Monday, November 30, 2015
Farewell Post IV: Students and Tipping Points
I've been re-reading Malcolm Gladwell. The sub-title of The Tipping Point is How Little Things Can Make a Big Difference. That same idea is at the heart of some of his other works. In Outliers, he reports on the importance of birth dates in Canadian hockey. Boys who have birthdays in January and February tend to be hockey stand-outs, Gladwell argues, because in their early years when they are under ten years old, they are significantly older and more physically mature than the boys born towards the end of the calendar year. As a result, the January and February kids get picked for all the travel teams and then all the all-star teams. They get more practice in, they get the coaches' attention, and they also get to play in more challenging situations. With each new experience, they improve incrementally, but eventually the differences between the January and February kids and the November and December kids are vast.*
I've been thinking about how students at unranked law schools like mine are like Gladwell's Canadian hockey players born in November and December. But in the case of law students, the differences between the students who score 170 on the LSAT and those who score 145 on the LSAT are not as arbitrary as the Gregorian calendar. They are often socio-economically determined. Obviously, this does not apply to all students who score below 150 on the LSAT; I am generalizing.
But I am thinking of students from economically stressed families. Their parents work all the time and/or their parents are divorced, adding additional economic stress and uncertainty to the family environment. The parents may not have been to college or they may have gone but not pursued a serious course of study. In any case, higher education takes a back seat in many families to more immediate concerns: children over 18 (or over 16) have to work. Children have to look out for their siblings while the parents take care of other responsibilities.
Many of my students worked their way through college. Many took five or six years to graduate because they needed to work or because they had to interrupt their studies for various reasons. They ran out of money, they needed to care for a sick parent or grandparent, or they weren't performing well in college for reasons ranging from homesickness to immaturity to undiagnosed medical conditions exacerbated by the stress of a strange environment. They went to small, struggling colleges or to branch campuses of state universities. Their instructors tried diligently to help them, but they were in need of remedial courses, and they were in environments that did not encourage concentration on the development of the sorts of critical reasoning skills that comprise the basic building blocks of legal education. Their undergraduate teachers were satisfied if they followed directions, committed instructional materials to memory and then re-created thought processes that were covered in class or in readings.
By the time these students arrive at law school, they seem less intelligent, less dedicated, less disciplined, less professional and less mature than students at higher ranked schools. Standardized tests tells us this is the case. They are none of those things. They are bright, ambitious people who were born in December. They never got the training that the students born in January got. They never were asked to compete on the same level. They never got the same encouragement. They sat out entire seasons due to outside pressures that prevented them from focusing on their own careers.
And now they arrive at law school, and nothing as changed. The vast majority of students just go to the "best" law school that accepts them (or the best law school that accepts them and offers them money). Geography may play some role, but US News rankings determine the outcome of regional contests. A law school may tout its experiential learning programs or its program in entrepreneurship, but it will attract students in a rather narrow band of LSAT scores and undergraduate GPAs. Students with strong LSATs and UGPAS go to the highly-ranked schools. Students with the weakest LSATs and UGPAs go to unranked schools, where their peers are other students like them who have never had the opportunity to develop the study skills, the discipline, the critical thinking skills, the maturity and the professionalism that are the hallmarks of the successful pre-professional.
In addition, they are still subject to the same outside pressures that prevented them from getting the most out of their college educational experiences. I once had a student miss a contracts class because she had to pick up her father at the airport. Her family did not think it was a big deal for her to miss class. No matter how many times we tell them that being a law student is a full-time job, the message does not sink in for students from families who think of school as a part-time endeavor supplemented with a "real job." Many of my students work 20 hours a week, and they resent the fact that we have opted to keep the 20-hour rule when the ABA has abandoned it. They would work more if they could. When I confronted my students in a bar prep course on contracts last year with evidence showing that almost none of our graduates who worked while studying for the bar passed the bar exam, they responded with outraged exclamations: "Well, I've gotta eat!"
Born December 28, 1960
All of this (and more) suggests to me that we might be facing a tipping point phenomenon at law schools with median LSATs below 150. This is not about failing law schools or about failing law students. It is about small differences adding up incrementally to a sudden plummet in bar passage rates. If I'm right, I don't think the solution is anything that law schools can undertake on their own. Malcolm Gladwell's conclusion is that Canada is missing out on a lot of hockey talent by benching players born after July. I think the legal profession (and thus society) will miss out on a lot of untapped legal talent if we don't continue to find a way to train the students who have the drive, the grit and the commitment, but not the preparation, for law school. As I indicated in the previous post in the series, I don't think the legal profession or our society as a whole benefits from excluding the students whose pre-law-school predictors suggest that they will struggle to pass the bar examination the first time they take it. After all, while January and February produce more NHL hockey players than any other month, on average, according to Quanthockey.com, they are not the best. The January players score an average of 105.4 points over their NHL careers. October payers score an average of 128.3, and December players best them all at 138.8!
*Gladwell might be wrong about Canadian hockey players. He has his critics but also his supporters.
November 30, 2015 in Commentary, Teaching | Permalink | Comments (4)
Sunday, November 29, 2015
Exciting Changes to Your ContractsProf Blog Team
As you perhaps know, Jeremy Telman wishes to stop blogging for the ContractsProf Blog after around a decade of doing so. He is posting a small series of farewell posts these days, but will not blog anymore after the end of the semester. We wish him very well in his diverse future professional efforts.
I have promised to take over as the lead editor of the ContractsProf Blog. I have big shoes to fill after Jeremy’s departure, but will try my very best to post as many timely, thought-provoking and, hopefully, quirky posts as possible. As you may have noticed, I tend to like to focus on issues that relate to consumer problems, environmental matters, and the new economy. I also plan to incorporate a global angle when I come across relevant material.
