ContractsProf Blog

Weekend Frivolity: Deadheading Mums

Sorry all!  It's been a slow week on the blog because teaching, believe it or not, is hard work!  Also, I overcommitted on the writing front.

In the meantime, don't forget to deadhead your mums!  This video delights me.

 

 

Tuesday Top Ten - Contracts & Commercial Law Downloads for September 21, 2021

So, who wants to know what's trending in contract and commercial law scholarship? You do, of course! That, we presume, is why you're here, so let's dive rightin:

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 23 Jul 2021 - 21 Sep 2021

Rank	Paper	Downloads
1.	The New Formalism in Private Law Paul B. Miller Notre Dame Law School	195
2.	Herbert Hovenkamp as Antitrust Oracle: Appreciating the Overlooked Contributions of the New Harvard School Christopher S. Yoo University of Pennsylvania Law School	186
3.	Arthur Linton Corbin Gregory Klass Georgetown University Law Center	83
4.	Introduction to Civil Wrongs and Justice in Private Law Paul B. Miller and John Oberdiek Notre Dame Law School and Rutgers, The State University of New Jersey - Rutgers Law School	82
5.	Dark Contracts Samuel Becher and Uri Benoliel Victoria University of Wellington and College of Law and Business - Ramat Gan Law School	79
6.	An Economic Analysis of Restitution for Mistaken Payments Dhammika Dharmapala and Nuno Garoupa University of Chicago Law School and George Mason University - Antonin Scalia Law School, Faculty	74
7.	Between Rights and Rites: The Ironies of Crisis and Contract Jeffrey M. Lipshaw Suffolk University Law School	70
8.	End-User Flexibilities in Digital Copyright Law – An Empirical Analysis of End-user License Agreements Péter Mezei and István Harkai University of Szeged, Institute of Comparative Law and Legal Theory and University of Szeged Faculty of Law and Political Sciences - Institute of Comparative Law and Legal Theory	69
9.	Narrative Capacity James Toomey Harvard University - Harvard Law School	67
10.	Liberal Property and Just Markets Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	59

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 23 Jul 2021 - 21 Sep 2021

Rank	Paper	Downloads
1.	Arthur Linton Corbin Gregory Klass Georgetown University Law Center	83
2.	Dark Contracts Samuel Becher and Uri Benoliel Victoria University of Wellington and College of Law and Business - Ramat Gan Law School	79
3.	The Mysterious Market for Post-Settlement Litigant Finance Lynn A. Baker, Ronen Avraham and Anthony J. Sebok University of Texas School of Law, Tel Aviv University - Buchmann Faculty of Law and Yeshiva University - Benjamin N. Cardozo School of Law	72
4.	Between Rights and Rites: The Ironies of Crisis and Contract Jeffrey M. Lipshaw Suffolk University Law School	70
5.	Narrative Capacity James Toomey Harvard University - Harvard Law School	67
6.	Too Long; Didn't Read: Finding Meaning in Platforms’ Terms of Service Agreements Michael Karanicolas UCLA Institute for Technology, Law & Policy	52
7.	Data Protection in the Big Data Era: The Broken Informed Consent Regime and the Way Forward Alex Yueh-Ping Yang National Taiwan University - College of Law	33
8.	Indian Law on Standard Form Contracts M. P. Ram Mohan, Promode Murugavelu, Gaurav Ray and Anmol Jain Indian Institute of Management Ahmedabad, Shardul Amarchand Mangaldas & Co, Advocates & Solicitors, Supreme Court of India and National Law University, Jodhpur	21
9.	Tribes and Temperament: Two Underappreciated Determinants of Market Actor Behavior, Motivations and Beliefs Claire A. Hill University of Minnesota Law School	20
10.	An Impending 'Avalanche': Debt Collection and Consumer Harm after COVID-19 Lucinda O'Brien, Vivien Chen, Ian Ramsay and Paul Ali Melbourne Law School, Monash University - Department of Business Law & Taxation, Melbourne Law School - University of Melbourne and University of Melbourne - Law School	19

Some Colorful Facts Relating to Duress in an Employment Discrimination Case

It is difficult to assert an affirmative defense of economic duress under New York law.  The party alleging economic duress has to show a wrongful threat and not merely point to his own financial hardship.  The wrongful threat must be some threatening conduct that is not within the other party's legal rights. But in Herrnson v. Hoffman, Judge Oetkin of the District Court for the Southern District of New York found that plaintiff had alleged sufficient facts to survive a motion that the court treated as one for summary judgment.

Pro se plaintiff Samuel Herrnson alleges that defendant Mark Hoffman gave Herrnson a check for $16,000.  Hoffman boasted of his wealth and allegedly gave Herrnson the money to assist the latter in a rent dispute he was having with his landlord.  Hoffman allegedly told Herrnson  that he wanted him to "view Hoffman Management as the place to be for the remainder of his career."  Herrnson alleges that Hoffman wrote "loved" on the memo line of the check (he may have written "loan").  Herrnson deposited the money in an escrow account, anticipating litigation with his landlord.

Two months later, Hofmann and his co-defendants terminated Herrnson.  Kinda gives Hoffman's statement "the place to be for the remainder of [your] career" a different cast.  It's reminiscent of the Delphic Oracle's reply to Croesus: "If Croesus goes to war, he will destroy a great empire."  In any case, Hoffman called Herrnson's escrow manager and had the funds frozen, telling the escrow manager that the $16,000 check was a loan, conditional on Herrnson's continued employment.  As that employment had terminated, the loan was being called in.  

Herrnson's narrative, accepted as true at this stage in the proceedings, was that Hofmann knew that Herrnson was contemplating an ADEA claim against Hofmann and his co-defendants, or similar claims arising under state law.  Hofmann mischaracterized a gift as a loan in an attempt to strong-arm Herrnson into dropping his claim.  Hofmann made Herrnson sign a general release in order to have the funds released.  

Judge Oetkin was having none of it at the summary judgement stage.  If Herrnson's narrative is accurate, he received nothing from the release, other than funds that had already been given to him.  Defendants' motion to dismiss, converted into a motion for summary judgment was denied.

