Friday, October 31, 2014
As I noted about a month ago the problem for the 2015 International Commercial Artbitration Moot is wonderful for those who like crossword puzzles, solving problems, reading mysteries, or doing detective work. There are facts, deadends, and read herrings galore. No one goes for a big sleep as far as I can tell but there is the dreaded issue of "fundamental breach." In fact, that appears to be the centerpiece of the problem. Just to make it a little twisty, the fundamental breach is by the buyer whose letter of credit may not conform to the contract. Since even that would be too simple, there is a second letter of credit that may or may not conform but which came after the first arguably non comforming one. There are phone calls, emails, letters, accusations, and even an emergency arbitration that, maybe, should not have occurred at all.
At my school 32 students are now writing briefs for the claimants side of the case and preparing for their oral arguments next week. There is something here even for profs not involved in the Moot. Just reading the problem will spark all kinds of ideas for exam questions suitable for the basic contracts course.
Monday, October 6, 2014
The problem is up for the 22nd Annual International Commerical Arbitration Moot. Between now and early December, teams will write the brief for the Claimant. In mid January the brief for the Respondent is due. And then, in March, 200-300 teams from law schools around the world will gather in Vienna for the competition.
There is no limit to the number of students on a team but they must argue in pairs. Typically one student handles the procedural issues and one the substantive or the CISG issues. There are 4 rounds to start with the 64 highest scoring teams moving on to a single elimination tournament.
The problems identify an actual arbitration agency whose rules govern the procedures, This year the procedural issues center around whether the Claimant the right to make an emergency appeal to the arbitration agency and whether the Respondent may join the parent company of the Claimant for purposes of its counterclaim. In one of those puzzles that charactizes the Moot, the parent company "endored" the contract at issue but claims not to be a party do it.
The substantive issue concerns a letter of credit which does not conform (or does it?) to what was called for in the contract. The buyer attempts to "cure" in a sense but the seller says "too late, we have already avoided the contract." Thus, it raises avoidance and cure isssues under the CISG.
This is, at best, a first cut on the problem. As the weeks pass, the problem will reveal itself as the layers are peeled off.
I am happy to trade notes and views with other interested profs.
[In the meantime, try to find the third man.]
Monday, September 8, 2014
I am sure most readers know what the CISG is. I was surprised to learn that some are not aware of the International Commercial Arbitration Moot (ICAM) held in Vienna annually over the weekend and then into the week just prior to Easter. It is maybe the most rewarding experience I have had as a teacher. The organizers of the Moot release the problem on the first Friday of October. It is usually a spawling but somewhat realistic fact pattern, Typically there are procedural issues and substantive issues dealing, obviously, with international contract law. Over two hundred teams from around the world gather for 4 days of prelims. The top 64 then go into a single elimination tournament.
At my school, like others, we organize a course around the Moot. In the fall, the students first have 5 weeks of regular class sessions on the CISG followed by an exam. After that, the problem comes out and they have 4-6 weeks to write their briefs. Finally, there are oral arguments. From those exercises, 4 to 6 students are selected to be on the team. (all students earn 3 credits whether they make the team or not) Those students must prepare a claimant's and a respondent's brief and practice twice a week until the competition. It requires dedication.
There are a couple of drawbacks. First is it expensive to send students and a coach to Vienna. At Florida we have been fortunate to have support from the International Section of the State Bar, private donors, and the Law School. Second, the judging in Vienna can be hit and miss. In the four day premlinary period the abitrators (3 each per session) may apply different standards and are sometimes not well prepared. Thus, the goals be for the students must be to learn at much as they can, network, and enjoy, for a few days, interacting with students from all over the world. The winning teams are always superb but some left out of the tournament may also be superb.
I realize there are maybe only a handful of people out there who do not know of this opportunity but I've found it to be very worthwhile (and also hardwork)
Thursday, June 26, 2014
1:00 PM - 2:30 PM ET
1.5 CLE credits requested
Section of Public Contract Law
This program will provide an introductory review on the federal procurement bid protest process, with a focus both on the procedural complexities of bid protest litigation, as well as a high-level review of the types of substantive legal issues that frequently arise in bid protests.
Too busy to attend?
Pre-purchase the recorded program now.
Wednesday, January 8, 2014
Monday, November 25, 2013
The U.S. Supreme Court is scheduled to hear oral arguments on December 2, 2013 in BG Group PLC v. Republic of Argentina. Links related to the case can be found on the SCOTUSblog, including this fabulous introduction to the case from Professor Diane Marie Amann (pictured), the Emily and Ernest Woodruff Chair in International Law at the University of Georgia School of Law. The issue in the case is whether, in disputes involving a multi-staged dispute resolution process, a court or the arbitrator determines whether a precondition to arbitration has been satisﬁed.
The International Dispute Resolution Committee of the DC Bar's International Law Section, in cosponsorship with the American Society of Internatioanl Law's Howard M. Holtzmann Research Center for the Study of International Arbitration and Conciliation and the Washington Foreign Law Society, and in cooperation with the International Arbitration Committee of the American Bar Association's Section of International Law and the International Committee of the American Bar Association's Section of Dispute Resolution, will host a luncheon program to discuss the case immediately following the oral argument.