Additionally, I am building up and continuing a great team of co-bloggers. First, Nancy Kim, Jeffrey Harrison and Michael Malloy will continue blogging when they can. I am also welcoming new bloggers Stacey Lantagne and Mark Burge. Over the next few days, they will introduce themselves directly online.
Happy end of the semester!
November 29, 2015 in About this Blog | Permalink
Wednesday, November 25, 2015
New in Print
Michael S. Barr, Mandatory Arbitration in Consumer Finance and Investor Contracts, 11 N.Y.U. J. L. & Bus. 793 (2015)
Richard A. Epstein, The Upside-Down Law of Property and Contract: Of Fannie Mae, Freddie Mac, and San Jose Pensions, 93 Neb. L. Rev. 869 (2015)
Bradford Stone, Contracts for the International Sale of Goods: The Convention and the Code, 23 Mich. St. Int'l. L. Rev. 753 (2015)
Mark Strasser, Traditional Surrogacy Contracts, Partial Enforcement, and the Challenge for Family Law, 19 J. Health Care L. & Pol'y 85 (2015)
Frank Sullivan, Jr., Banking Business and Contract Law, 48 Ind. L. Rev. 1195 (2015)
Erich A. Zacks: Contract Review: Cognitive Bias, Moral Hazard, and Situational Pressure, 9 Ohio St. Entrepreneurial Bus. L.J. 379 (2015)
November 25, 2015 in Recent Scholarship | Permalink
Tuesday, November 24, 2015
Weekly Top Tens from the Social Science Research Network
SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS
SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS
| Rank | Downloads | Paper Title |
|---|---|---|
| 1 | 171 | Defective Arbitration Clauses: An Overview Badrinath Srinivasan Independent |
| 2 | 165 | The Continuing Evolution of U.S. Judgments Recognition Law Ronald A. Brand University of Pittsburgh - School of Law |
| 3 | 131 | Contract Law: A Comparative Introduction, Chapter 1 Jan M. Smits Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) |
| 4 | 107 | Contract Theory and EU Contract Law Martijn W. Hesselink University of Amsterdam - Centre for the Study of European Contract Law (CSECL) |
| 5 | 87 | The Challenges of Private Law Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law Date posted to database: 14 Nov 2015 Last Revised: 14 Nov 2015 |
| 6 | 76 | Stephen A Smith on Duties and Liabilities Nicholas McBride University of Cambridge - Faculty of Law |
| 7 | 64 | The State of the Law of Unjust Enrichment in Common Law Canada Lionel Smith McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law |
| 8 | 58 | Supreme Disgorgement Caprice L. Roberts Savannah Law School |
| 9 | 56 | Restoring Freedom of Contract between Doctor and Patient in Medicare Part B David Bernstein George Mason University School of Law |
| 10 | 52 | Dodging Windfalls: Damages Based on Market Price, Actual Loss, and Appropriate Awards John Y. Gotanda Villanova University School of Law |
November 24, 2015 in Recent Scholarship | Permalink
Monday, November 23, 2015
Farewell Post III: Misplaced Anger
A lot of people are angry at the legal academy. They are angry about falling bar passage rates and limited career opportunities. They are angry that law schools do not do enough to prepare them for the bar or for practice and that tuition is too high given what traditional legal education can accomplish. The anger, to the extent that it comes from law graduates who worked hard and still cannot find satisfying work as attorneys, is understandable. Directing that anger at law professors is also understandable but in most cases unjustified.
We did not create the market conditions. We, for the most part, are not even the architects of the policies that determine admissions standards or tuition. We are very limited in the extent to which we can innovate because we are subject to ABA educational guidelines that increasingly (and often unhelpfully) micro-manage our operations. Almost every innovation that would improve legal education would also make legal education more expensive.
I want to outline two arguments in this post. First, legal academics and administrators at unranked law schools are people of good will who are trying to continue to serve people who ardently aspire to become attorneys. Second, the legal profession is also full of people of good will, but collectively the legal profession is behaving as professions always do in times of economic contraction: they are raising barriers to entry so as to protect their incomes and their self-created monopoly in the provision of specialized services.
What is going on at unranked law schools is pretty simple. For decades, such law schools accepted students who, for the most part, could not have gotten in to more highly-ranked law schools. For decades, the overwhelming majority of such students went on to pass the bar and enter the legal profession. As Michael Simkovic and Frank McIntyre have shown, those students are financially better off for having done so, and without the lower-ranked schools, they never would have had the careers they now have. Unranked law schools started dipping deeper into the applicant pool when that pool shrunk considerably in size, believing that they had the ability to identify students who could succeed in law school and in the legal profession and that they could address the needs of the academically underprepared with beefed-up academic success programs and curricula more geared towards bar preparation.
Evidence is mounting that law schools were overly sanguine about their ability to help students in the bottom quartile of the national LSAT pool. But evidence is also beginning to suggest that the pool has bottomed out and begun to grow again. That should mean that unranked law schools that are competing for students may have a larger pool of students to compete over, and so long as schools learn their lesson and keep growth and costs down, that should mean that they can begin to increase their admissions standards back towards where they were a decade ago. In five years, the crisis may well have passed and the law schools over which the sword of Damocles currently hangs will be crowing about gaudy bar passage and employment rates.
This result is far preferable to shutting down existing law schools. Right now, we have overcapacity, but it law schools disappear, they are unlikely to reappear. And if, as seems likely, the law schools that close are the unranked law schools, the losses will hit underserved communities the hardest. I will have more to say about who those communities are and why keeping them out of the legal profession is a big problem in the next post in this series.
