ContractsProf Blog

Weekend Frivolity: One Year Since the Re-Boot!

We re-launched the blog one year ago this week!  

Thanks to all our contributors and readers for giving us so much to celebrate!

Photo by Ardfern

Weekend Frivolity: In Honor of the First Cat

According to the Twitter, Major Biden is being trained in preparation for the introduction of a new feline resident in the White House.  

As Mark Twain, explains in Chapter 40 of A Connecticut Yankee in King Arthur's Court, this can only mean one thing, governance by cat:

Clarence was with me as concerned the revolution, but in a modified way.  His idea was a republic, without privileged orders, but with a hereditary royal family at the head of it instead of an elective chief magistrate.  He believed that no nation that had ever known the joy of worshiping a royal family could ever be robbed of it and not fade away and die of melancholy.  I urged that kings were dangerous.  He said, then have cats.  He was sure that a royal family of cats would answer every purpose.  They would be as useful as any other royal family, they would know as much, they would have the same virtues and the same treacheries, the same disposition to get up shindies with other royal cats, they would be laughably vain and absurd and never know it, they would be wholly inexpensive; finally, they would have as sound a divine right as any other royal house, and “Tom VII, or Tom XI, or Tom XIV by the grace of God King,” would sound as well as it would when applied to the ordinary royal tomcat with tights on.  "And as a rule,” said he, in his neat modern English, “the character of these cats would be considerably above the character of the average king, and this would be an immense moral advantage to the nation, for the reason that a nation always models its morals after its monarch’s.  The worship of royalty being founded in unreason, these graceful and harmless cats would easily become as sacred as any other royalties, and indeed more so, because it would presently be noticed that they hanged nobody, beheaded nobody, imprisoned nobody, inflicted no cruelties or injustices of any sort, and so must be worthy of a deeper love and reverence than the customary human king, and would certainly get it.  The eyes of the whole harried world would soon be fixed upon this humane and gentle system, and royal butchers would presently begin to disappear; their subjects would fill the vacancies with catlings from our own royal house; we should become a factory; we should supply the thrones of the world; within forty years all Europe would be governed by cats, and we should furnish the cats.  The reign of universal peace would begin then, to end no more forever.... " 

Guest Blogger Marissa Jackson Sow on Whiteness as Contract and the Police, Part II

Whiteness as Contract as a Framework for Understanding America’s Police Problem

Marissa Jackson Sow 

Part Two: Using Contract Theory to Analyze the Gap Between Expectations of Police and Police Performance        

Breaches of America’s racial contract do not go unpunished: in early June 2020, the entire world got multiple glimpses of the New York City Police Department’s violent backlash against racial justice protests. As guardians of that contract, the police used Mayor Bill de Blasio’s 8pm curfew as a means to harass, provoke, brutalize, and ultimately terrorize New Yorkers—including those, who, like my husband, had to report to work in the City after 8pm. One particularly brutal attack on peaceful protesters in the South Bronx, where we lived, on June 4 was the subject of a damning Human Rights Watch report, which concluded that the police department had planned the attack on the protesters, who were primarily Black and Latinx. My family and I left New York City, thoroughly traumatized, a few days thereafter. 

On the third night of the curfew, officers in riot gear descended upon peaceful protesters in Crown Heights, Brooklyn at approximately 11pm, tackling and detaining them. After most of their vehicles departed, one remained behind, unable to start, as the crowd began to jeer them. Once the vehicle started, the police gave the crowd the middle fingers and drove off, playing the ice cream truck song, which is titled “N****r Love a Watermelon. Ha! Ha! Ha!” The incident was captured on video and posted to social media. Police allegedly played the song out of their cruisers unprovoked in historically Black neighborhoods for weeks thereafter.

Months later, more bizarre activity from the NYPD was captured on a recording device and, again, posted to a social media platform. In advance of the 2020 general elections, officers were recorded playing pro-Trump propaganda out of a police cruiser in predominantly Black Flatbush, Brooklyn. Such activity is a flagrant violation of the official NYPD code of conduct. The theory of whiteness as contract provides guidance, pointing to the invisible common law that governs police interests and behavior—anti-discrimination laws, police department codes of conduct, and the formal terms of police officers’ employment contracts notwithstanding.

Contracts are, of course, about expectation, agreement, and performance, and such is the case whether discussing commercial contracts or social contract theory. People do not call upon the police in the hopes that the police will shoot them to death. Underlying any request for police assistance is the understanding of a contractual agreement between citizen and police that because of the taxes one pays into local government: the agreement is that citizens fund the police, and that in exchange, the police will protect and serve them. A contracts-based analysis reveals why and how this reasoning fails to translate into reality in American society vis-à-vis Black (defined here as all people of African descent, including Latinx peoples) and Indigenous (defined here as American Indian and Latinx) communities. Here, I consider policing using the concepts of unconscionability, mutual assent, and promissory estoppel.

Calling upon the police assumes membership in America’s social contract; however, Whiteness as contract definitionally excludes Black and Indigenous people therefrom. Expectations by Black and Indigenous community members that the police work to protect and serve them because they pay police salaries with their tax dollars reflects the commonly-held expectations of the American public with respect to their public and civil servants—expectations that actually only apply to members of a body politic from which Black and Indigenous people are forbidden entrée, though they are formally members of that contract under public law.

The state not only accepts the tax dollars of Black and Indigenous people—allocating a portion of those dollars to law enforcement budgets—but actually requires that Black and Indigenous people pay their taxes as a condition of their formal membership in a social contract. The promise that the United States makes to its citizenry is that police will not deprive them of their due process rights, and that where such rights are violated by officers acting under the color of law, the citizens must be able to seek remedies from the state. Given that police are usually able to harass, torture, and kill people of color with impunity, on salaries funded by their victims, even the formal social contract should be considered unconscionable. The state forces Black and Indigenous people to participate in a bargain, extracting tax dollars for them in exchange for police services, knowing that those police services are actually intended to cause them harm.

The presence of the racial contract—that invisible common law that nullifies the formal American social contract, and which relies upon the forcible extraction and expropriation of Black and Indigenous peoples’ resources in order to create and protect white wealth—totally undermines Black and Indigenous people’s formal expectations of law enforcement. Black and Indigenous communities expect equal assistance and service from police, as per their formal rights under law, and in exchange for their tax dollars; the state gaslights them into believing that such a contract is intact. However, the state actually uses police to contain, suppress, and eliminate Black and Indigenous people—in order to perpetuate the racial contract and the system of racial capitalism for which the racial contract exists. The State—which represents the white body politic—knows that it has promised certain benefits of citizenship to all citizens and knows that Black and Indigenous citizens rely upon the promise, while also knowing that it has absolutely no intention of delivery thereof. Because there is no mutual assent between the parties, no contract actually exists.

