Saturday, November 5, 2011
The Executive Committee of the AALS Contracts Section solicits proposals for the Section’s Annual Meeting program New Voices in Contracts Scholarship, scheduled for Saturday, January 7, 2012, from 1:30 to 3:15 p.m., at the Marriott Wardman Park Hotel.
Invitation: We invite proposals exploring any aspect of contract law, theory, policy, and practice writ large (including, but not limited to, bankruptcy/insolvency, commercial law, consumer law, dispute resolution regimes, family law, insurance law, legal systems, and restitution, in addition to more traditional contract topics) from a behavioral, cognitive, comparative, critical, doctrinal, economic, empirical, equitable, historical, institutional, interdisciplinary, jurisprudential, pedagogical, philosophical, policy-driven, political, or sociological perspective. We will entertain proposals based on work in any stage of completion from formulation to a finished paper, but prefer proposals that are not based on work already published in a mainstream American academic law journal.
Program: Our goal is to provide a forum for contracts scholars who have been active in the field for ten years or less, especially those who are pre-tenured -- although we may consider proposals from more senior scholars whose work may not be widely known to the AALS Contracts Section's membership. We will give some preference to proposers who have not recently been part of an AALS Contracts Section annual meeting program. Depending on the number of proposals we receive and select, we may invite more seasoned contracts scholars whose expertise overlaps with one or more accepted proposals to serve as discussants for one or more presentations.
Submitting a Proposal: Please e-mail an abstract, précis, outline, draft, or paper to section chair Keith Rowley (firstname.lastname@example.org), chair-elect Tom Joo (email@example.com), and immediate past chair Lisa Bernstein (LBernst621@gmail.com) no later than 5:00 p.m. PST, Friday, December 2, 2011, indicating how best to contact you between then and December 10. While we will reserve at least one spot for submissions received by the foregoing deadline (and may consider late proposals), we will begin reviewing proposals as we receive them and may begin extending offers as early as Wednesday, November 30th.
[Keith A. Rowley]
Thursday, November 3, 2011
The New York Times reports here about a man who is suing the studio that photographed his wedding in 2003, even though he and his wife divorced in 2008. Todd J. Remis alleges that the team assigned to the wedding by the studio left early and thus did not capture the bouquet toss or the last dance on film. In addition, Mr. Remis alleges that the photographs were that were taken were "unacceptable as to color, lighting, poses positioning" and that the video of the six-hour wedding lasts only two hours. Mr. Remis is demanding a complete refund of the $4100 he paid the studio, but he's not willing to stop there. He wants to re-stage the wedding (estimated cost $48,000) so that it can be photographed and preserved. This will be a bit difficult, since Mr. Remis is no longer in contact with the bride, Milena Grzibovska, who it is believed has returned to her native Latvia.
Justice Doris Ling-Cohan of the New York Supreme Court in Manhattan is obviously amused by the case (as evidenced by references to the Barbara Streisand song "The Way We Were" in her opinion), but she is allowing Mr. Remis to proceed on his breach of contract claim. Defendants claim that their litigation costs have already matched the total amount in controversy, and given the very small chance that the court will order anything more than a haircut on the $4100, defendants decry the suit as an abuse of the legal system.
Wednesday, November 2, 2011
Students seeking a break from reality recently approached me about the contract-related issues triggered by the announced divorce of megastar (and "new royal"?) Kim Kardashian, from her husband of 72 days, NBA player Kris Humphries (whom I still remember for choosing Minnesota after initially committing to Duke--see what you get for spurning the Blue Devils, Mr. Humphries?). We came up with, and tentatively answered, the following:
Q#1: Was there a prenuptial agreement and will it be enforceable?
Q#2: Could family and friends demand the return of their wedding gifts based on some kind of breach of implied contract or unjust enrichment theory given the extremely short marriage?
A#2: Although the etiquette experts agree that the right thing to do would be to return the gifts, there likely is no legal obligation to do so, despite the feelings of betrayal and broken promises.
Q#3: Along the same lines as Q#2, Could Kris demand return of the engagement ring based on contract or unjust enrichment?
A#3: Another clear no under California law.
Did we miss anything? By "anything," I mean something other than the opportunity to spend this time discussing something more useful.
[Heidi R. Anderson, h.t. to the entire blogosphere]
Carl J. Circo, Will Green Building Contracts Transform Construction and Design Law? 43 Urb. Law. 4837 (2011)
John M. Garon and Elaine D. Ziff, The Work Made for Hire Doctrine Revisited: Startup and Technology Employees and the Use of Contracts in a Hiring Relationship, 12 Minn. J. L. Sci. & Tech. 489 (2011)
In addition, we learn from Tulane University Law School's Alan Childress that Quid Pro Books (quidprobooks.com) just republished Lawrence M. Friedman's first book, Contract Law in America: A Social and Economic Case Study. It adds a new Foreword by Stewart Macaulay. Comparing contract cases and legislation over three discrete historical periods, Friedman shows that social context matters, that law is more flexible and adaptive than traditional doctrinal studies would suggest, and that the framing of contract law can use a fresh reexamination in light of the historical realities he exposes.
