ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Monday, September 19, 2011

Eighth Circuit Rules on Exclusive Sales Representative Agreement

Last week, the Eighth Circuit issued its opinion in Semi-Materials Co., Ltd. v. MEMC Electronic Materials, Inc.  The case arose as a result of a series of International Sales Representation Agreements (the Agreements) through which Semi-Materials, Inc. (Semi-Materials) was to serve as the exclusive sales representative in South Korea and China for MEMC Electronic Materials (MEMC), a manufacturer of certain gaseous raw materials used in semiconductors chips and solar cells.

The key clause in the Agreements at issue in the case is as follows:

The compensation paid to [Semi-Materials] by [MEMC] will be a percentage of the NET SALES PRICE of PRODUCTS that are purchased from [MEMC] by the user of the PRODUCTS and delivered by [MEMC] to a site within the TERRITORY. The compensation percentage rates are listed in Appendix A.

8th Circuit The Agreements authorized Semi-Materials to "solicit and promote but not consummate sales" of MEMC's products in China and South Korea.  MEMC's sales to end users took place through several different mechanisms, not all of which involved Semi-Materials.  Two such mechanisms were "ex works" and "free carrier" sales.  The former involved MEMC's satisfaction of the end-user's delivery requirements by simply placing the goods at the disposal of the buyer, either at MEMC's factory or at some other location.  The latter involved MEMC's provision of the goods, cleared for export to a carrier selected by the buyer.  MEMC did not pay sales commissions to Semi-Materials for goods provided to the Chinese and South Korean markets through these mechanisms. It claimed that it had no obligation to do so because the risk of loss transferred to the buyer before the product entered China or South Korea and that consequently the products were not "delivered by [MEMC] to a site within the TERRITORY" as required under the Agreements.  The trail court bought this argument and granted MEMC partial summary judgment.  But after trial, the jury awarded Semi-Materials over $200,000 in damages on its remaining claims.

Semi-Materials appealed the partial summary judgment in favor of MEMC, and the latter cross appealed, challenging the trial court's denial of its motion for a judgment as a matter of law on Semi-Material's remaining claims.  In reversing the trial court's grant of partial summary judgment to MEMC, the Eighth Circuit determined that the "delivered by" language in the Agreements was in fact subject to more than one reasonable interpretation.  Moreover, the Eight Circuit noted, "if MEMC’s interpretation of the Agreements prevails, the overall effect of the Agreements would be lost because MEMC could avoid ever paying a commission by simply shipping the goods using 'ex works' or 'free carrier' terms."  Giving effect to MEMC's understanding of the Agreements would thus render the "delivered by" language ineffective, and courts generally attempt to construe contracts so as to give at least some effect to every clause.  

The Eighth Circuit rejected MEMC's cross-appeal of the trial court's denial of its motion for judgment as a matter of law.  MEMC's main argument in its motion was that its global sales manager did not have authority to enter into the Agreements with Semi-Materials.  The Eighth Circuit found that there was ample evidence in the record to support the jury's conclusion that the MEMC's sales manager had (at the very least) apparent authority to enter into the Agreements on behalf of Semi-Materials.

[JT]

 

September 19, 2011 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, September 16, 2011

Josh Hamilton's Grand Slam as a Fun Pre-Midterm Review

Josh%20Hamilton Texas Rangers outfielder Josh Hamilton previously has earned media attention in some rather depressing ways, including via his own battle with drug addiction and his attempt to throw a ball to a fan that led to the fan's death.  This time, he is in the news for something that makes others--including Contracts professors--very happy.  A Texas flooring retailer recently ran a promotion promising a refund on their flooring purchase if Hamilton hit a grand slam during September.  And he did!  Click here for the story, the actual ad "as seen on TV," and some written commentary.  I think the clip serves as a fun way to review some contracts issues just prior to midterms.  My students saw partial parallels to Lefkowitz, Leonard, and even Carbolic Smoke Ball and I'm sure there are others.  Go Rangers!

[HR Anderson w/ hat tip to student Matthew Lynn]

September 16, 2011 in Current Affairs, Sports, Teaching | Permalink | Comments (0) | TrackBack (0)

Breaking: Stuffed Bear Removed from Upstate New York Courthouse

This story is barely (get it?) contract law related, but I just renewed my promise to Jeremy to post to the blog once a week and he did not specify any requirement that the posts be contract related.  And, in any event, this New York Law Journal story is written for the blogs:

Months before the onset of winter, the Office of Court Administration has sent into hibernation a 7-foot-tall stuffed bear that briefly made the lobby of the Sullivan County Courthouse in Monticello its lair.

"My position was it takes away from the decorum of the facility," Judge Michael V. Coccoma, the deputy chief administrator for courts outside of New York City, said in an interview yesterday. "It's not that I have anything against taxidermy. But given the seriousness of the business we do in our courts, I felt it was a distraction."