As guardians of America’s racial contract, the police work to ensure that Black and Indigenous people stay in their physical and socio-political place; facilitate extraction and seizure of capital from Black and Indigenous people from the state; and remedy perceived breaches of white supremacist social order. On June 25, 2020, for example, news broke of the firing of three Wilmington, North Carolina police officers who were caught on a two hour-long video accidentally recorded in a patrol car making intensely racist anti-Black statements and threats. One declared that “We are just going to go out and start slaughtering them fucking n*****s.” He also suggested that he or others should “Wipe [Black Americans] off the fucking map...that’ll put ‘em back about four or five generations.”Another deplored, in response, that white people had begun “worshiping blacks”.

Photo by Tony Webster

Thus, with each police killing of a Black or Indigenous American comes increased calls for police reform or abolition. Serious calls to defund the police are now part of mainstream political lexicon, as Black and Indigenous people realize that the state is actually compelling them to pay for their own murders, or the murders of their families, friends, and neighbors. Many members of these communities realize that their privity with the police—and with the state—is illusory, and that they are not contractors, but rather the subjects and objects of the contract itself.

Communities targeted by police brutality have a right, per the doctrine of promissory estoppel, to seek remedies from the state based on their reliance upon an agreement that the police would protect and serve them in exchange for their municipal funding. Abolitionists can base an argument for reparatory justice based upon the reliance doctrine: indeed, should they be able to make a case for detrimental reliance of a community upon a contract with the local police department, a claim could theoretically be made of a municipal government for damages that would then be subtracted from the police department’s budget. Otherwise, the affected community that could demonstrate reliance and breach, and certainly that the state has made vitiating misrepresentations regarding the police’s duties to protect and serve Black and Indigenous people. Thus, the non-breaching party could demand rescission of the agreement and opt to stop funding the police. Of course, the state would have to agree to this demand, and in order for that to happen, the state must first rescind the racial contract and include Black and Indigenous people as contractors—and, thus, as full citizens, and as people with rights that the police are bound to respect.

This post is part of a continuing series on introducing critical perspectives, including critical race theory, into the teaching of first-year contracts.  Other posts in the series include:

• Guest Blogger Marissa Jackson Sow on Whiteness as Contract and the Police, Part I
• Teaching Assistants: Marissa Jackson Sow, "Whiteness as Contract"
• Teaching Assistants: Threedy, Dancing Around Gender
• Guest Post by Alan White, Systemic Racism and Teaching Contracts
• Guest Post by Deborah Post on Williams v. Walker-Thomas
• Guest Post by Chaumtoli Huq, Part III: Counter-Hegemonic Narratives
• Guest Post by Chaumtoli Huq, Part II: Freedom to Contract and the Reasonable ManGuest Post by Chaumtoli Huq, Part I: The Decolonial Framework
• Guest Post by Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers
• What Should a Court Do in Response to Racist Contractual Threats? Wolf v. Marlton Corp.
• Guest Post by Charles Calleros: Raising Issues of Race, Ethnicity, and Culture in 1L Contracts: Language Barriers
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part II – Consideration
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part I – Mutual Assent
• Teaching Assistants, Emily Houh's Redemptive Theory of Contract Law

Alabama District Court Finds No Claim for Bad Faith Refusal to Pay Insurance Claim under NY Law

In Labrake v. State Farm Mutual Auto. Ins. Co., the District Court for the Western District of Alabama, sitting in diversity, applied New York law to plaintiffs' claims for breach of contract, bad faith, and for underinsured motorist coverage.  Plaintiffs were injured in a car accident.  They settled with the under-insured driver who hit their car for that party's maximum coverage of $50,000, and they sought recovery from State Farm and Metropolitan Casualty Insurance Company, as they had under-insured motorist coverage with both insurers.  Both refused  to pay.

After determining that defendants were subject to the court's  jurisdiction and that New York law applied,

the court turned to the merits.  The court denied defendants' motion to dismiss with respect to plaintiffs' breach of contract claims, but it granted the motion with respect to plaintiffs' claim for punitive damages and in connection with the defendants' alleged bad faith refusal to pay plaintiffs' insurance claim.  According to the court, New York does not recognize a “separate cause of action . . . in tort for an insured’s alleged bad faith in failing to perform its contractual obligations."  Plaintiffs were hoping to persuade the court that Alabama law should apply, presumably because Alabama does allow for punitive damages against an insurer for bad faith refusal to pay out a claim.  Plaintiffs under-insured motorist claim was dismissed as duplicative.  

Surprising to learn that Alabama law should be more pro-plaintiff than New York law.  Get to work, NY consumer law advocates!

H/T @NY_Contracts!

Rexing Quality Eggs Fries in the 7th Circuit

This case, out of the 7th Circuit, comes to us from @NY_Contracts, which may evidence some sort of eggsistential crisis.  In the case, Rexing Quality Eggs v. Rembrandt Enterprises Rexing agreed to buy twelve loads of eggs per week from Rembrandt.  A load consists of no less than 25 pallets of eggs, with each pallet holding 900 dozen eggs.   That's a lot of eggs!  No wonder one of the parties bawked!

From the start, there were problems with the quality of Rembrandt's eggs.  Then, a party to which Rexing was selling a lot of eggs notified Rexing that it no longer needed them, depriving Rexing of a major customer for the eggs it was getting from Rembrandt.  But Rexing had nothing to squawk about, because their agreement with that other party was never formalized (oy!)  Rexing, apparently a hard-boiled sort, started refusing delivery, Rembrandt sought assurances of performance.  Rexing responded by alleging breach of express warranties of quality and alleging that its performance was excused under the contract's force majeure clause.  Not having received the assurances it sought, Rembrandt, clucked a bit, but attempted to mitigate its damages by selling its eggs elsewhere. 

Fearing the frying pan of Rembrandt's suit to collect on unpaid invoices, Rexing jumped into the fire, seeking a declaration that its performance was excused through force majeure and that its repudiation was a justified response to Rembrandt's breaches of warranty.  Rembrandt counterclaimed for breach of contract.  The district court granted Rembrandt summary judgment on Rexing's claims.  That part of the case was over easy.  The force majeure argument played no role in the appeal.  A jury awarded Rembrandt nearly $1.5 million in damages for eggs sold below the contract price and for eggs that it could not sell elsewhere.

The trial court denied Rembrandt's request for pre-judgment interest based on a contractual provision which the trial court struck as usurious.  The Seventh Circuit found that the challenged provision fell within the business credit exception to Iowa's anti-usury statute and remanded the case for calculation of contractual interest.

The court describes Rexing Quality Eggs as "the unincorporated trade name under which the Rexing brothers have bought and sold eggs for more than twenty years."  I hope for the brothers sake that this does not mean that they have no liability shield.  Otherwise, this judgment is going to make a hash of the brothers' personal finances, as well as their business.