The original printing was unavailable or sold used on Amazon and the like for a hundred dollars. Now it is readily available again, in paperback, PDF, Kindle, Nook, Apple, and Sony formats.
Link to Amazon paperback: http://www.amazon.com/Contract-Law-America-Social-Economic/dp/1610279794
Link to Amazon Kindle: http://www.amazon.com/Contract-Law-America-Economic-ebook/dp/B005Y4DQYO
Link to B&N Nook: http://www.barnesandnoble.com/w/contract-law-in-america-lawrence-m-friedman/1005219129
Link to product info at Quid Pro Books: http://quidprolaw.com/?p=1738
Link to PDF download and other digital formats: http://www.smashwords.com/books/view/89909?ref=quidpro
List $25.99 ; 248 pp.
Its back cover blurbs are:
"Contract Law in America is one of the most important works in the entire scholarly literature on American legal history. Friedman took a subject that had been treated by researchers in exclusively doctrinal terms, bringing an entirely new perspective that revealed how contract law has been at the very center of how we need to understand 'law in action' in key periods of American development. In the methodology that Friedman applied, in the brilliance of the analysis, and in the new light his book cast on the full dimensions of governance and law in the United States, this book broke new ground. It remains today, still, required reading for any student of legal history."
— Harry N. Scheiber
Stefan A. Riesenfeld Professor of Law and History, University of California at Berkeley
"The republishing of Contract Law in America is a very welcome event. For years this has been one of the neglected classics of legal literature. Friedman did what the Legal Realists only dreamed of doing—he studied in depth what kinds of contracts cases state courts had decided over time, and found grand patterns in the decisions. As real-world contracts dropped out of common law litigation and into private ordering and specialized regulation, courts abandoned abstract formal rule-making for particularized equitable resolutions. In the present moment, more receptive to social and empirical studies of law than was 1965, Friedman's book should finally find the audience it deserves."
— Robert W. Gordon
Chancellor Kent Professor of Law and Legal History, Emeritus, Yale University; and
Professor of Law, Stanford University
"Contract Law in America remains a classic examination of the relationships among legal doctrine, legal culture, and the shifting frameworks of American business enterprise. Amid the current academic re-engagement with questions of political economy, we can only hope that more historians, social scientists, and legal scholars acquaint themselves with Friedman's probing analysis of how law did, and did not, influence American commerce, and how commerce did, and did not, influence American law."
— Edward J. Balleisen
Associate Professor of History, Duke University
Tuesday, November 1, 2011
I admit that the link to contracts law is attenuated, but these are [mis]uses that I come across in scholarship quite frequently, and I am alarmed that if I don't speak up, it will be too late and these abominations will come to be the standard usage.
So, let's start with the least egregious: "an history." Can you even say it aloud in a sentence without contortions? Because the "h" in history is vocalized, the proper form of the preceding indefinite article is "a," not "an." To use "an" in this context is IMHO, doubly pretentious. I suspect that the usage is a holdover from the times when English aristocrats, trying to get in good with their new French overlords, dropped their "h's." This affectation then trickled down like stock options don't, and today in England, as here, dropping one's "h's" is not considered standard. Still, for some reason, we still pretend that we are affecting a French pronounciation of the words "history" and "historic" when in fact we are not. There is therefore absolutely no reason to use "an" before either of those words. This usage is least egregious because it comes up relatively infrequently, but it still drives me crazy because it almost always occurs in texts that are otherwise learned (although sportscasters love to lable every play or incident "an historic occasion"). Why would smart people do such a thing?!?
Alright, on to "fulsome." Fulsome is now likely more often used improperly than properly. It sounds like it means "complete" or "generous" or "ample." It doesn't. It means excessive. Fulsome praise is insincere praise -- praise so over the top as to flip over into its opposite. "Noisome" is similar. It sounds like it means "noisy," but it really means "smelly." Best just to stay away from "some" words.
And finally, the usage that bugs me the most because of its ubiquity is "plethora." Again, I blame sports commentators. They have fallen in love with the misuse of this word and it has infected the literate public. Plethora does not mean "a lot." We have quite a few words that mean "a lot," and to use "plethora" when you mean "a lot" is confusing because "plethora" really means "an unhealthy excess;" not "a lot" but "too many." The word derives from the theory of the bodily humors. Excess of one humor was believed to cause symptoms. A plethora is a pathology.
