Wednesday, January 28, 2015
Friday, January 30, 2015
Please join us on Friday, Jan. 30 on campus at Georgetown University Law Center for the Global Sales Law Conference: The CISG at 35: Challenges Today.
The morning will begin with registration and morning refreshments at 8:30 AM, with the program beginning at 9:00 AM.
There is no registration fee but space is limited, so please RSVP by completing the form linked here.
On the occasion of the 35th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), Georgetown’s Center on Transnational Business and the Law and the UNCITRAL Secretariat will host a one day event addressing the present status of the CISG and future options.
Panelists will discuss trends in the use of the CISG in North American legal practice, the future of uniform contract law, and the promotion and role of the CISG in international economic development.
The goal is to take stock of current developments, in particular those relevant for the United States and Canada (e.g., opting out; withdrawal of declarations; CESL and other related projects); to foster greater awareness of the CISG among practitioners; and to explore the contribution of the CISG to legal technical assistance.
This event is co-sponsored by Penn State University - Dickinson Law, the American Branch of the International Law Association, the American Society of International Law, the ABA Section of International Law, the Institute of International Commercial Law, Pace Law School, and the International Law Institute.
The conference will be held on the campus of Georgetown Law, at:
Gewirz Student Center
120 F Street, NW, 12th Floor
Washington, DC 20001
The Law Center is within easy walking distance of Union Station and the Judiciary Square Metro Station. Commerical parking is readily available in the area.
Please find reduced-rate hotel information toward the bottom of this page.
Please click here to register to attend this event.
Registration and Morning Refreshments
9:00 - 9:30 am
Welcome and Overview
Prof. David P. Stewart, on behalf of Dean William Treanor, Georgetown University Law Center
Renaud Sorieul, The Secretary, UNCITRAL
9:30 - 10:30 am
Panel 1: CISG’s Impact on Practice/Current Trends
Moderator: Jack Graves, Professor of Law, Touro Law Center
Franco Ferrari, Professor of Law, New York University School of Law
Claire M. Germain, Associate Dean for Legal Information & Clarence J. TeSelle Professor of Law, Frederic G. Levin College of Law, University of Florida
Peter J. Tucci, Partner, Fox Rothschild LLP
10:30 - 11:00 am
11:00 am - 12:00 pm
Panel 2: Future Options and Related Texts
Moderator: Gregory Klass, Associate Dean for Research and Academic Programs, Georgetown Law
Henry Gabriel, Professor of Law, Elon University School of Law
Clayton Gillette, Max E. Greenberg Professor of Contract Law, New York University School of Law
John J. Kim, Assistant Legal Adviser for Private International Law, U.S. Department of State
12:00 - 1:30 pm
Luncheon Keynote Address
Hon. Claire Reade, Former Assistant USTR for China Affairs
1:30 - 2:45 pm
Panel 3: CISG in Foreign Legal Systems
Moderator: Vikki M. Rogers, Director of the Institute of International Commercial Law, Pace Law School
Hdeel Abdelhady, MassPoint Legal and Strategy Advisory PLLC
Robin Effron, Professor of Law, Brooklyn Law School
Peter Mazzacano, Founder & Editor, CISG Canada
2:45 - 4:00 pm
Panel 4: Technical Assistance and Rule of Law
Moderator: Louis F. Del Duca, Professor of Law, Emeritus, Penn State Dickinson School of Law
Issam Michael Saliba, Law Library of Congress and International Council for Middle East Studies
Stephen D. Gardner, Chief Counsel, Commercial Law Development Program, U.S. Department of Commerce
Muna B. Ndulo, Director of the Berger International Legal Studies Program and Director of the Institute for African Development, Cornell University
Don Wallace, Chairman, International Law Institute; Professor Emeritus, Georgetown Law
4:00 - 5:00 pm
Concluding Panel: Closing Discussion
UNCITRAL Secretary Sorieul and Moderators
Comments and Questions from the Floor
5:00 - 6:00 pm
Reception, Hotung Faculty Dining Room
Tuesday, January 27, 2015
A young Norwegian man has been fined $1,300 for accepting a contract to kill without the intent to follow up on it. Yes, you read that right: all the authorities could charge this man with was contractual fraud. Another 21-year old man ordered the killing of a teenage girl who had rejected the man’s romantic advances. The punishment for the “offeror”? Two years in prison with most of the sentence suspended because the suspect confessed.
