ContractsProf Blog

Do I Teach Too Many Old Cases?

In the past few years, I have received a few complaints in my student evaluations that I teach too many old cases.  This year, there were more such complaints than ever before.  There aren't that many; only a handful out of 75 students in my contracts courses, but the complaint is new and gaining steam.  One student helpfully defined "old" as cases from the "19th and 20th centuries."  It's official.  I'm old.

The good ship Peerless as imagined by my former student, Justin Vining

These comments led me to go back through my reader and have a look.  The oldest case I teach is Mills v. Wyman, from 1825.  I teach three cases decided in 2023.  I only teach ten cases (of fifty) from the 20th century, and the median case dates from 1968.  Fifty cases total is not a lot of cases.  I supplement my reader with an Brian Blum's Examples & Explanations book, so the students get a lot of hypotheticals that are generally in a contemporary setting.  One interesting phenomenon that I have noticed since I started supplementing cases with problems is that students have difficulty keeping straight which fact patters are real and which are hypothetical.  So, from my defensive crouch, I could argue that a supplement my two score and ten vintage cases with at least that many problems set in the 21st century.

My reader includes five cases from the 19th century: Mills v. Wyman, Kirksey v. Kirksey (1845), Raffles v. Wichelhaus (1864), Hamer v. Sidway (1891), and Rickets v. Scothorn (1898).  I love these cases.  They all teach really well and lead to great class discussions.  There is rich literature and lore about all of them.  Is that reason enough to continue using them?  An additional argument in their favor is that they are all good law.  It would be hard for me to abandon these cases, even if I knew of more recent cases that covered the same ground, but I don't.  Perhaps that is because I have been complacent and haven't bothered to look, but it may be that these cases have come to occupy the field.  Rather than engaging in the kind of analysis that these cases engage in, modern courts simply cite to them or to equally musty old cases that lack their compelling facts or well-written opinions.

Cardozo Cup Competition Entry by my former student, Jeff Miller

I may be on shakier ground with the next half-century.  I teach eleven cases published between 1901 and 1935.  Judge Cardozo accounts for four of them.  Paraphrasing Ben Jonson, I might confess, "My sin was too much hope of thee, lov'd Judge."  I could drop Lady Duff, as I pair that case with B.L. Lewis Productions.  v. Angelou, but the latter case spends so much time talking about Lady Duff, it seems a shame not to share the original with my students.  Is there a better case for charitable subscriptions that Allegheny College?  A better discussion of fatally incomplete contracts than Sun Printing?  Perhaps.

There is still a part of the course that serves to contrast the more formalist approach of the early 20th century to our more contextual approach since the adoption of the Uniform Commercial Code and the Restatement Second.  I suppose I could drop some of the material on formalism.  My fear is that there are still jurisdictions that retain a commitment to formalism.  There is also a formalist wind blowing through other regions of our jurisprudence.  Who is to say it will not invade the province of private law as well?  

I think the students who complain about the old cases do not appreciate how hard it is to find cases that teach well and state the law clearly.  As I said, I added three new cases from 2023 in my last version of Contracts I.  I don't know if any of them have staying power.  The emoji case stands the best shot, but it is a Canadian case and so has certain oddities about it.  Perhaps a red-blooded American case on emojis as acceptance/signatures will come along soon. 

When I teach Sales, I don't teach any cases that are older that Article 2 itself.  The cases I have selected are a motley crew.  Sometimes I teach against the cases, because I think the judges were simply incompetent in their understanding of either Article 2 or the transactions or both.  Electricity is not a good?  Nonsense!  At other times, the cases are well reasoned, in my view, but state only a majority view not accepted in all jurisdictions (love ya, 2-207 knock-out rule for different terms.!).  The old cases that have withstood the test of time are, at least sometimes, unavoidable in a common-law system based on precedent.  I wish there were more such definitive cases that governed Article 2.  

I will say this in favor of the old chestnuts.  I sometimes interact with alumni, and when I tell them I teach contracts, they sometimes claim no knowledge or memory of the course.  But when I remind them of some of my favorite cases, they become gleeful.  I am a communitarian, and so I love that lawyers across generations can bond over these old cases, even if just involves rolling our eyes about Pennoyer v. Neff.  In my past life as an intellectual historian, I participated in debates about canonical literary texts in which white male voices predominate.  I get that, and I am all for a more inclusive canon, but I also know how I have benefited from having experienced Columbia's core curriculum.  I went to college a midwestern yokel, the product of a decent public school but never having read or been exposed to much of the canon.  The eduction I received has facilitated connections and conversations that would never have otherwise been possible.  And non-canonical works routinely reference canonical works, permitting those familiar with the canon to appreciate the layers of meaning and the reworking of traditional material on a different level from those who just miss the references.  I want my students to get the jokes and appreciate the references.

That said, I just added a case to my syllabus for this coming semester that I discovered through work on the blog.  I hope it's a keeper!

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for January 30, 2024

Being the end of January, this Top Ten list is our last before Groundhog Day. The blog therefore wishes repetitious rodents to all who observe. In the meantime, let's see which scholars are repeating themselves—in a good way, of course—by showing up on our favorite download lists.

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 01 Dec 2023 - 30 Jan 2024

Rank	Paper	Downloads
1.	On the Scales of Private Law: Nano Contracts Yonathan A. Arbel University of Alabama - School of Law	107
2.	A Contractual Approach to Social Media Governance Gilad Mills Harvard University - Harvard Law School	105
3.	The Predilection for Contract in Governing Digital Networks: Micro-Management’s Face Off with Accountability Lee A. Bygrave Norwegian Research Center for Computers and Law - Law Faculty, University of Oslo	103
4.	Innovation, Disruption and Consumer Harm in the Buy Now Pay Later Industry: An Empirical Study Lucinda O'Brien, Ian Ramsay and Paul Ali Melbourne Law School, Melbourne Law School - University of Melbourne and University of Melbourne - Law School	101
5.	Case Note: Time as Essence and Liquidated Damages Clauses: A Critique of Welspun Specialty v ONGC Badrinath Srinivasan and Seema Yadav Independent and Galgotias University	101
6.	The Homebuyers Conundrum in Real Estate Insolvency Arjya B. Majumdar and Mehreen Garg O.P. Jindal Global University and Insolvency Law Academy	82
7.	Introduction to The Cambridge Handbook of Private Law and Artificial Intelligence Ernest Lim and Phillip Morgan National University of Singapore (NUS) - Faculty of Law and University of York - York Law School	73
8.	The Law of Loyalty: Table of Contents and Chapter 1 Lionel Smith Downing Professor of the Laws of England	69
9.	Speech, Complicity, Scarcity, and Public Accommodation Christopher R. Green University of Mississippi - School of Law	60
10.	The Mass Tort Claimants' Bargain Daniel J. Bussel University of California, Los Angeles (UCLA) - School of Law	59

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 01 Dec 2023 - 30 Jan 2024

Rank	Paper	Downloads
1.	A Contractual Approach to Social Media Governance Gilad Mills Harvard University - Harvard Law School	105
2.	Off-Label Preemption David A. Simon Northeastern University School of Law	83
3.	The Elegance of Private Law Andrew S. Gold Brooklyn Law School	63
4.	Patent Injunctions and the FRAND Commitment: A Case Study in the ETSI Intellectual Property Rights Policy Adam Mossoff George Mason University - Antonin Scalia Law School	59
5.	Public Licenses: Open Source, Creative Commons and IP Pledges Jorge L. Contreras University of Utah - S.J. Quinney College of Law	30
6.	Smart Contracts in Blockchain Technology: A Critical Review Hamed Taherdoost Hamta Group	30
7.	The CISG: Facilitating International Trade Through Uniform Sales Law Achih Mahamadou Jallo University of Buea	26
8.	What's The Use? The Structural Flaw Undermining Warhol v. Goldsmith Peter Karol UNH Franklin Pierce School of Law	26
9.	The Unbearable Narrowness of Undue Influence Hila Keren Southwestern Law School	25
10.	Amici Curiae Brief in Support of Henrietta Lacks Estate [v. Ultragenyx] Caprice L. Roberts and Doug Rendleman Louisiana State University, Baton Rouge - Paul M. Hebert Law Center and Washington and Lee University - School of Law	21

Constructive Eviction By Cutting Off Power to a Bitcoin Mining Company?

