ContractsProf Blog

Are Human Embryos Goods?

The UCC's definition of goods seems so simple.  Goods are anything moveable at the time identified to the contract.  And then there are some exceptions and special rules, which for the most part clarify what is in the category and what is out.  Still, there are hard cases.  Is a distributorship agreement a contract for the sale of goods?  Is electricity a good?  How about a couple's frozen embryos?

The Heidemanns went to an IVF clinic in 2015.  They agreed that any resulting unused embryos would be jointly owned.  They did not provide for the possibility of divorce, which occurred in 2018.  In their divorce settlement agreement, they provided that they would be jointly responsible for the storage of the embryos and that neither would remove them from storage.

In 2019, Ms. Heidemann, rendered infertile due to chemotherapy, wanted to use the embryos to conceive more biological children.  Her ex-husband rejected the request.  Ms. Heidemann filed a complaint for partition of personal property and asked the court to award her the embryos.  The court initially reasoned that the embryos could not be treated as goods or chattel because, under federal law, the court was initially persuaded, they cannot be sold.  The court thus denied her request, and she sought reconsideration.

In February, a Virginia county court issued a provisional opinion in the matter.  On reconsideration, the court found that the embryos were goods for two reasons.  First, the embryos were among the items designated personal property to be divided in their divorce agreement.  Second, the court relied on statutory language, unchanged since 1877, which was adapted from earlier versions which predated the passage of the 13th Amendment.  Those earlier versions, dating from 1849 and 1819, made clear, in the court's view, that slaves were treated as goods or chattel, rather than as attached to the land.  On that basis, the court concluded that Virginia law "permits the partition or, in the alternative, the sale of 'goods or chattels' regardless of whether they are found on real property, to be partitioned."

Upon further investigation, the court discovered that there is no federal law prohibiting the sale of frozen embryos.  The statute on which Mr. Heidemann relied relates to tissue from a dead human embryo.  The court thus vacated its earlier ruling, which had granted Mr. Heidemann's demurrer to Ms. Heidemann's complaint.  It is not clear where the case goes from here.

Two aspects of the court's ruling drew a lot of attention and moral outrage.  As Antonio Planas reports on NBCnews.com, commentators were puzzled that the court thought the  ante-bellum statutes relevant to buying and selling enslaved people was necessary.  Second, the court unnecessarily ruled that there is no federal law regarding whether frozen embryos can be bought and sold.  NBC provides the following reaction

“It’s repulsive and it’s morally repugnant,” said Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics who is also an expert in reproductive technology law.

Crockin said she’s not aware of any other judge in the country who has concluded that human embryos can be bought and sold. She said the trend, if anything, has been to recognize that embryos have to be treated in a more nuanced way than as property.

More nuanced indeed, but how?  

Mr. Heidemann claimed that his 14th Amendment interest in procreational autonomy would be violated if his ex-wife were given custody of the embryos.  The court dodged that issue, deeming it premature.  That is a very difficult issue with which the court will need to wrestle before it can determine the disposition of the embryos.   

As to the question of the legal status of the embryos, it seems like the court could have decided this part of the case based on the parties' designation of the embryos as "personal property" without getting into the issue of whether ante-bellum statutes relating to slavery were relevant, nor did it need to explore questions relating to an imagined market in frozen embryos.  But I assume that the parties' agreement which referred to the embryos as personal property was fairly standard, and so the case raises questions with which we all are going to grapple in this post-Dobbs world.  

Treating frozen embryos as goods or as any other kind of property seems de-humanizing.  The opposite extreme would be to recognize their personhood, which would have significant consequences for reproductive rights.  Susan Crockin wants a nuanced approach.  I would love to hear more.

Cardozo Cup Winner!

Eric Davis was happy to have the Cardozo Cup Competition as a reason to return to painting.  He produced two version of Judge Cardozo . 

The first is Judge Cardozo as he likely saw himself and as his friends saw him -- open, intellectually curious, kind.  His forehead is lined with age and with squiggles of tangled reasoning.

The second is what Cardozo represents for us, a sort of Velvet Elvis portrait of the man.

 

 

 

 

 

 

 

 

 

 

 

 

And here we have the winner, imitating Cardozo's fashion sense (inspired by Lady Duff perhaps?).

Honorable mention goes to Jeff Miller for his digital art:

And to Ivon Hernandez, Samantha Lara, Reagan Martinez, and Grace Pence for their Cardozo goes to a Taylor Swift concert travelogue.

Second Annual Cardozo Cup Competition at OCU Law

Valparaiso University Law School had an annual softball tournament called the Cardozo Cup.  That was a great event, but I have found no evidence in the historical record that Judge Cardozo was a softball enthusiast. 

Last year, we started a new Cardozo Cup tradition at OCU Law in which first-year contracts students create original works of art commemorating Judge Cardozo.  Students shared everything from a photograph of Cardozo's grave to original works of art, a Cardozo-themed t-shirt, a photographic catalogue of a road trip with Judge Cardozo, a tableau featuring furniture and books that one might have found in Judge Cardozo's parlor, and a CardoZine.  

All together, there were nine entries this year, starting with this poem by Emily Hurt commemorating a famous Cardozo opinion:

Kent the Millionaire
Built a House for his Heirs
But he Screamed with Fright
"Jacob, These Pipes are Not Right"
And Judge Cardozo told him
No One Cares

More entries quickly followed.   Thanks to Essence Carter, you can check out Cardozo on Instagram @cardozo_said_so.  On Monday, the students voted on the entries, and accomplished what I could not: they chose a winner among these worthy creations.  Tomorrow, I will post the top three.  It was a tough competition, with all of the entries have some support.  Here's a taste:

Drawing at left by Nic Gresham

Tableau at right by Corinna Bethke

Cardozine below by Melody Parra

With the students' help, my office now boasts a Cardozo shrine, including digital art by Jeff Miller, and a the Nic Gresham's Cardozo-pilled t-shirt.  If you need an explanation of the t-shirt, ask someone under thirty.

Tuesday Top Ten - Contracts & Commercial Law Downloads for April 25, 2023

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 24 Feb 2023 - 25 Apr 2023

Rank	Paper	Downloads
1.	Algorithmic Black Swans Noam Kolt University of Toronto	1,138
2.	Trade Secret Case Management Judicial Guide Peter S. Menell, David Almeling, Victoria A Cundiff, James Pooley, Elizabeth A. Rowe, Peter J. Toren and Rebecca Wexler UC Berkeley School of Law, O'Melveny & Myers LLP, Independent, James Pooley PLC, University of Virginia School of Law, Brown & Wood LLP and University of California, Berkeley, School of Law	585
3.	Emerging Technology's Unfamiliarity with Commercial Law Carla Reyes Southern Methodist University - Dedman School of Law	374
4.	How ChatGPT and Generative AI Systems will Revolutionize Legal Services and the Legal Profession Rupert Macey-Dare St Cross College - University of Oxford	347
5.	The Scope of the Digital Services Act and Digital Markets Act: Thoughts on the Conflict of Laws Tobias Lutzi University of Augsburg	256
6.	Law and Courts in an Age of Debt Jared A. Ellias and Elisabeth de Fontenay Harvard Law School and Duke University School of Law	204
7.	Do Firms Value Court Enforceability of Noncompete Agreements? A Revealed Preference Approach Takuya Hiraiwa, Michael Lipsitz and Evan Starr University of Maryland - Robert H. Smith School of Business, Federal Trade Commission Bureau of Economics and University of Maryland - Robert H. Smith School of Business	192
8.	Silencing Litigation Through Bankruptcy Pamela Foohey and Christopher K. Odinet Yeshiva University - Benjamin N. Cardozo School of Law and University of Iowa - College of Law	186
9.	A Theory of the REIT Jason Oh and Andrew Verstein University of California, Los Angeles (UCLA) - School of Law and University of California, Los Angeles (UCLA) - School of Law	184
10.	Privately Policing Dark Patterns Gregory M. Dickinson St. Thomas University - School of Law	139