I am moved to write about this (again) because I did something recently that I never do -- I told a colleague that he had misused the word. I did this because I had heard him do it on two occasions and because I respect him and think he has picked up on a misuse of the word and mistaken the misuse for the correct usage. I would like to think that if I were misusing a word and someone corrected me (as my mother used to do before I fled her jurisdiction), I would eventually get over my embarrassment and be grateful to the person who prevented me (hopefully in private) from compounding the embarrassment through reiteration.
Our conversation revealed that my colleague seemed to be familiar only with the improper usage of "plethora." Still, he argued in populist mode, if the wrong usage is the common usage, it becomes the correct usage. He proposed that we test our theories of the word's meaning by checking how it is used on Westlaw. Well, I know what outcome such a search would produce, but I'm not willing to bow to popular usage in this instance because popular usage is confusing to those of us who know what the word means (and by the way, dictionaries still provide the traditional definition of the term). When a judge writes that the defendant provided a "plethora of arguments" in defense of her conduct, I honestly don't know whether the court is saying that the defendant had many serious arguments that the court needs to a address or that the defendant provided so many lame excuses for her conduct that none of them deserves serious attention. The latter meaning illustrates the power of the word "plethora" properly deployed, and it is indeed a useful word if its meaning is not horribly diluted through misuse.
I concede that one should generally bow to popular usage. I cringe inwardly whenever I hear or see the word "normalcy" (but ethe slippery slope into normalicy), but I cannot honestly claim that the usage is wrong. Still, the Westlaw methodology is highly suspect in my view. When I was a clerk, I was asked to review a draft opinion from one of the other judges on our court. My judge had no substantive differences with the opinion, so she wanted to sign off on it, but for some reason, the other judge (or his clerk) had made reference to some aspect of the case being "much adieu about nothing." After checking with my judge about protocol, I called the clerk responsible for the opinion and told him that the phrase seemed to reference one of Shakespeare's plays entitled "Much Ado about Nothing." Some time later, I received an e-mail from the other clerk informing me that he had decided to make the change I had requested, not because of Shakespeare, but because a Westlaw search indicated that my preferred spelling was the more popular one. I suppose one might say that there are a plethora of reasons for spelling the word in question "ado," but I would say that there is only one reason that matters.
Monday, October 31, 2011
The WSJ reports on the volatile cotton market and the record number of contract disputes that have arisen as a result. Here's a sample:
Just how binding is a binding agreement?
In the cotton market, dozens of remorseful buyers are putting that question to the test.
Since they agreed earlier this year to buy thousands of bales of cotton when prices were at record highs, cotton mills have seen prices tumble 54%. So, as delivery time nears and bills come due, some have decided not to pay up.
In a phenomenon that may be unique to the cotton market, contracts are considered by many buyers to be little more than a message of intent, with any agreement up for negotiation. And because the market is so farflung—merchants in the U.S. often trade with thousands of small buyers in Bangladesh or Indonesia—regular legal battles can be costly and lengthy.
Thanks to the wild swings in cotton prices, the industry is facing a record number of contract disputes. The International Cotton Association has received 168 requests for arbitration this year. That is the most since the industry's self regulator starting keeping track in 2000.
This year, it is mostly mills and other buyers backing out, industry officials and traders say. They bought when cotton was as pricey as $2.1515 a pound, the record hit in March. On Monday, cotton for December delivery rose 0.9% to close at 97.94 cents a pound on ICE Futures U.S.
Shrugging off those contractual obligations has made cotton prices jumpy. Having backed out of deals struck in the futures market, buyers have gone into the spot, or cash, market to get what they needed to spin thread for T-shirts, underwear and the like. Those reverberations have been felt by clothing makers of all sizes, whose margins were squeezed by the run-up in prices and now have to decide whether they can lower prices ahead of the holiday season.
"Both the textile mills [and] the merchant...have had a great deal of trouble in managing their risk," said Joe Nicosia, chief executive of Allenberg Cotton Co., the cotton arm of French trading house Louis Dreyfus Group, during an industry conference call in July.
When mills don't live up to their end of the deal, cotton merchants, including big, multinational commodity-trading firms, are at times left holding the bag.
Each year, 100,000 to 200,000 cotton contracts are signed, said Terry Townsend, executive director of the International Cotton Advisory Committee, a group that advises cotton-growing nations. For the crop year that ended July 31, about 10% of contracts have been defaulted on, said Mr. Townsend.
Defaults are a fixture in the cotton market.
You mean the buyer and seller didn't agree to shipment of the cotton on the Peerless?
For more (including a snazzy graphic with data), scale the WSJ paywall and read the article. As one commenter wrote: "A deal's a deal until a better deal comes along."
[Meredith R. Miller]