Friday, February 26, 2010
The 2010 Spring Contracts Conference begins today at UNLV's William S. Boyd School of Law. Here's Friday's line-up:
The Contract Law System and Power – Past, Present, and Future
Chair: Jay M. Feinman (Rutgers-Camden)
Hila Keren (Hebrew U. of Jerusalem), Considering Affective Consideration
Nancy S. Kim (Cal Western), ‘Wrap Contracts as Sword, Shield, Crook, and Drawbridge
Amy J. Schmitz (Colorado), Pizza-Box Contracting: An Empirical Exploration of Consent
Danielle Kie Hart (Southwestern), Smoke, Mirrors & Contract Law
Incomplete Information and Contract Law
Chair: Keith A. Rowley (UNLV)
Robert Anderson (Pepperdine), Information, Incentives, and Disclosure in the Law of Contracts
H. Allen Blair (Hamline), No-Reliance Clauses
Yair Listokin (Yale), Bayesian Interpretation
Shawn J. Bayern (Florida State), Rational Ignorance, Rational Closed-Mindedness, and Modern Economic Formalism in Contract Law
Contract Law’s Intersection with Business Law
Chair: Nancy B. Rapoport (UNLV)
Daniel S. Kleinberger (William Mitchell), Battle Report from the Undiscovered Territory – The Law of “Contractual Organizations” Continues its Silent War on the Common Law of Contract
Andrew A. Schwartz (Colorado), A “Standard Clause Analysis” of the Frustration Doctrine and the Material Adverse Change Clause
Lydie N. Pierre-Louis (St. Thomas (FL)), Mini-Tender Offers: The Lack of Federal Jurisdiction and the Failure of Fundamental Contract Law Principles to Protect Investors
Keynote: Omri Ben-Shahar (U. of Chicago), The Failure of Mandated Disclosure
Arbitration and Unconscionability in Rent-a-Center West v. Jackson and Elsewhere
Chair: Jean R. Sternlight (UNLV)
Charles L. Knapp (UC-Hastings), Blowing the Whistle on Mandatory Arbitration: Unconscionability as a Signaling Device
Karen Halverson Cross (John Marshall (IL)), Letting the Arbitrator Decide? Unconscionability and the Allocation of Authority Between Courts and Arbitrators
Christopher R. Drahozal (Kansas), Rent-A-Center and Institutional Arbitration Rules
Thomas J. Stipanowich (Pepperdine), Contracts and Conflict Management: Another Look
Forming Contracts and Similar Relationships
Chair: James W. Fox, Jr. (Stetson)
Michael Pratt (Queen's U. (Ontario)), What is a Promise?
Val D. Ricks (South Texas), The Continued Relevance of Consideration
Janet Ainsworth (Seattle), Beyond Status and Contract: Relational Estoppel as a Source of Rights and Obligations in Intimate Relationships
Andrea B. Carroll (LSU), Reviving Proxy Marriage
Vive la Différence!: Comparative Contract Theory
Chair: Daniel D. Barnhizer (Michigan State)
Robin J. Effron (Brooklyn), Revisiting The Death of Contract: Gilmore’s Thesis in Comparative Perspective
Wayne R. Barnes (Texas Wesleyan), French Subjective Theory of Contract: Separating Rhetoric from Reality
Tadas Klimas (Kaunas, Lithuania), Lessons American and Continental Contract Theory Can Teach One Another
Franklin G. Snyder (Texas Wesleyan), Cross-Cultural Adoption of Legal Rules: The Case ofHadley v. Baxendale
[Keith A. Rowley]
Thursday, February 25, 2010
In Chapter 32 of William Makepeace Thackeray's Vanity Fair, Jos Sedley, whom Thakeray describes as a "very stout, puffy man, in buckskins and Hessian boots," panics that the allied forces had been overrun in Belgium and that Napoleon's army will give no quarter to British men, even if, like Jos, they happen to be civilians. He therefore rambles around Brussels in search of a horse that can carry his portly frame out of the city. He thus falls prey once again to Thackeray's leading character, not to say heroine, Rebecca Sharp, who just happens to be in possession of two fine horses to sell.
