Mignanelli on Whether Satan Is a Transactions Attorney @nmignanelli

Nicholas Mignanelli, University of Miami School of Law, has published Is Satan a Transactions Attorney? An Account of Satanic Imagery in Law and Literature. Here is the abstract.

What can the history of satanic imagery in law and literature teach us about the development of humanity’s understanding of its relationship with evil? This wide-ranging account of Satan’s presence across textual mediums uncovers the secret genealogy of contracts with Satan, from the Gospel of Matthew to Mayo v. Satan and His Staff (1971). This ironic lineage recounts how a Christian clergyman was the first to consummate a contract with Satan, how Martin Luther was the first to link Johann Faust to Satan, and how the poet who inspired Charlie Daniel’s “The Devil Went Down to Georgia” was the first to imagine an attorney litigating against Satan. Yet, these ironies are not so significant as the moral innovations that each stage in the evolution of the diabolical contract motif represents.

Download the article from SSRN at the link.

Brings to mind The Devil's Advocate by Andrew Neiderman (made into the 1997 film with Al Pacino and Keanu Reeves) and Mark Twain's The Mysterious Stranger (various editions, on which Kevin Malone based his opera Mysterious 44). 

Kar on Formal Argument That Contract Meaning Depends On Linguistic Cooperation @UIllinoisLaw

Robin Bradley Kar, University of Illinois College of Law, has published Formal Argument that Contract Meaning Depends on Linguistic Cooperation. Here is the abstract.

In Pseudo-Contract and Shared Meaning Analysis, Professor Radin and I recently drew on contemporary insights into meaning, pioneered by Paul Grice, to develop a contemporary approach to contract interpretation — “shared meaning analysis” — which is adapted to modern circumstances. Part of our argument for using shared meaning analysis rested on the claim that when interpreting contracts, “the primary search is for a common meaning of the parties” — as the Restatement (Second) of Contracts puts the point. When identifying this common meaning, we argued that courts and parties implicitly rely on presuppositions of linguistic cooperation in ways that often go unrecognized. We suggested that the dependence of contract meaning on linguistic cooperation is pervasive and practically ineliminable. But some tests for contract interpretation, which are repeated more from habit than careful thought, have begun to delink contract meaning from the common meaning of the parties. This brief essay separates out and develops a detailed formal argument for the proposition that contract meaning depends on linguistic cooperation. Following Grice, I define “sentence meaning” as the meaning that a competent speaker of a language would attribute to a sentence independent of any knowledge of its occasion of use. I define “speaker meaning” as the meaning that a speaker intends to convey to another person within an interpersonal conversation, which often depends upon both parties relying on implicit presuppositions of linguistic cooperation. Building on these distinctions (but also departing from both in some ways), Professor Radin and I have offered a contemporary definition of the “shared meaning” of a contract. It is the meaning that the parties produced and actually agreed to based on the presupposition that both were using language cooperatively to contract. The purpose of this essay is to establish just how pervasive and practically ineliminable the presupposition of linguistic cooperation is to derive pervasive and uncontroversial aspects of contract meaning. Neither contemporary “objective” nor long-rejected “subjective” approaches to interpretation are getting contract interpretation perfectly right in some contemporary settings.

Download the article from SSRN at the link.

Alternative Forms of Currency and FInancial Crises In England in Late Eighteenth and Early Nineteenth Rural England

Iain Frame, University of Kent, Canterbury, Kent Law School, has published ‘Country Rag Merchants’ and English Local Currencies in the Late Eighteenth and Early Nineteenth Century at 42 Journal of Law and Society 588 (2015). Here is the abstract.

In the late eighteenth and early nineteenth century, communities across England used country bankers’ notes almost as much as they used coins and Bank of England notes. Accounting for the relative success of these alternative currencies is challenging, however, due to the frequency of financial crisis during the period. If, during a crisis, all note holders attempted to enforce the promise to pay in gold coin against the issuing banker, the ‘law‐finance paradox’ would leave some note holders with gold coin, but would leave many more with merely ‘country rags’ or worthless pieces of paper. Building on both the credit approach to money and the relational approach to contract, this article shows note‐using communities successfully responding to financial crisis. They frequently did so by formalizing the bonds of reciprocity and trust tying the community to its note‐issuing banker – bonds sometimes made all the stronger by legal enforceability.

The full text is not available from SSRN.

Contractual Unfairness In English Law, 1670-1900

Warren Swain, The University of Queensland, T. C. Beirne School of Law, has published Reshaping Contractual Unfairness in England 1670-1900 at 35 Journal of Legal History 120 (2014). Here is the abstract.