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 24 Feb 2023 - 25 Apr 2023

Rank	Paper	Downloads
1.	Do Firms Value Court Enforceability of Noncompete Agreements? A Revealed Preference Approach Takuya Hiraiwa, Michael Lipsitz and Evan Starr University of Maryland - Robert H. Smith School of Business, Federal Trade Commission Bureau of Economics and University of Maryland - Robert H. Smith School of Business	192
2.	Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes Camilla Alexandra Hrdy and Christopher B. Seaman University of Akron School of Law and Washington and Lee University School of Law	169
3.	Privately Policing Dark Patterns Gregory M. Dickinson St. Thomas University - School of Law	139
4.	Artificial Intelligence and Contract Formation: Back to Contract as Bargain? John Linarelli Touro University Jacob D. Fuchsberg Law Center	123
5.	Fractionalizing Investment Securities: Using FinTech to Expand Financial Inclusion Steven L. Schwarcz and Robert Bourret Duke University School of Law and Duke University School of Law	107
6.	Messy Contracts Uri Benoliel and Samuel Becher College of Law and Business - Ramat Gan Law School and Victoria University of Wellington	97
7.	When Private Law Theory Is Close Enough Andrew S. Gold Brooklyn Law School	95
8.	Reliance Paul MacMahon London School of Economics - Law School	83
9.	Hidden Contracts Samuel Becher and Uri Benoliel Victoria University of Wellington and College of Law and Business - Ramat Gan Law School	80
10.	Specific Performance Felipe Jiménez USC Gould School of Law	79

Contracts and the Fourth Amendment

We noted a few months back that The Real Orin Kerr (left) has a forthcoming article on Terms of Service and the Fourth Amendment.  Now, @OrinKerr, a Twitter feed that looks and sounds like that of The Real Orin Kerr, brings us news of a decision from the Seventh Circuit that supports The Real Orin Kerr's view that constitutional rights should govern over contract terms.  @OrinKerr no longer has a Blue Check, so who knows if it's really him?

Michael Thomas leased an Atlanta condominium using a fake identification document bearing the name Frieson Dewayne Alredius.  After federal officials arrested Mr. Thomas on drug charges, his landlord gave them access to his apartment.  There, the officials found evidence relevant to more drug charges against Mr. Thomas.  Mr. Thomas moved to have that evidence suppressed as the product of an unlawful search.  The government conceded that people generally have a reasonable expectation of privacy in leased condominiums, but they argued that Mr. Thomas had forfeited that expectation by leasing the apartment under an assumed name.  Mr. Thomas accepted a plea deal and a sentence of 180 months' imprisonment but preserved his right to appeal the District Court's denial of his suppression motion.  

In United States v. Thomas, the Seventh Circuit per Judge Easterbrook (right) reversed the District Court's ruling.  The fact that Mr. Thomas used an alias for the improper purpose of evading arrest on multiple warrants does not deprive him of his expectation of privacy.   While Mr. Thomas's landlord had a right to terminate his lease based on his misrepresentations, she had no right to invite the police to search his dwelling.  

The state of Georgia provides procedures for the dispossession of a tenant.  Mr. Thomas would have retained possession of the condo until those procedures were completed.   Georgia law provides for no exceptions in the case of a tenant who rents the premises under false pretenses.  Judge Easterbrook cites an analogous case involving an unauthorized driver of a rental car.  In Byrd v. United States, SCOTUS ruled that the unauthorized driver retained their expectation of privacy under the Fourth Amendment.  Even a serious breach of a rental agreement does not deprive the breaching part of their constitutional right to be free from unlawful searches.

The ruling makes perfect sense.  As I learned this week when observing our 1Ls give their oral arguments as part of their legal writing course and in order to try out for our moot court competition teams (including Jessup), I know nothing of criminal law.  Would it have been a problem for law enforcement to have gotten a warrant to search his apartment while Mr. Thomas was in custody?

OCU Contracts Course Ghost Tour of Oklahoma City!

This year, for the first time, I taught the famous haunted house case, Stambovsky v. Ackley, as part of my unit on duties of disclosure.  The case annoys me, but perhaps it has some value.  I find it hard to respect a court that found that an "as is" clause is inapplicable because it applies only to physical matters and not to "paranormal phenomena."  I find it equally implausible to hold that the seller failed to deliver "the premises 'vacant' in accordance with her obligation under the provisions of the contract rider," because the house was "haunted."  As the dissent wisely cautioned, "The existence of a poltergeist is no more binding upon the defendants than it is upon this court."

My student Ariana Quirino disagreed with me on the materiality of ghosts.  Indeed, she has personal experiences of ghosts in the Law School itself!  In order to get beyond this friendly disagreement, we decided to undertake a joint venture, a ghost tour of Oklahoma City, led by local expert Jeff Provine.  The results are memorialized below:

We actually had a better turnout than the picture reflects, but some of us had to leave early, as the tour started pretty late.  I was among the early casualties, but somehow my being continued to haunt the students.

Weekend Frivolity: Reflections on Community and My Mother

My mother (at right, with my wife and me), who will be 92 in June, was hospitalized this week.  She lives in Jerusalem, and I live in Oklahoma.  Not much I can do but watch for reports from my brother who has gotten into a routine of driving up from his Kibbutz in the Arava (the southern section of Israel that borders on Jordan) when my mother gets sick.  She is not particularly ambulatory, but she is sharp and as active as she can be.  She was frustrated that she could not get released in time for a meeting of her women's organization (Na'amat).  An offshoot of Israel's national labor organization (Histadrut), Na'amat focuses on childcare and women's issues related to employment.  Much of my mother's adult life when she lived in the U.S. was devoted to volunteer work for that organization, and she went to work for them full-time when she moved to Israel in 1983.  She had baked cookies for the meeting, and as she was not able to attend, she dispatched her home health aid to deliver the cookies to the group. 

