What’s Theory Got To Do With It? Contract Social Responsibility (Part 5)

Prior posts have developed the claim that contract is being used to achieve “social responsibility,” e.g., protecting labor-rights and the environment in supply chain contracts, and preventing racial discrimination in “inclusion riders.”  Assuming parties contract for social responsibility (“KSR”), what might legal theory say about it?

An important strain of contract scholars (“contractualists”) would start from a micro-economic analysis, and ask whether KSR should qualify as “rational” market behavior.  Consider, for example, Schwartz and Scott’s influential statement of contract theory.  Their “affirmative claim” is that “contract law should facilitate the efforts of contracting parties to maximize the joint gains (the “contractual surplus”) from transactions.”

I confess at the outset that I think this mode of analysis can be powerful.  But I am not sure how well it works with KSR, which is what I want to talk about here.

Contractualists, per S&S, might argue that KSR “maximizes joint gains” because it cashes in good publicity, avoids losses, or both.  As observed in prior posts, “doing good” apparently has market appeal, leading to “fair trade,” “green sourcing,” and so on.  Moreover, at least in the supply chain context, it appears that buyers may contractually shift losses to parties that violate KSR terms.  These and similar features of KSR might well maximize welfare.  To this extent, contractualist analysis would account for KSR.

So far, so good.  But there’s a problem.  Schwartz and Scott continue:

The[ir] theory’s negative claim is that contract law should do nothing else. . . . [T]he state should choose the rules that regulate commercial transactions according to the criterion of welfare maximization. . . . A simple categorization of the universe of bargaining transactions will clarify the domain of our theory. A transaction involves a seller (whether of goods or services) and a buyer.

That is, contractualism assumes that contract is private, pre-political, and bilateral (that is, between two parties).  But KSR challenges each of those assumptions. Read More


FAN 192 (First Amendment News) The Trend Continues: Forthcoming Book — Anthony Leaker, “Against Free Speech”

Dr. Anthony Leaker

Who is Anthony Leaker? Answer: He is a Senior Lecturer in Cultural and Critical Theory at the University of Brighton. Now this cultural critic has turned his attention to free speech. Perhaps taking his cue from Professor Steven Shiffrin (What’s Wrong with the First Amendment), Leaker’s forthcoming book, Against Free Speech (Rowman & Littlefield, November 16, 2018), may well be yet another example of the liberal flight from robust free-speech freedom.

Abstract: This book examines the renewed and vociferous defence of free speech witnessed in relation to a number of recent events, including the Charlie Hebdo massacre, the Brexit and Trump campaigns, and recent campus politics.Anthony Leaker argues that the defence of free speech has played a pivotal role in a resurgent right-wing nationalism, that it is the rallying point for a wider set of reactionary political demands, a form of aggrieved liberalism at best and patriarchal white supremacy at worst, aided by a complicit liberal centre.

By focusing on these events and situating them within the wider geopolitical context of a post-democratic, post-truth world of austerity, ongoing conflict in the Middle East, pasokification, and rising fascism, Leaker critiques the role that the defence of free speech has played in legitimising the scapegoating of oppressed minorities while deflecting attention from the egregious operations of power that have led to ever greater inequality, injustice and capitalist destruction.

This powerful book shows that free speech is in fact a myth, an ideological tool employed by those in power to sustain existing power relations.

Yesterday: Supreme Court Denies Cert. in Commercial Speech Case

The case is Contest Promotions, LLC., v. City & County of San Francisco. The issue in the case was whether the First Amendment permits a municipality to ban all signs, of any kind, advertising off-premises commercial activity, without making any showing that the ban furthers a substantial government interest in a direct, material and tailored way.

Just Launched — The FIRE Faculty Network

This from Julia Schwarz over at FIRE: “We’re excited to announce the launch of the FIRE Faculty Network, a diverse coalition of faculty interested in defending and sustaining academic freedom, free speech, and civil liberties on campus. By joining FIRE’s faculty network, you’ll receive information curated specifically for faculty, including the latest information on FIRE events, legal developments, strategies for activism, and noteworthy research and reporting related to free speech and academic freedom.”

“If you’re a faculty member, graduate student, or higher education professional interested in getting involved or staying informed on issues related to academic freedom and free speech on campus, sign up today!”

Upcoming: 2018 Faculty Conference 

“We’re also currently accepting applications to attend our 2018 FIRE Faculty Conference, taking place October 11-13 in Chicago, at Loyola University Chicago’s downtown Water Tower campus, with accommodations at the nearby Omni Hotel. We’re accepting applications on a rolling basis through July 31. Apply now to secure a spot — space is limited!”

