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Valparaiso Univ. Law School

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Tuesday, January 18, 2011

Introducing Laura Donohue and the General Dynamics Roundtable

Donohue
We have previously posted about Laura Donohue's scholarship, now available, by the way, via the University of Pennsylvania Law Review.  Today, we are happy to welcome her as a guest poster on the blog.  Professor Donohue will be holding forth on a case being argued today in the U.S. Supreme Court, General Dynamics v. United States, consolidated with Boeing v. United States.

We look forward to a lively discussion of the case here on the blog, and we thank Professor Donohue for starting us off.

[JT]

January 18, 2011 in About this Blog, Government Contracting, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten from the Social Science Research Network

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

November 19, 2010 to January 18, 2011

RankDownloadsPaper Title
1 636 Mortgage Servicing 
Adam J. LevitinTara Twomey
Georgetown University - Law Center, National Consumer Law Center, 
Date posted to database: December 18, 2010 
Last Revised: January 17, 2011
2 345 Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey 
Symeon C. Symeonides
Willamette University - College of Law, 
Date posted to database: January 11, 2011 
Last Revised: January 11, 2011
3 213 Party Autonomy in Rome I and IΙ from a Comparative Perspective 
Symeon C. Symeonides
Willamette University - College of Law, 
Date posted to database: October 25, 2010 
Last Revised: October 26, 2010
4 197 The Gold Clause Cases and Constitutional Necessity 
Gerard N. Magliocca
Indiana University School of Law - Indianapolis, 
Date posted to database: November 17, 2010 
Last Revised: November 21, 2010
5 171 Access or Expectation: The Test for Fiduciary Accountability 
Robert Flannigan
University of Saskatchewan, 
Date posted to database: October 29, 2010 
Last Revised: December 17, 2010
6 166 Divided Loyalties: The Attorney’s Role in Bankruptcy Reaffirmations 
Gregory M. Duhl
William Mitchell College of Law, 
Date posted to database: November 17, 2010 
Last Revised: November 17, 2010
7 139 Contract, Uncertainty and Innovation 
Ronald J. GilsonCharles F. SabelRobert E. Scott
Stanford Law School, Columbia University - Law School, Columbia University - Law School, 
Date posted to database: November 20, 2010 
Last Revised: December 3, 2010
8 133 A Collaborative Model of Offshore Legal Outsourcing 
Cassandra Burke Robertson
Case Western Reserve University - School of Law, 
Date posted to database: November 9, 2010 
Last Revised: November 9, 2010
9 114 Does Disclosure Matter? 
Florencia Marotta-Wurgler
New York University (NYU) - School of Law, 
Date posted to database: November 24, 2010 
Last Revised: December 7, 2010
10 109 The Uncorporation and the Unraveling of 'Nexus of Contracts' Theory 
Grant M. HaydenMatthew T. Bodie
Hofstra University - School of Law, Saint Louis University School of Law, 
Date posted to database: December 10, 2010 
Last Revised: December 15, 2010

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  

November 19, 2010 to January 18, 2011

RankDownloadsPaper Title
1 344 Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey 
Symeon C. Symeonides
Willamette University - College of Law, 
Date posted to database: January 11, 2011 
Last Revised: January 11, 2011
2 93 Pregnant Man?: A Conversation 
Darren RosenblumNoa Ben-AsherMary Anne CaseElizabeth F. EmensBerta E. Hernández-TruyolVivian M. GutierrezLisa Chiyemi IkemotoAngela Onwuachi-WilligJacob Willig-OnwuachiKimberly MutchersonPeter SiegelmanBeth Jones
Pace Law School, Pace University - School of Law, University of Chicago Law School, Columbia Law School, University of Florida Levin College of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Davis - School of Law, University of Iowa College of Law, Unaffiliated Authors - affiliation not provided to SSRN, Rutgers School of Law-Camden, University of Connecticut - School of Law, Unaffiliated Authors - affiliation not provided to SSRN
Date posted to database: December 17, 2010 
Last Revised: January 5, 2011
3 92 The English vs. The American Rule on Attorneys Fees: An Empirical Study of Attorney Fee Clauses in Publicly-Held Companies’ Contracts 
Theodore EisenbergGeoffrey P. Miller
Cornell University - School of Law, New York University (NYU) - School of Law, 
Date posted to database: November 11, 2010 
Last Revised: November 15, 2010
4 62 An Optional Instrument on EU Contract Law: Could it Increase Legal Certainty and Foster Cross-Border Trade? 
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL), 
Date posted to database: October 23, 2010 
Last Revised: December 15, 2010
5 60 The Role of Dynamic Renegotiation and Asymmetric Information in Financial Contracting 
Michael R. Roberts
University of Pennsylvania - The Wharton School - Finance Department, 
Date posted to database: December 31, 2010 
Last Revised: December 31, 2010
6 59 An Optional Contract Law for Europe? (Rote Karte oder grünes Licht für den Blue Button) (German) 
Walter Doralt
Max Planck Institute for Comparative and International Private Law, 
Date posted to database: November 11, 2010 
Last Revised: November 11, 2010
7 40 How Organisational and Structural Weaknesses Impacted the Harmonisation Process and What it Implies for European Private Law (Strukturelle Schwächen in der Europäisierung des Privatrechts – Eine Prozessanalyse der jüngeren Entwicklungen) (German) 
Walter Doralt
Max Planck Institute for Comparative and International Private Law, 
Date posted to database: November 11, 2010 
Last Revised: November 11, 2010
8 39 The Double Soul of Promissory Estoppel - A Comparative View 
Paolo Pardolesi
Università degli Studi di Bari - Faculty of Law, 
Date posted to database: November 5, 2010 
Last Revised: December 8, 2010
9 32 A Toolbox for European Judges 
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL), 
Date posted to database: December 17, 2010 
Last Revised: December 17, 2010
10 30 Arbitration's Suspect Status 
Hiro N. Aragaki
Fordham University - Fordham University Schools of Business, 
Date posted to database: November 29, 2010 
Last Revised: December 28, 2010

