Monday, September 16, 2019
(Part 1 of this multi-part post is available here).
Adapted from Mark Edwin Burge, Access to Law or Access to Lawyers? Masters Programs in the Public Educational Mission of Law Schools., 74 U. Miami L. Rev. __ (forthcoming 2019), available here or at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3420457 (excerpt footnotes omitted).
Course Design Principle #1: Focus legal text comprehension on structural legal literacy.
Understanding the general meaning and structure of legal texts—especially cases, statutes, and regulations—is a critical goal for professionals who will deal with lawyers or be the first line of defense for an organization’s legal compliance. The baseline level of this comprehension should be structural legal literacy—a broad-based ability to recognize and identify a legal text’s design features. For cases, this recognition would cover judicial rule statements, analogies to precedent, and ultimate holdings. For statutes and regulations, the identification of elements, factors, and code-defined terminology (such as definitions) would likewise be a core competency. Such parsing of legal text is an early focus of J.D. legal education, but there it builds out toward more advanced concepts like the temporal development of common law and the discernment of legislative intent. For masters students, the structural comprehension is not merely a means to other ultimate goals; rather, it is itself an ultimate goal.
That distinction between being an end rather than a means to an end is a substantive one: It impacts fundamental pedagogy. Most significantly, the signal, historical pedagogy of legal education—the Socratic method—is ill-advised for masters-type legal education. As others have observed in the J.D. context, Socratic method has some significant educational value, but it is inefficient for teaching the law. Indeed, the Socratic method’s purpose, in the very real articulation of the famous-but-fictional Professor Kingsfield, is not to teach the law, but rather to train students to think like a practicing lawyer. While “thinking like a lawyer” is a time-honored and worthy goal in the halls of the legal academy, it is inapposite for students in a program that, by definition, is not designed to turn them into lawyers.
In the masters program setting, accordingly, the primary purpose of reading a case involving contract law primarily is to learn the contract law—both in its abstract, black-letter sense (the rule) and in its applied-example sense (the immediate story of how the rule operates). The top-level goal is not to discern procedural nuances and the murky role of dicta, nor is it to construct the historical development of doctrines like consideration or promissory estoppel. Consequently, the students would seldom benefit from “hide the ball” type classroom engagements as those detract from the principal task of top-level legal literacy. Likewise, the study of statutes or regulations requires focus on navigating and discerning the meaning of rule texts, including integrated codes. It can rightfully exclude excessive focus on ambiguity, drafting errors, and legislative history. Hypotheticals directed toward teasing out absurd results of statutory canons may well be fun, but they are beside the point. A non-lawyer needs a working level of comfort with assimilating legal texts, the vast majority of which whose meaning is not in both serious and consequential question. The more complex—and frankly more rare—arguments over legal meaning can (and should) be brought to the lawyers.
Friday, September 13, 2019
Adapted from Access to Law or Access to Lawyers? Masters Programs in the Public Educational Mission of Law Schools., 74 U. Miami L. Rev. __ (forthcoming 2019), available here or at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3420457.
The general decline in J.D. law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as a master of jurisprudence, juris master, or master of legal studies, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This article argues that non-lawyer masters programs are not a distraction from the public mission of law schools, nor are they a necessary evil foisted upon legal education by economic trends. Rather, such degrees reflect a paradigm shift that law schools and attorneys should embrace rather than resist: a move away from law being largely accessed primarily through a licensed elite and toward a greater role for autonomy in public engagement with the legal system. The law school function of serving the public goes well beyond training future lawyers or even marshalling them in the advance of access to justice. The expanded legal education vision advocated here includes those functions, but as part of a more encompassing mission: ensuring access to law rather than simply access to lawyers. This article then sets forth foundational frameworks for such programs to succeed at their goals, both at the programmatic level and at the course-design level.
From the Article (footnotes omitted):
Like the article as a whole, this consideration of course design is informed by the author’s own experiences, victories, and defeats on the instructional battlefield. The examples here are principally drawn from two courses. The first of these is Contracts, a doctrinal staple of the J.D. curriculum that I have taught in in three forms: the fully-J.D. format, the mixed J.D.-and-masters format, and the masters-only format. The second course is one styled Legal Analysis and Writing for Clients, a masters-only course created as an adaptation of J.D. lawyering-skills and legal writing curriculum for the needs of working professionals. Both courses have played important roles in bringing me to the viewpoints expressed here regarding how masters students should be accounted for in course design as compared to their J.D. counterparts.