My mother's commitment to her Na'amat club is of a piece with our upbringing.  The central experience of my youth -- far more important than school or schul or neighborhood friends -- was the labor-zionist youth movement (Habonim -- now Habonim-Dror) of which I was a member from the time I was nine years old.  I devoted every summer to the movement's camp in Michigan until I graduated high school.  During the school year, I attended regular meetings of the organization on weekends, meetings that I led when I entered high school.  I have an ambivalent relationship with Zionism, but the communitarian ethos of the organization has stuck with me, and it is something that links me to my siblings to this day.  My sisters homes are gathering places.  My brother lives on a  collective (Kibbutz) that is being progressively privatized, over his objections.  My daughter (below left, with me and her grandmother) attended the same summer camp I did , not because I planned it that way, but because we visited for a reunion when she was eight , and she asked, "Dad, can I go to this camp, because I think it's a really good camp?"  

At that reunion, I was reminded of an incident of which I have no clear recollection.  When I was twelve or thirteen, Habonim had planned a winter seminar to be held in the one winterized building in our camp in Michigan.  Participants drove down from Wisconsin and then gathered in Skokie so that we could make the trek together, but a winter storm closed the roads, and we were all stranded in Chicago's north suburbs.  There were fifty kids with no place to go, so my mother offered our house, and we hosted the winter seminar in our 1200-square foot home.  Everyone had brought sleeping bags, and so at night there likely was very little floor space in the house that was not occupied by a sleeping child.  The person who reminded me of the incident had been one of our guests that weekend.  He thought my mother was extraordinary to host 50 kids for a weekend.  I could say that the event made no impression on me because it was extraordinary only in its magnitude.  Otherwise, it was totally in keeping with my mother's commitment to community.  That is true, but it is also true that  I just have very few memories of my childhood (and college is pretty spotty too).   I had to confirm the details with my sister.

I think I became an academic for two reasons.  First, I wanted to live a life of the mind.  Second, I wanted to be part of a community, and universities are ready-made communities.  Valparaiso's law school was a great first home for me because, when I arrived, there were still faculty who had been there since the 1970s and for whom the law school was the center of their existence.  Some of them lived within walking distance.  Many of them were in the building at all hours and on weekends.  They hosted events for students in their homes.  We had a reading group.  We knew each other's families.  Now that attitude towards a workspace is rare.  Staff and administrators sometimes praise me because, unlike many of my colleagues, I come to work every day.  I can't take credit for being more devoted to my work than my colleagues.  I just crave community.  

These are hard times for communitarians.  JFK said "Ask not what your country can do for you. . . . "  Ronald Reagan encouraged voters to ask not whether the country was better off but whether  they personally were better off under the Carter administration.  I wasn't old enough to vote, but I bristled.  The country voted for Reagan, and many still revere him.  He didn't single-handedly deflate the communitarian ethos of the New Deal and the New Frontier, but he paved the way for a libertarian ethos that seems to many of my students to be the only perspective that makes any sense.  And then came COVID, which took us from the world of bowling alone to a world in which professional success is measured in terms of one's ability to demand that one be permitted to work from home.

It is not for me to pass judgment.  There used to be communities for people like me outside of religious institutions, and now they seem to be dwindling.  That makes me sad, but I can see retirement on the horizon, and I may take some comfort then that the academy I leave is not the academy I joined.  Still, if I am blessed with  my mother's longevity, I hope that there will still be groups for whom I can bake some cookies.

Five Million Reasons to Love Unilateral Contracts

Election denial loses again.  As we reported here, Texas' Lt. Governor Dan Patrick (left) offered $25,000 to anybody who could come forward with information that leads to the arrest and conviction of any person for voter fraud in connection with the 2020 election.  For a while, I crowed about how nobody had come forward to claim the award.  Then, a year after the election, as we reported here, Mr. Patrick ultimately paid at least one claim, to "the scion of a family of Democratic operatives" who found evidence that led to the conviction of a Republican man who had voted twice, once for himself and once on behalf of his son, a registered Democrat.  Probably not the evidence of voter fraud that Mr. Patrick was hoping to discover.

 

Chris Dehghanpoor, Emma Brown, and Jon Swaine report in The Washington Post today that Mike Lindell of MyPillow and CrackpotElectionConspiracy fame will have to make good on his offer to pay $5 million to anyone who could prove him wrong in his claims that the 2020 Presidential election was stolen.  

 

The story began in August 2021, when Mr. Lindell hosted a "cyber symposium" in South Dakota (shown below).  At said symposium, he announced the Prove Mike Wrong Challenge and offered $5 million to anyone who could prove that his evidence of alleged Chinese interference did not relate to the 2020 U.S. elections.  Seems clever.  It's hard to prove a negative.  In order to participate in the contest, Robert Zeidman had to attend the cyber symposium.  After extreme vetting, Mr. Zeidman was allowed to attend, and he signed the agreement associated with contest participation.  He never thought he would win.  Rather, he expected only to see for himself evidence of election fraud.  

 

By Douglas W. Jones - Own work, CC0

The contest rules provided (preposterously) as follows:

5. Participants must submit all of their evidence in writing to a three member panel selected by Lindell who will determine whether the submission proves to a 100% degree of certainty that the data shown at the Symposium is not reflective of November 2020 election data.  

The arbitral decision highlights the following characteristics of the contest:

• Winners were to be determined on August 12, 2021 at 8 PM, giving entrants roughly 48 hours to reach their conclusions.
• All discrepancies or inconsistencies in the contest were to be resolved in Mr. Lindell's sole discretion.
• The contest rules focused on the authenticity of the data rather than its accuracy, as the entrants could not assess terabytes of data in time to verify accuracy.
• Mr. Lindell created a "Red Team" to assemble data to be shared with entrants, but even members of the Red Team could not access the data, and at least one of them advised Mr. Lindell to call off the contest.
• One expert on whom Mr. Lindell relied and who was a member of the panel that was to judge the contest explained that entrants were provided with only "a slice" of the data and that various technological obstacles, including encryption, were created to make the task more difficult.

Mr. Zeidman, who is a 63-year-old supporter of Donald Trump, spent two days, and he was provided with eleven files.  He timely produced a fifteen-page report that concluded: "[T]he data Lindell provides, and represents reflects information from the November 2020 election, unequivocally does not contain packet data of any kind and do not contain any information related to the November 2020 election.”  The arbitral panel selected by Mr. Lindell determined that Mr. Zeidman had not won the contest.  One of the arbiters wrote some notes, explaining the decision.

 

Mr. Lindell, of course, chose not to pay, alleging that Mr. Zeidman had not actually won the contest.  Mr. Zeidman thought he had won and that if the contest rules were construed as Mr. Lindell claimed, it would be both unconscionable and a violation of Minnesota's anti-fraud statute.  He brought his claim before a panel of arbiters.

 

Yesterday, the panel delivered its 23-page decision, ordering Mr. Lindell's firm to pay the $5 million.  The heart of the opinion, after the description of the contest provided above, is a careful review of the eleven files shared with Mr. Zeidman.  In each case, the panel agreed with Mr. Zeidman that the files had nothing to do with the 2020 election.  In most cases, Mr. Lindell's firm did not contend otherwise.  There is the possibility that some of the files might have contained information relevant to the 2020 election, but those files could only be read with a program with which Mr. Zeidman and other contestants were not provided.  I suppose the panel thought the contest ought to be fair.  In the alternative, it seems likely that, even if the files could have been read, they too had nothing to do with the 2020 election.  Having found that Mr. Zeidman had indeed won the contest, it dismissed his remaining claims as moot.

