ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Saturday, July 12, 2008

Now in Print

- Shmuel I. Becher and Tal Z. Zarsky, E-contract Doctrine 2.0: Standard Form Contracting in the Age of Online User Participation, 14 Mich. Telecomm. & Tech. L. Rev. 303-366 (2008).

- Margaret F. Brinig, Are All Contracts Alike? 43 Wake Forest L. Rev. 533-557 (2008).

- Alex M. Johnson, Jr., An Economic Analysis of the Duty to Disclose Information: Lessons Learned from the Caveat Emptor Doctrine, 45 San Diego L. Rev. 79-132 (2008).

- Kevin Tuininga, The Ethics of Surrogacy Contracts and Nebraska's Surrogacy Law, 41 Creighton L. Rev. 185-205 (2008).

- Frederick Tung, The New Death of Contract: Creeping Corporate Fiduciary Duties for Creditors, 57 Emory L.J. 809-869 (2008).

- Gedenkschrift in Honor of E. Allan Farnsworth (1928-2005), 19 Pace Int'l L. Rev. 1-142 (2007).

- Karen Einsidler, Foreword, 19 Pace Int'l L. Rev. 1-7 (2007).
- Michael Joachim Bonell, The UNIDROIT Principles and CISG--Sources of Inspiration for English Courts?, 19 Pace Int'l L. Rev. 9-27 (2007).
- Harry Flechtner, Article 79 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) as Rorschach test: The Homeward Trend and Exemption for Delivering Non-Conforming Goods, 19 Pace Int'l L. Rev. 29-51 (2007).
- Roy Goode, Litigation or Arbitration? The Influence of the Dispute Resolution Procedure on Substantive Rights, 19 Pace Int'l L. Rev. 53-62 (2007).
- Joseph M. Lookofsky, Consequential Damages in CISG Context, 19 Pace Int'l L. Rev. 63-88 (2007).
- Peter Schlechtriem, Non-Material Damages--Recovery under the CISG?, 19 Pace Int'l L. Rev. 89-102 (2007).
- Ingeborg Schwenzer, National Preconceptions that Endanger Uniformity, 19 Pace Int'l L. Rev. 103-124 (2007).
- Pilar Perales Viscasillas, Late Payment Directive 2000/35 and the CISG, 19 Pace Int'l L. Rev. 125-142 (2007).

- Symposium: The Enduring Legacy of Wood v. Lucy, Lady Duff-Gordon, 28 Pace L. Rev. 161-454 (2008).

- James J. Fishman, Introduction: The Enduring Legacy of Wood v. Lucy, Lady Duff-Gordon, 28 Pace L. Rev. 161-178 (2008).
- Joseph M. Perillo, Neutral Standardizing of Contracts, 28 Pace L. Rev. 179-194 (2008).
- Peter Linzer, "Implied," "Inferred," and "Imposed": Default Rules and Adhesion Contracts--the Need for Radical Surgery, 28 Pace L. Rev. 195-217 (2008).
- Nicholas R. Weiskopf, Wood v. Lucy: The Overlap Between Interpretation and Gap-filling to Achieve Minimum Decencies, 28 Pace L. Rev. 219-233 (2008).
- Miriam A. Cherry, Exploring (Social) Class in the Classroom: The Case of Lucy, Lady Duff-Gordon, 28 Pace L. Rev. 235-247 (2008).
- Celia R. Taylor, Teaching Ethics in Context: Wood v. Lucy, Lady Duff-Gordon in the First Year Curriculum, 28 Pace L. Rev. 249-269 (2008).
- Deborah Zalesne with David Nadvorney, Integrating Academic Skills into First Year Curricula: Using Wood v. Lucy, Lady Duff-Gordon to Teach the Role of Facts in Legal Reasoning, 28 Pace L. Rev. 271-296 (2008).
- Andrew Tettenborn, What it's Worth to Do Your Best, 28 Pace L. Rev. 297-314 (2008).
- Larry A. DiMatteo, Cardozo, Anti-Formalism, and the Fiction of Noninterventionism, 28 Pace L. Rev. 315-355 (2008).
- Meredith R. Miller, A Picture of the New York Court of Appeals at the Time of Wood v. Lucy, Lady Duff-Gordon, 28 Pace L. Rev. 357-377 (2008).
- Megan Richardson and David Tan, Wood v. Duff-Gordon and the Modernist Cult of Personality, 28 Pace L. Rev. 379-393 (2008).
- Monroe H. Freedman, Cardozo's Opinion in Lady Lucy's case: "Formative Unconscionability," Impracticality and Judicial Abuse, 28 Pace L. Rev. 395-407 (2008).
- Robert C. Bird, An Employment Contract "Instinct with an Obligation": Good Faith Costs and Contexts, 28 Pace L. Rev. 409-428 (2008).
- Emily Gold Waldman, Fulfilling Lucy's Legacy: Recognizing Implicit Good-Faith Obligations Within Explicit Job Duties, 28 Pace L. Rev. 429-454 (2008).

