ContractsProf Blog

Hiatus

I am taking a break from posting starting this week.  I'm not sure when I will resume, but no later than the start of classes in August.

The Endless Debate over Sandwiches May Now End, at Least in Indiana

We have covered this topic before. The topic is almost as old as this Blog, with our first post on the subject dating from 2006. We covered the sandwich debate here in 2008, when a Massachusetts court ruled that a burrito is not a sandwich. We did it again when Taco Bell turned the issue into a commercial. I wish I didn't have to cover it again, but at least this time we have something of a resolution. Moreover, Blogger Emerita, Meredith Miller (left) shared the story with me, and when Meredith feeds me stories, I rush to post in the hope that she will feel bad that I have to do so and maybe she'll come back and post her own stuff.

As Praveena Somasundaram reports in The Washington Post (yes, this is national news), Allen County Superior Court Judge Craig J. Bobay has ruled that burritos and tacos are, in fact, sandwiches. The are "Mexican-style sandwiches," to be precise.  Ms. Somasundaram took a deep dive in reporting the case, noting: the 2006 Massachusetts decision; Justice Ginsburg's view, voiced to Stephen Colbert on The Late Show in 2018, that hot dogs served on buns are sandwiches; and the "cube rule," according which a taco (and a hot dog for that matter) is a taco, and a burrito (as well as a corn dog) is a calzone.  It all turns on the location of the starch.

Judge Bobay broke out of the box, or the cube, ruling that tacos are not tacos, but sandwiches.  Burritos are not calzones.  They too are sandwiches.  But resolving whether tacos and burritos are sandwiches did not necessarily resolve the case.  It involved a zoning restriction, which prohibited fast-food restaurants, but carved out an exception for made-to-order sandwich shops, so long as they do not serve alcohol, have outdoor speakers or drive-throughs, or provide outdoor seating. Presumably, the Famous Taco franchise that Judge Bobay allowed made its tacos and burritos to order.  

You may be wondering what any of this has to do with contracts.  If I were on the job market, I think I would say, "the relationship is orthogonal."  Ilya Somin provides a more straightforward and interesting take on the case on The Volokh Conspiracy, focusing on issues of interpretation and zoning restrictions.  Like a talk-show guest, he deftly pivots at the end to hawk his latest scholarship, co-authored with Joshua Braver on The Constitutional Case Aaainst Exclusionary Zoning.

Would Burger King fit the exception, or it is no longer the case that you can "have it your way" at Burger King?

Hiatus from Blogging

A combination of the crush of the middle of the semester and family obligations involving international travel move me to take a month away from the blog.  I may pop in from time to time if posts fall into my lap, but I ask you to adjust your expectations of the blog to the lowest possible setting.

Friday Frivolity: Offer to Enter into a Unilateral Contract from John Oliver

Image by Neil Grabowsky / Montclair Film Festival, CC BY 2.0 via Wikimedia Commons

Offers to enter into unilateral contracts provide frequent blog fodder.  Elon Musk offered Wikipedia $1 billion if it would change its name.  He did something similar, offering to pay legal fees for people who faced adverse employment decisions for posts on Twitter.  James Corden gave us food for thought here.  Celebrities offer very high rewards for the return of their lost or stolen pets. Burma Shave offered a trip to Mars.  In all of these cases, the offeror seems to have made the offer for non-contractual reasons.  They never intended to make good on their offer.  They were just trying to make some point unrelated to mutually beneficial transactions. 

John Oliver (left) seems to be doing something very different. On his show last week, John Oliver produced a document that he described as "a contract," in which he, in his personal capacity, offered to pay Justice Clarence Thomas $1 million/year for the rest of his (or John's ) life if Justice Thomas would agree to step down from the U.S. Supreme Court.  To sweeten the deal, John also threw in a luxury motor coach worth $2.4 million.  He gave Justice Thomas thirty days to accept the offer.  He said repeatedly that his was a serious offer, and I think he meant it.

Unlike other unilateral offers discussed in this space, John Oliver's offer seems genuine.  He seems like he actually wants Justice Thomas to take the offer.  Paying Justice Thomas $1 million a year might be painful for John, but I suspect he will make it back by having cemented his reputation for the rest of his life as a legend of political comedy.