[JT]

January 18, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

$75 Million Suit Against the Kardashians

KK This blog has thus far been completely Kardashian free.  Is that because we are too highfalutin to cover contracts involving reality television?  Probably not, as this post should attest.  As best as we can piece thing together form reports on the suit, such as this one from CNN, the Kardashian sisters, Kim (pictured), Khloe and Kourtney, endorsed a pre-paid credit card, the Kardashian Kard.  Given their family's attachment to the eleventh letter of the alphabet, they could have called it the KKK Kard, but nobody ever listens to our marketing ideas for some reason.  In any case, the sisters withdrew their endorsement of the "Kard" when it was criticized for predatory fees.  CNN reports that debit cards usually come with monthly maintenance fees that average $13, while a 12-month "Kard" would cost about $100.  There were additional costs -- $1 for adding money to the card; $1.50 to speak with a live operator, even though that operator would not be a Kardashian; $2/transaction to pay bills with the card.  We at the blog do not know what the Kardashians want to be known for, but it is apparently not predation.

The Revenue Resource Group (RRG) is suing the sisters, their mother and their LLC, seeing to recover the $75 million it expects to lose as a result of the sisters' alleged breach of contract.  As RRG's attorney put it, "With the Kardashians' star power, the amount of cards they would have sold would have been off the chart."  RRG also seeks to recover $500,000 in out-of pocket expenses, which includes the $65,000 the company apparently spent on a "launch party."  The sisters reportedly were not the lives of the party, as they tried to leave early, only returning when their mother was called in to bring them back, and spending much of the evening huddled in a corner sending text messages via iPhones.

That last part of the story is not very credible, since iPhones don't really work for such purposes, as Jon Stewart illustrates in this clip.  While we're on the topic of iPhones, check out how to walk away from your AT&T contract here.

[JT]

January 18, 2011 in Celebrity Contracts, In the News, Recent Cases | Permalink | Comments (2) | TrackBack (0)

Monday, January 17, 2011

Breaking: U.S. Renews Contract with Spotted Ground Squirrels Through 2015

Blacksquirrelrev Trusted reporting from the Onion; read it here.  An excerpt:

"We're happy to have finally reached an agreement with this vital American species, and we thank all the ground squirrels who have been carrying on in good faith for the past 18 months while we worked this out," a jubilant but visibly exhausted Interior Secretary Ken Salazar told reporters at a press conference Tuesday. "Their continued participation in our forests, meadows, and prairies is an integral part of our natural world, and I think our generous offer reflects that fact."

[Meredith R. Miller]

January 17, 2011 in In the News, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

How to Walk Away From Your Contract with AT&T To Get a Verizon Iphone

Verizon-iphone Yes, it is finally true, Apple's exclusive deal with AT&T is over, and the Iphone will now be available from Verizon.  Verizon is widely believed to be a much more reliable carrier (though, some question whether the Iphone will test Verizon's system).  

What if you already have an AT&T iphone and you want to walk away from the contract so you can get a Verizon Iphone?  (The hardware in the phones are slightly different, so you cannot use your AT&T phone on the Verizon network).

The folks at LifeHacker have posted a how-to guide-- that is, how-to efficiently breach your AT&T contract.  They discuss (1)  how to figure out the early termination fee owed to AT&T (here's an ETF calculator) and then (2) how to eliminate or avoid that cost by, among other suggestions, reselling your old phone.  The advice is quite entertaining -- with suggestions such as attempting to negotiate out of the early termination fee (described for some reason as "unethical"), challenging formation based on unilateral amendments, or assignment/novation. 

[Meredith R. Miller]

January 17, 2011 in In the News, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Court of Federal Claims Finds No Breach of Implied Contract of Fair Dealing


On January 11, 2011, the Court of Federal Claims issued its opinion and order in Resource Conservation Group, LLC v. United States.  The case involved the plaintiff's bid to lease property that had once been the U.S. Naval Academy's dairy farm.  Resource Conservation Group (RSC) bid on the property and stated its intention to mine the property for sand and gravel.  The Navy responded that it was barred from considering RSC's bid because its proposed use would constitute a disposal of the the property prohibited by section 6976(a)(2)(A) of Title 10 of the United States Code.  In 2008, the Navy entered into a 30-year lease with Anne Arundel County for the county's use and preservation of the N.S. Naval Academy's Dairy Farm.

Naval Academy Insignia RCG responded with a suit alleging that the Navy had breached an implied contract of fair and honest consideration and had violated the Administrative Procedure Act.  It's argument on the breach of implied contract claim was basically that the Navy led it on by encouraging it to bid knowing that RCG's intentions with respect to the dairy farm.  RCG contended that the Navy misconstrued the relevant provisions and should have entertained its bid.  In the alternative, RCG claimed that it was entitled to reimbursement of its bid costs.  

The Court of Claims ruled that the Navy correctly interpreted the relevant statutes and that it was therefore indeed precluded from considering RCG's bid.  In addition, in order for the Navy to have breached the implied contract of fair and honest consideration, it must have acted arbitrarily and capriciously.  The court had no difficulty in determining that the Navy had notdone so.

RCG's claim that it was at least entitled to reimbursement of bidding costs seems more plausible.  As in the General Dynamics/Boeing case currently pending before the U.S. Supreme Court, this part of RCG's case relied in part on its allegations that the government had superior knowledge and thus  had a duty to disclose that knowledge to RCG.  Specifically, RCG maintained that since the Navy knew of its own interpretation of the statute, it should have let RCG know that it would be wasting its time if it bid on the property for the purpose of turning it into a gravel pit.  The court rejected this argument, pointing out the relevant standard: "RCG is held accountable for 'knowledge of law . . . appropriate to the subject matter' and 'reasonable professional competence in reading' the contract. 

