Pryor Thoughts

Sbrisolona

2012-01-24T21:22:00.000-05:00

A very tasty Italian pastry from Mantova (a/k/a Mantua), Italy, new to the Pryor palates. Props to Attilio Arcari for the gift.

The ABA and the Cost of Legal Education Part 3

2012-01-24T16:27:00.000-05:00

Back in December I posted here and here on David Segal's jeremiads about legal education in American. The second post in particular responded to his reporting about the precarious status of the Duncan School of Law in Knoxville, Tennessee. Segal wondered aloud about the ABA's denial of Duncan's provisional accreditation and particularly its anti-competitive effects. I replied by wondering what Segal would say if Duncan's graduates were ultimately unable to pass the bar exam.

Today's National Jurist has an article giving more detail on why the ABA did what it did. You can read it here. Suffice it to say that I believe the ABA's gate-keeping role seems warranted:

A major concern to the ABA was that the school readmitted one-third of the students who failed out of the school. Eighteen students were dismissed for a GPA below 1.25. Six of them, however, were readmitted based on “extraordinary circumstances,” a percent the ABA found unlikely.

Unlikely? Yeah. I guess you could say that. Despite its mission, Duncan is doing no service to students whose only purpose seems to be to pay the tuition to keep the school's doors open.

Benefit Corporations

2012-01-19T21:14:00.000-05:00

The lawyer types out there who practice in the non-profit field or in corporate law generally should take a look here and here to get up-to-the-minute (or thereabouts) information on the newest entity phenomenon, the benefit corporation.

Props to colleague Haskell Murray for being, if not ahead of the curve, at least at its cusp.

Contractual Myopia

2012-01-17T21:45:00.001-05:00

Two gents from University College London, George Letsas and Prince Saprai, have recently posted Private Law and Moral Practices Part 1: Contract (abstract here). Given their request at the head of the piece ("please do not quote or cite without permission"), I will refrain from delving deeply into this short piece. I will, however, on the one hand recommend it for warning against attempts to justify any substantial set of legal relationships (like, say, contract) based on a single moral principle (therein the danger of legal myopia). Reminds me of my legal multi-perspectivalism even if I do have to say so myself. (Look here for a short account of what I mean by "multi-perspectivalism.") I fear that such myopia often characterizes legal and political theorists, not to mention folks who make a living in talk radio.

On the other hand, sad to say, is that while Letsas and Sarprai do a fine job of describing the problem of legal myopia and the related distortions of inflation, repudiation, and stipulation, they don't do as well when explaining how multiple moral perspectives on a practice like contract should be related to each other. We can see that more than one moral principle may be at work once we identify the problem of myopia but we can do no more. They cannot say whether and what additional principles should be at work.

More accurate descriptions of what's going on in the law are to be preferred to less accurate ones but more than description must be done to justify any practice.

More On Contract Remedies Part 2

2012-01-16T08:26:00.000-05:00

Last time I posted a bit about Michael Knobler's note on contract remedies here. The disconnect between contract as an option (to perform or pay compensation) and the widespread belief that breach is a wrong that at least sometimes should be remedied by something more than compensation creates a problem. Contract law rests on the presupposition of party consent; but what are we to do if many (most?) parties don't consent to the option theory? Two less-than-satisfactory alternatives are to do nothing or to educate non-lawyers about the law. Is there anything more positive? Knobler thinks so.

He suggests that the law analyze contracts at two levels, first, as a breach of the primary obligation compensable under the current rules. Second, as a breach of what Knobler calls a "meta contract," which represents the value of the promise itself, not merely the loss caused by breach. How can such an abstract concept be valued? Either by giving the aggrieved promisee the power to demand specific performance or by "legislatively created guidelines similar to sentencing guidelines." The goal would be to monetize "the disutility associated with the mental adjustment of receiving something other than the contracted-for performance." The need for statutory guidelines is immediately apparent. And what of repeat players in the world of contracts, those who contract for value and would prefer a lower price to the potential to recover damage for breach of the "meta contract?" They could, under Knobler's system, opt back to the current state of the law in their contract.

A bifurcated system of contract law is not as bizarre as it might seem. After all, already there are distinct merchant and non-merchant rules in Article 2 of the UCC and Knobler suggests making the dual system of recovery mandatory for non-merchant promisees.

Knobler's analysis is more insightful than his suggestions likely to become law. Yet, the reconsideration of contract remedies is always a worthwhile endeavor.