Friday, March 31, 2017
Prison Telephone Service Provider Continues to Lose on Enforcing Arbitration Provision
I have already blogged about a related case out of the Western District of Arkansas, in which the court concluded that prison inmates did not consent to arbitrate when they funded their telephone accounts to enable them to make calls. This case out of the Third Circuit, James v. Global Tellink Corp., No. 16-1555, affirms a similar conclusion by the District of New Jersey. To refresh your memory, GTL provides telephone services to prison inmates. Inmates sign up for accounts and deposit funds into the account, either through GTL's website or through its automated telephone service. When interacting with GTL's automated telephone service, users are alerted that their transactions are governed by the terms of use found online but they are not required to indicate their assent to those terms. Inmates have brought a class action alleging that GTL's charges are unconscionable. GTL moved to compel arbitration based on its online terms of use, but the district court found that those who used GTL's automated telephone service never agreed to be bound by those terms of use.
The Third Circuit agreed with the district court's conclusion. The subject of how to form a binding contract through interactive telephone services was a new and different one, as most of these cases involve websites these days. GTL argued that the inmates manifested the requisite assent by continuing to use the telephone services after being notified there were terms of use. But the inmates never had to perform any affirmative act to indicate their assent, and they were never told that their continued use alone would constitute such assent. None of the inmates in question who used the automated telephone services had ever taken the necessary extra step to access GTL's website to see the terms of use, so they were never presented with the terms of use or the arbitration provision in question. The inmates simply never received the terms, and were never told that use of the telephone system would bind them to the terms.
March 31, 2017 in Current Affairs, Government Contracting, In the News, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)
Thursday, March 30, 2017
Teaching Spotlight: "Reflections on Teaching the First Day of Contracts Class" (Norman Otto Stockmeyer - Western Michigan)
We at ContractsProf Blog love to highlight recent scholarship by our readers, but we are fans of teaching, as well. If you are the author of a recent work of contracts or commercial law scholarship or of teaching-related materials that you have posted on SSRN, send me (Mark Edwin Burge) a copy of your abstract or summary along with an SSRN link, and we may spotlight your work here. Today's spotlight is on an essay by Otto Stockmeyer.
Reflections on Teaching the First Day of Contracts Class
Norman Otto Stockmeyer (Western Michigan University Cooley Law School)
Abstract
A veteran of the law school classroom offers his thoughts on why Contracts is the most significant course in the first-year curriculum, why the study of contract law should begin with the subject of remedies, and why the “hairy hand” case of The Paper Chase fame makes an ideal starting point. The author also shares his first-day advice on how to succeed in law school. Along the way he explains why he prefers a problems-based casebook, opposes use of commercial briefs and outlines, and makes robust use of a course website.
SSRN link: https://ssrn.com/abstract=2927249
March 30, 2017 in Contract Profs, Teaching | Permalink
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March 30, 2017 in Recent Scholarship | Permalink | Comments (0)
Wednesday, March 29, 2017
Everyone Else Is Talking About Healthcare. Why Not Us, Too?
This is a health insurance case, but it's also a case about implied contracts.
In a recent case out of the Eastern District of California, San Joaquin General Hospital v. United Healthcare Insurance Co., No. 2:16-cv-01904-KJM-EFB (behind paywall), the hospital sued the health insurance company after it refused to pay the entirety of the bills the hospital sent to it. The hospital alleged that it had contacted the insurance company to obtain authorizations for the medical services in question and that the insurance company had orally authorized such care. The hospital therefore argued that the two parties had an oral or implied-in-fact contract and the insurance company's refusal to pay the whole bill was a breach of that contract.
The insurance company moved to dismiss the claim but the court disagreed. It found that the complaint alleged the communications I outlined above, and also alleged that the insurance company had paid some of the bill and was refusing to pay the rest. The court found that this partial performance on the part of the insurance company was enough to indicate the presence of an implied-in-fact contract such that the hospital's claim could survive the motion to dismiss.
