ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Saturday, March 22, 2008

Two Reasons Not to Contract with the Government

Although I teach contracts and contribute to this blog, I am not a contracts scholar.  My main research interests lie at the intersection of U.S. constitutional law and international law.  But in that context, I have been thinking a lot of late about how current trends in the law create substantial disincentives for entities to enter into contracts with the U.S. government.  I'm sure that readers who deal with government contracts regularly can think of many more, but I want to focus on two developments that would give me pause if I were considering entering into a contract with the U.S.

For more bloviation, click on the link . . .

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March 22, 2008 in Commentary, Government Contracting | Permalink | Comments (0) | TrackBack (0)

Friday, March 21, 2008

To Facebook or Not to Facebook

Do professors have a life outside of class? Or, do they strut and fret their hour up at the lectern, then lie dormant until the next class starts? Well, if any student ever believed the professor disappeared into a void only to reappear for classes, the internet apparently has the capability to ruin this fantasy. From an article in yesterday's New York Times, which invokes contract law's very own Professor Kingsfield as the archetype of all professors:

There was a time when professors did not outrank music premieres on television. They were buttoned-up authority figures, like the legendary fictional Professor Kingsfield, portrayed by John Houseman in “The Paper Chase.” The personal lives of professors could only be imagined from the sparse clues of clothing, handwriting and the contents of offices.

These days, the clues are usually digital and are broad invitations to get to know the person behind the Ph.D. It is not uncommon for professors’ Web pages to include lists of the books they would take to a deserted island, links to their favorite songs from bygone eras, blog posts about their children, entries “written” by their dogs and vacation photographs.

While many professors have rushed to meet the age of social networking, there are some who think it is symptomatic of an unfortunate trend, that a professor’s job today is not just to impart knowledge, but to be an entertainer.

Certainly, professors have embraced the Internet since its earliest days, using it as a scholarly avenue of communication, publication and debate. Now it is common for many to reveal more personal information that has little connection to their work

Some do so in hopes it will attract attention for a book or paper they have written; others do so inadvertently, joining Facebook to communicate with students and then finding themselves lured deeper by its various applications.

Many, though, say that by divulging family history and hobbies, they hope to appear more accessible to students.

Well, even with all of the cyber-accessibility and transparency, the article continues:

A number of professors said the most disarming thing of all to students is when they encounter a professor not on a Web page, but in the real world.

When a student spotted Mr. Gosling on a street near campus, he said, “She looked at me in, like, horror. Like, ‘Wait a minute, you have a life?’ The idea that I would continue to exist — it was sort of a violation of her expectations.”

Funny, I always thought that the most disarming thing for students happened right in class: the realization that I am nothing like Professor Kingsfield.

[Meredith R. Miller]

March 21, 2008 in In the News | Permalink | TrackBack (0)

The Mortgage Contingency Clause: A Nice Example of a Condition

When teaching the law of contract conditions, I find that the mortgage contingency clause contained in most residential real estate contracts is a palpable example.  A simple and recent New York Supreme Court case provides a ready illustration.

Plaintiffs/sellers contracted with defendant/buyer for the purchase of real estate.  Buyer deposited $35,000 in escrow with the sellers' attorney.  Sellers were ready, willing, able to close on the date provided in the contract.  However, buyer's attorney informed the sellers that the buyer would not be appearing at the closing because the buyer did not have a valid mortgage commitment in place.  The buyer requested return of the down payment.

Sellers brought suit seeking summary judgment in lieu of complaint, relying on the contract of sale.  Buyer cross-moved for summary judgment, pointing to the contract's mortgage contingency clause.  The clause provided that the obligations of the buyer were conditioned upon the issuance of a written commitment on or before "45 days from date hereof."  The paragraph provided that, if the commitment was not issued within that time,"then either party may cancel this contract by giving notice to either party . . ., in which case the contract shall be deemed canceled. . . ."

The court granted the buyer's cross-motion for summary judgment, holding:

[T]he defendant, has demonstrated that she made a good faith attempt to obtain a written commitment. The mortgage contingency clause contained in the contract provides that the purchaser shall (a) make prompt application to a lender for a mortgage loan, (b) furnish accurate and complete information as required, (c) pay all fees related to the application and loan, (d) pursue such application with due diligence, (e) cooperate in good faith with the lender, and (f) promptly give notice to the seller of the name and address of each lender that the purchaser has made an application to. The defendant has demonstrated compliance with such terms.

* * *

As the defendant was unable to obtain a mortgage commitment with due diligence, and notified the plaintiff accordingly prior to the closing date, the contract was deemed canceled and therefore, the defendant is entitled to a full refund of her down payment.

Buyer was awarded the return of her down payment.

Schwiesow v. Werner (NY Supreme Court, Nassau County) (Friedman, J.)

