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Monday, October 22, 2012

Dave Hoffman on Cunningham: Is Contract Law Really Pragmatic?

Dave Hoffman is the James E. Beasley Professor of Law at Temple University's Beasley School of Law.

Hoffman_WebPhotoThe following post is cross-posted from an online symposium that previously appeared on Concurring Opnions.  The original post can be found here.

I’ll begin by joining the others who’ve written in already to praise Larry’s excellent Contracts in the Real World.  It is highly accessible, entertaining, and offers a ream of examples to make concrete some abstract and hard doctrinal problems. Larry has the gift of making complex problems seem simple – much more valuable and rare than the common academic approach of transforming hard questions into other hard questions! This would be an ideal present to a pre-law student, or even to an anxious 1L who wants a book that will connect the cases they are reading, like Lucy, Baby Mor Peevyhouse, to problems that their peers are chatting about on Facebook.

Larry’s typical approach is to introduce a salient modern contract dispute, and then show how the problem it raises was anticipated or resolved in a famous contract case or cases.  Larry often states that contract “law” steers a path between extremes, finding a pragmatic solution. This approach has the virtue of illustrating the immediate utility of precedent for guiding the resolution of current disputes, and comforts those who might Real Worldbelieve that courts are alwayspolitical actors in (caricatured) Bush v. Gore or Roberts/Health Care Cases sense. It has the vice of de-emphasizing state-by-state differences in how contract law works, as well as the dynamic effects of judicial decisions on future contracts. But I think that for its intended audience, these vices can be easily swallowed.

I wanted to offer one question to provoke discussion: is it actually true that politics is as removed from contract law as Larry’s narrative appears to suggest, and how would we know?  The contracts law professor listserve is full of laments about judges turn away from Traynor & his perceived progressive contract doctrines – and I certainly know of colleagues who teach that there are “liberal” and “conservative” versions of the parol evidence rule, for instance. But what does this actually mean, and how does it connect with the scholarship on judicial politics generally?  As it turns out, this question has been understudied, probably because political scientists have yet to find a way carefully operationalize what a “liberal” or a “conservative” outcome in a contracts case would be, and thus to usefully regress case outcomes against a judge’s political priors.  Many authors (Sunstein et al. 2004Christy Boyd and I, 2010) have found ideological effects outside of the typical con law regime (particularly in “business law” areas).  But I’m  aware of a few empirical papers analyzing the political valence of how contract doctrine comes to be. (Snyder et al. n.d.)  Some have suggested that contract law is a particularly hard area to study because selection effects loom so large. I would also note that most contract law “work” occurs at the state court level, where ideological measures are either explicit or very obscure.

If we found good measures, my own hypothesis would be that a particular judge’s worldview matters a great deal to how he or she resolves contract disputes – with priors about how much a person should be responsible for their own choices, and their perspective on market discipline, shaping how they understand the facts and thus apply the law.   Contract cases are powerfully controlled by judges – probably more so than in other areas of private law. Contract doctrine would reflect these individual choices, and we’d thus be left not withone  ”pragmatic” contract law, but rather many competing strands. I’d thus close by urging readers of Larry’s book to think a bit about the cases not picked out and illuminated in the narrative – where the judges are less wise and more human.

[Posted by JT]

October 22, 2012 in Books, Commentary, Famous Cases, Weblogs | Permalink | Comments (0) | TrackBack (0)

Cherry on Cunningham, Post III: Using Contracts in the Real World in the Classroom

The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions.  The original post can be found here.

Cherry

Miriam Cherry is Professor of Law at Saint Louis University School of Law. Some of her scholarship can be found at this link on SSRN.

Aside from the deeper theoretical questions that Prof. Cunningham raises about contract theory in Contracts in the Real World,  the heart of the book is in its fun, rollicking, and thoroughly modern examples.

Every contracts professor should take a look at this book to glean ideas for real-world examples and hypotheticals.  Even if your textbook is stuck in the world of itinerant homesteaders, ships using astrolabes for navigation, and delayed industrial components (shout out to KirkseyRaffles, and Hadley v. Baxendale!), your students will appreciate the use of some fun celebrity stories to liven up the classroom discussion.

The last time that I taught Contracts, for example, I did a series of hypotheticals based on Charlie Sheen’s contractual troubles.  Based on Prof. Cunningham’s materials, I was able to structure some hypotheticals based on Sheen for my unit on conditions.    The students seemed to appreciate it, and in fact, I have asked a student from my class last year to share her impressions with our blog readers. It appears here

[Posted by JT]

October 22, 2012 in Books, Celebrity Contracts, Commentary, Recent Scholarship, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Don Langevoort on Cunningham: Contracts and "Contracting"

Donald C. Langevoort is the Thomas Aquinas Reynolds Professor at Georgetown Law. 

Langevoort-don_1The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions.  The original post can be found here.

Like all the reviewers so far, I am a big fan of Larry’s book.  My interest in his approach comes partly from his way of bringing the subject alive, but more (and the book varies in the extent to which it does this deliberately) because it moves readers toward situating themselves in the time and place at which the bargain was struck and events play themselves out.  Erik Gerding makes this point, too, and I want to elaborate on it.  A case like Wood v. Lucy Lady Duff Gordon asks why the deal was expressed as it was, and thus what was the deal, really?  There is a good bit of writing in law and economics that tries to theorize about deal-making, and Victor Goldberg, among others, have done some very rich work on Lucy, among other cases.  I desperately want to engage my contracts students with these ideas, but find it hard to do without devoting more time than my 4 credits in a semster allows.  “Contracts in the Real World” gives the students a base for many of these intuitions (especially the chapter on interpretation and parol evidence), and I hope that it will at least stimulate their interest in thinking more about contract doctine in this way.  What I hope for most is that Larry or some reader will follow up on this volume with another dealing more explicitly with the “what were they trying to do?” and “was this a good way to do it?” questions.  I’m familiar with a couple of efforts in this direction, but so far they don’t work for me.  The person who pulls off that book in a rich, sophisticated but engaging way will earn my undying gratitude.  For now, however, I’m happy enough that Larry has given contracts students and teachers not only a great introduction to the human workings of contract law, but also some valuable impressions of the work-a-day world out of which some very interesting deals were conceived.

[Posted by JT]

October 22, 2012 in Books, Commentary, Famous Cases, Recent Scholarship, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Miriam Cherry on Cunningham, Post II: Modern Technology: A Disruptive Influence on Contract Doctrine?

