ContractsProf Blog

Weekend Frivolity Top Ten Blog Posts of 2023

As we reach the end of another circuit around the sun, it is nice to scroll through the blog feed and be reminded of some of the memorable moments of the year that was.  Here are my favorite posts from the last year:

#10 Good Boi Expels Gas (and Fancy People) from First Class: the story of a charming dog and the people who sued the airline because they couldn't abide dog farts and drool.

#9 Five Million Reasons to Love Unilateral Contracts: Mike Lindell tries to rig a contest and still loses!

#8 Can You Recover An Engagement Ring If You Are Already Married When You Proposed? In a highly unusual capacity case, a court finds that a man lacked the capacity to promise to marry a woman when he was already married to someone else.  His gift of the ring was thus unconditional, and his ex got to keep the ring after the two called off their nuptials.

#7 From Sid DeLong, Something About Nothing:  Inspired by Jens Haaning's "Take the Money and Run" work of performance art, Sid DeLong contemplates the art of getting paid for doing nothing.

#6 Seth Barrett Tillman in Arbitration Dispute Over Who Won the US Senate in 2022: We had the joy of covering an arbitration case involving a real live law professor!

#5 The OceanGate Liability Waiver and Exculpatory Agreement: The world became briefly obsessed with liability waivers, and so did we -- well, we kinda already were.

#4 The Art of the Steal and the Art of (Not) Paying Damages: Following up on earlier posts about Jens Haaning's work, we cover the ensuing court case in which the museum attempts to recover its money.

#3 Sanctions and Warnings for Attorneys' Use of ChatGPT: In what is sure to become a regular feature, we cover the first round of incidents involving attorneys relying on AI and getting called out for artificial ineptitude.

#2 Emoji as Acceptance: The semester started off very well, with a case about emojis in connection with formation and the Statute of Frauds.

And the #1 top blog post for 2023 is:

Actually a series of blog posts, Virtual Symposium: Mel Eisenberg and Contracts Law Scholarship:  numerous friends of the blog responded to the call with guest posts, and Mel followed up with a series of responses.  You can find links to all of the posts at the bottom of each post.

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for December 19, 2023

Season's greetings, and welcome to the final Tuesday Top Ten list of 2023. We here at ContractsProf Blog hope that the holiday season, travel, and the attendant intersession break treat you well! If all goes according to plan, we should be back up and ready to celebrate 2024 with a new list on January 2. In the meantime, we have plenty to enjoy from our favorite academic disciplines:

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 20 Oct 2023 - 19 Dec 2023

Rank	Paper	Downloads
1.	Lawyering in the Age of Artificial Intelligence Jonathan H. Choi, Amy Monahan and Daniel Schwarcz University of Minnesota Law School, University of Minnesota Law School and University of Minnesota Law School Date Posted: 09 Nov 2023 Last Revised: 06 Dec 2023	3,490
2.	Forced Contracts and Contractual Freedom: A Comparative Legal Analysis of the Ex Lege Duty to Contract and Not To António Barroso Rodrigues Faculty of Law of the University of Lisbon Date Posted: 20 Oct 2023 Last Revised: 24 Oct 2023	502
3.	Contracts Part 1: Offer, Acceptance, Consideration Michael Conklin Angelo State University - Business Law Date Posted: 05 Oct 2023 Last Revised: 12 Oct 2023	293
4.	Contracts Part 2: Capacity, Legality, Writings, and Miscellaneous Michael Conklin Angelo State University - Business Law Date Posted: 05 Oct 2023 Last Revised: 05 Oct 2023	240
5.	Amendments to the Uniform Commercial Code: Implications for Real-Time Payments Thomas P. Brown and Isabel Steinhaus Nyca Partners and Nyca Partners Date Posted: 27 Nov 2023 Last Revised: 27 Nov 2023	206
6.	Taking Personhood Seriously Asaf Raz University of Pennsylvania Carey Law School Date Posted: 14 Nov 2023 Last Revised: 14 Nov 2023	158
7.	Is Private Law Normatively Distinctive? Paul B. Miller Notre Dame Law School Date Posted: 17 Oct 2023 Last Revised: 17 Oct 2023	129
8.	A Contractual Approach to Social Media Governance Gilad Mills Harvard University - Harvard Law School Date Posted: 14 Nov 2023 Last Revised: 27 Nov 2023	82
9.	Brief of Amici Curiae Law Professors in Support of Appellant on the Role of Bankruptcy Examiners in Chapter 11 Reorganization Jonathan C. Lipson Temple University - James E. Beasley School of Law Date Posted: 27 Oct 2023 Last Revised: 27 Oct 2023	81
10.	South West Terminal Ltd. v Achter Land: Contractual and Evidential Implications Olabisi D. Akinkugbe and Robert J. Currie Dalhousie University - Schulich School of Law and Dalhousie University - Schulich School of Law Date Posted: 27 Oct 2023 Last Revised: 27 Oct 2023	79

