January 26, 2007
Thanks to Isaac Samuels (Touro 1L) for bringing this news piece to my attention. It could make for a fun discussion of contract formation and defenses if we imagine that one of the applicants attempted to enroll before the University's follow up email explaining its mistake:
CHAPEL HILL, N.C. - An admissions department e-mail sent from the University of North Carolina at Chapel Hill congratulated 2,700 prospective freshmen this week on their acceptance to the school.
The problem is that none of the applicants have been admitted. They won’t start finding out until March whether they’ve made the cut.
“We deeply regret this disappointment, which we know is compounded by the stress and anxiety that students experience as a result of the admissions process,” Stephen Farmer, the school’s director of undergraduate admissions, said in a news release.
Farmer said two employees accidentally sent the e-mail Tuesday. It began, “Congratulations again on your admission to the University.”
The e-mail was intended to request midyear grades from high school students who already have been accepted to the school.
Admissions officials have sent follow-up e-mails apologizing for the error. They have also e-mailed admissions counselors around the nation to explain the mistake.
About 20,000 people apply each year to UNC Chapel Hill, and the school enrolls about 3,800 new freshmen.
[Meredith R. Miller]
January 25, 2007
Noncompete "Conventional Wisdom"
Q. Is there a way to avoid these issues altogether?
A. Not if an employer insists on a noncompete agreement.
Peter Polachi, managing partner at Polachi & Company, an executive search firm in Framingham, Mass., says that because a noncompete agreement has such bearing on future employability, it should be regarded as a crucial facet of a job offer — equivalent to factors like pay and benefits packages.
D. Kevin Berchelmann, president of Triangle Performance, a consulting firm in Spring, Tex., says that if a prospective employer insists on a signed agreement, you have a choice: approve the document or decline it and start your job search all over again.
“Noncompete agreements are not designed to be win-win for employees,” he said. “No matter how much you may not like the idea of a noncompete, if you want the job, you may have to sign.”
[Meredith R. Miller]
January 24, 2007
Our friend Andrew Tettenborn (Exeter) mentions that during the 19th century Pickfords was a major part of British culture, as witness this scene from Gilbert & Sullivan's Iolanthe (1890):
[Enter Lord Mountararat and Lord Tolloller from Westminster Hall.]
Celia: You seem annoyed.
Lord Mountararat: Annoyed! I should think so! Why, this ridiculous protégé of yours is playing the deuce with everything! To-night is the second reading of his Bill to throw the Peerage open to Competitive Examination!
Lord Tolloller: And he’ll carry it, too!
Lord Mountararat: Carry it? Of course he will! He’s a Parliamentary Pickford – he carries everything!
Paternity Contract Invalid on Policy Grounds
A man whose wife has, with his consent, been artificially inseminated with an anonymous donor's sperm cannot escape parental liability by contract, according to a new ruling from a New York state trial court.
In the case, the husband -- who had previously undergone a vasectomy -- reluctantly agreed to his wife's desire to have another child by artificial insemination. Later, when the couple split before the child was born, they agreed that the husband would not be considered the father of the child. After the child was born, they again signed an agreement stating that the husband would not be liable.
But that agreement violates public policy, said Justice Eugene Peckham. New York law provides that the husband of a woman who conceives by artificial insemination with his consent "shall be deemed the legitimate, natural child of the husband." The parties apparently cannot get around that obligation by contract. Justice Peckham also apparently ruled that the husband would be estopped from denying paternity in any case, since the child had relied on his prior consent by being conceived and born.
Insuring your Picasso against the Risks of your Elbow
Lloyd's of London has a reputation for "insuring anything": Tina Turner's legs, Brooke Shield's legs, Liberace's fingers, Ben Turpin's crossed eyes. It doesn't seem odd, then, that Lloyd's would also insure a certain Picasso painting (Le Reve) owned by a certain casino magnet (Steve Wynn). Miriam has mentioned "the right to destroy" here before, and Jeremy has discussed the broken promises surrounding Wynn's $139 elbow. Well, it turns out that Wynn had insured the painting and he claims that the tear has decreased its value from $139 to $85 million. He's suing Lloyd's to recover on his policy. Courtesy of The Smoking Gun, here's the latest:
Months after he accidentally poked a hole in a Picasso painting, casino magnate Steve Wynn today sued Lloyd's of London for failing to pay off a $54 million insurance claim. Wynn, who purchased the painting "Le Reve" for $48.4 million in 1997, contends that the painting was worth $139 million when, on September 30, he "accidentally placed a tear" in it while showing the work . . . to friends visiting his Las Vegas office. According to Wynn's U.S. District Court complaint, a copy of which you'll find below, the businessman contends that, as a result of the tear, the painting's value has plummeted to $85 million. He has demanded that Llloyd's pay him the difference in the appreciated value of the painting and its post-damage worth. The day before he punctured the painting, Wynn had entered into an agreement with hedge fund titan Steven Cohen to sell "Le Reve" for $139 million. That deal died after the damage was disclosed to Cohen.
[Meredith R. Miller]
January 23, 2007
Weekly Top Ten
1 (1) Busting Blocks: Appropriate Legal Remedies for Wrongful Inclusion in Spam Filters under U.S. Law, Jonathan I. Ezor (Touro).
2 (2) The Perpetual Anxiety of Living Constitutionalism, Ethan J. Leib (Cal-Hastings).
