January 20, 2012
Contracts Issues in the Costa Concordia Wreck
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.
January 18, 2012
New in Print
This week's installment includes two articles that apply theoretical constructs developed in contract law to other doctrinal areas.
Aditi Bagchi, Separating Contract and Promise, 38 Fla. St. U. L. Rev. 709 (2011)
Eric A. Posner & Alan O. Sykes, Efficient Breach of International Law: Optimal Remedies, "Legalized Noncompliance," and Related Issues, 110 Mich. L. Rev. 243 (2011)
Alan Schwartz & Robert E. Scott, Rethinking the Laws of Good Faith Purchase, 111 Colum. L. Rev. 1332 (2011)
Zephyr Teachout, The Unenforceable Corrupt Contract: Corruption and Nineteenth Century Contract Law, 35 N.Y.U. Rev. L. & Soc. Change 681 (2011)
Fan Zhang, Dynamic Contract Breach, 27 J.L. Econ. & Org. 453 (2011)
January 17, 2012
Weekly Top Tens from the Social Science Research Network
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!
A Puzzler from Ken Adams
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?
January 16, 2012
Only Two Weeks Remaining Before the Polls Close
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).
Recent Contracts Scholarship Available on SSRN
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.