Tuesday, January 31, 2012
Monday, January 30, 2012
Dozens of applicants to Vassar College celebrated their acceptances -- but only for a couple of hours. (The link is here - I wonder what Lisa Kudrow and Meryl Streep think about this snafu...?) These applicants were later informed, also electronically, that those acceptances were sent in error. At least Vassar didn't text their rejections....
Did the acceptances create an enforceable contract? Over at Concurring Opinions, Lawrence Cunningham has a post arguing that they probably did not. I don't think the answer is clear without knowing more about the circumstances of the early decision process. Another possibility - could Vassar argue this was merely preliminary negotiations and there was no agreement until the enrollment contract was signed and accepted? (This might not get Vassar off the hook with at least some students since the article indicates that a few paid their deposit and so might have sent in their enrollment contracts....) It's an interesting issue - and one that is bound to arise more often with electronic communications. Speaking of which, I wouldn't be surprised if there is a browse- or clickwrap contract for Vassar's website which covers this scenario. If there isn't, there will be soon.
Could a computerized letter error made by Vassar College (the alma mater of the pictured Meryl Streep) potentially serve as an instructive hypo for students beginning their study of Contracts? My tentative thought is "yes," at least for those who start with formation versus damages. As the NYT reported over the weekend, Vassar College recently emailed decision letters to its "early decision" undergrad applicants. For many of those applicants, euphoria ensued. A few hours later, that euphoria was replaced by anger and grief. Why the emotional switcheroo? Well, it seems that some of the applicants mistakenly received a test-version of an acceptance letter (all of which said, "Congratulations...") instead of their actual decision letter (some of which said, "Congratulations..." but many more of which said, "We are sorry to inform you that..."). Because all of the posted test-version letters were acceptances, many applicants initially thought they had been accepted only to find out later that: (i) the letter they first saw was the wrong one, and (ii) the "right" letter was a denial. What makes this difficult situation particularly interesting from a Contracts perspective is that the early decision applicants reportedly had to commit to attending Vassar if admitted. Thus, one may be able to characterize their applications as binding "offers to attend," which Vassar then arguably accepted via the test-version letter, thereby forming a contract and making Vassar's later attempted revocation invalid. Alternatively, one could view the application as an invitation to deal, with the test-version of the letter as the offer, which Vassar then promptly revoked prior to acceptance. Although the applicants also could emphasize reliance, the short period of time between the posting of the test-version letter and the right letter likely mimimizes that possibility (that said, at least one applicant reportedly considered withdrawing her applications elsewhere upon receipt of the acceptance so perhaps there's more potential reliance here than the time lapse would indicate). As with many stories like this one, the precise facts matter. But that's what class time is for--considering the "what if..." questions using facts of our own creation.
[Heidi R. Anderson, h/t to Anonymous Contracts I student]
The number $16 million seems to be in the air. Last week, Meredith Miller reported on a $16 million typo. Over the weekend, we learned of a decision in Donald Drapkin's suit against billionaire corporate raider Ron Perelman (pictured). Perelman likely has not been ordered to pay so much money to an individual since his divorce from Faith Golding. Except for when he divorced Claudia Cohen. Unless he paid that much when he divorced Patricia Duff. Well, and let's not forget Ellen Barkin.
Fans of the course alternatively known as Corporations, Business Organizations or Business Associations are familiar with Ron Perelman, as are Mergers and Acquisitions afficianados. A notorious greenmailer, Perelman did battle with Revlon's Michel Bergerac and prevailed in a case we have previously discussed here.
As reported in The New York Times here, it took a federal jury a bit over an hour to determine that Mr. Drapkin had abided by the terms of his 2007 separation agreement from Mr. Perelman's holding company, MacAndrews and Forbes. While Wall Street insiders wonder why a man worth $12 billion would quibble over a paltry $16 million sum owed to a long-time associate, Mr. Perelman's attorneys have announced plans to file a motion asking the judge to set aside the jury verdict. An appeal will likely follow.
At issue was whether or not Mr. Drapkin had fully complied with his contractual obligation to destroy all files relating to the company. Some such files were found on the laptop computer of his personal assistant. The parties disputed both whether Mr. Drapkin was allowed to retain some copies and whether or not the alleged breach was material. According to the Times,
The case was largely fought in the weeds of contract law, with lawyers arguing over the interpretation of particular words and phrases. At issue was whether Mr. Drapkin, who now runs a hedge fund in New York, had “substantially performed” under the contract.
