ContractsProf Blog

Flying the Less Friendly Skies

Last month, United Airlines and Orbitz filed a by-now famous lawsuit against the 22-year-old computer specialist who created the website Skiplagged.com.  This website helps consumers find the cheapest round-trip airfare possible by buying tickets to a destination to which the traveler does not actually intend to travel, but instead getting off at a layover point which is the truly intended destination and discarding the last portion of the ticket.  Roundtrip tickets to certain popular destinations are often much cheaper than to other destinations sought by fewer passengers even though the more popular destinations are further away from one’s point of origin. 

To not cause the airline and other passengers undue trouble and delays, this practice, of course, requires not checking in luggage which, it seems, fewer and fewer travelers do anyway (next time you fly, notice the rush to get on board first with suitcases often much bigger than officially allowed and airline personnel deliberately ignoring this for reasons of “competition”).

The cause of action for this lawsuit?  “Unfair competition,” and breach of contract because of “strictly prohibited travel,” and tortuous interference with contract.

Unfair competition?  I admit that I have not yet read the rather long complaint, but I look forward to doing so very soon.  At first blush, however, how can “unfair” can it really be to assist consumers in finding airfare that they want at the best prices available?  United Airlines recognizes that there is a discrepancy between its prices to very popular destinations and others on the way, but claims [cite] that if many people “take advantage” of that price differential, it could “hurt the airlines.”  Come again?  Does it really matter that a customer – with no checked-in luggage – pays whatever price the airline itself has set but simply decides not to use up the entire item purchased?  Doesn’t that simply let the airline save gas and potentially give the empty seat to potential stand-by customers?  Does it matter to a newspaper that I choose to not read the sports pages? Must I eat the heal of my bread even though I don't like it?  What if I really don't like my bread and would rather eat a donut instead, as I thought might be the case?

The issue of breach of contract is arguably a closer one.  If airlines “strictly prohibit” the practice of only using part of a ticket, it may be promissory fraud to buy a ticket if one intends at the time of purchase to only use part of it.  This could also relate to the purchase of a round-trip ticket only to use it one-way as that too is often cheaper than a one-way ticket, as Justice Scalia found out himself recently.

The Skiplagged.com creator argues that he is only taking advantage of “inefficiencies” in airline travel that travelers have known about for a long time.  To me, it seems that airline contracting should work both ways as other types of contracting: airlines take advantage of their bargaining positions as well as their sophisticated knowledge of current and future air travel supply and demand structures.  They should do so!  I applaud them for that.  Jet travel has certainly made my personal and professional life much better than without relatively cheap air travel.  But every first year contracts law student also knows (or should know!) that contracting is not and should not be a one-way street.  Consumers too are getting more and more sophisticated when it comes to airline travel and other types of online contracting.  Websites enable us to inform ourselves about what we wish to spend our money on.  As long as consumers do not break the laws or violate established contracting principles, that does not strike me as “unfair competition,” that is simply informed consumerism in a modern capitalist society from which airlines and others have already benefited greatly.

Airlines, wake up: how about working with your customers instead of trying to fight them and modern purchasing trends?  How’s this for a thought: start offering one-way tickets for about half of a round-trip ticket just like other transportation vendors (trains, buses, subways) do.  Don’t you think that could set you apart from your competition and thus even earn you more customers?  If you can fly for a certain amount of money to a certain city, let people pay that only and then simply sell a second ticket for the remaining leg to the more popular end destination where the same plane is headed anyway.  Let people off the bus if they want to!  Let some one else on instead.  It doesn’t seem that hard to figure out how to work with current purchasing trends and your customers instead of resisting the inevitable.

For another grotesquely inappropriate lawsuit by United Airlines against its own customer, see Jeremy’s blog here.

I will blog more on this issue over the days to come.  For now, I’m glad I don’t have to head to an airport.  Happy New Year!

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	481	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	210	'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	176	The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property  Orly Lobel  University of San Diego School of Law
4	139	Regulating for Rationality  Alan Schwartz  Yale Law School
5	133	Disappearing Claims and the Erosion of Public Law  Maria Glover  Georgetown University Law Center
6	126	The Justice of Private Law  Hanoch Dagan and Avihay Dorfman  Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law
7	108	Are Zero Hours Contracts Lawful?  Ewan McGaughey  King's College London – The Dickson Poon School of Law
8	104	Response: Boilerplate in Theory and Practice  Margaret Jane Radin  University of Michigan Law School
9	91	Good Faith and Fair Dealing as an Underenforced Legal Norm  Paul MacMahon  London School of Economics - Law Department
10	89	Empirical Analysis of Legal Theory  Geoffrey P. Miller  New York University School of Law

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

Rank	Downloads	Paper Title
1	133	Disappearing Claims and the Erosion of Public Law  Maria Glover  Georgetown University Law Center
2	108	Are Zero Hours Contracts Lawful?  Ewan McGaughey  King's College London – The Dickson Poon School of Law
3	104	Response: Boilerplate in Theory and Practice  Margaret Jane Radin  University of Michigan Law School
4	89	Empirical Analysis of Legal Theory  Geoffrey P. Miller  New York University School of Law
5	74	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
6	60	Unfair Prices in the Common European Sales Law  Martijn W. Hesselink  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
7	50	Contract as Automaton: The Computational Representation of Financial Agreements  Mark D. Flood and Oliver R. Goodenough  Office of Financial Research and Vermont Law School
8	49	Foreign Investments and the Market for Law  Susan D. Franck and Erin A. O'Hara O'Connor  Washington and Lee University - School of Law and Vanderbilt University - Law School
9	35	Sham and Trusts  Matthew Conaglen  University of Sydney - Faculty of Law
10	33	Contractual Freedom and Family Business  Benjamin Means  University of South Carolina School of Law

 

No-tipping policies and increased minimum salaries

CNN reports that more and more restaurants are implementing no-tipping policies as, perhaps, a way of differentiating themselves from competitors.  For example, one restaurant builds both tax and gratuity into menu prices, allegedly resulting in its servers averaging about $16.50 an hour.  I have argued here before that it seems fair to me that the burden of compensating one’s employees should fall on the employer and not on, as here, restaurant patrons feverishly having to do math calculations at the end of a meal.