The hospital also pled a cause of action for quantum meruit, which the insurance company also moved to dismiss, partly on the grounds that the insurance company claimed to receive no benefit from the hospital's actions. The hospital argued in response that it performed services for the insurance company's customers, which thereby benefitted the insurance company. My favorite line of this decision comes during the analysis of this cause of action: "It is plausible on its face that the patients received a benefit from the Hospital's services." Ha. I get why it's phrased that way but it makes me laugh. Maybe. Maybe you got a benefit by being treated for illness or injury by a hospital. Maybe. Seems plausible, at least. Somewhat believable that going to a hospital when ill or injured and receiving services to treat your condition might benefit you in some way.
March 29, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)
Monday, March 27, 2017
Scholarship Spotlight: "Laws as Implied Contract Terms" (Steven W. Feldman - U.S. Army Corps of Engineers)
We at ContractsProf Blog love to highlight recent scholarship by our readers! If you are the author of a recent work of contracts or commercial law scholarship that you have posted on SSRN, send me (Mark Edwin Burge) a copy of your abstract along with an SSRN link, and we may spotlight your work here. Today's spotlight is on a new article by Steven W. Feldman.
Laws as Implied Contract Terms: The Divergent Approaches and a Proposed Solution
University of Pennsylvania, Journal of Business Law, Vol. 19 Issue No. 4, Forthcoming
Steven W. Feldman (U.S. Army Corps of Engineers)
Available at SSRN: https://ssrn.com/abstract=2926643
Abstract
The great majority of state and federal courts accept the common law rule that courts in construing contracts may incorporate relevant, unmentioned laws as implied contract terms. Dating back to the early nineteenth century, this principle of contract construction is said to be a basic legal concept of longstanding and accepted use.
Despite the doctrine’s pervasive theoretical and practical importance as a silent factor in every contract, courts have failed to articulate a consistent, convincing policy and doctrinal rationale. Most courts also have overlooked numerous doctrinal deficiencies, gaps, and contradictions and they have not acknowledged the decisions restricting or even rejecting the precept. Similarly, no commentator has provided an in-depth treatment even though there are nearly 1200 decisions on this topic.
This Article is the first effort in the literature to undertake a comprehensive descriptive and normative analysis of what will be called the “implied incorporation doctrine.” Replete with presumptions and legal fictions, the principle is an uneasy merger of the rules of statutory and contract construction. This problematic melding of statutory and contractual principles is the main reason for the divergent approaches and doctrinal contradictions. After canvassing the key issues surrounding the principle, I will propose a uniform formulation that better maintains the legal and logical differences between laws and contract.
March 27, 2017 in Recent Scholarship | Permalink | Comments (0)
NDAs in the Sexual Assault Context
I've blogged a lot about NDAs on this blog, including in the context of allegations of domestic violence. So when I saw this recent essay on Inside Higher Ed discussing NDAs in the context of sexual assault investigations on university campuses, I thought it would be interesting to link to. Confidentiality provisions show up everywhere, and I think the essay is a thoughtful and important rumination on the effect they can have in some situations.
March 27, 2017 in Commentary, Current Affairs, Law Schools, True Contracts, Weblogs | Permalink | Comments (0)
Friday, March 24, 2017
Contracts read published in Drake Law Review
Abstract
Consent, a powerful concept that lies at the heart of contract law, has received a great amount of scholarly attention. Recently, some contract law scholars have been criticizing consent and suggesting alternative concepts. Contrary to this approach, this Article offers a nuanced description of consent that could pave the way for a better application of consent in contract law. At present, courts ascribe only a narrow meaning to consent, namely, that consent is either informed and freely given, or it is not. However, consent is not simply a “yes or no” question; consent is more complex than such an analysis suggests and can be both gradual and continuous. Rejecting a binary framework which views consent as an on/off concept, this Article asserts that consent is better understood as a spectrum that ranges from “no consent” to “solid consent,” and that contains many gray areas in between. These gray areas include, but are not limited to, hesitation, deliberation, negotiations, mixed feelings and reservations. Further complicating the matter is the fact that consent is often contextual. Consent is shaped by the relationship between the consenter and the consentee. Factors of power, intimacy, trust, arm's length relations and more all differently influence consent. Moreover, consent is socially constructed. Factors such as gender, race and class directly influence the choices and constraints present for both parties in the background of a consensual decision, as do factors such as social context and policy considerations. Consent must be recognized as deriving not only from the individual mindsets of the parties, but also from the relevant public and social circumstances. As such, consent to a prenuptial agreement, consent to an employment agreement and consent to a consumer contract must be recognized as distinct from one another, in that they are shaped by their unique social contexts. By exploring the many shades of consent, this Article may serve as a starting point in the development of a diverse and heterogenic yet useful and practical concept of consent.