The ABA is the guardian of our profession. What do professions and professional organizations do? Following Magali Sarfatti Larson, we can conceive of the legal profession as a group of trained experts attempting to establish a monopoly over a market in services. The key to control over a market for professionals becomes control over the production of producers. By limiting the supply of credentialed practitioners, professionals assure themselves a favorable bargaining position in the market for their knowledge and services. (Magali Sarfatti Larson, The Rise of the Professions: A Sociological Analysis 29-30 (1977)). As Larson points out, professions do not so much meet existing needs as shape or channel the needs of consumers (id. at 58). In order for a profession to succeed, it needs to convince the members of society as a whole that its services are necessary and that only people with a certain kind of expertise and credentialing are qualified to provide such services.
And so, when the going gets tough, barriers to entry rise. Recent trends of (often steeply) lower bar passage rates and the steady drumbeat calling for greater scrutiny of law schools viewed as underperforming are consistent with how Larson's model predicts professional organizations will respond to economic pressures. But it also threatens to add a new and ugly chapter to the history of the ABA.
Many have written about the racist bias underlying the establishment of the ABA (e.g., Daria Roithmyer, Deconstructing the Distinction between Bias and Merit, 85 Cal. L. Rev. 1449, 1476 (1997)). I do not think there is any such intentional bias at work today, but the organizations so eager to mete out death sentences to law schools that serve underrepresented minorities and the academically underprivileged need to think about what the legal profession will look like in 2025 if their wishes all come true.
November 23, 2015 in About this Blog, Commentary, Teaching | Permalink
Saturday, November 21, 2015
Consent Agreement on Embryo Destruction a Legally Binding Contract
A California Superior Court Judge has ruled that a consent agreement between spouses about what to do with frozen embryos in case of divorce has the effect of a legally binding contract. This was the first such ruling in California. The case is In re the Marriage of Stephen E. Findley and Mimi C. Lee.
Shortly before Dr. Lee and Mr. Findley were married in 2010, Dr. Lee discovered that she had cancer. The couple decided to create and store embryos to preserve their chances of having a child. Shortly after the marriage, the couple signed a consent decree stating that the embryos were to be destroyed if the couple divorced. They marriage went downhill and ended in an acrimonious divorce in 2015.
Dr. Lee, however, argued for her right to keep the embryos. She argued that because of her age – she is 46 – the embryos are her only chance of having a child on her own. She testified that she considered the fertility clinic agreement a mere consent form and that she thought she could change her mind about it later on.
Judge Anne-Christine Massullo found that a consent agreement is a legally binding contract. It must be upheld in order to render certainty to IVF clinics and individuals who undergo IVT treatment regarding their dispositional choices before embryos are created. Said the judge about holding IVT agreements to be mere contracts: “It is a disturbing consequence of modern biological technology that the fate of … embryos … must be determined in a court by reference to cold legal principles.” That may be a valid concern, but equally important is, undoubtedly, the rights and concerns of both marital parties.
Consider this as well: Dr. Lee had offered her ex-husband to waive child support if he would let her use the embryos. However, such a promise is meaningless in California where such an agreement cannot be enforced. In contrast, Mr. Findley testified that Dr. Lee had once asked him “how much money the embryos were worth to him” and indicated that she could turn a possible child against him in the future. The court found “well founded” Mr. Findley’s belief that Lee would use any child born of the embryos as a money extortion device. Said the judge: “Mr. Findley should be free from court compelled fatherhood and the uncertainties it would bring.”
In this case, these included potential extortion by a highly educated woman – an anesthesiologist - who seems able consider her potential children to be not only objects of affection, but also vehicles for a monetary reward. Mr. Findley testified that he would like to have children some day, just not with Dr. Lee. Wise decision, it seems, and one that the court equally wisely supported, even though it had to resort to “cold legal principles.”
11/21/2015
Consent Agreement on Embryo Destruction a Legally Binding Contract
A California Superior Court Judge has ruled that a consent agreement between spouses about what to do with frozen embryos in case of divorce has the effect of a legally binding contract. This was the first such ruling in California. The case is In re the Marriage of Stephen E. Findley and Mimi C. Lee, Case No. FDI-13-780539, http://www.sfsuperiorcourt.org/sites/default/files/pdfs/FINDLEY_Statement_Of_Decision%20Rev_1.pdf
Shortly before Dr. Lee and Mr. Findley were married in 2010, Dr. Lee discovered that she had cancer. The couple decided to create and store embryos to preserve their chances of having a child. Shortly after the marriage, the couple signed a consent decree stating that the embryos were to be destroyed if the couple divorced. They marriage went downhill and ended in an acrimonious divorce in 2015.
Dr. Lee, however, argued for her right to keep the embryos. She argued that because of her age – she is 46 – the embryos are her only chance of having a child on her own. She testified that she considered the fertility clinic agreement a mere consent form and that she thought she could change her mind about it later on.
Judge Anne-Christine Massullo found that a consent agreement is a legally binding contract. It must be upheld in order to render certainty to IVF clinics and individuals who undergo IVT treatment regarding their dispositional choices before embryos are created. Said the judge about holding IVT agreements to be mere contracts: “It is a disturbing consequence of modern biological technology that the fate of … embryos … must be determined in a court by reference to cold legal principles.” That may be a valid concern, but equally important is, undoubtedly, the rights and concerns of both marital parties.
Consider this as well: Dr. Lee had offered her ex-husband to waive child support if he would let her use the embryos. However, such a promise is meaningless in California where such an agreement cannot be enforced. In contrast, Mr. Findley testified that Dr. Lee had once asked him “how much money the embryos were worth to him” and indicated that she could turn a possible child against him in the future. The court found “well founded” Mr. Findley’s belief that Lee would use any child born of the embryos as a money extortion device. Said the judge: “Mr. Findley should be free from court compelled fatherhood and the uncertainties it would bring.”