Friday Frivolity Update

A couple of weeks ago, I posted about this sign in my gym's locker room.  I suggested that the sign is ambiguous.  What is "use" of a cell phone.  Do all uses "Concern[] the privacy of all"?  Learned commentary suggested that all means all.  Text and policy aligns, so "Game, set, and match."

This week, my gym posted additional signage, with the still-unhelpful addition "Security Alert," which is highlighted in yellow.  Is this the power of the Blog?  Are the management team members at my gym silent admirers of the Blog?  It's okay folks.  I welcome your adoration.  Don't be shy.  I don't mind talking about contracts law while I'm on the elliptical.  

Notwithstanding the additional signage, during my brief visit to the locker room during my last visit to the facility, I noticed three people using their cell phones in the locker room to listen to something.  One of them had his phone out as he was walking, head buried in his screen, either texting or navigating to the next song on his playlist.  I was unconcerned, given that, in that posture, he could only use his camera to photograph his own face or the ground.  Imagine my surprise when I came home to find the image of a torso (right), which I recognize as my own, uploaded to the Web.  Did that guy's phone have a side camera in addition to the front and back cameras?  It's diabolical!  And so embarrassing to be photographed in winter when I'm in such terrible shape!

Curious, I quizzed the attendant at the front desk, She seemed shockingly ignorant of the Blog, and her knowledge of contracts law was generally middling.  Rather, she explained the new signage to me as a product of a number of complaints about cell phone usage in locker rooms.  I asked her if it was okay to listen to music or podcasts using a cell phone, and she assured me that the concern was with photography and telephonic conversations.  Listening to stuff is fine.  I think I need to broaden my data set, because I don't want to be found in violation of the policy, but my original inkling that there could be basic questions as to what the sign means abides.

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.

Weekend Frivolity Top Ten Blog Posts of 2023

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

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

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

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

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

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

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

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

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

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

And the #1 top blog post for 2023 is:

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

Of Windfalls from Mistake and Breaches of Auction Contracts

A few months back, we brought you the heartwarming story of a couple that purchased a small, valuable painting by N.C. Wyeth (self-portrait, left) at a thrift shop for $4.  It was expected to fetch up to $250,000 at auction.  

Now, the bad news.  According to Matt Stevens writing in The New York Times, the painting sold for only $191,000 at auction.  And now the worse news.  The buyer never paid and never arranged for delivery of the painting.  The auction house sent the sellers a shrug emoji.  These things happen.  The buyer is located in Australia, a vast, lawless wasteland, where the inhabitants daily confront spiders the size of your face and more dangerous, venomous spiders that hide in your shoes.  Not to mention the pythons that hide in trees and then drop on unsuspecting passers-by (mostly tourists).  Breach of contract is nothing to such people.  A mere auction house is powerless in these circumstances.    

The sellers are philosophical.  They are not out any money, and the auction house returned the painting to them in a lovely cardboard box.  If they have a cat, that cat no doubt values the box at something around $191,000.  If they don't have a cat, they should get one, and then the family's hedonic sum will then equal what it would have been had the Australian paid up.  

[Editor's note: an earlier version of this post identified the painting as created by Andrew Wyeth, N.C.'s son.  Thanks to Jim Fishman for the correction!] 

China Southern Airlines Honors Tickets Sold for 10 Yuan ($1.37)!

Thanks to Wayne Barnes (below, demonstrating how one faces down an airline), we have another in our series of stories of people beating up on the airlines.  The others in this series include a couple that got a refund after being seated next to a gaseous, slobbering dog, a mother forced to sell her child into slavery when the airline would not allow the child to have a seat of her own (perhaps I exaggerate a bit), and a refund for a failed trip to Easter Island.

This time it was a simple website glitch.  For two hours, as reported on CNN, through a story provided by Reuters, China Southern advertised trips for 10, 20 or 30 yuan when they should have cost 400-500 yuan.  Passengers still had to pay airport fees, but the airlines otherwise swallowed the loss.  Perhaps this AI thing isn't all bad.

The story was reported by Sophie Yu and Casey Hall, with editing by Bernadette Baum.

End of the Semester Hiatus

Hello Readers.