[Meredith R. Miller]

July 12, 2008 in Recent Scholarship | Permalink | TrackBack (0)

Friday, July 11, 2008

Subscriber Sues Newspaper for Staff Cuts

Raleigh, North Carolina's 's News & Observer reports that Raleigh's News & Observer is being sued by a subscriber angered by new staff cuts.  Durham attorney Keith Hempstead alleges that he renewed his subscription just before the newspaper announced that it was cutting 70 staff members and reducing the number of pages devoted to news.  Mr. Hempstead is claiming that the cuts constitute a breach of contract.  He is also alleging fraud, because his subscription renewal was solicited just before the cuts were announced. 

The lawsuit, is really a labor of love.  Mr. Hempstead, a former reporter, realizes that he could simply cancel his subscription, but he is filing the suit in order to send a message to the companies that run newspapers that they need to be more mindful of their readers. 

John Drescher, executive editor of The News & Observer, appreciates Mr. Hempstead's support for the newspaper, but he claims that Mr. Hempstead really owes the paper money, not the other way around.  According to Drescher, "We've had some really good papers recently, and they're worth more than the 36 cents a day that Mr. Hempstead is paying us."

HT: Dan Barnhizer

[Jeremy Telman]

July 11, 2008 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, July 10, 2008

Special Commemorative Poem

Biohazard This past week, I have been occupied with sewage problems at home.  The sewer line coming out of my house pulled away from the house and was also damaged in other ways that were discovered only after a man who proved himself most talented with a compact excavator dug up our front yard (but only as much as necessary to expose the damaged sewage line).  This lowered my spirits, but is perhaps evidence of Karma, since I had it coming to me, having composed this Limerick.

My co-blogger, Meredith Miller, lifted my spirits with Tuesday's post, and since I am still recovering from the disruption caused by the sewage leak and don't have time for a serious post, an extra bit of poetry will have to do.  This is an old poem that I wrote for a friend in order to persuade her to have lunch with me at Al Yeganeh's Soup Kitchen International.  These soups (and Al) became famous because of the Seinfeld Soup Nazi episode.  My own experiences were nowhere near as dramatic as Seinfeld led me to expect (although my assistant was denied soup once), and the soup was better than I ever could have imagined.  One does indeed need to eat it sitting down because it is so good it makes one's knees buckle. 

Anyway, here's the poem:

An Invitation to Soup
(for Saima)

I'm truly delighted
To have been invited
To dine at Cosi with you.

But I say without malice
It's a Eurotrash palace;
I'd rather select from the stew,

Bisque or broth
Served up by the Goth*
With diction both clear and correct.

Though glib paparazzi
Have dubbed him "Soup Nazi,"
His recipes earn him respect.

*Al is a "Goth," if at all, only in that I can easily imagine him hanging with those people who wear black clothing, paint their fingernails black and have a generally bleak outlook.

[Jeremy Telman]

July 10, 2008 in About this Blog, Limericks | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2008

Telman is Shifting Paradigms!

I would ordinarily leave the honors to my able co-blogger; however, it is hard to see him over that tall pile of moving boxes.  Plus, he's a little too humble about the paradigm shifting he has accomplished in legal writing with just three metrical feet.

In all seriousness - seriously: D.A. Jeremy Telman is a real trendsetter with his legal limericks.  The judges can't seem to get enough of them.  First, there was this rhyme from Judge Schiller of the U.S. District Court in Philadelphia.  Now, another limerick; this time from Judge Leighton of the U.S. District Court for the Western District of Washington, who waxed poetic while granting defendant's motion for a more definite statement:

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a).
His Complaint is too long,
Which renders it wrong,
Please rewrite and refile today.