H/T @NY_Contracts.

GE Employees' Class Action for Harms Related to a Data Breach Survives Motion to Dismiss

Steven Fowler was a GE employee.  GE requires its employees to share personally identifiable information (PII) about themselves and their family members.  GE made various pledges that it would protect employees' PII and notify employees of any data breaches.  GE contracted with Canon Business Protection Services (Canon) to protect employees' PII against data breaches.  Nonetheless, in March 2020, GE disclosed that a breach had occurred in February 2020.  

Fowler alleges that he was subject to multiple phishing attacks after the data breach.  Other members of the proposed class claim that they suffer from an increased risk of identify theft, all the attendant fraud that might accompany such theft, and the hassle and inconvenience of having to mitigate that risk, including changing passwords, getting new credit and debit cards, etc.  GE offered free credit monitoring and identity theft protection for two years but no damages beyond that.  

Fowler brought claims against GE and CBPS (collectively "defendants") sounding in negligence, breach of contract, violation of statutory protections against deceptive business practices, and breach of fiduciary duty.  Defendants moved to compel arbitration and to dismiss on various grounds.  Last month, in In re GE/CBPS Data Breach, the District Court for the Southern District of New York granted that motion in part, denied it in part, and gave Defendants about three weeks to file a responsive pleading.

In light of the Supreme Court's decision this summer in TransUnion v. Ramirez, one might have thought plaintiff would have serious standing problems.  The court accepted supplemental letter briefs on TransUnion but ruled that the plaintiff had standing without referencing TransUnion.  Those of you who want an account of the court's reasoning on that subject can read about it on the CivProProfs Blog or the StandingProfs Blog.  If you can't find a discussion of it there, I guess you'll just have to read the case.

How to Get Away with Identity Theft

The court granted the defendants' motion to dismiss with regard to the negligence per se claim but denied it as to Fowler's negligence claim.  We'll leave that part of the opinion for the TortsProf Blog to cover.  The court granted defendants' motion with respect to Fowler's statutory and breach of fiduciary duty claims.  And now on to the main event.

Fowler alleged a breach of contract based on a GE guidance document with the inviting name "The Spirit and the Letter."  The document contains GE's code of conduct and includes its data protection policy.  In the alternative, Fowler alleged a breach of an implied contract arising out of GE's representations that it would safeguard their PII and provide timely notice of data breaches.  

The court quickly concluded that "The Spirit and the Letter," like most employee manuals, "lacks the trappings of" and therefore does not constitute an express contract.  Nonetheless, the representations of the manual, coupled with GE's other representations that it would protect employees' PII suffice to establish an implied contract.  The court found that Fowler had adequately alleged all elements of breach of an implied contract claim, and so it granted defendants' motion with respect to Fowler's breach of contract claim but denied it with respect to his breach of an implied contract claim.  

H/T @NY_Contracts

Campbell University's Norman A. Wiggins School of Law Seeks New Faculty to Teach Business and Commercial Law

I recently learned that it's always hump day at Campbell University

Here is the ad in brief:

Position Summary:

Campbell University School of Law invites individuals to apply for up to two open faculty positions. These tenured or tenure-track faculty positions are nine-month appointments that will begin in August 2022 at the rank of Assistant, Associate, or full Professor. We are seeking candidates to teach required courses in (1) business organizations as well as (2) commercial law (including sales law), and/or contracts. We prefer candidates who are also able to teach upper-level elective courses in business/transactional/planning. We are also interested in candidates who, in addition to teaching one or more of the required courses, are able to teach family law, health-care law, or professional responsibility. Candidates should exhibit strong teaching skills and be committed to maintaining an ongoing research effort. A commitment to academic excellence and the ability to work effectively and collegially with faculty, students, and colleagues is expected. Successful candidates should expect their annual course packages to include one or more required, large-enrollment courses.  All applicants should have excellent academic credentials and outstanding teaching reviews. We welcome applications from candidates whose background will contribute to excellence through institutional diversity. Cover letters must explain how the candidate is able and willing and able to support each of the five distinctives set forth below.  Salary and rank will be commensurate with experience.

Campbell University is informed and inspired by its Baptist heritage and three basic theological and biblical presuppositions: learning is appointed and conserved by God as essential to the fulfillment of human destiny; in Christ all things consist and find ultimate unity; and the Kingdom of God in this world is rooted and grounded in Christian community. Campbell University embraces the conviction that there is no conflict between the life of faith and the life of inquiry.

Located in downtown Raleigh, North Carolina, Campbell University School of Law is a highly demanding, purposely small community of faculty and students whose aim, guided by transcendent values, is to develop lawyers who possess moral conviction, social compassion and professional competence, and who view the practice of law as a calling to serve others and to create a more just society.  To that end, the law school has adopted the following distinctives: (1) we offer an academic program that is highly demanding; (2) we bring together the theoretical and practical to produce thoughtful and talented lawyers; (3) we utilize the talents of a faculty that is profoundly committed to students and teaching; (4) we view the practice of law as a calling to serve others; and (5) we offer a Christian perspective on law and justice.

Full ad is here.

Tuesday Top Ten - Contracts & Commercial Law Downloads for September 14, 2021

The fall semester is well underway everywhere, so today, we find both of our Top Ten SSRN download lists operating at full capacity again. Enjoy!