Bitcoin Mining, image by DALL-E

Cheetah Miner, USA (Cheetah) runs a Bitcoin mining business, requiring "significant electrical capacity."  It entered into a five-year lease in a large industrial building.  Less than a year later, the parties were in discussions to terminate the lease.  Cheetah alleged that its landlord, 19200 Glendale, LLC (Glendale) cut off its electricity by transferring the account to itself and that this action constituted constructive eviction in violation of Michigan's anti-lockout statute.  Without access to electricity, Cheetah could not mine Bitcoin, so major buzzkill.  Cheetah sued, seeking an injunction ordering Glendale to restore its electricity.  Shocking.

In May, in Cheetah Miner USA, Inc v. 19200 Glendale, LLC, the District Court denied Cheetah's motion for injunctive relief.  In October, the Sixth Circuit affirmed in an unpublished opinion.  Cheetah Miner faced two major obstacles to the likelihood of success on the merits. First, as the district court emphasized, although a party can claim constructive eviction when the landlord cuts off electricity, the tenant must vacate the premises, and Cheetah failed to do so.  There is a backstory here that the Sixth Circuit does not explore.  Cheetah sued for breach of the lease, but Glendale claimed that Cheetah had breached first, by not paying its rent or its utilities, among other things.  While the district court did not determine which party was in breach, the unsettled nature of the dispute did not speak in favor of injunctive relief.  

Second, while Cheetah claimed irreparable harm, as it must, it sought money damages, which of course would not qualify as irreparable harm.  In its reply brief on its original motion, Cheetah alleged that it would suffer reputational harm caused by loss of customer goodwill through being put out of business.  The district court found that claim speculative, and the Sixth Circuit agreed. 

I'm so curious to know who are the customers for a Bitcoin operation.  Don't you mine Bitcoin so that you have Bitcoin?  If you mine it to sell, don't you just sell it at the market price for Bitcoin?  Why can't your customers buy their Bitcoin elsewhere at the same price.  In any case, the Sixth Circuit expressed skepticism about Cheetah's claims of reputational harm.  It did not file its motion for a preliminary injunction until sixty days after its power was cut off.  If it was out of business for two months, how would the grant of an injunction restore its reputation.  

Finally, Cheetah faulted the district court for not holding an evidentiary hearing at which Cheetah could establish its irreparable harm.  The Sixth Circuit got quite salty with Cheetah at that point.  "[I]t was Cheetah Miner’s job to establish a likelihood of irreparable harm, not the district court’s."  That's a high voltage diss right there.

New York Times Obituary for Charles Fried. . .

. . . can be found here.  Like the Harvard Crimson obituary linked to here, it makes no mention of Charles Fried's seminal Contract as Promise.

Reefer Brief, Oklahoma Edition

Wonder what contracts to move marijuana look like?  Nolan Clay writing in this week's Oklahoman newspaper provides some interesting details.  A prosecution witness testified that he was hired to drive a counterfeit Amazon truck from twenty different Oklahoma pot farms for shipment out of state.  He was paid $15 per pound.  He managed to load 150-200 pounds of marijuana into the truck each trip, so that amounts to up to $3000 per trip, and he took 10-15 such trips.  The witness brought the marijuana back to his business's warehouse where it was packed into a semi for out-of-state shipment.  That is where the bust took place.  The witness pled guilty and then gave testimony against other members of the conspiracy.  A later raid yielded nearly 20,000 plants and $100,000 in vacuum-sealed cash (just like in the movies!).  

The big fish in this sting were not all that big.  The alleged manager of the operation was paid $3000-$4000 a month.  His "intern" was paid $2500/month.  They face imprisonment of ten years to life.  The street value of the marijuana seized (it's not clear from the story whether this is the 20,000 plants of the contents being loaded onto the semi) is estimated at $6 million.  Seems like the bigger fish are still swimming.  The witness had only a last name to offer.  The government is seeking to seize the farms involved in the conspiracy.

I am reminded of the chapter in Freakanomics about why drug dealers live with their mothers.  The salaries of these relatively low-level employees in a drug-peddling operation were only enough to constitute a profitable side-gig.  Even the "manager" makes less than $50,000/year in exchange for the risk of an extended stay in prison and other risks associated with criminal activities.  Once again, I'm glad I decided to become a law professor rather than trying to claw my way to the top and become a drug kingpin.

Jeffrey Lipshaw on the Passing of Charles Fried

Charles Fried:  A Personal Appreciation 
Jeffrey Lipshaw

In 2004, I was the general counsel of a chemical company, flirting with the law school in our city about joining its faculty in some capacity to run a center on entrepreneurship and law.  It quickly became apparent that the only way to do the job correctly was to be a full-fledged member of the faculty.  The dean advised me, regretfully, that I was not qualified to join the faculty as I had never published any scholarly articles.  At the time I was twenty-five years out of law school, and I am pretty sure that I had no idea what a legal scholarly article was.  But we were in the throes of trying to comply with Sarbanes-Oxley, and I knew intuitively that there was a disconnect between the corporate governance aims of the statute and what its algorithms actually required.  I had done a lot of reading on moral philosophy that I thought might be helpful.  With the confidence that only complete ignorance could justify, I blithely replied, “Fine, I’ll publish a scholarly article.”

Matthew W. Hutchins of the Harvard Law Record,
CC BY 2.0, via Wikimedia Commons

So I started reading.  And quickly discovered the dominance of “law and economics,” and particularly this fellow Richard Posner.  And I was aghast at the reductionism, the disdain for moral intuition that had been so important in my career.  At some point, I found my way to the issue of the Harvard Law Review containing Posner’s 1997 Oliver Wendell Holmes Lecture on “The Problematics of Moral and Legal Theory,” as well as the responses from luminaries like Ronald Dworkin, Anthony Kronman, and Martha Nussbaum.  One of the responses that struck home for me was titled “Philosophy Matters,” by a person named Charles Fried.  To this day, his parting shot at Posner sticks with me:  “As so often happens, the skeptic here is a disappointed absolutist, taking his revenge on the world for depriving him of all the right answers at once.”

Which led me to Contract as Promise, and the arguments that there were reasons for the social institution of contract law other than those capable of being reduced to economists’ curves. 

Fast forward to fall 2005.  I was visiting at Wake Forest and through this very blog had become friends with Frank Snyder, its founding editor. As I recall, the gatherings now referred to as K-CON were just getting underway by way of Frank and others.  I said to Frank, “2006 will be the 25^th anniversary of the publication of Contract as Promise in 1981.  You should organize a retrospective around it.”  To which Frank replied, “Great idea. Call Fried.” This was funny. I was a less than nobody visiting professor, and I was going to call Charles Fried? I can’t now remember if I called, emailed, or wrote a letter, but I did get a very cordial voicemail back in which he thanked me but said he was already committed to a number of things and wouldn’t be able to get involved.

Fast forward to 2010.  I had now been on the faculty at Suffolk for several years.  One of the professors in Suffolk’s philosophy department, Nir Eisikovits, was a lawyer and close with a number of people on the law faculty.  I can’t remember why, but I met with Nir and the chair of the philosophy department, Greg Fried.  Somewhere in the conversation, Greg mentioned that his father was on the Harvard faculty, and it finally sunk in that he meant Charles.  To which my response was “Really?  Five years ago I tried to get him involved in a 25^th anniversary retrospective on Contract as Promise.  Do you think he’d be interested in doing one at Suffolk for the 30^th?” Within a week, I was sitting with Charles in his HLS office, jotting down the names of the people he thought I should invite, the first of which was Richard Posner, as my “anchor” participant.  Posner promptly accepted (but withdrew later).  The result was a day-long symposium in 2011, with the following participants (in addition to Charles, who closed the proceeding), all of whom came in large part because of their intellectual and personal regard for Charles: Tim Scanlon, Robert Scott, Barbara Fried, Jean Braucher, Randy Barnett, Gregory Klass, Brian Bix, Richard Craswell, Avery Katz, Alan Schwartz, Daniel Markovitz, George Triantis, Juliet Kostritsky, Seana Shiffrin, Curtis Bridgeman, John C.P. Goldberg, Henry Smith, Roy Kreitner, and Nathan Oman.

One of the great pleasures was that I picked Charles up at his house and hosted him through the day.  Sometime later he invited me to the public debate he and Greg had with Alan Dershowitz at the Brattle Theater on whether torture could ever be justified (Dershowitz: yes; Frieds: no), and the after-party at which I wandered around starstruck (I turned around and accidentally bumped into Stephen Breyer). 

