ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Monday, January 11, 2021

In Memorian: John (Andy) Spanogle

Professor Emeritus Dee Pridgen has posted a tribute on the Consumer Law & Policy Blog.  We reproduce it here:

Dee Pridgen's Tribute to Andy Spanogle

Tribute to Andy Spanogle, 1934-2020.

By Dee Pridgen, Professor Emeritus, University of Wyoming College of Law

I was very saddened to learn the news that my dear friend, and coauthor, Andy (John A.) Spanogle, had passed away in December of last year.  He was a towering figure in the law, especially in the fields of consumer law and international business transactions. 

Our paths first crossed in the late 1980’s, when Andy and his coauthor Ralph Rohner (who just left us last summer) asked me to join them on the second edition of their pioneering casebook, Consumer Law:  Cases and Materials.  The casebook was the first of its kind in a then nascent field.  In the preface to that first edition in 1979, Andy and Ralph relayed their rather apt and prophetic assumptions behind the text:

  • Consumer protection statutes and caselaw doctrines are pervasive within the legal structure.
  • They are growing.
  • They are not likely to disappear, but are more likely to increase.
  • Even though they concern widely disparate subject-matter, there are likely to be common doctrinal and practical threads running through them, and it is our job to try to discover those threads.

Consumer law was a thread that ran through Andy’s own professional life.  He was an advocate for the core federal consumer credit laws passed by Congress in the 1970’s, including the $50 limit on consumer liability for unauthorized use of credit cards which we still benefit from today.  He remained involved in and was a valued contributor to the 2nd, 3rd and 4th editions of the Consumer Law casebook.  He also generously supported the National Consumer Law Center, especially in the founding of the Spanogle Institute for Consumer Advocacy, which opened in Washington, D.C. in 2017.

In addition to his influential work in the field of consumer law, Andy coauthored groundbreaking casebooks, treatises and articles in International Business Transactions and International Sales Law.  While teaching law at several different law schools, most recently at George Washington University in Washington, D.C., he also traveled the world as a consultant and teacher.  I know he loved teaching because he continued to serve in the law school classroom as a part-time faculty member for years after he “retired.”  His many students appreciated him very much.

Andy was sharp, witty and had an unforgettable deep-voiced laugh which he employed to good effect on many occasions.  He also sang at his church and in community groups, a talent that I wish I had been able to witness myself. 

Although separated by our geographic locations, Andy remained a good mentor, colleague, and friend to me over the years.  He will not be forgotten.

Jeff Sovern also posted a brief note on the Consumer Law & Policy Blog, linking to an obituary for John "Andy" Spanogle, a contracts and consumer law pioneer who passed last month.  We join the contracts and consumer law community in mourning his passage.

January 11, 2021 in Contract Profs | Permalink | Comments (0)

Friday, January 8, 2021

Weekend Frivolity: Flash Fiction

On Losing My Wife to a Younger Man
 
At the beginning of the pandemic, my wife took up with a younger man. As is often the case, she met him through her sister who, innocently, I suppose, thought my wife would enjoy the New York Times’ Spelling Bee puzzle. So it was that my wife transferred her affections to Sam Ezersky.
 
“Oooh,” she exclaimed one morning, while taking a break from solving Sam Ezersky’s puzzle to read an article about Sam Ezersky, “he’s only 24!” I pretended not to know who she was talking about. “And I think he’s Jewish,” she continued, twisting the knife.
 
“What’s his name?” I lied. She told me. “Could be Polish,” I speculated. She was too engrossed in her article about Sam Ezersky to engage.
 
Spelling BeeMonths passed. We settled into our shelter-in-place routine. My wife’s routine was to spend some time every morning in her favorite chair, attended to by one or more cats, and to gather up the precious baubles that Sam had left for her. Making it to “genius” was her daily goal, but her sister had progressed and now aspired to the occasional Queen Bee. Thus my wife came to spend more and more time each day with Sam in the hopes of finding the last morsel of booty that he had hidden behind some unpropitious consonants or in the plain sight of an ungainly compound consisting of two familiar words.
 
I decided to join her, and she, at first reluctantly, accepted my assistance in exploring the depths of her new beloved. I would study the puzzle for hours before she woke up and then, when she was stumped on the pangram, I would glance over her shoulder and offer “would ‘uncommonly’ work”? She would wriggle with glee, embrace me and say encouragingly, “I never would have found that!”
 
