Wednesday, November 24, 2010
It is often said that conditions precedent are not favored in contract law, and must be stated extremely clearly if they are to be given effect. Cases like Peacock Construction Co. v. Modern Air Conditioning, Inc., 353 So. 2d 840 (Fla. 1977), are casebook staples. In Peacock Construction, a contract provision provided that a subcontractor would be paid after the prime contractor itself was paid by the owner (a "pay-when-paid" clause). The court held that this did not create a condition precedent, and thus that the prime was required to pay the sub whether it received money from the owner or not. The Peacock Construction court noted that a prime could make such a provision a condition precedent, but that the agreement "must unambiguously express that intention" and the contractor bears "the burden of clear expression."
Well, a recent decision by the Alabama Supreme Court, Lemoine Co. v. HLH Constructors, No. 1090847 (Ala. Nov. 19, 2010), 2010 Ala. LEXIS 215, shows an example of that clear expression. It was again a prime-sub dispute, and it included a pay-when-paid clause. But this time the contract contained the following clause:
Notwithstanding anything else in this Subcontract or the Contract Documents, the obligation of [Prime] to make any payment under this Subcontract . . . is subject to the express and absolute condition precedent of payment by [Owner]. It is expressly agreed that [Prime] and its surety shall have no obligation to pay for any work done on this Project, until [Prime] has received payment for such work from [Owner]. . . . [Sub] expressly assumes the risk of nonpayment by [Owner].
This, said the Court in an opinion by Justice Thomas Woodall, is pretty darned clear. While Sub cited a host of condition precedent cases, all had relied on birnak pay-when-paid clauses. Where, as here, the parties have expressly allocated the risk of nonpayment, said the court, those cases do not apply.
LOS ANGELES (Calif.): "Axl Rose of Guns N' Roses has filed a $20 million suit against Activision, charging that it broke its promise not to feature former bandmate Slash in "Guitar Hero III" as a condition for obtaining the rights to feature Welcome to the Jungle' (below) in the game.
BOSTON (Mass.): "Cape Wind may become the first U.S. offshore wind farm after Massachusetts regulators approved a contract permitting it to sell electricity, overcoming critics including the Kennedy family and Wal-Mart Stores."
SANFORD (Fla.): "A judge has dismissed a lawsuit against the Florida Republican Party by its ousted chairman. . . . [Jim] Greer had accused the party of reneging on a $124,000 secret severance deal."
YAOUNDE (Cameroon): Dutch footballing great Arie Haan has been ordered by FIFA to pay the Cameroon Football Federation (Fecafoot) 500,000 euros for breach of contract, the national federation announced on Tuesday
OKLAHOMA CITY (Okla.): "Leave it to Oklahoma City Thunder general manager Sam Presti to conceive a contract extension for glue-guy forward Nick Collison that forces me to consult every salary-cap reference book I can find. This is a fun one."
ATLANTIC CITY (N.J.): "New Jersey school officials are challenging Governor Chris Christie in state Superior Court about using his administration's proposed salary cap to freeze current contracts which are under negotiation."
PROVIDENCE (R.I.): "Detroit’s money was sweeter, and so Boston’s veteran catcher, clubhouse leader, and lineup mainstay Victor Martinez is leaving Fenway for the Detroit Tigers and Comerica Park."
- ;basic coverage of the main themes of contract law in theory and practice
- ;a straightforward and informative writing style
- ;Overviews -a brief introduction to each chapter that positions the topic within the course
- ;FAQs-frequently asked questions with complete answers-many of which address common mistakes and ambiguities
- ;Sidebars-text boxes that contain interesting asides touching on history, policy, and law
- ;visual aids, such as tables and flow charts, that illustrate key concepts
- ;Chapter Summaries and boldfaced legal terms
- ;Connections-a bulleted list at the end of each chapter that connects key points to related topics in other chapters
- ;attractive, uncluttered, two-color page design
Tuesday, November 23, 2010
1632 – Philosopher Baruch Spinoza is born at Amsterdam in the Dutch Republic. He will turn down numerous academic appointments to keep his job as a lens grinder, even though that job didn’t promise him tenure.
1642 – On a voyage for the Dutch East India Co., Abel Tasman’s crew become the first known Europeans to spy Van Diemen's Land (later renamed Tasmania) in Australia.
