ContractsProf Blog

American Law Institute Approves Restatement of Consumer Contracts Law

After an eleven year process, the American Law Institute (ALI) approved the Restatement of Consumer Contracts Law.  Congratulations to Reporters, Oren Bar-Gill, Omri Ben-Shahar, Florencia Marotta-Wurgler for their success in shepherding the document through the process.

I was not at the meeting, so I cannot give an account of what went on, nor do I have access to the final draft.  The best I can do is share this podcast, sponsored by the Ballard Spahr law firm, hosted by Alan Kaplinsky, Ballard Spahr Senior Counsel, and featuring an interview with Steven O. Weise (above), a member of the ALI council.

If we have readers with perspectives, please feel free to share, in comments or as a guest post!

Weekend Frivolity: Old School Zoom

Will there be a time when the word "Zoom" will again trigger the wave of nostalgia it did for me up until the experience of the last few months replaced nostalgia with revulsion? 

Hat tip to Bridget Crawford over at The Faculty Lounge for reminding us of the older meaning of "Zoom."

Weekend Frivolity: Real-Life Zoom Meetings

We are taking a lesson from Steve Lubet and the Faculty Lounge Blog.  Since readership is down on the weekends, Steve posts music videos on the weekends.  Faculty Lounge fans understand that they are free to scroll past the music if all they are interested in is the blog's regular programming.  We hope that our readers will be equally indulgent.

Rather than music, we will try an experiment in which we share videos that relate to our joint experiences: as lawyers, as teachers, as academics, as people cooped up during a pandemic.  We hope that you enjoy!

 

The Controversy over the Restatement of Consumer Contracts

As some readers of this blog may be aware, the American Law Institute will be voting on whether to approve the Restatement of Consumer Contracts at its upcoming Annual Meeting on May 21. The proposed Restatement is controversial for several reasons and was the subject of a recent Yale Journal on Regulation symposium. Concerns have been raised by contractsprofs Gregory Klass, Adam Levitin and others (including yours truly) regarding the Reporters' methodology and interpretation of case law.  Of particular note, is this post written by the preeminent contracts law scholar Melvin Eisenberg. As Prof. Eisenberg points out, the doctrinal problems are glaring, harmful to consumers, and will make it even harder to explain contract law to 1Ls.

In addition to the doctrinal inconsistencies, the proposed Restatement ignores the problems created by form and digitization and does nothing to address the problems created by ubiquitous digital contracts. As Colin Marks's study showed, retailers often have different and more onerous terms for online purchases than when customers make those same purchases in-store.  

The law is still developing when it comes to digital contracts and there are signs that courts in some jurisdictions, such as California, are inclined to move the law in a more consumer-friendly direction. This Restatement would impede that evolution. Furthermore, this proposed Restatement would create a different set of rules when the contract is between two businesses and between a business and a consumer. The result in some cases is that the Restatement would subject a consumer to more stringent contract terms than a business would be subjected to under common law. While this might seem like good news for businesses, it actually is not. In many cases, due to the problem of “contract creep” which Ethan Leib and Tal Kastner discuss in their forthcoming Georgetown Law Journal article, courts are likely to end up applying the law of “consumer contracts” to all contracts, including those between businesses.  The result?  The proposed Restatement of Consumer Contracts would harm both consumers and businesses.  Instead of helping courts make sense of the evolving law, it would cement law that is incoherent and inconsistent.  Contractsprofs should be particularly concerned because it will make contract law that much more difficult to explain to 1Ls. The ALI plans to vote on the proposed Restatement of Consumer Contracts on May 21. All readers of this blog who are members are encouraged to attend and provide input.

 

More on the Puzzling ICAM Problem

 

As I noted about a month ago the problem for the 2015 International Commercial Artbitration Moot is wonderful for those who like crossword puzzles, solving problems, reading mysteries, or doing detective work. There are facts, deadends, and read herrings galore. No one goes for a big sleep as far as I can tell but there is the dreaded issue of "fundamental breach." In fact, that appears to be the centerpiece of the problem. Just to make it a little twisty, the fundamental breach is by the buyer whose letter of credit may not conform to the contract. Since even that would be too simple, there is a second letter of credit that may or may not conform but which came after the first arguably non comforming one. There are phone calls, emails, letters, accusations, and even an emergency arbitration that, maybe, should not have occurred at all.