The bear now prowls the private chambers of Acting Supreme Court Justice Frank LaBuda (See Profile), who says it is "beautiful" and "magnificent.

Where did the bear come from?

The bear was killed in October 2006 with a bow by local hunter David Purdy in nearby White Lake. Mr. Purdy asked Justice LaBuda in August if the judge had room for the creature, one of the largest ever taken in the county, in his home.

The judge said he did not, but the bear might find quarters, at least temporarily, in the courthouse where it could serve as a tribute to the area's ecology and love for hunting. By Sept. 2, it was stationed near the post of court officers who quickly dubbed it "Smokey."

A stuffed bear as a symbol of conservation? Justice LaBuda thought so:

"People want to see the bear," Justice LaBuda said. "Actually, it is a tribute to conservation in our state. As you know, black bears were almost extinct in the state except in the Adirondacks. Now, they are actually so plentiful that some people think they are a nuisance here."

You can read the rest of Joel Stashenko's reporting on the bear's eviction here, including a picture of Smokey, Justice LaBuda and Mr. Purdy.

It just so happens that this week's viral video is a commercial for Chuck Testa's taxidermy service.  Wonder if he stuffed the bear:

[Meredith R. Miller]

 

 

September 16, 2011 in In the News, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Court of Federal Claims to RN Expertise: "Piss Off!"

Urine

Slow news day. . . . and we couldn't resist.

Back in 2008, the Navy sought a new contractor to provide urine collection services for its federally-mandated rug testing program.  RN Expertise, Inc. (RN) submitted a bid and was the prsumptive awardee of the contract.  But before it finalized the award, the Navy determined that it could get the same services at a lower price through an interagency agreement (IAA) that the Department of Defense had with the Dpartment of the Interior.  So, the Navy cancelled the solicitation and went with the IAA.

RN filed a bid protest, claiming that the Navy's cost analysis was flawed.  In February 2011, the Court of Federal Claims granted the governments motion for judgment on the administrative record and dismissed RN's bid protest, RN Expertise, Inc. v. United States, 97 Fed. Cl. 460 (2011).  In March, RN moved for reconsideration, claiming that the CoFC's decision did not account for key facts and thus resulted in a manifest injustice.  On September 9th, the CoFC issued a new opinion, denying the motion and finding that RN simply sought to relitigate its case.

In its motion for reconsideration, RN argued that the CoFC erred in the way it tested the Navy's cost analysis and that the Navy failed to consider all of the costs associated with the IAA.  The CoFC found both of these argument improper on a motion for reconsideration.  In its first argument, RN merely raised facts and arguments that the CoFC previously addressed and rejected.  In its second, RN raised arguments that could have been raised in its original briefs.  Having failed to do so, it is not entitled to a second bite at the apple.

[JT]

September 16, 2011 in Government Contracting, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 14, 2011

Contracts Job in the Army Corps of Engineers

Job Title: Attorney-Advisor (Contracts)

Department: Department Of The Army

Agency: Army Corps of Engineers

Job Announcement Number: SCGV11025635R

Corps of Engineers

SALARY RANGE:

$81,823.00 - $106,369.00 /year

OPEN PERIOD:

Friday, September 09, 2011 to Wednesday, October 19, 2011

SERIES & GRADE:

GS-0905-13/13

POSITION INFORMATION:

- This is a Permanent position. -- Full Time

DUTY LOCATIONS:

1 vacancy - FL - Jacksonville

WHO MAY BE CONSIDERED:

US Citizens

JOB SUMMARY:

Challenge Yourself - Be an Army Civilian - Go Army! 
Civilian employees serve a vital role in supporting the Army mission. They provide the skills that are not readily available in the military, but crucial to support military operations. The Army integrates the talents and skills of its military and civilian members to form a Total Army.


Furnishes expert legal advice and advocacy in the area of government contract law to the Jacksonville District Command and staff. Reviews and provides advice regarding government contract strategies and documents such as acquisition plans, solicitations for bids and requests for proposals, plans and specifications, task orders, and contract modif...

About the Position: Serves as a senior attorney with other attorneys in the procurement practice group of the Jacksonville District Office of Counsel to help ensure the successful implementation of civil works and military construction projects. Duties are performed under the general supervision of the District Counsel; however, all duties including the management of the caseload and the development of legal strategy are performed independently in coordination as appropriate with the District Counsel, other members of the Office of Counsel and its procurement practice group, the District Commander and staff, other Corps of Engineers¿ offices, the Department of Justice, and other federal agencies. Contract issues and disputes can be complex, subject to political attention, and involve large sums of money. Opposing parties are often represented by attorneys who specialize in the practice of government contract law and are recognized as experts in their field.

Organization(s): 
U.S. Army Corps of Engineers, Jacksonville District, Office of Legal Counsel, Jacksonville, FL 32207

More information is available here.

