ContractsProf Blog

Tuesday Top Ten - Contracts & Commercial Law Downloads for January 19, 2021

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 20 Nov 2020 - 19 Jan 2021

Rank	Paper	Downloads
1.	Democratic Data: A Relational Theory For Data Governance Salome Viljoen NYU School of Law	897
2.	What Do Lawyers Contribute to Law & Economics? Robert E. Scott and George G. Triantis Columbia University - Law School and Stanford Law School	201
3.	'Lipstick on a Pig': Specific Performance Clauses in Action Theresa Arnold, Amanda Gray Dixon, Hadar Tanne, Madison Sherrill and G. Mitu Gulati McGuireWoods LLP, Duke University School of Law, Students, Duke University School of Law, Duke University School of Law, Students and Duke University School of Law	185
4.	Equity as Meta-Law Henry E. Smith Harvard Law School	152
5.	Does Voter Fraud Pay? Texas Lt. Gov. Dan Patrick’s $1 Million Voter Fraud Offer Michael Conklin Angelo State University	139
6.	Client-Intermediary Relations in the Crypto-Asset World Louise Gullifer, Henry Chong and Hin Liu University of Cambridge - Faculty of Law, affiliation not provided to SSRN and University of Oxford	125
7.	Financial Terms in License Agreements Jorge L. Contreras University of Utah - S.J. Quinney College of Law	121
8.	Introduction: The Oxford Handbook of the New Private Law Andrew S. Gold, John C. P. Goldberg, Daniel B. Kelly, Emily L. Sherwin and Henry E. Smith Brooklyn Law School, Harvard Law School, Notre Dame Law School, Cornell University - Law School and Harvard Law School	112
9.	Contractual Allocation of Risks in Times of Crises: Computational and Normative Analyses of Force Majeure Clauses Farshad Ghodoosi Nazarian School of Business & Economics, California State University, Northridge	110
10.	AI Governance in Canadian Banking: Fairness, Credit Models, and Equality Rights Virginia Torrie and Dominique Payette University of Manitoba and affiliation not provided to SSRN	104

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 20 Nov 2020 - 19 Jan 2021

Rank	Paper	Downloads
1.	Democratic Data: A Relational Theory For Data Governance Salome Viljoen NYU School of Law	897
2.	'Lipstick on a Pig': Specific Performance Clauses in Action Theresa Arnold, Amanda Gray Dixon, Hadar Tanne, Madison Sherrill and G. Mitu Gulati McGuireWoods LLP, Duke University School of Law, Students, Duke University School of Law, Duke University School of Law, Students and Duke University School of Law	185
3.	Six Levels of Contract Automation: Evolution to Digitalised Smart (and Legal) Contracts Susannah Wilkinson Herbert Smith Freehills	162
4.	Does Voter Fraud Pay? Texas Lt. Gov. Dan Patrick’s $1 Million Voter Fraud Offer Michael Conklin Angelo State University	139
5.	Contractual Allocation of Risks in Times of Crises: Computational and Normative Analyses of Force Majeure Clauses Farshad Ghodoosi Nazarian School of Business & Economics, California State University, Northridge	110
6.	Mandatory Arbitration and the Boundaries of Corporate Law Asaf Raz University of Pennsylvania Law School	88
7.	Freedom to (Smart) Contract: The Myth of Code and Blockchain Governance Law Tiffany Sillanpaa New York University School of Law Law School	78
8.	Trust and Contracts: Empirical Evidence Francesco D'Acunto, Jin Xie and Jiaquan YAO Boston College, The Chinese University of Hong Kong (CUHK) and affiliation not provided to SSRN	66
9.	Justice in Transactions: A Public Basis for Justifying Contract Law? Martijn W. Hesselink European University Institute	57
10.	The Mental Element in Equitable Accessory Liability Lusina Ho The University of Hong Kong - Faculty of Law	48

More Reasonable Notice

(This post is a continuation of yesterday’s post on “Reasonable Notice”)

The second case reflecting the evolving understanding of reasonable notice is Kauders v. Uber Technologies .  The plaintiffs sued Uber in Massachusetts Superior Court alleging that three Uber drivers refused to provide one of the plaintiffs, Christopher Kauders, with a ride because he was blind and accompanied by a guide dog.  Uber sought to compel arbitration, but plaintiffs argued that they had not entered into an enforceable arbitration agreement. 

The backstory to this case is interesting.  The lower court judge initially granted Uber’s motion.  Subsequently, the arbitrator ruled in favor of Uber on all the plaintiff’s claims.  Then, the U.S. Court of Appeals for the First Circuit issued Cullinane v. Uber Tech., Inc., 893 F.3d 53, 62 (1^st Cir. 2018) which found that Uber’s registration process did not provide reasonable notice and so did not create a contract.  The judge in Kauders who granted the motion to compel arbitration allowed a motion for reconsideration after Cullinane and then reversed his earlier decision, finding that there was no enforceable contract requiring arbitration.  Uber appealed to the Massachusetts Supreme Judicial Court claiming that the lower court judge should have confirmed the arbitration award because the plaintiffs failed to challenge the award within 30 days.  The appellate court disagreed and found that the issue of arbitrability was preserved for appeal.  The court went through Uber’s registration process in detail, noting website design details such as color, location and wording at each step. It concluded that  Uber’s terms and conditions did not provide the plaintiffs with reasonable notice and that the user did not clearly manifest assent to the terms.

The court noted with some distaste Uber’s unilateral modification clause, noting that:

“Uber can amend the terms and conditions whenever it wants and without notice to the users that have already agreed to them.  In fact under the terms and conditions, the burden is on the user to frequently check to see if any changes have been made.  Yet, even if a user somehow detects a change, there is no way for the user to or contest any of the changes, as the changes are automatically binding in the user.”

The court noted that many of the provisions were “extremely favorable to Uber” including a broad limitation of liability provision.  In addition, the court noted the warranty disclaimer, a strict no-refund policy, a provision stating that Uber was not a provider of transportation (that by-now familiar and disingenuous Big Tech claim that “I’m just a little ol’ platform and not an employer/principal argument never mind my billion dollar valuation”) and a one-sided indemnification clause where the passenger indemnifies Uber from pretty much everything.  It was refreshing to finally have a court take umbrage at the extreme one-sidedness of “standard” TOS.

The court noted that it had not previously considered what standard should be used for online contract formation.  (This might sound surprising but in fact, few state courts have actually addressed this issue.  Most of the cases deciding wrap contract formation have come out of federal court as noted in footnote 20 of this article here).  The court adopted the “reasonable notice” and “reasonable manifestation of assent” test and noted that the tricky part was not which test to apply but how to apply it.  The court concluded that the notice was not reasonable and cited several reasons including that the user did not have to scroll and could register and click “done” without clicking the link to the terms and conditions.  It contrasted the registration process of drivers versus users and concluded that “a user may reasonably believe he or she is simply signing up for a service without understanding that he or she is entering into a significant contractual relationship governed by wide-ranging terms of use.”