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 16 Jul 2021 - 14 Sep 2021

Rank	Paper	Downloads
1.	A State of Statelessness: The Indeterminate Domesticity of Federally Chartered Corporations Christina J. Lesko and Amir Shachmurove Independent and Harvard Law School	424
2.	The Output-Welfare Fallacy: A Modern Antitrust Paradox John M. Newman University of Miami - School of Law	219
3.	Herbert Hovenkamp as Antitrust Oracle: Appreciating the Overlooked Contributions of the New Harvard School Christopher S. Yoo University of Pennsylvania Law School	185
4.	Smart Contracts on Algorand Archie Chaudhury and Brian Haney Independent and Independent	153
5.	Systemic Risk of Contract Tal Kastner Touro College, Jacob D. Fuchsberg Law Center	119
6.	Steering Loan Modifications Post-Pandemic Pamela Foohey, Dalié Jiménez and Christopher K. Odinet Yeshiva University - Benjamin N. Cardozo School of Law, University of California, Irvine School of Law and University of Iowa - College of Law	88
7.	AI in Negotiating and Entering into Contracts Dr Eliza Mik The Chinese University of Hong Kong (CUHK) - Faculty of Law	84
8.	Introduction to Civil Wrongs and Justice in Private Law Paul B. Miller and John Oberdiek Notre Dame Law School and Rutgers, The State University of New Jersey - Rutgers Law School	82
9.	A Philosophy of Contract Law for Artificial Intelligence: Shared Intentionality John Linarelli Touro College Jacob D. Fuchsberg Law Center	78
10.	Digital Dispute Resolution Gerhard Wagner and Horst Eidenmueller Humboldt University School of Law and University of Oxford - Faculty of Law	71

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 16 Jul 2021 - 14 Sep 2021

Rank	Paper	Downloads
1.	A State of Statelessness: The Indeterminate Domesticity of Federally Chartered Corporations Christina J. Lesko and Amir Shachmurove Independent and Harvard Law School	424
2.	Smart Contracts on Algorand Archie Chaudhury and Brian Haney Independent and Independent	153
3.	A Philosophy of Contract Law for Artificial Intelligence: Shared Intentionality John Linarelli Touro College Jacob D. Fuchsberg Law Center	78
4.	Between Rights and Rites: The Ironies of Crisis and Contract Jeffrey M. Lipshaw Suffolk University Law School	70
5.	Dark Contracts Samuel Becher and Uri Benoliel Victoria University of Wellington and College of Law and Business - Ramat Gan Law School	69
6.	The Mysterious Market for Post-Settlement Litigant Finance Lynn A. Baker, Ronen Avraham and Anthony J. Sebok University of Texas School of Law, Tel Aviv University - Buchmann Faculty of Law and Yeshiva University - Benjamin N. Cardozo School of Law	66
7.	Narrative Capacity James Toomey Harvard University - Harvard Law School	59
8.	Data Protection in the Big Data Era: The Broken Informed Consent Regime and the Way Forward Alex Yueh-Ping Yang National Taiwan University - College of Law	33
9.	Petrowest v. Peace River Hydro: The Revocability and Separability of Commercial ‎Arbitration Agreements ‎ Tamar Meshel University of Alberta Faculty of Law	21
10.	Indian Law on Standard Form Contracts M. P. Ram Mohan, Promode Murugavelu, Gaurav Ray and Anmol Jain Indian Institute of Management Ahmedabad, Shardul Amarchand Mangaldas & Co, Advocates & Solicitors, Supreme Court of India and National Law University, Jodhpur	19

No Incorporation of Israeli Law by Reference in SPIRA v. Aeroflot

In SPIRA v. Aeroflot-Russian Airlines, the District Court for the Eastern District of  New York granted Defendant Aeroflot’s motion to dismiss and denied the request of Plaintiffs SPIRA and 58 others for leave to amend their complaint.

Image by Petar Milošević
CC BY-SA 4.0 via Wikimedia Commons

Plaintiffs were on a school trip to Israel and scheduled to depart on an Aeroflot flight from JFK International Airport. But the flight was delayed for over three and a half hours. During this delay, Plaintiffs were not given adequate food, water, or ventilation.  The flight attendants (left) undoubtedly were not to blame.  

Plaintiffs’ complaint alleged that Aeroflot violated Israel’s Aviation Services Law (ASL). Plaintiffs argued that because they were traveling to Israel, and the ASL was mentioned in the passenger tickets’ liability provisions, the ASL was a part of the contract and therefore both parties were contractually bound by its terms.

The court construed the complaint as making two arguments.  First, the court treated the complaint as seeking to bring a claim directly pursuant to the ASL.  Any such claim was clearly barred, as the ASL is not enforceable in U.S. courts, as the District Court for the Northern District of Illinois held in Bernfield v. U.S. Airways.

Plaintiffs tried to challenge Bernfield by alluding that the ASL provision stating “the court may award compensation to a passenger who has been issued a Flight Ticket indent of damages. . .” implies that the ASL may create a cause of action in any court. But the Seventh Circuit had rejected that very claim with respect to a similar foreign statute in Volodarskiy v. Delta Airlines.  Moreover, the ASL could not possibl contemplate action in a U.S. court, because it required action by Israel’s Ministry of Tourism and approval by a committee of the Israeli parliament.

Second, the court construed the complaint as alleging that the contract incorporated the ASL by reference. Under the Restatement Second §187, parties “may incorporate into the contract by reference extrinsic material which may, among other things, be the provisions of some foreign law.” This rule, as articulated in In re Lehman Bros, creates a two part test: the written instrument must (1) refer to a foreign statute and (2) describe it with sufficient specificity.

Image by Dmitry Zherdin, via Wikimedia Commons

There is no debate that the contract signed by Plaintiffs references the ASL. The question becomes whether it was sufficiently described, so as to incorporate it into the parties’ contract.  The court found that the contract in question failed this second prong of the Lehman Bros. test.

Following Kogan v. Scandinavian Airlines Systems. the court found that the contract “reflected no intent” to incorporate the ASL by merely acknowledging that passengers may have rights under the ASL.  In Dochark v. Polskie Linie LOT S.A,  the District Court for the Northern District of Illinois similarly granted defendant’s motion to dismiss because, although the airfare contract advised passengers that they may have rights under an EU regulation, it merely gave them notice and did not plausibly constitute incorporation.

Accordingly, the court granted Aeroflot’s motion to dismiss and denied Plaintiffs’ request to amend their complaint because allowing them leave, would be futile.

H/T to Alyssa Cross and the ever-reliable @NY_Contracts

Thoughts on the 20th Anniversary of 9/11

I worked in the World Trade Center up until 9/11.  We lived on Eastern Parkway in Brooklyn, and I was on my way to work when the planes hit.  I was never in any danger.  My brain had such a hard time processing what I saw that day that I wasn't traumatized by any of it.

