Tuesday, December 5, 2023
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for December 5, 2023
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 06 Oct 2023 - 05 Dec 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 2,126 | |
| 2. | 463 | |
| 3. | 289 | |
| 4. | 238 | |
| 5. | 191 | |
| 6. | 151 | |
| 7. | 123 | |
| 8. | 117 | |
| 9. | 111 | |
| 10. | 97 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 06 Oct 2023 - 05 Dec 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 289 | |
| 2. | 238 | |
| 3. | 117 | |
| 4. | 76 | |
| 5. | 63 | |
| 6. | 55 | |
| 7. | 43 | |
| 8. | 41 | |
| 9. | 22 | |
| 10. | 21 |
December 5, 2023 in Recent Scholarship | Permalink
Friday, December 1, 2023
The No Responsibility Disclaimer
Contracts Prof Emeritus Royce de R. Barondes (right) brings us news of the latest liability dodge that Terms of Service designers have dreamed up. Professor Barondes booked a hotel room through Priceline. When he arrived, he was informed that the hotel had no vacancies and so his reservation had been canceled. He then discovered the following language in Priceline's terms of service, which I quote in full because the sweep is so breathtaking:
To the extent permitted by law, in no event shall Priceline, including its respective officers, directors, employees, representatives, parents, subsidiaries, affiliates, distributors, suppliers, licensors, agents or others involved in creating, sponsoring, promoting, or otherwise making available the Site and its contents (collectively the "Covered Parties"), be liable to any person or entity for any direct, indirect, incidental, special, exemplary, compensatory, consequential, or punitive damages or any damages whatsoever, including but not limited to: (i) loss of goodwill, profits, business interruption, data or other intangible losses; (ii) your inability to use, unauthorized use of, performance or non-performance of the Site; (iii) unauthorized access to or tampering with your personal information or transmissions; (iv) the provision or failure to provide any service; (v) errors or inaccuracies contained on the ite or any information, software, products, services, and related graphics obtained through the Site; (vi) any transactions entered into through this Site; (vii) any property damage including damage to your computer or computer system caused by viruses or other harmful components, during or on account of access to or use of this Site or any Site to which it provides hyperlinks; or (viii) damages otherwise arising out of the use of the Site, any delay or inability to use the Site, or any information, products, or services obtained through the Site. The limitations of liability shall apply regardless of the form of action, whether based on contract, tort, negligence, strict liability or otherwise, even if a Covered Party has been advised of the possibility of damages.
One would hope that the extent to which such a clause is "permitted by law" would be most limited. If the language were enforced, it suggests that there really is no contract at all, given that Priceline stipulates in advance that it will not be liable for breach. Someone could perhaps test that by using Priceline's services and then not paying. Somehow, I think Priceline would insist that users' liability is not cabined in the same way Priceline's is.
Professor Barondes' experience got me to thinking about the complexities of using travel websites. Pre-COVID, when I traveled more, I joined rewards programs at a few hotel chains. I learned that I get no credit for my stay if I booked at such a hotel through a travel website. Sometimes, the hotel has a hard time finding my reservation because the confirmation number I was given looks nothing like the hotel's reservation numbers. They have no record for me, and they ask me accusingly, "Did you book through a website?" "Well yes," I admit, and I think, "Doesn't everybody?"
When I do so, with whom am I in contractual privity and for what purposes? Professor Barondes is a sophisticated traveler, but your ordinary user of a travel website might assume that they had a contract with a hotel when they booked a stay at that hotel through a website. Not so, it appears. The Seinfeld-inspired hotel is free to say, "you may have a reservation, but we did not hold the reservation." But to the traveler, that's really the most important part of the reservation, the holding part.
It also occurs to me that Priceline is a clearinghouse. You may find your hotel through Priceline, but Priceline may just link you to some other website which is the entity that has some sort of relationship with your hotel. And that relationship may not be with your particular hotel but with the hotel chain's sub-contracted reservation service. As the layers of contractual obligation accumulate, sorting out privity and knowing how to get a remedy can be quite complex.
Even if Priceline offers a refund, which would be a sound business practice regardless of their ridiculous "no responsibility disclaimer," that hardly suffices. The price one pays for reserving a hotel may bear no relation to the price one pays to find a room at the last minute. And then there are the added costs, frustrations and panics associated with actually finding that room.
December 1, 2023 in Commentary, Contract Profs, Current Affairs, E-commerce, Travel | Permalink | Comments (0)
Thursday, November 30, 2023
Of Windfalls from Mistake and Breaches of Auction Contracts
A few months back, we brought you the heartwarming story of a couple that purchased a small, valuable painting by N.C. Wyeth (self-portrait, left) at a thrift shop for $4. It was expected to fetch up to $250,000 at auction.
