Monday, July 25, 2011
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.
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?
Thursday, July 21, 2011
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!
Wednesday, July 6, 2011
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.
Tuesday, July 5, 2011
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.
Friday, June 17, 2011
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).
Monday, June 13, 2011
Thursday, April 28, 2011
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. Dukes, isn'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 Forbes.com 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."
Wednesday, April 27, 2011
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.
We will try to update the list as new responses are posted.
Monday, April 11, 2011
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|
Thursday, February 17, 2011
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]
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]
Saturday, September 4, 2010
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]
Wednesday, May 12, 2010
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.
Monday, May 10, 2010
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.
Monday, May 3, 2010
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:
Wednesday, April 28, 2010
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.
Tuesday, April 27, 2010
We have been preoccupied with Rant-A-Center v. Jackson, but the Supreme Court's interest in arbitration issues is not limited to that case. Today the court decided Stolt-Nielsen v. Animalfeeds Int'l Inc. in which the issue was whether an arbitrator can permit class-action arbitration when the arbitration agreement is silent as to the availability of that mechanism. The court said no in a 5-3 decision that split along predictable lines, with Justice Sotomayor not participating. If you want details you should look elsewhere. We recommend the following blawgs:
If anybody has other links to recommend, please let us know and we will add them.
Monday, April 26, 2010
Over at the Legal Profession Blog, Jeff Lipshaw has a post in which he asks the non-musical question, "Can a discussion of contract theory up front allay the usual first-year angst about consideration (and everything else)?"
Having read Jeff's discussion, my answer to his question would be as follows: I doubt it, but there might be other reasons to set out one's theoretical approach to contracts law in advance. I ask my students to read my casebook's theoretical introduction, which covers Socratic teaching and the case method, formalism, realism and all that jazz, giving a critical perspective on each. I do it, not in the expectation that students will get much out of the assignment on the first reading, but it contains material to which I can refer back throughout the semester.
My own preference is to reveal my own theoretical perspectives piecemeal, when they seem relevant to particular subjects that come up throughout the course. But I am also often cautious to present such perspectives, whether or not they are my own, as possible perspectives one might have on contracts law and contracts theory. Because law students are so often attempting to get the "right answer" in their notes, I try to present them with possible answers and perspectives so that they are not tempted to confuse the "right answer" with my opinion. I want them to be formulating their own approaches to the material and to give them as many perspectives as possible. I prefer to offer theoretical approaches to them in digestible chunks, over the course of the semester, so that they can wrestle with it on their own.
It is far easier for me to adopt such an approach than it might be for Jeff because I have the advantage of not having developed a systematic approach to contracts theory. A slipshod eclecticism is the hobgoblin of my little mind.