ContractsProf Blog

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.

KCON XVI ENJOYED BY ALL!

I think the headline speaks for itself.  But here are some images in case any are unpersuaded.  

Here we have our name up in lights at the beautifully restored New Isis Theater, where we had an event (below) and dinner, during which we honored living legend Bill Henning.

Once inside, Keith Rowley (pictured left or right, who can tell?) led us through a discussion of various clips from movies and television in which the law of contracts or contract negotiation plays a central role.  

Above is Frank Snyder presenting Bill Henning with a lifetime achievement award to add to his trophy case (photo credit Andrea Tosato).

Even the panels were fun, witness these satisfied panelists, Rachel Arnow-Richman, Tamar Meshel, the author, and Orit Gan.

Thanks to our TAMU hosts, founding genius Frank Snyder, blog contributing editor Mark Edwin Burge, and host extraordinaire Wayne Barnes.  

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

The Dynamic Theory of Contracts
Nancy Kim

There are many theories of contract law but in my opinion the one that best explains what contract law is and what it should be is Professor Mel Eisenberg’s dynamic theory of contracts.  Prof. Eisenberg described his theory in a symposium article, The Emergence of Dynamic Contract Law, 88 CAL. L. REV. 1743 (2000) and further expounded on it in his masterful book, Foundational Principles of Contract Law (2018).  In his article, Eisenberg states that rather than being used to support doctrine, principles of contract law should reinforce social values.  He explains that doctrines are not “self-evident or established by deduction”; rather “social values… underlie doctrinal stability.” (at 1753) In Eisenberg’s view, contract law should be “individualized rather than standardized, subjective rather than objective, complex rather than binary, and dynamic rather than static.” (at 1745) 

In  Foundational Principles of Contract Law, Eisenberg elaborates on four underlying principles of contract law.  These four principles are: 

1. The aim of contract law should be to effectuate the objectives of parties to promissory transactions, provided appropriate policy and moral conditions, such as freedom from duress and fraud, are satisfied, and subject to appropriate constraints, such as capacity and legality. 

This is the first and most basic underlying principle of contract law.

2. The conditions to and the constraints on effectuating the objectives of parties to promissory transactions, and the way in which those objectives are to be ascertained, should consist of those rules that best take into account all applicable and meritorious policy, moral, and empirical propositions. When more than one such proposition is applicable a court should exercise good judgment to give each proposition appropriate weight considering the issue at hand and, based on those weights, should either subordinate some propositions to others or formulate a rule that is the best vector of the applicable propositions, given their relative weights and the extent to which an accommodation can be fashioned that reflects those weights.
3. Where contracting parties have not explicitly or implicitly addressed an issue, the issue should be governed by a default rule whose content is determined in the same way that the condition to and the constraints on effectuating the parties’ objectives should be determined.
4. The remaining rules of contract law- such as those that govern the enforceability of promises, remedies for breach of promise, excuse for nonperformance of enforceable promises, the effect of nonfulfillment of conditions, the rights of persons who are not parties to a contract but would benefit by its performance-should also be determined in the same way.

But how should a court determine the weighting of various policy, moral and empirical propositions?  This is where dynamic contract law might appear to stall because it intersects with real world judges who come to the bench with their own worldview and values.  Certainly, there is plenty of lip service to the belief that judges only call balls and strikes, but those calls can be pretty subjective.  A judge with a law and economics worldview might weigh efficiency more heavily than equity.  A judge with a distributive justice worldview might weigh equity more heavily than efficiency or predictability.  Dynamic contract law considers a multiplicity of values.  Furthermore, rather than relying upon the text as the sole basis for determining contractual obligations, a dynamic approach considers the context of social and business interactions, the background norms and practices that are the implied terms of contracts.

A dynamic approach is reflected in the Restatement Second of Contracts rather than the formalistic approach of the Restatement First.  Dynamic contract law prioritizes what the parties expect to get out of the transaction and is manifested by the standard of reasonable expectations.  Reasonable expectations essentially starts with the (actual, subjective) intent of the parties, and assesses it within the context of social norms and the need to protect the security of transactions.  The contractual language helps prove what those expectations are but is not be determinative if there is other persuasive evidence. 

Eisenberg explains that generally there are three basic categories of contract theories:  formalist, interpretive, and normative.  Formalist theories “treat doctrine as autonomous from policy and morality.”  (p. 9) In other words, doctrine is self-evident and axiomatic, and rules are what matters, rather than a way to get to what matters.  Interpretive theories seek to rationalize or justify the doctrine.  They seek to explain why the law is the way it is, rather than aspire to something better.  The problem with interpretive theories is that their application “will often result in an undesirable body of contract law because the aim of the theory is not to produce the best possible contract law but only an intelligible order in the law.” (p. 16).  Normative theories seek to formulate “the best possible rules” of contract law.  They can be monistic or pluralistic.  Dynamic contract law is normative and pluralistic. 

But how does dynamic contract law fit into the contracting world we live in today, where adhesive terms hijack people who have no intention of entering into a legally binding “transaction” – who may not read or even see the terms - and where courts recognize those terms as contracts?  How can it explain cases like ProCD v. Zeidenberg and Fteja v. Facebook, Inc., which ignore contracting realities and intent?  In a world where contracts formed by “reasonable notice and manifestation of consent” vastly outnumber those formed by mutual assent, is dynamic contract law obsolete? 