Both of these cases are chock full of interesting comments by the court and insights into what is more likely to result in a finding of reasonable notice.  The takeaway? Reasonable notice is fact intensive, not a one-size-fits-all.  Simply because the user is asked to “click” doesn’t mean the contract will be found enforceable.  These two cases reflect part of a trend that looks at the registration process from the standpoint of the user rather than a court.  This ex ante rather than ex post approach is a more realistic and appropriate way to assess the reasonableness of notice and another sign that courts are starting to take the notion of “reasonable notice” more seriously.

Evolving Meaning of Reasonable Notice

A few weeks ago, I blogged about Hansen v. Ticketmaster, a case that IMHO did contract law wrong by taking an unrealistic approach to what constitutes unreasonable notice.  I noted that this case seemed to be on the wrong side of a trend which reallocates the burden that wrap contracts places upon the parties.  Law and econ scholars extoll the efficiency virtues of mass consumer contracts but often neglect to consider the burden that these contracts place upon consumers who are expected to read all the itty bitty terms – or the ALL CAPS terms that are only accessible by clicking on a hyperlink (or three).  As I have discussed elsewhere, recent cases have adopted a different and more encouraging approach by expecting more from the drafters in terms of better presentation of terms.  Under this trend of cases, “reasonable notice” means not only that the adherent has a duty to read, but that the drafter has a duty to draft reasonably (something that I written about many times, including here and here). 

Two subsequent cases reflect that trend which takes the notion of “notice” more seriously. 

The first case, C.D. v. Massage Envy Franchising, LLC, DOCKET NO. ESX-L-3263-19 (N.J. Super. Dec. 3, 2020) involved a plaintiff who alleged that a massage therapist committed assault and battery during a massage and so breached the contract between the parties which prohibited such conduct.  The defendants claimed that the plaintiff agreed to arbitration when she clicked “agree” on a check box at the bottom of an electronic consent form.  The plaintiff was presented with the form when the plaintiff arrived for the service.  The form was presented on a tablet device.  The check box was at the end of a multi-page “General Consent” form and next to the words “I agree and assent to the Terms of Use Agreement” which was a hyperlink.  Underneath the check box was a signature line where the plaintiff signed her name. 

Massage Envy argued that the claim should be submitted to arbitration and, alternatively, that the contract’s forum selection clause required the case be litigated in Arizona and not New Jersey.  The court disagreed, finding that the “General Consent” form failed to clearly direct the plaintiff to the Terms and Conditions which was where the arbitration and forum clauses lurked.

The court stated that it was not holding that clickwrap agreements as a form of contract were unenforceable; rather, it was that this particular agreement was not enforceable because of the way it was presented:

 “within a lengthy electronic document reached only by a hyperlink, which was accessible only adjacent to a signature line, which signature line followed a lengthy list of rules and disclaimers contained on an extended series of screens through which the user was required to scroll, was not under any fair analysis placed in such a way so as to give the plaintiff notice that there was more to consider in agreeing to the defendant’s member rules.”

This case reflects the trend toward placing more of the burden of wrap contracts on the party that has more control over them – the drafting business.  The court further noted that: 

“While it is undisputed that plaintiff did not read the electronic agreement reachable only by hyperlink, that is attributable, in this court's opinion, not to laziness, disinterest, or blithe indifference, but rather to an objectively confusing, nay misleading, design of the website. As a result, plaintiff's ignorance of the document's terms cannot fairly be ascribed to anything she did wrong.”

Because of the length of this post, I will blog about the second case tomorrow.

John Eastman and Chapman University Part Ways

According to this article in the L.A. Times, John Eastman, who has recently represented the President in connection with numerous lawsuits challenging election results, has agreed to resign his position as a professor of law at Chapman University.  Professor Eastman joined Rudy Giuliani at the "Save America" Rally on January 6th.  The L.A. Times reports that, at that rally, he made unsubstantiated claims of voter fraud in connection with the 2020 Presidential election.  

More than 160 faculty members called for the University to take action, but Chapman's President Daniele Struppa refused, citing the limitations of his powers as university president and the important principles of academic freedom and contractual rights.  President Struppa's statement is worth quoting at length.

I am not the Emperor of Chapman University, nor I am the Supreme Leader of Chapman University. I am the President of the university, and as such, I am bound by laws and processes that are clearly spelled out in our Faculty Manual. The Faculty Manual, despite its common name, is actually a contractually binding document that faculty, administration, and Trustees have agreed upon. This document contains the rules that determine how faculty are hired, and how they are disciplined, up to and including termination. The documents spell out cases under which such actions can be taken, and what process must be followed. The process includes a prominent role for the Faculty Personnel Committee and affords the faculty under discipline a process, and the right to grieve the decision in multiple settings. 

I do not know anything about President Struppa (pictured), but if this statement is representative of his qualities, he is a very fine university president.  I do have some concerns about wearing such a busy tie with a plaid sports jacket, but I would not question his leadership on that basis.

Happily, Chapman University and Professor Eastman were able to come to an agreement.  He voluntarily resigned, and neither party will pursue legal action against the other.  Some may think that Professor Eastman was strong-armed into forfeiting his position and some part of his academic freedom and freedom of expression.  I choose to see this episode as one in which contract law and contractual negotiation play a starring role and put in a strong showing.

Guest Post by Alan White, Systemic Racism and Teaching Contracts

Some thoughts on systemic racism and the teaching of Contracts
Alan White

The popular uprisings inspired by Black Lives Matter have prompted many law teachers to reconsider how their pedagogy could better confront systemic racism in the law and the legal academy. This is perhaps more challenging for Contracts than subjects like Criminal Procedure and Property. Here are some thoughts of a white professor on how to educate ourselves (rather than burdening our BIPOC colleagues) and to rethink our Contracts syllabus. Some critical race scholars and others who have tackled this problem are listed in this helpful bibliography. Featuring African-American protagonists in at least a few cases is an important albeit superficial step many textbooks now take, but as teachers we can do far more.

One critical approach to teaching Contracts is to reverse the usual preeminent position that libertarian values like autonomy have when we present the steps of contract identification, typically by beginning a syllabus with voluntary offers and acceptances, or the consideration doctrine of equal or unequal exchange. Instead we can ground a Contracts course in the basic definition of contract, which is state coercion; specifically, an obligation identified and enforced by courts from some social context. To me this also implies starting the class with remedies, to emphasize the point that contract law is about compelling payment of money damages, or in some cases compelling delivery of property or performance of a service. The topic of when courts do and do not grant equitable remedies (injunctions and specific performance) begins to reveal the value choices embedded in our common law. Implied contract terms is also a topic rich with latent political choices, as for example with the employee’s duty of loyalty vs. at-will employment.

