ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Wednesday, January 17, 2007

Deadline Approaches for International Conference on Contracts

Aab_41 The deadline for submitting abstract proposals for the Third International Conference on Contracts is coming up January 26.  The two-day conference, hosted by South Texas College of Law in balmy Houston, Texas, will take place February 23-24, 2007.  (Left: The award-winning Fred Parks Library at STCL.)

The conference is unique, in that it bring together senior and junior scholars who are working in any aspect of contract law and practice.  Papers that examine contracts from any perspective are welcome.  Proposals from junior scholars, those who work in non-law-school environments, and those whose work focuses on non-U.S. legal systems are especially encouraged.  The Conference web site, which includes the Call for Papers and registration and hotel information, is:

http://contractsconference.com/

The $129 conference fee includes a Continental breakfast and lunch on both Friday and Saturday, as well as the conference dinner on Friday night at a local landmark famous for its Southern cuisine, Treebeard's on Market Square.

This year's conference is co-sponsored by South Texas College of Law and Texas Wesleyan Law School, along with Lexis/Nexis Publishing and International Law Conferences LLC.

Previous conferences were held in Gloucester, England, in 2004, and Fort Worth, Texas, in 2006.

[Frank Snyder]

January 17, 2007 in Conferences | Permalink | TrackBack (0)

Relational v. Legal Enforcement

At different times and in different cultures people have found different ways to enforce contractual agreements. In many societies, enforcement comes primarily through a network of relationships. Some argue that this is simply the result of cultural preferences, others that it is caused by an inadequate legal system . Some argue that it deters economic development, others disagree. Fali Huang of Singapore Management University’s School of Economics & Social Science, takes a look at the issues in The Transition from Relational to Legal Contract Enforcement. Here’s the abstract:

This paper studies the transition of contract enforcement institutions. The prevalence of relational contracts, low legal quality, strong cultural preference for personalistic relationships, low social mobility, and highly unequal endowment form a cluster of mutually reinforcing institutions that hinder economic development. The cultural element per se does not necessarily reduce social welfare though it may slow down the legal development, while the real problem lies in endowment inequality and low social mobility. Thus a more equal distribution of resources may be the ultimate key to unravel the above interlocking institutions. These results are generally consistent with the empirical evidence.

[Frank Snyder]

January 17, 2007 in Recent Scholarship | Permalink | TrackBack (0)

The Man Behind Mills v. Wyman

Aaa_58 Not many contract cases are more famous than Mills v. Wyman, 20 Mass. (3 Pick.) 207 (1825) in which the Massachusetts Supreme Judicial Court held that a father's promise to pay a stranger for the care of his dying son was unenforceable for lack of consideration.  The author of the opinion was Chief Justice Isaac Parker (1768-1830) (left).

Parker was born in Boston, graduated from Harvard in 1786, studied for the bar, and started practicing in Castine, Maine (then still part of Massachusetts), and later moved to Portland.  He served as a U.S. Congressman in the Fifth Congress (1797-99), and then was U.S. Marshal.  In 1806 he was appointed Associate Justice of the Supreme Judicial Court, and became Chief Justice in 1814.  He remained on the court until his death in 1830.  From 1815-30 he taught law at Harvard, and was also an overseer of that institution for 20 years.  He was a trustee of Bowdoin College for eleven years.  In 1820 was President of the State Constitutional Convention.  Yet history largely remembers him for this one short opinion in an insignificant case.  Generations of law students have read his opinion of defendant Seth Wyman and his explanation of the rule of law:

General rules of law established for the security of honest and fair-minded men, who may inconsiderately make promises without any equivalent, will sometimes screen men of a different character from engagements which they are bound in foro consicentiae to perform.

. . . On [the son's] return from a foreign country he fell sick among strangers, and the plaintiff acted the part of the good Samaritan, giving him shelter and comfort until he died.  The defendant, his father, influenced by transient feelings of gratitude, promised in writing to pay the plaintiff for the expenses he had incurred.  But he has determined to break that promise, and is willing to have his case appear on record as a strong example of particular injustice sometimes necessarily resulting from the operation of general rules.

. . .

A deliberate promise in writing, made freely and without any mistake, one which may lead the party to whom it is made into contracts and expenses, cannot be broken without a violation of moral duty.  But if there was nothing paid or promised for it the law, perhaps wisely, leaves the execution of it to the conscience of him who makes it.

The photo at left is of an original pastel portrait of Parker, probably by Felix Sharples, that I bought at an auction in New Orleans last month.  Feel free to use the image for any educational or nonprofit purpose.

[Frank Snyder]

January 17, 2007 in Famous Cases | Permalink | TrackBack (0)

Tuesday, January 16, 2007

Seinfeld Loses K Case

Comedian Jerry Seinfeld isn't laughing today.  Yesterday a Manhattan judge ruled that the comedian owed a real estate agent about $100,000 in commissions relating to Seinfeld's purchase of a $3.95 million New York townhouse.  Seinfeld's lawyers apparently argued that the agent, Tamara Cohen, wasn't licensed, and that the oral contract with her should therefore be unenforceable.