If you want evidence of Charles Fried’s intellectual legacy, see Volume 45, Issue 3 of the Suffolk University Law Review.  It will be there forever.  But his friendship and graciousness are what I remember, and it will always be a highlight of my professional life.

Charles Fried, 1935-2024

Charles Fried, whose Contract as Promise has served, since its publication in 1981, as a starting point for most discussions of contracts law theory, died this week at the age of 88.  You can read his obituary in The Harvard Crimson here.  It is a testament to his rich life that the Crimson does not reference Contracts as Promise.

I did not know Professor Fried, so I will leave it to others to share their appreciations of his work.  As I come across them, I will share links.

Dismissal of Class Action Against Amazon Affirmed in the Eleventh Circuit

In this putative class action, plaintiffs sought to recover from Amazon for its decision to terminate its Rapid Delivery service for Amazon Prime members at the beginning of the COVID pandemic.  The District Court ruled that Amazon had no duty to provide the service and dismissed the claims with prejudice.  In Marquez v. Amazon.Com, Inc., the Eleventh Circuit affirmed the dismissal of the complaint.

At the heart of the case was the beating black heart of consumer contracts: terms of service (ToS).  In the case of Amazon, the ToS involve some bootstrapping, because Prime customers agree that by agreeing to the Prime ToS, they also all of the "terms, conditions, limitations and requirements" that can be found in a list of hyperlinks.  In addition, Amazon reserved to itself the right to change its ToS, and continued use of the service constituted acceptance of the new terms.

The District Court granted Amazon's motion to dismiss, finding that plaintiffs had failed to allege that Amazon had a duty to provide unqualified rapid delivery service.   Applying Washington state law, the Eleventh Circuit took a different path.  It assumed that Amazon made a contractual promise to provide rapid delivery service. Even if that is so, however, Amazon retained considerable discretion to suspend that service, and the ToS provided that all Amazon services were provided on an "as available" basis.   The COVID epidemic required that Amazon transfer its resources elsewhere, and thus it could rightfully claim that rapid delivery services were not "available." 

Amazon's ability to exercise broad discretion in the provision of services does not render its promises illusory.  Plaintiffs still received benefits from the Prime memberships.  Nor did the exercise of such discretion render the contract unconscionable.  In order to prove procedural unconscionability plaintiffs had to show that: the contract was one of adhesion, plaintiffs had no reasonable opportunity to understand the terms, and key provisions were hidden "in a maze of fine print."  The Court found that plaintiffs had alleged facts sufficient to satisfy only the first prong.  The terms were not substantively  unconscionable, because Washington's standard for substantive unconscionability requires that terms be "monstrously harsh" or "shock the conscience."  Amazon had a lot of discretion, but plaintiffs could cancel their memberships at any time.  Hardly monstrous.

The district court found that there could be no breach of the duty of good faith and fair dealing because Amazon had no contractual obligation to provide rapid delivery service.  The Eleventh Circuit found that there was a contractual obligation, but the contract gave Amazon extremely broad discretion.  Given the breadth of the discretion, plaintiffs could not argue that Amazon exercised its discretion in bad faith. 

After dispensing with plaintiffs' statutory claims, the Court turned to unjust enrichment.  Here, plaintiffs incorporated their breach of contract claim into their unjust enrichment claim.  While parties can claim both breach of contract and unjust enrichment in the alternative, the Court found that plaintiffs had not done so here.  Given that this dismissal amounted to a basic pleading error, dismissal of the unjust enrichment claim with prejudice seems a bit harsh, but it probably doesn't matter.  This lawsuit was doomed.

Both the District Court and the Eleventh Circuit opinions evidenced some hostility to plaintiffs who were upset that they were not receiving their super-rapid deliveries of Tiger King t-shirts, sour dough bread makers, and other fripperies designed to keep the economically comfortable amused during the pandemic.  Amazon was scrambling to make important deliveries of basic foodstuffs to people who could not leave their homes in a pandemic.  It's just a shame that the Court used the occasion to write a very broad defense of some pretty terrible uses of terms of service.

I probably shouldn't reference Karl Marx twice in one week on this blog, but something that he and Engels wrote in The German Ideology in 1845 strikes me as pertinent here.  They argued that the ideas of the ruling class, in any age, are the ruling ideas applied to all of society, even though they serve only the interests of the ruling class.  The courts in this case could have said that Amazon had discretion, and it exercised that discretion appropriately in this situation.  Instead, they said that Amazon can do whatever it wants and there's nothing Prime subscribers can do about it because the subscribers were "on notice" through hyperlinks that linked to other hyperlinks that provided that Amazon could change its terms with or without notice.  Okay, I concede that Marx's concept of class doesn't map well onto our 21st-century society.  However, only ideology, German or otherwise, explains how courts could think that treating as binding provisions, heaped up in hyperlink after hyperlink, has anything to do with knowing consent to contractual terms. 

  

Catching up with JOTWELL

We have a semester's worth of JOTWELL's to report on.  Two of the five are about articles on which we have already posted.  

Back in September, Dean Eboni Nelson posted on Duncan Kennedy's The Bitter Ironies of Williams v. Walker-Thomas Furniture Co. in the First Year Law School Curriculum, 71 Buff. Law Rev. 225 (2023).  Our post on the subject is here.  As Dean Nelson notes, Professor Kennedy has a twofold goal in the article.  First, he pushes back against critiques of Williams that claims that the cause lawyering that gives rise to such cases actually ends up hurting precisely the groups that the attorneys were trying to help.  Second, the article is just one part of Professor Kennedy's broader defense of progressive initiatives to protect Black neighborhoods that exist at the intersection of poverty and racism.  Neoliberal scholars have attacked decisions like Williams as counterproductive and paternalist.  Like Shawn Bayern's book, reviewed here recently, Professor Kennedy pushes back against law and economics critiques of Williams using the tools of law and economics.  The fact of the matter is, litigation designed to help poor communities succeeded in expanding the availability of credit to those communities without raising the cost of such credit.  That is not a surprising result when one considers the realities of that credit market.

In October, Professor Robert Hillman published his review of Yehonatan Givati, Yotam Kaplan, and Yair Listokin, Excuse 2.0, A Macroeconomic Model of Contract Excuse, __ Cornell L. Rev ___ (forthcoming), available at SSRN (June 1, 2023).  Often, when we subject common law doctrines to economic analysis, we discover the common law has meandered its way to something very close to the ideal solution. So it is with excuse doctrine, notwithstanding its vagueness.  Professor Hillman notes the Authors' theme that "in systematic risk situations," such as pandemics or wars, "ambiguous excuse law promotes compromise and loss sharing that lessens economic havoc in the long-term, such as bankruptcies."  Uncertainty in the law promotes compromise and settlement, which is appropriate during systemic risk situations, where no party could bear the costs they might face if the excuse doctrine resulted in clear winners and losers.  In such circumstances, there is no party best positioned to avoid the loss.  In fact, the humble common law, with all its vagueness ends up allocating risk in a more targeted way than does legislative intervention, which tends to be reactive and leads to inflation.  While Professor Hillman congratulates the Authors on their counterintuitive thesis (ambiguity in excuse doctrine is good!), he notes that the evidence in support of the thesis is a bit thin.   Moreover, Professor Hillman wonders whether excuse doctrine is unique in its vagueness.  Perhaps the Authors will follow up with their global defense of common law doctrine Where Ambiguity Justly Reigns.  Notwithstanding some quibbles, Professor Hillman concludes that the Authors' article is well worth reading and that its thesis is worth pondering.

November's contribution to JOTWELL was Omri Ben-Shahar's review of David A. Hoffman and Yonathan A. Arbel, Generative Interpretation, 99 N.Y.U L. Rev. __ (forthcoming, 2024); U of Penn L. Sch., Pub. L. Rsch. Paper, available at SSRN (Aug. 1, 2023), an article that we reviewed here.  Professor Ben-Shahar situates Generative Interpretation in the scholarly literature.  Ever since the contextualist revolution, legal scholars have deplored or ignored the "plain meaning" approach to contractual interpretation.  Few scholars wrote on the plain meaning approach to interpretation in the commercial context before the advent of corpus linguistics, and still there has not been much.  Now, Hoffman and Arbel take us a step beyond corpus linguistics, deploying large language models (LLMs) to resolve ordinary interpretive disputes.  Hoffman and Arbel show that LLMs can sometimes intervene usefully to establish the likely meaning of seemingly ambiguous texts or to establish ambiguity where courts have found clarity.  Professor Ben-Shahar asks where we go from here.  Will lawyers use LLMs to make sure that their contractual language is airtight?  Will clever lawyers bring out dueling LLM models to support their interpretive claims? Will judges get on board?

