ContractsProf Blog

On the Passing of Jean Braucher

Jean Braucher was a giant in our field, and she has been a great friend to this blog, helping us launch our virtual symposium on Stewart Macaulay and contributing to our virtual symposium on Margaret Jane Radin's book, Boilerplate.

Bill Whitford posted the notice provided below on the Contracts Listserv, and he has given us permission to share it here.  We will also share any comments that people might want to post with Bill, who will then pass them along to Jean's family.

It is my very sad obligation to inform the contracts community of the death of Professor Jean Braucher of the Arizona College of Law. Jean passed away on Tuesday, Nov. 25th. The cause of death was uterine cancer. Jean was 64 at her death. She was the daughter of the late Professor and Justice Robert Braucher, of the draftpersons of the Restatement, Second, of Contracts. She is survived by her husband and two children, among others.

Jean's academic career was outstanding. She was a prodigious scholar, writing most about contracts, consumer protection and consumer bankruptcy. She did original empirical work, many times, among other things. She was also an activist in many different venues. As a member of the American Law Institute, she took great interest in revisions of the Uniform Commercial Code and the Restatements, particularly as they impact consumer and software contracts. Here is a link to her CV:
http://www.law.arizona.edu/faculty/facultypubs/documents/cv/33/33.pdf.

Jean was a close friend, a fellow co-editor of the Macaulay et al. casebook (Contracts: Law in Action), my co-author on several other publications, and an intellectual collaborator and colleague for many years. I sometimes felt that we shared a brain, since we so often viewed issues similarly, but that was obviously not the case since over the years I learned a great deal from her work. And she also made many suggestions that helped me improve my own work. No words can adequately express my sense of personal loss at this untimely death.

Update:  Bob Lawless has posted In Memoriam on Credit Slips, and quite a few people have added their own words of remembrance for Jean there.

Thanksgiving Feast: Meredith Miller Top Ten List

This is a rather unconventional list.  I have just gone back into our archives and picked out one my favorite Meredith posts from each of the ten years since she started blogging here.  It's amazing how well I remember each of these posts!

Meredith Vintage 2014: John Oliver and Sarah Silverman Tackle Payday Loans

Meredith Vintage 2013: Breaking: Bieber Requires NDA of Guests in His Home

Meredith Vintage 2012: Markets on the Mekong

Meredith Vintage 2011: Don't Buy This: 'Tis the Cyber Season of Reverse Psychology

Meredith Vintage 2010: A Hairy Breach of Contract Suit against Paris Hilton 

Meredith Vintage 2009: Can Mad Men Bring Sexy Back to Contracts?

Meredeith Vintage 2008: Brown on Halloween, Promises & Signed Documents

Meredith Vintage 2007: Law Prof Takes on Cell Phone Company

Meredith Vintage 2006: British Court Must Watch Jerry Springer Show

Meredith Vintage 2005: The Commonality of Computers, French Fries and Arbitration

It was hard to make these choices.  Lots of competition in the Meredith archives!

 

More on Non-Disparagement Clauses

According to this story in the Mirror, a couple was charged an extra £100 for posting a review on TripAdvisor describing the Broadway Hotel in Blackpool as a "rotten, stinking hovel."  According to the report, the hotel believes that it is permitted to charge guests up to a maximum of £100 for negative comments, as the hotel's booking document so states.

According to the Mirror, this policy may violate unfair trade practices regulations.

For those of you curious about the hotel, you can find it TripAdvisor site here.

Weekly Top Tens from the Social Science Research Network

SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

Rank	Downloads	Paper Title
1	291	Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation  S.I. Strong  University of Missouri School of Law
2	155	'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements  Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis and Yuxiang Liu  St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law
3	131	The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property  Orly Lobel  University of San Diego School of Law
4	126	Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent  Gregory Eddington  Oklahoma City University
5	118	BitProperty  Joshua Fairfield  Washington and Lee University - School of Law
6	110	Valuable Lies  Ariel Porat and Omri Yadlin  Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law
7	100	Good Faith: A Puzzle for the Commercial Lawyer  Noel McGrath  UCD
8	77	Precedent in Contract Cases and the Importance(?) of the Whole Story  Robert A. Hillman  Cornell Law School
9	74	Regulating for Rationality  Alan Schwartz  Yale Law School
10	73	'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts?  Cheryl B. Preston  Brigham Young University - J. Reuben Clark Law School