Spelling Bee Screen ShotAnd so we settled into jointly probing Sam’s consciousness. We work independently on the puzzle and then, when we are both exhausted from the effort, we combine words. We have become familiar with Sam’s quirks. He seems to like Mexican and Indian foods, and we have learned his preferred spellings of Yiddish words. He takes “boho” and “loco” but insists that “yoyo” is hyphenated and therefore out of bounds. He can be latitudinous about spelling, taking both “yech” and “yecch,” but sometimes his selection criteria completely baffle us. We forgive him when the last puzzle piece clicks into place. We share an appreciative smile and shrug, “Dunno.” Some days, it is enough if Sam’s puzzle considers us a “genius;” other days, we conclude that we are within reach of Queen Bee and redouble our efforts.
 
After a few months, I noticed that my wife sometimes gets angry at Sam. “I hate it when he puts an “i” in the middle,” she remarked one morning, quite bitterly. I clucked my tongue and agreed. More recently, it seems Sam can do nothing right by her. She hates it when there are too few words, when there are too many vowels, when there is a “k” without a “c” or a “g” without an “h.” One night as we were falling asleep, after a white-knuckled struggle to make it to “genius,” my wife practically hissed, “Would it kill him to give us an ‘s’?”
 
These days, I’m feeling pretty good about having Sam in our lives. Working on Spelling Bee is one or our common projects. We both have independent careers, and hers involves a lot of confidential information. Much of her work consists of interactions and experiences that she cannot tell me about, and my life as a professor is fulfilling for me but not exactly action-packed during COVID, since I don’t interact with my colleagues very often. Neither professional ethics nor rectitude would stop me from blabbing, but these days, I just don’t have any gossip to share with her.
 
On good days, Sam is a pal. We have the satisfaction of completing a project. We feel good about ourselves when we make it to genius and great about ourselves when we hit Queen Bee. Along the way, we can share a chuckle over our pal’s foibles. “Ratatat” again! On bad days, my wife despairs. “I think I’m going to take a break from this puzzle for a while,” she threatens.
 
Don’t worry, Sam. I’ve got your back.

January 8, 2021 in Miscellaneous | Permalink | Comments (0)

Students' COVID-Based Against Rensselaer Polytechnic Can Proceed

RPI 1876
Last month, Judge David Hurd denied a motion to dismiss brought by defendant Rensselaer Polytechnic Institute (RPI) in a suit brought by some of its students.  The plaintiffs allege that RPI committed breach of contract and various torts by providing a lower-quality education, due to restrictions dictated by RPI's response to the pandemic, than plaintiffs had been promised.    The students seek as damages the difference between the value of on-campus education and the online program in which they have participated.  

RPI defended against the breach of contract claim by pointing to case law indicating that "courts have a restricted role in reviewing controversies involving colleges and universities."  In addition, RPI alleged that plaintiffs could point to no contractual promise that RPI had made to them.  The court held that plaintiffs' first argument, that the university made an implied promise of on-campus education, was "esoteric" and did not withstand scrutiny.  But the court was more sympathetic to plaintiffs' second argument, that RPI's catalogues and circulars describe a mandatory on-campus learning experience as integral to its program.  The court was unpersuaded by RPI's argument that the documents in question were aspirational, pointing to the documents' repeated use of the word "will."  RPI seems to be a victim of its own good marketing.  As the court noted, RPI made "some bold claims . .  . about its in-person programming and hammered repeatedly on the benefits of those programs."  

The court also rejected RPI's attempt to characterize plaintiffs' breach of contract claim as an impermissible educational malpractice claim in disguise.  New York permits no such claims, but plaintiffs are not denying that they were being educated.  They are claiming that they did not get full value for their tuition payments, and tuition covers more than the right to take classes. Plaintiffs are not alleging that they received inferior instruction, nor do they question whether RPI made the right decision in moving to online education.  Even if RPI did everything right, that still does not mean that it delivered on its contractual promises.  RPI's arguments that it too has suffered economically from the pandemic and did not profit from its decision to move classes online were thus unavailing.

The court also permitted plaintiffs' alternative claims of unjust enrichment and promissory estoppel to survive.  It is not clear to me, given that plaintiffs do not allege an inferior education or that RPI somehow saved money by offering online education during the pandemic, how the plaintiffs intend to show compensable harm based on either breach of contract or unjust enrichment.  I'm also not sure how a class, as plaintiffs seek class certification, could show detrimental reliance.   Commonality issues would abound.  But those are  questions for another day.

