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No, That’s Not Anticipatory Repudiation
February 15, 2017
Plaintiff sued Defendant for breach of contract, alleging a failure to deliver Defendant’s 2010 cotton crop to Plaintiff. Defendant contended that an anticipatory repudiation occurred. The Fifth Circuit reminded that the proposal of new contract terms, absent a statement of intent not to perform the present contract, does not create an anticipatory repudiation. As a counterpoint, the Court cited a Texas appellate case in which the appellant not only proposed new terms, but also “‘definitely...
February 15, 2017
Plaintiff sued Defendant for breach of contract, alleging a failure to deliver Defendant’s 2010 cotton crop to Plaintiff. Defendant contended that an anticipatory repudiation occurred. The Fifth Circuit reminded that the proposal of new contract terms, absent a statement of intent not to perform the present contract, does not create an anticipatory repudiation. As a counterpoint, the Court cited a Texas appellate case in which the appellant not only proposed new terms, but also “‘definitely...
Texas: Trial Court Did Not Abuse Discretion in Denying Motion to Strike
February 15, 2017
In Didmon v. American Arbitration Association, Inc. et al., the First Court of Appeals held that the trial court correctly...
February 15, 2017
In Didmon v. American Arbitration Association, Inc. et al., the First Court of Appeals held that the trial court correctly...
Leading People Too Smart to Be Led
February 14, 2017
I wanted to know how Krakauer leads a wildly creative, highly effective organization. There were six things he told me that I think could be transferrable to leaders in any organization: See yourself as “a colonel with an army of generals.” Don’t valorize failure. Encourage smart recklessness. The organization should be a crucible, not a crib. Search for “stupid” practices as much as you seek best practices. Persist.
February 14, 2017
I wanted to know how Krakauer leads a wildly creative, highly effective organization. There were six things he told me that I think could be transferrable to leaders in any organization: See yourself as “a colonel with an army of generals.” Don’t valorize failure. Encourage smart recklessness. The organization should be a crucible, not a crib. Search for “stupid” practices as much as you seek best practices. Persist.
Corporation as Courthouse
February 14, 2017
Rory Van Loo (Boston University) has published “The Corporation as Courthouse” in the Yale Journal on Regulation, available here. I read an early version of this article; it’s fascinating. The abstract: Despite the considerable attention paid to mandatory arbitration, few consumer disputes ever reach arbitration. By contrast, institutions such as Apple’s customer service department handle hundreds of millions of disputes annually. This Article argues that understanding businesses’ internal...
February 14, 2017
Rory Van Loo (Boston University) has published “The Corporation as Courthouse” in the Yale Journal on Regulation, available here. I read an early version of this article; it’s fascinating. The abstract: Despite the considerable attention paid to mandatory arbitration, few consumer disputes ever reach arbitration. By contrast, institutions such as Apple’s customer service department handle hundreds of millions of disputes annually. This Article argues that understanding businesses’ internal...
Henry A. Kissinger as Negotiator: Background and Key Accomplishments
February 14, 2017
Following a brief summary of Henry A. Kissinger’s career, this paper describes six of his most pivotal negotiations: the historic establishment of U.S. diplomatic relations with the People’s Republic of China, the easing of geopolitical tension with the Soviet Union, symbolized by the signing of the first Strategic Arms Limitation Treaty (“SALT I”), the limited success of the SALT II negotiations, the mediation after the 1973 Arab-Israeli war of the agreement on Sinai disengagement between...
February 14, 2017
Following a brief summary of Henry A. Kissinger’s career, this paper describes six of his most pivotal negotiations: the historic establishment of U.S. diplomatic relations with the People’s Republic of China, the easing of geopolitical tension with the Soviet Union, symbolized by the signing of the first Strategic Arms Limitation Treaty (“SALT I”), the limited success of the SALT II negotiations, the mediation after the 1973 Arab-Israeli war of the agreement on Sinai disengagement between...
Bankruptcy Filings Fall 5.9%, Reach Lowest Level Since 2006
February 13, 2017
During the 12-month period ending December 31, 2016, 794,960 cases were filed in federal bankruptcy courts, down from the 844,495 bankruptcy cases filed in calendar year 2015—a 5.9 percent drop in filings. This is the lowest number of bankruptcy filings for any calendar year since 2006, and the sixth consecutive calendar year that filings have fallen. However, it was the first calendar year since 2011 that the rate of annual decline was less than 10 percent. TOTAL BANKRUPTCY FILINGS BY CHAPTER YEARS...
