As far as I have been able to discover, there are only two Substacks that focus on contracts and post regularly, Dave Hoffman’s Contracts’ Empire and Kim Krawiec’s Taboo Trades.
Professor Hoffman had a busy month, posting about new project and revising older ones.
In an August 27th post, “Who Wrote Your Lease,” Professor Hoffman revisited the data that was the basis for Leases as Forms, an article he co-authored with Anton Strezhnev a few years ago. That piece was a great marriage of empirical scholarship and practical lawyering. The authors discovered that a lot of leases had unenforceable terms favorable to landlords, not because of malice but because landlords were just adopting form leases. They developed a free, fair model lease that, if adopted, could displace some of the older form leases. Now, the AI tools available are more robust, so Professor Hoffman can review leases that were previously unreadable.
He extracts a great deal of information from his dataset. Leases doubled in length between 2005 and 2018 and they mostly got worse for tenants. It was not a matter of landlords revising old leases; more often, they adopted new forms.Professor Hoffman adds a lot of information about how particular form leases spread. It seems that what matters most is the eviction attorney or management company involved.
That post told us a lot about the form of leases. In his most recent post from September 2nd, he tells us what they say. The good news is that the leases do not seem to discriminate based on race. The bad news is that the leases remain full of unenforceable terms. One surprising finding from Professor Hoffman’s earlier work with Anton Strezhnev is that more expensive leases were more likely to have the four kinds of bad terms that they tracked (holdover tenant clauses, as is waivers, exculpatory clauses, and notice waivers). Now, with Claude’s help, Professor Hoffman could test for more bad terms and happily confirm the article’s earlier prevalence-of-bad-terms finding.
Finally, back on August 20th, Professor Hoffman posted a reflection on a time when “Dignity Used to Matter to Contract Law”. The post is inspired by Healy v. N.Y. Cent. & Hudson River R.R. Co., in which a New York court refused to enforce a fine print cap on liability written on a bag check ticket. The court found that the little piece of cardboard containing the liability cap “did not arise to the dignity of a contract.” Professor Hoffman uses this case as a springboard to a different approach to the 50-year old academic campaign against the enforcement of boilerplate terms. He takes us, as always, on an interesting, well-considered journey through territory we thought we knew and arrives at this interesting conclusion:
The Healy line of cases thus ask what the writing was for, not how it was formed, and whether it could carry the freight the railroad had printed on it.
That’s directionally where we should go. We should stop asking whether users meaningfully agreed to terms of use, and start asking what jobs a click-through writing is fit to do. Allocating who pays for a lost bag, maybe. Constituting the governance of the places we now live? Probably not.
When last we checked in on the Taboo Trades Substack, Professor Krawiec was talking about surrogacy contracts. She’s not done. Her latest post is “Surrogacy Is Complicated.” The post does not disappoint.
What happens if the parties to a surrogate contract determine that the fetus has a rare condition that will greatly affect the health of the baby? In this case, prognoses range from “serious but treatable” to often requiring lifelong care, disabilities, and possible early death. This is a subject matter that ought to be covered in a surrogacy contract, and indeed Professor Krawiec provides the language, which seems pretty clearly to give the intended parents the right to compel an abortion. If the surrogate refuses, the intended parents’ contractual obligations are at an end, and the surrogate can be liable for damages. In this case, the adoptive parents allegedly pressured the surrogate mother to abort at twenty weeks. She refused. The baby was born and has already undergone one of three operations it will need in its first years.
A journalist asked Professor Krawiec if the termination provision could be enforced against the surrogate. The published article had a one-sentence answer. The post provides the more complete version of her answer, which as the title of the post foretold, is complicated and of course really interesting.
And if you need more Taboo Trades in your life, there is good news on that front, as the Taboo Trades Podcast is now gearing up for a fresh season. The format is unique, as far as I know. Each week Professor Krawiec invites a guest scholar to her seminar, and her UVA students pose questions for that scholar about a recent piece of work. The students are always well-prepared and the guests are always engaging. The Season 7 teaser episode is here.
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