ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, July 8, 2011

Class Action Waiver Prevents Students from Proceeding Against For-Profit Westwood College

A group of students sued for-profit Westwood College in federal district court in Colorado for allegedly engaging in "systemic[] deceptive trade practices by misrepresenting key facts about their operations, including the total cost of education at the schools, the prospect of job placement and salary expectations after graduation, the schools' accreditation status, and the transferability of credits obtained at the schools."  

Last month, Judge Martinez of the District Court of Colorado dismissed the class action because the school’s enrollment materials contain a class action waiver.  Judge Martinez wrote that "there is no doubt" that the holding in AT&T v. Concepcion "was a serious blow to consumer class actions and likely foreclosed the possibility of any recovery for many wronged individuals."

A website ( maintained by the attorney representing the plaintiffs/students, contains videos of the student’s stories of allegedly being scammed by Westwood.  Here is a CBS News clip about some of the allegedly deceptive practices at Westwood:

Also, here’s a clip from a NBC expose of for-profit schools generally (which, by the way, required me to first watch an advertisement for for-profit Capella University –ironic coincidence or a failure of contextual advertising?).

We are a little late to this story, so here are some links that very ably provide coverage of the case:

Bernal v. Burnett, 2011 WL 2182903 (D.Colo. Jun. 6, 2011).

[Meredith R. Miller]

July 8, 2011 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Lipshaw's Intro to the "Contract as Promise" Symposium

Back in March, Suffolk University Law School hosted a symposium commemorating the 30th Anniversary of Charles Fried's book "Contract as Promise."  (You can download the lectures for free from iTunes).  The papers will be published in the Suffolk Law Review.

It was an enriching day of panels featuring many prominent contract theorists, so it was no small task for Professor Jeffrey Lipshaw to introduce the volume of the Suffolk Law Review containing the essays.  But, as he proves in this intro essay, no feat is too great for Prof. Lipshaw.  Here's the abstract:

This is an introductory essay to the volume of the Suffolk Law Review containing the papers from our symposium centered on Charles Fried’s iconic book, 'Contract as Promise' at 30: The Future of Contract Theory. My theme is the relation of theory to practice, particularly in contract law, and why a theoretical orientation, broadly speaking and whether or not so conceived by the practitioner herself, is fundamental to that practitioner making good judgments. Theorizing - imposing coherent and correspondent conceptual order on events in the real world - is not as unrelated to the ordinary work of lawyers (and others) as some critics of legal academy would suggest. I provide a summary of the papers, presentations, and commentary by the distinguished participating scholars, and consider how their work fits within the framework I describe. Finally, I consider the role of meaning in contract theory; in other words, how both descriptive and normative theory, whether directed to the legal institution of contract or to other phenomena, are all ways of making sense of the human condition, and thus an essential part of what practicing “lawyers-theorists” do every day.

[Meredith R. Miller]

July 8, 2011 in Conferences, Law Schools, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 7, 2011

Julian Assange Decides that Some Secrets Are Worth Keeping

Assange According to this story in the Manchester Guardian, Wikileaks founder Julian Assange (pictured) may have to renegotiate his nearly £1 million book contract with Edinburgh-based publishers Canongate and the US publisher Alfred A Knopf.  Apparently, Assange is concerned that revelations in the memoir might give the United States information that it would use to try to extradite him to the United States so that it can prosecute him for aiding and abetting terrorists in connection with his involvement with Wikileaks.

Of course, Assange originally said that he needed the advance that he was paid to write a book that "would become one of the unifying documents of our generation" in order to pay his legal costs.  Those costs mostly relate to his efforts to resist extradition to Sweden, where he is accused of rape and sexual assault.  He may be better off in the United States.  There, he can make a brave stand on principle and defend the ideology that fueled Wikileaks.  

