Tuesday, September 10, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for September 10, 2024
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 12 Jul 2024 - 10 Sep 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 2,383 | |
| 2. | 215 | |
| 3. | 211 | |
| 4. | 181 | |
| 5. | 175 | |
| 6. | 162 | |
| 7. | 150 | |
| 8. | 149 | |
| 9. | 142 | |
| 10. | 135 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 12 Jul 2024 - 10 Sep 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 215 | |
| 2. | 181 | |
| 3. | 162 | |
| 4. | 61 | |
| 5. | 57 | |
| 6. | 55 | |
| 7. | 46 | |
| 8. | 44 | |
| 9. | 41 | |
| 10. | 38 |
September 10, 2024 in Recent Scholarship | Permalink | Comments (0)
Tuesday, September 3, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for September 3, 2024
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 05 Jul 2024 - 03 Sep 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 2,311 | |
| 2. | 211 | |
| 3. | 207 | |
| 4. | 176 | |
| 5. | 171 | |
| 6. | 161 | |
| 7. | 147 | |
| 8. | 146 | |
| 9. | 134 | |
| 10. | 132 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 05 Jul 2024 - 03 Sep 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 207 | |
| 2. | 176 | |
| 3. | 161 | |
| 4. | 58 | |
| 5. | 53 | |
| 6. | 50 | |
| 7. | 46 | |
| 8. | 44 | |
| 9. | 38 | |
| 10. | 36 |
September 3, 2024 in Recent Scholarship | Permalink
Monday, September 2, 2024
Teaching Assistants: Krawiec & Oman on Specific Performance of Personal Service Contracts
A longer version of this blog post is forthcoming in the Iowa Law Review Online! Expect a jubilant post with a link when it goes up!
Courts do not order specific performance of personal service contracts. Seems a no-brainer. There's the Thirteenth Amendment's broad prohibition on involuntary servitude, there are enforcement challenges, there are autonomy concerns, and there is the sense that any such order would simply be kicking the litigation can down the road a piece. And yet, Kimberly Krawiec (below left) and Nate Oman (below right) argue in their new article, The Case for Specific Performance of Personal Service Contracts, which is forthcoming in the Iowa Law Review, that the law ought to recognize certain exceptions to the per se rule. These are two very skilled contracts experts who combine erudition with boldness. They are not shy about treading on subjects that some might consider taboo. In fact, it's Professor Krawiec's brand!
Their carve-out from the rule is limited to cases in which parties of relatively equal bargaining power agree in advance to the remedy. Representation by counsel is an indicator of equality of bargaining power. They illustrate their concept with three archetypes: the coach, the teacher, and the pop star.
They first note that most employment agreements are at-will, and so specific performance isn't an option. In the rare cases when a party has the market power to demand a contract for term, it is worth reconsidering our wonted hostility to specific performance, especially in light of a generation of scholarship that has argued that money damages are often insufficient and that we should consider expanding the availability of specific performance.
They would not replace a per se rule against specific performance with a per se rule in favor of it. It would remain an extraordinary remedy, to be awarded in the court's discretion and premised on a finding that money damages will not make the non-breaching party whole.
The Authors first enumerate the problems with the per se rule. Money damages are often difficult to calculate and hence under-compensatory. Nor is it possible to approximate the effect of an order of specific performance (a positive injunction) with negative injunctions. The latter may reduce harms but do not fully compensate for lost performance. The Authors further point out that damages are a zero-sum game that at best give the parties the benefit of their bargain -- and they often don't achieve even that. The option of specific performance opens up the possibility for post-breach negotiations. In situations where a departing employee values the new position above the cost of buying out their contract, there is the possibility that the parties, with the help of an order of specific performance, will agree to an efficient breach. The non-breaching party is made whole or can even negotiate a benefit. The breaching party can be made better off, as is their new employer.
The Authors next take on certain Thirteenth-Amendment shibboleths. While we all partake of smug pieties regarding involuntary servitude when contemplating specific performance of service contracts, the Authors think that the orders of specific performance that they are contemplating would not run afoul of the Thirteenth Amendment. Their arguments are persuasive, but to be honest, I've always thought that the other, more situated arguments against specific performance of service agreements have more force.
They next address the autonomy arguments against specific performance. They make two main points here: First, high money damages can impose a greater burden on autonomy than the requirement that one perform a short-term contract. Second, because orders of specific performance can lead to negotiation, they can be autonomy-enhancing compared to an order to pay money damages. Concerns about workplace domination are misplaced because low-wage workers are almost always at-will, and thus could not be subject to the remedy of specific performance in any case. There is the lingering problem of contract terms, such as non-compete provisions, that have a post-contractual afterlife, even if employment is at-will. The Authors' solution is simply not to enforce one-sided non-competes. The remedy of specific performance should not be available where the parties do not have relative equality of bargaining power.
My main concern with the specific performance remedy is what the Authors call "monitoring concerns;" that is, the challenges involved in judicial enforcement of positive injunctions. The "monitoring concern" is two-fold: parties forced to perform will do so half-heartedly or otherwise inadequately, and courts are not well-positioned to monitor or adjudicate the quality of performance. The Authors respond that courts are frequently called upon to monitor the quality of performance, at times through the doctrine of good faith. This response does not satisfy me because doing so is not cost-free, and it circles back to the Authors' well-articulated concern with the adequacy of money damages to compensate for incomplete performance. Yes, parties often dispute whether a contract has been adequately performed, but they are far more likely to do so if forced into a partnership at least one part party no longer finds worthwhile. And then, how does one determine the remedy for inadequate performance in cases like, to use the Authors' examples, the coach, the teacher, or the pop star? Does one prove a coach's inadequacy through the team's won-loss record? Does one prove a teacher's bad faith by the student's grades? Did that Bruce Springsteen performance leave you with the impression that he was just feeling "meh" about New Jersey?
The Authors say that courts have gotten far better at monitoring contractual performance, but there remains the concern that their specific performance remedy for a law suit may involve prolonged, expensive monitoring followed by another law suit that will either restart the cycle or return us to our wonted remedy of money damages, warts and all. In sum, the Authors' dismissal of monitoring concerns strikes me as overly hasty. That said, I am not terribly bothered by their haste given the relatively narrow scope of their defense of the specific performance remedy.