 After exploring the scope and limits of state coercion in enforcing obligations, in a second step students may consider (following Legal Realists like Robert Hale) whether the obligations being enforced themselves arise from a spectrum of voluntariness and coercion. If we want to situate the role of contract law in this spectrum of coercion, we can teach formation and enforceability doctrines using contracts that are not the archetype of arms-length negotiation by parties of “roughly equal bargaining power,” but instead arise in employment, consumer, and housing relationships, as well as in business-to-business transactions. Another strategy to highlight the problem of coercion in private contracting is to begin the contract formation subjects with defining acceptance and the reality or fiction of consent, rather than starting with defining “offer.”  Teachers could prominently contrast adhesion contracts with the idealized archetype of negotiated deals. We could follow this with cases describing physical duress, economic duress, and undue influence.

Through the lens of both state and private coercion, it becomes much easier to ground the law of contracts in the U.S. history of slavery and racism. For example, the dichotomy between contract formation and enforceability defenses (a false dichotomy for some critics) can be illustrated with discussion of the black codes as a contract-based means for perpetuating slavery after emancipation. When a freed slave is faced with the voluntary choice of working for a former master for next to nothing (as sharecroppers often were) or being imprisoned for vagrancy, we have the clearest case of contractual coercion. Cases arising under 42 USC Section 1981 (the Reconstruction act guaranteeing the right of former slaves to freely contract) are also excellent vehicles to present and critique various definitions of contract.

 The habit of using unconscionability cases such as Williams v Walker-Thomas Furniture or implied terms cases such as Javins v. First National Realty (warranty of habitability in residential leases) as vehicles to raise issues of racism also needs to be approached with care. Muriel Morisey Spence wrote an excellent article on this (3 Temple Political and Civil Rights Law Review 89 (1993)). It becomes too easy to conflate, even unwittingly, economic oppression with victimhood and lack of agency on the part of the black actors in these cases. Context is vital. The story of Ms. Williams for example, should include not only the unfair practices of Walker-Thomas Furniture, but the housing segregation and redlining that produced contractual offerings like rent-to-own appliance contracts and contracts for deed as poor substitutes for sales arrangements offered to whites. The story of Ms. Javins includes the tenant organizing and rent strike that led DC legal services program to take on a litigation campaign to establish the habitability principle.

More broadly when we select humorous but decontextualized or antiquated cases like Hamer v. Sidway, Lucy v. Zehmer, and Leonard v. Pepsi, we subtly normalize the stories of white men as paradigmatic, and reinforce the invisibility of women and BIPOC. These cases can readily be replaced with cases whose dramatis personae reflect the identities and struggles of diverse Americans. As we also consider assembling free or low-cost learning materials, essential for promoting law school access, we have the occasion to say goodbye to these old chestnuts. I would love to hear from fellow Contracts teachers who are reconstructing syllabi and reading materials along these and other lines.

Tuesday Top Ten - Contracts & Commercial Law Downloads for January 12, 2021

The Tuesday Top Ten returns from its holiday hiatus to welcome you to 2021 (such as it is, so far). Let's get down to business and see what is percolating in the world of contract and commercial law scholarship!

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 13 Nov 2020 - 12 Jan 2021

Rank	Paper	Downloads
1.	Democratic Data: A Relational Theory For Data Governance Salome Viljoen NYU School of Law	846
2.	What Do Lawyers Contribute to Law & Economics? Robert E. Scott and George G. Triantis Columbia University - Law School and Stanford Law School	193
3.	'Lipstick on a Pig': Specific Performance Clauses in Action Theresa Arnold, Amanda Gray Dixon, Hadar Tanne, Madison Sherrill and G. Mitu Gulati McGuireWoods LLP, Duke University School of Law, Students, Duke University School of Law, Duke University School of Law, Students and Duke University School of Law	173
4.	Equity as Meta-Law Henry E. Smith Harvard Law School	140
5.	Client-Intermediary Relations in the Crypto-Asset World Louise Gullifer, Henry Chong and Hin Liu University of Cambridge - Faculty of Law, affiliation not provided to SSRN and University of Oxford	122
6.	Financial Terms in License Agreements Jorge L. Contreras University of Utah - S.J. Quinney College of Law	113
7.	Introduction: The Oxford Handbook of the New Private Law Andrew S. Gold, John C. P. Goldberg, Daniel B. Kelly, Emily L. Sherwin and Henry E. Smith Brooklyn Law School, Harvard Law School, Notre Dame Law School, Cornell University - Law School and Harvard Law School	106
8.	AI Governance in Canadian Banking: Fairness, Credit Models, and Equality Rights Virginia Torrie and Dominique Payette University of Manitoba and affiliation not provided to SSRN	98
9.	Contractual Allocation of Risks in Times of Crises: Computational and Normative Analyses of Force Majeure Clauses Farshad Ghodoosi Nazarian School of Business & Economics, California State University, Northridge	89
10.	Economic Challenges for the Law of Contract Alan Schwartz and Simone M. Sepe Yale Law School and University of Arizona - James E. Rogers College of Law	73

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 13 Nov 2020 - 12 Jan 2021

Rank	Paper	Downloads
1.	Democratic Data: A Relational Theory For Data Governance Salome Viljoen NYU School of Law	846
2.	'Lipstick on a Pig': Specific Performance Clauses in Action Theresa Arnold, Amanda Gray Dixon, Hadar Tanne, Madison Sherrill and G. Mitu Gulati McGuireWoods LLP, Duke University School of Law, Students, Duke University School of Law, Duke University School of Law, Students and Duke University School of Law	173
3.	Six Levels of Contract Automation: Evolution to Digitalised Smart (and Legal) Contracts Susannah Wilkinson Herbert Smith Freehills	145
4.	Contractual Allocation of Risks in Times of Crises: Computational and Normative Analyses of Force Majeure Clauses Farshad Ghodoosi Nazarian School of Business & Economics, California State University, Northridge	89
5.	Freedom to (Smart) Contract: The Myth of Code and Blockchain Governance Law Tiffany Sillanpaa New York University School of Law	72
6.	Mandatory Arbitration and the Boundaries of Corporate Law Asaf Raz University of Pennsylvania Law School	71
7.	Introduction to The Right of Redress Andrew S. Gold Brooklyn Law School	62
8.	Justice in Transactions: A Public Basis for Justifying Contract Law? Martijn W. Hesselink European University Institute	51
9.	The Mental Element in Equitable Accessory Liability Lusina Ho The University of Hong Kong - Faculty of Law	46
10.	Algorithmic Contracts and the Equitable Doctrine of Undue Influence: Adapting Old Rules to a New Legal Landscape Marco Rizzi and Natalie Skead The University of Western Australia Law School and The University of Western Australia Law School	45

 

In Memoriam: Peter Linzer

Today we mourn the loss of Peter Linzer.   Peter was a giant within our field, an active participant in conversations about contracts law and law reform, and a contributor to this blog, e.g. here and here.

The following was shared with the Contracts Listserv.  It was written by one of Peter's students, Patricia A. Bell

Obituary of Peter S. Linzer (1939-2020) 

Legal scholar and law professor Peter S. Linzer succumbed to his long and courageous battle with cancer in the waning days of 2020.  His keen powers of observation, analysis, and languages informed a lifetime of scholarship, commentary, and teaching. He is survived by a wife, a son, and a grandson.  