Good thing that these men were caught and convicted of something… sort of a gruesome twist on the old, classic Al Capone story (of course, Capone only pled guilty to tax evasion and prohibition charges). I know that the Scandinavian countries do not believe in the rehabilitative effects of relatively severe sentences such as those often dished out in the USA, but still... Two years and $1,300 for an attempted contract on a teenage girl’s head? That seems too lenient to me.
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Monday, January 26, 2015
A group of retirees had worked for the Pleasant Point Polyester Plant. They retired before Petitioner M&G Polymers (M&G) acquired the plant in 2000. At the time of that acquisition, M&G entered into a collective bargaining agreement and a pension agreement with a union that represented retirees. Those agreements created a right to lifetime, contribution-free health care benefits for the retirees, their surviving spouses, and their dependents. However, in 2006, M&G announced that it would begin requiring retirees to contribute to the cost of their health care benefits. Retirees objected that their rights had already vested and could not be withdrawn.
Retirees sued, but M&G claimed that the benefits expired with the termination of the earlier agreements. The Sixth Circuit, relying on a 1983 precedent sided with the retirees, reasoning that retiree health benefits would not likely be subject to future negotiations. Earlier precedent in similar cases had found that, even if the agreements at issue are ambiguous, the parties likely intended for them to apply in perpetuity for workers whose rights had vested and who, as retirees, would no longer be able to engage in collective bargaining. In M&G Polymers USA, LLC v. Tackett, Justice Thomas, writing for the unanimous Court, reversed, finding the Sixth Circuit opinion inconsistent with ordinary principles of contracts law.
In this and prior cases, the Court held, the Sixth Circuit had departed from contracts principles by placing a thumb on the scales in favor of retiree benefits. The Sixth Circuit's "assessment of likely behavior in collective bargaining is too speculative and too far removed from the context of any particular contract to be useful in discerning the parties’ intention," the Court found. In addition, the Sixth Circuit approach misapplies the presumption against illusory promises. The Sixth Circuit found that agreements such as the one at issue would be illusory if benefits could be withdrawn from some potential beneficiaries. The Court pointed out that a contract cannot be partly illusory. If it provides benefits some poetntial beneficiaries, that suffices to render the contract non-illusory. Moreover, the Sixth Circuit ignoreed both the traditional contracts presumption that contractual rights usually terminate with the underlying agreement and the presumption against contracts rights that vest for life. The Court remanded the case with instructions that the lower courts should apply ordinary contracts principles
Justices Ginsburg, Breyer, Sotomayor and Kagan concurred. They agreed that ordinary contracts principles should govern the interpretation of the agreements at issue. However, they rejected M&G's contention that the retirees need to show "clear and express" language that their rights had vested. The concurring Justices pointed to provisions that might support the retirees' claims and joined the opinion of the Court in urging the lower courts to review the agreements in light of ordinary contracts principles and without a thumb on the scales in favor of a finding of vested rights.
Call for Papers
Obligations VIII: Revolutions in Private Law
The Eighth Biennial Conference on the Law of Obligations will be held at the University of Cambridge from 19-22 July 2016, co-hosted by the University of Cambridge Faculty of Law and Melbourne Law School. The biennial Obligations Conferences bring together scholars, judges and practitioners from throughout the common law world to discuss current issues in contract law, the law of torts, equity and unjust enrichment.