All educators should watch this cases (and like cases) carefully.  University marketing departments might have to move from clear promises to puffery if they want to avoid exposure to similar claims going forward.

January 8, 2021 in Recent Cases | Permalink | Comments (0)

Senator Josh Hawley's Contract with Simon & Schuster

Josh_HawleyAs the New York Times reports, Simon & Schuster has decided not to publish Senator Josh Hawley's book "The Tyranny of Big Tech."  According to the Times, Simon & Schuster explained that, while it likes to present different viewpoints, "we take seriously our larger public responsibility as citizens, and cannot support Senator Hawley after his role in what became a dangerous threat.”  Simon & Schuster regularly publishes books by and about political figures, including books critical of the current President by Bob Woodward, Mary L. Trump, and John Bolton, and books supporting the current President by Sean Hannity and Tucker Carlson.

In 2017, Simon & Schuster similarly withdrew from its commitment to publish a book by right-wing provocateur Milo Yiannopoulos.  Yiannopoulos sued, but later dropped the suit.   Senator Hawley (above, right) seems to be headed down the same path.  He Tweeted out his response to the "woke mob" at Simon & Schuster as follows:

Image

Josh Hawley is a graduate of Yale Law School.  That should mean that he is off-the-charts smart in testable ways.  And perhaps this is a very smart thing for a politician to say in order to appeal to people on Twitter who don't know the difference between contractual rights and First Amendment rights.  This blog is not the Senator's target audience, but for what it's worth we are not impressed.

Shall we start with "Orwellian?"  There is nothing Orwellian about what Simon & Schuster has done.  It is not conflating black and white, day and night, lies and truth, war and peace.  It's not clear why Senator Hawley accuses Simon & Schuster of having "redefined" Hawley's conduct as "sedition."  The company's statement doesn't mention sedition.  But you can check out 18 U.S.C. § 2834 and decide for yourself whether the shoe fits.  

Simon & Schuster has decided to withdraw from a contractual obligation because it disapproves of the Senator's actions.  It's a private corporation; it knows that a contract entails a promise to perform or to pay damages.  It apparently stands ready to do the latter.  Of course, it may not be necessary for  Simon & Schuster to pay damages, because Senator Hawley may be able to mitigate his damages by publishing with another publisher.  

But there is something Orwellian about Senator Hawley's claim that he was "representing his constituents" by challenging the results of elections in other states.  Senator Hawley's senior colleague, Roy Blunt, did not think his senatorial duties required him to challenge the certification of ballots in the Presidential election.  Knowing everything Senator Hawley knows and sharing his political perspective, Senator Blunt, siding with 90 judges who had reviewed the claims, concluded that there was insufficient evidence to sustain objections to the ballots.  The Kansas City Star has concluded that Senator Hawley has "blood on his hands" and calls for him to resign. 

Senator Hawley next says that this is no mere contract dispute; it's an assault on the First Amendment.  It's not clear that it is a contract dispute.  It likely is a breach of contract, but Simon & Schuster may not dispute that it has breached.  It may allow Senator Hawley to retain his advance, and both parties will move on. 

Simon & Schuster has not assaulted the First Amendment because the First Amendment only protects us against government infringements of our free speech rights.  Simon & Schuster is not the government.  It doesn't have to publish speech of which it disapproves.  It can "cancel" Senator Hawley, if by "cancel" Senator Hawley means shun and disapprove of on moral or political grounds. 

I very much doubt that Senator Hawley will see Simon & Schuster in court.  He does not mean that literally.  He does not mean it figuratively.  This is all just theater.  Fortunately, this variety of theater is not likely to result in bloodshed.  For Senator Hawley, it's just a fundraising opportunity. 

Smart guy.

January 8, 2021 in Books, Celebrity Contracts, Commentary, Current Affairs, In the News | Permalink | Comments (7)

Wednesday, January 6, 2021

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
 
AALS 2021Junior 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

January 6, 2021 in Conferences, Contract Profs | Permalink | Comments (0)

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
 
AALS 2021Best 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

January 6, 2021 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Tuesday, January 5, 2021

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
 
AALS 2021Rapid 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.

