Thursday, January 19, 2017
I don't come across a lot of cases revolving around competence, but here's a recent one out of New York, Gray v. Jung, No. 62996 (behind paywall). The case, at the summary judgment stage, revolves around plaintiff's seeking of specific performance on a real estate contract. The court found that the plaintiff met his burden regarding the appropriateness of specific performance as a remedy, but the defendant raised sufficient evidence of lack of competency to defeat the plaintiff's motion. The defendant submitted "a considerable amount of medical records" indicating that he suffered from "brain fog" that prevented him from fully understanding the real estate contract at issue. Plaintiff had his own evidence that the defendant was indeed competent to enter into the contract and that his subsequent regret at entering into the contract shouldn't render it unenforceable. However, the court found that there was a genuine dispute of material fact on the question of the defendant's competence that defeated summary judgment.
H/T Dov Waisman from the Contracts Prof Listserv for this post:
Happy New Year! The 12th Annual International Conference on Contracts (KCON XII) is scheduled to begin on Friday, February 24th. Here in Los Angeles, we are excitedly preparing for the conference and wanted to write with a couple of reminders.
First, we are still accepting proposals for presentations and panels. The final deadline for submitting a proposal is Tuesday, January 31st. We have received many terrific proposals so far and have only a small number of slots left. So if you wish to submit, please do so at your earliest convenience, and in all events by the 31st. As a reminder, in addition to traditional panel presentations, this year we are inviting short, ten-minute talks on a number of special topics, all of which are listed in the attached Call for Participation. If you have already submitted a proposal (thank you!), be sure to register for the conference and book your hotel room.
Also, if you have not done so already, please be sure to register for the conference and book reservations at the conference hotel as soon as possible. Conference registration and hotel information is available here. You should book your room at the Omni Los Angeles Hotel while discounted rooms in the conference block are still available. Only a limited number of discounted rooms are available, so act fast! The final deadline for booking a room at the Omni at the discounted rate is Sunday, February 12, but we expect all discounted rooms to be booked well before then.
That’s it for now. We’ll be in touch with more details early next month. If you have any questions or concerns about KCON XII, please contact Danielle Hart, Hila Keren, and/or myself at email@example.com. We look forward to seeing everyone in L.A. on February 24th and 25th!
Associate Professor of Law
Southwestern Law School
Wednesday, January 18, 2017
The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies.Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.
Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.
The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.
Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events, and blogging.
January 18, 2017 | Permalink
Tuesday, January 17, 2017
“Compliance with ABA Standard 314: Formative Assessment in Large Classes” is a one-day conference sponsored by the Institute for Law Teaching and Learning. The conference is for law teachers and administrators who want to learn how to design, implement, and evaluate formative assessment plans. The conference will be interactive workshops during which attendees will learn about formative assessment techniques from games to crafting multiple choice questions to team-based learning. Participants will also learn ways to coordinate assessment across the curriculum. The conference workshop sessions will take place on Saturday, March 25, 2017, at Emory University School of Law. Conference Content: Sessions will address the following topics: Why Assess: Empirical Data on How it Helps Students Learn Games as Formative Assessments in the Classroom Formative Assessment with Team-Based Learning Creating Multiple Choice Questions and Ways to Using Them as Formative Assessment Coordinating Formative Assessment Across the Curriculum.
More information can be found here: http://lawteaching.org/conferences/
Here is the link to register: https://emorylaw.wufoo.com/forms/institute-for-law-teaching-learning-conference/
January 17, 2017 | Permalink
Friday, January 13, 2017
Frequently when I teach Contracts I find myself telling the students to just put in the contract exactly what they want it to say, because so often I feel like cases revolve around parties saying, "I know what it said, but I thought that meant something else entirely." Although, often, of course, these might be ex post facto proclamations when a situation turns out to not be exactly what the party thought it was going to be.
A recent case out of Maryland, Norman v. Morgan State University, No. 1926 September Term 2015 (behind paywall), is another illustration of a party claiming that a contract means what a court finds it does not mean. In that case, Norman had sued Morgan State after he was denied tenure there. The parties entered into a settlement agreement under which Norman was permitted to apply for "any non-tenure track position at [Morgan State] for which he was qualified." The current lawsuit is the result of Norman's allegation that Morgan State prevented him from applying for an external research grant that that would have funded a future position at the school for him.
The court, however, found that the contract clearly stated that Norman could apply for "any non-tenure track position." It said nothing about external grants and external grants are not non-tenure track positions. Therefore the settlement agreement did not require Morgan State to permit Norman to seek the external grant. Norman tried to argue that he would not have agreed to the settlement agreement had he known it allowed Morgan State to block applications for external grants, but the court dismissed that argument based on the plain and unambiguous language of the contract.