The standard of  “reasonable notice and manifestation of consent” used in wrap contract cases (clickwrap, browsewrap, etc) is itself dynamic as it accommodated changes in contracting culture driven by technology.  But the way that the standard has been applied often ignored intent and weighed too heavily the values of efficiency and predictability, while ignoring other values. Dynamic contract law starts with intent and while it recognizes the value of efficiency and its role in contracts law, it recognizes other values as well.  Dynamic contract law expressly rejects single-value approaches and so does not rationalize or justify the ProCD line of cases that ignore contracting realities and seem to value only transactional efficiency.  It is a theory, not magic.  It explains what the law and by extension, judges, should do, but it has no power to make them do it.    

The early Internet contracting cases reflected a certain judicial unfamiliarity with technology, a reluctance to stifle online commerce, and a deference to a definition of efficiency which was both too narrow (as it was limited to eliminating transactional hurdles) and paternalistic (as it presumed what consumers wanted and ignored what they themselves said they wanted).  However, more recent cases have shifted toward an application of the standard that better reflects the online contracting experience and the various considerations raised by a particular contract.  More notice is required for certain provisions (e.g. arbitration, fees) than for others (e.g. codes of conduct).  Several cases suggest that the blanket assent approach is being replaced, at least in the online context, with a specific assent requirement.  The Ninth Circuit, perhaps the most dynamic of courts, in cases like Berkson v. Gogo and the more recent, Berman v. Freedom Financial Network, LLC have taken a close and careful look at the context in which terms are presented, as well as what those terms are.  State courts have been even more dynamic in their approach, and have engaged in a careful contextual analysis to determine online assent to specific terms, including the “website flow” and whether the drafter could have presented terms in a more visible manner.  The contextual, fact-intensive inquiry that many courts are now engaging in when assessing notice indicates that a course correction is taking place regarding how the standard of reasonable notice and manifestation of consent is being applied. Dynamic contract law is alive and well.

A symposium on Eisenberg’s work would not be complete without at least some discussion of his teaching.  I had the great fortune of being a student in Prof. Eisenberg’s small contracts session.  I had absolutely no interest in the subject or anything having to do with corporate or business law.  Of course, I knew that Eisenberg was a giant of contract law which only made the prospect of being in his small section more terrifying as there would be no place to hide if he called on me. 

It was clear that he expected the most from us 1Ls, but his were reasonable expectations -- he was not the kind of professor who sought to dominate or humiliate his students like some Prof. Kingsfield clone.   Prof. Eisenberg made the subject of contracts interesting, less about boring fine print and more about the actions (and yes, intent) of people and businesses.  His love for the subject was contagious and his kind, respectful, and inclusive manner of soliciting participation made what could have been an intimidating subject my all-time favorite.  Notably for such a prolific and serious scholar, Prof. Eisenberg discussed practical issues that I would remember years later as a practicing attorney.  Rules such as the parol evidence rule were taught in context, and he pointed out where doctrine (e.g. modifications) could be changed by contract (e.g. a NOM clause) and vice versa, and how both could be affected or altered by legislation.  As a teacher, too, Eisenberg’s approach to contract law was dynamic.

Related posts from the Mel Eisenberg Symposium:

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

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

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

My Relationship with Mel Eisenberg About Relational Contracts
Ethan J Leib

When I was a fresh-faced contracts professor in San Francisco, I was lucky enough to be invited to Mel Eisenberg’s class to defend a paper I was then publishing about relational contract theory.  It felt exciting to be welcomed to the big leagues by a leading light in the field – but also daunting to be subjected to scrutiny by someone I was criticizing and by someone who knew a lot more contract law than I would ever know.  The class was deeply stimulating and the students especially probing and thoughtful.  I met a future co-author in that class, an intellectual partnership that continues to inform my scholarship. 

But what I remember most – and the thing that shaped me most from that encounter – was Mel’s graciousness in engaging a young punk with sympathy and care.  Experiencing someone who knows it all dealing with a know-it-all in a workshop setting provided a model for how I come to workshops today: Is there something I can learn here?  Mel showed me how it is done, and I can still remember him asking me seriously rather than facetiously, “Do you think I am making a mistake, and am too rigidly interested in rules rather than standards in my approach to relational contract theory?”  He saw intellectual exchange as a way to see his own thinking from others’ standpoints – and more than any specific paper of Mel’s, this is the most important mode of thinking he added to my life back when I was still impressionable.

I’ll admit I came to Chapter 54 of his Foundational Principles of Contract Law hoping to see him convinced by our dialogue.  I had tried to impress upon him all those years ago that searching for a “relational contract law” that would apply only to “relational contracts” with specialized rules was not really the objective of a thoroughgoing relational contract theory.  Although he was always happy to concede that many contracts do not fit the paradigm of contracts between strangers that occur in a single moment in time in a perfect market, as classical contract law often seemed to assume, he remained skeptical that the acknowledgement that many real-world contracts involve dynamic and ongoing relationships could do more than inform our economics and sociology.  In short, he always felt that until one could really successfully define in a legally operationalizable way “relational contracts” there could be no “relational contract law.”  In his recent book, he sticks to his guns, highlighting why using duration or incompleteness won’t do the trick in dividing the world between relational and discrete contracts.

