ContractsProf Blog

Now in Print

Shmuel I. Becher, A "Fair Contracts" Approval Mechanism: Reconciling Consumer Contracts and Conventional Contract Law, 42 U. Mich. J.L. Reform 747 (2009).

Amelia H. Boss, The Evolution of Commercial Law Norms: Lessons to be Learned from Electronic Commerce, 34 Brook. J. Int'l L. 673 (2009).

Peter L. Fitzgerald, The International Contracting Practices Survey Project: An Empirical Study of the Value and Utility of the United Nations Convention on the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts to Practitioners, Jurists, and Legal Academics in the United States, 27 J.L. & Com. 1 (2008).

Greg Gordon, Hadley v Baxendale Revisited: Transfield Shipping Inc v Mercator Shipping Inc, 13 Edinburgh L. Rev. 125 (2009).

Martin Hogg, Contract Formation in the Electronic Age, 13 Edinburgh L. Rev. 121 (2009).

Martin Hogg, Intention to Contract and Wasted Pre-Contractual Expenditure, 13 Edinburgh L. Rev. 134 (2009).

Thomas W. Joo, The Discourse of "Contract" and the Law of Marriage, 24 Res. L. & Econ. 161 (2009).

Mike Kreager, The Physician's Right ... to Buy Out a Covenant Not to Compete in Texas, 61 Baylor L. Rev. 357 (2009).

Robert J. Landry, III & Benjamin Hardy, Mandatory Pre-Employment Arbitration Agreements: The Scattering, Smothering, and Covering of Employee Rights, 19 U. Fla. J.L. & Pub. Pol'y 479 (2008).

Li-Wen Lin, Legal Transplants Through Private Contracting: Codes of Vendor Conduct in Global Supply Chains as an Example, 57 Am. J. Comp. L. 711 (2009).

Iain MacNeil, Uncertainty in Commercial Law, 13 Edinburgh L. Rev. 68 (2009).

Nathan B. Oman, Specific Performance and the Thirteenth Amendment, 93 Minn. L. Rev. 2020 (2009).

Natalie Bucciarelli Pedersen, A Subjective Approach to Contracts?: How Courts Interpret Employee Handbook Disclaimers, 26 Hofstra Lab. & Emp. L.J. 101 (2008).

Caprice L. Roberts, Restitutionary Disgorgement as a Moral Compass for Breach of Contract, 77 U. Cin. L. Rev. 991 (2009).

Thierry L. Sénéchal & John Y. Gotanda, Interest as Damages, 47 Colum. J. Transnat'l L. 491 (2009).

Lisa Spagnolo, The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention for Australian Lawyers, 10 Melbourne J. Int'l L. 141 (2009).

John Walton, The Common Law Right to Interest, [2009] New Zealand L.J. 170.

[Keith A. Rowley]

Now in Print

Sarah Abramowicz, Childhood and the Limits of Contract, 21 Yale J.L. & Human. 37 (2009).

Catherine Ascani, Casenote, Deal or No Deal: It's a Deal in Morgan Stanley Capital Group, Inc. v. Public Utility District No. 1 of Snohomish County, Washington, 60 Mercer L. Rev. 1025 (2009).

Joseph B. Baker, Note, Contracting to Supplement Fair Use Doctrine, 39 U. Mem. L. Rev. 757 (2009).

Carolyn Edwards, Freedom of Contract and Fundamental Fairness for Individual Parties: The Tug of War Continues, 77 UMKC L. Rev. 647 (2009).

Theodore Eisenberg & Geoffrey P. Miller, The Flight to New York: An Empirical Study of Choice of Law and Choice of Forum Clauses in Publicly-Held Companies' Contracts, 30 Cardozo L. Rev. 1475 (2009).

Joshua Fairfield, The Cost of Consent: Optimal Standardization in the Law of Contract, 58 Emory L.J. 1401 (2009).

Jonathan Fineman, The Inevitable Demise of the Implied Employment Contract, 29 Berkeley J. Emp. & Lab. L. 345 (2008).

James M. Garrett, Comment, "Congrats! You've been Pre-approved!": Determining the Correct Approach to a Firm Offer of Credit, 45 Hous. L. Rev. 1311 (2008).

Robert T. Miller, The Economics of Deal Risk: Allocating Risk Through MAC Clauses in Business Combination Agreements, 50 Wm. & Mary L. Rev. 2007 (2009).

Shelley Smith, A New Approach to the Identification and Enforcement of Open Quantity Contracts: Reforming the Law of Exclusivity and Good Faith, 43 Val. U. L. Rev. 871 (2009).

