ContractsProf Blog

Weekend Frivolity: New Year's Edition

A tribute to the other heroes who helped us make it through 2020: USPS, FedEx, UPS and other people who deliver our vital packages.  Happy New Year to all!

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Open Source Materials for Consumer Law Courses

We are happy to share with our readers a wonderful New Year's gift!

For those of you considering teaching consumer law courses, Luke Herrine (pictured) has just made it much easier for you to do so by posting his online casebook here.

Luke also points out that other, related materials are also available online, including Vijay Raghavan's Consumer Finance Law casebook.

Happy New Year!

Contracts Issues in JLM v. Hayley Paige Gutman

This painting of Rubens' second wife in her wedding gown contains no intellectual property belonging to JLM Couture

We don't write much about fashion in this space.  In a case we may have mentioned before, Judge Cardozo was downright contemptuous of the notion that Lady Duff-Gordon might be engaged in something akin to artistry.  No judge today would write of a fashion designer this way:

The defendant styles herself "a creator of fashions." Her favor helps a sale. Manufacturers of dresses, millinery and like articles are glad to pay for a certificate of her approval. The things which she designs, fabrics, parasols and what not, have a new value in the public mind when issued in her name. 

Today fashion designers win respect as entrepreneurs as well as artists, which just makes the law suits all the more complicated.  As reported here on thefashionlaw.com, JLM Coutour (JLM), a major player in the world of bridal gowns, is suing one of its designers, Hayley Paige Gutman (Ms. Gutman).  On information and belief (I don't follow fashion any more than Cardozo did), Ms. Gutman is a big deal, and her designs have been featured on the television shows, Say Yes to the Dress and Say Yes to America.

The complaint, which you can find here, raises interesting questions about intellectual property law and its interaction with social media, because the intellectual property at issue is the defendant's name, or variants of it, and various media sites and web domains that JLM claims that its marketing department created but which also bear defendant's name.  Our value added is to talk about the contracts issues in the case.

Ms Gutman began her association with JLM in 2011.  According to the complaint, she was hired as a designer "on an exclusive basis."  The original five-year employment contract was extended in 2014 and again in 2019 and now runs through 2022.  Pursuant to § 10 of that agreement, JLM had the exclusive, irrevocable, and perpetual world-wide right to use Ms. Gutman's name and all variants thereof in connection with her designs.  In § 9 of the employment contract, Ms. Gutman agreed to a two-year non-compete, not to solicit JLM employees, and not to disclose any of JLM's confidential information.

JLM invested over $4 million on the Hayley Paige brand since 2012.  As evidence of the success of its marketing campaigns, JLM points out that its social media platforms grew from 22,000 followers in 2014 to over one million today.  In order to provide some sense of scale, we note that the ContractsProf Blog's Twitter account has over 200 followers.  Just sayin'.

In November 2019, Ms. Gutman began using her own name on social media accounts that JLM did not control.  When JLM objected, Ms. Gutman changed passwords on JLM Instagram accounts in her name and essentially took them over.  Ms. Gutman continued to work for JLM, but she insisted that the social media accounts were her personal accounts and she refused to relinquish control.  She posted images, text, and videos of which JLM did not approve.  JLM denies that these accounts are Ms. Gutman's personal accounts, pointing out that she has two other Instagram accounts (but one apparently belongs to her dog, so . . . ).  After a year of negotiations, JLM responded by getting a court order returning control of the accounts to JLM and blocking Ms. Gutman's access.  

Last week, Ms. Gutman announced her resignation and gave her version of the relevant facts on a separate Instagram account.  You can watch her resignation video here.  It is emotional and a bit raw.   In addition to providing the perspective of a party who feels bullied by an employer that is trafficking in her name and preventing her from using it, she also provides the sage advice to anyone considering signing an employment contract -- GET A LAWYER!

It's a really interesting suit that illustrates in a really pointed way the power of contractual language and how even people with considerable market power and thus considerable bargaining power can be made to feel powerless -- and may actually be powerless -- to control the use of even their own names.

Contracts Issues in The Queen's Gambit

If you haven't yet seen The Queen's Gambit, I envy you.  You have something to look forward to.  It's a wonderful series.  Everything about it is wonderful.  Also wonderful: thanks to CUNY Law Professor Chaumtoli Huq and Shehran Uddin (@SUddin_10), I can share two contracts issues that arise during the series without terribly significant spoilers.