[JT]

September 14, 2011 in Help Wanted | Permalink | TrackBack (0)

New in Print

Pile of Books Miriam Albert, Lenne Espenschied and Grace M. Giesel, Exercise Showcase, 12 Transactions 335 (2011) 

Glen Banks, Lost Profits for Breach of Contract: Would the Court of Appeals Apply the Second Circuit's Analysis? 74 Alb. L. Rev. 637 (2010/2011)

Norman D. Bishara, Fifty Ways to Leave Your Employer: Relative Enforcement of Covenants Not to Compete, Trends, and Implications for Employee Mobility Policy. 13 U. Pa. J. Bus. L. 751 (2011)

Deborah Burand, Kojo Yelpaala and Peter Linzer, Teaching Transactional Skills and Law in an International Context, 12 Transactions 275 (2011)

William J. Carney, Ronald J. Gilson and George W. Dent, Jr., Keynote Discussion: Just What Exactly Does a Transactional Lawyer Do? 12 Transactions 175 (2011)

Shelley Dunck, Brian Krumm and Sharon Pocock, Teaching Contract Drafting Using Real Contracts, 12 Transactions 359 (2011) 

W. David East, Douglas Wm. Godfrey and Carol D. Newman. Teaching Transactional Skills and Tasks other than Contract Drafting, 12 Transactions 217 (2011) 

David M. Epstein, Helen S. Scott, Carole Heyward and Daniel B. Bogart, Simulations in Clinics, Contract Drafting, & Upper-Level Courses, 12 Transactions 55 (2011)

Mark Fagan, Tamar Frankel, Eric J. Gouvin and Kathy Z. Heller, Upper-level Courses: Three Exemplars, 12 Transactions 377 (2011)

Eric J. Gouvin, Robert Statchen, Anthony J. Luppino and William A. Kell, Interdisciplinary Transactional Courses, 12 Transactions 101 (2011)

David Hahn, The Internal Logic of Assumption of Executory Contracts, 13 U. Pa. J. Bus. L. 723-750 (2011)

Joan MacLeod Heminway, Michael A. Woronoff and Lyman P.Q. Johnson. Innovative Transactional Pedagogies, 12 Transactions 243 (2011)

Grace Hum, Miki Felsenburg, Barbara Lentz, Carolyn Broering-Jacobs and Ted Becker, Legal Writing Professors Morphing into Contract Drafting Professors, 12 Transactions 127 (2011)

George W. Kuney, Introduction to the Special Report, 12 Transactions 1 (2011)

Richard K. Neumann, Jr., Tina L. Stark and Howard Katz, Negotiations, 12 Transactions 153 (2011) 

Lisa Penland, David Thomson, Susan Duncan, Karen J. Sneddon and Susan M. Chesler, New Ways to Teach Drafting and Drafting Ethics, 12 Transactions 187 (2011)

Tina L. Stark, Welcome & Opening Remarks, 12 Transactions 3 (2011)

Jane Scott and Charles Fox, Contract Drafting in 90 Minutes, 12 Transactions 7 (2011)

John J.Worley, Karl Okamoto and Sherry Porter, Transactional Centers and Certificate Programs, 12 Transactions 299 (2011)

[JT]

September 14, 2011 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, September 13, 2011

Weekly Top Tens 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
July 14, 2011 to September 12, 2011

Rank Downloads Paper Title
1 642 How Markets Work: The Lawyer's Version
Mark C. Weidemaier, G. Mitu Gulati 
2 185 Managing Disputes Through Contract: Evidence from M&A
John C. Coates, IV
3 170 Non-Recourse, No Down Payment and the Mortgage Meltdown: Lessons from Undercapitalization
Dov Solomon, Odelia Minnes
4 158 Subprime: Why a Free and Democratic Society Needs Law
Joseph William Singer
5 121 Contract Drafting: A Prerequisite to Teaching Transactional Negotiation
Tina L. Stark
6 115 Contract as Meaning: An Introduction to 'Contract as Promise at 30'
Jeffrey M. Lipshaw
7 86 Skin-in-the-Game: Risk Retention Lessons from Credit Card Securitization
Adam J. Levitin
8 85 Measurement of Restitution: Coordinating Restitution with Compensatory Damages and Punitive Damages
Doug Rendleman
9 83 Remoteness Re-Invented?
David McLauchlan
10 76

Why There is No Duty to Pay Damages: Powers, Duties, and Private Law
Nathan B. Oman

 

