ProgramTuesday, June 14, 20055:00 - 8:00 p.m. 6:00 - 8:00 p.m. Wednesday, June 15, 20058:45 - 9:00 a.m. Introduction 9:00 - 10:30 a.m. Modern Adhesion Contracts: Clickwrap, Browsewrap and Shrinkwrap Standard form contracting in the electronic age has created new issues for contract law. This panel explores such issues as the validity of terms supplied after payment, the meaning of assent to standard terms presented in shrinkwrap, clickwrap, or browsewrap form, and the problems created by new 10:30 - 10:45 a.m. 10:45 a.m. - 12:00 p.m. This panel will discuss the intellectual property and information policy implications of using contract to change the allocation of substantive property rights provided by federal and state intellectual property law. It will illuminate the substantive stakes often underlying the formation issues discussed in the previous panel on modern contracts of adhesion. Some types of businesses—software and digital content publishing are two prime examples—routinely attempt to limit by contract, often using delayed standard forms terms, fair uses and transfers of copies that otherwise might be permitted by federal law. The case law on the enforceability of such terms is thin. Preemption doctrine is complex. The panel will explore to what extent contractual redefinition of intellectual property rights is efficient and to what extent it threatens competition and innovation. 12:00 - 1:45 p.m. Role of Contract Enforcement in Developing Economies 2:00 - 3:30 p.m. As it becomes increasingly common for one or both parties to a contract to prefer arbitration to a judicial forum for dispute resolution, we have seen an increasing privatization of contract law. This panel will discuss the many legal and policy issues raised by this development, such as the following: What are the tradeoffs involved in using arbitration? How do these tradeoffs differ when the parties are both legally sophisticated, as opposed to when one is sophisticated and the other is not? What developments are there in the techniques of arbitration? Do courts remain fully supportive of arbitration? Is it time for changes in the state or federal statutory law of arbitration? 3:30 - 3:45 p.m. 3:45 - 5:15 p.m. Thursday, June 16, 20059:00 - 10:30 a.m. Implications of Limited Rationality for Contract and Commercial Law Legal scholarship has increasingly turned to the learning of cognitive psychology to understand how people make decisions and to explain why decisions often depart from economic rationality. Such insights enrich both descriptive and normative accounts of contract and commercial law. This panel will explore various implications of insights concerning people’s limited ability to collect and process information, their tendency to utilize “mental shortcuts” in making decisions, and the biases they bring to decision-making. The panel will also consider the limitations of cognitive psychology as it is applied to the analysis of contract and commercial law. 10:30 - 10:45 a.m. 10:45 a.m. - 12:15 p.m. On its face, the law of contract is objective, eschewing any notion of societal inequities. The objectivity and abstraction fostered by the principles of contract law have an illusory quality when viewed in terms of actual human contexts. Societal stimuli related to bias, opportunism, and discretion can skew the effectiveness of contractual rules. This panel will challenge the seeming objectivity of contract law and critique its theories and rules as they intersect with bargaining relationships that implicate race, ethnicity, gender, or other attributes of difference. 12:15 - 1:45 p.m. Desperately Seeking Contract 2:00 - 3:30 p.m. The utility of contract law extends beyond the bounds of traditional commercial relationships. In fact, principles of contract law provide probative insight and analysis into a variety of legal disciplines. This panel will demonstrate the broad applicability of contract theory to such diverse disciplines as family law, administrative and regulatory law, and public choice theory. 3:30 - 3:45 p.m. 3:45 - 5:15 p.m. 5:15 - 7:00 p.m. Friday, June 17, 20059:00 - 10:30 a.m. As the former Soviet Union and other countries continue the effort to transition from socialist economies to market economies, the importance of contract law and institutions has come to fore. In this session the panelists will explore some of the challenges and lessons of contracting in these environments. 10:30 - 10:45 a.m. 10:45 a.m. - 12:00 p.m. In this session we will hear from contracts professors who have designed and taught contracts courses, both in first year and in upper years, that focus on teaching not (just) contract doctrine, but also developing students’ ability to analyze contracts problems, think strategically about contracting and exercise judgment in advising clients on how to respond to contracting events. These are courses taught using case studies, based on real-life cases and documents, in a business-school style, and courses taught using problem-solving methods. 12:15 - 1:45 p.m. Memorial Tribute to E. Allan Farnsworth, Columbia University 1928-2005 2:00 - 4:00 p.m. In his classic article, Professor Knapp challenged the traditional contract/no-contract boundary. Under this all-or-nothing structure of contractual liability, either there is mutual assent and full liability, or no assent and zero liability. Knapp pointed out that this structure increasingly has been replaced by a regime in which some liability emerges during precontractual negotiations. This form of liability, which he labeled the contract to bargain, is the focus of the panel. Since the publication of Knapp’s paper, it has become even more clear that systematic patterns underlie precontractual liability. The panel will explore the directions in which this area of the law develops, and the arguments in favor or against these developments. Among others, the topics that will be explored are agreements-in-principle and agreements-to-agree, the obligation to negotiate in good faith, revocation of offers, and gap filling in precontractual agreements. |
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