ContractsProf Blog

AALS Session: New Voices in Commercial & Consumer Law, Wednesday, 4:15 EST

Section on Commercial and Consumer Law: Works-in-Progress for Junior Consumer Law Scholars

 

Junior scholars present works-in-progress in several concurrent sessions. Senior scholars, our section leadership, and all those who attend will serve as commenters. Please join us!

 

Moderator
Matthew A. Bruckner
Howard University School of Law

1. Manisha Padi, Assistant Professor of Law, University of California, Berkeley School of Law, "Contractual Inequality"
Comments: Tess Wilkinson-Ryan, Professor of Law and Psychology, University of Pennsylvania Carey Law School

 

2. Abbye Atkinson, Assistant Professor of Law, University of California, Berkeley School of Law, "Marginalized Debt and the Private Funding of Social Provision"
Comments: Andrew Boyd Dawson, Vice Dean for Academic Affairs and Professor of Law, University of Miami School of Law; 
Laura Coordes, Associate Professor, Arizona State University Sandra Day O'Connor College of Law

 

3. Vijay Raghavan, Assistant Professor of LawBrooklyn Law School, "Consumer Law’s Equity Gap"
Comments: Andrew Hayashi, Professor of Law, University of Virginia School of Law

 

4. Danielle D'Onfro, Associate Professor of Law, Washington University in St. Louis School of Law, "The New Bailments"
Comments: Ronald Mann, Albert E. Cinelli Enterprise Professor of Law; Co-Director, The Charles Evans Gerber Transactional Studies Center, Columbia Law School

 

5. Lauren Scholz, McConnaughhay and Rissman Professor, Florida State University College of Law, "Privacy as Private Law: Rule of Law in the Private Sphere"
Comments: Ryan Calo, University of Washington School of Law

 

6. Yonathan Arbel, Assistant Professor of Law, University of Alabama School of Law
"Contracts in the Age of Artificial Intelligence Readers"
Comments: Anthony Casey, Professor of Law and Mark Claster Mamolen Teaching Scholar, The University of Chicago, The Law School

• Commentator
  Mark D. Bauer
  Professor of Law
  Stetson University College of Law
  
  
• Commentator
  David A. Hoffman
  Professor
  University of Pennsylvania Carey Law School
  
  
• Commentator
  Christopher K. Odinet
  Professor of Law
  University of Iowa College of Law
  
  
• Commentator
  Alexandra Everhart Sickler
  University of North Dakota School of Law
  
  
• Commentator
  Lauren E. Willis
  Associate Dean for Research
  Loyola Law School, Los Angeles

AALS Section on Contracts Session: Best Efforts Clauses, Wednesday, 11:00 AM EST

Section on Contracts:
Contracting for Effort: The Law and Economics of Best and Reasonable Effort Clauses

 

Best effort clauses in contracts are prevalent and in some sense paradoxical. For instance, in the extensive literature on the economics of contracts, it is almost universally accepted that “effort” is non-contractable because it is unobservable and unverifiable by courts or other arbitral bodies, yet everyday lawyers are busy drafting hundreds or thousands of best effort clauses. What exactly accounts for this apparent disconnect between economic theory and legal practice? We will to explore this question among others by examining scholarship and practice on topic of best effort clauses.

• Moderator
  Richard Brooks
  Professor of Law
  New York University School of Law
  
  
• Speaker
  Nathan Atkinson
  Postdoctoral Fellow in Law and Economics
  ETH Zurich Center for Law & Economics
  
  
• Speaker
  Patrick Bolton
  Columbia Law School
  
  
• Speaker
  Julian Nyarko
  Assistant Professor of Law
  Stanford Law School
  
  
• Speaker
  Sarath Sanga
  Associate Professor of Law
  Northwestern University Pritzker School of Law
  Sarath Sanga's principal areas of research are corporate law and contract theory. An interdisciplinary scholar, his work has appeared in leading law, economics, and scientific journals, including the Journal of Political Economy, the Journal of Law & Economics, California Law Review, and Science. Sanga holds a BA in economics from the University of Michigan, Ann Arbor, a PhD in economics from the University of California, Berkeley, and a JD from Yale.
  
  
• Speaker
  Alexander Stremitzer
  University of California, Los Angeles School of Law

AALS Panel on Teaching Commercial Law in the 21st Century, Today at 4:15 EST

Section on Commercial and Consumer Law, Co-Sponsored by Teaching Methods and Technology, Law and Legal Education:
Teaching Commercial Law in the 21st Century

 

Rapid technological developments in commercial transactions are forcing us to revise decades-old laws. Are today’s law professors up to the challenge of teaching this new content? Are today’s law students interested in learning it? Many people are concerned that not enough schools are teaching bread-and-butter Uniform Commercial Code classes such as Sales (Article 2) and Secured Transactions (Article 9). And far fewer are teaching courses centered on related subjects, such as Negotiable Instruments (Article 3) or Investment Securities (Article 8). Prominent members of the Uniform Law Commission and academics focused on UCC subjects will discuss changes to the law, law school pedagogy, and student demand will affect the UCC in the 21st century.

• Moderator: Kara Bruce is a professor of law at the University of Toledo, where she teaches courses on the UCC, bankruptcy, and contracts. A dedicated classroom teacher, she has won the University of Toledo’s outstanding teaching award and the University of Toledo College of Law’s Outstanding Professor Award (selected by the graduating class). Bruce is a contributing editor to the Bankruptcy Law Letter and coauthor on a forthcoming edition of Problems and Materials on Secured Transactions (with Stephen Sepinuck).

