ContractsProf Blog

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (October 25, 2019)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 26 Aug 2019 - 25 Oct 2019

Rank	Paper	Downloads
1.	ALI Data Privacy: Overview and Black Letter Text Daniel J. Solove and Paul M. Schwartz George Washington University Law School and University of California, Berkeley - School of Law Date Posted: 02 Oct 2019 Last Revised: 02 Oct 2019	366
2.	The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance Rory Van Loo Boston University - School of Law Date Posted: 05 Sep 2019 Last Revised: 16 Oct 2019	135
3.	Driven to Bankruptcy Pamela Foohey, Robert M. Lawless and Deborah Thorne Indiana University Maurer School of Law, University of Illinois College of Law and University of Idaho Date Posted: 19 Sep 2019 Last Revised: 07 Oct 2019	127
4.	Digital Solidarity: Contracting in the Age of Smart Contracts Farshad Ghodoosi Graves School of Business, Morgan State University Date Posted: 16 Sep 2019 Last Revised: 26 Sep 2019	110
5.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 07 Oct 2019	103
6.	Civil and Common Law Lionel Smith McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law Date Posted: 04 Oct 2019 Last Revised: 04 Oct 2019	85
7.	Changing People's Preferences by the State and the Law Ariel Porat Tel Aviv University Date Posted: 06 Sep 2019 Last Revised: 01 Oct 2019	82
8.	Crisis Construction in Contract Boilerplate Emily Strauss Duke University School of Law Date Posted: 14 Sep 2019 Last Revised: 16 Sep 2019	78
9.	Stickiness and Incomplete Contracts Julian Nyarko Stanford Law School Date Posted: 09 Sep 2019 Last Revised: 09 Sep 2019	76
10.	The Case Against Equity in American Contract Law Jody S. Kraus and Robert E. Scott Columbia University - Law School and Columbia University - Law School Date Posted: 03 Oct 2019 Last Revised: 06 Oct 2019	75

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 26 Aug 2019 - 25 Oct 2019

Rank	Paper	Downloads
1.	Amicus Brief of 29 IP, Internet Law, & Antitrust Professors in 1-800 Contacts v. F.T.C. Mark A. Lemley and Eric Goldman Stanford Law School and Santa Clara University - School of Law Date Posted: 21 Sep 2019 Last Revised: 02 Oct 2019	124
2.	Digital Solidarity: Contracting in the Age of Smart Contracts Farshad Ghodoosi Graves School of Business, Morgan State University Date Posted: 16 Sep 2019 Last Revised: 26 Sep 2019	110
3.	The Corporation as a Category in Private Law Paul B. Miller and Andrew S. Gold Notre Dame Law School and Brooklyn Law School Date Posted: 24 Sep 2019 Last Revised: 24 Sep 2019	104
4.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 07 Oct 2019	103
5.	Civil and Common Law Lionel Smith McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law Date Posted: 04 Oct 2019 Last Revised: 04 Oct 2019	85
6.	Crisis Construction in Contract Boilerplate Emily Strauss Duke University School of Law Date Posted: 14 Sep 2019 Last Revised: 16 Sep 2019	78
7.	Stickiness and Incomplete Contracts Julian Nyarko Stanford Law School Date Posted: 09 Sep 2019 Last Revised: 09 Sep 2019	76
8.	The Case Against Equity in American Contract Law Jody S. Kraus and Robert E. Scott Columbia University - Law School and Columbia University - Law School Date Posted: 03 Oct 2019 Last Revised: 06 Oct 2019	75
9.	The Failure of 'Notice and Consent' as Effective Consumer Policy James P. Nehf Indiana University Robert H. McKinney School of Law Date Posted: 23 Aug 2019 Last Revised: 23 Aug 2019	65
10.	חישוב פיצויי ציפייה במיזמים עתירי סיכון Calculating Expectation Damages in Risk-Intensive Ventures Yotam Kaplan and Kobi Kastiel Bar-Ilan University - Faculty of Law and Tel Aviv University - Buchmann Faculty of Law Date Posted: 17 May 2018 Last Revised: 10 Sep 2019	63

