ContractsProf Blog

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

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 31 May 2024 - 30 Jul 2024

Rank	Paper	Downloads
1.	The Great Scrape: The Clash Between Scraping and Privacy Daniel J. Solove and Woodrow Hartzog George Washington University Law School and Boston University School of Law	1,658
2.	A Short History of the Interpretation-Construction Distinction Gregory Klass Georgetown University Law Center	210
3.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	166
4.	Default Procedures Pamela K. Bookman Fordham University School of Law	156
5.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan University of California, Berkeley - School of Law	140
6.	The Renaissance of Private Law Yotam Kaplan, Adi Libson and Gideon Parchomovsky Hebrew University of Jerusalem, Bar-Ilan University - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law University of Pennsylvania Carey Law School	131
7.	The Merging of Ownership and Control Tomer Stein University of Tennessee College of Law	130
8.	Fairness in Market Instrumental Data Governance Tommaso Fia University of Tuebingen - Faculty of Law	125
9.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	124
10.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	104

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 31 May 2024 - 30 Jul 2024

Rank	Paper	Downloads
1.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	166
2.	Default Procedures Pamela K. Bookman Fordham University School of Law	156
3.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan University of California, Berkeley - School of Law	140
4.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	124
5.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	104
6.	Topic Modelling Case Law Using a Large Language Model and a New Taxonomy for UK Law: AI Insights into Summary Judgment Holli Sargeant, Ahmed Izzidien and Felix Steffek University of Cambridge, Faculty of Law, University of Cambridge and University of Cambridge - Faculty of Law	76
7.	Anticontract D.P. Waddilove Notre Dame Law School	65
8.	Contract and Fraud Eric A. Zacks Wayne State University Law School	49
9.	Commuters Beware: Lawmakers and Rideshare Companies Jeopardize Passengers Jacob Guariglia University of Florida, Levin College of Law	44
10.	Deterring Unenforceable Terms Daniel Wilf-Townsend Georgetown University Law Center	39

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

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 24 May 2024 - 23 Jul 2024

Rank	Paper	Downloads
1.	A Short History of the Interpretation-Construction Distinction Gregory Klass Georgetown University Law Center	200
2.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	161
3.	Default Procedures Pamela K. Bookman Fordham University School of Law	149
4.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	137
5.	Fairness in Market Instrumental Data Governance Tommaso Fia University of Tuebingen - Faculty of Law	125
6.	Corporate Law's Coup de Grâce: The Case for Managerial Independence Tomer Stein University of Tennessee College of Law	122
7.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	101
8.	The Judgment-Holder Problem in Sovereign Debt Workouts Mark C. Weidemaier and F. Andrew Hessick University of North Carolina School of Law and University of North Carolina School of Law	100
9.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	100
10.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	98

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 24 May 2024 - 23 Jul 2024

Rank	Paper	Downloads
1.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	161
2.	Default Procedures Pamela K. Bookman Fordham University School of Law	149
3.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	137
4.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	101
5.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	100
6.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	98
7.	Topic Modelling Case Law Using a Large Language Model and a New Taxonomy for UK Law: AI Insights into Summary Judgment Holli Sargeant, Ahmed Izzidien and Felix Steffek University of Cambridge, Faculty of Law, University of Cambridge and University of Cambridge - Faculty of Law	71
8.	Anticontract D.P. Waddilove Notre Dame Law School	62
9.	Contract and Fraud Eric A. Zacks Wayne State University Law School	47
10.	Commuters Beware: Lawmakers and Rideshare Companies Jeopardize Passengers Jacob Guariglia University of Florida, Levin College of Law	38

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

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 17 May 2024 - 16 Jul 2024

Rank	Paper	Downloads
1.	A Short History of the Interpretation-Construction Distinction Gregory Klass Georgetown University Law Center	194
2.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	155
3.	Default Procedures Pamela K. Bookman Fordham University School of Law	139
4.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	136
5.	Fairness in Market Instrumental Data Governance Tommaso Fia University of Tuebingen - Faculty of Law	124
6.	Corporate Law's Coup de Grâce: The Case for Managerial Independence Tomer Stein University of Tennessee College of Law	109
7.	Silence as Consumer Consent: Global Regulation of Negative Option Contracts Kaitlin Ainsworth Caruso and Prentiss Cox University of Maine - School of Law and University of Minnesota Law School	99
8.	What is Legal Reasoning? Luca Siliquini-Cinelli Cardiff University - School of Law and Politics	87
9.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	85
10.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	83

