Wednesday, August 5, 2020
Contracts Profs have been alerting one another to egregious COVID waivers. Washburn Law's Andrea Boyack blogged here about the Kansas Board of Bar Examiners' demand, at the end of the linked document, that each bar taker "acknowledges and voluntarily assumes all risk of exposure to or infection with COVID-19 by attending the July 2020 Kansas administration of the Uniform Bar Examination." Kansas is not alone. According to Professor Boyack, "the Kansas waiver seems to be modeled on a similar document that North Carolina bar examiners provided to their examinees this year." Other states have attempted similar moves. Professor Boyack's post suggests that such waivers may not be binding, either because they are not supported by consideration (take that, Alan White!), or because they are extracted through duress and are unconscionable.
Think law graduates are sophisticated enough to negotiate this territory on their own? How about law students? According to Inside Higher Education, University of New Hampshire law students protested when faced with the following language in an "Informed Consent Agreement: “I assume the risks associated with being at the University of New Hampshire including the risk of exposure to COVID-19,”
But law students are pretty well-positioned to organize opposition to such language. What about undergraduates? Inside Higher Education reports that some colleges are making their students sign COVID waivers as well. Students wishing to return to campus at Bates College, for example, have to electronically sign the following statement: “I am voluntarily assuming any and all risks that notwithstanding the college’s best efforts to implement and require compliance with these prevention and mitigation measures I may be exposed to the coronavirus and may become ill with COVID-19, and that such exposure and illness may result in personal injury, illness, temporary or permanent disability, or even death.”
Bates defends this language as giving students choice. Faced with this choice, students may decide to stay away from campus, and that may be for the best.
Wednesday, July 29, 2020
This post is part of a series on introducing critical perspectives, including critical race perspectives, into contracts teaching. Other posts in the series include:
- Guest Post by Deborah Post on Williams v. Walker-Thomas
- Guest Post by Chaumtoli Huq, Part III: Counter-Hegemonic Narratives
- Guest Post by Chaumtoli Huq, Part II: Freedom to Contract and the Reasonable ManGuest Post by Chaumtoli Huq, Part I: The Decolonial Framework
- Guest Post by Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers
- What Should a Court Do in Response to Racist Contractual Threats? Wolf v. Marlton Corp.
- Guest Post by Charles Calleros: Raising Issues of Race, Ethnicity, and Culture in 1L Contracts: Language Barriers
- Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part II – Consideration
- Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part I – Mutual Assent
- Teaching Assistants, Emily Houh's Redemptive Theory of Contract Law
Monday, July 13, 2020
It's an impressive series of posts, and it has graphics!
Sunday, May 3, 2020
Some of our readers might recognize this new feature of the Blog, "Weekend Frivolity" is ripped off form the frivolity segment of the National Security Law Podcast. In this case, imitation is indeed the sincerest form of flattery. If you aren't currently subscribing to the podcast, you should be, even if you aren't interested in National Security Law. It is fun to listen to Bobby Chesney and Steve Vladeck argue about just about anything.
I'm tipping my hat extra hard in the post because I discovered this video on Bobby's Twitter feed. It has something of an Austin feel to it, but I'm afraid I don't know if the Bar & Grill responsible for this video is an Austin joint. Perhaps a knowledgeable reader can enlighten me in the comments!
We are taking a lesson from Steve Lubet and the Faculty Lounge Blog. Since readership is down on the weekends, Steve posts music videos on the weekends. Faculty Lounge fans understand that they are free to scroll past the music if all they are interested in is the blog's regular programming. We hope that our readers will be equally indulgent.
Rather than music, we will try an experiment in which we share videos that relate to our joint experiences: as lawyers, as teachers, as academics, as people cooped up during a pandemic. We hope that you enjoy!