I admit that I struggled with these next two through no fault of the authors.  Readers are encouraged to go straight the source, as I am not sure I did justice to their content.  

December's review was Lauren Scholz's post on Cary Coglianese & Erik Lampmann, Contracting for Algorithmic Accountability, 6 Admin. L. Rev. Accord 175 (2021).  State and federal agencies and the private sector use artificial intelligence (AI) to assist in their decision-making processes.  But how do we check to make sure that the AI algorithms are fair?  Government agencies do not have the expertise to design AI systems on their own. They contract with private entities to develop the AI, but then there has to be some system for assuring that the AI tools reflect the values of the government agencies.  Coglianese and Lampmann propose guidelines for public procurement of AI systems.  The  contracts should require "substantive privacy and security standards, mandatory audit processes, and transparency safeguards" in order to ensure the availability of public scrutiny and to guard against claims of trade secrets that might be used to avoid such scrutiny.  How does such a process proceed.  Likely through trial and error.  The public procurement process can become a laboratory in which to develop rules for promoting algorithmic accountability.  It is appropriate to allocate public dollars to the project of shaping rules for AI accountability and to subsidize the process of shaping the way AI is used for the public good.

Finally, just last week, Aditi Bagchi posted her review of Abbye Atkinson, Borrowing and Belonging, 111 Cal. L. Rev. 1369 (2023).  Professor Atkinson's article seeks to restore dignity to the process of personal bankruptcy.  Our culture treats consumption as a fundamental feature of social belonging, and yet bankruptcy rules that mandate disclosure and restrict access to future credit ostracize the debtor from the consumption-based community.  Given that one must consume in order to participate in society, the conduct that led debtors into bankruptcy is both rational and reasonable, and yet the bankruptcy process is punitive.  It mandates disclosure of the debtor's financial situation and treats certain categories of debt as non-dischargeable.  These policies undercut the consumptive aspirations of debtors, depriving them of aspirational agency while also undercutting our broader goal of encouraging consumption as part of our communal ethos.  Professor Bagchi suggests that a less punitive bankruptcy regime might have the macro effect of increasing the costs of consumer goods, especially those typically bought on credit.  Such an outcome might be fine within the normative framework of Professor Atkinson's work.  It might just result in a general reduction in consumption without prejudice to any particular group's ability to participate.  However, Professor Bagchi also imagines that a more localized increase in prices, especially for consumer credit, affecting precisely the group that Professor Atkinson hopes to protect.  If such a localized rise in prices occurs, it would undercut Professor Atkinson's goal of allowing debtors full participation in consumer markets.

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for January 23, 2024

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 24 Nov 2023 - 23 Jan 2024

Rank	Paper	Downloads
1.	Amendments to the Uniform Commercial Code: Implications for Real-Time Payments Thomas P. Brown and Isabel Steinhaus Nyca Partners and Nyca Partners	236
2.	What Litigation Funders Can Learn About Settlement Rights From the Law of Liability Insurance Tom Baker University of Pennsylvania Carey Law School	138
3.	On the Scales of Private Law: Nano Contracts Yonathan A. Arbel University of Alabama - School of Law	101
4.	A Contractual Approach to Social Media Governance Gilad Mills Harvard University - Harvard Law School	100
5.	The Predilection for Contract in Governing Digital Networks: Micro-Management’s Face Off with Accountability Lee A. Bygrave Norwegian Research Center for Computers and Law - Law Faculty, University of Oslo	98
6.	Case Note: Time as Essence and Liquidated Damages Clauses: A Critique of Welspun Specialty v ONGC Badrinath Srinivasan and Seema Yadav Independent and Galgotias University	94
7.	Innovation, Disruption and Consumer Harm in the Buy Now Pay Later Industry: An Empirical Study Lucinda O'Brien, Ian Ramsay and Paul Ali Melbourne Law School, Melbourne Law School - University of Melbourne and University of Melbourne - Law School	92
8.	The Homebuyers Conundrum in Real Estate Insolvency Arjya B. Majumdar and Mehreen Garg O.P. Jindal Global University and Insolvency Law Academy	82
9.	The Law of Loyalty: Table of Contents and Chapter 1 Lionel Smith Downing Professor of the Laws of England	64
10.	Introduction to The Cambridge Handbook of Private Law and Artificial Intelligence Ernest Lim and Phillip Morgan National University of Singapore (NUS) - Faculty of Law and University of York - York Law School	60

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 24 Nov 2023 - 23 Jan 2024

Rank	Paper	Downloads
1.	A Contractual Approach to Social Media Governance Gilad Mills Harvard University - Harvard Law School	100
2.	Off-Label Preemption David A. Simon Northeastern University School of Law	78
3.	The Elegance of Private Law Andrew S. Gold Brooklyn Law School	59
4.	Patent Injunctions and the FRAND Commitment: A Case Study in the ETSI Intellectual Property Rights Policy Adam Mossoff George Mason University - Antonin Scalia Law School	51
5.	Public Licenses: Open Source, Creative Commons and IP Pledges Jorge L. Contreras University of Utah - S.J. Quinney College of Law	29
6.	Smart Contracts in Blockchain Technology: A Critical Review Hamed Taherdoost Hamta Group	27
7.	The Unbearable Narrowness of Undue Influence Hila Keren Southwestern Law School	22
8.	Amici Curiae Brief in Support of Henrietta Lacks Estate [v. Ultragenyx] Caprice L. Roberts and Doug Rendleman Louisiana State University, Baton Rouge - Paul M. Hebert Law Center and Washington and Lee University - School of Law	20

Breach of a Non-Disparagement Clause After Employment Discrimination Claim Settles

In October 2019, after serving for two years as Vice President of Program and Community at the Eugene and Agnes E. Meyer Foundation, Dr. Terri Wright was fired by the Foundation's CEO, Nicola Goren (Ms. Goren).   Dr. Wright, who is Black, claimed that the reasons given for her termination were pretextual and that the real grounds were discriminatory animus.  The parties entered into a settlement agreement with a mutual non-disparagement clause.    About a month later, Ms. Goren told a colleague that Dr. Wright was  “toxic” and that two-thirds of the Foundation staff would have quit if Wright had not been terminated.  

Dr. Wright sued both the Foundation and Ms. Goren, alleging breach of the severance agreement, discrimination in violation of 42 U.S.C. § 1981, and defamation.  The district court dismissed all three actions, but in Wright v. Eugene and Agnes E. Meyer Foundation, the D.C. Circuit reinstated all three claims.

The district court dismissed the breach of contract claim on the ground that the non-disparagement clause in the severance agreement only bound the Foundation to direct its employees not to disparage Dr. Wright.  If an employee nonetheless did so, even if that employee was the CEO acting on behalf of the Foundation, that conduct did not create a breach.  The D.C. Circuit majority concluded that the provision in question was ambiguous and susceptible to Dr. Wright's reading, which would make the provision an effective prohibition on disparagement by either the Foundation or its agents.  In response to a dissenting opinion, which adopted the district court's reading, the majority gently suggested that its own reading was not only permissible but likely and that the contrary reading could only be arrived at by ignoring canons of construction as well as common sense.  

The district court dismissed Dr. Wright's § 1981 action because it could not be maintained once her breach of contract claim was dismissed.   The D.C. Circuit looked at the claim more carefully.  A § 1981 claimant must establish: membership in a protected class, an adverse employment action, and an inference of that the latter was a product of discrimination.  The first two are not contested.  Dr. Wright sufficiently alleged discriminatory intent for the purpose of surviving a motion to dismiss by alleging that she had had positive performance evaluations that were quite specific in listing Dr. Wright's accomplishments, while she was terminated without notice or warning based on "vague and subjective" criticisms.

The D.C. Circuit upheld the dismissal of the first two claims against Ms. Goren, who was not a party to Dr. Wright's severance agreement.  Dr. Wright's defamation claim was brought only against Ms. Goren.  That's a tort claim, so you can read about in some other blog.  It survived.  That suffices for us.

Judge Justin Walker (left), writing in dissent, argued that the severance agreement required the Foundation to direct its employees not to disparage Dr. Wright.  As Dr. Wright did not allege that Foundation failed in that duty, she has no claim.  If she wanted to impose a greater obligation on the Foundation, she should have negotiated for different language.  However, the dissent contends that the Foundation would have difficulty policing the on and off-duty statements of its employees. 