Finally, the Authors illustrate three scenarios in which on might think the per se rule against specific performance ought to be set aside. They first address the instance of the successful college football coach who leaves before the end of his contractual term for a more lucrative and high-profile position. In the actual case on which their hypo is based, the aggrieved university sought liquidated damages under the contract, and the parties eventually settled. The Authors think specific performance should be available here, and I have to say I disagree.
First, the Authors say that they want parties to be able to stipulate to specific performance ex ante. In this case, they have not, and I believe they would not, even if they were confident that a court would enforce the provision. The Authors take seriously contractual language about the importance to the university of stability in their football program, but I've seen my share of college football coaches come and go, and I don't buy it. In fact, in the typical case, the university sacks the coach before the end of the contractual term, they pay outrageous liquidated damages, and there may be no duty to mitigate. The coach doesn't want the protection of specific performance; nor does the school. But even if they did, how does the coach perform when everyone knows he would rather be elsewhere and will leave at the earliest opportunity? How does he recruit players for teams he will not coach? How does he get the players to believe that he is really committed to them, when they know for a fact that he is not. Freshmen and Sophomores will enter the transfer portal rather than wait around to see what mystery coach takes over. And what would count as evidence of a breach of the duty of good-faith performance in this context?
The Authors' next example is a specialized teacher, but here they just don't seem committed to the bit. They acknowledge that an order of specific performance against a teacher would rarely be appropriate. I actually find it hard to imagine a scenario when I think it would be appropriate. The Authors provide all sorts of reasons why specific performance would only in the most unusual circumstances apply to a teacher.
I think their most promising example is sui-generis pop-stars for whom no substitute performance would be adequate. They provide the example of Jack Dempsey's 1926 refusal to fight Harry Wills because, as he put it, in his charmingly pugilistic manner,
Entirely too busy training for my coming Tunney match to waste time on insurance representatives[. A]s you have no contract suggest you stop kidding yourself and me also.
Plaintiff did have a contract, but it had, the court held, only speculative damages. The Authors think specific performance would be a good remedy in this case, and I think they may be right. Whether or not Dempsey wanted to fight Wills, if ordered to, he would either do so or pay his way out of the contract. If forced to fight, Jack Dempsey would fight, because his career depended on defending his heavyweight title. But would Dempsey agree to a specific performance remedy ex ante? I think his answer would be, "Stop kidding yourself."
Whether one can make a pop star perform depends on the pop star. I have heard tales of underwhelming performances by Bob Dylan, especially on the divorce tour. I think Elvis Costello at his punkiest cut sets short when he got fed up with his audiences. Try asking him to cover a "Pink Floyd" song. His response will not be pretty. I have never heard of anybody claiming that these artists did not perform in good faith. [I have seen both in Oklahoma City in the last two years, and I have no complaints -- quite the contrary!] But artists who trade on their connection to and devotion to their fanbase would not likely be willing to risk a perceivably lackluster performance. There is some evidence that audiences have no idea whether the Riverdance performers they saw were yelling "do it for the lotto!" instead of their usual yipping and wooing
Despite my criticisms, I agree with the Authors that we should consider an expanded specific performance remedy. I am especially sympathetic to their view that orders of specific performance can lead to settlement discussions. So, for example, I teach Fitzpatrick v. Michael, a case in which an elderly man reneged on a promise to leave his house and his cars to his live-in caregiver upon his death. He also evicted her from his home without notice. The court first noted that Ms. Fitzpatrick was entitled to a remedy, but then it found that it could not fashion one for her, in part because it could not order specific performance of a service agreement. I say, go ahead and order them to live together. He was a man of some means; he would have either acquiesced or paid her what she was owed.
The Blum Examples and Explanations supplement that I use provides two additional instances where I think an order of specific performance would do the trick. First, there is the case of a musician, "Harpo," who agrees to perform for "the going rate" in a piano bar. The proprietor learns that the going rate is too high and reneges. Money damages won't make Harpo whole because his main motivation was exposure. I saw specific performance as ideal here, because Harpo is very motivated, and the proprietor's only obligation is to pay, which he certainly can do. Similarly, Blum has a separate example (which serves a different purpose) where a young tenor is hired to play in a big-city opera house. Tweaking Blum's hypothetical, let's imagine that the mitigation offer is to pay the young tenor the same to perform the same role at a smaller, up-state venue. Performing at Glimmerglass is not the same as performing at the Met, so just as with Harpo, it's not just about or even primarily about the money for the tenor. On the other hand, there is no question that the young tenor will perform to the best of his ability if the court orders specific performance at the Met. The opera house will do nothing to undermine him, as its patrons pay a lot for those seats. Specific performance makes sense to me in this context as well.
I have gone on longer than usual, so I will end by recommending this piece. I find the ideas encouraging and challenging, even though I an pushing the Authors to think further about the contexts in which their expanded specific performance remedy should apply.
I will add only that Robert Hillman has also written a response to the piece, "The Case Against Static Contract Remedies," on JOTWELL.
September 2, 2024 in Contract Profs, Recent Scholarship | Permalink | Comments (0)
Thursday, August 29, 2024
Reviewing Larry DiMatteo and Irma Russell and Barbara K. Bucholtz, Part III
This is the third post in my series on Larry Di Matteo's Principles of Contract Law and Theory (Principles) and Irma Russell and Barbara K. Bucholtz's Mastering Contract Law (Mastering). The aim is to all some attention to these two books while using them to stimulate my thinking as I once again consider how to teach contracts law to first-year students. The two books are very different. Principles is a scholarly textbook addressing advanced topics at a very high level of sophistication. Mastering is a study-guide for first-year students. They both have their charms, but they are very different. Each entry in this series will cover a chapter in each book, with some splitting of chapters because the books don't have the same number of chapters. Most weeks, the chapters will not cover corresponding subject-matters. So be it.
The third chapter of Principles begins with a discussion of freedom of contract, which it splits into negative and positive freedom. Positive freedom is the freedom of individuals to contract without state interference in the form of required terms; negative freedom is freedom from state interference in the form of prohibited terms. And yet Principles notes that, at least in the context of asymmetrical bargaining, which is ubiquitous, some limitations on freedom of contract are unavoidable. (58)
Editorializing here, this is a highly libertarian presentation of positive and negative freedom. The tradition of positive freedom rooted in continental liberalism acknowledges the role of states in creating spheres in which individuals can exercise their freedom. That is, from the perspective of central Europeans prior to German and Italian unifications and the collapse of the Habsburg Empire, it was hard to imagine freedom without a strong state to create a realm in which freedom could develop and nourish.