Jos seldom spent a half-hour in his life which cost him so much money. Rebecca, measuring the value of the goods which she had for sale by Jos's eagerness to purchase, as well as by the scarcity of the article, put upon her horses a price so prodigious as to make even the civilian draw back.
As it turns out, the allies had not been overrun and the need for flight was not what either Jos or Rebecca took it to be. Could Jos escape his promise to pay Rebecca in reliance on the doctrine of mutual mistake?
Wednesday, February 24, 2010
Monday, February 22, 2010
As Keith is likely too busy gearing up for the conference he is hosting to post here, I am providing a link to the program for the Spring 2010 contracts conference to be held at the end of the week at UNLV's William S. Boyd School of Law.
We at the blog are very excited about this conference, as everyone on our masthead will be in attendance. The program looks great, so we all hope to emerge enlightened, energized, and re-dedicated to never getting near a slot machine again.
Thursday, February 18, 2010
Having immersed myself for the last six weeks in planning next week's Spring Contracts Conference, I have neglected keeping you up to date on recently-published contracts scholarship. So, let's get current:
Ryan Andrews, Note, Contracting Out of the Orphan Works Problem: How the Google Book Search Settlement Serves as a Private Solution to the Orphan Works Problem and Why It Should Matter to Policy Makers, 19 S. Cal. Interdisc. L.J. 97 (2009).
Adam B. Badawi, Harm, Ambiguity, and the Regulation of Illegal Contracts, 17 Geo. Mason L. Rev. 483 (2010).
Heather Bromfield, Comment, The Denial of Relief: The Enforcement of Class Action Waivers in Arbitration Agreements, 43 UC Davis L. Rev. 315 (2009).
Daniel J. Bussel & Kenneth N. Klee, Recalibrating Consent in Bankruptcy, 83 Am. Bankr. L.J. 663 (2009).
Miriam A. Cherry & Jarrod Wong, Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes, 94 Minn. L. Rev. 368 (2009).
Scott Cody, Note, An Ambiguous Standard for Resolving Ambiguity in Insurance Contracts: The Continuing Uncertainty of Policy Interpretation in Minnesota, 36 Wm. Mitchell L. Rev. 266 (2009).
Timothy Davis, UCC Breach of Warranty and Contract Claims: Clarifying the Distinction, 61 Baylor L. Rev. 783 (2009).
Jeffrey M. Dressler, Note, Good Faith Rejection of Goods in a Falling Market, 42 Conn. L. Rev. 611 (2009).
Bryan Druzin, Buying Commercial Law: Choice of Law, Choice of Forum, and Network Externalities, 18 Tul. J. Int'l & Comp. L. 131 (2009).
Gregory M. Duhl, Conscious Ambiguity: Slaying Cerberus in the Interpretation of Contractual Inconsistencies, 71 U. Pitt. L. Rev. 71 (2009).
Anna Gelpern & Mitu Gulati, Feel-Good Formalism, 35 Queen's L.J. 97 (2009).
Mark P. Gergen, A Theory of Self-Help Remedies in Contract, 89 B.U. L. Rev. 1397 (2009).
John Hagedoorn & Geerte Hesen, Contractual Complexity and the Cognitive Load of R&D Alliance Contracts, 6 J. Empirical Legal Stud. 818 (2009).
Jeffrey L. Harrison, Rethinking Mistake and Nondisclosure in Contract Law, 17 Geo. Mason L. Rev. 335 (2010).
Robert A. Hillman & Maureen A. O'Rourke, Rethinking Consideration in the Electronic Age, 61 Hastings L.J. 311 (2009).
Ryan T. Holt, Note, A Uniform System for the Enforceability of Forum Selection Clauses in Federal Courts, 62 Vand. L. Rev. 1913 (2009).