February 13, 2017
During the 12-month period ending December 31, 2016, 794,960 cases were filed in federal bankruptcy courts, down from the 844,495 bankruptcy cases filed in calendar year 2015—a 5.9 percent drop in filings. This is the lowest number of bankruptcy filings for any calendar year since 2006, and the sixth consecutive calendar year that filings have fallen. However, it was the first calendar year since 2011 that the rate of annual decline was less than 10 percent. TOTAL BANKRUPTCY FILINGS BY CHAPTER YEARS...
BATNAs in Negotiation: Common Errors and Three Kinds of ‘No’
February 13, 2017
The Best Alternative To a Negotiated Agreement (“BATNA”) concept in negotiation has proved to be immensely useful. It is widely accepted that a more attractive BATNA (“walkaway option”) often increases one’s bargaining power. A minimally necessary condition for an agreement to be mutually acceptable is that each side prefers the deal to its BATNA. Thus, how well each party’s BATNA serves its interests determines whether a zone of possible agreement even exists — within which any mutually...
February 13, 2017
The Best Alternative To a Negotiated Agreement (“BATNA”) concept in negotiation has proved to be immensely useful. It is widely accepted that a more attractive BATNA (“walkaway option”) often increases one’s bargaining power. A minimally necessary condition for an agreement to be mutually acceptable is that each side prefers the deal to its BATNA. Thus, how well each party’s BATNA serves its interests determines whether a zone of possible agreement even exists — within which any mutually...
Book: The Myth of the Litigious Society
February 13, 2017
Why do Americans seem to sue at the slightest provocation? The answer may surprise you: we don’t! For every “Whiplash Charlie” who sees a car accident as a chance to make millions, for every McDonald’s customer to pursue a claim over a too-hot cup of coffee, many more Americans suffer injuries but make no claims against those responsible or their insurance companies. The question is not why Americans sue but why we don’t sue more often, and the answer can be found in how we think about...
February 13, 2017
Why do Americans seem to sue at the slightest provocation? The answer may surprise you: we don’t! For every “Whiplash Charlie” who sees a car accident as a chance to make millions, for every McDonald’s customer to pursue a claim over a too-hot cup of coffee, many more Americans suffer injuries but make no claims against those responsible or their insurance companies. The question is not why Americans sue but why we don’t sue more often, and the answer can be found in how we think about...
Court Approved: Family Law Mediators Can Draft Settlement Documents in Wisconsin
February 12, 2017
From The State Bar of Wisconsin: The Wisconsin Supreme Court has approved a petition that will allow lawyer-mediators to draft and file settlement documents in family law cases. Currently, parties must obtain different legal counsel to perform those legal tasks after mediation. More frequently, parties attempt to navigate the legal system with no legal help at all. Another layer to limited scope representation rules that took effect two years ago, the new rule will give parties a more affordable...
February 12, 2017
From The State Bar of Wisconsin: The Wisconsin Supreme Court has approved a petition that will allow lawyer-mediators to draft and file settlement documents in family law cases. Currently, parties must obtain different legal counsel to perform those legal tasks after mediation. More frequently, parties attempt to navigate the legal system with no legal help at all. Another layer to limited scope representation rules that took effect two years ago, the new rule will give parties a more affordable...
How to Boost Your (and Others’) Emotional Intelligence
February 12, 2017
Among the various core ingredients of talent and career success, few personal qualities have received more attention in the past decade than emotional intelligence (EQ), the ability to identify and manage your own and others’ emotions. Importantly, unlike most of the competencies that make it into the HR zeitgeist of buzzwords, EQ is no fad. In fact, thousands of academic studies have demonstrated the predictive power of scientific EQ assessments vis-à-vis job performance, leadership potential,...
February 12, 2017
Among the various core ingredients of talent and career success, few personal qualities have received more attention in the past decade than emotional intelligence (EQ), the ability to identify and manage your own and others’ emotions. Importantly, unlike most of the competencies that make it into the HR zeitgeist of buzzwords, EQ is no fad. In fact, thousands of academic studies have demonstrated the predictive power of scientific EQ assessments vis-à-vis job performance, leadership potential,...