From this perspective, the two freedoms that Principles describes are simply two sides of the same negative conception of freedom. What is left out is the, in my view, necessary intervention of the state, through, to give just one obvious example, the provision of a court system facilitating the enforcement of contractual obligations. We will soon be posting reviews of recent works by Hanoch Dagan (above left) and Rebecca Stone (right) on freedom of contract, and suffice to say that both of them articulate theories of freedom of contract capacious enough to accommodate much more forceful interventions than contemplated in Principles. That said, the difference may come down to Principles regarding freedom of contract as a relatively narrow principle subject to external limitations, while Professors Dagan and Stone, especially the former, see freedom of contract itself as the source of the limitations.
The next section of the chapter explores five tensions that contracts law seeks to balance. First, Principles acknowledges that while contract law needs to project stability in order to promote confidence in the enforceability of binding promises, the law evolves, usually slowly but sometimes jarringly, in response to exogenous impulses like the arrive of the New Deal or electronic contracting. (58-59) In the next section, Principles veers away from the libertarian perspective discussed above and acknowledges the role of default terms and gap fillers in facilitating contract formation. Regulation might seem in tension with facilitation. In fact, they are symbiotic. (60-61) Third, Principles identifies a tension in theories of enforcement. Classical doctrine enforces based on promises; modern doctrine also enforces based on estoppel. (62-63) Principles next explores a tension between formal and substantive rules. The former may at times prevent the effectuation of the latter, as when a statute of limitation lapses or a contract cannot be enforced for wont of a wax seal. The abandonment of the writ system and a more capacious concept of consideration have eased some of these tensions, but they persist. (64-65) Finally, Principles notes that the seeming tension between the civil law tradition, which favors specific performance and the common law preference for expectancy damages is not as pronounced as it seems. The common law embraces specific performance when unique goods or property are involved, and Article 2 provides for an expansion of the availability of the remedy. Civil courts encourage settlement in lieu of specific performance, because the latter requires potentially costly monitoring (65-66)
In the final section of the chapter, Principles explores tensions in contracts theory as opposed to contracts doctrine. Freedom of contract is tempered by concerns over justice in asymmetrical contracts of adhesion. One-sided terms can be enforced only if reasonable (68-69) or meaningful consent can be guaranteed through disclosure requirements. (70) There follows a discussion of how relational contract theory and the doctrine of good faith result in shifts in contracts doctrine. (71-73) I would add that relational contract theory is especially important in understanding a tension mentioned earlier in the chapter (59) between the law on the books and the law in action. Non-breaching parties may forgive the breach in order to preserve the relationship, or the parties might renegotiate the present deal to adjust for changed circumstances.
Chapter 3 of Mastering is about interpretation. This strikes me as a surprising choice and not the only organizational idiosyncrasy of the book. I would treat formation before getting to interpretation. I suppose the justification for starting with interpretation is that it permits the Authors to foreground the principle that what courts ought to enforce is the intentions of the parties. So even before we learn about formation, we are thinking ahead to the end game of expectation damages.
An additional benefit of foregrounding rules of interpretation is that many of them have applications beyond the realm of contracts law. (20) They begin with Williston's distinction between interpretation and construction (21), on which see Gregory Klass's work, reviewed here. They then proceed to a discussion of interpretation in the statutory context, beginning with the "no vehicles in the park problem" and discussing the role of statutory definitions, legislative history, explication through case law, and public policy as a tool of interpretation. (22-24)
The Authors next discuss canons of construction, mostly focusing on contractual construction, but occasionally referencing statutory construction as well. (24-28) This is valuable material and it is well presented. I just think about how a first-year student would use this book. I have never seen a casebook or treatise that discusses interpretation before formation. The Restatement begins with formation. And so, if I were assigning or recommending Mastering to my students as a supplement, I would tell then to skip chapter 3 and return to it after we have completed formation. By that time, they will have read enough case law so that we could draw from that material to give examples of how the cannons might be deployed.
After a very short section on treatment of extrinsic evidence under the common law (29), the chapter next covers extrinsic evidence under Article 2, which they say is similar to common law rules on extrinsic evidence. (29-31) The chapter concludes with a brief section on the parol evidence rule (32), which certainly makes sense in connection with the discussion of extrinsic evidence, but is a bit odd, given that the authors say the parol evidence rule is not a rule of interpretation (19) and is covered separately in Chapter 9. I teach the parol evidence rule in the section of my course devoted to interpretation, but I agree that it is not a rule of interpretation. However, I would say the same about rules relating to the admissibility of extrinsic evidence.
Again, I have reservations about organization and scope of treatment. Chapter 9 provides a thorough treatment of the parol evidence rule but no further discussion of extrinsic evidence. Again, thinking about this book as something for first-year students, I think the discussion of extrinsic evidence is misplaced here and too cursory, given the importance of the subject matter and its conceptual difficulty. The Authors lay out the relevant UCC rules relating to extrinsic evidence clearly enough, but they provide only one concrete example, and even there they do not cite to a case but just describe it. Absent an opportunity to see how these rules play out in the case law, I don't think students can appreciate the dramatic effects of the UCC's rules on extrinsic evidence in cases like Nanakuli and Columbia Nitrogen. But those are pretty complex cases, best introduced after students have gained some familiarity with the material.
The first post in this series can be found here
Part II is here.
August 29, 2024 in Books, Commentary, Contract Profs, Recent Scholarship, Teaching | Permalink | Comments (0)
Tuesday, August 27, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for August 27, 2024
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 28 Jun 2024 - 27 Aug 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 2,201 | |
| 2. | 199 | |
| 3. | 194 | |
| 4. | 173 | |
| 5. | 154 | |
| 6. | 149 | |
| 7. | 137 | |
| 8. | 131 | |
| 9. | 131 | |
| 10. | 119 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 28 Jun 2024 - 27 Aug 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 194 | |
| 2. | 173 | |
| 3. | 154 | |
| 4. | 53 | |
| 5. | 47 | |
| 6. | 47 | |
| 7. | 46 | |
| 8. | 42 | |
| 9. | 34 | |
| 10. | 28 |
August 27, 2024 in Recent Scholarship | Permalink
Friday, August 23, 2024
What's All the Fuss About? The Great Scrape
Occasionally, new private law scholarship posted on SSRN gets downloaded by thousands of people. When it does, inquiring minds want to know what all the fuss is about. This feature of the blog gives you the tl;dr on what you really ought to be reading for yourself. Today's subject is the most recent paper by Daniel Solove (below left) and Woodrow Hartzog (below right), The Great Scrape: The Clash Between Scraping and Privacy, which is pushing 2000 downloads on SSRN.