Hold on there a minute? Is the New York Times calling the doctrine of substantial performance a weed? Hello? New York Times?!? Have you ever heard of the New York Court of Appeals and a little-known Judge named Benjamin Cardozo? He authored an opinion in a humble case called Jacob and Youngs v. Kent that is among the most beautiful pieces of writing in the history of American jurisprudence. In it, Cardozo articulates the doctrine that you now denigrate as a "weed" as follows:
This is merely to say that the law will be slow to impute the purpose, in the silence of the parties, where the significance of the default is grievously out of proportion to the oppression of the forfeiture. The willful transgressor must accept the penalty of his transgression. For him there is no occasion to mitigate the rigor of implied conditions. The transgressor whose default is unintentional and trivial may hope for mercy if he will offer atonement for his wrong.
From lesser weeds jurists have harvested a bounty that feeds the multitudes.
Thursday, January 26, 2012
Yesterday’s NYLJ reported on a NY trial court decision ordering a condo developer to return a total of $16 million in down payments to 40 condo purchasers.
The offering plan and purchasing agreement for The Rushmore, a luxury Upper West Side condo, contained a September 1, 2008 rescission date. More specifically, the offering plan allowed purchasers to get back their deposits if closings did not occur by September 1, 2008. When the closings did not happen, the purchasers sought return of their down payments. The developer argued that the date should have been September 1, 2009 – an alleged scrivener’s error by the developer’s attorney.
The trial court (Singh, J.) held that the developer did not meet “its heavy burden to show that the alleged ‘scrivener’s error’ was contrary to the intention of the parties and had not provided evidence that the parties intended a September 1, 2009 date.” In particular, the court distinguished previous cases by noting that the date in the offering plan was consistent with other documents and rescission of the contracts did not result in a windfall to the purchasers.
Ouch! Actually, that has to be more than a $16 million mistake given the change in the real estate market since the purchase agreements were signed...
CRP/Extell Parcel I, L.P. v. Cuomo (NY Sup. Ct. 113914/2010 Jan. 19, 2012). (Procedurally, the proceeding was commenced to review an Attorney General determination in favor of the purchasers).
[Meredith R. Miller]
Country singer Garth Brooks recently won a breach of contract case against an Oklahoma hospital that the jury found promised to build a women's center in honor of the singer's mother in exchange for $500,000. The jury concluded that Brooks had been defrauded by the hospital. As contracts profs know, fraud it not an easy thing to prove especially where the case involved an oral agreement. The hospital has to return the original $500,000 and also has to pay $500,000 in punitive damages. Punitive damages are not an easy thing to win in breach of contract cases so congrats to Brooks and to his lawyers.
Tuesday, January 24, 2012
On January 6th, the U.S. Supreme Court granted the petition for certiorari in Salazar v. Ramah Navajo Chapter. SCOTUSblog provides a summary of the issues here and provides links to key documents in the case here. The Petition for Certiorari, filed by Ken Salazar, Secreatry of the Interior (pictured), articulates the issue in the case as follows:
Whether the government is required to pay all of the contract support costs incurred by a tribal contractor under the Indian Self-Determination and Education As- sistance Act, 25 U.S.C. 450 et seq., where Congress has imposed an express statutory cap on the appropriations available to pay such costs and the Secretary cannot pay all such costs for all tribal contractors without exceeding the statutory cap.
SCOTUSblog's Lyle Denniston provides the following summary of the issues:
The Indian case, a petition by the federal Interior Department, involves a 1975 federal law that Congress passed to give Indian tribes a greater role in running government programs for the benefit of tribal members. The law, the Indian Self-Determination and Education Assistance Act, allows Indian tribes to contract with the Interior Department to take over operation of a federal program or service, with Interior to put up the money that the government would have spent itself on that activity. In 1988, Congress also provided that Interior must also provide funds to pay the administrative costs that the tribe incurs in operating the program, such as audit or reporting duties, and general overhead.
That separate funding provision, however, is made contingent upon Congress providing the necessary appropriations to pay for it. And, in 1999, Congress provided that there would be caps on the amount of contract support costs that Interior would cover for a tribe. Congress has imposed such caps for each of the past 15 years.
