Loaded Questions

On April 2, the Institute for Legal Reform released the results of a consumer survey that indicated consumers oppose legislation regulating the use of binding arbitration in consumer disputes (the proposed Arbitration Fairness Act). The telephone poll found that 71 percent of likely voters oppose efforts by Congress to ban arbitration agreements from consumer contracts. 82 percent actually prefer arbitration to litigation as a means to settle a serious dispute with a company. The American Association for Justice says its survey shows the opposite. 81 percent of Americans express disapproval of mandatory binding arbitration. 64 percent of voters favor the legislation, 26 percent oppose it. How can this be?

Here's one of the statements made as part of the American Association for Justice poll:

"As you may know, consumers are sometimes required to sign a contract with a company when they buy certain services or products such as automobiles, cell phones, or nursing home care. Today, these contracts often include a binding arbitration provision, which says that the consumer agrees to have any dispute with the company decided by an independent arbitrator in binding arbitration, rather than by a judge or jury in a civil legal proceeding. Do you approve or disapprove of these binding arbitration provisions in consumer contracts?"

Now here's one from the Institute for Legal Reform poll:

"Now suppose for a moment you had to sign a contract with a company when you purchased their goods or services. If you could choose the method by which any serious dispute would be settled between you and the company, which would you choose? Arbitration, which does not require going to court ...or... Litigation, which does require a lawsuit and going to court. "

Hat tip to Consumer Law and Policy Blog.

Neither statement provides an intelligent person with the information necessary to answer the question. If I ever get a call from a poll taker, I'd want to know what my "right to go to court" costs me in terms of the price I pay for consumer goods and services. I'd ask about the odds for consumers in arbitration vs. judicial resolution of their disputes. I'd want to know what was in it for me — apart from empty rhetoric about my right to "go to court" or vague inferences about the relative "fairness" of arbitration vs. adjudication. And, in the extremely unlikely event that I did not hang up on the poll taker within seconds after he mispronounces my name, I'd resent being used as a tool for others whose stake in the controversy dwarfs that of the average consumer.

Good results for Visa

Despite troubles in the economy and the financial sector generally shares of Visa are up forty-six percent (46%) since going public just two months ago. Quarterly profits for Visa came in at $314 million, or 52 cents a share. Not bad results. The position of Visa and Mastercard is different from Discover and American Express in that the two former companies do not lend money to consumers. Visa and Mastercard only process charges made by companies that use their systems. Since they don’t lend, Visa and Mastercard don’t assume the risk of consumer default during harsh economic times. Instead, that risk is taken by the banks that issue the cards. It would seem that these companies should experience business success so long as people continue to use their credit and debit cards with the Visa and Mastercard label.

For my part, I often find little cash in my wallet. No worries. I know that I will be using the ‘ole debit card to pay for gas, groceries and the like. About half of Visa’s profits come from debit card purchases (a quarter for Mastercard). As payments become increasingly dependent on electronic systems, Mastercard and Visa should continue to do well. Of course, there is that nagging issue of the staggering consumer debt that could dull the continued success of the system operators. The primary issue that comes to my mind, though, is that of the per transactions fees Visa and Mastercard set for merchants and banks that use their systems. Will Visa and Mastercard begin to turn profits that resemble the big oil companies? Should the government regulate the fees set by the system operators?

Although more than twenty countries, including the EU and Australia, have taken up the interchange fee issue in terms of anti-competitive behavior, the issue is not resolved here in the United States. About $30 billion of interchange revenue is at stake according to a recent report by the Kansas City branch of the Federal Reserve Bank. The many lawsuits over the fees have been consolidated before the U.S. District Court of the Eastern District of New York for trial later this year. Moreover, the “Credit Card Fair Fee Act of 2008” is currently pending in Congress. This seems to set up the classic conflict between market forces and regulation. With a recent National Retail Federation report that the interchange fees cost families about $400 per year, I find myself surprisingly drawn to the idea of regulation. Hidden fees always get my ire going. Just something else for me to think over as I pull out my debit card to fill up the gas tank again.

Phishing in International Waters: The New Phace of Organized Crime

The U.S. Justice Department and Romanian authorities announced two federal indictments (C.D. Cal. and D. Conn.) against 38 people who allegedly participated in two international phishing operations with ties to organized crime. The charges include conspiracy to violate the Racketeer Influenced and Corrupt Organizations (RICO) Act, and a host of hacker crimes such as conspiracy in connection with account access devices (credit or debit cards), unauthorized access to a protected computer, bank fraud and aggravated identity theft. U.S. Attorney for C.D. Cal., Thomas O'Brien said experts estimate losses at more than $3 million.

Romanian based "suppliers" phished for and obtained credit and debit card account data and personal information from cardholders by baiting more than 1.3 million e-mails. The "suppliers" sent the data to U.S. based "cashiers" who did the tech work, encoding the account data onto magnetic strips on access devices (including hotel key cards that work nicely for this purpose). "Runners" tested the cards and used the ones that worked to draw cash. U.S. participants took a cut and transferred the balance to the Romanian suppliers.

International organized crime is deep into the world payment system and just about everything else. Last month, U.S. Attorney General Michal Mukasey announced the Justice Department's Law Enforcement Strategy to Combat International Organized Crime . He said that mafia-style organized crime as Attorney General Robert Kennedy saw it in 1961 is a thing of the past. Organized crime is international, but that's not all. "They are more sophisticated, they are richer, they have greater influence over government and political institutions worldwide, and they are savvier about using the latest technology, first to perpetrate and then to cover up their crimes. . . . They touch all sectors of our economy, dealing in everything from cigarettes to oil; clothing to pharmaceuticals. These criminals invest some of the millions they make from illegal activities in the same publicly traded companies as we hold in our pension plans and 401(k)s. They exploit the internet and peddle their scams on eBay, and they're responsible for a significant chunk of the spam email we get."