Tuesday Top Ten - Contracts & Commercial Law Downloads for April 27, 2021

The Tuesday Top Ten returns after an unplanned week away (but fully vaccinated, at least. Go Team Moderna!). Scholarship in our favorite fields, however, rests for no one, so let's see what is happening today on SSRN.

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 26 Feb 2021 - 27 Apr 2021

Rank	Paper	Downloads
1.	The Crisis of Online Contracts (as Told in 10 Memes) Eric Goldman Santa Clara University - School of Law	1,011
2.	Leases as Forms David A. Hoffman and Anton Strezhnev University of Pennsylvania Carey Law School and Harvard University - Department of Government	391
3.	Contractual Evolution Matthew Jennejohn, Julian Nyarko and Eric L. Talley Brigham Young University - J. Reuben Clark Law School, Stanford Law School and Columbia University - School of Law	215
4.	Frustration, the MAC Clause, and COVID-19 Andrew A. Schwartz University of Colorado Law School	207
5.	Portraits of Bankruptcy Filers Pamela Foohey, Robert M. Lawless and Deborah Thorne Indiana University Maurer School of Law, University of Illinois College of Law and University of Idaho	200
6.	Creating Cryptolaw for the Uniform Commercial Code Carla Reyes Southern Methodist University - Dedman School of Law	154
7.	Modernizing Mortgage Law Christopher K. Odinet University of Iowa - College of Law	142
8.	Novel Issues in Canadian Labour Arbitration Related to COVID-19 Richard A. Bales Ohio Northern University - Pettit College of Law	117
9.	The Cost of Guilty Breach Theresa Arnold, Amanda Gray Dixon, Madison Sherrill, Hadar Tanne and G. Mitu Gulati McGuireWoods LLP, Duke University School of Law, Students, Duke University School of Law, Students, Duke University School of Law, Students and Duke University School of Law	115
10.	One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata Nanci Carr California State University, Northridge - Department of Business Law	110

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 26 Feb 2021 - 27 Apr 2021

Rank	Paper	Downloads
1.	The Crisis of Online Contracts (as Told in 10 Memes) Eric Goldman Santa Clara University - School of Law	1,011
2.	Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey Symeon Symeonides Willamette University - College of Law	485
3.	Frustration, the MAC Clause, and COVID-19 Andrew A. Schwartz University of Colorado Law School	207
4.	The Fallacy of Contract in Sexual Slavery: A Response to Ramseyer's "Contracting for Sex in the Pacific War" Yong-Shik Lee, Natsu Taylor Saito and Jonathan Todres The Law and Development Institute, Georgia State University College of Law and Georgia State University College of Law	183
5.	Novel Issues in Canadian Labour Arbitration Related to COVID-19 Richard A. Bales Ohio Northern University - Pettit College of Law	117
6.	The Cost of Guilty Breach Theresa Arnold, Amanda Gray Dixon, Madison Sherrill, Hadar Tanne and G. Mitu Gulati McGuireWoods LLP, Duke University School of Law, Students, Duke University School of Law, Students, Duke University School of Law, Students and Duke University School of Law	115
7.	One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata Nanci Carr California State University, Northridge - Department of Business Law	110
8.	Amazon as a Seller of Marketplace Goods Under Article 2 Tanya J. Monestier Roger Williams University School of Law	102
9.	Current Contractual Issues: Frustration in the Age of COVID-19 Marcus Roberts University of Auckland - Faculty of Law	78
10.	COVID-19 & Commercial Leases: Rethinking Frustration and Contractual Discharge in the Canadian Common Law Meg Heesaker McGill University, Faculty of Law	73

 

Guest Blogger Marissa Jackson Sow on Whiteness as Contract and the Police, Part I

Whiteness as Contract as a Framework for Understanding America’s Police Problem

Marissa Jackson Sow

Part One: Police as Guardians of the American Racial Contract

Policing in the United States has never been a more controversial issue than it is right now. In what has been described by some commentators as an apparent revenge spree, at least six police killings immediately accompanied or followed the conviction of Derek Chauvin for his gruesome murder of George Floyd—a conviction preceded by the police killings of Adam Toledo and Daunte Wright. Police in Columbus, Ohio shot teenaged Ma’Khia Bryant to death just before the Chauvin verdict was announced, and her killing was followed almost immediately by the fatal police shooting of Andrew Brown, Jr. in North Carolina, and the non-fatal shooting of Isaiah Brown in Virginia.

The first iteration of policing in the Southern states was established to help white slaveowners to protect and secure their property—most notably, enslaved Africans. As slavecatchers, slave patrolmen were responsible for catching escaped slaves. Enslaved Africans were also collateral assets, and a landowner who owed debts, say, to a bank, could lose his slaves to a banking institution. Law enforcement officers enforced the repossession of the enslaved when mortgage contracts entered into default, much as sheriffs and marshals continue, today, to enforce the foreclosure of real property. Judicial enforcement of foreclosure by police is codified in Article 9 of the Uniform Commercial Code: while humans may no longer be legally bought, sold, and mortgaged in the United States, the history of policing in the antebellum South exemplifies the clear links between commercial contracting, American racial capitalism, and the legal and political contracting of whiteness.

Understanding that policing’s history is not quite past allows for the definition of police as the guardians and enforcers of America’s Whiteness contract. Once so defined, the disparities in police’s responses to Kyle Rittenhouse and Dylan Roof versus their responses to Ma’Khia Bryant, Walter Scott, Philando Castile, Alton Sterling, Eric Garner, Breonna Taylor, Botham Jean, and Atatiana Jefferson must then be understood not as the result of implicit bias and inadequate training, but as systematic and intentional acts meant to protect the contracting of whiteness and serve the contractors.

Whiteness is not inherently biological, though it is biologized over time, so long as the terms of whiteness remain stable. Whiteness is, rather, a matter of law and policy—both formal and informal. I define whiteness as “a political status continuously, and collectively, negotiated by those who possess the status of whiteness and recognize it as an asset. This asset is bargained-for via a system of separate yet interrelated and coordinated commercial (and legally enforceable) contracts and social contracting, which is often tacit though given force through the law.”

Gabriel Nicolas de la Reynie, founder of the first uniformed police force in the world.

The most common critique of the theory whiteness as contract is that it describes a social contract, and that social contracts are not “real” contracts. However, and as I have written elsewhere, the social contract which creates and perpetuates whiteness in the United States is wholly dependent upon interrelated systems of government policy and commercial contracting; as such, the rejection of social contracting as irrelevant to private contract theory is ahistorical at best, and otherwise disingenuous. Policing is one such institution that highlights the way in which private contracting supports social contracting; locating policing within the history of American racial capitalism provides still more insight into the role of policing in preserving white supremacy today.