Link to download complete article can be found here: http://ssrn.com/abstract=
March 24, 2017 | Permalink
Thursday, March 23, 2017
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March 23, 2017 in Recent Scholarship | Permalink | Comments (0)
Wednesday, March 22, 2017
Robert Brain (Loyola Los Angeles) - KCON Scholarship Spotlight
The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.
A PROPOSAL TO ELIMINATE UCC § 2-315
Robert Brain, Loyola Law School, Los Angeles
It is my contention that UCC § 2-315, the provision on the implied warranty of fitness for a particular purpose, is: (1) unnecessary; and (2) causes more problems than it solves. As such, I believe it should be eliminated from the UCC.
The implied warranty of fitness for a particular purpose is unnecessary because a fitness case is, in truth, an express warranty case and can be analyzed under § 2-312. The only difference from what the Code now recognizes as an express warranty situation and a fitness situation is that the attribute of the good comes initially from the buyer and not the seller. However, in both cases that parties are contracting based on a shared belief that the good has certain, specified (not implied) qualities. This can be seen by the two situations below:
Situation One: A scuba diver walks into a dive shop, looking for a watch that will be waterproof down to 200 feet. She tells the sales associate that she’s looking for a watch for a deep dive. The clerk says, “This one is guaranteed to be watertight down to 200 feet.” She buys the watch.
Situation Two: The same woman walks into the same shop and talks to the same associate. She says, “I’m doing deep diving, and am looking for a dive watch that will stay watertight down to 200 feet.” The associate picks up the same watch as before, and says, “Here you go.” The woman buys the watch.
If the watch starts leaking at 60 feet, under current law, the woman would sue for breach of express warranty under Situation One, but would have to sue for breach of the implied warranty of fitness under Situation Two. The legitimate expectation of the consumer is identical in the two situations and should be analyzed identically. If the words and actions of the associate in Situation Two are taken as affirming the 200 foot watertight attribute initially broached by the buyer, there is no difference between the two. As such, what are now fitness cases could, and should, be analyzed as breaches of express warranty.
Conceptually it is difficult to justify the fitness warranty as an “implied” warranty. In the merchantability cases under § 2-314, it is the attribute of the good – that it is of ordinary quality, for example – that is implied into the transaction. But under § 2-315, the attribute of the good is expressed; what is “implied” is some representation by the seller as to that expresses attribute, but as noted above, the words and actions of the seller can easily be viewed as communicating that the seller is warranting the attribute under existing law. It is an “implied” warranty in the same way we say a contract by conduct is an “implied-in-fact” contract. But we treat implied-in-fact contracts as if they were express contracts, and we should so the same for fitness.
Another issue is that courts have problems determining whether particular cases should be analyzed as a fitness or a merchantability case. For example, suppose the buyer asks for “heavy-duty hiking boots” and suppose the shoes come apart upon their first wearing. Is the proper claim that the boots are not fit as ordinary heavy-duty hiking boots (or even as just boots), or is it a fitness problem because they do not measure up as heavy-duty boots? Courts have struggled with this issue from the first English case in which the fitness warranty was birthed.
March 22, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink
Sunday, March 19, 2017
The Oxford Comma is (Still) Important
In case you have not yet heard about the recent First Circuit Court of Appeals case discussing the legal importance of a comma, here goes: A Maine statute lists the following activities as not counting for overtime pay:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.
Does that mean that drivers can get overtime because driving does count for overtime since “packing” covers both “shipment or distribution”? Or should the sentence be read as “packing for storage” as one thing and “distribution” another, thus precluding the drivers from earning overtime pay?
Circuit judge David J. Barron concluded that “the exemption’s scope is actually not so clear in this regard. And because, under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose, we adopt the drivers’ narrower reading of the exemption.”