Leave the gun. Take the cannoli. (Clemenza to Rocco)

Testing Secured Transactions Part II

My exams are all taken and graded now, so I wanted to report back my observations from my earlier post on Testing Secured Transactions. I ended up using a three hour examination with 30 true/false questions and five short answer essays. I actually offered up six short answer essays with the students getting to pick five to answer. The true false questions included all the basics of creating and perfecting security interests and priority. Topics on the short answer essays included: double debtors; new debtors; powers of the bankruptcy trustee; PMSI’s and general collateral descriptions in preexisting financing statements; and priority, proceeds, accounts and chattel paper. I must have had old-time television on my mind, as many of the hypos involved Gilligan's Island, Green Acres and Spiderman. Oh, and a little bit of politics thrown in too. After all, it was the "season" in Pennsylvania as I was drafting this exam.

The exam certainly was hard and rigorous from a time perspective. That said, I am a big believer in law school examinations serving the dual purpose of testing and teaching. I would certainly use this format of examination again. The true false gave me coverage of differing fact patterns, as did the short answer. The students had many situations to contend with, but also had to draft some short essays (typically about a page each) and cite to the appropriate code provisions. As for student performance, with a few exceptions, the students tended to do about the same on each part of the examination. The students who did well on the true/false mostly did about the same on the short answer essay.

Overall, I was also pleased with the quality of the answers given by the students. The rules of double debtors and new debtors probably gave the students the most trouble, but this did not surprise me. I find that the rules of 9-325 and 9-326 are hard for students to grasp (even with the examples in the code). But I did give the students a hint in the review session that these rules might appear on the examination. The next time I teach Secured Transactions, I will be mindful of my approach on these issues to see if there are better ways to make this easier for the students. With this exception, though, I am confident that the students do understand the basics of Article 9.

Most of my students this year will be taking the bar examination in Pennsylvania where Article 9 is no longer on the bar exam. But as these issues come up routinely in practice, the examinations give me confidence that they will be able to solve these issues when they arise. I would use this format of examination again, though it was a close call to pair multiple-choice with a long format traditional essay. I hope that you all had a good semester and have your grading done (or at least almost).

Awarding attorney’s fees (at least in Texas)

Normally, I tell students that it would be unusual to collect attorney’s fees in an Article 2 sales case (and maybe in contracts cases generally). Well, perhaps I might need to rethink my pitch on this. In the recent case of Medical City Dallas, Ltd. v. Carlisle Corp., the Texas Supreme Court upheld an award of $121,277 in attorney’s fees and $110,449 in damages in a breach of warranty case based on a written contract. The case involved a simple roofing job gone-bad where the roof was warranted for twenty years, but leaked within five years and thereafter with some regularity. The Court concluded (I think correctly) that 2-715 consequential damages generally would not include a buyer’s claim of attorney fees. But, thanks to Texas Civil Practice and Remedies Code section 38.001(8), which allows attorney’s fees in cases based on an oral or written contract, this is not the end of this matter.

The Court acknowledged that breach of warranty and breach of contract are separate causes of action with separate remedies, but that observed that breach of warranty is in essence founded on contract. Therefore, the Court settled the issue in Texas by allowing an award of attorney’s fees to the buyer for the defective roof. Having practiced in Texas, the state’s law is filled with many curiosities. I agree with the Court’s conclusion that breach of warranty is founded on contract. As such, it would be in the letter of the Texas statute allowing attorney’s fees in such cases. Yet, access to attorney’s fees in sales cases is a powerful consumer right. I often tell students that many cases involving defective goods are not litigated because the cost of litigation far exceeds the cost of the defective goods. Even in the Medical City Dallas case, the attorney’s fees exceeded the actual damages. If this bothers you, you are not alone. The risk of misuse here would seem to be high.

So, Why the Disconnect?

To date, five states — Florida, Kentucky, Louisiana, South Dakota, and Vermont — have enacted Revised UCC Article 1 without enacting Revised Article 7, while two states — Maryland and Mississippi — have enacted Revised Article 7 without enacting Revised Article 1. (While Tennessee technically falls into this latter group, I am excluding it because both houses of the Tennessee legislature recently passed a Revised Article 1 bill and I have no reason to believe that Governor Phil Bredesen will not sign it in short order.) Why?

Louisiana's failure to enact Revised Article 7 might be explained by some eccentricity of the Louisiana Civil Code's treatment of documents of title. But, why have Florida, Kentucky, South Dakota, and Vermont revised their versions of Article 1 while retaining (conforming amendments excepted) their pre-2003 versions of Article 7; and, why have Maryland and Mississippi revised their versions of Article 7 while retaining (conforming amendments again excepted) their pre-2001 versions of Article 1?

Inquiring minds want to know.

What About Revised Article 7?

To finishing following up on Robyn Meadows's earlier post, when Governor Edward Rendell signed Pennsylvania HB 1152 into law on April 16, Pennsylvania became the twenty-ninth state to enact Revised UCC Article 7 — joining Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Rhode Island, Texas, Utah, Virginia, and West Virginia. Nine days later, Governor Phil Bredesen added his signature to Tennessee HB 3950, bringing the number of enacting states to thirty.

