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This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.

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Wednesday, March 16, 2011
 
New Location for Legal Theory Blog The new location for Legal Theory Blog is:


Saturday, July 22, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Dred Scott and the Problem of Constitutional Evil by Mark A. Graber. Here's a blurb:
    An examination of what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of good society. In order to form a 'more perfect union' with slaveholders, late eighteenth century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus was required to resolve all constitutional questions not settled in 1787. Dred Scott challenges persons committed to human freedom to determine whether antislavery northerners should have provided more accommodations for slavery than were constitutionally strictly necessary or risked the enormous destruction of life and property that preceded Lincoln's new birth of freedom.


 
Download of the Week The Download of the Week is Terms of Use by Mark Lemley. Here is the abstract:
    Electronic contracting has experienced a sea change in the last decade. Ten years ago, courts required affirmative evidence of agreement to form a contract. No court had enforced a “shrinkwrap” license, much less treated a unilateral statement of preferences as a binding agreement. Today, by contrast, it seems widely (though not universally) accepted that if you write a document and call it a contract, courts will enforce it as a contract even if no one agrees to it. Every court to consider the issue has found “clickwrap” licenses, in which a user clicks “I agree” to standard form terms, enforceable. A majority of courts in the last ten years have enforced shrinkwrap licenses, on the theory that people agree to the terms by using the software they have already purchased. Finally, and more recently, an increasing number of courts have enforced “browsewrap” licenses, in which the user does not see the contract at all but in which the license terms provide that using a Web site constitutes agreement to a contract whether the user knows it or not. Collectively, we can call these agreements “terms of use” because they control (or purport to control) the circumstances under which buyers of software or visitors to a public Web site can make use of that software or site. The rise of terms of use has drawn a great deal of attention because of the mass-market nature of the resulting agreements. Terms of use are drafted with consumers or other small end users in mind. Commentators - myself among them - have focused on the impact of this new form of contract on consumers. But in the long run they may have their most significant impact not on consumers but on businesses. The law has paid some attention to the impact of terms of use on consumers. Virtually all of the cases that have refused to enforce a browsewrap license have done so in order to protect consumers; conversely, virtually all the cases that have enforced browsewrap licenses have done so against a commercial entity. And shrinkwrap and clickwrap cases, while enforcing some contracts against consumers, have protected those consumers against certain clauses considered unreasonable. Businesses, however, are presumed to know what they are doing when they access another company's Web site, so courts are more likely to bind them to that site's terms of use. Sophisticated economic entities are unlikely to persuade a court that a term is unconscionable. And because employees are agents whose acts bind the corporation, the proliferation of terms of use means that a large company is likely “agreeing” to dozens or even hundreds of different contracts every day, merely by using the Internet. And because no one ever reads those terms of use, those multiple contracts are likely to have a variety of different terms that create obligations inconsistent with each other and with the company's own terms of use. We have faced a situation like this before, decades ago. As business-to-business commerce became more common in the middle of the 20th Century, companies began putting standard contract terms on the back of their purchase orders and shipment invoices. When each side to a contract used such a form, courts had to confront the question of whose form controlled. After unsuccessful judicial experimentation with a variety of rules, the Uniform Commercial Code resolved this “battle of the forms” by adopting a compromise under which if the terms conflicted, neither party's terms became part of the contract unless the party demonstrated its willingness to forego the deal over it. Rather, the default rules of contract law applied where the parties' standard forms disagreed, but where neither party in fact insisted on those terms. I have three goals in this paper. First, I explain how courts came to enforce browsewrap licenses, at least in some cases. Second, I suggest that if browsewraps are to be enforceable at all, enforcement should be limited to the context in which it has so far occurred - against sophisticated commercial entities who are repeat players. Finally, I argue that even in that context the enforcement of browsewraps creates problems for common practice that need to be solved. Business-to-business (b2b) terms of use are the modern equivalent of the battle of the forms. We need a parallel solution to this “battle of the terms.” In Part I, I describe the development of the law to the point where assent is no longer even a nominal element of a contract. In Part II, I explain how the recent decisions concerning browsewrap licenses likely bind businesses but not consumers, and the problems that will create for commercial litigation. Finally, in Part III, I discuss possible ways to solve this coming problem and some broader implications the problem may have for browsewrap licenses generally.
Download it while its hot!