 

I've always wondered how Trump supporters can believe both that the Democrats cheated in the 2016 election and that they nonetheless somehow still managed to lose.  But here we have it: Mr. Lindell tried his best to rig this contest, and he still lost.  I owe Trump supporters an apology.  I now see how what they allege to be possible is actually possible.  It just did not happen in 2016 or in 2020.  But it happened in August 2021, and Mr. Lindell's firm now is subject to a $5 million arbitral award as a result.

 

Mr. Zeidman expressed pleasure with the arbitral decision, telling The Washington Post, "The truth is out there now."  Yup.  Nobody will ever again claim that the 2020 election was stolen.  

Tuesday Top Ten - Contracts & Commercial Law Downloads for April 18, 2023

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 17 Feb 2023 - 18 Apr 2023

Rank	Paper	Downloads
1.	Algorithmic Black Swans Noam Kolt University of Toronto	1,084
2.	Trade Secret Case Management Judicial Guide Peter S. Menell, David Almeling, Victoria A Cundiff, James Pooley, Elizabeth A. Rowe, Peter J. Toren and Rebecca Wexler UC Berkeley School of Law, O'Melveny & Myers LLP, Independent, James Pooley PLC, University of Virginia School of Law, Brown & Wood LLP and University of California, Berkeley, School of Law	562
3.	Contract-Wrapped Property Danielle D'Onfro Washington University in St. Louis - School of Law	359
4.	How ChatGPT and Generative AI Systems will Revolutionize Legal Services and the Legal Profession Rupert Macey-Dare St Cross College - University of Oxford	286
5.	The Scope of the Digital Services Act and Digital Markets Act: Thoughts on the Conflict of Laws Tobias Lutzi University of Augsburg	225
6.	Silencing Litigation Through Bankruptcy Pamela Foohey and Christopher K. Odinet Yeshiva University - Benjamin N. Cardozo School of Law and University of Iowa - College of Law	181
7.	Do Firms Value Court Enforceability of Noncompete Agreements? A Revealed Preference Approach Takuya Hiraiwa, Michael Lipsitz and Evan Starr University of Maryland - Robert H. Smith School of Business, Federal Trade Commission Bureau of Economics and University of Maryland - Robert H. Smith School of Business	173
8.	A Theory of the REIT Jason Oh and Andrew Verstein University of California, Los Angeles (UCLA) - School of Law and University of California, Los Angeles (UCLA) - School of Law	151
9.	Privately Policing Dark Patterns Gregory M. Dickinson St. Thomas University - School of Law	128
10.	Non-Fungible Tokens (NFTs), Smart Contracts and Contracts: The Need for Legal and Technology Assurances Joshua Ellul and Ioannis Revolidis University of Malta and University of Malta, Centre for Distributed Ledger Technologies and Department of Media, Communications & Technology Law	117

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 17 Feb 2023 - 18 Apr 2023

Rank	Paper	Downloads
1.	Do Firms Value Court Enforceability of Noncompete Agreements? A Revealed Preference Approach Takuya Hiraiwa, Michael Lipsitz and Evan Starr University of Maryland - Robert H. Smith School of Business, Federal Trade Commission Bureau of Economics and University of Maryland - Robert H. Smith School of Business	173
2.	Privately Policing Dark Patterns Gregory M. Dickinson St. Thomas University - School of Law	128
3.	The Intersection of NFTs and Structured Finance Christopher K. Odinet and Andrea Tosato University of Iowa - College of Law and University of Nottingham, School of Law	114
4.	Artificial Intelligence and Contract Formation: Back to Contract as Bargain? John Linarelli Touro University Jacob D. Fuchsberg Law Center	109
5.	Messy Contracts Uri Benoliel and Samuel Becher College of Law and Business - Ramat Gan Law School and Victoria University of Wellington	94
6.	When Private Law Theory Is Close Enough Andrew S. Gold Brooklyn Law School	94
7.	Fractionalizing Investment Securities: Using FinTech to Expand Financial Inclusion Steven L. Schwarcz and Robert Bourret Duke University School of Law and Duke University School of Law	86
8.	Reliance Paul MacMahon London School of Economics - Law School	79
9.	Hidden Contracts Samuel Becher and Uri Benoliel Victoria University of Wellington and College of Law and Business - Ramat Gan Law School	73
10.	Forced Robot Arbitration David Horton University of California, Davis - School of Law	57

The Truman Show Realized in "Jury Duty"

Yesterday, we posted about the imminent possibility of mental manipulation through brain implants, a world that Philip K. Dick could have easily imagined.  Today, we post about another fictional idea realized.

Thanks to OCU Law 1L Emily Hurt to letting me know about "Jury Duty," a new show on Amazon Freevee.  The show follows Ronald Gladden, a young man who answered an ad on Craig's List and was thus unwittingly cast as himself, a juror, on a mockumentary that follows a jury trial.  I have now watched the first three episodes of the show.  I am not recommending it.  From the reviews, it seems harmless, and Mr. Gladden, now in on the gag, seems delighted with his fifteen minutes of fame.  The point here is that, as with brain implants, the danger of malicious manipulation have already been foretold in the more sinister and yet still hopeful The Truman Show.  

By all accounts, Mr. Gladden is a great stand-in for Jim Carrey's character in The Truman Show.  Like Truman, Mr. Gladden is a kind, receptive person, who rolls with the punches and takes everything in stride.  Unlike Truman, he does not rebel, but he only had to survive seventeen days of shooting rather than a lifetime of 24/7 surveillance.  

Rendy Jones, reviewing the show for RogerEbert.com, provides a rave.  He concludes

The last prank on the audience by "Jury Duty" is how it wrings our emotions more than belly laughs. It's a solid workplace comedy that tells a resonant story of community, delightfully unpacking how it’s not just about serving in this world but who you’re serving with.  

Indeed, whether or not the show works, props to the show runners for orchestrating a comedy shot in a courtroom without giving itself away to the patsy.  Although one has to wonder about Mr. Gladden's ability to suspend disbelief.  Let's face it, courtroom proceedings are mostly dull.  The showrunners try to spice things up with pranks and pratfalls.  The characters are all more eccentric than they need to be.  Neither the characters nor the pranks are  especially realistic.

Reviewing the show in The Guardian, Charles Bramesco has a great opening paragraph: 

With the head of a hidden-camera prank show, the heart of a workplace sitcom, and the body of a true crime documentary, the boundary-blurring new comedy Jury Duty makes for an odd chimera of genres.

The review also reveals the truly appalling fact that Mr. Gladden was sequestered for some significant portion of the shoot.  And that's where contracts come in.

"Jury Duty" wants to compare itself to "The Office," but it is really more akin to a more polished version of Sacha Baron Cohen's shtick.  We've covered Mr. Cohen's Borat-related antics pretty thoroughly on this site and we also covered Roy Moore's suit against him.  Ultimately, I'm not a fan of the broadly-worded release coupled with pressure tactics that trick people into participating in something that is not at all what it represents itself to be, even if it still is a "documentary-style film."  Roy Moore (or his handlers) should have known better, even before he met up with Mr. Cohen and his unibrow, but I sympathize with the ordinary people whom Mr. Cohen and his production company put in impossible situations.  