Both established and junior legal scholars are invited to submit proposals to present papers addressing the conference theme, broadly interpreted, which is described as follows:
Revolutions in thinking about our governing rules often cause palpable shifts in their foundations: 2016 is the 350th anniversary of Newton’s ‘discovery’ of gravity, and the 100th anniversary of Einstein’s ‘discovery’ of general relativity. It is also the 50th anniversary of the publication of Goff and Jones’ The Law of Restitution, and the 500th anniversary of the publication of Sir Thomas More’s Utopia. What changes mark the most significant paradigm shifts in private law? What effects have they brought? What has provoked them in the past, and what might deliver them in the future? These questions are relevant across the entire sweep of the law, and are common to all jurisdictions. We hope that this theme and its underlying questions will provoke serious discussion about the types of issues which unsettle the law, and how we as lawyers help to resolve the ructions.
Anyone wishing to offer a paper should submit a working title and an abstract (of no more than 500 words) by email to firstname.lastname@example.org by 30 June 2015. Papers will be selected on the basis of quality, originality, engagement with the conference theme and fit with other papers being presented at the conference. Those offering papers will be notified by 31 July 2015 at the latest whether their papers have been accepted. A waiting list may be established, depending on the level of interest.
All presenters whose offers of papers are accepted will be expected to meet their own travel and accommodation costs and to pay a discounted registration fee. Speakers will be asked to submit fully written draft papers by 15 June 2016 for distribution to delegates via a password-protected website. As with previous Obligations Conferences, it is proposed that a small number of selected papers focused on the conference theme will be published in an edited collection following the conference.
Further information about the Obligations Conference series can be found at www.obsconf.com.
Sarah Worthington, Andrew Robertson and Graham Virgo
Sunday, January 25, 2015
Earlier this month, the Contracts sections hosted a program on Contracts, Technology and Legal Gaps. We had an excellent line-up of expert panelists: Eric Goldman (Santa Clara), Woodrow Hartzog (Samford), Corynne McSherry (Electronic Frontier Foundation), Jane Winn (U. of Washington) and Deborah Zalesne (CUNY). For those of you who were unable to attend, the podcast for the program is now available here.
An Ohio appellate court upheld a $1.2 million breach of contract judgment against Kent State's men's basketball coach, Geno Ford. The judgment enforced a liquidated damages clause entitling Kent State to damages equal to Ford's annual salary ($300,000) multipled by the number of years remaining on his contract at the point of breach. In Kent State University v. Ford, Coach Ford tried to characterize the liquidated damages clause as a penalty. The court applied Ohio law to determine whether at the time the contract was entered into: 1) damages were uncertain; 2) the damages provided for in the contract were not unconscionable; and 3) the parties intended for damages to follow a breach. The court upheld the trial court's determination that the standard was satisfied in this case. Coach Ford can take consolation in the fact that his salary is short of Jim Harbaugh's by an order of magnitude.
PetaPixel.com reports on a wedding photographer who, after charging a couple $6000 to shoot a wedding album, sought an additional $150 for the album cover. The couple balked, so the photographer is refusing to hand over the photographs and is threatening to charge them an additional $250 "archive fee" if they do not pay up in a month. PetaPixel draws the following lesson from the story:
This all goes to show that as a photographer, you should never rely on verbal agreements when it comes to conditions and charges. Always get everything in writing.
Maybe. The photographer herself has an extremely lengthy blog post about the entire affair in which she claims that everything should have been clear from the written contract. PetaPixel's story makes it seem like an additional charge was added after the contract had been entered into, and if that's the case, the couple might well have balked whether or not the new terms were in writing.
Contracts Prof/Con Law Prof Randy Barnett, writing at the Volokh Conspiracy picked up by the Washington Post, muses interestingly on the applicability of the contractual duty of good faith to the President's duty to faithfully execute the laws in the Constitution's Take Care clause. This helps Barnett reconcile his empathy for the President's refusal to enforce federal drug laws in the face of permissive state laws permitting use of marijuana with his opposition to the President's new initiative on immigration. I've never been persuaded that the contractual analogy is particularly useful in Constitutional interpretation. Suggesting that the contracts doctrine of "good faith" provides a useful gloss on the Take Care clause strikes me as a stretch, but Professor Barnett is always stimulating.