I was in the subway when the planes hit.  The subway stalled and eventually let us out at Wall Street, a few stops from my usual station.  The station was full of people, and I asked someone what was going on.  He said "Two planes crashed into the World Trade Center."  "That's my building!"  I said.  I assumed that the planes were small.  I was still thinking about the work I had hoped to accomplish that day, and I cursed the MTA for delaying my arrival.  I comprehended nothing.

I made it to the street, disoriented, because it wasn't my usual stop.  The street was littered with debris.  I had worked for a human rights organization that happened to have its offices on Wall Street after my first year of law school.  I remember thinking it peculiar that there was so much garbage in the street.  I didn't remember it looking that way on a typical workday morning.  This was debris from the World Trade Center, but I comprehended nothing.  

I asked someone how to get to the World Trade Center from where I was.  He pointed to the sky and said "Follow the smoke."  I comprehended nothing.

I followed the smoke and made it to my building.  With thousands of others, I gawked at the spectacle.  My building was on fire.  There was a huge hole in it and in the tower next to it.  I kid you not.  I contemplated still trying to get in to work.  In my expert opinion, the situation seemed under control.  Somebody had to tell me that they weren't letting people into the building.  I decided to go home.  I guess I get the day off, I thought.  I comprehended nothing.

The subway ride home was long.  I ran into a friend from law school whose building, near the WTC, had been evacuated.  He had been there when the planes had hit.  He saw people jumping from the upper stories of the building.  I began to comprehend.  It suddenly occurred to me that I needed to get home.  My wife was home with our six-week-old daughter.  Fortunately, I thought, she would not be watching television.  She would be occupied with our daughter.  

When I got to the building, our sweet doorman greeted me with relief.  He knew where I worked.  I ran upstairs to find my anxious wife.  Friends had called, and she was in a panic, but now all was well.  She told me that the first tower had fallen.  All was not entirely well.  A friend called.  I sat on our couch and watched as my building fell live on television and also out our window.

My law firm heroically moved us to new offices in midtown the following week.  We had 1000 employees in that building.  Everyone got out.  The firm had been in the building during the earlier attack on the World Trace Center.  There was an evacuation plan.  They executed it and saved lives.  One person disappeared, perhaps hit by debris outside of the building. 

Associates were packed into offices, but everyone had a chair, a desk, a new computer and a Blackberry.  The firm gathered everyone in a hotel ballroom and told us that the firm's most important resources were all gathered in that room.  There was not a lot of work to do, so we focused on sharing our stories and enjoying our community. 

3000 people died that day as a result of the various terror attacks.  The nation galvanized.  Our government responded, mostly in ways I did not approve of, but I was in a tiny minority. After we invaded Afghanistan, I remember talking with colleagues.  A conservative Persian-American associate was steely in her support for military action.  A progressive associate who wanted to switch offices and avoid tall buildings told me he didn't care about collateral damage in Afghanistan.  "We need to send a message that if you hit us, we will hit you back much harder."  The country united behind a President and a strategy.  I voiced my opposition to the war.  My conservative colleague told me that she respected my right to my opinion.  At the time, I thought that went without saying.

During the peak of the pandemic, more than 3000 Americans died every day of COVID.  Even with vaccines, we are still losing that many Americans every second day.  We made a lot of sacrifices after 9/11.  Today, Americans think it is too much when our government asks us to get a vaccine and put on a mask.  I am teaching in a classroom designed to accommodate 70 students but packed with 80.  Our state legislature passed a law that my university interprets as prohibiting us from requiring our students to wear masks.  The faculty begs students to wear masks.  Some of our students have unvaccinated children at home.  We ask students to wear masks to protect their classmates and their classmates' loved ones from infection.  Some of my students refuse to do so. 

Still, I comprehend nothing.

Early Frivolity: It's Star Trek Day!

I'll drink to that!

 

Bob Dylan Wins Suit Against Co-Creator of "Hurricane" & Remains the Champion of the World

By Peter Greenberg - Own work, CC BY-SA 3.0

Writing as I do from Oklahoma, home state to the Bob Dylan Archive, Levy v. Zimmerman caught my eye.  What's that you say?  How can there be a Bob Dylan archive in Tulsa, Oklahoma?  Why, it makes perfect sense if you think about it.  It's right next to the Woody Guthrie Center (right).  You should come and visit!  And if you're hungry after that, you can come to my home city, OKC, and dine at Nonesuch, America's best new restaurant, according to Bon Appetite!  Just sayin'.

Anyway, back in the early 70s, Bob Dylan collaborated with Jacques Levy to write ten songs, seven of which, including "Hurricane," were included in Dylan's 1975 album Desire (my second favorite Dylan album after Blood on the Tracks).  I'm confused as to why Bob Dylan, America's great minstrel, needs help writing songs, but such are the uncontested facts.  Levy was entitled to royalties on the songs, and he received $1 million.  Levy died in 2004, but his estate and his publishing company seek an additional $1.75 million.   Dylan sold his catalog of 600 songs to Universal Music Group (Universal) for $300 million, and plaintiffs allege that $1.75 million is their fair share of that sale.

Dylan 1966

As in the case that was the subject of yesterday's post, we are dealing here with a creator who contracts away his intellectual property rights in exchange for royalties.  The court found that Dylan was the copyright holder and that Levy had no claim for breach of contract arising under the catalog sale to Universal.

This ruling was largely based on the contracts designation of Levy as an "employee" hired to help with composition and entitled only to limited royalties.  Plaintiffs attempted to counterpunch, arguing that limiting the contract to that characterization elevated form over substance.  They produced detailed expert testimony from Bob Kohn, who characterized the relationship between Dylan and Levy as giving rise to "joint works" and a shared "undivided interest" in the songs.  

Mr. Kohn was fighting above his weight class.  Justice Barry Ostrager of New York's Supreme Court, New York County  cut him to ribbons:

In sum, the "expert" affidavit offered by Bob Kohn purporting to interpret the 1975 Agreement is inadmissible to offer an opinion as to the legal rights and obligations of the parties under the unambiguous contract . . . . Kohn's opinion is, in any event, unpersuasive as it distorts the plain language in the Agreement. Defendants' limited citation in their moving papers to Kohn's treatise does not change that result, as the Court is not relying on any extrinsic evidence to interpret the Agreement.

