ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Thursday, March 15, 2012

University of Wisconsin Law School and the Contracts Community Mourn the Loss of John Kidwell

We learned yesterday from the University of Wisconsin Law School website that Professor Emeritus John Kidwell died last week.  Here is the text from the Wisconsin website.

KidwellThe University of Wisconsin Law School is deeply saddened by the loss of Professor Emeritus John Kidwell, who passed away in Madison last week.   

Professor Kidwell was born in Denver, Colorado and grew up in Custer, South Dakota. After high school he attended the South Dakota School of Mines and Technology for two years, contemplating a degree in physics, but changed plans when, in his own words ". . . I encountered The Calculus, and The Calculus won." He transferred to the University of Iowa and majored in English, receiving his B.A. from the University of Iowa in 1967 (With Distinction, Honors Program, Phi Beta Kappa). He then attended Harvard Law School and received his J.D. in 1970 (cum laude). He took a job as an associate with the Denver, Colorado law firm of Dawson, Nagel, Sherman & Howard.

Professor Kidwell joined the University of Wisconsin Law Faculty in 1972 as an assistant professor, and except for a year as a Fellow in Law and Humanities at Harvard University in 1976-77, was here continuously. He served as Associate Dean for Academic Affairs from 2002-2005 before retiring from the full-time faculty in June 2005.

Professor Kidwell regularly taught courses dealing with the law of contracts, remedies, copyrights, and trademarks. He was the recipient of the Emil H. Steiger award for teaching excellence, and had been chosen Teacher of the Year by the Wisconsin Law Alumni Association. He was a co-author of Wisconsin Law School’s
signature “Contracts: Law in Action,” a casebook  published by Lexis/Nexis, as well as a co-author of "Property: Cases and Materials," published by Aspen. Among his many service activities, he served as a member, and ultimately Chair, of the Wisconsin Board of Bar Examiners. He was a member of the Testing Policy Committee of the National Conference of Bar Examiners, and continued working on bar examination issues for that body up until the very last weeks before his death.

John Kidwell leaves behind his wife and son, Jean and Ben Kidwell. A man of broad and eclectic interests, he characterized his interests and activities as “reading, listening to music, idle conversation and the game of poker.”   


March 15, 2012 in Contract Profs, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 13, 2012

The LSU Journal of Energy Law and Resources, Call for Papers and Proposals

The newly formed LSU Journal of Energy Law and Resources at the Louisiana State University Paul M. Hebert Law Center invites submissions of scholarly articles and proposals for articles for publication in its inaugural issues, slated for publication in the Fall of 2012 and the Spring of 2013. The LSU Journal of Energy Law and Resources is a student-edited journal devoted to the promotion of legal scholarship in energy law.   The Journal is committed to publishing a variety of energy law topics, including articles focusing on energy law contracts and transactions.

Submissions:   For publication in our Fall 2012 issue, please submit a completed paper, along with a cover letter and CV, to [email protected] by April 15, 2012. All completed papers submitted after April 15th will be considered for the Spring 2013 issue and should be submitted no later than October 15, 2012. If you wish to submit a proposal for a paper, please submit your proposal of no more than 500 words briefly describing the issue along with a CV by attachment to [email protected] Proposals for papers will be considered on a rolling basis, but will not be considered for the Fall 2012 issue.


March 13, 2012 in Law Schools, Miscellaneous | Permalink | TrackBack (0)

Friday, February 24, 2012

Rowling Settles Contract Dispute with Former Agent

The Telegraph reports here that JK Rowling has settled a dispute with her former literary agent, Christopher Little. Little was the agent who pulled Rowling's manuscript for the first Harry Potter book out of the slush pile. Much to Little's surprise, Rowling decided to join a former agent of Little's, Neil Blair, at Blair's new agency. It seems like there's loads of contract law issues here - Little undoubtedly had an exclusive agreement with Rowling to represent her, Blair may have had a non-compete with Little. Did Little's agency agreement contain the exclusive right to represent Rowling with respect, not just to her published works and associated film rights, but "new media" such as Rowling's Pottermore website (which she and Blair were working on while both were with Little)? Did the work done by Rowling and Blair on Pottermore violate their agreements with Little? Unfortunately for us contracts profs, the terms of the agreements are all confidential....

This situation brings up an issue that I've always wondered about with respect to exclusive agency agreements -contract law seems to me somewhat one-sided, in favor of agents, when it comes to exclusive agency contracts. Wood v. Lucy, Lady Duff Gordon held that an exclusive agency agreement that did not specify performance targets did not lack consideration because it was implied that an exclusive agent would exercise reasonable efforts to perform, otherwise the agent wouldn't get paid. But I think it's not uncommon for agents representing uknown writers, actors and singers, to spend their time on their established clients and only use minimal efforts to promote their new, lesser known, clients. Clients typically terminate the agency after the period of exclusivity in that situation, but under the rationale in the Lady Duff Gordon case, couldn't the clients sue for "breach" of the duty to use reasonable efforts? I would think the answer is yes. The bigger hurdle would be damages, which would be hard to calculate with any certainty for a new, unproven artist. There's also the bargaining power issue. There's typically a lack of bargaining power between a new client and an agent (we're not talking here about Rowling the rich and famous author, but Rowling the unpublished struggling single mom on government benefits). Theoretically, a client could terminate an agency agreement during the period of exclusivity if the agent is not exercising reasonable efforts - but a client would only do that if she had another agent or was able to sell her [insert creative work here] on her own. In that case, the terminated agent would likely sue the client for a share of any royalties, claiming that the client did not give the agent adequate time to perform under the agency agreement. 

