Uri Benoliel, ‘The Course Of Performance Doctrine In Commercial Contracts: An Empirical Analysis’

… Despite the widespread debate over the course of performance doctrine, there are no quantitative empirical studies aimed at directly exposing the parties’ true intention about the doctrine. This Article aims to fill this research void by empirically analyzing actual anti-course of performance clauses in commercial contracts. By examining 1,550 commercial contracts that have been disclosed to the Securities and Exchange Commission, this Article finds that a clear majority (80.06%) of contracts include an anti-course of performance clause. In addition, the results of this study indicate that the anti-course of performance clauses included in the sample contracts are not mere arbitrary boilerplates that were randomly added to the contracts. More specifically, this study found a significant statistical association between the inclusion of an anti-course of performance clause in a contract and the inclusion of a variety of other related clauses, such as anti-waiver and anti-assignment clauses. The theoretical and practical implications of these results are discussed.

Uri Benoliel, The Course Of Performance Doctrine In Commercial Contracts: An Empirical Analysis, 68 DePaul Law Review (2019).

Call for Papers: Data-Driven Personalisation in Markets, Politics and Law: Southampton Law School, 28 June 2019

We will be holding a workshop on the topic of ‘Data-Driven Personalisation in Markets, Politics and Law’ on Friday 28 June 2019 at Southampton Law School. This is an important emerging area of law that goes well beyond data protection law, raising questions for criminal law, consumer protection, competition and IP law, tort law, administrative law, human rights and anti-discrimination law, law and economics as well as legal and constitutional theory, as well as for many social science and science inquiries. To give the workshop focus and structure, this position paper provides a snap-shot of what we think about the topic or how we would frame it: . We would like to hear your thoughts! Should you be interested in disagreeing, elaborating, confirming, contradicting, dismissing or just reflecting on anything in the paper and present those ideas at the workshop, send us an abstract by Friday 5 April 2019. We aim to publish an edited popular law/social science book with the most compelling contributions after the workshop.

Marco Jimenez, ‘Bridging The Property-Contract Divide: Testing The Endowment Effect In Contract Law’

… Therefore, this Article fills this empirical gap and tests whether, and to what extent, the endowment effect applies directly to the promises to exchange goods (ie, contracts), rather than to the property that is frequently exchanged through the medium of contract. More specifically, the question explored in this Article is whether an individual who does not yet ‘own’ an item, but merely has some contractual right to obtain that item at some future date would also experience something like the endowment effect in the promise itself.

Marco Jimenez, Bridging The Property-Contract Divide: Testing The Endowment Effect In Contract Law 68 DePaul Law Review (2019).

‘Mirror, mirror, tell me, is the Copyright law fair and balanced? Reflection on AG’s conclusions on the Spiegel Online case (Part I)’

“On 10 January 2019, the Advocate General (AG) Szpunar delivered his opinion in the case Spiegel Online GmbH v Volker Beck (C 516/17). The case is part of a trilogy of preliminary references raised by the German courts focusing on copyright exceptions and the interaction of copyright law with fundamental rights (Pelham, C‑476/17 and Funke Medien C-469/17). The facts of the case are interesting. …” (more)

[Tatiana Synodinou, Kluwer Copyright Blog, 15 February]

Adam Levitin, ‘The Law of the Middle Class: Consumer Finance in the Law School Curriculum’

America is defined by its broad middle class, but the middle class is virtually absent from the law school curriculum. Law school courses deal with general concerns (contracts, torts, property, and taxes), the concerns of the rich (trusts and estates), and occasionally the law of the poor, but there are no courses dedicated to the financial concerns of the middle class.

This Essay argues that the defining feature of the American middle class is its reliance on credit to finance its essential purchases: a home, a car, and an education. The law of the middle class is the law of consumer finance. Courses covering the markets and regulation of consumer financial products are not, however, to be found in standard law school course offerings.

It is time for this to change. The creation of the Consumer Financial Protection Bureau has centralized and rationalized the institutional structure of consumer financial regulation such that it is now possible to organize a coherent stand-alone course in consumer finance. This Essay argues that consumer finance regulation – the law of the middle class – should become a standard part of the upper-level law school curriculum and presents a vision of what such a course would look like.

Levitin, Adam J, The Law of the Middle Class: Consumer Finance in the Law School Curriculum (February 5, 2019). Loyola Consumer Law Review, volume 32, 2019.

Mala Chatterjee, ‘Intellectual Property, Independent Creation, and the Lockean Commons’

Copyright and patent law – which grant exclusive rights in two very different kinds of subject matter, but are nonetheless lumped together as ‘intellectual property’ – are predominantly regarded by US scholars as having the same theoretical underpinnings. This manifests in doctrine, as courts have ruled in a number of ways aiming to unify the two areas of law. One example of this tendency to theoretically unify copyright and patent law is Seana Shiffrin’s paper ‘Lockean Arguments for Private Intellectual Property’, which argues against Lockean understandings of intellectual property. This paper argues that Shiffrin’s challenge is successful in the context of patent law, but not in the context of copyright, due to significant doctrinal differences between the two. The paper then outlines normative questions raised by these differences, as well as potential doctrinal implications that would result if copyright and patent law are shown to have distinct normative foundations.