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 17 May 2024 - 16 Jul 2024

Rank	Paper	Downloads
1.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	155
2.	Default Procedures Pamela K. Bookman Fordham University School of Law	139
3.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	136
4.	Silence as Consumer Consent: Global Regulation of Negative Option Contracts Kaitlin Ainsworth Caruso and Prentiss Cox University of Maine - School of Law and University of Minnesota Law School	99
5.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	85
6.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	83
7.	The Case for Specific Performance of Personal Service Contracts Nathan B. Oman and Kimberly D. Krawiec William & Mary Law School and University of Virginia School of Law	77
8.	Topic Modelling Case Law Using a Large Language Model and a New Taxonomy for UK Law: AI Insights into Summary Judgment Holli Sargeant, Ahmed Izzidien and Felix Steffek University of Cambridge, Faculty of Law, University of Cambridge and University of Cambridge - Faculty of Law	70
9.	Anticontract D.P. Waddilove Notre Dame Law School	49
10.	Contract and Fraud Eric A. Zacks Wayne State University Law School	47

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for July 9, 2024

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 10 May 2024 - 09 Jul 2024

Rank	Paper	Downloads
1.	The Original Public Meaning of Investment Contract Edward Lee Chicago-Kent College of Law - Illinois Institute of Technology	211
2.	A Short History of the Interpretation-Construction Distinction Gregory Klass Georgetown University Law Center	189
3.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	144
4.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	135
5.	Corporate Law's Coup de Grâce: The Case for Managerial Independence Tomer Stein University of Tennessee College of Law	96
6.	Silence as Consumer Consent: Global Regulation of Negative Option Contracts Kaitlin Ainsworth Caruso and Prentiss Cox University of Maine - School of Law and University of Minnesota Law School	94
7.	Autonomy Defaults Hanoch Dagan and Michael Heller Berkeley Law School and Columbia University - Columbia Law School	92
8.	What is Legal Reasoning? Luca Siliquini-Cinelli Cardiff University - School of Law and Politics	83
9.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	78
10.	The Case for Specific Performance of Personal Service Contracts Nathan B. Oman and Kimberly D. Krawiec William & Mary Law School and University of Virginia School of Law	67

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 10 May 2024 - 09 Jul 2024

Rank	Paper	Downloads
1.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	144
2.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	135
3.	Silence as Consumer Consent: Global Regulation of Negative Option Contracts Kaitlin Ainsworth Caruso and Prentiss Cox University of Maine - School of Law and University of Minnesota Law School	95
4.	Autonomy Defaults Hanoch Dagan and Michael Heller Berkeley Law School and Columbia University - Columbia Law School	92
5.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	78
6.	Topic Modelling Case Law Using a Large Language Model and a New Taxonomy for UK Law: AI Insights into Summary Judgment Holli Sargeant, Ahmed Izzidien and Felix Steffek University of Cambridge, Faculty of Law, University of Cambridge and University of Cambridge - Faculty of Law	68
7.	The Case for Specific Performance of Personal Service Contracts Nathan B. Oman and Kimberly D. Krawiec William & Mary Law School and University of Virginia School of Law	67
8.	Anticontract D.P. Waddilove Notre Dame Law School	46
9.	Contract and Fraud Eric A. Zacks Wayne State University Law School	40
10.	Deterring Unenforceable Terms Daniel Wilf-Townsend Georgetown University Law Center	29

 