[JT]

 

January 17, 2011 in Government Contracting, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, January 14, 2011

A New Contracts Defense: Killer Bees

In my contracts class, we’ve just begun our study of standard contracts defenses.  Interestingly, via the Consumerist, here's a very non-standard attempt to get out of a contract, based on an alleged infestation of an RV by Killer Bees. 

Having bid on an auction for an RV that was posted on eBay, the buyer sent in a deposit quickly (in part because it was such a good deal).  In response, this was the email that the buyer allegedly received from the auto dealership:

We are devastated with our discovery this morning of a swarm of Africanized killer bees in the 2007 Sandpiper 325RG 5th wheel that you have a deposit on. We have used multiple poisons in an attempt eradicate them. We have vacuumed up the bees that covered the floors, cabinets, and furniture. We tried to clean the traces of honey on the countertops and cabinet tops as completely as possible. This is one of the terrible acts of Mother Nature we have in Arizona. As best we can determine, the bees entered from the door that had been left opened yesterday morning. The interior of this trailer does have a strong chemical odor from the poison and is TOXIC. Our insurance regulations prohibit us from selling this 5th wheel at this time.  Due to these circumstances beyond our control, we are unable to proceed with the sale of this 2007 Sandpiper 325RG 5th wheel. This vehicle is unsafe for occupancy or use. We are therefore refunding your deposit at this time. We have attached several photos. Watch EBay for other close-outs we will be posting soon.

After consulting with an attorney, the buyer sent an email saying that he would still take possession of the vehicle despite the problems.  According to the buyer, the dealership then changed tactics, then claiming that they had no idea about the bees, that there was no contract, and that the

Assuming Buyer’s version is believed, the conflicting versions begin to look like fraud, rather than the establishment of a frustration of purpose (by bee) defense.

[Miriam Cherry/Hat Tip: Megan Thacker]

January 14, 2011 in True Contracts | Permalink | TrackBack (0)

“And the Golden Globe goes to…the Parol Evidence Rule!”

Jolie golden globes The telecast of the 68th Annual Golden Globe Awards Ceremony is this Sunday, January 16th.  Although True Grit was rumored to be the favorite for “Best Use of Contract Law in a Western or Documentary” here, it appears to have been omitted from the actual list of nominees.  Also not mentioned on the Golden Globe site is the Parol Evidence Rule issue at the heart of the ongoing contract dispute between the Hollywood Foreign Press Association (“HFPA”), which votes on and presents the Golden Globe awards, and Dick Clark Productions (“DCP”), which produces the award telecast. 

 The contract between HFPA and DCP, as amended: (i) gave DCP the right to license the telecast rights for the awards ceremony to a broadcast network (DCP chose NBC); and (ii) specified that HFPA and DCP would split the license payment 50/50.  However, when DCP recently awarded an extension of the telecast license to NBC without first consulting with HFPA, HFPA sued.  HFPA claims that DCP cannot grant an extension of a license without HFPA’s consent.  The primary problem with HFPA’s argument, however, is that the written contract says nothing about HFPA’s consent.  Instead, it states that DCP may grant “any extensions, renewals, substitutions or modifications of the NBC Agreement, and to exploit such productions in all media through the world in perpetuity."  The words “subject to HFPA’s consent” or “only with HFPA’s consent, not to be unreasonably withheld” simply are not there.  And that is where the Parol Evidence Rule enters Stage Left.  HFPA’s preferred term would appear to contradict the writing (if the agreement is partially integrated) or at least fall within its scope (if the agreement is fully integrated).  Thus, evidence of such a consent requirement likely would be barred by the Parol Evidence Rule   However, as reported in this recent Variety article, HFPA has a decent argument under California law, which allegedly is rather welcoming to extrinsic evidence.  Hopefully, some of you more familiar with California law will comment on the accuracy of that assessment.

Biased Author Note:  I am cheering for HFPA in this one.  DCP now is owned by the same conglomerate that owns the Washington Redskins.  And if you’re a Dallas Cowboys fan like I am, you don’t like to see the Redskins’ owner, Dan Snyder, win anything.  

[HRA]

January 14, 2011 in Celebrity Contracts, Contract Profs, Current Affairs, Film, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Federal Contractors and Arbitration of Sexual Assault and Harassment Claims

Al_Franken_Official_Senate_Portrait As reported in the Bureau of National Affairs (BNA) Federal Contracts Report (subscription necessary, alas) -- and nowhere else that I can find on the web -- on December 8, 2010, the Department of Defense (DoD) issued its final rule implementing Section 8116 of the 2010 Defense Appropriations Act, known as the Franken Amendment.  The Amendment applies to DoD contracts of more than $1 million and provides that contractors awarded such contracts must not require employees to arbitrate their Title VII claims or "any tort relating to or arising out of sexual assault or harassment."

According to the BNA Report, the Franken Amendment was a response to the case of Jamie Leigh Jones, a former employee of government contractor and former Halliburton-subsidiary, KBR.  Ms. Jones alleged that her fellow KBR employees drugged and gang-raped raped her while she was working for the company in Baghdad.  She further alleged that KBR confiscated, hid and tampered with the rape kit compiled by an army doctor who treated Ms. Jones.  KBR then allegedly confined Jones to a shipping container under armed guard and denied her food, water and medical treatment. 

Jones's case inspired Senator Franken (pictured) because KBR argued that her claims were subject to arbitration and sought dismissal of her suit from the federal courts.  The Fifth Circuit denied KBR's motion to compel arbitration and remanded the case to the District Court.  KBR's petition for cert. was denied in March.  

[JT]

January 14, 2011 in Current Affairs, Government Contracting, Legislation | Permalink | Comments (0) | TrackBack (0)

Thursday, January 13, 2011

Welcome to the Blog, Heidi Anderson!