Now, the bad news. According to Matt Stevens writing in The New York Times, the painting sold for only $191,000 at auction. And now the worse news. The buyer never paid and never arranged for delivery of the painting. The auction house sent the sellers a shrug emoji. These things happen. The buyer is located in Australia, a vast, lawless wasteland, where the inhabitants daily confront spiders the size of your face and more dangerous, venomous spiders that hide in your shoes. Not to mention the pythons that hide in trees and then drop on unsuspecting passers-by (mostly tourists). Breach of contract is nothing to such people. A mere auction house is powerless in these circumstances.
The sellers are philosophical. They are not out any money, and the auction house returned the painting to them in a lovely cardboard box. If they have a cat, that cat no doubt values the box at something around $191,000. If they don't have a cat, they should get one, and then the family's hedonic sum will then equal what it would have been had the Australian paid up.
[Editor's note: an earlier version of this post identified the painting as created by Andrew Wyeth, N.C.'s son. Thanks to Jim Fishman for the correction!]
November 30, 2023 in About this Blog, Current Affairs, In the News | Permalink | Comments (0)
Wednesday, November 29, 2023
Take the Money and Run, Pass, or Kick
Recently, Sid DeLong wowed us with an interesting perspective on the case of Danish performance artist Jens Haaning. As readers of the blog well know, Haaning was commissioned to produce artwork incorporating $70,000 in Danish currency that the commissioning museum advanced to him for incorporation into the work. Hanning never provided the work; instead, he delivered two blank canvases entitled Take the Money and Run.
No biggy, Sid pointed out. People get paid for doing nothing all the time. Farmers get paid not to plant crops when the government is trying to control against overproduction. Young William Story was entitled to collect from his Uncle William for successfully abstaining from certain corrupt behaviors before turning twenty-one.
But if you really want to get paid the big bucks for doing nothing, I recommend coaching. As I learned from Bobby Chesney and Steve Vladeck on their excellent, most recent, edition of the National Security Law Podcast, Texas A & M University is paying Jimbo Fisher (right) $75 million for not coaching its football team between now and 2031.
Doug Lederman provides some details in Inside Higher Education. According to the story, Mr. Fisher's contract was renewed in 2021 for ten years, and the contract was guaranteed, which meant that he would be paid whether or not he continued as coach. You might be wondering how the taxpayers of Texas feel about having their money being used in a Bobby Bonilla style boondoggle. The answer is probably that they are fine with it. What's government for if not for building college football programs? But just in case Texas taxpayers have other priorities, the university stresses that the $75 million will not come out of the university's regular budget but from "donor funds."
This strikes me as a relatively transparent shell game. That $75 million in donor funds that will be going into Mr. Fisher's pocket are $75 million that the university might use for other, presumably sports-related, purposes. And if the university cannot raise more private donor funds to attract its next football coach, or football stadium, or training facility, or whatever else it needs, the money to cover these new costs will indeed come from university funds that might have been used for, I don't know, educational purposes?
Last I checked, the Texas A &M football team is not ranked in either the AP nor the Coaches poll, nor did they have any votes in either poll, meaning that nobody polled thought that they were a top 25 team. CBS Sports ranks them at 37. Meanwhile, Texas A & M's law school is ranked 29th. By my math, that ranking should entitle the law school's Dean to a guaranteed ten-year contract worth at least $85 million, and some portion of that money ought to go to the Blog, given that the Blog was founded by Texas A & M law faculty member Frank Snyder (left), and Texas A & M faculty member Mark Edwin Burge (right) continues to serve as a contributing editor. Even a million or two would go a long way towards meeting the Blog's pressing fiscal needs. I'm not asking for much.
One might think that Mr. Fisher will not in the end actually collect his $75 million from Texas A & M or its donors, because of the duty to mitigate. But we've been down this path before on the blog, and I think we discovered that coaches who depart with guaranteed contracts do not have a duty to mitigate. Mr. Fisher is perfectly free to move on to his next gig, command another Brobdingnagian salary, and continue to collect his spoils from Texas A & M. In our world of the parable of his talents, this is righteousness. Not compounding his windfall with greater lucre would be regarded as a wasteful, and Mr. Fisher would be consigned to that outer darkness, complete with ambient weeping and gnashing of teeth.
November 29, 2023 in Celebrity Contracts, Commentary, Current Affairs, Government Contracting, Law Schools, Sports | Permalink | Comments (0)
Tuesday, November 28, 2023
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for November 28, 2023
The Tuesday Top Ten returns today after a Thanksgiving holiday hiatus. Let's have a look at who and what have been burning up the download charts in this final week of November!