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for July 2, 2024

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 03 May 2024 - 02 Jul 2024

Rank	Paper	Downloads
1.	The Social Cost of Blockchain Edoardo D. Martino and Wolf-Georg Ringe University of Amsterdam - University of Amsterdam Faculty of Law and University of Hamburg - Institute of Law & Economics	266
2.	Vice Capital Andrew Jennings and Kimberly D. Krawiec Emory University School of Law and University of Virginia School of Law	231
3.	The Forgotten Anti-Monopoly Law: The Second Half of Clayton Act § 7 Robert H. Lande, John M. Newman and Rebecca Kelly Slaughter University of Baltimore - School of Law, University of Miami - School of Law and Government of the United States of America - Federal Trade Commission	220
4.	Contract Design in Influencer Marketing Reto Hofstetter, Andreas Lanz and Navdeep S. Sahni University of Lucerne - Faculty of Economics and Management, University of Basel - Faculty of Business and Economics and Stanford Graduate School of Business	201
5.	The Original Public Meaning of Investment Contract Edward Lee Chicago-Kent College of Law - Illinois Institute of Technology	198
6.	A Short History of the Interpretation-Construction Distinction Gregory Klass Georgetown University Law Center	179
7.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	136
8.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	127
9.	Wholesale Price Discrimination and Contract Unobservability Shengming Zheng, Quan Zheng and Asoo Vakharia International Institute of Finance, School of Management, University of Science and Technology of China, University of Science and Technology of China - School of Management and University of Florida - Warrington College of Business Administration	111
10.	Silence as Consumer Consent: Global Regulation of Negative Option Contracts Kaitlin Ainsworth Caruso and Prentiss Cox University of Maine - School of Law and University of Minnesota Law School	92

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 03 May 2024 - 02 Jul 2024

Rank	Paper	Downloads
1.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	136
2.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	127
3.	Silence as Consumer Consent: Global Regulation of Negative Option Contracts Kaitlin Ainsworth Caruso and Prentiss Cox University of Maine - School of Law and University of Minnesota Law School	92
4.	Autonomy Defaults Hanoch Dagan and Michael Heller Berkeley Law School and Columbia University - Columbia Law School	89
5.	Contractual Commitments and the Right to Change Religions Michael A. Helfand Pepperdine University - Rick J. Caruso School of Law	85
6.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	76
7.	Topic Modelling Case Law Using a Large Language Model and a New Taxonomy for UK Law: AI Insights into Summary Judgment Holli Sargeant, Ahmed Izzidien and Felix Steffek University of Cambridge, Faculty of Law, University of Cambridge and University of Cambridge - Faculty of Law	64
8.	Anticontract D.P. Waddilove Notre Dame Law School	44
9.	Contract and Fraud Eric A. Zacks Wayne State University Law School	38
10.	Shifting Toward Boilerplate Regulation Wayne Barnes Texas A&M University School of Law	29

Some American Reflections on KCON XVII

How was this year's KCON different from other KCONs?  I've been reflecting on that question in the aftermath of the conference.  The conference was large.  There were usually three concurrent sessions going at once.  I can't replicate Nick Mouttotos's feat in yesterday's post by providing an overview of the conference as a whole. Rather, this post is impressionist.

I will highlight three main differences that made this years KCON unique.  They correspond roughly to the conference's three plenary sessions, and then a fourth difference -- a focus on relational contracts theory that really took me by surprise.  The plenary themes were respectively: Hugh Beale on the drivers of difference among national contracts law regimes; Mindy Chen-Wishart on the tendency of asymmetrical contracts towards self-destruction; and Aditi Bagchi on contracts law theory.  In short, the themes were comparative contracts law, regulating consumer contracts and other contracts of adhesion, and theory -- broadly construed.

The conference organizer, Dr. Katarzyna Kryla-Cudna (Kasia), chose well in inviting Hugh Beale (right) to open the conference. After the obligatory apologies for his lack of expertise in comparative law, Professor Beale provided some keen observations not only on his proposed topics -- the drivers of diversity in legal systems -- but also on the ways in which we measure such diversity.  Adopting a functional approach, Professor Beale first noted that, setting aside terminological differences, one finds that contracts law across jurisdictions will often yield the same results in cases arising from similar facts.

That said, there are areas of striking non-uniformity.  One area of concentration during the conference was the doctrine of "good faith" and the related obligations of disclosure and fraud through non-disclosure or concealment.  Beyond Professor Beale's presentation, I learned at the conference there is some movement in the UK to adopt American approaches to the concept of good faith, but European perspectives on the subject persuaded to me that our doctrine of good faith is simultaneously well-developed and under-theorized.  Our courts invoke various good faith doctrines in all sorts of contexts, but we lack an systematic understanding of the doctrine, which perhaps explains a lot of variation in how the doctrine applies in our different jurisdictions. 