Heidi Anderson Before stepping down as our Dear Leader, Frank Snyder recruited some new additions to our line-up of contributing editors, and I will have the pleasure of introducing them as they begin posting on the blog.  The first such sucker new contributor is the Florida Coastal School of Law's Heidi Anderson.

Prior to joining the Florida Coastal faculty in 2008, Professor Anderson practiced media and telecommunications law with Akin Gump Strauss Hauer & Feld, LLP in Washington, D.C.  During and prior to law school, she interned with law firms in Charlotte and Greensboro, NC and for the United States Court of Appeals for the Federal Circuit.  

On behalf of the veteran bloggers at the ContractsProf Blog, welcome to the blog!  We look forward to adding your virtual voice to our cacophony.

[JT]

January 13, 2011 in About this Blog, Contract Profs | Permalink | Comments (2) | TrackBack (0)

Deadline Approaching for Spring Contracts Conference Hotel

AALS At 11:00 AM last Friday, the chant went up loud and clear in San Francisco:

"What do we want?"

"Contracts!"

"When do we want 'em?"

"Now!"

Were I in Valparaiso, where I have trained my first-year students to initiate this chant at the beginning of every Civil Procedure and Criminal Law class, I would not be surprised.   But in San Francisco?

At first, I thought it was the union workers outside of the San Francisco Hilton, but upon closer inspection, I noticed that most of the people carrying signs and chanting were wearing their AALS badges.  And given that a session of the AALS conference had just let out, I can only conclude that what they meant was something like, "We are not satisfied with the three hours of contracts law discussion hosted by the AALS Section on Contracts yesterday.  Enough of these other sessions that don't interest us.  We want more contracts sessions!"

Fortunately, there is a solution.  As we mentioned before, Stetson University College of Law and Texas Wesleyan School of Law are co-sponsoring the 6th Annual International Conference on Contracts, February 18 and 19, 2011, at Stetson’s beautiful campus in Gulfport, Fla. Similar to previous contracts conferences held at UNLV, McGeorge, South Texas, Texas Wesleyan, and Gloucester, England, this conference is designed to offer scholars and teachers at all experience levels an opportunity to present and discuss recently-published papers, forthcoming papers, works-in-progress, and pedagogical innovations, and to network with colleagues from the U.S and around the globe.

The conference hotel will be the Tradewinds Resort in nearby St. Pete Beach. Need we say more?  Well, in case we do need to say more, we'll say this: Stewart Macauley will give the keynote address.  

You can register for the conference here.

But here's the deal: those planning on attending need to reserve a hotel room by January 18th.  Otherwise, the Tradewinds will release the rooms and you won't be guaranteed a place to stay.  Of course, there are other options nearby.

Bates Motel
[JT]

January 13, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 12, 2011

Labor Dispute at the New York City Ballet

Balletomanes throughout the Great Flyover let out a collective "Hot Diggety!" when we learned that the New York City Ballet was to create a touring company so that the unwashed masses can soon be awash in the creations of George Balanchine and Jerome Robbins.  Alas, there is trouble in paradise.  Who'da thunk there could be tension or conflict within a dance company?  Not Natalie Portman, that's for sure!

As Crain's New York reports here, the union that represents the dancers contends that the plan to create a touring company that does not include the entire company violates the dancers' contracts.  The plan requires the union's consent, the dancers claim, and the NYCB did not get it.  In fact, the union claims that it was not even consulted before the NYCB announced its plans to create a touring company.

If I could, I would now include a video of the NYCB performing, but they are very careful not to let any of their performances make it onto YouTube, so we'll have to make due with with this video of the San Francisco Ballet performing Balanchine's "Serenade"

I have to add that, although the San Francisco ballet is absolutely fabulous, this video does not come close to capturing the emotional punch that "Serenade" packs.  You have to see it live and hopefully, once this little squabble is put behind us, audiences throughout the country will be able to do so.

[JT]

January 12, 2011 in In the News, Labor Contracts | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 11, 2011

The Gates of Hell[ish Mandatory Arbitration]?

Arb clause Thanks to Michigan State University's Daniel Barnhizer and his student Christpher Anderson, we have the picture at right, which Mr. Anderson found taped to a local burger franchise while he was home in Texas for the holidays.

If you can't read the text, here it is in full: 

"Arbitration Notice"

"By entering these premises, you hereby agree to resolve any and all disputes or claims of any kind whatsoever, which arise from the products, services or premises, by way of binding arbitration, not litigation. No suit or action may be filed in any state or federal court. Any arbitration shall be governed by the FEDERAL ARBITRATION ACT, and administered by the American Mediation Association.

"Arbitration Notice"

Further research by contracts profs provides further information regarding the aforementioned American Mediation Association on this website.  Even as we speak, contracts profs are debating the effectiveness of this notice and of the counter-notice suggested by Ian Ayres here.  

[JT]

January 11, 2011 in Current Affairs, Food and Drink | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten from the Social Science Research Network

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

October 31, 2010 to December 30, 2010

Our own Meredith Miller continues to lead the pack -- three weeks running now! -- on the Law & Society List.  