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 29 Sep 2023 - 28 Nov 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 1,592 | |
| 2. | 443 | |
| 3. | 281 | |
| 4. | 232 | |
| 5. | 135 | |
| 6. | 117 | |
| 7. | 95 | |
| 8. | 83 | |
| 9. | 79 | |
| 10. | 79 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 29 Sep 2023 - 28 Nov 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 281 | |
| 2. | 232 | |
| 3. | 69 | |
| 4. | 65 | |
| 5. | 62 | |
| 6. | 33 | |
| 7. | 21 | |
| 8. | 17 | |
| 9. | 16 |
November 28, 2023 in Recent Scholarship | Permalink
Monday, November 27, 2023
KCON XVII: Call for Papers for 2024 Conference in Bristol, England
17th Annual International Conference on Contracts (KCON XVII)
University of Bristol Law School
June 20–21, 2024
The University of Bristol Law School is pleased to host the 17th Annual International Conference on Contracts (KCON XVII) on June 20–21, 2024. KCON is the largest annual international academic conference dedicated to contract law and related areas of commercial law. It brings together contract law scholars, practitioners, and graduate students from around the world. Junior scholars are encouraged to participate, both as presenters and commentators.
KCON affords an opportunity to present and discuss ideas on a wide range of topics at every level of development, including recently published articles, articles accepted for publication but not yet in print, works in progress, thought experiments, preliminary ideas, and pedagogical innovations. It also provides an opportunity to network with colleagues and potential collaborators or mentors from other parts of the world.
Conference Lifetime Achievement Award to honour Professor Mindy Chen-Wishart
We are pleased to announce that Professor Mindy Chen-Wishart (right) will receive the conference’s Lifetime Achievement Award at the conference dinner on June 20, 2024. The Award honours individuals whose careers have been spent in legal academia and who have made major contributions to legal education, contract law scholarship, and the practice of commercial law. Professor Chen-Wishart is the fifteenth person to be so honoured.
Call for papers and abstracts
We cordially invite your submissions for the conference. The conference theme is intentionally broad. Proposals relating to any aspect of contract law are welcome. Presentations at past conferences have included studies from doctrinal, theoretical, empirical, historical, economic, critical, international, comparative, pedagogical and interdisciplinary perspectives. All are welcome once again. We also welcome papers and presentations comparing civil law and common law treatment of contract issues. Papers that focus on a single civil law jurisdiction should be put in a wider context.
Expressions of interest in presenting, along with draft titles and abstracts should be submitted to [email protected]. The deadline to submit an abstract is Thursday, February 15, 2024. Proposals submitted earlier will be accepted on a rolling basis. Speakers whose papers are accepted will be expected to present in person. Participants, including speakers, will be required to register for the conference and to pay the conference fee of £160.
Getting to Bristol
Bristol Airport is located eight miles (13 km) south of the city and has scheduled flights to many UK and European cities. Bristol is also easily reached from London Heathrow airport, either by a direct National Express coach service, or by rail.
Questions
If you have any questions, please contact Dr Katarzyna Kryla-Cudna (left) at [email protected].
November 27, 2023 in Conferences, Contract Profs | Permalink
Friday, November 17, 2023
Friday Frivolity: The Case of the Cat Head Signature
OCU 1L Marcia Clemmons (right) shared with me this story combining two things that I love: contracts and cats.
A Reddit user known as Bradimal posted the following to start a thread:
In 2015 I had to renew my license and thought it would be funny to do cat heads as my signature, so I did. For the past 3 years I just forgot about it unless I had to show my ID and they pointed it out. . . . This hasn't been a problem until today when I had to sign my mortgage papers. The signing agent looked at my ID and shook his head, he was not amused. . . . I had to sign 3 cat heads over 30 times today.
He links to images of driver's license, along with mortgage papers. both featuring his cat signature.
These are the driver's license cats
And these are the mortgage paper cats:
Unfortunately, the Internet is to be used with caution. The story may not be true. Frankly, I'm comparing the images, and I'm not convinced those are the same cats. In fact, on the mortgage papers, with respect to the cat on the left, I'm seeing more butt cleavage than feline.
As reports on the website Truth or Fiction, there had been no independent verification of the Reddit thread. The story went viral in 2019, but everybody just repeated the story as told. On the original Reddit thread, Bradimal allegedly first posted an image of his driver's license, including all of his personal information. A moderator advised him to edit the post, and he did so. The original post cannot be retrieved, so it is impossible to know whether Bradimal really exists.
Or is it? According to Jonas Grinevičius and anonymous, reporting on Bored Panda, Bradimal seems to be a real person named Brad Johnsen. Their evidence of Bradimal's existence? They interviewed him, and he was able to identify the cats in question as Pepè De La Hoya, Sanchez Fluffington, and Eric.
That checks out.
Despite his unpleasant time with the mortgage papers, Bradimal seems to have no regrets. He advises people to have fun with their signatures. "It’s yours and it can be anything you want.”