January 5, 2021 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

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

AALS 2021This 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

January 5, 2021 in Conferences, Contract Profs, Recent Scholarship | Permalink | Comments (0)

Hot Topic at AALS Today at 11:00 AM EST

AALS 2021Section 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

January 5, 2021 in Conferences, Contract Profs, Recent Scholarship, Web/Tech | Permalink | Comments (0)

Help Wanted: Loyola University New Orleans

Not exactly contracts, but if you take a nexus-of-contracts approach to business associations, it's certainly contract-adjacent (or you can follow Robert Anderson IV and read some other blog).

Loyola University New Orleans is now accepting applications for two tenure track or tenured faculty members to begin August 1, 2021. We are seeking candidates with expertise in the following substantive areas: (1) business and tax law; and (2) Louisiana civil law. We especially welcome applications from candidates who will add to the diversity of our educational community and who have demonstrated expertise in working with a diverse student body. J.D. or equivalent is required. For the civil law position, we also welcome applications from civil law scholars outside Louisiana. 

If you are interested in applying, please send your curriculum vitae and cover letter to resumes@loyno.edu. Inquiries may be sent to the Chair of the Appointments Committee, Professor Bobby Harges at harges@loyno.edu

About the College of Law The College of Law is located in a largely residential area of New Orleans, one of the most culturally diverse cities in the United States, with unique cuisine, numerous museums and historical sites, and a flourishing arts community. New Orleans is also the seat of the United States Fifth Circuit Court of Appeals, the Federal District Court for the Eastern District of Louisiana, the Louisiana Supreme Court, and the Louisiana Fourth Circuit Court of Appeals, as well as other lower courts. The College of Law has a student population of approximately 500 students, over forty faculty members, active clinics that have spearheaded numerous social justice reform efforts, and summer programs in Europe and Central America. Its location in Louisiana, one of the world’s best known “mixed jurisdictions,” provides unique opportunities for comparative and international law scholarship. 

Loyola University New Orleans is an educational institution dedicated to fostering intellectual achievement, personal development, and social responsibility, and it is committed to the human dignity and worth of every person. Loyola University New Orleans strives to create and maintain a working and learning environment in which individuals are treated with dignity, decency, and respect. The University acknowledges and values individual differences, including, but not limited to, the dimensions of race; color; sex; national origin; age; religion; gender identity; transgender status; sexual orientation; ethnicity; disability status; and marital status and citizenship status. We recognize that diversity enriches our social interactions and intellectual lives, and we strongly encourage applications from individuals who will bring diversity to the College of Law. 

January 5, 2021 in Help Wanted | Permalink | Comments (0)

Monday, January 4, 2021

Teaching Assistants: Yonathan A. Arbel and Andrew Toler, ALLCAPS

Arbel-Yonathan TolerBased on the assumption that text in contracts of adhesion written in ALLCAPS is more likely to be noticed by consumers, courts are more likely to give effect to terms in ALLCAPS.  They assume consent to ALLCAPS terms because the terms are deemed to have been conspicuously displayed. This assumption has never been tested. . . .

Until now.

Surprise!  Yonathan Arbel (left) and Andrew Toler (right) have determined that, at least as currently deployed, ALLCAPS text is no more effective in relaying information to consumers than ordinary text.  Statutes require that certain disclosures or provisions be printed in ALLCAPS; courts tend to enforce text in ALLCAPS that they would not enforce if that same text was not capitalized.  The authors show that there is no basis for such a distinction other than conjecture.  You can find their paper, published in the Journal of Empirical Legal Studies, here or on your preferred legal database.

Arbel and Toler first review the history of ALLCAPS, which arose as a solution to the problems posed by fine print.  They next review standard form contracts, collecting 500 contracts from popular companies that offer products to consumers, such as Uber and Amazon.  They find that 77 percent of such contracts contain at least one ALLCAPS provision.  Finally, they conducted a study with 570 participants to test whether placing terms in ALLCAPS makes it more likely that consumers will read those terms.  They presented contracts to the participants and then tested to see whether the participants in one group could better recall the terms in ALLCAPS than a second group presented with the same contract without an ALLCAPS provision.  They found that placing a provision in ALLCAPS has no effect on comprehension or retention.  In fact, participants over 55 understood the ALLCAPS terms 29% worse than they would have understood those terms if they were not capitalized.