First, and here there is a bit of a spoiler . . .  the main character, Elizabeth (Beth) Harmon, is an orphan.  She is adopted by a couple, but the husband soon disappears, and Beth develops a complicated relationship with her adopted mother.  The mother dies while they are in Mexico for a chess tournament, and Beth calls her estranged, adopted father for help with funeral arrangements and changing her plane ticket.  The father, who can't deal with anything, offers a deal: "Get her up to Kentucky and bury her, and the house is yours. Just make the mortgage payments."  Beth performs; her father doesn't.  Some day, it is to be hoped, the people behind The Queen's Gambit will make a spin-off about the legal proceedings relating to the house that is as accurate and riveting a depiction of litigation as the series is in depicting chess tournaments.  

The second contracts issue is less clear-cut.  Beth takes money from some conservative Christians who support her chess as part of their campaign against godless communism.  Ah, Cold War politics was so quaint.  In episode 7, the conservatives ask Beth to issue a statement denouncing communist atheism.  Beth says that she has no intention of saying "anything like that . . . because it's fucking nonsense."  The conservatives seem a bit surprised by Beth's agnosticism but what really concerns them is the breach of an implied contract.  They point out that they had supported Beth in the past and had already spent money for Beth's upcoming trip to Moscow for a tournament.  Beth responds by writing a check, reimbursing the conservative organization for its past contributions to her chess career.  So ends Beth's relationship with the conservatives.

In the series, the showdown with the conservatives propels the plot towards other characters who can help Beth, financially and spiritually, to compete in the chess tournament in Moscow.  But here again is an opportunity for a legal spin-off.  Suppose the conservatives sue Beth for breach.  Sure, she has returned the money they fronted her, but they could still claim that she was still unjustly enriched.  With their support, she traveled to tournaments and won prizes.  She did not share that money with the people who paid for her travel and accommodations.  Can they recover?  It will be hard for Beth to deny a contract when she repaid the money rather than treating the organization's prior support as gratuitous.  But what was their expectation?  Apparently, it was that Beth would issue a statement somehow establishing a connection between Christianity and her success at chess.  Is her failure to issue such a statement legally cognizable harm? 

Can they claim that Beth was unjustly enriched when it was Beth's talent, rather than their money, that won the tournaments?  It seems that there is an argument that Beth benefitted, beyond the winnings at particular tournaments, from the travel to competitions that the conservatives facilitated.  She advanced her career and her ranking, which entitled her to play in more prestigious tournaments against other grandmasters. But they clearly did not do so in expectation of payment.  We would have to scour the communications between the parties to see whether there were terms and conditions or whether, and this seems unlikely given what we know of her, Beth somehow mislead the conservatives into thinking that she was more sympathetic to their perspective than she in fact was.  But that would take us beyond the realm of contracts, as a fraudulent inducement claim would result in rescission but no damages, given that Beth has already repaid the funds she received.

Here is the trailer for the show.  It's not a very good trailer; it makes the show seem much more conventional and melodramatic than it is.  There is melodrama, but the melodrama is spaced throughout a series that is well-paced, beautifully filmed and acted, unprecedentedly smart about the world of chess, and thoroughly engaging without being histrionic.

 

Realtor Approved: This House Is Not Haunted

This article in the Baltimore Sun, and other similar articles, tell of a realtor who is trying to get out ahead of the story by posting signs outside of the houses she is trying to sell advertising that the houses are verifiably "Not Haunted."  

How can the realtor, Joy Sushinsky, be so sure?  She interviews the sellers, and if they say the house isn't haunted, that's all the evidence Sushinsky needs.  After all, she reasons, "People know if they’re living in a haunted house. And they’ll tell you.”  Would they?  Under Maryland law, they are not required to do so.

The scene in which the prior owners of the house at issue in The Amityville Horror (right) warn the new owners that the house is haunted must have landed on the cutting-room floor.  Similarly, in the Academy-cward-winning short film, The New Tenants, nobody told the eponymous couple of the triple homicide that had occurred in their new apartment and explained its sudden availability (complete with "dead guy chips").  They didn't even get a break on the rent.  