I’m sticking to my guns, too.  There is nothing legally impossible about a spectrum approach if one is comfortable with loose standards and judicial discretion.  Here is what Mel says about that: “Under this approach a contract is characterized as lying at the discrete end of the spectrum if it has less of certain characteristics—for example, less duration, less personal interaction, less future cooperative burdens, and less in the way of units of exchange that are difficult to measure—and as lying at the relational end of the spectrum if it has more.”  (735)  Mel doubles-down here to say that the spectrum approach works if you are doing economics or sociology but not law: “the enterprise of contract law entails the formulation of rules and a spectrum approach is inadequate to that enterprise because it cannot be operationalized . . . Rules whose applicability depends on how many relational indicia a contract has . . . would be rules in name only.”  (735) 

By my lights, the law routinely uses a set of indicia to make legal categorizations.  Contract and tax lawyers will easily be able to think of the employee/independent contractor distinction as an example (even if they aren’t sure whether it is a 9-factor test, a 20-factor test, or a 3-factor test).  Notwithstanding that some want bright-line rules rather than multi-factor analysis, it would be hard not to acknowledge that these efforts to classify workers are legal rather than merely economic or sociological.

Thus it seems to me still, all these years later, that Mel continues to prefer not to adopt the spectrum approach largely because it feels too messy to him and isn’t “rule-like” enough to his taste.  There is nothing wrong with that sensibility, of course, but it doesn’t prove that relationalists are unable to advocate for a spectrum approach in the law.  I also don’t think the spectrum approach ultimately requires a legal system to proliferate regimes that toggle between different types of contracts necessarily; one could have one law and one “good faith” requirement – and then implement it differentially depending on relational dimensions.  What counts as good faith for two companies in a multi-decade relationship may be different from what it requires for two companies in a new venture dealing far at arms’ length. 

That seems like a relationalist contract law even Mel could live with – and it doesn’t seem to require a singular technical definition of a relational contract.  I always like to point out the first line of Eastern Air Lines, Inc. v. Gulf Oil Corporation to my students: “Eastern Air Lines, Inc. and Gulf Oil Corporation, have enjoyed a mutually advantageous business relationship involving the sale and purchase of aviation fuel for several decades.”  Isn’t this just a judge setting the stage for his decision-making by telling us that relationships matter in the application of contract law?  Isn’t that enough to help remind us that there is such a thing as relationalist contract law, after all?

Related posts from the Mel Eisenberg Symposium:

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 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

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

Unscrambling Excuse
Douglas Baird

The domain of classical contract law has discrete boundaries and hard edges. Legally enforceable promises are limited to bargained-for exchanges. There must be an offer and an acceptance. A contract exists, or it does not. You receive expectation damages or nothing. Such rigid traditionalism, however, no longer captures what contract law is about, if it ever did. Mel Eisenberg’s corpus, in particular his exemplary work on excuse, makes this manifest.  See Melvin A. Eisenberg, Impossibility, Impracticability, and Frustration, 1 J. Legal Analysis 207 (2009).

Boundedly rational parties do not always precisely spell out their contracts to account for the unexpected, and hence promises that appear unqualified on their face should not be understood literally. If a bargain rests upon assumptions about future states of the world, the deal is sensibly called off if those assumptions for unexpected reasons do not hold. You agree to rent my theater for an evening and, through no fault of mine, it burns down. In this event, we each should go our separate ways. Similarly, if I have an apartment that overlooks the King’s coronation, and you are eager to see it, it is too bad for both of us if the event is called off. I lose the handsome sum from letting out my apartment for a day, and you lose the chance to entertain your friends with a spectacular view of the pageant.

Frustration and excuse are heavily fact dependent. The doctrine in the first instance is merely a default term. Dickered contracts contain elaborate force majeure clauses. We can spill ink over what counts as excuse or frustration, but Mel Eisenberg shows that this is not what is conceptually hard. The problem comes from what happens next. Money may have changed hands, and both parties might have spent money in reliance on the contract. Unexpected events typically bring with them a loss, and someone must bear it. This makes it fruitless to reduce excuse and frustration to a simple yes/no, on/off affair. Any coherent account of excuse and frustration must couple the finding of excuse or frustration with the appropriate relief. The egg must be unscrambled.

It is well accepted that restitution operates in this environment. If one party pays the other in advance, that party should be able to get its money back. But beyond this, much hard thinking needs to be done. It might seem that reliance damages should have no role to play. Both parties to a contract spend money in anticipation of the performance, and it makes little sense for each party to hold the other liable for her expenses. But the two parties do not necessarily stand in symmetrical positions. Often it is too simple to say that no one was responsible. The theater owner, while not at fault, controlled the theater and had some capacity to reduce the chance of fire. Even when excuse applies, some parties may be more at fault or better positioned than another.

Mel Eisenberg (right) draws on a series of old Massachusetts cases to shed light on the problem. A general contractor’s contract to build a hospital was cancelled and awarded to another bidder instead. The general contractor then faced its own subcontractors, and the doctrine of excuse applied. The general contractor could not be sued for expectation damages. The cancelation of the main contract called off the contract between the general contractor and the subcontractor. ­At the same time, however, the general contractor was, at least to some extent, responsible for the contract being voided. The subcontractor should be able to recover some of its reliance expenditures. See Albre Marble and Tile Co., Inc. v. John Bowen Co., 338 Mass 394 (1959).