The issue in the newly granted case, Salazar v. Ramah Navajo Chapter (11-551), is whether the government must pay everything that it has promised in such a contract with a tribe, including support costs, without regard to whether that goes beyond a cap imposed by Congress — provided that the government can find the money elsewhere in the government. The Interior Department’s petition urged the Court to take the case and rule that Interior cannot be required to pay tribes beyond what the cap allows because that intrudes upon Congress’s constitutional authority to decide when and how to spend federal money.
In the programs at issue specifically in the case, the Ramah Navajo Chapter, the Oglala Sioux Tribe, and the Pueblo of Zuni had a contract with Interior to operate for tribal members a series of federal programs: for law enforcement, court operation, education assistance, land management, probate assistance, natural resource services, employment aid, child welfare assistance, operation of emergency youth centers, and juvenile detention services. The tribes sued over unpaid direct contract support costs for the fiscal years 1994 through 2001, in which congressional caps were in place.
We look forward to following this case. If anybody out there among our readers is knowledgeable about the case and would like to guest post, please get in touch, as none of us on the blog is an expert in this area.
Monday, January 23, 2012
NEW YORK — Macy’s Inc. has sued Martha Stewart Living Omnimedia Inc. in a bid to block a licensing deal between the housewares company and J.C. Penney Co.
The lawsuit was filed Monday in New York State Supreme Court. Macy’s claims Martha Stewart Living’s deal with J.C. Penney violates the terms of an exclusive pact Macy’s has to sell Martha Stewart Living products at its stores, according to reports in The Wall Street Journal and other publications.
The complaint comes after Plano, Tex.-based J.C. Penney acquired a 16.6 percent stake in Martha Stewart Living and announced plans last month to open mini-Martha Stewart shops inside most of its stores, beginning next year. The deal announced last month was seen as part of J.C. Penney’s efforts to re-image itself under its new CEO Ron Johnson, a former Apple Inc. executive.
Cincinnati-based Macy’s has asked the court for a preliminary injunction to block the deal.
Martha Stewart Living said it does not comment on legal matters, but issued a statement saying that it received a notification from Macy’s that it intends to renew and extend its commercial agreement with Martha Stewart Living to feature and promote the Martha Stewart Collection in Macy’s stores.
Waiter, bring us some more Bacardi, we'll order now what they ordered then:
[Meredith R. Miller]
Forget the Republican primaries, the real news this week is fine print. As Jeremy Telman blogged, there are some troubling contract issues relating to the Costa Concordia disaster. The Wall Street Journal noted the prevalence of fine print everywhere, and the vast amounts of it. Finally, yesterday's New York Times had plastered on the front page of the Sunday Review this article about the mess of disclosure requirements that often leave consumers more confused and overwhelmed than enlightened.
A few years ago, the story of a "blood contract" between two Korean businessmen caught the attention of contracts profs. In that case, one of the men made a promise to the other to repay money -- and made the promise on a cocktail napkin in blood. The court ruled the promise was unenforceable because it lacked consideration. I wrote about the case for the Wake Forest Law review here and last year, the Wake Forest Law Review Online posted responses by Professor Scott Burnham here and Professor David Epstein here. I recently posted a reply to those responses here. Deborah Post, Associate Dean for Academic Affairs and Faculty Development and Professor of Law at Touro Law, has now added her thoughtful perspective to the discussion here.
At the end of Season 4 of Big Love, protagonist Bill Henrickson wins election to the state senate and decides that this is the time to reveal his plural marriage (depicted at right). What could possibly go wrong? Tune in next season to find out.
And so we have, now that Season 5 is out on Netflix, and part of what goes wrong relates to contracts. First, Bill's third wife, Margene, gets fired from her job, hawking jewelry on a shopping network. When she inquires about her severance, she is told that she is not entitled to any, because she has breached her morals clause by lying about her marital status. It's a pathetic scene, both because Margene's sense of her own self-worth has come to derive from her success through this television gig, and also because Margene seems unaware that one can challenge the applicability of a morals clause. Could there really be that much case law out there on the applicability of morals clauses to undisclosed plural marriages? As usual, Bill who always has a lawyer at the ready when he gets himself into a pickle, is nowhere to be found when his decisions ruin other people's lives.