Wednesday, April 29, 2020
I am delighted to announce that I and my co-bloggers have decided to revive the blog. We look forward to sharing new content with you. Watch this space for contributions form Nancy Kim, Sidney DeLong, and other players to be named later. You can also follow us on Twitter: @KProfsBlog
Friday, June 29, 2018
Our friend over at the On Contracts blog, D.C. Toedt (Houston), has generously posted a collection of 80 exercises illustrating textual ambiguity. The sources vary widely, ranging from legal and religious texts to news items, popular culture, and even comic strips. Toedt uses the exercises in his contract-drafting course, challenging students to rewrite to clarify the meaning. The examples would work well in teaching ambiguity and contract interpretation in the 1L doctrinal course, as well.
And let's face it: In addition to being pedagogically useful, ambiguities can be downright funny. Enjoy the list!
Thursday, May 24, 2018
The life of a blogger can sometimes feel like toiling sometimes in relative obscurity. And then there's the moment when you get cited as evidence in a case!
A recent decision out of the District of Columbia in Mawakana v. Board of Trustees of the University of the District of Columbia, 14-cv-02069-ABJ, referenced ContractsProf Blog. The case was a tenure dispute between the plaintiff professor and the defendant university. The plaintiff alleged he was denied tenure because of racial discrimination. The defendant moved for summary judgment, which was granted.
Part of the plaintiff's evidence was a number of favorable comments on his scholarship, including "honorable mention from ContractsProf Blog." The court cites to the plaintiff's opposition, which is sealed, so I can't see exactly what was stated about the entry. I found the school's write-up of it, but the link the school provides to the blog entry doesn't work for me (maybe my computer is just being fickle and you'll have better luck).
Despite the favorable comments, including the ContractsProf Blog entry, the court noted that there were also less favorable comments about the plaintiff's scholarship (the court actually noted in a footnote that one of the reviewers did not give the ContractsProf Blog honorable mention "any weight"). The court also found that the favorable comments did not mean that the plaintiff's denial of tenure must have been based on racial discrimination. The court eventually concluded, after much analysis (a great deal of it redacted), that the plaintiff wished for the court "to weigh in on the merits of the University's academic judgments in a manner that is contrary to the legal principles governing these disputes."
The court also found the plaintiff's contract claims to be time-barred, but, even if not time-barred, not supported by evidence.
(This is not, btw, the first time we blogged about this case.)
h/t to Prof. Eric Goldman at Santa Clara for sending this case to our attention!
Wednesday, April 25, 2018
I fell down a rabbit hole recently looking at athletes who had lied about their ages. You can find a flurry of pieces about this online, from lists purporting to gather names together (I found some here and here and here) to more in-depth examinations of the phenomenon (see here and here and here and here). I fell down the rabbit hole courtesy of stumbling across a Baseball Prospectus piece on Albert Pujols. I discovered that there had been a flurry of discussion around Pujols's age when the prospect of his next (and last) baseball contract was looming, as you can see here and here and here. I'd never paid much attention to this issue before but it's interesting to contemplate how it intersects with contract law.
Sunday, July 2, 2017
Monday, March 27, 2017
I've blogged a lot about NDAs on this blog, including in the context of allegations of domestic violence. So when I saw this recent essay on Inside Higher Ed discussing NDAs in the context of sexual assault investigations on university campuses, I thought it would be interesting to link to. Confidentiality provisions show up everywhere, and I think the essay is a thoughtful and important rumination on the effect they can have in some situations.
Friday, August 26, 2016
I have witnessed with interest the evolving story of what exactly happened in Rio involving Ryan Lochte the morning of August 14. Initially Lochte claimed he had been robbed at gunpoint. I later heard through the gossip mill that that story was untrue and that Lochte had in fact beat up some security guards. That turned out, it seems, just to be rumor-mongering, but the story has continued to evolve from there, with both Lochte and the Rio police making statements that later seem untrue, or only partially true, or exaggerated. Slate has a good run-down of the changing versions of Lochte's story, although it's from a week ago. Now Lochte has been charged with filing a false police report, since it does seem clear at this point that no robbery happened. Even that, however, is confusing to parse if you read a lot of articles about it: It seems like the crime is more accurately making a false communication to police, as some articles have eventually stated, since there are conflicting reports about whether a police report was ever filed.