In defense of his claim that the severance argument is unambiguous, Judge Walker spends an unseemly amount of space addressing the patent ambiguities of the provision.  It is a mutual non-disparagement provision.  After laying out Dr. Wright's obligations under the provision, the provision provides that the Foundation "likewise" will not disparage Dr. Wright.  But "likewise," Judge Walker informs us "often does not mean 'identically.'"  Bravo.  Does it sometimes mean "identically"?  If so, why we've got ourselves some ambiguity, don't we?  He cites a dictionary.  My Google search turns up a definition that says it means "in the same way."  First hit.  Oxford Dictionary.  Boom!  Ambiguity.

Judge Walker also finds that Dr. Wright did not sufficiently allege that her firing was motivated by racial animus.  Thus, even if she could state a breach of contract claim, he would reject her §1981 claim.  And he rejects the torts claim for torty reasons that we need not concern ourselves with here.

I have been able to find no subsequent history on the case, and the Internet is silent on the matter.  I note that Ms. Goren has moved on.  Perhaps the parties reached a settlement.  The Meyer Foundation, committed to supporting organizations that work "to achieve a racially and economically just Greater Washington" likely does not benefit from continued litigation.

Fargo Season 5: Of Contracts, Sin-Eating, and Redemption

At the center of the narrative in the Fargo series' brilliant Season 5, although you don't know it until the epilogue, is a contract.  The series is so good, I have to write about it, and fortunately, contracts abound.  Unfortunately, there's no way to do so without spoilers, so if you still want to watch the series, let this serve as your SPOILER ALERT, and skip down to the trailer at the bottom.  If you've already watched the season or don't think you will, maybe you'll be interested enough in the profound insights into contracts law that the series elucidates to read on.

The protagonist of the series is Juno Temple's Dorothy "Dot" Lyons (right), but the hero of the contracts narrative is Sam Spruell's Ole Munch (below, left), one of the strangest characters to ever appear in an American television series.  I'm ready to give Mr. Spruell the Emmy for best supporting actor right now (sorry Jon Hamm, you were great too!). 

Ole Munch is a centuries-old sin eater.  That is, he is a man paid a pittance to eat the sins of the dead so that the well-to-do can ascend to heaven. As he explains in the final scene, he ate the sins because he was starving.  There is a sin-eating scene far earlier in the series, and Mr. Spruell is amazing in evoking both ravenous desperation and consciousness of the eternal weight that his character is taking on.

Munch was a sin-eater in Wales, but he bears a Swedish name, and his accent is mostly that of a man who rarely speaks and has no confidence in his ability to make his meaning understood, so estranged is he from communication through words rather than violent action.   When one has lived for centuries, time is not of the essence, so he speaks deliberately. 

As Anthony Breznican explores in this interview in Vanity Fair with Fargo creator Noah Hawley, debt is a theme running throughout Season 5.  Dot's mother-in-law, portrayed brilliantly (another Emmy? -- do they still do supporting actor and supporting actress?) by a perpetually scowling Jennifer Jason Leigh, has built a fortune on debt collection.  If you ever wondered what would have happened if William F. Buckley had gone into debt collection rather than journalism, now you know.  Dot's first husband, realized with boundless malevolence and self-delusional grandeur by Jon Hamm, believes himself to be the beneficiary of some divine covenant, the details of which are difficult to reconcile with his thirst for power and vengeance.  One part of that covenant is his belief that his serial wives owe him loyalty and obedience unto death, which he repays with the back of his hand.  Having put wife #1 in the ground and married wife #3, he sets the plot in motion with his desire to collect the accrued debt of marital submission from Dot, who was wife #2, with additional principal due to her betrayal of him, plus interest compounded during her extended absence. 

Munch is obsessed with what is owed him, because his interaction with other men and women is transactional.  He is offered money to do a deed, and then a debt is owed.  He announces to a stranger that "I live here now," and "here" is her home.  In exchange, in a reworking of the timely end of Steve Buscemi's "funny looking guy" character in Fargo, the movie, Munch does her the favor of axe-murdering her worthless son.  

Jon Hamm's Roy Tillman sets the plot of Season 5 in motion when he contracts with Munch to kidnap Dot and return her to Tillman.  The kidnapping scene reworks the kidnapping scene in Fargo, the movie, with more unguent.  Munch's accomplice ends up with facial burns and Munch loses much of his ear.  The kidnapping succeeds for a bit, but Dot escapes, killing the accomplice in a manner far more innovative than the wood chipper scene in the movie.  She brains Munch with a shovel, and he comes to his senses enough to vanish before the police arrive.

Both Tillman and Munch think that a contract has been breached.  Tillman plans to have Munch executed for failure to perform.  Munch asserts an affirmative defense of misrepresentation.  He had been told to kidnap a woman.  Tillman did not mention that the woman was, in fact, a tiger.  Kidnapping a tiger is a very different job from kidnapping a woman.  It requires different personnel decisions and more consideration.  Munch eventually blinds his would-be executioner (Tillman's son, Gator, whom you might know as Steve from Stranger Things), and he frees the Tiger so that she can do what she needs to do.

In the final scene, we learn that Dot and Munch have very different conceptions of contracts, and I think Dot has the stronger argument.  He explains, referring to himself, as he usually does, in the third person, "A man's flesh was taken.  Now a pound is required in return."  Dot replies, after enlisting the giant, kilt-wearing mercenary to help her make biscuits, that she was not a party to any contract.  He took on a risk.  She was just the table on which he stubbed his toe.  The table doesn't owe him anything and being mad at the table doesn't make a lot of sense.  

Moreover, she adopts a contextual approach to debt.  Dot's first husband (Roy), her mother-in-law (Lorraine), and Munch are all obsessed with debt collection.  Roy collects debts that are not due or at least are not due to him. Lorraine enriches herself at the expense of the less fortunate without compassion.  On the contrary, she judges people for their misfortune, and subjects them to her will.  Munch tries to explain that he has a code, and the code requires that debts be paid.  

Dot isn't having it.  She has a counterargument.  Sometimes debts can't be paid.  She asks, "Isn't the better thing, the more humane thing, to say the debt should be forgiven?"  The message might as well be intended for Lorraine, who, in her own small way, still consistent with her transactional approach to life, has learned this lesson.  She has freed Indira Olmstead, the police officer leading the investigation into Dot's kidnapping, from the her debts by making Indira part of her security team.  Indira's debt, by the way, is the product of her husband's irresponsibility and some student loans.  She leaves her husband, whom she catches in flagrente delicto, suggesting that he can leave the toilet seat up on somebody else's life from now on.  And soon she is running Lorraine's security team and serving as her bodyguard, perhaps softening Lorraine ever so slightly with her compassion.

Munch, who has known nothing but suffering at the hands of other men, views contracts much as Karl Marx did.  They reduce human interactions to their cash nexus and alienate us from our species-being.  All Munch knows of the world is sin -- greed, envy, disgust -- and the world he encounters contains nothing but bitterness.

Dot has a different perspective.  She responds to Munch with empathy.  Her family chatters on irrelevantly and performs their wonted rituals.  This forgotten version of humanity surprises Munch.  He has come to seek his pound of flesh but his thought and his violent deeds are arrested.  He does not yet comprehend what he is witnessing but he cannot bring himself to end the encounter.

While Munch has come to collect his pound of flesh, Dot's ditzy husband Wayne reminds them that the game is on at seven.  It's time to set the table, and Dot notes pointedly to Munch, it's a school night.  In the Marxian transactional world governed by the cash nexus, these statements have no value.  A debt is owed; it must be paid.  Talk of sports, or table-setting, or school nights is irrelevant.  But in Dot's contextual world, talk of debt collection must yield to life's more pressing matters, even if each of those matters is of small consequence.  The debt will still be there once the game is over, the table has been set, the meal has been eaten, and Dot's daughter has gone to bed.  

And then Dot offers him a new experience.  Consume something that was not created for its exchange value and is not the product of sin.  Consume something made with "love and joy.  And be forgiven."  Well, that's laying it on a bit thick.  But still, the point is that exchange, including contractual exchange, does not have to be divorced from fellow-feeling.  Dot realizes the potential of mutually beneficial transactions undertaken between parties who want to enhance each other's well-being.  She responds to Munch's Marxian perspective with that of a Karl Llewellyn or an Arthur Corbin and restores the humanitas to human exchanges.  Sometimes, the debt will never be paid, because life is not all bitterness and pain.  It also can be filled with love and joy, if you just fill your mouth with the right stuff.