November 17, 2023 in True Contracts, Web/Tech | Permalink | Comments (0)
Wednesday, November 15, 2023
From Sid DeLong, Something About Nothing
Much Ado About Nothing:
Haaning’s Empty Canvases and Forbearance Contracts
The reader may be familiar with the story of Danish performance artist Jens Haaning, who was commissioned by a museum to produce artwork incorporating $70,000 in Danish currency that it advanced to him for incorporation into the work. Instead, he delivered two blank canvases titled Take the Money and Run. The Museum accepted the canvases and displayed them but sued Haaning for return of the currency, which he retained. The story is discussed in an earlier post, The Art of the Steal.
A few weeks ago, a court awarded the Museum a judgment of about $70,000 in restitution and awarded Haaning a fee of $6,000 and expenses, presumably for having performed his contract.
The award of the fee implied that Haaning had substantially performed the contract despite having held back the currency. My earlier post explored Haaning’s theory that the contract required him to produce artwork and that his tendering of “Take the Money and Run,” was a piece of performance art. He contended that his flagrant breach of contract paradoxically satisfied his contractual obligation to the Museum by artistically dramatizing his resistance to capitalistic exploitation of workers (such as himself). The Museum sportingly agreed with his artistic message and exhibited the empty canvases, along with Haaning’s explanation. To that extent, it apparently ratified his performance as having earned his fee. But it also demanded that he return the cash he had wrongfully retained.
In suing Haaning and recovering the money, the Museum can be understood as having actually collaborated in his performance. Like the breach, the ensuing lawsuit was an essential part of the performance of exploitation and resistance. Haaning was fulfilling his role as revolutionary employee and the Museum was fulfilling its role as an oppressive employer. To have forgiven him, to have condoned his behavior and permitted him to retain the money would have robbed his breach of its artistic and moral significance. So both parties collaborated in the lawsuit as the final act in the artistic performance.
Oddly enough, Haaning’s theory that his empty canvases were the artworks for which he was being paid reminded me of my early life on a small Kentucky farm, as much seems to do these days. My father was a farmer in the years after World War II during which, in order to prop up commodity prices, the Government Soil Bank program paid farmers not to grow certain crops that were being over-produced. The following kind of exchange soon became a common bit of farm humor:
“You in the Soil Bank this year Sid?
“Sure am.
“What are you not growing this year?
“This year I’m being paid not to grow corn. How about you? What are you not growing?
“Tobacco, Sid. There’s a lot more money in not growing tobacco. You ought to try it next year.”
As they gazed out over their fallow fields, farmers in the Soil Bank probably felt thankful for the valuable crops not-growing there. Little could they guess, however, that they had also been vouchsafed an early glimpse of what was to be a signal philosophical idea of the French deconstructionist movement: the absence of a presence.
Had Jacques Derrida (below, left) been a Kentucky farmer instead of a French philosopher, he might have had his “Aha” moment decades earlier. I’m just as certain that, pondering his absent crop, my father would have understood Derrida “The trace is not a presence but is rather the simulacrum of a presence . . . it is the mark of the absence of a presence, an always-already absent present." Derrida was as much taken with absent presences as Soil Bank farmers were. And so was Haaning. Reflecting on my father’s empty fields prepared me to appreciate the value and meaning of Haaning’s empty canvases.
Sometimes an absence is not just nothing: it is the absence of a specific something. The Danish and Kentucky examples employed particular absent presences, and were not mere nothings. Derrida would have said that Jens Haaning’s empty canvases bore the trace of an absent presence, i.e., a specific $70,000 worth of Danish currency. The particularity of that absence made them unique as works of art, completely distinct from all other blank canvases.
Absences often imply presences. Consider the array of the contents of a murder victim’s pockets that Columbo examines for “something that isn’t there that ought to be there.” (Hint: it’s always the victim’s keys). Haaning’s title for the empty canvases named the very specific presence that ought to have been there but wasn’t. Just as my father’s empty fields lacked a very specific crop for which he sought payment.
The aesthetic implication is that despite appearances, no two empty canvases are necessarily identical. The question in every case of empty canvases is: “Are the empty canvases the absence of a particular presence (as the artist maintains) or simply the absence of any presence at all (as a skeptic maintains)?” An accurate description of any empty canvas must describe its absence as well as its presence.
By now it may be obvious what this discussion is doing in a contracts blog post. Although some contracts call for active performance, doing something specific, forbearance contracts call for doing nothing, not just any nothing but a specific nothing.
Consider an imaginary conversation inspired by the canonical Contracts case, Hamer v Sidway, 27 N.E. 256 (N.Y. 1891). His grandfather had promised William Story 2d. $5,000 if he refrained from using tobacco, swearing, drinking, and playing cards or billiards for money until he was 21. Suppose he had a conversation with a college classmate, Frank, who told him that his grandfather made him a similar promise. Each student affirmed that he was hard at work earning the promised reward.