What remains a mystery is how far this idea extends. The testing excuse case is one in which the unexpected event keeps both parties from performing and money passes from one to the other. Consider two singers. They agree to perform together at a specific time and specific venue and then split the gate. One singer faces $100 in expenses that the other does not. To ensure that they come out even in the end, the second singer gives $50 to the first. An unforeseeable act of God renders the venue unusable and the joint performance is cancelled. What happens now? If the first singer had been spent none of the $100 she received from the second, the second singer should have a restitution action for $50. But what if the $100 has been spent? Does the second singer still get her $50 back? It might seem that the two singers invested in a joint enterprise and should share the losses equally.

Assume that your intuition suggests that the losses should be shared in this case, and the second singer is not entitled to recover the $50 she gave to the first. How much does one have to change the facts to alter your intuition and for you to find that one party can recover what she has given the other notwithstanding the expenses the other has incurred? Consider, instead of two singers, there is a couple that engages a restaurant for their wedding reception and pays in advance. Power is lost halfway through the event. It is not the fault of either party, and the contract explicitly lists a power failure as an event of excuse. The unhappy wedding couple can obtain restitution of the money they gave to the venue less any benefit they received before the power failed. Facto v. Pantagis, 915 A.2d 59 (N.J. App. 2007). But does it make sense that the venue bears the entire loss for the food that is uneaten and has to be thrown out?

I suspect that many share my intuition that the couple should have an easier time recovering the money they have paid notwithstanding the substantial loss the restaurant faces, but how is the restaurant different from the first singer? English law allows some account to be taken for the out-of-pocket reliance costs as an offset against restitution in excuse cases. See Gamerco SA v. ICM/Fair Warning (Agency) Ltd., [1995] E.M.L.R. 263 (High Court, Queen’s Bench). But when exactly should this happen?

The genius of Mel Eisenberg’s work here, as elsewhere, shows how best to cope with such questions. He does not confront this problem in particular, but his work does suggest, perhaps, that regardless of where one draws the line, the wedding couple has a better chance of recovery than the first singer. To be sure, the restaurant is not at fault for the power failure. If it were, there would be no excuse. Nevertheless, it is possible to lay some responsibility at its doorstep, and it is not something that rigid formalism should require us to ignore. Again, the law of excuse, like the law of contract, need not be a rigid, yes/no, on/off affair.

Related posts from the Mel Eisenberg Symposium:

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 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

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

KCON Registration Deadline is Nigh!

The Sixteenth International Conference on Contracts will be held at Texas A&M University School of Law in Fort Worth on Friday & Saturday, March 17-18, 2023. Paper abstracts and proposed panels should be submitted through the Conference Website.

Both the Early Bird registration discount deadline and the deadline for submissions are are January 31st!!!

Registration for the Conference is available on the site. The Conference is booking blocks of rooms at the Fort Worth Sheraton (across the street from the law school) and the Hampton Inn Downtown Fort Worth (5 blocks from the law school). Hotel registration links are also available on the site.  The Conference registration fee includes two Continental breakfasts, two catered lunches at the Schuchtman Conference Center, and the Friday night Conference Dinner.  The Trinity Rail line runs directly from DFW International Airport to Fort Worth Central Station, which is 5 blocks from the law school.

ABOUT THE CONFERENCE

Each year the Conference's goal is to present papers and works-in-progress that address the whole spectrum of contract and commercial law scholarship, whether doctrinal, historical, jurisprudential, economic, philosophical, critical, pedagogical, or interdisciplinary. Presentations by those who work in non-U.S. legal systems and by junior scholars who are new to the field are particularly encouraged. Individual paper and works-in-progress submissions will be assigned to panels. Proposals for entire panels with particular themes are particularly welcome,

KCON, which was created in Gloucester, England in 2004, 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 around the country and other parts of the world. The conference is especially open and welcoming to junior scholars in contract law and related fields and those interested in entering the legal academy.

Conference Lifetime Achievement Award to Honor Texas A&M Professor Bill Henning

The International Conference on Contracts is pleased to announce that Professor William H. Henning will receive the Conference’s Lifetime Achievement Award at the Conference Dinner in Fort Worth on March 17, 2023. The Award honors 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. Henning is the fourteenth person to be so honored.

Professor Henning is Executive Professor at Texas A&M University School of Law and Emeritus Professor of Law at both the University of Alabama and the University of Missouri-Columbia Schools of Law. His forty-plus years of teaching and scholarship includes service as Executive Director of the Uniform Law Commission, Member of the Permanent Editorial Board for the Uniform Commercial Code, chair or member of multiple drafting committees revising the UCC, and member of U.S. State Department delegations working on the development of private international law instruments at UNCITRAL and UNIDROIT. He has written extensively on contract and commercial law, including popular law school texts on Sales & Leasing Law and Secured Transactions.

SUBMISSIONS

Submissions should identify the author(s) and contain an abstract (not more than 500 words) of the proposed presentation. Proposed panels should include the names and contact information for all participants. Submissions will be accepted on a rolling basis, and submissions after the submission deadline may be accommodated on a space-available basis. Submissions may be made by using the form on the website, if possible.