Neither or Assange or his publisher would talk to the Guardian about the rumors that the book deal has gone south.  It remains to be seen whether Assange (and his lawyers) can be cajoled into submitting an unexpurgated manuscript or if the parties will work out a different (perhaps lesser) deal for a different (perhaps lesser) book 


July 7, 2011 in Books, Celebrity Contracts, In the News | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

All Hail Blog Emperor Paul Caron

On the occasion of his 20,000th post.

That is a truly phenomenal number of posts!  He's done it all since 2004, meaning that he has averaged nearly 3000 posts a year for seven years.  That's over 250 posts a month, nearly 60 a week, over eight a day!!  Every three hours another post.  While you are sleeping, Paul Caron posts at least twice.  Go to a movie?  He posted.  Make dinner, eat, do the dishes?  Post.  Post on your blog?  Several posts, no doubt.  Try to get some scholarship done.  Fuhgetaboutit.  You don't want to know just how much more productive Paul is than you are.

 While we were at work on this post, he's already got four new posts up.  That's right, it's 20,004 and counting.

And by the way, his blog is about tax law and he't got a bazillion readers.  


July 6, 2011 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 5, 2011

Call for Papers on the Fringe Economy

Better late than never: here a call for papers from the Washington & Lee Law Review

The symposium Regulation in the Fringe Economy represents the most significant attempt to date by legal scholars to address the vexing legal and social issues created by lenders on the fringes of the economy who offer payday, auto title, for-profit college, and refund anticipation loans. A complete list of confirmed participants and their paper topics is available at the conference website.

The Frances Lewis Law Center and the Washington and Lee Law Review are delighted to sponsor this conference which will take place on November 11, 2011 at the Washington and Lee University School of Law in Lexington, Virginia. The Washington and Lee Law Review will publish a symposium issue featuring the conference papers in 2012.

The sponsors’ goal is to encourage and recognize excellent legal scholarship in this area. To advance their goal, the sponsors invite lawyers, judges, and scholars to submit papers on regulation in the fringe economy. Papers on related high-risk consumer financial products are also encouraged. An author should submit his or her manuscript in an exclusive submission on or before August 15, 2011. A submission should be no longer than 50 pages or 15,000 words. A limited number of submissions will be accepted. Authors will be notified of the acceptance of their paper and participation in the symposium no later than August 20, 2011.

Selected authors will present their papers at the November 11 conference. All participants are asked to provide their own travel expenses. Papers specifying the conference may be mailed to the Washington and Lee Law Review or sent electronically to The Law Review Articles Editors and Washington and Lee University School of Law Professor Margaret Howard will review the papers.

Even if you are not able to submit a paper, the sponsors invite you to attend the conference. There will be no charge for attending. The Frances Lewis Law Center is a licensed Virginia Continuing Legal Education provider which will supply Virginia CLE credit for those attending.

Mallory A. Sullivan
Symposium Editor, Washington and Lee Law Review

Christine M. Shepard
Editor in Chief, Washington and Lee Law Review

We are happy to see that the confirmed participants in the conference include, among others, friends of the blog Jean Braucher and Alan White.


July 5, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

New Blog

United-Nations The UNCITRAL Model Procurement Blog has arrived here!

According to its home page, its mission is a follows: 

This blog covers developments regarding the UN Commission on International Trade Law (UNCITRAL) Model Procurement Law, the text of which was adopted on July 1, 2011.

Welcome to the Blogosphere!  May your pageviews be plentiful.


July 5, 2011 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, July 4, 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  