Friday, July 21, 2006
 
Welcome to the Blogosphere . . . . . . to Jurisdynamics hosted by Jim Chen with contributions from Daniel A. Farber and J.B. Ruhl.


 
Bernstein on Lochner David Bernstein (George Mason University - School of Law) has posted Lochner v. New York: A Centennial Retrospective on SSRN. Here is the abstract:
    This Article discusses two aspects of Lochner's history that have not yet been adequately addressed by the scholarly literature on the case. Part I of the Article discusses the historical background of the Lochner case. The Article pays particular attention to the competing interest group pressures that led to the passage of the sixty-hour law at issue; the jurisprudential traditions that the parties appealed to in their arguments to the Court; the somewhat anomalous nature of the Court's invalidation of the law; and how to understand the Court's opinion on its own terms, shorn of the baggage of decades of careless and questionable historiography. In short, Part I places the Lochner opinion firmly in its historical context. Part II of this Article explains how Lochner, which existed in relative obscurity for decades, became a leading anti-canonical case. As discussed in Part II, Lochner was initially famous only because of Oliver Wendell Holmes's much-cited dissent. The Lochner cases modern notoriety, however, arose largely because the post-New Deal Supreme Court continued to treat the Lochnerian cases of Meyer v. Nebraska and Pierce v. Society of Sisters as sound precedent. Meyer, in particular, eventually became an important basis for the Warren and Burger Courts' substantive due process jurisprudence in the landmark cases of Griswold and Roe v. Wade. Critics of those opinions attacked the Court for following in Lochner's footsteps, and, with some significant help from Laurence Tribe's 1978 constitutional law treatise, Lochner came to represent an entire era and style of jurisprudence. Recently, the ghost of Lochner has been kept very much alive by Justices Kennedy, O'Connor, and Souter, each of whom has praised Meyer and Pierce as engaging in appropriately aggressive due process review of police power regulations, while straining to distinguish those opinions from Lochner. Meanwhile, a revival of limited government ideology on the legal right, most notably in the Rehnquist Court's federalism opinions has raised (perhaps exaggerated) fears on the legal left that the conservatives seek to return, in spirit if not in letter, to the discredited jurisprudence of the Lochner era. Yet virtually no one, on either the right or the left, challenges what may be the strongest evidence of Lochner's influence on modern jurisprudence: the Supreme Court's use of the Fourteenth Amendment's Due Process Clause to protect both enumerated and unenumerated individual rights against the states.


 
Appointments Chairs Over at Prawfsblawg, the comments to the post entitled Faculty Appointments Chairs provide a list of the chairs are various American law schools.