As Mr. Levy might have put it, Justice Ostrager

could take a man out with just one punch
But he never did like to talk about it all that much
"It’s my work", he’d say, "and I do it for pay
And when it’s over I’d just as soon go on my way"

He ruled based on the unambiguous meaning of the agreement:

[T]he Agreement unambiguously limits plaintiffs' compensation rights to 35% of monies received by Dylan for licensing rights granted to third-parties for the performance and use of the Compositions but not for any portion of the proceeds from Dylan's sale of his complete copyrights related to the Compositions that were explicitly vested in him alone pursuant to the express terms of the 1975 Agreement.

Justice Ostrager also dismissed Plaintiffs' claims against Universal as third-party beneficiaries of the catalog sale.  Plaintiffs could make no claim to the status of third-party beneficiaries to that sale.  He likewise dismissed their tortious interference claim.  Absent a breach of contract, there can be no such claim. 

In a case such as this, it seems inevitable that one of the parties would lament: 

How can the life of such a man
Be in the palm of some fool’s hand?
To see him obviously framed
Couldn’t help but make me feel ashamed
To live in a land
Where justice is a game 

H/T @NY_Contracts

Tuesday Top Ten - Contracts & Commercial Law Downloads for September 7, 2021

Welcome to this week's edition of the Tuesday Top Ten. Let's see what's happening with downloads in the objectively best fields of legal scholarship.

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 09 Jul 2021 - 07 Sep 2021

Rank	Paper	Downloads
1.	A State of Statelessness: The Indeterminate Domesticity of Federally Chartered Corporations Christina J. Lesko and Amir Shachmurove Independent and Harvard Law School	414
2.
3.	Herbert Hovenkamp as Antitrust Oracle: Appreciating the Overlooked Contributions of the New Harvard School Christopher S. Yoo University of Pennsylvania Law School	178
4.	Smart Contracts on Algorand Archie Chaudhury and Brian Haney Independent and Independent	149
5.	Systemic Risk of Contract Tal Kastner Touro College, Jacob D. Fuchsberg Law Center	116
6.	Introduction to Civil Wrongs and Justice in Private Law Paul B. Miller and John Oberdiek Notre Dame Law School and Rutgers, The State University of New Jersey - Rutgers Law School	82
7.	Steering Loan Modifications Post-Pandemic Pamela Foohey, Dalié Jiménez and Christopher K. Odinet Yeshiva University - Benjamin N. Cardozo School of Law, University of California, Irvine School of Law and University of Iowa - College of Law	78
8.	Between Rights and Rites: The Ironies of Crisis and Contract Jeffrey M. Lipshaw Suffolk University Law School	70
9.	An Economic Analysis of Restitution for Mistaken Payments Dhammika Dharmapala and Nuno Garoupa University of Chicago Law School and George Mason University - Antonin Scalia Law School, Faculty	67
10.	End-User Flexibilities in Digital Copyright Law – An Empirical Analysis of End-user License Agreements Péter Mezei and István Harkai University of Szeged, Institute of Comparative Law and Legal Theory and University of Szeged Faculty of Law and Political Sciences - Institute of Comparative Law and Legal Theory	55

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 09 Jul 2021 - 07 Sep 2021

Rank	Paper	Downloads
1.	A State of Statelessness: The Indeterminate Domesticity of Federally Chartered Corporations Christina J. Lesko and Amir Shachmurove Independent and Harvard Law School	414
2.	Smart Contracts on Algorand Archie Chaudhury and Brian Haney Independent and Independent	149
3.	Between Rights and Rites: The Ironies of Crisis and Contract Jeffrey M. Lipshaw Suffolk University Law School	70
4.	The Mysterious Market for Post-Settlement Litigant Finance Lynn A. Baker, Ronen Avraham and Anthony J. Sebok University of Texas School of Law, Tel Aviv University - Buchmann Faculty of Law and Yeshiva University - Benjamin N. Cardozo School of Law	66
5.	Data Protection in the Big Data Era: The Broken Informed Consent Regime and the Way Forward Alex Yueh-Ping Yang National Taiwan University - College of Law	32
6.	Indian Law on Standard Form Contracts M. P. Ram Mohan, Promode Murugavelu, Gaurav Ray and Anmol Jain Indian Institute of Management Ahmedabad, Shardul Amarchand Mangaldas & Co, Advocates & Solicitors, Supreme Court of India and National Law University, Jodhpur	16

SDNY Rejects Lady Duff Argument, Knee-Capping Plaintiffs

In Sharkey v. Zimmer USA INC, the District Court for the Southern District of New York granted defendants’ motion to dismiss, notwithstanding Plaintiffs’ invocation of the seminal case, Wood v. Lucy, Lady-Duff Gordon.

Plaintiffs Sharkey and Leinberry (Plaintiffs) invented subchondroplasty (SCP), a minimally invasive surgical technique.  In 2008, in exchange for $100,000 and a 3% royalty on sales of products using intellectual property related to SCP, Plaintiff’s transferred their SCP intellectual property rights to Knee Creations.  Knee Creations was obligated under the 2008 Agreement to use its ‘best efforts” to achieve certain milestones relevant to the marketing of SCP.  Knee Creations was also to refrain from engaging in research, development or marketing of any product competitive with the SCP intellectual property except with Plaintiffs’ prior approval.

In 2013, Defendant Zimmer USA INC (Zimmer) bought Knee Creations, incorporated it into its subsidiary, Zimmer Knee Creations (ZKC), and entered into a new contract with Plaintiffs, which amended the original 2008 agreement. This amendment deleted the provisions that had prohibited Knee Creations from engaging in research, development, or marketing of products competing with the SCP technology. It also eliminated the “best efforts” clause, except with respect to meeting the milestones. 

The sale of SCP products went well under Knee Creations.  It went even better during the first three years of the new partnership between Plaintiffs and ZKC, increasing from $5 million in sales in 2013 to $38 million in 2017.  And then, in 2016, Zimmer had a change of heart. 

