Archive for the ‘Contract Law & Beyond’ Category
What is a treaty? Is that the right question?
posted by Matthew Lister
(Thanks to Danielle and the Co-Op crowed for letting me stick around a bit longer.)
I am interested in how we should think about treaties. More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances. At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications. (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.) I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on this understanding, though I won’t try to make that case here. (If so, this would be interesting in light of fact that Hans Kelsen at one point held, I believe, pacta sunt servanda to be the “basic norm” of international law, though he later abandoned this.) Read the rest of this post »
September 8, 2011 at 6:02 am
Posted in: Contract Law & Beyond, History of Law, International & Comparative Law, Jurisprudence, Legal Theory, Trade, Uncategorized
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Murdoch’s Illegal Contracts
posted by Lawrence Cunningham
Can you sell your silence, under English (or American) law? Rupert and James Murdoch’s News Corp. tried to buy the silence of victims of their phone hacking ring. To insulate their tabloid newspapers from reputational harm, the company signed what James calls “out of court settlements.”
Hush contracts were made with the English acttress, Sienna Miller, for £100,000 ($161,000) , and with the soccer union leader Gordon Taylor for £725,000 ($1.1 million). There are likely many such others , in which the paper paid cash in exchange for a victim promising to stay quiet. But are these contracts legal?
English (and American) law give a broad space for freedom of contract, and both give wide latitude for people to buy and sell silence. Confidentiality clauses are common in settlement agreements as well as a wide range of settings, from employment contracts and prenups to severance and separation agreements. Bill Gates even put one in his home builder’s contract! There is nothing about silence as such that makes them invalid.
But the law classifies some bargains as illegal and therefore invalid. In the case of contracts for silence, it draws the line at promises to hush up problems that threaten the public interest. In the United States, the law is quite clear that contracts to conceal criminal behavior are illegal and invalid. Read the rest of this post »
July 20, 2011 at 7:59 am
Posted in: Contract Law & Beyond
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Losing the Wall St. Journal
posted by Lawrence Cunningham
My friend Rob Cox of Breaking News offers an interesting perspective in today’s New York Times on the Rupert/James Murdoch scandal. It addresses The Wall Street Journal and an integrity clause in an agreement governing it.
The once-venerable Journal, long privately owned by the Bancroft family’s Dow Jones & Co., was revered for excellent reporting and astute coverage of business and world affairs. In 2007, the Bancrofts sold Dow Jones and the paper to the Murdoch tabloid empire, News Corporation, for $5 billion.
The sale was controversial among readers, journalists and editors of the Wall Street Journal. Murdoch’s raunchy and pugnacious style did not mix well with the high standards at the Journal of integrity in reporting and general refinement in opinion making.
To ease the concern, the merger agreement between Dow Jones and News Corporation required execution of an Editorial Agreement. It created a watchdog committee to uphold the Journal’s traditional “principles of integrity” and maintain its longstanding Code of Conduct.
Cox wonders whether that committee has contractual powers to address any violations at the paper and other Dow entities committed by the Murdochs, News Corporation, current managers of Dow, or editors or writers at the Journal. Cox says the phone-hacking crimes the News Corporation papers committed in the U.K. “arguably violate” those principles. If so, the committee ought to get cracking.
But I’m not sure that criminal violations of the phone-hacking sort are what the provisions of the Editorial Agreement were intended to address. Rather, they seem to address journalistic valor of the sort the Journal has gradually and steadily been sacrificing since 2007.
The committee has had clear authority to assert itself in those matters but has not corrected the slide. It is not obvious why it would rise now when its authority to act is far less certain. Put another way, it may be too late to save the Wall Street Journal from the effects of Murdoch ownership. Read the rest of this post »
July 15, 2011 at 10:34 am
Posted in: Contract Law & Beyond, Culture, Current Events
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Kevin Costner’s Bison
posted by Lawrence Cunningham
The movie star, Kevin Costner, who is also a hospitality entrepreneur, won a round last week in a lawsuit disputing what’s to be done with an elaborate ensemble of sculptures he commissioned years ago for a luxury resort he has fantasized about but never built. The court made the issue sound simpler than the parties thought it was and the opposing lawyer promises an appeal.
Costner’s fantasy, inspired by his heroic 1990 film “Dances With Wolves,” in which he starred as Lt. John J. Dunbar, imagined a 5-star hotel in the Black Mountains near Deadwood, South Dakota. For the centerpiece of the resort, to be called The Dunbar, Costner commissioned 17 massive bronze sculptures, assembled as the “Lakota Bison Jump,” from the noted local artist Peggy Detmers.