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 20 Oct 2023 - 19 Dec 2023

Rank	Paper	Downloads
1.	Contracts Part 1: Offer, Acceptance, Consideration Michael Conklin Angelo State University - Business Law Date Posted: 05 Oct 2023 Last Revised: 12 Oct 2023	293
2.	Contracts Part 2: Capacity, Legality, Writings, and Miscellaneous Michael Conklin Angelo State University - Business Law Date Posted: 05 Oct 2023 Last Revised: 05 Oct 2023	240
3.	Taking Personhood Seriously Asaf Raz University of Pennsylvania Carey Law School Date Posted: 14 Nov 2023 Last Revised: 14 Nov 2023	158
4.	A Contractual Approach to Social Media Governance Gilad Mills Harvard University - Harvard Law School Date Posted: 14 Nov 2023 Last Revised: 27 Nov 2023	82
5.	South West Terminal Ltd. v Achter Land: Contractual and Evidential Implications Olabisi D. Akinkugbe and Robert J. Currie Dalhousie University - Schulich School of Law and Dalhousie University - Schulich School of Law Date Posted: 27 Oct 2023 Last Revised: 27 Oct 2023	79
6.	The Property Law of Crypto Tokens Jakub Wyczik University of Silesia in Katowice Date Posted: 22 Nov 2023 Last Revised: 23 Nov 2023	65
7.	Contracting under Asymmetric Information and Externalities: An Experimental Study Petra Nieken and Patrick W. Schmitz Karlsruhe Institute of Technology and University of Cologne Date Posted: 30 Oct 2023 Last Revised: 02 Nov 2023	65
8.	Convergence by Design: Who Contracts and the Plural Purposes of Contract Law Gregory Klass Georgetown University Law Center Date Posted: 16 Nov 2023 Last Revised: 18 Nov 2023	56
9.	Off-Label Preemption David A. Simon Northeastern University School of Law Date Posted: 30 Nov 2023 Last Revised: 07 Dec 2023	55
10.	The Elegance of Private Law Andrew S. Gold Brooklyn Law School Date Posted: 06 Dec 2023 Last Revised: 06 Dec 2023	43

 

Contracts Hiring at Widener Law

Widener Law Commonwealth seeks an entry-level or pre-tenure lateral faculty member to fill one tenure track position starting in the 2024-2025 academic year. We have a specific need in our year-long Contracts course. The remainder of the teaching package is flexible. This position reports to the dean of the law school.

WLC is a dynamic community of teachers and scholars. We pride ourselves on our dedication to our students, our engagement with teaching, and our scholarly impact. Many of our scholars are actively engaged in law reform efforts at both the state and federal level.

The law school is committed to fostering an environment in which faculty, staff, and students from a variety of backgrounds, cultures, and personal experiences are welcomed and can thrive. Faculty and staff are active participants in our work to enhance diversity, equity, inclusion, and belonging. We welcome applications from members of historically underrepresented groups.

