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By Dave Hoffman

Why the Mirror Image Rule Still Matters

This story, which took the academic world by storm, demonstrates the continued vitality of the mirror image rule:

“[A philosophy tenure track job] candidate . . . sent the following email to search committee members at Nazareth College, in Rochester, N.Y., after receiving a tenure-track job offer in philosophy:

“As you know, I am very enthusiastic about the possibility of coming to Nazareth. Granting some of the following provisions would make my decision easier[:]

1) An increase of my starting salary to $65,000, which is more in line with what assistant professors in philosophy have been getting in the last few years.

2) An official semester of maternity leave.

3) A pre-tenure sabbatical at some point during the bottom half of my tenure clock.

4) No more than three new class preps per year for the first three years.

5) A start date of academic year 2015 so I can complete my postdoc.”

She ended the email by saying “I know that some of these might be easier to grant than others. Let me know what you think.”

In a reply, the search committee said it had reviewed the requests, as had the dean and vice president of academic affairs.

“It was determined that on the whole these provisions indicate an interest in teaching at a research university and not at a college, like ours, that is both teaching and student centered,” the email continues. “Thus, the institution has decided to withdraw its offer of employment to you.”

The search committee ended by thanking the candidate for her “interest” and wishing her “the best in finding a suitable position.”

As many have pointed out, an employment lawyer might be able to make some hay if emails within the department discussed #2 in any detail. (Which they likely did, since academics have no email discipline.)

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Intuitions About Contract Formation

Tess Wilkinson-Ryan and I have a new paper up on SSRN, titled Intuitions About Contract Formation.  In the great Redyip tradition, I thought I’d blog about it. From the abstract:

Legally, much depends on the moment that a negotiation becomes a deal.  Unlike torts or civil procedure or any area of public law, the laws of  promissory exchange only apply to parties who have manifested their assent to be bound. Even so, the moral norms of exchange and promise are quite firmly  entrenched and more broadly applicable than just legal contracts. Norms of promise-keeping and reciprocity, interpersonal courtesy, community reputation—these kinds of intangible goods have real effects on contract behavior. For this reason it is especially surprising that intuitions about formation have gotten so little attention from legal and behavioral scholars. This paper offers five new empirical studies of commonsense approaches to contract formation. The first section of this Article surveys intuitions about what the law of formation is. In a world in which the vast majority of contracts are signed without the advice of counsel, most people have to draw inferences based on their background knowledge and beliefs. It turns out that the colloquial understanding of contract formation is about the formalization of an agreement rather than actual assent.

In the second part of the Article, we tease out the intuitive relationship between formation and obligation. The law of contracts is very clear that  parties’ obligations to one another turn entirely on whether or not they have mutually manifested assent to be bound. And, in fact, we find that behavioral results suggest that legal (or legalistic) formation does enhance commitment to a deal irrespective of its power to impose sanctions; it seems that the law has freestanding normative force. However, we also find that the subjective sense of obligation is not as black or white as the law would predict. Parties are influenced by the natural, informal obligations to one another that build over the course of a transaction, increasing their commitment to the partnership in stages rather than all at once at the moment of formation.

To set the paper up a bit, Tess and I had previously found that when subjects are told they are in legally binding contracts, they lower their guard against exploitation & treat contracting parties like partners.  This raised a question that Intuitions tries to answer:  what are subjects’ naive views about formation?  We show that they differ systematically from the operative doctrinal rules, which creates a window for exploitation — when consumers believe themselves to be in contracts but aren’t. For example, individuals think that payment is contract, not agreement.  In one experiment, for example, we asked:

“Peter is ordering new custom speakers from Audionuts, a mail-order sound system retailer. Peter calls the company and speaks at length to a customer service representative, hashing out the details of his order, which include speakers for his main media unit (TV and stereo system) as well as his portable devices (phone and iPad). Peter and the customer service representative...