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

Rank	Downloads	Paper Title
1	126	Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent  Gregory Eddington  Oklahoma City University
2	77	Precedent in Contract Cases and the Importance(?) of the Whole Story  Robert A. Hillman  Cornell Law School
3	73	'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts?  Cheryl B. Preston  Brigham Young University - J. Reuben Clark Law School
4	66	Binding Future Selves  Kaiponanea T. Matsumura  Arizona State University (ASU) - Sandra Day O'Connor College of Law
5	58	Crossing the Threshold: Arbitral Jurisdiction after BG Group  Alan Scott Rau  University of Texas at Austin School of Law
6	58	Response: Boilerplate in Theory and Practice  Margaret Jane Radin  University of Michigan Law School
7	50	The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization  Kyle Chen  Notre Dame Law School
8	50	Contra Proferentem and the Role of the Jury in Contract Interpretation  Ethan J. Leib and Steven Thel  Fordham University School of Law and Fordham University School of Law
9	47	Market Regulation of Contractual Terms: A Skeptical View  Guy A. Rub  Ohio State University (OSU) - Michael E. Moritz College of Law
10	39	Unexpected Circumstances Arising from Word War I and Its Aftermath: 'Open' versus 'Closed' Legal Systems  Janwillem Oosterhuis  Maastricht University - Faculty of Law

 

Model Contracting in the UK

The British Crown Commercial Service and the UK Government Legal Service have developed a substantially revised set of model terms and conditions for major procurement contracts with the government.  This “model contract” is for use as a base template in any government procurement framework where the procurement will “typically require some form of formal dialogue with potential suppliers.” 

Model contracts may ease of negotiations in situations where there is a real or perceived disparity in bargaining positions.  They could also help parties predict and thus avoid potential practical and legal pitfalls in the contractual performance and relationship.  Legal fees may be saved over having to reinvent the contractual drafting wheel every time a (new) supplier does business with, in this case, the government.

Among other improvements, the new model contract is considered to be less one-sided (in favor of the government) than the previous version although some “authority friendly” provisions still exist.  The model furthermore shifts some of the due diligence risk of contracting away from the supplier and onto the government.  It also allows the authorities to withhold a “proportionate amount” of the service charges until a performance failure is rectified “to the reasonable satisfaction” of the government; a provision that stands out as interesting in this country as well given the notoriously low quality of services seemingly provided by suppliers to the U.S. government.  True, the government here probably most often has to pick the most inexpensive provider, but that still does not seem to address the underlying issue of why suppliers are not held accountable to fix the various problems at an earlier stage and at a greater extent than they seem to be, even in connection with major problems (think Obamacare website or the many poorly constructed state and federal government buildings).

In the USA, “contracting officers” issue “warrants” for products and services for the government.  As can be expected, our system seems considerably less transparent and more complicated than that in the UK.  A model contract taking the interests of the suppliers in addition to just the government seems a highly user-friendly and modern approach that the US government might benefit from as well.

Blogosphere Debate on "Whimsy Little Contracts"

Friend of the blog Jeff Sovern, and his co-authors are creating quite a stir with their article that has been topping the charts on SSRN, 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements.

You can follow the discussion in the blogosphere at these sites:

Alan S. Kaplinsky and Mark J. Levin start things off  on Ballard Spahr's CFPB Monitor.  They make two main points.  First,  arbitration language  is generally quite easy to understand.  Second, it does not matter whether or not consumers know what they are getting into when they enter into a credit card agreement with an arbitartion clause if consumer arbitration is actually good for consumers.

Jeff Sovern responds on the Consumer Law and Policy blog to a number of the CFPB Monitor points, but on the main question of whether or not consumers benefit from arbitration, he concedes that the study did not attempt to answer that question  Rather, the point is that the basis for such arbitration is consent, and his study shows that consumers do not give meaningful consent to arbitration.

On the ADR Prof Blog, Sovern's co-author Paul Kirgis has a short response, the substance of which is as follows:

Levin and Kaplinsky don’t actually address the core problem we address in our article–that citizens are being unwittingly and unwillingly forced to give up important (and constitutionally guaranteed) procedural rights. Their point–and it is the point arbitration advocates almost invariably make–is that arbitration can be better for consumers than litigation. That may very well be true, at least some of the time. (See my post on the benefits of limited consumer arbitration here.) But it doesn’t answer the right question.