Because the domination of capital and the power to exercise commercial and political proprietorship are central to whiteness, and because such proprietorship has also historically been definitive of masculinity, the ability to manage and guard property became a way for poor white men to secure their statuses as both men and as persons deserving of the status of whiteness. Professor Teri McMurtry-Chubb has recently written about how overseers’ employment contracts gave working-class overseers access to whiteness and masculinity via the acquisition of middle-class property management positions and salaries. The overseers’ material benefits and the social status could be curtailed by their aristocratic bosses, the planters, who judged overseers on their ability to create wealth for the planter by effective, efficient management of land and (human) chattel. McMurtry-Chubb’s research revealed that planters sued overseers for loss of property if, for example, an overseer beat an enslaved person to death. Such lawsuits were among the factors that worked to keep overseers in positions of social and financial vulnerability.

Police occupy a very similar role in American society today. They are working-class laborers for whom promotions can provide access to a middle-class salary and lifestyle. Their success as members of America’s white body politic hinges upon their ability to protect white property (including from racial justice-focused “riots”) and to guard, more generally, against threats to white proprietorship and authority. They are thus required to contain and suppress Black and Indigenous populations as necessary, using the threat of violence as a mechanism to keep Black and Indigenous communities humble, subdued, and submissive to the terms of whiteness. But, as Derek Chauvin has proven to the police, they must not go too far in so doing, lest they be punished via “pro-police prosecution” so that the institution of policing—and whiteness—can be publicly absolved and allowed to persevere.

A system of racial capitalism, which premises whiteness upon its ability to exclude, exploit, and extract capital from Black and Indigenous people, necessarily relies upon necropolitical force in order to maintain a position of dominance and power. Policing is necessary to enforce this system, and policing that protects racial capitalism is thus both inherently American, and necessarily racist. It is for this reason that critiques of policing are often characterized as anti-patriotic, anarchist, and anti-white: because policing protects whiteness, abolishing the police is rightly viewed as an attempt to abolish whiteness, and perhaps even white people. Derek Chauvin’s termination from his post after George Floyd’s death, and his recent criminal convictions for Floyd’s murder represent a rare, but potent breach of the racial contract, and in the eyes of police and right-wing commentators, a betrayal of the contract’s enforcers. American history shows that no breach of the racial contract is ever left unpunished.

Perhaps the campaign of vengeance has already begun. Video of Ma’Khia Bryant’s shooting death appears to capture a police officer yelling “Blue Lives Matter” at Black neighbors who gathered at the scene of the killing. Analysis of the officers’ statements through the lens of whiteness as contract lends support to the idea that the police are seeking to remedy breaches to the racial contract; viewed otherwise, the comments are inexplicable.

Why would a uniformed, on-duty police officer feel comfortable yelling racially provocative statements at Black people, even though such actions directly violate the terms of their employment contracts? Police have long relied upon another contract, one that is tacit and invisible to the public, but palpable to those targeted by policing for containment, detention, and elimination. Stopping the phenomenon of police killings of Black and Indigenous people in the United States requires a clean break with the racial contract; considering the role of police in enforcing the terms of that contract forces us to consider whether we can do so without also breaking with the institution of policing, too.

In the subsequent post, I will use contract theory to analyze the gaps between our expectations of police behaviors and the behaviors police actually exhibit within Black and Indigenous communities. To do so, I will discuss policing using the concepts of mutual assent, unconscionability, and reliance. 

This post is part of a continuing series on introducing critical perspectives, including critical race theory, into the teaching of first-year contracts.  Other posts in the series include:

• Teaching Assistants: Marissa Jackson Sow, "Whiteness as Contract"
• Teaching Assistants: Threedy, Dancing Around Gender
• Guest Post by Alan White, Systemic Racism and Teaching Contracts
• Guest Post by Deborah Post on Williams v. Walker-Thomas
• Guest Post by Chaumtoli Huq, Part III: Counter-Hegemonic Narratives
• Guest Post by Chaumtoli Huq, Part II: Freedom to Contract and the Reasonable ManGuest Post by Chaumtoli Huq, Part I: The Decolonial Framework
• Guest Post by Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers
• What Should a Court Do in Response to Racist Contractual Threats? Wolf v. Marlton Corp.
• Guest Post by Charles Calleros: Raising Issues of Race, Ethnicity, and Culture in 1L Contracts: Language Barriers
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part II – Consideration
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part I – Mutual Assent
• Teaching Assistants, Emily Houh's Redemptive Theory of Contract Law

Introducing our Guest Blogger, Marissa Jackson Sow

This week, we are delighted to welcome Marissa Jackson Sow as a guest blogger!

Marissa Jackson Sow is a scholar of contracts, property, human rights, and international law. After receiving her undergraduate degree from Northwestern University, Marissa earned her J.D. from Columbia Law School, where she served on the Human Rights Law Review, and an LL.M, with merit, from the London School of Economics and Political Science.

 

Professor Jackson Sow began her legal career as a litigation associate at Davis, Polk & Wardwell before serving as a law clerk to the Honorable Sterling Johnson, Jr. on the United States District Court for the Eastern District of New York, and to the late Honorable Damon J. Keith on the United States Court of Appeals for the Sixth Circuit. She also served as a visiting scholar of human rights at the West African Research Center in Dakar, Senegal, and as an Acting Assistant Professor of Lawyering at the NYU School of Law, before joining New York City government. Professor Jackson Sow served as the General Counsel in the New York City Mayor’s Office for International Affairs, and as Deputy Commissioner for Community Relations at the New York City Commission on Human Rights. Professor Jackson Sow is currently a Leadership in Government Fellow at the Open Society Foundations and a 2020 Fellow with the United Nations Office of the High Commissioner for Human Rights. She joins the faculty at the St. John’s University School of Law as an Assistant Professor of Law and as a Faculty Director of the Ron H. Brown Center for Civil Rights.

 

Professor Jackson Sow focuses her scholarship on the human rights implications of contracts and property rights, with a particular focus on race, gender, religion, and the environment. Professor Jackson Sow engages culture, art, philosophy, and is particularly interested in the role that popular iconography plays in social and legal movements. Her work on the role of contracts in sustaining racial capitalism and other systems of oppression is forthcoming in the NYU Law Review, Michigan Law Review, and the Washington & Lee Law Review.

 

Follow Professor Jackson Sow on Twitter at @marissaesque.

SDNY Finds That Car Dealer Can Sue in Court but Then Demand Arbitration in Separate Suit

Sean Michael Murray (Murray) attempted to buy a car from DCH Toyota City (DCH) in January 2020.  It did not go well.   A provision in the Retail Installment Sale Contract (RISC) that provided that . . .