Scraping, the Authors tell us is. the automated extraction of large amounts of data from the internet. Through scraping, actors gather enormous amounts of data and personal information (worrisome) without notice or consent (troubling), and then this information provides fodder for AI tools such as facial recognition, deep fakes, and large language models (panic-inducing). (4 - parentheticals added). The Authors concede that scraping has its socially beneficial uses, but scraping of personal data "violates nearly every key privacy principle embodied in privacy laws, frameworks, and codes" and is, in short, "antithetical to privacy." (4) While scrapers contend that they make use of publicly available data, courts have recognized a privacy interest in publicly-available but practically obscure personal information. (4)
We need scraping to have a useable Internet, but scraping is in fundamental tension with basic privacy law. The Authors call for responding to the Great Scrape with the Great Reconciliation of scraping and privacy norms. (5)
Part I of the Article provides a history and explanation of scraping. We first learn that scraping, that is, online data harvesting, has been around as long as the Internet (7-9), but the power of scraping tools has grown vastly in the age of AI. (9-10) If you are on this site, statistically, it's more likely that you are a bot scraping the blog than a human reading the blog. Now, if you happen to be a bot, I'm not judging you. The Authors say I can't because the scraping of personal data occurs in the murk of an ethical twilight zone. (11-13) Which brings us to the current conundrum of "scraping wars." Some of the very websites that hire scrapers to enhance their functionality now object to being scraped for other purposes. (13-14) They are fighting back against the scraper through legal challenges with theories ranging from trespass and fraud to business torts and violations of privacy protections, (14-20) and by trying to use technology so that they can fight fire with firewall. (20-21) While scrapers are trying to buy out the resistance (23), regulatory intervention might change the market conditions for doing so. (23-27) The Authors highlight EU regulatory actions against Clearview AI. (25-26) While the FTC may have the legal means to regulate scrapers, it is not clear that it has the political clout to do so. (26-27)
In Part II, the Authors detail the fundamental tension between scraping and privacy. Privacy law is governed by bedrock principles known as the Fair Information Practice Principles (FIPP). FIPP comes down to three rules: only collect data when necessary, keep the data safe, and be transparent. According to the Authors, scraping violates all of these principles. (29). The overarching goad of FIPP is fairness, but the Authors also list seven other fundamental principles. (30-38). Their conclusion is not optimistic: "It is not clear that scraping can be performed in a privacy-friendly way." This is so because both the fundamental principles of privacy and the building blocks of privacy laws are "in dramatic conflict with scraping." (38)
Scrapers defend themselves by claiming that they only access publicly available information. In the next section of their paper, the Authors set out to show that the claim "that there is no privacy interest in publicly-available information is normatively and legally wrong." (39) First, it is simplistic to think that we can categorize information as "public" or private. People may still have an expectation of privacy in information that has been denoted "public" for certain purposes. (39-41) Some regulatory scheme and some caselaw recognize that privacy laws need to shield at least some publicly available information from scraping. There is safety in obscurity; SCOTUS implicitly recognized this in Carpenter when it noted that "A person does not surrender all Fourth Amendment protections by venturing into the public sphere." (44) One used to be able to make information about oneself available to the public without worrying about its dissemination, because the effort it would take to gather that information greatly exceeded its value. But with the aid of AI, scrapers can hoover up everyone's information with great efficiency. Privacy law has not fully reckoned with this environmental shift.
In Part III, the Authors introduce their proposed Great Reconciliation. They propose that we re-conceive scraping as a form of surveillance and as a data-security violation. (45) Defenders of scraping maintain that is just like human web browsing, which is true in the sense that a grain of sand is like a beach, or as the Authors put it, "But this ignores scraping's incredible affordances of scale." (47) The Authors propose that the data protection authorities, like the FTC, could impose obligations on entities entrusted with people's data to protect that data from scraping, just as they have an obligation to take measures to prevent other data-security violations. (49-50)
The Authors note that privacy law alone cannot effectuate the desired Great Reconciliation. Some privacy approaches might lead to a total ban on scraping, which would be undesirable (52-54), but other privacy laws are too loose and too easily evaded. (51) The solution involves a broader inquiry into whether particular forms of scraping are in the public interest. (52) One helpful first step would be to require individual consent for data scraping, but as anyone who has bought anything online this century knows, there are problems with the way courts have construed consent in this country. (54-55) Moreover, powerful websites may negotiate deals to sell scraping rights and further monetize their control of data, exacerbating the yawning gap between the haves and the have-nots. (55-56)
The Authors propose a legal system that regards scraping as a privilege. In order to exercise the privilege, the scraper must (1) have a valid justification; (2) provide substantive protections to ensure safety and avoid exploitation; and (3) provide procedural safeguards to ensure fairness and preserve the agency of the people whose information is to be scraped. (56) Their model draws on Lawrence Gostin's model for public health. (57-58) The remainder of the paper is a detailed proposal for assuring that scraping is conducted in a manner consistent with the public interest. It defies easy summary and demands careful reading, so I encourage you to undertake that task. (58-64)
If you missed our previous columns in the series and still don't know what the fuss was about, here's what you missed:
- Generative Interpretation by Yonathan Arbel and David Hoffman
- Lawyering in the Age of AI, by Jonathan Choi, Amy Monahan, and Dan Schwarcz
- Debt Tokens, by Diane Lourdes Dick, Chris Odinet, and Andrea Tosato.