RankDownloadsPaper Title
1 201 Party Autonomy in Rome I and IΙ from a Comparative Perspective 
Symeon C. Symeonides
Willamette University - College of Law, 
Date posted to database: October 25, 2010 
Last Revised: October 26, 2010
2 194 Suing the Government as a 'Joint Employer' - Evolving Pathologies of the Blended Workforce 
Steven L. SchoonerCollin D. Swan
George Washington University - Law School, George Washington University - Law School, 
Date posted to database: October 21, 2010 
Last Revised: November 16, 2010
3 193 The Gold Clause Cases and Constitutional Necessity 
Gerard N. Magliocca
Indiana University School of Law - Indianapolis, 
Date posted to database: November 17, 2010 
Last Revised: November 21, 2010
4 157 Divided Loyalties: The Attorney’s Role in Bankruptcy Reaffirmations 
Gregory M. Duhl
William Mitchell College of Law, 
Date posted to database: November 17, 2010 
Last Revised: November 17, 2010
5 148 The Regulation of Surrogate Motherhood in Greece 
Aristides N. Hatzis
University of Athens - Department of Philosophy & History of Science, 
Date posted to database: October 10, 2010 
Last Revised: October 10, 2010
6 148 Access or Expectation: The Test for Fiduciary Accountability 
Robert Flannigan
University of Saskatchewan, 
Date posted to database: October 29, 2010 
Last Revised: December 17, 2010
7 137 When Do Fiduciary Duties Arise? 
James J. Edelman
University of Oxford - Faculty of Law, 
Date posted to database: October 26, 2010 
Last Revised: November 13, 2010
8 126 Contract, Uncertainty and Innovation 
Ronald J. GilsonCharles F. SabelRobert E. Scott
Stanford Law School, Columbia University - Law School, Columbia University - Law School, 
Date posted to database: November 20, 2010 
Last Revised: December 3, 2010
9 98 Does Disclosure Matter? 
Florencia Marotta-Wurgler
New York University (NYU) - School of Law, 
Date posted to database: November 24, 2010 
Last Revised: December 7, 2010
10 96 Structure and Reform of Corporate Governance in the United Kingdom in Relation to the Shareholder Versus the Stakeholder Theory 
Rohit Arora
Unaffiliated Authors - affiliation not provided to SSRN
Date posted to database: September 29, 2010 
Last Revised: September 29, 2010

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic) 

October 31, 2010 to December 30, 2010

RankDownloadsPaper Title
1 91 Strategic Default: The Popularization of a Debate Among Contract Scholars 
Meredith R. Miller
Touro College - Jacob D. Fuchsberg Law Center, 
Date posted to database: October 3, 2010 
Last Revised: November 17, 2010
2 87 The English vs. The American Rule on Attorneys Fees: An Empirical Study of Attorney Fee Clauses in Publicly-Held Companies’ Contracts 
Theodore EisenbergGeoffrey P. Miller
Cornell University - School of Law, New York University (NYU) - School of Law, 
Date posted to database: November 11, 2010 
Last Revised: November 15, 2010
3 55 An Optional Instrument on EU Contract Law: Could it Increase Legal Certainty and Foster Cross-Border Trade? 
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL), 
Date posted to database: October 23, 2010 
Last Revised: December 15, 2010
4 49 An Optional Contract Law for Europe? (Rote Karte oder grünes Licht für den Blue Button) (German) 
Walter Doralt
Max Planck Institute for Comparative and International Private Law, 
Date posted to database: November 11, 2010 
Last Revised: November 11, 2010
5 38 Rudolf Von Jhering’s Influence on Karl Llewellyn 
Robert WhitmanJulie E. Wynns
University of Connecticut School of Law, Unaffiliated Authors - affiliation not provided to SSRN
Date posted to database: October 1, 2010 
Last Revised: October 1, 2010
6 36 How Organisational and Structural Weaknesses Impacted the Harmonisation Process and What it Implies for European Private Law (Strukturelle Schwächen in der Europäisierung des Privatrechts – Eine Prozessanalyse der jüngeren Entwicklungen) (German) 
Walter Doralt
Max Planck Institute for Comparative and International Private Law, 
Date posted to database: November 11, 2010 
Last Revised: November 11, 2010
7 35 The Double Soul of Promissory Estoppel - A Comparative View 
Paolo Pardolesi
Università degli Studi di Bari - Faculty of Law, 
Date posted to database: November 5, 2010 
Last Revised: December 8, 2010
8 26 Arbitration's Suspect Status 
Hiro N. Aragaki
Fordham University - Fordham University Schools of Business, 
Date posted to database: November 29, 2010 
Last Revised: December 28, 2010
9 20 Autonomy and Paternalism from a Common Law Perspective: Setting Aside Disadvantageous Transactions 
Stephen Michael Waddams
University of Toronto - Faculty of Law, 
Date posted to database: October 25, 2010 
Last Revised: October 25, 2010
10 18 Fannie Mae/Freddie Mac Home Mortgage Documents Interpreted as Nonrecourse Debt (with Poetic Comments Lifted from Carl Sandburg) 
John Mixon
University of Houston - Law Center, 
Date posted to database: November 19, 2010 
Last Revised: November 19, 2010

[JT]

January 11, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 10, 2011

An Introduction to Our Roundtable on General Dynamics and Boeing

A-12_Avenger_ConceptOn January 18th, the U.S. Supreme Court will hear argument on a pair of consolidated contracts cases.  The issue before the court is the state secrets privilege, a subject on which the court has not weighed in since it created the modern state secrets privilege in United States v. Reynolds, decided in 1953.  Next week, in anticipation of oral argument, we have invited some scholars and practitioners with expertise in the area to weigh in with their thoughts on the case.  We provide some background below, drawing on an article by two of the people who have agreed to participate in our roundtable, Neil H. O'Donnell and Dennis J. Callahan, both of Rogers Joseph O'Donnell.  Their full article appeared in 52 The Government Contractor, No. 45 (Dec. 8, 2010).  Links to prior opinions, briefs and other materials can be found on the invaluable SCOTUSblog.

In 1988, the Navy awarded General Dynamics and McDonnell Douglas a fixed price contract to develop the A-12, a carrier-based, stealth aircraft  (an artist's conception of which appears at right).   Alleging default, the Navy terminated the contract in 1991 and the contractors filed suit in the Court of Claims challenging the Navy's claim that they were in default.  Boeing is the successor in interest to McDonnell Douglas.