At my school 32 students are now writing briefs for the claimants side of the case and preparing for their oral arguments next week. There is something here even for profs not involved in the Moot. Just reading the problem will spark all kinds of ideas for exam questions suitable for  the basic contracts course.

 

Vis Problem Is Up

                                                                                            

The problem is up for the 22nd Annual International Commerical Arbitration Moot. Between now and early December, teams will write the brief for the Claimant.  In mid January the brief for the Respondent is due. And then, in March,  200-300 teams from law schools around the world will gather in Vienna for the competition. 

There is no limit to the  number of students on a team but they must argue in pairs. Typically one student handles the procedural issues and one the substantive or the CISG issues. There are 4 rounds to start with the 64 highest scoring teams moving on to a single elimination tournament.

The problems  identify an actual arbitration agency whose rules govern the procedures, This year the procedural issues center around whether the Claimant the right to make an emergency appeal to the arbitration agency and whether the Respondent may join the parent company of the Claimant for purposes of its counterclaim.  In one of those puzzles that charactizes the Moot, the parent company "endored" the contract at issue but claims not to be a party do it.

The substantive issue concerns a letter of credit which does not conform (or does it?) to what was called for in the contract. The buyer attempts to "cure" in a sense but the seller says "too late, we have already avoided the contract." Thus, it raises avoidance and cure isssues under the CISG.

This is, at best, a first cut on the problem. As the weeks pass, the problem will reveal itself as the layers are peeled off. 

I am happy to trade notes and views with other interested profs.   

[In the meantime, try to find the third man.]

 

 

Count Down to ICAM (the Vis)

                                                                                            

 

I am sure most readers know what the CISG is. I was surprised to learn that some are not aware of the International Commercial Arbitration Moot (ICAM) held in Vienna annually over the weekend and then into the week just prior to Easter. It is maybe the most rewarding experience I have had as a teacher. The organizers of the Moot release the problem on the first Friday of October. It is usually a spawling but somewhat realistic fact pattern,  Typically there are procedural issues and substantive issues dealing, obviously, with international contract law. Over two hundred teams from around the world gather for 4 days of prelims.  The top 64 then go into a single elimination tournament. 

At my school, like others, we organize a course around the Moot. In the fall, the students first have 5 weeks of regular class sessions on the CISG followed by an exam.  After that, the problem comes out and they have 4-6 weeks to write their briefs.  Finally, there are oral arguments. From those exercises, 4 to 6 students are selected to be on the team. (all students earn 3 credits whether they make the team or not) Those students must prepare a claimant's and a respondent's brief and practice twice a week until the competition. It requires dedication.  

There are a couple of drawbacks. First is it expensive to send students and a coach to Vienna. At Florida we have been fortunate to have support from the International Section of the State Bar, private donors, and the Law School. Second, the judging in Vienna can be hit and miss. In the four day premlinary period the abitrators (3 each per session) may apply different standards and are sometimes not well prepared. Thus, the goals be for the students must be to learn at much as they can, network, and enjoy, for a few days, interacting with students from all  over the world. The winning teams are always superb but some left out of the tournament may also be superb. 

I realize there are maybe only a handful of people out there who do not know of this opportunity but I've found it to be very worthwhile (and also hardwork)

ABA Academy Presents: Workshop on Bid Protests

Thursday,  June 26, 2014 1:00 PM - 2:30 PM ET Webinar 1.5 CLE credits requested $195 General Public $150 ABA Members $95 Sponsor Members Sponsor Section of Public Contract Law

Bid Protest 101: An Introduction to the Federal Bid Protest Process

This program will provide an introductory review on the federal procurement bid protest process, with a focus both on the procedural complexities of bid protest litigation, as well as a high-level review of the types of substantive legal issues that frequently arise in bid protests.