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

July 14, 2011 to September 12, 2011

Rank Downloads Paper Title
1 641 How Markets Work: The Lawyer's Version
Mark C. Weidemaier, G. Mitu Gulati
2 121 Contract Drafting: A Prerequisite to Teaching Transactional Negotiation
Tina L. Stark
3 67 The Irony of AT&T v. Concepcion
Colin P. Marks
4 65 To Perform or Pay Damages
Gregory Klass
5 56 Bringing Order to Contracts Against Public Policy
David Adam Friedman
6 55 Contracting for Procedure
Kevin E. Davis, Helen Hershkoff
7 54 Law as a ByProduct: Theories of Private Law Production
Bruce H. Kobayashi, Larry E. Ribstein
8 44 Restitution and Relationships
Hanoch Dagan
9 34 The Nature of Contractual Indemnities
Wayne Courtney
10 34 Private Regulation of Consumer Arbitration
Christopher R. Drahozal, Samantha Zyontz

[JT]

September 13, 2011 in Recent Scholarship | Permalink | TrackBack (0)

Monday, September 12, 2011

The New Yorker on Contracting Out for City Work

New Yorker The September 5th edition of The New Yorker has a nifty article by Tad Friend about the budgetary problems cities are facing -- the article focuses on Costa Mesa, California, but notes that its problems are not unique.   The story is a familiar one, but the reporting is great and the details are extreme.   

The problem is a small city whose budget is tied up in personnel costs, including a 911 operator making $176,000 and a new mayor who decides to address a reported $5 million budget deficit by firing half the staff.  The new mayor plans to give city workers their notice and then solicit bids to see which jobs can be more cheaply done by employing independent contractors.  The mayor also seems to think that hiring such contractors will insulate the city from liability, although that wouldn't always be the case.  

The flip side of the overpaid 911 operator is the dedicated maintenance worker who works for the city for four years and makes $45,600/year.  He does for $26/hour what a contractor would charge $40/hour to do.  Upon receiving his layoff notice, one such worker jumped off the roof of City Hall.  An already bitter struggle now turned bloody.  Moreover, the city has over $40 million in reserves.  Some residents wondered why "Costa Mesa should be the petri dish for pension reform."  An ally of the new mayor, who is a councilman and also the head of the local Pop Warner football league wasn't about to back down.  Friend quotes him as follows:

Politics is very similiar to Pop Warner.  People think they can bully you into making their son the quarterback, but once they realize their son's a lineman they stop bothering you.

Building to his conclusion, Friend makes the following observation about leadership:

Good leaders make unpopular decisions because they're necessary.  But they also work to explain and build support for their initiatives, especially when those initiatives threaten a way of life.

This is an important insight, not only for political leaders but also for university leaders in times of shrinking budgets and rising costs.

[JT]

September 12, 2011 in Government Contracting, In the News | Permalink | Comments (0) | TrackBack (0)

Friday, September 9, 2011

WSJ on Global Business Norms and "Contracting" in China

G228586_chinese-flag-640 The concept of contract law is often novel in developing economies, especially communist or formerly communist ones.  Sparked by a dispute between Cosco, China's biggest state-owned shipping company, and foreign ship owners, the WSJ has an interesting discussion of business norms in China and a "Chinese corporate sector that doesn't always play by established global rules."  

Apparently, Cosco has halted or delayed payments for vessels it leased in 2008, at the height of the shipping boom.  Prices for these cargo ships have plunged since then.  Naturally, Cosco wants to renegotiate these leases, but unilaterally reneging the contracts defies established global business norms.

The article explains:

Foreign companies that do business in China are routinely warned that contracts aren't viewed in China with the same sort of legal sanctity that they receive in most developed economies. Jingzhou Tao, a Beijing-based lawyer with Dechert LLP, says that withholding payments is a frequent tactic used in China to force price negotiations. "A contract is not an unchangeable bible for Chinese companies," Mr. Tao said.

* * *

Analysts and lawyers say big Chinese state-owned companies can be especially aggressive in dealing with foreign companies because of their government backing and the enormous clout they wield within China in industries that are often oligopolies.

"State-owned enterprises that are dominant in their own sector and in some cases more powerful than government departments are used to having things their way," said Lester Ross, a Beijing-based partner at law firm WilmerHale. Mr. Ross said that Chinese companies in the minerals and cotton industries have a history of walking away from deals when prices move against them, and that foreign companies sometimes charge a premium for services to Chinese government companies because of the contract risks.

"These companies are only partly companies. They are also political entities," said Carl Walter, a former Beijing-based banker for J.P. Morgan Chase & Co. who has co-authored two books about China's state-owned enterprises. That means political imperatives, such as concerns over the value of national assets, can sometimes drive decisions by company chief executives, who at Chinese state-owned enterprises are appointed by the Communist Party. "When you do business with these major SOEs, you better make sure you make enough money to cover," Mr. Walter said.

Arthur Bowring, managing director of the Hong Kong Shipowners Association, argues that while Cosco's moves are worrisome for the industry, they won't likely be that damaging to the company long term. He adds that in late 2008, Australian iron-ore producer Fortescue Metals Group Ltd. backed out of its obligations under some shipping contracts. After a period of arbitration, the company said in October that it had settled all disputes with shipping companies.