Nonetheless, Sushinsky is convinced based on personal experience.  She lived in a haunted house, as her cat, the Instagram influencer Killer, would attest, were he still alive.  Unfortunately, the odd bumps in the night ended with Killer's death, so Sushinsky cannot introduce reporters to her ghost, although she insists that her dog will back her story.  In the alternative, Sushinsky also suggests that the "Non Haunted" signs are a joke, as we can all use a good laugh.

Extended Holiday Weekend Frivolity: Holiday Greetings via Sarah Dooley

Beautiful rendition of this classic, fittingly sombre for this very odd version of the holiday.

Sarah Dooley is the daughter of my former colleague, Laura Dooley, currently at Touro Law.  Sarah's new album, Is this Heartbreak? is available, for example, here.

We wish everyone a safe holiday with best wishes that the vaccines will facilitate raucous celebrations some time in the coming year!

Help Wanted: Dayton Law

Assistant Professor at the University of Dayton School of Law 

Apply nowJob No: 498365
Work Type: Faculty Full Time
Location: Dayton, OH
Category: Faculty
Department: SoL Dean's Office - 230000
Advertised: December 16, 2020
Applications close: February 01, 2021

Position Summary:	The University of Dayton School of Law invites applications for a tenure-track Assistant Professor position to begin in August 16 2021. Areas of particular need include contracts, secured transactions, business organizations, property, wills and trusts, and/or tax.
Minimum Qualifications:	Applicants must have a J.D. or the equivalent degree from a foreign institution.
Preferred Qualifications:	While not everyone may possess all the preferred qualifications, the ideal candidate will bring many of the following: - An outstanding academic record; - A record of publication; - Prior successful experience in law teaching or the demonstrated potential to be an outstanding teacher; - Potential to successfully mentor students from underrepresented groups; -Demonstrated and successful experience working with people from diverse backgrounds; - Relevant prior experience in law practice; - Excellent communication skills; - Effective interpersonal skills with various constituencies; - Interest in and/or experience teaching contracts, secured transactions, business organizations, property, wills and trusts, and/or tax; - An expressed willingness and enthusiasm to teach in and develop UDSL's hybrid online J.D. program; - Willingness to engage with Catholic and Marianist educational values that promote inclusive excellence.
Special Instructions to Applicants:	Applications should include a cover letter and CV and contact information for three references. References will not be contacted until second round interviews. Inquiries may be directed to the Faculty Recruitment and Development Committee at [email protected]. Posting closes at 11:55 PM EST
Closing Statement:	The University of Dayton is a top tier, Catholic research university with offerings from the undergraduate to the doctoral levels.  Founded in 1850 by the Society of Mary, the University is a diverse community committed to advancing the common good through intellectual curiosity, academic rigor, community engagement and local, national and global partnerships. Guided by the Marianist educational philosophy, we educate the whole person and link learning and scholarship with leadership and service. Informed by its Catholic and Marianist mission, the University is committed to the principles of diversity, equity, and inclusion. Informed by this commitment, we seek to increase diversity, achieve equitable outcomes, and model inclusion across our campus community. As an Affirmative Action and Equal Opportunity Employer, we will not discriminate against minorities, women, protected veterans, individuals with disabilities, or on the basis of race, color, national origin, religion, sex, sexual orientation or gender identity. The University is also pleased to provide support for spouses of prospective and newly hired faculty through its dual career program. While we cannot guarantee placement, we serve as an effective resource and support system for your spouse. Information can be found at http://www.udayton.edu/hr/employee_resources/dual_career_resources.php

In Memoriam: Shirley Abrahamson

Shirley Abrahamson

Pancreatic cancer has claimed the life of another leading lady in robes. 

Shirley Abrahamson (pictured) was the first woman to become a Justice on the Wisconsin Supreme Court.   She later became the first woman to serve a Chief Justice and the Court's longest-serving member.  She died on Saturday at the age of 87.  The Milwaukee Journal Sentinel provides an obituary here.

I was regretting that I knew of no important contracts decisions that Justice Abrahamson had authored.  Fortunately, friend of the blog, Chaumtoli Huq, speculated that Justice Abrahamson's gender might have played a role in her decision in Estate of Steffes.   