Elsewhere, on April 9, the Illinois Senate unanimously passed SB 2080 — which, as has been true in a number of states (including Pennsylvania, but not Tennessee) proposes enacting both Revised Article 1 and Revised Article 7. The bill now awaits a first reading in the Illinois House, which stands in recess until April 29. Massachusetts HB 4302, likewise, combines Revised Articles 1 & 7. As detailed in my white paper on Revised Article 1, HB 4302 has a tortured history and appears to stand little chance of enactment any time soon.

All of the enacted versions of Revised Article 7 are in effect except for Pennsylvania's, which should take effect on or about June 15, and Kansas's and Tennessee's, which will take effect on July 1. If enacted, Illinois SB 2080 will take effect on or after June 1.

Upcoming Conferences of Interest

Three conferences next month may be of interest to some of our faithful readers. I know they all interest me. I also know that, by the time I get home from the first of the three, I will have been out of town four of the last five weekends and would risk serious marital discord by attending either of the latter two. But, don't let that stop you from attending.

First up, chronologically, is "A Debtor World: Interdisciplinary Academic Symposium on Debt," May 2 & 3 at The University of Illinois College of Law, which is co-sponsoring with the American Bankruptcy Institute. The conference's self-stated goal is to "explore debt as neither a problem nor solution but as a phenomenon. Many different academic disciplines can make important contributions to help us understand why consumers and businesses decide to borrow money, what happens to businesses and consumers under a heavy debt load, and what norms and institutions societies need to encourage the efficient use of debt. Much of this knowledge is compartmentalized into intellectual silos that are rarely cross-fertilized. The goal of the conference is to promote the sharing of this knowledge." The line-up of speakers is eclectic and impressive and the conference promises to be time well spent. Conference registration is still open; however, the conference-rate block of hotel rooms may well be gone.

On May 22 & 23, the University of Houston Law Center's Center for Consumer Law, under the direction of our friend Richard Alderman, presents "Teaching Consumer Law: The Who, What, Where, Why, When and How." The conference faculty includes academics, advocates, and practitioners from the U.S. and several foreign countries and the program appears designed to appeal to attendees with varying degrees of experience and expertise in consumer law and in related areas of substantive law that have substantial consumer dimensions to them (e.g., bankruptcy, sales, payments). In addition to the inherent pleasure of spending two glorious May days in my hometown, conference attendees will be feted to Texas-style Bar-B-Q (known elsewhere as barbecue) and, for a nominal charge, a Houston Astros home game at lovely Minute Maid Park (formerly known as Enron Field and the Ballpark at Union Station). Conference and hotel registration are still open, as of this posting.

Rounding out the month, on May 30 & 31, Emory University School of Law's Center for Transactional Law and Practice hosts "Teaching Drafting and Transactional Skills: The Basics and Beyond." With panels geared toward both neophytes teaching courses that are ripe for infusing drafting and other transactional skills and those already teaching drafting and other transactional skills in their courses who are looking for fresh ideas, "[t]his conference offers those who teach drafting and transactional skills the knowledge and tools they need to comprehensively train students who are studying these areas of law" and "those at the forefront of developing these new courses a forum in which to exchange ideas about teaching, and promoting the teaching of, transactional law and skills." Among an excellent group of speakers is our friend and colleague Scott Burnham, whose book, Drafting and Analyzing Contracts (LexisNexis 3d ed. 2003), is a must-read and who is a most excellent house- and office-guest. Conference registration is open, as of this posting. Attendees are responsible for their own accommodations. For those who want to compare Texas-style Bar-B-Q to Carolina-style barbecue, at the far end of the Emory campus is a wonderful place called Dusty's. It's worth a visit if for no other reason than to buy some sauce to take back home with you.

The (Next to) Last Shall be (Among the) First

For several years now, those of us who teach UCC Articles 3 and 4 have had to caution our students that New York (the financial and commercial capital of the Western hemisphere) and South Carolina (home to many fine golf courses) had not adopted the 1990 revisions of Article 3 and 4, on which most payments teaching materials focus much of their attention. More recently, we have had to decide how much emphasis to give the 2002 amendments to Article 3 and 4 -- which, until April 15, only five states (Arkansas, Kentucky, Minnesota, Nevada, and Texas) had enacted.

But, wait! In the spirit of Matthew 20:16 (it seems only fair, being Sunday morning and all), South Carolina has vaulted from the rear of the peloton to the lead group. By affixing his signature to SB 936 on April 15, Governor Mark Sanford made law a sweeping revision of South Carolina's Articles 3 and 4 that has the effect of enacting the 1990 revisions as amended by the 2002 amendments.

Meanwhile, New York SB 2410 proposes comparably sweeping changes to New York's versions of Article 3 and 4. However, SB 4120 does not appear to be making any progress since first being referred to the Senate Judiciary Committee in March 2007 (not a typo).

Vermont and Pennsylvania Enact Revised Article 1; Tennessee and Illinois Progress Toward Enactment

Governor Jim Douglas signed Vermont HB 563 into law on April 10. Governor Ed Rendell did likewise to Pennsylvania HB 1152 on April 16. Pennsylvania HB 1152, by its terms, takes effect on or about June 15, 2008. Vermont HB 563, along with Kansas SB 183 (enacted last year) and South Dakota SB 93 (enacted earlier this year), will take effect on July 1, 2008.

Vermont HB 563 and Pennsylvania HB 1152 both eschew uniform R1-301 (making it 0-for-32 for those scoring at home) and adopt the uniform R1-201(b)(20) good faith definition (that tally now stands at 23-to-9 in favor of the new unitary standard).

Elsewhere:

The Tennessee Senate and House have approved slightly different versions of Tennessee SB 3993. The Tennessee Senate is scheduled to vote next Monday (April 21) whether to accept the House's amended version.

