ContractsProf Blog

Reminder: Conference on Saturday on the Restatement of Consumer Contracts

The Harvard Business Law Review is sponsoring a one-day symposium on the new Restatement of Consumer Contracts, hosting several speakers (some of whom were among the most critical of the earlier drafts). The symposium will take place on Saturday, January 25, 9am – 4pm, at Harvard Law School. While the speakers slots have all been filled, the event is open to anyone interested in attending.

The program is the following:

• Steve Weiss, The Role of “Totality of the Circumstances” in the Restatement of the Law, Consumer Contracts
• Dave Hoffman, Consumers’ Unreasonable Expectations
• Dan Schwarcz, The Challenges of a Subject Matter Neutral Approach to Consumer Contract Law
• Tess Wilkinson-Ryan, The Psychology of Misleading and Disclaiming
• Rebecca Stone, A Duty to Set Terms in Good Faith
• Adam Levitin, The Death of Consumer Contract
• Patricia McCoy, Inflection Points in the Development of the Restatement of the Law, Consumer Contracts
• Ian Ayres and Greg Klass, How to Use the Restatement of Consumer Contracts: A Guide for Judges
• Oren Bar-Gill, Omri Ben-Shahar and Florencia Marotta-Wurgler, A Companion Guide to the Restatement of Consumer Contracts

Harvard to Host Conference on the Restatement of Consumer Contracts

The Harvard Business Law Review is sponsoring a one-day symposium on the new Restatement of Consumer Contracts, hosting several speakers (some of whom were among the most critical of the earlier drafts). The symposium will take place on Saturday, January 25, 9am – 4pm, at Harvard Law School. While the speakers slots have all been filled, the event is open to anyone interested in attending.

The program is the following:

• Steve Weiss, The Role of “Totality of the Circumstances” in the Restatement of the Law, Consumer Contracts
• Dave Hoffman, Consumers’ Unreasonable Expectations
• Dan Schwarcz, The Challenges of a Subject Matter Neutral Approach to Consumer Contract Law
• Tess Wilkinson-Ryan, The Psychology of Misleading and Disclaiming
• Rebecca Stone, A Duty to Set Terms in Good Faith
• Adam Levitin, The Death of Consumer Contract
• Patricia McCoy, Inflection Points in the Development of the Restatement of the Law, Consumer Contracts
• Ian Ayres and Greg Klass, How to Use the Restatement of Consumer Contracts: A Guide for Judges
• Oren Bar-Gill, Omri Ben-Shahar and Florencia Marotta-Wurgler, A Companion Guide to the Restatement of Consumer Contracts

Nominations Sought for the Contracts Executive Board for the AALS

We are unofficially the official blog of the AALS Section on Contracts, and so it seems appropriate that we announce this section seeks nominations (self or otherwise) for TWO vacancies on the Executive Board.

Please reply to Jennifer Martin at [email protected] or Colin Marks at [email protected] with your nominations. Nominations are open until December 1. If elected, please plan to attend the AALS Meeting in San Fransisco in January.

Announcing the 2024 Leet Symposium at Case Western Reserve School of Law

George A. Leet Business Law Symposium on 11/08/2024

The Center for Business Law at Case Western Reserve University School of Law will host the George A. Leet Business Law full day, in-person symposium on 11/8/2024 entitled: Relational Contracting in the New Industrial Policy.

Symposium Topic Background:

The 20^th century has witnessed the de-verticalization of production and the rise of collaborative agreements in both the biopharma and manufacturing sectors. Prior scholarship has led to a rich inquiry into these collaborations with many different explanations for their governance and contracts. Some highlight the agreements for their ability to build trust. Others emphasize the ability of these agreements to bring the efficient benefits of a hierarchy to agreements between firms. Still, others rationalize the agreements as a mechanism for institutionalizing learning. This symposium will bring together many of the key scholars in the field to address network contracts and new governance strategies for the innovation sphere. The symposium will also provide an examination into network failures. 