How can this scene possibly be convincing?  How can an ancient warrior be swayed by the taste of home-made biscuits?  I have no great faith in the comfort foods of the upper Midwest.  But the acting makes the scene, although each of the characters is a bit off, seem natural.  I am convinced that Munch's perspective is altered because that is what I see in Sam Spruell's face as he eats the biscuit.  I don't know if Sam Spruell is a method actor, but he achieves what method acting is supposed to achieve.  He is not acting.  He is experiencing what the character experiences and that why I can accept this other-worldly encounter with an other-worldly character as right at home in my world.

This was a great season of Fargo, and when we got to episode 8 out of 10, I began to worry that there just wasn't enough time to wrap it all up.  They did, with a bow.  But then the coda, a three-act play in Dot Lyon's living room/dining room, moved the series into a new realm, that of transcendence.

Do yourself a favor and watch!

Department of Self-Promotion, Rights Mediation: Contracts Law and the First Amendment

For the past few years, I have been blogging intermittently about Supreme Court cases that involve contractual rights but are decided on First Amendment grounds as though no contractual interests or obligations are implicated.  My law school's Law Review was looking for some content, so I decided to expand on the blog posts and see what I could say in 40 pages that I was not able to say in 1500-word increments.

The result is available now on SSRN.  Here is the abstract:

In How Rights Went Wrong, Jamal Greene criticizes the rights absolutism that animates our constitutional jurisprudence. Our courts recognize certain rights as “fundamental” while treating other rights as constitutionally unprotected, so long as the government has a rational basis for burdening those rights. Foreign jurisdictions engage in rights mediation, which permits a contextual approach, facilitates compromise, and tailors legal rules articulated by the judiciary to the specific factual scenarios that they address.

This paper applies Professor Greene’s approach at the intersection of First Amendment rights and contracts law. The purpose is not to advocate a return to the days of economic substantive due process but to propose private legislation as a factor that courts might consider in mediating the rights of parties bound by both constitutional law and their own agreements.

Contracts now lurk in the Supreme Court’s other shadow docket. The Article focuses on four recent Supreme Court decisions: Mahanoy Area School District v. B.L., Austin v. U.S. Navy Seals, Fulton v. Philadelphia, and 303 Creative v. Elenis. Each case implicated First Amendment and contractual rights. Only in Fulton did the Court consider contractual interests at all, and then only dismissively. The point is not that the cases would have come out differently under a rights mediation approach. Rather, litigation might have been avoided, because rights mediation facilitates flexible solutions. In any case, the outcomes of rights mediation are not as categorical as the zero-sum game created by rights absolutism.

Rights mediation re-introduces common sense balancing and pragmatism into rights adjudication. In addition, because rights-mediating adjudicators decide only the cases before them based on the facts presented, the stakes of rights mediations are far lower than the stakes for impact litigation. No one court decision is going to transform constitutional jurisprudence, because the holding of any particular case is decidedly narrow. As a consequence, rights mediation eliminates the incentive for scorched-earth litigation in which the parties pour nearly limitless resources into an effort to win a watershed victory. Most cases can be resolved locally through political processes and political compromises, thus reducing resort to the courts to resolve controversies better worked out through our more democratically-accountable institutions. In short, rights mediation achieves the goals of the court reform movement without the need for new legislation or constitutional amendment.

SpaceX Takes Aim at the NLRB

SpaceX is facing an administrative hearing before a National Labor Relations Board (NLRB) administrative law judge (ALJ) on March 5. 2024.  Last week, SpaceX launched its latest projectile, a motion for a preliminary injunction in the District Court for the Southern District of Texas, alleging that it will be irreparably harmed if that hearing takes place.  The argument is that both the NLRB and the ALJ system are unconstitutional because both the NLRB and the ALJs are insulated from removal by the President.  Moreover, seizing on what must have been a very encouraging oral argument before the Supreme Court in SEC v. Jarkesy, SpaceX claims that administrative proceedings such as this violate the Seventh Amendment right to a jury trial. The brief leans heavily on the Fifth Circuit's ruling in Jarkesy, which is a  precedent binding on the District Court. 

The case arose because some SpaceX employees circulated an open letter, soliciting employees to fill out a hyperlinked survey and indicate their level of support for the letter's demands and provide feedback.  SpaceX fired some of the employees responsible for the open letter, alleging that they violated company policy and that their manner of circulating the open letter disrupted SpaceX's operations.  The fired employees filed a complaint with the NLRB, alleging unfair labor practices.   The NLRB was apparently not convinced by SpaceX's 700-page response and notified SpaceX that it had authorized an administrative complaint.  SpaceX's suit followed.

When Jarkesy was argued, people noted that if SCOTUS upheld the Fifth Circuit, the struture of many other executive agencies or their practices could also be attacked as unconstitutional, on either separation of powers or Seventh Amendment grounds.  And here we are.  The motion places the District Court in an awkward position.  It is bound by Fifth Circuit precedent, so denying the injunction might be hard unless there are arguments that the NLRB is in some relevant way different from the SEC.  Ordinarily, the District Court might hold off on ruling, given that SCOTUS is unlikely to rule in Sarkesy until June.  Without such a ruling, it is hard to know which side has the better argument for irreparable harm.   Perhaps the safest solution is to stay the administrative hearing until SCOTUS decides whether to kneecap the administrative state in whole or just in part in Sarkesy.

Stay tuned.

What's All the Fuss About? Lawyering in the Age of AI

Adding to our extraordinarily popular "Teaching Assistants," "Reefer Brief," and "Friday Frivolity" features, I've decided to add a new "What's All the Fuss About?" series, in which we have a look at contracts scholarship that everyone is downloading.  The first in this series, avant la lettre was last year's post on Dave Hoffman and Yonathan Arbel's smash hit, Generative Interpretation.  This time, we have a look at Lawyering in the Age of AI, by Jonathan Choi (left), Amy Monahan (below, right), and Dan Schwarcz (below, left) (collectively "the Authors").

Because we are all terrified that AI will replace us, most studies of AI have tested how well various large language models (LLMs) do when asked to perform certain tasks or undertake some bit of legal analysis.  The Authors are more hopeful that AI will become a tool that humans can use to assist in legal work.  To that end, the Authors have conducted "the first randomized controlled trial of the effect of AI assistance on human legal analysis." (3) They randomly assigned sixty students a to complete various legal tasks, some with, some  without the assistance of GPT-4.  The students received a limited amount of training on using GPT-4.  The Authors then blindly graded the results. (3) The results were that the students' work improved slightly, but their efficiency improved markedly, with time savings ranging from 11.8% to 32.1%, depending on the nature of the task. (4) Based on these findings, the Authors recommend that legal educators begin thinking now about how to incorporate AI in to teaching and that, for legal practitioners, the time to embrace AI is now. (4)

The paper provides a quick overview of the interaction of technology and lawyering in the past fifty years.  Earlier innovations "improved lawyer efficiency rather than fundamentally altering the core skills needed to be an effective lawyer." (5) Early evidence suggests that LLMs might become the great equalizer.  Some studies show that they help weaker students considerably but do not really assist strong students at all. (8-9) The Authors' results provide more evidence of this pattern. (16) While the performance of AI on its own varies widely across different fields, there is already strong evidence that AI holds great promise when used to assist humans in performing intellectual work. (12) The Authors also surveyed their test subjects about their impressions of how helpful the AI was.  Their "respondents accurately perceived how useful GPT-4 was for specific tasks." (31)

Reflecting on the findings, the Authors observe that "AI tools like GPT-4 and a limited amount of training can substantially improve the efficiency with which they complete a broad array of legal tasks without adversely affecting (or even slightly improving) the quality of that work product." (31) But if anything, the Authors think their results understate the potential uses of AI for attorneys, because (1) more specialized AI tools will become available; (2) users will become more familiar with the capabilities of LLMs and use them more effectively, and (3) the rate of improvement in LLMs is so rapid. (31-34) 

In light of their robust findings, the Authors' normative conclusions include some surprises.  They start with a qualified defense of the first-year law school curriculum and suggest that use of AI should be banned or substantially limited in traditional first-year doctrinal classes so that students can develop their legal reasoning skills without being able to use technological shortcuts.  In addition, because AI enables everybody to work more efficiently but helps weaker students improve their work, while not improving the work of strong students, formative assessments should not involve use of AI.  (38) However, the Authors also advocate for the creation of courses for upper-level students that train them in the use of AI. (39)