So, commas still matter. Consider too how “I love my parents, Lady Gaga and Humpty Dumpty” and “I love my parents, Lady Gaga, and Humpty Dumpty” are a little different. Language aficionados take note! Precise drafting still matters. Was this an outcome-oriented holding? Perhaps. But if so, a holding in favor of workers over a company in a case of interpretive doubt may, in today’s increasingly tough economy for middle and low-income earners, not be such a bad idea from a public policy point of view.
The case is O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir. 2017).
March 19, 2017 in Commentary, Current Affairs, Famous Cases, In the News, Legislation, Miscellaneous, Recent Cases | Permalink | Comments (1)
Friday, March 17, 2017
No Lawsuit for Selling Suboptimally Sized Product
A group of plaintiffs suffering from glaucoma bought eye drops manufactured by six pharmaceutical companies. They claimed that the eye drops were unnecessarily large (no, let’s not go there this time): all drops sold by these manufacturers were larger than 16 microliters (equal to 10% of a tablespoon). The plaintiffs claim that unnecessarily large eye drops are wasteful because the human eye can only contain so much fluid. Anything in excess of that will simply overflow and be wasted, which is a waste of money.
The amount of fluid that the human eye can contain without overflowing varies from person to person. The defendants asserted that the amount often exceeds 16 microliters. Further, the active ingredient in each drop is only about 1% of the drop. The smaller the drop, the less therapeutic effect, they claimed (without explaining why, for example, two drops could not simply be applied by those with larger eyes…). Defendants also claimed that larger drops helps those with unsteady hands, such as the elderly, because “the smaller the drop, the likelier they are to miss.” Now, at least that makes sense… (not!).
As was said on the listserv, this is arguably not even a contract law case at all, especially because no allegation of misrepresentation, breach of contract, or the like was asserted. In the words of opinion author Judge Posner, this is merely a case of “you can do better by us” asserted by plaintiff consumers. “That is all they are arguing.” However, said Posner, “[o]ne cannot bring a suit in federal court without pleading that one has been injured in some way (physically, financially—whatever) by the defendant. That's what's required for standing. The fact that a seller does not sell the product that you want, or at the price you'd like to pay, is not an actionable injury; it is just a regret or disappointment—which is all we have here, the class having failed to allege ‘an invasion of a legally protected interest.’”
So, what do we have here? No contracts violation, perhaps. Consumer fraud under the respective state acts? Apparently not. What we seem to have, however, is another instance of Corporate America taking advantage of consumers with the consent of even the federal judicial appellate system. Of course any product that is larger than what is needed per “portion” is wasteful and thus arguably taking unnecessary advantage of consumers. Whether or not that can be framed as an actionable legal issue in our system is another story altogether, sadly. Even worse: companies do apparently not want to do right by their own customers, in this case often elderly folks going blind!
This is, of course, not the only instance of needless and blatant consumer fraud (for that is what these instances are, at least in the common, if not the legal, sense of the word). More examples:
- When you buy lotion, it is next to impossible to get the last, oh, 20% out of those pump-type containers unless you unscrew the pump and pour out the lotion.
- Almost all perishable food items are sold in much larger portions than what is needed for most of us – think cottage cheese, yoghurt, lunch meats (OK, apart from those itty bitty bags, those are great), milk, you name it. People needing more could just buy two items! (That’s how it’s done with great success in many European countries, but heaven forbid that we ever learn anything from other countries.) The rest of us often have to throw out much of the food as it doesn’t last that long.
- How about packaging? Huge bags of chips that are only 1/2 full? Same for cereal boxes? Sun screen spray bottles that are also only 1/3 full?
- OK, I’m in a crappy mood about companies and organizations today, I admit. Of course the capitalist model is the best one, etc. etc. But it would be nice if more companies would focus more on decency, less waste in packaging and eventual product usage, and consumer needs. This eye drop story really is one of forcing consumers to waste product and thus money. Let’s just call a spade a spade.