The authors are cautious about the implications of their work.  They cannot say that ALLCAPS are never effective in drawing attention to contractual language; they can only say that the standard usage of ALLCAPS in consumer contracts does not have the desired effect.  There are alternatives.  Boldface text does seem to have a positive effect on readers' retention of the highlighted text.  The authors accordingly recommend that courts should stop enforcing ALLCAPS provisions that they would not enforce if those same provisions were not in ALLCAPS.  The authors do not say anything about revising statutory provisions that require that certain disclosures or provisions be in ALLCAPS, but such a recommendation would seem to be supported by their study.

The piece is highly accessible.  One could assign it to 1Ls without any concern that they will be intimidated by the authors' empiricism.  In the alternative, as this post suggests, the article can be quickly summarized.  Its message is simple, but the piece packs a considerable normative punch.  Courts and legislatures act as though putting terms in ALLCAPS provides consumers with effective notice, but they never put that assumption to the test.  The authors have done so, and ALLCAPS failed the test.  

January 4, 2021 in Contract Profs, Recent Scholarship, Teaching | Permalink | Comments (0)

Thursday, December 31, 2020

Weekend Frivolity: New Year's Edition

A tribute to the other heroes who helped us make it through 2020: USPS, FedEx, UPS and other people who deliver our vital packages.  Happy New Year to all!

#1

#2

#3

December 31, 2020 in Miscellaneous | Permalink | Comments (1)

Open Source Materials for Consumer Law Courses

Luke_herrineWe are happy to share with our readers a wonderful New Year's gift!

For those of you considering teaching consumer law courses, Luke Herrine (pictured) has just made it much easier for you to do so by posting his online casebook here.

Luke also points out that other, related materials are also available online, including Vijay Raghavan's Consumer Finance Law casebook.

Happy New Year!

December 31, 2020 in Contract Profs, Teaching | Permalink | Comments (0)

Wednesday, December 30, 2020

Contracts Issues in JLM v. Hayley Paige Gutman

Rubens Second Wife
This painting of Rubens' second wife in her wedding gown contains no intellectual property belonging to JLM Couture

We don't write much about fashion in this space.  In a case we may have mentioned before, Judge Cardozo was downright contemptuous of the notion that Lady Duff-Gordon might be engaged in something akin to artistry.  No judge today would write of a fashion designer this way:

The defendant styles herself "a creator of fashions." Her favor helps a sale. Manufacturers of dresses, millinery and like articles are glad to pay for a certificate of her approval. The things which she designs, fabrics, parasols and what not, have a new value in the public mind when issued in her name. 

Today fashion designers win respect as entrepreneurs as well as artists, which just makes the law suits all the more complicated.  As reported here on thefashionlaw.com, JLM Coutour (JLM), a major player in the world of bridal gowns, is suing one of its designers, Hayley Paige Gutman (Ms. Gutman).  On information and belief (I don't follow fashion any more than Cardozo did), Ms. Gutman is a big deal, and her designs have been featured on the television shows, Say Yes to the Dress and Say Yes to America.

The complaint, which you can find here, raises interesting questions about intellectual property law and its interaction with social media, because the intellectual property at issue is the defendant's name, or variants of it, and various media sites and web domains that JLM's claims that its marketing department created but which also bear defendant's name.  Our value added is to talk about the contracts issues in the case.

Ms Gutman began her association with JLM in 2011.  According to the complaint, she was hired as a designer "on an exclusive basis."  The original five-year employment contract was extended in 2014 and again in 2019 and now runs through 2022.  Pursuant to § 10 of that agreement, JLM had the exclusive, irrevocable, and perpetual world-wide right to use Ms. Gutman's name and all variants thereof in connection with her designs.  In § 9 of the employment contract, Ms. Gutman agreed to a two-year non-compete, not to solicit JLM employees, and not to disclose any of JLM's confidential information.

JLM invested over $4 million on the Hayley Paige brand since 2012.  As evidence of the success of its marketing campaigns, JLM points out that its social media platforms grew from 22,000 followers in 2014 to over one million today.  In order to provide some sense of scale, we note that the ContractsProf Blog's Twitter account has over 200 followers.  Just sayin'.

In November 2019, Ms. Gutman began using her own name on social media accounts that JLM did not control.  When JLM objected, Ms. Gutman changed passwords on JLM Instagram accounts in her name and essentially took them over.  Ms. Gutman continued to work for JLM, but she insisted that the social media accounts were her personal accounts and she refused to relinquish control.  She posted images, text, and videos of which JLM did not approve.  JLM denies that these accounts are Ms. Gutman's personal accounts, pointing out that she has two other Instagram accounts (but one apparently belongs to her dog, so . . . ).  After a year of negotiations, JLM responded by getting a court order returning control of the accounts to JLM and blocking Ms. Gutman's access.  