[Frank Snyder]

January 16, 2007 in In the News | Permalink | TrackBack (0)

Weekly Top 10

Ssrn_2 Cyberspace, international views, and two papers Jay Feinman are the top features in this edition of the Top Ten.  Following are the top 10 most-downloaded new papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending January 21, 2007.

1  Busting Blocks: Appropriate Legal Remedies for Wrongful Inclusion in Spam Filters under U.S. Law, Jonathan I. Ezor (Touro).

2  The Perpetual Anxiety of Living Constitutionalism, Ethan J. Leib (Cal-Hastings).

Solvency Tests, J.B. Heaton (Bartlit Beck Herman Palenchar & Scott LLP).

4  The Economic Loss Rule and Private Ordering, Jay M. Feinman (Rutgers-Camden).

5  Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria that Isn't, Symeon C. Symeonides (Willamette).

6  Contracts as Reference Points, Oliver Hart (Harvard-Econ) & John Moore (Edinburgh-Econ).

7  Is an Advertisement an Offer? Why it is, and Why it Matters, Jay M. Feinman (Rutgers-Camden) & Stephen R. Brill (Fox Rothschild LLP).

8  Mutually Assured Protection: Toward Development of Relational Internet Data Security and Privacy Contracting Norms, Andrea M. Matwyshyn (Florida).

9  The Structure of Good Faith: A Comparative Study of Good Faith Arguments, Marietta Auer (Munich).

10 Principles of Equity and Contracts, Shaswata Dutta (West Bengal NUJS).

[Frank Snyder]

January 16, 2007 in Recent Scholarship | Permalink | TrackBack (0)

Monday, January 15, 2007

Limerick of the Week

Mlk A Limerick to honor Martin Luther King, Jr. and the King v. Boston University case:

Coretta Scott King's defiance
Could not overcome legal science.
The gift is a fact
Because it was backed
By consideration (or reliance).

[Jeremy Telman}

January 15, 2007 in Famous Cases, Limericks, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, January 11, 2007

Maybe Crazy Eddie Just Didn't Understand Basic Economic Principles

Crazy_eddie_screenshot The New York Times reported today on some recent scholarship entitled, On the Use of Low-Price Guarantees to Discourage Price-Cutting.  If the scholarship were by someone in the humanities, that title might not provide a very good sense of what the paper is about, but the three authors, Maria Arbatskaya (Emory), Mortin Hviid (East Anglia) and Greg Shaffer (Rochester) are all economists, so the title pretty much gives it all away.

One of the things that made the eponymous (though fictive) Eddie so crazy (and perhaps led to his bankruptcy) was his habit of vowing to meet or beat any price.  Economic theory tells us that the purpose of such "price-beating" promises is to discourage competitors from lowering their prices. If that is so, it makes sense for retailers to make such offers when their prices are high relative to those of their competitors, because doing so saves customers the "hassle costs" of going to another store but costs the retailer far less than an across-the-board cost reduction. However, price-beating guarantees make no sense if, for example, Crazy Eddie's prices are indeed insanely low. 

Arbatskaya et al. tested this hypothesis by looking at newspaper advertisements for tires.  Alas, the results indicate that retailers care not for economic theory.  Price-beating guarantees are often made by the lowest-priced seller.

[Jeremy Telman]

January 11, 2007 in Commentary, In the News | Permalink | TrackBack (0)

Will the Virtual World Yield Real Law Suits?

Sword The BBC recently reported on a case in which a Chinese online gamer killed a friend by stabbing him in the chest with a real knife after learning that the friend had sold for real money a virtual sword that the accused had won in an online game and then loaned to the victim. 

In Virtual Worlds, Real Damages, Jason Archinaco speculates on the value of a virtual horse, Amercian Hero, "deactivated" by Virtual Sports, Inc. after setting a virtual world record for the distance of 1 1/4 miles.  Apparently, Virtual Sports thought it wasn't fair to the other virtual horses to have one really, really good one.  Virtual Sports also noted that "the owner is being compensated."

This suggests that the virtual world is already governed by real law and that disputes arising in the virtual world will be a source of employment for real lawyers, including contracts lawyers.  Woohoo!  Indeed, the Chinese stabbing could have been prevented if Chinese law recognized rights in virtual property. 

Props to my good friend, Rebecca Spang (Indiana University, Department of History).  Rebecca passed Jason Archinaco's article on to me after discovering it while working on the syllabus for her new course on the history of money. 

[Jeremy Telman]

January 11, 2007 in Commentary, E-commerce, In the News | Permalink | TrackBack (0)

Monday, January 8, 2007

You’re the First, Baby

Now that we’ve had a few months to think about whether a burrito is a sandwich, here comes another interesting interpretation issue, asking an even more tricky question – what is an “American baby”?  As reported here, toy store retailer Toys “R” Us ran a contest that would award a $25,000 scholarship to the first American baby born in 2007.