Kaplinsky and Levin have filed their response on Ballard Spahr's CFPB Monitor. They reiterate their argument, citing numerous court opinions, that arbitration clauses can be readily understood by consumers.  They remind readers that the purpose of the Federal Arbitration Act was to prevent courts from treating arbitration agreements differently from other agreements.  An arbitration clause in an otherwise enforceable agreement ought to be enforceable just as any other term in the agreemnt would be.

My questions in these debates are always the same.  If arbitration clasues are potentially beneficial to consumers, why make them mandatory?  Provide for arbitration as an option and make clear that if a consumer chooses to arbitrate, she cannot also sue.  In addition, what of class action waivers, which now often accompany arbitration provisions?  Kaplinsky and Levin claim that some studies show that plaintiffs do better off in individual arbitrations than they do in class actions, but I don't know how studies could show that since (so the argument goes), in some cases plaintiffs won't file claims at all unless they can do so through class actions.

Weekly News Roundup

File this under "Nice!"  According to this report in the Durham Herald Sun, the parents of a child who has been prohibited from attending his private school, the Mount Zion Christian Academy, are suing the school for breach of contract.  The allegations of breach are based on the fact that the child's parents are paying tuition, but their son is forbidden to attend his school.  

And what has the child done to earn this suspension?  Nothing!  His parents were informed that the child would not be permitted to attend school becasue his father had traveled to Nigeria, and the school did not want to risk the spread of ebola.  The school took these precautions despite the fact that:

• there is no ebola in Nigeria;
• the father had no contact with anyone with ebola;
• the father was screened at the airport and cleared.

The superintendent of schools failed to appear at a hearing and a judge ordered the school to allow the child to return

According to this story from the Spokane Spokesman Review, an Idaho judge has thrown out as invalid a $60 million contract that the state entered into with Education Networks of America (ENA) and Qwest to provide a broadband network that would link every Idaho high school.  The plaintiff in the case, Syringa, had partnered with ENA on one of the two bids on the contract, but when the state awarded the contract to ENA, it cut Syringa out of the allocation of work in the contract.  The court found this a violation of state procurement law.

Sandra Troian a physicist at CalTech, has filed a complaint against the school, alleging violations of the California whistleblower protection statute and breach of contract, among other things.  Troian alleges that she had reported that the school had been infiltrated by a spy who was sending classified information to the Israeli government.  Troian alleges that the school ignored her because it did not want to endanger a large contract with Jet Propulsion Laboratories.  She further alleges that the school has retaliated against her for blowing the whistle.  

Happy Thanksgiving: Here's a Special Adhesion Contract Just for You

A student shared with me this flyer that her father received.  I have provided a large reproduction so that readers can read the fine print, which is really the focus of this post.

 On my reading, the meaning of this is as follows: if

• You made the mistake of having previously subscribed to the newspaper; and
• You have the temerity to continue living at the same address; and
• You do nothing else,

A newspaper will be delivered to you on Thanksgiving.  

Regardless of what you do with it, your inaction will be deemed consent to future deliveries and you will be charged unless you call the newspaper and put a stop to it.  

This "offer" is a turkey, and those receiving it should tell the newspaper to stuff it.

Farewell Meredith!

Meredith Miller started blogging here before I did.  She holds the record for the contributing editor with the longest tenrue on the blog.  

Her lively, quirky posts were one of the things that attracted me to this site and made it worthwhile to keep coming back.  She has been a steady companion, sounding board and dedicated contributor to our blog, and we will miss her contributions.

But life moves on, and we can only thank Meredith and wish her well in her new endeavors.  In her farewell e-mail to the rest of us, Meredith referenced her blogger's guilt.  Blogs are like sharks; they either move or die.  There have been many weeks when I despaired of finding the time and the content to keep this blog lively when Meredith would post a story that I knew would attract interest and buy the rest of us some time away from the blog.  After nearly ten years of providing us stories and laughts, he has certainly earned her release from blogger's guilt. 

I am hoping to compile a top ten list next week of my favorite Meredith posts.  Please feel free to nominate your favorites in the comments.

Styl'n at the International Commercial Arbitration Moot

 

In a couple of previous posts I've described the International Commerical Arbitration Moot (ICAM) and detailed some aspects of  this year's problem. None of this is news  to the contracts, sales, and arbitration professors around the country who are involved in this activity. Still I am surprised at how many schools do not have teams. I have also noted the possible use of the yearly ICAM problem as a source or inspiration of exam questions. 