1835 – The Texas Provincial Government authorizes the creation of the oldest law enforcement agency in North America, the Texas Rangers. Their original badges were hammered out of Mexican peso coins.
1859 – Charles Darwin publishes On the Origin of Species. He didn't have tenure, either.
1877 – Future lawyer, judge, Senate Majority Leader, and Vice President Alben William Barkley is born at Graves County, Kentucky.
1916 – Hiram Stevens Maxim—inventor of the first practical portable machine gun—dies at London. Hillaire Belloc would later comment on the gun’s effect on colonialism:
Never fear the Hottentot.
Whatever happens we have got
The Maxim gun, and they have not.
1963 – In the first shooting death to be broadcast live on national television, bar owner Jack Ruby kills Lee Harvey Oswald in the basement of Dallas police department headquarters. Viz:
I've never watched Dancing With the Stars and probably couldn't tell Bristol Palin from Bristol Myers in a police line-up, so I have absolutely no interest in whether she wins the TV competition or not. But you don't have to know anything about it to appreciate the unintentionally hilarious column by the Washington Post's Sally Quinn, The unholy (s)election of Bristol Palin.
In her column -- which weirdly enough appears in the religion section of the paper -- Quinn explains that she watches the show every week. The show's rules allow you to vote no more than five times from a home telephone line. But since Quinn has six separate home lines, she happily casts 30 votes each episode for her favorite dancer.
But now she's learned that some unscrupulous people (who are obviously poorer but more tech-savvy than she is) have exploited loopholes in the rules to vote as many as 300 times for Palin by registering additional email addresses! That's . . . that's cheating! "I never remember all Ten Commandments," says the Post's religion writer, "but there should be one that says, "Thou shalt not cheat while voting on 'Dancing with the Stars.'" (emphasis in original). I can't help thinking of this classic scene from The Sting:
I can imagine Quinn's response to the last question:
Doyle Lonnegan: What was I supposed to do -- call him for cheating better than me, in front of the others?
Sally Quinn (thinking): Uh, yeah. Why not?
Quinn is of course getting hammered in the blogosphere all the way from Wisconsin law prof Ann Althouse.to Wonkette to the Huffington Post. My favorite from the various reader comments: "It's idiotic to claim that a popularity contest is unfair."
And yes, I'm reading this stuff because I don't want to finish writing my exams.
In an April 2010 post titled One Judge’s Mortgage Modification Revolution, we wrote:
In Suffolk County, New York, in the Residential Mortgage Foreclosure Conference Part, Justice Jeffrey Arlen Spinner is waging his own mortgage reform revolution. Back in November, Justice Spinner canceled a $292,500 mortgage on unconscionability grounds, describing IndyMac Bank’s behavior as “harsh, repugnant, shocking and repulsive.” Then, just last week, he ordered the Emigrant Mortgage Company to pay $100,000 to the homeowners as compensation for the bank’s “deplorable” mortgage agreement and its bad-faith foreclosure negotiations. The judge "forever barred" Emigrant from collecting interest on the $302,500 mortgage, as well as any legal fees, costs "or any sums other than the principal balance."
About a year after Judge Spinner cancelled the IndyMac mortgage, the Appellate Division (Second Department) has reversed his decision. The appellate court reasoned that Judge Spinner did not have the authority to cancel the mortgage:
Here, the severe sanction imposed by the Supreme Court of cancelling the mortgage and note was not authorized by any statute or rule (see Tewari v Tsoutsouras, 75 NY2d 1, 5-7), nor was the plaintiff given fair warning that such a sanction was even under consideration (see Matter of Harner v County of Tioga, 5 NY3d 136, 140; Barasch v Barasch, 166 AD2d 399, 400). The reasoning of the Supreme Court that its equitable powers included the authority to cancel the mortgage and note was erroroneous [sic], since there was no acceptable basis for relieving the homeowner of her contractual obligations to the bank (see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630, 637; Levine v Infidelity, Inc., 285 AD2d 629, 630), particularly after a judgment had already been rendered in the plaintiff's favor.
My colleague, Tom Maligno, Executive Director of the William Randolph Hearst Public Advocacy Center and Director of Public Service at Touro, commented in Newsday: “The way the banks have been dealing with homeowners has not been fair. I wish all courts would take the fairness part of the equation into account more.”