The law does not yet support employment contracts ensuring fair compensation of restaurant and hotel employees.  For example, federal law requires employers to pay tipped workers only $2.13 an hour as long as the workers earn at least the federal minimum wage of $7.25 an hour.  Talk about burden shifting…

But change seems to be on the way with private initiatives such as the restaurant no-tipping policy.  In Los Angeles, the City Council has approved an ordinance that raises the minimum wage for workers in hotels of more than 300 rooms to $15.37 an hour.  Of course, this will mainly affect large hotel chains, which predictably resisted the ordinance citing to issues such as the need to stay competitive price-wise and threatened circumventing the effect of the new law by laying off or not hiring workers to save money.  Funny since many of these hotels have been making vast amounts of money for a long time on, arguably, overpriced hotel rooms attracting a clientele that does not seem overly concerned about paying extra for things that are free in most lower-priced hotels (think wifi) and thus probably could somehow internalize the cost of fairly compensating its blue-collar workers. 

Much has been said about the “1%” problem and a fair living wage.  No reason to repeat that here.  However, it is thought-provoking that whereas the U.S. recession officially ended in June 2009 – five years ago - 57% of the U.S. population still believed that the nation was in a recession in March 2014.

Contracting and the economy is, of course, to a large extent a matter of seeking the best bargain one can obtain for oneself.  But even in industrialized nations such as ours, there is something to be said for also ensuring that not only the strongest, most sophisticated and wealthiest reap the benefits of the improved economy.  So here’s to hoping that more initiatives such as the ones mentioned above are taken in 2015.  At the end of 2014, it’s still “the economy, s$%^*&.”

Weekly News Roundup

On December 18th, the District Court for the District of Minnesota ruled on defendant's motion to dismiss in In re: Target Corporation Customer Data Security Breach Litigation.  The case relates to the hacking of 110 million Target customers last December.  Plaintiffs allege violations of state consumer protection laws, negligence and breach of contracts, both express and implied, among other things.  The court dismissed most claims with prejudice.  The breach of an implied contract claim survived, as a jury will have to determine whether plaintiffs can establish the terms of an implied contract.   The court dismissed the breach  of an express contract claim without prejudice.   Plaintiffs will be given an opportunity to specify what federal laws Target allegedly breach through its allegedly inadquate measures for safeguarding its customers' data.

And if you are looking for evidence that airlines really don't care what we think of them, look no further than United's motion to dismiss in Mamakos v. United Airlines, Inc.  In the case, plaintiff alleges the following:

• 

  Photo by Luis Argerich
  She saw an empty seat on one of three legs of her trip from New York to Alaska;
• She moved into that seat;
• Stewardesses informed her that she would have to pay a $109 premium for the seat;
• She did not want to pay and so moved back to her original seat;
• United then removed her from the aircraft and, when she resisted had her arrested; and
• United then cancelled her ticket and her return ticket.

United accepts the truth of these allegations for the purposes of its motion but maintains that it still did not breach its contract with plaintiff because of Rule 5(B) of United's Contract of Carriage (incorporated by reference into plaintiff's ticket), which permits United to cancel a reservation if the passenger refuses to pay for the applicable Ticket.  Apparently, once plaintiff's behind made contact with a premium seat, she was bound to pay or be forcibly ejected form the aircraft.  Sheesh.  

Really United?  Worth litigating?

Lost in the Fine Print Document to Be Screened at AALS

Join Alliance for Justice at the Association of American Law Schools’ (AALS) Annual Meeting to celebrate the release of the new short documentary,

Lost in the Fine Print

Examining the Impact of Forced Arbitration

Saturday, January 3, 2015 MARRIOT WARDMAN PARK HOTEL 2660 Woodley Road NW, Washington, DC Room Wilson C, Mezzanine Level 8:30PM Cocktails and refreshments provided Please RSVP here

Watch the trailer

Buried in everyday agreements for products, services, and jobs is fine print saying when you are harmed, you can’t go before an impartial jury or judge. Instead, these forced arbitration clauses send you to a decision-maker picked by the company that wronged you. Not surprisingly, one study found that arbitrators rule for companies over consumers 94 percent of the time. And you’re stuck with their decision because there’s no appeal. It’s a rigged system that helps companies evade responsibility for violating anti-discrimination, consumer protection, and public health laws.

Narrated by former U.S. Secretary of Labor Robert Reich, AFJ’s new 20 minute documentary Lost in the Fine Print tells the story of three everyday people who found themselves trapped in the system of forced arbitration—and the impact of this system on their lives and livelihoods. The cocktail reception will feature a film screening and brief remarks.

Featured Speakers:

Nan Aron, President, Alliance for Justice
Paul Kirgis, Professor, St. John’s University School of Law and Chair, AALS Section on Alternative Dispute Resolution
Nancy Kim, Professor of Law, California Western School of Law; Chair, AALS Section on Contracts and author, Wrap Contracts 
Judith Resnik, Arthur Liman Professor of Law, Yale Law School
Michelle Schwartz, Director of Justice Programs, Alliance for Justice

Host Committee (in formation):

*All titles and university affiliations are listed for identification purposes only.