Yuki Lin was born at the stroke of midnight at New York Downtown Hospital,according to hospital officials. The Wayne, N.J.-based company had said the prize would go to the first American baby born in 2007.

Although promotional materials called for "all expectant New Year's mothers" to apply, Toys "R" Us spokeswoman Kathleen Waugh said eligibility rules required babies' mothers to be legal residents. Many sweepstakes have such requirements, Waugh said.

Apparently this is not the case for Yuki Lin’s parents, and the company was going to award the prize to another baby.  But, now, according to the story, Toys “R” Us has decided to err on the side of generosity and award three scholarships, including one to Yuki Lin. 

[Miriam Cherry]

January 8, 2007 in In the News | Permalink | TrackBack (0)

Faux Wedding Ceremony Contracts

The wedding ceremony date is set.  Expensive arrangements have been made.  Guests have made their travel plans.  But, the negotiations over the pre-nuptial agreement are taking longer than expected.  What should you do?  Options include:
* Hurry up and conclude the pre-nuptial agreement negotiations before the ceremony (but the pesky lawyers keep getting in the way...)
* Reschedule the ceremony, but this may be expensive, annoying to the guests, and embarrassing
* Convert the pre-nuptial agreement into a post-nuptial agreement, but this means no pre-nup during the interim, and post-nups may not be as readily enforceable as pre-nups
* Convert the ceremony into a sham wedding ceremony, delay the actual marriage until the pre-nuptial agreement is done, and enter into a contract between the non-spouses to confirm that the wedding isn't legal until some later date.
Among the detritus from the Britney Spears/Kevin Federline divorce, we have confirmed that they chose the latter option, entering into an Agreement re September 18, 2004 Wedding Ceremony governing the participation in a "faux wedding ceremony."
I wonder about the enforceability of such agreements.  This reminds me of contract provisions that disclaim the formation of a partnership or an employment agreement.  The parties can say what they want, but courts and third parties aren't bound by this private determination; public policy may impose a partnership or employment relationship despite the contract clause.  So if a third party--such as creditors or the taxman--were to assert that the signatories were married based on the faux ceremony, I doubt the agreement would offer much protection.
As a result, I wonder about the professional responsibilities of a person drafting a contract for a faux wedding ceremony.  (Let's ignore the malpractice risks).  Here, the lawyers helped the principals perpetrate a sham to anyone who was not clued in to the fauxness of the event.  According to the MRPC, lawyers can't help their clients break the law or lie, and they may have to whistleblow on the client if they know the clients plan to lie to commit a crime or fraud.  Depending on who said what to whom, the sham may not have met any of these standards, but at the same time, there is something uncomfortable about lawyers supporting client artifices.  I'd like to think that most lawyers would choose not to use their talents to do so.
[Eric Goldman]

January 8, 2007 in Celebrity Contracts | Permalink | TrackBack (0)

Limerick of the Week

Okay, I'll be honest.  I've posted all of my contracts Limericks that I think are ready for prime time.  And, at Valparaiso, Spring semester is the off-season for contracts, so I'm mostly working on developing my beer belly at this point.  So, this semester, I will be sharing works in progress in the hopes that some of you can suggest ways to improve these Limericks.  In addition, if any of you out there have a favorite case that I have not yet written about, I am willing to take requests.

Knapp, et al. start their book with a case call Burch v. Second Judicial District.  It introduces students to a number of topics to which we return later in the course, but the posture of the case is a bit odd, as its a mandamus case, which is a confusing way to being the first semester of law school.  Then again, at least it's not Pennoyer.

If you don't think to file for mandamus,
Your client may shout, "Ignoramus!"
Now after appeal,
The Burches can squeal
"We may not be rich but we're famous!"

Well, they get to squeal only if they realize that their case will be the first in a first-year contracts casebook. Ahem.

[Jeremy Telman}

January 8, 2007 in Limericks, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 2, 2007

AALS Section on Contracts Panel: New Frontiers in Private Ordering

Aalslogo3 Just a reminder for those of you about to set off for the AALS annual meeting:

The AALS Section on Contracts is hosting a panel entitled "New Frontiers in Private Ordering."  The full program blurb can be found here (scroll down to the 1:30-3:15 slot).  For those who miss the excitement in DC, the proceedings will be published in the Arizona Law Review.  The panel will feature:

Jean Braucher, University of Arizona College of Law (moderator)
Ian Ayres, Yale Law School
Jennifer Gerarda Brown, Qunnipiac University School of Law
Michele Goodwin, DePaul University College of Law
Martha M. Ertwin, University of Utah College of Law

In addition, the panel will address scholarly submissions by Rachel S. Arnow-Richman and Daniela Caruso selected from the Call for Papers.

[Jeremy Telman]

January 2, 2007 in Conferences | Permalink | TrackBack (0)