Established in 1989, Widener Law Commonwealth is an independently accredited law school within Widener University. Located in Harrisburg, PA, the law school’s location in the capital of Pennsylvania provides impactful experiences for both our faculty and students. 

DUTIES AND RESPONSIBILITIES (including, but not limited to):

Essential duties:

• Teach first-year, upper division required, and elective classes both in the day and evening
• In particular we are seeking some to teach in our year-long Contracts course
• Engage in scholarship
• Provide service to the Law School and the community

Secondary responsibilities:

• Advise students and student organizations

MINIMUM QUALIFICATIONS (education/training and experience required):

Required:

• J.D. degree from an ABA-accredited law school or an equivalent degree
• A minimum of three years or related work or teaching experience
• Strong academic or practice background in one or more of the courses to be taught
• A capacity for and a commitment to be an effective teacher in the classroom
• Demonstrated potential to be a productive scholar
• A capacity for and commitment to work with and to mentor students
• Demonstrated proficiency with Microsoft Office, including Word, Excel, PowerPoint, and Outlook.
• Demonstrated proficiency with Zoom

Preferred:

• Full-time or adjunct law school teaching experience
• Experience teaching via distance education
• Demonstrated proficiency with a learning management system, such as Canvas

PHYSICAL REQUIREMENTS AND/OR UNUSUAL HOURS: 

• Must be available to teach day and evening division courses

All qualified applicants are encouraged to apply and will receive consideration for employment without regard to race, religion, color, national origin, age, sex, sexual orientation, disability status, or any other characteristic protected by applicable law. Widener University is committed to fostering an inclusive community in which faculty, staff, and students from a variety of backgrounds, cultures, and personal experiences are welcomed and can thrive. We are an equal opportunity employer and are committed to providing equal educational and employment opportunities for all persons without regard to age, color, national origin, race, religion, disability, veteran status, sex, sexual orientation, gender identity, genetic information, or status as a protected veteran.

Widener University, an independent, metropolitan, doctoral-intensive university, connects curricula to social issues through civic engagement. Dynamic teaching, active scholarship, personal attention and experiential learning are key components of the Widener Experience. Located in Chester, PA, Widener's main campus is nestled between Philadelphia, PA and Wilmington, DE, with Law Schools located in both Harrisburg and Wilmington. For more information about the university, please visit our website at www.widener.edu.

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for December 12, 2023

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 13 Oct 2023 - 12 Dec 2023

Rank	Paper	Downloads
1.	Lawyering in the Age of Artificial Intelligence Jonathan H. Choi, Amy Monahan and Daniel Schwarcz University of Minnesota Law School, University of Minnesota Law School and University of Minnesota Law School	2,258
2.	Forced Contracts and Contractual Freedom: A Comparative Legal Analysis of the Ex Lege Duty to Contract and Not To António Barroso Rodrigues Faculty of Law of the University of Lisbon	480
3.	Contracts Part 1: Offer, Acceptance, Consideration Michael Conklin Angelo State University - Business Law	293
4.	Contracts Part 2: Capacity, Legality, Writings, and Miscellaneous Michael Conklin Angelo State University - Business Law	240
5.	Amendments to the Uniform Commercial Code: Implications for Real-Time Payments Thomas P. Brown and Isabel Steinhaus Nyca Partners and Nyca Partners	199
6.	Taking Personhood Seriously Asaf Raz University of Pennsylvania Carey Law School	147
7.	Is Private Law Normatively Distinctive? Paul B. Miller Notre Dame Law School	128
8.	Defining Smart Contracts Brian Haney Independent	121
9.	Loopholes in Complex Contracts Kenneth Ayotte and Adam B. Badawi University of California, Berkeley - School of Law and University of California, Berkeley - School of Law	102
10.	Brief of Amici Curiae Law Professors in Support of Appellant on the Role of Bankruptcy Examiners in Chapter 11 Reorganization Jonathan C. Lipson Temple University - James E. Beasley School of Law	81