- Governing AI Agents by Noam Kolt
August 23, 2024 in Contract Profs, E-commerce, Recent Scholarship, Web/Tech | Permalink | Comments (0)
Tuesday, August 20, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for August 20, 2024
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 21 Jun 2024 - 20 Aug 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 1,937 | |
| 2. | 196 | |
| 3. | 181 | |
| 4. | 167 | |
| 5. | 151 | |
| 6. | 150 | |
| 7. | 140 | |
| 8. | 131 | |
| 9. | 127 | |
| 10. | 120 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 21 Jun 2024 - 20 Aug 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 181 | |
| 2. | 167 | |
| 3. | 151 | |
| 4. | 51 | |
| 5. | 44 | |
| 6. | 41 | |
| 7. | 40 | |
| 8. | 40 | |
| 9. | 32 | |
| 10. | 26 |
August 20, 2024 in Recent Scholarship | Permalink | Comments (0)
Monday, August 19, 2024
Reviewing Larry DiMatteo and Irma Russell and Barbara K. Bucholtz, Part II
This is the second post in my series on Larry Di Matteo's Principles of Contract Law and Theory (Principles) and Irma Russell and Barbara K. Bucholtz's Mastering Contract Law (Mastering). The aim is to all some attention to these two books while using them to stimulate my thinking as I once again consider how to teach contracts law to first-year students. The two books are very different. Principles is a scholarly textbook addressing advanced topics at a very high level of sophistication. Mastering is a study-guide for first-year students. They both have their charms, but they are very different. Each entry in this series will cover a chapter in each book, with some splitting of chapters because the books don't have the same number of chapters. Most weeks, the chapters will not cover corresponding subject-matters. So be it.
The second chapter of Principles is a foray into comparative contracts law. It covers the differences between civil and common-law approaches, reciprocal influences, the internationalization of contracts law, and hard and soft law.
Principles identifies two virtues of the comparative perspective. First, knowing other traditions leads us to the humbling recognition that our way of doing things is not the only plausible way. Second, we can take some comfort as Professor DiMatteo reminds us of Hugh Beale's insight: despite differing terminologies that seem to divide the traditions, commonalities predominate. (36-37) Some of these commonalities are the product of legal transplants, and Principles highlights some imports into our common-law system that come from surprising sources. (37). Especially in private law, convergence between common law and civil law is the norm, either through revision or transplant. (40) Exceptions are rare. Specific performance is a standard remedy in the civil system and extraordinary in the common law. (45) Civil law enforces penalty clauses; common law does not. (45-46) More fundamentally, civil law is code based, and courts fill gaps through extrapolation and analogy. Common law courts are suspicious of legislation and construe statutes narrowly to avoid sudden jolts to the slow liquidation of legal norms based on precedent. (40)
One area of notable difference that occupied a lot of time at the recent KCON Conference is good faith. The concept is fundamental in civil law, an implied term in contracts in the U.S., and largely avoided in UK law, outside of the context of consumer contracts. (41-43) Unlike in the U.S., civil law imposes a duty to negotiate in good faith, and failure to do so might result in an award of reliance damages to the non-breaching party. (46-47)
The traditions also differ in interpretive matters. Common law courts attempt to get at the intentions of the parties. Civil courts attempt to determine what category of contract the parties intended and then use the statutes relevant to that category to fill in gaps. (48) Civil law also recognizes fault in contract, and thus the breaching party can sometimes allege that the non-breaching party was negligent or contributed to the fault. Fault comes into the common law indirectly through doctrines like good faith, unconscionability, and other defenses to formation. (49-50)
Internationalization came to contracts through the CISG, which was adopted in 1988 and now has been ratified by over 100 states. It illustrates internationalization but also convergence, as it was the product of negotiations among representatives of both the civil and the common law traditions. Principles then provides a summary of some differences between the CISG and the UCC/common law, contrasting the more seller-friendly approach of the former with the latter's more buyer-friendly approach. (50-53) Finally, Principles discusses hard law obligations found in international agreements and the soft law obligations that make up the lex mercatoria, comprised of trade usages, business practices, and commercial customs. (54-55)
Chapter II of Mastering provides a short road map of definitions and guiding principles. The Authors begin with a brief, clear, helpful discussion of what a contract is and how the word "contract" relates to similar terms, such as "bargain" or "agreement." (13-14) An agreement, the Authors explain, entails a bargain, but it may go beyond that, as the agreement of the party may entail implied terms. Not all agreements are contracts, in the sense that courts may not enforce an agreement in certain circumstances, for example if it is a contract to perform some illegal service. (14-15)
Next, the Authors introduce the concept of freedom of contract, but they also note that freedom is tempered by public policy. (15). They illustrate the limitation on freedom on contract with a discussion of illegal contracts. In that section, they also note that freedom of contract entails the freedom not to contract. (15-17) The stage-setting proceeds very rapidly. This was a very short chapter. Some of the chapters to come are far more lengthy and may end up getting split into multiple posts.
The first post in this series can be found here.
August 19, 2024 in Books, Contract Profs, Recent Scholarship, Teaching | Permalink | Comments (0)
Thursday, August 15, 2024
Disney, Contracts of Adhesion, and Arbitration-Clause Bootstrapping
Disney is in the news this week, and not in a good way. For the truly awful facts of the case, you can't do better than Emily Crane's and Alexandra Steigrad's reporting in the New York Post here and here. In short, Dr. Kanokporn Tangsuan had severe allergies. She ate in a Disney restaurant. She informed the restaurant of her allergies and the restaurant staff gave repeated assurances that her food was allergen-free. Soon after her meal, she was dead, and an autopsy revealed that her death was caused by allergens.
Okay, those are terrible facts. But what's going on with arbitration clauses in contracts of adhesion is, perhaps less dramatic, but still highly concerning. Christopher Leslie has described what he terms "arbitration bootstrapping." Professor Leslie defines bootstrapping as the corporate practice of loading "mandatory arbitration clauses with unconscionable contract terms." Richard Frankel has published a thoughtful response here. Increasingly, we are seeing a new form of arbitration bootstrapping; let's call it "arbitration-clause bootstrapping." Once a consumer has "agreed" to an arbitration provision through one interaction with a business entity, that entity then tries to apply that same arbitration provision to some completely unrelated interaction with the entity. I've been stockpiling posts all summer, and I keep on coming across these situations. Earlier in the summer, we wrote about Andrea Boyack's scholarship on abuse on contract, and there's plenty more where that came from.
So, getting back to the case, when Dr. Tangusuan's husband, Jeffrey Piccolo, sued Disney for negligence, Disney responded with a motion to compel arbitration. It did so on two grounds. First, Mr. Piccolo years ago signed up for a trial subscription to Disney +, and when he did so he "agreed" that all disputes should go to arbitration. Second, one month before his wife's death, Mr. Piccolo bought tickets to the Epcot theme park using the "My Disney Experience" app, which also has an arbitration provision. So, Disney's argument seems to be if you "agree" to arbitration with respect to one transaction with the company, you are agreeing to arbitration with respect to all interactions with the company. And, as Christopher Leslie's scholarship suggests, that arbitration provision can be used to bootstrap additional terms, that otherwise might not be enforceable, into the parties' "agreement." As Andrea Boyack's scholarship illustrates, consumers do not read the boilerplate terms of contracts of adhesion, hence the scare quotes bracketing forms of the word "agree" throughout this post.