Precisely slicing and dicing complicated issues that arise from the human condition (contractual agreements and the failures thereof, the civil rights of peoples to freely think, act, and communicate in the public and private spheres without harming the vulnerable among us, and a constant reassessment of “norms”), Peter Linzer was a recognized legal giant. From his status as an informed oenophile to his curiosity almost about all things and level of knowledge about so many, Linzer was also the modern equivalent of a Renaissance Man.  

An only child and precocious from his youth, Linzer grew up in a tall New York City apartment building filled with intelligentsia. His mother once told him “you are the second smartest boy in our building” and she expected him to live up to that high standard. He more than did so and loved telling the story.  Linzer adopted the same blunt approach in his direct communications with colleagues, students, and the press. Many successful lawyers around the world remember the eye-opening commentary received in Linzer’s classes. In a discussion about restitution, Linzer informed one student that “I could substitute the word “banana” for every other word that you just said, and it would make as much sense.” His students honed their substantive legal knowledge, and their legal practice and writing skills in his classrooms, getting their money’s worth and more. A former student reports that “when I think about how much Peter taught me on so many topics, it takes my breath away, and I am filled with gratitude.” Comments from his colleagues on the University of Houston Law Center website demonstrate more of the fondness and regard held for Peter Linzer. 

Peter Linzer enjoyed being part of lively organizations in urban centers and was a loyal member of his carefully chosen communities.  He was a quintessential New Yorker, despite his subsequent decades of work in other major cities. Throughout his lifetime, he kept and wore his academic cap and gown from undergraduate and law school graduations at Cornell and Columbia. After a 1960s career in “the City” at Cahill Gordon and in corporate law and finance for the City of New York, Peter Linzer became Professor Linzer and taught thousands of students at the University of Cincinnati, the University of Detroit, and a long career at the University of Houston Law Center. He enjoyed an active membership in the American Law Institute where he was an Editorial Reviser of the Restatement Second of Contracts, as well as a consultant on five other significant ALI restatements of law.  His powerful public positions on ethics, consumer protection, election law, and clear jury charges will continue to shape the practice of law throughout the United States long after his passing.  Despite Linzer’s long association with New York City and Houston, Texas, he was anything but a regional lawyer.  

Linzer knew and enjoyed the value of having a mentor and being a mentor.  He honored those who mentored him, including the late Arthur Corbin. He never abandoned those he mentored, serving as a lifelong advisor and colleague who always made himself available to discuss new and old ideas and provide reality checks for emerging best practices. He taught young lawyers the value of dialogue and the imperative of staying up to date on law and practice. His praise was effusive, both in and out of the earshot of its subjects. Linzer supervised law students, interdisciplinary students, and recently mentored and supervised a PhD student in Constitutional studies.  

During his decades of association with the University of Houston, Peter Linzer supported its radio station, KUHF, including donations, constant listening and sharing, and providing quick and incisive on-air comments on events and issues.  In that yet another practical way, Linzer supported the communities that he joined.  

In his personal life, Peter Linzer loved to travel and read, as well as enjoy and applaud the performing arts. He was a fan of British TV and classic novels.  He was generous to a fault and adored a good joke, even at his own expense. A lifelong Democrat, Linzer actively participated in public life, viewing it as his duty and his honor.  Linzer’s communication and language skills were legendary, and he worked to keep those skills up to date until the last weeks of his life. He will be sorely missed by many who now celebrate his life and mourn his loss. 

Parler's Lawsuit Against Amazon

Parler, the social media platform of choice for the alt-right, is suing Amazon for - among other things - breach of contract.  It claims that Amazon failed to give it thirty days' notice of termination.  I took a quick glance at AWS's Customer Agreement and the termination clause states the following:

7.2 Termination.

(a) Termination for Convenience. You may terminate this Agreement for any reason by providing us notice and closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.

(b) Termination for Cause.

(i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. No later than the Termination Date, you will close your account.

(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause if we have the right to suspend under Section 6, (B) if our relationship with a third-party partner who provides software or other technology we use to provide the Service Offerings expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, or (C) in order to comply with the law or requests of governmental entities.

If the agreement I found is the same as what Parler signed, it seems that Amazon would be able to argue termination for cause under 7(b)(ii)(A) and  (C). 

Section 7(b)(ii)(A) references Section 6 which provides:

6. Temporary Suspension.

6.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:

(a) your or an End User’s use of the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) could adversely impact our systems, the Service Offerings or the systems or Content of any other AWS customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent;

(b) you are, or any End User is, in breach of this Agreement

I think Amazon could very well argue that Parler's services did all of (a) and (b).  Regarding 6.1 (b), Amazon's Customer Agreement states

4.2 Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Service Offerings will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.

Inciting violence would be a violation of applicable law, IMHO. 

Finally, there is the limitation of liability clause:

11. Limitations of Liability.

WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (emphasis added) (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 9.2, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 11 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

So, the breach of contract claim is not looking too good in my view.  And I'm happy to finally write a blog post with TOS as the hero of the story....

 

 

In Memorian: John (Andy) Spanogle

Professor Emeritus Dee Pridgen has posted a tribute on the Consumer Law & Policy Blog.  We reproduce it here:

Dee Pridgen's Tribute to Andy Spanogle

Tribute to Andy Spanogle, 1934-2020.

By Dee Pridgen, Professor Emeritus, University of Wyoming College of Law

I was very saddened to learn the news that my dear friend, and coauthor, Andy (John A.) Spanogle, had passed away in December of last year.  He was a towering figure in the law, especially in the fields of consumer law and international business transactions. 

Our paths first crossed in the late 1980’s, when Andy and his coauthor Ralph Rohner (who just left us last summer) asked me to join them on the second edition of their pioneering casebook, Consumer Law:  Cases and Materials.  The casebook was the first of its kind in a then nascent field.  In the preface to that first edition in 1979, Andy and Ralph relayed their rather apt and prophetic assumptions behind the text:

• Consumer protection statutes and caselaw doctrines are pervasive within the legal structure.
• They are growing.
• They are not likely to disappear, but are more likely to increase.
• Even though they concern widely disparate subject-matter, there are likely to be common doctrinal and practical threads running through them, and it is our job to try to discover those threads.

Consumer law was a thread that ran through Andy’s own professional life.  He was an advocate for the core federal consumer credit laws passed by Congress in the 1970’s, including the $50 limit on consumer liability for unauthorized use of credit cards which we still benefit from today.  He remained involved in and was a valued contributor to the 2^nd, 3^rd and 4^th editions of the Consumer Law casebook.  He also generously supported the National Consumer Law Center, especially in the founding of the Spanogle Institute for Consumer Advocacy, which opened in Washington, D.C. in 2017.