"People are now doing business with [Fortescue Chairman] Andrew Forrest again...and it's almost like it never happened," Mr. Bowring said.

Mr. Bowring said Cosco, which has been operating internationally for decades, is too experienced to think that it can apply Chinese rules to overseas deals. Still, he said that company relationships are viewed differently in China than in many other places. "Chinese culture will build a relationship before the contract," he said. "The relationship is always something that can be talked about. The contract is just a set of papers that you keep in your bottom drawer."

In China, Some Firms Defy Business Norms, WSJ 9/6/2011.

[Meredith R. Miller]

September 9, 2011 in Government Contracting, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 7, 2011

New in Print

Pile of Books Robert A. Caplen, Turning Esch to Dust? The State of Supplementation of the Administrative Record in Bid Protests before the Court of Federal Claims, 12 Whittier L. Rev. 197 (2011)

Michael H. LeRoy, The New Wages of War--Devaluing Death and Injury: Conceptualizing Euty and Employment in Combat Zones, 22 Stan. L. & Pol'y Rev. 217 (2011)

Henry Schneider, Moral Hazard in Leasing Contracts: Evidence from the New York City Taxi Industry,. 53 J.L. & Econ. 783 (2010)

Andrew A. Schwartz,  Consumer Contract Exchanges and the Problem of Adhesion, 28 Yale J. on Reg. 313 (2011)

D. A. Jeremy Telman, Langdellian Limericks, 61 J. Legal. Educ. 110 (2011)

Marina Tsikun and Kuei-Jung Ni, Using Licensing Contracts to Protect Holders of Traditional Knowledge Related to Genetic Resources -- a Reflection on ICGB Projects, 42 IIC: Int'l Rev. Intell. Prop. & Competition L. 299 (2011)

[JT]

September 7, 2011 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, September 6, 2011

The Contracts Behind the CSA: Just Food on Supporting Farms and Shared Risk

Mtn Hurricane Irene was not as destructive as predicted for New York City.  It did, however, unleash extensive devastation in upstate New York and many farms were severely flooded.  In line with an FDA ruling, the New York State Department of Agriculture & Markets has issued a blanket recommendation prohibiting the sale of any crops exposed to flood waters, declaring that food unfit for human consumption. 

As a result, the farm that supplies my CSA share (pictured before the flood) was put out of business for the season.  I am out my money, but I have tremendous sympathy for the farmers.  I am reminded that the CSA is made possible by contracts, which allocate risks from farmer to consumer.  

A recent CSA newsletter from Just Food was forwarded to me, and it reflects poingnantly on shared risk:

In New York City Hurricane Irene was much less severe than projected, however, the same cannot be said for many areas in upstate New York, New Jersey, Vermont, and throughout the Northeast. While not all of our CSA farmers were severely affected, others sustained tremendous damage. All week we have been soberly witnessing images of farms under feet of water, hearing stories of farmers who are still unsure of the severity of the damage to their fields, helping farmers think through their next steps and beginning to have what I'm sure will be the first of many conversations with NYC CSA members.

Community Supported Agriculture is a partnership- a mutually beneficial long term relationship between farmers and their members. Shared risk is a concept that is included in every description of CSA and in every membership agreement form. In most years, sharing risk means that a few of the crops that a farmer originally plants and plans to include in shares don't make it in. Occasionally it means a late start to the season due to a wet spring. In 2009, sharing the risk meant few or no tomatoes as most New York farmers were hit with tomato blight. But mostly we don't notice our risk as our shares are supplemented with the bounty of the other 100 varieties of vegetables that CSA farmers have planted.

But the concept of shared risk is very real, and in the wake of Irene we are all reminded of this. No matter how skilled a farmer is, no matter how hard she works, no matter how well he's planned, there was nothing they could have done to prevent the severe flooding. Farmers continue to wait for flood waters to recede so that they can determine the full extent of the damage.

In addition, area farmers received notice from the FDA yesterday that crops covered in flood waters should not be sold for human or animal consumption. While affected farmers are struggling to ensure that they have safe food to provide to their members, yesterday's FDA ruling will likely make it even harder for farms to recover.

Unfortunately, this all comes at the worst time of the season. Money has already been invested in crops that now cannot be harvested, and it is now too late in the season to replant many crops. When bad weather strikes in the spring, farmers have time to replant and recover. This late in the season there simply aren't enough days to start over for many crops, particularly for slower growing winter crops: for instance, winter squash takes 100 days from seed to harvest, potatoes take from 70 to 120 days, turnips 60 days, onions 80 to 150 days. Unfortunately, at this point in the season, there just isn't that much time left.