• Speaker: Carliss Chatman is an Associate Professor at Washington and Lee University School of Law specializing in corporate and commercial law. Her 11 years of legal practice before entering the academy lends a common sense approach to her teaching and scholarship. She specializes in bringing practical experience to all of her classes, making complex legal concepts within reach for students of all backgrounds. Through service on the Advisory Board of Compliance.ai, she has worked on the cutting edge of legal regulatory technology, helping to train the machine learning platform to anticipate the research needs of those in the compliance and regulatory legal space. Her experience in leadership of non-profit boards and over two decades of social activism has allowed Professor Chatman to develop expertise on matters involving race, women's rights, and educational access.
  
  
• Speaker: Bill Henning, a professor at the Texas A&M University School of Law, has published widely in the field of commercial law generally and in the area of secured transactions in particular. He is a former Executive Director and current Life Member of the Uniform Law Commission (ULC) and a member of the American Law Institute (ALI). He is currently Vice-Chair of the ULC’s Committee on the UCC, a member of the Permanent Editorial Board for the Uniform Commercial Code, and a member of the Joint ULC/ALI Drafting Committee on the Uniform Commercial Code and Emerging Technologies. He is also a member of the U.S. State Department’s Advisory Committee on Private International Law and served on the U.S. Delegation to the U. N. Commission on International Trade Law’s working group that developed the U.N. Model Law on Secured Transactions.
  
  
• Speaker: John T. McGarvey, Shareholder,  Attorney at Law, Morgan Pottinger McGarvey. Mr. McGarvey taught secured transactions for 16 years as an adjunct professor at the University of Kentucky Rosenberg College of Law and the University of Louisville Brandeis School of Law, is Chairperson of the Uniform Law Commission’s UCC Committee, an ex officio member of the Permanent Editorial Board for the UCC, a member of the American Law Institute and focuses his practice on commercial law at the firm of Morgan Pottinger McGarvey in Louisville and Lexington, Kentucky.

AALS Open Source Program The Power of Supply Chains, Today at 2:45 EST

This session will provide perspectives that cut across disciplines to help legal scholars appreciate the power of supply chains and their effect on fundamental social, political, and institutional questions. The pandemic has underscored the centrality of supply chains to both the economy and also every aspect of life. The panel will explore supply chain management, including auditing for quality, working conditions, and environmental goals; the relational character of supply contracts; and supply chains as a contractual or corporate governance structure that functions like public law, particularly with respect to effects on third parties and the public.

 

• Moderator: David V. Snyder is professor of law and director of the Business Law Program at the American University Washington College of Law. Professor Snyder’s teaching and research interests are primarily in contracts and commercial law, including their international and comparative aspects. He has been a professor of law at Tulane, Indiana (Bloomington), and Cleveland-Marshall College of Law. He has been a regular visiting professor at the law school of the University of Paris II (Panthéon-Assas) since 2012, and has also been a visiting professor at the University of Paris 10 (Nanterre La Défense), Boston University, and the College of William and Mary. He is a graduate of Tulane Law School and Yale College and clerked on the US Court of Appeals for the Fifth Circuit.
  
  
• Speaker Call for Papers: Krisann C. Kleibacker Lee Cargill Sustainability Counsel & Bioindustrial Group Lead Lawyer, Cargill
  
  
• Speaker: Jonathan C. Lipsonm, Harold E. Kohn Chair and Professor of Law, Temple University, James E. Beasley School of Law
  
  
• Speaker Call for Papers: Trang (Mae) Nguyen, Assistant Professor of Law, Temple University, James E. Beasley School of Law
  Trang (Mae) Nguyen researches and writes in the intersections of contract law, transnational business governance, comparative law, and international law. Her current projects focus on the roles of informal mechanisms in the reparation of global supply chains in the aftermaths of COVID-19, and on the roles of supply chain host countries in the international legal order. Professor Nguyen is an affiliated scholar at the U.S.-Asia Law Institute, New York University School of Law and was a visiting scholar at UC Berkeley’s Center for the Study of Law and Society. Her work has appeared in the American Journal of International Law Unbound, the Stanford Law and Policy Review, the Harvard Human Rights Journal, and the New York University Law Review, among others. Prior to entering academia, she practiced corporate law in the Silicon Valley office of Davis Polk & Wardwell, LLP and served on the policy team of the California Office.
  
  
• Speaker Call for Papers: Ashley Palmarozzo, Doctoral Student in Technology and Operations Management, Harvard Business School
  
  
• Speaker Call for Papers: Kish Parella
  Kish Parella is an associate professor at Washington and Lee University School of Law, where she teaches courses at the intersection of law and business, including contracts, international business transactions, and corporate social responsibility. Her research is in international economic law, with a focus on the cross-border governance of corporations. Her current research examines the interaction between law and reputational mechanisms to improve corporate conduct in global supply chains.
  
  
• Speaker: Anita G. Ramasastry, Professor, Co Director, Law Technology and Arts, University of Washington School of Law
  
  
• Speaker Call for Papers: Jodi L. Short is the Associate Dean for Research and the Honorable Roger J. Traynor Professor of Law at UC Hastings College of the Law. Her research is on the regulation of business, in particular, the intersection of public and private regulatory regimes and the theory and practice of regulatory reform. Recent publications appear in Organization Science, Administrative Science Quarterly, Regulation & Governance, and the Minnesota Law Review. Her ongoing research investigates private efforts to enforce labor standards in global supply chains through codes of conduct and social auditing; explores how political influences on regulatory compliance and enforcement have been operationalized in empirical scholarship; analyzes how agencies define the “public interest” when implementing their statutory mandates; and tests the efficacy of different messaging strategies on compliance with environmental regulations.
  