They depict 14 bison and three Native Americans hunting them on horseback, at 125% of life-scale. Costner initially commissioned the sculptures in 1994 under an oral agreement, paying Detmers $250,000. The two agreed to share royalties from sales of reproductions of the sculptures, which they expected would generate millions more.
By 2000, however, the Dunbar resort was not yet underway, and Detmers became anxious about whether her sculptures would be displayed and royalties on sales begin to flow. Costner reassured her in a two-page letter of May 2000, which included the following language whose meaning the parties have been disputing:
Although I do not anticipate this will ever arise, if the Dunbar is not built [by 2010] or the sculptures are not agreeably displayed elsewhere, I will give you 50% of the profits from the sale of the sculptures. Read the rest of this post »
July 10, 2011 at 9:46 am
Posted in: Contract Law & Beyond, Current Events
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Divorce Law Beats Fraud, Maybe Contract
posted by Lawrence Cunningham
We’ve debated whether mutual mistake is a ground to rescind divorce settlements dividing marital property based on an account held with Madoff. The New York Court of Appeals will soon decide in the case of Simkin v. Blank.
As a matter of contract law, in my opinion, they should be rescindable, when people cannot reasonably be supposed to have allocated the risk that an account was fraudulent.
As I noted in Peter Lattman’s N.Y. Times story on the pending Simkin case, the real policy debate pits principles of contract law, about protecting party risk allocation, against principles of domestic relations law, where the finality of divorce settlements might warrant upholding even such mutually mistaken contracts.
The New York Court of Appeals today issued an opinion, CFTC v. Walsh, with clues about this balance. Today’s divorce settlement case involves an innocent spouse who received millions of dollars from an ex who allegedly committed a spectacular securities fraud (amounting to some $550 million).
Federal agencies want to recover the property from the innocent spouse. The defense: the millions counted as marital property and the settlement agreement makes it hers, even if fraudulently obtained and once belonging to innocent victims.
The Court thus weighed whether to privilege the public policy intended to restore stolen property to rightful owners or the one favoring finality of divorce settlement agreements. Read the rest of this post »
June 23, 2011 at 6:12 pm
Posted in: Contract Law & Beyond, Family Law
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Treasury’s AIG Gag Order
posted by Lawrence Cunningham
Top business executives in the United States regularly contact Members of Congress to lobby on legislation and other matters of public policy. But since the September 2008 government takeover of AIG, executives of that company have been forbidden to do so, unless they first get the Treasury Department’s permission, and the Treasury Department refuses to grant it.
Since AIG executives are afraid to speak out, disclosure of this un-American provision was left to Maurice (“Hank”) Greenberg, former chair and until 2008 the largest shareholder of AIG. He disclosed it yesterday on CNBC.
This is yet another example of the dubious tactics used in Sept. 2008 by Hank Paulson and Tim Geithner when they wrested control of AIG for the U.S. government. Besides having scant legal authority for their takeover actions, the successive Treasury Secretaries tried to keep from the public how the government funds injected into AIG did not support it or its shareholders or employees but were funneled as a backdoor bailout of Goldman Sachs and other Wall Street firms.
It is thus par for the course—but equally outrageous—that we now learn that when Paulson and Geithner imposed this straightjacket on AIG, they also made the company (a) adopt a policy suspending all lobbying and then (b) sign a loan agreement prohibiting it from changing that policy without Treasury’s consent—which apparently may be withheld for any reason or no reason. Read the rest of this post »
June 21, 2011 at 2:37 pm
Posted in: Administrative Law, Civil Rights, Contract Law & Beyond, Corporate Finance, Corruption, Current Events, Politics
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Transactional Lawyering at the Movies
posted by Dave Hoffman
I’m looking for some good examples of movie clips from recent films in which the presence (or absence) of transactional lawyering is key to the action. The best example I’ve got so far is from the Social Network. Recognizing that showing clips of business lawyering isn’t for everyone, I’d still appreciate your tips. Negotiation scenes, drafting discussions, closings — anything that would motivate student excitement about transactional practice.
June 2, 2011 at 2:12 pm
Posted in: Contract Law & Beyond, Corporate Finance, Corporate Law
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Analysis of Simkin v. Blank
posted by Lawrence Cunningham
The front page of the New York Times (May 31, 2011) contains a great story by Peter Lattman, quoting me, on the pending case of Simkin v. Blank. The question is whether a divorce agreement based on the assumed existence of an invstment account with Bernie Madoff’s firm can be rescinded due to mutual mistake.