Episode 1 of Season 5 also mentions that the Native American tribe with which the Henricksons had built a casino has now severed all ties with the family. That's the kind of contractual breach that gets Bill's attention, but we'll see how much of the last season is dedicated to sorting out that sort of stuff.
Friday, January 20, 2012
When I was a teenager, I used to read Mad Magazine (when I wasn't reading Dostoevsky, Kafka or Sartre, of course). I retain very few memories of my childhood, but one Mad feature stuck with me, although only vaguely. The idea was to take a story and present it as it would be presented in magazines with very different perspectives on the world. The story that Mad worked with was a football game, so of course one version was just to report on the game. Another version was a medical journal featuring an image of some bone that had been broken during the game. Another version that I remember distinctly featured a photograph of a football taken at very close range. The image was supposed to represent how the football game would be featured in a photography magazine. It described all of the particulars of the way the photograph was taken -- film speed, lens type, etc., and then mentioned that the photograph was of the ball as it soared through the uprights for the winning field goal, just before it smashed the photographer's camera. A nice touch, in the estimation of my 13-year-old mind.
I've often thought that this blog plays out Mad Magazine's idea, as do many other blogs and even the lamestream media. And so, we pick over the carcass of a human and environmental catastrophe for a tidbit of contracts doctrine. But we are not alone. As the New York Times reported yesterday, it will be very difficult for any victims of the Costa Concordia wreck to go after the ship's corporate parent, Carnival Cruise Lines, for reasons that will strike a chord with fans of the civil procedure chestnut, Carninval Cruise Lines, Inc. v. Shute.
According to the Times, at least 70 passengers of the ill-fated cruise ship have signed on to a class-action lawsuit, but their ability to get at the corporate defendant will be greatly hindered by the Convention on Limitation of Liability for Maritime Claims, characterized on the International Maritime Organization Website as “a virtually unbreakable system of limiting liability," and by the terms contained in the 6,400-word contracts attached to their cruise tickets.
The contract could provide great fodder for a few sessions on contractual remedies.
Tuesday, January 17, 2012
A hit! A palpable hit! At the top of the SSRN list, we have a new article that has vaulted to #1 out of nowhere. 312 downloaders can't be wrong!
In this post I refer to “bills of sale, instruments of assignment, releases, deeds, powers of attorney, stock powers, and the like, in other words short documents, usually signed by one party, that consist largely or entirely of language of performance, with the signatory giving something to someone.”
But in the same post I quote from two documents that served analogous functions but were structured as unilateral contracts, with both sides signing. (Black’s Law Dictionary defines a unilateral contract as “A contract in which only one party makes a promise or undertakes a performance; a contract in which no promisor receives a promise as consideration from the promise given.”)
Anyone care to propose when you should use a one-signatory document and when you should use a unilateral contract?
Monday, January 16, 2012
Now that folks are back from AALS and gearing up for a new semester, we remind all fans of contracts scholarship to get out and vote for the best contracts law article to appear in 2011. We would really love to hear from you. Vote by sending the name of the article to firstname.lastname@example.org. You can find more details about the contest here.
Here is a list of the entries:
Kenneth A. Adams, Making a Mess of Ambiguity: Lessons from the Third Circuit’s Opinion in Meyer v. CUNA Mutual Insurance Society, Bus. L. Today (the ABA Business Law Section's Online Resource) (Nov. 24, 2011)
Sofia Adrogue, Recent Developments in Fifth Circuit Business Torts Jurisprudence, 43 Tex. Tech. L. Rev. 843 (2011).
Miriam Albert, Lenne Espenschied and Grace M. Giesel, Exercise Showcase, 12 Transactions 335 (2011)
Luca Anderlini, Leonardo Felli, and Andrew Postlewaite, Should Courts Always Enforce What Contracting Parties Write? 7 Rev. L. & Econ. (2011)
Sally Andersen, Mapping the terrain: The last decade of payday lending in Australia, 39 Australian Bus. L. Rev. 5 (2011)
Aditi Bagchi, Unequal Promises, 72 U. Pitt. L. Rev. 467 (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)
Ian Bartum, Thoughts on the Divergence of Contract and Promise, 24 Canadian J. L & Jurisprudence 225 (2011)
Stephen F. Befort, Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause, 59 Buff. L. Rev. 1 (2011)
Uri Benoliel, The Behavioral Law and Economics of Franchise Tying Contracts, 41 Rutgers L.J. 527 (2010).