According to the complaint, the problem with SCP, from Zimmer’s perspective, is that it is too effective in reducing the need for joint-replacement surgery.  Zimmer, Plaintiffs allege, had relationships with surgeons eager to perform such surgeries, and Zimmer succumbed to market pressures and stopped promoting SCP products. 

Plaintiffs filed their suit in 2020 claiming that Zimmer breached the covenant of good faith and fair dealing by not using best efforts to promote SCP products, by winding down its SCP-related operations, and by failing to protect SCP-related intellectual property and trade secrets.. The complaint also alleged that Zimmer tortiously interfered with Plaintiffs’ contractual relationship with ZKC by terminating ZKC’s employees and instructing it to focus on other products. Zimmer moved to dismiss Sharkey’s claims.

The court, applying New York law, held that Zimmer did not owe a duty to Plaintiffs to use its “best efforts” and sell the SCP products because the  agreement as amended required only the use of “best efforts” in reaching the milestones, not in promoting and selling SCP products. For whatever reason, the Plaintiffs bargained away their right to complain that Zimmer was engaged in developing or marketing competitive products.

Plaintiffs largely relied on the implied covenant in Wood v. Lucy, Lady Duff-Gordon—but the court distinguished this case from Wood. In Wood,  a reasonable person would have been justified in inferring that the agreement included a covenant that Wood would use his best reasonable efforts* to market Lady Duff-Gordon’s designs. Here, the agreement as amended entailed no duty on Zimmer’s part to to use its best efforts to promote and sell SCP products.  

    
Next, regarding Plaintiffs’ allegations that Zimmer had breached its duty of good faith and fair dealing, the Court found no factual allegations in support of a claim that Zimmer was contractually precluded from phasing out the component of its business dedicated to marketing SCP products. Zimmer also did not violate a duty of good faith and fair dealing by allegedly failing to protect SCP-related intellectual property and trade secrets because it had no contractual obligation to do so.  The court reasoned similarly with respect to Plaintiffs’ claims that Zimmer intentionally suppressed the sales of SCP-related products.  The claim of intentional suppression was conclusory; if sales were suppressed as a result of a change in business strategy, that result was a foreseeable outcome of the parties’ contractual agreement.

The District Court granted Zimmer’s motion to dismiss with prejudice regarding all of Plaintiffs’ claims, including its tortious interference, which was dismissed because Zimmer’s conduct, which was contractually permitted, could not be considered tortious.

H/T to Alyssa Cross and (you guessed it!) @NY_Contracts

* Thanks to Charles Calleros for the helpful correction in the comments!

Syracuse University Needs Help with Contracts and Other Stuff

Syracuse University College of Law invites applications from entry level and recently tenured lateral candidates for a position on the Law Faculty

Candidates should have an excellent academic record and should hold a JD degree from an accredited law school. Preferred post-JD experience and credentials include advanced degrees, judicial clerkships, relevant legal practice or similar experience. A demonstrated commitment to excellent classroom teaching and scholarship are required. A candidate’s ability to contribute to the diversity of the College of Law community is a preferred qualification for all positions.

Autonomous Systems, Artificial Intelligence, and Technology Law, Business and Commercial law, Contracts

The College of Law is seeking candidates with teaching and research interests in the following areas: artificial intelligence (AI), autonomous systems, and technology law; contract law; and all areas of business and commercial law. Emerging technologies, including AI and autonomous systems, drones and driverless cars, wearable medical devices, the blockchain and cryptocurrency, and smart contracts are disrupting settled understandings of contract formation and enforcement, risk allocation, liability, and insurance. This hire will bring expertise at the intersection of these emerging technologies and insurance law, commercial transactions and contracts, and privacy law. Applicants should bring expertise, preferably through graduate training, in one or more of the listed emerging technologies. This hire will support two of the College of Law's signature programs: the Institute for National Security Law and Policy and the Innovation Law Center. The faculty hire will also be affiliated with the Autonomous Systems Policy Institute (ASPI), which centers on interdisciplinary scholarship and teaching related to the design, policy, and social implications of autonomous systems.

This position is part of an ambitious Invest Syracuse Cluster Hire Initiative in Artificial Intelligence, Autonomous Systems, and the Human-Technology Frontier and provides exciting opportunities for collaboration in teaching and research in an organized cluster that includes faculty in the School of Law, the Maxwell School of Citizenship and Public Affairs, the College of Engineering and Computer Science, and the School of Information Studies. Expectations for this appointment will include working collaboratively with faculty members in the cluster, contributing to enhancing student experience through mentoring research, and participation in cluster activities.

This is a tenure-track/tenured position. Candidates are expected to teach in both the residential law program and in our online JD interactive program. Candidates can expect to teach a first- year course or a core upper-division course, along with other courses as needed.

Interested applicants are encouraged to use the AALS submission process to apply but may alternatively send their resume and names of three references, including academic references who are able to assess the candidate’s potential as a legal academic, to Professor Kristen Barnes, Chair, Faculty Appointments Committee, Syracuse University College of Law, Syracuse, New York 13244; email: gkbarnes@syr.edu. Syracuse University is committed to diversity and is an equal opportunity employer. Applications will be accepted until the position is filled; however, priority consideration will be given to applications received prior to September 20, 2021.

Weekend Frivolity: Apple's ToS

I'm really pissed off at my sister, a retired nurse, who posted this meme on Facebook.  She's stealing my shtick -- and it's good shtick!

CORRECTION:  It's even worse!  My sister merely posted the meme after it was sent to her by my 90 year-old mother.  Everyone's a comedian!  O tempora, o mores!

Jaffe Transactional Law Invitational

Last year, not everyone who wanted to participate could participate.  There was a wait list. You've been warned!

Announcing a KCON Zoom Panel, Employment 2021: K v. Competition

Post-employment restrictions are in the news. President Biden mentioned them in his July 9 executive order.  In July, the Uniform Law Commission approved a uniform act governing covenants not to compete.  Illinois, Nevada, and D.C. have recently enacted legislation.

Should competition law should play a role in regulating such terms?  This panel will generate wisdom in that regard.