Thursday, January 12, 2017
Wednesday, January 11, 2017
If you're looking for an example of duties unable to be delegated, a recent case out of the Middle District of Florida, Floyd v. City of Sanibel, Case No. 2:15-cv-00795-SPC-CM, has one for you. In the case, the Floyds live in a housing unit owned by the City of Sanibel. The City claimed to have delegated its housing duties to Community Housing & Resources ("CHR"), with whom the Floyds entered into a lease that named CHR as its landlord. However, the City was heavily involved with both funding CHR and making decisions on everyday operations for CHR's properties, undermining the assertion that it wasn't involved with the contract at issue. Even without that involvement, though, Florida law dictates that property owners cannot delegate their duties to provide reasonably safe premises by hiring another entity to operate and maintain the property. Therefore, the court allowed the Floyds' claims against the City to stand, holding the City to the lease as CHR's principal.
Saturday, January 7, 2017
Photo Source: hgtv.com
The main reason I have cable these days, honestly, is because of my HGTV addiction. I like that the shows are so predictable and formulaic, which makes them low-stress. It's a habit I started years ago as a stressed-out lawyer in a law firm, when I needed to come home and watch something that didn't require thought, and it's kept me company as I transitioned into academia. And I'm apparently not alone in using it as comfort television.
I use HGTV a lot in my Contracts class as the foundation of hypotheticals (so much that I'm contributing a chapter to a book detailing how I use it) and so I'm always interested when there is a real-life HGTV contract problem...such as is happening right now with "Flip or Flop."
You might not be anxiously following HGTV shows, so let me tell you that the world was recently rocked (well, a small corner of the world) by the revelation that Christina and Tarek, the married couple with two young children at the center of the house-flipping show "Flip or Flop," were separated and/or getting divorced. And now come reports that HGTV has threatened them with a breach of contract action if their ongoing marital problems affect the filming of the show.
This is an example of the interesting issues that arise when your personal life becomes the equivalent of your contractually obligated professional life. Christina and Tarek no longer want to be married to each other, apparently, which is a stressful enough situation, without adding in the fact that their marriage is also the source of their livelihood. HGTV has a point that the show is less successful when you know that their personal life is a mess. The network was running a commercial pretty steadily through the holiday season where Christina and Tarek talked about their family Christmas, and every time I saw it I thought it was so weird and that they should pull the commercial. But that was clearly the advertising campaign HGTV had long planned for the show and it was probably costly for HGTV to change it at that point.
I am curious to see what the resolution of this is. I'm unclear how much longer Christina and Tarek were under contract for. They probably hoped to keep their separation quiet for as long as they could (they had, after all, kept it quiet for several months). But now that it's out in the open, we'll have to see how the parties recalibrate not just their personal but also their contractual relationships with each other. There is always a lot of talk about how "real" the shows on HGTV is. This situation is testing where our boundaries on "real" vs. "fake" actually lie.
Thursday, January 5, 2017
As AALS continues in full swing in San Francisco, let's take a moment to glance at our first Top Ten Downloads lists for 2017:
Wednesday, January 4, 2017
I started reading this case because the first party's name was "Our Town" and I have fondness for that play...but it turned out to be a really interesting dispute over a non-compete provision that resulted in a preliminary injunction.
The plaintiff in the case out of Pennsylvania, Our Town v. Rousseau, No. 3:16-CV-2484 (behind paywall), operates a community publication called "Our Town." The defendants in the case entered into a contract to franchise the "Our Town" brand in a county in New Jersey. The franchise contract contained a non-compete provision prohibiting the defendants from operating any similar business within fifty miles of the franchise location or other "Our Town" publications for a period of three years.
After a series of political editorials, the defendants decided to terminate the franchise relationship, alleging that "Our Town" was no longer viable in the franchise location and they wished to launch a more "family friendly publication." On the day that defendants notified the plaintiff they were terminating the agreement, the plaintiff learned that the defendants were operating a similar publication called "Home Town" in the franchise location. The plaintiff, alleging that this was a violation of the non-compete, sought a preliminary injunction.
The court granted the injunction. The court found that the plaintiff was likely to succeed on the merits of the case. The parties behaved as if they were bound by the franchise agreement, and the non-compete in the agreement was enforceable. The court found it was supported by valid consideration, that fifty miles has been found to be a reasonable geographic restriction, and that three years have been found to be a reasonable time period. Plus, the court found that the non-compete protected the plaintiff's legitimate business interests and so the plaintiff would be irreparably harmed without the injunction.
The defendants tried to argue that the injunction would harm them because they would be unable to make a living if the non-compete was enforced. The court noted, however, that this harm was of the defendants' own making.
Thursday, December 29, 2016
Multiple sources report that Syracuse University is suing its long-term law firm over the firm's failure to put a "time is of the essence" clause into one of the university's contracts. I can't seem to track down the docket online so I haven't been able to look at the actual court documents but if you're teaching "time is of the essence" clauses next semester and looking for a recent controversy, here's one!
For your reading pleasure, ContractsProf Blog presents the final Top Ten Downloads list of 2016. We also hope our readers will resolve (notwithstanding Calvin, below) to have a happy and productive 2017!
