Tuesday Tips: Week of April 27th
The crapification of SSRN continues apace. It is getting increasingly difficult for me to cull through the recent postings and determine which to share. When I started this new feature just a few months ago, there would be perhaps a dozen or two new postings per week on SSRN’s main contracts e-journal. When I checked this week, there were 75-80, including as many as thirteen new submissions by a single author. The vast majority of papers are submitted by people without known affiliations, which is not their fault, but it eliminates a useful proxy in helping me determine which pieces to post. In short, I will keep this feature going until I can’t keep it going. Fortunately, I was able to identify some new pieces that I am confident will be of general interest to the target audience for this blog.
Susan Chesler
Abstract
This article focuses on how contract drafters can-and should-use AI tools to assist them in drafting contracts that not only achieve the parties’ goals but can also be used for social good. While contracts are generally entered into by two discrete parties and private law has not traditionally been viewed as a means of advocating for social good, the contract drafters of today (and tomorrow) need to understand the potential for contract language to drive social change. Companies are increasingly becoming embroiled in the culture wars that plague our country, and a variety of stakeholders now make decisions about which companies they want to invest in, buy from, and work for based on the company’s perceived commitment to social values such as sustainability, diversity and inclusion, climate change, and access to health care. Whether fueled by a company’s altruistic desire to become a platform for social change or in response to their stakeholders’ demands to put into action their stated beliefs, companies often struggle with how to implement and prove their commitment to social values.
One often ignored means available to companies to further their commitment to social values is through their contracts, whether supply agreement, employment agreement, or operating agreement. Companies can use a variety of drafting techniques and carefully select contract terms in order to create contracts that have the potential to have broader societal impacts. But doing so may prove challenging for a variety of reasons, such as the reliance on traditional contract drafting language, and the time and money needed to revise standard contracts to incorporate the type of language and terms needed to facilitate such change. The recent proliferation of generative AI tools can be used to help alleviate many of these challenges. Contracts can be an effective vehicle for social change and contract drafters should learn how to leverage AI tools to assist them in reaching that goal. In this article, we will provide concrete illustrations of how contract drafters can leverage AI tools and incorporate a variety of drafting techniques to craft contract terms that not only achieve the best results for the transacting parties but can also be used for social good.
Anthony J. Palermo, Kara J. Bruce, & Laura Coordes
The American Bar Association’s Commercial Law Education Task Force was formed to bring renewed attention to the importance of commercial law in legal education. There has been a significant decline in commercial law course offerings at U.S. law schools, and we write to law schools to ask them to prioritize and encourage commercial law offerings.
Commercial law cuts across disciplines and includes selling, leasing, lending, investing, and payments. Commercial law concepts appear regularly and substantially in a variety of practices, including not only transactional and business litigation fields but also practices focused on consumer law, family law, bankruptcy, and criminal law. Commercial law forms the basis for understanding our existing systems of finance and trade and informs developing systems such as cryptocurrency.
Despite its significance, commercial law is disappearing from law school curricula. In addition, Secured Transactions will no longer be directly tested on the NextGen Uniform Bar Exam.
We are a robust community of more than 100 law professors and practitioners who are dedicated to ensuring that commercial law classes remain in law school curricula. We urge law schools to make it a priority to offer these courses, including those covering secured transactions, sales and leases of goods, payment systems, bankruptcy, or some combination of these, plus additional courses in transactional skills, cryptocurrencies and other digital assets, international trade, consumer finance, and the like. Of these classes, retaining and promoting Secured Transactions is our priority.
Michael Z. Green
“Arbitration in Name Only”: A Race Claims Mismatch I’m very happy to have come across this article, as we just posted about this case last week.
Abstract
With arbitration’s meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair “arbitration in name only” that should not be enforced.
Employers have become savvier in how they require employees to agree to resolve discrimination claims in arbitration as a condition of employment after experiencing thirty-five years of Supreme Court jurisprudence establishing mostly enormous support for enforcement pursuant to the Federal Arbitration Act (FAA). Congress has addressed these bargaining power differentials in at least one setting by amending the FAA to prohibit some sex-related discrimination claims from being subjected to pre-dispute arbitration agreements. Similar race related discrimination claims have not received this same FAA protection.
A 2025 federal appellate decision permitting a football coach, Brian Flores, to proceed in court, rather than being ordered to arbitrate, provides a helpful analysis of power differentials when employees file statutory race discrimination claims. Because the agreement in Flores made the employer’s principal executive officer the arbitrator, it represented an unenforceable “arbitration in name only.” This Article contends the Flores case shows exactly why employer use of power differentials to require arbitration of race-related claims must always be judged unenforceable as “arbitration in name only” and similar to sex-related claims.