A few of the many comments on Mr. Lattman’s article disagree with my quote in the article that the case is strong for mutual mistake. Absent space in the New York Times to explain, following is an elaboration of this position. It is one of the 45 stories about recent contracts disputes in my forthcoming book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter (Cambridge University Press 2012). Read the rest of this post »
May 31, 2011 at 6:17 pm
Posted in: Contract Law & Beyond, Current Events
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Pareto in Practice
posted by Andrew Sutter
It’s not everyday that textbook law and economics concepts have a practical application. But a nice little object lesson came up recently in my practice. It’s a classic case of Pareto inefficiency, or suboptimality – arising entirely from the way lawyers chose to draft a contract. The true life case study is after the fold.
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May 18, 2011 at 12:48 pm
Posted in: Contract Law & Beyond, Corporate Law, Uncategorized
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Help Wanted: Editing Contracts Monograph
posted by Lawrence Cunningham
I’m seeking editorial assistance from a few good Contracts scholars to provide a substantive review of the manuscript for my newest book, provisionally entitled Contracts in the Real World: Stories of Popular Contracts and Why They Matter (noted here).
The manuscript, now nearly complete to become a 240-page book, has been professionally edited for content and style, is trimmed to scale, and earlier chapter drafts have been read by a half dozen colleagues and several anonymous peer-reviewers. At this near-final stage, I’m looking for overall substantive evaluation, including not only correcting errors and minimizing unnecessary quibbling, but promoting the work’s utility to teachers of contracts and their students.
I would be delighted by anyone volunteering to read a few chapters to provide feedback, but am also prepared to pay a stipend (from my advance) for a more rigorous read of the full manuscript giving specific corrections, observations and suggestions. Any Contracts professor interested in either role, please email me: lacunningham@law.gwu.edu, letting me know.
May 16, 2011 at 6:10 pm
Posted in: Administrative Announcements, Book Reviews, Contract Law & Beyond, Law School (Scholarship)
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SCOTUS AT&T Opinion Par for Rhetorical Course
posted by Lawrence Cunningham
Par for the Supreme Court course, its opinion in AT&T Mobility is rich with empty rhetoric about arbitration being a creature of contract while being more explicit than ever that what matters in these cases is the Court’s powerful national policy strongly favoring a particular form of arbitration over other ways to resolve disputes.
In finding preempted California contract law holding unconscionable clauses in consumer adhesion contracts mandating bilateral arbitration, the Court’s 5-4 opinion by Justice Scalia breaks only that little bit of new ground.
The opinion’s principal notable points are (1) to stress more intensively than ever that a primary purpose of federal arbitration law is to promote bilateral arbitration, to streamline dispute resolution, and celebrate the informality of bilateral arbitration against class arbitration and (2) to elaborate the differences between bilateral and class arbitration that the Court assumed everyone knew in last term’s Stolt-Neilsen opinion. And the Court continues to say that all of this is a matter of contract!
The Court stresses that its jurisprudence treats the federal arbitration statute as expressing both a liberal federal policy favoring arbitration and that arbitration is a matter of contract. Without showing awareness of the inherent conflict in this paired purpose, and parading its rhetorical feathers, the Court said the upshot is to put arbitration agreements on an equal footing with other contracts, including as to defenses.
The Court could not accept the validity of the California unconscionability defense, however, because it did not advance the national policy. Justice Scalia gave a new definition of that national policy, again combining two ideas that are in conflict while pretending they are in harmony: “to ensure enforcement of arbitration agreements according to their terms, so as to facilitate streamlined proceedings” (emphasis added).
The opinion fights tirelessly but unsuccessfully to prove that it has not made up this new version of the national policy. It struggles strenuously but unsuccessfully to persuade us that there is no conflict between its devotion to arbitration and basic principles of Anglo-American contract law. Read the rest of this post »
April 27, 2011 at 5:44 pm
Posted in: Consumer Protection Law, Contract Law & Beyond, Supreme Court
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Invective Left and Right in King+Spalding DOMA Affair
posted by Lawrence Cunningham
Opinionated political hyperbole continues to shroud cold analysis in our society, nowhere more evident than exaggerated grandstanding about one law firm’s role in representing politicians committed to upholding a controversial 1996 statute defining marriage in a particular way. On one side, the lawyer handling the case accused his firm of cowardly capitulating to political pressures that risk undermining the rule of law; his opponents accused the lawyer of signing an agreement that was “illegal” and “criminal.” In fact, the firm credibly cited internal failures, not political pressures, and the agreement’s terms do not warrant such condemning invective.
