November 14, 2009
AALS Program and Print Symposium on Teaching Contracts
The AALS Section on Contracts invites you to attend our Annual Meeting program on New Approaches to Teaching Contracts: A Teach-In and solicits additional proposals for a companion symposium issue to appear in the Washington Law Review.
The Topic: Responding to profound changes in the practice of law and in our larger culture, many Contracts professors strive to update their methods and materials. In the spirit of the Annual Meeting’s transformative law theme, our program will explore a variety of new approaches that contracts professors have begun to introduce in the classroom and in teaching materials to address both changes in the structure of practice that require new lawyers to hit the ground running and ways that wired students synthesize material and acquire skills. We hope that the program, as a whole, will motivate experienced contracts professors to de-laminate their notes and inspire newer professors to move beyond their own professors in developing new ways to convey the beauty, complexity, and occasional imperfections of contract law.
The Program: Our annual meeting program, scheduled for Friday, January 8, 10:30 AM to 12:15 PM, Melrose Room, Third Floor, Hilton New Orleans Riverside, will feature Douglas Baird (Chicago) on the Langdellian, classic-case-centered method; Scott Burnham (Montana) on using drafting exercises to develop both skills and doctrinal understanding; Carol Chomsky (Minnesota) or Christina Kunz (William Mitchell) on their contribution to Thomson/West’s new Interactive Casebook Series, Contracts: A Contemporary Approach (West forthcoming 2010); Jonathan Hyman (Rutgers-Newark) on "Teaching Contracts with Student Role-Play Arbitrations"; Emily Kadens (Texas) on adapting the problem-based method more commonly used in upper-level commercial law courses to the first-year Contracts course; Shruti Rana (Maryland) on "Integrating Cross-border Perspectives on Contract Law: Comparing US and International Perspectives on Acceptances;" and Deborah Schmedemann (William Mitchell) on "Actual Reality: Peopling the Contracts Course."
The Print Symposium: The Washington Law Review will publish a print symposium in its November 2010 issue, which will include papers from most of our presenters, papers selected from among those who responded to our initial call for proposals, as well as others from whom we solicited contributions, and some shorter responses and replies.
How to Submit a Paper or Proposal: We may be able to accommodate on a space-available basis a limited number of additional short (15-20 pages) papers, responses, and replies in the symposium issue. If you would like to contribute please e-mail an abstract, précis, or draft by Monday, December 14, 2009 to the Planning Subcommittee: Martha Ertman (Maryland), Lisa Bernstein (Chicago), and Keith Rowley(UNLV). Please direct your submission to all three of our email addresses: email@example.com, firstname.lastname@example.org, and email@example.com, respectively. The Planning Committee and members of the law review's editorial board will review all timely submissions and offer publication to any we can accommodate.[Keith A. Rowley]
AALS Program and Print Symposium on the Principles of the Law of Software Contracts
The AALS Section on Commercial and Related Consumer Law invites you to attend our Annual Meeting program on The Principles of the Law of Software Contracts: A Phoenix Rising from the Ashes of Article 2B and UCITA? and solicits additional proposals for a companion symposium issue to be published in the Tulane Law Review.
The Topic: On May 19, 2009, the ALI approved the Principles of the Law of Software Contracts, which undertake to weave the currently divergent threads of law governing software contracts into a coherent whole that will guide parties in drafting, performing, and enforcing software contracts, assist courts and other arbiters in resolving disputes involving software contracts, and, perhaps, inform future legislation addressing software contracts. Do the Principles clarify the law of software contracts? Will they successfully unify the law of software contracts? Are they consistent with current best practices in software contracting? Will they encourage desirable future developments in the law and practice of software contracts? These are among the questions our program speakers will address.