Friday, January 23, 2015
We know that merchantability means passing without objection in the trade. If law review articles were goods, what would that trade be? For law professors, it seems like it is second and third year law students. At some level it would also reviewers of works when a professor is considered for promotion. Recently, though, a colleague of mine and I did a bit of research and began to wonder if acceptable in the trade -- as defined by law students and law professors -- is a meaningful strandard within the trade of academia.
Law professors who do research are generally spending the money of others. The actual buyers are, therefore, those who pay for the scholarship. Let's add that they have no idea what the standard is but would uniformly agree that every article should make someone or something better off and should reflect high quality research. Students and reviewers should be regarded as agents for those paying the bills.
If that is the measure of merchantability (and why wouldn't it be) then editors and reviewers should apply that standard in their own decisions. Clearly they do not and left to their narrow and inappropriate standard for merchantability we have massive amounts of scholarship that, let's face it, is written to justify being granted tenure. There is little verification that most, no matter how carefully done or clever, actually benefits anyone. Some of it -- a small percentage -- is cited but rarely for the substantive points made as opposed to piggy-backing on a fact asserted in the first work. Morever the research is often sloppy. Here is an example. I recently read an article that makes the claim that a certain area of law is now consistent with empirical studies. I looked at the cite and it was to another professor who had not actualy done any empirical work and did not quite say what was claimed. And the work cited by that professor was not on the point made in the first article. In fact the most frequent cite is the hearsay cite in which the author makes a claim because someone else made the same claim.
I expect readers of this will disagree but shouldn't the test of merchatability mean making someone or something (even if a fish) better off and shouldn't documentation be careful and accurate? Don't misunderstand, much of scholarship meets these standards. But much of what currently passes in the trade without objection does not.
Thursday, January 22, 2015
Texas A & M School of Law Contracts Prof Mark Burge (pictured) has posted a new article on SSRN:
Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code
The Abstract is provided below, and the article is available for download here.
The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1 301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This article contends that this political failure within the simultaneous success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred, not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that “no one is above the law” and the related ideal of maintaining “a government of laws, and not of men.” Proposed section 1-301 transgressed those ideals by taking something labeled as “law” and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not—to an American audience—make sense in theory.
Wednesday, January 21, 2015
Martin Hogg & Larry A. DiMatteo (eds.), Comparative Contract Law: British and American Perspectives (Oxford University Press 2015) (forthcoming)
Mark Kesten, Collateral Damage: Will the 360 Deal Be the Next Victim of California's Talent Agencies Act, 43 Sw. L. Rev. 397 (2014)
Karen E. Sandrik, Formal but Forgiving: A New Approach to Patent Assignments, 66 Rutgers L. Rev. 299 (2014)
Lynn A. Stout, Killing Conscience: The Unintended Behavioral Consequences of "Pay for Performance," 39 J. Corp. L. 525 (2014)
Tuesday, January 20, 2015
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Monday, January 19, 2015
I recently came across an article by Professor Sidney Kwestel that has many good and interesting things to say about the UCC's famous battle of the forms section, 2-207. However, Professor Kwestel suggests the UCC § 2-207(2)'s "knock out rule" cannot be right because it violates "a basic contract concept--that the offeror is the master of the offer."
I've always understood the "rule" that the offeror is the master of the offer to mean only that: (1) the offeror is free to revoke the offer at any time before acceptance; and (2) under the common law, the offeror can treat any purported acceptance that is not a mirror image of the offer as a rejection of the offer and a counteroffer. In my view, the notion is hardly a "basic concept." It's more like a slogan. You think you are the master of your offer. Big deal. I'll make you a counteroffer. Then I'm the master. Oooh la la.
Professor Kwestel thinks it absurd that an expression of assent could operate as assent to some terms but not others. However, the result is worse for the offeror under the common law. Under the last shot rule, the counterofferor's terms do not just knock out the offeror's terms, they replace them. Since the UCC's version of the battle of the forms eliminates both the mirror image rule and the last shot rule, it reduces the slogan to its first meaning -- it only permits revocation at any time before acceptance. The result is much more even-handed as to whose terms govern, and I count that as a win.
