ContractsProf Blog

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (August 30, 2019)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 01 Jul 2019 - 30 Aug 2019

Rank	Paper	Downloads
1.	Shining a Light on Dark Patterns Jamie Luguri and Lior Strahilevitz University of Chicago and University of Chicago Law School Date Posted: 07 Aug 2019 Last Revised: 07 Aug 2019	859
2.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 29 Aug 2019	156
3.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 09 Aug 2019	134
4.	Attention and the Law John M. Newman University of Miami - School of Law Date Posted: 23 Jul 2019 Last Revised: 29 Jul 2019	106
5.	'Abusive' Acts and Practices: Towards a Definition? Adam J. Levitin Georgetown University Law Center Date Posted: 25 Jun 2019 Last Revised: 25 Jun 2019	74
6.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 17 Aug 2019	66
7.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	64
8.	Towards a Civil Rights Approach to Insurance Anti-Discrimination Law Daniel Schwarcz University of Minnesota Law School Date Posted: 12 Jul 2019 Last Revised: 12 Jul 2019	62
9.	Art in the Age of Contractual Negotiation Christopher G. Bradley and Brian L. Frye University of Kentucky College of Law and University of Kentucky - College of Law Date Posted: 25 Jun 2019 Last Revised: 12 Aug 2019	48
10.	A Sea Change in the Law of Contract Interpretation? David McLauchlan Victoria University of Wellington - Faculty of Law Date Posted: 08 Jul 2019 Last Revised: 08 Jul 2019	47

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 01 Jul 2019 - 30 Aug 2019

Rank	Paper	Downloads
1.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 29 Aug 2019	156
2.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 09 Aug 2019	134
3.	Beach Money Exits Matthew Wansley Benjamin N. Cardozo School of Law Date Posted: 18 Aug 2019 Last Revised: 23 Aug 2019	85
4.	The Dark Side of Reputation Emily Kadens Northwestern University School of Law Date Posted: 22 Jul 2019 Last Revised: 22 Jul 2019	84
5.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 17 Aug 2019	66
6.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	64
7.	Court Review of the Decisions of the Australian Financial Complaints Authority and its Predecessors Ian Ramsay and Miranda Webster Melbourne Law School - University of Melbourne and University of Melbourne - Law School Date Posted: 12 Aug 2019 Last Revised: 12 Aug 2019	51
8.	Art in the Age of Contractual Negotiation Christopher G. Bradley and Brian L. Frye University of Kentucky College of Law and University of Kentucky - College of Law Date Posted: 25 Jun 2019 Last Revised: 12 Aug 2019	48
9.	The Singapore Convention: Mediation in a New York State of Mind James M. Claxton Kobe University - Graduate School of Law Date Posted: 10 Jul 2019 Last Revised: 08 Aug 2019	48
10.	Before the High Court - Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd John Eldridge and Tim Pilkington The University of Sydney Law School and University of New South Wales (UNSW), Faculty of Law, Students Date Posted: 02 Aug 2019 Last Revised: 02 Aug 2019	46

Taylor Swift to Re-record Her First Albums in Contractual Dispute

For artists, master recordings — the original recordings of musicians' work — are vital musically, historically and financially.  In most situations, labels own those masters.  But many musicians, both prominent and independent ones, have tried to hang on to their masters.  As Prince famously told Rolling Stone back in 1996, "If you don't own your masters, your master owns you."

Taylor Swift is the most recent major artist to want to own her own masters, but can’t because of earlier contractual provisions.  This will change with her newest album, Lover, which she will own outright.  The masters of her first five albums were and are, per her contracts with Big Machine, owned by that company and, now, its contractual assignees.  However, Taylor has stated that “my contract says that starting November 2020 … I can record albums 1 through 5 all over again — I'm very excited about it. ... I think artists deserve to own their work. I just feel very passionately [sic] about that."

Of course, Swift now also has significant contractual bargaining powers that she did not while an early teenaged recording artist.  Still, girl power!  Does this make her a “nasty woman”?..  And if so, isn't this a compliment?!

Neat Little Statute of Frauds Case

Looking for a quick little case demonstrating the ongoing importance of the Statute of Frauds? Look no further: Back v. Cheasepake Applachia, L.L.C. provides one (773 Fed.Appx. 294 (2019).

In 1940, Thomas Back’s family entered into an oil-and-gas-lease with the Inland Gas Corporation, Chesapeake’s predecessor.  This called for a flat-rate royalty of 12 cents per thousand cubic feet of gas to be extracted from the Back property.  However, the oil corporations started paying 12.5% of the market price instead.  In 2016, no less, Back filed suit alleging, among other things, breach of contract and fraud for underpayment by deducting too many expenses from the royalty payments and by basing these payments on false market prices.