Theresa A. Amato, Distinguished Scholar in Residence, Loyola University Chicago

Frank Askin, Distinguished Professor of Law, Robert E. Knowlton Scholar, and Director of Constitutional Rights Clinic, Rutgers School of Law—Newark
Robin Bradley Kar, Professor of Law and Philosophy, University of Illinois College of Law
Raymond H. Brescia, Associate Professor of Law and Director of the Government Law Center, Albany Law School
Katherine S. Broderick, Dean and Professor of Law, University of the District of Columbia David A. Clarke School of Law
Sarah E. Burns, Professor of Clinical Law, NYU School of Law
Erwin Chemerinsky, Dean of the School of Law, University of California, Irvine

Liz Ryan Cole, Professor, Vermont Law School
James E. Coleman, Jr., John S. Bradway Professor of the Practice of Law; Director, Center for Criminal 
Justice and Professional Responsibility and Co-Director, Wrongful Convictions Clinic, Duke University School of Law
Joshua P. Davis, Associate Dean for Academic Affairs & Director, Center for Law and Ethics, University of San Francisco School of Law
Peter Edelman, Professor of Law, Georgetown University Law Center
Catherine Fisk, Chancellor’s Professor of Law, University of California, Irvine School of Law 
Celeste Hammond, Professor and Director, Center for Real Estate Law, John Marshall Law School
Ann C. Hodges, Professor of Law, University of Richmond School of Law
Michael Hunter Schwartz, Dean and Professor of Law, University of Arkansas at Little Rock William H. Bowen School of Law
Robert A. Katz, Professor of Law, Indiana University Robert H. McKinney School of Law
Amalia D. Kessler, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, Stanford Law School
Peter Linzer, Professor of Law, University of Houston Law Center
Dennis O. Lynch, Professor and Dean Emeritus, University of Miami School of Law
Margaret L. Moses, Professor of Law and Director, International Law and Practice Program, Loyola University Chicago School of Law
David B. Oppenheimer, Clinical Professor of Law & Director of Professional Skills, UC Berkeley School of Law
Nancy Polikoff, Professor of Law, American University Washington College of Law
Margaret Jane Radin, Henry King Ransom Professor of Law, University of Michigan Law School and author of Boilerplate
Maritza Reyes, Associate Professor of Law, Florida A&M University College of Law
Daniel B. Rodriguez, Dean and Harold Washington Professor, Northwestern University School of Law and President, AALS
Florence Wagman Roisman, William F. Harvey Professor of Law and Chancellor’s Professor, Indiana University Robert H. McKinney School of Law
Kathryn Sabbeth, Assistant Professor of Law, University of North Carolina School of Law
Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law 
Shirin Sinnar, Assistant Professor of Law, Stanford Law School
Jean Sternlight, Director of the Saltman Center for Conflict Resolution and Michael and Sonja Saltman Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law
Joan Vogel, Professor of Law, Vermont Law School
Adam Zimmerman, Associate Professor of Law, Loyola Law School, Los Angeles

PS: Lost in the Fine Print is a game-changer. It demystifies the concept of forced arbitration, and urges us to demand change. Nationwide, law professors are using the film as a resource to educate students about this issue. Click here to download or order your free copy of the film.

Alliance for Justice 11 Dupont Circle, NW 2nd Floor Washington, DC 20036 202-822-6070 www.afj.org

AFJ West Coast Office 436 14th Street Ste. 425 Oakland, CA 94612 510-444-6070 www.afj.org

First Circuit Uses Its Thesaurus and Denies Motion to Compel Arbitration

P. M. Roget, Author of the First Thesaurus

In Joca-Roca Real Estate, LLC v. Brennan, the First Circuit affirmed the District Court's denial of plaintiff's motion to compel arbitration after nine months of discovery, which involved 16 depositions and four telephone conferences with the District Court Judge to settle discovery disputes.  As the learned court put it, plaintiff provided no explanation for its cunctation.  The District Court denied to motion to compel arbitration, holding that plaintiff had waived its right to arbitrate.  The First Circuit affirmed.

The First Circuit began its analysis with the standard for a finding of implied waiver by conduct:

In determining whether a conduct-based waiver has occurred, we ask whether there has been an undue delay in the assertion of arbitral rights and whether, if arbitration supplanted litigation, the other party would suffer unfair prejudice.

Although the sage court noted plaintiff's asseveration that the District Court had applied the wrong standard, the perspicacious court considered a salmagundi of factors in determining that the District Court had applied the correct standard in finding prejudice.  The sagacious court, for example, noted that plaintiff gave no reason for its inital decision to eschew arbitration and that its motion to compel was not raised in a timeous manner.  In fact, the timing suggested that plaintiff had decided to try arbitration because it was facing an impending motion for summary judgment and the sapient court would not "condone the use of an arbitration clause as a parachute when judicial winds blow unfavorably."

The standard for showing prejudice in cases such as this one is not terribly exacting.  Defendant had to pay for nine months of discovery.  Time is also a valuable commodity, and the transfer into a new forum would have caused additional delay.  Delay itself does not constitute prejudice, but here, the erudite court noted, delay was protracted and the litigation-related activities were copious.  

The Hobbit and the Meaning of a Bargain

I recently saw the last Hobbit movie, The Battle of the Five Armies.  I found it highly entertaining and was delighted to find a discussion about contracts between Bard, the leader of Laketown, and the King of the Dwarves, Thorin Oakenshield, during a pivotal moment in the movie.  The two engage in a back-and-forth about the meaning of a bargain, contract defenses (coercion and duress), and the importance of keeping promises.  In short, all the issues that come up regularly on this blog.  This isn't the first time that contracts have come up in a Hobbit movie. The morality of promise-keeping is an important theme in the movie as it has been in the others. 

Speaking of the Hobbit, the Weinstein brothers have lost their fight against Warner Bros. over the profits to the last two Hobbit movies.  As discussed previously on this blog, the issue involved the meaning of "first motion picture" of each book but not "remakes."  The Hobbit book was split into three movies and the Weinsteins argued that they should get a percentage from each movie; Warner Bros. claimed that they should only get royalties from the first Hobbit movie.  Unfortunately for contracts enthusiasts, the matter was sent to arbitration against the wishes of the Weinstein Bros. who wanted it to play out in court so we may never find out the basis for the arbitrator's ruling.