In this case, these included potential extortion by a highly educated woman – an anesthesiologist - who seems able consider her potential children to be not only objects of affection, but also vehicles for a monetary reward. Mr. Findley testified that he would like to have children some day, just not with Dr. Lee. Wise decision, it seems, and one that the court equally wisely supported, even though it had to resort to “cold legal principles.”
November 21, 2015 in Current Affairs, Science, True Contracts | Permalink | Comments (0)
Friday, November 20, 2015
The High Price of an Unenforceable Agreement to Agree
The law firm of Andrews Kurth was recently hit with a nearly $200million dollar judgment for malpractice. Yes, that's right - nearly 200 MILLION dollars. At the bottom of this - an agreement which was deemed unenforceable as an "agreement to agree." As reported by Law 360 (which requires registration - apologies), the malpractice suit stemmed from representation in a dispute involving a family business, Martin Resource Management. Two brothers, Scott and Ruben Martin, were fighting over management issues until their mother stepped in to broker a deal. Andrews Kurth represented Scott Martin and sought changes to the deal to ensure its enforceability. Scott ended up suing Ruben to force him to comply with the terms of the settlement; however, the appeals court ruled that the settlement agreement revised by Andrews Kurth was unenforceable as an "agreement to agree." Many lawsuits ensued resulting in this incredibly large jury award.
Unfortunately, I couldn't get a copy of the actual agreement that was at issue - I would really like to see what the language looked like...
November 20, 2015 in Commentary, In the News | Permalink | Comments (0)
New in Print
Piotr Bogdanowicz, Cross-Border Interest and Concession Contracts: A Critical Approach, 10 Eur. Procurement & Public Private P'ship L. Rev. 83 (2015)
Aaron E. Ghirardelli, Rules of Engagement in the Conflict between Businesses and Consumers in Online Contracts, 93 Or. L. Rev. 719 (2015)
Lori D. Johnson, Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices, 65 Syr. L. Rev. 451 (2015)
November 20, 2015 in Recent Scholarship | Permalink
Thursday, November 19, 2015
Numismatic Information is Worth How Much?!
Serious coin collectors still exist. Very serious ones.
In a recent case before the Ninth Circuit Court of Appeals, an individual expert coin collector had offered to sell his knowledge regarding a “Brasher Doubloon” to a rare coin wholesale company for $500,000. A Brasher Doubloon is a $15 dollar coin minted by goldsmith Ephraim Brasher in late eighteenth-century New York. These rare coins are extremely valuable today. (The case is Swoger v. Rare Coin Wholesalers, 803 F.3d 1045 (Ninth Cir. 2015).
The parties met at a trade show to further discuss the coin collector’s theory that the coin in question was “the first United States coin issued for circulation … under authority of an Act of Congress.” The Act in question was “An Act Regulating Foreign Coins, and For Other Purposes,” chapter 5, 1 Stat. 300 (1793). The Act provided that certain “foreign gold and silver coins shall pass current as money within the United States, and be a legal tender for the payment of all debts and demands.” The Act also specified which countries’ coins qualified, how much the coins were required to weigh, etc.
The coin collector believed the coin to qualify under this provision because Spanish and Spanish colonial coins qualified at 27.4
grains per dollar. By analogy, the expert thought, that would require a Brasher Doubloon to weigh 411 grains. The coin collector reasoned that because the coin in question weighed 410.5 grains (oh, so close), it must have been minted pursuant to the Act. The wholesale coin company, however, refused to pay the collector for his information, not believing it proved that the coin really was minted “pursuant to the Act.” The expert brought suit, alleging fraud, breach of contract, and asserting damages under a theory of quantum meruit, among other things.
The appellate court found that the collector could not recover because he did not provide the information required under the contract. The Act, said the court, pertains to foreign coins only, not American ones.
Appellant also asserted a new theory on appeal: that because the coin was struck to “conform” to the weight in the Act for Spanish coins, it was used in commerce; in other words, “passed current as money” under the Act. That argument got swift treatment as well: the collector had promised information showing that the coin was, under a Congressional Act, legal tender, not that it was merely used as such by members of society.
As always, exact statutory reading is key, even in today’s contractual disputes.
November 19, 2015 in Labor Contracts, Legislation, Miscellaneous, True Contracts | Permalink | Comments (0)
Wednesday, November 18, 2015
Farewell Post II: Still Crazy About Blogging after All These Years
I'm not stopping because I'm burned out. I still love blogging, and I wouldn't be surprised if, after a hiatus, I want to come back to blogging in some form. I'm stopping because I think I've maxed out on the benefits I can derive for myself and my law school from this enterprise, and it is time for me to find new ways to contribute. Also, look how blogging has aged me, as evidenced in these photographs of me taken before I started blogging (left) and after (right).
Moving on feels especially urgent given what is going on in the legal academy and in unranked law schools like mine in particular. Posts III and IV in this series will elaborate on that subject. Given the challenges that my current students face and that I face in teaching them, I am contemplating a complete re-tooling of my approach to teaching contracts. I have requested a year off from teaching contracts next year so that I can teach a couple of legal writing/legal reasoning courses and get better insights into where my students are at in those areas when they get to law school. I also need to learn from my skills-training colleagues so that I can better incorporate skills training into doctrinal teaching when I go back to teaching contracts, as I very much hope to do.