Certainly there are problems about what to do with different terms under § 2-207, and Professor Kwestel's article is very good about illuminating the difficulty navigating between the text of the section and the reporter's comments. While I can easily concede that it has its flaws, I think the problems with the knock-out rule are more textual than conceptual.
Law in an Information Society
A Festschrift in Honor of Richard Craswell
We live in a time when information—about costs, parties, alternatives, and laws—is more important than ever before. This symposium brings together 25 leading scholars in law and economics, contracts, commercial law, antitrust law, and other topics relating to how litigants, regulators, and policymakers can use information to inform their decisionmaking.
The Stanford Law Review is pleased to present this symposium to celebrate Professor Craswell and his tremendous contributions across many areas of law. Articles will be presented by Ian Ayres and Barry Nalebuff, Louis Kaplow, Alan Schwartz, Christine Jolls, and Tess Wilkinson-Ryan and David Hoffman, and papers will be presented by Matthew Spitzer and Richard Brooks. Many other noted scholars from around the country will serve as discussants.
Attendance is free: See a full schedule and register HERE!
Thursday, January 15, 2015
Speaking of auctions (see Jeremy's blog below), how about a rug reading "In Dog We Trust" instead of the official motto of both the United States and Florida?
A sheriff's office in Florida has removed a mat featuring the miswoven lettering. There have reportedly been several offers to buy the misprinted rug after the error was discovered two months after having been placed at the entrance to the sheriff's office.
Spelling in this country is truly going to the dogs.
Wednesday, January 14, 2015
Michael A. Dorelli & Jonathan B. Turpin, Recent Developments in Indiana Business and Contract Law, 47 Ind. L. Rev. 985 (2014)
Max N. Helveston, Preemption without Borders: The Modern Conflation of Tort and Contract Liabilities, 48 Ga. L. Rev. 1085 (2014)
Marta Pertegas & Brooke Adele Marshall, Party Autonomy and Its Limits: Convergence through the New Hague Principles on Choice of Law in International Commercial Contracts, 39 Brook. J. Int'l L. 975 (2014)
S.I. Strong, Limits of Procedural Choice of Law, 39 Brook. J. Int'l L. 1027 (2014)
Symeon C. Symeonides, Party Autonomy in International Contracts and the Multiple Ways of Slicing the Apple. 39 Brook. J. Int'l L. 1123 (2014)
According to The Telegraph, a letter from Lucy, Lady Duff-Gordon (pictured at right) written shortly after her survival of the sinking of the Titanic is going up for auction in Boston on January 22nd. It is expected to fetch as much as $6000 (but they don't know that we are considering putting the vast resources of the ContractsProf Blog in play).
The letter reads:
How kind of you to send me a cable of sympathy from New York on our safety. According to the way we've been treated by England on our return we didn't seem to have done the right thing in being saved at all!!!! Isn't it disgraceful.
Alas, Lady Duff is not referring to the less-than-respectful treatment she received from Judge Cardozo in the case that keeps the Duff name alive, nor is she referring to bad reviews for her 1912 prêt-à-porter show.
She is referring to allegations that her husband, Cosmo, paid crew members extra to row away from survivors in Lifeboat #1, which held 12 people, although it was designed to hold 40. An inquiry found no support for the allegations and cleared the Duff-Gordons. Recently, as reported here in The Telegraph, more letters from the Duff-Gordons were discovered that tell their side of the story.
Tuesday, January 13, 2015
The effectiveness of disclosure is an ongoing discussion on this blog and not long ago we had an engaging online symposium on Omri Ben-Shahar and Carl Schneider's thought-provoking book, More Than You Wanted to Know: The Failure of Mandated Disclosure. Lauren Willis and Theresa Amato have written an op-ed in today's LA Times that gets to the heart of the failures of disclosures (and related informational problems) when it comes to consumer literacy - and they offer some solutions. I particularly like their suggestion that banks demonstrate that consumers understand the financial products offered. This shifts the burden of disclosure from the consumers to the banks. You can read more here.
