Category: Law School (Scholarship)

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Using Contracts in the Real World in the Classroom

Aside from the deeper theoretical questions that Prof. Cunningham raises about contract theory in Contracts in the Real World,  the heart of the book is in its fun, rollicking, and thoroughly modern examples.

Every contracts professor should take a look at this book to glean ideas for real-world examples and hypotheticals.  Even if your textbook is stuck in the world of itinerant homesteaders, ships using astrolabes for navigation, and delayed industrial components (shout out to Kirksey, Raffles, and Hadley v. Baxendale!), your students will appreciate the use of some fun celebrity stories to liven up the classroom discussion.

The last time that I taught Contracts, for example, I did a series of hypotheticals based on Charlie Sheen’s contractual troubles.  Based on Prof. Cunningham’s materials, I was able to structure some hypotheticals based on Sheen for my unit on conditions.    The students seemed to appreciate it, and in fact, I have asked a student from my class last year to share her impressions with our blog readers. It appears here

 

Miriam Cherry is Professor of Law at Saint Louis University School of Law.  Some of her scholarship can be found at this link on SSRN.

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Modern Technology: A Disruptive Influence on Contract Doctrine?

In my view, modern technology has exacerbated the doctrinal tensions within contract law.  Currently, clickwraps and browsewraps stretch the notion of mutual assent to its extreme, perhaps warping it in the process.

The recent literature on form contracting online has been substantial.  While some of this literature sees online contracting as a natural inheritance to traditional contract law doctrine, other commentators have argued that contracting online has distorted the doctrine.

In Contracts in the Real World, Prof. Cunningham attempts to reconcile two recent cases, Specht v. Netscape and Pro-CD v. Zeidenberg, as part of his treatment of the theme of contract formation and mutual assent.  As much as he tries, to me the cases still seem to be in conflict.

And if that weren’t enough, two well-known additional cases that dealt with late-arriving terms inside a computer box, Hill v. Gateway and Klocek v. Gateway, blatantly contradict each other, with contrary holdings on virtually identical facts.

In my mind, these contradictions reveal a mismatch in the doctrine and the reality on the ground.  If there is no way for consumers to read or understand, or perhaps even see these clickwrap agreements, it hardly seems fair to bind consumers to them.  As seen above, however, this leads to contradictory rulings.

Inconsistent holdings create the appearance of an arbitrary justice system, and these disputes, which are governed by the Uniform Commercial Code, should turn out in a uniform manner.  When they do not, it only intensifies the debate about how to deal with online contracting and adhesion contracts online.

As we all continue to click our way through countless EULAs and are told that we are subject to “terms and conditions” that no reasonable consumer has had the time to read,  I do not believe that it is enough to hope that antiquated laws will handle new situations.

Instead, I would suggest that we need to continue to build on the wisdom of contract law.  While there is much to celebrate in the received wisdom of ancient doctrines, we must also recognize that it is the common law’s dynamism and adaptability that have led to its genius.

 

Miriam Cherry is Professor of Law at Saint Louis University School of Law.  Some of her scholarship can be found at this link on SSRN.

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Contracts in the Real World – At Last, a Book for Modern Minds

In a world where contract law, as typically taught, has one foot in the quicksand of the past, Lawrence Cunningham’s Contracts in the Real World is a most welcome and liberating alternative.  Just consider the domain of what is commonly offered up:

* sales of “Blackacre” circa the 18th and 19th centuries,

* sailing ships destined for Liverpool circa 1864,

* carloads of Mason green fruit jars circa 1899,

* a promise to pay ₤100 to anyone who contracted the flu after using a “Carbolic Smoke Ball,” circa late 19th century,

* a 12-word “contract of sale” penned on the back of a “counter check,” circa early 1950s,

* a material breach case about a dispute over the brand of pipe (Reading or Cohoes) to be used in the construction of a home (circa early 1920s),

* representations made in 1959 in connection with a grocery “chain” begun in 1922 (by 2010 the “chain” was down to a lone store in Green Bay, Wisc.),

* promises re an option to buy a ranch, circa 1960s, and

* a 1965 contract involving the 78 year-old actress Shirley MacLaine (co-star of the 1960 movie The Apartment).