In the wake of this whole mess, Lochte has lost several of his sponsorship deals (although he's also picked one up). It's unclear, because the contracts don't seem to be public, whether this is a choice of just not renewing the contract (apparently that's the case with Ralph Lauren) or if a violation of a morals clause is being invoked to allow cancellation of the contract (which might be what's going on with Speedo). All of this provokes an interesting morals-clause conversation to me, and we had a bit of discussion about it on the Contracts Professors listserv. It seems clear that Lochte engaged in some sort of inappropriate behavior, and it seems also clear that whatever that behavior was, even the most minor version of the story is arguably a violation of any morals clause out there.
What is most clear is that, no matter what really happened, this has definitely served to tarnish his reputation, and that's is what's striking to me. This story has taken on an enormous life of its own, with many differing versions of it floating around the Internet. This situation has been caused, of course, by Lochte's many differing stories, together with some apparent conflicting statements by the Rio police, coupled with reporting that may have been less than precise itself in describing what was going on. One online story details all the conflicting information and asks the individual reader what they believe about the story.
While this particular maelstrom seems to have some basis in fact, it's not difficult to imagine something like this getting out of control without such justifying behavior at the root of it. Morals clauses tend to be about perception, but does that mean you can manipulate the perception of someone, through no real fault of their own? Take, for instance, the "Ted Cruz is the Zodiac Killer" meme that was popular on the Internet earlier this year. Ted Cruz wasn't born until after some of the Zodiac killings had happened, so he obviously could not have been the Zodiac Killer, and in fact some people interviewed about the meme noted that was the point: what they were saying was impossible. Nevertheless, it was reported that polls indicated 38% of those surveyed thought he might, in fact, be the Zodiac Killer, despite the impossibility. If a substantial number of people start thinking you did something you absolutely did not do, is that enough for a morals clause to be violated, because of the perception that you did it?
Saturday, August 20, 2016
I apologize for my lack of blogging lately, but, you see, AT&T was supposed to have my Internet connected last Monday and still hasn't managed to get around to it, after a series of delayed appointments, canceled appointments, and appointments where no technician ever showed up. On Wednesday evening when I called to express my displeasure about all of this, I was told that my failure to accept the delays without complaining meant that they were now pushing my installation back even further, so that now I am looking at sometime next week.
Naturally, at a time when I will be teaching, so the Saga of Internet-less may drag on for a while.
I would love to examine my AT&T contract in detail to see what my rights (if any) are, but, of course, the contract requires me to have Internet access to get to it! So for the time being I am keeping my mouth shut and hoping AT&T decides to show up next week and then I will return to my regularly scheduled blogging!
Friday, May 20, 2016
Implied Warranties of Habitability on Houses Do Not Apply to Second Buyers If the First Buyers Waived Them
A recent case out of Illinois, Fattah v. Bim, Docket No. 119365 (behind paywall), allowed the court to clarify whether an initial home buyer's waiver of the implied warranty of the house's habitability applied to subsequent buyers, or whether the second purchaser of the house could nevertheless assert a breach of warranty claim against the builder of the home. The Supreme Court of Illinois concluded that a waiver of the warranty on the part of the first buyer eliminated the second buyer's ability to exert such a claim, overturning an appellate court decision that had sent reactionary ripples through the home-building blogosphere.
In 2005, Masterklad built a house that contained a brick patio. In 2007, Masterklad sold the house to Beth Lubeck. The sale of the house included a "Waiver and Disclaimer of Implied Warranty of Habitability" in which Lubeck "knowingly, voluntarily, fully and forever" waived the implied warranty of habitability that the State of Illinois reads into all contracts involving newly constructed houses. In exchange for the waiver of the implied warranty, Masterklad provided Lubeck with an express warranty on the house. The express warranty was limited to a one-year term. There was no allegation in the case that Lubeck's waiver of the implied warranty wasn't effective and enforceable, and there were also no allegations that Masterklad hadn't complied fully with the terms of the express warranty.