 

 

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	475	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	207	'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	174	The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property  Orly Lobel  University of San Diego School of Law
4	131	Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent  Gregory Eddington  Oklahoma City University
5	131	Disappearing Claims and the Erosion of Public Law  Maria Glover  Georgetown University Law Center
6	131	Regulating for Rationality  Alan Schwartz  Yale Law School
7	122	The Justice of Private Law  Hanoch Dagan and Avihay Dorfman  Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law
8	103	Response: Boilerplate in Theory and Practice  Margaret Jane Radin  University of Michigan Law School
9	103	Are Zero Hours Contracts Lawful?  Ewan McGaughey  King's College London – The Dickson Poon School of Law
10	88	Empirical Analysis of Legal Theory  Geoffrey P. Miller  New York University School of Law

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

Rank	Downloads	Paper Title
1	131	Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent  Gregory Eddington  Oklahoma City University
2	131	Disappearing Claims and the Erosion of Public Law  Maria Glover  Georgetown University Law Center
3	103	Response: Boilerplate in Theory and Practice  Margaret Jane Radin  University of Michigan Law School
4	103	Are Zero Hours Contracts Lawful?  Ewan McGaughey  King's College London – The Dickson Poon School of Law
5	88	Empirical Analysis of Legal Theory  Geoffrey P. Miller  New York University School of Law
6	81	'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts?  Cheryl B. Preston  Brigham Young University - J. Reuben Clark Law School
7	70	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
8	58	Unfair Prices in the Common European Sales Law  Martijn W. Hesselink  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
9	47	Contract as Automaton: The Computational Representation of Financial Agreements  Mark D. Flood and Oliver R. Goodenough  Office of Financial Research and Vermont Law School
10	44	Foreign Investments and the Market for Law  Susan D. Franck and Erin A. O'Hara O'Connor  Washington and Lee University - School of Law and Vanderbilt University - Law School

 

 

News Flash: Guy Who Never Signed Arbitration Agreement Can Not Be Forced into Arbitration

Really?  This is a thing now?  The District Court held that a company can bind a consumer to an arbitration provision and class action waiver in a rolling contract of adhesion.  Fortunately, the Ninth Circuit didn't buy it, but why is it even a close call?

In November 2011, Erik Knutson bought a Toyota which came with a 90-day subscription to Siriux XM Radio (Sirius).  About a month into his trial subscription, Sirius sent Knutson a "welcome kit."  That welcome kit included a customer agreement with an arbitration clause and class action waiver.  According to the customer agreement, its terms became binding if Knutson did not contract Sirius to cancel his 90-day trial within three business days.  Knutson also received unsolicited phone calls from Sirius on his cell phone.  He filed a putative class action suit against Sirius for violations of the federal Telephone Consumer Protection Act.  

Sirius cited to the arbitration clause and moved to compel arbitration.  The District Court granted Sirius's motion to compel.  In Knutson v. Sirius XM Radio, Inc. The Ninth Circuit reversed.  The opinion is unanimous and careful.  The Court explains why Mr. Knutson never assented to any terms and was not bound in any way to Sirius.  Knutson never bought anything from Sirius and never knew that he was entering into a contact.  

Gift or Curse?

After years of conducting research on the genes of various animals, George Doe (a pseudonym), an accomplished biologist with a PhD in cellular and molecular biology, decides to have his own genes examined for fun and to discover whether he may be genetically predisposed to cancer.  He buys a test kit online from one the many companies that provide such services these days.  He is so excited about the process that he also buys a kit for his mother and father as gifts.  They all have their genes tested.  George finds out that he is not predisposed to cancer.  But that’s not it.  He also finds out that another male who has had his own genes tested and is thus registered with the same company is “50% related” to George.  This can only mean one of three things: this other male is George’s grandfather, uncle or … half brother.  After intense and testy family discussions, George’s father apparently admits that he had fathered this other male before marrying George's mother.  George’s parents are now divorced and the entire family torn apart with no one talking to each other.

A very sad affair.  Of course, nothing appears to be contractually wrong with this case: at the bottom of one’s profile with www.23andme.com, the company that provided the tests in this case, George and his family had checked a small box indicating for them to do so “if you want to see close family members in this search program.”  The company is said to have close to one million people in its database.  With modern science, close family members can easily be identified out of such data if opting into being notified. 

Here, the company does not appear to have done anything wrong legally.  Quite the  opposite: if anything, the above shows that the buyers in these situations may not be sufficiently mentally prepared for the information they may discover through DNA testing.  Arguably, they should be.  After all, the old adage “watch out what you ask for, you may get it” still rings true.

But isn’t this situation akin to the various other situations we have blogged a lot about here this past year where customers buy various items online and click – or not – on various buttons, thus signaling at least alleged acceptance of, for example, terms of service requiring arbitration instead of lawsuits in case of disputes?  As I have argued, many people probably just clicks such buttons without fully realizing what the legal or, in cases such as the above, factual results may be.  Should online vendors be required either legally to make such check boxes or other online indicia of acceptance a lot more obvious?  Or should they at least be required to do so for reasons of business ethics? 

I think so.  Most working people are exceptionally busy these days.  Frankly, not many of us take the time to scrutinize the various implications - legal or otherwise – of the purchases we make online, especially because the agreements we accept in cyberspace are presented so very differently online, yet are so deceptively similar in legal nature that we probably feel pretty comfortable with simply clicking “I accept” as the vast majority of such transactions present no or only minor problems for us? And aren’t the vendors the party with the very best knowledge of some, if not most, of the problems that arise in these contexts?  How hard would it really be for them to make sure that they use all the “bells and whistles” to truly put people on notice of what typical problems encountered may be, exactly to avoid legal problems down the road?  One would think so, although, of course, customers also carry some of the burden of educating ourselves about what we buy and what that may mean.  This is perhaps especially so when such delicate issues as the above are involved.