- George Bermann, Professor, Columbia Law School, and Chief Reporter for the forthcoming Restatement on International Commercial Arbitration
- Janis Brennan, Partner, Foley Hoag LLP, and Vice-Chair, DC Bar International Dispute Resolution Committee
- Jean Kalicki, Partner, Arnold & Porter LLP (Moderator)
Monday, January 28, 2013
I'm about to leave Fort Myers, Florida after a great weekend on Captiva Island, where I participated in the George Mason LEC Workshop for Law Professors on the Economics of Contracting. Economists sure know how to organize a workshop. (By the way, the picture depicts a bird that was hanging out on the balcony of my hotel room).
Over at George Mason they understand incentives. Participants pay a $500 deposit that is only refunded after all sessions (including dinners) are attended. After attending all sessions, participants not only see a return of the deposit but additionally receive a $500 honorarium. Lodging and all meals were covered and they couldn't have paid for better weather (on the day I got there the weather was about 70 degrees warmer than New York). I am still waiting for someone to try to sell me a timeshare.
Broadly, the goal of the program is to expose legal academics to economics. The homework (though voluminous) was thoughtfully compiled and the instruction was engaging. Some participants were already fairly exposed to law and economics others (including myself) had tinkered on the margins in researching but had no background whatsoever. I found the material and the teaching very accessible.
The discussion included contractual (and non-contractual) solutions to hold up problems and price readjustment. We also discussed retail price maintenance and slotting fee contracts. I found the discussion of vertical integration most interesting, though I had to suspend my disbelief when told not to consider the liability implications of choosing to employ someone v. hire them as an indpendent contractor. There were other times when I had to suspend disbelief about psychology and decisionmaking capacity. So, I suppose this is the timeshare. While I didn't buy it, I do feel enriched for having spent some time considering these problems through a classical economics lens.
I highly recommend this and other George Mason programs to anyone with even a passing interest in economics. I learned that reputation matters (though to varying degrees depending on which economists you read). Whatever the case may be, George Mason deserves its excellent reputation for organizing these outstanding workshops. Thanks!
[Meredith R. Miller]
Friday, August 3, 2012
For those of you attending the ABA conference in Chicago this week, there is a CLE program on Clickwraps, Browsewraps and Why ESIGN Deserves a Bum Rap. The speakers are Mark J. Furletti of Ballard Spahr, Christine Poulon of PayPal and yours truly. The panel is from (the unspeakable hour of) 8:00am-10:00am. If any of you early risers are at the meeting in Chicago, stop by for an earful about the state of electronic contracts.
Tuesday, March 6, 2012
At the wonderful contracts conference this past weekend at Thomas Jefferson (yes, thanks again, Eniola), I learned that, when they excavated to build the school's fabulous new building, remains of a wooly mammoth were discovered. Coincidentally, just this fall, my final exam concerned a contract for the sale of real property. After contract but before closing, the seller had sprinkler repairs done on the lawn and the repair company discovered the skeleton of a dinosaur. Neither buyer or seller was aware of the skeletal remains at the time of contract. Seller wants to rescind. Mutual mistake?
This semester we walked through a hypo about a lease that allows the tenants to keep one "household pet." "Household pet" is nowhere defined in the lease. Tenant obtains a kangaroo to keep as a pet. Our task was to discuss how a court would go about figuring out whether a kangaroo is a "household pet." I thought this imaginative until today, when this story came to my attention. It doesn't answer the question whether a kangaroo is a "household pet," but it does suggest that maybe my imagination isn't that imaginative.
[Meredith R. Miller]
Monday, December 26, 2011
If you are attending next week's AALS Annual Meeting, please join us for the Contract Section's 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. The program will feature three junior scholars whose proposals the selection committee chose from the many quality responses to our CFP.
In alphabetical order, the featured speakers and their topics are
Aditi Bagchi (University of Pennsylvania Law School), Parallel Contract;
Mohsen Manesh (University of Oregon School of Law), Contractual Freedom under Delaware Alternative Entity Law; and
Emmanuel Voyiakis (London School of Economics & Political Science, Department of Law), Contract Law and Reasons of Social Justice.
There will be a brief business meeting following the program.
I look forward to seeing many of you in less than two weeks.
[Keith A. Rowley]
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 (email@example.com), chair-elect Tom Joo (firstname.lastname@example.org), 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, December 30, 2010
Speaking of next week's AALS annual meeting, please plan to attend the Contracts Section's annual meeting program, Navigating Lombard Street in a Fog: Seeking (or Ignoring) Landmarks of Intent and Context, next Thursday, January 6th, from 2:00 to 5:00 p.m., in the Divisadero Room, Second Floor Level, Parc 55 Wyndham San Francisco Union Square.
The program will consist of two roundtables, during and after which we hope to elicit audience comments and questions. A brief business meeting will follow the program's conclusion.