Any claim or dispute . . . which arises out of or relates to your credit application, purchase or condition of the vehicle, this contract or any resulting transaction or relationship . . .  shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action (emphasis added). 

DCH chose not to exercise its option to arbitrate its claims, and it sued Murray in state court, alleging breach of contract, unjust enrichment/quantum meruit, and conversion, alleging that Murray had failed to pay for the car under the terms of the RISC.   DCH sought a preliminary injunction.  Murray defended himself pro se and filed cross-claims, and he filed a third-party complaint in the state court.

Now represented by counsel, Murray brought a claim in federal court, alleging a violation of the Truth in Lending Act, materially misleading conduct in violation of GBL § 349, and fraud.  DCH moved to compel arbitration.  On April 20th, in Murray v. DCH Toyota City, the District Court for the Southern District of New York granted DCH's motion.  The court found that DCH had not waived its right to move to compel arbitration in the federal action by bringing its own claims in state court.  The general rule is that a party does not waive its right to arbitrate by litigating unrelated issues in a separate action.  Here, the allegations all arise from the same transaction, but the legal issues are different, and Murray did not raise any of his claims in the federal action when defending himself, cross-claiming, and raising issues in a third-party complaint in the state action.

This all sounds perfectly fine as a matter of law, and it might be the right result in this case.  Murray defended himself, brought cross claims, and filed counter-claims in the state court action.  Perhaps he is a sophisticated party who knew what he was doing.  However, the fact that he brought completely different claims in the federal court suggests that having legal counsel helped him see the case in a new light.  The aid of legal counsel might have helped him to respond to DCH's motion to show cause seeking a temporary restraining order.  A well-advised defendant might have responded with a motion to compel arbitration, if only to avoid  the stress of the litigation-by-ambush that a TRO involves.  If DCH is going to compel arbitration of Murray's claims, is it too late for him to seek arbitration of DCH's claims.  Would he want to?  

While this blog has often highlighted the disadvantages to consumers and employees of mandatory arbitration provisions, this case highlights the potential danger of optional arbitration provisions.  A consumer will not notice an arbitration clause, nor will they know the relative advantages and disadvantages of arbitration over litigation.  That can lead to de facto one-sided arbitration clauses, as the drafter will know its options.  Caveat emptor!

H/T @NY_Contracts

Early Start of Weekend Frivolity: John Waters' 75th Birthday

Today is my last day of teaching for the year.  So it seems appropriate to start the celebration a bit early.  I must have been in college when I saw this PSA before a film, perhaps a European film, perhaps even a double feature.  I haven't forgotten it. 

Tips on Contracts Drafting

Can be found on Michael Goldblatt's Law Practice Tips blog here.

Business Interruption Insurance Does Not Cover Closing of Casino Due to COVID

The Akwesasne Mohawk Casino Resort (Casino) is located in upstate New York near the Canadian border.  On March 15th, 2020, St. Lawrence College in nearby Kingston, Ontario announced that it was closing its campus because a student had tested positive for the novel corona virus.  In the following days, the Saint Regis Mohawk Tribe declared a state of emergency and closed the Casino.  The Casino immediately notified its insurer, Affiliated FM Insurance Co. (FM), that it intended to make a business interruption claim.  As it became clear that FM would deny the claim, the Casino filed suit.

On April 15th, the U.S. District Court for the Northern District of New York granted FM's motion for judgment on pleadings in Mohawk Gaming Enterprises LLC v. Affiliated FM Insurance Co.  As in many similar cases (discussed, e.g., here, here and here), the decision turned on the requirement that an insured seeking to make a business interruption claim must show that the business interruption was caused as a “direct result of physical damage.” As the court noted, "numerous courts around the country—including those that have applied New York law—have routinely held that the mere presence or spread of the novel coronavirus is insufficient to trigger coverage when the policy’s language requires physical loss or physical damage."  

The court also dismissed the Casino's statutory claim under New York's deceptive business practices law. 

Hat tip to the Twitter Feed New York Contract Law Decisions.  Keep those opinions coming!

COVID, Impracticability, Frustration, and Movie Theaters

In In re Cinimex US Real Estate Holdings, the Debtor was an operator of 41 movie theaters in 12 states.  A lessor sought back rent from one of those movie theaters, located in Florida.  Debtor first argued that its performance was rendered impossible by Governor DeSantis's order closing all movie theaters.  Even after that order lapsed, Debtor contended, its purpose was frustrated because, even though Governor DeSantis insisted that Florida was open for business, most Floridians (and visitors) preferred not to take in a potentially lethal virus along with their popcorn and cinematic escapism.  

The court sided with the Debtor and excused its obligation to pay on the lease during Governor DeSantis's shutdown order.  The contract specifically provided for excuse based on governmental action. However, the court read the governmental action provision as excusing but also extending the Debtor's obligations. If Debtor could not pay for three months, the lease is automatically extended for three months so that lessor still gets paid for the full contract price, even if it takes an extra three months before lessor can collect its rents.

Moreover, Debtor cannot be excused for its business decision not to re-open once the Governor permitted movie theaters to operate at 50% capacity.  The fact that it could not operate profitably under such conditions did not render its performance impracticable.  

Debtor argued that it did not reopen at 50% because it feared that it might face liability if people became infected at their venue.  The court found the argument disingenuous because the theater did re-open while the pandemic still raged.  Moreover, the court pointed out, other businesses managed to re-open, and so there was nothing special about the choice that Debtor faced. 

Hmmm.  Perhaps let's assume that the Debtor was not at all  concerned with contributing to a  public health crisis and was only concerned with liability.  Those concerns likely ebbed once it became clear that, because we never invested in contact tracing in the U.S. as did other countries, no venue would face liability for failure to take responsible measure to prevent the spread of COVID-19.  If exposure to liability motivated Debtor's decision to remain closed, the fact that Debtor reopened late in 2020 does not mean that it would have been prudent to do so in June.  Moreover, from a public health standpoint, the court seems to encourage a race to the bottom.  Some businesses re-opened, regardless of whether doing so was the best way to flatten the curve.  So now every business must do so or pay damages for breach of contract?

Finally, the court is certainly correct that a contract does not become impracticable at the moment that it becomes unprofitable.  Nonetheless, the court ignores the fact that this contract became unprofitable for two reasons, either one of which could have counted as an excuse.  First, governmental action prevented Debtor from opening up its theaters entirely.  They could only operate at 50% capacity.   Operating at 50% capacity would have been an unprofitable choice forced upon the theater by government action.  That seems to me to be a different case from a mere claim that the contract had become unprofitable.  Also, even if the theaters had opened, they would not have operated at 50% capacity because nobody was going to theaters.  That fact strikes me as giving rise to a force majeure/act of God argument that the contract recognizes as giving rise to an excuse.  Other businesses may have opened, but other businesses were not theaters.