I have reached the point in the semester where something has to give.  

This time it will be the blog.

If I come across something that I can get up on the blog in a hurry, I will do so, and my co-bloggers and guest bloggers might provide some content.

Other than that.  See you in December (or January).  No warranties.

The Art of the Steal and the Art of (Not) Paying Damages

Two years ago, Sid DeLong (below left) posted on The Art of the Steal.  The facts of the case are as follows (lifted from Sid's post)

A Danish artist, Jens Haaning, was famous for imaginative art works intended as social commentary. Two of his previous works consisted of real currency pasted into a picture frame, each containing the average annual incomes of Danes and Austrians. The Kunsten Museum of Modern Art commissioned him to recreate these two pieces as part of an exhibition about the labor market entitled “Work It Out.”  Its contract with Haaning provided that he was to receive the equivalent of around $7,000 in expenses plus a government-determined viewing fee. In addition, the Museum gave him the equivalent of $84,000, (534,000 kroner), which he was to attach to the art works as he had previously done. 

Shortly afterward, he delivered two empty picture frames, entitled “Take the Money and Run.” As he later explained, he thereby fulfilled his promise of artwork: “The work is that I have taken their money…It’s not theft. It is a breach of contract, and breach of contract is part of the work.” 

In my own follow-up post, I opened as follows:

However, it appears that he never contracted for the right to keep the 530,000 Danish kroner he was supposed to use to make the art.  The title of his blank canvases could be construed as an admission of liability.  Not having seen the documents relating to the deal between artist and museum one cannot be certain, but it is hard to imagine a legal argument for why Mr. Haaning should get to keep the money.

Now it's time for the rest of the story, care of our former co-blogger Meredith Miller (right), who now just drops us little jewels from time to time.

Meredith shared with us Doha Madani's story for NBC News, which tells us that the art of the steal is not as profitable as you might think.  A court found that Mr. Haaning had breached his agreement with museum and ordered him to repay the money he was given to attach to the canvases of his works of art (currently valued at about $70,000).  He was permitted to keep his fee.  Mr. Haaning brought a counterclaim, alleging breach of copyright.  The reporting does not explain the legal reasoning underlying that claim, but the court ruled against Mr. Haaning.

True to the take-the-money-and-run spirit of his art, Mr. Haaning does not intend to appeal the ruling, but he also does not intend to pay damages.  He claims that he doesn't have the money. Harriet Sherwood, reporting in The Guardian provides the following quotation from Mr. Haaning at the time he created "Take the Money and Run":

“I encourage other people who have working conditions as miserable as mine to do the same. If they’re sitting in some shitty job and not getting paid, and are actually being asked to pay money to go to work, then grab what you can and beat it.” 

Seen from this perspective, it really would be hypocritical of Mr. Haaning to return the money.  He wouldn't be following his own advice.  Perhaps.  But it is not clear whether he is "sitting in some shitty job," and he definitely was paid.  Unfortunately, his pay may not cover his court fees.

Weekend Frivolity: Who's Attacking Me Now?

Back when Stephen Colbert was heroically hosting The Colbert Report, he had a segment called "Who's Attacking Me Now."  Here's an example.  I would love to have a similar segment on the blog, but people don't attack the blog that often.  Still, it happened recently (while I was on hiatus, the cowards!).

I gave an interview for an article about plain-language contract drafting.  I had a long conversation with the reporter, in which I acknowledged that one should try to write contracts so that people can understand them and also acknowledged that most people who draft contracts work with forms, and changing the form is risky and takes longer, which makes the process more expensive.  And then I segued to talk about what seems to me to be the more important problems with the world of contracting today.  People don't read contracts because: (1) yes, they are incomprehensible, but also; (2) they are long; (3) they are contracts of adhesion, so even if you don't like something in the contract, you can't bargain for better language; and (4) life is short and the stakes in most contracts seem small ex ante.  Omri Ben-Shahar (left) is cited in the same story for the proposition that "simplifying these contracts would do nothing to protect consumers, especially when they’re up against 'a powerful, well-advised, sophisticated company.'"