Omri Ben-Shahar and Eric A. Posner, The Right to Withdraw in Contract Law, 40 J. Legal Stud.115 (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)
Adam Candeub, Contract, Warranty and the Patient Protection and Affordable Care Act, 46 Wake Forest L. Rev. 45 (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)
Vincent Chiappetta, Patent Exhaustion: What's It Good For? 51 Santa Clara L. Rev. 1087 (2011)
Carl J. Circo, Will Green Building Contracts Transform Construction and Design Law? 43 Urb. Law. 4837 (2011)
Ronnie Cohen and Shannon O'Byrne, Burning Down the House: Law, Emotion and the Subprime Mortgage Crisis, 45 Real Prop. Tr. & Est. L.J. 677 (2011)
Mateja Djurovic, Serbian Contract Law: its development and the New Serbian Civil Code, 7 Eur. Rev. of Contract L. 65 (2011)
Christopher R. Drahozal, and Peter B. Rutledge, Contract and Procedure, 94 Marq. L. Rev. 1103 (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)
Horst Eidenmüller, Why Withdrawal Rights? 7 Eur. Rev. of Contract L. 1 (2011)
Carlos A. Encinas, Clause Majeure?: Can a Borrower Use an Economic Downturn or Economic Downturn-Related Event to Invoke the Force Majeure Clause in Its Commercial Real Estate Loan Documents? 45 Real Prop. Tr. & Est. L.J. 731 (2011)
Mark Fagan, Tamar Frankel, Eric J. Gouvin and Kathy Z. Heller, Upper-level Courses: Three Exemplars, 12 Transactions 377 (2011)
Thomas A. Gabriele, Could the Weapon Systems Acquisition Reform Act of 2009 Have Fixed the Problems that Plagued the F-22 Acquisition Project Back in 1981?40 Pub. Cont. L.J. 741 (2011)
Eric J. Gouvin, Robert Statchen, Anthony J. Luppino and William A. Kell, Interdisciplinary Transactional Courses, 12 Transactions 101 (2011)
Jack M. Graves, Arbitration as Contract: The Need For a Fully Developed and Comprehensive Set of Statutory Default Legal Rules, 2 Wm. & Mary Bus. L. Rev. 227 (2011).
Stefan Grundmann & Sebastian Uhlig, German Contract Law – Nearly a Decade After the Fundamental Reform in the Schuldrechtsmodernisierung, Eur. Rev. of Contract L. 78 (2011)
Surya Gablin Gunasekara, "Other Transaction" Authority: NASA's Dynamic Acquisition Instrument for the Commercialization of Manned Spaceflight or Cold War Relic? 40 Pub. Cont. L.J. 893 (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)
David Hahn, The Internal Logic of Assumption of Executory Contracts, 13 U. Pa. J. Bus. L. 723-750 (2011)
Sam Foster Halabi, Efficient Contracting between Foreign Investors and Host States: Evidence from Stabilization Clauses, 31 Nw. J. Int'l L. & Bus. 261 (2011)
Trevor C. Hartley, Choice of Law Regarding Voluntary Assignment of Contractual Obligations under the Rome I Regulation, 60 Int'l & Comp. L. Quarterly 29 (2011)
Joan MacLeod Heminway, Michael A. Woronoff and Lyman P.Q. Johnson. Innovative Transactional Pedagogies, 12 Transactions 243 (2011)
Alec Hillbo, Fifty Years of Restrictive Covenants in Arizona Law, 4 Phoenix L. Rev. 725 (2011)
Michael H. Hoffheimer, Conflicting Rules of Interpretation and Construction in Multi-jurisdictional Disputes, 63 Rutgers L. Rev. 599 (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)
John Patrick Hunt, Taking Bubbles Seriously in Contract Law, 61 Case W. Res. L. Rev. 681 (2011)
Anne Layne-Farrar, An Economic Defense of Flexibility in IPR Licensing: Contracting around "First Sale" in Multilevel Production Settings, 51 Santa Clara L. Rev. 1149 (2011).