“So what are you not doing tonight Frank?
“As you can see, I’m not blaspheming, breaking the Sabbath, or bearing false witness. What are you not doing tonight Willie?
“As you can see, I’m not smoking, drinking, swearing, or playing billiards or cards, Frank. There’s a lot more money in not doing those things than in not blaspheming, breaking the Sabbath, or bearing false witness.
“Yeah, but they are a lot harder not to do, Willie. You are earning your money.”
As we contemplate the two young men assiduously performing their respective contracts, we should remember that doing a specific nothing might be the performance of more commonplace commercial agreements. Nondisclosure agreements for example are often “performed” by doing a very specific nothing, by not disclosing particular facts or secrets. Noncompete clauses are also performed by doing a very specific nothing, engaging in the prohibited business in the relevant geographical area.
But now a new problem arises. When a contract requires you to do nothing, and you do it, how can a judge tell whether you’re doing it intentionally? Suppose that a departing employee signs a contract providing for annual payments of $1,000 in return for a non-competition agreement preventing the employee from engaging in a competing business or trade within a geographic area for a period of five years. But the employee does not read the document he signed and is unaware of the noncompete clause. Nevertheless, for five years, he does nothing that competes with his ex-employer. If a dispute with his employer over payment arises, has he earned the money? Has he performed his contract or has he ignored it?
And what exactly counts as performing a contract to do nothing? Suppose that a departing employee agrees to a non-disclosure agreement that stipulates that he will be paid $1,000 per week for so long as he refrains from disclosing certain of the employer’s business-related secrets. The employer mails the checks to a bank account where they are automatically deposited. The employee meanwhile has a spiritual revelation and departs for an isolated monastery in Tibet.
After a year, the employee dies but no one is aware of it. Because the business secrets remain undisclosed, the checks keep coming and deposited to the employee’s account. When the employer learns of the employee’s death, can it recover the payments made after his death? Or did the employee perform his contract from the grave? After all, was not the NDA binding on the estate of the employee?
November 15, 2023 in Commentary, Current Affairs, Famous Cases | Permalink | Comments (1)
Tuesday, November 14, 2023
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for November 14, 2023
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 15 Sep 2023 - 14 Nov 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 273 | |
| 2. | 258 | |
| 3. | 233 | |
| 4. | 113 | |
| 5. | 107 | |
| 6. | 88 | |
| 7. | 84 | |
| 8. | 82 | |
| 9. | 70 | |
| 10. | 63 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 15 Sep 2023 - 14 Nov 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 273 | |
| 2. | 107 | |
| 3. | 84 | |
| 4. | 57 | |
| 5. | 56 | |
| 6. | 46 | |
| 7. | 45 | |
| 8. | 20 | |
| 9. | 18 |
November 14, 2023 in Recent Scholarship | Permalink
China Southern Airlines Honors Tickets Sold for 10 Yuan ($1.37)!
Thanks to Wayne Barnes (below, demonstrating how one faces down an airline), we have another in our series of stories of people beating up on the airlines. The others in this series include a couple that got a refund after being seated next to a gaseous, slobbering dog, a mother forced to sell her child into slavery when the airline would not allow the child to have a seat of her own (perhaps I exaggerate a bit), and a refund for a failed trip to Easter Island.
This time it was a simple website glitch. For two hours, as reported on CNN, through a story provided by Reuters, China Southern advertised trips for 10, 20 or 30 yuan when they should have cost 400-500 yuan. Passengers still had to pay airport fees, but the airlines otherwise swallowed the loss. Perhaps this AI thing isn't all bad.
The story was reported by Sophie Yu and Casey Hall, with editing by Bernadette Baum.
November 14, 2023 in About this Blog, In the News, Travel, Web/Tech | Permalink | Comments (0)
Tuesday, November 7, 2023
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for November 7, 2023
Happy Off-Year Election Day to those in states who observe. Meanwhile, the calendar is also warning your humble contributor that my time clawing up the Top Ten lists is near an end, as SSRN postings quit being "new scholarship" after sixty days. Alas. Why, it seems like just yesterday when I started groveling for downloads. To all who aided After FTX: Can the Original Bitcoin Use Case Be Saved? in getting past the century mark on the aforementioned downloads: Thanks! Other downloads are possible in the future, of course (keep 'em coming) but my magical moments are nearly done on the Contract and Commercial Law Top Tens (Or is is "Tops Ten"? Inquiring attorneys general want to know) .
That's enough melancholy. Let's celebrate the newer and more exciting entrants on our version of the Billboard charts!