So, I'm not sure that it is such a great thing that Mr. Gladden is being such a good sport about the fact that he was essentially held hostage for two weeks in order to provide profit for a production company and uneven entertainment fro however many viewers a comedy series on Freevee can garner.  What's the next step, and how do these production companies protect themselves against suit should the next mark respond with something other than Stockholm Syndrome?  They no doubt have a bulletproof waiver, but courts should not uphold a waiver that one is induced to sign through fraudulent inducement.   

I like a good laugh as much as the next person.  But there are things I value more: contractual consent and dignity.

Mind Control and Contracts

Usually, I rely on my colleague Marc Blitz to freak me out about scenarios straight out of Philip K. Dick (right), in which technology takes over or surveils our brains.  But Marc is concerned with the First Amendment of Fourth Amendment ramifications of such technology, and that constitutional stuff is easy to ignore, and it's all made up anyway.

But Allan McCay and Michelle Sharp published an article in the Law Society Journal Online last week that suggests that new advances in neurotechnology may soon have an impact on a field of study that matters -- contracts law.  It seems that the good people who have brought us companies like Microsoft, Twitter, Amazon, and SpaceX are developing technologies that can enable monkeys to play video games through brain implants.  More importantly, similar technologies have helped human beings interact with computer technology and thus to to communicate in ways that they could not do without the aid of the implant.

That sounds good.  The technology might have therapeutic potential for treating Parkinson's disease, epilepsy, and other neurological conditions.  Perhaps some day it really will be possible for a President to de-classify materials just by thinking it!  But wait, perhaps we should be concerned if companies, whose goals include profit maximization, have access to our thoughts.  Might there be some danger of thought manipulation?  The authors imagine that the manufacturers of such technology might use it to overcome impulse control and get consumers to buy things that they otherwise would not buy.  Would such purchases be avoidable contracts?

The authors think that doctrines like unconscionability can provide a remedy for individuals manipulated into contracts through technological means, and they think the doctrine is robust enough to overcome any contractual waivers that vendors might include in their form contracts.  The authors acknowledge the difficulty of proving that the technology caused the purchase.

I think they are on to something.  I can't imagine why anyone would pay $80,000-$110,000 for a Tesla Model X.  Perhaps they are being manipulated through brain implants.  If not, perhaps we have little to fear from neurotechnology, as the technology of advertising is already advanced enough to overcome our impulse control and common sense.  More alarmingly, how did it come about that countries around the world have outsourced responsibility for the launching of satellites, which constitute vital communications infrastructure with undeniable relevance to national security, to a private company owned and controlled by a mercurial plutocrat with a pronounced libertarian streak?  I don't think even Philip K. Dick ever imagined that one.

BigLaw and Non-Negotiable Expectations

I worked at a BigLaw firm.  It was a great experience.  I worked long hours, but I mostly worked for a partner who, like me, was a new father.  He had four children -- triplets, followed by "baby oops" 14 months later.  I had just one daughter, but she was reason enough for me to value weekends in Brooklyn.  So we both worked long hours during the week, getting to the office by 9:30 and working until 8 PM or so some nights and until 2 AM others.  Once it got past 8 PM, it didn't much matter to me how late I stayed, as my wife and daughter would be asleep when I got home in any case.  The partner I worked for would go home to help his wife with bedtime rituals, but he had a home office, and we would be in touch through the night.

The work was interesting, and I really liked my co-workers.  They were serious but fun-loving, with the gallows humor that comes from hard toil in relatively luxurious surroundings and punctuated by occasional experiences of plenty beyond our youthful imaginings (at least for some of us).  Senior associates were for the most part supportive and mentoring, partners were demanding, but avuncular (there were precious few women partners in our group), serious, capable, and hard-working.  I did not aspire to their stations.  They worked as hard as I did, and they had to deal with clients, from whom I was wisely kept away.  

And yet, as great as the experience was, every time someone left the firm, we all thought that they were leaving for something better, and we were happy for them.  When I took my farewell tour of the firm, senior associates were wistful.  I had a Ph.D., so the leap to academia made sense and seemed fore-ordained.  I had been teaching as an adjunct at Brown the semester before I left (one can bill a lot of hours in the "quiet car" on the Acela from Manhattan to Providence!).  There were sighs and references to golden handcuffs.

Last week, Bethany Biron of the Business Insider along with many other sources, shared this slide, allegedly from a presentation given to new associates at Paul Hastings:

Not very much of this accords with my experience of firm life.  Perhaps I was lucky; perhaps things have changed.  But twenty years ago, the following was true:

1.  My salary as an associate was shockingly high -- starting at four times what I made as a history professor before going to law school.  Other than that, my job was not a privilege; it was the offer I took among other offers.  Most of my peers had far more offers than I did, and the job was, for most of us, a stepping stone or a means of paying off loans and getting good experience before moving into a more comfortable life.

2. My relationship with senior associates and partners was collegial.  As a litigation associate who mostly wrote briefs, I was deferential to what more senior lawyers told me about what to include in the brief, but I would also push back if I had become more familiar with the law or the facts because I was closer to where the rubber hit the road.  Other than a couple prickly senior associates who were more interested in their status than in being good at their jobs, the people I worked with would not have wanted it to be otherwise.

3.  Once in my four years at the firm, a partner chastised me for not seeing a voice mail he had left me at 7 AM until 9 AM.  He yelled at me, and I yelled at him, because he could have e-mailed me if he really wanted to contact me  -- I would have seen that and come in early.  I had been in the office until 2 AM the prior night working on a brief.  He was mad, but he was also grinning a bit, perhaps remembering why he never wanted to work with me.  He didn't give me any more work after that, and that's fine.  He chewed up associates and spat them out, but he wasn't going to get his teeth into me.

4.  As a litigation associate, my timelines were set by courts, not by clients.  We did good work for clients, making troublesome suits go away through dispositive motions.  I never felt any pressure from clients to work at anything other than my usual pace.  The partners told me when they wanted things, and I met the deadlines.

5. Associates are billed out at ridiculously high rates.  That is true.  It is also true (or so I was told) that clients challenge billing rates, and partners have to write off time that is not well spent.  That is the real point -- if you are not productive, you are expensive for the partner; that is what you should probably keep in mind.

6. It is true that a person who gets paid like the associates at BigLaw should own their mistakes -- and such mistakes should be exceedingly rare when the stakes are high.  But you are always part of a team, and when my team made mistakes, we put all our energy into addressing the mistakes and none of our energy into determining who made the mistakes, unless in an attempt to make sure that the mistakes were not replicated.

7. Work from homes was not a thing in Y2K, and I don't understand the passion for it now.  I loved going to work and seeing my colleagues face to face.  I still do.

8. No questions?  Life for me was a continual back and forth with the partner and associates with whom I worked.  When I rose to the level of mid-level associate, I would have been miffed if I gave an assignment to a new associate and they did not come back to me with questions.  They would spin their wheels and waste their time.