The Program: The Commercial and Related Consumer Law Section's annual meeting program, scheduled for Saturday, January 9, 10:30 AM to 12:15 PM, in the Magnolia Room, Third Floor, Hilton New Orleans Riverside, will feature Principles Reporter Bob Hillman (Cornell) and Associate Reporter Maureen O’Rourke (Boston U.), who will offer their unique insights on the drafting process, key substantive provisions, and their legal and practical implications; Amy Boss (Drexel), who will add her insights about the failures of the UCC Article 2B project and UCITA and the prospects for the Principles’ success; Juliet Moringiello (Widener), who will discuss her and co-author Bill Reynolds's (Maryland) paper "What's Software Got to Do With It?," offering their perspectives on the Principles process, largely ignoring past efforts and debates, and addressing some of the assumptions underlying the Principles and how they address those assumptions; and Florencia Marotta-Wurgler (NYU), who will discuss her and co-author Yannis Bakos's (NYU Stern School of Business) paper "How Much Does Disclosure Matter?," which delves deeper into the value of disclosure -- an important assumption underlying the Principles and a subject the Principles tackle substantively -- and augments the conceptual discussion with empirical analysis.
The Symposium Issue: The Tulane Law Review will publish a print symposium issue including papers from most of our presenters, papers selected from among those who responded to our initial call for proposals as well as others from whom we solicited contributions, and some shorter responses and replies. We can accommodate a limited number of additional papers, responses, and replies in the symposium issue, which is scheduled to go to press in late summer 2010.
How to Submit a Paper or Proposal: If you would like to contribute to the print symposium, and want your proposal to receive full consideration, please e-mail an abstract, précis, or draft by Monday, December 14, 2009 to Professor Keith A. Rowley, Chair of the AALS Section on Commercial and Related Consumer Law. E-mail: firstname.lastname@example.org. We may consider submissions received after December 14 on a space-available basis. Executive Committee members and the Tulane Law Review's symposium editors will review all timely submissions and notify no later than Monday, January 11, 2010 those authors we would like to contribute to the print symposium.[Keith A. Rowley]
Now in Print: Catching Up (Round 1)
I began drafting this post on September 22, but delayed sending it because several new items had just come across the transom. As other responsibilities kept interfering with returning my attention to this post, more time passed and more new items emerged. With apologies to these authors and our readers, here's a recap of published contracts scholarship that hit my in-box before the end of September.
Bradford P. Anderson, Casenote, Edwards v. Arthur Andersen LLP: There is Not a "Narrow-Restraint" Exception to California's Prohibition of Noncompetition Agreements, and a General Release May Not Mean What it Says, 39 Golden Gate U. L. Rev. 163 (2009).
Ralph C. Anzivino, The Disappointed Expectations Test and the Economic Loss Doctrine, 92 Marq. L. Rev. 749 (2009).
Orkun Askeli, Contractual Prohibitions on Assignment of Receivables: An English and UN Perspective,  J. Bus. L. 650.
Oren Bar-Gill, The Law, Economics and Psychology of Subprime Mortgage Contracts, 94 Cornell L. Rev. 1073 (2009).
Alan Barron, Acceptance by Silence and Insurance Contracts,  J. Bus. L. 633.
Shawn J. Bayern, Rational Ignorance, Rational Close-Mindedness, and Modern Economic Formalism in Contract Law, 97 Cal. L. Rev. 943 (2009).
Michael Bridge, Book Review (reviewing Franco Ferrari ed., The CISG and Its Impact on National Legal Systems (2008), and Andre Janssen & Olaf Meyer eds., CISG Methodology (2009)), 72 Modern L. Rev. 867 (2009).
Caroline N. Brown, North Carolina Common Law Parol Evidence Rule, 87 N.C. L. Rev. 1699 (2009).
Michael Faure, Towards a Maximum Harmonization of Consumer Contract Law?!?, 15 Maastricht J. Eur. & Comp. L. 433 (2008).
Peter L. Fitzgerald, The International Contracting Practices Survey Project: An Empirical Study of the Value and Utility of the United Nations Convention on the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts to Practitioners, Jurists, and Legal Academics in the United States, 27 J.L. & Com. 1 (2008).