Professor Beale also touched on the most foundational differences between common-law and French approaches to formation.  In principle, Professor Beale said, the French take a subjective approach to formation.  At least at the panels I attended, the conference did not return to this theme, and I am glad.  I think my head would have exploded had I tried to work out all the consequences of such an approach to formation.

Professor Beale also introduced the comparative theme of the interaction between contracts doctrine and regulation.  This subject also was explored in multiple panels.  Professor Beale's paper focused on B2B transactions, but many papers explored the realm of consumer contracts. My general sense is that, as a regulatory matter, European approaches are far more protective of consumer interests in the context of contracts of adhesion than is the U.S. But my sense is that relational contracts theory explains why things end up about the same.  Our law allows for some pretty sharp contracting practices, but our service-oriented commercial culture and our class-action mechanism combine to discourage companies from insisting on their legal rights.  Relatedly, Professor Beale touched on the very different role of judges in the common-law and civil-law traditions.  He provided us with a wealth of themes, which were explored in greater depth, and often with an appreciative nod in Professor Beale's direction throughout the conference.  Professor Beale was also active in the sessions providing illustrations and anecdotes from his experience as a Law Commissioner, delivered with the obligatory self-deprecation one expects from UK academics.

Mindy Chen-Wishart's work was at the center of the conference both literally and figuratively.  She presented her work just after lunch on the first day of the conference, just shy of the conference's midpoint and was also the event's honoree, and so her work was also a theme at the conference dinner.  References to her work in other papers throughout the conference make clear that, once again, Kasia made an inspired choice.

Professor Chen-Wishart's theme was consumer contracting and the disconnect between our theories of contracting, whether based in will theory, promise, or assent, and the reality of contracts of adhesion.  Much like Peggy Radin's division of the universe of contracts into World A of negotiation and World B of boilerplate (you can gather links from our dedicated symposium here), Professor Chen-Wishart noted that contract theory assumes negotiations between parties of relatively equal bargaining power.  The reality is nothing like that.  Moreover, Professor Chen-Wishart's presentation focused on the ways in which modern contracts law is self-cannibalizing.  One-sided contractual terms negate the principles that contract theory posits as the reasons why contracts are binding.

Professor Chen-Wishart's presentation interacted with many of the presentations that followed, perhaps because engagement with her work is unavoidable for UK and comparative scholars.  Panelists addressing conference themes of consumer contracting, adhesion contracting, defenses to enforcement of one-sided terms, and regulation of consumer contracts all referenced Professor Chen-Wishart's work and the frameworks she has created for addressing these issues.

The final plenary session featured Aditi Bagchi's work on contract as exchange, a tour de force, piece of scholarship with which future scholarship on the theory of contracts will have to engage.  Professor Bagchi would replace theories of contract sounding in will theory or promise with a focus on the actual work that contracts do in bringing about material exchange. 

Professor Bagchi's conference presentation was stimulating and accessible.  She ably identified the elements of actual contracting left unaddressed by traditional theories of contract sounding in will theory, promise, or agreement.  She then offered an overview of the comparative advantages of her theory of contract as exchange.  It was a stimulating talk that left me wanting more.

Professor Bagchi circulated a draft of her paper which is far deeper, richer, and more philosophically challenging than the conference presentation.  It is also dauntingly complex.  I won't try to say more beyond recommending that readers look out for the paper when it makes its appearance on SSRN or in print.  This is very weighty scholarship, obviously the product of decades of reflection on the subject.  Professor Bagchi's scholarship contains multitudes but then synthesizes that material into a challenging reconceptualization of contracts theory.  She renders the familiar strange and then re-familiarizes it in striking ways.

I can't say that the panels engaged with Professor Bagchi's theories directly.  More so than the other plenary papers, Professor Bagchi was striking out in new directions, building on her prior scholarship but staking out new territory.  Nonetheless, her work is ambitious enough to touch on the conferences major themes beyond contracts theory.  Foundational as it is, it can apply to any national tradition, and her work is intensely engaged in the sorts of problems that arise in a world where the law of contracting has moved from negotiation to adhesion. 

While this year's iteration of the conference supplemented the usual KCON subject matter, there were also some themes missing or downplayed.  The first was pedagogy.  KCON usually includes multiple panels on teaching contracts law.  That subject went unaddressed.  Second, while two panels on innovation addressed the intersection of contracts law and technology, they seem to have focused  on smart contracts and blockchain.  I did not attend either session, so I'm not sure what else they covered.  In any case, I expect that when we return to the U.S. next year for KCON XVIII, the impact of AI on contract drafting and contract interpretation/enforcement will be a pervasive theme.