Keynote speaker:

Professor Matthew Jennejohn will be the keynote speaker this year. Professor Jennejohn’s scholarship focuses on the impact of institutions on economic growth, with particular attention to “building equitable institutions for a complex economy.” He is currently the Deputy Director of Strategy in the Office of Strategic Capital at the U.S. Department of Defense, an analyst at Johns Hopkins University’s Applied Physics Laboratory, and the Marion and Rulon Earl Professor of Law at BYU Law School. Previously, he has served as the Justin W. D'Atri Visiting Professor of Law, Business & Society at Columbia Law School (Autumn 2019), practiced for five years at Shearman & Sterling in New York, and clerked for (then) Vice Chancellor Leo Strine of the Delaware Court of Chancery. He is a graduate of Columbia Law School, the London School of Economics, and Brigham Young University, and grew up attending public schools in Dousman, Wisconsin.

Invited Speakers Include: 

Prof. Susan Helper, Case Western Reserve University Economics ([email protected])

Prof. Liza Vertinsky, University of Maryland Law School ([email protected])

Prof. Lisa Bernstein, University of Chicago Law School ([email protected])

Prof. Peter Lee, UC Davis School of Law ([email protected])

Geerte Hessen, Amsterdam General Counsel—Ferrovial Amsterdam

Professor Jorge Contreras, University of Utah School of Law ([email protected])

John Murray, Counsel at Abbvie ([email protected])

Josh Whitford, Professor Columbia University, Sociology Department ([email protected])

Juliet Kostritsky, Professor CWRU School of Law ([email protected])

Symposium Logistics:

The 2024 Leet Symposium will be an in-person, all-day symposium for all of the speakers. This will be a wonderful opportunity for collegial exchanges over these papers and other intellectual ideas, and to continue our discussions over dinner. Non-speakers may be able to attend in person or by remote participation.'

People who want to join need to pre-register at this link:

https://case.edu/law/our-school/events-lectures/relational-contracting-new-industrial-policy

Moderators:

In addition to planning the symposium, Professors Anat Alon-Beck, Eric Chaffee, Charles Korsmo, Juliet P. Kostritsky, and Robert Rapp from the Case Western Reserve University Law School Faculty will be moderating at the symposium.

CLE Credit and IT Information:

Patty Harbold (email: [email protected]), Director of our Academic Centers, and Martin Raska, of our IT department, will be contacting you about your presentation. Patty will handle the CLE process through the Ohio Supreme Court and Martin will handle any IT-related concerns and other information you may need.

Symposium Publication:  

The Case Western Law Review often publishes the Leet symposium as an issue. You are not required to present a paper or to publish in our law review but it would be wonderful if you would be willing to consider that as a possibility.

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.

Call for Papers, Obligations XI: Private Law Inside and Out

The Eleventh Biennial Conference on the Law of Obligations will be held at Harvard Law School from July 8–11, 2025. The conference will be co-hosted by Harvard Law School and Melbourne Law School, and will be co-convened by John Goldberg, Andrew Robertson and Henry Smith. The biennial Obligations Conferences bring together scholars and practising lawyers from across and beyond the common law world to discuss current issues in private law. Obligations XI will be the first conference in the Obligations series to be held in the United States.

The conference theme is intended to provoke discussion about the inside and outside of private law. The conference will focus on the contrast between ‘internalist’ and ‘externalist’ perspectives on the law in this field. It will also consider the boundaries and relationships between private law and morality, private law and economic efficiency, and private law and other policy goals. A central aspiration of this iteration of Obligations is to give private law scholars working in different intellectual traditions an opportunity to identify previously underappreciated overlaps and synergies, and thereby help to break down methodological barriers to an improved understanding of the field.   

Both established and early-career legal scholars are invited to submit proposals to present papers addressing the conference theme, either at a general level or in relation to any aspect of the law of obligations broadly conceived – contract, property (including intellectual property), torts, unfair competition, and unjust enrichment, as well as equity and other topics within or closely related to private law. Papers exploring relevant issues from a civil law perspective are also welcome. Anyone wishing to offer a paper should submit a working title and an abstract (of no more than 500 words) by email to [email protected] by August 15, 2024. Papers will be selected on the basis of quality, originality, engagement with the conference theme and fit with other papers being presented at the conference. Those proposing papers will be notified by October 1, 2024 whether their papers have been accepted. A waiting list may be established, depending on the level of interest. Late submissions will be considered for inclusion in the waiting list. Presenters whose proposals were accepted for the cancelled 2020 conference are encouraged to resubmit their proposals if the work has not been published in the meantime.