The Illinois Senate has unanimously approved Illinois SB 2080, which now awaits a first reading in the Illinois House.

Massachusetts HB 4302 continues to idle.

The bills pending in Tennessee, Illinois, and Massachusetts all reject uniform R1-301. The Massachusetts bill adopts the uniform R1-201(b)(20) good faith definition, while the bills pending in Tennessee and Illinois retain the bifurcated good faith standard currently in effect by replacing the language of uniform R1-201(b)(20) with "honesty in fact in the conduct or transaction concerned."

The Risk of Buying a Boat Off-Season

In the recent case of First Nat. Bank of Litchfield v. Miller, the Connecticut Supreme Court considered whether the Millers accepted a Donzi Z20 boat they purchased for purposes of 2-606. The Millers paid a deposit and executed a purchase agreement on April 30 when the weather was still far too cold for boating in New England and they could not take the boat out into the water. The agreement provided that title and ownership would not transfer until the full purchase price was paid and that delivery would not occur until May 20. The May 12 retail installment contract, though, recited that the seller had delivered the boat to the Millers who had accepted the boat (even though no delivery had in fact occurred), but this representation was in provisions agreed to by the seller and financing company. The seller did not have the boat ready for delivery until May 27 and even then during a test-ride with the Millers there were some mechanical problems. When the Millers sent the seller a letter rejecting the boat and refusing to pay the lender, the lender brought suit.

Reversing the appellate court, the Connecticut Supreme Court found that the Miller’s accepted the boat for two reasons: (1) that the purchase agreement and retail installment forms signed by the Millers stated that they had inspected the boat and were satisfied with it, constituting acceptance under 2-606(1)(a); and (2) that the act of signing an application for a temporary registration for the boat constituted an act inconsistent with the seller’s ownership under 2-606(1)(c). The Court observed that the circumstances of the transaction were key to the issue of acceptance:

The Millers did not purchase any vehicle. They purchased a boat during spring in New England. The trial court particularly found that it is not uncommon for buyers to purchase a boat during the off season, deferring delivery until later. Presumably, buyers who wish to take a boat for a test ride prior to accepting delivery will wait until the weather permits that form of inspection before signing contracts in which they represent that they have inspected the boat and found it satisfactory, and before having the boat customized to suit their needs. Buyers who do not wait until warmer weather permits a test ride essentially have weighed the advantages of a more thorough inspection versus the instant satisfaction of purchasing the boat immediately, and relying on a less reliable means of inspection, and opted for the latter.

The Court’s conclusions on the workings of 2–606(1)(a) seem to be against precedent and detrimental to the rights of consumers making purchases on forms prepared by sellers. Before reading this case, I would have told my students that it is a generally accepted principle that seller forms reciting that goods are “accepted” are not effective under 2-606 unless there was a sufficient opportunity for a buyer to perform more than a cursory inspection of the goods. Regarding the buyer’s right to inspection of goods, comment 8 to 2-513 provides that inspection is not regarded as a condition to the passing of title. Comment 9 further explains that inspection is the buyer’s “check-up” to see if the goods are conforming and should not be confused with an “examination” of goods at the time of contracting.

The Miller’s examination of the boat in April would seem to be the type of “examination” at the time of contracting that the code contemplates, rather than an inspection. Moreover, a boat that can only be inspected during the winter while out of the water would not seem to amount to more than a cursory inspection. As such, the Millers would have at least until the test ride with the seller on May 27 to accept or reject the boat (and perhaps longer). It seems a curious proposition to deem acceptance at the date of purchase (or payment) when the parties clearly contemplated a test drive later when the weather warmed up in Connecticut. Similarly, it would not seem that merely signing an application for temporary registration presented by the seller would constitute acceptance either. Car dealerships also have consumers sign temporary registrations, but I would not think that this would be acceptance under 2-606 either.

So, the aspect of this case that remains for me here is the Court’s observation that a boat purchased during winter in New England somehow is special. I have doubts about this reasoning. Nevertheless, buyer’s would be wise to exercise caution when purchasing boats during wintertime in Connecticut. I wonder if this decision will put a damper on off-season boat sales?

Classification of "Financial Services"

The term "financial services" refers to an assortment of institutions that provide the means for people to save for the future, hedge against risks, acquire capital for consumption and organize capital for investment. Actors who undertake this intermediation function facilitate social gains from trade.

The The Department of the Treasury Blueprint of A Modernized Financial Regulatory Structure (March 2008) makes a provocative observation about the "financial services" sector and the term itself. Our current regulatory structure organizes financial services institutions into legally distinct categories, (e.g., commercial banks, other insured depository institutions, insurers, companies engaged in securities and futures transactions, finance companies, and specialized governmental companies such as Freddie Mac and Fannie Mae). These categories in part reflect distinctions in the way these actors function as capital intermediaries. In ways we hardly notice, however, the legal categories both reflect and entrench distinctions that regulation, not function, makes important.

For example, we perceive a legal difference between a commercial bank and an "other depositary institution" because the law that regulates commercial banks is different than that which regulates other depositary institutions. To accommodate the regulatory difference, we invent and deploy different words to describe the differently regulated actors. The most famous example of this may be the "non-bank bank" a term coined in the 1980's for a financial institution that did not meet the regulatory definition of a "commercial bank" and thus avoided the prohibition against interstate banking for commercial banks. The words we use to describe and importantly to think about "financial services" institutions make non-functional distinctions important.

The Blueprint proposes a new regulatory regime for intermediaries in which non-functional regulatory distinctions give way to functional ones. It opens a discussion on the possibility and realization of optimal regulation free of the restraint the current regulatory classification system imposes.