[Nancy Kim]

February 24, 2012 in Books, Celebrity Contracts, Miscellaneous | Permalink | Comments (2) | TrackBack (0)

Monday, January 30, 2012

Waiting for Those College Acceptances Just Became More Stressful....

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.

[Nancy Kim]


January 30, 2012 in Current Affairs, In the News, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, December 12, 2011

Ticket Pricing Errors and Unilateral Mistakes

A recent letter to the NYT's consumer advocate, the "Haggler," (aka David Segal, who some of us law profs may not love so much anymore since his recent swipe at legal scholarship...) raised some interesting contracts issues. A reader complained that in early September he bought two round trip tickets from San Francisco to Palau for $510 on Korean Air for a trip in February. In the interim, he booked hotels, bought an underwater camera and made plans. Sixty-four days later, he received an email from Korean Air stating that the posted fare was "erroneous" and that his tickets were cancelled. They offered a refund for "travel-related" expenses, including the tickets, and a $200 Korean Air voucher. The reader stated that with the voucher, his new fare would be $360/ticket higher than the fare he had originally booked.

So, what's the price of an average airline ticket to Palau from S.F. in early February? I checked and it's anywhere from $1600 to $2500 for coach. But before you say unilateral mistake -- for didn't the reader check other airlines and know that the quoted rate was so much lower? - I say, Hold on. I realize this is not the first time an airline, or any company, has posted an erroneous fare. The Haggler discussed another incident involving British Airways that arose in 2009 where the company posted fares from U.S. to India for $40. In that case, British Airways covered travel-related costs and gave out $300 vouchers. (One of the issues in an exam I wrote several years ago was inspired by this situation).

But the British Airways case was different from the Korean Air case in several ways. The British Airways fare was so low that I think the purchasers "knew or should have known" about the mistake. The Korean Air price was also low, but given the deals to be found on the Internet and that the tickets were booked so far in advance, it is not evident that the purchaser "should have known" that the fare was a mistake. It's a great deal, but not clearly a mistake. Furthermore, the wrong price was listed for only a few minutes on the British Airways site, whereas the erroneous fare was posted on the Korean Air website for several days ("at least four"). Would it be "unconscionable" to force Korean Air to honor the fare? Maybe. Under Donovan v. RRL Corp., the standard of"unconscionability" for unilateral mistake purposes is lower than required when it's a standalone defense.

There's another issue that was raised in the Haggler column as a potential problem for the purchasers, the "contract of carriage." I checked on the Korean Air website and found the document - all 44 pages of it. It's accessible as a link on the bottom of the Korean Air website, of course. I took a brief glance at the document (necessarily brief b/c of the length). There were some references to Korean Air's ability to cancel for broad and vaguely defined reasons, but I would not have interpreted these as permitting cancellation for posting an erroneous fee - these seemed more appropriately interpreted as allowing cancellation for equipment failure or scheduling or weather complications.

I may have missed it, but I didn't see a provision allowing Korean Air to cancel for posting an erroneous fare after it has confirmed the reservation. To interpret the existing cancellation clauses to mean Korean Air can cancel at will would create mutuality issues. Korean Air would not want to make this argument for while such an interpretation would disadvantage the purchasers in this particular case, it could also mean that the contracts it enters with its other customers are void (and customers could cancel at the last minute).

Another provision I didn't see and just might have missed (although I doubt it) was a choice of law provision with respect to contract claims.

[Nancy Kim]

December 12, 2011 in Commentary, E-commerce, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, December 11, 2011

"Zip-it" contracts in a brave new world

Last week was a big week for contracts to "keep-your-mouth-shut". The L.A. times had this article about the recent exchange between "The Girl with the Dragon Tattoo" producer, Scott Rudin, and New Yorker film critic, David Denby. It seems that Denby broke his promise not to publish a review of an early screening of the movie. While these "agreements" are common in the film and publishing industry, they are much harder to enforce because of the Internet and the ability to post instantaneously.

On the flip side, more businesses that would otherwise not have considered such agreements are doing so. Paul Levy discusses one type of agreement that has been receiving some attention in the blogosphere, "medical confidentiality" agreements. Dave Hoffman blogged about it as well here. While I can understand, on a personal level, the desire to contain what one considers to be unfair negative reviews on an easily googleable website (not that it's ever happened to me, ahem...), these contracts raise a lot of troubling issues. And while it may seem like bad business for a doctor or dentist to have a patient sign a "zip-it" contract, if these practices are widely adopted, they become standard practice, leaving consumers with no real choice (kind of like the intrusive tracking policies adopted by so many websites which we can't really seem to prevent....).