At the same time, at age 52, I am beginning to think about what remains of my career as an academic and what sort of an impact I think I can have in the 10-15 years that remain to me as an active scholar and teacher. It is already clear to me that my most important impact is going to be in the classroom. Although I would like to think that I have original ideas and can contribute to an academic debate that can move the law or inform policy decisions, the likelihood of that is small, as it is for most of us mortals. Still, perhaps out of vanity, I have three book projects that I think will keep me occupied into my sixties. One is an edited collection on Hans Kelsen, which is under contract and which I hope will come out next year. The second is an intellectual history of originalism in constitutional adjudication, as a judicial practice, an academic approach and a popular movement. The third will be on theories of public international law, I have a typology of public international law theories that I use in presenting the material to my students. I've always wished there were a book that did this the way it needs to be done. Oona Hathaway and Harold Koh edit a collection which is very useful, but for some reason they have not decided to organize the material the way I organize it. I'm kidding. My organization is unique, and I will only know if it makes sense once the book is well underway. So, I have assigned myself the task of writing that book.
None of these projects relates to contracts law, and so the prospects for me returning to contracts scholarship before retirement are remote. I expect that I will continue to follow the blog, use it as a resource, refer students to it, and feel pride that I contributed to it for nearly a decade. But I need to allocate my dwindling intellectual energies elsewhere. Producing a book every five years is something I think I can still handle while focusing on Job 1, which is helping my students pass the bar and prepare for their legal careers.
November 18, 2015 in About this Blog, Commentary, Teaching | Permalink | Comments (0)
Tuesday, November 17, 2015
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 | 559 | An Overview of Privacy Law Daniel J. Solove and Paul M. Schwartz George Washington University Law School and University of California, Berkeley - School of Law |
| 2 | 167 | Defective Arbitration Clauses: An Overview Badrinath Srinivasan Independent |
| 3 | 120 | Contract Law: A Comparative Introduction, Chapter 1 Jan M. Smits Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) |
| 4 | 112 | Presumed Undue Influence: The False Partition from Fiduciary Accountability Robert Flannigan University of Saskatchewan |
| 5 | 111 | Contract Theory and the Economics of Contract Law Klaus Ulrich Schmolke University of Erlangen-Nuremberg - Law School |
| 6 | 98 | Contract Theory and EU Contract Law Martijn W. Hesselink University of Amsterdam - Centre for the Study of European Contract Law (CSECL) |
| 7 | 98 | Legal Transplants in the Law of the Deal: M&A Agreements in India Afra Afsharipour University of California, Davis - School of Law |
| 8 | 79 | Remedial Clauses: The Over-Privatization of Private Law Seana Shiffrin University of California, Los Angeles (UCLA) - School of Law |
| 9 | 73 | A Complainant-Oriented Approach to Unconscionability and Contract Law Nicolas Cornell Legal Studies & Business Ethics Department, The Wharton School, University of Pennsylvania |
| 10 | 69 | Deceptive Advertising and Taking Responsibility for Others Seana Shiffrin University of California, Los Angeles (UCLA) - School of Law |
SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS
| Rank | Downloads | Paper Title |
|---|---|---|
| 1 | 167 | Defective Arbitration Clauses: An Overview Badrinath Srinivasan Independent |
| 2 | 164 | The Continuing Evolution of U.S. Judgments Recognition Law Ronald A. Brand University of Pittsburgh - School of Law |
| 3 | 120 | Contract Law: A Comparative Introduction, Chapter 1 Jan M. Smits Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) |
| 4 | 111 | Contract Theory and the Economics of Contract Law Klaus Ulrich Schmolke University of Erlangen-Nuremberg - Law School |
| 5 | 98 | Contract Theory and EU Contract Law Martijn W. Hesselink University of Amsterdam - Centre for the Study of European Contract Law (CSECL) |
| 6 | 79 | Remedial Clauses: The Over-Privatization of Private Law Seana Shiffrin University of California, Los Angeles (UCLA) - School of Law |
| 7 | 75 | Stephen A Smith on Duties and Liabilities Nicholas McBride University of Cambridge - Faculty of Law |
| 8 | 73 | A Complainant-Oriented Approach to Unconscionability and Contract Law Nicolas Cornell Legal Studies & Business Ethics Department, The Wharton School, University of Pennsylvania |
| 9 | 67 | The Challenges of Private Law Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law |
| 10 | 64 | The State of the Law of Unjust Enrichment in Common Law Canada Lionel Smith McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law |
November 17, 2015 in Recent Scholarship | Permalink
Monday, November 16, 2015
Farewell Post I: Why Junior Faculty Members Should Blog
I have told my co-bloggers and the Blog Emperor that I intend to step down from the blog at the end of the semester. I am leaving things in good hands. Nancy Kim will continue as a contributing editor, and Myanna Dellinger has agreed to step up as editor. I hope that this post will aid Myanna in her efforts to attract new contributors. The more different voices we feature on the blog, the more we can attract new readers and move others from occasional to habitual readers.
Before I go, I have a few things to get off my chest, and I will do so in a final series of posts.
First come the thanks (and they will come again at the end). Nearly ten years ago, I sent a Limerick to Frank Snyder (pictured) and asked him if he would be interested in posting it on this blog. He responded by inviting me to become a regular contributor. He showed me the ropes and roped me in to the contracts law community, and for that service, I owe him continual thanks, as the benefits continue to accrue. While on the blog, I have had many great colleagues, who have helped keep the blog going and added new and interesting perspectives. Two such colleagues, Nancy Kim and Meredith Miller, merit special thanks because of their long tenure on the blog and because their contributions moved the blog in new directions, both scholarly and quirky, that expanded our readership in ways we could not otherwise have done. Both served me as sounding boards both in my contracts scholarship and in connection with issues that arose on occasion relating to the blog. It is a bit odd to describe as friends people you have only spoken with face-to-face on a handful of occasions. Yet, in unreflective moments, when I confess that I like to go to the International Conferences on Contracts because I get to see my friends there, I have Frank, Meredith and Nancy (and others) in mind.