  
• Speaker Call for Papers: Michael W. Toffel, Senator John Heinz Professor of Environmental Management, Harvard Business School

Hot Topic at AALS Today at 11:00 AM EST

Section on Commercial and Consumer Law, Co-Sponsored by Financial Institutions and Consumer Financial Services: Commercial Law in the 21st Century

 

Emerged and emerging technological developments, including distributed ledger technology, virtual currency, and other digital assets are transforming commercial transactions in ways that are not adequately addressed by existing commercial laws, such as the Uniform Commercial Code. The Uniform Law Commission and the American Law Institute have created a task force to review the UCC and recommend appropriate revisions in light of these technological developments. Come hear from members of the ULC/ALI Emerging Technologies taskforce to learn about these issues.

• Speaker: Andrew Hinkes, AttorneyCarlton Fields
  
  
• Moderator Speaker: Juliet M. Moringiello, Assoc. Dean. Fac. Res. & Develop. & Professor of Law, Widener University Commonwealth Law School.
  Juliet Moringiello is the Associate Dean for Research and Faculty Development at Widener University Commonwealth Law School in Harrisburg, PA. She is the Vice-Chair of the ULC/ALI Study Committee on the Uniform Commercial Code and Emerging Technologies and a member of the Permanent Editorial Board for the Uniform Commercial Code. Her commercial law scholarship focuses on electronic contracting and digital assets.
  
  
• Speaker Stephen L. Sepinuck, ProfessorGonzaga University School of Law

Weekend Frivolity: A Letter from Babyland Amusement Company

Thanks to Dave Hoffman (aka @HoffProf), the main thing we are looking forward to in 2021, aside from the arrival of a COVID vaccine, is teaching Hanford during the second semester of Contracts.  Now, he has provided, via Trang (Mae) Nguyen this letter from the company at the heart of the case.  The letterhead is a great indication of why this case is so much fun!

Reading the Covid-Related News on Bloomberg

A few stories caught my eye this week.  

CC BY-SA 3.0

First, Paige Smith and Robert Iafolla bring us news that refusing to wear a mask at work can cost you your job.  Companies that are re-opening are following CDC guidelines by requiring that returning workers wear masks.  

The story suggests that there has been little resistance from workers; on the contrary,  workers are more likely to complain that their employers are taking too few precautions against contagion rather than too many.  There are apparently religious and medical exemptions (don't those usually require face coverings rather than prohibit them?), but workers cannot claim a free-speech right to refuse to wear a mask.  So long as the requirement that employees wear masks is generally applicable and generally enforced, with appropriate accommodations where reasonable, it is likely to survive any legal challenge.

Two quick points: first, I am always struck by the lack of outrage at private actors who do things that spark outrage when the government does them, even though the private actors are motivated by profit and the government is motivated, at least in part, by concerns like public safety or national security.  The supposed difference is that workers consent to their terms of employment, but when you combine the ubiquity of at-will employment, form employment contracts that eliminate recourse, and a 15% unemployment rate, it is hard to take seriously claims that workers give meaningful consent to terms of employment. Nancy Kim and I explored this topic in the context of data-mining in connection with consumer contracting in a pre-Covid world.

Second, I wonder if the Bloomberg article underestimates the power of the argument that refusing to wear a mask is symbolic political speech.  When I go shopping these days, only about half of the people in the store wear masks.  Their refusal to do so puts me and other shoppers at risk.  It's possible that they just don't know where to get a mask (try Etsy!), but it is hard not to view their choice not to wear mask as a statement, and perhaps they view my mask as a mark of my self-subordination to the nanny-state as well. 

What do you do if you need to have someone to do some work in your home, and they show up without a mask?  Do you tell them to leave and come back with a mask?  Do you hide in the bathroom until they finish and then disinfect all surfaces with which they might have come in contact?  Do you leave a Yelp review and give them a low rating in the public health and safety category?  Confronting them seems like borrowing trouble.  They have access to the same information that you have.  Telling adults that they've made a poor decision (or implying that they have) rarely goes over well.

Meanwhile, Jef Feeley and Joshua Fineman report on another acquisition now on hold because of the pandemic.  In Forescout Technologies Inc. v. Ferrari Group Holdings LP, 2020-0385, Delaware Chancery Court (Wilmington), Forescout, a cybersecurity company, is claiming that private equity group, Advent International, ought not to be permitted to back out of its $1.9 billion deal to acquire Forescout.  Forescout claims that Advent assumed the risks associated with any possible impact that the pandemic might have on the deal.  According to the report, this is one of at least nine deals that resulted in Covid-related litigation in May, including $10 billion in disputed mergers and acquisition deals that landed in Delaware's Chancery Court during one seven-day period in May.  "Material adverse effect" clauses need to be carefully drafted or they will be carefully scrutinized by a court or arbiter.

About those added convention center fees...

I spent the past few days at a conference at the Boston Convention Center, a place so cavernous that at least I easily met my step targets every day walking between meeting rooms. The conference was an expensive one to attend (it would have been waaaay out of my price range if not for the academic rate), and enormously well-attended, and I found myself doing a lot of math: how much money in registration fees? but also, how much money to use this convention center? 

This post on extra convention center fees came across my social media just as I was musing on all of that. I know from other people who have dealt with convention centers that the extra fees are the real killer: You have to pay extra to use their catering, their AV equipment, etc. Even if all you've planned is a wedding, then you know how this goes with the add-ons. This is an arrangement that we seems to just be accepting, but maybe there should be more vocal outrage about it. 