For George Doe, the above unfortunately turned out to be much more of a curse that kept on giving instead of a gift that kept on giving.

On behalf of your blogging team here at ContractsProfs Blog: Happy Holidays!

International Conference on Contracts X: Call for Papers and Panel Proposals

Call for Participation and Proposals

10th International Conference on Contracts (KCON 10)

William S. Boyd School of Law, UNLV

Las Vegas, Nevada February 27 & 28, 2015

 

 

UNLV's William S. Boyd School of Law is pleased to again host the International Conference on Contracts -- a two-day conference designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, thought experiments, as-yet-fully-formed ideas for scholarship, and pedagogical innovations, and to network with colleagues -- and potential collaborators or mentors -- from around the country and other parts of the world.

 

Invitation: We invite paper, presentation, and panel proposals exploring any aspect of contract law, theory, and policy writ large (including, but not limited to, bankruptcy/insolvency, commercial law, consumer law, dispute resolution regimes, employment law, family law, insurance law, legal systems, and restitution, in addition to more traditional contract topics) from a behavioral, comparative, critical, doctrinal, economic, empirical, equitable, historical, institutional, interdisciplinary, jurisprudential, pedagogical, philosophical, policy-driven, or political perspective.  We also solicit volunteers to serve as moderators or discussants for panels that are not "packaged deals."

 

The CFPs issued earlier this year for the AALS Section on Contracts' and Section on Commercial and Related Consumer Law's January annual meeting programs each yielded more excellent proposals than either section can accommodate in Washington.  There are also issues of weather, timing, politics, and expense that may keep some away from the AALS annual meeting.  We strongly encourage those who submitted papers or proposals to either section -- successfully or unsuccessfully -- to submit to us.  KCON 10's attendance will almost certainly exceed that of any single session at AALS and, although there will be some overlap in the audience, there will also be plenty of fresh eyes and ears in February in Las Vegas.

 

The organizers intend to organize a panel in memory of our dear friend and colleague Jean Braucher and another to discuss Omri Ben-Shahar & Carl Schneider's recent book, More Than You Wanted to Know: The Failure of Mandated Disclosure.  A couple of other panel ideas are already brewing.  Those efforts, even if all bear fruit, still leave room for many more presenters, moderators, and discussants.

 

We will try to accommodate as many presenters, moderators, and discussants as possible.  We particularly encourage junior scholars and those who work in non-U.S. legal systems to propose papers or panels and to volunteer to serve as a discussant or moderator.  We also welcome anyone who wishes to attend the conference without presenting or serving as a discussant or moderator.  The educational and networking benefits alone are worth the price of admission.

Publication: There is no publication requirement for conference participants, although experience suggests that individual papers and panels often find good homes.  The Nevada Law Journal encourages participants to submit individual and panel papers and hopes to publish several works from the conference in upcoming issues.

 

Submitting a Proposal: If you would like to propose a presentation or panel, please e-mail a title, brief description, and any supporting materials by January 23, 2015 to [email protected] or snail-mail it to me at the address below; if you would like to discuss or moderate, please let me know your interests and availability by January 23.  We will evaluate proposals as they come in and will consider on a space-available basis any we receive after January 23.

 

Preliminary Schedule: The conference program will begin both Friday andSaturday morning no later than 9:00 a.m. (grazing and conversational opportunities will start earlier) and will run until 5:00 or 5:30 p.m. each day.

 

Accommodations: Bluegreen Club 36 near campus (372 E. Tropicana Avenue, Las Vegas, NV 89169) is holding a block of rooms for Thursday 2/26 throughSaturday 2/28 nights at a rate of $92.00 per night (plus tax) for a deluxe suite or $82.00 per night (plus tax) for a standard suite.  To book a conference-rate suite at Bluegreen Club 36, please call (800) 456-0009 and tell the reservations agent that you are with the UNLV Law School contracts conference.  The deadline for hotel registration at the conference rate is February 4, 2015.  However, I encourage you to book sooner, as we blocked a limited number of rooms and will be better able to get the hotel to make the conference rate available to additional attendees if early registration is robust.

 

For those who prefer to stay on the Las Vegas Strip, we have also secured a smaller block of rooms at the Luxor (3900 Las Vegas Boulevard South, Las Vegas, NV 89119) for Thursday 2/26 through Saturday 2/28 nights for Tower Deluxe rooms (one king bed or two queen beds) at a rate of $40.00 per night (plus tax & $18/night resort fee) for Thursday 2/26, $89.00 per night (plus tax & $18/night resort fee) for Friday 2/27, and $99.00 per night (plus tax & $18/night resort fee) for Friday 2/27.  The Luxor is considerably farther from campus than Bluegreen Club 36, and traffic on and around the Las Vegas Strip can be heavy at times; however, this is an excellent rate that appears to be available for earlier check-in for attendees looking to spend an extra night or two in Las Vegas.  To book a conference-rate room at the Luxor, go to https://aws.passkey.com/event/13031521/owner/4939/home.  The deadline for the conference rate at the Luxor is January 29, 2015.  Again, I encourage you to book sooner, as we blocked a smaller number of rooms there and will be better able to get the Luxor to make the conference rate available to additional attendees if the block fills up quickly.  

 

Transportation: We'll provide transportation between Bluegreen Club 36 and the law school (as well as Friday's dinner venue, if it is off-campus).  If enough attendees book rooms at the Luxor, we will arrange shuttle service to and from there as well.  Attendees who prefer to stay elsewhere are responsible for their own transportation.