Intent to Contract and to be Bound by Specific Terms
Thomas W. Joo (UC-Davis), Moderator
Gregory M. Klass (Georgetown), Intent to Contract in Theory and Practice
Qi (George) Zhou (Sheffield), The Use of Implied Intention in English Contract Law
Tal Kastner (J.D., Yale; Ph.D. candidate (English), Princeton), The Persisting Ideal of Agreement in an Age of Boilerplate
Nancy S. Kim (California Western, visiting at Ohio State), Three Faces of Intent in Contract Formation
Jarrod Wong (U. of Pacific/McGeorge), Class Arbitration Waivers: A Case Study of Constructive Intent and the Limits of a Consent-Based Theory of Contract Law
Intended Meaning (and Effect) of "Agreed" Terms
Keith A. Rowley (UNLV), Moderator
Peter Linzer (Houston), The Problem with Plain Meaning and the Distinction Between Actual Intent in Contract Interpretation and Originalism in Constitutional Interpretation
Steven J. Burton (Iowa), Context, Plain Meaning, and the Objective Theory of Contract Interpretation
Adam B. Badawi (Washington U.), Interpretive Preferences and the Limits of the New Formalism
Michelle E. Boardman (George Mason), Insuring Understanding: The Tested Language Defense
Friday, December 3, 2010
The Executive Committee of the AALS Contracts Section solicits proposals for the Section’s Annual Meeting program Navigating Lombard Street in a Fog: Seeking (or Ignoring) Landmarks of Intent and Context, scheduled for Thursday, January 6, 2011 from 2:00 to 5:00 p.m.
The Topic: Consent supposedly distinguishes contracts from other private or public rights and duties by requiring that each contracting party manifest its intent, at the time it enters into the contract, to be bound to the contract. This program will explore:
♥ whether intent – objectively manifested or otherwise – is or should be an integral part of contemporary contract law, practice, and theory;
♥ the extent to which context affects or should affect a party’s ability to consent, the significance of its manifested consent, or both; and
♥ assuming that intent and context matter, how best to determine and give effect to the parties’ intent in the context of their transaction.
We are particularly interested in fostering discussion of (1) intent to be bound, (2) intent to be bound to specific terms, (3) the intended meaning of agreed terms, (4) intended circumstances under which a party may avoid or delay performing their duties, and (5) intended remedies available or foreclosed if a party does not perform as agreed under circumstances that neither invite nor allow avoidance or delay.
The Program: Inspired by last year’s lively roundtable discussion of pedagogical approaches and by a fairly robust body of recent scholarship relevant to our topic, and paying homage to the increasingly rare, but fondly remembered, two-semester Contracts course, we seek speakers for two (or more) discussion panels, which the planning subcommittee will organize topically. We have secured a 180-minute time slot, which should facilitate a broader, more diverse, and more participatory discussion than the typical 100-minute AALS program permits.
Publication: While we hope that this program will ignite or further fuel already-burning scholarly interest across its broad scope, we do not require an original paper proposal and have not pre-arranged publication of any papers discussed at or arising from the program (although we may explore publishing a program transcript if we can find a suitable venue and all of the speakers consent).
Submitting a Proposal: If you would like to participate as a panelist, please contact program chair Keith Rowley (email@example.com), no later than 12:00 p.m. PST, Monday, December 6th, indicating the aspect(s) of the topic that most interest(s) you; from what perspective(s) you propose to discuss it/them; if applicable, the scholarly work – yours or someone else’s, published or in progress – you plan to draw upon; and how best to contact you between now and December 10. While the program planning subcommittee will reserve some spots for submissions received by the foregoing deadline (and may consider late proposals), we will begin to review proposals as we receive them and may begin extending offers as early as Monday, November 29th.
We apologize for the short notice, but hope to capitalize on it by attracting participants who might have been unwilling or unable to commit themselves in September or early October or who, like some of us, were stymied by the ongoing labor strife at the AALS headquarters hotel. We are meeting; we are meeting elsewhere; and we ask that you help make this a well-attended, informative, and interactive program.
Thank you for your consideration.
[Keith A. Rowley]
Wednesday, December 1, 2010
There aren't many areas these days where contracts have to be more carefully crafted than that of executive compensation. So you may be interested in a webinar that BNA is putting on next week. Here's the info:
Living on the Edge: Avoiding 409A and 162(m) Pitfalls in a Shifting Environment
Thursday, December 09, 2010
1:00 PM - 2:30 PM ET
Agenda: This BNA webinar will explain how to approach the design and administration of your executive compensation programs (including employment and severance agreements) and avoid the ever-tightening net of tax penalties under Section 409A and 162(m). It will cover common "traps for the unwary" and foot faults that may result in unintentional violations of Sections 409A and 162(m) and provide practical suggestions to guide decision making in these areas to optimize compliance. It will focus on areas where compliance has proven particularly difficult and flag common situations that present the highest risk of IRS challenge. Attendees will acquire practical information on how to avoid common 409A and 162(m) violations, how to spot the violations when they have occurred, how to correct violations when possible, and how to assess penalties when the violation cannot be corrected. Since attendees are often not the only ones in their organizations responsible for the oversight of matters that can lead to 409A and 162(m) violations, attendees will leave with suggestions and tools to aid them in maximizing success by coordinating with others throughout their organizations.
