ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, December 10, 2009

Going First

Bluebooks Whew!  My contracts students are taking their exam right now.  This year, our registrar scheduled the contracts exam first, which meant that my students' first-year angst was concentrated on my course.  The result was probably better exam preparation overall but a much higher ratio of procedural to substantive questions than I am used to.  What I am calling procedural questions came in three categories:

1. I think more students than usual availed themselves of our electronic exam archive, which includes model answers to my past exams.  There were follow-up questions on whether I prefer IRAC or CREAC, whether they should spot one big issue and state the general rule or spot mini-issues and mini-rules etc., and whether the issues should be highlighted and underlined or set apart with bullets, on the one hand, or simply worked into a paragraph on the other.

2. I allow my students to bring their statutory supplements with them to the exam.  I don't mind if their supplements include some highlighting.  Every year, the students ask me if they can tab their supplements.  In the past, I have said no, because the supplement already has printed tabs and each section also has a table of contents, which is all they really need.  This year, since students really seem to want to be allowed to tab and since I regard it as neither a help nor a hindrance, I permitted them to do it.  The result was a flood of questions about what kind of tabbing was permissible and what kind of tabbing was optimal.  Ugh.  I think I will revert to my no-tabs rule.

3. I recommend to my students that they do not consult supplementary materials, because such supplements are apt to create confusion, as contracts doctrine can be organized with infinite variation, some doctrines go by multiple names and most importantly, first-year students have a hard time distinguishing between doctrines that I have covered and those that I have not.  As a result, consultation of outside materials can induce panic.  I recommend Farnsworth's one-volume treatise as a reference if they want clarification on a given topic, and I recommend Blum's Examples and Explanations book if they want to work through problems.  Many students do not take my recommendation to heart and thus want me to comment on the value of various supplements that I have never read or to tell them whether or not the exam will cover topic X, which they do not remember talking about in class but have certainly heard of somewhere.

So, I can now provide answers to the multiple choice section of the exam as envisioned by my students:

1. The correct answer is E: this material was not covered in the course.

2. The correct answer is B: there was no meeting of the minds.

3. The correct answer D: yellow is the best color for a UCC tab.

4. The correct answer is A: for the purposes of this course, the rule stated in the casebook trumps the rule stated in Blum's book to the extent of any contradition, and the rule stated in the Blum book trumps what you learned in the BarBri review, to the extent of any contradition.

5. The correct answer is E: any reasonably well-organized presentation of the material is acceptable. . . and

The answer to all other questions is: the mailbox rule.

[Jeremy Telman]

December 10, 2009 in Teaching | Permalink | Comments (0) | TrackBack (0)

Recording Review Sessions

As I've mentioned before, I hold review sessions at the end of the semester for my contracts courses.  I take about four hours (two, two-hour review sessions) to orally outline the course.  I also record the sessions so that students who cannot attend can watch later. 

But this is where the trouble starts.  In most situations, I am not a vain person.  In these videos, however, my butt looks like it has its own zip code, I seem to be in need of a manzier, and my neanderthal brow overhangs my eyes so as to render them invisible.  Well, one picture is worth a thousand words; here's a still from my most recent review session (I was having a bit of difficulty with my PowerPoint presentation):

Meatball Father
Shouldn't my law school pay to provide the sort of technical support that would permit the review session recordings to show me as I really am?