That case is not dissimilar from Marvin v. Marvin in terms of the legal issues it addresses.  The facts have a few twists.  In Steffes, the plaintiff, Mary Lou Brooks, not only lived with her partner for six years prior to his death, she nursed him during his fatal illness.  In addition, both Ms. Brooks and Mr. Steffes were married to other people for the duration of their relationship.

Ms. Brooks provided significant services to Mr. Steffes.  She was a cook, housekeeper, nurse, farmhand, and did considerable manual labor both in the areas of agriculture and construction and repairs.  She alleged that Mr. Steffes had promised her both the house and the farm after his death.  Others corroborated that claim.  In the end, he left her nothing.  She sought a measly $29,000.  After the trial court allowed the jury to consider issues of implied-in-fact and implied-in-law contracts, the jury awarded her precisely half of what she sought.  Justice Abrahamson, writing for the majority, upheld the verdict.

Seems like an easy decision, until one reads the dissent.  The dissenting Justice pulls out all the stops, labeling the relationship "illicit" and "meretricious."  He insists that Ms. Brooks had no expectation of payment.  She was performing gratuitous services.  Anyway, she wasn't much of a nurse, or a cook.  The dissent contended that the decision was inconsistent with Wisconsin precedents and with the practices of most states.  

Justice Abrahamson was willing to ignore outdated precedents while basing her decision on different lines of cases that supported her view of Wisconsin law.  Far from being in tension with decisions of other states, Justice Abrahamson's was simply on the front end of a trend.  She embodied a change in the judiciary and helped foster analogous changes in the law.

The work continues, inspired by her example. 

NY Times Provides Nice Little Exercise on Unjust Enrichment

According to the New York Times, A man claiming to be a property owner, Nate, offers an artist cash to paint a Soviet-style mural of the Cookie Monster (pictured in his pre-Soviet days at left) on a building in Peoria.  The artist performs, employing up to ten people on the project, and he is so pleased with the results, he posts pictures of the finished product on Facebook. 

A week after the mural went up, the real owner turned up.  Before you say that C is for quasi-Contract, consider the possibility that C is for offiCious intermeddler.  The owner quickly whitewashed the mural, and then he turned on his midwestern-ordinary-guy quote generator:

“This isn’t news,” Mr. Comte said, then added an expletive. “I’ll give you a headline: Man paints his own building wall.”

“I don’t hate art,” he earlier told The Journal Star of Peoria. “But I don’t know what the hell that was.”

The identity of the Soviet-style Cookie Monster enthusiast remains a mystery.  Let us hope it remains so.  Sometimes, we should resist the temptation to see behind the curtain.

As a public service, we suggest tweaking reality into a hypo.  What if the fake Nate paid an advance sufficient to pay for supplies but promised to pay the rest upon completion and never paid.  Can the innocent painter recover from the real Nate in quantum meruit?

Ticketmaster and Hidden Notice

A notice is supposed to be, well, noticeable.  A hidden notice is an oxymoron.  Unfortunately, the law of digital contracts seems to be a law of oxymorons.  Another such oxymoronic case, Hansen v. Ticketmaster Entertainment, Inc., was decided this week by a federal court that allowed Ticketmaster to use its Terms of Use (TOU) to shunt a pandemic-related contract dispute to arbitration. The plaintiff, Derek Hansen, purchased two Rage Against the Machine concert tickets in February 2020 and filed a class action against Ticketmaster and Live Entertainment, claiming that it retroactively changed its refund policy in response to the coronavirus pandemic. Ticketmaster filed a motion to compel arbitration claiming that Hansen agreed to its TOU at three distinct points:  account creation, account sign-in, and at ticket purchase.  The court considered only the sign-in page for the purposes of the motion. 

In order to purchase his tickets, Hansen had to sign in to his account.  Hansen argued that he did not have actual knowledge of the arbitration agreement and that constructive knowledge could not be reasonably inferred.  Judge Edward Chen of the Northern District of California, disagreed, referencing an earlier case, Lee v. Ticketmaster L.L.C., No. 18-cv-05987 (N.D. Cal.), which was subsequently affirmed by the Ninth Circuit.