I hope that we can continue to pursue some of the unique themes of this year's conference next year.  While we have a favored candidate for next year's venue, place and date are yet to be determined.  Stay tuned.

Nick Mouttotos (U. Bremen) & Dan Barnhizer, Summary of the Informed Consent Conference in Bremen

Insights from the Institute for Commercial Law
Informed Consent to Dispute Resolution Agreements Conference 
Universität Bremen, Bremen, Germany 20-21 June 2024

Introduction by Daniel Barnhizer (left)

The theme proposed by the Institute for Commercial Law focused on standard form contracts and choice of law and choice of forum terms. This event, occurring 20-21 June 2024 at the Haus der Wissenschaft in Bremen, brought together scholars from the US, the EU, and other civil law and common law jurisdictions to explore the nature of assent, the history of private autonomy in contract. In terms of organization and administration, this was one of the easiest and most enjoyable conferences I’ve ever attended. Thank you so much to our hosts for the amazing accommodations, the coffees and snacks during breaks, and the incredible dinner at the Bremen Ratskeller. Throughout the conference, I was consistently stunned by the welcome and engagement displayed by the participants and organizers.

As an initial matter, I would like to express my sincere and heartfelt appreciation to Prof. Dr. Gralf-Peter Caliess and Dr. Nicholas Mouttotos for organizing this conference. Additionally, Margit Knipper was absolutely amazing in handling the administrative details for this conference. And finally, many thanks to Zhen Chen for developing and gifting the participants with the conference poster appearing below:

Conference Summary by Dr. Nickolas Mouttotos (below right)

The conference was organized as a moderate split between history (particularly Symeonides), general contract theory, and choice of law / choice of forum scholars. Literally every presenter was fully engaged with the attendees – and for every panel there were more questions and comments raised by the attendees and participants than would fit within the permitted time. Seriously robust, this conference was something to which academia should aspire.

Day One: Party Autonomy and Contract Law

The conference commenced with a keynote speech by Symeon C. Symeonides, the Alex L. Parks Distinguished Professor of Law and Dean Emeritus at Willamette University, who recently celebrated 50 years of contributions in the US conflict of laws field. Symeonides' address, titled "Party Autonomy: Then and Now," provided a historical and contemporary analysis of the principle of party autonomy, highlighting its evolution from the Decree of King Ptolemy VIII in 118 B.C. until its modern adoption in 152 countries, signifying its universal acceptance. Symeonides addressed the principle’s current challenges in delineating the modalities, scope and limitations.

The first session, chaired by Professor Rui Dias from the University of Coimbra, focused on "Consent, Contract, Constitution." Professor Nancy Kim from Chicago-Kent College of Law started the session with a compelling presentation on "Consent and Dispute Resolution Clauses," examining how consent is construed in general under the law but also specifically in the adhesive contract setting. Kim emphasized that consent requires the manifestation of assent, knowledge and voluntariness examining how much of each condition is required for consent to be ‘valid’. Kim noted the importance of dispute resolution clauses on how they affect substantive rights and autonomy interests, something that was taken up by the next presentation by Professor Gralf-Peter Calliess of the University of Bremen, on "Reflexive Contract Law: A Constitutional Framework." Calliess delved into the constitutional right to remedy, which dates back to the Magna Carta Libertatum of 1215, and is nowadays intrinsic to any state operating under the rule of law.  Calliess suggested that a waiver of this right to remedy by contract must be given in full knowledge of the facts, that is to say on the basis of informed consent.