The specific topical coverage of any law course can be as varied as the doctrine and skills encompassed by law itself. For that reason, the focus of this section is on principles of masters course design rather than bright-line rules. Any attempt at stating hard-and-fast requirements for masters courses as compared to their J.D. counterparts is certain to face death by counterexample. Something will inevitably not fit within the rigid rules. For that reason, a principles-based approach is the preferable way to conceive of course design in this space, recognizing that aspiration must have the flexibility to give way to reality. General principles are critical, however, to answering the specific questions faced by law school masters programs. The following three principles, while hardly an exclusive list, state tendencies that will best align masters courses with their appropriate programmatic outcomes, which in turn will fulfil the expanded law school public mission advocated by this article:
(1) Focus legal text comprehension on structural legal literacy.
(2) Avoid premising problems and writing assignments on simulated law practice.
(3) Prefer practical reality over theory.
The remainder of this section addresses each of these principles with a goal of illustrating how they might look in practice.
[Continued in Part 2]
Friday, September 6, 2019
Tuesday, September 3, 2019
U.S. District Judge William Orrick (ND CA) has just held that companies must still provide online customers with adequate notice of arbitration and other provisions. This is so in at least the Ninth Circuit after Nguyen v. Barnes & Noble(763 F.3d 1171 (Ninth Cir. Ct. of App.)). (I proudly note that Kevin Nguyen was a student in one of my 1L Contracts classes years ago!)
As reported by Reuters, it’s become standard operating procedure for companies to require online or mobile customers to agree to mandatory arbitration by clicking their assent to terms of service. But there’s still a roaring debate about exactly howcompanies can bind their customers (and employees, for that matter) to arbitration in other contexts. Do customers assent to arbitration merely by visiting a website or downloading a mobile app that provides a link to service terms mandating arbitration? Or must consumers specifically acknowledge that they’ve surrendered their right to litigate?
Courts have had to scrutinize websites and apps to decide whether they provide consumers with enough information to allow informed assent. Judges have come to be generally skeptical of so-called browse-wrap agreements, in which companies merely post mandatory arbitration conditions and contend that customers have consented by continuing to use their services. Click-wrap agreements – in which companies present consumers with their terms of service and specifically require assent – are generally deemed to be enforceable. In the case just resolved by J. Orrick, the arbitration provision fell into an in-between category known as a “sign-in wrap.” Beginning in February 2018, when customers registered at the company’s website, they were required to click their assent to Juul’s terms of service, which prominently mentioned mandatory arbitration. But to see those terms of service, consumers had to click on a separate link.
Juul did not prominently highlight the hyperlink to its terms of service. The link, said J. Orrick, was virtually indistinguishable from the surrounding text – no color change, underlining, capitalization or italicization signaled to consumers that they could click to read Juul’s specific terms and conditions. One of the plaintiffs registered via a subsequent log-in iteration in which Juul underlined the hyperlink to its service terms, but J. Orrick found even that notice to be inadequate.
The case is Bradley Colgate, et al. v. Juul Labs, Inc., et al.,2019 WL 3997459.
Sunday, September 1, 2019
From our friends in the Air Force comes this notification: https://chroniclevitae.com/jobs/0000500918-01?cid=ja
September 1, 2019 | Permalink
Friday, August 30, 2019
Thursday, August 22, 2019
For artists, master recordings — the original recordings of musicians' work — are vital musically, historically and financially. In most situations, labels own those masters. But many musicians, both prominent and independent ones, have tried to hang on to their masters. As Prince famously told Rolling Stone back in 1996, "If you don't own your masters, your master owns you."
Taylor Swift is the most recent major artist to want to own her own masters, but can’t because of earlier contractual provisions. This will change with her newest album, Lover, which she will own outright. The masters of her first five albums were and are, per her contracts with Big Machine, owned by that company and, now, its contractual assignees. However, Taylor has stated that “my contract says that starting November 2020 … I can record albums 1 through 5 all over again — I'm very excited about it. ... I think artists deserve to own their work. I just feel very passionately [sic] about that."