- Traps for the unwary -- the 10 most common situations that risk 409A or 162(m) violations, and how to recognize and deal with them
- Common foot faults - how drafting or operational mistakes that seem minor can result in serious tax penalties
- Implementing compliance procedures, including coordination within the organization
- Presentation of practical tips for spotting compliance issues requiring legal review
- What to do if a violation is discovered - panic, corrections, penalties, gross-ups
Wednesday, July 7, 2010
Douglas G. Baird, The Holmesian Bad Man's First Critic, 44 Tulsa L. Rev. 739 (2009).
Matthew K. Bell, Forget What You Intended: Surprisingly Strict Liability and COGSA Versus Carmack, 37 Transp. L.J. 57 (2010).
Molly Brooks, The "Seller-Friendly" Approach to MAC Clause Analysis Should be Replaced by a "Reality-Friendly" Approach, 87 U. Det. Mercy L. Rev. 83 (2010).
Edwin Butterfoss & H. Allen Blair, Where is Emily Litella When You Need Her?: The Unsuccessful Effort to Craft a General Theory of Obligation of Promise for Benefit Received, 28 Quinnipiac L. Rev. 385 (2010).
David Cabrelli & Rebecca Zahn, Challenging Unfair Terms: Some Recent Developments,  Jurid. Rev. 115.
Ross Dillon, A Bale of Wool,  N.Z.L.J. 145.
Lisa A. Fortin, Note, Why There Should Be a Duty to Mitigate Liquidated Damages Clauses, 38 Hofstra L. Rev. 285 (2009).*
James Gordley, The Origins of Sale: Some Lessons from the Romans, 84 Tul. L. Rev. 1437 (2010).
Sam S. Han, Predicting the Enforceability of Browse-wrap Agreements in Ohio, 36 Ohio N.U. L. Rev. 31 (2010).
Robert A. Hillman & Maureen A. O'Rourke, Principles of the Law of Software Contracts: Some Highlights, 84 Tul. L. Rev. 1519 (2010).**
Kristin L. Hines, Note, Examining Contractual Models for Transferring Environmental Liability: How They Work and Where They are Headed, 11 Vt. J. Envtl. L. 395 (2009).
Martin A. Hogg, Promise: The Neglected Obligation in European Private Law, 59 Int'l & Comp. L.Q. 461 (2010).
Joshua Karton, Contract Law in International Commercial Arbitration: The Case of Suspension of Performance, 58 Int'l & Comp. L.Q. 863 (2009).
Nancy S. Kim, Expanding the Scope of the Principles of the Law of Software Contracts to Include Digital Content, 84 Tul. L. Rev. 1595 (2010).**
Juli Loden, Comment, The Earth is Not Flat, and "A Quasi Contract is Not a Contract at All" -- Tennessee Restitution and Unjust Enrichment Law, 11 Transactions: Tenn. J. Bus. L. 167 (2010).
Susana López-Bayón & Manuel González-Díaz, Indefinite Contract Duration: Evidence from Electronics Subcontracting, 30 Int'l Rev. L. & Econ. 145 (2010).
Andrew C. W. Lund, Opting Out of Good Faith, 37 Fla. St. L. Rev. 393 (2010).
Larry A. DiMatteo & Samuel Flaks, Beyond Rules, 47 Hous. L. Rev. 297 (2010).
Juliet M. Moringiello & William L. Reynolds, What's Software Got to Do with It? The ALIPrinciples of the Law of Software Contracts, 84 Tul. L. Rev. 1541 (2010).**
Otto Sandrock, The Choice Between Forum Selection, Mediation and Arbitration clauses: European Perspectives, 20 Am. Rev. Int'l Arb. 7 (2009).
Hannibal Travis, The Principles of the Law of Software Contracts: At Odds with Copyright, Consumer, and Employment Law?, 84 Tul L. Rev. 1557 (2010).**
Hal R. Varian, Computer Mediated Transactions, 100 Am. Econ. Rev. 1 (2010).
Daniel A. Verrett, Comment, Delay Damages Sufficient for a Maritime Lien?: The Economic Loss Doctrine Brings Certainty to the High Seas, 47 Hous. L. Rev. 463 (2010).
Kate Zdrojeski, Note, International Ice Hockey: Player Poaching and Contract Dispute, 42 Case W. J. Int'l L. 775 (2010).
* - Despite a somewhat awkward title -- the point is to mitigate damages, not mitigate clauses -- this Note is worth a read, arguing that, inter alia, preventing economic waste, a penalty on the breaching party, and windfall profits for the nonbreaching party, as well as promoting consistent remedial principles, should oblige a court (or arbitrator) to not mechanistically assess the damages to which the parties agreed in their contract.
** - These four essays comprise a mini-symposium on the ALI's Principles of the Law of Software Contracts, arising out of a program I organized and moderated at January's AALS Annual Meeting in New Orleans. (Yes, that's January 2010.) Bob Hillman, Maureen O'Rourke, and Juliet Moringiello spoke at the program, as did Amy Boss and Florencia Marotta-Wurgler. Nancy Kim and Hannibal Travis responded to a supplemental call for papers to accompany those the program speakers were contributing to the print symposium.