9. If "I don't know" is the truth, it is the best possible answer.  Especially if it is followed up with, "I will research the matter and get back to you."  I had the experience many times that a more seasoned lawyer would ask a question to which I had no good answer.  They knew to ask about what were for me unknown unknowns.  Pretending that I knew about something I had not considered would have been disastrous for all involved.

10. For some new associates, the firm is the beginning of a career; for others, it's a job.  It can be rewarding; you can learn a lot, but it might not be your passion.  If you cannot find the inner resources to do your job to the best of your ability, you should indeed move on.  But your reputation does not turn on it.  Firms do not bad-mouth former employees.  I worked with only two really bad lawyers at my firm.  One became a head-hunter, and she had a very successful career.  The other became a journalist, and he has nearly 100,000 Twitter followers.  I worked for another lawyer who wanted ever-so-badly to be a partner.  He didn't make it.  They rejected him.  He went in-house for one of the firm's clients, and the last time I saw him he was regaling partners with stories that I doubt were any more interesting than the stories he told as a senior associate.  They hung on his every word, stopping only to refill his drink or fetch him more hors d'oeuvres.  

Blog Editor Emeritus Frank Snyder and the Commemoration of Priday's Mill

in 1850, a mill was established for the Hadley brothers.  Three years later, their crankshaft broke, and they sent the broken shaft off to serve as a model for a replacement.  So contracts history was made.  One hundred and fifty years later, the International Conference on Contracts was born and that first iteration of the conference included a visit to the site of the Hadley brothers' mill, known as the City Flour Mills but also as Priday's Mill.  

The site was being converted into a block of flats, but inspired by the conference, the city of Gloucester erected a commemorative plaque:

Frank Snyder, this blog's founding editor, was also part of the crew that organized that first conference, and he was invited back to Gloucester for the unveiling of the plaque.  Next year, KCON XVII will return to England for the first time since that inaugural conference, and Frank will no doubt continue his central organizational role.

What great unveilings await us as KCON enters its third decade of existence?

LPE Project on Religious Accommodations for Postal Workers

We have been posting occasionally on the intersection of contracts rights and the First Amendment, with special focus on SCOTUS cases on that subject.  Links to various posts are provided in this post on Orin Kerr's work on contracts and the Fourth Amendment.  

But James D. Nelson, Elizabeth Sepper, & Kate Redburn have done us one better posting How the Court is Pitting Workers Against Each Other on the Law & Political Economy Projects Blog.  The post anticipates what might lie ahead in the aftermath of a case, Groff v. Dejoy, that SCOTUS is due to hear next week.  The case addresses the rights of postal workers to accommodations for their religious beliefs.

Plaintiff Groff was a mail carrier working for the U.S. Postal Service (USPS).  USPS entered into an agreement with Amazon to provide delivery services, including on Sundays.  As an evangelical Christian, Mr. Groff requested an accommodation, but USPS could not always find other postal carriers to take his shift, and on more than twenty Sundays, he was expected to work.  He refused to do so and eventually quit in order to avoid being fired.  He claims that USPS violated his right to a reasonable accommodation under Title VII of the Civil Rights Act.

While Groff seems to offer the possibility of interest conversion between people seeking religious accommodations and workers' rights, the blog post points out that the cost of the reasonable accommodation of Mr. Groff's religious interest will fall on other workers, who will have to give up their Sundays to cover Mr. Groff's shifts.  As the LPE authors put it:

Interpreting Title VII to require employers to impose hardships on other workers to accommodate religion would threaten the preconditions for viable collective action. Workplaces and unions rely on a sense of reciprocity, mutual support, or solidarity. And labor agreements reflect that spirit of shared interest and mutual compromise among workers. But a religious accommodation doctrine that lets some employees foist the cost of their religious exercise onto others threatens to tip these delicate balances, cutting against worker interests rather than in their favor.

And once the door is open to requiring businesses to accommodate religious employees even if that accommodation comes at the expense of other employees, the authors predict that more cases will follow that will erode protections for vulnerable minorities both as customers and as employees.  Their focus is more on the broader societal impact of religious accommodations than on the intersection between employment law and First Amendment rights.

The post notes that the old standard under Trans World Airlines, Inc. v. Hardison called for accommodation of religious observance only if the accommodation does not impose an undue hardship on the employer.  An undue hardship could be anything more than a de minimis cost imposed on an employer or a union.  The post concedes that the Hardison standard does not provide adequate protections for employees seeking accommodations.  It provides no clear guidance as to how to accommodate religious observance without eroding workplace solidarity.

I wonder if there is not a way to preserve the part of Hardison that calls for imposing no more than a de minimis cost on other workers or on unions.  The employer itself could reasonably be expected to bear a cost that is greater than de minimis.  In this case, for example, USPS might hire additional workers for Sunday shifts so as to accommodate Mr. Groff's religious beliefs while not eroding worker solidarity.  In the alternative, the employer could be required to pay additional compensation (or grant extended vacation time) to workers willing to work Sundays up to the point where all the shifts are taken, so long as doing so does not eliminate the advantages of the contract with Amazon.

Tuesday Top Ten - Contracts & Commercial Law Downloads for April 11, 2023

The Tuesday Top Ten returns to its proper Tuesday slot today, thankfully avoiding any breach of express warranty for a nonconforming blog post. Let's check the charts and see what is happening with our favorite subject areas on SSRN.

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 10 Feb 2023 - 11 Apr 2023

Rank	Paper	Downloads
1.	Algorithmic Black Swans Noam Kolt University of Toronto	1,027
2.	Green Bonds, Empty Promises Quinn Curtis, Mark C. Weidemaier and Mitu Gulati University of Virginia School of Law, University of North Carolina School of Law and University of Virginia School of Law	733
3.	Trade Secret Case Management Judicial Guide Peter S. Menell, David Almeling, Victoria A Cundiff, James Pooley, Elizabeth A. Rowe, Peter J. Toren and Rebecca Wexler UC Berkeley School of Law, O'Melveny & Myers LLP, Independent, James Pooley PLC, University of Virginia School of Law, Brown & Wood LLP and University of California, Berkeley, School of Law	544
4.	Contract-Wrapped Property Danielle D'Onfro Washington University in St. Louis - School of Law	353
5.	How ChatGPT and Generative AI Systems will Revolutionize Legal Services and the Legal Profession Rupert Macey-Dare St Cross College - University of Oxford	202
6.	Silencing Litigation Through Bankruptcy Pamela Foohey and Christopher K. Odinet Yeshiva University - Benjamin N. Cardozo School of Law and University of Iowa - College of Law	169
7.	Do Firms Value Court Enforceability of Noncompete Agreements? A Revealed Preference Approach Takuya Hiraiwa, Michael Lipsitz and Evan Starr University of Maryland - Robert H. Smith School of Business, Federal Trade Commission Bureau of Economics and University of Maryland - Robert H. Smith School of Business	161
8.	The Scope of the Digital Services Act and Digital Markets Act: Thoughts on the Conflict of Laws Tobias Lutzi University of Augsburg	156
9.	Privately Policing Dark Patterns Gregory M. Dickinson St. Thomas University - School of Law	116
10.	Non-Fungible Tokens (NFTs), Smart Contracts and Contracts: The Need for Legal and Technology Assurances Joshua Ellul and Ioannis Revolidis University of Malta and University of Malta, Centre for Distributed Ledger Technologies and Department of Media, Communications & Technology Law	105