Questions should be directed to:

Professor Frank Snyder

[email protected]

Texas A&M University School of Law

1515 Commerce Street

Fort Worth, TX 76102

Both Texas A&M School of Law and the KCON Organizing Group look forward to seeing you in Fort Worth!

KCON XVI: The Portal for Submissions Is Open

The Sixteenth International Conference on Contracts will be held at Texas A&M University School of Law in Fort Worth on Friday & Saturday, March 17-18, 2023. Paper abstracts and proposed panels should be submitted through the Conference Website:

https://law.tamu.edu/kcon

Registration for the Conference is available on the site. The Conference is booking blocks of rooms at the Fort Worth Sheraton (across the street from the law school) and the Hampton Inn Downtown Fort Worth (5 blocks from the law school). Hotel registration links will be added shortly.  The Conference registration fee includes two Continental breakfasts, two catered lunches at the Schuchtman Conference Center, and the Friday night Conference Dinner.  The Trinity Rail line runs directly from DFW International Airport to Fort Worth Central Station, which is 5 blocks from the law school.

ABOUT THE CONFERENCE

Each year the Conference's goal is to present papers and works-in-progress that address the whole spectrum of contract and commercial law scholarship, whether doctrinal, historical, jurisprudential, economic, philosophical, critical, pedagogical, or interdisciplinary. Presentations by those who work in non-U.S. legal systems and by junior scholars who are new to the field are particularly encouraged. Individual paper and works-in-progress submissions will be assigned to panels. Proposals for entire panels with particular themes are particularly welcome,

SUBMISSIONS

Submissions should identify the author(s) and contain an abstract (not more than 500 words) of the proposed presentation. Proposed panels should include the names and contact information for all participants. Submissions will be accepted on a rolling basis, and submissions after the submission deadline may be accommodated on a space-available basis. Submissions may be made by using the form on the website, if possible.

Questions should be directed to:

Professor Frank Snyder

[email protected]

Texas A&M University School of Law

1515 Commerce Street

Fort Worth, TX 76102

Both Texas A&M School of Law and the KCON Organizing Group look forward to seeing you in Fort Worth!

Thanks to Loyola for Another Great Con Law Colloquium

Although a contracts prof, as I do most years, I attended the annual Loyola Chicago Constitutional Law Colloquium last weekend.  It's always a great opportunity to see friends from other law schools and to hear interesting presentations about parts of constitutional law that I thought I understood but haven't thought about to the extent of the presenters.   It is a weekend of grand theories, close readings, historical explorations, and this year, a lot of gallows humor and grim prognostications.  It was also the occasion for a mini-Valpo Law reunion for me, Rob Knowles (Baltimore, below middle), and Geoff Heeren (Idaho, below right), with a conference call with our erstwhile colleague Joellen Lind Satterlee (Loyola Chicago), who is recuperating from back surgery.  

I delighted in the opportunity to test the waters on material I have shared in pieces on the blog, drawing on Jamal Greene's How Rights Went Wrong to discuss contracts law as the Supreme Court's other shadow docket.  I focused on the decisions (discussed in this space) in Mahanoy Area School District v. B.L., Austin v. Navy Seals, andFulton v. City of Philadelphia, plus the anticipated decision in 303 Creative v. Elenis.  

My argument is that each of these cases involved contracts, but the Court ignored the contracts in every decision.  Following Jamal Greene's rights-mediation approach, I do not suggest that the cases are necessarily wrongly decided, but that the court should consider and weigh contracts rights and interests in cases where parties have entered into contracts or, in Mahanoy, where the cheerleader-plaintiff entered into an undertaking not to speak ill of her school of or cheerleading on social media.  That case is the subject of my first law review article in this series, Our Dumb First Amendment: Fuck Cheer.  I hope there will be more to come.  

In Austin, the majority granted a partial stay of an order enjoining the Navy from sidelining Navy Seals who had refused COVID vaccines on religious grounds.  There was no majority opinion, but neither Justice Kavanaugh's concurrence nor the dissenting opinion made any mention of the contract that the plaintiff Seals had signed when they joined the service.  In fact, the dissent highlighted the shabby treatment to which the Seals were subjected despite having "volunteered" for service.  But I think their voluntary service cuts the other way in this instance.   No doubt, upon entering the service, the Seals voluntarily relinquished certain rights and expectations.  Vaccinations are routine in the armed forces.  These very Seals were no doubt vaccinated many times prior to their decision to resist in this case.  Those facts ought to matter.  When we absolutize certain rights and discount or ignore entirely contractual obligations, we invite people to treat every burden on the privileged rights as constitutionally significant.  As Justice Gorsuch noted in a different contexts, we should not as judges ignore things that we know to be true as citizens.  Not all burdens on free exercise of religion are equal.  Courts may not well-positioned to sort them out, but the alternative is to turn religion into a trump card before which competing rights and interests must bow.  

