ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, January 17, 2017

Upcoming Conference on Assessment

“Compliance with ABA Standard 314: Formative Assessment in Large Classes” is a one-day conference sponsored by the Institute for Law Teaching and Learning. The conference is for law teachers and administrators who want to learn how to design, implement, and evaluate formative assessment plans. The conference will be interactive workshops during which attendees will learn about formative assessment techniques from games to crafting multiple choice questions to team-based learning. Participants will also learn ways to coordinate assessment across the curriculum. The conference workshop sessions will take place on Saturday, March 25, 2017, at Emory University School of Law. Conference Content: Sessions will address the following topics: Why Assess: Empirical Data on How it Helps Students Learn Games as Formative Assessments in the Classroom Formative Assessment with Team-Based Learning Creating Multiple Choice Questions and Ways to Using Them as Formative Assessment Coordinating Formative Assessment Across the Curriculum.

More information can be found here: http://lawteaching.org/conferences/

Here is the link to register: https://emorylaw.wufoo.com/forms/institute-for-law-teaching-learning-conference/

January 17, 2017 | Permalink

Friday, January 13, 2017

Reminder: Contracts Mean What They Say. And External Grants Aren't Non-Tenure Track Positions

Frequently when I teach Contracts I find myself telling the students to just put in the contract exactly what they want it to say, because so often I feel like cases revolve around parties saying, "I know what it said, but I thought that meant something else entirely." Although, often, of course, these might be ex post facto proclamations when a situation turns out to not be exactly what the party thought it was going to be. 

A recent case out of Maryland, Norman v. Morgan State University, No. 1926 September Term 2015 (behind paywall), is another illustration of a party claiming that a contract means what a court finds it does not mean. In that case, Norman had sued Morgan State after he was denied tenure there. The parties entered into a settlement agreement under which Norman was permitted to apply for "any non-tenure track position at [Morgan State] for which he was qualified." The current lawsuit is the result of Norman's allegation that Morgan State prevented him from applying for an external research grant that that would have funded a future position at the school for him. 

The court, however, found that the contract clearly stated that Norman could apply for "any non-tenure track position." It said nothing about external grants and external grants are not non-tenure track positions. Therefore the settlement agreement did not require Morgan State to permit Norman to seek the external grant. Norman tried to argue that he would not have agreed to the settlement agreement had he known it allowed Morgan State to block applications for external grants, but the court dismissed that argument based on the plain and unambiguous language of the contract. 

January 13, 2017 in Commentary, Labor Contracts, Law Schools, Recent Cases, Teaching, True Contracts | Permalink | Comments (0)

Thursday, January 12, 2017

Weekly Top Ten SSRN Contracts Downloads (January 12, 2017)

Top Ten Infinity

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 518 Risk and Anxiety: A Theory of Data Breach Harms
Daniel J. Solove and Danielle Keats Citron
George Washington University Law School and University of Maryland Francis King Carey School of Law
2 198 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 161 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 137 The Commercial Law of Bitcoin and Blocktrain Transactions
Stephen M. McJohn and Ian McJohn
Suffolk University Law School and Independent
5 126 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
6 124 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
7 116 Empirical Findings on International Arbitration: An Overview
Christopher R. Drahozal
University of Kansas School of Law
8 104 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
9 102 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
10 98 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 198 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
2 161 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
3 126 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
4 124 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
5 104 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
6 102 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
7 98 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
8 94 Remedies
Ariel Porat
Tel Aviv University
9 81 Failures in Law Making: The Case of Arbitration Law in India
Badrinath Srinivasan
Independent
10 66 Forced Arbitration: How Corporations Use the Fine Print to Bully Americans
AAJ Research
American Association for Justice

January 12, 2017 in Recent Scholarship | Permalink | Comments (0)