For professors who are interested in starting a team there are many things to consider other than substance. These involve selecting and preparing a team.  Here at Florida this means trimming a class of 30 or so  hopeful students down to a team of 4 to 6.  It is a complicated task. We try as much as possible to hold try outs that resemble the actual competition in Vienna.  Other coaches know that the ICAM competition requires students to know the facts and law with precision and to have certain mannerisms that the mainly European judges find appealing.  For example, speaking slowly is critical since many if not most judges will have English as a second language. Also, the closer the English spoken is to British English, the better. Why? Most of the arbitrators will have learned English abroad. The use of virtually any slang means you should move up your departure date from Vienna because you will not go far in the competition.  "Gonna" must be "going to." "Wanna" must be "want to." No "big bucks." No "you guys." etc.  If there such a thing as an eloquent yet casual style, that seems to work best. Yes, theater is involved and the coaches are directors as much as teachers. Even "costumes" seem to count. I watched a rather uncomfortable session in which an arbitrator dressed down a competitor who had, well,  "dressed down"  by not having the top button of his shirt buttoned. I think most coaches would agree the competition starts when the students arrive at the U.S. departure airport because from that point forward they may be rubbing shoulders with the arbitrators they will encounter in Vienna. 

 

Good Night and Good Luck

I have been a contributing editor at ContractsProf since 2005.  The blog has provided a wonderful platform to share contracts-related news stories (as bizarre as possible), summarize important recent cases and self-promote my scholarship.  When Frank Snyder roped me into this nearly a decade ago, alot of things were different in varying degrees, especially: the Internet, law schools and the market for legal services.  Frank told me at the time that blogging might seem thankless, but it is not.  He said that every so often you meet someone at a conference and they realize you are that person who pointed out the connection between Eminem and Sister Antillico and the NDA Justin Bieber presents to house guests.  Frank was right.  I've met a lot of great people through the blog and its lead to meaningful conversations about contract law and other things.

One of the most rewarding parts of blogging is the record of posts we've created over the years.  Sometimes I will do a "quick and dirty" search on Google for the answer to a contracts question and I find the answer on this blog.  

I have come to the realization that I just do not have the time to commit to the blog right now.  In fact, earlier this week I made a list of things I was going to quit (quite liberating; highly recommended).  I am clearing the decks to focus on writing projects and other pursuits, including my new role at Touro as Director of Solo & Small Practice Initiatives.  It is where my heart is right now, and I am going to follow that.

In short, thanks Jeremy and previous blog overlords for letting me holdover this long.

With much gratitude for this opportunity, here's a reprise of turkey leftovers in time for Thanksgiving.

Goodbye Movie Clips by Ian_Buckwalter

Weekly Top Tens from the Social Science Research Network

Aided by the ContractsProf Blog Bump, Whimsy Little Contracts is topping the charts.  Behold the power of the Blog!

SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

Rank	Downloads	Paper Title
1	134	'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements  Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis and Yuxiang Liu  St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law
2	104	Valuable Lies  Ariel Porat and Omri Yadlin  Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law
3	94	Good Faith: A Puzzle for the Commercial Lawyer  Noel McGrath  UCD
4	92	BitProperty  Joshua Fairfield  Washington and Lee University - School of Law
5	83	The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property  Orly Lobel  University of San Diego School of Law
6	74	Post-Private Law?  Martijn W. Hesselink  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
7	71	Does a Promise Transfer a Right?  David Owens  University of Reading
8	69	Precedent in Contract Cases and the Importance(?) of the Whole Story  Robert A. Hillman  Cornell Law School
9	62	Binding Future Selves  Kaiponanea T. Matsumura  Arizona State University (ASU) - Sandra Day O'Connor College of Law
10	57	Contractual Indescendibility  David Horton  University of California, Davis - School of Law