[Nancy Kim]


December 11, 2011 in Current Affairs, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, December 5, 2011

More fallout from the nasty McCourt divorce

Frank McCourt may be in the process of suing his former lawyers, Bingham McCutchen, LLP, according to this article in the Wall Street Journal. As you've probably heard, Frank McCourt had a nasty divorce from his wife, Jamie, not too long ago - although it seems like this morning. I tried not to pay too much attention to it (not easy to do when you live in SoCal) until I realized that a major issue in the divorce concerned the marital agreement between the couple which would determine who owned the Dodgers. Apparently there was some confusion about attachments to the original marital agreement, with only some naming Frank McCourt as the sole owner. A drafting error - or was it? Jamie McCourt's attorneys argued that the various copies indicated there was no meeting of the minds. The judge agreed and threw out the agreement. Frank McCourt wasn't happy about that and has filed claims against Bingham that could be worth "hundreds of millions of dollars."

[Nancy Kim]

December 5, 2011 in Celebrity Contracts, Miscellaneous, Sports, True Contracts | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 29, 2011

Don't Buy This: 'Tis the Cyber Season of Reverse Psychology

Yesterday, now widely known as "Cyber Monday," I received a marketing email from Patagonia.  The message: "Don't Buy This Jacket."  The email read in part:

Because Patagonia wants to be in business for a good long time - and leave a world inhabitable for our kids - we want to do the opposite of every other business today. We ask you to buy less and to reflect before you spend a dime on this jacket or anything else.

The advertisement reminded me to "think twice" and instructed not to "buy what [I] don't need."  The jacket, "[m]ade of warm, breathable, compressible and stretchy high-loft fleece," is apparently one of Patagonia's bestsellers; retail price of $149.

Ha! Nice try, Patagonia. I will not be manipulated by your reverse psychology. Though, it did remind me of a contracts exam fact pattern I used a few years back that involved an email where the sender said something like "I'm selling my house but, trust me, you don't want to buy my house because it has been a real money pit."  Seller also says all sorts of funny and brutally frank things about the house.  One of the questions raised was whether this email constitued an offer to contract.  I am also reminded of the parking lot of a Grateful Dead show in the early 90's and a gentleman wandering around saying "bad [acid] trips, who wants 'em? I got 'em!"  But I digress, though only slightly (e.g., Ship of Fools, see below).

Elvis Costello is also participating in this season of reverse psychology.  His message: "don't buy my new box set."  In fact, Costello apparently wrote on his website: "Unfortunately, we at find ourselves unable to recommend this lovely item to you as the price appears to be either a misprint or a satire."  The price?  $225.  NBC reports:

Costello tried to get the record company to knock the price down, but was unsuccessful. So he is recommending buying the work of another legendary artist.

"If you should really want to buy something special for your loved one at this time of seasonal giving, we can whole-heartedly recommend, 'Ambassador of Jazz' -- a cute little imitation suitcase, covered in travel stickers and embossed with the name 'Satchmo' but more importantly containing TEN re-mastered albums by one of the most beautiful and loving revolutionaries who ever lived – Louis Armstrong," Costello wrote. "The box should be available for under one hundred and fifty American dollars and includes a number of other tricks and treats. Frankly, the music is vastly superior."

It may be earnest, but I read it as a brilliant marketing ploy.  Who would have known that Elvis Costello was issuing a new box set?  I mean, who buys physical CDs anymore?  And it even comes with a vinyl record... but it is overpriced and you don't want it.

[Meredith R. Miller]

November 29, 2011 in E-commerce, In the News, Miscellaneous, Music, Quotes | Permalink | Comments (1) | TrackBack (0)

Monday, November 21, 2011

More (Illegal) Fun with TOS

In Friday’s Wall Street Journal, Eric Felten writes something that we Contracts Profs know all too well, “Ours is the age of fine print.” He is specifically referring to the terms of use from companies such as Amazon and Apple which he points out can run to “more than 17,000 words of boilerplate.” The length of online contracts is something that I discuss in the book I am currently writing on ‘wrap contracts (or that I should be writing instead of blogging right now). Felten talks about how, back in the day, “we could walk into a record store, pick out a disc and plunk down some cash” whereas now, we have to enter into a contractual relationship before we buy music (something which I’ve blogged about before). The insidious thing about these online contracts, however, is something that has also been mentioned on this blog –they may interact with other laws in unexpected ways. Felten writes, “”under the Justice Department’s expansive reading of the Computer Fraud and Abuse Act, underage Googling, or any other violation of a Terms of Service agreement may well be a crime.” Of course, the good people at the Justice Department scoff at this notion. But despite that scoffing, I think a proper application of contract law and the CFAA would make violations of TOS a violation of the CFAA (and a federal offense). The problem, as Orin Kerr (who is cited in the WSJ article) points out, is that the wording of the CFAA is too broad. But that’s not the only problem – the other problem is that contract law is too lenient with its notions of mutual assent, especially online. If we expect others to take contracts seriously, we should come up with a law of contracts that reflects reality and deserves to be treated seriously.