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 13 Oct 2023 - 12 Dec 2023

Rank	Paper	Downloads
1.	Contracts Part 1: Offer, Acceptance, Consideration Michael Conklin Angelo State University - Business Law	293
2.	Contracts Part 2: Capacity, Legality, Writings, and Miscellaneous Michael Conklin Angelo State University - Business Law	240
3.	Taking Personhood Seriously Asaf Raz University of Pennsylvania Carey Law School	147
4.	South West Terminal Ltd. v Achter Land: Contractual and Evidential Implications Olabisi D. Akinkugbe and Robert J. Currie Dalhousie University - Schulich School of Law and Dalhousie University - Schulich School of Law	79
5.	A Contractual Approach to Social Media Governance Gilad Mills Harvard University - Harvard Law School	76
6.	Contracting under Asymmetric Information and Externalities: An Experimental Study Petra Nieken and Patrick W. Schmitz Karlsruhe Institute of Technology and University of Cologne	64
7.	The Property Law of Crypto Tokens Jakub Wyczik University of Silesia in Katowice	62
8.	Off-Label Preemption David A. Simon Northeastern University School of Law	51
9.	Convergence by Design: Who Contracts and the Plural Purposes of Contract Law Gregory Klass Georgetown University Law Center	49
10.	Independent Contractors and The ABCs of Contract Law Hanoch Dagan and Catherine Fisk Berkeley Law School and University of California, Berkeley - School of Law	28

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for December 5, 2023

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 06 Oct 2023 - 05 Dec 2023

Rank	Paper	Downloads
1.	Lawyering in the Age of Artificial Intelligence Jonathan H. Choi, Amy Monahan and Daniel Schwarcz University of Minnesota Law School, University of Minnesota Law School and University of Minnesota Law School	2,126
2.	Forced Contracts and Contractual Freedom: A Comparative Legal Analysis of the Ex Lege Duty to Contract and Not To António Barroso Rodrigues Faculty of Law of the University of Lisbon	463
3.	Contracts Part 1: Offer, Acceptance, Consideration Michael Conklin Angelo State University - Business Law	289
4.	Contracts Part 2: Capacity, Legality, Writings, and Miscellaneous Michael Conklin Angelo State University - Business Law	238
5.	Amendments to the Uniform Commercial Code: Implications for Real-Time Payments Thomas P. Brown and Isabel Steinhaus Nyca Partners and Nyca Partners	191
6.	Procurement and Artificial Intelligence Cary Coglianese University of Pennsylvania Carey Law School	151
7.	Is Private Law Normatively Distinctive? Paul B. Miller Notre Dame Law School	123
8.	Taking Personhood Seriously Asaf Raz University of Pennsylvania Carey Law School	117
9.	Defining Smart Contracts Brian Haney Independent	111
10.	Loopholes in Complex Contracts Kenneth Ayotte and Adam B. Badawi University of California, Berkeley - School of Law and University of California, Berkeley - School of Law	97

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 06 Oct 2023 - 05 Dec 2023

Rank	Paper	Downloads
1.	Contracts Part 1: Offer, Acceptance, Consideration Michael Conklin Angelo State University - Business Law	289
2.	Contracts Part 2: Capacity, Legality, Writings, and Miscellaneous Michael Conklin Angelo State University - Business Law	238
3.	Taking Personhood Seriously Asaf Raz University of Pennsylvania Carey Law School	117
4.	South West Terminal Ltd. v Achter Land: Contractual and Evidential Implications Olabisi D. Akinkugbe and Robert J. Currie Dalhousie University - Schulich School of Law and Dalhousie University - Schulich School of Law	76
5.	Contracting under Asymmetric Information and Externalities: An Experimental Study Petra Nieken and Patrick W. Schmitz Karlsruhe Institute of Technology and University of Cologne	63
6.	The Property Law of Crypto Tokens Jakub Wyczik University of Silesia in Katowice	55
7.	Convergence by Design: Who Contracts and the Plural Purposes of Contract Law Gregory Klass Georgetown University Law Center	43
8.	Off-Label Preemption David A. Simon Northeastern University School of Law	41
9.	Governance of Artificial Intelligence in the European Union: What Place for Consumer Protection? (Foreword & Introduction) Axel Voss, Cécile Pellegrini and Marion Ho-Dac European Parliament, UCLY and Artois University	22
10.	Choice Theory of Contracts- The Role of Law of Contracts in Liberal State Mahi Pandit Independent	21