As background: The politicians, a group of House members calling themselves the Bipartisan Legal Advisory Group, authorized the General Counsel of the House on March 14, 2011 to retain a law firm to support Section III of the Defense of Marriage Act against constitutional challenge in United States federal courts. The General Counsel retained King & Spalding, a large and generally respected law firm, naming as the principal lawyer Paul Clement, a former Solicitor General of the United States, under a retention agreement signed April 14. The firm promptly filed an application to intervene in a pending civil case, on April 18.
Yesterday, however, the firm announced its preference to rescind the contract and filed formal papers seeking to withdraw its application to intervene. The firm explained its preference as due to an internal failure to vet the retention adequately. Mr. Clement promptly resigned the firm, writing a letter protesting against “abandoning” a client because its “legal position is unpopular in certain quarters.” He attributed the firm’s decision to political efforts that sought to “delegitimize” the representation and complained that it’s not the business of the firm or himself to evaluate whether a client is on the “wrong side of history” or the “right side of history.”
The firm, notably, did not mention any of these factors in its request to withdraw its application, citing instead “problems with the firm’s vetting process.” The vetting process could have failed in many ways, and those may include failure to evaluate fully the political aspects of the case. But it could also be due to the low price reflected in the retainer agreement, which capped the total payment for services at $500,000, put the average hourly rate for attorney time at a low $520, and discounted non-lawyer rates to 75% of market rates. Mr. Clement should be ashamed for his posturing. If his ideals require resigning and finding another firm to handle the case, he should simply do so without the self-righteous hyperbole and without gratuitously smearing the firm.
April 26, 2011 at 10:30 am
Posted in: Contract Law & Beyond, Culture, Current Events, Uncategorized
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Charlie Sheen’s Partying, Capacity
posted by Lawrence Cunningham
It’s wonderful when real world events dovetail with classroom lessons and nowhere is that more evident today than with Charlie Sheen versus Warner Brothers in Contracts classes.
The case, now in arbitration, involves Warner’s show on CBS “Two and a Half Men,” in which Sheen has starred for eight seasons. Warner and CBS terminated it last month, calling Sheen’s objectionable conduct a breach of contract. Sheen denies his conduct was a breach of contract, making Warner’s termination the breach of contract in the case.
The dispute, which Sheen should settle but appears unwilling to, will require resolving the familiar problem of “who breached first,” which hinges on many sub-issues, concerning interpretation, conditions, repudiation, and assurance of performance.
At most steps, the facts trigger a classic case that has been widely taught in Contracts classrooms for a century. One issue, addressing Sheen’s sobriety, evokes the 1908 case of Clark v. West, where a law professor’s publishing contract contemplated his abstention from drink.
The Sheen-Warner contract does not expressly prohibit the party boy from excessive drinking—or taking illegal drugs or other widely-publicized objectionable behavior. But it does contemplate that he will command the capacity to perform his role in producing episodes of the show.
April 25, 2011 at 12:04 pm
Posted in: Contract Law & Beyond, Current Events
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Supreme Court Arbitration Rhetoric v. Reality and AT&T
posted by Lawrence Cunningham
Lawyers keep telling clients that arbitration is a matter of contract, not coercion. That follows Supreme Court rhetoric that’s belied by Supreme Court practice. The Court’s pending case in AT&T Mobility v. Concepcion gives the Court a final chance to resolve the gap between its talk and action concerning arbitration. 
I doubt, however, the Court will seize the opportunity. Instead, the Court likely will continue to tell us that its arbitration jurisprudence is merely applied contract law, while its applications will continue to coerce people into arbitration because the Court has established a national policy favoring arbitration.
That is the lamentable assessment provided in my new article on the subject, Rhetoric versus Reality in Arbitration Jurisprudence: How the Supreme Court Flaunts and Flunks Contracts (and Why Contracts Teachers Need Not Teach the Cases).
As with practicing lawyers, legal scholars have generally ignored this rhetoric-reality gap too, many routinely repeating that arbitration is all about contract (a notable exception is David Horton). As a teacher of Contracts for 20 years, I began to hear this rhetoric last summer, beginning with my receipt of a reprint of an Illinois Law Review article by noted arbitration scholar Thomas Stipanowich.