Marcus Wang, Dancing with the Dragon: What U.S. Parties Should Know About Chinese Law When Drafting a Contractual Dispute Resolution Clause, 29 Nw. J. Int'l L. & Bus. 309 (2009).

[Keith A. Rowley]

Call for Proposals

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: [email protected], [email protected], and [email protected], 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]

Now in Print

J. Edward Allen, Comment, Insurance Carriers v. Construction Industry: A Texas-sized Showdown to Come? A Closer Look at the Implications of Lamar Homes, 50 S. Tex. L. Rev. 505 (2009).

Oren Bar-Gill & Omri Ben-Shahar, An Information Theory of Willful Breach, 107 Mich. L. Rev. 1479 (2009).

Omri Ben-Shahar & Ariel Porat, Fault in American Contract Law, 107 Mich. L. Rev. 1341 (2009).

Phillip M. Brick, Jr., Casenote, Agree to Disagree: The Inequity of Arkansas's Tacit-Agreement Test as Seen in Deck House, Inc. v. Link, 62 Ark. L. Rev. 361 (2009).

George M. Cohen, The Fault That Lies Within Our Contract Law, 107 Mich. L. Rev. 1445 (2009).

Teresa Stanton Collett, Whose Life is it Anyway?: Texas Public Policy and Contracts to Kill Embryonic Children, 50 S. Tex. L. Rev. 371 (2009).

Richard Craswell,When Is a Willful Breach “Willful”? The Link Between Definitions and Damages, 107 Mich. L. Rev. 1501 (2009).

Melvin Aron Eisenberg, The Role of Fault in Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, and Nonperformance, 107 Mich. L. Rev. 1413 (2009).

Richard A. Epstein, The Many Faces of Fault in Contract Law: Or How to Do Economics Right, Without Really Trying, 107 Mich. L. Rev. 1461 (2009).

Stefan Grundmann, The Fault Principle as the Chameleon of Contract Law: A Market Function Approach, 107 Mich. L. Rev. 1583 (2009).

Adam Kramer, The New Test of Remoteness in Contract, 125 L.Q. Rev. 408 (2009).

Roy Kreitner, Fault at the Contract-Tort Interface, 107 Mich. L. Rev. 1533 (2009).

Saul Levmore, Stipulated Damages, Super-Strict Liability, and Mitigation in Contract Law, 107 Mich. L. Rev. 1365 (2009).

Louise Merrett, Costs as Damages, 125 L.Q. Rev. 468 (2009).

Geoffrey P. Miller & Theodore Eisenberg, The Market for Contracts, 30 Cardozo L. Rev. 2071 (2009).

Ariel Porat, A Comparative Fault Defense in Contract Law, 107 Mich. L. Rev. 1397 (2009).

Eric A. Posner, Fault in Contract Law, 107 Mich. L. Rev. 1431 (2009).

Richard A. Posner, Let Us Never Blame a Contract Breaker, 107 Mich. L. Rev. 1349 (2009).

Ingeborg Schwenzer, Force Majeure and Hardship in International Sales Contracts, 39 Victoria U. Wellington L. Rev. 709 (2009).

Robert E. Scott, In (Partial) Defense of Strict Liability in Contract, 107 Mich. L. Rev. 1381 (2009).

Steven Shavell, Why Breach of Contract May Not Be Immoral Given the Incompleteness of Contracts, 107 Mich. L. Rev. 1569 (2009).

Seana Shiffrin, Could Breach of Contract Be Immoral?, 107 Mich. L. Rev. 1551 (2009).

Ian Shrank & Samuel Yin, Liquidated Damages in Commercial Leases of Personalty -- The Proper Analysis, 64 Bus. Law. 757 (2009).

Steve Thel & Peter Siegelman, Willfulness Versus Expectation: A Promisor-Based Defense of Willful Breach Doctrine, 107 Mich. L. Rev. 1517 (2009).

N.B.: The numerous Michigan Law Review articles emanated from the Fault in Contract Law symposium, which the University of Chicago Law School hosted, and its John M. Olin Program in Law and Economics and the Michigan Law Review co-sponsored, last fall.  Copies of all of the symposium articles are available, in .pdf format, at http://www.michiganlawreview.org/index-mlr.htm.

[Keith A. Rowley]

Mid-Year Legislative Update

With most state legislatures having concluded their business for the year, here is the 2009 mid-year legislative update.

Revised Article 1

As of January 1, 2009, Revised Article 1 was in effect in thirty-four states: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and West Virginia.

