Category: Law School (Scholarship)


Dichotomies in Contract Theory and Doctrine

In this blog post, I would like to examine some of the dichotomies in contract theory and doctrine that are noted in Professor Cunningham’s Contracts in the Real World.  Some would claim that contract law is revolutionary; others would argue that it is reactionary.  Compared to the status relationships of the Middle Ages, in which economic power was primarily determined through feudal or family relationships, contract and market relations promised a more egalitarian alternative.

In the classic text Ancient Law, Sir Henry Maine described the radical transformation from a feudal society governed by custom and hierarchy to one transformed by the industrial revolution, in which socio-economic mobility was not only possible, but which was expected.  On the other hand, many today would argue that contract acts as a reactionary force, for enforcing bargains strictly as written could result in reinforcing the power imbalances that already exist in society.

Contracts in the Real World notes these dichotomies and strikes a middle ground between them.  Prof. Cunningham characterizes the schism in contract law as a dispute between formalists and realists.  This schism, he posits, applies even to foundational matters, such as the question of whether a contract has been formed.  Prof. Cunningham notes that extreme formalists would champion a return to the days of the seal and enforce only those deals that meet the strict definitions of offer, acceptance, and consideration.

Realists, on the other hand, favor scrutinizing the context of every bargain, accepting the most informal of deals and even enforcing promises to make gifts as contracts.  Thus the dichotomy between formalists and realists turns into a debate over the extent of government or court involvement in private ordering.

Throughout the book, Prof. Cunningham walks a tightrope between these positions, often making reference to contract law’s “sensible center,” and noting that with many common problems, the rules that have evolved over the years make a good deal of sense.  In essence, he makes a case for the status quo, eschewing reform in either the direction of more government interference in contract, or government withdrawal from contract.

Prof. Cunningham suggests that current law strikes the proper balance between two rather extreme positions.  The book extols the earthy pragmatism of old precedents and wise judges, and suggests that these doctrines will ultimately win out and reach a balance.  In my next blog post, I will question whether this assertion holds true in the context of technological change.

Miriam Cherry is Professor of Law at Saint Louis University School of Law.  Some of her scholarship can be found at this link on SSRN.


Contracts in the Real World and Contracts in Law School

Thank you to our hosts at Concurring Opinions for inviting me to participate in this online book symposium.   It is a pleasure for me to discuss Larry Cunningham’s engaging new book on contracts.

The title of Larry’s new book is Contracts in the Real World.   Intentionally or not, the title suggests that there may exist another realm for contracts other than the real world, a realm that is perhaps more theoretical and not completely real.   The alternate universe that most readily comes to mind is law school.  Contracts in the real world exist in partial contrast to contracts in law school.

Contracts in the real world bind parties and counterparties to one another.  Contracts in law school bind students to casebooks and laptops.  Contracts in the real world frequently revolve around compensation, obligations, and duties.  Contracts in law school frequently revolve around precedents, arguments, and defenses.  Contracts in the real world are about contracts.  Contracts in law school are about cases about contracts.  Needless to say more, there exists a meaningful and significant gulf between contracts in the real world and contracts in law school.

Larry’s book serves a bridge across this gulf.  Through wide-ranging popular stories about the prominent and the pedestrian crafted in accessible language yet not devoid of legal doctrine, the book connects contracts in law school with contracts in the real world.  Law school concepts like offer, acceptance, mitigation, and assignment are illuminated by real world stories of popular contracts involving Pepsi ads, Dateline NBC, Redskins tickets, and Haagen-Dazs ice cream.

The conceptual meditations of contract scholars like Cardozo, Corbin, and Williston are expressed and explained in contract controversies involving well-known figures such as Michael Jordan, Maya Angelou, and Lady Gaga, and through common experiences like purchasing lottery tickets, signing mobile phone agreements, and buying football tickets online.  Given the accessible language and popular stories, it is easy for the reader to be lulled into forgetting that they are reading and learning about the law, much in the same way that Tom Sawyer lulled his friends into whitewashing a fence by making it seem more like a treat than a chore.