[Nancy Kim]

November 21, 2011 in Current Affairs, E-commerce, Miscellaneous, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 9, 2011

Relational contracts and new business models

A few posts back, I referred to Apple's business model as incorporating relational contracting on a mass consumer scale which made me wonder whether relational contract theory is due for a revival (not that it ever  went away). I didn’t attend the conference at Wisconsin honoring Stewart Macaulay although I wish I had. Relational contracting should be the subject of renewed interest given the new business models that incorporate goods, services, and information. On the radio yesterday morning, I heard someone talk about Google's business as being more than a series of searches - it was about services and relationships with its customers. (Okay, maybe those weren't the exact words, but they're close enough). A few weeks ago, a NYT article  discussed new technology companies that are assisting musicians in managing their relationships with their fans. In order to survive, many businesses (especially those in the creative industries) will have to reboot for the evolving marketplace. Not all businesses (and by “businesses," I mean musicians, writers and artists who want to get paid and are not backed by large corporate conglomerates) are equipped to do this. Well, make way for companies like Topspin, Bandcamp, FanBridge and ReverbNation, to assist them. These companies help musicians run a band's online business which means they sell music, manage fan clubs and calculate royalty payments. They have found a way to bundle physical and digital goods. How much you want to bet that those digital goods are protected by contracts?

Which brings me to relational contract law. The purpose of these companies is to enable the musician to survive (and even thrive) without being backed by a record company. Now, the musician can directly manage the relationship with the fan. In the past, a fan joined a fan club, bought a ticket to a concert from one vendor, a record from a retailer, a tee shirt from another retailer - you get the picture. With the exception of the rules on the back of the concert ticket and the fan club membership rules, the other transactions were not governed by contract. The fan can now buy everything she or he wants that's band-related from that band's website, subject to the terms and conditions of the website and the licenses that accompany the digital products. Shouldn't the terms of those contracts be considered in light of the existing relationship between the musician and the fan? Wouldn't a relational contracts approach be helpful in analyzing the terms and how they should be interpreted and enforced?

Apple is relevant in this discussion for another reason. If it weren't for iTunes, it's likely that
none of these businesses would exist. (Fun note - the NYT article mentions that the chief executive of Topskin has a tattoo of the logo for NeXT Computer, which was Steve Job's old company).

[Nancy Kim]

November 9, 2011 in E-commerce, Miscellaneous, Music, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, November 3, 2011

By Popular Demand

So, if a popular movie making fun of the misuse of "plethora" has no effect (perhaps even exacerbates the phenomenon?), what hope is there for a mere blawg to have an impact?


November 3, 2011 in Film Clips, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 1, 2011

An History of the Fulsome Use of "Plethora"

Grammar & UsageWarning: this is a post about my three current linguistic pet peeves.  

I admit that the link to contracts law is attenuated, but these are [mis]uses that I come across in scholarship quite frequently, and I am alarmed that if I don't speak up, it will be too late and these abominations will come to be the standard usage. 

So, let's start with the least egregious: "an history."  Can you even say it aloud in a sentence without contortions?  Because the "h" in history is vocalized, the proper form of the preceding indefinite article is "a," not "an."  To use "an" in this context is IMHO, doubly pretentious.  I suspect that the usage is a holdover from the times when English aristocrats, trying to get in good with their new French overlords, dropped their "h's."  This affectation then trickled down like stock options don't, and today in England, as here, dropping one's "h's" is not considered standard.  Still, for some reason, we still pretend that we are affecting a French pronounciation of the words "history" and "historic" when in fact we are not.  There is therefore absolutely no reason to use "an" before either of those words.  This usage is least egregious because it comes up relatively infrequently, but it still drives me crazy because it almost always occurs in texts that are otherwise learned (although sportscasters love to lable every play or incident "an historic occasion").  Why would smart people do such a thing?!?

Alright, on to "fulsome."  Fulsome is now likely more often used improperly than properly.  It sounds like it means "complete" or "generous" or "ample."  It doesn't.  It means excessive.  Fulsome praise is insincere praise -- praise so over the top as to flip over into its opposite.  "Noisome" is similar.  It sounds like it means "noisy," but it really means "smelly."  Best just to stay away from "some" words. 

And finally, the usage that bugs me the most because of its ubiquity is "plethora."  Again, I blame sports commentators.  They have fallen in love with the misuse of this word and it has infected the literate public.  Plethora does not mean "a lot."  We have quite a few words that mean "a lot," and to use "plethora" when you mean "a lot" is confusing because "plethora" really means "an unhealthy excess;" not "a lot" but "too many."   The word derives from the theory of the bodily humors.  Excess of one humor was believed to cause symptoms.  A plethora is a pathology. 

I am moved to write about this (again) because I did something recently that I never do -- I told a colleague that he had misused the word.  I did this because I had heard him do it on two occasions and because I respect him and think he has picked up on a misuse of the word and mistaken the misuse for the correct usage.  I would like to think that if I were misusing a word and someone corrected me (as my mother used to do before I fled her jurisdiction), I would eventually get over my embarrassment and be grateful to the person who prevented me (hopefully in private) from compounding the embarrassment through reiteration. 