The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions.  The original post can be found here.

CherryMiriam Cherry is Professor of Law at Saint Louis University School of Law.  Some of her scholarship can be found at this link on SSRN.

In my view, modern technology has exacerbated the doctrinal tensions within contract law.  Currently, clickwraps and browsewraps stretch the notion of mutual assent to its extreme, perhaps warping it in the process.

The recent literature on form contracting online has been substantial.  While some of this literature sees online contracting as a natural inheritance to traditional contract law doctrine, other commentators have argued that contracting online has distorted the doctrine.

In Contracts in the Real World, Prof. Cunningham attempts to reconcile two recent cases, Specht v. Netscapeand Pro-CD v. Zeidenberg, as part of his treatment of the theme of contract formation and mutual assent.  As much as he tries, to me the cases still seem to be in conflict.

Real WorldAnd if that weren’t enough, two well-known additional cases that dealt with late-arriving terms inside a computer box, Hill v. Gateway and Klocek v. Gateway, blatantly contradict each other, with contrary holdings on virtually identical facts.

In my mind, these contradictions reveal a mismatch in the doctrine and the reality on the ground.  If there is no way for consumers to read or understand, or perhaps even see these clickwrap agreements, it hardly seems fair to bind consumers to them.  As seen above, however, this leads to contradictory rulings.

Inconsistent holdings create the appearance of an arbitrary justice system, and these disputes, which are governed by the Uniform Commercial Code, should turn out in a uniform manner.  When they do not, it only intensifies the debate about how to deal with online contracting and adhesion contracts online.

As we all continue to click our way through countless EULAs and are told that we are subject to “terms and conditions” that no reasonable consumer has had the time to read,  I do not believe that it is enough to hope that antiquated laws will handle new situations.

Instead, I would suggest that we need to continue to build on the wisdom of contract law.  While there is much to celebrate in the received wisdom of ancient doctrines, we must also recognize that it is the common law’s dynamism and adaptability that have led to its genius.

[Post by JT] 


October 22, 2012 in Books, Commentary, Recent Scholarship, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Susan Heyman on Cunningham: Best Book for 1L Contracts

The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions.  The original post can be found here.

Susan Schwab Heyman is an Associate Professor of Law at Roger Williams University. Some of her scholarship can be found here on the SSRN. Full disclosure: she was once Cunningham’s student in Contracts.

Schwab-150x150Larry Cunningham’s provocative account of contract law in his new book Contracts in the Real World: Stories of Popular Contracts and Why they Matter is remarkable.  First, it provides a clear and easily cognizable overview of many topics including the leading cases covered in most first-year contracts courses.  Rather than providing readers with a treatise, he quickly gets to the essence of various topics including formation, unenforceable bargains, excuses, remedies, unjust enrichment, interpretation, modification, conditions, and third party beneficiaries.

The clarity with which Cunningham explains convoluted principles deeply embedded in contract doctrine makes it easy for general readers and particularly first-year students to understand.  Remarkably Cunningham is able to write with a flair and without legalese, while still preserving scholarly sophistication and retaining legal detail.  His book is therefore enlightening not only for general readers or law school students but also for academics, practitioners or anyone interested in contract law.

Real WorldSecond, Cunningham demonstrates classic contract law’s capacity to resolve popular contemporary problems.   He closely examines cases which seemingly only fascinate some of us as students or academics in such areas as mistake and frustration deriving from a fertile cow, a cancelled coronation, and the blockade of the Suez Canal.  He then applies these old chestnut cases to recent disputes involving overstated investments due to the Madoff ponzi scheme and Donald Trump’s delayed payments on his loans due to the Great Recession.  This approach teaches students that cases with even archaic facts can significantly impact contemporary legal disputes.

This book is a great supplement to traditional contracts casebooks as it puts the issues from century old cases into modern contexts.  In fact, I recommended this book to my students as a supplement to the Dawson, Harvey, Henderson, Baird casebook and have received only favorable feedback on the selection.   Students have found Cunningham’s approach helpful in conceptualizing how various topics in contract law fit together.   The book will not only enlighten students, but will also fascinate general readers, academics and practitioners.

[Posted by JT]

October 22, 2012 in Books, Commentary, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Erik Gerding on Cunningham: Contracts Outside the Box

Erik Gerding is an Associate Professor at the University of Colorado Law School

The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions.  The original post can be found here.

Gerding-150x150Let me start out with a criticism of Larry’s book: it is too much fun. I had a hard time breaking off just a chunk of Contracts in the Real World to write about and found myself spending several hours reading one interesting vignette after another on famous and infamous contracts.

The book will make a wonderful companion text to a traditional contracts casebook. Its value is not just in its engaging account of contract stories or in giving context to chestnut cases, but in providing a very intuitive framework for understanding contract law. The traditional contracts course, perhaps by virtue of having the doctrine of consideration at its heart, can be one of the most confusing in the One-L year. Students are often left to divine the inner structure (or lack thereof) of contract law on their own, likely while cramming for finals. Sometimes the epiphany comes. For many students it does not.

Larry has a real genius for laying out the doctrinal building blocks in a very thoughtful and accessible structure. He groups cases around a rough life cycle of contracts, with chapters devoted to “Getting In: Contract Formation,” to “Facing Limits: Unenforceable Bargains,” to “Paying Up: Remedies.” The layout of the book combined with its lucid writing demystifies contracts.

Real WorldThe layout may at first appear to make this book an ill fit as a companion text to many case books, because many of the cases appear in Contracts in the Real World under a different doctrinal heading than in a particular case book. For example, in the case book I currently use Batsakis v. Demotsis appears in the chapter on “consideration.” Larry places this classic next to cases on unconscionability. I also teach Lucy, Lady Duff Gordon in consideration, while Larry situates it in “Performing: Duties, Modification, Good Faith.”

These differences actually demonstrate a strength of the book. Some disconnect between the organization of a primary case book and a companion text forces students to move beyond a facile understanding of contract law in terms of rigid doctrines. Seeing cases in different contexts and fitting into different doctrinal boxes can help students see that lawyering involves more than memorizing black letter rules and putting issues into the right doctrinal box. Indeed, sometimes different doctrinal boxes can apply to the same problem and lead to the same result (witness rules on past consideration and duress). At other times, the choice of the doctrinal box makes a huge difference (see those same two doctrines). Accomplished students can move from memorizing blackletter law to seeing the possibility of creative lawyering. Larry’s organization – both intuitive and surprising – will help students at both stages.