Of course, Swift now also has significant contractual bargaining powers that she did not while an early teenaged recording artist. Still, girl power! Does this make her a “nasty woman”?.. And if so, isn't this a compliment?!
Monday, August 19, 2019
Looking for a quick little case demonstrating the ongoing importance of the Statute of Frauds? Look no further: Back v. Cheasepake Applachia, L.L.C. provides one (773 Fed.Appx. 294 (2019).
In 1940, Thomas Back’s family entered into an oil-and-gas-lease with the Inland Gas Corporation, Chesapeake’s predecessor. This called for a flat-rate royalty of 12 cents per thousand cubic feet of gas to be extracted from the Back property. However, the oil corporations started paying 12.5% of the market price instead. In 2016, no less, Back filed suit alleging, among other things, breach of contract and fraud for underpayment by deducting too many expenses from the royalty payments and by basing these payments on false market prices.
The district court held, sua sponte, that the statute of frauds barred Back from claiming that his agreement differed from the original 1940 lease. The court of appeals disagreed, pointing out that “all that was needed was one or more writings which together identify the parties to the lease, the property, and the modified royalty amount. At least one of those writings must also bear Back’s signature as the lessor” (as the party against whom the agreement could be held). Because Back had signed the royalty checks that came with the statements over time, the Statute was satisfied.
The court did not point out why the lease fell under the Statute of Frauds to begin with. (As oil and gas leases neither fall under Articles 2 or 2A, this was presumably because of land recording statutes in Kentucky, but this is subject to further research for which I currently do not have the time. Let me know if you know.)
Monday, August 12, 2019
Here's another case for the "periodic reminder" file, this one reminding you that you are entering into enforceable contracts all over the place, often without really registering that's what you're doing. This recent case out of the Southern District of Florida, Incardone v. Royal Caribbean Cruises, Ltd., Case No. 16-20924-CIV-MARTINEZ/GOODMAN (behind paywall), reiterates this lesson in the context of a cruise. The plaintiff argued that there was no binding contract between the parties because there was no evidence she had ever agreed to any such contract, but Royal Caribbean pointed out that every passenger is required to agree to terms and conditions during the online check-in, and that's the only way they're allowed to board the ship. Therefore, the court found, there was a binding contract. Granted, probably not one the plaintiff was really aware of when she checked in to go on vacation, but she clicked the button nonetheless.
Friday, August 9, 2019
After a much too long hiatus, the Weekly Top Ten returns. Happy reading!
Top Downloads For:
Contracts & Commercial Law eJournal
Recent Top Papers (60 days)As of: 10 Jun 2019 - 09 Aug 2019
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Law & Society: Private Law - Contracts eJournal
Recent Top Papers (60 days)As of: 10 Jun 2019 - 09 Aug 2019
Many contracts have arbitration clauses these days, and parties consistently challenge their enforceability, and consistently get told they have to arbitrate. The challenges make some sense in consumer contracts where we might not expect the consumer to grasp all of the ins and outs of the legalese. However, I'm always a bit confused by arbitration clauses being challenged by more sophisticated parties in contracts that were negotiated. They were part of those contract discussions, much more so than consumers ever are. If they didn't want to have to arbitrate, they didn't have to put that clause in. Once it's in, though, they're bound by it.
A recent case out of the District of Arizona, Gravestone Entertainment LLC, v. Maxim Media Marketing Inc., No. CV-19-03385-PHX-GMS (behind paywall), is yet another case reminding us of this. The plaintiff produces horror films and licensed the defendant to distribute those films. Eventually, the relationship between the parties deteriorated and the licensing agreement was terminated. The plaintiff, however, alleged that the defendant went on distributing the films, thereby infringing on the plaintiff's copyright.
The defendant moved to dismiss and arbitrate the claims, and the court agreed, based on the terminated licensing agreement's arbitration clause, which was worded broadly enough to cover these claims and to survive the termination of the agreement. Nor, the court found, was it unconscionable.