Register for this latest CLE specialty program from the American Bar Association
Too busy to attend? Pre-purchase the recorded program now.
		Audio CD-ROM Ships 7/17/14 Available at ShopABA.org

Jan Levine Earns Legal Writing's Highest Awards

We are delighted to congratulate Jan Levine, associate professor and director of Duquesne University's Legal Research & Writing program. Jan became the first professor to win, in the same year, the AALS Section on Legal Writing, Reasoning & Research Award and the Thomas F. Blackwell Memorial Award for Outstanding Achievement in the Field of Legal Writing. As former Freedman Fellows at Temple Law, the four of us owe Jan a substantial debt for his training and assistance

in entering the academy. Jan modeled for us the demand for excellence to which we aspire.  It is gratifying to see his worth recognized by others.

 

[Meredith R. Miller, Sheila Scheuerman (TortsProf Blog), Chris Robinette (TortsProf Blog) and Byron Stier (Mass Tort  Litigation Blog)].

SCOTUS to Hear Its First Investment Arbitration Case EVER!!

The U.S. Supreme Court is scheduled to hear oral arguments on December 2, 2013 in BG Group PLC v. Republic of Argentina.  Links related to the case can be found on the SCOTUSblog, including this fabulous introduction to the case from Professor Diane Marie Amann (pictured), the Emily and Ernest Woodruff Chair in International Law at the University of Georgia School of Law.  The issue in the case is whether, in disputes involving a multi-staged dispute resolution process, a court or the arbitrator determines whether a precondition to arbitration has been satisfied.

The International Dispute Resolution Committee of the DC Bar's International Law Section, in cosponsorship with the American Society of Internatioanl Law's Howard M. Holtzmann Research Center for the Study of International Arbitration and Conciliation and the Washington Foreign Law Society, and in cooperation with the International Arbitration Committee of the American Bar Association's Section of International Law and the International Committee of the American Bar Association's Section of Dispute Resolution, will host a luncheon program to discuss the case immediately following the oral argument.

SPEAKERS:

• George Bermann, Professor, Columbia Law School, and Chief Reporter for the forthcoming Restatement on International Commercial Arbitration
• Janis Brennan, Partner, Foley Hoag LLP, and Vice-Chair, DC Bar International Dispute Resolution Committee
• Jean Kalicki, Partner, Arnold & Porter LLP (Moderator)

Monday, December 2, 2013 - 12:30pm to 2:00pm

Arnold & Porter LLP

555 12th St NW

Washington, DC 20004-1200

 

[JT]

Quick Thoughts on George Mason LEC Workshop on the Economics of Contracting

I'm about to leave Fort Myers, Florida after a great weekend on Captiva Island, where I participated in the George Mason LEC Workshop for Law Professors on the Economics of Contracting. Economists sure know how to organize a workshop.  (By the way, the picture depicts a bird that was hanging out on the balcony of my hotel room).

Over at George Mason they understand incentives.  Participants pay a $500 deposit that is only refunded after all sessions (including dinners) are attended.  After attending all sessions, participants not only see a return of the deposit but additionally receive a $500 honorarium.  Lodging and all meals were covered and they couldn't have paid for better weather (on the day I got there the weather was about 70 degrees warmer than New York).  I am still waiting for someone to try to sell me a timeshare.

Broadly, the goal of the program is to expose legal academics to economics.  The homework (though voluminous) was thoughtfully compiled and the instruction was engaging.  Some participants were already fairly exposed to law and economics others (including myself) had tinkered on the margins in researching but had no background whatsoever.  I found the material and the teaching very accessible.

The discussion included contractual (and non-contractual) solutions to hold up problems and price readjustment.  We also discussed retail price maintenance and slotting fee contracts. I found the discussion of vertical integration most interesting, though I had to suspend my disbelief when told not to consider the liability implications of choosing to employ someone v. hire them as an indpendent contractor.  There were other times when I had to suspend disbelief about psychology and decisionmaking capacity.  So, I suppose this is the timeshare.  While I didn't buy it, I do feel enriched for having spent some time considering these problems through a classical economics lens.  