Last week, Ms. Gutman announced her resignation and gave her version of the relevant facts on a separate Instagram account.  You can watch her resignation video here.  It is emotional and a bit raw.   In addition to providing the perspective of a party who feels bullied by an employer that is trafficking in her name and preventing her from using it, she also provides the sage advice to anyone considering signing an employment contract -- GET A LAWYER!

It's a really interesting suit that illustrates in a really pointed way the power of contractual language and how even people with considerable market power and thus considerable bargaining power can be made to feel powerless -- and may actually be powerless -- to control the use of even their own names.

December 30, 2020 in Commentary, Current Affairs, Recent Cases | Permalink | Comments (0)

Tuesday, December 29, 2020

Contracts Issues in The Queen's Gambit

Staunton_chess_setIf you haven't yet seen The Queen's Gambit, I envy you.  You have something to look forward to.  It's a wonderful series.  Everything about it is wonderful.  Also wonderful: thanks to CUNY Law Professor Chaumtoli Huq and Shehran Uddin (@SUddin_10), I can share two contracts issues that arise during the series without terribly significant spoilers.

First, and here there is a bit of a spoiler . . .  the main character, Elizabeth (Beth) Harmon, is an orphan.  She is adopted by a couple, but the husband soon disappears, and Beth develops a complicated relationship with her adopted mother.  The mother dies while they are in Mexico for a chess tournament, and Beth calls her estranged, adopted father for help with funeral arrangements and changing her plane ticket.  The father, who can't deal with anything, offers a deal: "Get her up to Kentucky and bury her, and the house is yours. Just make the mortgage payments."  Beth performs; her father doesn't.  Some day, it is to be hoped, the people behind The Queen's Gambit will make a spin-off about the legal proceedings relating to the house that is as accurate and riveting a depiction of litigation as the series is in depicting chess tournaments.  

The second contracts issue is less clear-cut.  Beth takes money from some conservative Christians who support her chess as part of their campaign against godless communism.  Ah, Cold War politics was so quaint.  In episode 7, the conservatives ask Beth to issue a statement denouncing communist atheism.  Beth says that she has no intention of saying "anything like that . . . because it's fucking nonsense."  The conservatives seem a bit surprised by Beth's agnosticism but what really concerns them is the breach of an implied contract.  They point out that they had supported Beth in the past and had already spent money for Beth's upcoming trip to Moscow for a tournament.  Beth responds by writing a check, reimbursing the conservative organization for its past contributions to her chess career.  So ends Beth's relationship with the conservatives.

In the series, the showdown with the conservatives propels the plot towards other characters who can help Beth, financially and spiritually, to compete in the chess tournament in Moscow.  But here again is an opportunity for a legal spin-off.  Suppose the conservatives sue Beth for breach.  Sure, she has returned the money they fronted her, but they could still claim that she was still unjustly enriched.  With their support, she traveled to tournaments and won prizes.  She did not share that money with the people who paid for her travel and accommodations.  Can they recover?  It will be hard for Beth to deny a contract when she repaid the money rather than treating the organization's prior support as gratuitous.  But what was their expectation?  Apparently, it was that Beth would issue a statement somehow establishing a connection between Christianity and her success at chess.  Is her failure to issue such a statement legally cognizable harm? 

Can they claim that Beth was unjustly enriched when it was Beth's talent, rather than their money, that won the tournaments?  It seems that there is an argument that Beth benefitted, beyond the winnings at particular tournaments, from the travel to competitions that the conservatives facilitated.  She advanced her career and her ranking, which entitled her to play in more prestigious tournaments against other grandmasters. But they clearly did not do so in expectation of payment.  We would have to scour the communications between the parties to see whether there were terms and conditions or whether, and this seems unlikely given what we know of her, Beth somehow mislead the conservatives into thinking that she was more sympathetic to their perspective than she in fact was.  But that would take us beyond the realm of contracts, as a fraudulent inducement claim would result in rescission but no damages, given that Beth has already repaid the funds she received.

Here is the trailer for the show.  It's not a very good trailer; it makes the show seem much more conventional and melodramatic than it is.  There is melodrama, but the melodrama is spaced throughout a series that is well-paced, beautifully filmed and acted, unprecedentedly smart about the world of chess, and thoroughly engaging without being histrionic.