English contract law has offered protection for the vulnerable and exploited for centuries. The most wide-ranging doctrine of contractual unfairness could be found within the Court of Chancery. In Lord Nottingham's time relief extended to a range of situations, loosely held together, with no real unifying structure. Yet even here some common themes emerged. Transactions which fell outside the usury laws were looked at with particular concern. In the eighteenth century Lord Hardwicke attempted to rationalize relief under the rubric of fraud. This was largely a difference in presentation. Under the influence of the rise of legal literature and ideas derived from Will Theory, the nineteenth century might have seen the emergence of a truly coherent doctrine of contractual unfairness. That this did not happen can be attributed to a combination of factors. These include the durability of the notion of fraud, the complexity of contractual unfairness which could not be reduced to a doctrine based on will and the way in which contractual unfairness was bound up with public policy. The substance of relief may have changed less than has often been supposed. Certainly there was no shift from a world in which the courts offered protection to one in which freedom of contract always prevailed. The failure of nineteenth century judges and writers to be more radical has left a legacy of incoherence that is still felt today.

The full text is not available from SSRN.

2 Broke Girls and the Talent Agency License

Caroline and Max take on the job of talent agents on the April 27, 2015 episode of 2 Broke Girls in "2 Broke  Girls and the Look of the Irish."  They decide to try to help newly hired Nash (Austin Falk) become a model (and they'll pocket some cash in exchange). There's only one problem: the episode gives no indication that either one of the members of our dynamic business duo is licensed under state law to represent talent in the state of New York.  Under New York law, one needs a license to act as a talent agent. See Article 11 of the NY General Business Law, which applies to those representing actors and models, among other clients.

Under Article 11, Section 171:

    2. a. "Employment agency" means any person  (as  hereinafter  defined)
  who, for a fee, procures or attempts to procure:
    (1)  employment  or  engagements  for  persons  seeking  employment or
  engagements, or
    (2) employees for employers seeking the services of employees.
    b. "Employment  agency"  shall  include  any  person  engaged  in  the
  practice  of  law  who  regularly  and  as part of a pattern of conduct,
  directly or indirectly, recruits, supplies, or  attempts  or  offers  to
  recruit  or  supply,  an  employee  who  resides outside the continental
  United States (as defined in section one hundred eighty-four-a  of  this
  article)  for  employment  in  this  state  and  who  receives  a fee in
  connection with the arrangement for the admission into this  country  of
  such workers for employment.
    c.  "Employment  agency"  shall  include  any  person  who, for a fee,
  renders vocational guidance or counselling services and who directly  or
  indirectly:
    (1)  procures or attempts to procure or represents that he can procure
  employment or engagements for persons seeking employment or engagements;
    (2) represents that he has access, or has the capacity to gain access,
  to jobs not otherwise available to those not purchasing his services; or
    (3) provides information or service of any kind purporting to promote,
  lead to or result in employment for  the  applicant  with  any  employer
  other than himself.

...

   3. "Fee" means  anything  of  value,  including  any  money  or  other
  valuable  consideration  charged,  collected, received, paid or promised
  for any service, or act rendered or to  be  rendered  by  an  employment
  agency,  including  but  not limited to money received by such agency or
  its emigrant agent which  is  more  than  the  amount  paid  by  it  for
  transportation,  transfer  of baggage, or board and lodging on behalf of
  any applicant for employment.
    4. "Agency manager" means the person designated by the applicant for a
  license who is responsible  for  the  direction  and  operation  of  the
  placement  activities  of  the  agency  at  the  premises covered by the
  license.
    5. "Placement employee"  shall  mean  any  agency  manager,  director,
  counsellor,  interviewer,  or any other person employed by an employment
  agency  who  spends  a  substantial  part  of  his  time   interviewing,
  counselling  or  conferring  with  job  applicants  or employers for the
  purpose of placing or procuring job applicants, but  shall  not  include employees  of an employment agency who are primarily engaged in clerical occupations.

...
7.  "Person"  means  any  individual,  company,  society, association,
  corporation, manager, contractor,  subcontractor,  partnership,  bureau,
  agency, service, office or the agent or employee of the foregoing.
    8.  "Theatrical  employment  agency"  means  any person (as defined in
  subdivision seven of this section) who procures or attempts  to  procure
  employment  or engagements for an artist, but such term does not include
  the business of managing entertainments, exhibitions or performances, or
  the artists or attractions constituting the same,  where  such  business
  only incidentally involves the seeking of employment therefor.
    8-a.  "Artist"  shall  mean actors and actresses rendering services on
  the legitimate stage and in the production  of  motion  pictures,  radio
  artists, musical artists, musical organizations, directors of legitimate
  stage, motion picture and radio productions, musical directors, writers,
  cinematographers,  composers,  lyricists,  arrangers,  models, and other
  artists and persons rendering professional services in  motion  picture,
  theatrical, radio, television and other entertainment enterprises. 
    9.  "Theatrical  engagement"  means any engagement or employment of an
  artist.