I highly recommend this and other George Mason programs to anyone with even a passing interest in economics.  I learned that reputation matters (though to varying degrees depending on which economists you read).  Whatever the case may be, George Mason deserves its excellent reputation for organizing these outstanding workshops.  Thanks!

[Meredith R. Miller]

ABA Program on 'Wrap Contracts

For those of you attending the ABA conference in Chicago this week, there is a CLE program on Clickwraps, Browsewraps and Why ESIGN Deserves a Bum Rap. The speakers are Mark J. Furletti of Ballard Spahr, Christine Poulon of PayPal and yours truly.  The panel is from (the unspeakable hour of) 8:00am-10:00am.  If any of you early risers are at the meeting in Chicago, stop by for an earful about the state of electronic contracts.

[Nancy Kim]

Maybe my imagination isn't that imaginative....

At the wonderful contracts conference this past weekend at Thomas Jefferson (yes, thanks again, Eniola), I learned that, when they excavated to build the school's fabulous new building, remains of a wooly mammoth were discovered.  Coincidentally, just this fall, my final exam concerned a contract for the sale of real property.  After contract but before closing, the seller had sprinkler repairs done on the lawn and the repair company discovered the skeleton of a dinosaur.  Neither buyer or seller was aware of the skeletal remains at the time of contract.  Seller wants to rescind.  Mutual mistake?

This semester we walked through a hypo about a lease that allows the tenants to keep one "household pet." "Household pet" is nowhere defined in the lease.  Tenant obtains a kangaroo to keep as a pet. Our task was to discuss how a court would go about figuring out whether a kangaroo is a "household pet."  I thought this imaginative until today, when this story came to my attention.  It doesn't answer the question whether a kangaroo is a "household pet," but it does suggest that maybe my imagination isn't that imaginative.

[Meredith R. Miller]

AALS Contracts Annual Meeting Program

If you are attending next week's AALS Annual Meeting, please join us for the Contract Section's program, New Voices in Contracts Scholarship, scheduled for Saturday, January 7, 2012, from 1:30 to 3:15 p.m., at the Marriott Wardman Park Hotel.  The program will feature three junior scholars whose proposals the selection committee chose from the many quality responses to our CFP.

In alphabetical order, the featured speakers and their topics are

Aditi Bagchi (University of Pennsylvania Law School), Parallel Contract;

Mohsen Manesh (University of Oregon School of Law), Contractual Freedom under Delaware Alternative Entity Law; and

Emmanuel Voyiakis (London School of Economics & Political Science, Department of Law), Contract Law and Reasons of Social Justice.

There will be a brief business meeting following the program.

I look forward to seeing many of you in less than two weeks.

[Keith A. Rowley]

AALS Contracts Section Call for Proposals

The Executive Committee of the AALS Contracts Section solicits proposals for the Section’s Annual Meeting program New Voices in Contracts Scholarship, scheduled for Saturday, January 7, 2012, from 1:30 to 3:15 p.m., at the Marriott Wardman Park Hotel.

Invitation: We invite proposals exploring any aspect of contract law, theory, policy, and practice writ large (including, but not limited to, bankruptcy/insolvency, commercial law, consumer law, dispute resolution regimes, family law, insurance law, legal systems, and restitution, in addition to more traditional contract topics) from a behavioral, cognitive, comparative, critical, doctrinal, economic, empirical, equitable, historical, institutional, interdisciplinary, jurisprudential, pedagogical, philosophical, policy-driven, political, or sociological perspective.  We will entertain proposals based on work in any stage of completion from formulation to a finished paper, but prefer proposals that are not based on work already published in a mainstream American academic law journal.

Program: Our goal is to provide a forum for contracts scholars who have been active in the field for ten years or less, especially those who are pre-tenured -- although we may consider proposals from more senior scholars whose work may not be widely known to the AALS Contracts Section's membership.  We will give some preference to proposers who have not recently been part of an AALS Contracts Section annual meeting program.  Depending on the number of proposals we receive and select, we may invite more seasoned contracts scholars whose expertise overlaps with one or more accepted proposals to serve as discussants for one or more presentations.