“The conference will bring together faculty from a variety of disciplines and institutions to present research and discuss issues related to academic freedom and freedom of expression on campus. Beyond these discussions, faculty will meet peers from around the country who share an interest in defending academic freedom and promoting rigorous intellectual discourse. There is no fee to attend the conference, and those accepted will be eligible for a $750 travel stipend to assist with the costs of lodging and transportation.”

“If you have questions about the faculty network or the conference, please be in touch.”

Headline:” PETA — Texas A&M is violating First Amendment rights by blocking critics online” Read More


Get Out! Jevic To Liquidate After Post-SCOTUS Deal Fails

Get your priorities straight

Last Monday (May 21, 2018), the Bankruptcy Court for the District of Delaware converted the chapter 11 bankruptcy of Jevic Transportation Corp. to a chapter 7 liquidation.  This means that the ten-year effort to “reorganize” the former trucking company will become a straight liquidation supervised by a trustee.

I put “reorganize” in quotes because everyone knew from the start of the case, in 2008, that the debtor could not reorganize in a conventional sense because the business had already collapsed.  Instead, the managers (and the senior lenders) would remain in possession and control of the debtor to engage in an orderly liquidation, which is permitted by chapter 11.  Most believed this was better than a straight liquidation under chapter 7 of the Bankruptcy Code because they would have greater expertise in maximizing asset values, and more flexibility in making distributions, than a chapter 7 trustee, who would be a stranger to the company.

This last point—flexibility in distributions—earned the case a trip to the Supreme Court, where a 6-2 majority held last spring that final distributions must follow the Bankruptcy Code’s order of priority strictly, unless (in simple terms) creditors “consent,” e.g., by voting for a deviation under a plan of reorganization, a cross between a contract and a consent decree, and the presumptive way out of chapter 11.  But, because management could not muster support for a plan, they had tried to resolve the case through a so-called “structured dismissal,” a procedural concoction that had many features of a plan but none of its protections, such as voting.

The details of Jevic are complex, but the bottom line, in my view, is that Jevic is about two things, although it receives attention only for one. First, SCOTUS affirmed—yet again—that “absolute priority” applies in final distributions in any kind of bankruptcy absent meaningful consent to an alternative.  Distributive priority was in dispute here because management and senior creditors did not want to honor the priority payment rights of the debtor’s former truck drivers, who objected to this treatment, and who were the successful petitioners in the Supreme Court. [Disclosure: I was co-counsel to a group of academics who were amici curiae in support of petitioners].  On remand, the parties tried, but could not come to a negotiated deal that respected the Supreme Court’s ruling, so Judge Shannon converted the case to one under chapter 7, which permits no flexibility in distributions.

Absolute priority is important, but not really news, since it has been the law of the land for over one hundred years.

Instead, I think Jevic’s more important, but more subtle, contribution reflects concern about the integrity of the chapter 11 process.  Read More


The Judiciary Act of 1789 and Marbury

I just returned from Mount Vernon, where I found several items of interest for my Bushrod Washington research.  (More on that next week). One nifty item that I picked up in the gift shop is a replica of George Washington’s copy of Acts Passed At A First Congress of the United States of America 1789, which was printed that year in New York and contains all of the statutes enacted by Congress in its first session. The President wrote in the margins of the Constitution that was reproduced in the volume, and the printers inserted various annotations to the statutes. (One thing I learned was that the State Department was originally called the Department of Foreign Affairs. Then Congress changed the name, probably because various domestic record keeping tasks were assigned to the Department.)

The most important annotation in this edition is in the Judiciary Act of 1789. In the portion of Section 13 of that Act the refers to writs of mandamus, the printers inserted a note that says “Supreme Court appellate jurisdiction.” This is, of course, the provision that the Supreme Court held unconstitutional in Marbury v. Madison because they said it enlarged the Court’s original jurisdiction. People have long pointed out that this statutory interpretation was bogus, but here is another piece of evidence for that criticism.


FAN 191.2 (First Amendment News) Floyd Abrams Weighs in on Knight First Amendment Institute’s Victory in Twitter Ruling Against Trump

Back in July of last year, Jameel Jaffer, Katherine Fallow, and Alex Abdo filed a complaint in the Southern District of New York in a case titled Knight First Amendment Institute v. Trump. The suit contended that President Trump and his communications team violated the First Amendment by blocking seven people from the @realDonaldTrump Twitter account because they criticized the president or his policies.


