O’Hear, Twerski, and the Work of the Professoriate

Aaron TwerskiProfessor Jessica E. Slavin recently posted concerning Professor Michael M. O’Hear’s well-deserved receipt of the Eastern District of Wisconsin Bar Association’s Judge Robert W. Warren Public Service Award. Through the resources available to me as dean, I have been able to secure a copy of Michael’s brief and well-stated acceptance remarks. Professor O’Hear describes his basic belief that law schools can act as “bridge builders” — first, “between, on the one hand, the world of legal practice, judging, and lawmaking, and, on the other hand, the world of rich and diverse learning contained in the modern university” and, second, between “the local and the national” (the latter being, Professor O’Hear notes, “a two-way street”).

These remarks bring to mind — but are not identical to — somewhat more pointed comments delivered by a renowned Marquette lawyer, Aaron D. Twerski (pictured above), who is the Irwin and Jill Cohen Professor at Brooklyn Law School (and former dean at Hofstra). Twerski is an extremely well-regarded law professor (as is O’Hear, although they are at different points in their careers) and received the prestigious Robert C. McKay Law Professor Award from the Tort Trial & Insurance Practice Section of the American Bar Association. Professor Twerski used the occasion of his award to lament the seeming lack of interest of many law professors in saying things of interest to judges and practicing lawyers.

Among his milder comments:

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Teaching E-Negotiation

Andrea Schneider has an interesting new paper on SSRN entitled “You’ve Got Agreement: Negoti@ting via Email.”  Andrea and her coauthors explore what is different about negotiating by email, as opposed to in person, and discuss how teachers of negotiation might better prepare students for the practice of e-negotiation.  (Andrea discussed her personal experiences with email negotiation in the classroom in an earlier post.)  This seems to me an important topic.  I do as much of my negotiating as possible by email, which I prefer so that I can take greater care with the words I use and so that I have a reliable record afterwards of who said what.  I suspect many other negotiators feel the same way.

The paper appears in print as a chapter in the book Rethinking Negotiation Teaching: Innovations for Context and Culture.  I look forward to a follow-up on negotiation by texting.

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Should Courts Enforce Contracts Induced by Lying?

The most recent issue of the Marquette Law Review includes a provocative article written by Professor Allen Blair of Hamline University Law School on contracts and fraud (92 Marq. L. Rev. 423).  In the article, Professor Blair explores why courts tend to not enforce so called “no reliance” clauses in contracts, clauses in which one party disclaims any liability for fraudulent statements (which includes lies) made outside of the four corners of the contract.

According to Professor Blair, courts generally refuse to enforce no-reliance clauses on the grounds that it violates public policy to protect a person against his own fraud.  While some courts have enforced no-reliance clauses, they have generally done so only after finding that the clauses were specifically negotiated, and only to the extent that they set out the precise representation on which the other party may not rely.  Only a handful of courts have upheld no-reliance clauses without attaching these types of limitations.

While Professor Blair does not promote blind enforcement of all no-reliance clauses, he argues that courts should not ignore the numerous legitimate reasons why sophisticated parties in complex transactions might agree to a no-reliance clause. 

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