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contracts archive 2019

First class assignment (for Monday August 12): Please read the Class Policies document, Introduction to Contracts (2019) pages 1-5, and Cullinane v Uber (1st Cir 2018).

By close of business (for the avoidance of doubt, this is 5.00 pm eastern time) on Monday August 12 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.

Arbitration under Uber’s current  US Terms of Use (which provide for arbitration under the American Arbitration Association’s Consumer Arbitration Rules)  is not 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.

For Wednesday’s class please read Introduction to Contracts (2019) pages 6-15.

For Thursday please think about these 3 fraud hypos (and footnote 4 in the Introduction to Contracts document at page 2).

Monday August 12, Note on today’s class (I include citations to the articles for your information but you are not required to read them): We  focused on H.L. A Hart’s hypothetical rule prohibiting vehicles in the park (H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958)). Hart says “A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be called “vehicles” for the purpose of the rule or not?'” He argues it makes sense to think in terms of a core of settled meaning and a penumbra of debatable cases (Fred Schauer later suggests a distinction between easy cases and hard cases (Frederick Schauer, A Critical Guide to Vehicles in the Park,  83 N.Y.U. L Rev. 1109 (2008) ). Fuller argued that interpretation of rules should focus on the purpose of the rule, and asked: “What would Professor Hart say if some local patriots wanted to mount on a pedestal in the park a truck used in World War II, while other citizens, regarding the proposed memorial as an eye-sore, support their stand by the “no vehicle” rule? Does this Truck, in Perfect Working Order, Fall Within the Core or the Penumbra?” (Lon L. Fuller, Positivism and Fidelity to Law, 71 Harv. L. Rev. 630 (1958))

I also mentioned Pierre Schlag who wrote: “We are not just talking about parks and vehicles here; we are talking about parks and vehicles in a legal rule in a legal system in a particular culture… as a general word in a legal rule, the term draws its meaning from the interweavings of all manner of webs – webs that are often described as linguistic, cognitive, moral, political, institutional, or cultural. In the rule, the meaning of the term “vehicle” is inscribed in tacit understandings of parks; legal rules; the effects of legal rules; the roles and possibilities of legal rules within the hierarchies of sources of law; the “public” meaning of legal rules for citizens and public officials; and the meaning of legal rules in light of juridical concepts of excuse, justification, prosecutorial discretion, and much more” (Pierre Schlag, No Vehicles in the Park, 23 Seattle U. L. Rev. 381 (1999) .

This was an introduction to the idea of ambiguity in law: legal rules and contracts rely on words, but those words may be ambiguous, allowing lawyers to make arguments for their preferred interpretation.