Top Downloads For:
Recent Top Papers (60 days)
As of: 08 Sep 2023 - 07 Nov 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 252 | |
| 2. | 225 | |
| 3. | 101 | |
| 4. | 94 | |
| 5. | 83 | |
| 6. | 80 | |
| 7. | 71 | |
| 8. | 66 | |
| 9. | 57 | |
| 10. | 53 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 08 Sep 2023 - 07 Nov 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 252 | |
| 2. | 101 | |
| 3. | 80 | |
| 4. | 44 | |
| 5. | 42 | |
| 6. | 23 | |
| 7. | 17 | |
| 8. | 17 |
November 7, 2023 in Recent Scholarship | Permalink
Monday, November 6, 2023
End of the Semester Hiatus
Hello Readers.
I have reached the point in the semester where something has to give.
This time it will be the blog.
If I come across something that I can get up on the blog in a hurry, I will do so, and my co-bloggers and guest bloggers might provide some content.
Other than that. See you in December (or January). No warranties.
November 6, 2023 in About this Blog | Permalink | Comments (0)
Friday, November 3, 2023
Friday Frivolity: Stephen Bannon Learns from His Master & Attempts to Stiff His Lawyers
The decision in Davidoff Hutcher & Citron v. Bannon is four months old, and you will learn no new contracts doctrine from this post, unless you didn't realize that it was a breach of contract to use legal services and not pay from them. But it's Friday, and it's November, one of the two cruelest months in the academic calendar, so I am indulging my penchant for Schadenfreude.
via Wikimedia Commons
The matter is quite simple. The plaintiff law firm represented Stephen Bannon for two years until late 2022, when Mr. Bannon stopped paying his bills. At that point, he owed the firm $850,000 and he had paid $375,000. He now owes nearly $500,000 plus legal fees to his erstwhile legal team.
Mr. Bannon urged the court that the grant of summary judgment was premature. He claimed that 1) plaintiff stopped providing services for him in January 2022; 2) plaintiff charged him for matters outside the scope of the retainer agreement; 3) one of plaintiff's attorney's will testify on Mr. Bannon's behalf in one of the matters and thus plainiff cannot recover the full amount it seeks; 4) the invoices were sent to his business address instead of his home address; and seemingly inconsistently 5) the invoices were paid by his staff located at his business address and not by him.
The court quickly dismissed all of Mr. Bannon's arguments. Plaintiff provided meticulous evidence of the work that it had done for Mr. Bannon, as well as evidence that he continued to pay the invoices through his agents and continued to seek legal services from plaintiff after January 2022. As to exceeding the scope of the retainer agreement, that agreement provided that plaintiff would represent Mr. Bannon on "such and various matters and issues as may arise from time to time." Mr. Bannon knew that plaintiff was representing him on matters that may have exceeded the scope of the agreement, but Mr. Bannon knowingly received that benefit and may not now refuse to pay for it.
November 3, 2023 in Recent Cases | Permalink | Comments (0)
Thursday, November 2, 2023
Another Airline Settles With a Dissatisfied Passenger
Recently, we brought you a story of people who gave up their premium seats rather than share an aisle with a gassy slobbering dog. They recovered the difference between the premium seats and coach and, they say, donated to a charity that matches up people with presumably non-gassy service animals. Today, thanks to OCU 1L Taysia Stephens (left), we bring you another story of a consumer victory over the airlines, this time in small claims court.
According to Kathleen Wong writing in USA Today, Erika Hamilton, an Oregon lawyer, purchased two seats on an American Airlines flight, one for her and her 18-month-old daughter, who would sit in her lap, and another for the daughter's twin. How did Ms. Hamilton choose which child got the lap and which one got the seat? Was one of her daughters more of a lapchild? Ms. Wong's reporting is silent on the subject.
In any case, Ms. Hamilton's preferred arrangement is allowed under the airline's rules and FAA rules. A flight attendant told Ms. Hamilton that her second child needed to be in a car seat, and the flight attendant was not persuaded when Ms. Hamilton pulled up the airline's and the FAA's relevant rules and shared them with the stubborn employee. Another passenger offered to travel with Ms. Hamilton's second child in her lap, and Ms. Hamilton felt she had no choice but to agree to the arrangement, even though she believed it was safer for the daughter to sit in her own seat with a seat belt.
The flight attendant eventually relented and apologized, but Ms. Hamilton sued in small claims court seeking $3500. The case settled, with American agreeing to award Ms. Hamilton 4500 miles. It is unclear whether that means 4500 miles of free travel or 4500 miles on American's frequent flyer program. Either way, it seems odd that the reward for a terrible experience on the airline is more time spent on the airline.
There is a New Yorker cartoon that would be the perfect accompaniment for this article, if only I could find it and it weren't subject to copyright protection. It depicts a father telling a child, "One day, you will grow up to hate all of the major airlines." One can imagine Ms. Hamilton preparing her twins for what lies ahead for them with the same sage prediction.