You might wonder what's so bad about arbitration. Substantively, there might not be any difference in this case. Still, I can think of at least two reasons why Mr. Piccolo and his attorneys might prefer litigation. First, they might trust a jury rather than an arbitral panel to appropriately value their claim. Second, they might want the publicity associated with litigation to shine a spotlight on Disney's conduct. Of course, Disney's arbitration-clause bootstrapping has not helped it to avoid publicity in this case. Nonetheless, both of those reasons to prefer litigation are also reasons why the threat of litigation enhances the settlement value of the claim.
None of this might matter in this case. Even if the court allows Disney to engage in arbitration-clause bootstrapping, it might not think that the arbitration clause applies in this case, given that the suit is being brought on behalf of Dr. Tangusan's estate, which never "agreed" to arbitration.
UPDATE: David Horton (left), who is either maddeningly youthful or really needs to update his website, has provided a link to Disney's motion to compel. My post noted that the estate is not a party to an arbitration provision. David adds that neither is the defendant in the case, Walt Disney Parks and Resorts, U.S., Inc. David's forthcoming article Accidental Arbitration, which was on my summer reading list but is now on my urgent reading list, covers the subject matter that I have called arbitration-clause bootstrapping. He speaks of it in terms of defendants attempts "to enforce ultra-broad arbitration agreements that nobody at the time of contracting could have foreseen would be relevant to the lawsuit." It is a topic that he also addressed in his already-published article Infinite Arbitration Clauses.
August 15, 2024 in Commentary, Current Affairs, Food and Drink, In the News, Recent Cases, Recent Scholarship, Web/Tech | Permalink | Comments (0)
Wednesday, August 14, 2024
Reviewing Larry DiMatteo and Irma Russell and Barbara K. Bucholtz, Part I
Students often ask me to recommend study aids. I give them two bits of contradictory advice. First, I tell them they don't need any study aids for my course and that such aids might panic or confuse them. Then I tell them that I've never found a bad one. They all provide reliable, insightful, interesting takes on the material. The dangers is only that they contain more wisdom than first-year students can digest. The only thing I don't recommend is the thing they are most likely to use -- Quimbee videos.
But you know who does benefit from reading study aids, hornbooks, and treatises? Contracts Profs. I volunteered some time ago to review a book by Larry Di Matteo (right) and another by Irma Russell (below left) and Barbara K. Bucholtz (below right). It has taken me a while to get to it, but I have decided to review them side-by-side, and chapter by chapter as I use them to help me refresh my approach to teaching contracts. I should add that, while Professor DiMatteo's book is still quite new, having been published in 2023, Irma Russell and Barbara Bucholtz's book dates from 2011.
After a short preface, Professor DiMatteo's book, Principles of Contract Law and Theory (Principles) begins with an introduction, covering history, law and equity, justifications for contract law, rules principles, and standards, specialized rules, and boundaries of contract. As the preface makes clear, unlike most American books on the subject, Principles devotes equal time to UK and American law. The book could serve as a textbook for "intermediate students" but also as a reference for scholars and practitioners looking for an introduction that will situate contracts doctrine in a theoretical frame. (xviii)
Indeed, this is not material that I would recommend to first-year students. Principles delves briefly and deftly into topics, like the relationship between canon law and common law (4-6), that are not usually the stuff of contracts hornbooks. The subject-matter is interesting and leaves the reader wanting more. The work is lightly footnoted. For one used to the obsessive footnoting of law reviews, this makes for comfortable reading, but at times I wished I knew the sources in case I wanted to learn more about, say the role of late-19th century treaties in "developing a more rational and comprehensive system of rules and principles" (13) or how prior to the nineteenth century "much of contract theory was anchored in the Aristotelian idea of contract as commutative justice." (15)
There is a great deal that could be unpacked in the way Principles approaches justifications, drawing clear-cut lines between English law's preference for certainty and predictability, which yields formalist, bright-line rules, and the U.S. preference for justice in the particular case, which makes American law more open to squishy principles like good faith, unconscionability and good faith. (17-18) I assume these contracts get fleshed out in later chapters. There is a richness in this opening chapter to which I cannot do justice in this space. Suffice to say that it sets the table in way that leaves the reader hungry to learn more about literally dozens of subjects.
In the introduction to their book, Mastering Contract Law (Mastering), Professors Russell and Bucholtz make clear that their book aims to provide an overview of topics covered in the first-year contracts course. However, it supplements its organization built on proving elements of a contract claim with an exploration of some of the transactional aspects of contracts law. (xxv)
The first chapter addresses some preliminary matters before they move into the substance of doctrine. Some of these matters, like seriousness of intention (2) and the UCC (7), are addressed briefly in just a paragraph, with indications of more to come in later chapters, while other topics, like the interests protected under contract law (2-4) and the movement towards uniform law (7-9) get lengthier, through still introductory treatment. The discussion of the interests protected under contract law covers expectation, reliance, and restitution. The section on the movement towards uniformity focuses on the American Law Institute's Restatements and covers the history of the two Restatements of contracts law and the status of the Restatements as persuasive authority.
I'm a bit troubled by their section on implied-in-law and implied-in-fact contracts. I don't think it's a good idea to link these ideas in students minds, as the former are not contracts, while the latter are contracts every bit as much as express agreements. I am also a bit miffed that Mastering uses Wood v. Lady Duff-Gordon to illustrate implied-in-fact contracts. That case involved an express agreement. Judge Cardozo did not imply a contract in that case; he implied a term. Similarly, the discussion of Sullivan v. O'Connor seems misplaced in this section, as Mastering uses that case to illustrate different measures of damages rather than implied contracts, whether in law or in fact.
These quibbles aside, the opening chapter provides clear guidance on a number of topics. It begins with five basic questions that one can ask of a typical contracts problem (1-2), and it concludes with six "checkpoints" that provide a quick overview of the first chapter's themes.