In addition, CSA farms often don't have crop insurance. Crop insurance is tied to a particular crop, rather than the farm as a whole, and as a result, is better geared for farms that grow large amounts of fewer crop varieties. For this reason, it's very difficult for CSA farmers--who grow 100-150 different crop varieties--to value their crops in order to apply for crop insurance. For CSA farms who do have crop insurance, the insurance doesn't come close to covering their losses, the claims process is incredibly complicated, and reimbursement can take months.

These losses are devastating, but CSA farmers are not just throwing up their hands and walking away. At the same time they greatly appreciate the support that CSA provides, they also feel a tremendous sense of responsibility to their members. As we speak, farmers and their crews are diving in and working hard to assess the damage, begin clean up, and make repairs to fences and barns to make the farm ready and viable for next season. They're also looking at their fields-those that aren't still under water-to figure out how, or even if it's possible, to make the best of the remaining season for their members.

Many CSA core groups and members have reached out to Just Food to find out what they can do to help their farmers. As CSA members, you have already provided stability and support for your farms. Hurricane Irene is an all-too-real example of the kind of weather disaster that can put small family farms out of business. CSA is a vital partnership that can allow farms instead to survive, to return next season and provide the usual bounty to its members.

What your CSA farmers need the most now are your patience and understanding, as well as your commitment to their farm over the long haul.

This reflection is about farms and risks, but it is fundamentally about the contracts that make the CSA possible.

[Meredith R. Miller]

September 6, 2011 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

The Business Lawyer Seeks Editors

The Business Lawyer (TBL) plans to appoint at least one additional editor beginning with Volume 67. The responsibilities of an editor will be to:

BL Cover  (i) edit approximately sixty manuscript pages of each of the four issues that TBL publishes in each volume;

 (ii) ensure that each statement of fact has an accurate citation that supports it;

 (iii) conform all citations to the Blue Book; and

 (iv) make sure that manuscripts satisfy TBL Author Guidelines.

Over the course of a volume, each editor should expect to work on a combination of articles, reports, and surveys that are published in TBL.

                  Since Volume 64, Professor Gregory Duhl of the William Mitchell College of Law has been responsible for all style editing, cite-checking, and Blue-Booking of TBL. Professor Duhl is the current Associate Editor-in-Chief, and the editors would work in collaboration with him, the Editor-in-Chief, who rotates yearly, and the Production Manager, Diane Babal, to ensure that TBL maintains its high quality and timeliness. The editors would also work closely with the Associate Editor-in-Chief to update the TBL Author Guidelines to maintain consistency in the journal.

                  TBL seeks editors from all business law disciplines, who have experience editing an academic publication, a keen attention to detail, and an ability to meet deadlines. Each editor would receive an honorarium upon completion of his or her work for that issue. If interested in this position, please e-mail a resume to Diane Babal, at Diane.Babal@americanbar.org. Any questions about the position can be addressed to Professor Duhl at Gregory.duhl@wmitchell.edu.

[JT]

September 6, 2011 in Help Wanted | Permalink | TrackBack (0)

Weekly Top Tens 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 

July 7, 2011 to September 5, 2011

RankDownloadsPaper Title
1 628 How Markets Work: The Lawyer's Version 
Mark C. WeidemaierG. Mitu Gulati
2 157 Non-Recourse, No Down Payment and the Mortgage Meltdown: Lessons from Undercapitalization 
Dov SolomonOdelia Minnes
3 150 Subprime: Why a Free and Democratic Society Needs Law 
Joseph William Singer
4 111 Contract as Meaning: An Introduction to 'Contract as Promise at 30' 
Jeffrey M. Lipshaw
5 111 Contract Drafting: A Prerequisite to Teaching Transactional Negotiation 
Tina L. Stark
6 80 Measurement of Restitution: Coordinating Restitution with Compensatory Damages and Punitive Damages 
Doug Rendleman
7 76 Remoteness Re-Invented? 
David McLauchlan
8 74 Why There is No Duty to Pay Damages: Powers, Duties, and Private Law 
Nathan B. Oman
9 73 Skin-in-the-Game: Risk Retention Lessons from Credit Card Securitization 
Adam J. Levitin
10 69 Not Out of the (Fox)Woods Yet: Indian Gaming and the Bankruptcy Code 
Emir Aly Crowne (né Mohammed)Andrew BlackS. Alex Constantin

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

July 7, 2011 to September 5, 2011

RankDownloadsPaper Title
1 628 How Markets Work: The Lawyer's Version 
Mark C. WeidemaierG. Mitu Gulati
2 111 Contract Drafting: A Prerequisite to Teaching Transactional Negotiation 
Tina L. Stark
3 62 The Irony of AT&T v. Concepcion 
Colin P. Marks
4 54 Bringing Order to Contracts Against Public Policy 
David Adam Friedman
5 52 Law as a ByProduct: Theories of Private Law Production 
Bruce H. KobayashiLarry E. Ribstein
6 51 Contracting for Procedure 
Kevin E. DavisHelen Hershkoff
7 43 Restitution and Relationships 
Hanoch Dagan
8 37 To Perform or Pay Damages 
Gregory Klass
9 32 The Family, the Market, and ADR 
Amy J. Cohen
10 25 Private Regulation of Consumer Arbitration 
Christopher R. DrahozalSamantha Zyontz