One final strength of the book is Larry’s choice to include not only court cases but many contemporary contract disputes that never reached the courtroom (such as the dispute between NBC and Conan O’Brien). This brings into the classroom a wider panorama of how lawyers encounter and shape contractual problems in practice. After all, few contracts and few lawyers find their way into a courtroom. Most disputes are resolved in the shadow of law.

I also have a wish list for Larry’s next project (from personal experience, I can tell you how invigorating it is for an author who has just finished a book to be asked “what’s next?’). One of the limitations of the traditional contracts curriculum is how rarely students read and interpret – let alone negotiate or draft – actual contracts. It would be incredibly helpful as a professor to have some of the source contracts behind these stories. Although some of these contracts are already contained in a judicial opinion (Carbolic Smoke Ball) and many will not be public (Conan’s deal with NBC), others might be available with some digging. Having real and full contracts would allow professors to meet many of the items on Professor Collins’ wish list, such as transactional perspectives and drafting exercises. Although some lawyers litigate over failed contractual relationships, many more help parties plan prospectively – including by drafting and negotiating deals. For most attorneys, contracts are not an autopsy subject, to be dissected in a court opinion, but a living thing.

Professor Cunningham’s book provides a joyful reminder of the life in contracts.

[Posted by JT]


October 22, 2012 in Books, Celebrity Contracts, Commentary, Famous Cases, Recent Scholarship, Television, Weblogs | Permalink | Comments (0) | TrackBack (0)

Ronald K.L. Collins on Cunningham: Contracts in the Real World – At Last, a Book for Modern Minds

The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions.  The original post can be found here.

Ronald K.L. Collins is the Harold S. Shefelman scholar at the University of Washington School of Law.  His next book, Nuanced Absolutism: Floyd Abrams and the First Amendment, comes out this January followed in March by Mania: The Story of the Outraged and Outrageous Lives that Launched a Cultural Revolution (with David Skover). In 1995 he edited and provided commentary for the second edition of Grant Gilmore’s The Death of Contract.  By way of full disclosure, Professor Collins was one of the internal reviewers for Cambridge University Press when Contracts in the Real World was under publication consideration.  

Collins2-150x150In a world where contract law, as typically taught, has one foot in the quicksand of the past, Lawrence Cunningham’s Contracts in the Real World is a most welcome and liberating alternative.  Just consider the domain of what is commonly offered up:

  • sales of “Blackacre” circa the 18th and 19th centuries,
  • sailingships destined for Liverpool circa 1864,
  • carloads of Mason green fruit jars circa 1899,
  • a promise to pay ₤100 to anyone who contracted the flu after using a “Carbolic Smoke Ball,” circa late 19th century,
  • a 12-word “contract of sale” penned on the back of a “counter check,” circa early 1950s,
  • a material breach case about a dispute over the brand of pipe (Reading or Cohoes) to be used in the construction of a home (circa early 1920s),
  • representations made in 1959 in connection with a grocery “chain” begun in 1922 (by 2010 the “chain” was down to a lone store in Green Bay, Wisc.),
  • promises re an option to buy a ranch, circa 1960s, and
  • a 1965 contract involving the 78 year-old actress Shirley MacLaine (co-star of the 1960 movie The Apartment).

One need not be wed to Henry Ford’s maxim that “history is bunk” to appreciate that much of what is presented in contracts casebooks is past tense, past perfect, and past its time.  While such an approach to teaching contracts may be a boon to slothful professors averse to updating their class notes, it does little to prepare today’s law students for the challenges facing them in the 2012 marketplace of digital deals.

Real WorldGiven the yester-world of many contracts casebooks, it is refreshing to have a book that brings modernity onto the stage of legal education.  While Professor Cunningham pays due deference to the canonical cases (e.g., Lawrence v. Fox, N.Y., 1859), he does so in ways that reveal their contemporary relevance (e.g., as in how that precedent applied to a 2005 Wal-Mart dispute).  Moreover, what is so stimulating about his book is that Cunningham highlights the law relevant to current business dealings of everyone from Bernard Madoff and Donald Trump to Lady Gaga and Paris Hilton, and 50 Cent, too.  There is even a case involving a dispute over the rights to the HBO TV series The Sopranos.

Likewise, Cunningham both identifies and understands the real-world contexts of modern contract law involving everything from electronic transactions and confidentiality of information, to agreements re season tickets subscriptions for sports events, to entertainment contracts, to Amazon’s provider contracts, to any variety of contemporary non-disclosure agreements, et cetera.

In all of these ways and many others, Contracts in the Real World stands alone as a work that ushers the law of contracts into our times.

At the risk of sounding unduly laudatory, this book was a joy to read. Both stylistically and substantively, it is a work of admirable achievement without a real rival.  When one offers such acclaim, there is a corresponding obligation to justify it.  Hence, permit me to explain my evaluation, at least in summary fashion.

Pedagogical Approaches & Big-Picture Perspectives 

The structure of the book is sound; it reflects both a sober and informed understanding of how the law of contracts should be taught and how best to present the materials in order that they might be adapted for use with exiting casebooks.  The author covers all of the major topics and more.

The content is classical and contemporary.  As I have said, with this book the law of contracts stands to be modernized, something it sorely needs.  The book speaks to students in the culture of their times, and not in that of nineteenth-century England.  While most contracts casebooks recycle old “stuff” ad infinitumContracts in the Real World offers exciting new examples of how the law works today.

The pedagogical approach is instructive.  One example of what I mean here is the book’s use of codas.   The coda on formal rules versus contextual ones in the formation context, and the coda on formal rules versus flexible ones in the context of restitution and unjust enrichment, offer valuable cautionary lessons that are all-too-frequently overlooked by students barraged with rules and doctrines.

The book’s evolutionary approach (e.g., from the insights of Dean Langdell to the challenges posed by Baby M contracts and beyond) is most attractive.  The inclusion of a big picture perspective is also instructive.  The author’s “why” and “what” discussions along with his discussion of the “political philosophy” underlying contract law in a highly advanced capitalist culture take his readers outside of the dark and confining cabins of legal doctrine and into the sunlight of jurisprudence writ large.

