New Feature: Tuesday Top Tips
We were a bit slow to notice this, but SSRN lists stopped updating last month. We still want to keep readers updated on recent scholarship, so we are will comb the SSRN contracts lists weekly and post abstracts for new and noteworthy publications each week.
But first, a heartfelt thanks to Mark Edwin Burge who has steadfastly kept the Top Tens list going for years. Even when I took some time off, Mark maintained his steady, weekly pace.
Here’s the inaugural list:
Contracts & Commercial Law eJournal New Posts from Last Week
Samuel Becher & Benjamin Alarie,
Abstract
As AI tools increasingly shape everyday life, autonomous AI agents are emerging as a new frontier. This Article demonstrates how AI legal agents, empowered to act independently on behalf of human users, could structurally reconfigure legal systems through three transformative pathways. First, AI legal agents promise to democratize legal knowledge by dismantling vertical and horizontal institutional barriers to justice. Second, these agents could reconstitute legal authority through algorithmic constitutionalism, accelerated jurisdictional synthesis, and legal pluralism, enabling novel frameworks of AI-mediated dispute resolution that challenge traditional paradigms of jurisdiction and legitimacy. Third, such agents may shift the temporal focus of legal intervention from post-violation remediation to continuous preventive measures. Harnessing this triple transformation-the democratization, pluralistic reconstitution, and temporal shift-will require design frameworks that balance accountability with efficiency, fairness with personalization, and societal values with algorithmic optimization. Together, these developments gesture toward a legal singularity, a future in which AI legal agents, through their continuous interaction with human judgment and institutional frameworks, render law increasingly self-organizing, adaptive, and intelligible.
Carla Reyes & Kish Parella
Abstract
Data is a critical resource. Like oil, gold, or lithium, both companies and countries covet data. Ultimately, like oil, data’s flow can enrich those that possess it, signifying it as the next grand prize in great power competition on the world stage. Despite its importance, law lacks a unifying framework for understanding how data is sourced upstream by both companies and countries.
This Article argues that this data competition has created global “data supply chains”: networks of transactions that transfer data as an intermediate good between individuals, organizations and technology to create a product or service for an end user. Beyond identifying it, this Article provides two foundational contributions: First, it offers a novel typology of the five methods that companies use to acquire the data that they need to power their goods and services: build, buy, scrape, surveil, and generate. Second, it provides an institutional framework – a supply chain – to explain how companies utilize these data acquisition methods. By doing so, this Article reconceptualizes data governance around upstream sourcing and supply chain problems, thereby challenging its exclusive focus on downstream data issues, such as data privacy.
This Article’s identification of data supply chains is important for both corporate management and national policymakers. Identifying data acquisition practices as a data supply chain means that data can be managed, governed, and regulated like supply chains for physical goods. Corporate management should understand the structure of their data supply chains; evaluate their data suppliers; identify critical risks to their data supply chains; and invest in resiliency capabilities. This is a priority for corporate boards and senior management and should be distinguished from the management of cyber risks.
Policymakers should recognize that data supply chains are critical to maintaining critical digital infrastructure, such as the internet, email and, increasingly, emerging technologies. Both the executive and legislative branches have strengthened U.S. supply chains for physical goods. Now they need to do the same for data supply chains. But data acquisition is not a boon for all. It can come at a high cost to the users and organizations whose data is obtained. Policymakers should use a supply-chain framework to identify data harms and to adapt supply chain due diligence laws—applied to physical supply chains—to addressing harms in data supply chains.
Wayne Barnes
Abstract
This survey article discusses cases during the prior year, which are decided based on one or more provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is a United Nations treaty that provides a uniform international sales law. It was adopted in Vienna in 1980 and went into effect in 1988. The CISG governs contracts for the international sale of goods between businesses located in different countries that have ratified the treaty. It has been adopted by 95+ countries, including major trading nations like the United States, China, and most European countries. The CISG governs unless the parties expressly contract otherwise. It governs contract formation, obligations of buyers and sellers, remedies for breach, and passing of risk. It doesn’t apply to consumer sales, services contracts, or certain excluded goods like ships or aircraft. This year’s survey includes cases discussing: (1) the applicability of the CISG, (2) the CISG’s preemption of certain tort claims, (3) contract formation, (4) the lack of a formal statute of frauds writing requirement, (5) contract interpretation, (6) conformity of goods, (7) breach of contract, (8) recovery of attorney’s fees, and (9) recovery of prejudgment interest.