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Call for Papers



CONFERENCE ANNOUNCEMENT: New Voices in Comparative Law

The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its second annual conference, to be held on April 18-19, 2013, at the Indiana University Robert H. McKinney School of Law in Indianapolis, Indiana. The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists.

Submissions will be accepted on any subject in public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or another academic capacity for no more than ten years as of June 30, 2013. We will also accept submissions from graduate students enrolled in master’s or doctoral programs.

Scholars may make individual or co-authored submissions. The conference’s Program Committee will assign individual and co-authored submissions to thematic panels according to subject area. Proposals for fully formed panels will also be accepted.

To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 750 words no later than November 4, 2012, to the following address: <> . Abstracts should reflect original research that will not yet have been published, though may have been accepted for publication, by the time of the conference. Abstracts should also include the author’s name, title of the paper, institutional affiliation, contact information, as well as the author’s certification that she/he qualifies as a younger scholar. Graduate students should identify themselves as such.

Panels will be announced no later than December 16, 2012. There is no cost to register for the conference but participants are responsible for securing their own funding for travel, lodging and other incidental expenses.

The Younger Comparativists Committee gratefully acknowledges the support of the Indiana University Robert H. McKinney School of Law. The Younger Comparativists Committee also extends special thanks to Shawn Boyne and Mohamed Arafa for co-chairing the Program Committee.

Please direct all inquiries to Richard Albert, Chair of the Younger Comparativists Committee of the American Society of Comparative Law, by email at or telephone at 617.552.3930 <tel:617.552.3930> .

The Program Committee:

Mohamed Arafa (co-chair), Indiana
Shawn Boyne (co-chair), Indiana
Radwa Elsaman, American
Hano Ernst, Zagreb
Claudia Haupt, Columbia
Rajeev Kadambi, Jindal
Vanessa MacDonell, Ottawa
Cesar Rosado, Chicago-Kent
Sudha Setty, Western New England
Ioanna Tourkochoriti, Harvard
Ozan Varol, Lewis & Clark
Tim Webster, Case Western
Richard Albert, Boston College (ex-officio as Chair of the YCC)



Georgetown Law School Seminar

Many thanks go to Randy Barnett and the students in his seminar for hosting me yesterday and giving me excellent feedback on the draft of the Bingham biography.  I will be back at the drawing board soon to make the final set of changes prior to publication.


AALS Panel on Student Scholarship

Joan Heminway passes this along:

The Association of American Law Schools Committee on Research is considering putting on an AALS panel on (1) how we law professors can advance student scholarship and (related but separately) (2) how we can advance joint faculty-student scholarship.

Most student law review notes (or other student articles) are written as independent study projects or, occasionally, as individual term papers in seminars.  But are there other approaches that you have seen tried or particular ways of structuring independent study projects or seminar term papers that have been especially successful?  Most faculty members don’t cowrite articles with students.  But have you seen techniques or approaches that helped such collaborative projects succeed—or ones that led them to fail? 

The Committee has asked us to identify some ideas that the panel can more closely explore, and we’d much appreciate any tips that you could pass along.  If you can give us just a few sentences that describe different models for fostering student or faculty-student scholarship that you have seen—whether those sentences include recommendations, cautionary tales, or just neutral reports—we’d love to see them.  Please e-mail them to either Joan Heminway ( or Eugene Volokh (  Submissions received by October 1 would be most useful to us in our planning, but feel free to respond later if you can’t reply by then.

My views on whether (and consequently how) we should subsidize student scholarship are here.  But given that Joan and Eugene are organizing, the panel is certain to be a hit!


Legal Peer Review Journals: Time to Reject/Accept/R&R?

One of the advantages of student-edited law journals is that the turn-around time for acceptance or rejection is typically relatively fast – if you are going to hear, you’ll know within a month or two 95% of the time.  The same can’t be said for peer review journals in other fields, which are famously very, very slow.