Along the way, Professor Cunningham skillfully interlaces the main jurisprudential figures – e.g., Williston, Corbin, Langdell, Holmes, Cardozo, et al – into his narrative weave. Cunningham is also quite familiar with the relevant contract law scholarship, whether it be important but long-forgotten articles (e.g., Nathan Isaacs’ 1917 article on standardizing contracts) or significant new articles (e.g., Seana Shiffrin’s 2007 and 2009 articles on contracts, promises, and morals).  That said, Contracts in the Real World could have used a dollop of Posner here and there.  [See Lawrence A. Cunningham, “Cardozo & Posner: A Study in Contracts,” 36 William & Mary L. Rev. 1379 (1995).]

Welcome to the Real World (of Today’s Commercial World)

The way the author situates his doctrinal and policy analysis in actual commercial contexts is extraordinary.  Too much of contract law, as taught and written, is black-letter doctrine crammed into old conceptual boxes (the stuff Grant Gilmore railed against in The Death of Contract).  What is missing is “Llewellyn Realism” – that is, the ability to locate the law in the commercial settings in which it actually operates.

Chapter 3 (“Getting Out:  Excuses and Termination”) masterfully illustrates how the mechanics of the business world need to mesh with the law’s standards.  Clearly, Professor Cunningham knows the commercial world of which he writes and the law (old and new) which governs it. Chapter 3 illustrates this in vivid and educational detail.  There, Cunningham puts that knowledge to good use as he explains, among other things, the modern-day plights of the likes of a divorced couple forced to litigate their financial fates in the wake of the Madoff scandal and against the doctrinal backdrop of an 1887 case about an Angus cow.  The result is a remarkable narrative that brings the workings of today’s commerce into the world of yesterday’s law but with the added benefit of how that body of old law might be reshaped to suit new circumstances.

An increasing number of law professors are critical, and rightfully so, of the appellate-court-centric perspective offered in so many law school courses and texts.  One of the strengths of this book is that its domain is not confined to appellate court decisions.  As indicated above, the author has mined the fields of popular and commercial culture to offer up examples of contracts in context, in contemporary contexts moreover.  In this transactional world, bargaining for the deal can be more instructive to students than dissecting the entrails of appellate opinions.  (See Ronald Collins & Edward Rubin, “To Aid Business, Change Law School,” New York Times, March 5, 1995, sect. 3 (Business), p. 9)

Forward into the Future

The difficulty of framing any concept of “law” is that there are so many things to be included, and the things to be included are so unbelievably different from each other.  – Karl Llewellyn (1930)

Contracts in the Real World could become a significant breakout book in its field of study.  It does this by weaving historical materials with their contemporary counterparts to produce a useful and thoughtful little book that is engaging to read at every turn from contract formation to contract interpretation to the law of third-party beneficiaries.

With Contracts in the Real World we have tasted Modernity – and what a delight it is to savor!  This 254- page book with its nine inviting chapters could serve as a blueprint for a future generation of contracts coursebooks (notice I did not say casebooks).  The time has come to start anew, to bid farewell to sailing ships and greet the new world that harbors Modernity. Wearisome conformity aside, the time is ripe and the opportunities are ample.  Consider, for example, contracts coursebooks patterned after Contracts in the Real World with added features such as:

* Materials related to various transactional approaches to the law of contracts,

* Exercises in drafting contracts sensitive to the demands of negotiation and the requirements of law, and

* Exercises designed to revisit key concepts such as promise and consent and reconsider questions of interpretation in order to better understand how such matters operate in our current commercial culture.

And if such books were offered up in digital form to be read on iPads or their electronic counterparts, then a host of new materials (including audio-visual and interactive ones) could be presented to students to further enrich their education. (See Edward Rubin, editor, Legal Education in the Digital Age(2012)).

It is difficult to deny:  The law is the refuge of the antiquarian.  But it need not be simply so. It can step through the wide doors of time and into a world where a new reality beckons to be embraced.

[Posted by JT]  

October 22, 2012 in Books, Commentary, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Miriam Cherry on Cunningham: Dichotomies in Contract Theory and Doctrine

The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions. The original post from Concurring Opinions can be found here.

Miriam Cherry is Professor of Law at Saint Louis University School of Law.  Some of her scholarship can be found at this link on SSRN.

CherryIn this blog post, I would like to examine some of the dichotomies in contract theory and doctrine that are noted in Professor Cunningham’s Contracts in the Real World.  Some would claim that contract law is revolutionary; others would argue that it is reactionary.  Compared to the status relationships of the Middle Ages, in which economic power was primarily determined through feudal or family relationships, contract and market relations promised a more egalitarian alternative.

In the classic text Ancient Law, Sir Henry Maine described the radical transformation from a feudal society governed by custom and hierarchy to one transformed by the industrial revolution, in which socio-economic mobility was not only possible, but which was expected.  On the other hand, many today would argue that contract acts as a reactionary force, for enforcing bargains strictly as written could result in reinforcing the power imbalances that already exist in society.

Real WorldContracts in the Real World notes these dichotomies and strikes a middle ground between them.  Prof. Cunningham characterizes the schism in contract law as a dispute between formalists and realists.  This schism, he posits, applies even to foundational matters, such as the question of whether a contract has been formed.  Prof. Cunningham notes that extreme formalists would champion a return to the days of the seal and enforce only those deals that meet the strict definitions of offer, acceptance, and consideration.

Realists, on the other hand, favor scrutinizing the context of every bargain, accepting the most informal of deals and even enforcing promises to make gifts as contracts.  Thus the dichotomy between formalists and realists turns into a debate over the extent of government or court involvement in private ordering.

Throughout the book, Prof. Cunningham walks a tightrope between these positions, often making reference to contract law’s “sensible center,” and noting that with many common problems, the rules that have evolved over the years make a good deal of sense.  In essence, he makes a case for the status quo, eschewing reform in either the direction of more government interference in contract, or government withdrawal from contract.

Prof. Cunningham suggests that current law strikes the proper balance between two rather extreme positions.  The book extols the earthy pragmatism of old precedents and wise judges, and suggests that these doctrines will ultimately win out and reach a balance.  In my next blog post, I will question whether this assertion holds true in the context of technological change.

[Posted by JT]

October 22, 2012 in Books, Commentary, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tom Lin: Contracts in the Real World and Contracts in Law School

The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions.  The original post can be found here.

Tom C.W. Lin is an Assistant Professor of Law at the University of Florida Levin College of Law.  His recent scholarship can be found on the SSRN here.