For those who complain about the sometimes sluggish processes of student-edited law journals (for example here, including the comments), the program was on January 9, final drafts were due February 15, and the print issue arrived in my campus mailbox on June 2. Unfortunately, this pace proved too brisk for several authors lined up to contribute to the print symposium (including yours truly). I hope to collect those authors' contributions, revised-as-appropriate versions of these four essays and other essays and articles first appearing elsewhere, and some original shorter response and reply pieces, in a book coming soon -- at least by astronomical or paleontological standards -- from an as-yet-undisclosed legal academic publisher.
[Keith A. Rowley]
Friday, February 26, 2010
The 2010 Spring Contracts Conference begins today at UNLV's William S. Boyd School of Law. Here's Friday's line-up:
The Contract Law System and Power – Past, Present, and Future
Chair: Jay M. Feinman (Rutgers-Camden)
Hila Keren (Hebrew U. of Jerusalem), Considering Affective Consideration
Nancy S. Kim (Cal Western), ‘Wrap Contracts as Sword, Shield, Crook, and Drawbridge
Amy J. Schmitz (Colorado), Pizza-Box Contracting: An Empirical Exploration of Consent
Danielle Kie Hart (Southwestern), Smoke, Mirrors & Contract Law
Incomplete Information and Contract Law
Chair: Keith A. Rowley (UNLV)
Robert Anderson (Pepperdine), Information, Incentives, and Disclosure in the Law of Contracts
H. Allen Blair (Hamline), No-Reliance Clauses
Yair Listokin (Yale), Bayesian Interpretation
Shawn J. Bayern (Florida State), Rational Ignorance, Rational Closed-Mindedness, and Modern Economic Formalism in Contract Law
Contract Law’s Intersection with Business Law
Chair: Nancy B. Rapoport (UNLV)
Daniel S. Kleinberger (William Mitchell), Battle Report from the Undiscovered Territory – The Law of “Contractual Organizations” Continues its Silent War on the Common Law of Contract
Andrew A. Schwartz (Colorado), A “Standard Clause Analysis” of the Frustration Doctrine and the Material Adverse Change Clause
Lydie N. Pierre-Louis (St. Thomas (FL)), Mini-Tender Offers: The Lack of Federal Jurisdiction and the Failure of Fundamental Contract Law Principles to Protect Investors
Keynote: Omri Ben-Shahar (U. of Chicago), The Failure of Mandated Disclosure
Arbitration and Unconscionability in Rent-a-Center West v. Jackson and Elsewhere
Chair: Jean R. Sternlight (UNLV)
Charles L. Knapp (UC-Hastings), Blowing the Whistle on Mandatory Arbitration: Unconscionability as a Signaling Device
Karen Halverson Cross (John Marshall (IL)), Letting the Arbitrator Decide? Unconscionability and the Allocation of Authority Between Courts and Arbitrators
Christopher R. Drahozal (Kansas), Rent-A-Center and Institutional Arbitration Rules
Thomas J. Stipanowich (Pepperdine), Contracts and Conflict Management: Another Look
Forming Contracts and Similar Relationships
Chair: James W. Fox, Jr. (Stetson)
Michael Pratt (Queen's U. (Ontario)), What is a Promise?
Val D. Ricks (South Texas), The Continued Relevance of Consideration
Janet Ainsworth (Seattle), Beyond Status and Contract: Relational Estoppel as a Source of Rights and Obligations in Intimate Relationships
Andrea B. Carroll (LSU), Reviving Proxy Marriage
Vive la Différence!: Comparative Contract Theory
Chair: Daniel D. Barnhizer (Michigan State)
Robin J. Effron (Brooklyn), Revisiting The Death of Contract: Gilmore’s Thesis in Comparative Perspective
Wayne R. Barnes (Texas Wesleyan), French Subjective Theory of Contract: Separating Rhetoric from Reality
Tadas Klimas (Kaunas, Lithuania), Lessons American and Continental Contract Theory Can Teach One Another
Franklin G. Snyder (Texas Wesleyan), Cross-Cultural Adoption of Legal Rules: The Case ofHadley v. Baxendale
[Keith A. Rowley]
Saturday, November 14, 2009
The AALS Section on Contracts invites you to attend our Annual Meeting program on New Approaches to Teaching Contracts: A Teach-In and solicits additional proposals for a companion symposium issue to appear in the Washington Law Review.
The Topic: Responding to profound changes in the practice of law and in our larger culture, many Contracts professors strive to update their methods and materials. In the spirit of the Annual Meeting’s transformative law theme, our program will explore a variety of new approaches that contracts professors have begun to introduce in the classroom and in teaching materials to address both changes in the structure of practice that require new lawyers to hit the ground running and ways that wired students synthesize material and acquire skills. We hope that the program, as a whole, will motivate experienced contracts professors to de-laminate their notes and inspire newer professors to move beyond their own professors in developing new ways to convey the beauty, complexity, and occasional imperfections of contract law.