 
Barton on Teaching & Scholarship--and some comments! If you are a legal academic, you should probably read this.
Benjamin Barton (University of Tennessee, Knoxville - College of Law) has posted Is There a Correlation Between Scholarly Productivity, Scholarly Influence and Teaching Effectiveness in American Law Schools? An Empirical Study on SSRN. Here is the abstract:
    This empirical study attempts to answer an age-old debate in legal academia; whether scholarly productivity helps or hurts teaching. The study is of an unprecedented size and scope. It covers every tenured or tenure-track faculty member at 19 American law schools, a total of 623 professors. The study gathers four years of teaching evaluation data (calendar years 2000-03) and creates an index for teaching effectiveness. This index was then correlated against five different measures of research productivity. The first three measure each professor's productivity for the years 2000-03. These productivity measures include a raw count of publications and two weighted counts. The scholarly productivity measure weights scholarly books and top-20 or peer reviewed law review articles above casebooks, treatises or other publications. By comparison, the practice-oriented productivity measure weights casebooks, treatises and practitioner articles at the top of the scale. There are also two measures of scholarly influence. One is a lifetime citation count, and the other is a count of citations per year.
    These five measures of research productivity cover virtually any definition of research productivity. Combined with four years of teaching evaluation data the study provides a powerful measure of both sides of the teaching versus scholarship debate.
    The study correlates each of these five different research measures against the teaching evaluation index for all 623 professors, and each individual law school. The results are counter-intuitive: there is no correlation between teaching effectiveness and any of the five measures of research productivity. Given the breadth of the study, this finding is quite robust. The study should prove invaluable to anyone interested in the priorities of American law schools, and anyone interested in the interaction between scholarship and teaching in higher education.
And here is a bit more from the paper:
    The teaching evaluation data came in different forms for different institutions, from access to a university website that gathered the data, to a single page amalgamation, to physical copies of every student evaluation during the period. From these data I chose the question on the evaluation sheet that most closely measured teaching effectiveness. For example, the University of Tennessee form actually asks the students to rank the professor from 1-5 (with 5 being the highest ranking) on the “Instructor's effectiveness in teaching material.” The results can be found on a publicly accessible website (University of Tennessee 2006). Of the 19 schools, 13 schools asked a somewhat similar question and ranked the professor from 1-5. Two of the other schools ranked from 5-1 (with 1 being the best ranking), one ranked from 4-1 (again with 1 as the best), and one each ranked from 1-4, 1-7, and 1-9, with 1 being the lowest.
One more point--the study examines the correlation between global teaching effectiveness (across courses) and global scholarly productivity (across fields) and did not attempt to study correlations between writing that is salient to the course for which teaching effectiveness is being measure.
And one more issue--what about peer versus student evaluations. Again, a bit more from the paper:
    I also am aware that the use of teaching evaluations as a proxy for teaching effectiveness is somewhat controversial. There are studies, both within law schools and higher education in general, that show that teaching evaluations have biases, including biases based on race (Smith 1999), gender (Farley 1996), and even physical attractiveness (O’Reilly 1987). Other studies have shown that student teaching evaluations are positively correlated with other measures of teaching effectiveness, including peer reviews and output studies, suggesting at least that student measures track other alternative measures (Bok 2004). Many law faculty members have nevertheless argued to me that teaching evaluations are little more than a popularity contest. Some have even argued that teaching effectiveness is inversely correlated with teaching evaluations, since students tend to highly rank easy professors of little substance, while ranking professors who challenge them comparatively lower. For better or worse, I believe teacher evaluations are the only viable way to measure teaching effectiveness for a study of this breadth. My other choices were exceedingly unpalatable: 1) attempting to gather peer evaluation data, which is rarely if ever expressed numerically, and would also almost certainly not be provided by the host institutions; 2) some type of personal subjective measure of teaching effectiveness, potentially requiring me to personally visit classes and make my own call on teaching effectiveness.
At one level these results are completely unsurprising. What mechanism would result in a correlation between research productivity and teaching effectiveness? Here are some possibilities:
    --More research and more effective teaching might both be products of some underlying trait--such as diligence.
    More research might result in more knowledge, which might result in more effective teaching.
    More research might result in more knowledge, which might result in less effective teaching.
    More research might divert effort from teaching, which might result in less effective teaching.
And so forth.
It is possible, however, that some of these effects might be observed with a different research design. If it were possible to do reliable assessments of the objective accuracy of information conveyed and to compare that to research productivity in the particular field, for example, there might be some correlation between productivity and teaching effectivenss (in the objective sense). But that would not necessarily correlate with student ratings of teaching effectiveness? Why not? Because generally law students are incapable of evaluating "knowledge of the subject matter." For one thing, they lack a good baseline for comparison, because the truth is that the general level of knowledge of subject-mater among legal academics is fairly shallow. And a student rarely learns enough about a subject to actually get ahead of the professor. Of course, we all know that occasionally newbie professors get caught in gaffs--but most experienced teachers learn how to avoid this--which is mostly a matter of not saying things you don't know, not mastering the subject so deeply that you can answer any question about any point accurately.
But with that caveat aside, this is clearly valuable research! Highly recommended for all legal academics!

Thanks Lisa Fairfax to via Dan Markel.