Fulton and 303 Creative will pair nicely once an opinion is rendered in the latter.  In Fulton the Court ordered the City of Philadelphia to renew its contractual relationship with Catholic Social Services (CSS) notwithstanding CSS’s refusal to comply with the city’s non-discrimination policy.  In 303 Creative v. Elenis, the Court will almost certainly uphold the right of a for-profit corporation to discriminate against same-sex couples on the ground that the government cannot compel corporate speech.  Putting the two case together, the Court will have created a world in which some corporations can be compelled to contract with entities about whose rights the Court cares, but natural persons cannot compel other corporations into contracts that might burden those same sacrosanct rights.  Even in our post-Lochner Era, one would think there would be considerable discomfort at the prospect of federal courts ordering parties to enter or maintain contracts against their will, as the Court did in Fulton.  If the Court could order Philadelphia to contract with CSS, it is not clear why it could not tell 303 Creative to either get out of the business of wedding web-hosting or engage in such transactions on a non-discriminatory basis, as Hila Keren suggests here.  CSS was engaged in a public service arguably central to its mission; it is not clear on what legal basis a business should be able to claim a constitutionally protected interest in providing web-hosting services for weddings on a discriminatory basis.

Thanks to Barry Sullivan (left) and Alex Tsesis (right), our genial hosts, for organizing the conference.  I look forward to coming back next year as do so many of us who enjoy Loyola's hospitality and the collegial intensity, mutual support, and good will associated with the conference.

The Two Legal Academies, Part II: Scholarship

In the first post in this series, I focused on how different the hiring market looks from the perspective of an unranked school compared to how it looks in the top schools.  The response I got on Twitter and through private correspondence suggests that a lot of people involved in hiring at unranked or lower-ranked schools feel the same way.  Today's post is about doing scholarship in The Other Legal Academy.  The last post will be about teaching in The Other Legal Academy.  In these posts, I am less confident than I was in the first that I speak for many others, but I think what I have to say will resonate with at least some of my colleagues in The Other Legal Academy.

I should start by thanking Orin Kerr (right), whose excellent podcast, The Legal Academy, helped me crystallize my thoughts on this subject.  That podcast featured interviews with some very accomplished law professors who described what it is like to work, teach, and do scholarship in The Legal Academy.  I love listening to such people.  They are inspiring, insightful, witty, and wise.  Each has a unique narrative.  But their lives and work overlap with mine only slightly.  I wrote to Orin and pointed out that there is a different legal academy out there.  Because his podcast was in part aimed at job candidates, I thought he should let them know that not every c.v. looks like that of Orin's first guest, Akhil Amar.  Professor Amar went from Yale College, directly into Yale Law School, directly to a Supreme Court clerkship, directly into teaching at Yale Law School, where he's been ever since, other than some guest teaching stints. [Correction: Professor Amar clerked for Stephen Breyer, but that was when he was Judge Breyer of the First Circuit -- thanks to Guha Krishnamurthi for that correction!]  Professor Amar has had an extraordinary career, but he may be the single least representative member of the legal academy.  Orin is a mensch, and he took my comments to heart, attempting to broaden his approach, but still, he did not manage to penetrate very deeply into my portion of the legal academy.  How could he?  The two legal academies meet fleetingly.  It would be hard for him to know whom to invite.  In one episode, with a guest who has taught at an unranked law school, Orin asked about that experience, but the guest either misunderstood the question or did not want to answer it.  The subject matter was never really explored.

I spoke with some friends about doing an alternative podcast called The Other Legal Academy, in which we would interview outstanding faculty members at lower-ranked schools.  I did not do it for two reasons.  First, I already have too much on my plate.  But that seems lame, given how incredibly busy, prolific, and productive people like Orin Kerr, Akhil Amar, Eric Segall, Will Baude & Dan Epps, Steve Vladek and Bobby Chesney, Felipe Jimenez, and the amazing Strict Scrutiny trio of Leah Littman, Melissa Murray, and Kate Shaw manage to find the time to make podcasts from which I have benefitted tremendously.  But the second reason is killer: very few people would care, for the same reason that very few people care about what I write as a legal scholar

Here is my main conclusion about doing scholarship in The Other Legal Academy.  You should do scholarship, and doing scholarship will keep you engaged in the law and contribute to your teaching.  It is best to do scholarship relevant to the subject matters you teach (or at least post on a blog on that subject).  But unless you are one of the few who can make the leap from the Other Legal Academy to The Legal Academy, do not expect that your scholarship will have an impact or even be read beyond a small circle.  My hypothetical podcast would have very few listeners for the same reason my scholarship has few readers: sitting as I do in The Other Legal Academy, I can't make my voice heard over the din of other high-quality scholarship out there.

I was, of course, disappointed early in my career, when I sent my babies off into the world and watched as they were neither nurtured nor savaged but left to waste away until totgeschwiegen.  Now I am resigned.  I write for myself and to better myself for my students.  I try to publish because I am vain enough to  crave affirmation.  I do not expect that my scholarship will change the world, even though I think the world would benefit from listening to my advice.  It is not that I think that people in The Legal Academy are snobs who wouldn't consider reading my work.  Most would and they sometimes do.  I have generally found that the people who are at the top of the heap in the legal academy are generous with their time, endlessly curious, and eager to engage.  But their time is limited, and there is so much other stuff for them to do and to read, much of it involving people with whom they regularly interact.  In addition, the people in The Legal Academy have to be up-to-date on what people are talking about, and they are not, for the most part, talking about scholarship that comes from The Other Legal Academy. 