In 2010, a couple of years after the expiration of Masterklad's express warranty on the house, Lubeck sold the house to John Fattah. The sale of the house stated that it was "as is." A few months later, the brick patio that Masterklad had installed collapsed. Fattah sued Masterklad, alleging that the patio had had latent defects that violated the implied warranty of habitability.
At the trial court level, Fattah lost, with the court concluding that the policy that permitted knowing waivers of the implied warranty would be frustrated if subsequent buyers could resurrect the claims. The appellate court, as has been mentioned, reversed, though, finding that Fattah could assert breach of the implied warranty.
Illinois' Supreme Court disagreed with the appellate court's decision. While Illinois has previously determined that the implied warranty extends to subsequent purchasers of a house where the first purchaser has not waived the warranty, this was a different situation: Fattah was seeking to recover damages that the first buyer would not have been entitled to. Allowing Fattah to do this alters Masterklad's risk exposure in an unfair way. Masterklad sought to manage its level of financial risk by providing an express warranty with a clear termination date, as it was permitted to do under Illinois precedent. It was unfair to switch everything up on Masterklad at this late date. In fact, allowing Fattah to bring this claim would effectively mean that the implied warranty of habitability could never be waived, as it could be resurrected by any subsequent buyer--which was the opposite of what Illinois had decided when it concluded that the implied warranty could be waived.
The disagreements within the Illinois court system about this come down very explicitly to a policy decision. The appellate court seemed uneasy with waivers of the implied warranty because of public policy concerns, and one can see its point: You like to assume the houses you buy can generally be lived in. But the supreme court's point here also makes sense: If you buy a house "as is," you've usually gotten some kind of discount. If your gamble doesn't pay off, the courts are reluctant to revive arguments you bargained away. This might boil down to, much of the time, the maxim that a deal that seems too good to be true might, indeed, be untrue, and wariness should be employed.
Wednesday, February 10, 2016
On the subject of, again, releases for liability for negligence, a recent Delaware case, Ketler v. PFPA, LLC, No. 319 2015, examined one in the context of a Planet Fitness gym. The plaintiff was a member at Planet Fitness and had signed a membership agreement that contained a release for liability from negligence. The plaintiff was later injured while working out at Planet Fitness when the rowing machine he was using broke. He tired to argue that the release from liability for negligence was unenforceable. The court disagreed.
Under Delaware law, a release is enforceable if it is unambiguous, not unconscionable, and not against public policy. Here, the language of the release was straightforward and unambiguous. Furthermore, the court found the release wasn't unconscionable. It was true that the plaintiff had no opportunity to negotiate the terms of the contract but that wasn't enough on its own to find unconscionability. The court noted that the plaintiff was free to not join Planet Fitness so the release wasn't unconscionable. Finally, the release wasn't against public policy because the Delaware legislature has never spoken on the issue of releases of liability and it is the legislature that establishes public policy. So the release was enforceable and the plaintiff's claims were barred.
Friday, September 25, 2015
Yonathan Arbel has a post over on the New Private Law blog about the publication of the 2d edition of Charles Fried's classic Contract as Promise.
The post also includes a video of a panel discussion on the publication, which is embedded below.
Friday, September 4, 2015
I just noticed that Martha Ertman (pictured) will be a guest blogger at The Faculty Lounge. As the introductory post notes,
Her new book is Love’s Promises: How Formal & Informal Contracts Shape All Kinds of Families. More broadly, she rights about the role of contracts in intimate relationships. Here full cv is here.
We look forward to seeking lots of great posts on contracts law in the Lounge.