[Meredith R. Miller]

March 21, 2008 in Recent Cases, Teaching | Permalink | TrackBack (0)

Duke Bows to Pressure: Dehydrates Students

Coke  The Duke Chronicle reports that Duke University removed water dispensers from campus dormitories because their presence violated the terms of a 10-year contract between Duke Dining Services and the Coca-Cola Company.  Under the terms of the agreement, only Coca-Cola products may be dispensed on campus, and the water in question was a flavored product, apparently produced by one of Coca-Cola's competitors. 

One Duke freshman was unable to quench her thirst: . "I was upset because I don't want to drink soda and it was a nice in-between alternative from soda at every meal, but now that that's gone there aren't many options left."  Others were unmoved by the change: "I don't see the point in paying for water that's flavored and doesn't even taste that much better.  I just don't like it."


Now, Duke's Director of Dining Services Jim Wulforst is facing the biggest crisis of his administration.  The Duke Chronicle provides a picture of a smiling, relaxed Mr. Wulforst, obviously taken in happier times: "We're at a crossroads right now, and we're trying to figure out how to bring the product back without violating the contract," he said. "It just can't be a fountain system attached to the existing Coke system." 

Yeah, that's what he says now, but what were those drinks doing there in the first place?  Duke students want to know, "What did you know, Wulforst, and when did you know it?"

Here's my legal opinion:  Flavored water is gross.

[Jeremy Telman]

March 21, 2008 in In the News | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2008

What We Talk About When We Talk About Supporting the Troops

Recruitment MTV films is releasing Stop-Loss at the end of the month.  Here's a synopsis from the website:

Decorated Iraq war hero Sgt. Brandon King makes a celebrated return to his small Texas hometown following his tour of duty. He tries to resume the life he left behind. Then, against Brandon’s will, the Army orders him back to duty in Iraq, which upends his world. The conflict tests everything he believes in: the bond of family, the loyalty of friendship, the limits of love and the value of honor.

But for those of you who like your media old school, The Nation has published Michael Zweig's "The War and the Working Class"  The essay explores a number of contract issues in connection with the U.S. military's recruitment practices.  These issues include "stop-loss," which Zweig describes as the military reserving "the right to extend the deployment time and active-duty status of every soldier beyond the service dates prescribed in their enlistment contracts and mobilization papers."  According to Zweig, most soldiers were unaware of the stop-loss provision but by 2006, it had been enforced against 50,000 soldiers.  Zweig also reports that court challenges to the enforcement of the stop-loss provision were unsuccessful. 

Zweig also identifies another questionable practice.  The military entices recruits with promises of benefits, such as educational training and signing bonuses but reserves the right not to pay such bonuses if the soldier leaves the military before her or his commitment is over, even if the reason for the soldier leaving the military is severe combat injuries.  This seems like the sort of loophole that a legislature concerned about supporting the troops could easily close, but Congress has not done so yet.

[Jeremy Telman]

March 20, 2008 in In the News, Labor Contracts, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2008

Ted Nugent Update

Nugent As we previously reported, a Michigan appellate court awarded Ted Nugent $60,000 in contract damages after the Muskegon Summer Celebration (MSC) retracted an invitation to Mr. Nugent to perform at the Celebration in 2003. 

Last week, reported that, after a dispute over whether or not the judgment had actually been paid, MSC's attorneys filed a motion asking the judge to enter a satisfaction of judgment, since Nugent's attorney had not done so.  Perhaps, Nugent and his attorneys were paralyzed.  Or maybe it was just a case of cat scratch fever.  In any case, apparently hoping to avoid a legal free for all or another trip to the dog eat dog world of litigation in the state where one might find the Motor City madhouse Nugent's attorneys apparently released their stranglehold on the satisfaction of judgment and permitted the litigation to be terminated.

[Jeremy Telman]

March 17, 2008 in Celebrity Contracts, In the News | Permalink | TrackBack (0)

Poverty Law Conference at Valparaiso University

Povertyconference I am told that the Valparaiso University School of Law's Foreclosure Conference announced previously on this blog is already oversubscribed.

Povertyconference2Those of you who would still like to experience Spring in Indiana might want to attend our Conference on Law, Poverty and Economic Inequality to be held April 3-4, 2008.  Contrary to the information on the aforelinked webpage, those interested in registering should contact Melissa Mundt at 219-465-7847 or via e-mail at

[Jeremy Telman]

March 17, 2008 in Conferences | Permalink | TrackBack (0)

Sunday, March 16, 2008

More Drama at Regnery Press

Miniter Last month, we reported that a number of convservative authors were headed to arbitration with their claims against Regnery Publishing, a conservative press.  This month, according to Human, the arbitrator, in a separate proceeding, ordered author Richard Miniter to repay an advance he had received to publish the second of a two-book deal with Regnery, sinced he has now signed an agreement to allow another press to publish the second book.  Miniter apparently flew the Regnery coop due to his dissatisfaction with their marketing strategies, which are the subject of the separate arbitration claim.

[Jeremy Telman]

March 16, 2008 in In the News | Permalink | TrackBack (0)