September 29, 2006
New Legal Profession Blog
We're delighted to note the addition of a great new blog to the Law Professor Blog Network, which features (among others) Tulane contracts prof Jeff Lipshaw.(left). The new Legal Profession Blog aims to explore the boundary (or perhaps "no fly zone"?) between the law schools and the practicing bar. Lipshaw, who before he became an academic was a law firm partner and general counsel of a Fortune 500 company, knows that line better than most. His colleagues include procedure scholar Alan Childress (George Washington) and Michael Frisch, who is General Counsel to Georgetown University.
There are several good posts there already, including a good discussion of the New York State Bar's consideration of the question whether lawyer blogs should be considered "advertising," and Lipshaw's advice to new graduates on how to be successful. (Note: It's not brown-nosing and stabbing your colleagues in the back.)
Rather shockingly, Lipshaw reveals that he does not drink at lunch, even when the martinis are a dime each, which means that New Orleans is apparently wasted on him.
Do Religious Requirements Justify Breach?
Does a religious observance provide an impracticability defense to a breach of contract claim? That may be one of the issues in a case from Qatar, where a man booked a "full fledged Arab-style tent" for his wedding from a club in Doha. The club later advised him that the tent would be unavailable because it had to be prepared for the holy month of Ramadan.
Carolina Looking for Authors
If you're a law professor with a hankering to do something comparative, Carolina Academic Press has a really interesting opportunity. CAP is launching a series of books treating law from a comparative perspective, under the general editorship of Andrew McClurg (Mempis). He's looking for folks who want to work as authors in the series. Current comparative law expertise isn't necessary, since the books are sensibly going to be co-authored by both U.S. and foreign experts. Click on "continue reading" for the details.
Call for Authors
Carolina Academic Press (CAP) is beginning a series of comparative law texts called the "Contextual Approach Series" (CAS). I’m serving as editor. CAP and I are looking for U.S. law professors in a variety of subject areas to serve as lead authors for entries in the series.
The goal of the CAS is to create a series of interesting, student-friendly, self-contained, accessible comparative law books that—using co-authors from the U.S. and two other countries—clearly and concisely explain how law works in practice around the world in different subject areas. The books will be paperbound and roughly 200 pages.
The first book, Practical Global Tort Litigation: U.S., Germany and Argentina (McClurg, Koyuncu and Sprovieri) (PGTL), is in publication production and will be available for use as a model. Detailed guidelines for authors in the series also are available.
As the title of the series suggests, each book will be based on a set of case or problem facts raising prototypical, universal legal issues in the particular subject area. This contextual approach is intended to bring comparative law to life and make it digestible and understandable to law students by giving them a foundation to attach the law to.
As an example, PGTL takes a simple products liability case involving a shattering glass jar through the legal systems of the U.S., Germany, and Argentina. Other examples: a criminal law text could take a simple theft case through the U.S. and two other legal systems; a family law text could take a divorce problem through the U.S. and two other systems; a criminal procedure book could compare the handling of a search, arrest and confession in the U.S. and two other systems; a wills and trusts book could address property disposition upon death in the U.S. and two other legal systems, etc.
The three co-authors will explore and analyze issues raised by the problem facts from the perspective of their respective legal systems in side-by-side country-specific sections.
The U.S. author will serve as the lead author and will enlist, with the editor’s help, the two non-U.S. authors. The U.S. author has primary responsibility for supervising, editing, and integrating the contributions of the non-U.S. authors. This will require learning the relevant law of the two non-U.S. countries. In selecting countries for study, one goal is to choose legal systems that are representative of major world regions, legal traditions or both.
A lack of experience or background in comparative law is not a bar if you have a sincere interest in studying and learning about other legal systems. The non-U.S. co-authors are expected to provide the primary expertise regarding foreign law. I had no prior background in comparative law before writing PGTL with Adem Koyuncu in Cologne and Luis Sprovieri in Buenos Aires. On the other hand, as a former faculty member at the Florida International University College of Law, I did have access to international resources, which proved essential.
All subjects are open to consideration.