 

December 29, 2020 in Commentary, Television | Permalink | Comments (0)

Monday, December 28, 2020

Realtor Approved: This House Is Not Haunted

Haunted HouseThis article in the Baltimore Sun, and other similar articles, tell of a realtor who is trying to get out ahead of the story by posting signs outside of the houses she is trying to sell advertising that the houses are verifiably "Not Haunted."  

How can the realtor, Joy Sushinsky, be so sure?  She interviews the sellers, and if they say the house isn't haunted, that's all the evidence Sushinsky needs.  After all, she reasons, "People know if they’re living in a haunted house. And they’ll tell you.”  Would they?  Under Maryland law, they are not required to do so.

The scene in which the prior owners of the house at issue in The Amityville Horror (right) warn the new owners that the house is haunted must have landed on the cutting-room floor.  Similarly, in the Academy-cward-winning short film, The New Tenants, nobody told the eponymous couple of the triple homicide that had occurred in their new apartment and explained its sudden availability (complete with "dead guy chips").  They didn't even get a break on the rent.  

Nonetheless, Sushinsky is convinced based on personal experience.  She lived in a haunted house, as her cat, the Instagram influencer Killer, would attest, were he still alive.  Unfortunately, the odd bumps in the night ended with Killer's death, so Sushinsky cannot introduce reporters to her ghost, although she insists that her dog will back her story.  In the alternative, Sushinsky also suggests that the "Non Haunted" signs are a joke, as we can all use a good laugh.

December 28, 2020 in Commentary, Film, In the News | Permalink | Comments (1)

Thursday, December 24, 2020

Extended Holiday Weekend Frivolity: Holiday Greetings via Sarah Dooley

Beautiful rendition of this classic, fittingly sombre for this very odd version of the holiday.

Sarah Dooley is the daughter of my former colleague, Laura Dooley, currently at Touro Law.  Sarah's new album, Is this Heartbreak? is available, for example, here.

We wish everyone a safe holiday with best wishes that the vaccines will facilitate raucous celebrations some time in the coming year!

December 24, 2020 in Music | Permalink | Comments (0)

Tuesday, December 22, 2020

Help Wanted: Dayton Law

Assistant Professor at the University of Dayton School of Law 

Apply nowJob No: 498365
Work Type: Faculty Full Time
Location: Dayton, OH
Category: Faculty
Department: SoL Dean's Office - 230000
Advertised: 
Applications close: 

Position Summary: The University of Dayton School of Law invites applications for a tenure-track Assistant Professor position to begin in August 16 2021. Areas of particular need include contracts, secured transactions, business organizations, property, wills and trusts, and/or tax.
Minimum Qualifications:

Applicants must have a J.D. or the equivalent degree from a foreign institution.

Preferred Qualifications:

While not everyone may possess all the preferred qualifications, the ideal candidate will bring many of the following:
- An outstanding academic record;
- A record of publication;
- Prior successful experience in law teaching or the demonstrated potential to be an outstanding teacher;
- Potential to successfully mentor students from underrepresented groups;
-Demonstrated and successful experience working with people from diverse backgrounds;
- Relevant prior experience in law practice;
- Excellent communication skills;
- Effective interpersonal skills with various constituencies;
- Interest in and/or experience teaching contracts, secured transactions, business organizations, property, wills and trusts, and/or tax;
- An expressed willingness and enthusiasm to teach in and develop UDSL's hybrid online J.D. program;
- Willingness to engage with Catholic and Marianist educational values that promote inclusive excellence.

Special Instructions to Applicants:

Applications should include a cover letter and CV and contact information for three references. References will not be contacted until second round interviews. Inquiries may be directed to the Faculty Recruitment and Development Committee at lawfacultyhiring@udayton.edu.

Posting closes at 11:55 PM EST

Closing Statement:

The University of Dayton is a top tier, Catholic research university with offerings from the undergraduate to the doctoral levels.  Founded in 1850 by the Society of Mary, the University is a diverse community committed to advancing the common good through intellectual curiosity, academic rigor, community engagement and local, national and global partnerships. Guided by the Marianist educational philosophy, we educate the whole person and link learning and scholarship with leadership and service.