More from the WSJ Law Blog.  I leave to Jeremy the comments concerning the quality and form of the limerick.

[Meredith R. Miller]

July 8, 2008 in Limericks | Permalink | Comments (0) | TrackBack (0)

Wisconsin Supreme Court Applies Economic Loss Doctrine to Bar Fraud Claims Related to Residential Home Sales

Wisconsin_flag In a recent decision, the Supreme Court of Wisconsin held that the economic loss doctrine barred a buyer's claims for intentional misrepresentation in connection with a residential real estate purchase. 

Plaintiff buyer, Shannon Below, purchased a house in Milwaukee from defendant sellers, the Nortons.  The Nortons completed a statutorily required "property condition report" when they put their house on the market.  The report indicated that the Nortons were not aware of any defects with the house's plumbing system, except for a problem with the bathtub's drain handle.  After Below closed on the home and moved in, she learned that the sewer line that ran between the house and the street was broken.  Below alleged that the Nortons knew of the defect in the sewer line when they put the house on the market and, therefore, intentionally misrepresented its condition.  Below sued for, among other things, intentional misrepresentation.  The question before the Supreme Court of Wisconsin was whether the economic loss doctrine barred Below's intentional misrepresentation claim.

Below argued that the economic loss doctrine was not applicable and, on a policy level, argued that residential home purchasers "should not have the burden of allocating risk that they will be defrauded."  The Nortons countered that the rationale for the economic loss doctrine supported its application in this case -- that is, that "the buyers are adequately protected by the contractual remedies that they negotiate" and this rationale was not affected by the fact that the real estate transaction was residential rather than commercial.  The Court sided with the Nortons, and noted that Below was not without a remedy - she could still assert contractual claims and even false advertising claims.

Bradleylg Judge Ann Walsh Bradley proffered a spirited dissent:

This is a case that can affect every single person who purchases a home in Wisconsin.  For many citizens of this state, buying a home will be one of the most important purchases that they will make in their lifetime.

According to the majority, a person selling a home can look the buyer in the eye, lie about the condition of the home, and escape legal consequences in tort for the lie because of the economic loss doctrine.

Wisconsin has the dubious distinction of being the only state in the entire country to have expanded this judicially created doctrine in such a fashion.  The majority has taken a doctrine that originally applied in a very narrow context -- commercial transactions for products under warranty -- and has now used it to prevent homebuyers from recovering damages in tort caused by misrepresentations of fraudulent sellers.

Contrary to its protestation, the majority is not compelled to reach this unfortunate result.

Below v. Norton, No. 2005AP2855 (Wis., July 1, 2008).

[Meredith R. Miller]

July 8, 2008 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2008

Limerick of the Week: General Automotive v. Singer

Movingboxesfile_ What a week!  I am moving offices while teaching, and we have a sewage leak in our house which prevents us from using the water.  I am thus doubly homeless.  Thank goodness for my colleague and local hero, Ivan Bodensteiner, who loaned us his lovely house for the weekend!!  Meanwhile, I've just snuck onto a neighboring computer to post this Limerick, but I may not post much else this week.

The Singer case is a great one for illustrating the value placed on the duty of loyalty.  Singer was a key employee of the General Automotive Manufactuing Company.  In many ways, he was an ideal employee.  He was an expert machinist and he brought business to the company.  When things were slow, he anticipated work that the company could do for jobs coming in later on, and he fronted the company his own money to pay for the parts thus produced. 

Singer's contract called for him to work 5 1/2 days a week for the company and to devote all of his professional energies to the company.  But Singer developed a sideline, acting as a broker and sending out jobs to other manufacturing plants when General Automotive could not do the job, either because it was not equipped to do the work or because it was already working at capacity.  There is no doubt that, if the facts are as stated in the opinion, General Automotive benefitted from the good will generated from Singer's sideline.  Still, it sued him for breach of fiduciary duty.  It could have sued him for breach of contract, of course, but there would have been no contractual damages.  Under the law of fiduciaries, however, Singer was forced to disgorge his profits, a clear windfall for General Automotive.

General Automotive Manufacturing Co. v. Singer

Singer used great perspecuity
In usurping his boss's opportunity
But he failed to disclose;
Since that's a duty he owes,
He now must disgorge the gratuity.

[Jeremy Telman]

July 7, 2008 in Famous Cases, Limericks, Teaching | Permalink | Comments (0) | TrackBack (0)