Speakers will be asked to submit fully written draft papers by June 15, 2025 for distribution to conference participants via a password-protected website. It is expected that a small number of selected papers closely focused on the conference theme will be published in an edited collection following the conference. Presenters whose offers of papers are accepted will be expected to meet their own travel and accommodation costs and pay a discounted registration fee. A small number of travel grants are available to support the attendance of scholars travelling from countries that have been underrepresented at previous Obligations conferences. Those wishing to apply for a travel grant should include a short statement with their paper proposals indicating that they wish to be considered for a travel grant, setting out an indicative budget and detailing all available sources of institutional financial support.

The Final Program(me) for KCON XVII

Is now available online here.

 

 

 

KCON XVII This Week in Bristol

It's finally here!

20 June 2024, 8.30 AM - 21 June 2024, 4.30 PM
Clifton Hill House, BS8 1BT

The University of Bristol Law School is pleased to host the 17th Annual International Conference on Contracts (KCON XVII) on 20th - 21st June 2024. KCON is the largest annual international academic conference dedicated to contract law and related areas of commercial law. It brings together contract law scholars, practitioners, and graduate students from around the world. Junior scholars are encouraged to participate, both as presenters and commentators.

KCON affords an opportunity to present and discuss ideas on a wide range of topics at every level of development, including recently published articles, articles accepted for publication but not yet in print, works in progress, thought experiments, preliminary ideas, and pedagogical innovations. It also provides an opportunity to network with colleagues and potential collaborators or mentors from other parts of the world.

Conference Lifetime Achievement Award to honour Professor Mindy Chen-Wishart

Professor Mindy Chen-Wishart will receive the conference’s Lifetime Achievement Award at the conference dinner on June 20, 2024. The Award honours individuals whose careers have been spent in legal academia and who have made major contributions to legal education, contract law scholarship, and the practice of commercial law. Professor Chen-Wishart is the fifteenth person to be so honoured.

Mindy Chen-Wishart is a Professor of Law at the National University of Singapore, an Emeritus Professor of the Law of Contract at Oxford University and an Emeritus Fellow in Law at Merton College, Oxford. She was the Dean of the Faculty of Law of the University of Oxford until 30 September 2023. She was formerly a Senior Lecturer at Otago University in New Zealand and Rhodes Research Fellow at St Hilda’s College, Oxford. She is the author of Contract Law (7th ed), an editor of Chitty on Contracts (currently in its 35th ed), and is leading a six-book series on the Contract Laws of Asia published by Oxford University Press. Her article on ‘Legal Transplant and Undue Influence’ was named the best article in the International and Comparative Quarterly in 2013. She has lectured to the Judicial College in the UK, Hong Kong and Taiwan. Over her career, she has taught a wide range of private and public law subjects.

The Deadline for Submissions for KCON XVII Approaches!

17th Annual International Conference on Contracts (KCON XVII)
20 June 2024, 8.30 AM - 21 June 2024, 4.30 PM
Clifton Hill House, BS8 1BT
Call for Papers and Abstracts

We cordially invite your submissions for the conference. The conference theme is intentionally broad. Proposals relating to any aspect of contract law are welcome. Presentations at past conferences have included studies from doctrinal, theoretical, empirical, historical, economic, critical, international, comparative, pedagogical and interdisciplinary perspectives. All are welcome once again. We also welcome papers and presentations comparing civil law and common law treatment of contract issues. Papers that focus on a single civil law jurisdiction should be put in a wider context.

Expressions of interest in presenting, along with draft titles and abstracts should be submitted to [email protected]. The deadline to submit an abstract is Thursday 15th Feburary 2024. Proposals submitted earlier will be accepted on a rolling basis. Speakers whose papers are accepted will be expected to present in personand to pay the conference fee of £160.