Our conversation revealed that my colleague seemed to be familiar only with the improper usage of "plethora."  Still, he argued in populist mode, if the wrong usage is the common usage, it becomes the correct usage.  He proposed that we test our theories of the word's meaning by checking how it is used on Westlaw.  Well, I know what outcome such a search would produce, but I'm not willing to bow to popular usage in this instance because popular usage is confusing to those of us who know what the word means (and by the way, dictionaries still provide the traditional definition of the term).  When a judge writes that the defendant provided a "plethora of arguments" in defense of her conduct, I honestly don't know whether the court is saying that the defendant had many serious arguments that the court needs to a address or that the defendant provided so many lame excuses for her conduct that none of them deserves serious attention.  The latter meaning illustrates the power of the word "plethora" properly deployed, and it is indeed a useful word if its meaning is not horribly diluted through misuse.

I concede that one should generally bow to popular usage.  I cringe inwardly whenever I hear or see the word "normalcy" (but ethe slippery slope into normalicy), but I cannot honestly claim that the usage is wrong.  Still, the Westlaw methodology is highly suspect in my view.  When I was a clerk, I was asked to review a draft opinion from one of the other judges on our court.  My judge had no substantive differences with the opinion, so she wanted to sign off on it, but for some reason, the other judge (or his clerk) had made reference to some aspect of the case being "much adieu about nothing."  After checking with my judge about protocol, I called the clerk responsible for the opinion and told him that the phrase seemed to reference one of Shakespeare's plays entitled "Much Ado about Nothing."  Some time later, I received an e-mail from the other clerk informing  me that he had decided to make the change I had requested, not because of Shakespeare, but because a Westlaw search indicated that my preferred spelling was the more popular one.  I suppose one might say that there are a plethora of reasons for spelling the word in question "ado," but I would say that there is only one reason that matters.


November 1, 2011 in Miscellaneous | Permalink | Comments (15) | TrackBack (0)

Friday, September 16, 2011

Breaking: Stuffed Bear Removed from Upstate New York Courthouse

This story is barely (get it?) contract law related, but I just renewed my promise to Jeremy to post to the blog once a week and he did not specify any requirement that the posts be contract related.  And, in any event, this New York Law Journal story is written for the blogs:

Months before the onset of winter, the Office of Court Administration has sent into hibernation a 7-foot-tall stuffed bear that briefly made the lobby of the Sullivan County Courthouse in Monticello its lair.

"My position was it takes away from the decorum of the facility," Judge Michael V. Coccoma, the deputy chief administrator for courts outside of New York City, said in an interview yesterday. "It's not that I have anything against taxidermy. But given the seriousness of the business we do in our courts, I felt it was a distraction."

The bear now prowls the private chambers of Acting Supreme Court Justice Frank LaBuda (See Profile), who says it is "beautiful" and "magnificent.

Where did the bear come from?

The bear was killed in October 2006 with a bow by local hunter David Purdy in nearby White Lake. Mr. Purdy asked Justice LaBuda in August if the judge had room for the creature, one of the largest ever taken in the county, in his home.

The judge said he did not, but the bear might find quarters, at least temporarily, in the courthouse where it could serve as a tribute to the area's ecology and love for hunting. By Sept. 2, it was stationed near the post of court officers who quickly dubbed it "Smokey."

A stuffed bear as a symbol of conservation? Justice LaBuda thought so:

"People want to see the bear," Justice LaBuda said. "Actually, it is a tribute to conservation in our state. As you know, black bears were almost extinct in the state except in the Adirondacks. Now, they are actually so plentiful that some people think they are a nuisance here."

You can read the rest of Joel Stashenko's reporting on the bear's eviction here, including a picture of Smokey, Justice LaBuda and Mr. Purdy.

It just so happens that this week's viral video is a commercial for Chuck Testa's taxidermy service.  Wonder if he stuffed the bear:

[Meredith R. Miller]



September 16, 2011 in In the News, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 6, 2011

The Contracts Behind the CSA: Just Food on Supporting Farms and Shared Risk

Mtn Hurricane Irene was not as destructive as predicted for New York City.  It did, however, unleash extensive devastation in upstate New York and many farms were severely flooded.  In line with an FDA ruling, the New York State Department of Agriculture & Markets has issued a blanket recommendation prohibiting the sale of any crops exposed to flood waters, declaring that food unfit for human consumption. 

As a result, the farm that supplies my CSA share (pictured before the flood) was put out of business for the season.  I am out my money, but I have tremendous sympathy for the farmers.  I am reminded that the CSA is made possible by contracts, which allocate risks from farmer to consumer.  

A recent CSA newsletter from Just Food was forwarded to me, and it reflects poingnantly on shared risk:

In New York City Hurricane Irene was much less severe than projected, however, the same cannot be said for many areas in upstate New York, New Jersey, Vermont, and throughout the Northeast. While not all of our CSA farmers were severely affected, others sustained tremendous damage. All week we have been soberly witnessing images of farms under feet of water, hearing stories of farmers who are still unsure of the severity of the damage to their fields, helping farmers think through their next steps and beginning to have what I'm sure will be the first of many conversations with NYC CSA members.