 

Sustenance: Your registration fee will cover the costs of lunches both days and a reception and dinner Friday evening, as well as coffee, fruit, and baked goods each morning and cold beverage service and morsels each afternoon.

 

Registration: We're still finalizing the conference registration fee and process.  The registration fee will be no more than $250, which will include Friday evening's conference dinner, at which we will recognize this year's career achievement award recipient.  Additional tickets to Friday's dinner will be available for guests who are not registered for the conference.

 

If you have any questions, please call or e-mail:

 

Keith A. Rowley

William S. Boyd Professor of Law

William S. Boyd School of Law

University of Nevada Las Vegas

4505 S. Maryland Parkway, Box 451003

Las Vegas, NV 89154-1003

Tel: (702) 895-4993

Fax: (702) 895-2482

Cell: (702) 217-8809

E-mail: [email protected]

 

Walmart and the Opportunity to Reject

It's accepted as generally true that consumers don't read fine print.  Some argue that even if they did read it, (a) they wouldn't understand the terms or (b) they would accept the terms because they want the product.  Well, one woman proved the exception to the conventional wisdom about consumer contracting behavior.  As reported by an ABC affiliate here and Trevor Boeckmann on the Alliance for Justice blog here,  Maria Selva says that she braved Walmart during its Door Buster sales hoping to get a deal on a TV set.  They were sold out but gave her a coupon and told her to pay for it in full at check out.  After paying for it,  they gave her a piece of paper that told her to register online.  When she went online, Selva says that she found out that she would have to give up certain rights, namely the right to file a lawsuit in court.  Selva decided that she didn't want the T.V. that much.  Unfortunately, when she tried to get her money back, she was told that she had to agree to the terms on the website first, they would ship her the T.V., and only then could she return it for a refund.

Easy, huh? (Um, no).  Apparently Walmart didn't get the memo about rolling terms and the opportunity to reject.  Or maybe they assumed the conventional wisdom - that nobody would reject because nobody would read the terms or care what they said.

Fortunately, Selva did get her money back, apparently after being contacted by the news station. 

 

Eleventh Circuit Rejects Claim for a Million Dollar Unilateral Contract

This case arises out of a fact pattern with which many contracts profs may already be familiar.  It's a new twist on Leonard v. PepsiCo., alas with the same result.

James Cheney Mason (Mason) represented defendant Nelson Serrano in a capital murder trial.  Mason gave an interview on NBC news in which he pointed out that his client could not have committed murders in Bartow, Florida on the same day that he was on a business trip in Atlanta Georgia.  Surveillance cameras from the La Quinta Inn in Atlanta established Serrano's presence at the hotel both before and after the murders.  The prosecution claimed that Serrano flew to Orlando, drove to Bartow, committed the murders, drove to Tampa, and flew back to Atlanta in time to show up on the surveillance tapes once again.  Serrano was convicted and sentenced to death.

Law student Dustin Kolodziej (Kolodziej) watched Mason's interview with NBC after it was edited for broadcast.  In the edited version that Kolodziej saw, Mason seemed to be offering a million dollars to anyone who could get off a plane in Atlanta and make it back to the La Quinta Inn in 28 minutes.  Kolodziej took this as a challenge and as a unilateral offer that he could accept by making the trip in 28 minutes or less.  Kolodziej recorded himself making the trip and sent the recording to Mason with a demand for payment.  Mason refused.

In Kolodziej v. Mason, the Eleventh Circuit upheld the grant of summary judgment to Mason.  In the unedited version of Mason's interview, it is clear that his challenge was directed at the prosecution and not erga omnes.  Moreover, the Eleventh Circuit found, no reasonable person could construe any statement that Mason made in either the edited or the unedited version of the interview as a serious offer to pay a million dollars to anybody who could travel from the airport to the hotel in 28 minutes.  According to the Court, the context in which the words were uttered (an attempt to poke holes in the prosecution's theory) and the hyperbolic nature of the alleged offer, with its familiar overtones of schoolyard braggadocio, were insufficient to establish Mason's willingness to enter into a contract.

The Court distinguished this case from the classics, Lucy v. Zehmer and Carbolic Smoke Ball and other, equally entertaining cases.  The Court was no more inclined to entertain Kolodziej's claim than it would be to declare Mason a monkey's uncle, if he had chosen that turn of phrase when attempting to illustrate the implausibility of the prosecution's timeline.  

The Court suggested that the entire suit was a result of Kolodziej's inadequate understanding of contracts doctrine (hence the duncecap image above, which by the way, does not represent Kolodziej).  The Court paraphrased Pope and suggested that a little legal knowledge is a very dangerous thing indeed.  As the Court explained,

Kolodziej may have learned in his contracts class that acceptance by performance results in an immediate, binding contract and that notice may not be necessary, but he apparently did not consider the absolute necessity of first having a specific, definite offer and the basic requirement of mutual assent.

This seems more than a bit unfair.  Kolodziej was wrong, but he may have thought it worth the gamble.  He lost his case, but he had quite an experience.  In any case, Judge Cardozo's remark in Allegheny College about how half-truths are sometimes mistaken for the whole truth seems more apposite.  

A classic form of statement identifies consideration with detriment to the promisee sustained by virtue of the promise. Hamer v. Sidway, 124 N. Y. 538, 27 N. E. 256, . . . . So compendious a formula is little more than a half truth. There is need of many a supplementary gloss before the outline can be so filled in as to depict the classic doctrine.

Mistakes of law such as Kolodziej's are common, and learned judges (and even law professors) as well as law students can make them.

