Contracts

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Article
Volume 92.4
Contract or Prison
S.R. Blanchard

For helpful comments, I am grateful to participants in the Contracts Section Works-in-Progress Panel at the 2023 AALS Annual Meeting; faculty workshops at George Mason Scalia Law School, Indiana University McKinney Law School, Notre Dame Law School, the University of Florida Law School, the University of Texas Law School, Vanderbilt Law School, and Washington University Law School; the Legal Scholarship Workshop at the University of Chicago; the Workshop on Law, Economics, and Justice at the University of Lucerne; CrimFest; the Decarceration Law Conference; the Junior Business Law Scholars Conference; Markelloquium; and to Ian Ayres, Lisa Bernstein, Sam Bray, Christian Burset, Eric Fish, Rick Garnett, Sherif Girgis, Nadelle Grossman, Daniel Markovits, Jide Nzelibe, J. Mark Ramseyer, Christopher Slobogin, Avishalom Tor, Francisco Urbina, and Julian Velasco. Noah Austin, Zack Beculheimer, Gwendolyn Loop, Savannah Shoffner, Tri Truong, and Steven Tu provided excellent research assistance. Any errors are mine.

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the history of economic exploitation using criminal enforcement power harnessed to contract, including in the racial peonage system under Jim Crow. This Article documents this systematic underregulation through the first empirical study of legal regimes for IA contracts. To the extent that the theoretical limits of contract are not presently reflected in the common law of contract, regulatory reforms that better regulate seller and government practices might reduce the risk of exploitation.

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Essay
A Story of Two Holy Grails: How Artificial Intelligence Will Change the Design and Use of Corporate Insolvency Law
Felix Steffek
Felix Steffek is Professor of Law at the University of Cambridge. He serves as Director of the Centre for Corporate and Commercial Law (3CL) and holds a JM Keynes Fellowship in Financial Economics. He is Global Distinguished Professor of Law at the University of Notre Dame, SGRI Visiting Professor at Singapore Management University, and Senior Member of Newnham College.

The author is grateful for the very helpful comments received at the conference on ‘How AI Will Change the Law’ organized by the University of Chicago Coase-Sandor Institute for Law and Economics, the University of Chicago Law Review, and the Oxford Business Law Blog, in particular from Tony Casey who contributed a formal comment.

This Essay explores the two holy grails of AI and the law: predicting court decisions and predicting contracts. While there is some overlap between the two, because in order to draft contracts one needs to know the law, both issues can be functionally distinguished. These two areas, and their importance in the context of increasing AI development, are explored more deeply within the context of corporate insolvency law.

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Essay
Slicing Defamation by Contract
Yonathan Arbel
Yonathan Arbel is an Assistant Professor Law at the University of Alabama.

Slices and Lumps is a recipe book for thinking. Using a deceptively simple analytical framework, the book showcases the power of conceptualizing the world through the prism of “slices” and “lumps.”