In addition to his influential work in the field of consumer law, Andy coauthored groundbreaking casebooks, treatises and articles in International Business Transactions and International Sales Law.  While teaching law at several different law schools, most recently at George Washington University in Washington, D.C., he also traveled the world as a consultant and teacher.  I know he loved teaching because he continued to serve in the law school classroom as a part-time faculty member for years after he “retired.”  His many students appreciated him very much.

Andy was sharp, witty and had an unforgettable deep-voiced laugh which he employed to good effect on many occasions.  He also sang at his church and in community groups, a talent that I wish I had been able to witness myself. 

Although separated by our geographic locations, Andy remained a good mentor, colleague, and friend to me over the years.  He will not be forgotten.

Jeff Sovern also posted a brief note on the Consumer Law & Policy Blog, linking to an obituary for John "Andy" Spanogle, a contracts and consumer law pioneer who passed last month.  We join the contracts and consumer law community in mourning his passage.

Weekend Frivolity: Flash Fiction

On Losing My Wife to a Younger Man

 

At the beginning of the pandemic, my wife took up with a younger man. As is often the case, she met him through her sister who, innocently, I suppose, thought my wife would enjoy the New York Times’ Spelling Bee puzzle. So it was that my wife transferred her affections to Sam Ezersky.

 

“Oooh,” she exclaimed one morning, while taking a break from solving Sam Ezersky’s puzzle to read an article about Sam Ezersky, “he’s only 24!” I pretended not to know who she was talking about. “And I think he’s Jewish,” she continued, twisting the knife.

 

“What’s his name?” I lied. She told me. “Could be Polish,” I speculated. She was too engrossed in her article about Sam Ezersky to engage.

 

Months passed. We settled into our shelter-in-place routine. My wife’s routine was to spend some time every morning in her favorite chair, attended to by one or more cats, and to gather up the precious baubles that Sam had left for her. Making it to “genius” was her daily goal, but her sister had progressed and now aspired to the occasional Queen Bee. Thus my wife came to spend more and more time each day with Sam in the hopes of finding the last morsel of booty that he had hidden behind some unpropitious consonants or in the plain sight of an ungainly compound consisting of two familiar words.

 

I decided to join her, and she, at first reluctantly, accepted my assistance in exploring the depths of her new beloved. I would study the puzzle for hours before she woke up and then, when she was stumped on the pangram, I would glance over her shoulder and offer “would ‘uncommonly’ work”? She would wriggle with glee, embrace me and say encouragingly, “I never would have found that!”

 

And so we settled into jointly probing Sam’s consciousness. We work independently on the puzzle and then, when we are both exhausted from the effort, we combine words. We have become familiar with Sam’s quirks. He seems to like Mexican and Indian foods, and we have learned his preferred spellings of Yiddish words. He takes “boho” and “loco” but insists that “yoyo” is hyphenated and therefore out of bounds. He can be latitudinous about spelling, taking both “yech” and “yecch,” but sometimes his selection criteria completely baffle us. We forgive him when the last puzzle piece clicks into place. We share an appreciative smile and shrug, “Dunno.” Some days, it is enough if Sam’s puzzle considers us a “genius;” other days, we conclude that we are within reach of Queen Bee and redouble our efforts.

 

After a few months, I noticed that my wife sometimes gets angry at Sam. “I hate it when he puts an “i” in the middle,” she remarked one morning, quite bitterly. I clucked my tongue and agreed. More recently, it seems Sam can do nothing right by her. She hates it when there are too few words, when there are too many vowels, when there is a “k” without a “c” or a “g” without an “h.” One night as we were falling asleep, after a white-knuckled struggle to make it to “genius,” my wife practically hissed, “Would it kill him to give us an ‘s’?”

 

These days, I’m feeling pretty good about having Sam in our lives. Working on Spelling Bee is one or our common projects. We both have independent careers, and hers involves a lot of confidential information. Much of her work consists of interactions and experiences that she cannot tell me about, and my life as a professor is fulfilling for me but not exactly action-packed during COVID, since I don’t interact with my colleagues very often. Neither professional ethics nor rectitude would stop me from blabbing, but these days, I just don’t have any gossip to share with her.

 

On good days, Sam is a pal. We have the satisfaction of completing a project. We feel good about ourselves when we make it to genius and great about ourselves when we hit Queen Bee. Along the way, we can share a chuckle over our pal’s foibles. “Ratatat” again! On bad days, my wife despairs. “I think I’m going to take a break from this puzzle for a while,” she threatens.

 

Don’t worry, Sam. I’ve got your back.

Students' COVID-Based Against Rensselaer Polytechnic Can Proceed

Last month, Judge David Hurd denied a motion to dismiss brought by defendant Rensselaer Polytechnic Institute (RPI) in a suit brought by some of its students.  The plaintiffs allege that RPI committed breach of contract and various torts by providing a lower-quality education, due to restrictions dictated by RPI's response to the pandemic, than plaintiffs had been promised.    The students seek as damages the difference between the value of on-campus education and the online program in which they have participated.  

RPI defended against the breach of contract claim by pointing to case law indicating that "courts have a restricted role in reviewing controversies involving colleges and universities."  In addition, RPI alleged that plaintiffs could point to no contractual promise that RPI had made to them.  The court held that plaintiffs' first argument, that the university made an implied promise of on-campus education, was "esoteric" and did not withstand scrutiny.  But the court was more sympathetic to plaintiffs' second argument, that RPI's catalogues and circulars describe a mandatory on-campus learning experience as integral to its program.  The court was unpersuaded by RPI's argument that the documents in question were aspirational, pointing to the documents' repeated use of the word "will."  RPI seems to be a victim of its own good marketing.  As the court noted, RPI made "some bold claims . .  . about its in-person programming and hammered repeatedly on the benefits of those programs."  

The court also rejected RPI's attempt to characterize plaintiffs' breach of contract claim as an impermissible educational malpractice claim in disguise.  New York permits no such claims, but plaintiffs are not denying that they were being educated.  They are claiming that they did not get full value for their tuition payments, and tuition covers more than the right to take classes. Plaintiffs are not alleging that they received inferior instruction, nor do they question whether RPI made the right decision in moving to online education.  Even if RPI did everything right, that still does not mean that it delivered on its contractual promises.  RPI's arguments that it too has suffered economically from the pandemic and did not profit from its decision to move classes online were thus unavailing.

The court also permitted plaintiffs' alternative claims of unjust enrichment and promissory estoppel to survive.  It is not clear to me, given that plaintiffs do not allege an inferior education or that RPI somehow saved money by offering online education during the pandemic, how the plaintiffs intend to show compensable harm based on either breach of contract or unjust enrichment.  I'm also not sure how a class, as plaintiffs seek class certification, could show detrimental reliance.   Commonality issues would abound.  But those are  questions for another day.

All educators should watch this cases (and like cases) carefully.  University marketing departments might have to move from clear promises to puffery if they want to avoid exposure to similar claims going forward.

