Checking in on Contracts Substacks

There have been two very interesting Substacks that I wanted to promote since my last post on Substacks. By the way, if you are a contracts scholar with a Substack of which I have yet to take notice, please let me know. There ought to be more people writing for a general audience in this field!

First, Kim Krawiec has a new post about The Shadow Market for Sperm. It has all the hallmarks of a classic Kim Krawiec contribution: it is about a taboo subject, it is engagingly written, and it provides a sober, scholarly treatment sure to scare off anybody who seeks out taboo topics in the hopes of titillation or scandal. The story Professor Krawiec tells is a familiar one. There is a highly regulated market for sperm that not everybody can access. As a result, informal networks arise, along with the advantages (low costs, speed, known donors) and disadvantages (scams, lack of standards, lack of recourse) associated with such networks.

The post explores yet another episode in the unintended consequences of legal interventions. In the U.S., we regulate sperm donation through indirect transfer, but we don’t regulate sperm donation through intercourse. We thus create legal incentives to engage in behaviors that put the participants at the highest risk. The piece concludes by noting that there will always be a market for sperm, and the hope is to find the Goldilocks mixture that strikes the right balance between access and protection.

This week’s second recommended post is Dave Hoffman’s latest Contracts’ Empire post, which is about Brendan Sorsby’s NIL contract, which we covered here and here. As is usually the case, Professor Hoffman’s dive is deeper than ours. While some people think the Sorsby case will lead to the first legal opinion about liquidated damages clauses in NILs that may function as disguised non-competes, Professor Hoffman gives us reason to believe that the path to such an opinion is uncertain. He does a great job of unpacking why the parties are pursuing such odd litigation strategies: neither wants to confront the fact that NIL contracts are really disguised pay-to-play agreements.

I think both parties have reason to negotiate a settlement. The likely resolution will somewhat dampen incentives for players in Sorby’s position to enter the transfer portal while also permitting universities to preserve the option to include disguised penalty clauses in their agreements with student athletes. Such clauses may not be enforceable, but until the matter is adjudicated, they will still have a significant in terrorem effect.