Sirko Harder, The Exculpation of Repudiating Parties by a Right to Terminate the Contract,  J. Bus. L. 679.
Stephen L. Hayford, Building a More Perfect Beast: Rethinking the Commercial Arbitration Agreement, 7 DePaul Bus. & Com. L.J. 437 (2009).
Martín Hevia, Separate Persons Acting Together -- Sketching A Theory of Contract Law, 22 Canadian J.L. & Juris. 291 (2009).
Katie Jory, Note, Mandatory Arbitration Clauses in Payday Lending Loans: How the Federal Courts Protect Unfair Lending Practices in the Name of Anti-protectionism, 24 Ohio St. J. Disp. Resol. 315 (2009).
Christopher Kee & Edgardo Muñoz, In Defence of the CISG, 14 Deakin L Rev. 99 (2009).
Matthew J.B. Lawrence, Note, In Search of an Enforceable Medical Malpractice Exculpatory Agreement: Introducing Confidential Contracts as a Solution to the Doctor-Patient Relationship Problem, 84 N.Y.U. L. Rev. 850 (2009).
Pey-Woan Lee, Inducing Breach of Contract, Conversion and Contract as Property, 29 Oxford J. Legal Studs. 511 (2009).
Susan J. Martin-Davidson, Selling Goods Internationally: Scope of the U.N. Convention on Contracts for the International Sale of Goods, 17 Mich. St. J. Int'l L. 657 (2008-09).
Scott E. Masten, Long-Term Contracts and Short-Term Commitment: Price Determination for Heterogeneous Freight Transactions, 11 Am. L. & Econ. Rev. 79 (2009).
Alexander M. Meiklejohn, Redressing Harm Caused by Misleading Franchise Disclosure: A Role for the Uniform Commercial Code, 3 Entrepreneurial Bus. L.J. 435 (2009).
Ken Moon, Intangibles as Property and Goods,  N.Z.L.J. 228.
John V. Orth, Leases: Like Any Other Contract?, 12 Green Bag 2d 53 (2008).
Fernando M. Pinguelo & Timothy D. Cedrone, Morals? Who Cares About Morals? An Examination of Morals Clauses in Talent Contracts and What Talent Needs to Know!, 19 Seton Hall J. Sports & Ent. L. 347 (2009).
Jed S. Rakoff, Shylock v. Antonio on Appeal, 12 Green Bag 2d 481 (2009).
Michael Robertson, The Impossibility of Textualism and the Pervasiveness of Rewriting in Law, 22 Canadian J.L. & Juris. 381 (2009).
Hans Smit, Contractual Modifications of the Arbitral Process, 113 Penn St. L. Rev. 995 (2009).
S.I. Strong, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?, 30 Mich. J. Int'l L. 1017 (2009).
Glenn D. West & W. Benton Lewis, Jr., Contracting to Avoid Extra-Contractual Liability -- Can Your Contractual Deal Ever Really Be The "Entire" Deal?, 64 Bus. Law. 999 (2009).
Simon Whittaker, A Framework of Principle for European Contract Law?,  L.Q. Rev. 616.
* * *
In addition, a recent "Special Report 2009" issue of Transactions: The Tennessee Journal of Business Law devotes its entirety to transcripts of and papers from the conference "Teaching Drafting and Transactional Skills -- The Basics and Beyond," which Emory University School of Law's Center for Transactional Law and Practice hosted in May 2008. Many of the panels and papers addressed issues relevant to teaching the first-year Contracts course; others focused more on legal writing courses or upper-level transactional courses. The entirety of the Special Report is available on-line.
[Keith A. Rowley]
November 13, 2009
A Corollary to the Totten Doctrine: Wilson v. CIA
As previously discussed on the blog, the Totten doctrine requires dismissal of a case when "the very subject-matter" of the case is a state secret. Today's New York Times reports that the Second Circuit has dismissed Valerie Wilson's suit against the Central Intelligence Agency, in which she claimed that the Agency violated her free-speech rights when it required redaction of her 2007 book, Fair Game.