Thanks to OCU Law graduating student Jasmine House for her research assistance!

Liberty University Sues former President Jerry Falwell, Jr. for Breach of Contract

Last year, Jerry Falwell, Jr. (pictured, far right) resigned as President and Chancellor of Liberty University, a Christian educational institution founded by his father.  As reported in the Washington Post, he was to receive $10.5 million in compensation in exchange for resigning and agreeing not to work for another university for two years.  Although Falwell stated that there was no legal "cause" for his resignation, reasonable minds might differ about that.  The Post points to his allegedly racist and anti-Muslim remarks, and his attempts to silence dissent at Liberty, but that conduct does not seem to have been the source of the problem.  The complaint does not reference it.

Rather, Liberty's complaint indicates that the Board called for Falwell's resignation because he had displayed erratic behavior, posing for revealing photos in questionable taste and showing signs of alcoholism severe enough to warrant treatment.  Falwell himself stated that his wife had had an extramarital affair and that he was resigning, in part because he was bored and in part because he did not want his wife's conduct to reflect poorly on the university.  

Liberty now seeks to recover Falwell's $10 million severance payment.  Most of Liberty's allegations relate to rather tame but also highly peculiar episodes of debauchery just scandalous enough to be inappropriate for a university president and certainly off-brand for Liberty.   The most important allegation is that Falwell concealed from the university his wife's affair with Giancarlo Granda and also concealed Granda's alleged blackmail of the Falwells, a scam that allegedly went on for years.

Count one of the complaint alleges breach of contract/conversion.  I am not sure why those two causes of action are lumped into one.  The allegations in that count suggest other causes of action as well, such as theft of trade secrets, misappropriation of funds, and breach of fiduciary duty, but perhaps under Virginia law, all of those are captured under breach/conversion.  The factual allegations are that Falwell did not use his Liberty e-mail to conduct Liberty business, that he shared confidential information with third parties, and that he stored information relating to his business dealings on Liberty's behalf on servers to which Liberty does not have access.  Liberty estimates its damages relating to this claim at $250,000, a number that it acknowledges it may need to revisit.

Count two alleges breach of fiduciary duty, but again there seem to be several breaches here.  First, when Liberty negotiated a generous compensation package with Falwell in 2019, Falwell failed to disclose that his wife had engaged in an extramarital affair and that the family was being blackmailed by her former paramour.  Had Liberty known these facts, it would not have entered into the 2019 agreement, which required the generous severance package that Liberty now seeks to recover.  Falwell also failed to disclose his alcoholism, which caused him to engage in conduct harmful to Liberty's reputation.

In Count three, Liberty repeats its prior allegations but now characterizes them as a conspiracy under Virginia statutory law.  The statute entitles Liberty to treble damages, and thus Liberty seeks to recover $30 million instead of just $10 million, plus punitive damages.  

Ordinarily, it would be an odd thing to require a party to a contract to disclose that their spouse had engaged in an extramarital affair and that the couple was now being blackmailed by a jilted lover.  Arguably, it is not odd here, as Liberty's reputation is linked to Falwell's.  I'm not sure how a court can draw that line, but perhaps the Martha Stewart case is instructive. 

It's a bit hard to tell what is going on here.  After he was terminated, Falwell sued Liberty for defamation.   Falwell took a voluntary dismissal of the suit, without prejudice to re-filing.  Liberty appended his complaint to its complaint, and Falwell's complaint is the source for many of Liberty allegations in its suit.  Oops.  One would expect that both parties would be happy to move on, rather throwing bad money after other bad money.  None of this reflects well on the board.  After all, why would any university promise to pay a president departing under a cloud $10 million?  Falwell's lavish lifestyle and vacations could not have entirely escaped the attention of the board. 

Perhaps alcoholism is more of a symptom than a cause.  Where did I read something about a camel and a needle?

E.D.N.Y. Finds that Home Insurance Policy Does not Cover Harms Caused by Cyberbullying

The blog has discovered a Twitter feed devoted to cases involving New York's law of contracts.  Going forward, readers can expect to be well-apprised of contracts developments from the Empire State.  

Our first installment is very 21st-century and comes from the Federal District Court for the Eastern District of New York.  In Allstate Vehicle and Property Ins. Co. v. Mars, a minor was using a computer in the home to send racist and threatening images to two classmates.  Citing both federal statutory law and New York common law, the victims of this cyberbullying sued the parents, both individually and as parents to the child.  Pursuant to a home insurance policy, Allstate defended the Mars family in the action, subject to a partial denial and disclaimer that the policy only covered two of the causes of action.  When all claims but intentional infliction of emotional distress (IIED) were dismissed, Allstate denied coverage, alleging that the policy excluded claims arising out of intentional conduct and claiming that the plaintiffs in the underlying matter had not alleged bodily injury.  

The court rejected Allstate's argument that IIED does not involve bodily injury, as emotional distress can and often does result in bodily harm.  However, Allstate's policy covers only "occurrences," which are defined in the policy as "accidents."  An intentional act is not an accident, but an intentional act may cause accidental injury.  In this case, however, the purpose of the intentional cyberbullying was injury.  As a result, the Eastern District concluded, there was no "occurrence" triggering coverage, and Allstate did not have to defend or indemnify the Mars family.  In addition, the policy also excluded coverage for intentional acts.  For that reason too, Allstate had no obligation to defend or indemnify here. 

Allstate did not have to indemnify for punitive damages both because the policy affords no such coverage and because, under New York law, insurers are prohibited from doing so.  Allstate's letter disclaiming coverage was timely because "timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage."  Allstate advised the Mars family that it was denying coverage as soon as it learned that the court had dismissed all but the IIED claim in the underlying action.  The parents of the victims of the cyberbullying also argued that Allstate was obligated to provide coverage, but the court rejected their arguments in a few paragraphs.

Digital Contracts in the Fourth Circuit

Last week, the Fourth Circuit upheld a district court's denial of a motion to compel arbitration in Rowland v. Sandy Morris Financial and Estate Planning Services, LLC.  Judge Wilkinson, writing for the unanimous panel, first noted the public policy, embodied in the Federal Arbitration Act, in favor of arbitration.  However, Judge Wilkinson noted, arbitration is available only if the parties agree to it.  The Supreme Court has made clear that arbiters can decide the arbitrability of particular issues, but courts can decide whether or not a contract exists.  In this case, the defendant financial planner (SMF) changed the documents at issue without notice or consent.  There was no meeting of the minds because the parties had signed different documents.

The case is so simple that the District Court warned SMF that an appeal of its decision finding that there was no agreement between the parties could be considered frivolous.  Judge Wilkinson's discussion of the merits of the case takes up two paragraphs.  The parties signed different documents.  The differences between the two documents were not minor.  SMF added a new account and changed the Rowlands' selections for risk tolerance.  Because of these material changes, no contract was formed between the parties.  