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Law and Hard Fantasy Interview Series: Joe Abercrombie

This post is a part of our ongoing interview series with fantasy authors who generally write in the burgeoning genre of gritty / hard / dark epic fantasy.   The series began with this book review post, and continued with interviews of George R. R. Martin and Patrick Rothfuss, and Mark Lawrence.

Today, I’m interviewing Joe Abercrombie.  Joe is the author, most famously, of the “First Law” trilogy, and some more recent spin-offs set in that world.  Joe’s writing is characterized by dark (very, very dark) humor, grit (as in dirt), and an unhealthy amount of revenge.  He’s on twitter, he has a blog, and he was nice enough to agree to answer some questions from me about his writing and its relationship to law.

DH: There’s been a lot of talk in recent years about the collapse of the “fantasy” and “fiction” categories. Is there anything useful about the distinction? If so, what are the minimal characteristics of books that would stay on your fantasy shelf?

JA: Any question about definitions and categorisations is always a complicated one, with lots of confusions and blurry areas. All fiction to some degree takes place in an invented world, with invented people doing unreal things. In a way the upside down definition may be the most useful – fantasy is books published by fantasy imprints and shelved in the fantasy sections. As far as what content makes a book a fantasy book rather than general fiction, it varies with the reader. I guess you know it when you see it. Although magic swords are often a giveaway.

DH: One marker of the trend toward harder / darker fantasy is more fulsome world-building and world-planning. But you are well-known as a guy who hates maps (recent books excepted!) Here’s a practical question: do you sit down and think about the rules of the world before you start to write, or do you start writing and work them out as you go along?

JA: I don’t know that I’d necessarily agree with your first assertion, there. I think a marker of the trend towards harder/darker fantasy is a greater focus on character and internal life over setting and world building, certainly I see that as key in what I’m doing. But you want the backdrop to be consistent and coherent. So you have some ideas about the rules of the world. Certainly you have some strong ideas about the effect certain cultures will have on the way the characters think. That’s the kind of world building I’m most interested in, I suppose you could say, the kind that has a direct effect on the behaviour of the characters, rather than the kind that specifies exactly how many thousand years the tower of Zarb had guarded Dragonfire Pass.

DH: What do you have against maps anyway?

JA: I love maps. I have loads of them. But I don’t necessarily want to share them with the reader. I want the reader to see the action in close up, not wide shot....

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Some Rather Good Advice

From the 6th edition of the Summers/White/Hillman Treatise on the UCC, section 2:20.

“Under the present state of the law we believe that there is no language that a lawyer can put on a form that will always assure the client of forming a contract on the client’s own terms . . . If a seller must have a term to reduce its liability but cannot strike a bargain for it, the only answer may be to raise the price, buy insurance, or, as a last resort, have an extra martini every evening and not capitalize the corporation too heavily.”

This is exactly correct, though I can’t recommend martinis.

 

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Welcome Corey Yung

Please welcome back Corey Yung (of Kansas).  Corey has blogged for us previously, and we’re so pleased to have him back.

Corey is an Associate Professor at the University of Kansas School of Law. His scholarship primarily focuses on sexual violence, substantive criminal law, and judicial decision-making. Yung’s academic writings have been cited by state and federal courts, including the Supreme Court of the United States. Before Yung began his professorial career, he served as an associate for Shearman & Sterling in New York and clerked for the Honorable Michael J. Melloy of the United States Court of Appeals for the Eighth Circuit.

Recent Articles:

How to Lie with Rape Statistics: America’s Hidden Rape Crisis, 99 Iowa Law Review (Forthcoming, 2014)

A Typology of Judging Styles, 107 Northwestern University Law Review 1757 (2013)

The Incredible Ordinariness of Federal Penalties for Inactivity, 2012 Wisconsin Law Review 841 (2012)

Beyond Ideology: An Empirical Study of Partisanship and Independence in the Federal Courts, 80 George Washington Law Review 2 (2012)

Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 Northwestern University Law Review 1 (2011)

 

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