Alina Klimkina, Note, Are Noncompete Contracts Between Physicians Bad Medicine? Advocating in the Affirmative by Drawing a Public Policy Parallel to the Legal Profession, 98 Ky. L.J. 131 (2009-10).
Lauren E. Miller, Note, Breaking the Language Barrier: The Failure of Objective Theory to Promote Fairness in Language-Barrier Contracting, 43 Ind. L. Rev. 175 (2009).
M.H. Ogilvie, Doing "Practical Justice" for Duress in Contract Law, 47 Alberta L. Rev. 253 (2009).
Daniel P. O'Gorman, Show Me the Money: The Applicability of Contract Law's Ratification and Tender-Back Doctrines to Title VII Releases, 84 Tul. L. Rev. 675 (2010).
Janet O'Sullivan, Say What You Mean and Mean What You Say: Contractual Interpretation in the House of Lords, 68 Cambridge L.J. 510 (2009).
Chris Peters, The Implication of Terms in Fact, 68 Cambridge L.J. 513 (2009).
Eric A. Posner & Luigi Zingales, A Loan Modification Approach to the Housing Crisis, 11 Am. L. & Econ. Rev. 575 (2009).
Peter Siviglia, Designs for Courses on Drafting Contracts, 12 Scribes J. Legal Writing 89 (2008-09).
Daniel Watkins, Note, Terms Subject to Change: Assent and Unconscionability in Contracts that Contemplate Amendment, 31 Cardozo L. Rev. 545 (2009).
W. Mark C. Weidemaier, Disputing Boilerplate, 82 Temple L. Rev. 1 (2009).
Robert K. Wise, Andrew J. Szygenda & Thomas F. Lillard, Of Lies and Disclaimers: Contracting Around Fraud under Texas Law, 41 St. Mary's L.J. 119 (2009).
[Keith A. Rowley]
Wednesday, February 17, 2010
Monday, February 15, 2010
Last week, my video-savvy colleague posted a Domino's Pizza commercial in which Domino's crows about the results of a recent national taste test and slams Papa John's for engaging in puffery with its "Better Ingredients, Better Pizza" slogan. Domino's is so enamored of this new ad campaign that it has a definition of "puffery" on its homepage, as well as a link that blows up to show a page from the real Papa John's deposition testimony in which he admits that the slogan -- "Better Ingredients. Better Pizza" -- is puffery; a claim that does not have to be proven.
Okay, my interest is sufficiently piqued. I got the case -- Pizza Hut, Inc. v. Papa John's International, Inc., 227 F.3d 489 (5th Cir. 2000). As to the puffing, our colleagues on the contracts professors' Listserv have pointed out that, although the case is brought under the Lanham Act and so is not a contracts dispute, its discussion of puffery could very well apply in the context of disputes over warranties and contractual misrepresentation claims. The Fifth Circuit found that the statement "Better Pizza" is classic puffery, the kind of statement on which no consumer would reasonably rely. The court also found the "Better Ingredients" claim to be typical puffery. The court found that the two combined -- a puff plus a puff -- did not add up to an actionable misrepresentation.
But the inquiry does not end there. The slogans must be placed in their contexts -- each 30-second ad is a chapter in an advertising book spun out over several years. The slogan was used in connection with sauce and dough ads, on which more below, which were found to be misleading. When used in connection with ads that made specific claims about its ingredients being "better," Papa John's slogan did indeed become misleading, said the court. However, the court reversed the jury's award of damages on that issue because Pizza Hut had produced no evidence that the now-misleading slogan was material to the consumers to whom it was directed.