On the other hand, the lenders can now let out a biiiig-slooooow-sigh-of-relief....
[Meredith R. Miller]
Courts are often reluctant to enforce contract clauses that prohibit the parties from making oral modifications to contracts and require that all changes be in writing signed by the parties. California courts tend to ignore these "no oral modification" clauses in private transactions, as we’ve noted before.
But when it comes to public contracts, the rules are different, according to a recent decision by the California Court of Appeal, which as usual refuses to publish its contract decisions. In P&D Consultants, Inc. v. City of Carlsbad, No. D054810 (Cal. App. 4th Dist. Nov. 19, 2010), 2010 Cal. App. Unpub. LEXIS 9209, a contractor (P&D) racked up costs in performing work authorized orally by the city. The contract had a provision that prohibited oral modifications. The trial judge gave what look to be normal "no oral modification" instructions:
P&D . . . claims that the original contract was modified, or changed. P&D . . . must prove that the parties agreed to the modification. [The] City . . . denies that the contract was modified.
The parties to a contract may agree to modify its terms. You must decide whether a reasonable person would conclude from the words and conduct of P&D . . . and [the] City . . . that they agreed to modify the contract. You cannot consider the parties' hidden intentions.
A contract in writing may be modified by an oral agreement to the extent the oral agreement is carried out by the parties.
The jury found for P&D and the city appealed.
Wrong, said Presiding Judge Judith McConnell, holding that P&D’s claim was barred as a matter of law by the contract provision. While courts may ignore that "no oral modification" language in private agreements, the writing requirement in a public contract is apparently critical:
We reverse the judgment on the first amended complaint (hereafter complaint) based on the contract's requirement of a written change order. Unlike private contracts, public contracts requiring written change orders cannot be modified orally or through the parties' conduct. Thus, even if P&D's evidence pertaining to the oral authorizations of a city employee for extra work are fully credited, P&D cannot prevail. The court erred by submitting the matter to the jury; it should have granted the City's motion for nonsuit. Because the contract issue resolves the matter, we need not address Government Code section 406021 or the sufficiency of the evidence.
What is particularly interesting in the decision is that the court relied solely on the contract language for its decision. The court gave no apparent explanation for drawing a distinction between the same clause in private and public contracts—that’s presumably one of the advantages in issuing opinions that can't be cited back to you later if you change your mind—except to note that one who deals with a public official must at his own peril make sure that the official has the necessary authority.
Given that at one point in the opinon Judge McConnell notes that "The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties," I'm not sure why the same language indicates different intent in public vs. private contracts.
WHITE PLAINS (N.Y.): "The U.S. Tennis Association is suing Olympus Corporation of the Americas for $11.65 million for breach of contract, saying the camera company wants to get out of their sponsorship agreement for 2011."
TORONTO (Ont.): "Shoppers Drug Mart Corp. said Monday it's being sued for $1 billion by two of its licensed associate_owners. The suit claims breach of contract by the pharmacy company."
FLINT (Mich.): "As you drive through some of Flint's neighborhoods, do you ever wonder why there are so many vacant, dilapidated homes?"
TRENTON (N.J.): "With Gov. Chris Christie blocking Jersey’s public schools from giving superintendents overpaid new contracts, the state Assembly on Monday passed a bill, 78-0, that would subject top school executives to standardized contract guidelines.
DAYTON (Ohio): "Boeing Co. will have to wait until 2011 to learn the fate of a $35 billion U.S. Air Force contract for tanker refueling planes, according to several reports."
DUBLIN (Eire): "Contracted Bohemians [F.C.] players will receive one week's wages today, but the Dubliners remain engaged in a race against time to agree redundancy packages after making progress with respect to their tax bill."
MADISON (Wisc.): "Before their session ends, the Democrats in the Wisconsin Legislature are attempting to approve labor contracts for unions in a special session in December. Gov. Jim Doyle [right] reached a tentative labor contract with six labor unions this month, despite requests from Governor-elect Scott Walker that Doyle refrain from making contract agreements in the final six weeks of his tenure as governor."