 Thank you to our hosts at Concurring Opinions for inviting me to participate in this online book symposium.   It is a pleasure for me to discuss Larry Cunningham’s engaging new book on contracts.

Lin1The title of Larry’s new book is Contracts in the Real World.   Intentionally or not, the title suggests that there may exist another realm for contracts other than the real world, a realm that is perhaps more theoretical and not completely real.   The alternate universe that most readily comes to mind is law school.  Contracts in the real world exist in partial contrast to contracts in law school.

Contracts in the real world bind parties and counterparties to one another.  Contracts in law school bind students to casebooks and laptops.  Contracts in the real world frequently revolve around compensation, obligations, and duties.  Contracts in law school frequently revolve around precedents, arguments, and defenses.  Contracts in the real world are about contracts.  Contracts in law school are about cases about contracts.  Needless to say more, there exists a meaningful and significant gulf between contracts in the real world and contracts in law school.

Larry’s book serves a bridge across this gulf.  Through wide-ranging popular stories about the prominent and the pedestrian crafted in accessible language yet not devoid of legal doctrine, the book connects contracts in law school with contracts in the real world.  Law school concepts like offer, acceptance, mitigation, and assignment are illuminated by real world stories of popular contracts involving Pepsi ads, Dateline NBC, Redskins tickets, and Haagen-Dazs ice cream.


Real WorldThe conceptual meditations of contract scholars like Cardozo, Corbin, and Williston are expressed and explained in contract controversies involving well-known figures such as Michael Jordan, Maya Angelou, and Lady Gaga, and through common experiences like purchasing lottery tickets, signing mobile phone agreements, and buying football tickets online.  Given the accessible language and popular stories, it is easy for the reader to be lulled into forgetting that they are reading and learning about the law, much in the same way that Tom Sawyer lulled his friends into whitewashing a fence by making it seem more like a treat than a chore.

Through stories, common and classic, Larry reminds us that contracts are not pacts chiseled in stone that bind parties to one another in an empty, static, and monochromatic world without regard for reason or sense.  Rather, contracts are dynamic communions between parties that exist in a colorful world filled with complications, change, and consequence.  This means that contracts manifest agreements that are frequently honored as intended, but it also means that contracts are sometimes modified, breached, and enforced against another’s preferences because these agreements exist in a dynamic world.

Throughout the book, Larry advocates for a thoughtful, balanced view of contract law; this balanced view departs from heedless, extreme views of contract law based on rigid and impractical notions of freedom of contracts or social justice that frequently find root in irreconcilable moral, political perspectives.  Likewise, contracts in law school and contracts in the real world should strive to find what Larry calls a “sensible center.”

Scholars, students, and practitioners of contract law can all greatly benefit from finding this balanced core as well because contract law is perhaps most enjoyable, most thoughtful, and most useful, when theory and pedagogy meets experience and practice, when there is a meeting of the minds between contracts in law school and contracts in the real world.

Larry’s book is a much welcomed addition to the literature on contract law.  It will be enjoyed by many who deal with contract law, be it in law school, the real world, or somewhere in between.

[Posted by JT]

October 22, 2012 in Books, Commentary, Contract Profs, Recent Scholarship, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, September 7, 2012

Welcome to the Blogosphere: Bill of Health

We share the following press release from the Petrie-Flom Center at Harvard Law:  

Bill of Health

The Petrie-Flom Center is excited to announce our latest venture – the launch of a new blog, titled Bill of Health, edited by Petrie-Flom faculty co-director, I. Glenn Cohen, and Petrie-Flom executive director, Holly Fernandez Lynch.  The blog will go live Wednesday, September 5, 2012, and can be accessed at http://blogs.law.harvard.edu/billofhealth/.  

Our goal is to provide a one-stop shop for readers interested in news, commentary, and scholarship in the fields of health law policy, biotechnology, and bioethics.  You can expect to find regularly updated posts reacting to current events, testing out new scholarly ideas, reviewing the latest books, and announcing conferences, events, and job openings.  We also hope to cultivate a strong community of commenters, so that the blog becomes an interactive discussion forum.

A widely collaborative effort, Bill of Health features content from Petrie-Flom affiliates, as well as leading experts from Harvard and beyond.  Institutional collaborators include HealthLawProfs Blog, the Yale Interdisciplinary Center for Bioethics, and the Robert Wood Johnson Foundation’s Public Health Law Research program at Temple.  We’ve also lined up a stellar cast of bloggers so far, including:  

Tom Baker
Cansu Canca
Arthur Caplan
Daniel Carpenter
Amitabh Chandra
Greg Curfman
Einer Elhauge
Richard Epstein
Nir Eyal
Michele Goodwin
Rebecca Haffajee
Russell Korobkin
Greg Koski
Katie Kraschel
Stephen Latham
Ted Marmor
Max Mehlman
Michelle Meyer
Abby Moncrieff
Efthimios Parasidis
Wendy Parmet
Frank Pasquale
Suzanne Rivera
Al Roth
Ted Ruger
Bill Sage
Laura Stark
Erin Talati
Nicolas Terry
Katharine Van Tassel
Daniel Vorhaus

In addition, we’ll be joined by some great guest bloggers, including Mark Hall, Allison Hoffman, Adam Kolber, Jon Kolstad, Kristin Madison, Anup Malani, Arti Rai, Annette Rid, Chris Robertson, Nadia Sawicki, Seema Shah, Talha Syed, Dan Wikler, and Susan Wolf, as well as a several Petrie-Flom graduate student affiliates.   Read more about our team here.

Please take a moment to stop by and check out Bill of Health

For more information, contact:

Holly Fernandez Lynch, hlynch@law.harvard.edu, 617.384.5475

[JT]

September 7, 2012 in Law Schools, Weblogs | Permalink | TrackBack (0)

Thursday, August 2, 2012

Discussion of Consideration over at Concurring Opinions

Paul_McCartney_Over at Concurring Opinions, David Hoffman has called our attention to a "bizarre" consideration issue at the Olympics.  Professor Hoffman liniks to this story in The USA Today, according to which the performers at the Olympics halftime show -- whoops, make that opening ceremonies -- including Paul McCartney, donated their time.  According to The USA Today, the performers received a mere one pound for their performances, and that one pound was paid in order to make the performers' agreements with the Olympics binding.

Professor Hoffman comments as follows:

If true, I take it that British law takes the position that nominal consideration can bind obligees, but that “false” nominal consideration can’t.  Thus, the organizers had to both promise to pay McCartney a pound and actually pay it before the ex-Beatle was bound to perform.