Continuing with Section 172:

  License  required. No person shall open, keep, maintain, own,
  operate or carry on any employment agency unless such person shall  have
  first  procured  a  license  therefor  as provided in this article. Such
  license shall be issued by the commissioner of labor, except that if the
  employment agency is to be conducted  in  the  city  of  New  York  such
  license  shall be issued by the commissioner of consumer affairs of such
  city. Such license shall be  posted  in  a  conspicuous  place  in  said
  agency.

Boldface added by the editor of the L & H Blog (ahem, me).

True, Nash refers to Caroline as his "manager" at one point in the episode. If Caroline and Max actually act as Nash's personal managers, then NY law does not require them to obtain talent agent licenses under the "incidental employment" exception (Section 171 (8)) but they cannot "procure employment" for him. Their behavior in the episode indicates that they are not doing so "incidentally." They go to an audition with him purposefully (although they leave when they discover the audition is for a sexually explicit film). When a friend of their new employer indicates she wants to hire Nash as a model, Caroline eagerly demonstrates that she wants to take the businesswoman up on that offer. Caroline (and Max) probably are not pursuing employment for Nash incidentally. They have a goal in mind: finding modelling work for Nash. For that, they need to be licensed as talent agents.

On "incidental" representation, see Section 171(8) above and Mandel v. Liebman, 303 N.Y. 88 (1951) (plaintiff attorney sued defendant author, because defendant refused to pay plaintiff commissions agreed upon in contract, arguing contract by which defendant employed plaintiff to represent him as personal manager was void because plaintiff was not licensed as talent agent under NY law).

Liberty of Contract and Gender Studies

Michael Schearer, University of Maryland School of Law, has published No Ma’am: Progressive Reform as an Obstacle to Gender Equality. Here is the abstract.

In the four decades between 1897 and 1937, conservatives repeatedly skirmished with progressives, especially in the labor arena. The chief weapons were liberty of contract on the conservative side and the state’s police power on the progressive side. Since the 1970s, a growing body of scholarship has taken a critical look at Progressive Era Supreme Court cases with an eye toward evaluating the long-term legacy of women’s protective labor legislation. This paper seeks to add a critical piece to the conversation by looking at efforts by the Court to acquiesce to the progressive political agenda by perpetuating gender stereotypes and prolonging a period of indifference toward the rights of women. The courts’ already-deferential attitude toward women’s protective labor legislation was reinforced and enhanced by abandonment of meaningful rational basis review. Given a fair chance, the natural evolution of the liberty of contract doctrine might well have led to some fuller measure of gender equality, especially in the labor arena, considerably sooner than actually occurred. Ultimately, though, the structural subordination of women doomed their chances.

Download the paper from SSRN at the link.

Legal Tradition, Legal Reform, and Louisiana

Christopher K. Odinet, Southern University Law Center, has published Commerce, Commonality, and Contract Law: Legal Reform in a Mixed Jurisdiction in volume 75 of the Louisiana Law Review (2015). Here is the abstract.

This Article explores the tradition/reform dichotomy as it exists in certain jurisdictions that, because of their unique history and nature, are particularly susceptible to the struggle between legal tradition and legal reform — mixed jurisdictions. In order to more closely examine the tradition/reform dichotomy and its theoretical and practical effects, this Article analyzes the role that traditional legal institutions play in the legal reform process through the lens of America’s lone mixed jurisdiction — Louisiana.

By exploring Louisiana’s subtle, yet prevalent, anchor-like legal conundrum caused by the struggle between progress and tradition — the process of mooring oneself to existing institutions to such a degree that newly adopted institutions are rendered less effective and the law as a whole suffers — one is able to extrapolate as to how historical forces play a role in the much larger sphere of mixed jurisdictions globally. This Article also explores the broader social science and psychology behind this anchoring effect by looking at society’s inherent desire to hold on to traditional customs and practices, and to resist, even if only subconsciously, letting go of the past.

Download the article from SSRN at the link.

Developing Contract Theory

Efi Zemach and Omri Ben-Zvi, both at the University of Jerusalem Faculty of Law, have published The Aesthetics of Contract Theory. Here is the abstract.

This Article offers a novel descriptive theory of contract scholarship that focuses on the aesthetics of various contract theories. Following Pierre Schlag, we explore aesthetics as pre-theoretical commitments that determine the form (but not the substance) of legal discourse. The Article explores four leading contract theories – promissory, reliance, economic and pluralistic conceptions of contract – and illustrates the manner each theories' substantive insights are interwoven with aesthetics commitments, animating and giving the theories their unique character. The Article sheds new light on various contract theories and shows how the aesthetic point of view can better explain their specific strengths and weaknesses.