Chatterjee, Mala, Intellectual Property, Independent Creation, and the Lockean Commons (February 2, 2019).

‘JOBS: PhD and Postdoc Scholarships, Max Planck Institute for European Legal History, Frankfurt am Main (DEADLINE 31 MAY 2019)’

“Every year we welcome numerous researchers and scholarship holders from all over the world who come to Frankfurt in order to get in touch with other researchers in a productive working atmosphere and to conduct research in our library with its many special collections …” (more)

[ESCLH, 14 February]

Hila Keren, ‘Valuing Emotions’

This Article illuminates an unresolved legal enigma: Why is private law so reluctant to compensate victims for emotional harms while it is fully committed to compensating them for any other type of harm? It proposes a novel analysis of the deeper roots of the problem and a solution. This Article shows that the persistent resistance to compensation in the affective domain comes from a broader legal misunderstanding and mistreatment of emotions. Opponents of compensation are wrong to assume that emotional harms are trivial, easy to fake, or impossible to value. Rather, with the help of scientific and technological progress, it should be clear by now that the devaluation of emotional harms is unjustified, injurious to victims, and toxic to relational norms of behavior. What’s worse, as this Article exposes, is that while the debate has continued without resolution, reality has dramatically changed. Outside of law and under a neoliberal worldview, the value of emotions has been celebrated, making emotions a new type of personal property and an important component of people’s human capital. The Article thus demonstrates that in today’s hypercompetitive world the refusal to compensate for emotional harms is more devastating than ever before. For that reason the Article proposes that it is about time we start valuing emotions – recognizing their importance and compensating those who suffered emotional harms. The Article then discusses how to shape the necessary reform, mainly by utilizing existing remedial tools to cope with concerns related to verification and measurement – a challenge that is in no way unique to emotional harms and should not continue to prevent appropriate compensation.

Keren, Hila, Valuing Emotions (February 28, 2018). Wake Forest Law Review, volume 53, no 5, 2018.

Daniel Barnhizer and others, ‘The Best and Worst of Contracts Decisions: An Anthology’

The common law of contract is an intellectual and political triumph. In its mature form, it enables judges whose ideological goals may differ to apply doctrines that provide the right to make enforceable promises; with legislation, the common law also provides proper limits on that right. Lately, scholars have produced a flood of contract law theory that enriches our thinking about and grounding for contract law norms. But the real work of common law development has always occurred in the trenches – in judicial decisions. In those trenches and on the framework built there, some decisions matter far more than others, and jurists, scholars, and teachers draw on these key decisions to do their work.

In the following collection of essays, scholars deeply familiar with judicial opinion in the common law of contract – twenty authors who have a collective 497 years writing, teaching, and thinking about contract law – identify the best and worst of contracts cases. Many of the cases are staple examples for practical and theoretical contracts scholarship. Many are taught to thousands of students each year. Many are routinely cited by courts. The essays explain, rebuke, extol, entertain, and inspire. They are brief but substantive. They set a basis for future commentary and establish a collective standard against which contracts decisions may be judged. They are vital study for contract law adjudication, scholarship, and teaching.

Barnhizer, Daniel D and Burnham, Scott J and Calleros, Charles R and Garvin, Larry T and Grossman, Nadelle and Guerra-Pujol, FE. and Harrison, Jeffrey Lynch and Keren, Hila and Malloy, Michael P and O’Gorman, Daniel and Waire Post, Deborah and Ricks, Val D and Arnow-Richman, Rachel S and Carlson, Richard R and Gergen, Mark P and Hegland, Kenney F and Kim, Nancy S and Oman, Nathan B and Powers, Jean and Preston, Cheryl B, The Best and Worst of Contracts Decisions: An Anthology (2018) 45 Florida State University Law Review 889-1022 (2018).

Miller and Pojanowski, ‘Torts Against the State’

The state provides the forum in which private parties can seek recourse for tortious wrongs other private parties cause. The state can also be liable for torts it commits. These observations are commonplaces. The state can also be a tort plaintiff, however, and that phenomenon has important implications for tort theory. Natural persons and artificial persons like the state have different kinds of interests, and these interests, in turn, implicate different sets of values. Accommodating torts against personified entities like the state will require tort theorists to significantly amend leading models, which presume wrongs against individual, natural persons. Some of these changes may be difficult for some scholars to stomach given their other theoretical commitments, including, especially, their normative priors. Nevertheless, a more complete theory must account for torts against the state.

Miller, Paul B and Pojanowski, Jeffrey A, Torts Against the State (February 11, 2019). Civil Wrongs and Justice in Private Law, Paul B Miller and John FK Oberdiek, eds, Oxford University Press (2020, forthcoming); Notre Dame Legal Studies Paper No 1921.