As reported in the Times, the Second Circuit's reasoning is based on a contractual override of Wilson's 1st Amendment rights: “When Ms. Wilson elected to serve with the C.I.A., she accepted a life-long restriction on her ability to disclose classified and classifiable information.” The problem is that at least some of the information in question had already been leaked to the public by the government and in any case was made public and widely reported on. No matter, says the court. The information is still classified, and she is still bound, even if governmental breaches “may warrant investigation.”
Although the entire panel voted to dismiss, Judge Katzmann concurred:
I agree with the majority that Ms. Wilson’s pre-2002 dates of service, if any, were originally properly classified by the CIA, have never been officially declassified, and were never officially disclosed by the CIA. Therefore, I also agree that this Court has no power to free Ms. Wilson from the secrecy agreement that she signed upon commencement of her employment with the CIA. At the same time, I write to observe that the CIA’s position in this litigation blinks reality in light of the unique facts of this case and the policies behind the doctrines at issue here. Indeed, the CIA’s litigation posture may very well be counterproductive to its purposes.
Judge Katzmann proceeds to explain that the CIA’s justification for the redaction was that the dates of Ms. Wilson’s service ought not to be revealed. However, those dates had already been revealed in a CIA-authored document, submitted on CIA letterhead and entered in the public record as part the Congressional Record in 2006. Judge Katzmann thus argued that while, as a legal matter, the court is without power to order the CIA to permit the release of classified information, whether or not it was already in the public domain, as a matter of policy, it is harmful to the reputation of the CIA for it to disseminate information and then also attempt to suppress it.
The opinion can be found here.
Activision Avatar Update: I'm Just a.... Honky Tonk Woman
We had previously mentioned Courtney Love’s threatened lawsuit against Activision for breach of contract – namely, for creating a game “Band Hero” that allows players to use a Kurt Cobain avatar to sing other artists’ songs. Now, the band No Doubt has sued Activision for using Gwen Stefani’s avatar to sing other artists’ songs, such at the Stones’ Honky Tonk Woman. As reported by attorney Patti Millett at Huffington Post, the lawsuit calls these performances "virtual karaoke circus act[s]."
Millett provides a detailed analysis:
Millett provides a detailed analysis:
No Doubt admittedly granted Activision a license to use the names and likenesses of its members in the Band Hero game and on certain advertising. No Doubt claims, however, that it was never told that the virtual likenesses of its members, so called "avatars," could be manipulated by gamers so that they perform songs by other artists and sing in voices other than their own.
No Doubt's lawsuit specifically complains about the fact that the Gwen Stefani avatar can be made to perform the Rolling Stone's hit "Honky Tonk Woman" in a male voice. No Doubt apparently means no offense to Mick Jagger and Keith Richards -- the complaint specifically states that No Doubt are avid fans of the Rolling Stones -- they just don't like having their images manipulated in a way they did not approve. The lawsuit cites as a second problematic example the fact that the avatar of No Doubt bassist Tony Kanal can be made to sing lead vocals on No Doubt songs in a female voice.
No Doubt are not the first rockers to complain about Activision's manipulation of rock star avatars. In September, Courtney Love and Kurt Cobain's former Nirvana band mates Dave Grohl and Krist Novoselic strongly objected to the fact that Cobain's avatar could be used to play songs from other artists on Guitar Hero 5, although no lawsuit was filed (at least not that this writer is aware of).
The question to be decided in the lawsuit is whether the license granted by No Doubt allows Activision to do what it did. Ultimately, this will be a question of contract interpretation.
No Doubt's lawyers appear to have some concern that a judge or jury may find that the language of the contract allows Activision to do what it did because the complaint includes causes of action for fraudulent inducement and rescission, in addition to a claim for breach of contract. No Doubt's claims for fraudulent inducement and rescission in essence say that No Doubt was misled into signing the contract and that if the members had known that Activision had intended to manipulate their avatars, they would never have signed the contract.