Thursday, July 20, 2006
 
Thursday Calendar
    University of Arizona Law: Mona Hymel, Globalization, Environmental Justice, and Sustainable Development: The Case of Oil


 
Beta Version of the New Legal Theory Blog If you would like to see the new look of Legal Theory Blog, here is the URL: In addition, there is a new companion blog that will collect the Legal Theory Lexicon posts:During the "beta test," I will be requesting feedback on various design elements of the new version of the blog. I would greatly appreciate your assistance! Check out the new blog for the current set of issues!

This post will move to the top of the blog until the transition is complete.


Wednesday, July 19, 2006
 
Lemley on Terms of Use Mark A. Lemley (Stanford Law School) has posted Terms of Use on SSRN. Here is the abstract:
    Electronic contracting has experienced a sea change in the last decade. Ten years ago, courts required affirmative evidence of agreement to form a contract. No court had enforced a “shrinkwrap” license, much less treated a unilateral statement of preferences as a binding agreement. Today, by contrast, it seems widely (though not universally) accepted that if you write a document and call it a contract, courts will enforce it as a contract even if no one agrees to it. Every court to consider the issue has found “clickwrap” licenses, in which a user clicks “I agree” to standard form terms, enforceable. A majority of courts in the last ten years have enforced shrinkwrap licenses, on the theory that people agree to the terms by using the software they have already purchased. Finally, and more recently, an increasing number of courts have enforced “browsewrap” licenses, in which the user does not see the contract at all but in which the license terms provide that using a Web site constitutes agreement to a contract whether the user knows it or not. Collectively, we can call these agreements “terms of use” because they control (or purport to control) the circumstances under which buyers of software or visitors to a public Web site can make use of that software or site. The rise of terms of use has drawn a great deal of attention because of the mass-market nature of the resulting agreements. Terms of use are drafted with consumers or other small end users in mind. Commentators - myself among them - have focused on the impact of this new form of contract on consumers. But in the long run they may have their most significant impact not on consumers but on businesses. The law has paid some attention to the impact of terms of use on consumers. Virtually all of the cases that have refused to enforce a browsewrap license have done so in order to protect consumers; conversely, virtually all the cases that have enforced browsewrap licenses have done so against a commercial entity. And shrinkwrap and clickwrap cases, while enforcing some contracts against consumers, have protected those consumers against certain clauses considered unreasonable. Businesses, however, are presumed to know what they are doing when they access another company's Web site, so courts are more likely to bind them to that site's terms of use. Sophisticated economic entities are unlikely to persuade a court that a term is unconscionable. And because employees are agents whose acts bind the corporation, the proliferation of terms of use means that a large company is likely “agreeing” to dozens or even hundreds of different contracts every day, merely by using the Internet. And because no one ever reads those terms of use, those multiple contracts are likely to have a variety of different terms that create obligations inconsistent with each other and with the company's own terms of use. We have faced a situation like this before, decades ago. As business-to-business commerce became more common in the middle of the 20th Century, companies began putting standard contract terms on the back of their purchase orders and shipment invoices. When each side to a contract used such a form, courts had to confront the question of whose form controlled. After unsuccessful judicial experimentation with a variety of rules, the Uniform Commercial Code resolved this “battle of the forms” by adopting a compromise under which if the terms conflicted, neither party's terms became part of the contract unless the party demonstrated its willingness to forego the deal over it. Rather, the default rules of contract law applied where the parties' standard forms disagreed, but where neither party in fact insisted on those terms. I have three goals in this paper. First, I explain how courts came to enforce browsewrap licenses, at least in some cases. Second, I suggest that if browsewraps are to be enforceable at all, enforcement should be limited to the context in which it has so far occurred - against sophisticated commercial entities who are repeat players. Finally, I argue that even in that context the enforcement of browsewraps creates problems for common practice that need to be solved. Business-to-business (b2b) terms of use are the modern equivalent of the battle of the forms. We need a parallel solution to this “battle of the terms.” In Part I, I describe the development of the law to the point where assent is no longer even a nominal element of a contract. In Part II, I explain how the recent decisions concerning browsewrap licenses likely bind businesses but not consumers, and the problems that will create for commercial litigation. Finally, in Part III, I discuss possible ways to solve this coming problem and some broader implications the problem may have for browsewrap licenses generally.
Highly recommended.