The district court held, sua sponte, that the statute of frauds barred Back from claiming that his agreement differed from the original 1940 lease.  The court of appeals disagreed, pointing out that “all that was needed was one or more writings which together identify the parties to the lease, the property, and the modified royalty amount.  At least one of those writings must also bear Back’s signature as the lessor” (as the party against whom the agreement could be held).  Because Back had signed the royalty checks that came with the statements over time, the Statute was satisfied.

The court did not point out why the lease fell under the Statute of Frauds to begin with.  (As oil and gas leases neither fall under Articles 2 or 2A, this was presumably because of land recording statutes in Kentucky, but this is subject to further research for which I currently do not have the time. Let me know if you know.)

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (August 19, 2019)

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Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 20 Jun 2019 - 19 Aug 2019

Rank	Paper	Downloads
1.	Shining a Light on Dark Patterns Jamie Luguri and Lior Strahilevitz University of Chicago and University of Chicago Law School Date Posted: 07 Aug 2019 Last Revised: 07 Aug 2019	734
2.	Data Extra Commercium Gianclaudio Malgieri and Václav Janeček Vrije Universiteit Brussel (VUB), Faculty of Law and University of Oxford, Law Faculty/St Edmund Hall Date Posted: 27 Jun 2019 Last Revised: 13 Aug 2019	217
3.	Designing and Implementing a State Court ODR System: From Disappointment to Celebration David Allen Larson Mitchell | Hamline School of Law Date Posted: 17 Jun 2019 Last Revised: 17 Jun 2019	189
4.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 30 Jul 2019	147
5.	Online Dispute Resolution for Smart Contracts Amy J. Schmitz and Colin Rule University of Missouri School of Law and Modria Date Posted: 27 Jun 2019 Last Revised: 27 Jun 2019	143
6.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 09 Aug 2019	110
7.	Attention and the Law John M. Newman University of Miami - School of Law Date Posted: 23 Jul 2019 Last Revised: 29 Jul 2019	98
8.	Artificial Financial Intelligence William J. Magnuson Texas A&M University School of Law Date Posted: 20 Jun 2019 Last Revised: 20 Jun 2019	82
9.	'Abusive' Acts and Practices: Towards a Definition? Adam J. Levitin Georgetown University Law Center Date Posted: 25 Jun 2019 Last Revised: 25 Jun 2019	73
10.	Deliberate Ignorance and the Law Eyal Zamir and Roi Yair Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem Date Posted: 25 Jun 2019 Last Revised: 26 Jun 2019	65

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 20 Jun 2019 - 19 Aug 2019

Rank	Paper	Downloads
1.	Data Extra Commercium Gianclaudio Malgieri and Václav Janeček Vrije Universiteit Brussel (VUB), Faculty of Law and University of Oxford, Law Faculty/St Edmund Hall Date Posted: 27 Jun 2019 Last Revised: 13 Aug 2019	217
2.	Designing and Implementing a State Court ODR System: From Disappointment to Celebration David Allen Larson Mitchell | Hamline School of Law Date Posted: 17 Jun 2019 Last Revised: 17 Jun 2019	189
3.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 30 Jul 2019	147
4.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 09 Aug 2019	110
5.	The Dark Side of Reputation Emily Kadens Northwestern University School of Law Date Posted: 22 Jul 2019 Last Revised: 22 Jul 2019	82
6.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	60
7.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 17 Aug 2019	49
8.	Court Review of the Decisions of the Australian Financial Complaints Authority and its Predecessors Ian Ramsay and Miranda Webster Melbourne Law School - University of Melbourne and University of Melbourne - Law School Date Posted: 12 Aug 2019 Last Revised: 12 Aug 2019	46
9.	Before the High Court - Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd John Eldridge and Tim Pilkington The University of Sydney Law School and University of New South Wales (UNSW), Faculty of Law, Students Date Posted: 02 Aug 2019 Last Revised: 02 Aug 2019	45
10.	Art in the Age of Contractual Negotiation Christopher G. Bradley and Brian L. Frye University of Kentucky College of Law and University of Kentucky - College of Law Date Posted: 25 Jun 2019 Last Revised: 12 Aug 2019	43

Hey, remember that time you went on that cruise and agreed to a contract before boarding?

Here's another case for the "periodic reminder" file, this one reminding you that you are entering into enforceable contracts all over the place, often without really registering that's what you're doing. This recent case out of the Southern District of Florida, Incardone v. Royal Caribbean Cruises, Ltd., Case No. 16-20924-CIV-MARTINEZ/GOODMAN (behind paywall), reiterates this lesson in the context of a cruise. The plaintiff argued that there was no binding contract between the parties because there was no evidence she had ever agreed to any such contract, but Royal Caribbean pointed out that every passenger is required to agree to terms and conditions during the online check-in, and that's the only way they're allowed to board the ship. Therefore, the court found, there was a binding contract. Granted, probably not one the plaintiff was really aware of when she checked in to go on vacation, but she clicked the button nonetheless. 