One need not be wed to Henry Ford’s maxim that “history is bunk” to appreciate that much of what is presented in contracts casebooks is past tense, past perfect, and past its time.  While such an approach to teaching contracts may be a boon to slothful professors averse to updating their class notes, it does little to prepare today’s law students for the challenges facing them in the 2012 marketplace of digital deals.

Given the yester-world of many contracts casebooks, it is refreshing to have a book that brings modernity onto the stage of legal education.  While Professor Cunningham pays due deference to the canonical cases (e.g., Lawrence v. Fox, N.Y., 1859), he does so in ways that reveal their contemporary relevance (e.g., as in how that precedent applied to a 2005 Wal-Mart dispute).  Moreover, what is so stimulating about his book is that Cunningham highlights the law relevant to current business dealings of everyone from Bernard Madoff and Donald Trump to Lady Gaga and Paris Hilton, and 50 Cent, too.  There is even a case involving a dispute over the rights to the HBO TV series The Sopranos.

Likewise, Cunningham both identifies and understands the real-world contexts of modern contract law involving everything from electronic transactions and confidentiality of information, to agreements re season tickets subscriptions for sports events, to entertainment contracts, to Amazon’s provider contracts, to any variety of contemporary non-disclosure agreements, et cetera.

In all of these ways and many others, Contracts in the Real World stands alone as a work that ushers the law of contracts into our times.

At the risk of sounding unduly laudatory, this book was a joy to read. Both stylistically and substantively, it is a work of admirable achievement without a real rival.  When one offers such acclaim, there is a corresponding obligation to justify it.  Hence, permit me to explain my evaluation, at least in summary fashion. Read More

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Dichotomies in Contract Theory and Doctrine

In this blog post, I would like to examine some of the dichotomies in contract theory and doctrine that are noted in Professor Cunningham’s Contracts in the Real World.  Some would claim that contract law is revolutionary; others would argue that it is reactionary.  Compared to the status relationships of the Middle Ages, in which economic power was primarily determined through feudal or family relationships, contract and market relations promised a more egalitarian alternative.

In the classic text Ancient Law, Sir Henry Maine described the radical transformation from a feudal society governed by custom and hierarchy to one transformed by the industrial revolution, in which socio-economic mobility was not only possible, but which was expected.  On the other hand, many today would argue that contract acts as a reactionary force, for enforcing bargains strictly as written could result in reinforcing the power imbalances that already exist in society.

Contracts in the Real World notes these dichotomies and strikes a middle ground between them.  Prof. Cunningham characterizes the schism in contract law as a dispute between formalists and realists.  This schism, he posits, applies even to foundational matters, such as the question of whether a contract has been formed.  Prof. Cunningham notes that extreme formalists would champion a return to the days of the seal and enforce only those deals that meet the strict definitions of offer, acceptance, and consideration.

Realists, on the other hand, favor scrutinizing the context of every bargain, accepting the most informal of deals and even enforcing promises to make gifts as contracts.  Thus the dichotomy between formalists and realists turns into a debate over the extent of government or court involvement in private ordering.

Throughout the book, Prof. Cunningham walks a tightrope between these positions, often making reference to contract law’s “sensible center,” and noting that with many common problems, the rules that have evolved over the years make a good deal of sense.  In essence, he makes a case for the status quo, eschewing reform in either the direction of more government interference in contract, or government withdrawal from contract.

Prof. Cunningham suggests that current law strikes the proper balance between two rather extreme positions.  The book extols the earthy pragmatism of old precedents and wise judges, and suggests that these doctrines will ultimately win out and reach a balance.  In my next blog post, I will question whether this assertion holds true in the context of technological change.

Miriam Cherry is Professor of Law at Saint Louis University School of Law.  Some of her scholarship can be found at this link on SSRN.

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Contracts in the Real World and Contracts in Law School

Thank you to our hosts at Concurring Opinions for inviting me to participate in this online book symposium.   It is a pleasure for me to discuss Larry Cunningham’s engaging new book on contracts.