Employment 2021: Contract v. Competition
Which Should Govern Freedom to Work?
A KCON Zoom Panel

Friday, October 1, 2021
2 p.m. to 4 p.m. Central Time

Unconscionability in Contracting for Worker Training
Jonathan F. Harris
Associate Professor of Law
Loyola Law School, Los Angeles
@LawProfJHarris

Bundling Postemployment Restrictive Covenants: When, Why, and How It Matters
Non-Disclosure Agreements and Externalities from Silence
Evan Starr
Associate Professor
Robert H. Smith School of Business, University of Maryland
https://sites.google.com/site/starrevan/home

Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance
Orly Lobel
Warren Distinguished Professor of Law
University of San Diego School of Law
https://www.orlylobel.com/

Remarks

Eric A. Posner
Kirkland & Ellis Distinguished Service Professor of Law
Arthur and Esther Kane Research Chair
University of Chicago Law School
Author of How Antitrust Failed Workers (and a batch of related articles)

Questions and Comments from the Floor

Please direct questions to Val Ricks, South Texas College of Law Houston, organizer and moderator, at vricks@stcl.edu.

To reserve a spot, please register in advance:

https://stcl.zoom.us/meeting/register/tJElcuGqrjooHtKMInJraeWfyac7cuWsfDdh

After registering, you will receive a confirmation email containing information about joining the meeting.

Tuesday Top Ten - Contracts & Commercial Law Downloads for August 31, 2021

It's Tuesday, and we've got some lists. 'Nuff said.

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 02 Jul 2021 - 31 Aug 2021

Rank	Paper	Downloads
1.	A State of Statelessness: The Indeterminate Domesticity of Federally Chartered Corporations Christina J. Lesko and Amir Shachmurove Independent and Harvard Law School	414
2.	The Output-Welfare Fallacy: A Modern Antitrust Paradox John M. Newman University of Miami - School of Law	179
3.	Herbert Hovenkamp as Antitrust Oracle: Appreciating the Overlooked Contributions of the New Harvard School Christopher S. Yoo University of Pennsylvania Law School	171
4.	Smart Contracts on Algorand Archie Chaudhury and Brian Haney Independent and Independent	136
5.	Systemic Risk of Contract Tal Kastner Touro College, Jacob D. Fuchsberg Law Center	110
6.	Introduction to Civil Wrongs and Justice in Private Law Paul B. Miller and John Oberdiek Notre Dame Law School and Rutgers, The State University of New Jersey - Rutgers Law School	81
7.	Between Rights and Rites: The Ironies of Crisis and Contract Jeffrey M. Lipshaw Suffolk University Law School	67
8.	An Economic Analysis of Restitution for Mistaken Payments Dhammika Dharmapala and Nuno Garoupa University of Chicago Law School and George Mason University - Antonin Scalia Law School, Faculty	65
9.	End-User Flexibilities in Digital Copyright Law – An Empirical Analysis of End-user License Agreements Péter Mezei and István Harkai University of Szeged, Institute of Comparative Law and Legal Theory and University of Szeged Faculty of Law and Political Sciences - Institute of Comparative Law and Legal Theory	55
10.	Liberal Property and Just Markets Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	45

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 02 Jul 2021 - 31 Aug 2021

Rank	Paper	Downloads
1.	A State of Statelessness: The Indeterminate Domesticity of Federally Chartered Corporations Christina J. Lesko and Amir Shachmurove Independent and Harvard Law School	414
2.	Smart Contracts on Algorand Archie Chaudhury and Brian Haney Independent and Independent	136
3.	Between Rights and Rites: The Ironies of Crisis and Contract Jeffrey M. Lipshaw Suffolk University Law School	67
4.	The Mysterious Market for Post-Settlement Litigant Finance Lynn A. Baker, Ronen Avraham and Anthony J. Sebok University of Texas School of Law, Tel Aviv University - Buchmann Faculty of Law and Yeshiva University - Benjamin N. Cardozo School of Law	61
5.	Data Protection in the Big Data Era: The Broken Informed Consent Regime and the Way Forward Alex Yueh-Ping Yang National Taiwan University - College of Law	26

 

Contracts and the Netflix Series, "The Chair"

Peabody Awards, CC BY-SA 3.0, via Wikimedia Commons

Like seemingly everyone else, I have become obsessed with Netflix's six-episode mini-series The Chair.  It's not great, but it's home, and it features Sandra Oh (right).  I would pretty much watch anything with Sandra Oh, which is why I continued to watch Killing Eve, even after I lost interest in the characters.  Once I lost interest in Villanelle's clothes, I knew it was over.  But I digress.

If you have been asleep for the past fortnight (or don't have Netflix), let me fill you in.  Sandra Oh stars as, Ji-Yoon, the first woman chair of an English Department at a distinguished university.  Her colleagues are all stock figures: the doddering tenured deadwood who barely knows what's going on; the more with it stick-in-the-mud, Eliot, who desperately wants to believe he is still in his prime; the under-appreciated senior female Associate Professor, Joan, still passionate about Chaucer and still suffering casual sexism with dignity; the charismatic, self-destructive alcoholic modernist, Bill, still mourning a wife lost to cancer; and the smart, with-it, Black woman professor, Yaz, who knows everything the older generation knows but also can connect with students and especially with students of color.  There are other people who show up for faculty meetings, but we don't learn anything about them in the six episodes.  And then there's David Duchovny, playing a version of himself, which is awesome!

The series gets some things about the academy right.  The actors are all superb.  Academics are eccentric.  Budgets are tight, and it is hell to be a faculty member placed in an administrative role these days.  Something's got to give, and often that something is a person's job.  Students can combine their  educations with their experiences to generate both a vocabulary and a theoretical apparatus through which they give expression to a lot of justified outrage.   Sometimes the remedy for that outrage entails real human costs.  These are serious subjects, and The Chair struggles to keep things light while addressing both the reality of student grievance and difficulty for faculty members trying to navigate between student demands and a university that is primarily trying to avoid bad publicity.  It also tends to reduce situations and behaviors to parodies.  Six, half-hour episodes do not provide enough space to develop an ensemble of characters.  There are only two students who figure in multiple scenes, and we get bare glimpses of who they really are.   Most of the students are there to deliver perfectly formulated critiques of institutionalized racism.  