Claims for fraudulent inducement typically face a significant legal hurdle known as the parol evidence rule, which prohibits parties from introducing evidence of oral statements to vary the terms of a written contract.
No Doubt's complaint alleges that its agreement "prohibits" the use of the No Doubt avatars without the prior written consent of No Doubt. The contract, however, is not as clear as No Doubt's complaint suggests, which may turn out to be a good thing for the band.
Under California law, if a contract is ambiguous, evidence of oral statements made prior to the execution of the contract can be introduced to help explain the terms of the contract. In No Doubt's case, the contract (which is attached to the publicly-filed complaint) expressly provides that the likeness of the band members "as implemented in the game" is subject to the prior written approval of the band. This provision may be found legally ambiguous because it is unclear whether "as implemented in the game" means the way the avatars look, or also what they can be made to do (i.e., sing "Honkey Tonk Woman" in a male voice). Activision will undoubtedly advocate the former, and No Doubt the latter.
One can only assume that Activision has something in writing from No Doubt signing off on the general appearance of the No Doubt avatars. Such a writing will boost Activision's argument that No Doubt's written approval rights were limited to the general appearance of the characters, and that even if they were not, No Doubt waived any additional approval rights by providing written consent.
No Doubt's complaint, however, makes reference to evidence which, if true, is likely to be devastating to Activision's case. No Doubt claims that Activision represented both before and after the contract was signed "that its name and likeness would only be used in conjunction with three selected No Doubt songs within Band Hero."
If No Doubt can prove these statements were made (or better yet get some Activision executive to admit that he or she said it), Activision will be hard-pressed to prevail on the claim that it had the right to make Gwen Stefani sound like Mick Jagger or otherwise manipulate the No Doubt avatars.
What could possibly be more fun than a band called No Doubt arguing that a contract clause is ambiguous? Or, that the singer famous for the lyric "I'm just a girl, all pretty and petite" is now singing about "a gin-soaked bar-room queen in Memphis"?
Compare and contrast:
[Meredith R. Miller]
November 11, 2009
Weekly Top TenTOP 10 Papers for Journal of Contracts & Commercial Law
September 12, 2009 to November 11, 2009
|1||611||The Death of Big Law |
Larry E. Ribstein,
University of Illinois College of Law,
Date posted to database: September 4, 2009
Last Revised: September 10, 2009
|2||447||Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System |
Christopher Lewis Peterson,
University of Utah - S.J. Quinney College of Law,
Date posted to database: September 9, 2009
Last Revised: October 7, 2009
|3||239||Securitization: Cause or Remedy of the Financial Crisis? |
Adam J. Levitin, Andrey D. Pavlov, Susan M. Wachter,
Georgetown University - Law Center, Simon Fraser University - Finance Area, University of Pennsylvania - The Wharton School - Real Estate Department,
Date posted to database: August 28, 2009
Last Revised: September 8, 2009
|4||174||The Effect of the Consumer Financial Protection Agency Act of 2009 on Consumer Credit |
David S. Evans, David S. Evans, Joshua D. Wright,
University College London, University of Chicago Law School, George Mason University - School of Law, Faculty,
Date posted to database: October 7, 2009
Last Revised: October 11, 2009
|5||172||Gods at War: Shotgun Takeovers, Government by Deal and the Private Equity Implosion |
Steven M. Davidoff,
University of Connecticut School of Law,
Date posted to database: October 2, 2009
Last Revised: October 6, 2009
|6||171||No Big Deal: The GM and Chysler Cases in Context |
Stephen J. Lubben,
Seton Hall University - School of Law,
Date posted to database: September 5, 2009
Last Revised: November 5, 2009
|7||159||The Future of Securitisation: How to Align Incentives? |
Ingo Fender, Janet Mitchell,
Bank for International Settlements (BIS), National Bank of Belgium - Department of Financial Stability,
Date posted to database: September 14, 2009