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 10 Feb 2023 - 11 Apr 2023

Rank	Paper	Downloads
1.	Choice of Law in the American Courts in 2022: Thirty-Sixth Annual Survey John F. Coyle, William S. Dodge and Aaron D. Simowitz University of North Carolina School of Law, University of California, Davis - School of Law and Willamette University College of Law	220
2.	Do Firms Value Court Enforceability of Noncompete Agreements? A Revealed Preference Approach Takuya Hiraiwa, Michael Lipsitz and Evan Starr University of Maryland - Robert H. Smith School of Business, Federal Trade Commission Bureau of Economics and University of Maryland - Robert H. Smith School of Business	161
3.	Privately Policing Dark Patterns Gregory M. Dickinson St. Thomas University - School of Law	116
4.	The Intersection of NFTs and Structured Finance Christopher K. Odinet and Andrea Tosato University of Iowa - College of Law and University of Nottingham, School of Law	104
5.	When Private Law Theory Is Close Enough Andrew S. Gold Brooklyn Law School	93
6.	Messy Contracts Uri Benoliel and Samuel Becher College of Law and Business - Ramat Gan Law School and Victoria University of Wellington	85
7.	Reliance Paul MacMahon London School of Economics - Law School	74
8.	Fractionalizing Investment Securities: Using FinTech to Expand Financial Inclusion Steven L. Schwarcz and Robert Bourret Duke University School of Law and Duke University School of Law	61
9.	Forced Robot Arbitration David Horton University of California, Davis - School of Law	45
10.	The Due Process Paranoia in International Arbitration Roshani Rathore O. P. Jindal Global University - Jindal Global Law School (JGLS)	37

Georgia Court Enforces One-Year Statute of Limitations in a Wrongful Death Case

In BPG Inspection v. Omstead,  BPG agreed to a fee of $380 to conduct an inspection of the home that the Omstead's were considering purchasing.  The key contractual language at issue ran as follows:

YOU MAY NOT FILE A LEGAL ACTION, WHETHER SOUNDING IN TORT (EVEN IF DUE TO OUR NEGLIGENCE OR OTHER FAULT), CONTRACT, ARBITRATION OR OTHERWISE, AGAINST US OR OUR EMPLOYEES MORE THAN ONE YEAR AFTER THE INSPECTION, EVEN IF YOU DO NOT DISCOVER A DEFECT UNTIL AFTER THAT. THIS TIME LIMIT MAY BE SHORTER THAN THE LAW OTHERWISE PROVIDES.

A BPG employee undertook the inspection in February 2020 and provided a report that cautioned that the inspector's role was to identify material defects discovered upon visual examination.  "Latent, inaccessible, or concealed defects are excluded from this inspection."  The report mentioned a seven-foot tall retaining wall but observed that it seemed to be functioning as intended.  The inspector returned one month later in connection with some repairs that the Omstead's had requested of the sellers.  

The Omsteads later discovered that defects in the retaining wall was causing water to leak into their garage.  While they were attempting to address those defects in July 2021, the wall collapsed onto Mr. Omstead, and he died from his injuries. In September 2021, Mrs. Omstead filed suit against BPG and its inspector, alleging negligence, fraud, breach of contract, and breach of warranty.  The trial court denied summary judgment to defendants, finding its exculpatory clauses void as against public policy.  

In January, the Georgia Court of Appeals dismissed this case based on the one-year limitation on claims. Under Georgia law, such a limitation can be enforced, even in the case of a wrongful death suit.   The Court of Appeals stressed the courts' limited ability to find contractual provisions void for violating public policy.  The court canvassed Georgia statutes, including statutes that provide for the invalidity of some categories of contracts on public policy grounds.  It could find no statutory basis for invalidating the limitation at issue in this case, nor did it find any precedent that would permit it to do so consistent with Georgia law.  

Judge Barnes specially concurred.  Although she agreed that the majority had correctly applied existing law, she wrote separately to urge the legislature "to enact legislation prohibiting parties from contractually shortening the statute of limitation for bringing tort claims arising out of personal injury or wrongful death."  She noted that legislatures in Alabama, Mississippi, and South Carolina have already done so.  Hooray for inter-branch dialogue!  

And yet, I'm not sure if Alabama, Mississippi, and South Carolina have this one right.  Given the limited scope of the inspection and the low fee charged for it, limiting exposure to liability makes a lot of sense.  From the facts we have, it does not look like plaintiff would have a strong case, even if there were a way around the one-year limitation on claims.  These were latent defects, not discoverable without specialized expertise.  If the leak was substantial, there might have been evidence of water damage, but perhaps the problem was really that sellers concealed that damage.  So many possibilities.  And given that water slowly erodes at surfaces, I'm not sure how a trier of fact winds back to the clock to determine whether the problems that caused the wall to collapse should have been detectable fifteen months earlier.  

Catching up on JOTWELL

There have been three excellent posts on the JOTWELL contracts page since last we checked in there.  Taking them in reverse order:

Nancy Kim (left) has a post, Click to Agree That Terms of Use Are Incomprehensible, which reviews Tim Samples, Katherine Ireland, and Caroline Kraczon, TL;DR: The Law and Linguistics of Social Platform Terms-of-Use, __ Berkeley Tech. L. J. __ (forthcoming 2023), available at SSRN, an interdisciplinary study of 196 agreements for 75 smartphone-based social platforms.  Key takeaways: these TOUs operate on a massive scale, effecting billions of users; the platforms are attention-surveillance business platforms that “deploy addictive interfaces (also known as ‘dark patterns’) to maximize user engagement," these platforms mediate almost every aspect of our daily lives, and the TOUs play a vital role in digital governance.  And then here's the best part, the TOUs are incomprehensible, which means that our classical doctrinal approaches to contractual assent, intent and reasonable expectation do not accurately describe what happens when we click "I agree."  

In February, David Hoffman (right) published Waivers Are Some Crazy Stuff, reviewing Keith Hylton, Waivers (2022), available at SSRN.  When you are done worrying about TOUs, you can start worrying about waivers, which are not exactly contracts, as they are unilateral and require no consideration, they are easily created and often easily reversed, they are subject to varying rules across jurisdictions, and they are ubiquitous.  Professor Hylton provides an economic analysis of the law of waivers, acknowledging the concerns sounding in consumer protections about boilerplate waivers but argues that waivers are nonetheless welfare-enhancing and result from consumer choices about the goods and services they purchase even if consumers do not know what they have waived.  Professor Hoffman recommends Professor Hylton's work because it is relevant to a general defense of boilerplate contracting, and it is short and relatively free from economics jargon. 