Senator Josh Hawley's Contract with Simon & Schuster

As the New York Times reports, Simon & Schuster has decided not to publish Senator Josh Hawley's book "The Tyranny of Big Tech."  According to the Times, Simon & Schuster explained that, while it likes to present different viewpoints, "we take seriously our larger public responsibility as citizens, and cannot support Senator Hawley after his role in what became a dangerous threat.”  Simon & Schuster regularly publishes books by and about political figures, including books critical of the current President by Bob Woodward, Mary L. Trump, and John Bolton, and books supporting the current President by Sean Hannity and Tucker Carlson.

In 2017, Simon & Schuster similarly withdrew from its commitment to publish a book by right-wing provocateur Milo Yiannopoulos.  Yiannopoulos sued, but later dropped the suit.   Senator Hawley (above, right) seems to be headed down the same path.  He Tweeted out his response to the "woke mob" at Simon & Schuster as follows:

Josh Hawley is a graduate of Yale Law School.  That should mean that he is off-the-charts smart in testable ways.  And perhaps this is a very smart thing for a politician to say in order to appeal to people on Twitter who don't know the difference between contractual rights and First Amendment rights.  This blog is not the Senator's target audience, but for what it's worth we are not impressed.

Shall we start with "Orwellian?"  There is nothing Orwellian about what Simon & Schuster has done.  It is not conflating black and white, day and night, lies and truth, war and peace.  It's not clear why Senator Hawley accuses Simon & Schuster of having "redefined" Hawley's conduct as "sedition."  The company's statement doesn't mention sedition.  But you can check out 18 U.S.C. § 2834 and decide for yourself whether the shoe fits.  

Simon & Schuster has decided to withdraw from a contractual obligation because it disapproves of the Senator's actions.  It's a private corporation; it knows that a contract entails a promise to perform or to pay damages.  It apparently stands ready to do the latter.  Of course, it may not be necessary for  Simon & Schuster to pay damages, because Senator Hawley may be able to mitigate his damages by publishing with another publisher.  

But there is something Orwellian about Senator Hawley's claim that he was "representing his constituents" by challenging the results of elections in other states.  Senator Hawley's senior colleague, Roy Blunt, did not think his senatorial duties required him to challenge the certification of ballots in the Presidential election.  Knowing everything Senator Hawley knows and sharing his political perspective, Senator Blunt, siding with 90 judges who had reviewed the claims, concluded that there was insufficient evidence to sustain objections to the ballots.  The Kansas City Star has concluded that Senator Hawley has "blood on his hands" and calls for him to resign. 

Senator Hawley next says that this is no mere contract dispute; it's an assault on the First Amendment.  It's not clear that it is a contract dispute.  It likely is a breach of contract, but Simon & Schuster may not dispute that it has breached.  It may allow Senator Hawley to retain his advance, and both parties will move on. 

Simon & Schuster has not assaulted the First Amendment because the First Amendment only protects us against government infringements of our free speech rights.  Simon & Schuster is not the government.  It doesn't have to publish speech of which it disapproves.  It can "cancel" Senator Hawley, if by "cancel" Senator Hawley means shun and disapprove of on moral or political grounds. 

I very much doubt that Senator Hawley will see Simon & Schuster in court.  He does not mean that literally.  He does not mean it figuratively.  This is all just theater.  Fortunately, this variety of theater is not likely to result in bloodshed.  For Senator Hawley, it's just a fundraising opportunity. 

Smart guy.

AALS Session: New Voices in Commercial & Consumer Law, Wednesday, 4:15 EST

Section on Commercial and Consumer Law: Works-in-Progress for Junior Consumer Law Scholars

 

Junior scholars present works-in-progress in several concurrent sessions. Senior scholars, our section leadership, and all those who attend will serve as commenters. Please join us!

 

Moderator
Matthew A. Bruckner
Howard University School of Law

1. Manisha Padi, Assistant Professor of Law, University of California, Berkeley School of Law, "Contractual Inequality"
Comments: Tess Wilkinson-Ryan, Professor of Law and Psychology, University of Pennsylvania Carey Law School

 

2. Abbye Atkinson, Assistant Professor of Law, University of California, Berkeley School of Law, "Marginalized Debt and the Private Funding of Social Provision"
Comments: Andrew Boyd Dawson, Vice Dean for Academic Affairs and Professor of Law, University of Miami School of Law; 
Laura Coordes, Associate Professor, Arizona State University Sandra Day O'Connor College of Law

 

3. Vijay Raghavan, Assistant Professor of LawBrooklyn Law School, "Consumer Law’s Equity Gap"
Comments: Andrew Hayashi, Professor of Law, University of Virginia School of Law

 

4. Danielle D'Onfro, Associate Professor of Law, Washington University in St. Louis School of Law, "The New Bailments"
Comments: Ronald Mann, Albert E. Cinelli Enterprise Professor of Law; Co-Director, The Charles Evans Gerber Transactional Studies Center, Columbia Law School

 

5. Lauren Scholz, McConnaughhay and Rissman Professor, Florida State University College of Law, "Privacy as Private Law: Rule of Law in the Private Sphere"
Comments: Ryan Calo, University of Washington School of Law

 

6. Yonathan Arbel, Assistant Professor of Law, University of Alabama School of Law
"Contracts in the Age of Artificial Intelligence Readers"
Comments: Anthony Casey, Professor of Law and Mark Claster Mamolen Teaching Scholar, The University of Chicago, The Law School

• Commentator
  Mark D. Bauer
  Professor of Law
  Stetson University College of Law
  
  
• Commentator
  David A. Hoffman
  Professor
  University of Pennsylvania Carey Law School
  
  
• Commentator
  Christopher K. Odinet
  Professor of Law
  University of Iowa College of Law
  
  
• Commentator
  Alexandra Everhart Sickler
  University of North Dakota School of Law
  
  
• Commentator
  Lauren E. Willis
  Associate Dean for Research
  Loyola Law School, Los Angeles

AALS Section on Contracts Session: Best Efforts Clauses, Wednesday, 11:00 AM EST

Section on Contracts:
Contracting for Effort: The Law and Economics of Best and Reasonable Effort Clauses

 

Best effort clauses in contracts are prevalent and in some sense paradoxical. For instance, in the extensive literature on the economics of contracts, it is almost universally accepted that “effort” is non-contractable because it is unobservable and unverifiable by courts or other arbitral bodies, yet everyday lawyers are busy drafting hundreds or thousands of best effort clauses. What exactly accounts for this apparent disconnect between economic theory and legal practice? We will to explore this question among others by examining scholarship and practice on topic of best effort clauses.

• Moderator
  Richard Brooks
  Professor of Law
  New York University School of Law
  
  
• Speaker
  Nathan Atkinson
  Postdoctoral Fellow in Law and Economics
  ETH Zurich Center for Law & Economics
  
  
• Speaker
  Patrick Bolton
  Columbia Law School
  
  
• Speaker
  Julian Nyarko
  Assistant Professor of Law
  Stanford Law School
  
  
• Speaker
  Sarath Sanga
  Associate Professor of Law
  Northwestern University Pritzker School of Law
  Sarath Sanga's principal areas of research are corporate law and contract theory. An interdisciplinary scholar, his work has appeared in leading law, economics, and scientific journals, including the Journal of Political Economy, the Journal of Law & Economics, California Law Review, and Science. Sanga holds a BA in economics from the University of Michigan, Ann Arbor, a PhD in economics from the University of California, Berkeley, and a JD from Yale.
  