In a comprehensive review of the state of arbitration law and practice, the piece criticized editors of Contracts casebooks for paying too little attention to arbitration and especially to how the attention given was often extremely negative. With modest exceptions, including in Ian Ayres’ casebook, Contract law books and courses have not generally treated arbitration much and the treatment often is in the context of illustrating doctrines like unconscionability or lopsided terms not comporting with reasonable expectations of a community.
I began following pending Supreme Court cases on the subject and scrutinizing those handed down in preceding terms. I found the talk about contracts and contract law intriguing because it made it sound as if arbitration was at the center of contract law and that contract law was at the center of arbitration law. That made it seem irresponsible for me, Contracts casebook editors, and other teachers, to leave arbitration at the margins of the Contracts course or outside it altogether.
Alas, the truth is that contract and contract law have so little to do with what happens in arbitration jurisprudence, particularly compared to Court rhetoric, that it would confuse or mislead students taking Contracts to provide it as an illustration. To that extent, arbitration warrants the glancing treatment in the Contracts course it gets, followed by an optional upper-level course.
Among the many costs of the Court’s rhetoric-reality gap are those manifest in the AT&T case, on which the Court is now struggling to write an opinion.
April 15, 2011 at 6:08 am
Posted in: Consumer Protection Law, Contract Law & Beyond, Supreme Court
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Huffington Post Bloggers’ Claim: Likely Loser
posted by Lawrence Cunningham
Thousands of bloggers have sued the blog, Huffington Post, claiming entitlement to pay for posts made over the years. They demand 1/3 of the take from the blog’s pending sale to AOL for $315 million. They say they conferred a benefit on the blog by their posts, warranting payment. What are the chances of this claim prevailing? Close to zero.
Ordinarily, contract law enforces bargains when they are made before performance is rendered. If HuPo agreed to pay bloggers for posts ahead of publishing them, the arrangement would follow the standard pattern and be enforceable. But contract law does not recognize the opposite sequence, performance before bargain. People conferring benefits without bargains are usually seen to act gratuitously.
There is a rationale behind this doctrine: any other rule would mean that people could impose contract duties on others simply by conferring benefits on them. In such a world, expect mail order companies shipping unordered goods for payment, squeegee windshield washers making enforceable claims for money, and neighbors doing more to each other’s homes than anyone would want.
But a principle called “restitution” reflects the limit to the doctrine. In some situations, denying compensation is simply unjust, such as when someone confers benefits on another who either requested them or accepted the benefits. Courts construe this exception narrowly, however, to avoid condoning behavior the law calls “officious” under a doctrine that denies such compensation to “officious intermeddlers.”
People conferring unrequested benefits are not entitled to compensation, however valuable or beneficial such actions may be. But people conferring requested benefits stand a chance—though a slim one at best and one close to zero in the case of the bloggers. Two classic examples of this law of “quasi-contracts,” often taught in Contracts classes in law schools, jump out. Read the rest of this post »
April 14, 2011 at 10:17 am
Posted in: Contract Law & Beyond, Current Events
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Targeting Odious Top Pay Contracts
posted by Lawrence Cunningham
Cross-posted at Harvard Law School’s Corporate Governance blog, this summarizes in some detail my new paper on applying simple contract principles to police odioius executive pay contracts:
Executive pay has skyrocketed in recent decades, in absolute terms and compared to average wages. The area of largest growth has been in stock-based components, including stock options, often tending to focus on the short-term, with associated risks we’ve seen. A vigorous academic debate has run for more than a decade, becoming a popular political discussion amid the financial crisis exposing arcane debate to public scrutiny.
Growth could be laudable, explained as creating proper incentives to align manager interests with shareholder interests and to promote optimal risk taking. In this view, if there is a problem, it is narrow and limited. Critics are skeptical whether this story holds up. They worry that managerial power has strengthened to enable top executives to control setting their own compensation. In this view, the problem is pervasive and warrants a comprehensive response—and proposals abound.
I come down in the middle. There are problems in at least an important number of cases, and current proposals to redress them are unlikely to work. So I seek a new approach—contract unconscionability—to police extreme cases. The proposal must surmount some hurdles but isn’t as radical as it sounds.
A good way to summarize the debate highlights a three-pronged theory that promotes much of prevailing executive compensation, especially stock-based components, and contrasts it with limits on each prong.
First: in optimal contracting theory, boards design manager contracts to minimize agency costs. But when managers dominate the process, the managerial power thesis suggests this ideal may not be met.
