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Contracts in the Real World and the Law School Curriculum

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4 Responses

  1. Lawrence Cunningham says:

    A.J.

    It is not so much about celebrity deals per se. It is about the modern context. The contexts of many classic cases are not relevant today. The contexts of their modern counterparts are. It is harder to teach general principles from irrelevant contexts than from relevant ones.

    Consider some of the archaic contexts in which many classic cases in today’s casebooks occurred:

    commercial: sailing ships, gold prospecting, communications by handout or telex, itinerant (slave) farming;

    personal: experimental skin grafting surgery, quack flu remedies, the novelty of promoting national sports events, abstinence clauses;

    social and attitudinal: palimony, paternity, homosexuality, mental illness, gambling, drinking, the treatment of animals.

    The old settings are gone, not relevant to what students have experienced or will practice. But the principles, as the modern stories show, remain relevant. That is the beauty and majesty of the common law of contracts.

  2. Jake Linford says:

    Nancy,

    I share some of your discomfort with ProCD, but I’ve tentatively concluded that Judge Easterbrook didn’t reach the wrong conclusion, he just got there the wrong way. He would have been on firmer ground to decide that Zeidenberg was the offeror and apply 2-207, instead of ignoring it. Under the interpretation of UCC 2-207(2) in Klocek, the shrinkwrap would have been an offer of additional terms. But comment 6 of 2-207 points out that “[i]f no answer is received within a reasonable time after additional terms are proposed, it is both fair and commercially sound to assume that their inclusion has been assented to.”

    It would be easy to conclude that Zeidenberg’s use of the software, and especially the daily clicking of the clickwrap license, was sufficient at least to constitute acceptance, because Zeidenberg acted like he was bound by the clickwrap contract when he daily assented. This might also sufficient to form a contract under 2-207(3), if we treat the writings offered by ProCD, including its shrinkwrap and clickwrap licenses, as “terms on which the writings of the parties agree.”

    * Faulty attribution: I feel like I discovered this analysis in an article, and now I don’t know whose. I don’t think this idea is original with me, but I find it persuasive. If you’ve seen it somewhere else, please let me know.

  3. Nancy says:

    A.J.,

    Some of my students might very well represent celebrities (my law school is based in Southern California….) Many of the others, however, don’t find Contracts relevant because they don’t think they are going to practice “contract law” – they plan to be criminal defense attorneys or litigators. (Of course, the truth is, that many of them may very well end up practicing “contract law” and I always point out that all of them will be dealing with contracts on some level). They take the course b/c it’s required and I think Larry’s book makes it relevant to their world. I agree, too, with Larry about importance of the modern context. The type of deals discussed in Larry’s book are closer to what my students will be dealing with than the arrival of cotton on a sailing vessel or the sale of a fertile cow. Even if not, simply making an abstract concept interesting makes it easier to learn. Retaining student attention is half the battle (maybe more).

    Jake,
    As my post stated, I am not necessarily in disagreement about the result, but the rationalization. I disagree though with your analysis of 2-207- I don’t think this is what’s meant by terms on which the writings of the parties agree (primarily b/c there was only 1 writing). I think a better course would have been a quasi contract theory.

    Thanks for your comments.

  4. Jake says:

    On relevance, shrinkwrap licenses, and the like — a heads up about another new book (forthcoming next month) that discusses these issues in a way that many law professors and students will find interesting: Prof Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law: http://press.princeton.edu/titles/9837.html

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