Community Supported Agriculture is a partnership- a mutually beneficial long term relationship between farmers and their members. Shared risk is a concept that is included in every description of CSA and in every membership agreement form. In most years, sharing risk means that a few of the crops that a farmer originally plants and plans to include in shares don't make it in. Occasionally it means a late start to the season due to a wet spring. In 2009, sharing the risk meant few or no tomatoes as most New York farmers were hit with tomato blight. But mostly we don't notice our risk as our shares are supplemented with the bounty of the other 100 varieties of vegetables that CSA farmers have planted.

But the concept of shared risk is very real, and in the wake of Irene we are all reminded of this. No matter how skilled a farmer is, no matter how hard she works, no matter how well he's planned, there was nothing they could have done to prevent the severe flooding. Farmers continue to wait for flood waters to recede so that they can determine the full extent of the damage.

In addition, area farmers received notice from the FDA yesterday that crops covered in flood waters should not be sold for human or animal consumption. While affected farmers are struggling to ensure that they have safe food to provide to their members, yesterday's FDA ruling will likely make it even harder for farms to recover.

Unfortunately, this all comes at the worst time of the season. Money has already been invested in crops that now cannot be harvested, and it is now too late in the season to replant many crops. When bad weather strikes in the spring, farmers have time to replant and recover. This late in the season there simply aren't enough days to start over for many crops, particularly for slower growing winter crops: for instance, winter squash takes 100 days from seed to harvest, potatoes take from 70 to 120 days, turnips 60 days, onions 80 to 150 days. Unfortunately, at this point in the season, there just isn't that much time left.

In addition, CSA farms often don't have crop insurance. Crop insurance is tied to a particular crop, rather than the farm as a whole, and as a result, is better geared for farms that grow large amounts of fewer crop varieties. For this reason, it's very difficult for CSA farmers--who grow 100-150 different crop varieties--to value their crops in order to apply for crop insurance. For CSA farms who do have crop insurance, the insurance doesn't come close to covering their losses, the claims process is incredibly complicated, and reimbursement can take months.

These losses are devastating, but CSA farmers are not just throwing up their hands and walking away. At the same time they greatly appreciate the support that CSA provides, they also feel a tremendous sense of responsibility to their members. As we speak, farmers and their crews are diving in and working hard to assess the damage, begin clean up, and make repairs to fences and barns to make the farm ready and viable for next season. They're also looking at their fields-those that aren't still under water-to figure out how, or even if it's possible, to make the best of the remaining season for their members.

Many CSA core groups and members have reached out to Just Food to find out what they can do to help their farmers. As CSA members, you have already provided stability and support for your farms. Hurricane Irene is an all-too-real example of the kind of weather disaster that can put small family farms out of business. CSA is a vital partnership that can allow farms instead to survive, to return next season and provide the usual bounty to its members.

What your CSA farmers need the most now are your patience and understanding, as well as your commitment to their farm over the long haul.

This reflection is about farms and risks, but it is fundamentally about the contracts that make the CSA possible.

[Meredith R. Miller]

September 6, 2011 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, August 29, 2011

Plaintiff's Inartful Pleading Leaves Queens Judge Yearning for Some "Old-Fashion Formalism"

In a case that appears to be about a breach of a construction contract, the plaintiff's attorney receives a benchslap from Judge Markey in Queens [ouch!]:

This is an action essentially for breach of a construction contract, where the plaintiff contends that it was not paid for its work. The defendants seek to dismiss the second and third causes of action of the complaint.
The Court, as an initial matter, does not find that the plaintiff's complaint is a model of clarity. The first cause of action is essentially for breach of contract, but the word "breach" does not appear in the complaint. The second cause of action is for unjust enrichment, but the plaintiff fails to narrow that broad concept to the facts by either naming or exploring concepts of "quasi-contracts" or "quantum meruit." Indeed, plaintiff's second cause of action implies that defendants retained or accepted the services provided. None of the essential elements of unjust enrichment, quasi-contract, or quantum meruit are spelled out thoroughly.
Justice Benjamin N. Cardozo, while a Judge of the New York Court of Appeals, said famously: "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today." Wood v Lucy, Lady Duff-Gordon, 222 N.Y. 88, 91 [1917]. Despite Cardozo's beautiful articulation of the concept, one reads the plaintiff's complaint yearning for some old-fashioned formalism that would spell out and sustain a cause of action.
The third cause of action is for fraud, but the acts or words of fraud are not spelled out. There is no clue of whether the fraud was in the inducement of the contract or in its execution. Plaintiff seems to be saying that the fact of nonpayment on a contract is enough to sustain a cause of action for fraud and its demand for punitive damages.
Even worse, it would have been helpful, although not essential, for plaintiff to attach a copy of the contract as an exhibit to the complaint. Plaintiff's counsel, in opposition to the defendants' motion does supply it: the original version in Chinese, not accompanied by a certified translation into English. See, e.g., Altivater Gessler-J.A. Baczewski Intern. (USA) Inc. v Sobieski Destylarnia S.A., 572 F.3d 86, 88 n.3 [2nd Cir. 2009] [Both sides offered proper English translation of contract in Polish]; Azimut-Benetti, S.P.A. v Magnum Marine Corp., 55 A.D.3d 483 [1st Dept. 2008] [contract translated to English from Italian]; American Swiss Potash Min. Corp. v Brugger, 137 N.Y.S.2d 729 [Sup. Ct. New York County 1954] [N.O.R.].
In fact, without a proper translation, the Court is unable to determine whether the contract contained a specific disclaimer clause that would have an effect on any oral recitations, possibly relevant to the third cause of action for fraud. See, e.g., Tarantul v Cherkassky, 84 A.D.3d 933 [2nd Dept. 2011].
Before dismissing plaintiff's second and third causes of action, the judge gives defense counsel a little benchslap as well: "The motion to dismiss by defendants is also not particularly helpful since there is no recitation of the salient facts, and the motion begins almost from the start with a legal argument by defense counsel."
[UPDATE 10/7/11: I had a nice chat with defendant's counsel in this case.  It sounds that she did everything she could under the circumstances, and she did ultimately prevail.  She asked what interested me in writing about the case and I reminded her of contractsprof's obsession with anything even marginally related to Judge Cardozo and/or Lady Duff-Gordon.]
[Meredith R. Miller]

August 29, 2011 in In the News, Miscellaneous, Quotes | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 23, 2011

Lucy v. Zehmer, Interrupted

I've survived a contracts conference shipwreck.  And now I can say I've experienced an earthquake in the middle of teaching Lucy v. Zehmer. Apparently the epicenter is in Mineral, Virginia, population 500.  Coincidentally, this looks to be only about a two-hour drive from MCKenney, Virginia, home of the Ye Olde Virginnie

I hope everyone and everything nearby is safe.

[Meredith R. Miller]

August 23, 2011 in Famous Cases, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 22, 2011

Must See TV: Hot Coffee Premieres on HBO on Monday 6/27

Trust me when I tell you that it is very difficult to get friends, family, students and acquaintances engaged in a meaningful discussion of "mandatory arbitration."  Trust me further that there is now a wonderful documentary that manages to make this and other civil justice topics interesting and engaging for everyone.  (Indeed, my viewing companion, proudly not a lawyer, turned to me at one point in the movie and whispered "didn't you write a paper about something like that?")

Last night, I was fortunate enough to invite myself via twitter get invited to a screening of Hot Coffee at HBO.  Hot Coffee is a must see documentary about the way that business interests, "tort reform," judicial elections and "mandatory arbitration" have systematically worked in concert to deny plaintiffs access to civil justice.  It is the work of the energetic and passionate director Susan Saladoff who spent 25 years as a trial lawyer before becoming a filmmaker.  The documentary is well-conceived and thought provoking.  It takes some very complex topics and organizes them and presents them through compelling personal stories.  

The title "Hot Coffee" refers to the iconic case that is ubiquitous in pop culture as a symbol of the frivolous lawsuit: the woman who sued McDonalds because she was served a coffee that was too hot.  The film starts very strong by retelling this story through interviews with the plaintiff's family.  This challenged me (and from the gasps in the theater, I suspect everyone else viewing the film) to see the case in an entirely different light.  With that strong start, the viewer is engaged and ready to hear about damage caps, judicial elections and mandatory arbitration in consumer and employment contracts.

Here's the trailer:

After the film, there was a Q&A session moderated by Jeffrey Toobin.  He appeared to receive the movie very favorably, noting that the fine print in a cell phone contract is not one of the sexy topics that CNN hires him to discuss on the evening news segments (which reminded me of this Dahlia Lithwick piece in Slate, which seemed to begrudgingly report on AT&T v Concepcion).  

Toobin did mention one frustration, which could be leveled as a critique of the film -- that it only presents one point of view.  Notably absent and/or unwilling to participate were voices from the "other side," i.e., those in favor of damage caps and mandatory arbitration.  Saladoff's response, I thought, hit the nail on the head: in so many words, she said that she wanted to tell this side of the story, and the voices in favor of these reforms already had a well-financed platform (and, indeed, overtaken the public consciousness).  Perhaps I am partial to her response because her film paints a picture in line with my world view, and I am just so thrilled to finally see an engaging and accessible presentation explaining the systematic erosion of civil justice at the behest of corporate interests.

Our students come to law school generally ignorant of or misinformed about tort reform, mandatory arbitration and many of the other topics presented in this film.  However, they do at least know of handful of cases -- OJ, Bush v Gore and, of course, the hot coffee case.  I have no doubt that this film will be used in the classroom.  It is masterfully done and captivates those uninitiated with these topics as well as those who have studied them (and even includes a few clips of interviews with George Lakoff).  Please tune in to HBO on Monday night.