The first page of the TOU contained two bolded headers.  The second bolded header stated the following:

NOTICE REGARDING ARBITRATION AND CLASS ACTION WAIVER:

These terms contain an arbitration agreement and class action waiver, whereby you agree that any dispute or claim relating in any way to your use of the Site, or to products or services sold, distributed, issued, or serviced by us or through us will be resolved by binding, individual arbitration, rather than in court, and you waive your right to participate in a class action lawsuit or class-wide arbitration. We explain this agreement and waiver, along with some limited exceptions, in Section 17, below.

In concluding that there was “sufficient notice for constructive assent,” Judge Chen cited the following factors:

-a “relatively uncluttered” sign-in page

- express language of agreement right above the “Sign in” button

- phrase “Terms of Use” in contrasting blue font

This is yet another case involving digital contract formation decided by a federal judge applying state law.  IMHO it may send the wrong message to businesses regarding best practices when it comes to drafting and presenting TOU. As I noted in this year’s annual survey of digital contracts for the ABA’s Business Lawyer, courts have become increasingly more attuned to the realities of online contracting and are examining the specific layout of websites from the standpoint of the user in assessing contractual assent, including website flow, notice of specific terms, and whether notice is presented multiple times. Although Hansen may have had notice that terms of use exist, he did not have notice of the specific terms requiring mandatory arbitration at the time he clicked “Accept.”  Although the arbitration clause was conspicuous on the TOU page, it was only conspicuous if he clicked on the hyperlink to the TOU.  That, as blog readers know, was unlikely to happen. It would have been far better for Ticketmaster to put notice of the mandatory arbitration and class action waiver immediately adjacent to the “Sign in” button, and not hidden on a different page accessible only by clicking.

Will Donald Trump Be Evicted from Mar-a-Lago?

According to this article in WaPo, Mar-a-Lago is not in Mr. Rogers' neighborhood, because the President's future neighbors are singing "You Won't Be My Neighbor."  Before Mar-a-Lago became a private club, it was a private residence, decorated with the sort of tasteful understatement that the President favors, as the living room at right suggests.  According to WaPo, the President entered into an agreement in 1993 which the residents claim precludes him from transforming the property back into a residence.  Under the agreement, intended to prevent the property from becoming a residential hotel, the President agreed that nobody could stay in the club's guest suites for more than seven consecutive days or twenty-one days in a year.

The residents sent a demand letter to the town Palm Beach, requesting that the President be informed that he will not be permitted to set up residence at the club.  The residents asked the town to do so in order to avoid the awkward situation of having to remove a former President like some squatter.

While the residents are confident that their demand must be legally enforced, the town has a history of lax enforcement of the terms of its agreements with Mar-a-Lago (pictured, in 1967), which may suggest defenses of waiver, acquiescence or laches.  But wait, there's more.  WaPo also reports that the President entered into an agreement with the National Trust for Historic Preservation in which he pledged not to develop the Mar-a-Lago site or to use it for any purpose other than a private club.

For more wonky, property-law-type analysis, see this thread from @sarabronin, to whom we tip our hats.

The story also reports that when the President changed his official domicile from New York to Florida, he attempted to register to vote in Florida, using the White House as his home address.  After that attempt was rebuffed like a Sidney Powell lawsuit, the President registered using his Mar-a-Lago address.  But if that address cannot be a domicile, we might have a serious case of voter fraud.  Release the Kraken!

Exciting New Podcast: Black Lawyers Speak

From Bloomberg Law

Here is information about the podcast and the first episode from Bloomberg's website

For months now, law firms and companies across the nation have joined the national dialogue on race and equality—sprouting up amid outcry over the deaths of George Floyd, Breonna Taylor and others — to take a fresh look at how their corporate cultures can better incorporate diversity and inclusion. But every effort to change culture comes with a cost: disruption of the status quo. Is the legal profession willing to pay it?

This podcast takes aim at this question and others. Why has Big Law struggled for decades to hire and promote more Black attorneys, despite years of discussion and efforts? What can we learn from the sacrifices and triumphs of pathbreaking law firm leaders and law professors? And will the hopes African American lawyers have held for greater equity in corporate spaces finally be realized this time?