Steven L. Schwarcz & Isabelle Stewart
Abstract
There has been no serious scholarship on subordination since a 1961 Yale Law Journal article which described subordination as then utilized and discussed how it applied in practice. This Article updates and, in scope, goes beyond that earlier article, analyzing subordination not only from a functional but also from a theoretical perspective. The Article classifies and compares the various types of subordination–contractual, structural, equitable, and statutory–and examines their rationales and uses. It then analyzes and critiques the legal frameworks for subordination, showing that courts remain profoundly confused about some of subordination’s basics, let alone its sometimes arcane and inconsistent terminology. Finally, the Article analyzes how subordination law should be improved, including by systematizing its terminology, settling its judicial splits, and, more generally, resolving doctrinal confusion.
Sarah Dadush
Shared Responsibility In American Contract Law
[Coming to an International Conference on Contracts Near You (if you happen to live in Gainesville, Florida)}
Abstract
At first, the notion that there is such a thing as shared responsibility in American contract law may sound fanciful, if not absurd. A key reason why parties contract in the first place is to allocate risks and responsibilities between them to clarify who must do what to move the collaboration forward. As such, contractual obligations are understood to be binary, belonging either to one party or the other, not both. In practice, this means that, if there is a breach, only the obligated party will be held responsible, not both. And, if remedies are awarded, they will flow only from the breaching to the non-breaching party, not between them. Thus, the proposition that the parties might be contractually responsible not just for their own obligations, but also for those of their counterparty, seems incoherent.
And yet, as this Article shows, courts frequently go beyond the express terms of the contract to make the parties share responsibility for the performance of one another’s obligations. Thus shared responsibility: Each party is held responsible for the other’s contractual (non)performance, even in the absence of an express commitment. This Article “goes fishing” for shared responsibility in three key areas of contract law: The contents of the contract, breach, and remedies. It demonstrates that shared responsibility is brought to bear to resolve contract disputes more often and with greater legal effect than the simple binary understanding of contract might predict. When it enters the judicial analysis, shared responsibility can drastically change the answers to the questions: Who had the obligation to perform? Who breached? And, finally, whose harm should be remedied and how?
Having shown that shared responsibility is already a prominent, if overlooked, feature of American contract law, this Article argues that, in certain situations, courts should employ shared responsibility as a default rule. Specifically, courts should employ a shared responsibility default (SRD) when the contract was breached, or otherwise failed, and (1) both parties contributed to the failure, and (2) the failure could, or has already, generated high social costs (e.g., public endangerment, human rights violations in supply chains, consumer deception). The SRD activates the tort law principle of comparative negligence in contract to hold both parties accountable for their respective contributions to the breach and related social costs. It sets better incentives for contract parties to behave well, not just toward one another, but also toward non-parties, promoting both contract and public policy objectives.
Rachel S. Arnow-Richman & J. H. Verkerke
Abstract
This Article tackles the ubiquitous problem of employer-drafted “disclaimers.” Disclaimers are standardized provisions, found in a variety of human resources documents, that confirm employees’ at-will status. They typically preserve employers’ right to change the terms of employment at any time, sometimes without advance notice. The most careful disclaimers also renounce the legal significance of contrary statements or promises by supervisors and other managerial agents, thus foreclosing contractual obligations that would otherwise arise. Meanwhile employers scrupulously preserve the legal enforceability of terms they desire such as restrictive covenants and arbitration agreements.
Currently there is no defensible legal framework for assessing employment disclaimers, nor has there been any meaningful theoretical engagement with their contractual status. Most courts simply treat these disclaimers as prima facie valid. As a result, employers not only avoid liability for specific commitments, they effectively remove one side of the employment relationship from the realm of contract. Our Article argues that courts defer too readily to disclaimers, and despite purported reliance on contract principles, their deferential approach is not doctrinally compelled.
We propose instead a holistic framework more suitable to the unique characteristics of employment contracts. This approach draws on three aspects of mainstream contract law and theory: (1) a robust literature that questions the validity of assent to consumer contract boilerplate; (2) interpretive canons and contextualist techniques that construe contract language against the drafter and in conformity with the reasonable expectations of the weaker party; and (3) doctrines such as unconscionability and the duty of good faith that impose modest but meaningful substantive limits on drafting. These prescriptions are particularly appropriate in light of employment’s “hyper-relational” character, in which the parties’ obligations are never expressed in a final, formal writing. We propose a holistic treatment of disclaimers that acknowledges them as just one source of governing terms that must ultimately be reconciled with (and potentially subordinated to) conflicting expressions of commitment and nonwaivable common law obligations. In short, we aim to free employment contract law from the tyranny of exculpatory boilerplate.