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contracts archive 2018

First Class Assignment: Please read the Introduction to Contracts (2018) and Cullinane v Uber (1st Cir. 2018). You will need to read these materials very carefully.

We will need at least 2 classes to cover this material. The basic plan for the semester is to read and discuss the casebook in the casebook order. Sometimes I will provide additional materials or questions on this blog, and I will also use the blog to provide guidance on how quickly we are likely to cover the material.

Please also read the Class Policies before the first class.

And, by close of business (for the avoidance of doubt, this is 5.00 pm eastern time) on Monday August 13 please send an email (subject line: Bradley Contracts Class) to my assistant, Caridad Dalama, at cdalama@law.miami.edu describing two facts you would like me to know about you.

On Wednesday August 15 we will continue working through the materials we begin with on Monday. After discussing the 2 cases we will focus on note 4 of the Introduction to Contracts document. We won’t be spending much time on fraud during this semester, but I’d like to think a bit about this legal test. If you want to sue someone for fraud you need to establish all of these elements.

Before class on Thursday please read pages 1-29 of the Casebook. I will comment on this section briefly in class, but we will not go over these pages in detail in class at this point. For class on Thursday please read pages 31-44. When the Casebook refers to provisions of UCC Article 2 (e.g. at the top of page 43) or to the Restatement you should look at the relevant provisions (by look at I mean read carefully). Be prepared to discuss the questions on pages 43-44.

Note added August 14: You may be interested to look at the current version of the Uber Terms of Use (US version). Towards the beginning there is a prominent reference to arbitration being the mechanism for dispute resolution. This is part of what the document says about the relevant rules for the arbitration:

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879….The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules….Unless you and Uber otherwise agree, the arbitration will be conducted in the county where you reside… Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Uber will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

When I go to the URL specified above I get a page not found message. But at https://www.adr.org/Rules there is a link to the AAA’s Consumer Arbitration Rules.

This looks reasonably favorable to Users of Uber’s services. The proceedings won’t be expensive, many claims are resolved on documents and the arbitration does not require the User to travel far. The AAA is a well established organization. One empirical study of consumer arbitrations carried out under AAA rules found that there probably was not a repeat player effect, or to the extent there might be it could be because the repeat players were better at screening cases (Christopher R. Drahozal and Samantha Zyontz, An Empirical Study of AAA Consumer Arbitrations, 25 Ohio St. J. on Disp. Res. 843 (2010).) But Cynthia Estlund in The Black Hole of Mandatory Arbitration ( 96 North Carolina Law Review 679 (2017 ) has argued that not only does arbitration involve less transparency than litigation in courts, but (at p. 682):

the great bulk of disputes that are subject to mandatory arbitration agreements… simply evaporate before they are even filed. It is one thing to know that mandatory arbitration draws a thick veil of secrecy over cases that are subject to that process. It is quite another to find that almost nothing lies behind that veil. Mandatory arbitration is less of an “alternative dispute resolution” mechanism than it is a magician’s disappearing trick or a mirage.