The Program: Our annual meeting program, scheduled for Friday, January 8, 10:30 AM to 12:15 PM, Melrose Room, Third Floor, Hilton New Orleans Riverside, will feature Douglas Baird (Chicago) on the Langdellian, classic-case-centered method; Scott Burnham (Montana) on using drafting exercises to develop both skills and doctrinal understanding; Carol Chomsky (Minnesota) or Christina Kunz (William Mitchell) on their contribution to Thomson/West’s new Interactive Casebook Series, Contracts: A Contemporary Approach (West forthcoming 2010); Jonathan Hyman (Rutgers-Newark) on "Teaching Contracts with Student Role-Play Arbitrations"; Emily Kadens (Texas) on adapting the problem-based method more commonly used in upper-level commercial law courses to the first-year Contracts course; Shruti Rana (Maryland) on "Integrating Cross-border Perspectives on Contract Law: Comparing US and International Perspectives on Acceptances;" and Deborah Schmedemann (William Mitchell) on "Actual Reality: Peopling the Contracts Course."
The Print Symposium: The Washington Law Review will publish a print symposium in its November 2010 issue, which will include papers from most of our presenters, papers selected from among those who responded to our initial call for proposals, as well as others from whom we solicited contributions, and some shorter responses and replies.
How to Submit a Paper or Proposal: We may be able to accommodate on a space-available basis a limited number of additional short (15-20 pages) papers, responses, and replies in the symposium issue. If you would like to contribute please e-mail an abstract, précis, or draft by Monday, December 14, 2009 to the Planning Subcommittee: Martha Ertman (Maryland), Lisa Bernstein (Chicago), and Keith Rowley(UNLV). Please direct your submission to all three of our email addresses: firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org, respectively. The Planning Committee and members of the law review's editorial board will review all timely submissions and offer publication to any we can accommodate.[Keith A. Rowley]
The AALS Section on Commercial and Related Consumer Law invites you to attend our Annual Meeting program on The Principles of the Law of Software Contracts: A Phoenix Rising from the Ashes of Article 2B and UCITA? and solicits additional proposals for a companion symposium issue to be published in the Tulane Law Review.
The Topic: On May 19, 2009, the ALI approved the Principles of the Law of Software Contracts, which undertake to weave the currently divergent threads of law governing software contracts into a coherent whole that will guide parties in drafting, performing, and enforcing software contracts, assist courts and other arbiters in resolving disputes involving software contracts, and, perhaps, inform future legislation addressing software contracts. Do the Principles clarify the law of software contracts? Will they successfully unify the law of software contracts? Are they consistent with current best practices in software contracting? Will they encourage desirable future developments in the law and practice of software contracts? These are among the questions our program speakers will address.
The Program: The Commercial and Related Consumer Law Section's annual meeting program, scheduled for Saturday, January 9, 10:30 AM to 12:15 PM, in the Magnolia Room, Third Floor, Hilton New Orleans Riverside, will feature Principles Reporter Bob Hillman (Cornell) and Associate Reporter Maureen O’Rourke (Boston U.), who will offer their unique insights on the drafting process, key substantive provisions, and their legal and practical implications; Amy Boss (Drexel), who will add her insights about the failures of the UCC Article 2B project and UCITA and the prospects for the Principles’ success; Juliet Moringiello (Widener), who will discuss her and co-author Bill Reynolds's (Maryland) paper "What's Software Got to Do With It?," offering their perspectives on the Principles process, largely ignoring past efforts and debates, and addressing some of the assumptions underlying the Principles and how they address those assumptions; and Florencia Marotta-Wurgler (NYU), who will discuss her and co-author Yannis Bakos's (NYU Stern School of Business) paper "How Much Does Disclosure Matter?," which delves deeper into the value of disclosure -- an important assumption underlying the Principles and a subject the Principles tackle substantively -- and augments the conceptual discussion with empirical analysis.
The Symposium Issue: The Tulane Law Review will publish a print symposium issue including papers from most of our presenters, papers selected from among those who responded to our initial call for proposals as well as others from whom we solicited contributions, and some shorter responses and replies. We can accommodate a limited number of additional papers, responses, and replies in the symposium issue, which is scheduled to go to press in late summer 2010.
How to Submit a Paper or Proposal: If you would like to contribute to the print symposium, and want your proposal to receive full consideration, please e-mail an abstract, précis, or draft by Monday, December 14, 2009 to Professor Keith A. Rowley, Chair of the AALS Section on Commercial and Related Consumer Law. E-mail: email@example.com. We may consider submissions received after December 14 on a space-available basis. Executive Committee members and the Tulane Law Review's symposium editors will review all timely submissions and notify no later than Monday, January 11, 2010 those authors we would like to contribute to the print symposium.[Keith A. Rowley]
Friday, July 3, 2009
Call for Proposals
AALS Section on Contracts
New Approaches to Teaching Contracts: A “Teach-In”
2010 AALS Annual Meeting, New Orleans, Louisiana
The Section on Contracts solicits proposals for its Annual Meeting program, New Approaches to Teaching Contracts: A “Teach-In,” scheduled for Friday, January 8, 2010, at 10:30 a.m., and for a planned print symposium to follow.