  
• Speaker
  Alexander Stremitzer
  University of California, Los Angeles School of Law

AALS Panel on Teaching Commercial Law in the 21st Century, Today at 4:15 EST

Section on Commercial and Consumer Law, Co-Sponsored by Teaching Methods and Technology, Law and Legal Education:
Teaching Commercial Law in the 21st Century

 

Rapid technological developments in commercial transactions are forcing us to revise decades-old laws. Are today’s law professors up to the challenge of teaching this new content? Are today’s law students interested in learning it? Many people are concerned that not enough schools are teaching bread-and-butter Uniform Commercial Code classes such as Sales (Article 2) and Secured Transactions (Article 9). And far fewer are teaching courses centered on related subjects, such as Negotiable Instruments (Article 3) or Investment Securities (Article 8). Prominent members of the Uniform Law Commission and academics focused on UCC subjects will discuss changes to the law, law school pedagogy, and student demand will affect the UCC in the 21st century.

• Moderator: Kara Bruce is a professor of law at the University of Toledo, where she teaches courses on the UCC, bankruptcy, and contracts. A dedicated classroom teacher, she has won the University of Toledo’s outstanding teaching award and the University of Toledo College of Law’s Outstanding Professor Award (selected by the graduating class). Bruce is a contributing editor to the Bankruptcy Law Letter and coauthor on a forthcoming edition of Problems and Materials on Secured Transactions (with Stephen Sepinuck).

• Speaker: Carliss Chatman is an Associate Professor at Washington and Lee University School of Law specializing in corporate and commercial law. Her 11 years of legal practice before entering the academy lends a common sense approach to her teaching and scholarship. She specializes in bringing practical experience to all of her classes, making complex legal concepts within reach for students of all backgrounds. Through service on the Advisory Board of Compliance.ai, she has worked on the cutting edge of legal regulatory technology, helping to train the machine learning platform to anticipate the research needs of those in the compliance and regulatory legal space. Her experience in leadership of non-profit boards and over two decades of social activism has allowed Professor Chatman to develop expertise on matters involving race, women's rights, and educational access.
  
  
• Speaker: Bill Henning, a professor at the Texas A&M University School of Law, has published widely in the field of commercial law generally and in the area of secured transactions in particular. He is a former Executive Director and current Life Member of the Uniform Law Commission (ULC) and a member of the American Law Institute (ALI). He is currently Vice-Chair of the ULC’s Committee on the UCC, a member of the Permanent Editorial Board for the Uniform Commercial Code, and a member of the Joint ULC/ALI Drafting Committee on the Uniform Commercial Code and Emerging Technologies. He is also a member of the U.S. State Department’s Advisory Committee on Private International Law and served on the U.S. Delegation to the U. N. Commission on International Trade Law’s working group that developed the U.N. Model Law on Secured Transactions.
  
  
• Speaker: John T. McGarvey, Shareholder,  Attorney at Law, Morgan Pottinger McGarvey. Mr. McGarvey taught secured transactions for 16 years as an adjunct professor at the University of Kentucky Rosenberg College of Law and the University of Louisville Brandeis School of Law, is Chairperson of the Uniform Law Commission’s UCC Committee, an ex officio member of the Permanent Editorial Board for the UCC, a member of the American Law Institute and focuses his practice on commercial law at the firm of Morgan Pottinger McGarvey in Louisville and Lexington, Kentucky.

AALS Open Source Program The Power of Supply Chains, Today at 2:45 EST

This session will provide perspectives that cut across disciplines to help legal scholars appreciate the power of supply chains and their effect on fundamental social, political, and institutional questions. The pandemic has underscored the centrality of supply chains to both the economy and also every aspect of life. The panel will explore supply chain management, including auditing for quality, working conditions, and environmental goals; the relational character of supply contracts; and supply chains as a contractual or corporate governance structure that functions like public law, particularly with respect to effects on third parties and the public.

 

• Moderator: David V. Snyder is professor of law and director of the Business Law Program at the American University Washington College of Law. Professor Snyder’s teaching and research interests are primarily in contracts and commercial law, including their international and comparative aspects. He has been a professor of law at Tulane, Indiana (Bloomington), and Cleveland-Marshall College of Law. He has been a regular visiting professor at the law school of the University of Paris II (Panthéon-Assas) since 2012, and has also been a visiting professor at the University of Paris 10 (Nanterre La Défense), Boston University, and the College of William and Mary. He is a graduate of Tulane Law School and Yale College and clerked on the US Court of Appeals for the Fifth Circuit.
  
  
• Speaker Call for Papers: Krisann C. Kleibacker Lee Cargill Sustainability Counsel & Bioindustrial Group Lead Lawyer, Cargill
  
  
• Speaker: Jonathan C. Lipsonm, Harold E. Kohn Chair and Professor of Law, Temple University, James E. Beasley School of Law
  
  
• Speaker Call for Papers: Trang (Mae) Nguyen, Assistant Professor of Law, Temple University, James E. Beasley School of Law
  Trang (Mae) Nguyen researches and writes in the intersections of contract law, transnational business governance, comparative law, and international law. Her current projects focus on the roles of informal mechanisms in the reparation of global supply chains in the aftermaths of COVID-19, and on the roles of supply chain host countries in the international legal order. Professor Nguyen is an affiliated scholar at the U.S.-Asia Law Institute, New York University School of Law and was a visiting scholar at UC Berkeley’s Center for the Study of Law and Society. Her work has appeared in the American Journal of International Law Unbound, the Stanford Law and Policy Review, the Harvard Human Rights Journal, and the New York University Law Review, among others. Prior to entering academia, she practiced corporate law in the Silicon Valley office of Davis Polk & Wardwell, LLP and served on the policy team of the California Office.
  
  
• Speaker Call for Papers: Ashley Palmarozzo, Doctoral Student in Technology and Operations Management, Harvard Business School
  
  
• Speaker Call for Papers: Kish Parella
  Kish Parella is an associate professor at Washington and Lee University School of Law, where she teaches courses at the intersection of law and business, including contracts, international business transactions, and corporate social responsibility. Her research is in international economic law, with a focus on the cross-border governance of corporations. Her current research examines the interaction between law and reputational mechanisms to improve corporate conduct in global supply chains.
  