The proposal is both thrilling and terrifying. Mastery of the elaborate financial services classification system, like its biological counterpart, is not cheaply acquired or easily relinquished. For those players who have invested in manipulating the present regime to their advantage, the prospect of change threatens their return. The Blueprint invites financial services lawyers (and others who might be) to abandon the old vocabulary and embrace and create a new legal field that as yet has no name.

Revised Articles 1 & 7 in Pennsylvania

The bill to adopt revised Articles 1 and 7 that had been stalled in the Pennsylvania Senate was unanimously passed by the Senate on April 8 and now heads to Gov. Ed Rendell's desk for signature. I'm sure this Blog's own Keith Rowley will give us a complete update when the bill is finally signed into law. Pennsylvania joins the majority of states that have enacted Revised Article 1 in adopting the uniform definition of good faith for all articles except Article 5, honesty in fact and the observance of reasonable commercial standards of fair dealing.

Testing Secured Transactions

When I went to Vanderbilt law school some years ago, I had Professor Margaret Howard for Secured Transactions. Professor Howard gave us a multiple choice final examination that I recall had elements of short answer format as well. When I’ve taught Secured Transactions in the past, I’ve nearly always given the traditional long format essay exam. But, I’ve not taught Secured Transactions in a few years, so I am revisiting this as I am thinking about this Spring’s rapidly approaching exam. I am leaning toward using a short answer examination for Secured Transactions.

Of course, what do lawyers really need to know about U.C.C. Article 9? Not that they haven’t been taught a great deal in class, but testing forces professors and students alike to give thought to focusing on key issues. It would seem at the least that students must understand the basics of classifying collateral, creating a security interest, perfecting the security interest and sorting out priorities. But then, there are plenty of other good things to learn as well. Should students really know how the “rebuttable presumption” test works for non-complying sales? What should they know about the treatment of inventory that is leased to a lessee where the lessor’s lender has a security interest in the collateral?

Lynn Daggett’s recent article All of the Above: Computerized Exam Scoring of Mulitple Choice Items Helps To: (A) Show How Exam Items Worked Technically, (B) Maximize Exam Fairness, (C) Justly Assign Letter Grades, and (D) Provide Feedback on Student Learning in the recent volume of the Journal of Legal Education makes the pitch for multiple choice generally, but not in the context of commercial law. The most persuasive argument is the ability to have data showing areas where students either mastered the material (or didn’t). Kenney Hegland’s 2006 article On Essay Exams also in the Journal of Legal Education takes the opposite stance. Hegland makes a pretty good case that exams not only evaluate, but also teach. This, of course, is better done with essay format.

The merits of both Daggett’s and Hegland’s arguments are easy to see, but are there reasons to prefer one over the other for commercial law? With the breadth of code provisions, it is tempting to use multiple choice questions in commercial law. In fact, I have used a partial multiple choice format when teaching Sales. But even in this class, I share Hegland’s desire to teach and a general commitment to having students carefully work analysis. The breadth of issues with Secured Transactions would make it easy to weave a single long fact pattern of a transaction in its entirety from the creation of the security interest to default and repossession by a lender. There would certainly be plenty for all students to write about in such a case. But, I find myself drawn to a format that might use the same transaction in a format that breaks it down to shorter 20-30 minute segments. This approach, I believe, would require students that might otherwise skip over difficult code issues to have to take them up because they are set out as separate grading items. There is also a greater potential for using variations on the fact patterns with this format, which is especially helpful for drawing out code nuances. Like Daggett, I like knowing which areas of Article 9 the students had more difficulty with on the examination. But, I am not quite willing to commit to giving the students a pass on explaining their analysis.

For any of you also mulling this over, several other articles that you might want to look at (though not specifically about commercial law) are:

Steven Friedland, A Critical Inquiry into the Traditional Uses of Law School Evaluation, 23 Pace L. Rev. 147, 174-79 (2002);

Linda R. Crane, Grading Law School Examinations: Making a Case for Objective Exams to Cure What Ails “Objectified” Exams, 34 New. Eng. L. Rev. 785 (2000);

Marcella David, A Funny Thing Happened on the Way to the Multiple-Choice Exam: Or, The Schoolroom Lessons from Bush v. Gore, 51 J. Legal Educ. 1 (2001);

Steve Sheppard, An Informal History of How Law Schools Evaluate Students, With a Predictable Emphasis on Law School Final Exams, 65 UMKC L.Rev. 657, 665-88 (1997).

An update on the coffee

Maybe it’s our never-ending need for more caffeine (or at least mine) . . . . Despite the complaints about the quality of coffee that spurred the recent Starbuck’s retooling and the “perfect coffee pledge,” Starbucks came in at #7 on Fortune’s list of Best Companies to Work For. Paid sabbaticals, on-site child care and fitness centers and health care caught my eye as some of the “perks” of working at Starbucks. This week, though, Starbucks suffered a setback with a California decision requiring the company to repay more than $100 million in tips back to the baristas due to state law violations from the company’s practice of allowing supervisors to share in employee tips. Kind of puts a damper on the good place to work recognition.

Well, back to the java. Interestingly, Starbucks seems to be sticking to the quality control issue and is adopting new automatic espresso machines designed to leave less error in the puling of the shots and steaming milk. The company is also returning to grinding beans at the stores, rather than using pre-ground bags of coffee. I’m not sure that this all will lead them to increased sales and business success, but it does show company commitment to make the “best” coffee a reality. The problem with the perfect coffee pledge to me, though, still remains. Starbucks has set consumer expectations high, but their ability to convert on their pledge of quality coffee rests with the employees in the stores. That is where the tension between being a great place to work and discontent over the tipping policy may affect whether the baristas ultimately “make it right.”