On an unrelated note: I apologize for being so inactive on this blog for so long. I have had a disappointing contractual work experience that has drained me and continues to do so, frankly. I am trying the hardest I can to find interesting cases to blog about. Should you hear of any, I’d be delighted to be notified. I also invite guest bloggers to blog here with us. As always: thanks to my co-bloggers for their hard and excellent work!
The case described above is Eike, et al. v. Allergan, et al., No. 16-3334 (Seventh Cir. 2017).
Hat tip to my colleagues on the Contracts listserv for discussing this case.
March 17, 2017 in Commentary, Contract Profs, Current Affairs, Miscellaneous, Recent Cases, True Contracts | Permalink | Comments (0)
Thursday, March 16, 2017
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March 16, 2017 in Recent Scholarship | Permalink | Comments (0)
Offers, Counteroffers, Conditions Precedent
A recent case out of Ohio, Sabatine BK Development v. Fitzpatrick Enterprises, Case No. 2016CA00116, is a nice case for offer-counteroffer problems as well as condition precedent situations. In the case, Sabatine sent a purchase offer to Fitzpatrick for a piece of land "as depicted on Exhibit A." However, Sabatine never sent an Exhibit A. Fitzpatrick made his own Exhibit A and sent it to Sabatine along with some other changes. The court found that this was a counteroffer, not an acceptance. Fitzpatrick's new Exhibit A was a material modification of Sabatine's offer, which had contained no Exhibit A at all and therefore never defined the land that was being discussed. Sabatine needed to accept this counteroffer. However, Sabatine actually rejected the counteroffer. So there was never any contract.
Alternatively, the parties were excused from performing because the contract contained a condition precedent that never occurred. The contract read that the contract was "subject to a mutually agreeable replat of the property." "Subject to" is classic condition precedent language, and the parties never agreed on a replat of the property, so it was never fulfilled, and so neither of the parties had to perform.
March 16, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)
Tuesday, March 14, 2017
Pineapples Don't Merit Injunctive Relief
By David Monniaux - Own work, CC BY-SA 3.0, Link
I just listened to a podcast about the fledgling pineapple industry in Hawaii in the 19th century, and then a case about pineapple crossed my inbox. (It's a snowy day on the East Coast, so thinking about pineapples is welcome.) It's a case out of the Southern District of Florida, Del Monte International v. Ticofrut, Case No. 16-23894-CIV-MARTINEZ/GOODMAN (behind paywall), and it involves Costa Rican pineapples. It's an interesting case revolving around Del Monte's quest for a preliminary injunction to stop Ticofrut from selling pineapples to third parties. Del Monte had consented to these third party sales when Del Monte and Ticofrut were in a contract together. However, once the contract ended and the negotiations between the parties didn't lead to a new contract, Del Monte objected to the third party sales as violating restrictive covenants in the old contract that survived its termination.
The court doesn't really doubt that Ticofrut's sales are in violation of the restrictive covenants, but the court doesn't think that these violations are resulting in irreparable harm to Del Monte, and largely that's because Del Monte had previously allowed the third party sales. The court thinks it's absurd for Del Monte to argue it's being irreparably harmed by conduct that it previously had no problem with. The court sums up Del Monte's position as "it cannot be harmed by conduct it agreed to but can be harmed by that same conduct if it did not agree to it," which it finds "fundamentally faulty." The court basically says that either Del Monte permitted itself to be irreparably harmed before or the conduct doesn't irreparably harm Del Monte at all; it thinks the latter is more likely.
The court also concludes that Del Monte's injuries here aren't unique or difficult to quantify. Pineapples can be valued pretty easily, so the court says that, unlike in other cases involving non-competes, it's not difficult to compensate Del Monte with monetary damages instead of injunctive relief.
March 14, 2017 in Food and Drink, Recent Cases, True Contracts | Permalink | Comments (1)
Monday, March 13, 2017
On International Women's Day, Advocacy Groups Launch "Full Citizenship Project for Law Faculty"
Professional associations unite to support full institutional citizenship - an effort to correct gender and related disparities among law faculty
The Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD) announce the launch of a new initiative aimed at correcting gender and related disparities among U.S. law faculty. Organizers chose International Women's Day (March 8) to launch the "Full Citizenship Project for All Law Faculty" because of the professional status challenges that continue to plague skills-based and academic support law faculty, who are predominantly women.