SÃO PAOLO (Brazil): "Enap, Chile’s state-owned oil company, will sign a new contract with Ecuador on Tuesday amid speculation that two foreign oil majors are poised to leave the country. Petrobras of Brazil, and Repsol of Spain, have refused to comment on negotiations before midnight on Tuesday local time—Ecuador’s deadline for foreign companies to accept a demotion to service_provider status or agree to hand over their operations to the state."
Larry Ribstein (Illinois) has some thoughts at Truth on the Market about new SEC rules designed to bring hedge funds and venture capital outfits under regulation. Here's his take:
The [new] rule grandfathers existing funds that have represented themselves as venture capital funds “because it could be difficult or impossible for advisers to conform existing funds . . . to the new definition.”
But the SEC feels comfortable locking new funds into terms that could constrain their activities for long periods in a dynamic investment environment. . . . The costs associated with this inflexibility are especially problematic given VC funds’ need to adjust to the drop in initial public offerings, which traditionally provide a critical opportunity to exit from investments.
Real unemployment is climbing toward 20% and new firms with new ideas can create jobs. Venture capital is a key mechanism for funding start-ups. Somebody should pass this information onto the SEC.
The situation in India's microfinance industry continues to deteriorate, appearing to replicate what went on in the U.S. with Fannie Mae and Freddie Mac and is still going on in the U.S. housing markets.
For years microfinance -- the lending of small amounts to would-be small-scale entrepreneurs in developing countries -- has been seen as a method of helping to lift people up from poverty. But the original small-scale programs have proved very difficult to scale up.
Kenneth Anderson of the Volokh Conspiracy has been looking at microfinance issues for a long time. He has some thoughts on the problems that come from "mixing motives" -- trying to "do well by doing good." Here's a taste:
One can pile up important similarities and differences, in other words, between India’s microfinance bursting bubble and the subprime crisis. But let me focus on one that is perhaps less noticed. I notice it as a similarity because it’s something that (as someone who works out in the gym in Fannie Mae’s basement in Washington DC), I have heard a lot over the past dozen years: a tendency to play a self-deceptive bait and switch between doing good and doing well. I.e., the many conversations with Fannie Mae senior staff who, when things were going well, thought (what they thought of as) their mixed social-profit model must be great, and as things weren’t going so well, took comfort in the idea that they were doing good and this was merely a cost of doing “good” business. Something like that seems to have been present here — which hardly surprises me because I confess to having been tempted to it many times, working in or advising organizations with similarly mixed motives.
The invitation to self-deception is high, in other words.
Monday, November 22, 2010
The Mississippi Supreme Court has reversed an award of punitive damages, attorneys’ fees, and damages for emotional distress against an insurer who denied coverage for storm-surge damage caused by Hurricane Katrina. The court upheld a jury verdict for compensatory damages against insurer USAA, but held that the plaintiff had failed to show that the denial was in bad faith.
USAA argued that the damages to the first floor of the Lisanby home (top left) was caused by water, and thus was excluded from coverage. An expert for the Lisanbys testified that the damages was caused by wind. From the report:
The home of retired Navy Admiral James Lisanby and his wife, Gladys (top left) was severely damaged by Hurricane Katrina in 2005. USAA provided the couple with homeowners insurance but concluded that most of the damage was caused by storm surge, a peril not included in a standard homeowners policy.
USAA paid the Lisanbys about $46,350 and the couple filed a complaint against the insurer. After the trial a jury awarded the Lisanbys about $909,640 in compensatory damages, which included $86,000 for emotional distress. It also gave the couple about $302,920 for attorneys’ fees and about $211,100 for litigation expenses.
The Supreme Court opinion written by Justice Jim Kitchens upheld the couples’ breach of contract claim against their insurer, but "because the [Lisanbys] failed to demonstrate that [USAA] acted in bad faith when it denied their claim, we reverse and render judgment in favor of [USAA] regarding the award of extra-contractual damages for the infliction of emotional distress, attorneys’ fees and litigation expenses."
534 BC – Thespis of Icaria becomes the first actor to act out the part of a character—as opposed to being a narrator or commentator—on the Greek stage. This new style of drama will become known as "tragedy."
1499 – Perkin Warbeck—who had the very bad judgment to pretend to be the lost son and heir of King Edward III of England—is hanged by King Henry VII, who is not amused.
1644 – John Milton publishes Areopagitica, a philosophical and moral attack on censorship, except when the censored statements at issue are critical of the Transportation Security Administration.