Wednesday, January 11, 2017

City Can't Delegate Duties as Owner of Apartment Units

If you're looking for an example of duties unable to be delegated, a recent case out of the Middle District of Florida, Floyd v. City of Sanibel, Case No. 2:15-cv-00795-SPC-CM, has one for you. In the case, the Floyds live in a housing unit owned by the City of Sanibel. The City claimed to have delegated its housing duties to Community Housing & Resources ("CHR"), with whom the Floyds entered into a lease that named CHR as its landlord. However, the City was heavily involved with both funding CHR and making decisions on everyday operations for CHR's properties, undermining the assertion that it wasn't involved with the contract at issue. Even without that involvement, though, Florida law dictates that property owners cannot delegate their duties to provide reasonably safe premises by hiring another entity to operate and maintain the property. Therefore, the court allowed the Floyds' claims against the City to stand, holding the City to the lease as CHR's principal. 

January 11, 2017 in Government Contracting, Recent Cases, True Contracts | Permalink | Comments (0)

Saturday, January 7, 2017

When the Break-Up of a Marriage Is Also a Breach of Contract

HGTV

Photo Source: hgtv.com

The main reason I have cable these days, honestly, is because of my HGTV addiction. I like that the shows are so predictable and formulaic, which makes them low-stress. It's a habit I started years ago as a stressed-out lawyer in a law firm, when I needed to come home and watch something that didn't require thought, and it's kept me company as I transitioned into academia. And I'm apparently not alone in using it as comfort television

I use HGTV a lot in my Contracts class as the foundation of hypotheticals (so much that I'm contributing a chapter to a book detailing how I use it) and so I'm always interested when there is a real-life HGTV contract problem...such as is happening right now with "Flip or Flop." 

You might not be anxiously following HGTV shows, so let me tell you that the world was recently rocked (well, a small corner of the world) by the revelation that Christina and Tarek, the married couple with two young children at the center of the house-flipping show "Flip or Flop," were separated and/or getting divorced. And now come reports that HGTV has threatened them with a breach of contract action if their ongoing marital problems affect the filming of the show.

This is an example of the interesting issues that arise when your personal life becomes the equivalent of your contractually obligated professional life. Christina and Tarek no longer want to be married to each other, apparently, which is a stressful enough situation, without adding in the fact that their marriage is also the source of their livelihood. HGTV has a point that the show is less successful when you know that their personal life is a mess. The network was running a commercial pretty steadily through the holiday season where Christina and Tarek talked about their family Christmas, and every time I saw it I thought it was so weird and that they should pull the commercial. But that was clearly the advertising campaign HGTV had long planned for the show and it was probably costly for HGTV to change it at that point.

I am curious to see what the resolution of this is. I'm unclear how much longer Christina and Tarek were under contract for. They probably hoped to keep their separation quiet for as long as they could (they had, after all, kept it quiet for several months). But now that it's out in the open, we'll have to see how the parties recalibrate not just their personal but also their contractual relationships with each other. There is always a lot of talk about how "real" the shows on HGTV is. This situation is testing where our boundaries on "real" vs. "fake" actually lie. 

January 7, 2017 in Celebrity Contracts, Commentary, Current Affairs, In the News, Labor Contracts, Teaching, Television, True Contracts | Permalink | Comments (1)

Thursday, January 5, 2017

Weekly Top Ten SSRN Contracts Downloads (January 5, 2017)

As AALS continues in full swing in San Francisco, let's take a moment to glance at our first Top Ten Downloads lists for 2017:

  Top-10-New-Years-Resolutions

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 457 Risk and Anxiety: A Theory of Data Breach Harms
Daniel J. Solove and Danielle Keats Citron
George Washington University Law School and University of Maryland Francis King Carey School of Law
2 311 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
3 189 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
4 122 The Commercial Law of Bitcoin and Blocktrain Transactions
Stephen M. McJohn and Ian McJohn
Suffolk University Law School and Independent
5 120 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
6 102 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
7 95 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
8 93 Local Governments and Risky Home Loans
Kathleen C. Engel
Suffolk University Law School
9 93 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
10 88 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 311 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 189 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 120 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
4 102 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
5 95 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
6 93 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
7 88 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
8 88 Remedies
Ariel Porat
Tel Aviv University
9 82 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
10 73 Failures in Law Making: The Case of Arbitration Law in India
Badrinath Srinivasan
Independent