As law faculty status and salaries decrease, the percentage of women faculty increases. Based on available data, roughly - and only - 36 percent of tenured or tenure track faculty are female, whereas 63 percent of clinical faculty and 70 percent of legal writing faculty are female. This disparity is due to faculty teaching in skills-based areas often being denied the opportunity to earn the same security of position and academic freedom that traditional law faculty enjoy. Yet security of position and academic freedom are needed for a robust classroom and innovative teaching in all areas of law.
The Full Citizenship Project kicks off the start of a campaign to raise awareness about the challenges facing many of the women and men who teach in skills-based positions.
"The goal of this project is to gain support among all law school administrators and faculty for our view that no justification exists for subordinating one group of law faculty to another based on the nature of the course, the subject matter, or the teaching method," said Kim D. Chanbonpin, President of the Legal Writing Institute. "We believe these rights are now necessary more than ever before to ensure that law students and the legal profession benefit from the myriad perspectives and expertise that all faculty bring to the mission of legal education.
The first step of this project involves gathering signatures from across the country endorsing the Full Citizenship Statement, which has already been adopted by these organizations and by the Society of American Law Teachers Board of Governors. A copy of the Full Citizenship Statement is available.
We invite all interested parties - both within and beyond the legal academy - to endorse the Statement by signing here. The signature campaign begins on International Women's Day (March 8) and will end on Equal Pay Day (April 4). Organizers plan to report and present the results of the project to interested organizations, including the American Association of Law Schools, the American Bar Association, and the American Law Deans Association. More information about the Citizenship Project is available on the LWI website.
ABOUT LWI AND ALWD: The Legal Writing Institute (LWI) is a nonprofit organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources and establishing forums to discuss the study, teaching, and practice of professional legal writing. LWI has nearly 3,000 members representing 38 countries. The Association of Legal Writing Directors (ALWD) is a non-profit professional association of directors of legal reasoning, research, writing, analysis, and advocacy programs from law schools throughout the United States, Canada and Australia. ALWD has more than 300 members representing more than 150 law schools. The mission of ALWD is to pursue activities to help law schools provide excellent legal writing instruction.
Contact:
Kim D. Chanbonpin
President, The Legal Writing Institute
The John Marshall Law School
312-386-2856
-OR-
Mary Bowman
Associate Professor of Law and Director of the Legal Writing Program
Seattle University School of Law
206-979-3301
March 13, 2017 | Permalink
Friday, March 10, 2017
Deborah Zalesne (CUNY) - KCON Scholarship Spotlight
The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.
Choosing “Choice” in the Age of ART: Designer Babies and the Case for Genetic Selection
Deborah Zalesne (City University of New York School of Law)
ABSTRACT
While rapidly developing Assisted Reproductive Technology (“ART”) such as in vitro fertilization, surrogacy, artificial insemination, IUI, fertility medication, intracytoplasmic sperm injection, cryopreservation, and pre-implantation genetic diagnosis, offer new pathways to parenthood, this capacity has challenged our collective notions about family. Ethical questions that arise require rethinking the traditional view of family as something “organic” and “natural” and as a “self-contained unit.”
New technologies allow for far-reaching reproductive decision-making that was not possible even a generation ago. Parents can now select the sex, race, or other characteristics of an embryo to be implanted. Parents can also choose to cryopreserve their embryos to allow for implantation in the future, or choose to terminate or reduce a pregnancy because of birth defects or multiples. With the opportunities presented by reproductive autonomy and choice come legal and ethical chaos of sorts, and a division that pits consent against state and public interest.
As these technologies develop, questions arise as to whether, as a society, we should allow market forces and private contracting to control their use – in effect allowing the market to decide what is right or wrong. Is leaving development of reproductive technology to the demands of the market equivalent to saying nothing is right or wrong – only efficient or inefficient, wealth maximizing, or not wealth maximizing? Or, rather, does the market represent the natural course of change and the inevitable direction of society, with regulation of technology in these areas simply inhibiting progress? There is no single answer to these questions that can be applied across the board to all the various existing and emerging technologies. I argue, however, that where there is tension between individual reproductive choice and other moral values, the use of reproductive technologies is most often best left to the choice of individuals and the innovation of the market.