1804 – Future lawyer, Senator, Mexican War general, U.S. President, and law-school namesake Franklin Pierce is born in a log cabin at Hillsborough, New Hampshire
1859 – Future gunman William "Billy the Kid" Bonney is born at New York City.
"Too mean to live,
"Too young to die.
".He did anyway."
1876 – William "Boss" Tweed is handed over to Federal debtors’ prison after being captured in Spain. He is held on $3 million bond.
1889 – The earliest known progenitor of the iPod music device—called a "jukebox"—is put into operation at the Palais Royale Saloon in San Francisco. Songs are a nickel apiece but you can only listen to them once.
1992 – Roy Acuff, the pioneer fiddler, singer, and music publisher who invented the Nashville music industry, dies at age 89. Here’s him doing his 1936 hit, The Great Speckled Bird:
On that same day, future Disney pop star Destiny Hope "Miley" Cyrus is born at Nashville, Tennessee. This is proof positive that the idea of progress in human affairs is illusory.
Over at the Volokh Conspiracy, Kenneth Anderson has a thread about plays that "express or comment in some important way on the economic conditions of capitalism." Here's my own thought:
From a historic perspective . . . one of the most influential plays is the 1605 production of Dick Whittington and His Cat. I believe it to be the first pro-free-enterprise play in English history, with a poor-but-honest-and-hardworking hero (rather than a lost prince or orphaned nobleman) who makes a fortune AND makes everyone else better off by engaging in voluntary international trade.
The change in viewpoint between, say, The Merchant of Venice – where the only way for a poor man like Bassanio to get rich is to marry wealth — and Dick Whittington is striking. The world of King James and his courtiers (the first audience for Merchant) was the static one of inherited wealth and noble honors. But the world of the merchants and artisans in the cities was changing dramatically.
The poor-but-honest man who succeeds by his own merits became so clichéd in the Horatio Alger era that it’s hard to understand just how radical it was at the time.
Following a much longer than planned hiatus, it's time to clear the pile of journals blocking the transom. Thanks to Frank and Meredith for highlighting a few of the following during my absence. Stay tuned for future updates.
T. Leigh Amenson, Beyond Chafee: A Process-Based Theory of Unclean Hands, 47 Am. Bus. L.J. 509 (2010).
Oren Bar-Gill & Kevin Davis, Empty Promises, 83 S. Cal. L. Rev. 985 (2010).
Shmuel I. Becher & Esther Unger-Aviram, The Law of Standard Form Contracts: Misguided Intuitions and Suggestions for Reconsideration, 8 DePaul Bus. & Com. L.J. 199 (2010).
Hazel Beh & Jeffrey W. Stempel, Misclassifying the Insurance Policy: The Unforced Errors of Unilateral Contract Characterization, 32 Cardozo L. Rev. 85 (2010).
Eric Behrens, A Trend Toward Enforceability: Convenants Not to Compete in At-Will Employment Relationships Following Sheshunoff and Mann Frankfort, 73 Tex. B.J. 732 (2010).*
Doug Bouton, Note, The Music Industry in Flux: Are 360 Record Deals the Saving Grace or the Cup de Grace?, 9 Va. Sports & Ent. L.J. 312 (2010).
John J. Chung, From Feudal Land Contracts to Financial Derivatives: The Treatment of Status Through Specific Relief, 29 Rev. Banking & Fin. L. 107 (2009).
Chapin F. Cimino, Virtue and Contract Law, 88 Or. L. Rev. 703 (2009).
Peter Devonshire, Pecuniary Remedies for Breach of Confidence, 21 King's L.J. 355 (2010).
Ronald J. Gilson, Charles F. Sabel & Robert E. Scott, Braiding: The Interaction of Formal and Informal Contracting in Theory, Practice, and Doctrine, 110 Colum. L. Rev. 1377 (2010).
David Hahn, The Roles of Acceleration, 8 DePaul Bus. & Com. L.J. 229 (2010).
Martin Hogg & Hector MacQueen, Melville Monument Liability: Some Doubtful Dicta, 14 Edinburgh L. Rev. 451 (2010).
Andrew Hutchison, The Doctrine of Frustration: A Solution to the Problem of Changed Circumstances in South African Contract Law?, 127 S. Afr. L.J. 84 (2010).