In this podcast series, we’ll be peeling the curtain back on the experiences of African American lawyers at elite law firms and companies and their work for equality in the profession. You’ll hear insight on the challenges of culture change, and why, despite it all, they have great hope for the future.

In episode one, Bloomberg Law Executive Editor for Strategic Initiatives Lisa Helem and Senior Audio Journalist Adam Allington interview:

• Ben Wilson, chairman of Beveridge & Diamond
• Danielle Holley-Walker, dean of Howard University School of Law
• David Wilkins, vice dean for Global Initiatives on the Legal Profession, Harvard Law School
• John Daniels, chairman emeritus of Quarles & Brady
• Maja Hazell, global head of diversity & inclusion at White & Case
• Patricia Brown Holmes, managing partner, Riley Safer Holmes & Cancila
• Wendell Taylor, Washington office managing partner of Hunton Andrews Kurth

The Black Lawyers Speak series will be released on [Un]Common Law, Bloomberg Industry Group’s new podcast home for audio documentaries. 

Also of note is Bloomberg's Black General Counsel Project, which features interviews with 39 general counsel at Fortune 500 firms.

Offer? Somewhere Between Izadi and Leonard v. Pepsico!

Hat tip: @profhuq!  Is this an offer?  You decide!

 

Estate of Zappos Leader Tony Hsieh Faces Some Sticky (Note) Challenges

Photo available through Creative Commons 2.0

As the Wall Street Journal (subscription required) reports (h/t Juliet Moringiello), the family of Tony Hsieh (pictured) is struggling to sort through thousands of color-coded sticky notes that apparently represent informal contracts that the tech entrepreneur and long-timer leader of Zappos entered into shortly before his death last month.  Mr. Hsieh recently made about $70 million in real estate purchases near his home in Park City, Utah, and he also established a $30 million fund to support tech start-up companies. 

The facts are sad.  Mr. Hsieh appears to have died without an estate plan.  He was staying in Connecticut while preparing to check himself into a rehab facility when he was fatally injured in a house fire.  His cousin and business partner, Connie Yeh, was granted power of attorney after his death, but a separate judge named Mr. Hsieh's father and brother as special administrators and legal representatives of the estate.

Matters are complicated by allegations that Mr. Hsieh engaged in heavy drug use in his last months, raising capacity issues with respect to at least some of the contractual commitments he made at the end of his life.  The sad fact pattern can inspire exam questions in both trusts and estates law and contracts.  Mr. Hsieh's business commitments, memorialized on sticky notes, raise issues of intent to enter legal relations, incompleteness, and capacity to contract.  This will be an interesting case to follow as more facts come to light.

Thanks to my colleague Lee Peoples.  I had not yet activated my Lexis password at my new institution, but Lee made time for me on the weekend got me access to the WSJ article.

Weekend Frivolity: Happy Chanukah!

Sorry, Nancy Kim, my wife already got me the gift you were thinking of getting me.

Tomorrow, we make latkes!

Teaching Assistants: Threedy, Dancing Around Gender

Teaching Assistants is an occasional column in which we spotlight scholarship that is especially helpful to teaching first-year courses.  Today's column also pairs nicely with our series of posts on introducing critical perspectives, including feminist approaches to contracts law, into the first-year contracts course.  The posts in that series are linked to at the bottom of this final post in that series.

It has been ten years since the publication of the article under consideration today, Debora Threedy, Dancing Around Gender: Lessons from Arthur Murray on Gender and Contracts, but it remains timely.  The Article begins with a helpful introduction, making out the case for why gender can provide a perspective on contracts law that can be just as helpful in explaining particular cases or doctrines as, for example, the economics and law perspective provides.  Professor Threedy (pictured) then looks at the "Arthur Murray" cases.  There follows an eye-popping footnote listing over twenty cases that all involve dance students trying to avoid enforcement of long-term contracts for dance lessons.  The cases identify a systemic problem of the dance schools preying upon single people looking for a social outlet.

According to Threedy, the cases illustrate a dilemma that members of subordinated social groups such as women and minorities face.  In order to escape the real-world consequences of gender subordination, the plaintiffs have to rely on affirmative defenses, each of which involves a concession: the women need special protection because they lack bargaining skill or bargaining power.  In order to reverse the economic effects of gendered subordination, these women need to persuade the court that they are, in some legally cognizable way, impaired or disadvantaged.  