Stephen J. Leacock, Fingerprints of Equitable Estoppel and Promissory Estoppel on the Statute of Frauds in Contract Law, 2 Wm. & Mary Bus. L. Rev. 73 (2011)
Chunlin Leonhard, Subprime Mortgages and the Case for Broadening the Duty of Good Faith, 45 U.S.F. L. Rev. 621 (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)
Brittnay M. McMahon, The Science behind Surrogacy: Why New York Should Rethink Its Surrogacy Contracts Laws, 21 Alb. L.J. Sci. & Tech. 359 (2011)
Kemit A. Mawakana, In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic, 11 U. Md. L.J. Race, Religion, Gender & Class 39 (2011)
Roy S. Mitchell, Cultural Sensitivities in International Construction Arbitration, 2 Faulkner L. Rev. 325 (2011)
Jim.Moye, Let's Put the Fear in the FERA! Suggestions to Make the Fraud Enforcement and Recovery Act of 2009 a Strong Fraud Deterrent, 35 S. Ill. U. L.J. 421 (2011)
Sondra Bell Nensala, Homeland Security Presidential Directive 12: How HSPD-12 May Limit Competition Unnecessarily and Suggestions for Reform, 40 Pub. Cont. L.J. 619 (2011).
Richard K. Neumann, Jr., Tina L. Stark and Howard Katz, Negotiations, 12 Transactions 153 (2011)
Raymond T. Nimmer, Copyright First Sale and the Over-riding Role of Contract. 51 Santa Clara L. Rev. 1311 (2011).
N. Pieter M. O'Leary, Bullies in the Sandbox: Federal Construction Projects, the Miller Act, and a Material Supplier's Right to Recover Attorney's Fees and Other "Sums Justly Due" under a General Contractor's Payment Bond, 38 Transp. L.J. 1 (2011)
Kingsley S. Osei, The Best of Both Worlds: Reciprocal Preference and Punitive Retaliation in Public Contracts, 40 Pub. Cont. L.J. 715 (2011).
Salvatore Orlando, The Use of Unfair Contractual Terms as an Unfair Commercial Practice, 7 Eur. Rev. of Contract L. 76 (2011)
Heidi Lynn Osterhout, Maj. U.S. Air Force. No More "Mad Money": Salvaging the Commander's Emergency Response Program, 40 Pub. Cont. L.J. 935 (2011)
Francesco Parisi, et al., Optimal Remedies for Bilateral Contracts, 40 J. Legal Stud. 245 (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)
Lynn C. Percival, IV, Public Policy Favoritism in the Online World: Contract Voidability Meets The Communications Decency Act, 17 Tex. Wesleyan L. Rev. 165 (2011)
Abigail Lauren Perdue, For Love or Money: An Analysis of the Contractual Regulation of Reproductive Surrogacy, 27 J. Contemp. Health L. & Pol'y 279- (2011).
Ryan Peterson, Regulating the Global Marketplace: Why the U.S. Government Must Revise the Current Rules on Contracting with Foreign-Controlled U.S. Businesses, 40 Pub. Cont. L.J. 1061 (2011)
Lucille M. Ponte, Getting a Bad Rap? Unconscionability in Clickwrap Dispute Resolution Clauses and a Proposal for Improving the Quality of These Online Consumer "Products," 26 Ohio St. J. on Disp. Resol. 119 (2011)
David Robbins, et al, Path of an Investigation: How a Major Contractor's Ethics Office and Air Force Procurement Fraud and Suspension/Debarment Apparatus Deal with Allegations of Potential Fraud and Unethical Conduct, 40 Pub. Cont. L.J. 595 (2011).
Regina Robson, Paying for Daniel Webster: Critiquing the Contract Model of Advancement of Legal Fees in Criminal Proceedings, 7 Hastings Bus. L.J. 275 (2011)
Kara M. Sacilotto, Deja Vu All Over Again: Cost-Reimbursement Contracts Fall out of Favor (Again), but Should They? 40 Pub. Cont. L.J. 681 (2011).