Wednesday, August 7, 2019
Oops! Writing the wrong corporate name on a contract doesn't necessarily excuse you from that contract
A recent case out of Texas, Austin Tapas, LP v. Performance Food Group, Inc., No. 03-18-00680-CV, refuses to let a party off on the technicality of having accidentally put the wrong corporate name on the contract. The proper corporate entity was Austin Tapas, LP. The contract had the name Austin Tapas, LLC. Austin Tapas, LP argued that this meant there had never been a contract between it and Performance Food Group. The court disagreed, though. There was no entity named "Austin Tapas, LLC" and the writing of that name on the contract was merely an error, as Austin Tapas itself admitted. Therefore, it was bound to the contract.
Wednesday, July 24, 2019
School handbook statements about civility, respect, diversity, and inclusiveness are aspirational, not contractually binding
A recent case out of the First Circuit, G. v. The Fay School, No. 18-1602 (behind paywall), has an ADA angle, but I'm focusing on the breach of contract claim, which was based on statements in the school handbook about respect, civility, and diversity. The court held, though: "Without diminishing the importance of these words, they are exactly the sort of generalized, aspirational statements that are insufficiently definite to form a contract." For a school handbook to form a binding contract, it has to consist of "well-defined procedures and policies," rather than just generalized statements such as those at issue in this case. The student and his parents failed to point to any statements in the handbook definite enough to form the basis of a contract, borne out by the fact that the school's enrollment contract, signed by the student's parents, specifically stated that the handbook was not a contract but rather just "general expectations."
The First Circuit decision is behind a paywall but you can read some reporting on the district court decision here.
Monday, July 22, 2019
You can watch the appellate arguments in the case here.
Thursday, July 18, 2019
What you should do if you want your Super Bowl party to be able to last until 4 a.m. (hint: not this)
A recent case out of New York, PJAM Prods., LLC v. M Light, LLC, 652409/2018, stems from a Super Bowl party. PJAM licensed M Light's venue to hold a party coinciding with Super Bowl weekend. There were discussions about the party being allowed to go on until 4 a.m., even though local law required the party to shut down by 2 a.m. PJAM claimed that M Light talked about being able to get permission from the city to keep the venue open until 4 a.m.
No such permission was ever received, however, and PJAM sued for breach of contract. The problem was there was nothing in the contract requiring M Light to get such permission. The contract required M Light to have the proper government permits for the party, but did not specify that those permits should allow the party to extend until 4 a.m., and PJAM acknowledged that the law in the city was to close by 2 a.m., so that's what the proper government permits would have said, too. There was nothing in the Agreement about M Light lobbying the city to keep the venue open until 4 a.m.
PJAM's fraudulent inducement claim also failed, because there was no allegation that M Light was lying about its intention to lobby the city when it said that it was going to. As for allegations the M Light led PJAM to believe its connections with the city were such that the lobbying would be successful, the court called those "mere puffery." The court said it was not justifiable for PJAM to rely on M Light's statements to believe that the 4 a.m. permission would definitely be obtained; rather, PJAM was taking a risk, and there was no indication that things would have turned out differently if M Light had lobbied harder or had better city connections.
Basically, if PJAM wanted M Light to bear the risk of the 4 a.m. permission not coming through, it should have been put in the contract, and it wasn't. The contract was integrated, with a merger clause, so the court did not allow parol evidence of this as an additional term.
The moral of the story is: If you're signing a written contract, don't rely on oral representations different from the contract.
Tuesday, July 16, 2019
A recent case out of California, Monster Energy Co. v. Schechter, S251392, concerns a settlement agreement imposing confidentiality obligations. The parties signed the settlement agreement. Their lawyers also signed the settlement agreement, under the preprinted notation "APPROVED AS TO FORM AND CONTENT." One of the lawyers then made public statements about the settlement and was sued for breach of contract. The lawyer argued that they were not personally bound by the confidentiality obligations and their signature meant only that they had approved that their client be bound.
The trial court disagreed with the lawyer's argument. The court of appeals reversed, finding that the attorneys were not personally bound based on the presence of the notation. This California Supreme Court ruling reversed again, concluding that the notation did not preclude a finding that the attorneys were personally bound. The agreement itself included counsel in its confidentiality provisions, and a signature on a contract usually indicates consent to be bound by that contract.