Lawyers and law firms should likewise be exploring how best to use AI to improve efficiency and quality of work product, while also being cognizant of the dangers associated with sloppy use or misuse of AI. (39-41) Their clients should know that attorneys and law firms need to achieve some efficiency gains through the use of AI. Clients may want to bring more work in house.  However, clients also need to understand that AI will not always promote efficiencies that mean less expense.  In adversarial situations, including litigation but also contract negotiation, AI will just allow the game to be played with new layers of complexity, but the game may not end more quickly or at lesser expense. (41-42) Judges too ought to allow attorneys to use AI to assist in writing briefs in order to reduce the costs of litigation and improve access to justice. (42-43)

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for January 16, 2024

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 17 Nov 2023 - 16 Jan 2024

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	3,935
2.	Amendments to the Uniform Commercial Code: Implications for Real-Time Payments Thomas P. Brown and Isabel Steinhaus Nyca Partners and Nyca Partners	232
3.	Taking Personhood Seriously Asaf Raz University of Pennsylvania Carey Law School	188
4.	What Litigation Funders Can Learn About Settlement Rights From the Law of Liability Insurance Tom Baker University of Pennsylvania Carey Law School	129
5.	On the Scales of Private Law: Nano Contracts Yonathan A. Arbel University of Alabama - School of Law	99
6.	A Contractual Approach to Social Media Governance Gilad Mills Harvard University - Harvard Law School	98
7.	The Property Law of Crypto Tokens Jakub Wyczik University of Silesia in Katowice	86
8.	The Homebuyers Conundrum in Real Estate Insolvency Arjya B. Majumdar and Mehreen Garg O.P. Jindal Global University and Insolvency Law Academy	80
9.	Case Note: Time as Essence and Liquidated Damages Clauses: A Critique of Welspun Specialty v ONGC Badrinath Srinivasan and Seema Yadav Independent and Galgotias University	77
10.	Innovation, Disruption and Consumer Harm in the Buy Now Pay Later Industry: An Empirical Study Lucinda O'Brien, Ian Ramsay and Paul Ali Melbourne Law School, Melbourne Law School - University of Melbourne and University of Melbourne - Law School	75

 

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 17 Nov 2023 - 16 Jan 2024

Rank	Paper	Downloads
1.	Taking Personhood Seriously Asaf Raz University of Pennsylvania Carey Law School	188
2.	A Contractual Approach to Social Media Governance Gilad Mills Harvard University - Harvard Law School	98
3.	The Property Law of Crypto Tokens Jakub Wyczik University of Silesia in Katowice	87
4.	Off-Label Preemption David A. Simon Northeastern University School of Law	62
5.	Convergence by Design: Who Contracts and the Plural Purposes of Contract Law Gregory Klass Georgetown University Law Center	61
6.	The Elegance of Private Law Andrew S. Gold Brooklyn Law School	53
7.	Patent Injunctions and the FRAND Commitment: A Case Study in the ETSI Intellectual Property Rights Policy Adam Mossoff George Mason University - Antonin Scalia Law School	44
8.	Independent Contractors and The ABCs of Contract Law Hanoch Dagan and Catherine Fisk Berkeley Law School and University of California, Berkeley - School of Law	38
9.	Public Licenses: Open Source, Creative Commons and IP Pledges Jorge L. Contreras University of Utah - S.J. Quinney College of Law	28
10.	The Unbearable Narrowness of Undue Influence Hila Keren Southwestern Law School	20

University of Montana Law Is Hiring

The Alexander Blewett III School of Law invites applications for a full-time, tenure-track Assistant/Associate/Full Professor beginning in the 2024-2025 academic year. Duties include teaching, scholarship, and service as set forth in the University of Montana Blewett School of Law Faculty Handbook.

Our primary curricular need is in the area of contracts, business transactions and related courses. Additional curricular needs include: include Business Associations, Employment Law, Estate Planning (Wills and Trusts), Family Law, Insurance Law, and Trial Practice. We are committed to integrating theory with practice, making significant practice experience in the areas to be taught particularly valuable.

Situated in Missoula, the recreational center of Western Montana, the law school has a vibrant faculty and a close connection with our students, the bench and the bar. Missoula is a wonderful place to live and work and is home to a wide range of renowned writers, artists, musicians and outdoor enthusiasts. We encourage applications from candidates who would add to the diversity of our academic community. The University of Montana is an affirmative action, equal opportunity employer.

Applications must be made electronically at https://umjobs.silkroad.com/. Confidential inquiries may be made to Professor Jonathon Byington, Faculty Appointments Committee Chair, by email: [email protected].

Qualifications:

• Juris Doctorate degree from an ABA accredited law school
• Superior academic background
• Significant relevant practice experience
• Demonstrated record of or potential for effective teaching
• Demonstrated record of or potential for scholarship
• Ability to work collegially with students, staff, faculty, and external constituencies of the law school

Position Details:

• Title: Assistant/Associate/Full Professor
• Position Type: Academic (10-month)
• Schedule: Full-time, academic year position beginning Fall semester 2024
• Entry Rate: $100,000 annually and is commensurate with academic experience
• Benefits: Medical insurance, mandatory retirement contribution, professional development, partial tuition waiver and wellness program

About the University of Montana:

The University of Montana is a flagship, R1 research institution with a student enrollment of over 10,000. It is the state’s primary liberal arts and social sciences institution. Native Americans comprise the largest minority group on campus. Montana is home to seven reservations, 12 Tribal Nations, and multiple urban indigenous communities. Missoula is located on the traditional homelands of the Salish and Kalispel people and traditional territory to multiple Native American peoples. It is a thriving community representing the region’s cultural hub for visual and performing arts. It balances the warmth of small-town life with the sophistication and amenities of the urban northwest. Missoula and Montana offer stunning mountain scenery, blue ribbon trout streams, abundant wilderness, and thrilling recreational opportunities. Outside Magazine ranked Missoula among the top 10 best places to live in the U.S. in 2014 and one of the “Best Towns Ever” in 2017.

The University of Montana is an ADA/EOE/AA/Veteran's Preference Employer and has a strong institutional commitment to the principles of diversity, equity, and inclusion in all areas. In that spirit, we are particularly interested in receiving applications from a broad spectrum of qualified individuals who would assist the University in demonstrating its five priorities for action: Place student success at the center of all we do; drive excellence and innovation in teaching, learning, and research; embody the principle of “mission first, people always"; partner with place; and proudly tell the UM story.

How To Apply

Extended Priority Application Date: Thursday, February 15, 2024 by 11:59 PM (Mountain Time)

Complete applications received by this date will be guaranteed consideration. To receive full consideration, candidates are required to submit all of the following materials.

Please submit the following application materials** via the UM Jobs portal and by clicking "New Resume/CV" button.  Please do not apply through Indeed.com*.

*Please note, only five (5) attachments allowed per application. Please combine documents accordingly.

A complete application Includes:

1. Letter of Interest – addressing your qualifications and experience related to the stated required skills for the position. A general letter salutation such as “Dear Search Committee” or “Dear Hiring Manager” is acceptable.
2. Detailed Resume – listing education and describing work experience.
3. Professional References – names and contact information for three (3) professional references.
4. Unofficial Law School Transcript – official transcript due upon hire.

Friday Frivolity: An Interpretive Puzzle

I have been thinking about this sign in my fitness center's locker room for some time.  I think about it every time I walk into the locker room using my cell phone to listen to a podcast.  

Am I in violation?

I surveyed my students.  One section said, "No bruh, everyone needs their tunes at the gym."  The other section ordered me drawn and quartered, asking why I had to go into the locker room at all and questioning my taste in podcasts. 

But I was born a History of Byzantium listener, and I'll die a History of Byzantium listener!

Teaching Assistants: Shawn Bayern on The Analytical Failures of Law & Economics

Did somebody get you a book as a holiday present, but the book really represents their interests more than yours (right)?  Well, perhaps you should return it and get what you really want, Shawn Bayern's The Analytical Failures of Law and Economics (below, left)!