[Meredith R. Miller]

June 22, 2011 in Current Affairs, Famous Cases, Film, Film Clips, Law Schools, Miscellaneous, Teaching, Television | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 1, 2011

Announcing the Michigan Journal of Private Equity & Venture Capital Law

The University of Michigan Law School is proud to announce its newest publication, the Michigan Journal of Private Equity and Venture Capital Law.

The Journal is published semi-annually by the students of the University of Michigan Law School in conjunction with the ABA Committee on Private Equity and Venture Capital.

The Journal addresses the regulatory, securities, corporate, tax intellectual property, and other legal issues involved with private equity and venture capital, including with respect to both investments by funds and the formation of funds.

The Journal is currently accepting scholarly papers and paper proposals for publication in our first issue. We anticipate publishing the issue in late fall 2011. Articles for this issue are generally between 25 and 40 pages long.

Please send drafts, proposals, or inquiries to Jeffrey Koh, Executive Article Editor, at [email protected], or via ExpressO.


June 1, 2011 in Miscellaneous | Permalink | TrackBack (0)

Friday, May 13, 2011

New Transnational Commercial Law Blog at NYU

The Center for Transnational Litigation and Commercial Law at NYU recently launched a new blog,dedicated to, well, litigation and commercial law around the globe. It's called Transnational Notes and is edited by Franco Ferrari, with assists from other NYU Law faculty and students. It also welcomes outside contributions.

The first month or so has already produced a number of interesting posts on such topics as the CISG, international arbitration, and cross-border mobility of European corporations. It bids fair to be a very popular and useful resource to keep up on new developments from one of the country's top commercial law centers.

FGS (via Clay Gillette)

May 13, 2011 in Law Schools, Miscellaneous | Permalink | TrackBack (0)

Monday, April 18, 2011

A Passover Retreat: Good or Service?

Img_0065 It is time to get into the Passover spirit by revisiting Fallsview Glatt Kosher Caterers v. Rosenfeld, 7 Misc.3d 557 (Civ. Ct. Kings County, NY, 2005), which gave us the opportunity to pause and consider: is a “Passover retreat” predominantly a good or service under the UCC?  (Which, also came to be known as an added, fifth question for the youngest child at the seder).

Plaintiff Fallsview operated a retreat during Passover at Kutscher’s Country Club. (A Jewishy resort in the Catskills where, as a young child, I spent all of my grandmother’s laundry quarters on Ms. Pac-Man).  For those that did not grow up going to B’nai Brith conventions in “The Country” (that’s what the NYC Jews called it), see this video, which comports with my memory. 

Fallsview’s “retreat” included accommodations, entertainment and kosher food service.  Willie Rosenfeld allegedly reserved spaces for 15 members of his family and agreed to pay $24,050 for the retreat.  Fallsview made necessary arrangements, but Rosenfeld failed to appear at the hotel and did not remit the payment.  Fallsview sued Rosenfeld for breach of contract.

Rosenfeld moved to dismiss, pointing to the statute of frauds.  Rosenfeld argued that there was no agreement and, even if there was, it was oral and did not satisfy UCC 2-201, which requires that contracts for the sale of goods for the price of $500 or more be in writing.  Fallsview’s response: the UCC does not apply because the Passover retreat is a service, not a good.

Because the alleged contract called for accommodations, entertainment and food, it was a hybrid transaction, and the court looked to whether goods or services predominated.  Rosenfeld argued that the retreat was about food, a conclusion that he argued was “compelled by the very nature of the Passover holiday”:

The essential religious obligation during this eight day period- and the principal reason why people attend events similar to the Program sponsored by plaintiff- is in order to facilitate their fulfillment of the requirement to eat only food which is prepared in strict accordance with the mandate of Jewish law for Passover, i.e., food which is ‘Kosher for Passover’. It is the desire to obtain these ‘goods'-and not the urge for ‘entertainment’ or ‘accommodations'-that motivates customers to subscribe to such ‘Programs.’

But the court noted all of the possible daily activities at the retreat included “tennis, racquetball, swimming, Swedish massage, ‘make over face lift show,’ ‘trivia time,’ aerobics, bingo, ice skating, dancing, ‘showtime,’ ‘power walk,’ arts and crafts, day camp, ping-pong, Yiddish theater, board games, horse racing, horseback riding, wine tasting, and indoor bocci-and that is only through Wednesday.”  There were also “ traditional and Orthodox religious services, lectures on religious and other subjects (presumably with a religious or cultural perspective), and a series of activities that are clearly designed to be of interest to families of observant Jews during a highly significant period in their calendar. “  The all-inclusive price covered these activities, as well as accommodations and food.

The court (Battaglia, J., who coincidentally, used to teach at my home institution), sided with Fallsview and decided the essence of the retreat was a “family and communal ‘experience’” and, therefore, was defined primarily by services and not by goods.  Rodenfeld’s motion to dismiss was denied.

Chag Smaech!

[Meredith R. Miller]


April 18, 2011 in Famous Cases, Food and Drink, Miscellaneous, Religion | Permalink | Comments (0) | TrackBack (0)