I was then attacked as a "proponent of tested contract language."  Omri escaped unscathed!  Well, I suppose the shoe fits, but I thought what I said was a little more nuanced than that.  When I returned from hiatus, I went to the comments section of the blog in which I was attacked so that I could take one thing attributed to the author in a blogpost edited by someone else and treat it as the sum total of his essence.  But first, being a cautious person, I checked out his website's privacy policy.  

It is in pristine ordinary language.  I cut and pasted it into a Word document.  It consists of over 2500 words, which makes it ten pages long.  It links to the privacy pages of three "partners."  Here's what the privacy policy says about them:

We do not share your Personal Data with strangers. Personal Data about you is in some cases provided to our trusted partners in order to either make providing the service to you possible or to enhance your customer experience. We share your data with:

Our processing partners:

• Akismet – Automattic, Inc.

• Disqus, Inc.

• MadMimi – GoDaddy

Hmm.  They may be "trusted partners" to you, but they are strangers to me.  Of course, by the time I read that far into the policy, the website was already sharing my information with its trusted partners.  And even if I took the time to read the ten-page privacy policy with care as well as the privacy policies of the three partners, to which the privacy policy provided links, and any other vital document to which the privacy policy linked or which it referenced, the privacy policy ends as follows:

"We reserve the right to make change to this Privacy Policy."

If a user of the website read that far, they would have no difficulty understanding the words.  But perhaps ease of understanding the contract's language is not its biggest problem.

On Hiatus

Dear Readers,

I am taking the month off to move house and try to get some scholarship done before the new semester begins.  There may be guest posts and Top Tens, but I do not anticipate putting up fresh content until August.

If you need diversion, I recommend the Tour de France!

 

LAFAY!!!

KCON/ContractsProf Blog Brain Trust Assembled

Sorry terrorists, you missed your opportunity.  Last weekend in Fort Worth, current contributors and founding geniuses of both KCON and the Blog were gathered in one place.  You could have taken us all out with a targeted strike, but here we are (Mark Edwin Burge, Wayne Barnes, Frank Snyder, Sid DeLong, and the author (foreground)) laughing at you!

Carol Chomsky, creator, muse, caretaker, peacekeeper, and curator of the AALS Contracts Listserv, was also in the room!  Nancy Kim, was our designated survivor, monitoring all from a secure, undisclosed location.

Great News for Libelous Bloggers Everywhere!

Over at the Volokh Conspiracy, the man himself, Eugene Volokh (left), reports on Arthaud v. Fuglie, a case in which plaintiff alleged that he had been defamed by a blog post that was published in 2018.  Plaintiff did not discover the post until 2021 and sued within weeks of discovery.  North Dakota's Supreme Court ruled that the two-year statute of limitations had lapsed.  The statute of limitations runs from the time of publication, not from the time of discovery.

This is a boon to all bloggers, especially those whose posts are rarely discovered.  We feel newly empowered to remove the gloves!

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part V: Introducing the Second Week

We continue our symposium on the contracts scholarship of Mel Eisenberg with four additional contributions and some responses from Professor Eisenberg.  This week, we will be hearing from . . .

Mark Gergen is the Robert and Joann Burch D.P. Professor of Tax Law and Policy at Berkeley Law, where he joined the faculty in 2008 after teaching at the University of Texas School of Law for over two decades.  His principal teaching interests are in Contracts, Torts, Federal Income Tax, and Partnership Tax.  Gergen’s current scholarly interests include both private law and tax.  Some of his recent publications of interest to readers of the Blog include Privity; The Best and Worst of Contracts Decisions: An Anthology; Basic Contract Law; The Right to Perform After Repudiation and Recover the Contract Price in Anglo-American Law; and Privity's Shadow: Exculpatory Terms in Extended Forms of Private Ordering

Jennifer S. Martin joined the law faculty at St. Thomas University in 2010 but will be joining Albany Law School next Fall! Professor Martin has published many articles on contract and commercial law remedies, wartime and conflict contracting, consumer rights, and lender liability.  Professor Martin is an elected member of the American Law Institute. She is a co-author of two textbooks, CONTRACTS: A CONTEMPORARY APPROACH (West Academic 3d ed. with Chomsky, Kunz and Schiltz) and LEARNING SALES (West Academic 2d ed. with Chomsky, Kunz and Schiltz). She is also the author of the American Bar Association’s Annual Survey on Sales Law published annually in THE BUSINESS LAWYER. Her distinguished publications are many and include, Contract Remedies and the Myth of the Expectation Measure, 94 TULANE L. REV. (961 2020), Private Law Remedies, Human Rights and Supply Contracts, 68 AMERICAN L. REV. 1781 (2019) and Opportunistic Resales and the Uniform Commercial Code, 2016 ILL. L. REV. 487 (2016). Professor Martin prepares the annual update to COMMERCIAL AND CONSUMER WARRANTIES (Lexis).

Professor Martin graduated from Vanderbilt Law School, and was an Associate with the international practice group of Baker & Botts, L.L.P., practicing in both the Houston and Dallas offices. A member of the Texas and American Bar Associations, Professor Martin was a Principal Attorney for Houston Industries Incorporated (now Reliant Energy), working on power generation transactions domestically and internationally.

Judge Harris Hartz has served since 2001 on the U.S. Court of Appeals for the Tenth Circuit.  He graduated summa cum laude in physics from Harvard College in 1967, where he was elected to Phi Beta Kappa in his junior year. He received his J.D. magna cum laude in 1972 from Harvard Law School, where he was the law review's Case and Developments Editor. He was an assistant U.S. attorney in New Mexico, an assistant professor at the University of Illinois College of Law for a semester, and director of the NM Organized Crime Prevention Commission before working in private practice for nine years. He was a judge on the New Mexico Court of Appeals from 1988-1999.

Hila Keren is the Associate Dean for Research and a Professor of Law at the Southwestern Law School, where she has taught since 2010.  Hila’s primary areas of teaching are contracts and business law.  Her primary areas of scholarship are contract law, feminist jurisprudence, critical race theory, law and the emotions, and the rising approach of law and political economy. Her book, Contract Law from a Feminist Perspective, was published in Hebrew by Sacher Institute for Legislative Research and Comparative Law (2005), and she is the author or co-author of numerous articles that have appeared in the California Law Review, Harvard Law Review, Minnesota Law Review, and Michigan Journal of Race and Law, among others. 

We look forward to a terrific week of posts, to be follows by Professor Eisenberg's reflections on the contributions.

The first week's posts can be found here:

Virtual Symposium: Mel Eisenberg and Contracts Law Scholarship

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part I: Shawn Bayern

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part II: Douglas Baird

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part III: Ethan Leib

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part IV: Nancy Kim

Subsequent posts:

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part VI: Mark Gergen

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part VII: Jennifer Martin

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part VIII: Harris Hartz

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part IX: Hila Keren

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part X(A): Response to Ethan Leib

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part X(B): Response to Nancy Kim

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part X(C): Response to Sid DeLong

Virtual Symposium: Mel Eisenberg and Contracts Law Scholarship

This week we kick off a virtual symposium on the contracts scholarship of Mel Eisenberg (left). For readers unfamiliar with Professor Eisenberg's work, we recommend his 2018 Foundational Principles of Contract Law as a great way to learn contracts law from one of the generational giants in the field.  The book is comprehensive, and at 900 pages, it may not be the sort of thing you want to read cover-to-cover, but it is a great thing to have on your shelf and to pull off as you are preparing to teach your contracts class and are looking for a new perspective on familiar material.

The symposium will feature guest posts by some of Professor Eisenberg's students and colleagues.  Some of the posts will discuss specific chapters of Foundational Principles, others will provide thoughts on other aspects of Professor Eisenberg's writings on contract law, and some will also include personal reflections on what it is like to work and interact with Professor Eisenberg as a colleague, mentor, and scholar.

This week will feature guest posts from the following scholars:

Shawn Bayern is the Larry and Joyce Beltz Professor of Torts and Associate Dean for Academic Affairs at the Florida State University College of Law.  Professor Bayern's research focuses on common-law issues, primarily in contracts, torts and organizational law. He has recently written articles criticizing formalism and economic simplifications of the law. He teaches Torts, Contracts, Agency & Partnership and other related courses.  In addition to his numerous law review articles, Professor Bayern has published three books (one co-authored with Mel Eisenberg) and has three more forthcoming!