Submitting a Proposal: Please e-mail an abstract, précis, outline, draft, or paper to section chair Keith Rowley ([email protected]), chair-elect Tom Joo ([email protected]), and immediate past chair Lisa Bernstein ([email protected]) no later than 5:00 p.m. PST, Friday, December 2, 2011, indicating how best to contact you between then and December 10.  While we will reserve at least one spot for submissions received by the foregoing deadline (and may consider late proposals), we will begin reviewing proposals as we receive them and may begin extending offers as early as Wednesday, November 30th.

[Keith A. Rowley]

AALS Contracts Section Annual Meeting Program

Speaking of next week's AALS annual meeting, please plan to attend the Contracts Section's annual meeting program, Navigating Lombard Street in a Fog: Seeking (or Ignoring) Landmarks of Intent and Context, next Thursday, January 6th, from 2:00 to 5:00 p.m., in the Divisadero Room, Second Floor Level, Parc 55 Wyndham San Francisco Union Square.

The program will consist of two roundtables, during and after which we hope to elicit audience comments and questions.  A brief business meeting will follow the program's conclusion.

Intent to Contract and to be Bound by Specific Terms

Thomas W. Joo (UC-Davis), Moderator

Gregory M. Klass (Georgetown), Intent to Contract in Theory and Practice

Qi (George) Zhou (Sheffield), The Use of Implied Intention in English Contract Law

Tal Kastner (J.D., Yale; Ph.D. candidate (English), Princeton), The Persisting Ideal of Agreement in an Age of Boilerplate

Nancy S. Kim (California Western, visiting at Ohio State), Three Faces of Intent in Contract Formation

Jarrod Wong (U. of Pacific/McGeorge), Class Arbitration Waivers: A Case Study of Constructive Intent and the Limits of a Consent-Based Theory of Contract Law

 

Intended Meaning (and Effect) of "Agreed" Terms

Keith A. Rowley (UNLV), Moderator

Peter Linzer (Houston), The Problem with Plain Meaning and the Distinction Between Actual Intent in Contract Interpretation and Originalism in Constitutional Interpretation

Steven J. Burton (Iowa), Context, Plain Meaning, and the Objective Theory of Contract Interpretation

Adam B. Badawi (Washington U.), Interpretive Preferences and the Limits of the New Formalism

Michelle E. Boardman (George Mason), Insuring Understanding: The Tested Language Defense

 

[KAR]

Reminder: AALS Contracts Section Call for Proposals

The Executive Committee of the AALS Contracts Section solicits proposals for the Section’s Annual Meeting program Navigating Lombard Street in a Fog: Seeking (or Ignoring) Landmarks of Intent and Context, scheduled for Thursday, January 6, 2011 from 2:00 to 5:00 p.m.

The Topic: Consent supposedly distinguishes contracts from other private or public rights and duties by requiring that each contracting party manifest its intent, at the time it enters into the contract, to be bound to the contract.  This program will explore:

♥   whether intent – objectively manifested or otherwise – is or should be an integral part of contemporary contract law, practice, and theory;

♥   the extent to which context affects or should affect a party’s ability to consent, the significance of its manifested consent, or both; and

♥   assuming that intent and context matter, how best to determine and give effect to the parties’ intent in the context of their transaction.

We are particularly interested in fostering discussion of (1) intent to be bound, (2) intent to be bound to specific terms, (3) the intended meaning of agreed terms, (4) intended circumstances under which a party may avoid or delay performing their duties, and (5) intended remedies available or foreclosed if a party does not perform as agreed under circumstances that neither invite nor allow avoidance or delay.

The Program: Inspired by last year’s lively roundtable discussion of pedagogical approaches and by a fairly robust body of recent scholarship relevant to our topic, and paying homage to the increasingly rare, but fondly remembered, two-semester Contracts course, we seek speakers for two (or more) discussion panels, which the planning subcommittee will organize topically.  We have secured a 180-minute time slot, which should facilitate a broader, more diverse, and more participatory discussion than the typical 100-minute AALS program permits.