August 14, 2024 in Books, Commentary, Contract Profs, Recent Scholarship | Permalink | Comments (0)
Tuesday, August 13, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for August 13, 2024
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August 13, 2024 in Recent Scholarship | Permalink
Workers Allege Fraudulent Inducement After Disney Asked Them to Move to Florida
According to Mike Schneider writing for the Associated Press, The Disney Company asked 2000 of its employees to relocate from Southern California to Florida, as Disney was planning to build a new company campus near its theme park in Orlando. The employees allege that Disney encouraged them to move through incentives and with the threat that their employment would be terminated if they did not move.
Even though some employees resisted the move, sometime between late 2021 and June 2022, when Disney announced that the move was delayed, plaintiffs sold their California homes and relocated to Florida. They allege that, even after Disney announced that its new campus would not open until 2026, it encouraged workers to move by 2024.
Enter a certain Florida governor (right), who started a culture war against Disney. In 2023, Disney announced that it had scrapped plans for a relocation. According to Mike Schneider's reporting, it instructed workers who had already moved to Florida that they could head back to California.
But with Disney's decision to cancel its planned construction in Florida, the housing market there declined, while housing prices in California continued to climb. Although employees worried about losing their jobs if they stayed in Florida, they also did not think they could afford to return to California. They are suing Disney, alleging fraudulent inducement.
Seems like a tough claim to win on, especially against a very well-resourced company. But all may still work out for the best in the Happiest Place on Earth. Mike Schneider also reports for The Associated Press that The Disney Company and the Governor entered into a fifteen-year development agreement in May in which Disney committed to pump $17 billion into the local economy over the next two decades. It is not clear what concessions Disney got in exchange for continuing its investment in the state. It seems like the Governor caused, or at least exacerbated, a lot of disruption in peoples' lives. Suing him is not an option, and of course, he too can argue that much of his conduct was fraudulently induced. He thought he was going to be President.
Recent scholarship by Jonathan Harris (left) suggests that there might also be an economic duress angle in cases like this. Such cases are hard to win. However, like a promissory estoppel claim, such a claim might improve the settlement value of the claim. If the employment at issue is at will, damages might be limited to expenses incurred, which might not even cover the attorneys' fees involved in suing a company like Disney. Hence, the need for a lawsuit that will be expensive enough
for Disney to defend that it will be brought to the bargaining table. Other recent work by Rachel Arnow-Richman (above right) and J.H. Verkerke (right) on Deconstructing Employment Law is also of note here on the problems with conceptualizing at-will employment as a form of contract under current doctrine.
As is so often the case, there was a flurry of media interest in this case back in June and now . . . crickets. I was hoping to be able to provide an update, but I guess the reporters have all moved on to the next story.
August 13, 2024 in Commentary, Labor Contracts, Recent Cases, Recent Scholarship | Permalink | Comments (0)
Tuesday, August 6, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for August 6, 2024
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August 6, 2024 in Recent Scholarship | Permalink
Friday, August 2, 2024
Gregory Klass on the Interpretation/Construction Distinction
Compiling three blog posts that he wrote in 2015, Gregory Klass (right) has now posted on SSRN his Short History of the Interpretation Construction Distinction. The three parts discuss Francis Lieber, Samuel Williston, and Arthur Corbin respectively, with lots of links to other posts Professor Klass has written. It's a short piece, but if you follow the links, it's also a rabbit hole.
Lieber addressed the interpretation/construction distinction in his 1839 book, Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics. Based on his Austinian positivist approach to law, Lieber regarded interpretation of the process of divining the intentions of the lawgiver. But sometimes interpretation does not suffice and then we must use principles of construction to arrive at the meaning of the legal text. His version of construction sounds something like 1990s "new originalism" (and Professor Klass acknowledges his debt to Larry Solum's work) -- there is an acknowledgment that sometimes interpretation (or original meaning) runs out and one has to have recourse to supplementary modes of analysis that give effect to the spirit rather than the letter of the text. Lieber goes farther still, allowing that construction can sometimes go beyond the spirit, when the law must yield to some superior legal principle.
From Klass's perspective, Williston (left) improved on Lieber in two ways. First, for Williston, discerning the "spirit" of the text is still an act of interpretation. Construction arises, for Williston, only when one brings to the matter something beyond the intentions of the parties like, for example, a public policy constraint on a contract's meaning. Second, while Williston retains Lieber's concept of construction as supplemental to interpretation, he adds a third component -- the legal effect of a contract, which is determined according to the substantive law of contracts. So, for example, interpretation might tell us what a penalty clause means, but the law of contracts tells us that it has no legal effect. Klass notes that Williston thus needs to move beyond J. L. Austin's command theory of law to something more like H. L. A. Hart's positivism. We need secondary rules to tell us how to apply the substantive law of contracts.
Thesis, antithesis, Corbin. Corbin's approach collapses Williston's three categories into two and treats interpretation and construction as complementary rather than treating the latter as a supplement to the former. Based on Professor Klass's presentation of Corbin's ideas, I would say that he folds legal effect and interpretation into construction. Construction is the process of determining the legal effect of what a legal actor said and did. Interpretation, which gets at what a person said, meant or intended, is part of the process of construction. But there remains room for canons of construction, like contra proferentem or public policy, that go beyond the aim of Corbin's narrower sense of construction, which gets at the intentions of the parties. Drawing on Larry Solum's work, Professor Klass suggests that the work of construction takes place both within the process of interpretation/construction and in the separate "construction zone."
August 2, 2024 in Contract Profs, Recent Scholarship | Permalink | Comments (0)
Tuesday, July 30, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for July 30, 2024
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July 30, 2024 in Recent Scholarship | Permalink
Tuesday, July 23, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for July 23, 2024
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July 23, 2024 in Recent Scholarship | Permalink
Tuesday, July 16, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for July 16, 2024
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July 16, 2024 in Recent Scholarship | Permalink
Tuesday, July 9, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for July 9, 2024
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July 9, 2024 in Recent Scholarship | Permalink
Tuesday, July 2, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for July 2, 2024
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July 2, 2024 in Recent Scholarship | Permalink
Some American Reflections on KCON XVII
How was this year's KCON different from other KCONs? I've been reflecting on that question in the aftermath of the conference. The conference was large. There were usually three concurrent sessions going at once. I can't replicate Nick Mouttotos's feat in yesterday's post by providing an overview of the conference as a whole. Rather, this post is impressionist.