I know, I know, we already know that law and economics (L&E) is wrong, so why do we need a new book about that?  Well, hitherto existing critiques of L&E have merely questioned its underlying assumptions; Shawn's book highlights analytical problems or incompleteness in the economic arguments underlying L&E.  He does not mince his words.  More precisely, Shawn takes aim at "adults in positions of power" who "take high-school-level economics too seriously" and appear "to prioritize callous, senseless, inhuman policies in the name of supposedly hard-hitting theoretical economic reasoning." (x)  Shawn takes on hyper-rationalism that introduces new rhetoric but is merely a "sleight of hand" (xi) for reaching the same conclusions one could just as easily have reached without the thin veneer of social scientism (id.) through good old-fashioned contextual analysis. (xi-xii)

More generally, Shawn bemoans  our credulity in the face of "sophisticated but reductive analysis." (xii) We have become prone to allow people to cut in front of us in line for the copy machine based on the explanation, "I have to make copies." (id.)  We routinely accept economic analysis  that is based on arbitrarily-adopted models informed by detailed but made-up assumptions. (id.) Grant Gilmore's observation from nearly fifty years ago still seems valid: we have put our faith in the predictive powers of the social sciences and "after two hundred [fifty] years of anguished labor, the great hypothesis has produced nothing." (xiv-xv) I had a semester of college-level economics, and still I feel seen.

After an introduction, the book proceeds through torts law, contract law, and property.  For obvious reasons, this brief review will focus on contracts.

The polemical tone continues in the introductory chapter.  L&E is a creature of the US legal academy.  Shawn credits L&E's success to the acumen of the  marketing department of the Chicago school rather than to the theoretical accomplishment of its adherents.  L&E is "naive, fuzzy, and unprincipled." ( 2) Although economic analysis is far from alien to legal reasoning, it took Chicago-style E&L to give it a conservative political valence.  Borrowing from no less an authority than Richard Posner, Shawn concludes that L&E offers only "beguiling arguments" that should not "carry the day." (4) But Shawn's point is not to question whether efficiency is a legitimate end of the law. Rather, he contends that the L&E movement provides a poor means of achieving efficiency.  Moreover, efficiency "is not the law's only goal." (5)

Shawn identifies seven basic analytical failures in L&E.  The first, he calls ungraceful degradation.  It is possible for a theoretical model to be a bit off and yet still prove a useful predictor of outcomes, but L&E's core assumption are off in ways that render them "unable to interact usefully with the world in any way." (13) Second, L&E cannot develop models to account for conflicting economic forces -- for example, how to balance the parties' desire to maximize surplus against their desire to reduce agency costs.  In the real world, there might be multiple factors to consider, but L&E prefers global theories based on one variable to focused, contextual analysis. (16) Third and fourth, L&E tends to confuse the sufficient with the necessary (17), and it neglects alternatives -- it allows the good to be the enemy of the better.  (18-19) At the same time (fifth), L&E lives in terror of externalities.  Here again, Shawn's argument is that L&E analysis focuses on one set of economic costs but loses track of the larger context, a context in which those costs might be trivial or offset by benefits that the model does not acknowledge. (20-21)  Sixth, L&E scholarship often tries to dazzle with counter-intuitive arguments, but those arguments are only convincing if one ignores context. (22)  Finally, L&E suffers from a general myopia.  L&E analysis looks only to optimize one particular feature of the world (say efficiency or welfare), but it ignores other values (say conservation or education), and the arbitrary choice of what we are trying to optimize renders the analysis of limited value in the real world. (22-23)

He came not to send peace, but a sword

With respect to contracts, Shawn addresses: efficient breach, other remedial matters, interpretation, unconscionability, excuse and disclosure.  His overall message is not that economic reasoning provides no insights into contact law but that American L&E tends to lead to unjust outcomes that are not even as efficient as the doctrines they would replace. (86)

Efficient breach is low-hanging fruit for Shawn.  Academics love it, but courts never embrace it.  For that reason, the Restatements reject it. (86-89) They reject it because it does not adequately account for the way parties value the transaction, because it ignores alternatives, and because it ignores the costs of litigation.  (90-94) 

On damages in general, Shawn argues that "economic analysis is as indeterminate as any other open-ended analysis that looks at a variety of considerations. . . " (95)  In particular, he looks at L&E defenses of the "new business rule."  The approach  "treats everything as a statistical aggregation rather than an individual sample." (97)  Courts decide the cases in front of them, and if mitigation happened or could have happened, defendant can show it. (98)

On interpretation, Shawn first identifies the textualist/non-textualist divide in approaches.  For various reasons, L&E scholars favor textualism, giving weight to written agreements, while Shawn (no surprise here) favors contextual approaches that use all available means to get at the intentions of the parties. (99)  Parties, the L&E argument goes, prefer textualism, because it reduces transactions costs.  Shawn's critique of this position is lengthy and I can't do it justice here beyond saying that it flows from the basic problems with L&E that Shawn identified in his introduction.  L&E's textualism proceeds from arbitrary assumptions not grounded in the particularities of any case and thus leads to arbitrary conclusion that have no predictive value in any particular case. (100-32)

The L&E critique of unconscionability is a subject we have treated recently on the blog in reviewing Duncan Kennedy's defense of Judge Skelly-Wright's opinion in Williams v. Walker-Thomas Furniture.  Shawn begins by noting L&E scholars' skepticism regarding procedural unconscionability.  As usual, L&E objections to the concept are based on bizarre assumptions about the informational environment in which contracts are formed.  In any case, courts pay no mind to these arguments and continue to recognize that procedural unconscionability exists and can negate consent. (133-34)  Shawn's main focus in on substantive unconscionability.  L&E errs by arguing for the benefits to A & B from a substantively unconscionable agreement.  Shawn points out that there are societal effects that flow from allowing for substantively unfair transactions that cause global distortions and inefficiencies.  L&E loses sight of that because it does not consider alternatives to the bilateral contract that it regards in isolation. (135-41) Nor does it consider what the party on the short end of an unconscionable contract would have done in a world that did not permit them. (141-44)

While there are some non-Chicago L&E analyses of excuse doctrine, the influential Chicago-style L&E work on excuse suffers from some of the basic analytical failures.  This work adopts a least-cost avoider approach that creates a perverse incentive for parties to be unable to handle the risks of the contracts into which they enter. (145)  They also focus on one arbitrary consideration (efficiency in risk allocation), leading to an arbitrary result.  The model assumes that parties would undertake negotiations of risk allocation in each contract, but contracting doesn't work that way.  Contracts are drawn up with an eye to a multitude of factors, and creating default rules based on one of those factors would yield arbitrary and inefficient results. (146-48)

On disclosure, Shawn makes three points in response to the L&E argument that parties should not be required to disclose even material information.  First, L&E scholars are inconsistent in rejecting fraud but not non-disclosure while also rejecting the distinction between acts and omissions. (149) Second, the L&E non-disclosure rule is not necessary to encourage productivity. (149-50)  Third, as usual, the model refuses to look at alternatives, including possible benefits to a rule requiring disclosure. (150)

In conclusion, Shawn argues L&E reasoning provides very little of value to what we get through good, old-fashioned, contextual legal reasoning.  This is a delightfully well-reasoned and lively book.  Shawn's arguments are the culmination of scholarly work that now spans two decades.  It is exceedingly valuable to have the outlines of his arguments, elaborated at greater length in law review articles, available in one book, distilled, and thematized according to the major subjects and most common analytical failures of L&E reasoning.

Breach of Contract Claims Against Elon Musk Can Proceed

Back in June, CNN's Catherine Thorbecke reported that Twitter failed to pay out bonuses to "a couple thousand" employees after being acquired by Elon Musk (represented at right).  The complaint alleged that the employees were promised bonuses at the rate of 50% of the target, and those promises were repeated after Mr. Musk's acquisition of the company.  

On Christmas day, Catherine Thorbecke posted a follow up report (I hope you gave yourself the day off for New Year's, Catherine!) noting that U.S. District Judge Vince Chhabria denied Twitter's motion to dismiss former employee Mark Schobinger's breach of contract claim.  The court "reluctantly" granted the motion to dismiss Mr. Schobinger's promissory estoppel claim, with leave to amend the complaint.  The court noted that it should be "an easy fix" and expressed some consternation at California's "seemingly pointless" pleading standards.

The breach of contract claim is pretty straightforward.  Twitter promised a bonus.  Mr. Schobinger alleged that he did everything he needed to do to qualify for the promised bonus.  Twitter didn't pay.  Perhaps as the litigation will proceed, X will eventually filed a brief saying "Twitter? I don't know her."