Conference Lifetime Achievement Award to honour Professor Mindy Chen-Wishart

We are pleased to announce that Professor Mindy Chen-Wishart will receive the conference’s Lifetime Achievement Award at the conference dinner on June 20, 2024. The Award honours individuals whose careers have been spent in legal academia and who have made major contributions to legal education, contract law scholarship, and the practice of commercial law. Professor Chen-Wishart is the fifteenth person to be so honoured.

Mindy Chen-Wishart is a Professor of Law at the National University of Singapore, an Emeritus Professor of the Law of Contract at Oxford University and an Emeritus Fellow in Law at Merton College, Oxford. She was the Dean of the Faculty of Law of the University of Oxford until 30 September 2023. She was formerly a Senior Lecturer at Otago University in New Zealand and Rhodes Research Fellow at St Hilda’s College, Oxford. She is the author of Contract Law (7th ed), an editor of Chitty on Contracts (currently in its 35th ed), and is leading a six-book series on the Contract Laws of Asia published by Oxford University Press. Her article on ‘Legal Transplant and Undue Influence’ was named the best article in the International and Comparative Quarterly in 2013. She has lectured to the Judicial College in the UK, Hong Kong and Taiwan. Over her career, she has taught a wide range of private and public law subjects.

More information is available here.

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.

KCON XVII: Call for Papers for 2024 Conference in Bristol, England

17th Annual International Conference on Contracts (KCON XVII)
University of Bristol Law School
June 20–21, 2024

The University of Bristol Law School is pleased to host the 17th Annual International Conference on Contracts (KCON XVII) on June 20–21, 2024. KCON is the largest annual international academic conference dedicated to contract law and related areas of commercial law. It brings together contract law scholars, practitioners, and graduate students from around the world. Junior scholars are encouraged to participate, both as presenters and commentators.

KCON affords an opportunity to present and discuss ideas on a wide range of topics at every level of development, including recently published articles, articles accepted for publication but not yet in print, works in progress, thought experiments, preliminary ideas, and pedagogical innovations. It also provides an opportunity to network with colleagues and potential collaborators or mentors from other parts of the world.

Conference Lifetime Achievement Award to honour Professor Mindy Chen-Wishart

We are pleased to announce that Professor Mindy Chen-Wishart (right) will receive the conference’s Lifetime Achievement Award at the conference dinner on June 20, 2024. The Award honours individuals whose careers have been spent in legal academia and who have made major contributions to legal education, contract law scholarship, and the practice of commercial law. Professor Chen-Wishart is the fifteenth person to be so honoured.

Call for papers and abstracts

We cordially invite your submissions for the conference. The conference theme is intentionally broad. Proposals relating to any aspect of contract law are welcome. Presentations at past conferences have included studies from doctrinal, theoretical, empirical, historical, economic, critical, international, comparative, pedagogical and interdisciplinary perspectives. All are welcome once again. We also welcome papers and presentations comparing civil law and common law treatment of contract issues. Papers that focus on a single civil law jurisdiction should be put in a wider context.

Expressions of interest in presenting, along with draft titles and abstracts should be submitted to [email protected]. The deadline to submit an abstract is Thursday, February 15, 2024. Proposals submitted earlier will be accepted on a rolling basis. Speakers whose papers are accepted will be expected to present in person. Participants, including speakers, will be required to register for the conference and to pay the conference fee of £160.

Getting to Bristol

Bristol Airport is located eight miles (13 km) south of the city and has scheduled flights to many UK and European cities. Bristol is also easily reached from London Heathrow airport, either by a direct National Express coach service, or by rail.

Questions

If you have any questions, please contact Dr Katarzyna Kryla-Cudna (left) at [email protected].

Today! Central States Law School Association Annual Conference

Today, I and four of my colleagues will be presenting at the Central States Law School Association conference at Oklahoma University in Norman.  It's just like SEALS, except that it is intimate, nowhere near the ocean, not during the summer, and only lasts two days.  In short, it's nothing like SEALS, but still.  

I will be present work that I have developed on this very blog. See, e.g. this article uploaded to SSRN (I have since revised it, but you get the idea) and this blog post.  Also this one and this one, which links to six other posts on the subject.  In short, I write on the interaction of contracts law the First Amendment in recent Supreme Court jurisprudence.  My colleagues will presenting on patent-law judging (Tim Hsieh), felony murder (Maria Kolar), prescriptive jurisdiction and conflict of laws (Eric Laity), and a non-naturalist reading of legal realism (Trevor Wedman).