 

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	451	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	197	'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	166	The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property  Orly Lobel  University of San Diego School of Law
4	131	Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent  Gregory Eddington  Oklahoma City University
5	119	Regulating for Rationality  Alan Schwartz  Yale Law School
6	117	Valuable Lies  Ariel Porat and Omri Yadlin  Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law
7	114	The Justice of Private Law  Hanoch Dagan and Avihay Dorfman  Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law
8	95	Disappearing Claims and the Erosion of Public Law  Maria Glover  Georgetown University Law Center
9	93	Response: Boilerplate in Theory and Practice  Margaret Jane Radin  University of Michigan Law School  Date posted to database: 12 Nov 2014  Last Revised: 11 Dec 2014
10	85	Are Zero Hours Contracts Lawful?  Ewan McGaughey  King's College London – The Dickson Poon School of Law

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

Rank	Downloads	Paper Title
1	131	Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent  Gregory Eddington  Oklahoma City University
2	95	Disappearing Claims and the Erosion of Public Law  Maria Glover  Georgetown University Law Center
3	93	Response: Boilerplate in Theory and Practice  Margaret Jane Radin  University of Michigan Law School
4	85	Are Zero Hours Contracts Lawful?  Ewan McGaughey  King's College London – The Dickson Poon School of Law
5	82	Precedent in Contract Cases and the Importance(?) of the Whole Story  Robert A. Hillman  Cornell Law School
6	79	'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts?  Cheryl B. Preston  Brigham Young University - J. Reuben Clark Law School
7	78	Empirical Analysis of Legal Theory  Geoffrey P. Miller  New York University School of Law
8	68	Binding Future Selves  Kaiponanea T. Matsumura  Arizona State University (ASU) - Sandra Day O'Connor College of Law
9	63	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	57	Market Regulation of Contractual Terms: A Skeptical View  Guy A. Rub  Ohio State University (OSU) - Michael E. Moritz College of Law

 

Call for Applications: Project on the Foundations of Private Law

Harvard Law School
POSTDOCTORAL FELLOWSHIP, 2015-2017 

PURPOSE: The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law.   Applicants should be aspiring academic with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law unjust enrichment, restitution, equity, and remedies. The Project welcomes applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law. The Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Project pursuing publishable research that is likely to make a significant contribution to the field of private law, broadly conceived. More information on the Center can be found at: http://www.law.harvard.edu/programs/about/privatelaw/index.html.

PROGRAM: Postdoctoral Fellowships in Private Law are full-time, two-year residential appointments starting in the Fall of 2015. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Project does not impose teaching obligations on fellows, although fellows may teach a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on private law, and other events designated by the Project. Fellows are also expected to help plan and execute a small number of events during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. The Project also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor its Student Fellows.  Finally, fellows will be expected to blog periodically (about twice per month) on our collaborative blog, which is under development.

STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with office space, library access, and a standard package of benefits for employee postdoctoral fellows at the Law School.  The annual stipend will be $50,000 per year.

ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in law. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship in private law and theory. Applicants will be evaluated by the quality and probable significance of their research proposals, and by their record of academic and professional achievement. 

APPLICATION: Applications will be accepted starting December 15, 2014. Completed applications must be received at [email protected] by 9:00 a.m. on February 2, 2015. Please note that ALL application materials must be submitted electronically, and should include:

1. Curriculum Vitae
2. PDFs of transcripts from all post-secondary schools attended.
3. A Research Proposal of no more than 2,000 words describing the applicant’s area of research and writing plans. Research proposals should demonstrate that the applicant has an interesting and original idea about a research topic that seems sufficiently promising to develop further.
4. A writing sample that demonstrates the applicant’s writing and analytical abilities and ability to generate interesting, original ideas. This can be a draft rather than a publication.  Applicants who already have publications may also submit PDF copies of up to two additional published writings.
5. Three letters of recommendation, emailed directly from the recommender. Letter writers should be asked to comment not only on the applicant’s writing and analytical ability, but on his or her ability to generate new ideas and his or her commitment to pursue an intellectual enterprise in this area. To the extent feasible, letter writers should provide not just qualitative assessments but also ordinal rankings. For example, rather than just saying a candidate is “great,” it would be useful to have a statement about whether the candidate is (the best, in the top three, among the top 10%, etc.) among some defined set of persons (students they have taught, people they have worked with, etc.).

All application materials with the exception of letters of recommendation should be e-mailed by the applicant to [email protected]. Letters of Recommendation should be emailed directly from the recommender to the same address.

For questions or additional information, contact:

Bradford Conner, Coordinator, [email protected].

Student Learning Outcomes and Hiding the Ball

The ABA has embraced the idea of student learning outcomes (see Standard 302).  I have no objection to the rule as stated.  If law schools are not striving to graduate students who are competent in the areas identified by the ABA, they deserve to lose their accreditation.  

But I am hearing noises of a much more aggressive version of student learning outcomes (SLOs) which entails identifying in one's syllabus specific SLOs for each class session.  I see great potential in this version of the SLO movement for tension with my pedagogical approach (illustrated at left).  

I already provide a great deal of guidance to my students on my syllabus.  On the day that the word "consideration" appears on the syllabus, I expect them to learn the substantive law of consideration.   On the day "promissory estoppel" appears on the syllabus, I expect them to forget everything they learned about consideration and think that all promises that are relied on ential contractual obligations.  And by the end of the course, I expect that everything will fall back into place, and that they will be able to deploy the reading comprehension, analytical,  and analogical skills that they have been developing all semester (in my course and others) to answer MBE-style final exam questions and essay questions in which I will ask them to apply substantive doctrines to a fact pattern with which they could not possibly be familiar because I have invented it as a test of the skills identified above.  

Apparently, some think I need to go further and identify on the syllabus precisely what skills and doctinal areas will be covered in each 50-minute hour.  There's just one problem.

I don't wanna.

And it's not just because I am a typical academic who begrudges anyone or anything that might force me out of my Socratic comfort zone.  Telling students what they are looking for undermines the basic premise of my pedagogical approach, which I think is a common pedagogical approach because it is a very good, legitimate approach to legal education. 

Yes, I hide the ball.

