The Form Knows Best (Does it Really?)

A few weeks ago, I got to give a talk at the University of Miami.  The focus: six myths about contracts, as many of us teach contract law (or at least as I teach it).  The talk was a blast -- the faculty at Miami were wonderful and generous, but poked all sorts of big holes in my claims.  The broader topic, in a little essay titled "The Form Knows Best" with two superb students (Tara Chowdhury and Faith Chudkowski), was the gravitational pull of the standard form on contract drafting practices. Our abstract:

Law students learn that contracts are carefully negotiated, precisely drafted, and shaped by doctrine. But lawyers tell a different story. This article compares six pillars of contract law with what we heard in over 170 interviews with senior transactional lawyers across M&A, sovereign bonds, and leveraged loans. The result is a gap between the Official Story taught in classrooms and the Unofficial Story told by practitioners—where boilerplate dominates, case law is rarely consulted, and market custom often prevails over rational design. We suggest that many contracts are better understood as historical artifacts—products of inherited forms and production pressure. Or, as one lawyer put it, more Mars Bar than masterpiece. That gap may matter—especially when courts often interpret form as if it reflects intent.

Pathways to SCOTUS Stardom

For more than a century, most lawyers who showed up at the Supreme Court for arguments were one shotters.  But starting in the mid 1980s, a new breed of lawyer emerged.  The SCOTUS superstar; someone who was a specialist in making arguments to SCOTUS, showed up repeatedly, and usually possessed the most elite of legal credentials possible.  No prizes for guessing the gender and race of most of these SCOTUS superstars.  (Aside -- SOOTUS superstars also existed in the early 1800s, but probably for different reasons).

A number of scholars have documented the rise of this new type of lawyer and legal specialty - included here are Kevin McGuire, Richard Lazarus, and H.W. Perry.  There has also been interesting work on the question of the impact of this new type of lawyer (they win more and are much better than others at getting cert granted - as work by Adam Feldman & Alexander Kappner has shown).

There has thus far, however, been little attention paid to the dynamics of the gender disparity among SCOTUS superstars.  Megan Lemon's excellent new paper, Pathways to the Podium, does just that using a combination of qualitative and quantitative data.  The findings from the interviews Megan did with a number of these superstars are fascinating.  One of the implications of Megan's study seems to be that men are able to more easily and quickly achieve and monetize their superstardom.  

When Can the US President Forgive a Sovereign Debt?

Let us assume that the US has made a loan to a foreign sovereign for some combination of political and benevolent reasons. For example, to support some friendly nation after they get hit by a severe hurricane or to help out a military ally with arms after they have been suffered an unprovoked attack by another nation.

Congress has the "power of the purse", so loans have to be approved by it. But does Congress also retain the power, at some later date, to decide on whether some portion of this debt can be forgiven? Or can the Executive Branch make the decision here? At first cut, under the "power of the purse" rubric, my thought was that surely Congressional approval would have to be obtained. But a fascinating new paper by David Del Terzo, appropriately titled "When Can the President Issue Foreign Debt Relief"  suggests that the answer is more complicated.