Deadline TODAY for CSLSA Conference Registration and Hotel Block

For any of you considering attending and presenting your work (at any stage) at the Central States Law Schools Association’s 2018 Annual Scholarship Conference next month, TODAY (September 20) is your last chance to register and reserve a room in the hotel block (Sheraton - Downtown Fort Worth, which is literally next door to the law school and is offering $159/night)!

 

If you have already registered but held off on booking your hotel accommodations, well... you should take care of that today!

 

The conference will be Friday, October 12 and Saturday, October 13 at Texas A&M University School of Law in Fort Worth. Those who have attended in the past can attest to the fact that CSLSA provides a friendly and constructive environment for promoting legal scholarship across the board, including strong showings in areas beloved to readers of this blog, like contracts, commercial law, teaching methods, and more.

 

All the conference and hotel information you need is accessible here: http://www.cslsa.us/

 

I (Mark, that is) hope to see many of you in Fort Worth next month. But today is your last chance!

October 12-13 CSLSA 2018 Scholarship Conference at Texas A&M University School of Law

The Registration deadline has been extended until September 20, 2018 for the Central States Law Schools Association 2018 Scholarship Conference. The conference will be held on Friday, October 12 and Saturday, October 13 at the Texas A&M University School of Law in Fort Worth, Texas. We invite law faculty from across the country to submit proposals to present papers or works in progress.

The conference hotel is the Sheraton Fort Worth Downtown Hotel, which is conveniently located immediately next door to the law school. The conference rate is $159 per night and can be accessed by going here to the special CSLSA booking site. The cutoff date for the hotel block is September 20, 2018, so please make your reservations today!

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.

Please click here to register.

For more information about CSLSA and the 2018 Annual Conference please subscribe to the CSLSA blog. We look forward to seeing you in Fort Worth!

CSLSA 2018 Scholarship Conference at Texas A&M University School of Law: October 12-13

Registration is now open for the Central States Law Schools Association 2018 Scholarship Conference, which will be held on Friday, October 12 and Saturday, October 13 at Texas A&M University School of Law in Fort Worth, Texas. We invite law faculty from across the country to submit proposals to present papers or works in progress.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.

Please click here to register and to submit a presentation proposal. Registration is FREE for faculty at CSLSA member and affiliate law schools (which is quite a lot of law schools). The deadline for registration is September 1, 2018.

For more information about CSLSA and the 2018 Annual Conference please subscribe to the CSLSA blog. Information on the conference-rate hotel block will be posted soon. We look forward to seeing you in Forth Worth!

How does a "deemed effective" date affect a non-compete?

A recent case out of New York, Niznick v. Sybron Canada Holdings, Inc., 650726/2018, illustrates how ambiguity can crop up anywhere, sometimes no matter how careful you are; it's difficult to plan for every eventuality. 

The parties had a contract that included a non-competition clause that prohibited competition for five years after Niznick ceased to own any units in the company. Sybron tried to exercise an option to purchase Niznick's units in the company in 2014, but Niznick disputed the validity of Sybron's actions, and the parties engaged in litigation. Eventually, a court concluded that Sybron was permitted to exercise the option and that Niznick's ownership interest terminated as of the 2014 date when Sybron had attempted to exercise its option. After this decision, in 2017, the parties entered into a purchase and sale agreement "deemed to be effective as if the transfer" had occurred in 2014. Niznick also asserted that, therefore, the non-competition clause would expire in 2019--five years after the 2014 date. Sybron contested that reading. 

The parties' previous contracts had referred to the non-compete as "a material part of the consideration" of the agreement. The court, therefore, did not allow Niznick's attempt to minimize its importance. The purchase and sale agreement executed in 2017 stated that Niznick "is the owner" of the units in question (emphasis added). The "deemed to be effective" date was not considered to alter the language of the non-compete, which stated that it would commence when Niznick ceased to own units, which did not happen until the 2017 purchase and sale agreement, regardless of the "deemed effective" date. 

At the time of drafting the non-compete, it was probably thought that it would be pretty clear when Niznick ceased to own the units. Sybron probably did not anticipate that they would have a dispute about the operative date this way. 

 

The 13th Annual International Conference on Contracts (KCON XIII) is Looking Great!

 KCON, the annual International Conference on Contracts, is a favorite of this blog, having been associated with us since its inception. The 13th Annual International Conference on Contracts will be held at Barry University Dwayne O. Andreas School of Law, which is just around the corner (February 23 and 24, 2018).  The conference is shaping up nicely and is well worth adding to your conference and travel plans for next semester!

For those unaware, the 13th Annual International Conference on Contracts is the largest annual scholarly and educational conference devoted to Contracts and related areas of commercial law. The two-day conference is designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, thought experiments, not-yet-fully-formed ideas for scholarship, and pedagogical innovations, as well as to network with colleagues — and potential collaborators or mentors — from around the country and other parts of the world.

Courtesy of conference organizer Dan O'Gorman, here are some highlights so far:

We will be honoring Professor James J. White of the University of Michigan Law School and Professor Robert S. Summers of Cornell Law School with Lifetime Achievement Awards for their contributions to the field of contract law. Professor White will be in attendance to accept the awards on behalf of both himself and Professor Summers.