If you have an interest in becoming an author in this series, please send a preliminary inquiry to email@example.com that includes: (1) the subject area you would be interested in writing about; (2) a c.v.; and (3) any early ideas you might have regarding a set of problem facts and candidates for the two non-U.S. countries (and co-authors in those countries).
I look forward to hearing from you. When I was teaching at FIU and living in Miami, I became convinced that comparative law is destined to be a cornerstone of U.S. legal education. Writing PGTL was one of the most interesting experiences of my academic career. I learned more than in any year since my first year of law school.
Andrew J. McClurg
Herbert Herff Chair of Excellence in Law
Cecil C. Humphreys School of Law
The University of Memphis
3715 Central Avenue
Memphis, TN 38152
September 28, 2006
Contracts Prof Weekly Spotlight: Daniel Schwarcz
Daniel Schwarcz is in his second year of a two-year post as a Climenko Fellow and Lecturer in Law at
Since graduating from law school, he has stayed in
[To have your profile featured in the weekly ContractsProf Spotlight or recommend someone to be featured, please email Meredith Miller]
September 27, 2006
Contract Law Limerick of the Week
Hamer v. Sidway
by Jeremy Telman (Valparaiso)
Did dissolute William fulfill
A contract with rich Uncle Will?
Yes, forbearance from vice,
Said the court, will suffice
As performance, and so it is still.
More Taste, Less Filling?
Okay, I was teaching this Cardozo opinion today. You know, the one with the rather florid language that none of the students can make any sense of? That seems to make these sweeping statements that can't possibly be literally what he means? And I ran across this while looking for a visual aid. (Click to enlarge.)
These folks can make this clock with any name you like, so I have absoultely no idea how they managed to pick this one for their sample.
In Texas, This Would Be About Football
We all know that hockey is a big thing in Canada. So big that a father in British Columbia is suing the local youth hockey association for breach of contract after it refused to allow his three children to register this year. He’s claiming $100,000 in damages though the article doesn't explain the calculation. Perhaps it's the discounted present value of the reduced chance at a lucrative NHL contract.
The association claims it simply doesn’t have anyone who will volunteer to coach the guy's children, at least so long as they remain his chlidren.
September 26, 2006
Three Year Old Buys a New Car (Sort of)
Just saw this news story, about a three-year-old, named Jack, who wanted to buy a new car:
Jack's mother told the BBC she had left her password for the eBay auction site in her computer and her son used the "buy it now" option to complete the purchase.
"Jack's a whizz on the PC and just pressed all the right buttons," Rachel Neal said.
The seller of the second-hand car, a dealer from Worcestershire, central England, was amused by the bid and agreed not to force the sale through.
"Luckily he saw the funny side and said he would re-advertise," Neal said.
Speaking of Taylor v. Caldwell . . .
The good folks at the Wikipedia Free Encyclopedia have a public domain image of the interior of the Surrey Gardens Music Hall (left--click to enlarge) dating from 1858, three years before the fire that destroyed it and led to the most famous of the "impossibility of performance" cases.
Weekly Top Ten
Technology and economics again dominate the top spots in this week's Top 10. Following are the top ten most-downloaded recent papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending September 24.
1 Technoconsen(t)sus, Andrea M. Matwyshyn (Florida).
2 The Law and Economics of Contracts, Benjamin E. Hermalin (Cal Berkeley-Business), Avery W. Katz (Columbia) & Richard Craswell (Stanford).
3 Transaction Cost Economics: An Assessment of Empirical Research in the Social Sciences, Barak D. Richman (Duke), Jeffrey Macher (Georgetown-Business).
5 Payment Wars: The Merchant-Bank Struggle for Control of Payment Systems, Adam Levitin (Independent).
6 The Promise and Perils of Credit Derivatives, David A. Skeel (Penn) & Frank Partnoy (San Diego).
7 The Strange Death of Academic Commercial Law, Larry T. Garvin (Ohio State).
8 Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law, Cynthia L. Estlund (NYU).
9 Illuminating Secrecy: A New Economic Analysis of Confidential Settlements, Scott A. Moss (Marquette).
10 The Use of MTAs to Control Commercialization of Stem Cell Diagnostics and Therapeutics, Sean M. O'Connor (U Washington).