My presentation highlights some of the ethical issues that arise from the reproductive capabilities that have developed over the past decades, focusing specifically on the unique ethical issues that arise from pre-implantation genetic testing. (I will also briefly discuss ethical issues surrounding gamete donation and surrogacy, which can result in more than two legal or biological parents; the creation, selection, freezing, and destruction of embryos; and prenatal testing, selective abortion and selective reduction.) Much of the resistance to these technologies stems from long-held and deeply ingrained beliefs about the purity of reproduction and motherhood. As technology continues to create reproductive possibilities that were once unheard of or considered fantasy, the purity of motherhood, pregnancy, reproduction, and family are threatened, creating controversy and debate. My talk examines some potentially troubling contract clauses that can give reproduction choices to intended parents that did not exist before technology facilitated it. I attribute some of the resulting ethical concern to societal hesitance to deviate from traditional family norms, looking specifically at the sacredness of motherhood and primacy of biology in definitions of parenthood.
Ultimately, I argue for emphasis on consent and market freedom, and for more rigorous and consistent enforcement of reproductive agreements. The law, by its nature, is slow to respond and slow to capture societal mood, which is constantly evolving. Artificial insemination, for example, was originally, over a century ago, thought to be scandalous, but opinions softened eventually. Since law necessarily lags behind social momentum, family law and regulation are often ill equipped to address adequately the myriad ethical issues that have arisen and are likely to arise as technology advances further. Even as family law adapts, it will never be able to keep pace with the rapid developments happening in reproductive technology and accommodate all possible non-normative relationships, ever growing based on cultural and social shifts, and made even more accessible through technology. Regulation of new technologies can thwart progress, inhibiting the development of important medical procedures. Consent, market forces, and contract law, on the other hand, which are based on individual needs, individual desires, and societal demand, are the best arena for dealing with rapid technological momentum.
People have a fundamental right, both morally and legally, to privacy and freedom when it comes to reproduction, so intervention where there are private reproductive agreements is not usually justified. Individual choice should guide reproduction (whether natural or artificially mediated), and a free market and private contracting are the best vehicles for delivering assisted reproductive services and for responding to individual choice. Assisted reproduction, like sexual reproduction, is not a social enterprise. Although it often involves more than two parties, it is still based on private arrangements and should be governed by rules of privacy and autonomy.
The SSRN link to the full paper is: http//ssrn.com/abstract=2930290
March 10, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (1)
Thursday, March 9, 2017
Weekly Top Ten SSRN Contracts Downloads (March 9, 2017)
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March 9, 2017 in Recent Scholarship | Permalink | Comments (0)
Wednesday, March 8, 2017
Company's Pledge to Donate to a Charity Did Not Create a Contract
A recent case out of the Second Circuit, McCabe v. ConAgra Foods, Inc., 16-3301-cv, adds to the jurisprudence on promotions and offers and unilateral contracts.
ConAgra ran an annual promotion whereby it pledged to donate to a charity every time a certain code from its packaging was entered on its website, up to a certain maximum amount. McCabe alleged that this promotion created a contract and alleged that ConAgra breached the contract. A promotion is generally not considered an offer to enter into a contract unless it is clear, definite, and explicit, leaving nothing left to negotiate. ConAgra's promotion did not rise to that level, not least because the promotion was clearly limited to a certain maximum amount. For that reason, a person entering the code into ConAgra's website would never have any way of knowing if its code would trigger a donation on ConAgra's part, because the maximum donation amount might have already been achieved. ConAgra's promotion was not an offer, and McCabe could not accept it.
McCabe then tried to characterize the promotion as an invitation for offers, with people "offering" when they input the code onto ConAgra's website, and ConAgra "accepting" when it acknowledged receipt of the code. However, the promotion was too indefinite to set any terms for the "offer," and the code entry itself did not clarify any of the terms further.
At any rate, even if there had been a contract, the court found that there weren't sufficient allegations ConAgra had breached it. There was no allegation that ConAgra did not donate to the charity every time it received the code, up to the maximum amount. McCabe's disagreement was really with the charity's own methodology, which was not ConAgra's issue.