The Barry Law Review has agreed to have its annual spring symposium be a panel at KCon 13. In honor of our lifetime achievement award recipients, the panel will focus on Article 2 of the U.C.C. The panel will be moderated by Victor Goldberg, and panelists include Lisa Bernstein (via Skype), Robert Hillman, Steven Walt, and James White. A second panel on Article 2 is also in the works moderated by Frank Snyder, and featuring Henry Gabriel, Reporter for the Revisions of U.C.C. Article 2, 1999-2003, and whose piece will also be included in the symposium edition.

 We will have a panel on Judge Posner and his contracts jurisprudence (moderated by Michael Malloy, with panelists Bob Brain, Deborah Gerhardt, Victor Goldberg, and Jeff Harrison).

We will have a panel on the economics of contract law (moderated by Jeff Harrison, with panelists Yonathan Arbel, Peter Gerhart, Victor Goldberg, and Wentong Zheng).

We will have a panel celebrating/decrying Judge Traynor’s 1968 opinion in Pacific Gas & Electric on its 50th anniversary (moderated by Fred Jonassen, with panelists Steve Burton, Robert Hillman, and others soon to be confirmed).

Professor Tina Stark will have a show-and-tell during one of the lunch sessions about her antique English indentures. She has some going back to the 1400s, others from the Elizabethan age, some with huge regnal seals, and others of historical interest because of references to peppercorns.

We have a substantial number of international scholars who will be making presentations.

We will be having dinner at a tapas restaurant in downtown Orlando, with a trivia contest during dinner.

So if you have not done so already, we encourage you to reserve a room at the Embassy Suites by Hilton in downtown Orlando at your earliest convenience. 

You can register for the conference here: http://www.barry.edu/kcon/  

You can book your hotel room here: http://embassysuites.hilton.com/en/es/groups/personalized/M/MCODTES-BAR-20180222/index.jhtml

The deadline to submit an abstract was December 11, but abstracts submitted after that date will be accepted on a space available basis.

We look forward to seeing many of you in Orlando in February. Please note that the average high temperature in Orlando on February 23 and 24 is 74 degrees. (This is not a warranty, however.)

 

Central States Law Schools Association 2017 Scholarship Conference Coming October 6-7, 2017

Calling all scholars in contracts and commercial law!  And yes, scholars in other disciplines that we on this blog may find somewhat less interesting.

Mark your calendar now. The Central States Law Schools Association 2017 Scholarship Conference will be held on Friday, October 6 and Saturday, October 7 at the Southern Illinois University School of Law in Carbondale, Illinois.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.

Registration will formally open in July, but the special hotel blocks and rates are now available for reservation:

Holiday Inn Conference Center
$109/night
To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate or book online and use block code SOL.
Note: SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events.

Marion Holiday Inn Express
$107/night
To reserve a room, call (618) 993-5602 and ask for the SIU School of Law rate.
Shuttle service will not be available.

For more information as it becomes available, consult the CSLSA Website.

 

Robert Brain (Loyola Los Angeles) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

A PROPOSAL TO ELIMINATE UCC § 2-315

Robert Brain, Loyola Law School, Los Angeles

            It is my contention that UCC § 2-315, the provision on the implied warranty of fitness for a particular purpose, is: (1) unnecessary; and (2) causes more problems than it solves.  As such, I believe it should be eliminated from the UCC.

             The implied warranty of fitness for a particular purpose is unnecessary because a fitness case is, in truth, an express warranty case and can be analyzed under § 2-312.  The only difference from what the Code now recognizes as an express warranty situation and a fitness situation is that the attribute of the good comes initially from the buyer and not the seller.  However, in both cases that parties are contracting based on a shared belief that the good has certain, specified (not implied) qualities.  This can be seen by the two situations below:

             Situation One: A scuba diver walks into a dive shop, looking for a watch that will be waterproof down to 200 feet. She tells the sales associate that she’s looking for a watch for a deep dive.  The clerk says, “This one is guaranteed to be watertight down to 200 feet.” She buys the watch.

             Situation Two: The same woman walks into the same shop and talks to the same associate.  She says, “I’m doing deep diving, and am looking for a dive watch that will stay watertight down to 200 feet.”  The associate picks up the same watch as before, and says, “Here you go.”  The woman buys the watch.

            If the watch starts leaking at 60 feet, under current law, the woman would sue for breach of express warranty under Situation One, but would have to sue for breach of the implied warranty of fitness under Situation Two. The legitimate expectation of the consumer is identical in the two situations and should be analyzed identically.  If the words and actions of the associate in Situation Two are taken as affirming the 200 foot watertight attribute initially broached by the buyer, there is no difference between the two. As such, what are now fitness cases could, and should, be analyzed as breaches of express warranty.

            Conceptually it is difficult to justify the fitness warranty as an “implied” warranty.  In the merchantability cases under § 2-314, it is the attribute of the good – that it is of ordinary quality, for example – that is implied into the transaction.  But under § 2-315, the attribute of the good is expressed; what is “implied” is some representation by the seller as to that expresses attribute, but as noted above, the words and actions of the seller can easily be viewed as communicating that the seller is warranting the attribute under existing law.  It is an “implied” warranty in the same way we say a contract by conduct is an “implied-in-fact” contract.  But we treat implied-in-fact contracts as if they were express contracts, and we should so the same for fitness.

             Another issue is that courts have problems determining whether particular cases should be analyzed as a fitness or a merchantability case.  For example, suppose the buyer asks for “heavy-duty hiking boots” and suppose the shoes come apart upon their first wearing.  Is the proper claim that the boots are not fit as ordinary heavy-duty hiking boots (or even as just boots), or is it a fitness problem because they do not measure up as heavy-duty boots?  Courts have struggled with this issue from the first English case in which the fitness warranty was birthed. 

Deborah Zalesne (CUNY) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

Choosing “Choice” in the Age of ART: Designer Babies and the Case for Genetic Selection

Deborah Zalesne (City University of New York School of Law)

ABSTRACT 

While rapidly developing Assisted Reproductive Technology (“ART”) such as in vitro fertilization, surrogacy, artificial insemination, IUI, fertility medication, intracytoplasmic sperm injection, cryopreservation, and pre-implantation genetic diagnosis, offer new pathways to parenthood, this capacity has challenged our collective notions about family. Ethical questions that arise require rethinking the traditional view of family as something “organic” and “natural” and as a “self-contained unit.”

New technologies allow for far-reaching reproductive decision-making that was not possible even a generation ago. Parents can now select the sex, race, or other characteristics of an embryo to be implanted. Parents can also choose to cryopreserve their embryos to allow for implantation in the future, or choose to terminate or reduce a pregnancy because of birth defects or multiples. With the opportunities presented by reproductive autonomy and choice come legal and ethical chaos of sorts, and a division that pits consent against state and public interest.

As these technologies develop, questions arise as to whether, as a society, we should allow market forces and private contracting to control their use – in effect allowing the market to decide what is right or wrong. Is leaving development of reproductive technology to the demands of the market equivalent to saying nothing is right or wrong – only efficient or inefficient, wealth maximizing, or not wealth maximizing? Or, rather, does the market represent the natural course of change and the inevitable direction of society, with regulation of technology in these areas simply inhibiting progress? There is no single answer to these questions that can be applied across the board to all the various existing and emerging technologies.  I argue, however, that where there is tension between individual reproductive choice and other moral values, the use of reproductive technologies is most often best left to the choice of individuals and the innovation of the market. 

My presentation highlights some of the ethical issues that arise from the reproductive capabilities that have developed over the past decades, focusing specifically on the unique ethical issues that arise from pre-implantation genetic testing. (I will also briefly discuss ethical issues surrounding gamete donation and surrogacy, which can result in more than two legal or biological parents; the creation, selection, freezing, and destruction of embryos; and prenatal testing, selective abortion and selective reduction.) Much of the resistance to these technologies stems from long-held and deeply ingrained beliefs about the purity of reproduction and motherhood. As technology continues to create reproductive possibilities that were once unheard of or considered fantasy, the purity of motherhood, pregnancy, reproduction, and family are threatened, creating controversy and debate. My talk examines some potentially troubling contract clauses that can give reproduction choices to intended parents that did not exist before technology facilitated it. I attribute some of the resulting ethical concern to societal hesitance to deviate from traditional family norms, looking specifically at the sacredness of motherhood and primacy of biology in definitions of parenthood.

Ultimately, I argue for emphasis on consent and market freedom, and for more rigorous and consistent enforcement of reproductive agreements. The law, by its nature, is slow to respond and slow to capture societal mood, which is constantly evolving. Artificial insemination, for example, was originally, over a century ago, thought to be scandalous, but opinions softened eventually. Since law necessarily lags behind social momentum, family law and regulation are often ill equipped to address adequately the myriad ethical issues that have arisen and are likely to arise as technology advances further. Even as family law adapts, it will never be able to keep pace with the rapid developments happening in reproductive technology and accommodate all possible non-normative relationships, ever growing based on cultural and social shifts, and made even more accessible through technology. Regulation of new technologies can thwart progress, inhibiting the development of important medical procedures. Consent, market forces, and contract law, on the other hand, which are based on individual needs, individual desires, and societal demand, are the best arena for dealing with rapid technological momentum.

People have a fundamental right, both morally and legally, to privacy and freedom when it comes to reproduction, so intervention where there are private reproductive agreements is not usually justified. Individual choice should guide reproduction (whether natural or artificially mediated), and a free market and private contracting are the best vehicles for delivering assisted reproductive services and for responding to individual choice. Assisted reproduction, like sexual reproduction, is not a social enterprise. Although it often involves more than two parties, it is still based on private arrangements and should be governed by rules of privacy and autonomy. 

The SSRN link to the full paper is: http//ssrn.com/abstract=2930290

Orit Gan (Sapir College, School of Law) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

Gett Abuse

Orit Gan (Sapir College, School of Law)

Under Jewish law divorce occurs when the husband writes and delivers and the wife accepts a gett. Until wife is granted a gett she may not remarry or date. Some men use the gett as a bargaining chip to extort favorable economic divorce agreements. In other words men threaten women by refusing to grant them a gett unless they will succumb to their financial demands. This is gett abuse.

Women who pay for their gett resist enforcement of the divorce agreements by claiming duress, and U.S. courts usually accept such claims. However, based on anti-commodification theories I claim that trading the gett for money should be prohibited. I suggest that gett should be an inalienable right for two reasons. Women pay for a gett under conditions of severe inequality. They are coerced by the necessities of the situation. Moreover, this exchange has a degrading effect. Women's autonomy, dignity and freedom are corrupted and diminished by trading the gett. In an ideal world a gett should not be commodified.

However, we do not live in an ideal world. In today's reality, trading a gett also has advantages for women. Paying for a gett is their only way to break free from the marriage. The alternative is staying married against their will. Furthermore, women bring tort claims against their husbands in civil courts for gett refusal claiming emotional distress. Women then leverage the compensation that they are awarded to get a gett. They use the tort claim to improve their bargaining power and trade the damages awarded for a gett.