You can read more about the lawsuit here and here. 

Return of the Weekly Top Ten SSRN Contracts & Commercial Law Downloads (August 9, 2019)

After a much too long hiatus, the Weekly Top Ten returns. Happy reading!

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 10 Jun 2019 - 09 Aug 2019

Rank	Paper	Downloads
1.	Data Extra Commercium Gianclaudio Malgieri and Václav Janeček Vrije Universiteit Brussel (VUB), Faculty of Law and University of Oxford, Law Faculty/St Edmund Hall	211
2.	Designing and Implementing a State Court ODR System: From Disappointment to Celebration David Allen Larson Mitchell | Hamline School of Law	182
3.	Online Dispute Resolution for Smart Contracts Amy J. Schmitz and Colin Rule University of Missouri School of Law and Modria	130
4.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School	120
5.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	91
6.	Attention and the Law John M. Newman University of Miami - School of Law	91
7.	Function and Form in Contract Law Alan Schwartz and Daniel Markovits Yale Law School and Yale Law School	79
8.	Artificial Financial Intelligence William J. Magnuson Texas A&M University School of Law	76
9.	'Abusive' Acts and Practices: Towards a Definition? Adam J. Levitin Georgetown University Law Center	71
10.	Deliberate Ignorance and the Law Eyal Zamir and Roi Yair Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem	59

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 10 Jun 2019 - 09 Aug 2019

Rank	Paper	Downloads
1.	Data Extra Commercium Gianclaudio Malgieri and Václav Janeček Vrije Universiteit Brussel (VUB), Faculty of Law and University of Oxford, Law Faculty/St Edmund Hall	211
2.	Designing and Implementing a State Court ODR System: From Disappointment to Celebration David Allen Larson Mitchell | Hamline School of Law	182
3.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School	120
4.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	91
5.	The Dark Side of Reputation Emily Kadens Northwestern University School of Law	80
6.	Function and Form in Contract Law Alan Schwartz and Daniel Markovits Yale Law School and Yale Law School	79
7.	Contract, Treaty, and Sovereignty Matthew J. Lister Deakin University School of Law	53
8.	Law and the Cognitive Nature of Emotion: A Brief Introduction Harold Anthony Lloyd Wake Forest University School of Law	43
9.	Before the High Court - Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd John Eldridge and Tim Pilkington The University of Sydney Law School and University of New South Wales (UNSW), Faculty of Law, Students	43
10.	The Singapore Convention: Mediation in a New York State of Mind James M. Claxton Kobe University - Graduate School of Law	39

Just your periodic reminder that arbitration clauses mean your disputes will be arbitrated

Many contracts have arbitration clauses these days, and parties consistently challenge their enforceability, and consistently get told they have to arbitrate. The challenges make some sense in consumer contracts where we might not expect the consumer to grasp all of the ins and outs of the legalese. However, I'm always a bit confused by arbitration clauses being challenged by more sophisticated parties in contracts that were negotiated. They were part of those contract discussions, much more so than consumers ever are. If they didn't want to have to arbitrate, they didn't have to put that clause in. Once it's in, though, they're bound by it. 

A recent case out of the District of Arizona, Gravestone Entertainment LLC, v. Maxim Media Marketing Inc., No. CV-19-03385-PHX-GMS (behind paywall), is yet another case reminding us of this. The plaintiff produces horror films and licensed the defendant to distribute those films. Eventually, the relationship between the parties deteriorated and the licensing agreement was terminated. The plaintiff, however, alleged that the defendant went on distributing the films, thereby infringing on the plaintiff's copyright. 

The defendant moved to dismiss and arbitrate the claims, and the court agreed, based on the terminated licensing agreement's arbitration clause, which was worded broadly enough to cover these claims and to survive the termination of the agreement. Nor, the court found, was it unconscionable. 

Oops! Writing the wrong corporate name on a contract doesn't necessarily excuse you from that contract

A recent case out of Texas, Austin Tapas, LP v. Performance Food Group, Inc., No. 03-18-00680-CV, refuses to let a party off on the technicality of having accidentally put the wrong corporate name on the contract. The proper corporate entity was Austin Tapas, LP. The contract had the name Austin Tapas, LLC. Austin Tapas, LP argued that this meant there had never been a contract between it and Performance Food Group. The court disagreed, though. There was no entity named "Austin Tapas, LLC" and the writing of that name on the contract was merely an error, as Austin Tapas itself admitted. Therefore, it was bound to the contract.