And then, beginning on page 11 of the decision, Judge Wilkinson reviews some of our favorite scholarship on the world of boilerplate contracts, citing to Kar and Radin, on pseudo-contract and shared-meaning analysis, and to Ayres and Schwartz, on the no-reading problem in consumer contracting.  He then references some of the recent cases relating to digital contracts but notes that we need to come back to first principles embodied in old chestnuts such as Lucy v. Zehmer and Holmes' The Path of the Law.  The need to adhere to the formal requirements of contract formation will not go away.  Just for good measure, he throws in a reference to Auden.  At this point, I think I am the more loving one, Judge Wilkinson! 😘

Thanks to Stanley Hammer for alerting us to this opinion!

Coinbase's TOS

As many blog readers know, Coinbase went public today.  Coinbase, of course, is the exchange where regular people can buy Bitcoin, Ethereum, and other cryptocurrency.  There are so many different, interesting aspects of this listing (including the fact that it is a direct listing, meaning no I-bankers – and their overworked analysts – were harmed in the making of these billions….).  Here at the contractsprofblog, we prefer to get into the nitty gritty of the fine print.  As the NYT reported, Coinbase users accounts have been hacked and several have lost hundreds of thousands of dollars.  A lawyer and former employee of Coinbase who lost over $400,000 worth of cryptocurrency is suing the company.  Others have found themselves inexplicably locked out of their accounts.  User have complained about the company’s lack of customer service when it comes to trying to retrieve their money or unlock their accounts. Unlike traditional financial institutions which are heavily regulated, Coinbase’s business is as-of-yet largely unregulated and governed by….you guessed it – TOS.  As the NYT article notes, “legal recourse is limited” because the company’s terms of service require users to settle dispute through arbitration or small claims court, not a class action lawsuit.  But after taking a look at Coinbase’s TOS, I’m not so sure.

Coinbase’s TOS is accessible when the user signs up but the terms are not immediately viewable.  The TOS link is presented in “modified clickwrap” form, meaning it is neither clickwrap nor browsewrap, but a little of each.  Not a good choice, IMHO, if you want to ensure enforceability although not as bad as a pure browsewrap.  The express language of agreement is included - a plus for enforceability - but the user's check mark serves to signal several different things (“ I certify that I am 18 years of age or older, and agree to the User Agreement and Privacy Policy.”) which is a minus for enforceability.

There’s more trouble ahead for the TOS.  The dispute resolution clause is nestled toward the bottom (I had to hit the “page down” key 29 times).  Furthermore, they don’t make it easy to file an arbitration claim.  The TOS requires the user to follow a rigid “formal complaint process” before filing a claim in arbitration or small claims. Their formal complaint process imposes a fair number of roadblocks in an effort to deter complaints.  The user must fill out a “Complaint form,” and then someone will review and respond to the complaint “within 15 business days” of receipt – unless for unspecified “exceptional circumstances” they can’t for some reason in which case they will respond within 35 days.  If after that, the dispute can’t be resolved, then the user has to go through “binding arbitration on an individual basis” (i.e. no class action).  They generously agree that the user may elect local small claims court rather than arbitration “so long as your matter remains in small claims court and proceeds only on an individual (non-class and non-representative) basis.”  Then, in the dreaded, useless all-caps, nestled at the very bottom of this very lengthy TOS, is the following class action waiver and a jury trial waiver:

CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU ACKNOWLEDGE THAT, BY AGREEING TO THESE TERMS, YOU AND COINBASE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.

The arbitration will be conducted by a single, neutral arbitrator and shall take place in the county or parish in which you reside, or another mutually agreeable location, in the English language. The arbitrator may award any relief that a court of competent jurisdiction could award and the arbitral decision may be enforced in any court. An arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. At your request, hearings may be conducted in person or by telephone and the arbitrator may provide for submitting and determining motions on briefs, without oral hearings. To the extent permitted by law, the prevailing party in any action or proceeding to enforce this Agreement, any arbitration pursuant to this Agreement, or any small claims action shall be entitled to costs and attorneys' fees. If the arbitrator or arbitration administrator would impose filing fees or other administrative costs on you, we will reimburse you, upon request, to the extent such fees or costs would exceed those that you would otherwise have to pay if you were proceeding instead in a court. We will also pay additional fees or costs if required to do so by the arbitration administrator's rules or applicable law.

I’m not convinced that the dispute resolution clauses would be enforceable because I don't think there was reasonable notice of them.  As I’ve noted in my annual review of wrap contracting cases for the ABA’s The Business Lawyer, courts have become more sophisticated about their analysis of what constitutes reasonable notice, often requiring notice of specific terms, such as arbitration.  Based on this trend, the Coinbase agreement is lacking and there’s a good chance that a court would find the complaint process and arbitration clause unenforceable.

Money Left in the Wrong Pocket Stays in the Wrong Pocket after Sale

Last month, the Delaware Court of Chancery issued its letter opinion granting a motion to dismiss in Deluxe Entertainment Services Inc. v. DLX Acquisition Corporation and Deluxe Media Inc.  The context is an acquisition, but the outcome is reminiscent of the Citibank case we discussed in February, drawing on Matt Levine's outstanding coverage, -- when big companies (or really big companies) make big mistakes (or really big mistakes) all the best lawyers and all the best men sometimes can't put the money back in their pockets again.  

Deluxe Entertainment (Deluxe) sold a wholly-owned subsidiary to DLX Acquisition Corporation (DLX).  At the time of the transaction, several million dollars remained in the subsidiary's bank accounts, and Deluxe somehow neglected to "sweep" those funds before the transaction.  After the transaction,  Deluxe asked DLX to return the money.  ("Hey, give me back the money I left in my pants when I gave you my pants!"). DLX refused.   It asked DLX's parent company to get the money back. ("If you don't give me back my money, I'll tell your mom!").  DLX refused.  It asked its former employees, now DLX employees, to get its money back. ("If you don't give me my money back, I'm going to tell everybody how mean you are!").  DLX refused.

A law suit followed, alleging breach of contract, breach of the duty of good faith and fair dealing, and asking for the court to reform the agreement.  The court sided with DLX.  The agreement provided for a transfer of assets.  Enumerated assets were not supposed to be transferred.  There were "wrong pocket" provisions (lovely!) that required the return to Deluxe of enumerated assets mistakenly transferred.  The funds that Deluxe neglected to sweep were not among the enumerated assets, so the "wrong pocket" provisions did not apply.  

Deluxe argued that the parties had agreed that the transaction was to be "cash free, debt free" and thus that the cash transfer that accidentally occurred could not be construed as consistent with the parties' intent.  The court adopted a more limited understanding of the "cash free, debt free," as simply intended to exclude consideration of cash as part of the calculation of the final purchase price.  The parties knew how to exclude assets from the transaction.  That's what the "wrong pocket" provisions were about.  They did not do so with respect to the cash that Deluxe failed to sweep.  