Publication: While we hope that this program will ignite or further fuel already-burning scholarly interest across its broad scope, we do not require an original paper proposal and have not pre-arranged publication of any papers discussed at or arising from the program (although we may explore publishing a program transcript if we can find a suitable venue and all of the speakers consent).

Submitting a Proposal: If you would like to participate as a panelist, please contact program chair Keith Rowley ([email protected]), no later than 12:00 p.m. PST, Monday, December 6th, indicating the aspect(s) of the topic that most interest(s) you; from what perspective(s) you propose to discuss it/them; if applicable, the scholarly work – yours or someone else’s, published or in progress – you plan to draw upon; and how best to contact you between now and December 10.  While the program planning subcommittee will reserve some spots for submissions received by the foregoing deadline (and may consider late proposals), we will begin to review proposals as we receive them and may begin extending offers as early as Monday, November 29th.

We apologize for the short notice, but hope to capitalize on it by attracting participants who might have been unwilling or unable to commit themselves in September or early October or who, like some of us, were stymied by the ongoing labor strife at the AALS headquarters hotel.  We are meeting; we are meeting elsewhere; and we ask that you help make this a well-attended, informative, and interactive program.

Thank you for your consideration.

[Keith A. Rowley]

Drafting executive compensation contracts

There aren't many areas these days where contracts have to be more carefully crafted than that of executive compensation.  So you may be interested in a webinar that BNA is putting on next week.  Here's the info:

Living on the Edge: Avoiding 409A and 162(m) Pitfalls in a Shifting Environment
Thursday, December 09, 2010
1:00 PM - 2:30 PM ET

Agenda: This BNA webinar will explain how to approach the design and administration of your executive compensation programs (including employment and severance agreements) and avoid the ever-tightening net of tax penalties under Section 409A and 162(m). It will cover common "traps for the unwary" and foot faults that may result in unintentional violations of Sections 409A and 162(m) and provide practical suggestions to guide decision making in these areas to optimize compliance. It will focus on areas where compliance has proven particularly difficult and flag common situations that present the highest risk of IRS challenge. Attendees will acquire practical information on how to avoid common 409A and 162(m) violations, how to spot the violations when they have occurred, how to correct violations when possible, and how to assess penalties when the violation cannot be corrected. Since attendees are often not the only ones in their organizations responsible for the oversight of matters that can lead to 409A and 162(m) violations, attendees will leave with suggestions and tools to aid them in maximizing success by coordinating with others throughout their organizations.

Program Highlights:

• Traps for the unwary -- the 10 most common situations that risk 409A or 162(m) violations, and how to recognize and deal with them
• Common foot faults - how drafting or operational mistakes that seem minor can result in serious tax penalties
• Implementing compliance procedures, including coordination within the organization
• Presentation of practical tips for spotting compliance issues requiring legal review
• What to do if a violation is discovered - panic, corrections, penalties, gross-ups

FGS

Now in Print

Douglas G. Baird, The Holmesian Bad Man's First Critic, 44 Tulsa L. Rev. 739 (2009).

Matthew K. Bell, Forget What You Intended: Surprisingly Strict Liability and COGSA Versus Carmack, 37 Transp. L.J. 57 (2010).

Molly Brooks, The "Seller-Friendly" Approach to MAC Clause Analysis Should be Replaced by a "Reality-Friendly" Approach, 87 U. Det. Mercy L. Rev. 83 (2010).

Edwin Butterfoss & H. Allen Blair, Where is Emily Litella When You Need Her?: The Unsuccessful Effort to Craft a General Theory of Obligation of Promise for Benefit Received, 28 Quinnipiac L. Rev. 385 (2010).

David Cabrelli & Rebecca Zahn, Challenging Unfair Terms: Some Recent Developments, [2010] Jurid. Rev. 115.