To my  mind, this is the least good resolution of the consideration problem possible.  Look: either consideration should mean something – bargained for exchange motivating actual counter-promising – or parties should be free to dispose of the requirement of consideration entirely.  In the United States, only Pennsylvania has taken that sensible latter position.  The rest generally tend to require actual bargained for exchange, excepting only charitable subscriptions, which the Olympics are not.  The Brits, who handed us this mess in the first instance, have apparently now embraced the unfortunate, mumbo-jumbo, hybrid, which reduces the sensible formality of consideration to a bit of a magical contract theatre.  Does anyone think that that pound of consideration actually motivated McCartney’s promise to perform?

Interesting comments follow, including those of Patrick O'Donnell, to whom we tip our virtual hats for having directed us to the Concurring Opinions post.

Unfortuantely, we have at present nothing substantive to add to the learned discussion of at Concurring Opinions.  However, we would like to observe that perhaps Sir Paul is happy to work for nominal consideration given that just a few weeks ago, as reported by the BBC, concert organizers pulled the plug on him and Bruce Springsteen because they performed past a curfew in Hyde Park.

Band member and erstwhile proprieter of "Da Bing," Steven Van Zandt, tweeted rhetorically "When did England become a police state?"  

[JT]

August 2, 2012 in In the News, Music, Sports, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 1, 2012

10 Questions for @theContractsGuy

TheContractsGuy_graphic_2_Brian Rogers a/k/a @theContractsGuy is a St. Louis business lawyer and self-described "contracts aficionado"; he has an excellent blog at thecontractsguy.net.  He was kind enough to answer 10 questions, including a restaurant recommendation, in case you are ever in St. Louis.  

When did you realize you had a passion for contract law?

 I fell in love with contracts while working in the legal department of a Fortune 500 company during a 15-month period early in my legal career (on loan from my law firm through a secondment). I’ve long been fascinated by business, and contracts are where the rubber meets the road and business deals are hammered out. Nothing is more satisfying than looking at a deal through lawyer goggles and identifying important business issues that your client hasn’t thought of.

Who is your typical client? 

I do M&A and general corporate work in addition to commercial transactions, and the typical client profile varies depending on the type of work. Contracts clients tend to be larger companies in industries where a business’s relationship with its suppliers or customers is complex. The best clients are those who’ve found contract religion as the result of being involved in litigation over a contract and having an unfavorable result. Those clients tend to appreciate the danger of time bombs sitting in their file cabinets in the form of bad contracts.

What is something interesting you worked on recently?

 One of the most interesting projects I’ve done involved a franchisor that wanted its franchisees in the US and Canada to refresh the look of their stores. I represented the contractor that won the bid to perform the work. The project involved drafting and negotiating an agreement between the contractor and the franchisor that balanced the interests of the franchisor and contractor, while properly inducing the franchisees to participate. It was interesting work for a wonderful client with exceptional opposing counsel.

What is the single most valuable lesson you learned in the first year (or so) of practice?

Always produce quality work product. In the rough and tumble of practice you often have to juggle deadlines and multiple projects and sometimes something has to give. Shoddy work product is always the wrong answer. Also, for those who plan to practice in large firms, the proper method of genuflection varies from partner to partner. Keep a list.

What do you wish someone told you when you were in law school?

The practice of law is stressful. It’s an inherent part of the job — even when you work with personable colleagues and for understanding clients — because the stakes are high and the work is important. Job stress said “howdy” my first day on the job and it’s been a constant companion every day since.

What are your 3 favorite legal blogs or websites?

Besides ContractsProf Blog … Ken Adams’s The Koncise Drafter is excellent if you want to get into the weeds of technical drafting issues. I also read IP Draughts, which is published by UK intellectual property attorney Mark Anderson and approaches contract issues from a practical perspective. And China Law Blog has no peer when it comes to providing insight into being a good transactional attorney. I’d highly recommend it even if your clients don’t do business in China. I published a piece on my blog that explains what’s so good about that blog. 

Who should ContractsProf readers be following on Twitter?

· Eric Goldman (@ericgoldman), a law professor, publishes the Technology & Marketing Law blog
· Greg Lambert (@glambert), a law librarian, is one of the “geeks” who publish 3 Geeks and a Law Blog
· Bradley Clark (@bradleybclark) is a young business lawyer from Texas
· Docracy (@docracy), an open source contracts start-up, is powered by Veronica Picciafuoco.

Has legal scholarship ever been valuable to you in your practice?

I often go to the journals when I’m doing in-depth research. One of the most useful articles I’ve read is “After the Battle of the Forms” by Francis J. Mootz III in I/S: A Journal of Law and Policy. The article has informed my thinking about the battle of the forms in today’s contracting world. Plus, it introduced me to the term “sign-wrap,” which I think is a good way to think of on-line contract terms that are incorporated into paper contracts by reference.

Best efforts or reasonable efforts?

Reasonable efforts. If anything beyond reasonable is expected, it should be spelled out in the contract.

What is your favorite restaurant in St. Louis?

My wife and I like Stellina - the best, hands down. Located just outside the Hill neighborhood, which is known for its Italian restaurants, Stellina is a small café that makes its own pasta and desserts from fresh ingredients, and it has a great, casual atmosphere.

[Meredith R. Miller]

August 1, 2012 in Miscellaneous, Quotes, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 24, 2012

Call for Blog Entries Renewed: Journal of Energy Law and Resources

The newly formed LSU Journal of Energy Law and Resources (JELR) at the Louisiana Sate University Paul M. Hebert Law Center invites submissions of articles for the Journal’s companion blog, The LSU Law Energy Blog. The blog will launch in August 2012 and will continue to publish pieces on a rolling basis. JELR is a student-edited journal devoted to the promotion of legal scholarship in energy law.   The Journal is committed to publishing a variety of topics within the purview of energy law, including interdisciplinary pieces. The LSU Law Energy Blog will supplement the Journal by providing shorter articles on recent developments in energy law and the surrounding fields published by students, practitioners, and professionals in these fields.

Submissions: To be considered for publication on The LSU Law Energy Blog, please submit an entry on a current, relevant energy law topic or a case note on a major energy law case. Topical entries should be around 500 words and case notes may be longer. The deadline for submissions is quickly approaching—July 31. Please email these entries or requests for deadline extensions to jelr@law.lsu.edu.