I do regret that I don't think I will ever know if my scholarship is any good.  People are kind in The Other Legal Academy -- or avoidant -- and one rarely gets the kind of substantive feedback that I got when I had real academic mentors, e.g., in graduate school.  Sometimes when I submit my work for peer review, I get a taste, but that is a very small data set.   

I suspect that my skills as a scholar are in decline for reasons nicely illustrated in Malcolm Gladwell's book Outliers.  Gladwell reports on the importance of birth dates in Canadian hockey.  Boys who have birthdays in January and February tend to be hockey stand-outs, Gladwell argues, because in their early years when they are under ten years old, they are significantly older and more physically mature than the boys born towards the end of the calendar year.  As a result, the January and February kids get picked for all the travel teams and then all the all-star teams.  They get more practice in, they get the coaches' attention, and they also get to play in more challenging situations.  With each new experience, they improve incrementally, but eventually the differences between the January and February kids and the November and December kids are vast.*

I think something similar happens in the legal profession.  The initial distinctions that separate stand-out law students from the rest of the crowd are not as arbitrary as birthdates.  Still, some students just come more prepared for for the first year of law school than others.  They may have the advantage of lawyers in the family, or they may be the children of academics.  In any case, they have a particular kind of smarts, which is not the only kind of smarts or necessarily the kind of smarts that translates into scholarly promise or teaching ability.  Those students get onto law review and get the best clerkships.  They get special attention from the professors who oversee their law review notes.  Based on their prestigious clerkships, they have better shots at the VAP opportunities if they want them, and while doing their VAPs, they have time and resources, including mentors, that help them improve their legal scholarship.  Based on their impeccable credentials and newly-established scholarly promise, they then land jobs at good or even top law schools where they have more resources and time for research.  By contrast, in twenty years of teaching, I have had a grand total of two semesters when I did not have a full teaching load, and many years I have taught overloads.   

They regularly get invited to the small conferences at which faculty members still exchange meaningful feedback.  They get invited to publish in edited collections or to present at symposia, which are then published in law reviews.  They see advance copies of major forthcoming publications and can write responses for prestigious journals' online supplements, if not for their print issues.  They know things about the placement process that those of us in The Other Legal Academy learn years later and never fully comprehend. They  interact with or collaborate with their colleagues, all of whom are at the top of their fields, and so they are constantly gaining advantages over the people in The Other Legal Academy.  Perhaps I am romanticizing the life of academics in The Legal Academy, but I hope not.  It's a good life, and the people who have it have earned it.  I hope they make the most of it. 

This is not sour grapes; it is armchair sociology.  Almost all of my encounters with The Legal Academy have been rewarding and encouraging.  For the most part, I am extremely impressed by the people who make it into The Legal Academy, and I wish I could keep up with them, but neither group has the time for that.  My time is mostly devoted to teaching in The Other Legal Academy, which will be subject of Part III of these musings.  I said above that I have resigned myself to not having a scholarly impact.  Instead, I am now committed to having an impact through teaching, and I will turn to that subject in the next post.

*Gladwell might be wrong about Canadian hockey players. He has his critics but also his supporters.

Three Day Unjust Enrichment Event Down Under!

Sagi Peary of the University of Western Australia and Warren Swain (right)
of the University of Auckland have organized a three day symposium on Unjust Enrichment.

The Symposium will take place from September 14-16th.  The event features representation from 14 countries, and the papers will be published with the Oxford University Press. You can register for it here:  Each day's sessions are set at a time that is appropriate for a different portion of the world, with a Wednesday session set for 10 AM Perth time, a Thursday session, set for 10 AM in London, and a Friday session, set for 10 AM in New York.  The Symposium is part of a broader project described below:

THE RETHINKING UNJUST ENRICHMENT PROJECT

The Rethinking Unjust Enrichment project aims to collect a contrary range of views which question the dominant position of unjust enrichment. These essays are a collective expression of doubt. The contributions will cast doubt on the various parameters of the unjust enrichment movement from an analytical standpoint representing the following four interrelated perspectives: (1) historical; (2) sociological; (3) doctrinal; and (4) conceptual. In many ways, these parameters follow the trajectory of the intellectual development of unjust enrichment. The four-limb structure of Rethinking Unjust Enrichment enables us to understand the current problems of unjust enrichment on the deepest levels of its history, sociological forces, doctrinal fallacies and normative deficiencies. This treatment of the subject will provide the basis for a comprehensive reform across jurisdictions. 

The significance of Rethinking Unjust Enrichment can hardly be overstated. Private law provides the legal backbone for governing interpersonal interactions. It is relevant to almost every social setting. Private individuals, commercial actors and business organisations sell and purchase goods, are involved in financial transactions, commit negligent actions, own and manage property for others and so on. If one says that the law of unjust enrichment represents an independent private law category that co-exists with the traditional private law categories of contract, property and tort, this explains the  significance of this project. Introducing a new category, or even a new organising principle, into private law means that many interpersonal interactions could be affected by unjust enrichment and potentially trigger a legal response. This suggest that private law could not be properly understood and coherently function without grasping the nature and operative mechanics of the unjust enrichment principle.  