There is a lot of interesting material in the case, and much of it is very good for Papa John's. As the date of the Fifth Circuit opinion suggests, the Papa John's ad campaign that Domino's now attacks was launched about 15 years ago, so Domino's response hardly qualifies as a quick-witted rejoinder. Perhaps Domino's is actually claiming that its pizza tastes better than 15-year-old Papa John's leftovers. If so, its ad is credible. Second, Papa John followed up its campaign from last century with a taste test in which it beat Pizza Hut. Papa John's was apparently unconcerned with #2, Domino's -- it was going after the big guns. Papa John's also made specific and unchallenged non-puffing claims in its ad campaign, arguing that its ingredients were actually better because Papa John's used canned tomatoes rather than tomato paste, filtered water rather than tap water in making dough, and fresh rather than frozen dough. Pizza Hut did not challenge any of these factual claims, it only contended that these ingredients were not better or did not result in better pizza.
Papa John's counterclaimed, alleging that Pizza Hut had engaged in false advertising in its responsive ads. The jury found for Papa John's with respect to two of the three commercials challenged in the counterclaims, and Pizza Hut did not appeal that decision.
As indicated above, the Fifth Circuit found Papa John's claims that its sauce and crust were "better" misleading because there was no significant difference between Papa John's sauce and crust and that of Pizza Hut pizzas. Using filtered water rather than tap water does not seem to effect the quality of pizza dough. In addition, as Judge Ella put it, "You say 'canned tomatoes,' I say 'tomato paste,' let's call the whole thing 'sauce.'"
The companies distinguish themselves in various ways, but I wonder if there is anybody out there who really feels strongly that any of the big three is significantly different from the other two when it comes to the quality of the pizza? Do people order Papa John's or Domino's or Pizza Hut pizza because they think one of those companies makes the "best" pizza?
Thursday, February 11, 2010
We reported over a year ago about the legal wrangling that has become a necessary prelude to a running of the world's most prestigious yacht race, the Americas Cup. Well, the race is finally underway, sort of. As reported here on NJ.com, Race 1 of the best-of-three "Deed of Gift" match was scheduled for Monday but had to be postponed due to "unstable wind conditions." Yesterday's attempt at a race was rendered impossible by waves that averaged 1.3 meters (about four feet) and that could have reached a peak of 1.8 meters (less than six feet). If you are wondering what a "Deed of Gift" match is, I'm sorry to say that it would be easier to explain the plot of ABC's Lost than it would be to answer your query. Suffice it to say that in a Deed of Gift match, like in a 19th-century duel, there are only two competitors.
The 23-page Notice of Race which governs the competition provides that the next attempt to run the boats will occur on Friday, if it's not too windy or wavy, so long as there is enough wind and the water's not too cold and it's not raining and not a full moon and none of the principals of the race is needed for a conference call.
The two 90-foot multi-hulled yachts in the race are marvels of engineering, as described here in the New York Times. The question is whether or not the legal wrangling over the meaning of the relevant documents that set out the rules for the race -- the Notice of Race and the Deed of Gift -- leaves room for anything that resembles a sporting event, in this case a boat race. If you are looking forward to seeing heavily muscled men turning cranks and leaning over the edges of the boats to provide counterbalance, advances in technology have now rendered such feats of strength and athleticism quaint. In addition, these boats are built for speed and do not apparently maneuver like sailboats. There will be little or no jockeying for position. Rather, according to media reports, each boat will find its line and its wind and will attempt to travel from point A to point B and then back to A as quickly as possible with very little tacking.
As the New York Times reported, Ernesto Bertarelli, the owner of Alinghi, the current champion and holder of the Americas Cup trophy, has accused the challenger, owned by Larry Ellison of BMW/Oracle, of attempting to win the coveted trophy in court. Last month, the New York Supreme Court told the parties to go race, but it may be too late to prevent the outcome from being determined by the parties' differing interpretations of the governing documents. Although those documents look like regulations created by a neutral sports governing body, given that this race is really about Bertarelli and Ellison going mano a mano, those documents have a contractual feel to them and the entire competition seems to be as much about creative interperetation of contractual language as anything else.
