What are Today’s Hottest Contract Law Topics?
Contract law’s powerful hoary tools adapt admirably across centuries and settings to resolve innumerable disputes concerning rights and duties arising from promissory exchange. Endlessly elastic, contract law rises to meet challenges from what seem like new problems using time-tested principles of consideration, bargain, assent, and compensation for breach.
Yet contract law is repeatedly put to new tests each generation. In reviewing its current challenges, I’ve identified the following as the hottest topics. I’m wondering if anyone has additional suggestions for such a list.
1. treating clauses in many standard form contracts for employees and consumers that purport to remit all resulting disputes to binding arbitration, forfeiting the vaunted American value of getting one’s day in court (e.g., Jackson v. Rent-A-Center; Concepcion v. AT&T Mobile; Thomas Stipanowich, Illinois Law Review);
2. evaluating whether corporate policies, especially concerning privacy and often on the internet, are enforceable as contracts (e.g, Staffold v. Cleveland Plain-Dealer; Dyer v. Northwest Airlines Corp.; Woodrow Hartzog, Temple Law Review; Allyson Haynes, Penn State Law Review);
3. resolving tensions that arise when people promise confidentiality in the face of First Amendment impulses crying out for the right of free speech (e.g., Tiger Woods and Elin Nordegren; Perricone v. Perricone; Dan Solove & Neil Richards, Columbia Law Review)
4. assessing whether stipulated remedies in consumer contracts, like early termination fees in cell phone service provider agreements, are valid liquidated damages clauses or unenforceable penalty terms (e.g., Ayyad v. Sprint Spectrum; Larson v. Sprint Nextel Corp.; Oren Bar-Gill & Rebecca Stone, Harvard Journal of Law & Technology);
5. determining whether contracts involving reproductive technologies are enforceable (e.g., In re Baby M; A.Z. v. B.Z; Michelle Goodwin, Baby Markets, Cambridge U. Press).
What should be added to this list? Removed?