November 2, 2023 in In the News, Recent Cases, Travel | Permalink | Comments (0)
Wednesday, November 1, 2023
John Quincy Adams and Contracts Cases in SCOTUS
Sid DeLong shared news that John Qunicy Adams's handwritten notes from his first oral arguments before the U.S. Supreme Court have gone on sale for $75,000. The picture at right shows him about eight years before the oral argument.
Why is the price so high for a lawyer's scribbling? No doubt because they provide insights into the state of contracts doctrine in the Early Republic. The case, Head & Amory v. Providence Insurance Co., dates from 1804 and was argued before the Court of Chief Justice John Marshall.
The case was about a merchant vessel that was seized as a prize of war in 1800 during the Napoleonic Wars. The owners of the ship tried to recover from their insurer, but the insurer claimed that the policy had been canceled. There was no signed writing evidencing the cancellation. Rather the evidence of cancellation came in the form of correspondence between the parties. While the trial jury was led astray by expert testimony suggesting a completed agreement, Justice Marshall found that the exchange of letters constituted only preliminary negotiations that could not bind the parties. Moreover, John Quincy Adams successfully persuaded the Court that a corporation could not be bound by an agreement absent seal or signature.
John Quincy Adams gave his handwritten notes for the case to William Cranch, who was both Abigail Adams's nephew and John Quincy's classmate at Harvard. Mr. Cranch served as the reporter for the Court until 1815.
November 1, 2023 in Famous Cases, True Contracts | Permalink | Comments (0)
Tuesday, October 31, 2023
Spooky Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for October 31, 2023
Why not drop a download into the trick-or-treater bags tonight? Contract law, as all who inhabit this space know, is always a treat. Happy Halloween from the blog and our scholarly "sponsors" listed below. As for me, all I want for Halloween is three more downloads to break the century mark for After FTX!
Top Downloads For:
Recent Top Papers (60 days)
As of: 01 Sep 2023 - 31 Oct 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 239 | |
| 2. | 213 | |
| 3. | 168 | |
| 4. | 97 | |
| 5. | 84 | |
| 6. | 80 | |
| 7. | 78 | |
| 8. | 71 | |
| 9. | 71 | |
| 10. | 59 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 01 Sep 2023 - 31 Oct 2023| Rank | Paper | Downloads |
|---|---|---|
| 1. | 239 | |
| 2. | 168 | |
| 3. | 97 | |
| 4. | 71 | |
| 5. | 44 | |
| 6. | 39 | |
| 7. | 36 | |
| 8. | 27 | |
| 9. | 22 | |
| 10. | 16 |
October 31, 2023 in Recent Scholarship | Permalink
Monday, October 30, 2023
The Plea Deals in State of Georgia v. Trump
Nineteen were indicted in the Georgia election case. Four have now pled guilty. All four have agreed to cooperate with the prosecutors in the case against the remaining co-conspirators.
A plea agreement is a contract. Cooperation is offered in exchange for leniency in sentencing. The terms of those agreements have been described in the media as generous, in that the defendants will all avoid jail time, assuming good behavior. In some cases, they get to keep their law licenses, although state bars might determine otherwise down the road. Of interest beyond that are the specifics about what cooperation entails and the penalty for breach. If criminal plea agreements are reduced to writing somewhere, I have been unable to find online versions of the plea agreements in Georgia v. Trump, which is a shame. I will have to cobble together the terms from news reports on the court proceedings on the matter.
The first to enter a plea was bail bondsman Scott Hall (right), perhaps the least notorious of the alleged criminal conspirators. According to Richard Fausset and e pled guilty to five misdemeanor counts of intentional interference with performance of election duties. He had been charged with racketeering and felony conspiracy in connection with tampering with voting equipment in Coffee County, Georgia in January 2021 in an attempt to discover evidence of voting fraud at the behest of the Trump campaign.
According to the plea deal, he will serve five years of probation. He will pay a $5000 fine and apologize to the people of Georgia. He will have to perform 200 hours of community service and surrender his license to carry a firearm. He may not participate in activities relating to the administration of an election. He agreed to testify against his co-conspirators, which is bad news for two other defendants, Misty Hampton and Cathy Latham, who allegedly participated in the Coffee County scheme. Defendant David Shafer the former head of the Republican Party in Georgia, also seems to have ties to Mr. Hall through Mr. Hall's brother-in law, David Bossie.
The next to fall was Sidney “Release the Kraken” Powell (left). and provide in-depth coverage in The New Yorker on what led Ms. Powell to plead guilty. She pled guilty to six misdemeanor counts of election interference and will have to pay nearly $9000 in fines and serve six years of probation. She has apologized the the people of Georgia and agreed to testify in the proceedings against her co-conspirators.