Diamonds are a Girl's Best Friend: Wood v. Boynton

Hat tip to Otto Stockmeyer for bringing this to our attention:

Readers of the Contracts Blog who teach Wood v. Boynton will enjoy the article in Sunday's New York Times about the subsequent history of the "Eagle Diamond" at the hands of "Murph the Surf" Murphy and his fellow surfer dudes. https://www.nytimes.com/2019/10/17/nyregion/natural-history-museum-jewelry-heist.html?smid=nytcore-ios-share

Additional information here: https://info.cooley.edu/blog/the-adventure-of-the-one-dollar-diamond

Justice Gap in California and Elsewhere

The State Bar of California has conducted the first comprehensive statewide study on the need for civil legal assistance in California.  The findings are disturbing:

• 55 percent of Californians at all income levels experienced at least one civil legal issue in their household within the past year, yet nearly 70 percent of them received no legal assistance.
• On average, low-income Californians had more than four civil legal problems per household, while those with higher incomes, on average, had slightly more than two.
• Californians sought legal assistance for fewer than one in three legal problems.
• Most Californians do not receive legal help: 27 percent of low-income Californians received some legal help, while 34 percent of higher-income Californians did.
• Nearly 40 percent of low-income Californians who sought legal help reached out to legal aid organizations, but the current system cannot help everyone who needs it. The State Bar projects that Californians will seek legal aid for approximately 450,000 civil legal problems this year; just over half will receive some help, and only 30 percent will be fully served by legal aid.
• The most common categories for civil legal problems affecting Californians at all income levels are health, finance, and employment.
• Californians gave multiple reasons why they did not seek legal help. The most commonly cited reasons included:
  • uncertainty about whether their problem was a legal issue;
  • belief that they needed to deal with the problem on their own; o fear of pursuing legal action; and
  • concerns about costs.

More information on preliminary findings from the survey can be found in the California Justice Gap Study Technical Report.  See also this report.

In my podcast interview with law professor Benjamin Barton on Rebooting Justice, we discuss various ways in which the serious need for legal services can be improved.  This is of course a conundrum as legal practitioners very reasonably expect to be repaid for the costs (and agony) of going to law school.  On the other hand, many new practitioners cannot find work and could maybe build their resumes and gain valuable experience if working at lower rates and in untraditional attorney/client relationships.

The existing problem is a clear market failure.  It is astonishing that in a country with one of the highest number of attorneys per capita in the world, the general public cannot and/or do not obtain the legal assistance they need.  Perhaps the time has truly come for institutions of higher learning to focus on training more affordable legal service providers and fewer actual lawyers.  Many new law graduates have difficulty finding work anyway.  From a consumer point of view, it is also troublesome that some people – the ones at the bottom of their class – can officially get a J.D. and, with much hard work and arguably some luck, pass the bar and thus call themselves attorneys at law albeit with sometimes very substandard qualifications.  I am sorry to say this, but as a law professor, I know this to be true.  Would it not be better to create some middle ground for people who are great people eager to work in the legal field, but for whom a somewhat “lesser” degree than a J.D. might be more appropriate?  I think so.  Initiatives such as those by the Bill and Melinda Gates Foundation are underway to support community college and other students.  Diversity is a benefit!  This goes for the educational sector as well.

Money for Nothing

Liquidated damages will be upheld unless unreasonable.  It is so when it “bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach.”  Ridgley v. Topa Thrift & Loan Assn., 17 Cal.4^th 970, 977 (Cal. App. 1998). 

In a recent case, lenders lent $1.8 million to borrowers, who defaulted.  The parties settled all contractual and other claims for $2.1 million.  The parties also executed a stipulation for entry of judgment which the lender could file ex parte in the event of any failure by the borrower to timely cure any non-payment.  However, this stipulation also stated that in the event of default, the borrowers would be liable to pay $2.8 million plus interest to the lender.  The California appellate court found that $700,000, which corresponded to six months’ interest on the entire principal loan, bore no reasonable relationship to the range of actual damages the parties could have anticipated from a breach of the settlement agreement and was thus unenforceable.