Yesterday, in a 75-page opinion Judge Naomi Reice Buchwald ruled  that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment. Judge Buchwald held that the “interactive space” where people reply to  Trump’s tweets amounted to a “designated public forum.” Given that, when the White House blocked users based on their viewpoints, it violated the First Amendment.

In an op-ed in today’s Daily News, Floyd Abrams wrote: “There are aspects [of the case] that are complex. But the core of the ruling is plain. A President who uses Twitter to pronounce many of his most critical decisions and defend them to the public cannot avoid his critics or deprive them of the chance to respond in the same place and at the same time as do his supporters. Judge Buchwald’s opinion is a powerful one that sends a powerful First Amendment message.”

Related News Story 


Enforce This! Contract (as) Social Responsibility (Part 4)

A prior post made two basic points about the ABA’s Model Terms to protect human rights in the supply chain (Model Terms) as an example of “contract (as) social responsibility” (KSR): (i) they say nothing about substantive human rights standards (and that may be OK), and (ii) the desire to implement these standards through KSR terms may conflict with a desire to limit the buyer’s legal exposure for their violation.

Or not. . .

I want to turn now to what I suspect will be a central doctrinal question presented by KSR terms: enforceability.

I don’t mean enforceability in a technical sense—offer, acceptance, consideration (or equitable substitute)—but instead in a remedial sense:  Who can get a remedy for breach, and what would it look like?  Since the architecture of U.S. contract law sits on a foundation of privity and expectation, KSR may be an awkward fit, for at least three reasons.

First, consider the problem of third-party beneficiaries.   Read More


FAN 191.1 (First Amendment News) Abrams Institute to Host Conference on Commercial Speech & Right of Publicity

Commercial Speech & the First Amendment:

Does the Right of Publicity Transcend Commercial Speech?

From Yale Law School’s Floyd Abrams Institute for Freedom of Expression

Please join us for an in-depth discussion on right of publicity. Our keynote speaker will be Jennifer Rothman, Professor of Law at Loyola Law School, Joseph Scott Fellow, and author of the upcoming book: The Right of Publicity: Privacy Reimagined for a Public World.

  • Are there First Amendment limits to this claim?
  • What are the litigation strategies for approaching these claims?
  • And what are the legislative strategies and imperatives for legislative initiatives?

Date & Time

Monday, June 4, 2018 // 8:30 AM – 2:30 PM EDT

Does the First Amendment have anything to say here?

Moderator: Jeremy Feigelson, Debevoise & Plimpton


  • Robert C. Post, Sterling Professor of Law, Yale Law School
  • Jennifer Rothman, Professor of Law, Joseph Scott Fellow, Loyola Law School
  • Rebecca Tushnet, Frank Stanton Professor of the First Amendment, Harvard Law School

What content is protected? What content should be protected? How to frame the argument. Does the concept of “commercial speech” retain any relevance to the analysis?

Litigating the Claims

Moderator: Stacey Dogan, Professor, Boston University School of Law

  • David Schulz, Ballard & Spahr LLP
  • Nathan Siegel, Davis Wright Tremaine LLP
  • Annie Pell, NFL

What are the strategic decisions to be made? What wins, and what does not?

Legislative Initiatives: What matters

Moderator: Daniel Kummer, NBCUniversal Media, LLC

  • Gena Feist, TakeTwo Interactive Software, Inc.
  • Edward Rosenthal, Frankfurt Kurnit Klein & Selz PC
  • Vans Stevenson, Motion Picture Association of American, Inc.

Exceptions Clauses:

  • Do they lead courts to assume that all content is subject to ROP claims, except the exceptions?
  • How should they best be drafted?
  • What other key and contentious clauses are in the legislative mix today?
  • Are there viable compromises between the performers’ unions and the creative community on ROP statutes?


  • Application for New York accreditation of this program is currently pending.

Host of Conference

  • We want to thank Debevoise & Plimpton for agreeing to host the Conference this year.

Conference Sponsors: We want to thank the additional sponsors of this Conference:

  • Ballard Spahr LLP
  • Davis Wright Tremaine LLP
  • Frankfurt Kurnit Klein & Selz PC


Debevoise and Plimpton, 919  3rd Ave., New York, NY 10022


Space is limited for this Conference. We anticipate a waiting list, so please do not register if you do not think you will actually attend.


If you find that you cannot attend, please let us know ASAP. Again, we anticipate a waiting list.