In 2009, the Federal Circuit recognized the case as an American Jarndyce and Jarndyce, but the Supreme Court, in accepting cert., has agreed to decide only the issue of the applicability of the state secrets privilege (the SSP) to this case.  The litigation is currently in its third round.  In the second round, the Federal Circuit upheld the Court of Claims' finding that the SSP precluded the contractors from asserting their claim that the government had superior knowledge regarding stealth technology that it had failed to disclose.  The issue on which the Supreme Court has agreed to hear argument is "Whether the government can maintain its claim against a party when it invokes the state-secrets privilege to completely deny that party a defense to the claim." 

That is the case in a very small nutshell.  I will leave it to our guest bloggers to explore the issue in further detail in the coming weeks.

[JT] 

January 10, 2011 in About this Blog, Commentary, Government Contracting, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, January 7, 2011

Melanie Thernstrom on Surrogacy in the New York Times Magazine

Oocyte_granulosa_cellsTwo years ago, we posted about a New York Times Magazine article by Alex Kuczynski in which she recounts her experience as the mother of a child born through the use of a surrogate mother.  That article was problematic for reasons touched on in the previous post, which mostly focused on the criticisms directed at people who enter into surrogacy contracts and ended with the following plea: "Rather than simply bashing people who enter into surrogacy contracts, let's talk about the implications of the options."

The New York Times Magazine has now published Melanie Thernstrom's essay, "My Futuristic Insta-Family,"  aka "Meet the Twiblings" in the online version, which does precisely that.  In the article, Thernstrom briefly recounts her experience with infertility treatments and then describes how she and her husband decided to have two children using two different surrogate mothers.  Thernstrom's "Twiblings" were born five days apart.

For those interested in the topic, I recommend reading the article, because I cannot do it justice in a blog post.  What amazes me about Thernstrom's piece is that she manages to raise just about every issue relating to surrogacy contracts -- legal issues, moral issues, socio-economic issues, political issues, linguistic issues -- and she has something interesting to say about each one, but she does not try to provide satisfactory solutions to any of them.  She acknowledges that this stuff is messy and personal and that we lack the ability right now to figure a way out of the mess that satisfies all interested parties.  Such is life.  We muddle through.  

She also writes so well that I will not try to paraphrase her.  Rather here are some choice quotations that struck me as especially appropriate for this blog:

The legal status of surrogacy is varied. In a number of states, the status is unclear or surrogacy is prohibited. There were several cases of surrogacy in recent years in which the surrogate succeeded in keeping the baby despite an absence of any genetic connection. 

There are objections to it on the right, on religious grounds, as violating the natural order and the trinity of father-mother-baby, or as being part of a slippery slope that would lead to abominations like human cloning. There are objections on the left by those who say that surrogacy is exploitative and degrading for the women, irrespective of what the women who become surrogates say about it. (Some people believe only paid surrogacy is exploitative but unpaid surrogacy is fine.)

The role of a gestational carrier’s husband is, in some ways, more difficult than that of the carrier herself. The husband is, as Fie puts it, “a bystander to a miracle,” who partakes in the inconvenience of his wife’s pregnancy but has fewer emotional rewards (as well as the occasional negative reaction from a stranger whose congratulations for a new chip off the old block can turn to disapproval).

A childless friend of mine compared surrogacy to prostitution, saying that she personally would prefer to be a prostitute. 

We wanted to pay, because it made the relationship feel more reciprocal. There was one woman who responded to my surrogacy listing who said she didn’t want any financial compensation. . . . “That’s our contribution,” I said, flummoxed — “one of the things we can give back.” 

Third-party reproduction creates all kinds of relationships for which there are not yet terms. For example, there is no word to describe the relationship between our children and the carriers’ children, but it feels to me that they are, somehow, related. 

There is also no word to describe our children’s relationship with each other. 

 Not surprisingly, not every reader reacted positively to Thernstrom's article.  She responds to her critics here.

[JT]

January 7, 2011 in In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

Thursday, January 6, 2011

AALS Meeting Affected By Labor Dispute

AALS As many readers of this blog already know, many of us are currently in San Francisco attending the annual meeting of our bricks and mortar mother ship, the Association of American Law Schools.  That meeting has been the subject of some controversy this year, as its official home is San Francisco's Hilton Union Square Hotel, which has been the subject of a union-organized boycott for over a year now.  

Unfortunately, this is not the sort of situation that lends itself to neutrality.  The workers are encouraging consumers to boycott the affected hotels rather than striking.  Consumers thus choose whether to side with management or with the union by booking at the Hilton or booking elsewhere.  And the union faces a challenge because without a strike and picket lines, boycotted hotels look pretty much like other hotels.  You would not know when you walked by or entered the hotel that it is the subject of a labor dispute.  Information about the boycott can be found here.

The AALS is caught in the middle, as it made its contractual  commitment to the Hilton long before the boycott began and apparently could not back out without incurring very high costs.  The AALS's leadership set forth their reasoning for not cancelling or relocating here.  Subsequently, the vast majority of section organizers determined that their sessions will be held elsewhere, including two very exciting sessions organized by the Contracts section, as detailed in Keith's post below.  I believe that our other regular bloggers will be in attendance, and we would all welcome the opportunity to meet with our readers and discuss ways to improve the blog.

[JT]

 

January 6, 2011 in Conferences, Current Affairs, Labor Contracts | Permalink | TrackBack (0)

Wednesday, January 5, 2011

Update on Madoff Mutual Mistake Case: NY Appellate Division Reverses

We've been following the Madoff mutual mistake case -- that is, the lawsuit (also previously mentioned here and here) by a Paul Weiss partner to unravel a divorce settlement that included a payout to his wife for the right to keep the $5.4 million (or so they thought) Madoff account.  As part of the settlement husband paid wife $2.7 million in cash, and he sued wife to modify the settlement agreement based on mutual mistake as to the value of the "account." 

