ContractsProf Blog

Weekly Top Ten from the Social Science Research Network

 RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law 
December 5, 2009 to February 3, 2010

Rank	Downloads	Paper Title
1	259	Choice of Law in the American Courts in 2009: Twenty-Third Annual Survey  Symeon C. Symeonides,  Willamette University - College of Law
2	167	The Foundations of a Market Economy: Contract, Consent, Coercion  Yulie Foka-Kavalieraki, Aristides N. Hatzis,  University of Athens, Department of Philosophy & History of Science , University of Athens - Department of Philosophy & History of Science
3	129	The Core Nature of Fiduciary Accountability  Robert Flannigan,  University of Saskatchewan
4	104	Fixing the Home Affordable Modification Program to Mitigate the Foreclosure Crisis  Jean Braucher,  University of Arizona - James E. Rogers College of Law
5	97	Pre-Closing Liability  Omri Ben-Shahar,  University of Chicago Law Schoo
6	88	The Coaching Carousel in Big-Time Intercollegiate Athletics: Economic Implications and Legal Considerations  Richard T. Karcher,  Florida Coastal School of Law
7	85	Easterbrook on Copyright  Randal C. Picker,  University of Chicago - Law School
8	82	On and Off Contract Remedies  Richard R. W. Brooks, Alexander Stremitzer,  Yale University - Law School, Yale Law School,
9	78	Consent, Validity and Choice of Forum Agreements in International Contracts  Ronald A. Brand,  University of Pittsburgh - School of Law
10	66	After the Storm: Asymmetrical Information, Game Theory, and an Examination of the 'Minnesota Model' for National Regulation of Mortgage Brokers and Tomorrow's Predatory Lenders  Mark Ireland,  Hamline University - School of Law [Jeremy Telman]

Massachusetts finally gets public law school

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.

Great English offer-and-acceptance decision

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[2009] 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).

Conair to Plaintiff: "Dude, Get a Gmail Account"

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.

[Jeremy Telman]

Sly Stone sues manager; claims duress, undue influence

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.

Artists' Rights 101

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.)

[FGS]

Jane Austen on Contracts to Dance

 Thus the dashing Mr. Tilney addresses Catherine Morland, heroine of Northanger Abbey, upon discovering her in conversation with the odious Mr. Thorpe at the commencement of a dance:

That gentleman would have put me out of patience, had he staid with you half a minute longer. He has no business to withdraw the attention of my partner from me. We have entered into a contract of mutual agreeableness for the space of an evening, and all our agreeableness belongs solely to each other for that time. Nobody can fasten themselves on the notice of one, without injuring the rights of the other. I consider a country-dance as an emblem of marriage. Fidelity and complaisance are the principal duties of both; and those men who do not chuse to dance or marry themselves, have no business with the partners or wives of their neighbours.

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.

[Jeremy Telman]

UK Court Decides Landmark Information Technologies Case

 London's Technology and Construction Court last week ruled in British Sky Broadcasting v. Electronic Data Systems, as reported here. Electronic Data Systems (EDS) and Sky Broadcasting (Sky) agreed in 2000 that EDS would provide Sky a customer management system.  The contract included a standard clause precluding any cap on damages in a case of fraudulent misrepresentation.  By 2002, Sky was so dissatisfied with EDS that it terminated the contract and proceeded with its own staff. Sky sued EDS in 2004 claiming that it was fraudulently induced into the contract because EDS underestimated both costs and the time required to complete the work.  

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.

[Jeremy Telman]

Mixed policy signals in the online world

American courts and legislatures rely on notions of public policy to override the wishes of contracting parties, refusing to enforce contracts (or parts of contracts) which they deem to be contrary to important public interests.  They also often adopt policies to encourage certain kinds of contracting behavior.  What happens when the two situations collide?  A new law student paper, The One-Sided Voidability of Contracts Impacted by 47 U.S.C. § 230, takes a look at one example of the problem -- the interaction of contract law with the Communications Decency Act of 1996.

[FGS],