3 (-) The Effect of Contract Regulation: The Case of Franchising, Jonathan Klick (Florida State), Bruce H. Kobayashi (George Mason) & Larry E. Ribstein (Illinois).
4 (3) Solvency Tests, J.B. Heaton (Bartlit Beck Herman Palenchar & Scott LLP).
5 (6) Contracts as Reference Points, Oliver Hart (Harvard-Econ) & John Moore (Edinburgh-Econ).
6 (5) Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria that Isn't, Symeon C. Symeonides (Willamette).
7 (4) The Economic Loss Rule and Private Ordering, Jay M. Feinman (Rutgers-Camden).
8 (7) Is an Advertisement an Offer? Why it is, and Why it Matters, Jay M. Feinman (Rutgers-Camden) & Stephen R. Brill (Fox Rothschild LLP).
9 (9) The Structure of Good Faith: A Comparative Study of Good Faith Arguments, Marietta Auer (Munich).
10 (8) Mutually Assured Protection: Toward Development of Relational Internet Data Security and Privacy Contracting Norms, Andrea M. Matwyshyn (Florida).
January 22, 2007
Perfect Timing: Parol Evidence under the CISG
Given that I am gearing up to teach MCC-Marble v. Ceramica Nuova D'Agostina, 144 F.3d 1384 (11th Cir. 1998), I was happy to find today in LSN Contracts & Commercial Law (Vol. 8 No. 8, 01/22/2007) that Karen Halverson Cross (John Marshall) has posted to SSRN a piece entitled Parol Evidence under the CISG: the 'Homeward Trend' Reconsidered. Here's the abstract:
The CISG has been described as one of history's most successful attempts to harmonize international commercial law. Consistent with its goal of harmonizing the law of international sales, Article 7(1) of the CISG instructs courts and arbitrators to interpret the Convention in light of “its international character and the need to promote uniformity in its application.” MCC-Marble v. Ceramica Nuova D'Agostina is a U.S. decision that has been praised for its adherence to Article 7(1). In contrast with conventional academic commentary, which praises MCC-Marble and criticizes the tendency of courts to interpret the CISG in light of their respective domestic legal traditions (the 'homeward trend'), this essay critiques MCC-Marble as a decision that emphasizes uniformity at the expense of other important considerations. Notwithstanding Article 7(1), uniformity was not the exclusive goal of the CISG project. Although it may result in some inconsistency in the Convention's implementation, the homeward trend also should enhance the CISG's legitimacy and acceptability over the long term. MCC-Marble is examined to illustrate how its interpretative approach to the CISG's provisions regarding parol evidence may exacerbate the tendency of U.S. parties to opt out of the CISG. The essay argues for an interpretation of the CISG that allows greater weight to be afforded the terms of a final written agreement.
[Meredith R. Miller]
Limerick of the Week
Ray v. William G Eurice & Bros., Inc.
Ray's specs were enough to confound
These "hatchet and saw" men, whose ground
For breaching the pact
Was mistake of fact,
But they signed it and so they are bound.
Pickfords: The Careful Movers
It's one of the sad facts of life that great people and institutions are sometimes remembered more for their one great failure than for their successes. Baseball fans, for example, remember Bill Buckner not as the guy who collected 2,700 career hits and batted over .300 seven times, but as the guy who let a ground ball go between his legs to cost the Chicago Cubs a World Championship.
If there's a Bill Buckner in the contract law field, it's Pickfords, a venerable firm that has been reliably moving stuff around the United Kingdom since the days when "William and Mary" was hot new style in English furniture. But in contracts classes, the firm is known chiefly for its most famous screw-up: mislaying the mill shaft in Hadley v. Baxendale.
Here, courtesy of Richard Dennery of Gloucester, are two images of the modern Pickfords your students may get a chuckle out of.
[NOTE: Thanks to the careful readers who pointed out that Bill Buckner was playing for the Boston Red Sox when he let Mookie Wilson's grounder roll through his legs. Buckner had been a Cub for a long time before joining the Bosox, and is said to have been wearing a Cubs batting glove under his mitt on the play.]
Losing Bidder Seeks Pre-Contract Reliance Damages
A railroad repair company is suing the Hancock County (Miss.) Port and Harbor Commission for money that it spent getting ready to perform an expected contract that went to another bidder.
Jackson Track Construction, Inc., says it had been led to believe it was going to get a $7,6 million contract to do repair work to some rail facilities, a contract delayed by Hurricane Katrina. Jackson says it had been the only bidder and had been twice promised that it would receive a "notice to proceed." The lawsuit claims the contract went "at the last minute" to another bidder. Jackson is claiming more than $2 million, including both lost profits and the money it expended while expecting to get the "notice to proceed."
Rock, Paper, Gun
A federal judge in Georgia has apparently decided to settle some of the disputes in a consumer debt-collection case by making the lawyers do "rock-paper-scissors." If this sort of alternative dispute resolution catches on, we'll need professional advice from folks like the World Rock-Paper-Scissors Society, which has been "serving the needs of decision makers since 1918."
Which reminds me that my two little boys have learned a Texas version of this, which is called "rock-paper-gun." Gun apparently beats both scissors and paper.
[ADD: Alan Childress over at our sister blog, Legal Profession, makes the excellent point that this kind of conduct by judges isn't likely to increase public confidence in the judicial system.]