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

Rank	Downloads	Paper Title
1	74	Post-Private Law?  Martijn W. Hesselink  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
2	69	Precedent in Contract Cases and the Importance(?) of the Whole Story  Robert A. Hillman  Cornell Law School
3	62	Binding Future Selves  Kaiponanea T. Matsumura  Arizona State University (ASU) - Sandra Day O'Connor College of Law
4	56	'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts?  Cheryl B. Preston  Brigham Young University - J. Reuben Clark Law School
5	54	Crossing the Threshold: Arbitral Jurisdiction after BG Group  Alan Scott Rau  University of Texas at Austin School of Law
6	50	Some Features of Promises and Their Obligations  Michael G. Pratt  Queen's University (Canada) - Faculty of Law
7	49	The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization  Kyle Chen  Notre Dame Law School
8	47	The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement  Myriam E. Gilles  Benjamin N. Cardozo School of Law
9	40	Contra Proferentem and the Role of the Jury in Contract Interpretation  Ethan J. Leib and Steven Thel  Fordham University School of Law and Fordham University School of Law
10	37	Market Regulation of Contractual Terms: A Skeptical View  Guy A. Rub  Ohio State University (OSU) - Michael E. Moritz College of Law

 

Weekly News Roundup

According to this report in TireNews.com (and let's all give a round of applause to the Internet, because how else would I even know of the existence of Tire News?), Goodyear Tire & Rubber Co. is suing Sears, Roebuck & Co. and two subsisdiaries.  The suit, filed in Federal District Court in Akron where Goodyear is based, alleges breach of a 2009 agreement that called for Goodyear to make co-branded tires to be sold exclusively at Sears.  Based on Sears' sales predictions, Goodyear produced about 220,000 co-branded tires.  But in June, Sears decided to enter into a partnership with a different tire manufacturer and has refused to accept any more tires from Goodyear. Goodyear is seeking $18.9 million in damages, which represents the value of the co-branded tires.  For more coverage, you can check on this report in RubberNews.com.

Traut, Lieberman Straus & Shrewsberry, LLP report on Greenbelt Condominium v. 361 Manhattan Avenue LLC, et. al., in which the issue was an architect's liability for faulty construction in the five-story conversion and expansion of a one-story commercial building in Brooklyn, NY into condominum apartments.  Plaintiff alleged negligence and breach of contract.  The New York Supreme Court, New York County found that plaintiff's action sounded in contract not in tort and that the architect was not in privity with the plaintiff.  The court would not permit plaintiff's successor in interest argument to erode New York's privity law with respect to an architect's liability for breach of contract.  The court granted the defendant's motion to dismiss.

In the aftermath of revelations that the University of North Carolina created "paper classes," CNN.com reports here that one student athlete is now suing the University in a class action representing about 3100 students who allegedly participated in the fake classes.  The classes allegedly never met, and students got credit for them by writing a single paper.  The suit alleges breach of a promise to give plaintiff an education in return for his promise to play football.  The named plaintiff claims that he was drawn to UNC by promises that, whether or not he succeeded as a football player, he would emerge with a college degree.  Plaintiff was dismissed from the school in a cheating scandal, but he claims he was a scapegoat in the larger paper classes scandal.

Lyft, Inc. is suing its former Chief Operating Officer, Travis VanderZanden for breach of contract by breach of a confidentiality agreement and breach of fiduciary duty.  The complaint, provided by Scribd, can be viewed here.  After eighteen months at Lyft, VanderZanden had had enough, and he announced his intention to resign.  According to the complaint, while Lyft was negotiating with him, VanderZanden stopped showing up for work.  Two months later, Lyft learned that VanderZanden had been hired by its arch-rival, Uber, as Uber's Vice President of International Growth.  Lyft claims that when VanderZanden left the company, he took with him a Dropbox folder containing 98,000 files, including information belonging to the company.  VanderZanden also allegedly took with him his company phone which, instead of returning to the company, he claims to have sold on gazelle.com. 

Finally, we learn from Scribd that the Pennsylvania Superior Court issued its 15-page decision in Thogde v. Ladany, rejecting plaintiff's claim that she is entitled to $1.3 million is damages from Lehigh University.  She alleged that the university breached a contract with her when she was given  a C+ in a graduate course.  

Contracts Issues in The Blues Brothers

In The Blues Brothers, the band performs at Bob's Country Bunker.  All things considered, the show goes rather well:

 

After the show, the Brothers ask to be paid.  The owner offered to pay $200 for the performance, but the band owed $300 for beer.  Elwood objects that they had been told that they would not have to pay for the first round, but the owner refuses to treat that as a waiver.  A student asked me about the scene, and I'm not sure how it might be resolved.  I would treat it as a matter of interpretation and expect that a court could hear expert testimony about the customary terms of contracts with bands at establishments such as Bob's Country Bunker.