Body Builder
[Jeremy Telman] 

December 10, 2009 in Teaching | Permalink | TrackBack (0)

Wednesday, December 9, 2009

Social Science Research Network's Weekly Top Ten

TOP 10 Papers for Journal of Contracts & Commercial Law

October 10, 2009 to December 9, 2009

Rank Downloads Paper Title
1 211 The Effect of the Consumer Financial Protection Agency Act of 2009 on Consumer Credit 
David S. EvansDavid S. EvansJoshua D. Wright 
University College London, University of Chicago Law School, George Mason University School of Law 
2 195 Gods at War: Shotgun Takeovers, Government by Deal and the Private Equity Implosion 
Steven M. Davidoff 
University of Connecticut School of Law 
3 176 The 2005 Rules of the Australian Centre for International Commercial Arbitration - Revisited 
Simon GreenbergLuke R. NottageRomesh Weeramantry 
International Chamber of Commerce (ICC), University of Sydney - Faculty of Law, City University of Hong Kong (CityUHK) 
4 146 ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining 
Eric A. Posner 
University of Chicago Law School
5 132 Conflict of Laws and Choice of Law 
Erin A. O'HaraLarry E. Ribstein 
Vanderbilt University School of Law, University of Illinois College of Law 
6 123 A Critique of Evans and Wright’s Study of the Consumer Financial Protection Agency Act 
Adam J. Levitin 
Georgetown University Law Center
7 107 Duress in Contracts: An Economic Analysis 
Péter Cserne 
Tilburg Law and Economics Center (TILEC) 
8 106 Fannie Mae, Freddie Mac, and the Home Mortgage Foreclosure Crisis 
Christopher Lewis Peterson 
University of Utah, S.J. Quinney College of Law 
9 88 Repeal the Safe Harbors 
Stephen J. Lubben 
Seton Hall University School of Law
10 87 The Role of International Law Firms and Multijural Human Capital in the Harmonization of Legal Regimes 
Gillian Hadfield 
USC Law School and Department of Economics

[Jeremy Telman]

December 9, 2009 in Recent Scholarship | Permalink | TrackBack (0)

Jennifer Lopez Suing Ex-Husband for Breach of Confidentiality

JLO  According to Wikipedia's entry on Jennifer Lopez, she had a brief marriage with the Cuban-born Ojani Noa, whom she met when he was a waiter in a Miami restaurant.  They divorced in 1998, and Lopez filed her first lawsuit against Noa in 2006.  The result was an order enjoining Noa from publishing a tell-all book about their relationship and that Noa pay Lopez $545,000 for breach of a confidentiality agreement In 2009, according to Wikipedia, it was reported that Noa is going to do a film about Lopez titled, "How I Married Jennifer Lopez: The JLo and Ojani Noa Story", which will include "11+ hours of previously unseen home video footage". In November 2009, it was announced that Lopez is suing to enjoin Noa from releasing the footage and for $10 million for invading her privacy and for breach of contract, citing the parties' confidentiality agreement. reports that Noa counter-sued last week and will be seeking $100 million because JLo and others are interfering with the production of Noa's "mockumentary."  As reported in the New York Daily News, the planned movie was rumored to include over eleven hours of footage from the couple's honeymoon, some of which was said to be of the naked kind.  According to the Daily News:

 Lopez's side says the movie-making crew wants to sell 11-plus hours of footage that depicts Lopez "in a revealing lack of clothing, and in sexual situations, especially in the hotel room from (her and Noa's) honeymoon."

 But on, we get a slightly different version of plaintiff's allegations:

"There wasn't anything close to sex in it," Lopez's attorney John Lavely told PEOPLE. "We never alleged that. But it's still private and personal to my client."

It's all good.  The "mockumentary" that reports (mockingly perhaps?) on Noa's life as a Cuban immigrant has now been retitled "Escape."

[Jeremy Telman]

December 9, 2009 in Celebrity Contracts, In the News, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 8, 2009

Jury Finds Sempra Energy Not in Breach of Contract

Hydroelectric dam reports on what appears to have been a very interesting contracts dispute between Sempra Energy, owner largest U.S. natural gas distributor and the the California Department of Water Resources, which alleged that Sempra had breached an $6.6 billion agreement that it entered into with the state in 2001 because Sempra failed to build a power plant on time.  