You can listen to the oral argument in this case here.
March 8, 2017 in E-commerce, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)
Orit Gan (Sapir College, School of Law) - KCON Scholarship Spotlight
The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.
Gett Abuse
Orit Gan (Sapir College, School of Law)
Under Jewish law divorce occurs when the husband writes and delivers and the wife accepts a gett. Until wife is granted a gett she may not remarry or date. Some men use the gett as a bargaining chip to extort favorable economic divorce agreements. In other words men threaten women by refusing to grant them a gett unless they will succumb to their financial demands. This is gett abuse.
Women who pay for their gett resist enforcement of the divorce agreements by claiming duress, and U.S. courts usually accept such claims. However, based on anti-commodification theories I claim that trading the gett for money should be prohibited. I suggest that gett should be an inalienable right for two reasons. Women pay for a gett under conditions of severe inequality. They are coerced by the necessities of the situation. Moreover, this exchange has a degrading effect. Women's autonomy, dignity and freedom are corrupted and diminished by trading the gett. In an ideal world a gett should not be commodified.
However, we do not live in an ideal world. In today's reality, trading a gett also has advantages for women. Paying for a gett is their only way to break free from the marriage. The alternative is staying married against their will. Furthermore, women bring tort claims against their husbands in civil courts for gett refusal claiming emotional distress. Women then leverage the compensation that they are awarded to get a gett. They use the tort claim to improve their bargaining power and trade the damages awarded for a gett.
Therefore both commodification and non-commodification of gett have both advantages and disadvantages for women. A way out of this double bind dilemma is to recognize incomplete commodification.
The gett abuse analysis has broader implications. For example, the gett abuse analysis may be applicable to custody negotiations. Spouses bargain for their children's custody and maintenance upon divorce. Studies show that women are willing to waive financial rights in order to get custody. This transaction may have the corruption and coercion effects and therefore custody may also be an inalienable right.
March 8, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)
Tuesday, March 7, 2017
Hila Keren (Southwestern Law School) - KCON Scholarship Spotlight
The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.
Emotional Value and the Value of Emotions
Hila Keren, Ph.D. (Southwestern Law School)
American contract law has demonstrated an ongoing and long-lasting reluctance to award remedies to a party to a contract who suffered an emotional harm due to a breach by the other party. Such reluctance stands in clear contrast to the treatment of other harms coming from a breach of contract, namely economic and physical harms. In this paper I argue for equal treatment of all harms caused by a breach of contract and against the legal marking of emotional harms as unfit for the general effort of contract law to compensate injured parties.
For many decades legal theorists have debated the aptness of a special and tightfisted legal response to emotional harms, highlighting both aspects relating to the nature of law and the qualities of the emotions. For example: Is the law, with its rational logic, able to address affective problems? Are emotions uniquely easier to fake or inflate?
My paper brings to the debate a fresh set of arguments. Analyzing the issue from the perspective of the novel approach of law and emotions, I argue that the reluctance to award damages for emotional harms reflects and reinforces law’s “hyper-rationality,” i.e., the broader legal misunderstanding and mistreatment of emotions. More importantly, taking emotions seriously and in an interdisciplinary fashion, I contend that for the last four decades we have been subject to a rapidly increasing dominance of a neoliberal worldview that has operated to reconfigure the meaning of the emotions themselves. This significant shift, I submit, makes compensation for emotional harms more necessary than ever before.
In particular, I show how neoliberalism has made key positive emotions, such as happiness, an essential part of our human capital and thus has turned these emotions into economic assets—indistinguishable from those the law is eager to protect by contractual remedies. Similarly, neoliberalism has reframed negative emotions of the sort engendered by breach of contract—anxiety or anger for example—as a cause of depreciation of one’s human capital, making such harms impossible to tell apart from other contractual injuries. In a neoliberal world that constantly requires people to invest expensive resources in maintaining their emotional “portfolio,” I conclude, there is an urgent need to bring the conventional reluctance to compensate for emotional harms to an end.
March 7, 2017 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)