Friday, June 5, 2015
It was an easy decision for Judge Posner; he granted Sprint's motion to compel arbitration without too much difficulty, leaving him time to ruminate more generally on the purposes of the Federal Arbitration Act. We summarized his views as follows:
Having quickly dispensed with plaintiffs' opposition to the motion to compel arbitration, Judge Posner then focused his attention on Sprint's effusive celebration of arbitration provisions as "a darling of federal policy" (Judge Posner's wording). Judge Posner emphasized that language encouraging judges to enforce arbitration clauses was a corrective to an era when judges disfavored arbitration. The aim of federal policy is neither to favor nor disfavor arbitration but to compel arbitration when the parties have agreed to arbitrate claims. Fortunately for Sprint, this case was, in Judge Posner's view, not a close call.
Judge Posner then when on to note Sprint's motives in challenging the denial for arbitration when, in Judge Posner's view, the Andermanns will lose on the merits wherever their claim is decided. Judge Posner pointed out that Sprint wants to avoid class action litigation, which is prohibited under the applicable arbitration provision. He also noted that without the class action option, the claim is unlikely to be brought at all. Judge Posner then explained the absurd results that would follow from a finding that Sprint had violated the TCPA, thus effectively deciding a claim that the Seventh Circuit ruling will prevent from ever being brought, before catching himself and noting that the decision is really for the arbiter and limiting the Court's ruling to the instruction that the claim be sent to arbitration.
Fordham Law Professor Aditi Bachi (pictured) now has a post up over at the New Private Law blog in which she uses Judge Posner's opinion as an occasion to ruminate on the need for a federal arbitration policy. As she puts it:
Putting aside for the moment what stance federal courts should take (and which Congressional statutes might speak to the question), arbitration is too substantial a public policy issue for courts to approach these terms with ostensible neutrality. In the absence of an articulated policy, we are likely to end up with courts that are in practice either friendly or hostile but march under the banner of neutrality.
We look forward to the ensuing policy debate, which is long past due.
Monday, May 25, 2015
Law School Interactive, which provides podcasts for various purposes relating to law school, has a new podcast up featuring Frank Snyder (pictured left), the Zeus from whose head this blog sprung, and two friends of the blog, Brian Bix and Steven Schooner. It's always interesting to hear how colleagues introduce the topic of contracts law to prospective students. You can find the podcast here.
Law School Interactive summarizes the podcast as follows (slightly edited):
Frank Snyder starts his comments by defining contract law and explaining it as an unusual part of the legal system, and speaks of its practical aspects and the importance of being attuned to the client’s needs. Professor Snyder finishes his comments by likening the practice of contract law to business advising. He mentions that those who are good business advisers will likely enjoy and do well with contract law. He also advises students to investigate all areas of legal practice that they are interested in to find the one they would like to specialize in.
Steven Schooner [right] explains that contract law is a very different law practice than the more common practice areas of criminal, tort, or defense law. He underscores the fact that there seems to be no gray areas when it comes to students and contract law: Students either consider the field fascinating, or they don’t. He says that if you find business and bargains interesting, contract law might be the practice for you—and a love of math and numbers helps too.
Our final guest, Brian Bix [left], talks about contract law’s connection with many other specialties. Although undergraduate courses will not teach you much about the intricacies of contract law, Professor Bix tells budding law school student not to worry—law school will definitely give you the tools you need to succeed in the field. He ends his advice by saying that to be successful in this practice of law, face-to-face interaction and conversational skill are definitely a necessity.
Tuesday, May 5, 2015
Yesterday's post has inspired quite a bit of traffic here and elsewhere. Over on Brian Leiter's Law School Reports, Michael Simkovic asks whether conditional scholarships are good for law students.
Deborah Merritt responds on the Law School Cafe and answers the question in the negative. She thinks conditional scholarships mostly help law schools, and they hurt students by creating a stressful competitive environment.
Michael Simkovic (again on Leiter) disagrees. He argues that conditional scholarships motivate students to work hard in law school and cites to studies linking motivation and academic performance.