Douglas Baird is the Harry A. Bigelow Distinguished Service Professor at the University of Chicago and Chair, National Bankruptcy Conference. Baird received his undergraduate degree from Yale University summa cum laude and his J.D. from Stanford. He joined Chicago’s faculty in 1980 and served as its Dean from 1994 to 1999. He is the editor of the eleventh edition of the Dawson & Harvey contracts casebook and the author of Reconstructing Contracts (Harvard University Press 2013).  We have previously highlighted Professor Baird's outstanding contracts scholarship on the blog here.

Ethan Leib is  the John D. Calamari Distinguished Professor of Law at Fordham Law School. He teaches in contracts, legislation, and regulation. His most recent book, Friend v. Friend: Friendships and What, If Anything, the Law Should Do About Them, explores the costs and benefits of the legal recognition of and sensitivity to friendship; it was published by Oxford University Press. Leib’s scholarly articles have recently appeared in the Yale Law Journal, Virginia Law Review, Georgetown Law Journal, University of Pennsylvania Law Review, University of Chicago Law Review, California Law Review, and elsewhere. He has also written for a broader audience in the New York Times, USA Today, Policy Review, Washington Post, New York Law Journal, The American Scholar, and The New Republic. 

Nancy Kim is the inaugural Michael Paul Galvin Chair in Entrepreneurship and Applied Legal Technology at the Chicago-Kent College of Law.  Professor Kim's scholarship focuses on consent, contracts, privacy, and the effect of technology on society, and she has written dozens of scholarly articles and essays on these subjects.  She is also the author of the books, Consentability: Consent and Its Limits (Cambridge University Press, 2019); The Fundamentals of Contract Law and Clauses (Edward Elgar, 2016); and Wrap Contracts:  Foundations and Ramifications (Oxford University Press, 2013).  Professor Kim’s scholarship has been cited by federal courts and in legal treatises, and she is a frequently quoted in the media, including the New York Times, NPR, the Los Angeles Times, and Popular Mechanics.

Professor Kim received her J.D. degree from the UC Berkeley School of Law where she was an associate editor of the California Law Review, and her LL.M. degree from the UCLA School of Law where she was a Ford Foundation Fellow. Kim was also a Women’s Law and Public Policy Fellow at Georgetown University Law Center.  She graduated Phi Beta Kappa from UC Berkeley with a B.A. in Rhetoric and a minor in French.  She is the author of two novels. 

We look forward to an exciting week of contributions from our guest bloggers!

Related posts from the Mel Eisenberg Symposium:

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part I: Shawn Bayern

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part II: Douglas Baird

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part III: Ethan Leib

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part IV: Nancy Kim

Posts from the second week:

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part V: Introducing the Second Week

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part VI: Mark Gergen

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part VII: Jennifer Martin

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part VIII: Harris Hartz

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part IX: Hila Keren

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part X(A): Response to Ethan Leib

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part X(B): Response to Nancy Kim

Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part X(C): Response to Sid DeLong

Just When I Thought I Was Pulled Back In to Twitter, I'm Out Again

I've been thinking about re-starting the Blog's Twitter feed, which has been dormant since December.  Blog traffic is down, I have been losing touch with academic news that I was getting through active LawTwitter folks, and Twitter remains an awesome news aggregator.  And then I came across this latest evidence that the new Twitter is a dastardly, mean-spirited Saturn that devours its own children.  

I learned today on Mastodon (of course) through Andy Baio that Twitter has "quietly changed its Developer Agreement today to retroactively justify their unannounced ban on third-party Twitter clients."  The change is reflected in an update in Twitter's (you guessed it!) Terms of Service.  Here is a track-change comparison that highlights the changes.  These changes are really targeted at independent companies that greatly improved the user experience over at Twitter.  I wasn't around for the early days of Twitter, and I'm not a person who thinks much about tech matters, so I don't really understand how it all worked, but here is an account of the effect on one such company, Twitterific.  #Tweetbot is another such service that the New Twitter has killed off.  I take it that these were Apps that you could download that would give you a better experience on Twitter than the actual Twitter App and which contributed mightily to Twitter's success.  

As you can read here in reporting from Ivan Mehta, Twitter claimed that these Twitter clients violated its "longstanding rules," without identifying any such rules.  The fact that it had to changes its ToS in order to justify its actions is, in a word, suss.