What about peer reviewed journals that focus on law, and which regularly publish the writings of American law professors?  After the jump, I’ve listed the the top fifty peer and referreed journals, by combined impact factor (W&L) rank.  I’d be curious to hear from readers who’ve submitted to these journals regarding how long it took to get a substantive response (whether acceptance, rejection, or R&R). I’ll participate in the comment thread if others do – I’ve submitted to JLS, JELS, and JLEO, and JLA, and have generally positive views about those journals’ ability to get back with some answer in a reasonable amount of time.

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More Sophisticated Than What the Clientele Wants

While reading this post by Paul McGreal over at Faculty Lounge about the rising costs of legal education, I was struck by the unexpected relevance of political scientist John Zaller‘s work on media politics.  First, something about Paul’s post.  Paul underscores the argument that “the cost of legal education bears no necessary connection to what it would cost to provide a quality legal education in an efficient manner.”  He implicitly takes on a prominent theme in the scamlaw narrative that costs are driven up by the faculty “‘stealing’ from students for their own selfish desires” by engaging so much time and energy on academic scholarship.  Scholarship and even the related teaching of legal theory, according to a common narrative, diverts law school resources from the type of practical training—often argued to be applied skills and black-letter law—most valued by students as helpful to them in a challenging labor market.

I leave aside a defense of scholarship for the time being, but I think John Zaller would say that this debate over the place of legal scholarship is characteristic of a chronic tension that defines every professional field.  In his forthcoming manuscript A Theory of Media Politics, Zaller posits that members of a professional field seek to produce a more sophisticated product, based on their own professional values, than the typical consumer actually demands and is willing to purchase.  According to Zaller, “Every professional group wishes, if possible to have as much business as possible.  Yet they typically wish to offer products that are more sophisticated than what the clientele wants.”

As a result, professionals always confront a basic tension between market pressures from the typical consumer on one hand and their own desires to produce a more sophisticated product on the other hand.  Applying this notion to television news, Zaller finds that media markets with greater market competition among news outlets tend to feature “lower quality” local news (e.g., more tabloidish, less high-level reporting) compared to media markets with weaker market competition.  Zaller postulates a basic Rule of the Market—that increases in market competition lead to lower news quality—but that in the absence of competition, “journalists seem to be able to persuade owners to cast their fates with respectable ‘high-quality’ news.”  In my view, Zaller nails the dynamics of big city news media by astutely capturing this active tension between professional and market values.

You can see how Zaller’s ideas generalize to academic scholarship.  Read More


Farewell to the Fall Submission?

Not long ago, the busy month for law review submissions was August, not March.  As anyone who has been teaching law for more than six or seven years can confirm, law faculty worked on their manuscripts during summer break and had shiny new articles to send off as the fall semester approached.  There was a spring cycle as well, with law journal submissions and publication offers split reasonably evenly between the spring and fall cycles, but at one point, the fall was probably the busier one.

It’s not quite yet time to declare the death of the fall cycle for law journal submissions—many journals still will receive and accept a number of articles this month—but we’re getting close.  A nontrivial number of flagship journals didn’t open for business this fall—e.g., Duke Law Journal, Indiana Law Journal, University of Illinois Law Review, and Utah Law Review—each noting on ExpressO that they’ll begin looking at articles next in the spring.  What’s more, many of the journals open for business reserved only a handful of publication slots for this fall from last spring.  Demand during the fall for articles appears to be shrinking.

Why did this apparent shift from fall to spring cycle occur?  My guess begins with the fact that the business of legal scholarship is increasingly competitive on all ends, and after boards turn over during the spring, there are more high-quality articles than ever pouring into journal offices.  So many high-quality articles, in fact, that a top journal finds it difficult to resist filling their entire volume just from the spring submissions alone.  Of course, top journals could resist the temptation, but they may not see the point once they’ve already invested the time to read and decide on a sufficient mass of articles.  They may also fixate on the pieces in front of them rather than assume that stronger pieces will be available in the fall.  This is just a version of the “unraveling of the market” that Dave Hoffman cited to explain why the spring cycle itself seemed to be creeping up earlier and earlier.  All this hinges, of course, on the quantity and quality of spring submissions hitting a critical threshold such that journals tipped from saving slots for the fall to consuming almost all of them in the spring.  By the fall, however, journals feel constrained not to steal even more spots from the subsequent spring, because it would be taking them away from the next board of editors and next volume.