Deborah Merritt shoots back on the Law School Cafe.
And Michael Simkovic again responds on Leiter.
It is hard for me to keep up with the pace at which these people blog.
I have only a few quick points to make in response to Professor Merritt, whose remarks are largely critical of the position I have taken here:
- It seems we are all agreed that the disclosure problems related to conditional scholarships have largely been addressed through the ABA website that enables students to comparison shop among scholarship offers from various schools and know their chances of retaining their conditional scholarships. Some law schools routinely offer a lot of merit scholarships in the first year knowing that most students will not retain them thereafter. But that information is now easily available, and we will see if students vote with their feet against such a model.
- Professor Merritt properly chastises me for treating Wikipedia's listing of normalization curves as authoritative. I think Wikipedia is a good place to start, but my main point is that information about normalization curves should be readily available for each school a student is considering attending.
- I find the absence of curves in undergraduate grading perplexing, and I find it astonishing that anybody would think non-curves are better than curves. I could easily design an exam that all my students would ace (above 90% correct) and an exam that all my students would fail (below 60% correct). But there is nothing holy about base ten, and my aim should not be to design a test so perfectly calibrated that the difference between a 91% and an 89% is meaningful but the difference between 86% and 84% is not. My aim in assessment is, among other things, to have a tool that helps me distinguish within a group of students who have had the same educational experience. A curve helps me do that better than random divisions at every point at which the score passes a 0.
- Professor Merritt points to a study in which the J.D. placed only sixth in a ranking of the best graduate degrees. As if that were a bad thing! Three of the degrees that ranked more highly are Ph.D. programs likely to take twice as long as the J.D. and the others likely require higher math or computer programming skills. This extremely high ranking for the J.D. is terrific news. By the way, the MBA, a frequent alternative to the J.D., ranked 14th.
- Professor Merritt tells an anecdote about a student who decided not to pursue a J.D. when she learned of conditional scholarships. She decided to take her graduate tuition dollars elsewhere, but where? Unless she earned a Ph.D. in statistics, computer science or physics, or a Masters Degree in human computer interaction or biostatistics, according to the study cited by Professor Merritt, she made a poor choice.
Professor Merritt's second post turns on an anecdote about teaching the same course (torts) the same way to different students and getting very different results. As a consequence, she had to give students in the "smart section" who did better on the exam worse grades than some students who did worse on the exam in the weaker section. Three thoughts:
First, one cannot step into the same river twice. One semester when I taught history at the College of Charleston in the 1990s, I had four sections of Western Civ., all on a Tuesday/Thursday schedule (they were long days!). Same readings, same outside materials, same assignments, same lecture notes. Each section developed its own identity. They were four different courses.
Second, in fifteen years of teaching at both the college and law school level, I have never had a similar problem. An anecdote is not an argument. No system of grading is perfect, and I can live with small injustices around the edges of grade normalization. Whether or not a student retains a conditional scholarship is not determined by her performance in any one course.
Third, consider the insight of Professor Merritt's plucky college student who decided against a J.D. Knowing only undergraduate education, the student remarked, “It’s not like there’s a quota on the number of A’s or anything.” In that world, the undergraduate professor gives A's to all of the students in the "smart section" who "earned" them according to some mysterious but fixed standard. Outside of the STEM courses, the undergraduate professor can also give As to the best students in the weaker section, even though the same performance would have earned them a B in the "smart section." Within the STEM courses, imagine the stampede of angry pre-med students from the weaker section who will decry the injustice that there were no A's in their section but eight in the other. I pity the department chair who has to sort out that mess.
Links to Related Posts:
The Current Series
XI:Another Transparency Issue: Conditional Merit-Based Scholarships
X: Siloing: The Next Unneeded Import from Undergraduate Education
IX: Legal Education in the News and on the Blogosphere
VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself?
Related Posts form 2012:
Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem