ContractsProf Blog

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.

New Scholarship on Contract in Crisis

Temple Law School's Professor Jonathan Lipson and Interim Dean Rachel Rebouché organized a conference last year addressing the various ways in which contracts law has responded to the pandemic.  It was a deep dive into waters that we merely tested in our online symposium from 2020.

The published version is now out in Law and Contemporary Problems.  You can read all of the contributions here.

CALL FOR PAPERS: 6th Annual Penn-NYU Empirical Contracts Workshop (June 2, 2022)

Paper Submission Deadline: March 1, 2022

The 6th Annual Penn-NYU Empirical Contracts Workshop is scheduled to place in person at the University of Pennsylvania Carey School of Law on June 2, 2022.  

The Workshop is a forum for the presentation and discussion of early and mid-stage projects analyzing contract law and practice from a variety of empirical perspectives. Papers are selected through a peer review process.  Attendees of the conference are expected to cover their own travel and lodging costs, but there are no conference fees.  

Submitted papers must be unpublished (and expected to be unpublished at the time of the conference). If accepted, authors will have an opportunity to submit a revised draft prior to the conference for presentation and discussion. Please note that accepted papers will be made available to all conference participants.  

Organizing committee:  Dave Hoffman (top left, Penn); Florencia Marotta-Wurgler (right, NYU) and Tess Wilkinson-Ryan (bottom left, Penn).  Please email submissions to [email protected]

Reminder: KCON Zoom Panel Today!

Post-employment restrictions are in the news. President Biden mentioned them in his July 9 executive order.  In July, the Uniform Law Commission approved a uniform act governing covenants not to compete.  Illinois, Nevada, and D.C. have recently enacted legislation.

Should competition law should play a role in regulating such terms?  This panel will generate wisdom in that regard.

Employment 2021: Contract v. Competition
Which Should Govern Freedom to Work?
A KCON Zoom Panel

Friday, October 1, 2021
2 p.m. to 4 p.m. Central Time

Unconscionability in Contracting for Worker Training
Jonathan F. Harris
Associate Professor of Law
Loyola Law School, Los Angeles
@LawProfJHarris

Bundling Postemployment Restrictive Covenants: When, Why, and How It Matters
Non-Disclosure Agreements and Externalities from Silence
Evan Starr
Associate Professor
Robert H. Smith School of Business, University of Maryland
https://sites.google.com/site/starrevan/home

Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance
Orly Lobel
Warren Distinguished Professor of Law
University of San Diego School of Law
https://www.orlylobel.com/

Remarks

Eric A. Posner
Kirkland & Ellis Distinguished Service Professor of Law
Arthur and Esther Kane Research Chair
University of Chicago Law School
Author of How Antitrust Failed Workers (and a batch of related articles)

Questions and Comments from the Floor

Please direct questions to Val Ricks, South Texas College of Law Houston, organizer and moderator, at [email protected].

To reserve a spot, please register in advance:

https://stcl.zoom.us/meeting/register/tJElcuGqrjooHtKMInJraeWfyac7cuWsfDdh

After registering, you will receive a confirmation email containing information about joining the meeting.

Announcing a KCON Zoom Panel, Employment 2021: K v. Competition

Post-employment restrictions are in the news. President Biden mentioned them in his July 9 executive order.  In July, the Uniform Law Commission approved a uniform act governing covenants not to compete.  Illinois, Nevada, and D.C. have recently enacted legislation.

Should competition law should play a role in regulating such terms?  This panel will generate wisdom in that regard.

Employment 2021: Contract v. Competition
Which Should Govern Freedom to Work?
A KCON Zoom Panel

Friday, October 1, 2021
2 p.m. to 4 p.m. Central Time

Unconscionability in Contracting for Worker Training
Jonathan F. Harris
Associate Professor of Law
Loyola Law School, Los Angeles
@LawProfJHarris

Bundling Postemployment Restrictive Covenants: When, Why, and How It Matters
Non-Disclosure Agreements and Externalities from Silence
Evan Starr
Associate Professor
Robert H. Smith School of Business, University of Maryland
https://sites.google.com/site/starrevan/home

Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance
Orly Lobel
Warren Distinguished Professor of Law
University of San Diego School of Law
https://www.orlylobel.com/

Remarks

Eric A. Posner
Kirkland & Ellis Distinguished Service Professor of Law
Arthur and Esther Kane Research Chair
University of Chicago Law School
Author of How Antitrust Failed Workers (and a batch of related articles)

Questions and Comments from the Floor

Please direct questions to Val Ricks, South Texas College of Law Houston, organizer and moderator, at [email protected].

To reserve a spot, please register in advance:

https://stcl.zoom.us/meeting/register/tJElcuGqrjooHtKMInJraeWfyac7cuWsfDdh

After registering, you will receive a confirmation email containing information about joining the meeting.

Call for Papers: AALS: Section on Contracts at the 2022 Annual Meeting

The AALS Annual Meeting in January 2022 will be held virtually.  If you are writing on either of the topics below and would like to speak at the annual meeting, please send your proposal to the Section Chair, Miriam Cherry at [email protected] on or before Monday, August 30, 2021.

Call for Papers 

AALS Contracts Section 

Section on Contracts – Panel 

Title: “Current Events in the Contracts Course and in Contracts Scholarship” 

Saturday, January 8, 2022 

3:10pm-4:25pm 

Description: This program will focus on the use of current events both in the contracts course and in contracts scholarship.  The pandemic, protests for racial justice, and many other newsworthy events have prompted new lines of inquiry into established contract doctrines.  For example, litigation around the pandemic has challenged the scope of force majeure clauses.  The panelists will examine these as well as other newsworthy events, and discuss how they have been able to integrate current events into their teaching and scholarship.  The use of current events can assist with student engagement in the course, and also help to spark new ideas for research.  This panel also evokes larger questions:  How do current events shape (or reshape) the law of contracts? Which recent events will fade away, and which will have lasting impact on practice, doctrine, and the content of the contracts course? 

Section on Contracts – Pedagogy Panel (Co-Sponsored with the Section on Consumer & Commercial Law) 

Title: Diversity, Equity, Inclusion, and the Teaching of Contracts and Commercial Law  

Sunday, January 9 

4:45-6pm 

Description: Significant scholarship shows that diversity, equity, and inclusion are fundamental to our understanding of commercial law. Yet these issues are rarely highlighted in the teaching of contracts, consumer protection, and other areas of commercial law. This panel will focus on pedagogy centered on race, gender, disability, and sexual orientation, and will explore the implications for bringing diversity into the contracts course. This panel brings together a range of expert instructors to discuss their materials, methodologies, lesson plans, and class activities, in the hopes of enriching the teaching of all commercial law topics. 

Contract in Crisis: A Two-Day Virtual Symposium

Today is the second day of the Contract in Crisis Symposium hosted by Jonathan Lipson and Rachel Rebouché of the Temple University Beasley School of Law.  The conference features many of the themes and some of the people who participated in our virtual symposium and contracts and COVID last Fall.  

The papers presented in this week's conference will appear as an issue of Law & Contemporary Problems.  

Congratulations to the organizers and participants in this timely and stimulating event!

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!