 

January 5, 2017 in Recent Scholarship | Permalink | Comments (0)

Wednesday, January 4, 2017

Non-Compete Earns a Preliminary Injunction in Case Involving a Community Publication

I started reading this case because the first party's name was "Our Town" and I have fondness for that play...but it turned out to be a really interesting dispute over a non-compete provision that resulted in a preliminary injunction.

The plaintiff in the case out of Pennsylvania, Our Town v. Rousseau, No. 3:16-CV-2484 (behind paywall), operates a community publication called "Our Town." The defendants in the case entered into a contract to franchise the "Our Town" brand in a county in New Jersey. The franchise contract contained a non-compete provision prohibiting the defendants from operating any similar business within fifty miles of the franchise location or other "Our Town" publications for a period of three years. 

After a series of political editorials, the defendants decided to terminate the franchise relationship, alleging that "Our Town" was no longer viable in the franchise location and they wished to launch a more "family friendly publication." On the day that defendants notified the plaintiff they were terminating the agreement, the plaintiff learned that the defendants were operating a similar publication called "Home Town" in the franchise location. The plaintiff, alleging that this was a violation of the non-compete, sought a preliminary injunction. 

The court granted the injunction. The court found that the plaintiff was likely to succeed on the merits of the case. The parties behaved as if they were bound by the franchise agreement, and the non-compete in the agreement was enforceable. The court found it was supported by valid consideration, that fifty miles has been found to be a reasonable geographic restriction, and that three years have been found to be a reasonable time period. Plus, the court found that the non-compete protected the plaintiff's legitimate business interests and so the plaintiff would be irreparably harmed without the injunction. 

The defendants tried to argue that the injunction would harm them because they would be unable to make a living if the non-compete was enforced. The court noted, however, that this harm was of the defendants' own making. 

January 4, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, December 29, 2016

Time Is of the Essence...Or Is It?

Multiple sources report that Syracuse University is suing its long-term law firm over the firm's failure to put a "time is of the essence" clause into one of the university's contracts. I can't seem to track down the docket online so I haven't been able to look at the actual court documents but if you're teaching "time is of the essence" clauses next semester and looking for a recent controversy, here's one!

December 29, 2016 in Current Affairs, In the News, Teaching | Permalink | Comments (0)

Weekly Top Ten SSRN Contracts Downloads (December 29, 2016)

For your reading pleasure, ContractsProf Blog presents the final Top Ten Downloads list of 2016. We also hope our readers will resolve (notwithstanding Calvin, below) to have a happy and productive 2017!

New-years-resolution-comic-strip Top-10 wStars

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 306 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 183 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 113 The Commercial Law of Bitcoin and Blocktrain Transactions
Stephen M. McJohn and Ian McJohn
Suffolk University Law School and Independent
4 109 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
5 108 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
6 92 Local Governments and Risky Home Loans
Kathleen C. Engel
Suffolk University Law School
7 92 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
8 91 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
9 86 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork
10 83 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 306 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 183 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 109 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
4 108 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
5 92 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
6 91 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
7 86 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork
8 83 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
9 82 Remedies
Ariel Porat
Tel Aviv University
10 72 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law

December 29, 2016 in Recent Scholarship | Permalink | Comments (0)

Wednesday, December 28, 2016

Contractual Brouhaha in the Fashion World

There is major drama happening in the world of high fashion, and it all revolves around an alleged non-compete. Carolina Herrera has sued Oscar de la Renta to keep Laura Kim from working for the rival company. According to CH, Kim signed a non-compete with CH which gave it the option of paying Kim fifty percent of her salary and health benefits in exchange for Kim not competing against it for six months. The six months seems like a suitably short period of time in the fast-moving fashion industry, especially as it has important impacts on New York Fashion Week in February. 