The Topic: Responding to profound changes in the practice of law and in our larger culture, many Contracts professors strive to update their methods and materials. In the spirit of the Annual Meeting’s transformative theme, our program will explore a variety of new approaches that contracts professors have begun to introduce in the classroom and in teaching materials to address both changes in the structure of practice that require new lawyers to hit the ground running and ways that wired students synthesize material and acquire skills. We hope that the program, as a whole, will motivate experienced contracts professors to de-laminate their notes and inspire newer professors to move beyond their own professors in developing new ways to convey the beauty, complexity, and occasional imperfections of contract law.
The Program: The roundtable discussion will feature professors demonstrating a variety of pedagogical approaches. Invited presenters include: Douglas Baird (Chicago), on the Langdellian method centering on classic cases; Scott Burhnam (Montana), on using drafting exercises to develop both skills and doctrinal understanding; Carol Chomsky (Minnesota) or Christina Kunz (William Mitchell), on their contribution to West’s Interactive Casebook Series, Contracts: A Contemporary Approach (West forthcoming 2009); and Emily Kadens (Texas) on adapting the problem-based method more commonly used in upper-level commercial law courses to the first-year Contracts course. We seek two more presenters on innovative approaches to teaching Contracts. Presentations should demonstrate (rather than merely describe) teaching methods, perhaps distributing or illustrating any relevant materials through PowerPoint or other means. Each presentation should last 10-15 minutes, though we realize it will likely be taken from a larger work or set of materials.
The Symposium: We are working to identify a journal that will provide the best outlet in which to publish papers from our presenters, as well as additional contributions from those who respond to this call for proposals. We have begun discussions with the Journal of Legal Education and welcome your suggestions about other venues for the print symposium.
How to Submit a Proposal: Please submit a title, brief description, and any supporting materials no later than SEPTEMBER 1, 2009 to the Planning Subcommittee: Martha Ertman (Maryland), Lisa Bernstein (Chicago), and Keith Rowley (UNLV). Please direct your submission to all three of our email addresses: firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org, respectively. We will select two proposals for the Annual Meeting program from those submitted and notify their authors by October 1, 2009. Once we secure a publication commitment, we will begin contacting additional proposal authors to discuss contributing to the print symposium.
[Keith A. Rowley]
Friday, June 19, 2009
Speaking of the recently-approved Principles of the Law of Software Contracts (the subject of our sister section's call for proposals below), here's an overview and remarks from Reporter Bob Hillman for the benefit of those who have not already read them on Concurring Opinions:
Maureen O’Rourke, the Associate Reporter on the Principles of the Law of Software Contracts, and I are posting the following to acquaint readers with the Principles and also to respond to some criticism of one section of the Principles that creates, under certain circumstances, an implied warranty of no known material hidden defects in the software.
On May 19, the membership of the American Law Institute unanimously approved the final draft of the Principles of the Law of Software Contracts. As the Introduction to the project states, the Principles “seek to clarify and unify the law of software transactions.” The Principles address issues including contract formation, the relationship between federal intellectual property law and private contracts governed by state law, the enforcement of contract terms governing quality and remedies, the meaning of breach, indemnification against infringement, automated disablement, and contract interpretation.
The Introduction to the Principles explains further that “[b]ecause of its burgeoning importance, perhaps no other commercial subject matter is in greater need of harmonization and clarification. . . . [T]he law governing the transfer of hard goods is inadequate to govern software transactions because, unlike hard goods, software is characterized by novel speed, copying, and storage capabilities, and new inspection, monitoring, and quality challenges.” Many of the rules of Article 2 of the UCC therefore apply poorly to software transactions or not at all, and the Principles are intended to fill the void.
The Principles are not “law,” of course, unless a court adopts a provision. Courts can also apply the Principles as a “gloss” on the common law, UCC Article 2, or other statutes. Nor do the Principles attempt to set forth the law for all aspects of a transaction, but instead rely on sources external to the Principles in many areas.
The Principles apply to agreements for the transfer of software or access to software for a consideration, i.e., software contracts. These include licenses, sales, leases, and access agreements. The project does not apply to the exchange of digital media or digital databases. It applies a predominant purpose test to determine applicability to transactions involving embedded software or software combined in one transfer with digital media, digital databases, and/or services.
We are the Reporter and Associate Reporter of the software principles. We have been greatly aided by our advisors, consultative group members, ALI Council members, liaisons from the National Commissioners on Uniform State Law, Business Software Alliance, and the American Bar Association, and many additional lawyers from industry and other groups who, over the last five and one-half years, have met with us, talked with us on the phone, and exchanged e-mails with us. We believe the project moved along smoothly largely because of the efforts of all of these groups and individuals.
Nevertheless, in the two weeks leading up to approval in May, we received communications from a few software providers evidencing concern largely with one section of the Principles. Section 3.05(b) creates a non-excludable implied warranty that the software “contains no material hidden defects of which the transferor was aware at the time of the transfer.” The section only applies if the transferor receives “money or a right to payment of a monetary obligation in exchange for the software.” Because the section may be the most controversial provision, we devote the rest of this post to the issue.