But then there is a second issue (or third, if you think waiver is the second issue).  The Brothers got the gig by pretending to be another band, The Good Ole Boys.  So Bob has an argument that he was fraudulently induced to contract with Jake and Elwood.  If that is so, they might be better off seeking to recover in quantum meruit, since Bob told them "that's some of the best goddam music we've had in the Country Bunker in a long time."  The audience hurled what seemed like hundreds of bottles of beer at the band during the performance, so Bob must have made quite a bit in drink (or projectile) sales.  On the other hand, I don't know what it costs to clean up that mess.

Hat tip to Valpo 1L Brandon Carter for calling my attention to the scene and to the fact that he is watching old movies when he should be studying law!

Weekly Top Tens from the Social Science Research Network

SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

Rank	Downloads	Paper Title
1	114	Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices  Lori D. Johnson  University of Nevada, Las Vegas, William S. Boyd School of Law
2	113	'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements  Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis and Yuxiang Liu  St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law
3	100	Valuable Lies  Ariel Porat and Omri Yadlin  Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law
4	92	Good Faith: A Puzzle for the Commercial Lawyer  Noel McGrath  UCD
5	84	BitProperty  Joshua Fairfield  Washington and Lee University - School of Law
6	76	Price Squeezes with Positive Margins in EU Competition Law: Economic and Legal Anatomy of a Zombie  Nicolas Petit  University of Liege - School of Law
7	70	Does a Promise Transfer a Right?  David Owens  University of Reading
8	69	Post-Private Law?  Martijn W. Hesselink  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
9	65	Insurance Agents in the 21st Century: The Problem of Biased Advice  Daniel Schwarcz and Peter Siegelman  University of Minnesota Law School and University of Connecticut - School of Law
10	64	Precedent in Contract Cases and the Importance(?) of the Whole Story  Robert A. Hillman  Cornell Law School

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

Rank	Downloads	Paper Title
1	114	Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices  Lori D. Johnson  University of Nevada, Las Vegas, William S. Boyd School of Law
2	68	Post-Private Law?  Martijn W. Hesselink  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
3	63	Precedent in Contract Cases and the Importance(?) of the Whole Story  Robert A. Hillman  Cornell Law School
4	59	Binding Future Selves  Kaiponanea T. Matsumura  Arizona State University (ASU) - Sandra Day O'Connor College of Law
5	50	Some Features of Promises and Their Obligations  Michael G. Pratt  Queen's University (Canada) - Faculty of Law
6	50	Crossing the Threshold: Arbitral Jurisdiction after BG Group  Alan Scott Rau  University of Texas at Austin School of Law
7	49	The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization  Kyle Chen  Notre Dame Law School
8	49	'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts?  Cheryl B. Preston  Brigham Young University - J. Reuben Clark Law School
9	45	The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement  Myriam E. Gilles  Benjamin N. Cardozo School of Law
10	37	Market Regulation of Contractual Terms: A Skeptical View  Guy A. Rub  Ohio State University (OSU) - Michael E. Moritz College of Law

 

Weekly News Roundup

According to this report on the International Business Times website, two children, through their mother, are suing Malaysia Airlines for breach of contract and negligence in connection with their father's death on Flight MH370.  Plaintiffs allege that the airline breached a safety agreement that it entered into with their father and the other passengers on the flight.  

As reported here in the Bellingham Herald, the Indiana Supreme Court heard arguments on October 30th about the state's contract with IBM to privatize its welfare services.  The state was so disappointed with IBM's performance that it cancelled the contract three years into a $1.3 billion, ten-year deal.  Friend of the blog, Wendy Netter Epstein (pictured), has written about this case in the Cardozo Law Review.

Sunday's New York Times Magazine has a cover story pondering whether lawyers are going to do to football what they did to tobacco.  As an example of what this might look like we have this case filed on October 27, 2014 on behalf of Julius Whittier and a class of plaintiffs who played NCAA football from 1960-2014,  never played in the NFL, and have been diagnosed with latent brain injury or disease.  Mr. Whittier suffers from early-onset Alzheimer's.  The complaint alleges, among other things, breach of contract, based on NCAA documents requiring each member instittuion to look after the physical well-being of student athletes.  

Expensive Wine

According to this story from NJ.com, a customer in an Atlantic City restaurant bought a bottle of wine with dinner.  The server showed him a wine list and suggested a wine.  When he asked how much the wine cost, she said, "Thirty-Seven Fifty," which he understood to mean $37.50.  She meant $3,750, and the wine list so indicated, but the customer did not have his reading glasses with him.  It's an interesting fact pattern.