The judge ordered a TRO which has since been lifted pending a preliminary injunction hearing in the new year. In the meantime, you should go to this article for all of the juicy details on what exactly went down between Kim and CH. 

December 28, 2016 in Current Affairs, In the News, True Contracts | Permalink | Comments (1)

Friday, December 23, 2016

Faculty Handbook as Contract

Just a quick entry in advance of a weekend that is a holiday for many, but this post on Inside Higher Ed caught my eye, discussing an in-progress case against NYU. An appellate court allowed two professors' complaint to survive a motion to dismiss based on sufficient allegations that the faculty handbook was a formal binding contract. One to keep an eye on in the new year. 

However you plan to spend this upcoming weekend, I hope it's full of peace and joy. 

December 23, 2016 in Current Affairs, In the News, Teaching, True Contracts | Permalink | Comments (0)

Thursday, December 22, 2016

Weekly Top Ten SSRN Contracts Downloads (December 22, 2016)

Wishing you all the joys of the season from us here at ContractsProf Blog!  Now go help yourself to the gift of recent scholarship from our collective favorite area of the law.

Top-ten-gift-package

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 302 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 243 Online RPM and MFN Under Antitrust Law and Economics
Pinar Akman and D. Daniel Sokol
University of Leeds and University of Florida - Levin College of Law
3 177 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
4 105 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
5 102 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
6 98 The Commercial Law of Bitcoin and Blocktrain Transactions
Stephen M. McJohn and Ian McJohn
Suffolk University Law School and Independent
7 91 Local Governments and Risky Home Loans
Kathleen C. Engel
Suffolk University Law School
8 87 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport 
9 86 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
10 85 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 302 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 177 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 105 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
4 102 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
5 87 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
6 86 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
7 85 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork
8 76 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
9 63 Forced Arbitration: How Corporations Use the Fine Print to Bully Americans
AAJ Research
American Association for Justice
10 72 Remedies
Ariel Porat
Tel Aviv University

December 22, 2016 in Recent Scholarship | Permalink | Comments (0)

Monday, December 19, 2016

The Continuing Impact of Confidentiality Provisions

Confidentiality provisions are everywhere these days, especially in all of those arbitrations most contracts now require. I've blogged about them in connection with Donald Trump, and now they are playing a starring role in the very messy divorce between Johnny Depp and Amber Heard, in which Depp is allegedly refusing to provide Heard's divorce settlement because he alleges she breached their agreement's confidentiality provision when she spoke out publicly against domestic violence. 

It's unclear to me what the wording of the confidentiality provision was and whether Heard's behavior really did violate it. What is clear to me is that the confidentiality provision is being used to prevent communications of encouragement and support to people who are victims of domestic violence. There is a dual tragedy here: Not only are words of encouragement being muffled, but victims of domestic violence are now receiving the message that those words of encouragement could lead to punishing consequences. 

Confidentiality provisions can make sense, and there are definitely situations where they are vital to a deal getting done. But there are also situations where they seem to be operating against public policy. 

December 19, 2016 in Commentary, In the News, True Contracts | Permalink | Comments (1)

Thursday, December 15, 2016

Reminder: Moral Obligations Do Not Equal Legal Obligations

A recent case out of Arkansas, Baxter v. Wing, No. CV-16-21 (behind paywall), has a nice discussion of the difference between moral obligation and legal obligation. In the case, a man named one of his four stepchildren, Susannah, as the sole beneficiary of his life insurance policy and asked her to share it with her three siblings.