FAN 191 (First Amendment News) “Robotica” — First Book on Speech Rights & Artificial Intelligence Published

If any current scholarly work of free speech theory survives into the next century, it will undoubtedly be this book.
Abstract: As more and more communication becomes robotized and/or is driven by artificial intelligence, a variety of questions arise about the relation between the government’s regulation of such communication and First Amendment law. Such robotized communication involves everything from our home appliances, automobiles, phones, computers, and more. Ever more press stories are today being written by algorithmic design, and stock transfers follow a similar path of communication.

But is such data speech under the First Amendment? Are such transfers even communication within the meaning of the First Amendment? And if so, to what extent, any why, can the government regulate these new technologies? Such questions and others are explored for the first time in book form in  the latest work by First Amendment scholars Ronald Collins and David Skover.

Professor David Skover

The book (their tenth) is ROBOTICA: SPEECH RIGHTS & ARTIFICIAL INTELLIGENCE (Cambridge University Press, June 2018).

  Following the main text, are four commenatries by Ryan Calo, Jane Bambauer, James Grimmelmann, and Bruce E.H. Johnson. The authors thereafter reply to the commentaries.

Advance Praise

“Collins and Skover have produced a wonderfully readable, thorough, and insightful exploration of the intersection of technology and free speech theory, from the beginning of time well into the future. If any current scholarly work of free speech theory survives into the next century, it will undoubtedly be this book.” — Martin Redish, Louis and Harriet Ancel Professor of Law, Northwestern University Law School

“Collins and Skover have long been among the finest minds focused on free expression in America. In this remarkable book, they now turn insightfully to an incredibly complex and timely issue associated with ‘robotic expression’: how should the First Amendment handle contests involving regulation of ‘robot speech’ as artificial intelligence grows rapidly in prominence? This book conveys their deep knowledge – and the knowledge of other noted scholars – of the history, law, and technology that inform the way we should think about this emerging field of constitutional inquiry. ” — John Palfrey, Head of School at Phillips Academy, Massachusetts & former Executive Director of the Berkman Center for Internet and Society, Harvard University

New Book on Right of Publicity 

Jennifer Rothman has written an important, informative study of the right of publicity as it has developed in the United States and its connections to a robust privacy right. By reexamining the past, she has elaborated principles that will be useful in defining both publicity and privacy rights for the digital age.Rebecca Tushnet, Harvard Law School

Abstract: Who controls how one’s identity is used by others? This legal question, centuries old, demands greater scrutiny in the Internet age. Jennifer Rothman uses the right of publicity―a little-known law, often wielded by celebrities―to answer that question, not just for the famous but for everyone.

In challenging the conventional story of the right of publicity’s emergence, development, and justifications, Rothman shows how it transformed people into intellectual property, leading to a bizarre world in which you can lose ownership of your own identity. This shift and the right’s subsequent expansion undermine individual liberty and privacy, restrict free speech, and suppress artistic works.

The Right of Publicity traces the right’s origins back to the emergence of the right of privacy in the late 1800s. The central impetus for the adoption of privacy laws was to protect people from “wrongful publicity.” This privacy-based protection was not limited to anonymous private citizens but applied to famous actors, athletes, and politicians. Beginning in the 1950s, the right transformed into a fully transferable intellectual property right, generating a host of legal disputes, from control of dead celebrities like Prince, to the use of student athletes’ images by the NCAA, to lawsuits by users of Facebook and victims of revenge porn.

The right of publicity has lost its way. Rothman proposes returning the right to its origins and in the process reclaiming privacy for a public world.

→ RelatedRothman’s Roadmap To The Right of Publicity

Steve Brill’s Latest Book Discusses First Amendment Law (among other things) Read More


Vanderbilt Law Review, Volume 71, Number 4

The Vanderbilt Law Review is pleased to announce the publication of our May 2018 issue:


Rafael I. Pardo, Bankrupted Slaves, 71 Vand. L. Rev. 1071 (2018).

William Magnuson, Regulating Fintech, 71 Vand. L. Rev. 1167 (2018).

Sarah L. Swan, Plaintiff Cities, 71 Vand. L. Rev. 1227 (2018).


Susan S. Kuo & Benjamin Means,The Political Economy of Corporate Exit, 71 Vand. L. Rev.  1293 (2018).


Alex Carver, Rethinking Conspiracy Jurisdiction in Light of Stream of Commerce and Effects-Based Jurisdictional Principles, 71 Vand. L. Rev. 1333 (2018).

Jessica Lauren Haushalter,Neuronal Testimonial: Brain-Computer Interfaces and the Law, 71 Vand. L. Rev. 1365 (2018).