While it is true that the included notation is generally understood to mean that the attorney has read the document and recommends that their client should sign it, that does not mean that it also inevitably means that the attorney is not bound by the agreement. In this case, where the agreement expressly referenced the confidentiality obligations of counsel, a conclusion that counsel intended to be bound by their signature, even with the notation, was plausible.
(h/t to Eric Chiappinelli of Texas Tech for passing this case along!)
Thursday, July 11, 2019
Ja Rule mostly dismissed from Fyre Festival case, with the possibility of one pesky tweet coming back to haunt him
If you're not familiar with the debacle of Fyre Festival, you can watch two documentaries about it, or catch up on the Wikipedia page. The tl;dr version is: It was billed as a luxury music festival that would blow Coachella out of the water, and was canceled on the day it was to start, leaving attendees, who had paid thousands of dollars to attend, stranded with FEMA tents for accommodation. The festival had some big names associated with it, co-founded by Ja Rule and promoted on social media by people like Kendall Jenner and Bella Hadid. Ja Rule was sued, along with Billy McFarland, CEO of Fyre Media, who has already pleaded guilty to fraud in connection with the festival and has been sentenced to prison.
Now, there's a recent ruling out of the Southern District of New York in In re Fyre Festival Litigation, 17-cv-3296 (PKC) (see links at end of blog post), that might succeed in dismissing Ja Rule from the case. The plaintiffs have been granted a very limited leave to amend with respect to one specific tweet, so Ja Rule might stay in the case on the basis of that tweet.
The case has contract claims against Fyre Media, but this opinion focuses on individuals, Ja Rule and Grant Margolin, former Chief Marketing Officer for Fyre Festival. Neither Margolin nor Ja Rule was a party to the contract at issue in the case, so this decision doesn't take up the contract issues, but it is interesting on the fraud issue, so I'm blogging it anyway (also, how can you not blog a court opinion that has a footnote explaining what "FOMO" means?). Fraud requires pleading with particularity, and the plaintiffs fail to meet this burden. Although they allege many allegedly fraudulent statements, they fail to allege when many of those statements were made or whether the defendants knew at the time that the statements were untrue. After all, the defendants could have made the statements about Fyre Festival with every intention of delivering on their promises of an incredible festival.
The one exception to this is a particular tweet at issue by Ja Rule. The plaintiffs properly allege the date of that tweet, which was the day before the festival was scheduled to start (and instead was canceled). The tweet reads, "The stage is set!!! In less than 24 hours, the first annual Fyre Festival begins. #festivallife" The plaintiffs also allege that Ja Rule must at least have been reckless in continuing to encourage people to attend a festival whose stage was not at all set. The plaintiffs trip up when it comes to alleging reliance on their part on the tweet, but the court gives them leave to amend to try to fix this failure. The court does not give the plaintiffs leave to amend any of the other failings of the complaint because of delay on the part of the plaintiffs.
The court also discusses some negligence issues as well as tortious interference and unjust enrichment claims. When it comes to tortious interference, there were no allegations that Ja Rule or Margolin interfered with or caused Fyre Festival's inability to perform the contract, merely that they knew Fyre Festival would not be able to perform. As for the unjust enrichment claim, the court warns that this is not a catch-all cause of action and cannot be used to cure the defects in the other causes of action.
Monday, July 8, 2019
In a letter to JPMorgan Chase & Co.’s CEO, Presidential hopeful Elizabeth Warren asked the bank to stop “exploiting its customers” by using what the bank considers the “standard practice” of asking its customers to arbitrate potential claims against it. Chase’s customers can, however, opt out of mandatory arbitration by mailing written rejection notices by Aug. 9, 2019.
Arbitration is, of course, easier for banks and other defendants than having to face a multitude of individual lawsuits. The concern for smaller plaintiff such as private bank customers is that arbitration is not as neutral as a lawsuit as arbitrators are hired privately by, for example, the banks. Arbitrators may thus be unduly biased in favor of the banks and more business savvy than bank customers, who might obtain greater protections from hiring an attorney and going to court. The exploitation part comes in when defendants arguably seek to "sneak" arbitration onto unsuspecting, unsavvy bank customers who are not aware of all the pros and cons of various types of dispute resolution.