Nobody disputed that it was the deceased man's wish that Susannah share the money with her siblings. The problem, though, was that her obligation to comply with his wishes was merely moral, not legal, and the court could do nothing to force her to comply with it. The deceased man gave Susannah instructions, but he did not make her any promise, nor did Susannah make any promise in exchange. There was no deal along the lines of, "I promise to make you the sole beneficiary if you promise in exchange to share the proceeds with your siblings." The deceased man gave Susannah instructions, which did not rise to the level of an enforceable contract. 

Cases like this are valuable when you're teaching consideration but they always make me sad, because consideration cases so frequently seem to be about families feuding on a level so rancorous that they turn to the court system. Tough cases to get through. 

December 15, 2016 in Commentary, Recent Cases, Teaching, True Contracts | Permalink | Comments (0)

KCON XII Early Bird Deadline is TODAY (December 15)

(Reposted at the front of the blog for deadline day)

KCON12-Logo

From Danielle Hart via the AALS Contracts Listserv:

The 12th International Conference on Contracts is just around the corner and the substantive content of the conference is starting to take shape nicely.  Here are some highlights so far:

  •  Seana Shiffrin, Professor of Philosophy and Pete Kameron Professor of Law and Social Justice at UCLA, will be giving a keynote address currently entitled, “Enhancing Moral Relationships Through Strict Liability”
  • A panel of O’Melveny & Myers attorneys will give the second keynote address currently entitled, “Drafting Complex Contracts: Behind the Scenes of the LaGuardia Project”
  • There is a sizeable contingent of international contracts scholars joining us in February including, but certainly not limited to:

Mindy Chen-Wishart, the Associate Dean of Taught Graduate Studies at Oxford Law Faculty who also holds a fractional Professorship at the National University of Singapore and a Visiting Professorship at Hong Kong University, and

Eyal Zamir, Augusto Levi Professor of Commercial Law, Hebrew University of Jerusalem Faculty of Law.

  •  And, of course, there are already some great panels to look forward to that run the gamut from behavioral law and economics to intimate contracts and commodification.

So if you have not done so already, we would like to encourage you to please take advantage of the early bird registration deadline—December 15th (www.swlaw.edu/kconxii)—and to reserve a room at the Omni at your earliest convenience:

https://www.omnihotels.com/hotels/los-angeles-california-plaza/meetings/kcon-conference-southwestern-law-school.

Guests may also confirm their reservation at the negotiated rate by calling 1.800.THE.OMNI (843-6664) and referencing the “KCON Conf Southwestern Law School” guestroom block. 

If you have any questions or concerns before then, please feel free to get in touch with me, Hila Keren or Dov Waisman at kcon12@swlaw.edu. Wishing you all a very good end of the semester!

Danni 

Danielle Kie Hart

December 15, 2016 in Conferences | Permalink

Weekly Top Ten SSRN Contracts Downloads (December 15, 2016)

Top-10 Block Letters

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 324 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
2 286 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
3 241 Online RPM and MFN Under Antitrust Law and Economics
Pinar Akman and D. Daniel Sokol
University of Leeds and University of Florida - Levin College of Law
4 169 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
5 99 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
6 87 First or Second Best? Judicial Law-Making in European Private Law
Chantal Mak
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
7 85 Local Governments and Risky Home Loans
Kathleen C. Engel
Suffolk University Law School
8 84 The Death of Contract, Redux: Boilerplate and the End of Interpretation
Jason MacLean
Lakehead University - Bora Laskin Faculty of Law
9 82 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
10 82 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law

 
SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 324 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
2 286 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
3 169 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
4 99 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
5 87 First or Second Best? Judicial Law-Making in European Private Law
Chantal Mak
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
6 84 The Death of Contract, Redux: Boilerplate and the End of Interpretation
Jason MacLean
Lakehead University - Bora Laskin Faculty of Law
7 82 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
8 82 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
9 81 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork
10 79 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London

December 15, 2016 in Recent Scholarship | Permalink | Comments (0)

Monday, December 12, 2016

In Which Messy Handwriting Renders a Contract Ambiguous

Competition swimming pool block

If you've ever been in charge of taking care of a swimming pool, you know that it has a lot of moving parts and requires a working knowledge of chemistry and an adroitness at mathematics that is often lacked by those who become lawyers.* So I started reading this case because the first sentence told me it was about a swimming pool, but it's an interesting and fairly straightforward situation of contract ambiguity being resolved by extrinsic evidence. If you're looking for a recent case for your students to see this in action, this one might be it. 