The title of Larry’s new book is Contracts in the Real World.   Intentionally or not, the title suggests that there may exist another realm for contracts other than the real world, a realm that is perhaps more theoretical and not completely real.   The alternate universe that most readily comes to mind is law school.  Contracts in the real world exist in partial contrast to contracts in law school.

Contracts in the real world bind parties and counterparties to one another.  Contracts in law school bind students to casebooks and laptops.  Contracts in the real world frequently revolve around compensation, obligations, and duties.  Contracts in law school frequently revolve around precedents, arguments, and defenses.  Contracts in the real world are about contracts.  Contracts in law school are about cases about contracts.  Needless to say more, there exists a meaningful and significant gulf between contracts in the real world and contracts in law school.

Larry’s book serves a bridge across this gulf.  Through wide-ranging popular stories about the prominent and the pedestrian crafted in accessible language yet not devoid of legal doctrine, the book connects contracts in law school with contracts in the real world.  Law school concepts like offer, acceptance, mitigation, and assignment are illuminated by real world stories of popular contracts involving Pepsi ads, Dateline NBC, Redskins tickets, and Haagen-Dazs ice cream.

The conceptual meditations of contract scholars like Cardozo, Corbin, and Williston are expressed and explained in contract controversies involving well-known figures such as Michael Jordan, Maya Angelou, and Lady Gaga, and through common experiences like purchasing lottery tickets, signing mobile phone agreements, and buying football tickets online.  Given the accessible language and popular stories, it is easy for the reader to be lulled into forgetting that they are reading and learning about the law, much in the same way that Tom Sawyer lulled his friends into whitewashing a fence by making it seem more like a treat than a chore.

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Call for Papers

AMERICAN SOCIETY OF COMPARATIVE LAW

YOUNGER COMPARATIVISTS COMMITTEE

CONFERENCE ANNOUNCEMENT: New Voices in Comparative Law

The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its second annual conference, to be held on April 18-19, 2013, at the Indiana University Robert H. McKinney School of Law in Indianapolis, Indiana. The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists.

Submissions will be accepted on any subject in public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or another academic capacity for no more than ten years as of June 30, 2013. We will also accept submissions from graduate students enrolled in master’s or doctoral programs.

Scholars may make individual or co-authored submissions. The conference’s Program Committee will assign individual and co-authored submissions to thematic panels according to subject area. Proposals for fully formed panels will also be accepted.

To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 750 words no later than November 4, 2012, to the following address: yccsubmissions@gmail.com <http://www.yahoo.com> . Abstracts should reflect original research that will not yet have been published, though may have been accepted for publication, by the time of the conference. Abstracts should also include the author’s name, title of the paper, institutional affiliation, contact information, as well as the author’s certification that she/he qualifies as a younger scholar. Graduate students should identify themselves as such.

Panels will be announced no later than December 16, 2012. There is no cost to register for the conference but participants are responsible for securing their own funding for travel, lodging and other incidental expenses.

The Younger Comparativists Committee gratefully acknowledges the support of the Indiana University Robert H. McKinney School of Law. The Younger Comparativists Committee also extends special thanks to Shawn Boyne and Mohamed Arafa for co-chairing the Program Committee.

Please direct all inquiries to Richard Albert, Chair of the Younger Comparativists Committee of the American Society of Comparative Law, by email at richard.albert@bc.edu or telephone at 617.552.3930 <tel:617.552.3930> .

The Program Committee:

Mohamed Arafa (co-chair), Indiana
Shawn Boyne (co-chair), Indiana
Radwa Elsaman, American
Hano Ernst, Zagreb
Claudia Haupt, Columbia
Rajeev Kadambi, Jindal
Vanessa MacDonell, Ottawa
Cesar Rosado, Chicago-Kent
Sudha Setty, Western New England
Ioanna Tourkochoriti, Harvard
Ozan Varol, Lewis & Clark
Tim Webster, Case Western
Richard Albert, Boston College (ex-officio as Chair of the YCC)

 

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Georgetown Law School Seminar

Many thanks go to Randy Barnett and the students in his seminar for hosting me yesterday and giving me excellent feedback on the draft of the Bingham biography.  I will be back at the drawing board soon to make the final set of changes prior to publication.