This inquiry also clarifies why decades of insightful theoretical work have failed to establish the supremacy of any contract theory. The Article's main thesis in this respect is that the continuing struggle between different contract theories is isomorphous to the battle of aesthetics that rages in the legal community as a whole. Since there is no meta-aesthetic way to determine which aesthetic construction is correct – contract theories, which rely on different aesthetics, cannot produce conclusive evidence of their superiority. Our explanation also predicts that contract scholarship is not likely to produce a widely accepted theory any time soon.

Download the paper from SSRN at the link.

The Aesthetics of Contract Law

Kenneth K. Ching, Regent University School of Law, has published Beauty and Ugliness in Offer and Acceptance. Here is the abstract.

This essay applies classical aesthetics to the contract doctrine of offer and acceptance. It argues that contract law can be understood, analyzed, and improved using three criteria of beauty: proportion, integrity, and clarity. Based on these criteria, this essay (1) argues that the traditional doctrine of offer and acceptance is beautiful, (2) argues that UCC §2-207 is ugly and fails to improve upon offer and acceptance, and (3) suggests improvements for UCC §2-207.

Download the essay from SSRN at the link. 

Bach To the Future

Jonathan Yovel, Yale Law School; NYU School of Law, Straus Institute for the Advanced Study of Law and Justice; University of Haifa Faculty of Law, is publishing From Status to Contract: The Unhappy Case of Johann Sebastian Bach in the Canadian Journal of Law and Jurisprudence. Here is the abstract.

In May of 1723, Johann Sebastian Bach was appointed Musical Director and Cantor of the Thomasschule, the city musical academy, in the mercantile city of Leipzig, a laboratory for an emerging self-conscious urban bourgeoisie. Bach departed from a tiny 1700s feudal court, moving to a devout, materialistic, new-money city ecstatic with the sense of its own progress and modernization. Socially and politically, he left behind one Europe and joined another.

Not less significant, although generally ignored by scholarship, was the matter of Bach’s legal status. Up to this point in his career, Bach always served as a status-determined servant within a feudal hierarchy. In Leipzig he signed a contract of employment; no longer a servant, he became an employee. In a sense he embodied Henry Maine’s characterization of modernity as a gradual shift “from status to contract.” And in most respects, his life turned much to the worse.

This essay explores the failings of contract in early modernity through Bach’s case, and especially how contract perpetuated hierarchical social structures he was ostensibly leaving behind. Bach was a modern in his entrepreneurial spirit; to the extent that he finally did manage to take advantage of contract — a later period that coincided with a decline in his liturgical output — that was not due to a supposed “freedom of contract” in any sense of empowerment or even bargaining, but to contract’s relative incomprehensiveness and fracturing of social and professional roles.

Download the article from SSRN at the link. 

The Law of Obligations In Scotland

Hector Lewis MacQueen, University of Edinburgh School of Law, has published The Law of Obligations in Scots Law in The Law of Obligations in Europe: A New Wave of Codifications 213 (Reiner Schulze and Fryderyk Zoll eds; Munich, 2013). Here is the abstract.

A historical study of the structure of the law of obligations in Scots law, with especial reference to the law of contract.

Download the essay from SSRN at the link.

Love As a Contract

Martha M. Ertman, University of Maryland School of Law, has published Love and Contracts in Don Quixote in Don Quixote: Interdisciplinary Connections 251 (Matthew D. Warshawsky and James A. Parr, eds.; Newark, NJ: Juan de la Cuesta, 2013). Here is the abstract.

Viewing love as a contract seems, initially, like mistaking windmills for giants, or a peasant girl for a grand lady. This chapter seeks, like Don Quixote, to convince readers to suspend their practiced views of everyday relationships in order to see them in a new light. What seems crazy at first glance may come to look as good, and sometimes better, than the more conventional view. As a law professor, I usually write about love and contracts by focusing on legal opinions and statutes, and recently I have added real-life stories from books and newspapers, as well as my friends, family, colleagues, and students. But if I am right that love and contracts often complement instead of oppose each other, then my argument that contracts shape the beginning, middle, and demise of love relationships ought to hold true in fiction as well, especially for the jump-off-the-page characters and situations in Don Quixote. Applying this analysis to Don Quixote invites new readings, and may even bring yet more readers to this brilliant text.

Download the essay from SSRN at the link. 

Contract and the Comedy of Errors

Andrew Zurcher, Queen's College, Cambridge, has published "Consideration, Contract, and the End of the Comedy of Errors, in volume 1 of Law & Humanities (2007). Here is the abstract.

To address methodological and critical issues at stake in the conferral of legal historical and literary studies. The major part of the paper concerns Shakespeare's interest, in The Comedy of Errors, in contractual theory, and the problems this throws up for understanding the function of comedy; but this leads to further reflections on the way we bring legal ideas to bear on literary texts in this period.

Download the paper from SSRN here.