Wednesday, February 10, 2010
Tuesday, February 9, 2010
Monday, February 8, 2010
At left, we have Amy Adams as she first entered my consciousness. It is an image that I will not willingly relinquish. But now, a new Amy Adams, the Amy Adams of the profoundly disappointing Julie and Julia endeavors to displace her. How could this have happened? How could a movie about a blogger be boring?!? In part, I think the problem is that the story of Amy Adams' blog just is not believable in the movie -- perhaps it is more so in the book. I blame Nora Ephron, whose aptitude for character development lags well behind her talent for caricature development.
Amy Adams' character, Julie, is driven to the blog by her narcissistic, careerist sisters who only turn off their cell phones long enough to announce their latest triumphs and to condescend to Julie, who works in a cubicle. Of course, this aspect of the film is already dated. Today, they would be texting. Julie's unsupportive mother is really Woody Allen's mother. She reads Julie's blog just so that she can post comments about what a waste of time it is. The fact that the mother reads and comments on the blog is something of a surprise, since the first time we hear from the mother she is calling to belittle Julie and seems not to know what a blog is. Later in the movie, after the New York Times reports on Julie's blog, Julie's mother becomes Ira Glass's mother -- she now recognizes her daughter's virtues because they have been validated by The Old Grey Lady.
But Julie is determined to prepare all of the recipes in Julia Child's cookbook over the course of a year, and she is going to blog about it because, although she enjoys cooking, her real aspiration is to write. And that's all fine. I applaud her. I like the voice of Julie's blog -- why wouldn't I? It's Amy Adams' voice. I would read such a blog if I had time to read blogs about French cuisine.
But here is where I rebel. One day, Julie's blog starts getting comments. The next thing we know it is one of Salon.com's top blogs and Julie is contemplating setting up a PayPal link so that her readership can support her habit of French cooking. At the same time, Julie is living in a dumpy apartment in Queens, Queens!!! She has no contacts in the media world and she does not even seem to know how many page views her blog is getting. Sorry, but no.
I am perfectly willing to believe the world is full of brilliant teams of arch-villains who conspire to take over or destroy the world and that Bruce Willis/Kiefer Sutherland/Jackie Chan/Will Smith can single-handedly save both our lives and our souls. I don't know anything about criminal masterminds or about being an action hero, so such plots seem perfectly plausible to me. But I know blogging and I ain't buying what Julie and Julia is selling. I find Enchanted's Giselle a much more believable character than Julie and Julia's Julie.
Amy Adams, it's time to stop slumming with that phony baloney, Meryl Streep. Just be the princess you were always meant to be.
Wednesday, February 3, 2010
Tuesday, February 2, 2010
After more than 200 years, the Commonowealth of Massachusetts is finally getting what it's desperately needed for so long: a public law school. The Massachusetts Board of Higher Education voted today to acquire the Southern New England School of Law, which will now become part of the University of Massachusetts-Dartmouth. This is obviously good news for the millions of Massachusetters (-ites?) who lack access to legal education because of the state's lack of a public law school.
The news release doesn't say what the new school will be called, but we suggest "Dartmouth Law School." It will help a lot with the rankings.
When two parties are negotiating a draft agreement by e-mail, it isn’t necessarily clear when they’ve reached the stage of an enforceable contract—even when the draft document they’re circulating is drafted by counsel and has provisions for joint signatures. That’s the lesson from the recent case of Grant v. Bragg EWCA Civ 1228, reversing an earlier decision by the chancery court.
No, it wasn’t a rematch of the Battle of Chattanooga (left and right), but a falling-out of two British co-venturers in the resort business. When Bragg forced Grant out of their venture, the two wound up in negotiations under a buyout provision lf a Shareholders’ Agreement. A draft of a buyout was prepared by a firm of solicitors, and then sent back and forth between the two principals over a period of time. The agreement was never signed and the buyout never happened. Grant eventually sued, claiming a contract had been formed in the e-mail exchanges between the pair. The Chancellor ruled for Grant, and the Court of Appeal affirmed in a split decision. Solicitors Alex Carter-Silk, Nicholas Tall, and Mark Bailey offer a rundown here (free registration required).