And here we are, except for Trevor, whom we haven't gotten up on our website yet, but we are very excited to have him with us!

And we're all looking forward to seeing old friends and making new ones at CSLSA this weekend.

Save the Date, KCON XVII in Bristol, England

Nearly a score of years ago, a conference was born one summer in Gloucester, England.  It has since become traditional for contracts scholars to meet in sunnier climes during stormier seasons.  But in 2024, we will be returning to our roots.

Can't wait!

Contract Drafting Conference at Emory Law School!

As the summer winds down and the fall ramps up, please consider taking a refreshing break by traveling to Atlanta on October 6-7 for Emory’s 8^th Biennial Conference on the Teaching of Transactional Law and Skills.  Our theme gets back to basics:  “Preparing Future Lawyers to Draft Contracts, Do Deals, and Take Care of Business.”  Transactional law and skills educators from around the country will meet to talk shop, but also to enjoy each other’s company once again.  Pause now to register, submit a proposal, or nominate a colleague for the Tina L. Stark Award for Teaching Excellence.  For more information, click here:  Emory's Transactional Law and Skills Conference.  We look forward to seeing you in October!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COVID and the Casebook Workshop at Temple University Beasley School of Law

Temple Law School and the University of Wisconsin Law School will host a workshop April 21, 2023 at Temple (Philadelphia) focusing on recent changes in Contracts pedagogy and law: (i) the effect of the last few years on the delivery of Contracts teaching materials (e.g., what is the role of the Contracts casebook?); and (ii) how, in early hindsight, have our predictions about COVID and Contract doctrine, documented in a 2021 issue of Law and Contemporary Problems, played out?

Anticipated speakers/participants will include Ed Cheng (Vanderbilt), Sarah Dadush (Rutgers), Pamela Foohey (Cardozo), Bob Hillman (Cornell), Dave Hoffman (Penn), Marissa Jackson (Richmond), Kish Parella (W&L), Dylan Penningroth (Berkeley), Mitra Sharafi (Wisconsin), Andrew Schwartz (Colorado), Gordon Smith (BYU) and Rip Verkerke (UVA), among others.

BACKGROUND

The COVID-19 pandemic taught us a great deal about the role and teaching of Contracts.  Many feared widespread breach and litigation; others worried about how to teach the law of promising (and breach) through a flat screen.  Some of us worried about both.

With memories still fresh, we wanted to gather those who participated in those discussions, and to welcome newcomers, to assess what we thought in the moment, and where we think COVID’s lingering effects will take Contracts scholarship and teaching.

On the educational side, we have learned that we can do many (but not all) things virtually or remotely.  The pandemic appears, for example, to have accelerated a trend toward the disaggregation of educational content in general.  Now, we use (consciously or not) videos, podcasts, YouTube clips and other online content to supply or supplement content for Contracts class.  Indeed, there are now free and freemium materials from which one could teach an entire Contracts course. And, given increased focus on racial injustice as it manifests in various legal and social systems, many who teach Contracts seek to reckon more deliberately with the legacy of structural racism and inequality.

On the theory/doctrine/practice side, it appears that many of our worst systemic fears about COVID were not realized.  While there was (and remains) plenty of litigation, the vast majority of problems appear to have been resolved consensually, whether through standstills or workouts or the like.  Yet, some of those resolutions were better than others.  Many front-line workers (here and abroad) may have been left with the very short end of the stick, for example.

For those of you who may have participated in the Contract and COVID (K-COVID) workshops hosted by Temple (or contributed to the resulting symposium issue of Law and Contemporary Problems, Contract in Crisis), this will be an opportunity to discuss developments since then.  We also welcome and encourage new or aspiring Contracts teachers (and those who may be new to these issues) to join us.

This will be a continuation of the Kidwell Lecture, which has historically been held every year or so at Wisconsin, named in honor of Professor John Kidwell.  Speakers including Lisa Bernstein, Cathy Hwang and (most recently) Rachel Rebouché have presented Contracts scholarship in the “law in action” tradition (or critiquing it).  

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.