Therefore both commodification and non-commodification of gett have both advantages and disadvantages for women. A way out of this double bind dilemma is to recognize incomplete commodification.

The gett abuse analysis has broader implications. For example, the gett abuse analysis may be applicable to custody negotiations. Spouses bargain for their children's custody and maintenance upon divorce. Studies show that women are willing to waive financial rights in order to get custody. This transaction may have the corruption and coercion effects and therefore custody may also be an inalienable right.

Hila Keren (Southwestern Law School) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

Emotional Value and the Value of Emotions

Hila Keren, Ph.D. (Southwestern Law School)

American contract law has demonstrated an ongoing and long-lasting reluctance to award remedies to a party to a contract who suffered an emotional harm due to a breach by the other party. Such reluctance stands in clear contrast to the treatment of other harms coming from a breach of contract, namely economic and physical harms. In this paper I argue for equal treatment of all harms caused by a breach of contract and against the legal marking of emotional harms as unfit for the general effort of contract law to compensate injured parties.

For many decades legal theorists have debated the aptness of a special and tightfisted legal response to emotional harms, highlighting both aspects relating to the nature of law and the qualities of the emotions. For example: Is the law, with its rational logic, able to address affective problems? Are emotions uniquely easier to fake or inflate?

My paper brings to the debate a fresh set of arguments. Analyzing the issue from the perspective of the novel approach of law and emotions, I argue that the reluctance to award damages for emotional harms reflects and reinforces law’s “hyper-rationality,” i.e., the broader legal misunderstanding and mistreatment of emotions. More importantly, taking emotions seriously and in an interdisciplinary fashion, I contend that for the last four decades we have been subject to a rapidly increasing dominance of a neoliberal worldview that has operated to reconfigure the meaning of the emotions themselves. This significant shift, I submit, makes compensation for emotional harms more necessary than ever before. 

In particular, I show how neoliberalism has made key positive emotions, such as happiness, an essential part of our human capital and thus has turned these emotions into economic assets—indistinguishable from those the law is eager to protect by contractual remedies. Similarly, neoliberalism has reframed negative emotions of the sort engendered by breach of contract—anxiety or anger for example—as a cause of depreciation of one’s human capital, making such harms impossible to tell apart from other contractual injuries. In a neoliberal world that constantly requires people to invest expensive resources in maintaining their emotional “portfolio,” I conclude, there is an urgent need to bring the conventional reluctance to compensate for emotional harms to an end.

 

Allen Kamp (John Marshall - Chicago) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

WELLNESS PROGRAMS UNDER THE AFFORDABLE CARE ACT—A STATUTORY DEFINITION OF “VOLUNTARY”

Allen R. Kamp (John Marshall Law School - Chicago)

          Can Congress force you to eat your broccoli?  To the Supreme Court in NFIB v. Sibelius, the answer is no under the Commerce Clause, but yes under the Taxation Clause.[1] But can your employer force you to eat it? The answer may well be yes.

         An employer could have this ability under wellness programs.” Wellness program” is a defined term under the Affordable Care Act.[2] Wellness programs may include monitoring of vital functions and activity that may report activity 24/7.[3] A certain activity level may be required, for example, 5,500 steps a day. Wellness programs may also require meeting such goals as lowering body/mass ratio or cholesterol levels.[4]

          The ACA authorizes wellness programs if they are “voluntary.” The term is numerically defined, unlike legal definitions of duress and unconscionably, which may invalidate some contracts. Employers can reduce employees’ pay by 30% of the total amount of the insurance costs of the employee’s insurance and be “voluntary.” (The total cost includes both the employee and the employer’s contribution.[5] Thirty percent of the average cost of insurance is more than $5,000 per year.[6] For a low wage employee, this penalty is a high percentage of his income.[7]

          The Equal Employment Opportunity Commission has issued a regulation that adopts the ADA definition of “voluntary.” [8]

          Although the definition of voluntary will probably not be decided for years, wellness programs starkly pose the issue of the limits of employer power under the employment contract  Thanks to modern technology, such biometric data as activity level and pulse can be monitored 24/7.[9] A blood test now can reveal he presence of nicotine, cholesterols, glucose, and a great amount of other data such as nicotine use.[10] Should the employer be allowed to monitor employee behavior and vitals 24/7? Wellness programs can include exercise programs (for example, 5,500 steps a day), taking part in health improvement counseling (e.g., weight loss or smoking cessation), and attainment of certain goals, such as lower cholesterol and body/mass index. Should an employer be able to mandate an exercise regime? Should an employer be able to require either achievement of a change in an employee’s body with the threat of sanctions or firing if the change fails to take place?

          The rule may well be that Congress cannot force one to eat one’s broccoli, at least under the Commerce Clause, but one’s employer may well be able to. One can, of course, find another job (one without a wellness program), while one cannot opt out of a federal law. But finding a new job for many is difficult and finding one without a wellness program could be harder.

          We can engage in law professor speculation. Given that assesment to contract terms is found in the most extenuated contexts (See, e.g., Carnival Cruise). Does the ADA definition actually represent  an advance towards a meaningful definition of consent?

          This leads to my final point, which is a dig at my libertarian friends and colleagues. The libertarian premise is that if government power is limited, human freedom is increased. Is there, however, a Law of Conservation of Power in a society parallel to the Law of Conservation of Energy, that the amount of energy in a closed system remains constant? Does the amount of power in a society remain constant, so that if power is diminished in one place it just goes somewhere else?

[1] Nat’l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 567 U.S.___ (2012).

