Boilerplate Symposium X A: Professor Radin Responds to Week I

23 May 2013 | Author: admin

“This is the first part of the tenth in a series of posts reviewing Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. But don’t think that this is the end. We have more reviews rolling in, and they will go up next week, so stay tuned. In today’s posts, our author, Margaret Jane Radin, responds to her reviewers. In this first half, she responds to the reviewers from last week. In the second half of this post, she responds to this week’s reviewers. Professor Radin is the Henry King Ransom Professor of Law at the University of Michigan Law School … (more)

[ContractsProf Blog, 23 May]

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Boilerplate Symposium IX B: Kim Krawiec on Contracts as Disclosure, Part II

23 May 2013 | Author: admin

“Contract As Disclosure II (Or Why I Keep Signing That Same Stupid Liability Waiver). As I stated in my last post, I want to use the example of the travel company liability waiver at left to illustrate the boilerplate phenomenon. And here is where my analysis would differ from Peggy’s, perhaps in important ways. She argues, for example, that many consumers cannot understand the complicated legalese in boilerplate. That may be true with some boilerplate, but these terms are quite simple. Plus, in my experience, the consumers of this kind of adventure travel tend to be fairly sophisticated in terms of their ability to read and understand the kind of document I’ve posted above. Certainly many if not all of these purchasers can understand that the tour company is saying that it is not responsible even if you die through the negligence of its employees. Peggy also argues that many consumers do not bother to read the boilerplate …” (more)

[ContractsProf Blog, 22 May]

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Boilerplate Symposium IX A: Kim Krawiec on Contracts as Disclosure, Part I

22 May 2013 | Author: admin

“This is the first part of the ninth in a series of posts reviewing Margaret Radin’s Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. Kimberly D Krawiec is the Kathrine Robinson Everett Professor of Law at the Duke University School of Law. Thanks to Jeremy for inviting me to review Peggy Radin’s new book, Boilerplate. Peggy’s work on contested commodities has hugely influenced my thinking about taboo trades, and I suspect that her work on boilerplate will prove similarly influential, so I’m grateful for this opportunity for early engagement. Let me start by explaining my contention that disclosure is a helpful parallel through which to view Peggy’s theories on the shortcomings of boilerplate …” (more)

[ContractsProf Blog, 22 May]

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Feldman and Smith, ‘Behavioral Equity’

22 May 2013 | Author: admin

Abstract:
In many situations legal systems use ambiguous standards and moral language in instructing people to behave. In the realm of the common law, much of this ambiguous, morally inflected legal component is associated with ‘equity’. In civil law systems, something similar goes under the banner of ‘abuse of right’ or ‘abuse of law’. According to this approach, part of the presumed advantage of equity is related to its ability to prevent opportunism by limiting the ability of people to exploit loopholes in specific rules to their advantage. Most of the current research on ambiguity and vagueness in the law follows a rational choice approach, where ambiguity is expected to increase the cost of deciding how to behave. This increase in the cost of learning on how to behave is intended to nudge people toward greater compliance, assuming a certain risk aversion on their part. Another assumption of this perspective is that ambiguity is more likely to harm opportunistic and ‘bad’ individuals than ‘good’ people because the former have greater difficulty circumventing an ambiguous law. The present paper challenges these behavioral assumptions and the legal paradigms that are based on them …

Feldman, Yuval and Smith, Henry E., Behavioral Equity (May 20, 2013).

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Boilerplate Symposium VIII: Daniel Schwarcz on a Tort-Based Approach to Standard Form Contracts

21 May 2013 | Author: admin

“This is the eighth in a series of posts reviewing Margaret Radin’s Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. Daniel Schwarcz is an Associate Professor of Law at the University of Minnesota School of Law. One of the most provocative arguments in Margaret Jane Radin’s bold and compelling book, Boilerplate, is that legal evaluation of contracts of adhesion should employ tort principles rather than contract principles. As Radin acknowledges, this is an idea that I have explored in the specific context of insurance policies. In this guest post, I hope to discuss some of the similarities and differences between Radin’s proposed approach and my own. In some important ways, Radin and I make similar arguments for moving to a tort-based approach to standard form contracts …” (more)

[ContractsProf Blog, 21 May]

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Boilerplate Symposium VII: Oren Bar-Gill on Consent Without Reading