Finally, in January, Daniel Barnhizer (left) posted Perceptions and Reality, reviewing J.J. Prescott and Evan Starr, Subjective Beliefs about Contract Enforceability __ J. Legal Stud. __ forthcoming 2023, available at SSRN.  As presented by Professor Barnhizer, the article is an application of Roscoe Pound's observation of the divergence form law on the books and law in action, addressing the divergence between parties' perceptions of contract enforceability and legal doctrine.  The article proposes ways to bridge that divide in the realm of employment agreements.  The authors note at the start that non-compete clauses abound and influence mobility in states where they are unenforceable.  According to the authors, 70% of employees in such states believe incorrectly that the non-compete clauses are enforceable.  But educational outreach may affect their willingness to switch jobs notwithstanding the unenforceable non-competes.

So, to summarize these state of the world based on these three articles: terms of service and other boilerplate contracts, which might include waivers, are ubiquitous, powerful, and bind consumers who have not read and could not understand their terms.  They shape real-world behavior regardless of their enforceability.  But economic theory suggests that they may just reflect our preferences and are generally welfare-enhancing. 

Reminder: COVID and the Casebook Registration Closes April 14th!

Temple Law School and the University of Wisconsin Law School are hosting a Workshop 4/21/23 at Temple Law School:  Contract Law in Action:  COVID and the Casebook.  This free workshop (hybrid and in-person) will focus on (i) the effect of the last few years on the delivery of Contracts teaching materials (e.g., what is the role of the Contracts casebook?); and (ii) how, in early hindsight, have our predictions about COVID and Contract doctrine, documented in a 2021 issue of Law and Contemporary Problems, played out?

d
We have great panelists, including Ed Cheng (Vanderbilt), Sarah Dadush (Rutgers), Pamela Foohey (Cardozo), Bob Hillman (Cornell), Dave Hoffman (Penn), Marissa Jackson (Richmond), Thomas Joo (UC-Davis), Kish Parella (W&L), Dylan Penningroth (Berkeley), Mitra Sharafi (Wisconsin), Andrew Schwartz (Colorado), Gordon Smith (BYU) and Rip Verkerke (UVA), 

We hope you can join us.  The registration link is here.  Please note that registration closes April 14, 2023.

Jonathan Lipson, Rachel Rebouche, Wendy Epstein, Gilat Bachar (organizers).

"Constructive Tuesday" Top Ten - Contracts & Commercial Law Downloads for April 5, 2023

Welcome to "Constructive Tuesday," known to the rest of the world as, well, Wednesday. Yes, this week's Top Ten post is a day late, but it certainly isn't a dollar short. Let's see what SSRN has on offer in the realm of recent contracts and commercial law scholarship:

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 04 Feb 2023 - 05 Apr 2023

Rank	Paper	Downloads
1.	The Value of M&A Drafting Adam B. Badawi, Elisabeth de Fontenay and Julian Nyarko University of California, Berkeley - School of Law, Duke University School of Law and Stanford Law School	1,146
2.	Algorithmic Black Swans Noam Kolt University of Toronto	938
3.	Green Bonds, Empty Promises Quinn Curtis, Mark C. Weidemaier and Mitu Gulati University of Virginia School of Law, University of North Carolina School of Law and University of Virginia School of Law	716
4.	Defeating the Empire of Forms David A. Hoffman University of Pennsylvania Carey Law School	668
5.	Contract-Wrapped Property Danielle D'Onfro Washington University in St. Louis - School of Law	345
6.	How ChatGPT and Generative AI Systems will Revolutionize Legal Services and the Legal Profession Rupert Macey-Dare St Cross College - University of Oxford	160
7.	Do Firms Value Court Enforceability of Noncompete Agreements? A Revealed Preference Approach Takuya Hiraiwa, Michael Lipsitz and Evan Starr University of Maryland - Robert H. Smith School of Business, Federal Trade Commission Bureau of Economics and University of Maryland - Robert H. Smith School of Business	150
8.	Expecting Specific Performance Tess Wilkinson‐Ryan, David A. Hoffman and Emily Campbell University of Pennsylvania Carey Law School, University of Pennsylvania Carey Law School and University of Pennsylvania Carey Law School	146
9.	The Scope of the Digital Services Act and Digital Markets Act: Thoughts on the Conflict of Laws Tobias Lutzi University of Augsburg	141
10.	Making Climate Pledges Stick: A Private Ordering Mechanism for Climate Commitments Oren Perez and Michael P. Vandenbergh Bar-Ilan University - Faculty of Law and Vanderbilt University - Law School	122

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 04 Feb 2023 - 05 Apr 2023

Rank	Paper	Downloads
1.	Defeating the Empire of Forms David A. Hoffman University of Pennsylvania Carey Law School	668
2.	Choice of Law in the American Courts in 2022: Thirty-Sixth Annual Survey John F. Coyle, William S. Dodge and Aaron D. Simowitz University of North Carolina School of Law, University of California, Davis - School of Law and Willamette University College of Law	217
3.	Do Firms Value Court Enforceability of Noncompete Agreements? A Revealed Preference Approach Takuya Hiraiwa, Michael Lipsitz and Evan Starr University of Maryland - Robert H. Smith School of Business, Federal Trade Commission Bureau of Economics and University of Maryland - Robert H. Smith School of Business	150
4.	Expecting Specific Performance Tess Wilkinson‐Ryan, David A. Hoffman and Emily Campbell University of Pennsylvania Carey Law School, University of Pennsylvania Carey Law School and University of Pennsylvania Carey Law School	146
5.	The Intersection of NFTs and Structured Finance Christopher K. Odinet and Andrea Tosato University of Iowa - College of Law and University of Nottingham, School of Law	102
6.	Privately Policing Dark Patterns Gregory M. Dickinson St. Thomas University - School of Law	93
7.	When Private Law Theory Is Close Enough Andrew S. Gold Brooklyn Law School	93
8.	Reliance Paul MacMahon London School of Economics - Law School	73
9.	Fixing Standard-Form Contracts Shirly Levy Peres Academic Center	50
10.	Binding Nonsignatories to Forum Selection Clauses Jeffrey A. Parness Northern Illinois University - College of Law	39

Shawn Bayern Book Panel: "Autonomous Organizations" at FSU Law

Friend of the blog and FSU College of Law Professor Shawn Bayern is the author of AUTONOMOUS ORGANIZATIONS (Cambridge University Press 2021). Professor Bayern proposes a novel way to use limited liability companies (LLCs) to give legal personhood to software, including artificial intelligence, and carefully explains why doing so isn’t as alarming as it sounds.

The book forum is on Thursday, April 6 from 3:00 PM at the FSU College of Law Main Classroom Building – Room 310. Guest discussants include Susan Morse of the University of Texas Law School, Anthony Casey of the University of Chicago Law School; and Anthony Niblett of the University of Toronto Faculty of Law.

CLE is being applied for this event. 
Register now. (https://fsu.forms-db.com/view.php?id=1427318) ;

 Thursday, April 6 at 3:00pm to 5:00pm

 Main Classroom Building (Law School) (LAW), 310
506 W Pensacola St., Tallahassee, FL