Dec 5, 2022 Eyal ZamirContracts
Much of contract law—including the doctrines pertaining to contract formation and to defects in the contracting process (such as mistake and duress)—revolves around the question of whether the parties have expressed a valid will or consent. Drawing the line between valid and invalid consent preoccupies other spheres of law as well, such as tort law (for example, in the context of consent to a medical treatment) and criminal law (e.g., the distinction between voluntary sex and rape).
In contract law, special challenges are posed by the fact that nowadays the great majority of contracts (some would say 95% to 99% of the written contracts) are made through standard forms, where one party—be it a consumer or a commercial customer—does not meaningfully participate in setting the terms of the transaction. In fact, practically no one reads the terms of the standard forms before expressing his or her consent. This is true not only when signing a form in a bank or a store (where reading the contract before signing it may upset the people waiting in line), but also when contracting online in the comfort of one’s home or office (Bakos, Marotta-Wurgler and Trossen 2014). Not only people do not actually read contracts before signing or clicking their consent; even if they wanted to, there is practically no way they could read all the contracts and other types of information they are constantly bombarded with by commercial firms, governmental agencies, and other institutions (Ben-Shahar and Schneider 2014).
How can legal policymakers, including courts, hold that people consent to terms that they do not (and practically cannot) read before making the contract? Joanna Demaree-Cotton and Roseanna Sommers’ experimental study in Autonomy and the Folk Concept of Valid Consent may provide an interesting answer to this lingering question. The authors distinguish between people’s capacity to make free and autonomous decisions, and the exercise of this capacity. Even when people have the capacity to rationally make a decision that reflects their true will, they do not always use this capacity. Should a consent given by a person who has the capacity to make a free and autonomous decision be considered valid, or should it be considered valid only if the person has actually exercised that capacity? Continue reading "Commonsense Consent and Contract Law"
Dec 2, 2022 Leah LitmanConstitutional Law
A National Law Journal article described how, in keeping with prior Democratic administrations, President Biden has relied less on clerkship experience—or at least a particular kind of clerkship experience—than prior Republican administrations. The article observed that while “the road to the bench for many Trump nominees ran through the chambers of a handful of particular judges and justices” (such as Justices Thomas and Scalia), “Biden has relied far less on feeder judges in his nominations.”
Why might that be? And is that a good or a bad thing? A recently published article by Brandon Hasbrouck offers one way of thinking through this. In Movement Judges, Hasbrouck writes movingly (no pun intended) about the importance of appointing jurists “who understand[] that our Constitution contains the democracy-affirming tools we need to dismantle systems of oppression”—judges who “consistently bear in mind the consequences cases have for individuals’ real lives beyond the courtroom.” (Full disclosure: I’m thanked in the article’s acknowledgments for comments on a draft.) Hasbrouck further describes a movement judge as a jurist who is “more committed to shifting fundamental understandings of how the law operates.” And he contrasts these judges and the strategies for appointing these judges with the kinds of judges and the kinds of strategies that Republican administrations have pursued; Hasbrouck describes the Republican strategy as a top-down, hierarchical approach to judicial selection that may have advanced the “conservative legal movement’s” goals, but does not offer the kind of sociological or democratic legitimacy that movement judging would. Continue reading "Movement on Judges"
Dec 1, 2022 Margaret KwokaAdministrative Law
Christopher J. Morten,
Publicizing Corporate Secrets, 171
U. Pa. L. Rev. __ (forthcoming 2023), available at
SSRN.
There has long been great debate about the extent to which the public should have access to government-held information that concerns private businesses. Primarily sought through requests made under the Freedom of Information Act (FOIA), this type of information is often claimed exempt from mandatory disclosure under FOIA’s Exemption 4, which covers trade secrets and confidential commercial or financial information obtained from a third party. But the state of the law has been evolving in an unsatisfactory way. For example, Sonia Katyal and Charles Graves have a recent searing critique of the over-application of the trade secrets doctrine generally, and as I reviewed a couple of years ago, Deepa Varadarajan brilliantly takes apart the justifications for the sweeping expanse of Exemption 4 specifically. Both pieces, and others, have pointed out the expansion of commercial secrecy beyond the traditional justification to protect competitive innovations. Calls for reform, such as this recently proposed legislation, have typically centered on cabining the trade secrets protections to apply more narrowly, thus rebalancing the interests in public transparency against those of business secrecy.
This line of scholarship is rich and worthy, but Christopher Morten’s outstanding forthcoming article, Publishing Corporate Secrets, finds a fresh third angle to the problem, rejecting the idea that line drawing is even necessary and embracing as a solution a middle ground between full disclosure and guarded secret keeping. Are you intrigued by the idea that the government might be able to publish important information without first deciding whether it constitutes a trade secret? Or that there is a way to publish trade secrets for the social good without competitors profiting from it? So was I. Read on. Continue reading "Against Government’s Reification of Business Secrecy"