Fortunately, an episode of The Simpsons provides best practices in this area, as animated television sit-coms do in most areas.  In episode 8F09, Burns Verkaufen der Kraftwerk, Homer's stock in the Springfield nuclear plant went up for the first time in ten years.  He sells and makes a cool $25.  Soon thereafter, the value of Homer's stock rises to $5200, but that's another matter.

Homer conte1mplates his options and decides to buy beer.  The following conversation with Moe (of Moe's Tavern) ensues:

Moe: Want a Duff?

Homer (haughtily): No, I'd like a bottle of Henry K. Duff's Private Reserve.

Moe  (Gasping): Are you sure? 'Cause once I open the bottle, there's no refund.

See?  That's how it's done!

New Scholarship on Consumer Misconceptions Regarding Arbitration Clauses

Jeff Sovern  (pictured), with whom readers may be familiar from our recent virtual symposium, has a new paper on SSRN, co-authored with three of his St. John's colleagues, Elayne E. Greenberg, Paul F. Kirgis, and Yuxiang Liu.

The paper is titled "'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements." Here’s the abstract, though there’s obviously a lot more in the paper itself:

 

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box or accepting a product. 

This article reports on an empirical study exploring the extent to which consumers are aware of and understand the effect of arbitration clauses in consumer contracts. We conducted an online survey of 668 consumers, approximately reflecting the population of adult Americans with respect to race/ethnicity, level of education, amount of family income, and age. Respondents were shown a typical credit card contract with an arbitration clause containing a class action waiver and printed in bold and with portions in italics and ALLCAPS. Respondents were then asked questions about the sample contract as well as about a hypothetical contract containing what was described as a “properly-worded” arbitration clause. Finally, respondents were asked about their own experiences with actual consumer contracts. 

The survey results suggest a profound lack of understanding about the existence and effect of arbitration agreements among consumers. While 43% of the respondents recognized that the sample contract included an arbitration clause, 61% of those believed that consumers would, nevertheless, have a right to have a court decide a dispute too large for a small claims court. Less than 9% realized both that the contract had an arbitration clause and that it would prevent consumers from proceeding in court. With respect to the class waiver, four times as many respondents thought the contract did not block them from participating in a class action as realized that it did, even though the class action waiver was printed twice in bold in the sample contract, including one time in italics and ALLCAPS. Overall, of the more than 5,000 answers we recorded to questions offering right and wrong answers, only a quarter were correct. 

Turning to respondents’ own lives, the survey asked if they had ever entered into contracts with arbitration clauses. Of the 303 respondents who claimed never to have done so and who also answered a question asking whether they had accounts with certain companies that include arbitration clauses in their contracts, 264, or 87%, did indeed have at least one account subject to an arbitration clause. 

These and other findings reported in this Article should cause concern among judges and policy-makers considering mandatory pre-dispute consumer arbitration agreements. Our results suggest that many citizens assume that they have a right to judicial process that they cannot lose as a result of their acquiescence in a form consumer contract. They believe that this right to judicial process will outweigh what one respondent referred to as a “whimsy little contract.” Our results suggest further that citizens are giving up these rights unknowingly, either because they do not realize they have entered into an arbitration agreement or because they do not understand the legal consequences of doing so. Given the degree of misunderstanding the results demonstrate, we question whether meaningful consent is possible in the consumer arbitration context.

Weekly Top Tens from the Social Science Research Network

SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

Rank	Downloads	Paper Title
1	107	Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices  Lori D. Johnson  University of Nevada, Las Vegas, William S. Boyd School of Law
2	94	Valuable Lies  Ariel Porat and Omri Yadlin  Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law
3	87	Good Faith: A Puzzle for the Commercial Lawyer  Noel McGrath  UCD
4	73	BitProperty  Joshua Fairfield  Washington and Lee University - School of Law
5	68	Does a Promise Transfer a Right?  David Owens  University of Reading
6	63	Insurance Agents in the 21st Century: The Problem of Biased Advice  Daniel Schwarcz and Peter Siegelman  University of Minnesota Law School and University of Connecticut - School of Law
7	61	The (Il)Legitimacy of Bankruptcies for the Benefit of Secured Creditors  Charles W. Mooney  University of Pennsylvania Law School
8	61	Post-Private Law?  Martijn W. Hesselink  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
9	58	Precedent in Contract Cases and the Importance(?) of the Whole Story  Robert A. Hillman  Cornell Law School
10	51	Selling Stories or You Can't Own This: Cultural Property as a Form of Collateral in a Secured Transaction Under the Model Tribal Secured Transactions Act  Grant Christensen  Charlotte Law