[JT]

September 6, 2011 in Recent Scholarship | Permalink | TrackBack (0)

Monday, September 5, 2011

Law of Obligations Conference at the University of Western Ontario

Sixth Biennial Conference on the Law of Obligations:
Challenging Orthodoxy
Hosted by The Faculty of Law at the University of Western Ontario
London, Ontario, Canada
July 17-20, 2012

London, Ontario The Faculty of Law at the University of Western Ontario is pleased to be hosting the Sixth Biennial Conference on the Law of Obligations. The conference will bring together leading scholars in tort, contract, equity and unjust enrichment from throughout the common law world.

The theme of the conference is "Challenging Orthodoxy." We have prepared an academic program of over 60 speakers in which professors, graduate students and eminent practitioners will challenge established common law rules and suggest new approaches to both old and emerging problems. The plenary speakers are Chief Justice Beverley McLachlin and Justice Thomas Cromwell (Supreme Court of Canada), Melvin Eisenberg (Berkeley), John Goldberg (Harvard), Andrew Robertson (Melbourne), Ernest Weinrib (Toronto), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham).

The Obligations Conference originated at the University of Melbourne in 2002, and has since become one of the leading private law conferences in the common law world. The biennial conferences have been held at the University of Melbourne, the University of Queensland, the National University of Singapore and the University of Oxford.

For more information on the Conference and to register please visit: http://www.law.uwo.ca/Conferences/Obligations6/index.html.

[JT]

September 5, 2011 in Conferences | Permalink | TrackBack (0)

Friday, September 2, 2011

Music Publisher Tells Bruno Mars that It Wants Him and His Contract to Stay “Just the Way You Are”

Bruno-mars04_300x317 I recently introduced my Contracts students to the concept of destroying offers via lapse and the associated topic of option contracts.  Thanks to Grammy-winning artist Bruno Mars, I now have a current example of what happens when an option is not exercised.  In his recent complaint, Mars requests a declaratory order that his contract with Bug Music was terminated when Bug Music failed to exercise its option within the time frame specified.  In the original agreement, Bug Music agreed to pay Mars some money in advance and to publish his songs in exchange for a 50% interest in the copyrights for those songs and for Mars’s promise to deliver a certain minimum number of songs.  The agreement further specified an initial term of one year with Bug Music having the option to continue the agreement for additional one-year periods.  If Bug Music did not exercise its option within 10 days after Mars fulfilled his promise to deliver songs, and after receiving an “Option Warning” notice from Mars, the contract would terminate for good.  In his complaint, Mars shows that Bug Music apparently failed to exercise its option within that 10 day period, perhaps due to its current ownership instability.  According to one source, Bug Music also sent an additional payment to Mars along with its allegedly late option exercise notice, which Mars returned (perhaps because he was wise to Bug Music's attempt to form a new contract with new consideration?).   Mars is seeking the declaratory order so that he may freely negotiate a new deal with a different music company.   Perhaps Bug Music now needs to listen to the opening line of Mars's unrequited love anthem to fully understand his perspective--"Easy come, easy go..." 

[Heidi Anderson]

September 2, 2011 in Celebrity Contracts, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, September 1, 2011

International Sales Conference at Florida

Conference Announcement
International Sales Law Conference: Global Challenge of International Sales Law - University of Florida


Friday and Saturday, November 11-12, 2011, Hilton University of Florida Conference Center, Gainesville, Florida

UNCITRAL The United Nations Commission on International Trade Law (UNCITRAL), Center for Business Education and Research (CIBER) (University of Florida), University of Florida Warrington College of Business Administration, International Commercial Law Institute, Center for European Studies (CES) (University of Florida) presents a global conference on International Sales Law with a primary focus on the United Nations Convention on Contracts for the International Sale of Goods (CISG) to be held at the Hilton University of Florida Hotel and Conference Center on Friday, November 11 and Saturday, November 12, 2011. The conference will run from Friday morning through Saturday afternoon. Registrants have the option of attending Friday-Saturday or a single day (Friday or Saturday).
 