The case is Red & White Distribution, LLC., et al. v. Osteroid Enterprises, LLC, et al., 2019 WL 3759458.

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (October 11, 2019)

The list is back after a brief hiatus!

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 12 Aug 2019 - 11 Oct 2019

Rank	Paper	Downloads
1.	ALI Data Privacy: Overview and Black Letter Text Daniel J. Solove and Paul M. Schwartz George Washington University Law School and University of California, Berkeley - School of Law Date Posted: 02 Oct 2019 Last Revised: 02 Oct 2019	179
2.	The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance Rory Van Loo Boston University - School of Law Date Posted: 05 Sep 2019 Last Revised: 05 Oct 2019	122
3.	Driven to Bankruptcy Pamela Foohey, Robert M. Lawless and Deborah Thorne Indiana University Maurer School of Law, University of Illinois College of Law and University of Idaho Date Posted: 19 Sep 2019 Last Revised: 07 Oct 2019	111
4.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 07 Oct 2019	95
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: 18 Sep 2019	88
6.	Digital Solidarity: Contracting in the Age of Smart Contracts Farshad Ghodoosi Graves School of Business, Morgan State University Date Posted: 16 Sep 2019 Last Revised: 26 Sep 2019	85
7.	Changing People's Preferences by the State and the Law Ariel Porat Tel Aviv University Date Posted: 06 Sep 2019 Last Revised: 01 Oct 2019	78
8.	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	70
9.	Crisis Construction in Contract Boilerplate Emily Strauss Duke University School of Law Date Posted: 14 Sep 2019 Last Revised: 16 Sep 2019	70
10.	The Failure of 'Notice and Consent' as Effective Consumer Policy James P. Nehf Indiana University Robert H. McKinney School of Law Date Posted: 23 Aug 2019 Last Revised: 23 Aug 2019	6

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 12 Aug 2019 - 11 Oct 2019

Rank	Paper	Downloads
1.	Amicus Brief of 29 IP, Internet Law, & Antitrust Professors in 1-800 Contacts v. F.T.C. Mark A. Lemley and Eric Goldman Stanford Law School and Santa Clara University - School of Law Date Posted: 21 Sep 2019 Last Revised: 02 Oct 2019	116
2.	Beach Money Exits Matthew Wansley Benjamin N. Cardozo School of Law Date Posted: 18 Aug 2019 Last Revised: 23 Aug 2019	115
3.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 07 Oct 2019	95
4.	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: 18 Sep 2019	88
5.	Digital Solidarity: Contracting in the Age of Smart Contracts Farshad Ghodoosi Graves School of Business, Morgan State University Date Posted: 16 Sep 2019 Last Revised: 26 Sep 2019	85
6.	The Corporation as a Category in Private Law Paul B. Miller and Andrew S. Gold Notre Dame Law School and Brooklyn Law School Date Posted: 24 Sep 2019 Last Revised: 24 Sep 2019	81
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	70
8.	Crisis Construction in Contract Boilerplate Emily Strauss Duke University School of Law Date Posted: 14 Sep 2019 Last Revised: 16 Sep 2019	70
9.	The Failure of 'Notice and Consent' as Effective Consumer Policy James P. Nehf Indiana University Robert H. McKinney School of Law Date Posted: 23 Aug 2019 Last Revised: 23 Aug 2019	63
10.	חישוב פיצויי ציפייה במיזמים עתירי סיכון Calculating Expectation Damages in Risk-Intensive Ventures Yotam Kaplan and Kobi Kastiel Bar-Ilan University - Faculty of Law and Tel Aviv University - Buchmann Faculty of Law Date Posted: 17 May 2018 Last Revised: 10 Sep 2019	62