Which brings me to the second subject I want to tackle in this post. When I started blogging, I was untenured, and there were a few articles circulating (as well as many more blog posts) suggesting that it might not be a great idea for junior faculty members to blog. The main concern was that blogging would interfere with serious scholarship. Based on my own experience, I think this is nonsense. Blogging can certainly spur scholarship, but I have never been much of a contracts scholar (with the exception of my forthcoming article so-authored with Nancy Kim, my publications tend not to be about contracts). But blogging also is scholarship, and it is scholarship that is much, much, much more widely read than are law review articles. This blog gets about 300 unique visitors A DAY. I think I am doing well if one of my articles gets to 300 downloads TOTAL on SSRN.
And my posts on this blog have been cited in law review articles. It doesn't happen all that often, but when it does, it is always for the unique substance of the blog post. My law review articles are sometimes cited for that purpose, but probably more often, my law review articles are cited for some proposition that the author could have found in ten other law review articles.
But the benefits of blogging to a junior faculty member can also lie elsewhere. Blogging has certainly kept me on top of new developments in a field in which I teach. But beyond that, blogging has helped me establish connections with contracts professors throughout the country and sometimes even internationally. Through our online symposia, I have gotten to work with contracts scholars who are doing the most exciting work in the field. I hope for better and not for worse, I am known as a contracts professor in ways that I think other contracts professors at "unranked" law schools generally are not, and I expect that my being known (for better and not for worse) also redounds to the benefit of my law school. By way of contrast, I am not equally well known in the field of international law, although that is where I do most of my writing, and in the community of American scholars who work on Hans Kelsen . . . . Just joking, all six of them know me.
On the more personal and less professional level, I have had innumerable, rewarding conversations with contracts professors at various conference and gatherings. Often, these conversations begin with something like, "I saw your post about . . . ." or "Oh yes, I know you from the blog . . . " We academics are awkward people. The blog provides a ready ice-breaker, and so I have the blog to thank for providing the gateway to many rewarding exchanges.
For years, I have introduced myself to students as "the editor of the ContractsProf Blog, the official blog of the AALS Section on Contracts." As I look out at their impassive faces, I tell them that they have now heard my best pick-up line. I love the joke, especially since I don't know what it means to be the official blog of the AALS Section on Contracts. I also love it because I think my students think it might be an impressive thing but also that my joking about suggests that I don't take myself too seriously.
They are dead wrong about that. When my teenage daughter gets too sassy, I remind her that I am a famous contracts professor. I sign various school forms "D. A. Jeremy Telman, FCP," and I explain that FCP stands for famous contracts professor. "Dad," my daughter groans, "you are not a famous contracts professor." "Oh yeah?" I counter. "Can you name one who is more famous?"
She cannot, and now I have a plaque (Fathers' Day 2015) to prove it!
November 16, 2015 in About this Blog, Commentary, Teaching | Permalink | Comments (0)
Friday, November 13, 2015
Airline Change Fees
A few days ago, the Los Angeles Times published an article on airline change fees. At bottom, the article asked whether customers are entitled to a refund of their tickets if they discover that the price has been dropped for the route and time in question so that they can buy the cheaper fare. Most of us probably buy the cheapest form of tickets, i.e. “nonrefundable” ones. For those, the answer lies in the name: they are simply not refundable. Under Department of Transportation rules, however, airfare is fully refundable within 24 hours of making the purchase.
The article misses an important legal issue, namely whether it is unconscionable that airlines typically charge $200-$300 dollars in change fees plus any increase in the actual price (and as we all know, when the departure time approaches, prices typically go up). To the best of my knowledge, only Southwest Airlines does not charge any change fees. Kudos to them for that.
Unconscionability requires the familiar inquiry into whether the substance of the contract is oppressively one-sided and whether the complaining party had any meaningful choice when entering into the contract. In my opinion, such steep change fees are unconscionable, at least in cases where customers change for a reason other than simply trying to get a refund in cases of cheaper fares. Because apparently all airlines other than Southwest charge these high change fees for economy-class, no-frills tickets, and because it is not always possible to fly Southwest Airlines (they only fly to certain locations, most of them within the United States), customers in effect have no choice in avoiding such fees if they have to change the tickets. Often, tickets have to be bought months ahead of time to either get the best prices and/or to get the desired departure dates and times. In today’s ever-changing work environment, many people may have to change their tickets for valid work-related reasons, not to mention changing private circumstances. If that is the case, one may simply have to give up an existing ticket as the rules are today since buying a new one may well be cheaper than trying to change the existing one. And while it is possible to get insurance for illness-related cancellations, travel insurance covering work reasons typically only covers changes in employment and the like and thus not changes required by changed circumstances one’s current position, even though those may be outside one’s control.
Substantively, it seems uniquely and highly oppressively one-sided for airlines to charge hundreds of dollars for a change that a customer can, with a few clicks on a secure website, implement in minutes himself/herself. Even if the airline had to have an actual person make the change (and those days seem gone), that person would similarly only require minutes, if not only seconds, to do so.
Until someone challenges the airlines on this account, they seem intent on continuing this profit-increasing device. As Hans Christian Anderson said: “To travel is to live.” For now, it seems that we have to live with not being able to change our airline tickets once purchased.