The second session, chaired by Professor Ralf Michaels from the Max Planck Institute for Comparative and International Private Law, explored "Standard Form Contracts and Unfair Terms." Frederick Rieländer, Professor of Law at the University of Bremen compared the Unfair Terms in Consumer Contracts Directive (93/13/EEC) with the US Restatement of Consumer Contracts, providing a transatlantic perspective on consumer protection. Rieländer highlighted the limited effectiveness of the assent doctrine and disclosure requirements under the Restatement of Consumer Contracts and the contrast with the Unfair Contract Terms Directive in the EU that is more focused on transparency. Professor Daniel Barnhizer from Michigan State University discussed "Assent under Adhesion Contracts and the Doctrine of Unconscionability," stressing the nuances of consent in standard form contracts and offering a reimagining in the age of generative artificial intelligence. Barnhizer’s view of a future contract law imagines artificial intelligence as assisting in abandoning the current model of policing assent through proxy in favor of a ‘persuaded assent’ model with AI Shopping Assistants, for example. Dr. Peter McColgan from Humboldt University of Berlin also argued for a new model, one that is based on control with increased scrutiny of mass contract terms, breaking the information bottleneck. McColgan’s presentation was titled "A Farewell to the Information Model in the Law of General Terms and Conditions?" since he favors the complete abandonment of the current model that leads to consent being a legal fiction.

The day wrapped up with a conference dinner at the historic Bremer Ratskeller, where Dr. Claudia Schilling, Senator of Justice and Constitution of the Free Hanseatic City of Bremen, welcomed the attendees.

Day Two: Deliberations on Choice of Law, Jurisdiction, and Arbitration

Day two began with a session on "Choice of Law," chaired by Professor Patrick Leyens from the University of Bremen. Professor Laura Little from Temple University provided insights into the elaboration of the provisions on choice of law found in the Draft Restatement (Third) of Conflict of Laws, in which she serves as an associate reporter. Little emphasized that the Restatement strives for a balancing of various competing values such as liberty, party autonomy and economic efficiency on the one hand, and protecting state interests, reliance on established law and constraining misuse of superior power on the other hand. Professor Kermit Roosevelt III from the University of Pennsylvania, the reporter of the new Restatement of Conflict of Laws, explored the intricacies involved in the choice-of-law analysis and argued that courts confronted with a choice-of-law clause should consider the interests and policies of the state whose law has been selected.

The subsequent session on "Choice of Jurisdiction," chaired by Professor Geneviève Saumier from McGill University, featured Professor John F. Coyle from the University of North Carolina, who discussed the enforceability of choice-of-jurisdiction clauses in the US and the conflation by courts of the notion of notice with consent. Professor Hannah Buxbaum from Indiana University - Bloomington examined the impact of statutory anti-waiver provisions, noting the problems in enforcing such pre-dispute resolution agreements in the consumer context but also their importance in establishing a functioning online dispute resolution mechanism. Professor Marta Pertegás Sender from Maastricht University addressed consent to jurisdiction under the EU Brussels Ia and Hague Choice of Court regimes, noting the absence of the term ‘consent’ in the Brussels Ia Regulation and the emphasis on satisfying the written form requirement found under Article 25.

After lunch, the focus shifted to "Arbitration Agreements" potentially the most controversial of dispute resolution agreements, particularly for consumer contracts. Chaired by Professor Ulrich Schröter from the University of Basel, this session included Professor Stephen J. Ware from the University of Kansas, who spoke on "Contracting Away Constitutional Rights in the United States," and Professor Camelia Toader from the University of Bucharest, who analyzed the legal landscape in Europe with regard to arbitration agreements, providing comparative remarks on how different European countries regulate such agreements. Ware noted the different consent standards that govern various types of dispute resolution clauses in the US, with bench trial clauses usually requiring a higher threshold for establishing consent.

The conference concluded with a wrap-up session chaired by Professor Gralf-Peter Calliess, featuring Dr. Nicholas Mouttotos from the University of Bremen. Mouttotos' presentation, "Towards a Coherent Regulation of Dispute Resolution Clauses?" encapsulated the key themes and discussions of the conference, leaving attendees with much to ponder. Mouttotos highlighted that balancing party autonomy with protecting rights and ensuring fair and informed consent is an ongoing challenge that requires a refinement of our understanding and approach to consent in dispute resolution agreements in particular.

Conclusion

The Institute for Commercial Law conference was a remarkable event that fostered deep discussions on critical aspects of contract and commercial law. It provided a platform for sharing perspectives between the US and Europe, identified challenges in addressing choice of law and choice of forum clauses in adhesive contracts, and explored innovative ideas for dealing with the problem posed by standard form contracts in identifying assent. The diverse range of topics and the high caliber of presentations made it a significant contribution to the field. The proceedings of the conference will be published as a Special Issue at the German Law Journal, an open access journal of the Cambridge University Press, in early January 2025.