If I show my students the ball every day, they will fetch it.  But I am not trying to train spaniels; I'm trying to train attorneys, and attorneys need to be able find things when nobody tells them in advance what they are looking for.  They also need to know that this is something that they can do (or learn to do) with nothing more than their own internal resources.  Every teaching day, in every Socratic exchange with a student, I try to get the student to a question she thinks she cannot answer and then, through a series of prodding questions, none of which provide the student with facts or information she did not already have from reading the text, I try to bring her to a place where she can formulate the answer that she thought she did not have.  When the method works, the student has learned both doctrine and a skill -- and hopefully she has gained a great deal of confidence in her own native abilities.

Or, when I ask the student a question, she could just consult the SLOs in the syllabus and recite the learning objective for the day, and one of us would leave the class under the impression that she had learned something valuable.

I am not really afraid that the aggressive SLO movement augurs the end of legal education as we know it, because I know that students pay very little attention to what is on the syllabus (and they'll pay even less if it contains 10-12 pages of detailed SLOs).  I just resent the drain on pedagogical resources that could be spent innovating rather than figuring out how best to march in lock step.

Out with the Old… the Really Old

In the UK, two sections of the Statute of Marlborough are facing repeal after being in force for 747 years.  That’s right: the Statute was passed in 1267 and is thus older than the Magna Carta, which – although having been drafted in 1215 – was not copied into the statute rolls to officially become law until 1297.  Two sections, however, still remain good law.

Why the suggested repeal?  The two potentially obsolete sections address the ancient British power of “distress,” which allowed landlords to enter a debtor’s property and seize his/her goods.  However, distress was abolished by new legislation this past March.

But don’t worry, our British colleagues are not about to do anything rash or unpopular.  Although the Law Commission has proposed the repeal, a public consultation has been initiated to make sure that no one actually uses the two sections anymore.

Other newer, but nonetheless obsolete, laws are also being earmarked for removal.  One is from the 1990s and was drafted to regulate the “increasing popularity of acid house parties.”   Apparently, acid house parties are not in anymore and thus, the law is no longer needed.

In spite of the above, two sections of the Statute of Marlborough still remain in effect.  One forbids individuals from seeking revenge for debt non-payment without being sanctioned to do so by the court (you gotta love the fact that in the UK, one can apparently get courts to approve one seeking revenge against one’s debtors).  Another prevents tenants from ruining or selling off the landlord’s land.  Fair enough…

Still More on Ride Shares

Sick of reading our posts (and other news reports) about Uber and Lyft?

Try Schlep!

 

I am compelled to add that while the concept is brilliant and the execution quite fine, the script missed some low-hanging fruit suggested by the "Jewish geography navigation system" at the opening.  I humbly offer the following potential dialogues:

Driver: Where are you going in such a hurry?
Passenger: Elm and 17th.
D: Elm and 17th?  The Weinsteins live right around the corner! Do you know them?
P: I don't think so . . .
D: Such a nice couple.  Are you sure you don't know them?  I think they had a daughter around your age.  How old are you?  Where did you go to school?  And the Goldbergs live near there too -- surely you know them!
P: I'm just going to a dental appointment.  I don't live around there.
D: Well, you should, it's a lovely neighborhood.  Where do you live?  I know a realtor who could find you a nice apartment. . . 

-cut-

Passenger: Excuse me, I was actually heading in the other direction . . .
Driver: Oh, I know, hon, but I can only find my way there from the JCC, so I thought we'd go there first.  It's not far.
P: Umm
D: Or Solomon Schechter, is that closer?  I know how to get places from there or from the Temple . . .
P: I can direct you if you want.
D: Relax!  Enjoy the ride!  You young people are always in such a hurry these days.  Do you ever take the time to talk with your parents, I wonder?  We can just chat and catch up -- the time will pass quickly
P: Catch up?  But I don't even know you. 
D: You're about my son's age.  He just gave me my third grandchild. [Passing pictures back] Here, aren't they a lovely family?

-cut-

I'm just sayin . . .

Carving Out and ICAM

I read an interesting article the other day about parties to a contract agreeing to a broad arbitration provision and then carving out some issues that would be litigated should a problem arise. As with many others, I am involved in the International Commerical Arbitration Moot and, when I read the article, the issue seemed familiar. That is because this year's problem includes a contract with the following two provisions: 

"Art. 20 All disputes arising out of or in connection with the present contract shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with the said Rules. The seat of arbitration shall be Vindobona,
Danubia, and the language of the arbitration will be English. The contract, including this clause,
shall be governed by the law of Danubia.

Art 21: Provisional measures
The courts at the place of business of the party against which provisional measures are sought
shall have exclusive jurisdiction to grant such measures."

As you would expect, one of the parties in the problem asks for interim relief from the ICC while the other says interim measures are for courts only. Very often, if  not most of the time, the Moot problem is inspired by an actually case. Some years the students are able to find the case and, while it is never quite exactly on point, it can be helpful.

I could not help but wonder if this issue within this year's problem was inspired by a botched effort to carve interim relief out from the general provision. It would be pretty sloppy to draft something like the above but my hunch is that it has happened. 

I am curious to know how other ICAM team coaches have dealt with the issue. In particular, does the word "finally" in Article 20 have any particular signficance?

More in Our Continuing Coverage of Uber/Lyft Lawsuits

Myanna posted yesterday about an L.A. Times story about Uber.  Today's New York Times has more news about attempts to regulate companies like Uber and Lyft.  The issue is the quality of the companies' background checks on their drivers.  In a sidebar, the Times notes that three states and seven foreign jursdictions have taken legal action against Uber.  But the ride sharing companies are energetic lobbyists and often have been successful in blocking regulation.

In a related story, the Times reports that an Uber driver in India is facing allegations that he raped a passanger.  Today's Times reports that the driver was wanted on other crimes as well.