November 13, 2015 in Current Affairs, E-commerce, Travel, True Contracts | Permalink | Comments (0)
University of Illinois Settles Its Case with Steven Salaita
We have reported on this case numerous times, and the ordeal is finally over. Here is our overview of the dispute from last year:
The very short version of the story, as best I can cobble it together from blog posts, is that the University of Illinois offered a position in its American Indian Studies program to Steven Salaita, who had previously been teaching at Virginia Tech. According to this article in the Chicago Tribune, the U of I sent Professor Salaita an offer letter, which he signed and returned in October 2013. Professor Salaita was informed that his appointment was subject to approval by the U of I's Board of Trustees, but everyone understood that to be pro forma. In August 2014, Salaita the U of I Chancellor notified Professor Salaita that his appointment would not be presented to the Board and that he was no longer a candidate for a position. According to the Tribune, the Board next meets in September, after Professor Salaita's employment would have begun. The Chancellor apparently decided not to present Professor Salaita's contract for approval because of his extensive tweets on the Isreali-Palestinian conflict, which may or may not be anti-Semitic, depending on how one reads them.
As reported here in Inside Higher Ed, the University of Illinois has agreed to pay Steven Salaita $875,000. The University has now severed all ties with Professor Salaita who will not teach there.
November 13, 2015 in In the News, True Contracts | Permalink | Comments (0)
Jessica Silver-Greenberg on NPR's Fresh Air
Last week, we noted a series of articles in The New York Times about mandatory arbitration and class action waivers in consumer and employment contracts. The reporter behind those stories did an interview on NPR's Fresh Air. You can listen and read it here.
Hat tip to my student Marla Gee.
November 13, 2015 in In the News | Permalink | Comments (0)
Thursday, November 12, 2015
Library Fines, Oliver Wendell Holmes and Libertarian Paternalism
In The Path of the Law, Holmes wrote that “[t]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,—and nothing else.”
I was thinking of that dictum this morning as I renewed an overdue library book (on CD, to be honest). The librarian graciously renewed the item but noted that I owe a five cent fine because I renewed one day late. I threw a hissy fit. Yesterday was Veterans Day! The library was closed. How could I renew when the library was closed?!? I'm a poor law professor on a very fixed income! Have you no sense of decency, sir, at long last? Have you left no sense of decency?
No, I didn't.
My public library seems to understand that there is no moral opprobrium associated with a breach of this kind of implied promise. Since I became addicted to listening to books on CD in the car, I have borrowed well over 100 such books from my public library. Almost invariably, I have to renew them, as it takes me more than two weeks to finish them. Only once have I had to return a book that I wanted to renew because it had been requested by another reader (listener). My delict is de minimis and likely harms nobody.
But here's the rub. I used to always return/renew my library materials on time. But a few times I've held on to the items a few extra days so that I could finish them and make just one trip to the library to renew and pick out a new book. That saves me time, which I value more than the five cents a day. Still I feel a bit guilty about this new habit (that's why I am busy rationalizing my behavior), and I wish my library would charge me $1/day for overdue books. I can afford it, but it would hurt enough to nudge me into being a better citizen.
November 12, 2015 in Commentary, Teaching, True Contracts | Permalink | Comments (2)
Wednesday, November 11, 2015
Arbitrating Rape
Must a rape be arbitrated if an employment contract calls for “any and all disputes” to be resolved by arbitration?
Thankfully not, at least in Ohio, according to a recent Court of Appeals decision (Arnold v. Burger King, No. 101465, 2015 WL 6549138).
When Ms. Arnold obtained employment with a Burger King franchisee, she signed a contract that, among other things, provided as follows:
Under this arbitration program, which is mandatory, Carrols [the franchisee] and you agree that any and all disputes, claims or controversies for monetary or equitable relief arising out of or relating to your employment, even disputes, claims, or controversies relating to events occurring outside the scope of your employment (“Claims”), shall be arbitrated before JAMS, a nation arbitration association.
Ms. Arnold alleged that she was harassed and sexually abused over an extended period of time by her supervisor who, among other things, forced Ms. Arnold to perform oral sex on him in the men’s restroom at the restaurant during working hours. Ms. Arnold brought suit, claiming sexual harassment; respondeat superior/negligent retention; emotional distress; assault; intentional tort, and employment discrimination. The franchisee sought to compel arbitration, arguing that Arnold's claims were subject to arbitration under the mandatory arbitration agreement because they “arose out of Arnold's employment.” (That’s right: the company wanted JAMS to resolve a serious rape case…) Ms. Arnold answered that her claims fell outside the scope of the arbitration agreement and that the agreement was, furthermore, unenforceable because it was unconscionable.
The court agreed with Ms. Arnold. “When claims may be independently maintained without reference to the contract or relationship at issue,” they do not have to be arbitrated. CITE. Clearly, a civil complaint can be brought for sexual assaults and harassment even without the existence of a contract. “Arnold's claims relating to and arising from the sexual assault exist independent of the employment relationship as they may be maintained without reference to the contract or relationship at issue.” Ms. Arnold thus did not have to arbitrate the claims for that reason alone.
As for unconscionability, the court found the agreement to be procedurally unconscionable because Arnold, a previously unemployed entry-level employee, signed the agreement, drafted by the employer, when it was presented to her as a condition for hiring her. “As for Arnold's bargaining power, the choice was either sign it or remain unemployed. There is no evidence that Arnold could alter any of its terms.” The court found the agreement substantively unconscionable as it sought to include “every possible situation that might arise in an employee's life” and because it failed to set forth the potentially high costs of arbitration.
What makes this case even more stunning is the fact that the franchisee was aware of the very troubled employment environment at its restaurants. This led to several other sexual harassment charges, including sexual assault allegations, filed by the EEOC and which were ongoing for more than a decade. One might have hoped that an employer such as this would want stricter measures, and not arguably more lenient ones, against those of its employees that have violated norms and rules of appropriate workplace behavior to signal that such behavior is unacceptable in 2015. Apparently, in at least some geographical and socio-economic locations, that is too much to hope for.