The case is Horizon Pools & Landscapes, Inc. v. Sucarichi, No. 01-15-01079-CV, out of Texas. Sucarichi entered into a contract with Horizon to install a swimming pool and spa. The dispute centered around the number of lights Horizon was supposed to install. Sucarichi alleged that Horizon was supposed to install three lights total: two in the swimming pool and one in the spa. Horizon maintained that it was supposed to install two lights total: one in the swimming pool and one in the spa. 

The contract was ambiguous on this point. The contract was divided into many different sections. The relevant ones were as follows: 

  • A section reading "Lights(s)" [sic] with the handwritten notation "(2) L.E.D."
  • A section reading "Pool Light" with a handwritten notation that was illegible
  • A section concerning the spa reading "Light 100 watt." 

The court found that it was equally plausible that the contract here required three lights total, with the first general light section referring to two in the swimming pool and the spa section referring to one, or that the contract required two lights total, with the first general light section giving just the total of lights to be installed between the swimming pool and the spa. The illegibility of the "Pool Light" section made this question impossible to resolve without looking to extrinsic evidence. 

Horizon admitted that its salesman filled out the contract (including the illegible notation). Horizon also did not contest that its salesman told Sucarichi he needed to have two lights installed in his swimming pool. Sucarichi testified that he thought the contract provided for two lights in the swimming pool, based on the Horizon salesman's recommendation, and one light in the spa, for three total. He wrote as much in a letter to Horizon prior to the beginning of the court case, when he was trying to get Horizon to add the second light. Therefore, the court thought there was sufficient proof that the parties had agreed to install a total of three lights, with two in the swimming pool and one in the spa. 

One of the lessons to take away: Make sure your contracts are legible! 

*gross overgeneralization based on me and my frequent intense confusion when I try to take care of our family swimming pool. My talents lie elsewhere!

December 12, 2016 in Commentary, Recent Cases, Television, True Contracts | Permalink | Comments (0)

Friday, December 9, 2016

Weekly Top Ten SSRN Contracts Downloads (December 9, 2016)

A day late, but certainly not a dollar short: Here are this week's Top Ten SSRN Contracts downloads.

TopTen Stamp-808x455

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 314 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
2 264 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
3 239 Online RPM and MFN Under Antitrust Law and Economics
Pinar Akman and D. Daniel Sokol
University of Leeds and University of Florida - Levin College of Law
4 159 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
5 97 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
6 86 First or Second Best? Judicial Law-Making in European Private Law
Chantal Mak
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
7 83 Local Governments and Risky Home Loans
Kathleen C. Engel
Suffolk University Law School
8 77 The Death of Contract, Redux: Boilerplate and the End of Interpretation
Jason MacLean
Lakehead University - Bora Laskin Faculty of Law
9 75 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork
10 72 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport

 


SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 314 The Role of the State in Contract Law: The Common-Civil Law Divide
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
2 264 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
3 159 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
4 97 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
5 86 First or Second Best? Judicial Law-Making in European Private Law
Chantal Mak
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
6 77 The Death of Contract, Redux: Boilerplate and the End of Interpretation
Jason MacLean
Lakehead University - Bora Laskin Faculty of Law
7 75 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork
8 72 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
9 63 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
10 59 Forced Arbitration: How Corporations Use the Fine Print to Bully Americans
AAJ Research
American Association for Justice

 