Tal Kastner, Book Review Essay, The Persistent Ideal of Agreement in an Age of Boilerplate, 35 L. & Soc. Inq. 793 (2010) (reviewing Boilerplate: The Foundation of Market Contracts (Omri Ben-Shahar ed. 2007)).
Dori Kimel, The Morality of Contract and Moral Culpability in Breach, 21 King's L.J. 212 (2010).
Tamara L. Kuennen, Private Relationships and Public Problems: Applying Principles of Relational Contract Theory to Domestic Violence, 2010 BYU L. Rev. 515.
Shelley McGill, Consumer Arbitration Clause Enforcement: A Balanced Legislative Response, 47 Am. Bus. L.J. 361 (2010).
John MacLeod, Before Bell: The Roots of Error in the Scots Law of Contract, 14 Edinburgh L. Rev. 385 (2010).
Solène Rowan, Reflections on the Introduction of Punitive Damages for Breach of Contract, 30 Oxford J. Legal Studs. 495 (2010).
Struan Scott, Duress and the Variation of Contracts -- Looking Beyond General Statements of Principle to the Results in Particular Cases, 12 Otago L. Rev. 391 (2010).
Justin W.A.S. Sobion, The Law Governing the CARICOM Contract and the Implementation of the UN Convention on Contracts for the International Sales of Goods, 35 W. Indian L.J. 145 (2010).
Charles Tiefer, No More Nisour Squares: Legal Control of Private Security Contractors in Iraq and After, 88 Or. L. Rev. 745 (2009).
Nishita Vasan & Sowjhanya Shankaran, Recovery of Money Paid Under Mistake of Law, 42 Bracton L.J. 48 (2010).
Eric A. Zacks, Unstacking the Deck? Contract Manipulation and Credit Card Accountability, 78 U. Cin. L. Rev. 1471 (2010).
* - While I rarely include articles from state and local bar journals (not to be confused with the law review-like journals that several sections of the ABA publish), this is a particularly meaty article about a very important topic from the selective and well-edited organ of the third largest state bar. If you run across anything comparable that you think merits the blog's attention, please forward me a copy, citation, or both.
[Keith A. Rowley]
MONDAY, NOVEMBER 22, 2010
HOLLYWOOD (Calif.): "Live Nation reportedly is suing former Chairman Michael Cohl for $5.35 million, the amount he allegedly owes the company as part of his exit agreement from more than two years ago."
IRVINE (Calif.): "Spectrum Pharmaceuticals is suing Cangene Biopharma in the U.S. District Court in Baltimore for allegedly breaching a 2008 contract to make Fusilev, an injectable cancer drug."
ABUJA (Nigeria): "The Nigeria Football Federation have swung to crack down on bribery and corruption in the Super Eagles by putting in black and white that new Nigeria coach, Samson Siasia (right) will not only be fired, but will be liable to pay out a whooping three million US dollars (over 450 million naira) should it be established he has taken a bribe in the discharge of his duty."
LOS ANGELES (Calif.): "The Hollywood Foreign Press Association, creator and owner of the Golden Globe Awards, has filed a lawsuit against Dick Clark Productions, accusing the company of breach of contract."
NEW YORK (N.Y.): "Wells Fargo (WFC) agreed to pay Citigroup (C) $100 million to settle a lawsuit stemming from Wells Fargo's acquisition of Wachovia in 2008, the companies said Friday."
HUDDERSFIELD (U.K.): "The concert was billed as ‘explosive,’ promising Beethoven's Battle Symphony and Handel's Royal Fireworks. But the real explosions happened offstage when the principal conductor of the Huddersfield Philharmonic orchestra stormed out of rehearsals just three hours before the concert was due to start—and never came back.
LAS VEGAS (Nev.): "Owners of the Hard Rock Hotel & Casino in Las Vegas say a federal lawsuit filed by the Hard Rock Cafe chain over their shared name is hurting their bottom line in Nevada and other states."