Despite concerns that section 3.05(b) creates “new law,” it simply memorializes contract law’s disclosure duties and tort’s fraudulent concealment law. The section makes clear that these rules apply to software transfers in order to allocate the risk to the party best able to accommodate or avoid the costs of materially defective software. Obviously this is the transferor in situations where only it knows of the material defect and the transferee cannot protect itself. The section requires that the transferor knows of the defect at the time of the transfer (negligence in not knowing is not enough to trigger liability), the defect is material, and it is hidden.
A few software providers have concerns that the concepts of “hidden,” and “material defect” are obtuse and will “increase litigation” or require a flood of “detailed notices” to prospective users. These concepts, however, are hardly unknown to the law. A comment to section 3.05(b) says that a “hidden” defect occurs if the “defect would not surface upon any testing that was or should have been performed by the transferee.” This is nothing new. See, e.g., UCC 2-316(3)(b) (”there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to [the buyer]“).
A few software providers also worry about the meaning of “material defect.” The comments to section 3.05(b) point out that the section simply captures the principle of material breach: Does the defect mean that the transferee will not get substantially what it bargained for and reasonably expected under the contract? The criticism that “materiality” is too vague, if accurate, would mean that contract law would have to abolish its material breach doctrine too.
Putting together the requirements of actual knowledge of the defect at the time of the transfer, that the transferee reasonably does not know of the defect, and that the defect constitutes a material breach means that a transferor would be insulated from liability in situations identified by the concerned software providers as problematic. These include where the transferor has received reports of problems but reasonably has not hadtime to investigate them, where the transferee’s problems are caused by uses of which the transferor is unaware, where the transferor learns of problems only after the transfer, and where the problems are benign or require reasonable workarounds to achieve functionality. The best example of when section 3.05(b) would apply is, as comment b to the section says, where the transferor already knows at the time of the transfer that the software will require “major workarounds . . . and cause long periods of downtime or never [will] achieve promised functionality,” the transferee cannot discover this for itself, and the transferor chooses not to disclose the defect.
As we have already said, the section simply memorializes existing law. Under the common law, a contracting party must disclose material facts if they are under the party’s control and the other party cannot reasonably be expected to learn of the facts. Failure to disclose in such circumstances may amount to a representation that the facts do not exist and may be fraudulent. See, e.g., Shapiro v. Sutherland, 76 Cal. Rptr. 2d 101, 107 (Cal. Ct. App. 1998) (”Generally, where one party to a transaction has sole knowledge or access to material facts and knows that such facts are not known or reasonably discoverable by the other party, then a duty to disclose exists.”); Hill v. Jones, 725 P.2d 1115, 1118-19 (Ariz. Ct. App. 1986) (”[U]nder certain circumstances there may be a ‘duty to speak.’ . . . [N]ondisclosure of a fact known to one party may be equivalent to the assertion that the fact does not exist. . . . Thus, nondisclosure may be equated with and given the same legal effect as fraud and misrepresentation.”). The Restatement (Second) of Contracts section 161(b) states that “[a] person’s non-disclosure of a fact known to him is equivalent to an assertion that the fact does not exist . . . where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption on which that party is making the contract and if non-disclosure of the fact amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing.” Section 161, comment d of the Restatement (Second) adds “In many situations, if one party knows that the other is mistaken as to a basic assumption, he is expected to disclose the fact that would correct the mistake. A seller of real or personal property is, for example, ordinarily expected to disclose a known latent defect of quality or title that is of such character as would probably prevent the buyer from buying at the contract price.”
One concern of a commentator is that fraudulent concealment is a tort, implying that it has no place in the Principles. But the principle appears prominently in the Restatement (Second) of Contracts section 161. And why not memorialize a principle that discourages a party in a contract setting from hiding material facts that the other party reasonably does not know? The commentator notes that fraudulent concealment requires intent to deceive, but wouldn’t that be the usual inference if a transferor licenses software it knows is materially defective and knows the transferee cannot discover it?
A few organizations also are concerned that section 3.05(b) cannot be disclaimed. But there are plenty of cases that do not allow a party to contract away liability for concealment. One critic wonders why a statement such as “I am not giving any assurances about there being no defects in this software,” should not insulate a transferor from liability. A reasonable licensee, assuming the good faith of the licensor, would believe that this licensor does not intend to make any express warranties or implied warranties of merchantability or fitness, not that the licensor knows that the software is materially defective so that the software will be largely worthless to the licensee. A transferor playing this game is surely in bad faith and, frankly, engaging in reprehensible conduct. But there is a way to ensure no liability under this section, namely to disclose material hidden defects. In effect, disclosure is the disclaimer.
Bob Hillman and Maureen O’Rourke
June 2, 2009
The Concurring Opinions post -- which Bob asked me to re-post, with the blessings of the Concurring Opinions folks -- has provoked several comments and has been the subject of a follow-up post by David Hoffman, one of Concurring Opinions's thirteen regular contributors. Dave's post has generated its own comments. While we here at ContractsProf might have a vested interest in generating site traffic, it may be more efficient to funnel feedback through a single conduit. Because Concurring Opinions got the ball rolling, feel free to comment, or to respond to existing comments, there.
[Keith A. Rowley]