Jane Scott and Charles Fox, Contract Drafting in 90 Minutes, 12 Transactions 7 (2011)
Andrew A. Schwartz, Consumer Contract Exchanges and the Problem of Adhesion, 28 Yale J. on Reg. 313 (2011)
Jan M. Smits, Rethinking the Usefulness of Mandatory Rights of Withdrawal in Consumer Contract Law: The Right to Change Your Mind? 29 Penn St. Int'l L. Rev. 671 (2011)
Tina L. Stark, Welcome & Opening Remarks, 12 Transactions 3 (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)
Megan S. Vahey, A Discussion on the District of Columbia's Procurement Law and the Spark That Led to Renewed Reform Efforts, 14 U.D.C. L. Rev. 115 (2011)
Florian Wagner-von Papp, European Contract Law: Are No Oral Modification Clauses Not Worth the Paper They Are Written On? 63 Current Leg. Problems 511 (2011)
Christine M. Westphal, Restrictive Covenants in Employment Contracts: Regulating Employee Solicitation. 37 J. Legis. 108 (2011)
Chris Willett, The Functions of Transparency in Regulating Contract Terms: UK and Australian Approaches, 60 Int'l & Comp. L.Q. 355 (2011).
John J.Worley, Karl Okamoto and Sherry Porter, Transactional Centers and Certificate Programs, 12 Transactions 299 (2011)
Huma T. Yasin, Playing Catch-up: Proposing the Creation of Status-based Regulations to Bring Private Military Contractor Forms within the Purview of International and Domestic Law. 25 Emory Int'l L. Rev. 411 (2011)
Noah D. Zatz, Beyond Misclassification: Tackling the Independent Contractor Problem without Redefining Employment. 26 A.B.A. J. Lab. & Emp. L. 279 (2011).
Interested in the latest contracts scholarship available on the SSRN Contracts and Commercial Law eJournal? You can find it here.
In addition, we would like to call attention to some recent scholarship by friend of the blog, Steven Schooner and his crew:
First, we have Robert D. Anderson, Steven L. Schooner & Collin D. Swan, The WTO's Revised Government Procurement Agreement -- An Important Milestone Toward Greater Market Access and Transparency in Global Public Procurement Markets. Here is the abstract:
In December of 2011, the Parties to the World Trade Organization Government Procurement Agreement (GPA) adopted significant revisions to the Agreement. The revised Agreement comprises (a) a much-needed modernization of the text of the Agreement, (b) an expansion of related market-access commitments by the Parties, and (c) a set of Future Work Programs intended to enhance transparency among the Parties and improve the administration of the Agreement. In these unstable economic times, the importance of the GPA and its improvements cannot be overstated.
This article also bemoans the media's misrepresentation of the ongoing process of China's negotiated accession into the GPA. China continues to invest resources in upgrading its public procurement regime as it negotiates with the GPA Parties to open its government purchasing markets to systematic international competition.
Second, we have Collin D. Swan, Dead Letter Prohibitions and Policy Failures: Applying Government Ethics Standards to Personal Services Contracts. Here is the abstact:
The last two decades have been marked by numerous political efforts to reduce the size of the federal workforce and declare the end of the “era of big government.” These efforts left the federal government strapped for personnel and resources and have forced many agencies to increasingly rely on service contractors in general, and personal services contractors in particular, to fulfill their mandates. According to the Federal Acquisition Regulations, a personal services contract is a contract that creates an employer-employee relationship between the contractor and the federal government. Despite a longstanding — and, arguably, outdated — regulatory prohibition on the use of personal services contracts, many agencies are increasingly employing personal services contractors in positions traditionally reserved for government employees. The result is an absurd situation in which government ethics laws apply differently to service contractors and federal employees who work alongside each other, perform similar discretionary tasks, and have the same potential to engage in corrupt practices.
This Note argues that the personal services prohibition represents an outdated and inefficient method of protecting the government’s interest and should be abolished. Given the government’s current reliance on service contractors, procurement officials should not be concerned with whether a contract creates an employment relationship with the government, but instead with whether contractor personnel are being properly managed and supervised. Congress should thus explicitly abolish the personal services prohibition and apply government ethics laws to personal services contractors. This would reduce the ability of personal services contractors, who often perform discretionary functions on the government’s behalf, to act in their own personal interest to the detriment of the government’s mission.
Friday, January 13, 2012
And here it is: the last in our series of links to Professor Richard Craswell's series of first-year contracts cases put to song. Previous installments in the series from Professor Craswell have included his takes on Frigaliment, Lumley, Wood v. Lady Duff Gordon, Alaska Packers, Parker v. Twentieth Century Fox, and Wartzman v. Hightower Productions.