Rethinking Unjust Enrichment is timely and important for both sceptics and supporters of the unjust enrichment movement. It is valuable for the supporters as collects together for the first time a comprehensive account of some of the main criticism of the doctrine by the leading sceptics. Whilst the unjust enrichment movement celebrates the introduction of the principle into the UK’s (and other countries’) jurisprudence, Rethinking Unjust Enrichment will require supporters to reconsider their argument or at least to refine it. In contrast to the massive bourgeoning literature favouring unjust enrichment, the project does not take the principle for granted and challenges it in the most comprehensive, structural and multi-layered way. 

As for the sceptics, Rethinking Unjust Enrichment is important because for the first time it consolidates their voices. The project goes far beyond the UK and encompasses sceptical voices from the US, Australia, Canada, China, Singapore, Germany, Ireland, New Zealand, Hong Kong and South America. Furthermore, also for the first time, the perspective is inherently cross-disciplinary: it embraces historical, sociological, doctrinal and conceptual angles. It is believed that these multi-layered, cross-disciplinary (and yet closely interrelated) insights provide the most adequate way to critically grasp the nature of the unjust enrichment movement and to carefully contemplate the way forward. This point applies to all systems: those that adopted the organising principle, those that did not, and those that are yet to decisively commit.

KCON XVI: It's On!!

We are so pleased to share that the 16th International Conference on Contracts -- a/k/a KCON XVI -- will be held at Texas A&M University School of Law in Fort Worth on Friday and Saturday, March 17-18, 2023.  A Call for Papers will be forthcoming, but the organizers want to give you a chance to start planning.

Historically, the conference is highly inclusive.  In particular, we have always especially encouraged junior scholars to participate by presenting papers and works-in-progress, by organizing panels on topics relating to their research interests, and by volunteering to help organize and promote the event.  While most of the current organizers have aged some, nearly all of us got involved as relatively junior faculty members looking to expand our scholarly networks and showcase our work, and it’s part of our mission to keep that tradition alive.  If you have an idea for a panel but want help lining up panelists or commentators, we can help.

The conference is intentionally broad.  Proposals relating to any aspect of domestic or international contract or commercial law are welcome, including (but not limited to) doctrine, theory, legislation, history, pedagogy, practice, consumer issues, employment, and social issues.  Proposals that cross traditional contract law boundaries are particularly encouraged. 

If you have questions, feel free to contact any of the volunteer organizers:

Wayne Barnes [email protected]
Mark Burge [email protected]
Miriam Cherry [email protected]
Dan O’Gorman [email protected]
Jamie Fox [email protected]
Dani Hart [email protected]
Hila Keren [email protected]
Michael Malloy [email protected]
Colin Marks [email protected]
Jennifer Martin [email protected]
Val Ricks [email protected]
Keith Rowley [email protected]
Frank Snyder [email protected]
Ben Templin [email protected]
Dov Waisman [email protected]

So mark the date and plan to join us for Bluebonnet season in Fort Worth in the spring.

Man Angered that He Got $300,000 for a Piece of Hideous Pop Art

In the latest story taking a chink out of the armor of NFTs, the New York Times reports that a hacker exploited a flaw in OpenSea's platform to purchase an NFT of a Bored Ape.  The flaw reset the purchase price to a price from an earlier transaction involving the same NFT.  As a result, Chris Chapman's virtual object sold for $300,000, rather than the $1 million that he was seeking.  This is yet more evidence that this secure mode of exchange is not secure. 

According to the Times, the glitch that allowed a hacker to make off with Mr. Chapman's ape has forced the company to pay out $6 million to NFT traders.  Mr. Chapman is still seeking compensation and reportedly rejected OpenSea's first offer of $30,000.  I'm not sure who holds the cards here.  NFT sales have dropped by 90 percent since September.  Can we hope for a day when Bored Apes are about as valuable as Beanie Babies?  

But there's more.  There is a widespread problem of hackers using phishing scams to swipe NFTs.  You can listen to one such story here.  According to the Times, OpenSea has been slow to freeze the accounts of such hackers, allowing the platform to profit from trafficking in stolen goods, as OpenSea takes a 2.5% cut each time an NFT is sold on its site.  

Still, the crypto enthusiasts howl, there is nothing safer or more secure than the blockchain.  It's an electronic ledger!  Surely a tool as boring as a ledger is too nerdy to become a tool for massive fraud.  And yet, the Times also reports that OpenSea is awash in "plagiarized" "art."  So, not secure, not reliable.  Why does every story about NFTs seem like it is, at best, only a few mouse clicks away from criminality?

I use scare quotes above because an NFT is just code.  Owning an NFT does not convey intellectual property rights, as Juliet Moringiello and Chris Odinet have explained.  Often, the NFT is a digital copy of an original object, and owning the NFT conveys no ownership of the original.  In this context, it is not clear what it means to call something "plagiarized," but I suppose what it means is that people generate fake NFTs of "valuable" NFTs and then sell them as if they were the "valuable" NFTs, and here the only problem is that NFTs should not be valuable.  Or, at least, the NFTs that are valuable, especially the Naked Ape series, are really bad art.  Hence "art."

OpenSea is trying to up its game.  It is freezing listings of stolen NFTs and screening for "plagiarized" content.  C'mon.  It's the Internet.  The NFT pirates will leave the open sea and find smooth sailing in a less regulated cove, inlet, or electronic bay.  And then OpenSea will lose its edge and there will be a new platform that will go through the same cycle and then the next and the next, until we all grow up or just grow tired and move on to the next thing.