Alito on Contracts
Let’s talk about the really important question with regard to Judge Samuel A. Alito’s nomination to the U.S. Supreme Court: Does he know anything about contract and commercial law? (Photos: Duncan Lock, GNU License; U.S. Court of Appeals Official Photo.)
There’s reason to be dubious — he’s a career government employee, with stints as a deputy solicitor general, deputy attorney general, and U.S. Attorney. That’s all fine, perhaps, if you need to figure out whether, say, lap dancing is “speech” for purposes of the first amendment, but it’s not going to be of much use in interpreting the Carriage of Goods by Sea Act or the CISG.
He also seems to have authored remarkably few contract opinions in his fifteen years on the bench – only half a dozen or so where the predominant issue is contractual. Here they are:
MBIA Ins. Corp. v. Royal Indem. Co., 2005 U.S. App. LEXIS 21392 (3d Cir. Oct. 3, 2005) (Held that an insurance policy that provided that the beneficiary’s right to payment became “unconditional” and “irrevocable” was broad enough to encompas an insurer’s claim of fraud, and that such clauses between sophisticated parties are enforceable.) [Thanks to Jeff Lipshaw (Wake Forest) for bringing this one to our attention; we missed it the first time.]
Masda Corp. v. Empire Comfort Sys., 69 Fed. Appx. 85 (3d Cir. 2003) (Applied Illinois’s rules for contract definiteness pretty strictly in affirming dismissal of a complaint, and holding that no independent action for breach of the covenant of good faith was available.)
Trippe Manufacturing Co. v. Niles Audio Corp., (Holding that the assignee of a contract is bound by the arbitration clause in it, and that the forum selection clause is valid, but only claims arising out of the obligations expressly assumed by the assignee are arbitrable.) [Larry Ribstein on Ideablog found this one, which we had originally missed.]
Lawson v. Fortis Ins. Co., 301 F.3d 159 (3d Cir. 2003) (Interesting discussion interpreting the word “for” in an insurance clause that required treatment “for” a pre-existing condition.)
National Data Payment Sys. v. Meridian Bank, 212 F.3d 849 (3d Cir. 2000) (Held that an explicit duty to use “best efforts” to close a deal does not require that the defendant remind the plaintiff that the closing date is imminent or exert any pressure to get the deal one, and that a voluntary one-day extension of the closing date does not waive the closing date when there is a no-oral-modification clause.)
Pacitti v. Macy’s, 193 F.3d 766 (3d Cir. 1999) (Held that whether a child actress had been promised a role in a Broadway play if she won a contest was one that required factual development and could not be decided on the pleadings.)
Lerman v. Joyce Int’l, 10 F.3d 106 (3d Cir. 1993) (Construed a employee’s severance agreement against the employer, holding that implied duties undertaken by employee were not material and did not justify cutting off severance pay.)
Tigg Corp. v. Dow Corning Corp., 962 F.2d 1119 (3d Cir. 1992) (Reversed an award of lost profits to a seller, because the proper measure of damages was contract price minus market price. Lost profits are available only if the standard remedy is inadequate, and the jury did not make any finding on that issue.)
Nicholas v. Pennsylvania State Univ., 227 F.3d 133 (3d Cir. 2000) (While not really a contract case, the case is of some interest to contracts profs because the court held that tenure at a public university is a contractual right, not a property right for purposes of the U.S. Constitution.)
[Frank Snyder]