All of this serves as a reminder that companies which make express warranties regarding the quality of their products may be heavily dependent on their employees to really come through. This would seem to be especially true where the sale involves a mixed goods and services transaction. As to Starbucks, the dependence and ultimate fulfillment of warranty conditions (if the perfect coffee pledge is more than puffery) will require employee dedication to ensure quality coffees. When I went to the Starbucks website, the company’s statement concerning the tipping issue was prominent on the website. That struck me immediately, but upon reflection Starbucks really must tackle this issue that could threaten quality. Although the statement now appears on a less prominent company page, the tipping issue reflects the delicate balance that companies must achieve between satisfaction of warranties of quality and employee relations.

Is the CISG is a self-executing treaty?

On today's ContractsProf Blog, there are interesting comments on whether CISG is a self-executing treaty under the Supreme Court's recent ruling in Medellin v. Texas, with Prof. Michael Van Alstine of Maryland opining that it is and Prof. Michael Zimmer of Seton Hall unpersuaded that a court would necessarily so find. The concern of contracts and commercial law scholars is that if CISG is not held to be a self-executing treaty, state courts may be free to refuse to follow CISG in international sales disputes litigated in state courts.

Got Wheels?

For those who might be lucky enough to be vacationing soon . . . Irma Russell’s recent article Got Wheels?: Article 2A, Standardize Rental Car Terms, Rational Inaction, and Unilateral Private Ordering might be a worthy read. The piece takes a good stab at the issue of adhesion contracts—a popular complaint here recently—in the context of car rentals. Her study compared the terms and conditions of rental agreements and pricing information available to consumers pre-lease, often available to Irma in the oft-seen flimsy paper of the 8-point variety. Not surprisingly, the terms (which heavily favor the rental companies) are offered on a take-it-or-leave-it basis and Irma was met with laughter from one company in response to her request to vary the standard rental terms.

Irma’s observation about lack of consumer preferences on these types of terms strikes at the heart of the debate. It seems like an unfortunate state of affairs that consumers have little bargaining room in these types of transactions. That said, unless severe overreaching occurs, I tend not to question the terms offered and go on my way. In fact, the faster that Hertz gets me in the car and on my way, the happier I tend to be. Consumer inaction strikes again.

What's In a Name?

On March 13, 2008, the Nebraska Legislature passed LB 851 and it is now awaiting the Governor’s signature. If signed, the new law will take effect three months after the legislature adjourns (the legislature is currently slated to adjourn on April 17, 2008) and will have a significant impact for those who conduct UCC searches on individual debtor names in the state.

The bill amends § 9-506(c) so that a financing statement is sufficient for an individual name if a search on just the correct last name of the individual would disclose the record. The effect of this legislation will be to make the first and middle names of individuals irrelevant to the efficacy of a financing statement. That in turn will increase the due diligence burden for searchers. In short, searchers will have to review every financing statement that provides the same last name as the individual name searched. This could be a large task.

For example, a UCC search of the individual last name “Johnson” on the Nebraska Secretary of State’s web site produces 2671 unique active records. For a searcher interested in the property of any one of them, each of those filings would have to be reviewed. This would seem to significantly add to the cost associated with using the filing system, something that would seem undesirable in this time of tight credit.

The problems associated with filing and searching against individual debtors has frequently been the subject of long trains of postings on the UCC listserv. Texas has already enacted a non-uniform rule to deal with the preceived problem and now Nebraska is poised to adopt a different approach. The ALI and NCCUSL are in the process of establishing an Article 9 Review Committee to discuss issues that have arisen and formulate proposals (but not to do actual drafting). I hope the remaining 48 states refrain from adopting any more non-uniform approaches -- especially not Nebraska's approach -- to this issue until that Committee has the opportunity to address the matter.

Update on Dragnet Clauses

Courts are continuing to split on the efficacy of dragnet clauses in consumer transactions. Some courts give effect to such clauses, see In re Shemwell, 378 B.R. 166 (Bankr. W.D. Ky. 2007) (dragnet clause in open-ended line of credit granted to consumer is enforceable, and thus collateral secures all obligations of the consumer to the creditor); In re Nagata, 2006 WL 2131318 (Bankr. D. Haw. 2006) (credit card agreement, which provided for debt to be secured by all collateral provided for other loans made to the debtors, was secured by cars which debtor later refinanced, even though debtors had paid off the car loans); In re Franklin, 343 B.R. 815 (Bankr. N.D.W. Va. 2006) (enforcing a future advances clause in a consumer loan transaction without discussing the purpose of the future advance or how related it may be to the original loans). However, about an equal number do not. See Wooding v. Cinfed Employees Credit Union, 872 N.E.2d 959 (Ohio Ct. App. 2007) (although auto loan agreement provided that car would secure all obligations the borrower owed to the lender, nothing specifically indicated that the car would secure the borrower’s credit card account obligations and thus there was "no meeting of the minds with respect to the cross-collateralization of the automobile"); In re Yelverton, 2007 WL 841393 (Bankr. M.D. Ala. 2007) (neither first loan agreement, which included a clause indicating that collateral securing other loans also secures this one, nor second loan agreement, which included a clause purporting to make the collateral secure all other debts of the borrowers, was adequate to make the collateral granted in the second agreement secure the debt created in the first).