There are at least two significant costs of the migration of publication slots from fall to spring.  The first is that we may, before long, have only one cycle for submissions per calendar year—the spring.  Spring versus fall as a matter of timing isn’t a big deal, but having two cycles per year for submissions versus only one is a big deal.  If you have an article that isn’t quite ready for the spring cycle, then you would need to wait a full year for the next spring cycle to submit it.  The result is increased turnaround time between completion of the average article and its publication date.  Articles therefore become less timely on average, and scholarship takes longer to become widely disseminated in finished form.  This development would cede one relative advantage of student-run law journals over academic peer review journals—speed.

The second cost is that the spring cycle, as the only cycle, would become even more chaotic and random.  I don’t know whether authors have fully adjusted to the shift from fall to spring, but if they do, authors might submit all their work during the spring.  The obvious result is that virtually all article selection for top journals would occur in basically a couple months.  The volume of submissions would place additional stress on articles editors, and time pressures on both articles editors and authors in the competition for articles would speed up.  More articles, more decisions, compressed into a shorter period of time.


Subsidizing Student Scholarship

In recent discussions about reforming law review submissions to decrease the burden on editors, authors have been treated more or less as a unit. The argument goes that all authors submit too many articles, creating a mountain of paperwork for poor editors to sort through.  But of course not all authors are similarly situated – letterhead bias distinguishes between professors; practitioners have little time to polish pieces and consequently rarely make it to board reviews; and many journals exclude student authors entirely.

Notably, excluding student authors is a foolish rule that testifies more to student editors’ insecurity than to any thoughtful judgment about the quality of scholarship produced by particular authors.  (I’ve made this argument repeatedly here and to every Law Review editor I speak to – I won’t bore you with it again.)  Assuming that this bad policy is on the way out, I wondered whether law schools ought to be in the business of subsidizing scholarship by, say, paying for submissions on expresso.

Of course, we already subsidize scholarship in a sense by creating a system of writing seminars and guided research credits. (In my view, such credits could and should be better spent). But direct subsidies are relatively rare.  When I was at Harvard, there was no money available for what was then a hard-copy mailing process. Mike O’Shea and I were lucky enough to get Olin Center funding to mail out this piece.  Later, I heard that Elena Kagan made funding generally available.  I’ve no idea how common that practice is – Temple, for example, limits its BePress account to faculty.

Some schools obviously have sufficient resources so as to make the choice anodyne.  For others, the pros and cons are worth discussing:


  1. Students who can publish at an outside journal get a resume item of some use, and not incidentally increase the likelihood that someone will actually read their work.
  2. We pay for similar resume-enhancing items – like clerkship letter postage – which benefit only a few members of the class.
  3. Spending law school funds on direct student services is generally a good thing!
  4. The cross-subsidy argument in con #2 applies as strongly to paying for faculty scholarship. What’s good for the goose….


  1. The world doesn’t need more law review submissions –  and paying for submissions creates moral hazard for students just as it does for their professors.
  2. Taking tuition dollars and giving them to students to produce scholarship, so as to produce resume credentials, effectively is a wealth transfer to students who need help the least.  Exactly like the clerkship process, schools end up pouring resources into the most credentialed members of their class.

What do you think?


Should Law Reviews Charge for Submissions?

Yesterday I read this post about possible changes in the way that law professors submit articles to student-run journals.  One issue is that electronic systems have led to a sharp increase in the number of submissions at many journals, and they basically just cannot handle the volume.  This problem is compounded by the risk-averse practice of submitting to every journal, which I know some people do, so they can generate an offer and seek expedited review.

There are many ways to deal with this problem–exploding offers, for example–but here’s one that should get more attention.  Normally rationing occurs through prices, so why don’t law reviews just charge for submitting?  They would make money (and could become self-sustaining) and fewer people would submit.  If law schools absorb submission costs, then that would not do much to stem the tide.  Then again, that could just mean that law reviews could charge fairly high prices for the privilege of submitting until they reach a price point where schools would start limiting the number of submissions that their faculty could make.