The trial court had dismissed the complaint in its entirety.  Yesterday, over a two-judge dissent, the Appellate Division reversed, mainly on the reasoning that a motion to dismiss must accept the allegations of the complaint as true.  The majority wrote:

Plaintiff pleads mutual mistake with the requisite particularity (see CPLR 3016(b); Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 [2008]), and the amended complaint states a cause of action for reformation based on mutual mistake (see e.g. Banker v Banker, 56 AD3d 1105 [2008]; House v Wechsler, 104 App Div 124 [1905]). Contrary to defendant's contention, mutual mistake can be based on a statement by a third party (see e.g. D'Antoni v Goff, 52 AD2d 973 [1976]; House, 104 App Div at 127). The cases cited by defendant where claims were dismissed pursuant to CPLR 3211(a)(5) did not involve mutual mistake.

The documentary evidence proffered by defendant (see CPLR 3211(a)(1)) does not utterly refute plaintiff's factual allegations or conclusively establish a defense as a matter of law (see e.g. McCully v Jersey Partners, Inc., 60 AD3d 562 [2009]). With respect to the branch of defendant's motion based upon CPLR 3211(a)(7), even though defendant submitted documents, "dismissal should not eventuate" unless she shows that a material fact alleged by plaintiff "is not a fact at all and unless it can be said that no significant dispute exists regarding it" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Such is not the case here.

The motion court and the dissent both err in relying on the claim - which was not in defendant's affidavit - that, for several years after the parties' agreement, plaintiff could have redeemed what the parties believed to be their account for cash in excess of its supposed value as of the cut-off date selected by the parties (see e.g. Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]). Both the motion court and the dissent also err by resolving a fact - the assumption on which the parties relied in dividing their property - in defendant's favor on a motion to 
dismiss (see Viskovich v Walsh-Fuller-Slattery, 16 AD2d 67 [1962], aff'd 13 NY2d 1100 [1963] [trial was held when the plaintiff alleged that state of facts assumed to exist at time of the parties' agreement did not, in fact, exist]).

Indeed, the dissent speculates as to plaintiff's expectations that the "Madoff account [. . .] continue its highly profitable performance" and asserts "[a]ccordingly, he alone took on the risk that he might not be able to recoup his investment" citing Reiss v Financial Performance Corp. (97 NY2d 195, 201 [2001]).

A couple of observations are in order: First, in the context of a CPLR 3211 motion, plaintiff's motivations as alleged by defendant are irrelevant because the allegations in the amended complaint must be accepted as true. Second, Reiss is a declaratory injunction action concerning a stock swap; no allegation of mutual mistake is present.

Further, even though there is an express contract between the parties, it is unclear whether it covers the current dispute; therefore, plaintiff may plead unjust enrichment (see e.g. IIG Capital LLC v Archipelago, L.L.C., 36 AD3d 401, 405 [2007]), and the amended complaint states such a cause of action (see Simonds v Simonds, 45 NY2d 233, 242 [1978]).

Finally, defendant and the dissent ignore the allegations of mutual mistake as to the actual existence of the account itself. Both defendant and the dissent attempt to foreclose plaintiff's claims by transmogrifying the claim of mutual mistake into a claim of mistake in valuation. [*3]

The dissent states: "[a]t the time of the agreement, Steven had an account in his name with [Madoff]." Untrue. Steven never had an account in his name with Madoff; on Madoff's own admission there were no accounts within which trades were made on behalf of investors.

The dissent then states, "Steven liquidated part of the account to fund his payments to Laura." Untrue. In Madoff's Ponzi scheme what appeared to Steven and Laura to be a partial liquidation of an account was simply a payment to Steven that came from funds deposited by a more recent "investor" in what the "investor" believed was his own account.

The dissent further observes, "[Steven] did not liquidate the rest of the Madoff account . . . and he continued to invest in it." Untrue. There was no account which could be liquidated, as became apparent when Madoff received $7 billion worth of "liquidation" calls from investors in 2008. Nor was Steven "investing" in an account; his further contributions went directly to pay other "investors" in the scheme.

Read the entire decision and dissent here.  There is a roundup of coverage over at Above the Law.

Simkin v. Blank, 2011 NY Slip Op 00001 (App. Div. 1st Dep't Jan. 4, 2011).

[Meredith R. Miller]

January 5, 2011 | Permalink | Comments (0) | TrackBack (0)

Contract Issues in True Grit

Here is a trailer for the Coen Brothers' True Grit

 

I expected to love this Coen Brothers' film, as I love most of their work, but I did not expect that the first half hour of the film would consist of a series of contracts law hypotheticals and repeated threats by the young protagonist, Mattie Ross, to "go to the law."  

I'm afraid I would have to consult the screenplay -- which I do not have -- if I were to do justice to the issues raised, but the short summary is as follows:

Mattie's murdered father purchased two ponies from a dealer just before he was killed by the villanous Tom Chaney (played in this version by the IMHO too good-looking Josh Brolin).  Mattie returns to the dealer for a refund of her money plus various other amounts she claims she is due.  At some point, she also threatens the dealer with a writ of replevin, a phrase I was delighted to hear issuing from the mouth of the young Hailee Steinfeld, who is absolutely fabulous as Mattie.  I think the writ had to do with her claim to her father's saddle.  The dispute is settled out of court and Mattie somehow rides off with one of the ponies and enough cash to finance the remainder of the plot. 

Additional disputes arise when Mattie advanced $50 to Rooster Cogburn (played in this version by Jeff Bridges) who had promised to take her along on the hunt for Tom Chaney but then had left for the Choctaw Territory without her.  That contractual dispute was settled in the Choctaw Territory.  I understand that the Mattie of Charles Portis' novel is wont to quote scripture; the Coen Brother's Mattie seems to have focused more on the law, as is evident when she explains to the baffled Rooster the difference between malum prohibitum and malum in se.  Her knowledge of Latin endears her to Matt Damon's Laboeuf.  By the way, Damon's ability to morph from action hero to the buffoonish LaBoeuf, with a brief interlude playing Sarah Silverman's lover, really demonstrates what a complete actor he has become.