Notwithstanding my suggestion elsewhere that the substitute § R1-301 NCCUSL and the ALI promulgated last year might “grease the skids” for additional enactments this year, 2009 has turned out to be a relatively quiet legislative year for Revised Article 1, with only three enactments -- down from five in 2008, and seven in 2007. While the most noteworthy nonuniformity among the thirty-seven enactments remains the definition of “good faith” -- with 26 states having adopted the uniform § R1-201(b)(20) definition and 11 having retained the pre-revised definition that imposes a different good faith standard on merchants and non-merchants -- all three 2009 enactments adopt the uniform definition and one of the eleven states (Indiana) that retained the pre-revised definition has amended its version of Revised Article 1 to adopt the uniform definition effective July 1, 2010.

As of June 30, Alaska (HB 102), Maine (LD 1403), and Oregon (SB 558) have enacted Revised Article 1 thus far this year. The Alaska and Oregon enactments take effect on January 1, 2010, with Maine’s following on February 15, 2010.

The Washington legislature failed to act on SB 5155 before adjourning sine die on April 26. (That’s probably just as well, because the introduced version of SB 5155 appeared to be drawn directly from the language of official Revised Article 1 circa 2001 and included the no-longer-official version of Revised 1-301 that all 37 enacting states have declined to adopt).

It is possible that the Massachusetts legislature will consider a Revised Article 1 bill sometime this year; however, having waited months for HD 89 to be assigned a bill number, and given the failure of four prior bills to garner a floor vote in either chamber, I would be surprised to see definitive action anytime soon.

Article 2 and 2A Amendments

As of June 30, 2009, only three state legislatures (Kansas, Nevada, and Oklahoma) had considered bills proposing to enact the 2003 amendments to UCC Articles 2 and 2A. In 2005, Oklahoma amended Sections 2-105 and 2A-103 of its Commercial Code to add that the definition of “goods” for purposes of Articles 2 and 2A, respectively, “does not include information,” see 12A Okla. Stat. Ann. §§ 2-105(1) & 2A-103(1)(h) (West Supp. 2008), and amended its Section 2-106 to add that “contract for sale” for purposes of Article 2 “does not include a license of information,” see id. § 2-106(1). The net effect is similar to having enacted Amended §§ 2-103(k) & 2A-103(1)(n), both of which exclude information from the meaning of “goods” for purposes of Article 2 and 2A, respectively. Otherwise, no state has enacted the 2003 amendments.

Article 3 and 4 Amendments

As of January 1, 2009, the 2002 amendments to Articles 3 and 4 were in effect in six states: Arkansas, Kentucky, Minnesota, Nevada, South Carolina, and Texas. By July 1, 2010, that number will increase by at least 50%.

As of June 30, 2009, Indiana (SB 501), New Mexico (SB 74), and Oklahoma (SB 991) have enacted the 2002 amendments to Articles 3 and 4. Oklahoma SB 991 will take effect on November 1, 2009; New Mexico SB 74 will take effect on January 1, 2010; and Indiana SB 501 will take effect on July 1, 2010.

In addition to enacting the 2002 amendments to Articles 3 and 4 and the usual conforming amendments, Indiana SB 501 also revises the definition of “good faith” in Ind. Code § 26-1-1-201(19) to require all parties to act honestly and to observe reasonable commercial standards of fair dealing. At present, Ind. Code § 26-1-1-201(19) requires only “honesty in fact.” Like the rest of SB 501, this change will take effect July 1, 2010, and further tip the balance among enacting states in favor of the unitary good faith definition in uniform § R1-201(b)(20).

Revised Article 7

As of January 1, 2009, Revised UCC Article 7 was in effect in thirty-one states: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia, and West Virginia. As of July 1, Revised Article 7 will be in effect in South Dakota, as well.

This has been a relatively active legislative year for Revised Article 7. In addition to South Dakota SB 89, which takes effect on July 1, Alaska (HB 102), Maine (LD 1405), and Oregon (SB 558) have already enacted Revised Article 7 in 2009, and Louisiana HB 403 lacks only Governor Bobby Jindal's signature (or pocket veto). Alaska HB 102 and Oregon SB 558 will take effect on January 1, 2010, as will Louisiana HB 403 (if enacted). Maine LD 1405 will take effect on February 15, 2010.

Georgia HB 451 made significant progress toward adoption. First introduced on February 18, the Georgia House unanimously passed the House Judiciary Committee’s substitute version on March 12, and the Senate Judiciary Committee recommended passage on March 26. However, the legislature adjourned on April 3 without a third reading and final action in the senate.

Washington SB 5154 stalled, like its Revised Article 1 counterpart, but without as compelling a reason.

UETA

Although the Georgia legislature did not pass HB 451 prior to adjourning, it did pass the Uniform Electronic Transactions Act (HB 126), to which Governor Sonny Perdue affixed his signature on May 5. As a result, effective July 1, 2009, Illinois, New York, and Washington will be the only states in which UETA is not in effect.

[Keith A. Rowley]