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Monday, January 12, 2015
A misplaced comma (or something) cost an Oregon Ducks fan his premium seats to the college football championship game. According to this report from The Oregonian, a University of Oregon alumnus found premium tickets to the game (which he knew were selling for $4000) for $400 on StubHub. When, he placed his order, StubHub indicated that he would be charged $16,59.36, but his credit card was charged $16,059.36. He protested, and StubHub refused to honor the purchase, removing the charge and offering $1600 in StubHub vouchers, which the angry Duck says he will not use. He blows off some steam in a blog post, with observations about obnoxious terms and conditions.
In a sign of the times, MasterCard has filed suit in the Southern Distroct of New York against Nike, according to this report from Bloomberg.and Oregon Live (you have to go through a short survey to read it), for having poached a few of its cyber-security experts. MasterCard is suing the employees for breach of contract and Nike for tortious interference. Nike denies all wrongdoing.
We could not have made this up: The St. Louis Post-Dispatch reports that the Devin James Group (DLG), a public relations firm, is suing another public relations firm, Elasticity. Apparently, Elasticity hired DLG to help represent the City of Ferguson in the aftermath of the shooting of Michael Brown. Elasticity fired DLG when it discovered that DLG's owner had a criminal record. Mr. James was convicted in 2006 for having shot an unarmed man. He claims he did $50,000 of work for which he has not been paid.
In another chapter in the dangers of state governments hiring private companies to handle public services, NJ.com reports that Hewlett Packard will refund New Jersey $7.5 million to get out of its contract to deliver a unifed system to administers the state's public assistance program. The Christie administration and HP agreed last year to suspend work on the project and they entered into a separation agreement in which each side agreed not to sue the other for breach of contract. The state is now looking for a new partner. In the meantime, it "continues to hobble along on its 1980s-era mainframe system," according to NJ.com.
Finally, an interesting conflict between a franchise and a large franchisee. Wendy's is requiring its franchisees to make technology upgrades and renovate stotes. DavCo, which operates 152 Wendy's restaurants is refusing to do so, claiming that Wendy's lacks the authority to require the changes. According to the Baltimore Sun, Wendy's has filed suit to terminate DavCo's franchises.
Thursday, January 8, 2015
On January 7th, a federal judge struck down a ban on foie gras that had been in effect since 2012. The judge was of the opinion that the federal Poultry Products Inspection Act preempts the California ban. This Act gives the U.S. Department of Agriculture the sole jurisdiction over the “ingredients requirements” of poultry products.
The judge seems to have forgotten about the federal Animal Welfare Act’s requirements for the humane treatment of farm animals as well as states’ ability to ban the sale of the products of animal cruelty. The California Attorney General’s office is reviewing the decision for a possible appeal of the law, which was upheld in previous litigation.
Foie gras is, without a doubt, cruel to animals. To produce the alleged delicacy, geese and ducks are “force-fed a corn mash through a metal tube several times a day so that they gain weight and their livers become 10 times their natural size. Force-feeding sometime injures the esophagus of the bird, which may lead to death. Additionally, the fattened ducks and geese may have difficulty walking, vomit undigested food, and/or suffer in extreme confinement." Do we as consumers still have a right to buy such a product even if it tastes very good? No, according to at least California state law.
How anyone could make themselves eat this product is beyond my comprehension. I confess that I am an animal lover and environmentalist. I do personally believe in those core values. However, I am quite far from an extremist and respect, to a very, very far extent, the opinions of the vast majority of other people. Heck, I am not even a vegetarian (I try to at least buy free-range products). But under notions of both positive law – state and/or federal – and natural law, this is where the buck must stop. There must be limits to what we can do in the name of obtaining a gourmet experience, especially when it comes at such a high price of extreme suffering by our living, sentient creatures. And if consumers cannot draw such lines themselves, courts and legislatures must. In the words of Mahatma Gandhi, “the greatness of a nation and its moral progress can be judged by the way its animals are treated.” More than a dozen countries around the world have outlawed the production of foie gras. In this respect, the United States is not great. This case leaves a bad taste in my mouth and, I hope, in yours as well.