December 9, 2016 in Recent Scholarship | Permalink

Wednesday, December 7, 2016

KCON XII Reminder: December 15 Registration and Hotel Deadline Approaching

KCON12-Logo

From Danielle Hart via the AALS Contracts Listserv (NB: edited to fix hotel link on 12/9):

The 12th International Conference on Contracts is just around the corner and the substantive content of the conference is starting to take shape nicely.  Here are some highlights so far:

  •  Seana Shiffrin, Professor of Philosophy and Pete Kameron Professor of Law and Social Justice at UCLA, will be giving a keynote address currently entitled, “Enhancing Moral Relationships Through Strict Liability”
  • A panel of O’Melveny & Myers attorneys will give the second keynote address currently entitled, “Drafting Complex Contracts: Behind the Scenes of the LaGuardia Project”
  • There is a sizeable contingent of international contracts scholars joining us in February including, but certainly not limited to:

Mindy Chen-Wishart, the Associate Dean of Taught Graduate Studies at Oxford Law Faculty who also holds a fractional Professorship at the National University of Singapore and a Visiting Professorship at Hong Kong University, and

Eyal Zamir, Augusto Levi Professor of Commercial Law, Hebrew University of Jerusalem Faculty of Law.

  •  And, of course, there are already some great panels to look forward to that run the gamut from behavioral law and economics to intimate contracts and commodification.

 So if you have not done so already, we would like to encourage you to please take advantage of the early bird registration deadline—December 15th (www.swlaw.edu/kconxii)—and to reserve a room at the Omni at your earliest convenience:

https://www.omnihotels.com/hotels/los-angeles-california-plaza/meetings/kcon-conference-southwestern-law-school.

Guests may also confirm their reservation at the negotiated rate by calling 1.800.THE.OMNI (843-6664) and referencing the “KCON Conf Southwestern Law School” guestroom block. 

If you have any questions or concerns before then, please feel free to get in touch with me, Hila Keren or Dov Waisman at kcon12@swlaw.edu. Wishing you all a very good end of the semester!

Danni 

Danielle Kie Hart

December 7, 2016 in Conferences | Permalink

Prince's Complicated Legal Legacy Continues

When the legendary musician Prince died suddenly, he left behind an enormous volume of music and no will. The courts have already been dealing with how to distribute Prince's assets to a complicated and squabbling cadre of potential heirs. The rights to all of his music have raised their own complicated issues that have most recently manifested themselves in a lawsuit in the District of Minnesota, NPG Records, Inc. v. Roc Nation LLC, Case No. 16-cv-03909

The case revolves around Roc Nation's streaming of Prince's music on its streaming service Tidal, and whether or not it had the contractual rights to do so. Roc Nation alleges yes, based on what it terms both written and oral agreements that it struck with Prince before his death. Commentators have tried to draw conclusions about these agreements based on Prince's statements and other behavior before his death. NPG, meanwhile, claims that there was a single contract between Prince and Roc Nation and that it only allowed Roc Nation to stream a very limited number of songs, which Roc Nation has now violated in streaming a much wider variety of Prince's song catalog. The case has been reported on in multiple places, including here and here and here and here.

If this case progresses, it seems like it's going to require an untangling of written contracts between the parties, whatever oral statements Prince will allege to have been made, and the interaction between the two. It adds an interesting layer to consider that Prince was notorious for fighting for artists' rights to their music and had a fraught relationship with online streaming of music. He does seem to have favored Tidal above the other Internet services. In any case, although NPG claims that there was never any such license and Tidal has been infringing the songs' copyright since it began streaming them, NPG has already proactively sought to cancel any license that Prince may have granted to Roc Nation to stream the music in question. 

(I'd post something Prince-related from YouTube, but Prince didn't like his music to be on YouTube. And, in fact, Lenz v. Universal Music Corp., the recent case that wended its way through the Ninth Circuit and is currently on petition to the Supreme Court, involves a Prince song in a YouTube video.)

December 7, 2016 in Celebrity Contracts, Commentary, Current Affairs, In the News, Music, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)