The most recent decision on this point is In re Keeton, 2008 WL 686938 (Bankr. M.D. Ala. 2008) (dragnet clause in security agreement with joint debtors did not clearly encompass obligations later incurred by only one of them, and thus the collateral did not secure those individual obligations). Decisions such as this are lamentable. They are a judicial invention that implicitly treats secured transactions as if they were governed by the common law, rather than a fairly detailed legislative code. Beyond that, they are expressly rejected in the comment to revised Article 9. See 9-204 comment 5 . More important, the requirement that the advances be of a similar kind is inconsistent with its own underlying rationale. In an effort to ensure that the debtor has truly consented to secured treatment of the future advance, courts refuse to enforce the parties’ agreement as written – which is the best evidence of their intent. Moreover, in the process, they relegate the unquestioned intent of the secured party to an irrelevancy. Most significantly, there is really no way to draft around the rule to ensure that all future advances will be covered, even if that is the true intent of both parties and even though the rule is ostensibly designed to give effect to their (or at least the debtor’s) intent.

Spring Submissions of Commercial Law Scholarship

It’s the season for spring law review submissions. The season, and my own submission of “Impracticability Under the U.C.C. for Wartime Contracts” via ExpressO yesterday, had me recalling Larry Garvin’s “The Strange Death of Academic Commercial Law.” Larry argues that there has been a decline in the area of commercial law in terms of faculty numbers, courses taught and scholarship produced. Larry observes that “[m]any issues of the Current Index of Legal Periodicals have nothing in commercial law, or nothing other than perhaps a student note or a survey of state law.” Larry (I think correctly) argues that the status of commercial law is tied to the quantity and quality of scholarship produced. For the three year period ending 2005, Larry’s study found just 219 articles on commercial law (criminal law in the same period had 1415 articles). And, this number itself may be inflated due to inclusion of non-academic articles. So, he portrays a dim look at the quantity of scholarship we in commercial law are producing. Not to say we aren’t writing at all. Perhaps we are writing about other issues? Even if the number of faculty in commercial law has declined, perhaps those in commercial law might assume some responsibility here to make sure that they are teaching and publishing in the area. A constitutional law faculty member once told me not to write in the area because there was nothing to say. To this, I disagree. The area is active and the diversity of posts just on this blog suggests that the topics worthy of discussion are many

But . . . placement matters too. Not only does Larry’s essay tell a grim tale of the number of articles as a whole, but the study found no articles in the top ten journals for 2004-05 and only 2 in the same period for the top sixteen journals. I find myself asking whether there is a corollary between the secondary position of commercial law in the curriculum of some law schools and the lesser placement of scholarly commercial law articles. Jim's post about teaching commercial law is ultimately related to issues of scholarship as well. Students who don’t have an opportunity to take, learn and appreciate commercial law are the same ones who make publication decisions for the reviews. If some view the study as one that is only encouraged because it is necessary, the same would appear true of scholarship. It seems to be a problem that will perpetuate itself without law review editors being bold enough to publish work that falls outside some of the typical parameters (high citation counts and former placements). And, again, if there aren’t plenty of submissions of commercial law papers to the law reviews, it becomes an anomaly for the editors to see such things.

Agree or not with Larry’s findings. The status of commercial law does depend on what we do and how engaged we are with our field. I, like many others, will wait out the next few weeks to see what becomes of my manuscript. Wherever it ends up, I will continue to write in the area. There is always hope that the more pieces the law review editors see on their desk with “U.C.C.” lurking somewhere in the title, abstract or first page, the more likely that the status of the scholarship will gain a greater sense of appreciation. It will be worth seeing how the March submission cycle treats commercial law authors. Best to all in this season.

Perspectives on the Uniform Commercial Code

Recently, the Harvard Law Review's publications section reviewed Doug Litowitz' new student reader on commercial law, Perspectives on the Uniform Commercial Code, which is now in a second edition. According to the review, Litowitz' book contains “discussions relating the UCC’s drafting and enactment history; debates over the methodology, interpretation, and wisdom of the UCC’s nationalization of commercial law; insightful commentary about the contested nature of commercial property and the politics and adequacy of the UCC’s amendment procedure; and excerpts from cutting-edge UCC scholarship.”

In an email to me, Doug mentioned: "The purpose of the book was to change the way that commercial law is taught. In addition to the standard casebook and statutory supplement, I wanted to provide students with readings on the history, interpretation, and politics of the UCC." Now that’s a lot in one book.

Given Jim's post about teaching commercial law and Marie's on Teaching Commercial Law II , the broad based approach that Doug is trying to achieve has some attactiveness. Not only do students need critical statute reading and interpretative skills, but also an understanding of the methodology behind the sections, including the drafting history. I agree to a limited extent with Joe S. that the U.C.C. may have a different drafting practice than, for instance, an environmental statute. Yet, I find that students have difficulty with statutes of any kind and that the U.C.C. with its comments and history makes it a particularly good vehicle for students embarking on the study of critical statutory skills. The U.C.C. also has many sublties that make it interesting for those of us who study it long term. Perhaps my bias as a commercial law professor finds me agreeing with Marie Reilly that the study is not at all like broccoli (though I must admit that I have an affinity for that too). To me, I think the study is more like the flavor of a glass of Châteauneuf du Pape. The importance of the blend of skills that the study offers is a good part of what makes the practice of law intriguing. I certainly offer my best to Doug for his new edition.