Second: with efficient stock markets, stock price is a good proxy for the shareholder interest and a mirror of managerial performance. But stock price can differ from business value for sustained periods, fogging both.
Third: stock-based pay could align managerial incentives with shareholder interests if designed right and markets work well. But otherwise they create perverse effects. Read the rest of this post »
April 13, 2011 at 12:09 pm
Posted in: Contract Law & Beyond, Corporate Finance, Corporate Law, Securities, Securities Regulation
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Honor & Private Law
posted by Dave Hoffman
Nate Oman has a terrific short paper up on SSRN that’s a must read for contract and tort scholars (and teachers): The Honor of Private Law. From the abstract:
“While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: The vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. The justification of civil recourse must answer three questions. First, under what circumstances – if any – is one justified in acting or retaliating against a wrongdoer? Second, under what circumstances does the state have reasons for providing a mechanism for such action? Finally, how are the answers to these questions related to the current structure of our private law? This Article offers the vindication of wronged honor as an answer to these three questions. First, I establish the historical connection between honor and litigation by looking at the quintessential honor practice, dueling. Then I argue that the vindication of honor is normatively attractive. I do this by divorcing the idea of honor from unsavory associations with violence and aristocracy, showing how it can be made congruent with certain core modern concerns. In particular, when insulted parties act against wrongdoers, they reestablish the position of respect and equality that the insult upset. I then show how having the state provide plaintiffs with a means of vindicating their honor avoids making the political community complicit in the humiliation of its citizens and provides those citizens with a means of exercising their agency in ways that provide a foundation for self-respect. Finally, I show those areas of private law where honor operates most powerfully as a justification for providing recourse through the courts while acknowledging that it operates less powerfully as a reason in other areas.”
The paper is of a piece with Nate’s other recent work that illustrates the structural oddness of private litigation (odd from an economist’s perspective, that is). Nate also has a novel analysis about dueling & its relationship with lawsuits. (If you want to learn more about dueling – and why wouldn’t you? – read Harwell Wells’ End of the Affair.) Over time, I’ve become an increasing fan of civil recourse theory as a way to conceptualize and teach contract law, and Nate’s paper makes an important contribution to that literature. Check it out.
April 12, 2011 at 2:23 pm
Posted in: Articles and Books, Contract Law & Beyond
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Digital Law Books: II
posted by Lawrence Cunningham
As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.
Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.
In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.
April 5, 2011 at 1:17 pm
Posted in: Contract Law & Beyond, Education, Law School (Scholarship), Law School (Teaching), Law Student Discussions, Law Talk, Teaching
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Thank God For U.C.C. 2-309
posted by Dave Hoffman
After a nuclear war or other apocalyptic change in our social relations, I know the first thing I’d be worried about is what will happen to the default rules of contract. The bureaucrats who nervously considered such issues in the 1960s weren’t lawyers. But they were deeply concerned about that problem too:
“Businessmen, in particular, but others as well, would experience disturbing and subtle changes in familiar institutions and in such bases of mutual trust as methods of establishing or verifying credit…or estimating delivery dates.”
Fools! Don’ t they know that 2-309 provides that the time for delivery shall be reasonably set? Apocalypse or not, so long as we retain but one copy of the U.C.C., we’ll be fine. (Imagine the irony from the perspective of a suffering law student if that one copy became highly sought after!)
(H/T: BoingBoing)
April 1, 2011 at 3:04 pm
Posted in: Contract Law & Beyond
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Eminem’s New Millions, Courtesy of Three Judges
posted by Lawrence Cunningham
Looking today at words written in 1998, do you think you could tell what the author meant to say about a product not invented until 2003? Three top federal judges in California think they can and their nine superiors on the high court in Washington decided last week not to second-guess them.
As a result, Eminem, my favorite rapper, will be a few million richer in coming days. That’s due to the three judges ruling in his favor in a fight about what his record contract means.
For selling records the old-fashioned way, the 1998 contract clearly calls for the record label, a Vivendi unit, to pay the star up to 20% of receipts as royalties, but not more. It also clearly gives the artist 50% as royalties on licenses of his music.
At issue was what rate applies to i-Tunes and ringtones, which did not exist in 1998 but have proliferated since 2003. The judges said the 50% rate clearly applies. This is a big win for Eminem—and a potential windfall for many artists with pre-download era contracts. It is also quite a show of self-confidence by the judges.
March 29, 2011 at 10:59 pm
Posted in: Contract Law & Beyond
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