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Monday, October 22, 2012

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)

Monday, October 24, 2011

Round-up From the Blawgs

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

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

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

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

[JT]

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

Tuesday, October 11, 2011

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

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

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

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

[JT]

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

Thursday, October 6, 2011

Freaks and Gleeks

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

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

The details of the contest are here.

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

[JT]

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

Monday, July 25, 2011

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

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

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

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

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

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

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

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

[JT]

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

Thursday, July 21, 2011

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


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

Here is Alan's commentary:

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

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

Thanks for the tip, Alan!

[JT]

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

Wednesday, July 6, 2011

All Hail Blog Emperor Paul Caron

On the occasion of his 20,000th post.

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

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

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

[JT]

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

Tuesday, July 5, 2011

New Blog

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

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

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

Welcome to the Blogosphere!  May your pageviews be plentiful.

[JT]

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