Ross Dillon, A Bale of Wool, [2010] N.Z.L.J. 145.

Lisa A. Fortin, Note, Why There Should Be a Duty to Mitigate Liquidated Damages Clauses, 38 Hofstra L. Rev. 285 (2009).*

James Gordley, The Origins of Sale: Some Lessons from the Romans, 84 Tul. L. Rev. 1437 (2010).

Sam S. Han, Predicting the Enforceability of Browse-wrap Agreements in Ohio, 36 Ohio N.U. L. Rev. 31 (2010).

Robert A. Hillman & Maureen A. O'Rourke, Principles of the Law of Software Contracts: Some Highlights, 84 Tul. L. Rev. 1519 (2010).**

Kristin L. Hines, Note, Examining Contractual Models for Transferring Environmental Liability: How They Work and Where They are Headed, 11 Vt. J. Envtl. L. 395 (2009).

Martin A. Hogg, Promise: The Neglected Obligation in European Private Law, 59 Int'l & Comp. L.Q. 461 (2010).

Joshua Karton, Contract Law in International Commercial Arbitration: The Case of Suspension of Performance, 58 Int'l & Comp. L.Q. 863 (2009).

Nancy S. Kim, Expanding the Scope of the Principles of the Law of Software Contracts to Include Digital Content, 84 Tul. L. Rev. 1595 (2010).**

Juli Loden, Comment, The Earth is Not Flat, and "A Quasi Contract is Not a Contract at All" -- Tennessee Restitution and Unjust Enrichment Law, 11 Transactions: Tenn. J. Bus. L. 167 (2010).

Susana López-Bayón & Manuel González-Díaz, Indefinite Contract Duration: Evidence from Electronics Subcontracting, 30 Int'l Rev. L. & Econ. 145 (2010).

Andrew C. W. Lund, Opting Out of Good Faith, 37 Fla. St. L. Rev. 393 (2010).

Larry A. DiMatteo & Samuel Flaks, Beyond Rules, 47 Hous. L. Rev. 297 (2010).

Juliet M. Moringiello & William L. Reynolds, What's Software Got to Do with It? The ALIPrinciples of the Law of Software Contracts, 84 Tul. L. Rev. 1541 (2010).**

Otto Sandrock, The Choice Between Forum Selection, Mediation and Arbitration clauses: European Perspectives, 20 Am. Rev. Int'l Arb. 7 (2009).

Hannibal Travis, The Principles of the Law of Software Contracts: At Odds with Copyright, Consumer, and Employment Law?, 84 Tul L. Rev. 1557 (2010).**

Hal R. Varian, Computer Mediated Transactions, 100 Am. Econ. Rev. 1 (2010).

Daniel A. Verrett, Comment, Delay Damages Sufficient for a Maritime Lien?: The Economic Loss Doctrine Brings Certainty to the High Seas, 47 Hous. L. Rev. 463 (2010).

Kate Zdrojeski, Note, International Ice Hockey: Player Poaching and Contract Dispute, 42 Case W. J. Int'l L. 775 (2010).

* - Despite a somewhat awkward title -- the point is to mitigate damages, not mitigate clauses -- this Note is worth a read, arguing that, inter alia, preventing economic waste, a penalty on the breaching party, and windfall profits for the nonbreaching party, as well as promoting consistent remedial principles, should oblige a court (or arbitrator) to not mechanistically assess the damages to which the parties agreed in their contract.

** - These four essays comprise a mini-symposium on the ALI's Principles of the Law of Software Contracts, arising out of a program I organized and moderated at January's AALS Annual Meeting in New Orleans.  (Yes, that's January 2010.)  Bob Hillman, Maureen O'Rourke, and Juliet Moringiello spoke at the program, as did Amy Boss and Florencia Marotta-Wurgler.  Nancy Kim and Hannibal Travis responded to a supplemental call for papers to accompany those the program speakers were contributing to the print symposium.