I will highlight three main differences that made this years KCON unique. They correspond roughly to the conference's three plenary sessions, and then a fourth difference -- a focus on relational contracts theory that really took me by surprise. The plenary themes were respectively: Hugh Beale on the drivers of difference among national contracts law regimes; Mindy Chen-Wishart on the tendency of asymmetrical contracts towards self-destruction; and Aditi Bagchi on contracts law theory. In short, the themes were comparative contracts law, regulating consumer contracts and other contracts of adhesion, and theory -- broadly construed.
The conference organizer, Dr. Katarzyna Kryla-Cudna (Kasia), chose well in inviting Hugh Beale (right) to open the conference. After the obligatory apologies for his lack of expertise in comparative law, Professor Beale provided some keen observations not only on his proposed topics -- the drivers of diversity in legal systems -- but also on the ways in which we measure such diversity. Adopting a functional approach, Professor Beale first noted that, setting aside terminological differences, one finds that contracts law across jurisdictions will often yield the same results in cases arising from similar facts.
That said, there are areas of striking non-uniformity. One area of concentration during the conference was the doctrine of "good faith" and the related obligations of disclosure and fraud through non-disclosure or concealment. Beyond Professor Beale's presentation, I learned at the conference there is some movement in the UK to adopt American approaches to the concept of good faith, but European perspectives on the subject persuaded to me that our doctrine of good faith is simultaneously well-developed and under-theorized. Our courts invoke various good faith doctrines in all sorts of contexts, but we lack an systematic understanding of the doctrine, which perhaps explains a lot of variation in how the doctrine applies in our different jurisdictions.
Professor Beale also touched on the most foundational differences between common-law and French approaches to formation. In principle, Professor Beale said, the French take a subjective approach to formation. At least at the panels I attended, the conference did not return to this theme, and I am glad. I think my head would have exploded had I tried to work out all the consequences of such an approach to formation.
Professor Beale also introduced the comparative theme of the interaction between contracts doctrine and regulation. This subject also was explored in multiple panels. Professor Beale's paper focused on B2B transactions, but many papers explored the realm of consumer contracts. My general sense is that, as a regulatory matter, European approaches are far more protective of consumer interests in the context of contracts of adhesion than is the U.S. But my sense is that relational contracts theory explains why things end up about the same. Our law allows for some pretty sharp contracting practices, but our service-oriented commercial culture and our class-action mechanism combine to discourage companies from insisting on their legal rights. Relatedly, Professor Beale touched on the very different role of judges in the common-law and civil-law traditions. He provided us with a wealth of themes, which were explored in greater depth, and often with an appreciative nod in Professor Beale's direction throughout the conference. Professor Beale was also active in the sessions providing illustrations and anecdotes from his experience as a Law Commissioner, delivered with the obligatory self-deprecation one expects from UK academics.
Mindy Chen-Wishart's work was at the center of the conference both literally and figuratively. She presented her work just after lunch on the first day of the conference, just shy of the conference's midpoint and was also the event's honoree, and so her work was also a theme at the conference dinner. References to her work in other papers throughout the conference make clear that, once again, Kasia made an inspired choice.
Professor Chen-Wishart's theme was consumer contracting and the disconnect between our theories of contracting, whether based in will theory, promise, or assent, and the reality of contracts of adhesion. Much like Peggy Radin's division of the universe of contracts into World A of negotiation and World B of boilerplate (you can gather links from our dedicated symposium here), Professor Chen-Wishart noted that contract theory assumes negotiations between parties of relatively equal bargaining power. The reality is nothing like that. Moreover, Professor Chen-Wishart's presentation focused on the ways in which modern contracts law is self-cannibalizing. One-sided contractual terms negate the principles that contract theory posits as the reasons why contracts are binding.
Professor Chen-Wishart's presentation interacted with many of the presentations that followed, perhaps because engagement with her work is unavoidable for UK and comparative scholars. Panelists addressing conference themes of consumer contracting, adhesion contracting, defenses to enforcement of one-sided terms, and regulation of consumer contracts all referenced Professor Chen-Wishart's work and the frameworks she has created for addressing these issues.
The final plenary session featured Aditi Bagchi's work on contract as exchange, a tour de force, piece of scholarship with which future scholarship on the theory of contracts will have to engage. Professor Bagchi would replace theories of contract sounding in will theory or promise with a focus on the actual work that contracts do in bringing about material exchange.
Professor Bagchi's conference presentation was stimulating and accessible. She ably identified the elements of actual contracting left unaddressed by traditional theories of contract sounding in will theory, promise, or agreement. She then offered an overview of the comparative advantages of her theory of contract as exchange. It was a stimulating talk that left me wanting more.
Professor Bagchi circulated a draft of her paper which is far deeper, richer, and more philosophically challenging than the conference presentation. It is also dauntingly complex. I won't try to say more beyond recommending that readers look out for the paper when it makes its appearance on SSRN or in print. This is very weighty scholarship, obviously the product of decades of reflection on the subject. Professor Bagchi's scholarship contains multitudes but then synthesizes that material into a challenging reconceptualization of contracts theory. She renders the familiar strange and then re-familiarizes it in striking ways.
I can't say that the panels engaged with Professor Bagchi's theories directly. More so than the other plenary papers, Professor Bagchi was striking out in new directions, building on her prior scholarship but staking out new territory. Nonetheless, her work is ambitious enough to touch on the conferences major themes beyond contracts theory. Foundational as it is, it can apply to any national tradition, and her work is intensely engaged in the sorts of problems that arise in a world where the law of contracting has moved from negotiation to adhesion.
While this year's iteration of the conference supplemented the usual KCON subject matter, there were also some themes missing or downplayed. The first was pedagogy. KCON usually includes multiple panels on teaching contracts law. That subject went unaddressed. Second, while two panels on innovation addressed the intersection of contracts law and technology, they seem to have focused on smart contracts and blockchain. I did not attend either session, so I'm not sure what else they covered. In any case, I expect that when we return to the U.S. next year for KCON XVIII, the impact of AI on contract drafting and contract interpretation/enforcement will be a pervasive theme.
I hope that we can continue to pursue some of the unique themes of this year's conference next year. While we have a favored candidate for next year's venue, place and date are yet to be determined. Stay tuned.
July 2, 2024 in Commentary, Conferences, Recent Scholarship | Permalink | Comments (0)