The film has other elements to recommend it, but one could certainly enjoy it just for the legal environment that it either captures or creates.

[JT]

January 5, 2011 in Commentary, Film | Permalink | TrackBack (0)

Tuesday, January 4, 2011

Weekly Top Tens from the Social Science Research Network

SSRN RECENT HITS (for all papers announced in the last 60 days)

October 31, 2010 to December 30, 2010


TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 

 

Rank Downloads Paper Title
1 201 Party Autonomy in Rome I and IΙ from a Comparative Perspective
Symeon C. Symeonides,
Willamette University - College of Law,
Date posted to database: October 25, 2010
Last Revised: October 26, 2010
2 194 Suing the Government as a 'Joint Employer' - Evolving Pathologies of the Blended Workforce
Steven L. Schooner, Collin D. Swan,
George Washington University - Law School, George Washington University - Law School,
Date posted to database: October 21, 2010
Last Revised: November 16, 2010
3 193 The Gold Clause Cases and Constitutional Necessity
Gerard N. Magliocca,
Indiana University School of Law - Indianapolis,
Date posted to database: November 17, 2010
Last Revised: November 21, 2010
4 157 Divided Loyalties: The Attorney’s Role in Bankruptcy Reaffirmations
Gregory M. Duhl,
William Mitchell College of Law,
Date posted to database: November 17, 2010
Last Revised: November 17, 2010
5 148 The Regulation of Surrogate Motherhood in Greece
Aristides N. Hatzis,
University of Athens - Department of Philosophy & History of Science,
Date posted to database: October 10, 2010
Last Revised: October 10, 2010
6 148 Access or Expectation: The Test for Fiduciary Accountability
Robert Flannigan,
University of Saskatchewan,
Date posted to database: October 29, 2010
Last Revised: December 17, 2010
7 137 When Do Fiduciary Duties Arise?
James J. Edelman,
University of Oxford - Faculty of Law,
Date posted to database: October 26, 2010
Last Revised: November 13, 2010
8 126 Contract, Uncertainty and Innovation
Ronald J. Gilson, Charles F. Sabel, Robert E. Scott,
Stanford Law School, Columbia University - Law School, Columbia University - Law School,
Date posted to database: November 20, 2010
Last Revised: December 3, 2010
9 98 Does Disclosure Matter?
Florencia Marotta-Wurgler,
New York University (NYU) - School of Law,
Date posted to database: November 24, 2010
Last Revised: December 7, 2010
10 96 Structure and Reform of Corporate Governance in the United Kingdom in Relation to the Shareholder Versus the Stakeholder Theory
Rohit Arora,
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: September 29, 2010
Last Revised: September 29, 2010

 

RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of LSN: Contracts (Topic)

October 31, 2010 to December 30, 2010

Rank Downloads Paper Title
1 91 Strategic Default: The Popularization of a Debate Among Contract Scholars
Meredith R. Miller,
Touro College - Jacob D. Fuchsberg Law Center,
Date posted to database: October 3, 2010
Last Revised: November 17, 2010
2 87 The English vs. The American Rule on Attorneys Fees: An Empirical Study of Attorney Fee Clauses in Publicly-Held Companies’ Contracts
Theodore Eisenberg, Geoffrey P. Miller,
Cornell University - School of Law, New York University (NYU) - School of Law,
Date posted to database: November 11, 2010
Last Revised: November 15, 2010
3 55 An Optional Instrument on EU Contract Law: Could it Increase Legal Certainty and Foster Cross-Border Trade?
Martijn W. Hesselink,
University of Amsterdam - Centre for the Study of European Contract Law (CSECL),
Date posted to database: October 23, 2010
Last Revised: December 15, 2010
4 49 An Optional Contract Law for Europe? (Rote Karte oder grünes Licht für den Blue Button) (German)
Walter Doralt,
Max Planck Institute for Comparative and International Private Law,
Date posted to database: November 11, 2010
Last Revised: November 11, 2010
5 38 Rudolf Von Jhering’s Influence on Karl Llewellyn
Robert Whitman, Julie E. Wynns,
University of Connecticut School of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: October 1, 2010
Last Revised: October 1, 2010
6 36 How Organisational and Structural Weaknesses Impacted the Harmonisation Process and What it Implies for European Private Law (Strukturelle Schwächen in der Europäisierung des Privatrechts – Eine Prozessanalyse der jüngeren Entwicklungen) (German)
Walter Doralt,
Max Planck Institute for Comparative and International Private Law,
Date posted to database: November 11, 2010
Last Revised: November 11, 2010
7 35 The Double Soul of Promissory Estoppel - A Comparative View
Paolo Pardolesi,
Università degli Studi di Bari - Faculty of Law,
Date posted to database: November 5, 2010
Last Revised: December 8, 2010
8 26 Arbitration's Suspect Status
Hiro N. Aragaki,
Fordham University - Fordham University Schools of Business,
Date posted to database: November 29, 2010
Last Revised: December 28, 2010
9 20 Autonomy and Paternalism from a Common Law Perspective: Setting Aside Disadvantageous Transactions
Stephen Michael Waddams,
University of Toronto - Faculty of Law,
Date posted to database: October 25, 2010
Last Revised: October 25, 2010
10 18 Fannie Mae/Freddie Mac Home Mortgage Documents Interpreted as Nonrecourse Debt (with Poetic Comments Lifted from Carl Sandburg)
John Mixon,
University of Houston - Law Center,
Date posted to database: November 19, 2010
Last Revised: November 19, 2010

 

[JT]

January 4, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)