[2] Patient Protection and Affordable Care Act § 1201(4), 42 U.S.C. § 300gg-4(j)(1)(A) (2012).

[3] E.g., the Fitbit.

[4] Although many federal statutes regulate wellness, none deal with the problems of employee privacy or employer control over employees per se. Statutes which may apply to wellness programs in are the Affordable Care Act (ACA), The Americans With Disability Act (ADA), the Genetic Information Non-Disclosure Act (GINA), HIPPA, and Title VII. The main current legal controversies center around the ACA, the ADA and GINA.

[5] 42 U.S.C. § 300gg-4(j)(3)(A) (2012).

[6] Letter from Congressional Members, Robert C. Scott, Elizabeth Warren, Patty Murray, Louis McIntosh Slaughter, Richard Blumenthal, Janice D. Schakowsky, and Sherrod Brown to Jerry R. Yang, Chair of the EEOC (Feb. 2, 2016), http://democrats.edworkforce.house.gov/sites/democrats.edworkforce.house.gov/files/2016-02-11%20Letter%20to%20EEOC%20Chair%20Yang%20re.%20GINA%20Proposed%20Rule.pdf

[7] This brings the ACA into conflict with at least two other federal acts, the ADA and GINA. Both prevent health information from being disclosed to the employer. Note that the ADA is a law designed to prevent discrimination against the disabled and focuses on that problem, not the privacy aspects of wellness programs. The ADA defines “voluntary” as not being based on any sanction for non-agreement to participation in a wellness program. GINA has a similar provision, with the non-disclosure extending to spouses. So which Act controls? At present it is open question. The ACA is the later act and following the ADA or GINA would make its voluntary section meaningless. But the ACA Regulations do say that the ACA does not limit the ADA. The AARP has sued the E.E.O. C., seeking to have the regulation invalidated. See Complaint,  ww.aarp.org/content/dam/aarp/aarp_foundation/litigation/pdf-beg-02-01-2016/AARP-v-EEOC-complaint.pdf

[8] (3) Incentives offered for employee wellness programs. The use of incentives (financial or in-kind) in an employee wellness program, whether in the form of a reward or penalty, will not render the program involuntary if the maximum allowable incentive available under the program (whether the program is a participatory program or a health-contingent program, or some combination of the two, as those terms are defined in regulations at 26 CFR 54.9802-1(f)(1)(ii) and (iii), 29 CFR 2590.702(f)(1)(ii) and (iii), and 45 CFR 146.121(f)(1)(ii) and (iii), respectively) does not exceed:

(i) Thirty percent of the total cost of self-only coverage (including both the employee's and employer's contribution) of the group health plan in which the employee is enrolled when participation in the wellness program is limited to employees enrolled in the plan;

(ii) Thirty percent of the total cost of self-only coverage under the covered entity's group health plan, where the covered entity offers only one group health plan and participation in a wellness program is offered to all employees regardless of whether they are enrolled in the plan;

(iii) Thirty percent of the total cost of the lowest cost self-only coverage under a major medical group health plan where the covered entity offers more than one group health plan but participation in the wellness program is offered to employees whether or not they are enrolled in a particular plan; and

(iv) Thirty percent of the cost of self-only coverage under the second lowest cost Silver Plan for a 40-year-old non-smoker on the state or federal health care Exchange in the location that the covered entity identifies as its principal place of business if the covered entity does not offer a group health plan or group health insurance coverage.

29 C.F.R. 1630 (d) (2). Published 5/17/16, e-version.

 [9] See webpage of Fitbit advertising the use of the device in wellness programs.

[10] My latest blood test showed that I drink too much water and consume too many saturated fats and sugars.

Guy Rub (Ohio State) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

Copyright Survives: Rethinking the Copyright-Contracts Conflict

Guy A. Rub (The Ohio State University Michael E. Moritz College of Law)

Copyright law consists of legal norms that govern certain actions with respect to creative works fixed in a tangible medium of expression. Contracts allow individuals to create legal norms with respect to creative (and non-creative) works that are fixed (and those that are not fixed) in a tangible medium of expression. This potential overlap in legal norms can create tension between the two. This tension is typically discussed under the auspice of copyright preemption doctrine.

The leading decision on this matter is Judge Easterbrook’s 1996 decision in ProCD v. Zeidenberg. In that case, the Seventh Circuit held that a contract that restricted the use of factual information was not preempted by the Copyright Act and therefore enforceable. The reaction among copyright scholars was swift and passionate. In dozens of articles and books, spreading over two decades, scholars cautioned that if the ProCD approach is broadly adopted, the results would be dire. Through contracts, the rights of copyright owners would run amok, expand, and in doing so they would invade, shrink, and possibly destroy the public domain. Contracts, we were repeatedly warned throughout the years, would kill copyright law.

 This Article challenges this scholarly consensus by studying the 288 court opinions that have dealt with the copyright-contract conflict over the past four decades. This examination reveals surprising facts: Notwithstanding the scholars’ warnings, ProCD’s approach won the day and was embraced by most federal circuit courts. However, the doomsday scenarios scholars warned against did not materialize. The overall effect of contracts on the size and scope of the public domain, or over copyright law as a whole, seems minimal. The Article explains this discrepancy and shows that contracts are an ineffective tool to control information because they are too weak of a device to threaten or replace copyright law. Indeed, to paraphrase Mark Twain, the reports of the death of copyright were greatly exaggerated.

 The Article concludes by placing this analysis in context, as part of a broader ongoing discussion on the desirability and enforceability of standard-form agreements.

 The Article is available for SSRN download here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2926253