The cases partake of a canonical narrative, one in which a vulnerable, elderly widow or spinster is "swept off her feet" by a dashing young dance instructor.  Although some of the plaintiffs are men, the language of the cases with female plaintiffs is striking.  Courts deprive them of agency and highlight their victim status by referring to them in the passive voice.  The Article quotes from the cases at length to show the ways in which the courts seem to delight in detailing the plaintiffs' legal ineptitude and social desperation. 

However, the canonical narrative might not fit the facts that well in these cases.  One plaintiff spent over $200,000 in today's dollars on dance lessons.  She was a women of means.  Threedy suggests that she was paying for male companionship just as men pay for female companionship.  Perhaps legal doctrines that reduce such sexually or socially aggressive women to the status of victimhood are not really about protecting the vulnerable.  Perhaps the cases serve to remind women of their appointed place in the social/legal hierarchy . That said, despite their sophistication, these women were inexperienced market players, and the behavior of the dance studios still conforms to a familiar narrative of commercial predators.  Threedy does not disagree with the outcome of the cases in which the courts granted rescission.

The way beyond the canonical narratives and out of the dilemma begins with thinking about assent in terms of "expressive choice" rather than "rational choice."  If we focus on what it means to give meaningful assent, we need not relegate subordinated groups to the humiliating categories offered under affirmative defenses. Rather, we can look to what motivated the choice, considering factors other than those typically identified in rational choice analysis.  However, expressive choice is only the first step in the inquiry.  Threedy proposes additional factors, including the reasonableness of the parties and their good faith.

The Article is a symposium contribution, and so it makes some moves that it cannot fully develop.  The expressive choice theory is not fleshed out in enough detail to satisfy my curiosity about the notion.  I see value in the idea that can be more thoroughly realized in connection with consumer contracts where rational choice analysis fails to provide, in my view, a satisfying theory of meaningful consent.  Our own Nancy Kim has explored this topic in Consentability.  The Article also asserts a connection between expressive choice and promissory estoppel that I don't follow.  

I nonetheless find great value in Threedy's discussion of the dilemma that members of subordinated social groups face when they rely on affirmative defenses to try to avoid contractual obligations.  The dance studio cases are fun to teach in part because the courts exploit the canonical narrative of the easy mark to great comic effect.   Threedy gives us reason to resist the temptation to blame the victims.  Every victim of a scam looks and feels like a fool, but the scams work by taking advantage of the angels of our better nature -- our willingness to believe in others' good faith, our optimism for ourselves and others, and our sociability, which may also entail a bit of vanity, susceptibility to flattery, and willingness to take risks.  In the right circumstances, we can all be easy marks, and we need to develop non-patronizing ways for the law to protect us from the harshest consequences of ordinary human frailties. 

As Threedy observes, the tension between freedom of contract and  paternalism may be unavoidable.  As Threedy also notes, we don't have to simply acquiesce in the paternalism long baked into the common law.  The flood of cases against Arthur Murray abated once legislatures intervened with both general consumer protection measures and targeted measures prohibiting the long-term contracts that dance studios (and others) used to take advantage of unwary consumers.

Until then, an outro via David Bowie

 

 