Prof's contract claim escalates
A breach of contract claim by Canadian law professor Susan Drummond (left) is heating up as a result of Drummond’s self-help tactics in her battle with Rogers Wireless over a $14,000 bill on a stolen wireless phone. Drummond launched the web site Rogers And Me to document her battle with the firm; Rogers says it’s being defamed by her statements.
Drummond is an associate professor at Osgoode Hall Law School, where she teaches legal anthropology, comparative law, civil law, and family law.
Sic transit gloria mundi. . . .
. . . Coudert Brothers, the firm synonymous for decades with sophisticated international law practice, has suffered the last sling and arrow from a cruel world -- a Chapter 11 filing in New York bankruptcy court. Adding insult to the injury, the defunct firm, whose practice was once the international gold standard, can’t even afford to file an appeal bond on a $2.5 million malpractice judgment against it.
Recent Statute of Frauds Case from Delaware
Based on the statute of frauds, a Delaware court recently granted an employer's motion for summary judgment and dismissed a doctor/employee's claim for breach of an oral employment contract.
Dr. Aurigemma sued his employer, a rehabilitation center,
for violation of an alleged oral agreement pursuant to which the doctor alleged he was to
serve as medical director for the employer. The doctor alleged that he entered into an oral agreement on
September 4, 2003, whereby he agreed to serve as medical director for one year
beginning October 1, 2003. The employer
denied any such agreement and contended that, even by the doctor’s own
contention, the contract was not enforceable because the statute of frauds required that it be in writing.
The court held for the employer. The statute of frauds requires that a contract be in writing when it is not capable of being performed in one year. In this case, the doctor’s alleged oral agreement was for exactly one year of employment – but he allegedly entered into the agreement roughly a month before the commencement of his service as medical director under that agreement. The court held:
The general rule regarding the Statute of Frauds can be stated as follows: "An oral contract for a year's services to begin more than one day after the contract is entered into is invalid under that provision of the statute of frauds making invalid an oral contract not to be performed within a year." The time within which such a contract is to be performed is reckoned from the making of the contract, not from the time the performance is to begin." Although this rule of law has never been explicitly expounded in Delaware, it appears to be the widely accepted construction of this particular provision of the Statute of Frauds.
(footnotes omitted). Thus,
the alleged oral agreement came within the statute of frauds, necessitating
that it be reduced to writing.
The court further held that no exception to the statute of frauds applied. The doctor argued that he partially performed the alleged contract to serve as medical director by assuming the duties of acting medical director on September 4, 2003. In response, the employer argued that the partial performance exception is limited to real estate and financial transactions and does not apply to service or employment contracts. Moreover, the employer argued, even though Dr. Aurigemma began to perform as interim medical director, this was not a partial performance of permanent medical director position duties. The court held:
Delaware law is clear that the part performance doctrine does not apply to oral contracts not to be performed within one-year. "It is ... uncontroverted that partial performance of services under an oral contract not to be performed within a year does not remove the contract from the operation of the Statute of Frauds so as to affect the portion of the services not performed." This view has been expressed as the majority view and is supported by case law in many jurisdictions. The purpose of the Statute of Frauds is to prevent frauds that may occur if oral contracts were permitted in certain areas of the law. The Indiana Supreme Court recently penned an excellent recitation of the purpose of the Statute of Frauds in considering an argument identical to that offered here by Dr. Aurigemma. In Coca-Cola
Co.v. Babyback International, Inc., that court said:
This purpose would be undermined if a party's conduct could form the basis for establishing and enforcing a claimed oral agreement not to be performed within one year simply because the same party's conduct arguably provided the only explanation for the agreement. Such an approach would invite persons to concoct and seek enforcement of fictitious contracts on grounds that the existence of an agreement would provide the only possible explanation for such persons' conduct. In contrast to real estate contracts, where evidence of part performance is relatively clear, definite, and substantial, the nature of evidentiary facts potentially asserted to show part performance of an agreement not performable within one year would be vague, subjective, imprecise, and susceptible to fraudulent application.
Aurigemma v. New Castle Care LLC,2006 WL 2441978 (Del.Super. Aug. 22, 2006).