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

Rank	Downloads	Paper Title
1	107	Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices  Lori D. Johnson  University of Nevada, Las Vegas, William S. Boyd School of Law
2	61	Post-Private Law?  Martijn W. Hesselink  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
3	58	Precedent in Contract Cases and the Importance(?) of the Whole Story  Robert A. Hillman  Cornell Law School
4	55	From Contract to Status: Collaboration and the Evolution of Novel Family Relationships  Elizabeth S. Scott and Robert E. Scott  Columbia University - Law School and Columbia University - Law School
5	51	Binding Future Selves  Kaiponanea T. Matsumura  Arizona State University (ASU) - Sandra Day O'Connor College of Law
6	49	Crossing the Threshold: Arbitral Jurisdiction after BG Group  Alan Scott Rau  University of Texas at Austin School of Law
7	48	Some Features of Promises and Their Obligations  Michael G. Pratt  Queen's University (Canada) - Faculty of Law
8	46	The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization  Kyle Chen  Notre Dame Law School
9	43	The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement  Myriam E. Gilles  Benjamin N. Cardozo School of Law
10	32	Market Regulation of Contractual Terms: A Skeptical View  Guy A. Rub  Ohio State University (OSU) - Michael E. Moritz College of Law

 

Recent Contracts News

As reported on JDSupra here, the Florida District Court of Appeal for the Fourth District, sitting en banc, held that while an insurer’s liability for coverage and the extent of damages must be determined before a bad faith claim becomes ripe, the insured need not also show that the insurer is liable for breach of contract before proceeding on the bad faith claim.

We have also learned from JD Supra of Piedmont Office Realty Trust v. XL Specialty Ins. Co., 2014 U.S. App. LEXIS 20141 (11th Cir. Oct. 21, 2014), in which the United States Court of Appeals for the Eleventh Circuit, elected to certify to the Supreme Court of Georgia the question of whether an insured’s payment obligations under a judicially approved settlement agreement qualify as amounts that the insured is “legally obligated to pay,” and if so, whether the insured’s failure to have obtained the insurer’s consent to settle resulted in a forfeiture of coverage.

According this this report on Yahoo! Sports, Oklahoma State is suing the former Offensive Coordinator of its football team, Joe Wickline (who now is a coach for the University of Texas), and Wickline has countersued.  According to the report, Wickline's contract with Oklahoma State require that he pay the balance of his contract ($593,478) if he left for another position and was not his new team's play-caller. Wickline claims that he is calling plays at Texas.  What a bizarre thing to put in a contract.  It's a reserve non-compete!  In effect, Oklahoma State is saying that it would pay Wickline to call plays for a rival.

According to this report from the Courthouse New Service,  Ted Marchibroda Jr., the son of NFL Football coach Ted Marchibroda, filed a $1 million malpractice lawsuit against Sullivan, Workman & Dee and trial lawyer Charles Cummings , alleging breach of contract, professional negligence and breach of fiduciary duty.  In a 2011 lawsuit, Marchibroda accused sports agent Marvin Demoff of breaching an agreement to share the proceeds of NFL contracts for linebacker Chad Greenway. He claims that he is also owed money for recruiting center Alex Mack. 

Uploaded by Mark Schierbecker 

And continuing our sports report, Golf.com notes that golfer Rory McIlroy is taking a break from the "sport" to pursue his legal claims against his former management company, Horizon Sports Management.  McIlroy claims that Horizon took advantage of his youth to extract an unconscionable 20% fee for McIlroy's off-the-course income.  Horizon is claiming $3 million in breach-of-contract damages.

In a simpler companion case to the Sharpe v. AmeriPlan Corp. case about which we blogged earlier today, the Eighth Circuit affirmed the District Court's denial of a motion to compel arbitration in Quam Construction Co., Inc. v. City of Redfield.  As reported here on Law.com, the case was relatively easy, since the contract at issue contained permissive language: "the parties may submit the controversy or claim to arbtiration."  Given such language, the Eighth Circuit agreed with the Distrcit Court that arbitration could not be compelled.