Tuesday Top Ten - Contracts & Commercial Law Downloads for December 8, 2020

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 09 Oct 2020 - 08 Dec 2020

Rank	Paper	Downloads
1.	Democratic Data: A Relational Theory For Data Governance Salome Viljoen NYU School of Law	655
2.	The Argentine Collective Action Clause Controversy (La Controversia Argentina sobre las Cláusulas de Acción Colectiva) Lee C. Buchheit and G. Mitu Gulati Center for Contract and Economic Organization and Duke University School of Law	492
3.	Contracts In Brief Lawrence J. Trautman, Lora Koretz, Anthony McMullen, H. Justin Pace and Michelle A. Romero Prairie View A&M University - College of Business, W. P. Carey School of Business at Arizona State, University of Central Arkansas, Western Carolina University - College of Business and Florida International University (FIU)	316
4.	Avoiding a Lost Decade - Sovereign Debt Workouts in the Post-COVID Era (with Spanish Translation) Lee C. Buchheit and G. Mitu Gulati Center for Contract and Economic Organization and Duke University School of Law	278
5.	Comments on Prof. Chris Kuner's Blog Schrems II Re-Examined of 25 August 2020 Douwe Korff Oxford Martin School - Global Cyber Capacity Centre	254
6.	Rethinking Contract Remedies Felipe Jiménez USC Gould School of Law	111
7.	Client-Intermediary Relations in the Crypto-Asset World Louise Gullifer, Henry Chong and Hin Liu University of Cambridge - Faculty of Law, affiliation not provided to SSRN and University of Oxford	110
8.	What Do Lawyers Contribute to Law & Economics? Robert E. Scott and George G. Triantis Columbia University - Law School and Stanford Law School	109
9.	Legal Air Cover Patrick Bolton, G. Mitu Gulati and Ugo Panizza Columbia Business School - Department of Economics, Duke University School of Law and Graduate Institute of International and Development Studies (IHEID) - Department of Economics	106
10.	'Lipstick on a Pig': Specific Performance Clauses in Action Theresa Arnold, Amanda Gray Dixon, Hadar Tanne, Madison Sherrill and G. Mitu Gulati McGuireWoods LLP, Duke University School of Law, Students, Duke University School of Law, Duke University School of Law, Students and Duke University School of Law	102

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 09 Oct 2020 - 08 Dec 2020

Rank	Paper	Downloads
1.	Democratic Data: A Relational Theory For Data Governance Salome Viljoen NYU School of Law	655
2.	The Argentine Collective Action Clause Controversy (La Controversia Argentina sobre las Cláusulas de Acción Colectiva) Lee C. Buchheit and G. Mitu Gulati Center for Contract and Economic Organization and Duke University School of Law	492
3.	Contracts In Brief Lawrence J. Trautman, Lora Koretz, Anthony McMullen, H. Justin Pace and Michelle A. Romero Prairie View A&M University - College of Business, W. P. Carey School of Business at Arizona State, University of Central Arkansas, Western Carolina University - College of Business and Florida International University (FIU)	316
4.	Rethinking Contract Remedies Felipe Jiménez USC Gould School of Law	111
5.	Legal Air Cover Patrick Bolton, G. Mitu Gulati and Ugo Panizza Columbia Business School - Department of Economics, Duke University School of Law and Graduate Institute of International and Development Studies (IHEID) - Department of Economics	106
6.	'Lipstick on a Pig': Specific Performance Clauses in Action Theresa Arnold, Amanda Gray Dixon, Hadar Tanne, Madison Sherrill and G. Mitu Gulati McGuireWoods LLP, Duke University School of Law, Students, Duke University School of Law, Duke University School of Law, Students and Duke University School of Law	102
7.	The Shadows of Litigation Finance Suneal Bedi and William Marra Indiana University - Kelley School of Business and Harvard Law School	91
8.	Provisional Measures in Aid of Arbitration Ronald A. Brand University of Pittsburgh - School of Law	81
9.	Contracts as Systems Spencer Williams Golden Gate University School of Law	64
10.	Introduction to The Right of Redress Andrew S. Gold Brooklyn Law School	57

Cherry on Harris on Unconscionability in Contracts for Worker Training

Over at Jotwell, Miriam Cherry has a post up about Jonathan Harris's very timely piece, Unconscionability in Contracting for Worker Training, 72 Ala. L. Rev. __ (forthcoming, 2021), available at SSRN).  

In the article, Harris (pictured) looks at various training schemes that purport to assist new workers or job applicants as they enter the work force or transition to new work.  Specifically, Harris discusses two new developments.  First, training repayment agreements (TRA), require  employees to reimburse the employer for outside trainings if the employee quits or is fired before a fixed period of time elapses.  Secondm Income Sharing Agreements (ISAs), which require a trainee to pay a percentage of future income in exchange for the ability to participate in a computer coding course or program.   The possibilities for exploitation are palpable.  Read more over at Jotwell, or download the article.  It's what all the cool kids are reading.

Weekend Frivolity: Where Does Almond Milk Come From?

My brother is a great source of zany humor.

Weekend Frivolity: Addressing the Concerns of Anti-Vaccers

Some analogy to this pediatrician's techniques must be available.