[JT]

July 24, 2012 in Law Schools, Weblogs | Permalink | TrackBack (0)

Monday, May 21, 2012

Representations and Warranties

Over at Ken Adams' Koncision blog, he has a fascinating post and cri de coeur about how to present statements of fact in a contract.  I recommend this post and this blog to practitioners who are interested in writing neat, clean, clear, and above all enforceable agreements.  In this post, Ken urges contract drafters to eschew the magic words "representations" (or "represents") and "warranties" (or "warrants"). in favor of the simpler "states."

Carbolic_smoke_ball_co
I think I agree with Ken that the phrase "represents and warrants" is reflexive boilerplate that creates confusion in most cases.  Unlike Ken though, I think the terms have clear, separate meanings and that they retain their utility when used separately and precisely.

While I have not thought the issue through with Ken's gusto, I am far more inclined to be a traditionalist on such matters.  "States" does not mean the same thing as "represents," and there are reasons to be persnickety about this.  I may state that I am the very model of the modern major general, but that is very different from representing that I am.  Having parties state things in contracts has no meaning in standard contract parlance, nor should it because one cannot rely on a mere statement unless it is accompanied by another statement, one which acknowledges that such reliance is warranted because the party stating the facts also represents that they are true.  So, my inclination is to disagree with Ken's claim that only those of us introduced to the mysteries of the law can appreciate the difference between a statement and a representation.

I likewise disagree with Ken's claim that most practitioners could not identify the difference between a warranty and a representation or that their failure to respond satisfactorily when subjected to the terrors of my Socratic questioning is relevant to the issue of whether or not there is a useful distinction between the terms as a matter of contracts law.  If the majority of practitioners said, "I don't know; I'd have to look it up," that would satisfy me, so long as people like Ken keep writing drafting manuals that explain the difference between a statement of fact and a warranty.

Ken says that courts do not really recognize the "magic words"  ("represents and warrants") as operating as many people think they do.  However, his evidence only states that you can create a warranty without invoking the words "warranty" or "guarantee."  That evidence is not enough to persuade me that a carefully drafted contract should not clearly identify its warranties as such, and it seems to me that using some form of  the word "warranty" is the best way to do so.  As far as substituting the word "[party X] states" for "[party X] represents," with respect to factual statements/representations, I see the advantages of plain language, but beyond that, I think a representation is something more than a statement and therefore that the traditional language should be preserved.

Let the blawg battle begin!

[JT]

May 21, 2012 in Commentary, Weblogs | Permalink | Comments (6) | TrackBack (0)

Thursday, May 17, 2012

Welcome to the Blawgosphere: LSU Law Energy Blog

Call for Blog Entries

Lsu1The newly formed LSU Journal of Energy Law and Resources (JELR) at the Louisiana Sate University Paul M. Hebert Law Center invites submissions of articles for the Journal’s companion blog, The LSU Law Energy Blog. The blog will launch in August 2012 and will continue to publish pieces on a rolling basis. JELR is a student-edited journal devoted to the promotion of legal scholarship in energy law.   The Journal is committed to publishing a variety of topics within the purview of energy law, including interdisciplinary pieces. The LSU Law Energy Blog will supplement the Journal by providing shorter articles on recent developments in energy law and the surrounding fields published by students, practitioners, and professionals in these fields.

Submissions: To be considered for publication on The LSU Law Energy Blog, please submit an entry on a current, relevant energy law topic or a case note on a major energy law case. Topical entries should be around 500 words and case notes may be longer. Please email these entries to jelr@law.lsu.edu. For publication on the blog in Fall of 2012, please submit a polished entry by July 15, 2012.

[JT]

May 17, 2012 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 28, 2012

WSJ Online's agreement and illusory contracts

A federal district court in New York recently ruled in Lebowitz v. Dow Jones & Co. that the Wall Street Journal Online's subscriber agreement was not illusory merely because it had a provision that allowed it to change fees at any time. (H/T Eric Goldman's Technology & Marketing Law Blog which has been on a roll with 'wrap contract issues). Pursuant to their agreement, subscribers to the Wall Street Journal Online obtained access to the Wall Street Journal Online and Barron's Online. Dow Jones (parent of both companies) decided to spin off the Barron's service. Existing subscribers were then told they could continue to access one service, but could only access the other for an additional fee. Plaintiffs sued, claiming breach of contract. At issue, was the following clause of the subscription agreement:

"We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance....This Agreements contains the final and entire agreement between us regarding your use of the Services and supersedes all previous and contemporaneous oral and written agreements regarding your use of the Services. We may discontinue or change the Services, or their availability to you, at any time."*

The court found that Dow Jones was expressly permitted to change its services and/or fees (it gets a little fuzzy which in the opinion) pursuant to this clause. Plaintiffs argued that interpreting the above clause to mean that Dow Jones can change the fees at any time (even during the term which has already been paid for), would render the argument illusory and so such an interpretation should be avoided. The question then was whether that clause rendered the agreement illusory. The court held that it did not because "Dow Jones acted reasonably, and therefore this provision of the Subscriber Agreement is not illusory." [This seems a bit backward. It should have said that courts will interpret a requirement of reasonableness into seemingly illusory contracts if it's clear the parties intended to enter into the contract - since the court concluded that Dow Jones didn't act unreasonably, there was no breach]. I'm not sure I agree with the court's decision and wish I had a copy of the entire agreement. It seems a better interpretation of the clause would be that Dow Jones could change the fees but that subscribers would be able to discontinue the subscription and get their prepaid amounts back if they did not like the increase. I don't think that was an option. The court seemed to think that there was no real harm done by changing the terms of the agreement (even before the subscription period had expired) because the majority of WSJ Online subscribers didn't access Barron's Online. (It may also have made a difference that plaintiffs were seeking class certification)

*This provision was accidentally dropped when I copied the text in the original version of this post.

** I plan to blog a little bit more about the notice aspects of this case after I've had a chance to review the pleadings in the case.

[Nancy Kim]

March 28, 2012 in E-commerce, Recent Cases, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2012

Mike Daisey Claims to Have Breached a Contract with His Audience

IPadThe backstory:

1. A monloguist named Mike Daisey performed a very successful show, "The Agony and Ecstasy of Steve Jobs" which purports to be, in part, an account of his trip to China to investigate conditions at the factories at which Apple products are manufactured.