Last week, the Times of Trenton reported on Canella v. Conair Corp., a decision handed down by the Superior Court of New Jersey, Appellate Division, last Christmas Eve. The Times of Trenton article focuses on the fact that Canella was fired for abuse of company e-mail. It's not as if plaintiff was running a smuggling ring from her desktop. The "abuse" apparently consisted of correspondence with a former employee of the same company, and so the article serves as a warning to unsuspecting employees that they ought to be more mindful of their use of work e-mail for non-work purposes.
I was surprised that Canella's conduct led to her termination, so I looked up the case to see if there was something more going on. The full opinion can be found here. I was immediately struck by the fact that Canella was fired nearly ten years ago. The court found that she was an at-will employee and that she had knowingly engaged in violations of the firm's employee handbook and so could have been terminated lawfully even if she were not at-will. So, why did it take ten years to sort this out?
The opinion is not quite so opaque as the Times of Trenton article but it too is not crystal clear. It seems that Canella's correspondence was with her ex-lover, who is also a woman. In the e-mail that triggered her termination, Canella addressed her former partner as "one arrogant, cold, cruel bitch," which has a certain literary appeal to it. Canella likely suspected that she was singled out not because she was carrying on a private correspondence on work e-mail (who hasn't done that?) but because she had been in a lesbian relationship with a co-worker. The opinion indicates that her complaint originally included a dscrimination claim but that claim was time-barred. She was left with a very weak argument that Conair violated a clear public policy mandate by failing to insure the safety of employees in the workplace. The court had no trouble dismissing that claim.
Monday, February 1, 2010
It's been a long, strange ride for funk pioneer Sly Stone (born "Sylvester Stewart") since the triumphal performance of Sly and the Family Stone at the Woodstock music festival in 1969. Massive international fame, critical success, cocaine, PCP, missed gigs, personal difficulties, failed relationships, a motorcycle accident, two decades as a recluse, alleged homelessness -- and now litigation.
Stone, 66, is suing longtime manager Jerry Goldstein and others for $50 million. Key parts of the complaint (here) rest on allegations that Stone's managers took advantage of the drug-addled star by leading him to sign a highly unfavorable management contract.
If you're interested in art law and are in the Dallas-Fort Worth area you may want to drop by a free seminar for artists, lawyers, and interested others put on by the Texas Wesleyan Center for Law and Intellectual Property and the Fort Worth Arts Council. The seminar, third in a series, will deal with what artists need to know about the Visual Artists Rights Act of 1990.
The program is scheduled for 6:30 p.m. on Monday, February 8, in the Sanders Theater at the Fort Worth Community Arts Center. Pre-registration is required for the free program. (Left: "Vortex" by Richard Serra, Fort Worth Museum of Modern Art.)
The conversation proceeds on the similarities and dissimilarities between a dance partnership and a marriage partnership. But if Catherine really wanted to impress Mr. Tilney, she would have pointed out that his real complaint sounded in tortious interference rather than in breach of contract.
The Court found for Sky on some aspects of its claims, but the real issue of importance was the enforceability of the parties' agreement not to limit damages. Although the value of the contract was less than £50 million, and included a £30 million liability cap, Sky initially sought £700 million in damages based on its fraud claim and the no-liability-cap clause. After this ruling, Sky stated that it expected an award in the £200 million range.
The report cited to above speculates that this ruling will result in far more caution in the IT contracting realm. One can only hope. The case might also create an incentive to claim fraud, although the £70 million in court costs reportedly incurred in the trial will provide a useful counterbalance. The full 460-page opinion, over a year in the making, is available here. Hewlett-Packard, which now owns EDS, is contemplating an appeal.