Steve Schooner (right) and Collin Swan (both Geo. Washington) have a new paper out, Suing the Government as a 'Joint Employer'–Evolving Pathologies of the Blended Workforce. Here’s the abstract:
As the 'blended workforce'–a realm in which contractors work alongside, and often are indistinguishable from, their Government counterparts–becomes more commonplace, the distinction between civil servants, members of the military and contractor employees increasingly blurs. One intriguing (and, apparently, accelerating), yet little-known trend is that contractor employees are more frequently suing the Government, alleging employment discrimination on the part of Government managers, supervisors or even coworkers. This short piece discusses the evolving 'joint employer' liability doctrine. It suggests that The federal courts' and the EEOC's willingness to define federal agencies as de facto employers of contractor employees is further evidence that the prohibition on personal service contracts is–or should now be deemed–a dead letter. Ultimately, it concludes that both the Government and its contractors need to understand that, as federal agencies continue to rely on contractors for their staffing needs, the ability to distinguish between civil servants and contractors–in the eyes of the law–will become increasingly more difficult.
Sunday, November 21, 2010
1307 – French King Philip IV, who has borrowed more money than he can repay and has decided to blame the lenders, has puppet Pope Clement V order the arrest of all Knights Templar in Europe and seizure of their assets. It serves the greedy lenders right.
1718 – In Ocracoke Inlet, North Carolina, legendary pirate Edward "Blackbeard" Teach is killed in battle by British seamen from the sloop HMS Ranger.
1858 – Land speculator William Larimer lays out a proposed mile-square city on a hill near the confluence of Cherry Creek and the South Platte River at the foot of the Rocky Mountains in what is then Arapahoe County, Kansas Territory. He names it after the territorial governor, James William Denver.
1869 – The 975-ton Cutty Sark—the last clipper ship ever to be built—is launched. She will be the world’s fastest ship, but at a construction price of £17 a ton, she will bankrupt her builders, Scott & Linton of Dumbarton, Scotland.
1935 – Pan American Airways’ China Clipper takes off from Alameda, California on its first trans-Pacific flight. It will get to Manila a week later.
1963 – President John F. Kennedy is shot to death while riding in an open car in Dallas, 36th President. If you ever go and stand on the "grassy knoll," you’ll see that it’s impossible to believe anyone could have been shooting from that location without being seen.
1995 – Pixar Studios releases the first full-length film created completely using computer-generated imagery. Toy Story will become a surprisingly big hit.
2005 – Angela Merkel becomes the first female Chancellor of Germany.
Quarterback Donovan McNabb today had one of his best outsings in hia worst NFL season, leading the Washington Redskins (5-5) to a 19-16 overtime win against the Tennessee Titans. His new contract extension with the 'Skins has generated some controversy, but it turns out that from Washington's perspective the deal is less about McNabb himself than about what will happen when the NFL salary cap ends at the end of this year. Here's ESPN's Chris Mortenson explaining the team's thinking.
Three new papers make our Top 10 list this week. They show the range of contract law: from suing government employers to venture capital to surrogate motherhood. Following are the Top 10 most-downloaded new papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending November 14, 2010. (Last week's ranking in parentheses.)
1 (1) Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory, Christopher Lewis Peterson (Utah).
2 (2) Good Faith and Contract Interpretation: A Law and Economics Perspective, Simone M. Sepe (Arizona).
3 (3) The Need for Insurance Policy Transparency, Daniel Schwarcz (Minnesota).
4 (4) Choice of Forum Provisions in Intra-Corporate Litigation: Mandatory and Elective Approaches, Joseph Grundfest (Stanford).
5 (–) Suing the Government as a 'Joint Employer'–Evolving Pathologies of the Blended Workforce, Steven L. Schooner & Collin D. Swan (Geo. Washington).
6 (5) Misbehavioral Economics: The Case Against Behavioral Antitrust, Joshua D. Wright (Geo. Mason) & Judd E. Stone (Int'l Center for Law & Economics).
7 (6) Taking Punitive Damages Seriously: Why a French Court Did Not Recognize An American Decision Awarding Punitive Damages and Why it Should Have, François-Xavier Licari (Metz).
8 (–) The New Exit in Venture Capital, Darian M. Ibrahim (Wisconsin).
9 (8) Should Consumers Be Permitted to Waive Products Liability? Product Safety, Private Contracts, and Adverse Selection, Albert H. Choi (Virginia) & Kathryn E. Spier (Harvard).
10 (–) The Regulation of Surrogate Motherhood in Greece, Aristides N. Hatzis (Athens–Philosophy).