ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, January 1, 2010

New Jersey Courts Eschews Solomonic Opinion

Judgement_of_Solomon  Last month, we reported on a New York Times article about all the legal issues surrounding technologically assisted reproduction.  Yesterday, the Times checked in with an update about one of the situations discussed.

As we summarized last time, 

The other story involves Donald Robinson and Sean Hollingsworth, a gay couple residing in New Jersey and married in California in 2008.  Mr. Hollingsworth served as a sperm donor and the couple used a donated egg.  The fertilized egg was then implanted in Mr. Robinson’s sister, who was to act as surrogate and as a doting aunt.  But Ms. Robinson’s relationship with her brother unraveled during the pregnancy,  a difficult one, which produced twins.  The court in Baby M’s state has temporarily awarded shared custody of the children, with a trial slated for April.
According to the New Year's Eve edition of the Times, New Jersey Superior Court Judge Francis P. Schultz has now ruled in favor of the surrogate mother, granting her primary custody of the now three-year-old girls she bore but to whom she is not genetically related.  Note, this was a golden opportunity for the judge to get all Old Testament on the warring factions by splitting the babies.  There being twins, the judge could have done so bloodlessly, thus perhaps forcing a reconciliation between the surrogate mother and her brother.  

According to the Times, Judge Schultz cited to the Baby M case and extended its reasoning.  Judge Schultz found the surrogacy contract here violated the same public policy considerations at issue in Baby M.  The Judge apparently did not consider the lack of a genetic link between the surrogate mother and the twins relevant to the analysis, which still just comes down to the best interests of the children under New Jersey law.

The money quote runs as follows:

“The surrogacy contract,” the Baby M court found, “is based on principles that are directly contrary to the objectives of our laws. It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and maternal fitness.”

The odd thing about that language is that the anonymous egg donor could also claim to be the "mother" in this case.  

[Jeremy Telman]

January 1, 2010 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, December 31, 2009

New Year's Greetings from the ContractsProfs

Martini  On behalf of my fellow bloggers, I wish our readers a happy and healthy 2010.  

May all your dealings be mutually beneficial.

May all your terms be clear and unambiguous, and 

May all your odious contractual obligations be avoidable.

[Jeremy Telman]

December 31, 2009 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Contract Dispute in My Local Paper

 I knew my subscription to the local paper would pay off at some point.  Today's edition of the Post Tribune includes an account of what looks like an interesting contracts dispute.  There are some ambiguities in the report, but making a few reasonable inferences, I think the facts are as follows:

Lake County contracted with Amereco Engineering, Inc. in 1998.  The contract was renewed in 2001 and 2004.  In 2006, Lake County cancelled the contract on the ground that the projects to which the contract related had not been funded.  In the report, Lake County's attorney claims that a contract for which there are no appropriations is void.  I suspect that what is really intended is that the contract was subject to a condition precedent which did not occur, excusing Lake County from performing any further contractual obligations.

Fair enough, but Amereco contends that Lake County is making use of some of Amereco's designs on projects that have been funded.  Amereco claims that it is entitled to $68,425 for that design work.  Amereco further contends that the projects to which its contract related were funded but that after a change in the composition of the County Council, the County simply hired a different engineering firm to proceed with the work.  Amereco thus contends that it is also entitled to the full value of the contract, which it puts at $1 million.  

Factual development in this case should be interesting.

[Jeremy Telman]

December 31, 2009 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 30, 2009

SSRN Weekly Top Ten


Some new titles hit the big time this week.  Columbia's Robert Scott must be delighted to have two top-ten hits in the same week.

 RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law 

October 31, 2009 to December 30, 2009

RankDownloadsPaper Title
1165ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining 
Eric A. Posner
University of Chicago - Law School
2159Conflict of Laws and Choice of Law 
Erin A. O'HaraLarry E. Ribstein
Vanderbilt University School of Law, University of Illinois College of Law
3140A Critique of Evans and Wright’s Study of the Consumer Financial Protection Agency Act 
Adam J. Levitin
Georgetown University - Law Center
4128Contract Interpretation Redux 
Alan SchwartzRobert E. Scott
Yale Law School, Columbia University - Law School
5114Duress in Contracts: An Economic Analysis 
Péter Cserne
Tilburg Law and Economics Center (TILEC)
696Repeal the Safe Harbors 
Stephen J. Lubben
Seton Hall University - School of Law
781Hoffman v. Red Owl Stores and the Limits of the Legal Method 
Robert E. Scott
Columbia University - Law School
878Contract Enforcement and the Harm Principle 
Brian Bix
University of Minnesota Law School
978Easterbrook on Copyright 
Randal C. Picker
University of Chicago - Law School
1075How to Critique & Grade Contract Drafting Assignments 
Robin Boyle
St. John's University School of Law

[Jeremy Telman]

December 30, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 29, 2009

Farewell Post from Alan White

Despite all my best intentions, I was not able to post weekly or on any other regular basis about what is still one of my favorite aspects of this job--teaching contracts.  My hat is off to colleague Jeremy Telman, who manages to teach, write and blog with one hand while writing limericks and even real poetry with the other.  Thanks to Jeremy and the other blogmeisters for inviting me, and I promise to do better next year!

Likewise, although I had grandiose plans for teaching skills, and teaching across the curriculum, my collaboration with our legal writing faculty trailed off as the semester progressed.  I did manage to assign two drafting (and one redrafting) exercises and to conduct a class session on the basic components of a written contract, which was perhaps of more value than three or four sessions on nineteenth century consideration cases.  The exercises that seem to work best are drafting problems suggested by cases the students have read.  In order to incorporate contract drafting into the class on a more regular basis, I am thinking that it will be essential to spend some time prior to the semester preparing the assignments and thinking carefully about how I will provide feedback.   One colleague suggested using a research/teaching assistant for this purpose.  

I also want to thank the community of contracts teachers, and particularly friends in the bankruptcy and financial services corners of the field, who have been so forthcoming with their own class exercises and problems, lecture notes, and other vital teaching resources.  Curiously, our teaching profession, unlike the profession and practice of law, does not come with continuing professional education requirements, or even much infrastructure for the purpose, apart from the excellent AALS workshops for new law teachers ( ).  It has been a pleasant surprise to find that senior scholars, and even casebook authors, will almost invariably help out a new teacher and take the improvement of our teaching quite seriously.  To new and aspiring contracts profs out there, my advice is:  don’t be shy, just ask, even if he or she is famous.  

Finally, I want to mention that my legal research and writing colleagues have been among my most valuable consultants on questions of pedagogy, and I thank them as well for the excellent and sometimes unrecognized work that they do in what is, or ought to be, our central mission, training lawyers.  Happy New Year! and now back to those exams…

[Posted, on Alan's behalf, by Jeremy Telman]

December 29, 2009 in Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, December 28, 2009

Salahis: Famous for Breach of Contract

GateTareq and Michaele Salahi have become famous for making a surprise appearance at a White House dinner, known as the "gatecrashing incident," but a recent Washington Post report suggests that they really should be famous for breach of contract.  According to the report, the stylish couple has been named, individually, collectively or through a business that they own, in 30 law suits since 2004.  The suits range from the petty (a collection action for $4000 worth of hair extensions) to the slightly less petty (a claim that the couple owes a promoter $25,000 for flying a band to a charity event).  Three couples who held their weddings at the Salahis’ Oasis vineyard have sued, claiming that the wedding bill included large, unexplained charges.

According to the Post report, some of the suits were settled out of court, in some the Salahis were ordered to pay, and in a few cases, they won.  The report recounts a number of incidents in which, despite settlement agreements or court orders to do so, the Salahis or their company have not paid their creditors.

[Jeremy Telman]

December 28, 2009 in Celebrity Contracts, In the News | Permalink | Comments (0) | TrackBack (0)