  
• Speaker: Anita G. Ramasastry, Professor, Co Director, Law Technology and Arts, University of Washington School of Law
  
  
• Speaker Call for Papers: Jodi L. Short is the Associate Dean for Research and the Honorable Roger J. Traynor Professor of Law at UC Hastings College of the Law. Her research is on the regulation of business, in particular, the intersection of public and private regulatory regimes and the theory and practice of regulatory reform. Recent publications appear in Organization Science, Administrative Science Quarterly, Regulation & Governance, and the Minnesota Law Review. Her ongoing research investigates private efforts to enforce labor standards in global supply chains through codes of conduct and social auditing; explores how political influences on regulatory compliance and enforcement have been operationalized in empirical scholarship; analyzes how agencies define the “public interest” when implementing their statutory mandates; and tests the efficacy of different messaging strategies on compliance with environmental regulations.
  
  
• Speaker Call for Papers: Michael W. Toffel, Senator John Heinz Professor of Environmental Management, Harvard Business School

Hot Topic at AALS Today at 11:00 AM EST

Section on Commercial and Consumer Law, Co-Sponsored by Financial Institutions and Consumer Financial Services: Commercial Law in the 21st Century

 

Emerged and emerging technological developments, including distributed ledger technology, virtual currency, and other digital assets are transforming commercial transactions in ways that are not adequately addressed by existing commercial laws, such as the Uniform Commercial Code. The Uniform Law Commission and the American Law Institute have created a task force to review the UCC and recommend appropriate revisions in light of these technological developments. Come hear from members of the ULC/ALI Emerging Technologies taskforce to learn about these issues.

• Speaker: Andrew Hinkes, AttorneyCarlton Fields
  
  
• Moderator Speaker: Juliet M. Moringiello, Assoc. Dean. Fac. Res. & Develop. & Professor of Law, Widener University Commonwealth Law School.
  Juliet Moringiello is the Associate Dean for Research and Faculty Development at Widener University Commonwealth Law School in Harrisburg, PA. She is the Vice-Chair of the ULC/ALI Study Committee on the Uniform Commercial Code and Emerging Technologies and a member of the Permanent Editorial Board for the Uniform Commercial Code. Her commercial law scholarship focuses on electronic contracting and digital assets.
  
  
• Speaker Stephen L. Sepinuck, ProfessorGonzaga University School of Law

Help Wanted: Loyola University New Orleans

Not exactly contracts, but if you take a nexus-of-contracts approach to business associations, it's certainly contract-adjacent (or you can follow Robert Anderson IV and read some other blog).

Loyola University New Orleans is now accepting applications for two tenure track or tenured faculty members to begin August 1, 2021. We are seeking candidates with expertise in the following substantive areas: (1) business and tax law; and (2) Louisiana civil law. We especially welcome applications from candidates who will add to the diversity of our educational community and who have demonstrated expertise in working with a diverse student body. J.D. or equivalent is required. For the civil law position, we also welcome applications from civil law scholars outside Louisiana. 

If you are interested in applying, please send your curriculum vitae and cover letter to resumes@loyno.edu. Inquiries may be sent to the Chair of the Appointments Committee, Professor Bobby Harges at harges@loyno.edu. 

About the College of Law The College of Law is located in a largely residential area of New Orleans, one of the most culturally diverse cities in the United States, with unique cuisine, numerous museums and historical sites, and a flourishing arts community. New Orleans is also the seat of the United States Fifth Circuit Court of Appeals, the Federal District Court for the Eastern District of Louisiana, the Louisiana Supreme Court, and the Louisiana Fourth Circuit Court of Appeals, as well as other lower courts. The College of Law has a student population of approximately 500 students, over forty faculty members, active clinics that have spearheaded numerous social justice reform efforts, and summer programs in Europe and Central America. Its location in Louisiana, one of the world’s best known “mixed jurisdictions,” provides unique opportunities for comparative and international law scholarship. 

Loyola University New Orleans is an educational institution dedicated to fostering intellectual achievement, personal development, and social responsibility, and it is committed to the human dignity and worth of every person. Loyola University New Orleans strives to create and maintain a working and learning environment in which individuals are treated with dignity, decency, and respect. The University acknowledges and values individual differences, including, but not limited to, the dimensions of race; color; sex; national origin; age; religion; gender identity; transgender status; sexual orientation; ethnicity; disability status; and marital status and citizenship status. We recognize that diversity enriches our social interactions and intellectual lives, and we strongly encourage applications from individuals who will bring diversity to the College of Law. 

Teaching Assistants: Yonathan A. Arbel and Andrew Toler, ALLCAPS

Based on the assumption that text in contracts of adhesion written in ALLCAPS is more likely to be noticed by consumers, courts are more likely to give effect to terms in ALLCAPS.  They assume consent to ALLCAPS terms because the terms are deemed to have been conspicuously displayed. This assumption has never been tested. . . .

Until now.

Surprise!  Yonathan Arbel (left) and Andrew Toler (right) have determined that, at least as currently deployed, ALLCAPS text is no more effective in relaying information to consumers than ordinary text.  Statutes require that certain disclosures or provisions be printed in ALLCAPS; courts tend to enforce text in ALLCAPS that they would not enforce if that same text was not capitalized.  The authors show that there is no basis for such a distinction other than conjecture.  You can find their paper, published in the Journal of Empirical Legal Studies, here or on your preferred legal database.

Arbel and Toler first review the history of ALLCAPS, which arose as a solution to the problems posed by fine print.  They next review standard form contracts, collecting 500 contracts from popular companies that offer products to consumers, such as Uber and Amazon.  They find that 77 percent of such contracts contain at least one ALLCAPS provision.  Finally, they conducted a study with 570 participants to test whether placing terms in ALLCAPS makes it more likely that consumers will read those terms.  They presented contracts to the participants and then tested to see whether the participants in one group could better recall the terms in ALLCAPS than a second group presented with the same contract without an ALLCAPS provision.  They found that placing a provision in ALLCAPS has no effect on comprehension or retention.  In fact, participants over 55 understood the ALLCAPS terms 29% worse than they would have understood those terms if they were not capitalized.

The authors are cautious about the implications of their work.  They cannot say that ALLCAPS are never effective in drawing attention to contractual language; they can only say that the standard usage of ALLCAPS in consumer contracts does not have the desired effect.  There are alternatives.  Boldface text does seem to have a positive effect on readers' retention of the highlighted text.  The authors accordingly recommend that courts should stop enforcing ALLCAPS provisions that they would not enforce if those same provisions were not in ALLCAPS.  The authors do not say anything about revising statutory provisions that require that certain disclosures or provisions be in ALLCAPS, but such a recommendation would seem to be supported by their study.

The piece is highly accessible.  One could assign it to 1Ls without any concern that they will be intimidated by the authors' empiricism.  In the alternative, as this post suggests, the article can be quickly summarized.  Its message is simple, but the piece packs a considerable normative punch.  Courts and legislatures act as though putting terms in ALLCAPS provides consumers with effective notice, but they never put that assumption to the test.  The authors have done so, and ALLCAPS failed the test.  

Weekend Frivolity: New Year's Edition

A tribute to the other heroes who helped us make it through 2020: USPS, FedEx, UPS and other people who deliver our vital packages.  Happy New Year to all!

#1

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#3