OVERVIEW: The Conference brings together CISG scholars from twenty countries, as well as practitioners and members of international organizations. It will provide a working knowledge of the CISG's substantive rules, as well as the surrounding case law. It will review the CISG case law in numerous countries, as well as arbitral decisions, and provide insights into recent trends in its use. The key substantive issues covered include writing requirements, contract formation and battle of forms scenario, firm offer rule, notice provisions, fundamental breach, excuse, remedies and damages, among other provisions. The Conference will show in what ways the CISG is pro-seller or pro-buyer and how to use this knowledge in the negotiation and drafting of an international sales contract. The Conference will also provide a review of the English Sales of Goods Act, UNIDROIT Principles of International Commercial Contracts, and an update on the new trade terms manual-INCOTERMS 2010, as well as the issue of recovering attorney fees. The contributors come from twenty (20) different counties and include internationally-known CISG scholars, practicing attorneys, and representatives from the United Nations Commission on International Trade Law (UNCITRAL). Some of the questions to be answered include:

- How has the CISG evolved? Why it is important?
- What are the best sources for CISG law? How does one conduct research in international sales law?
- How is the CISG different from the Uniform Commercial Code, English Sale of Goods Act, and other national laws?
- How have substantive provisions of the CISG been interpreted and applied by national court systems and arbitral panels?
- What are the problems of uniform law?
- Can the differences between the common law and civil law be overcome in the application of the CISG?
- Why should legal practitioners embrace or partially embrace the CISG in serving their clients?
- How should one negotiate and draft an international sales contract.

REGISTRATION: There is a nominal fee for academics or students (not including dinner and event fees), unless taking for Florida CLE credit (14.5 for both days). You may register online at:

http://conferences.dce.ufl.edu/SalesLaw/reg.aspx

Or contact: Jeri Shell at: jshell@dce.ufl.edu

AGENDA & PRESENTERS: The Conference Agenda and List of Presenters are as follows:

Session 1 - History & Researching the CISG
- Vikki Rogers - "History of CISG & CISG at the Present"
- Marie Newman - "CISG Sources and Researching the CISG"
- Camilla Baasch Andersen - "CISG in National Court Systems"
- Lisa Spagnolo - "CISG as Soft Law & Choice of Law"
- Andre Janssen - "CISG Use in Commercial Arbitration"

Session 2 - Interpreting the CISG & Substantive Provisions
- Franco Ferrari - "General Principles and Interpretive Methodology"
- Francesco Mazzotta - "Principle of Good Faith"
- Morton Midtgaard Fogt - "Contract Formation"
- Bruno Zeller - "Battle of the Forms"

Session 3 - Substantive Provisions
- Harry Flechtner - "Conformity of Goods: Inspection and Notice"
- Alastair Mullis - "Fundamental Breach and Nachfrist Notice"
- Ulrich Magnus - "Remedies: Price Reduction Remedy, Avoidance, Damages, Litigation, & Preservation"
- Martin Davies - "Excuse (Impediment)"
- Burghard Piltz - "CISG, INCOTERMS 2010, & Attorney Fees"

Session 4 - Country Analyses
- Wolfgang Faber - "Austria"
- Stefan Kroll - "Germany I"
- Soerren Kiene - "Germany II"
- Sonja Kruisinga - "The Netherlands"
- Milena Djordjevic -"The Balkans"

Session 5 - Country Analyses
- Corinne Widmer Luechinger - "Switzerland"
- Edoardo Ferrante - "Italy"
- Tadas Klimas - "Baltic States, Belarus, Bulgaria & Ukraine"
- Robert W. Emerson - "United States - Canada"
- Virginia G. Maurer - "Central & South America"

Session 6A - Country Analyses
- Li Wei - "Peoples' Republic of China"
- Yehuda Adar - "Israel"
- Hossam A. El-Saghir - "Islamic Legal Systems & the CISG"

Session 6B - Insights
- Jan Smits - "Problems with Uniform Laws"
- Sieg Eiselen - "Bridge Between Civil and Common Law"

Session 7 - CISG in Context
- Olaf Meyer - "Using the CISG in Practice"
- Qi Zhou - "CISG and the English Sale of Goods Act"
- Luca Castellani - "CISG in Context: Complementary Texts"

Session 8 - Practitioner's Perspective
- Keith Rowley - "Is the CISG Pro-Seller and/or Pro-Buyer?"
- Ulrich Schroeter - "To Exclude, to Ignore or to Use? Empirical Evidence on Courts', Parties', and Counsels' Approach to the CISG (with some Remarks on Professional Liability)"
- Helena Haapio - "Using the CISG Proactively"

Note: This Schedule is subject to change.

CONFERENCE HOTEL: Hilton University of Florida Hotel and Conference, Gainesville, Florida. There is a limited bloc of rooms reserved at the rate of $119 per night. The homepage for the Hotel is:

http://www1.hilton.com/en_US/hi/hotel/GVNCCHF-Hilton-University-of-Florida-Conference-Center-Gainesville-Florida/index.do

Location and phone number: 1714 SW 34th Street, Gainesville, FL, United States 32607; Tel: 1-352-371-3600. If you have any questions or problems with reservations please contact Jeri Shell at: jshell@dce.ufl.edu

[JT]

September 1, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)