Last Revised: November 9, 2009
|8||128||The 2005 Rules of the Australian Centre for International Commercial Arbitration - Revisited |
Simon Greenberg, Luke R. Nottage, Romesh Weeramantry,
International Chamber of Commerce (ICC), University of Sydney - Faculty of Law, City University of Hong Kong (CityUHK),
Date posted to database: September 28, 2009
Last Revised: September 28, 2009
|9||105||Breach Is For Suckers |
Tess Wilkinson-Ryan, David A. Hoffman,
University of Pennsylvania Law School, Temple University - James E. Beasley School of Law,
Date posted to database: August 15, 2009
Last Revised: September 28, 2009
|10||104||A 'Standard Clause Analysis' of the Frustration Doctrine and the Material Adverse Change Clause |
Andrew A. Schwartz,
University of Colorado Law School,
Date posted to database: September 3, 2009
Last Revised: September 13, 2009
Celebrities, Sex Tapes, Contracts and a Public Service Announcement [Also: JLo Gets a TRO]
This week, ContractsProf Blog reads that Jennifer Lopez has sued her ex-husband for attempting to find a buyer for a "steamy home video of the couple's honeymoon." An LA judge granted JLo a TRO. JLo claims that her ex is in breach of a contract, pursuant to which he agreed not to publish details of their relationship. The AFP reports:
According to court papers filed on behalf of Lopez on Friday, the singer-actress's ex-husband Ojani Noa is attempting to find a buyer for a film which includes steamy home video of the couple's honeymoon.
Lopez is claiming breach of contract and seeking 10 million dollars in damages over Noa's attempts to sell the film. Film-maker Ed Meyer is also named in the suit, records show.
The case is the second lawsuit filed by Lopez, 40, against Noa, who she married in 1997 and divorced 11 months later.
In the first case Lopez successfully sued to prevent publication of a tell-all book Noa was writing about the couple.
Lopez was eventually awarded 545,000 dollars by an arbitrator for breach of contract. Lopez said Noa had signed an agreement before their wedding agreeing not to publish details of their relationship.
Lopez's second husband was choreographer Cris Judd, whom she married in September 2001 and divorced less than nine months later. Lopez and singer Marc Anthony were married in June 2004 and are the parents of twins.
Free public service announcement: think before you make a sex tape. Counteract your cognitive bias. There is an overoptimism problem here - you may go into the situation thinking you are with someone who will never use the video to extort money from you or profiteer. There is, however, ample empirical evidence that your relationship is not guaranteed last. If you *must* make a sex tape, be the one to keep sole possession of it.
[Meredith R. Miller]
November 9, 2009
I hold two two-hour review sessions for my four-credit contracts course. I spend most of the time just outlining the course for my students. The last half hour is spent walking them through a model answer to a practice essay problem that I hand out in advance and pray with my agnostic faith that they attempt to answer for themselves in advance.
Perhaps. But here's how I justify it: one of my main pedagogical goals, and I make no claim to originality here, is to get students to think of law school as being about much more than just learning a bunch of rules. Nobody would need a lawyer if they could simply use Google to find the answers to their legal questions. Rather, lawyers help solve complex problems that may well fall between clear legal rules or where several competing rules may apply. In order to persuade a court to apply the rules most favorable to their clients or to apply the rules in the most favorable ways, lawyers need persuasive tools beyond knowledge of the black-letter law.
We spend most of the semester working on those skills through broad-ranging and perhaps rambling discussions on the interaction of law and policy. If students are too fixated on learning rules, they can't fully engage in what I consider the more important part of the course. In any case, in lots of areas of contracts doctrine, the rules are far from fixed.
I remind my students throughout the semester that I will feed them some red meat at the end of the semester. I hope to thereby enable them to relax and partake of the joy-filled fun ride that is the law of contracts.