The No Responsibility Disclaimer

Contracts Prof Emeritus Royce de R. Barondes (right) brings us news of the latest liability dodge that Terms of Service designers have dreamed up.  Professor Barondes booked a hotel room through Priceline.  When he arrived, he was informed that the hotel had no vacancies and so his reservation had been canceled.  He then discovered the following language in Priceline's terms of service, which I quote in full because the sweep  is so breathtaking: 

To the extent permitted by law, in no event shall Priceline, including its respective officers, directors, employees, representatives, parents, subsidiaries, affiliates, distributors, suppliers, licensors, agents or others involved in creating, sponsoring, promoting, or otherwise making available the Site and its contents (collectively the "Covered Parties"), be liable to any person or entity for any direct, indirect, incidental, special, exemplary, compensatory, consequential, or punitive damages or any damages whatsoever, including but not limited to: (i) loss of goodwill, profits, business interruption, data or other intangible losses; (ii) your inability to use, unauthorized use of, performance or non-performance of the Site; (iii) unauthorized access to or tampering with your personal information or transmissions; (iv) the provision or failure to provide any service; (v) errors or inaccuracies contained on the ite or any information, software, products, services, and related graphics obtained through the Site; (vi) any transactions entered into through this Site; (vii) any property damage including damage to your computer or computer system caused by viruses or other harmful components, during or on account of access to or use of this Site or any Site to which it provides hyperlinks; or (viii) damages otherwise arising out of the use of the Site, any delay or inability to use the Site, or any information, products, or services obtained through the Site. The limitations of liability shall apply regardless of the form of action, whether based on contract, tort, negligence, strict liability or otherwise, even if a Covered Party has been advised of the possibility of damages.

One would hope that the extent to which such a clause is "permitted by law" would be most limited.  If the language were enforced, it suggests that there really is no contract at all, given that Priceline stipulates in advance that it will not be liable for breach.  Someone could perhaps test that by using Priceline's services and then not paying.  Somehow, I think Priceline would insist that users' liability is not cabined in the same way Priceline's is.  

Professor Barondes' experience got me to thinking about the complexities of using travel websites.  Pre-COVID, when I traveled more, I  joined rewards programs at a few hotel chains.  I  learned that I get no credit for my stay if I booked at such a hotel through a travel website.  Sometimes, the hotel has a hard time finding my reservation because the confirmation number I was given looks nothing like the hotel's reservation numbers.  They have no record for me, and they ask me accusingly, "Did you book through a website?"  "Well yes," I admit, and I think, "Doesn't everybody?"

When I do so, with whom am I in contractual privity and for what purposes?  Professor Barondes is a sophisticated traveler, but your ordinary user of a travel website might assume that they had a contract with a hotel when they booked a stay at that hotel through a website.  Not so, it appears.  The Seinfeld-inspired hotel is free to say, "you may have a reservation, but we did not hold the reservation."  But to the traveler, that's really the most important part of the reservation, the holding part.

It also occurs to me that Priceline is a clearinghouse.  You may find your hotel through Priceline, but Priceline may just link you to some other website which is the entity that has some sort of relationship with your hotel.  And that relationship may not be with your particular hotel but with the hotel chain's sub-contracted reservation service.  As the layers of contractual obligation accumulate, sorting out privity and knowing how to get a remedy can be quite complex.

Even if Priceline offers a refund, which would be a sound business practice regardless of their ridiculous "no responsibility disclaimer," that hardly suffices.  The price one pays for reserving a hotel may bear no relation to the price one pays to find a room at the last minute.  And then there are the added costs, frustrations and panics associated with actually finding that room.