May 5, 2011 to July 4, 2011

RankDownloadsPaper Title
1 825 Economic Analysis of Claims in Support of the ‘Durbin Amendment’ to Regulate Debit Card Interchange Fees 
Howard H. ChangMargaret Morgan Weichert
2 423 What Lessons for Economic Development Can We Draw from the Champagne Fairs? 
Jeremy EdwardsSheilagh Ogilvie
3 213 Res Judicata in International Arbitral Awards 
Luca G. Radicati di Brozolo
4 135 Two Culture Problems in Law and Economics 
Alan Schwartz
5 101 Innovative Transactional Pedagogies 
Joan MacLeod HeminwayLyman JohnsonMichael Woronoff
6 98 Fixing Unfair Contracts 
Omri Ben-Shahar
7 87 The Impact of Human Rights Law on Contract Law in Europe 
Hugh Collins
8 82 Contracts and Markets: A Very Short Essay Without Footnotes 
Nathan B. Oman
9 82 The Rise and Possible Fall of Investor-State Arbitration in Asia: A Skeptic’s View of Australia’s ‘Gillard Government Trade Policy Statement’ 
Luke R. Nottage,
10 80 Commercializing Property Rights in Inventions: Lessons for Modern Patent Theory from Classic Patent Doctrine 
Adam Mossoff

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

May 5, 2011 to July 4, 2011

RankDownloadsPaper Title
1 144 Property Law as the Infrastructure of Democracy 
Joseph William Singer
2 98 Fixing Unfair Contracts 
Omri Ben-Shahar
3 80 Commercializing Property Rights in Inventions: Lessons for Modern Patent Theory from Classic Patent Doctrine 
Adam Mossoff
4 69 The Promise Principle and Contract Interpretation 
Juliet P. Kostritsky
5 60 The Public Speaks: An Empirical Study of Legal Communication 
Christopher R. Trudeau
6 56 Too Big to Exist 
Barak OrbachGrace E. Campbell
7 56 Pluralism and Perfectionism in Private Law 
Hanoch Dagan
8 30 Relational Formalism and the Construction of Financial Instruments: A Bottom-Up Jurisprudence for Commercial Law 
Jonathan Yovel
9 24 Unfair Terms in Contracts between Businesses 
Martijn W. Hesselink
10 12 From the Mouths of Babes: Protecting Child Authors from Themselves 
Julie D. Cromer Young


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

Sunday, July 3, 2011

Preliminary Agreement Enforced in Minnesota: Siemens Wins Again

Wind Turbines Outland Renewable Energy LLC an operator of wind farms brought suit against Siemens Energy Inc. for a breach of duty of good faith.  Siemens claimed that Outland had breached a binding preliminary agreement (a term sheet) that both parties signed in 2007 agreeing to negotiate a sales and maintenance agreement of wind turbine generators.  The term sheet obligated Outland to pay a $15.2 million reservation fee that would automatically convert into a cancellation fee if the parties could not reach a final agreement.  The trial court ruled that the term sheet was enforceable and that there was no breach or violation of the duty of good faith.  Outland appealed to the Minnesota Court of Appeals, which affirmed the trial court’s ruling in Outland Renewable Energy LLC v. Siemens Energy, Inc.

In the term sheet, which was governed by NY law, the parties agreed on the design, supply, transportation, erection, and commissioning of 87 wind turbine generators that Outland was to purchase from Siemens for a total cost of $321.9 million.  Delivery was to begin in the first quarter of 2010.  The parties agreed to negotiate in good faith until they either reached a definitive supply and service maintenance agreement or until October 1, 2008.  The term sheet was not intended to be the final agreement between the parties.  Outland was unable to secure the requisite financing and filed suit, seeking the return of the $15.2 million fee and a declaration that the term sheet was unenforceable.

Although both the trial court and the court of appeals were persuaded that the parties had not concluded a binding agreement for the sale of 87 wind turbines, both found that their preliminary agreement was a separate, enforceable agreement relating to the reservation/cancellation fee.  In consideration of the $15.2 million fee, Siemens reserved capacity and manufacturing space for the project. 

The Court of Appeals treated the $15.2 million reservation fee like the consideration one gives for an option contract. Outland paid for the right to reserve and eventually purchase 87 wind turbine generators from Siemens.  Because the fee was the consideration for the option, the court ruled that it did not constitute liquidated damages. 

[JT & Jared Vasiliauskas]


July 3, 2011 in Recent Cases | Permalink | Comments (0) | TrackBack (0)