It's Important to Know [to] Whom to [En]Trust

Trusting, or more precisely entrusting to, the wrong person can be a multi-million dollar mistake. A Swedish art collector learned this hard lesson from Article 2, in particular, UCC section 2-403(2). Kerstin Lindholm owned the Red Elvis (the Warhol work of art not Dean Reed, the American Soviet superstar dubbed by the press as “the Red Elvis”). Lindholm had used a reputable Swedish art dealer in various transactions, including organizing the loan of the Red Elvis to the Guggenheim Museum in New York. The dealer represented to an experienced American art collector, and member of the Guggenheim board, that he owned the Red Elvis, having purchased it from Lindholm and arranged to sell it to the collector with delivery from a bonded Danish warehouse. The dealer represented to Lindholm that the Red Elvis was going from the Guggenheim to a Danish museum exhibit. Lindholm authorized the Guggenheim to release the Red Elvis to the dealer’s custody, and that’s where her problem arose. When the painting was released to the dealer, he diverted it to the Danish warehouse and consummated the sale to the collector. Lindholm first learned of the sale when she herself sought to sell the Red Elvis for $4.6 million. She then sued to recover the work from the collector.

By giving the dealer control over the Red Elvis, Lindholm had entrusted the work to the dealer sufficient to implicate UCC section 2-403. Through the entrustment, the dealer acquired the power to transfer Lindholm’s ownership to a buyer in the ordinary course of business. The question the court confronted in Lindholm v. Brant, 925 A.2d 1048 (Conn. 2007) was whether the experienced art collector was a buyer in the ordinary course of business. Prior to the sale, the collector’s attorney did a search of the international database on lost and stolen works of art and found no claims against the Red Elvis, but opined to the collector that this provided only “minimal assurances” of good title. The collector, concerned about potential claims against the work from Lindholm’s former husband, requested documentary evidence of the dealer’s ownership. The dealer refused on the basis that providing such evidence was not customary in the art trade. Despite the dealer’s refusal, the collector proceeded with the sale. Finding that the collector had acted consistent with the practices in the art trade, even if those practices seemed unreasonable to the court, the court found the collector was a buyer in the ordinary course of business and therefore, the owner of the Red Elvis.

South Dakota Makes 30

By affixing his signature to SB 93 on March 13, 2008, Governor Mike Rounds made South Dakota the thirtieth state to enact Revised Article 1. South Dakota's enactment, along with Kansas's (enacted last year), will take effect on July 1, 2008.

SB 93, like the versions of Revised Article 1 enacted in Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Rhode Island, Texas, Utah, Virginia, and West Virginia, rejects uniform R1-301. (To date, only the U.S. Virgin Islands has adopted uniform R1-301.)

SB 93, like the versions of Revised Article 1 enacted in Arkansas, California, Colorado, Connecticut, Delaware, Florida, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Montana, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Texas, and West Virginia, adopts uniform R1-201(b)(20)'s definition of "good faith." By contrast, Alabama, Arizona, Hawaii, Idaho, Indiana, Nebraska, Rhode Island, Utah, and Virginia retained the pre-R1 “honesty in fact in the conduct or transaction concerned” definition in Article 1 and left 2-103(1)(b) & 2A-103(3) unchanged.

The bills currently pending in Massachusetts, Pennsylvania, Tennessee, and Vermont (see my February 28 post) do not appear to be making much progress.

Relational Contracts and Modifications

So many businesses pursue long-term relationships for supply of products. A relational contract is generally thought of as an agreement of an ongoing nature between two or more parties that the parties modify to address changing business needs. U.C.C. section 2-209(2) expressly recognizes the enforceability of a contractual clause prohibiting subsequent oral modification. Recognizing the need for flexibility in commercial transactions that underlies the policy of the U.C.C., section 2-209(4) acknowledges that the parties may waive such a clause. Businesses often use the no-modification clauses as a matter of stock-terms and conditions. Yet, business practice may suggest that the parties actually desire more flexibility in their day-to-day dealings. The question becomes how much flexibility in defining the scope of the relationship do parties to formal agreements really desire in fact, especially in the face of a no-modification contract clause?

The tension between relational contracting and firm contract terms came up recently In Italverde Trading, Inc. v. Four Bills of Lading Numbered LRNNN 120950, LRNNN 122950, LRNN 123580, and MLSNV 254064, 485 F. Supp. 2d 187 (E.D.N.Y. 2007). After a freight forwarder seized a shipment of pasta in payment of a debt, the pasta manufacturer, Delverde SpA (“Delverde”), sought to establish that title to the pasta passed to the buyer, Italverde Trading, Inc. (“Italverde”), upon delivery to the shipper. The parties to the pasta sales agreement had a no modifications clause in their sales contract. The contract between Delverde and Italverde provided that Italverde would not gain title to the pasta until Italverde received the pasta in the United States, but Italverde argued that the parties waived this provision. First, the Delverde shipping invoices used the delivery term “CIF.” Ultimately, the court found this evidence inconclusive since the effect of the CIF term would depend on whether the parties understood the term as being used under the INCOTERMS, which does not govern title, or the U.C.C. section 2-320, which would. Second, the Italverde CEO testified that he understood that Italverde had title to the pasta when it was positioned on the ship. The court concluded that the inclusion of the CIF term on invoices, the lack of objection by Italverde and the testimony of the Italverde CEO were insufficient to establish as a matter of law that the parties had waived the no oral modifications provisions regarding title to the pasta. At trial, Italverde and Delverde would have the burden of proof to show the parties waived the transfer of title provision from the contract.

Perhaps this argument was created just to avoid the loss of the pasta to freight forwarder. But, on the other hand, title and risk of loss issues are often important to parties involved in shipping. If Deverde and Italverde did in fact change the contract’s title provisions through practice developed over time, as we might expect in a relational contract, then denial of the change undermines the intention of the parties. The common inclusion of non-modifications clauses as boilerplate in contracts may turn out to be a pitfall to parties to longer term contracts who often leave some of their contract terms behind as their business develops.