Ms. Powell was engaged in a lot of election fraud shenanigans, but she, like Mr. Hall, was convicted for allegedly tampering with voting machines in Coffee County. Misty Hampton, the county's election supervisor, apparently bought into Ms. Powell's nutter idea that Dominion voting machines had been tampered with. She refused to certify her county's election results. The story in The New Yorker provides a lot of details I had not read elsewhere. It took a long time to discover what happened in Coffee County, because Georgia's secretary of state blocked efforts to learn whether the voting records has been illegally accessed. An election watchdog group investigated and was able to issue subpoenas. Their forensic expert was able to confirm a breach, and the rest was expected to come out in Fani Willis's case.
The New Yorker obtained a copy of a 400-page report by the Georgia Bureau of Investigation (GBI). It details what might have been the basis for Ms. Powell's rather surprising decision to plead guilty. Among other things, it seems clear that Powell and her co-conspirators, including Ms. Hampton and Ms. Latham, represented to their hired forensics experts that they had permission to access election equipment when they did not. Ms. Powell had pursued a litigation strategy of trying to persuade the court that her involvement in the alleged conspiracy could be limited to conduct in Coffee County on January 7th. The fact that she paid the outside experts who were given illegal access to voting data suggests a larger role. The New Yorker seems to suggest that she pled guilty when she did once it became clear that she was going to be implicated in wider illegality.
Next came Kenneth Chesebro. According to Richard Fausset and
And finally, yesterday, Jenna Ellis joined the ranks of those who have entered guilty pleas. According to Richard Fausset and
Richard Fausset and
What's next, you might ask? This is not my area of expertise, but from the perspective of my position as an armchair prosecutor, it seems that these Misty Hampton and Cathy Latham are left looking very exposed, and the noose also seems to be tightening around John Eastman's neck. Rudy Giuliani has already confessed to lies in another Georgia case and is reportedly running out of funds to pay his attorneys. I would be surprised if there weren't more plea agreements on the way to trial, unless the prosecutors, thinking they already have enough witnesses, are no longer interested in offering such generous terms. They may not need to.
October 30, 2023 in Commentary, Current Affairs, In the News, Recent Cases | Permalink | Comments (0)
Friday, October 27, 2023
Friday Frivolity: Thanks for all the Unilaterals, Elon Musk!
He may not have been able to make Twitter profitable, and he may not make it to Mars, but boy is he great at generating unilateral contract hypos!
In other Elon Musk news, I just rewatched The Incredibles with my students, as I do every year when I cover restitution. This time I was struck by what an amazing job the Pixar folks did in creating the Syndrome character, because he is basically Elon Musk with red hair. How did they know?
October 27, 2023 in Current Affairs, Web/Tech | Permalink | Comments (1)
Thursday, October 26, 2023
I Think I Agree with Jason Alexander: Phone Companies Should not Yada Yada Contractual Boilerlate
Thanks to OCU 1L Olivia Holder (right) for sharing with me news from the world of contracts in advertising!
T-Mobile has a new ad campaign for its Metro service. The theme is Nada Yada Yada. I'm not quite sure what it means. They explain that T-Mobile offers "no contracts, no price hikes, no surprises."
This offends me as a contracts professor. Sure, contracts of adhesion can contain nasty terms, and the boilerplate component of them can seem like a lot of yada yada yada. But contracts are risk allocation devices. Without contracts, what you get is price hikes and surprises. There is going to be a lot of yada yada yada in any contract of adhesion, and no doubt T-Mobile uses contracts of adhesion just its competitors. But consumers need to be on notice of salient terms, and just saying there is nada yada yada does not provide consumers with those terms.
I am also offended as a Seinfeld fan. You don't yada yada the surprising part. You yada yada the boring part that nobody cares about. In the relevant episode, Jerry and George (Jason Alexander) admire George's yada yadaing girlfriend because she is succinct (although I quibble with their pronunciation of that word). But she takes things too far, whence the comedy. Seinfeld uses this basic social norm of linguistic usage to comic effect when George's girlfiend yada yadas things, like sex and shoplifting, that one would not expect someone to yada yada.
At the end of the episode, George realigns the usage to the norm. Resigned to his girlfriend's foibles, George narrates the demise of their relationship -- "she went shopping for shoes for a wedding and yada yada yada, I'll see her in six t0 eight months." He skips over the part that we now can fill in for ourselves. T-Mobile yada yadas the part its customers need to know. It's like they are making themselves into George's girlfriend. She's not a normative character.
The solution is clear contractual terms and no provision that permits the wireless carrier to change terms on a rolling basis. Well, take it from here, Jason
When a phone company tells you that there is nada yada yada, they are like George's norm-breaking girlfriend -- attractive, but perhaps a thief and probably cheating on you with her ex.
October 26, 2023 in Commentary, True Contracts, Web/Tech | Permalink | Comments (0)