Sempra initiated the suit in 2002 to prevent the state from canceling the 2001 agreement after the state learned that Sempra was planning to purchase electricity on the open market and resell it to the state rather than use a new power plant as provided in the contract.  Although the new power plant was supposed to be up and running in 2002, it was not completed and operational until 2003.  The jury agreed with Sempra that the company was permitted to provide the state with energy from an alternative source when forcing compliance with the agreement would have been commercially unreasonable.   

According to one of Sempra's attorneys, the jury found that California was not harmed by the delay and got the full benefit of its bargain.  One attorney for California saw things differently, telling the jury: “Sempra has made hundreds of millions of dollars of profits from this contract and never provided the state with one dime’s worth of power from [the new plant]."  Apparently, compliance with the contract became a less attractive option for Sempra when energy prices dropped and it became cheaper to buy electricity than to boost capacity in California.  Sempra argued that the contract provided the option for Sempra to behave precisely as it did if cheaper sources of electricity were available.

[Jeremy Telman]

December 8, 2009 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, December 7, 2009

Hurley v. Eddingfield: It's the Law and It's Ethical

Physician  I always start my contracts course with Hurley v. Eddingfield, in which the court held that a doctor has no contractual obligation to treat his own patient and need give no reason or excuse for his refusal to do so.  The case illustrates the strength of our notions of freedom of contract and also permits us to discuss the interaction of common law doctrines with other legal or regulatory regimes.  

Now I have in the past crossed swords with The New York Times Magazine's ethicist, Randy Cohen.  I have chided him for too readily conflating the lawful with the ethical.  Mr. Cohen has always responded to my criticisms, which is all one can ask for, but he gives no ground.  Still, I was cheered by a recent column addressing the etiquette of car phones.  The writer boasted of her hands-free car phone and of her habit of informing people when other people are in the car.  Cohen responded, in part, as follows:

This should be handled by never using the phone while driving. To do so increases your chance of an accident fourfold, akin to driving drunk. And there is no significant difference between speaking on a hand-held or hands-free device. (As your local legislators knew or should have known when they legalized the latter. Ignorant or cynical? Let’s not rush to judgment. They might merely have been possessed by demons.)
My point exactly.  But the comment applies to much of what emerges from our legislature.  

In any case, having criticized Mr. Cohen in the past. I must now give him his props for his nuanced response to a Hurley-like question that arose in yesterday's column. The writer is a doctor who did not want to take on a notorious med-mal attorney who had in the past sued the doctor's wife.  Cohen answered as follows:

As to this particular would-be patient, you acted reasonably. Because you and your wife have a history that causes you to resent him and his cohort, your ability to view him dispassionately and thus act in his best medical interest may be compromised. Therefore, not only may you decline to take him on; you should decline. I might feel different if you practiced medicine in a provincial town on the Russian steppes, like some brooding doctor out of Chekhov, with no other physician within a thousand miles. But in your actual situation, go forth guiltlessly.
And the good doctor can do so all the more easily, as the attorney found some other sucker -- oops, typo -- doctor to treat him.

[Jeremy Telman]

December 7, 2009 in Commentary, Famous Cases | Permalink | Comments (0) | TrackBack (0)

George Eliot on "Going to Law"

The notion of the honest lawyer seems to have been a stranger to the 19th-century English novel.  Here is how George Eliot describes the prospects of a law suit in The Mill on the Floss:

George_Eliot_3  Mr. Tulliver was a strictly honest man, and proud of being honest, but he considered that in law the ends of justice could only be achieved by employing a stronger knave to frustrate a weaker. Law was a sort of cock-fight, in which it was the business of injured honesty to get a game bird with the best pluck and the strongest spurs.

. . .

"I hope and pray he won't go to law," said Mrs. Moss, "for there's never any knowing where that'll end. And the right doesn't allays win.  This Mr. Pivart's a rich man, by what I can make out, and the rich mostly get things their own way."

[Jeremy Telman]

December 7, 2009 in Books, Quotes | Permalink | Comments (1) | TrackBack (0)