Still mulling a return to Twitter.  Still hoping things change over there or that one of the alternative matures into a substitute.  For now, please follow the Blog on Mastodon.  

Moved to Mastodon

Dear Readers,

I have paused the Blog's Twitter account to see try to resist and wait out the Elon Musk experiment. I've moved the Blog's social media presence to Mastodon in case any of you are there and want to follow: @[email protected]

This is why we can't have nice things. Billionaires buy them and ruin them by inviting insurrection-inciting former Presidents back on the platform. Happens every time.

More from the Pot Spot: 11th Circuit Finds Text Message Is a Personal Guaranty

Today in the Pot Repot, the Cannitabloid, the Joint Joint, Reefer Brief, the Leaves of Grass (still working on the name for this new regular feature), we learn from the Eleventh Circuit that a hasty text message can be given legal effect as a personal guaranty for a business obligation.

In 2108, 3 Delta Inc. (3D) contracted with BrewFab LLC (BrewFab) for the construction of a machine that would extract cannibidiol oil.  The parties had no written agreement; rather BrewFab invoiced 3D as the work progressed.  3D paid three such invoices and then stopped.  BrewFab, understandably, suspended work on the extraction machine late in 2019.  I was unaware of the existence of cannibidiol oil extraction machines, and given my general sense that medical marijuana businesses often involve some chicanery, I did some research and discovered that they are definitely a thing. The remaining question is why it would take over a year to construct such a machine.

Be that as it may, in January 2020, 3D really wanted BrewFab to re-commence work, and so the parties had a BrewFab confab.  Afterwards, George Russo, a 3D principal, sent the following text to a BrewFab principal:

As per our conversation on Jan 30th 2020 I george Russo from 3 Delta do promise to pay brew fab in full all outstanding bills as of this date and all agreed upon work done for 3 delta future forward. I thank you for your patience. 

Thereafter BrewFab recommenced its work, but neither 3D nor Russo paid, and within a fortnight, 3D instructed BrewFab to stop all work

In BrewFab LLC v. 3 Delta Inc., the Eleventh Circuit affirmed summary judgment on behalf of BrewFab.  The District Court had found that the text message was both a writing sufficient to satisfy the Statute of Frauds and a personal guaranty.  The Court noted that Mr. Russo's writing was ambiguous because in that it does not clearly establish whether the "outstanding bills" referenced in the text are personal debts or the debts of 3D.  However, evidence from discovery cleared up that factual ambiguity, as Mr. Russo conceded that the debts in question were 3D's unpaid invoices.  With that additional information, the Court had no difficulty construing Mr. Russo's text as a personal guaranty.  

Mr. Russo had a stronger argument in maintaining that by identifying himself as "george Russo from 3 Delta," he made clear that he was operating in his capacity as an officer of the company.  Unfortunately, Florida law requires a more precise descriptio personae.  In order to avoid personal liability, Mr. Russo would have had to have identified himself as holding a specific office within the corporation.  Not having done so, he was operating in a personal capacity.  The Court treated his statement as though he were Troy McClure saying, "I'm Troy McClure.  You may remember from such uncomfortable encounters as -- that meeting we just had in which we acknowledged that we owed you money and promised to pay."  The Court found that Mr. Russo's text was a personal guaranty.

Mr. Russo next argued that his text message did not satisfy the Statute of Frauds.  Under Florida law, promises to pay the debts of another must be evidenced by a signed writing.  In this case, Mr. Russo maintained, his text message was insufficient to satisfy the Statute of Frauds because it was not signed and omitted an essential term; viz, consideration given in exchange for Mr. Russo's promise.  

The Court found that the language “I george Russo from 3 Delta” constituted an electronic signature under Florida law.  As to consideration, the Court found (through an IMHO unnecessary excursion in the unilateral contracts theory) that "Russo’s promise became a binding guaranty agreement when BrewFab accepted Russo’s promise by resuming work and sending 3 Delta additional equipment, after Russo sent the text message."

Update: early results from our Twitter Poll suggest that the name for this occasional feature on cases arising from the burgeoning legal marijuana industry will be: the Reefer Brief.