The series gets a lot more wrong, and I suppose that only bothers me because the series is set in my professional home.  Shows about the law get things wrong all the time, but I can move on.  In this series, I find it preposterous.  Bill and Joan's characters get fleshed out a bit, but they are not fully realized.  We get to know Joan slowly as a creature of the university, but we never see her in any other context.  We learn late in the series Eliot has a wife who was denied tenure and settled into domesticity.  It is a too little, too late attempt to humanize him.  I would love to see a series that explored academic eccentricity but also displayed the characters' unique passions and gifts so that viewers can really understand both what drew them to the academy and away from commercial life or social activism or whatever else people do, and why somebody thought they would make a good colleague.

Pembroke University, where the series is set, is neither fish nor fowl.  It seems like a research university, but we only see one graduate student.  The only courses on offer seem to be on Chaucer, Emily Dickinson, and Melville.  No non-canonical texts, only non-canonical riffs on canonical texts.  More importantly, composition, the bread-and-butter of English-department teaching, is mentioned only in the final episode when a doddering professor exclaims "I'm not teaching composition!"  Well who does?  There seem to be no Rhet/Comp professors, nobody teaches Communications, even though that program is often merged with English these days, and there is no indication that graduate students or adjuncts are engaged in teaching at all, except as a T.A. for Bill, who can't manage to show up for class sober or remember what course he is supposed to be teaching.   I could go on, but I need to justify this rant by talking about a contract.

***SPOILER ALERT****

If you haven't watched the series yet and plan to do so, read no further, as I am going to reveal the main plot-line as well as what happens in the final episode on the other side of the break.

Continue reading

Commenting on Student Homework: The Sandwich

I hesitate to mention sandwiches on this blog, because contracts profs will initiate a debate on whether or not a burrito, or a wrap, or a calzone, etc. is a sandwich at the slightest provocation.  This post is not about that!

Ceci n'est pas un sandwich
Image by Elliot Volkman
CC BY-SA 2.0

I give homework in law school.  Less in upper-level courses, but quite a lot really in Contracts.  This year, I have 80 students in my section, which is more than I'm used to but pretty normal I think for first-year law sections generally.  Most weeks, there is homework, but I only grade some of the students each week.  If a student fails to turn homework in on time, that student is automatically graded.  The point it to get them to work on the material each week.  I do this because bar prep experts tell me that studies show that students who do the work learn the material.  Passing the bar is primarily about putting in the time.  The vast majority of students who have made it to law school can pass the bar if they do the work.

Students are graded on effort, not on whether they get the right answers (if the homework has right answers).  In Contracts, there are three categories of homework.  Some weeks, I give the students two multiple choice questions, and they have to explain why the right answer is right and why the wrong answers are wrong.  I try to model the questions on bar questions, and the answers that are wrong should be wrong for reasons that options on the multiple-choice bar exam would be wrong: they misstate the rule; they state the wrong rule; they state an old common-law rule that has been superseded; they state the UCC rule, but this case is governed by the common law or vice versa; they state the rule but the question tests knowledge of the exception or vice versa, etc.  

Some weeks, I give issue-spotting exercises, with one-paragraph fact patterns.  Student have to identify the issue, identify the rule, and predict how a court would resolve the issue.  These fact-patterns should have clear issues, rules, and outcomes.  This exercise is a building block for the third type of homework, which is a bar-style fact pattern designed to be answerable in one hour.  

Grading all of this homework takes time, but that's why the gods created weekends.  Grading that many papers quickly means that I cannot spend very much time on comments.  I don't spend as much time as perhaps I should praising students for good work.  My comments focus on correcting things that are wrong.  This is not ideal.  Negative comments are a bummer.  They are discouraging, and they need to be balanced with words of encouragement.

A common solution is the sh*t sandwich.  My first full-time teaching job was teaching freshman composition when I had finished my dissertation but was still at my degree-granting university waiting to defend.    It was a good freshman-writing program, with a lot of guidance about working with students who are still trying to find their voice as writers.  The people who ran the program never would have put it this way, but we graduate students came to refer to the advice as recommending a sh*t sandwich.  That is, sandwich your substantive criticisms of the student's writing between opening and concluding words of praise. 

You try to make it too obvious, or pile on generous helpings of poo between crepe-thin layers of breading.  E.g., you won't fool anybody with: "Congratulations on turning in your assignment on time.  Unfortunately, it is so riddled with misspellings, grammatical errors, and erroneous reasoning, I can hardly made sense of your arguments and wonder how you were admitted to this program.  Still, you have made great strides since the last assignment, which you never turned in."  

The truth is, it is usually pretty easy to find things to praise in student work.  Especially when you are testing multiple skills -- issue spotting, legal analysis, knowledge of legal rules, clear writing style and organization, etc.  So one can indeed sandwich the bad news between layers of praise.  This is important not only because it prevents students from thinking that they are somehow unsuited to legal work,  but if you mix encouragement with suggestions for improvement, students are more likely to find you approachable and seek advice when they need it. I say all this not so much to provide advice to others but to remind myself that I don't want my comments to be so off-putting that students find me unapproachable.

There are arguments against the sh*t sandwich (in the managerial context, but still some of what hits the fan sticks).  You can read them here.  Basically, the problem is that it feels disingenuous, students are likely to recognize the pattern, and even if they don't, they will focus on the negative.  I hope that is not the case, but even if it is, the sh*t sandwich forces me to think about positive and encouraging things to say to students when I am rushing to get their work back to them, and but for that, I might only bother to write corrections.

Promises, Promises Podcast Returns for Season 2

Hey, ContractsProfs, if you are looking for some fun and informative content to share with your students, you should check out David Hoffman (left) and Tess Wilkinson-Ryan's (right) Promises, Promises Podcast.  

In each episode, they discuss one case.  ContractsProfs can recommend it to students looking for supplemental insights and approaches to the cases assigned in class.

This year they are starting off with Frigaliment, a case about which we may have posted before.  ContractsProfs, if you are tired of donning your chicken costume to teach the case, you might give yourself a day off, find the podcast, and just hit play.