Dan Markel and by four law professors who wrote a Salon column after writing letter to White House, relating to Dean Kagan's hiring decisions while at Harvard's helm.  Once again, the posts all shockingly fail to address the fact that hiring decisions implicate contracts.  Clearly, one's conclusions regarding Kagan's anti-contract tendencies in connection with military recruitment must be balanced against her willingness to enter into contracts in the hiring context.  Or do these episodes suggest that Kagan has not yet developed a coherent approach to contracts.  Is she a contractual flip-flopper or is her approach characterized by the sort of care and nuance associated with the man she has been selected to replace?

Ann Althouse does nothing to illuminate Kagan's views on contracts in her post about Kagan on the subject of gay marriage. 

Nate Oman comes closest to raising this important subject over at Concurring Opinions, where he points out that Kagan's resume is weak on private law issues.  Indeed, there has been a remarkable though unremarked prejudice in judicial appointments against those who have devoted their legal careers to such issues.  Why was there never a Judge, let alone Justice Karl Llewellyn?  Would not Judge Williston have adjudicated with formalist rigor.  Would not a Justice Corbin have reached the equitable result in every case argued before him?  It is, indeed, an outrage.

[Jeremy Telman]

May 12, 2010 in Commentary, In the News, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, May 10, 2010

Blawgosphere Roundup on Contracts Issues

Monitor  The ADR Prof Blog is keeping the posts on Stolt-Nielsen coming.  Art Hinshaw shares Alvin Goldman's thoughts here.  That blog also features another take on Rent-A-Center, this time from Sarah Cole.

More on Stolt-Nielsen can be found at the Disputing Blog.  A post from University of Missouri Prawf, S. I. Strong can be found here.  Another post by Pepperdine Prawf Thomas J. Stipanowich can be found here.   

[Jeremy Telman]

May 10, 2010 in Commentary, In the News, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, May 3, 2010

Blawgosphere Roundup on Contracts Issues

Monitor Since we crowed a few weeks back about our imperialistic tendency to write on topics beyond contracts law (conventionally conceived), we would also like to note the other worthwhile blog posts of interest to our readers:

Over at Text and History, Elizabeth Wydra  of the Constitutional Accountability Center, has a series of posts on the U.S. Supreme Court's recent arbitration decisions.

Deepak Gupta tales on the Supreme Court's Stolt-Nielsen opinion on Public Citizen's Public Law & Policy Blog.

The ADR Prof Blog has two new posts on Stolt-Nielsen: This one shares the thoughts of Paul Kirgis; this one shares the thoughts of Jean Sternlight

Matt Bodie has wise things to say about the oral arguments Rent-A-Center on the Prawfsblawg, in part in conversation with Aaron Bruhl, who has also blogged about the case on Prawfsblawg.  

Mitu Gulati explains what the Greek debt contracts actually say over at The Faculty Lounge.

[Jeremy Telman]

May 3, 2010 in In the News, Weblogs | Permalink | TrackBack (0)

Wednesday, April 28, 2010

Consumer Law & Policy Blog on Rent-A-Center

Deepak Gupta has a couple of posts on Rent-A-Center v. Jackson worth looking at.

The first is from April 1st.

The second is from yesterday.  Yesterday's post links to a number of other discussions of the case.

Thanks to Christopher Drahozal for directing us there.

[Jeremy Telman]

April 28, 2010 in Recent Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)