For those who complain about the sometimes sluggish processes of student-edited law journals (for example here, including the comments), the program was on January 9, final drafts were due February 15, and the print issue arrived in my campus mailbox on June 2.  Unfortunately, this pace proved too brisk for several authors lined up to contribute to the print symposium (including yours truly).  I hope to collect those authors' contributions, revised-as-appropriate versions of these four essays and other essays and articles first appearing elsewhere, and some original shorter response and reply pieces, in a book coming soon -- at least by astronomical or paleontological standards -- from an as-yet-undisclosed legal academic publisher.

[Keith A. Rowley]

Spring Contracts Conference: Day One

The 2010 Spring Contracts Conference begins today at UNLV's William S. Boyd School of Law.  Here's Friday's line-up:

The Contract Law System and Power – Past, Present, and Future

Chair: Jay M. Feinman (Rutgers-Camden)

Hila Keren (Hebrew U. of Jerusalem), Considering Affective Consideration

Nancy S. Kim (Cal Western), ‘Wrap Contracts as Sword, Shield, Crook, and Drawbridge

Amy J. Schmitz (Colorado), Pizza-Box Contracting: An Empirical Exploration of Consent

Danielle Kie Hart (Southwestern), Smoke, Mirrors & Contract Law

Incomplete Information and Contract Law

Chair: Keith A. Rowley (UNLV)

Robert Anderson (Pepperdine), Information, Incentives, and Disclosure in the Law of Contracts

H. Allen Blair (Hamline), No-Reliance Clauses

Yair Listokin (Yale), Bayesian Interpretation

Shawn J. Bayern (Florida State), Rational Ignorance, Rational Closed-Mindedness, and Modern Economic Formalism in Contract Law

Contract Law’s Intersection with Business Law

Chair: Nancy B. Rapoport (UNLV)

Daniel S. Kleinberger (William Mitchell), Battle Report from the Undiscovered Territory – The Law of “Contractual Organizations” Continues its Silent War on the Common Law of Contract

Andrew A. Schwartz (Colorado), A “Standard Clause Analysis” of the Frustration Doctrine and the Material Adverse Change Clause

Lydie N. Pierre-Louis (St. Thomas (FL)), Mini-Tender Offers: The Lack of Federal Jurisdiction and the Failure of Fundamental Contract Law Principles to Protect Investors

Keynote: Omri Ben-Shahar (U. of Chicago), The Failure of Mandated Disclosure

Arbitration and Unconscionability in Rent-a-Center West v. Jackson and Elsewhere

Chair: Jean R. Sternlight (UNLV)

Charles L. Knapp (UC-Hastings), Blowing the Whistle on Mandatory Arbitration: Unconscionability as a Signaling Device

Karen Halverson Cross (John Marshall (IL)), Letting the Arbitrator Decide?  Unconscionability and the Allocation of Authority Between Courts and Arbitrators

Christopher R. Drahozal (Kansas), Rent-A-Center and Institutional Arbitration Rules

Thomas J. Stipanowich (Pepperdine), Contracts and Conflict Management: Another Look

Forming Contracts and Similar Relationships

Chair: James W. Fox, Jr. (Stetson)

Michael Pratt (Queen's U. (Ontario)), What is a Promise?

Val D. Ricks (South Texas), The Continued Relevance of Consideration

Janet Ainsworth (Seattle), Beyond Status and Contract: Relational Estoppel as a Source of Rights and Obligations in Intimate Relationships

Andrea B. Carroll (LSU), Reviving Proxy Marriage

Vive la Différence!: Comparative Contract Theory

Chair: Daniel D. Barnhizer (Michigan State)

Robin J. Effron (Brooklyn), Revisiting The Death of Contract: Gilmore’s Thesis in Comparative Perspective

Wayne R. Barnes (Texas Wesleyan), French Subjective Theory of Contract: Separating Rhetoric from Reality

Tadas Klimas (Kaunas, Lithuania), Lessons American and Continental Contract Theory Can Teach One Another

Franklin G. Snyder (Texas Wesleyan), Cross-Cultural Adoption of Legal Rules: The Case ofHadley v. Baxendale

[Keith A. Rowley]