Informed by its Catholic and Marianist mission, the University is committed to the principles of diversity, equity, and inclusion. Informed by this commitment, we seek to increase diversity, achieve equitable outcomes, and model inclusion across our campus community. As an Affirmative Action and Equal Opportunity Employer, we will not discriminate against minorities, women, protected veterans, individuals with disabilities, or on the basis of race, color, national origin, religion, sex, sexual orientation or gender identity.

The University is also pleased to provide support for spouses of prospective and newly hired faculty through its dual career program. While we cannot guarantee placement, we serve as an effective resource and support system for your spouse. Information can be found at http://www.udayton.edu/hr/employee_resources/dual_career_resources.php

December 22, 2020 in Help Wanted, Law Schools | Permalink | Comments (0)

Monday, December 21, 2020

In Memoriam: Shirley Abrahamson

Pancreatic cancer has claimed the life of another leading lady in robes. 

Shirley Abrahamson (pictured) was the first woman to become a Justice on the Wisconsin Supreme Court.   She later became the first woman to serve a Chief Justice and the Court's longest-serving member.  She died on Saturday at the age of 87.  The Milwaukee Journal Sentinel provides an obituary here.

I was regretting that I knew of no important contracts decisions that Justice Abrahamson had authored.  Fortunately, friend of the blog, Chaumtoli Huq, speculated that Justice Abrahamson's gender might have played a role in her decision in Estate of Steffes.   

That case is not dissimilar from Marvin v. Marvin in terms of the legal issues it addresses.  The facts have a few twists.  In Steffes, the plaintiff, Mary Lou Brooks, not only lived with her partner for six years prior to his death, she nursed him during his fatal illness.  In addition, both Ms. Brooks and Mr. Steffes were married to other people for the duration of their relationship.

Ms. Brooks provided significant services to Mr. Steffes.  She was a cook, housekeeper, nurse, farmhand, and did considerable manual labor both in the areas of agriculture and construction and repairs.  She alleged that Mr. Steffes had promised her both the house and the farm after his death.  Others corroborated that claim.  In the end, he left her nothing.  She sought a measly $29,000.  After the trial court allowed the jury to consider issues of implied-in-fact and implied-in-law contracts, the jury awarded her precisely half of what she sought.  Justice Abrahamson, writing for the majority, upheld the verdict.

Seems like an easy decision, until one reads the dissent.  The dissenting Justice pulls out all the stops, labeling the relationship "illicit" and "meretricious."  He insists that Ms. Brooks had no expectation of payment.  She was performing gratuitous services.  Anyway, she wasn't much of a nurse, or a cook.  The dissent contended that the decision was inconsistent with Wisconsin precedents and with the practices of most states.  

Justice Abrahamson was willing to ignore outdated precedents while basing her decision on different lines of cases that supported her view of Wisconsin law.  Far from being in tension with decisions of other states, Justice Abrahamson's was simply on the front end of a trend.  She embodied a change in the judiciary and helped foster analogous changes in the law.

The work continues, inspired by her example. 

December 21, 2020 in Commentary, Famous Cases, In the News | Permalink | Comments (0)

Friday, December 18, 2020

NY Times Provides Nice Little Exercise on Unjust Enrichment

Cookie monsterAccording to the New York Times, A man claiming to be a property owner, Nate, offers an artist cash to paint a Soviet-style mural of the Cookie Monster (pictured in his pre-Soviet days at left) on a building in Peoria.  The artist performs, employing up to ten people on the project, and he is so pleased with the results, he posts pictures of the finished product on Facebook. 

A week after the mural went up, the real owner turned up.  Before you say that C is for quasi-Contract, consider the possibility that C is for offiCious intermeddler.  The owner quickly whitewashed the mural, and then he turned on his midwestern-ordinary-guy quote generator:

“This isn’t news,” Mr. Comte said, then added an expletive. “I’ll give you a headline: Man paints his own building wall.”

“I don’t hate art,” he earlier told The Journal Star of Peoria. “But I don’t know what the hell that was.”

The identity of the Soviet-style Cookie Monster enthusiast remains a mystery.  Let us hope it remains so.  Sometimes, we should resist the temptation to see behind the curtain.

As a public service, we suggest tweaking reality into a hypo.  What if the fake Nate paid an advance sufficient to pay for supplies but promised to pay the rest upon completion and never paid.  Can the innocent painter recover from the real Nate in quantum meruit?

December 18, 2020 in In the News, True Contracts | Permalink | Comments (2)