2. Ira Glass, host and creator of my favorite radio program, "This American Life" was impressed by Daisey's show and decided to devote an entire episode of "This American Life" to the part of Daisey's monologue that seems to be a piece of investigative reporting.  

3. After being alerted to factual errors in Mr. Daisey's monologue, This American Life devoted another entire episode to a retraction of its report on conditions in Apple's factories to the extent that the earlier reporting relied on information provided by Mr. Daisey that turned out to be untrue or unreliable.  Mr. Daisey agreed to be interviewed in connection with that retraction and the results were pretty ugly.  Mr. Daisey admitted to some outright falsehoods, but he defended the larger truths of his work.  His mistake, he claimed, was in agreeing to put his monologue on "This American Life," since it works as theater but not as journalism.  

Ira_GlassIra Glass, who as the picture at right indicates, is adorkable but hardly physically imposing, entered a phonebooth, emerged as a truth-seeking action hero, and tore Mike Daisey a new one.  There's an exchange, which you can read on page 19 of the transcript of the retraction, in which Glass asks Mike Daisey if he is going to stop representing his monologue as having happened to him.  Daisey tried to claim that in the theatrical context "we have different languages for what truth means."  Glass, who saw Daisey's show, responds that Daisey is "kidding himself" (i.e., delusional) if he thinks that the people in his audience are not deceived when he relates a first-person monologue as if it happened to him.  Daisey claims that they just have different "worldviews," and Glass insists that his own worldview is the normal one.  

Mike Daisey, who really seems to be unable to abandon the spotlight, continues to give interviews about his monologue and about the revelations of inaccuracies in the monologue.  Eerily enough, one of Mr. Daisey's earlier monologues was about James Frey, whose fake memoir, A Million Little Pieces, famously unraveled (the monologue is called "Truth").  Glass asks Mr. Daisey about that monologue on pages 15 and 16 of the transcript.  In that monologue, Daisey had admitted to having fabricated some experiences in order to connect with an audience.  Daisey denies that the inaccurancies about his time in China were a result of such a desire to connect.  He says, "No, no, because I didn’t, um, no I made a choice to put that, you know, I made a choice to put that detail in that scene, in that way."

Whatever.

Now, reminded of earlier self-important statements about the importance of truth and praising his own scrpulousness in letting his audiences know when he is reporting true events and when he is making stuff up, Daisey has acknowledged that he did not live up to his own standards.  As Daisey puts it on his blog

When I said onstage that I had personally experienced things I in fact did not, I failed to honor the contract I’d established with my audiences over many years and many shows. In doing so, I not only violated their trust, I also made worse art. 

Even in this mode, Daisey is unable to refrain from self-aggrandizement.  He did violate a trust and make worse art than his shows could have been if he were capable of honesty.  But he did not fail to honor a contract because he never entered into a contract with his audience.  

After a series of apologies to the various consituencies who may or may not have been harmed or offended by his transgressions, Daisey concludes by invoking one of his acting teachers and pledging: 

I will be humble before the work.

That's all well and good, but the acting teacher was probably talking about acting in someone else's play or performing someone else's script or at least showing humility when working with other performers.  When one is in the business of first-person monologues and "the work" at issue is a report on one's own experiences, before what exactly is one being humble?

Joshua Mehigan describes his poetry as a means of rendering his narcissism palatable.  Perhaps that's what first-person monologues strive for as well.  But once the performer becomes thoroughly unpalatable, one is left with a performance of narcissism itself.

[JT]

March 27, 2012 in Commentary, In the News, Web/Tech, Weblogs | Permalink | Comments (2) | TrackBack (0)

Wednesday, January 11, 2012

Another Arbitration Decision from the Supreme Court

SCOTUSYesterday, the U.S. Supreme Court issued its decision in CompuCredit Corp. v. Greenwood.  In an opinion that was unsurprising according to the folks over at the ADR blog (that is, according to Sarah Cole and Paul Kirgis), SCOTUSblog provides coverage as well here.  Justice Scalia, writing for the majority, enforced an arbitration clause in a credit card agreement, reversing the Ninth Circuit, which had found the clause inconsistent with the Credit Repairs Organization Act (CROA).  Justices Kagan and Sotomayor concurred.  Only Justice Ginsburg dissented. 

The Ninth Circuit and the District Court had ruled that the arbitration clause was void because of language in CROA secuiring for consumers the "right to sue" and there are also references to class actions and to courts.  The opinion was unsurprising, according to the ADR Bloggers, because similar language has been construed in previous cases and, as Sarah Cole concludes, "Until Congress decides to make it clear that a particular statutory claim cannot be arbitrated, the Court will continue to find that statements like “right to sue” and “cause of action” cannot be construed to avoid application of the FAA."

[JT]

January 11, 2012 in Recent Cases, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, January 5, 2012

Review of Schwartz & Riebe, Contracts: A Context and Practice Casebook

Over at the Legal Skills Prof Blog, Scott Fruehwald has a review of Michael Hunter Schwartz and Denise Reibe's Contracts: A Context and Practice Casebook.

For those who don't want to jump to the link, here's a taste of what Scott has to say:

CasebookContracts: A Context and Practice Casebook by Michael Hunter Schwartz and Denise Riebe is one of the new type of casebooks that combines doctrine, skills, and professionalism into the same course. This book does this very successfully, and it can serve as a model for future casebooks.

. . . .

It is on the chapter level that Schwartz and Riebe depart from the usual model of casebooks. While each chapter still largely consists of edited cases, the authors have added other materials on problem solving and other miniskills. Each chapter begins with a real-world problem, which the student is required to solve at the end of the chapter. The solution can be an exam answer, an office memo, a client letter, contract clauses, etc. Unlike traditional casebooks, each chapter introduces the subjects of that chapter, often with visual aids that help the students organize the doctrine. The authors organize each subtopic around cases. They ask focused questions before each case and have follow up questions and exercises afterwards. The exercises are hypotheticals, synthesis exercises, and problem-solving exercises. Each chapter ends with professional development reflection questions. (Where better to teach contracts ethics than in contracts?) Not only do these questions deal with contract ethics, they include questions and exercises on student well-being.

After having thoroughly studied this casebook over the last few weeks, I believe that it accomplishes what it sets out to do.

I had not heard to this casebook before -- or even of this series.  I note that the Casebook is somewhat shorter than others I have looked at, but it costs about half as much.  Something to keep in mind in these troubled economic times.

[JT]

January 5, 2012 in Recent Scholarship, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

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)