Wednesday, December 28, 2016
There is major drama happening in the world of high fashion, and it all revolves around an alleged non-compete. Carolina Herrera has sued Oscar de la Renta to keep Laura Kim from working for the rival company. According to CH, Kim signed a non-compete with CH which gave it the option of paying Kim fifty percent of her salary and health benefits in exchange for Kim not competing against it for six months. The six months seems like a suitably short period of time in the fast-moving fashion industry, especially as it has important impacts on New York Fashion Week in February.
The judge ordered a TRO which has since been lifted pending a preliminary injunction hearing in the new year. In the meantime, you should go to this article for all of the juicy details on what exactly went down between Kim and CH.
Friday, December 23, 2016
Just a quick entry in advance of a weekend that is a holiday for many, but this post on Inside Higher Ed caught my eye, discussing an in-progress case against NYU. An appellate court allowed two professors' complaint to survive a motion to dismiss based on sufficient allegations that the faculty handbook was a formal binding contract. One to keep an eye on in the new year.
However you plan to spend this upcoming weekend, I hope it's full of peace and joy.
Thursday, December 22, 2016
Wishing you all the joys of the season from us here at ContractsProf Blog! Now go help yourself to the gift of recent scholarship from our collective favorite area of the law.
Monday, December 19, 2016
Confidentiality provisions are everywhere these days, especially in all of those arbitrations most contracts now require. I've blogged about them in connection with Donald Trump, and now they are playing a starring role in the very messy divorce between Johnny Depp and Amber Heard, in which Depp is allegedly refusing to provide Heard's divorce settlement because he alleges she breached their agreement's confidentiality provision when she spoke out publicly against domestic violence.
It's unclear to me what the wording of the confidentiality provision was and whether Heard's behavior really did violate it. What is clear to me is that the confidentiality provision is being used to prevent communications of encouragement and support to people who are victims of domestic violence. There is a dual tragedy here: Not only are words of encouragement being muffled, but victims of domestic violence are now receiving the message that those words of encouragement could lead to punishing consequences.
Confidentiality provisions can make sense, and there are definitely situations where they are vital to a deal getting done. But there are also situations where they seem to be operating against public policy.
Thursday, December 15, 2016
A recent case out of Arkansas, Baxter v. Wing, No. CV-16-21 (behind paywall), has a nice discussion of the difference between moral obligation and legal obligation. In the case, a man named one of his four stepchildren, Susannah, as the sole beneficiary of his life insurance policy and asked her to share it with her three siblings.
Nobody disputed that it was the deceased man's wish that Susannah share the money with her siblings. The problem, though, was that her obligation to comply with his wishes was merely moral, not legal, and the court could do nothing to force her to comply with it. The deceased man gave Susannah instructions, but he did not make her any promise, nor did Susannah make any promise in exchange. There was no deal along the lines of, "I promise to make you the sole beneficiary if you promise in exchange to share the proceeds with your siblings." The deceased man gave Susannah instructions, which did not rise to the level of an enforceable contract.
Cases like this are valuable when you're teaching consideration but they always make me sad, because consideration cases so frequently seem to be about families feuding on a level so rancorous that they turn to the court system. Tough cases to get through.
(Reposted at the front of the blog for deadline day)
From Danielle Hart via the AALS Contracts Listserv:
The 12th International Conference on Contracts is just around the corner and the substantive content of the conference is starting to take shape nicely. Here are some highlights so far:
- Seana Shiffrin, Professor of Philosophy and Pete Kameron Professor of Law and Social Justice at UCLA, will be giving a keynote address currently entitled, “Enhancing Moral Relationships Through Strict Liability”
- A panel of O’Melveny & Myers attorneys will give the second keynote address currently entitled, “Drafting Complex Contracts: Behind the Scenes of the LaGuardia Project”
- There is a sizeable contingent of international contracts scholars joining us in February including, but certainly not limited to:
Mindy Chen-Wishart, the Associate Dean of Taught Graduate Studies at Oxford Law Faculty who also holds a fractional Professorship at the National University of Singapore and a Visiting Professorship at Hong Kong University, and
Eyal Zamir, Augusto Levi Professor of Commercial Law, Hebrew University of Jerusalem Faculty of Law.
- And, of course, there are already some great panels to look forward to that run the gamut from behavioral law and economics to intimate contracts and commodification.
So if you have not done so already, we would like to encourage you to please take advantage of the early bird registration deadline—December 15th (www.swlaw.edu/kconxii)—and to reserve a room at the Omni at your earliest convenience:
Guests may also confirm their reservation at the negotiated rate by calling 1.800.THE.OMNI (843-6664) and referencing the “KCON Conf Southwestern Law School” guestroom block.
If you have any questions or concerns before then, please feel free to get in touch with me, Hila Keren or Dov Waisman at firstname.lastname@example.org. Wishing you all a very good end of the semester!
Danielle Kie Hart