Boy meets cow. Boy loses cow. Boy files an action in replevin. And now Plymouth (Michigan) takes its rightful place beside Verona (Italy) and the upper West Side (Manhattan) as the home of legendary star-crossed lovers!
Oh, all right. The actual facts of the case are more prosaic. Theodore Sherwood, who wanted to buy the cow, was the 47-year-old PRESIDENT of the local bank, who would never have considered hopping a freight train out of town. Though his motive in purchasing the cow is obscure, there was of course no evidence that his interest in the cow was anything other than financial. And the eventual outcome of the case was far happier than that portrayed here, for the pedigreed cow in question ("Rose the Second of Aberlone") went on to have at least five additional calves, whose registration papers each listed none other than Theodore Sherwood as the breeder. Still, no Hollywood or Nashville producer would have settled for the facts described above. Make the banker a penniless but romantic youth; change his interest in the cow to something more than "just good friends"; then tack on an implausible but heart-wrenching ending (and label the result "inspired by a true story") ... well, do all that, and you might just have the next big musical hit!
The rather long list of poems inspired by Rose of Aberlone begins famously wiith Brainerd Currie, "Aberlone, Rose of (Being an entry for an index)," first published in the Harvard Law School Record, Mar. 4, 1954, p. 3, and stiill widely available on various web sites. See also Alan Garfield, "Basic Assumption: A Poem Based on Sherwood v Walker," 57 SMU L. Rev. 137 (2004); and the various verses that can be found (along with much background on the case itself) in Norman Otto Stockmeyer, "To Err is Human, To Moo Bovine: The Rose of Aberlone Story," 24 T.M. Cooley L Rev 491 (2007).
The whole series can be found here,
Thanks to Professor Craswell for sharing these songs and YouTube creations with us!
Thursday, January 12, 2012
We continue our series of postings of Professor Richard Craswell's contracts songs with this number about "Woody Hightower" and his pole-sitting gambit. Other installments in the series from Professor Craswell have included his takes on Frigaliment, Lumley, Wood v. Lady Duff Gordon, Alaska Packers, and Parker v. Twentieth Century Fox.
Here is Professor Craswell's summary of the case:
Hightower Productions intended to employ a singer-entertainer who would live in a specially constructed mobile flagpole perch and set a new world record for flagpole sitting. The young man selected to perform this feat would be known as "Woody Hightower," and the venture was to be publicized by having him make appearances from his perch at concerts, shopping centers and the like.
Unfortunately, Hightower Productions' lawyer (Mr Wartzman) failed to prepare the paperwork needed for the company to sell stock legally to investors. As a result, no further money could be raised (nor could "Woody" be exhibited across state lines) and the project was abandoned. Unable to prove how much its flagpole-sitting venture might have made if it had gone forward, Hightower Productions instead sued its lawyer for some $170,000 in out-of-pocket expenses, known in contract law as reliance damages.
The whole venture seems a bit daft. In order to defeat the record set by St. Simeon Stylites, "Woody" would have had to sit atop his pole for 37 years. "What?" you say. "That's not what my Guinness Book of World Records says!" Well, Mr. Guinness, meet Mr. Tennyson. Or, if you prefer a more modern take on such religious exercises, consider Joshua Mehigan.
Wednesday, January 11, 2012
Yesterday, the U.S. Supreme Court issued its decision in CompuCredit Corp. v. Greenwood. In an opinion that was unsurprising according to the folks over at the ADR blog (that is, according to Sarah Cole and Paul Kirgis), SCOTUSblog provides coverage as well here. Justice Scalia, writing for the majority, enforced an arbitration clause in a credit card agreement, reversing the Ninth Circuit, which had found the clause inconsistent with the Credit Repairs Organization Act (CROA). Justices Kagan and Sotomayor concurred. Only Justice Ginsburg dissented.
The Ninth Circuit and the District Court had ruled that the arbitration clause was void because of language in CROA secuiring for consumers the "right to sue" and there are also references to class actions and to courts. The opinion was unsurprising, according to the ADR Bloggers, because similar language has been construed in previous cases and, as Sarah Cole concludes, "Until Congress decides to make it clear that a particular statutory claim cannot be arbitrated, the Court will continue to find that statements like “right to sue” and “cause of action” cannot be construed to avoid application of the FAA."