21 May 2013 | Author: admin

“This is the seventh in a series of posts reviewing Margaret Radin’s Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. Oren Bar-Gill is a Professor of Law and Co-Director of the Center for Law, Economics and Organization, New York University School of Law. Professor Radin’s book is an eloquent and powerful critique of the fine-term, boilerplate contracts that pervade modern life. Its breadth – in terms of the range of theoretical perspectives that it considers and the different legal policy responses that it discusses – is impressive. In this comment, I focus on the economic analysis of boilerplate. I suggest that Radin’s treatment of this particular perspective, while clearly very useful, is, in some respects, incomplete. In her discussion of the economic analysis of boilerplate, Radin focuses on, and criticizes, a Chicago-school approach that minimizes any concern about boilerplate. But this is only one strand in the economic analysis of form contracts. There is another, perhaps more influential strand that readily acknowledges the challenges that boilerplate presents for market efficiency and for welfare maximization …” (more)

[ContractsProf Blog, 21 May]

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Charlie Irvine, ‘The Proposed Apologies Act for Scotland: Good Intentions with Unforeseeable Consequences’

21 May 2013 | Author: admin

Abstract:
This article considers Scotland’s proposed Apologies Act in the light of experience in other Common Law jurisdictions. A number of Common Law jurisdictions have passed Apologies Acts in the past 25 years, largely motivated by concerns about a ‘litigation explosion’. The idea seems to be that providing evidentiary protection to apologies will encourage their use, or at least prevent insurers and lawyers from advising against them. Charlie Irvine considers the plausibility of this hypothesis and suggests that the drafters of the Bill face an unresolvable dilemma: blanket protection for apologies may prevent credible evidence from reaching the courts, while narrowing that protection to exclude admissions of fault may stilt apologies and rob them of credibility.

Irvine, Charlie, The Proposed Apologies Act for Scotland: Good Intentions with Unforeseeable Consequences (January 5, 2013). Edinburgh Law Review 17.1 (2013): 84-90.

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Steven Feldman, ‘Rescission, Restitution and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer’

21 May 2013 | Author: admin

Abstract:
Brooks and Stremitzer write that a limited rescission model is “excessive” and based on a “misunderstanding” of the economic effects of these remedies.Their key premise is that legal authorities have exaggerated the threat to contract stability and other normative values posed by liberal access to rescission. Therefore, the authors posit that rational parties from an ex ante perspective would often bargain for broad rights of rescission even if damages for breach “were fully compensatory and costless to enforce.”

In contrast, I will perform an intensive case law and statutory analysis showing that the law appropriately follows a principle of “fair redress,” which follows a liberal rescission/fair restitution approach. Indeed, the authors’ opposition to reliance and disgorgement is particularly counterproductive because their stance undermines the core policy of rescission and restitution, which is to afford the injured party an equitable remedy.

Feldman, Steven W., Rescission, Restitution and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer (May 20, 2013). Valparaiso University Law Review, Vol. 47, 2013 (Forthcoming).

Posted in Contract, Remedies, Unjust enrichment | Leave a Comment

Boilerplate Symposium VI: Brian Bix on Democratic Degradation

20 May 2013 | Author: admin

“Brian Bix is the Frederick W Thomas Professor for the Interdisciplinary Study of Law and Language at the University of Minnesota Law School. (The following is adapted from a much longer review that will appear in the Tulsa Law Review.) In her important, timely, and provocative book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Margaret Jane Radin offers some scathing observations regarding the motivation and effects of the terms placed in consumer and employee contracts. She argues that the current contracting practices make a mockery of consent, and undermine the rule of law. Radin is clearly correct in her essential claim, that for many contracting parties freedom of contract is less an ideal than a sham, and that boilerplate provisions are being used by companies to circumvent substantive rights and remedies consumers, employees, and other contracting parties would otherwise have …” (more)

[ContractsProf Blog, 20 May]

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Gary Chan, ‘Corporate defamation: reputation, rights and remedies’

19 May 2013 | Author: admin

Abstract:
This paper examines fundamental issues concerning a corporation’s right to sue for defamatory attacks on its reputation, the scope of the right and the remedies available. It first outlines the opposed positions in England and Australia, respectively. It also argues that a corporation, save for a government corporation that exercises governmental functions based on markedly different rationales, should have the right to sue in defamation premised on the concept of corporate reputation as property and for the purpose of vindicating its reputation. On the question of remedies, a corporation should be entitled to recover special damages as reparation for damage to reputation provided they are proved. This paper considers, instead of presumed damages, alternative remedies for vindicating corporate reputation. Finally, it examines the business and non-business reputations of both trading and non-trading corporations in relation to claims for damages.

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Gary KY Chan, Corporate defamation: reputation, rights and remedies. Legal Studies, Volume 33, Issue 2, pages 264–288, June 2013. DOI: 10.1111/j.1748-121X.2012.00258.x.

Posted in Defamation and Privacy | Leave a Comment