The court found no "gap" in the agreement into which a violation of the covenant of good faith and fair dealing could creep.  There was a contractual provision (the "wrong pocket provision) that covered this scenario.  DLX did not violate that provision, and since the alleged breach is covered by a provision, there is no gap of unanticipated conduct for the covenant of good faith and fair dealing to address.

Finally, the court denied Deluxe's argument that the court should reform the contract to address a mistake. Reformation is appropriate to address errors in drafting or transcription.  The mistake at issue here was operational and thus not the sort of mistake that would empower the court to reform the agreement.  

I can't dispute any portion of the opinion, but the whole thing just seems like an exercise in blinkered formalism.  It appears to be undisputed that millions of dollars were accidentally transferred to DLX at closing.  That seems like a simple case of unjust enrichment.  DLX, don't be a putz!  Return the money to that schlemiel that left it in the pockets.  It's not your money.  You have no right to it, and your mother would be ashamed of you for keeping it!

Thanks to Eric Chiappinelli for sharing the case with us!

Tuesday Top Ten - Contracts & Commercial Law Downloads for April 13, 2021

So what is making the rounds on SSRN in our favorite fields this week? Glad you asked!

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 12 Feb 2021 - 13 Apr 2021

Rank	Paper	Downloads
1.	Leases as Forms David A. Hoffman and Anton Strezhnev University of Pennsylvania Carey Law School and Harvard University - Department of Government	380
2.	Frustration, the MAC Clause, and COVID-19 Andrew A. Schwartz University of Colorado Law School	172
3.	Flag on the Play: How the NCAA’s Principle of Amateurism Allows for the Exploitation of College Athletes and How It Should Implement Players’ Name, Image, and Likeness Policy Gabrielle Beech University of Mississippi, School of Law	167
4.	Contractual Evolution Matthew Jennejohn, Julian Nyarko and Eric L. Talley Brigham Young University - J. Reuben Clark Law School, Stanford Law School and Columbia University - School of Law	164
5.	Rules of Medical Necessity Amy Monahan and Daniel Schwarcz University of Minnesota - Twin Cities - School of Law and University of Minnesota Law School	163
6.	Rethinking Product Liability Rules for Online Marketplaces: A Comparative Perspective Christoph Busch University of Osnabrück - European Legal Studies Institute	144
7.	Portraits of Bankruptcy Filers Pamela Foohey, Robert M. Lawless and Deborah Thorne Indiana University Maurer School of Law, University of Illinois College of Law and University of Idaho	140
8.	Creating Cryptolaw for the Uniform Commercial Code Carla Reyes Southern Methodist University - Dedman School of Law	140
9.	Wesley Hohfeld's Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (Annotated and Edited) Ted M. Sichelman University of San Diego School of Law	125
10.	Modernizing Mortgage Law Christopher K. Odinet University of Iowa - College of Law	124

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 12 Feb 2021 - 13 Apr 2021

Rank	Paper	Downloads
1.	Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey Symeon Symeonides Willamette University - College of Law	460
2.	The Fallacy of Contract in Sexual Slavery: A Response to Ramseyer's "Contracting for Sex in the Pacific War" Yong-Shik Lee, Natsu Taylor Saito and Jonathan Todres The Law and Development Institute, Georgia State University College of Law and Georgia State University College of Law	179
3.	Frustration, the MAC Clause, and COVID-19 Andrew A. Schwartz University of Colorado Law School	172
4.	Wesley Hohfeld's Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (Annotated and Edited) Ted M. Sichelman University of San Diego School of Law	125
5.	The Cost of Guilty Breach Theresa Arnold, Amanda Gray Dixon, Madison Sherrill, Hadar Tanne and G. Mitu Gulati McGuireWoods LLP, Duke University School of Law, Students, Duke University School of Law, Students, Duke University School of Law and Duke University School of Law	106
6.	Amazon as a Seller of Marketplace Goods Under Article 2 Tanya J. Monestier Roger Williams University School of Law	91
7.	One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata Nanci Carr California State University, Northridge - Department of Business Law	78
8.	The Contract Interpretation Policy Debate: A Primer Joshua M. Silverstein University of Arkansas at Little Rock - William H. Bowen School of Law	76
9.	Enslaved Agents: Business Transactions Negotiated by Slaves in the Antebellum South Elizabeth Chika Tippett University of Oregon School of Law	71
10.	Precontractual Justice Hanoch Dagan and Avihay Dorfman Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law	68

 

Advice to Students about Study Aids, Part II

On Friday, I shared my standard response when students ask me for advice regarding outside material they can consult in preparing for exams.  Today, I supplement that response with suggestions culled from the contracts prof listserv.

The most important suggestion was to point students to the Restatement, with its illustrations.  The fact patterns provided therein are great illustrations of the rules.  Up until now, I have always assigned an edited version of the R.2d, which does not include all of the comments and illustrations.  If I can find a suitably-priced volume, I will assign a more comprehensive edition next year.  Blog contributor Sid DeLong recommends James Byrne's book, which also includes Article 2 and the CISG, and I will certainly adopt that so long as students do not have to pay the official price for the volume, which is north of $500!

Edit: You can buy directly from the publisher for closer to $60.

That said, some contracts profs warn that students must be introduced to the R.2d with caution.  We are training them in common-law reasoning, which involves synthesizing rules from case law.  The R.2d does that for them, and there is a danger that students will treat the R.2d as a statute without recognizing that it is an attempted synthesis and not a statement of uniform law.

The following study aids come recommended by contracts profs who know:

• Scott Burnham's Contracts Law for Dummies (I was an outside reviewer for the book and was surprised that it was not for Dummies at all -- it was a study guide for law students and a very good one;
• It follows that I am confident that Burnham's Q&A and Glannon Guide to Sales are also reliable;
• Others have recommended Bob Brain's Exam Pro; 
• Like other profs, when I have a question, I reach for my single-volume Farnsworth treatise on contracts, but not every first-year student is ready for such strong medicine, and they would have to borrow it, as it is very expensive;
• Others recommend Perillo or Hillman;
• At least one prof recommended Chirelstein's hornbook, which brought back fond memories, as I read it as a 1L, attracted by the good ship Peerless on its cover.  Unfortunately, Professor Chirelstein passed in 2015, so the book might not be best for recent developments, especially in the realm of electronic contracting.

Friday's post generated some discussion on Twitter.  This much is clear: Quimbee is not reliable.  I understand that many students find it helpful in preparing for Socratic exchanges, but it has subtle mistakes that can be very harmful if committed to memory and regurgitated in an exam context.