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AALS Panel on Student Scholarship

Joan Heminway passes this along:

The Association of American Law Schools Committee on Research is considering putting on an AALS panel on (1) how we law professors can advance student scholarship and (related but separately) (2) how we can advance joint faculty-student scholarship.

Most student law review notes (or other student articles) are written as independent study projects or, occasionally, as individual term papers in seminars.  But are there other approaches that you have seen tried or particular ways of structuring independent study projects or seminar term papers that have been especially successful?  Most faculty members don’t cowrite articles with students.  But have you seen techniques or approaches that helped such collaborative projects succeed—or ones that led them to fail? 

The Committee has asked us to identify some ideas that the panel can more closely explore, and we’d much appreciate any tips that you could pass along.  If you can give us just a few sentences that describe different models for fostering student or faculty-student scholarship that you have seen—whether those sentences include recommendations, cautionary tales, or just neutral reports—we’d love to see them.  Please e-mail them to either Joan Heminway (jheminwa@tennessee.edu) or Eugene Volokh (volokh@law.ucla.edu).  Submissions received by October 1 would be most useful to us in our planning, but feel free to respond later if you can’t reply by then.

My views on whether (and consequently how) we should subsidize student scholarship are here.  But given that Joan and Eugene are organizing, the panel is certain to be a hit!

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Legal Peer Review Journals: Time to Reject/Accept/R&R?

One of the advantages of student-edited law journals is that the turn-around time for acceptance or rejection is typically relatively fast – if you are going to hear, you’ll know within a month or two 95% of the time.  The same can’t be said for peer review journals in other fields, which are famously very, very slow.

What about peer reviewed journals that focus on law, and which regularly publish the writings of American law professors?  After the jump, I’ve listed the the top fifty peer and referreed journals, by combined impact factor (W&L) rank.  I’d be curious to hear from readers who’ve submitted to these journals regarding how long it took to get a substantive response (whether acceptance, rejection, or R&R). I’ll participate in the comment thread if others do – I’ve submitted to JLS, JELS, and JLEO, and JLA, and have generally positive views about those journals’ ability to get back with some answer in a reasonable amount of time.

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More Sophisticated Than What the Clientele Wants

While reading this post by Paul McGreal over at Faculty Lounge about the rising costs of legal education, I was struck by the unexpected relevance of political scientist John Zaller‘s work on media politics.  First, something about Paul’s post.  Paul underscores the argument that “the cost of legal education bears no necessary connection to what it would cost to provide a quality legal education in an efficient manner.”  He implicitly takes on a prominent theme in the scamlaw narrative that costs are driven up by the faculty “‘stealing’ from students for their own selfish desires” by engaging so much time and energy on academic scholarship.  Scholarship and even the related teaching of legal theory, according to a common narrative, diverts law school resources from the type of practical training—often argued to be applied skills and black-letter law—most valued by students as helpful to them in a challenging labor market.

I leave aside a defense of scholarship for the time being, but I think John Zaller would say that this debate over the place of legal scholarship is characteristic of a chronic tension that defines every professional field.  In his forthcoming manuscript A Theory of Media Politics, Zaller posits that members of a professional field seek to produce a more sophisticated product, based on their own professional values, than the typical consumer actually demands and is willing to purchase.  According to Zaller, “Every professional group wishes, if possible to have as much business as possible.  Yet they typically wish to offer products that are more sophisticated than what the clientele wants.”

As a result, professionals always confront a basic tension between market pressures from the typical consumer on one hand and their own desires to produce a more sophisticated product on the other hand.  Applying this notion to television news, Zaller finds that media markets with greater market competition among news outlets tend to feature “lower quality” local news (e.g., more tabloidish, less high-level reporting) compared to media markets with weaker market competition.  Zaller postulates a basic Rule of the Market—that increases in market competition lead to lower news quality—but that in the absence of competition, “journalists seem to be able to persuade owners to cast their fates with respectable ‘high-quality’ news.”  In my view, Zaller nails the dynamics of big city news media by astutely capturing this active tension between professional and market values.

You can see how Zaller’s ideas generalize to academic scholarship.  Read More