November 11, 2015 in Labor Contracts, True Contracts | Permalink | Comments (0)
Tuesday, November 10, 2015
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 | 538 | An Overview of Privacy Law Daniel J. Solove and Paul M. Schwartz George Washington University Law School and University of California, Berkeley - School of Law |
| 2 | 280 | Efficiencies and Regulatory Shortcuts: How Should We Regulate Companies like Airbnb and Uber? Benjamin G. Edelman and Damien Geradin Harvard University - HBS Negotiations, Organizations and Markets Unit and George Mason University School of LawTilburg University - Tilburg Law and Economics Center (TILEC) |
| 3 | 158 | Defective Arbitration Clauses: An Overview Badrinath Srinivasan Independent |
| 4 | 108 | Contract Theory and the Economics of Contract Law Klaus Ulrich Schmolke University of Erlangen-Nuremberg - Law School |
| 5 | 108 | Contract Law: A Comparative Introduction, Chapter 1 Jan M. Smits Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) |
| 6 | 97 | Good Faith in English Contract Law: A 'Contagious Disease of Alien Origin' Andre Sinanan Independent |
| 7 | 89 | Bailment and the Property/Contract Interface Christopher M. Newman George Mason University School of Law |
| 8 | 86 | Contract Theory and EU Contract Law Martijn W. Hesselink University of Amsterdam - Centre for the Study of European Contract Law (CSECL) |
| 9 | 76 | Superdelegation and Gatekeeping in Bankruptcy Courts Melissa B. Jacoby University of North Carolina (UNC) at Chapel Hill - School of Law |
| 10 | 72 | Remedial Clauses: The Over-Privatization of Private Law Seana Shiffrin University of California, Los Angeles (UCLA) - School of Law |
SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS
November 10, 2015 in Recent Scholarship | Permalink
Monday, November 9, 2015
Is Steve Irwin Really Dead?
California takes its laws against minors contracting seriously. Very seriously. Dancing with the Stars favorite Bindi Irwin, daughter of “Crocodile Hunter” Steve Irwin, must prove that her father was really killed in 2006 in order for her to get the earnings from the popular dancing show. So far, Bindi Irwin has allegedly presented “insufficient proof” that her father has waived those earnings. This despite worldwide shock that the beloved wildlife TV show stars was killed in a freak accident by a stingray in 2006.
California law requires underage entertainers to get court approval of their contracts to avoid the rampant abuses of minors in the industry of yesteryear. Parents of minors must now sign a quitclaim waiving any rights to the child's earnings. Bindi's mother, Teri, has already signed, but Steve has not, for obvious reasons.
The show’s owners, BBC Worldwide, is working with the court to work out the situation.
Under her contract with BBC, Bindi earns a guaranteed salary of $125,000 as well as weekly sweeteners for each week she stays on the show. So far, Bindi has done very well, even earning top scores one week. The shows airs on Monday nights on ABC.
November 9, 2015 in Celebrity Contracts, In the News, Labor Contracts, Television, True Contracts | Permalink | Comments (0)
Friday, November 6, 2015
The Way We Teach Now
The other day, I had lunch with a friend who is preparing to teach a course for the first time. I asked him how his preparation was going, and he told me that he was reading a book by a law professor on the subject matter of the course. That is a perfectly reasonable way to prepare to teach a course.
But it's not what I do.
After our conversation, it occurred to me that I now increasingly bifurcate my mind between subjects about which I write and subjects that I teach. In cases where I write about what I teach, I read one set of materials for scholarship and another set to prepare for teaching. There is very little overlap.
In order to write scholarship, I read books and law review articles, as well as case law and other relevant primary sources of law. In order to teach, I review the cases I am teaching, as well as the supplementary material that I assign -- usually a treatise or a book from the Examples & Explanations series, (or something similar) and then spend most of the rest of my preparation time designing exercises and reading students' work product. Of course, I have various electronic news feeds that keep me abreast of developments relevant to the fields I teach, but it is rare that developments in the law change my approach to teaching contracts. I still read books and law review articles about contracts in pursuit of a scholarly agenda (and for fun!), but what I read rarely affects the way I present the material.
I spent the evening after my conversation with my friend giving myself a 40-question multiple choice exam on contracts. The questions were provided by a vendor with which my law school has contracted. The vendor provides bar-style questions to help our students review material. I wanted to make certain that the questions were appropriate for my students and that the test-designers understood the material the same way I did. Of the 40 questions, I found that 22 were appropriate for my students, and so I decided to warn them away from just jumping into the quiz bank. Too many of the questions related to sales topics not covered in the first year course or to other topics that I don't get to in a four-credit course. Instead, I edited the 40 questions I reviewed in order to come up with two practice quizzes for my students.
This approach to teaching has become mine through a slow process that I did not notice until I spoke with my friend and then later reflected on how it had struck me as quaint that he was preparing to teach a new course by reading a book of scholarship with a distinctive and unorthodox take on the subject matter. I remember that the doctrinal courses that I took in law school were not just about doctrine; many of my teachers were able to teach me doctrine in the context of a semester-long or year-long sustained argument incorporating overarching themes that my professors used to organize, understand and critique the doctrine. They were not just teaching the law; they were teaching an approach to the law, and they were trusting us to sort things out.
Perhaps I do so as well, and I don't read scholarship in connection with teaching anymore because, twelve years into teaching, I have read enough scholarship on contracts to suffice for a lifetime of 1L teaching. But I think slipping bar passage rates are also a factor in the transformation of my approach to teaching. I worry that introducing critical perspectives and theoretical approaches will confuse more than enlighten. I still encourage students to engage critically with the case law, but I tend to do so by asking them to think about the facts and the law from each party's perspective rather than by encouraging them to question the doctrines.
November 6, 2015 in Commentary, Teaching | Permalink | Comments (1)
