A short program, featuring remarks by Professors Jim White (Michigan) and Bob Summers (Cornell), Dick's long-time collaborators, and Deans Kevin Cole (San Diego) and David Van Zandt (Northwestern), will begin at 7:00 p.m. The organizers will also videotape remarks from those who knew Dick or his work and will provide a copy to Dick's family.
The most comprehensive analysis of the effect of government acts on performance of pre-existing contracts is found in the writings of Professor Richard Speidel. He referred to the problem as “retrospective” government acts, rather than “retroactive” to describe the legal consequences of acts that: “(1) impair certainty and stability by unsettling reasonable expectations and investments; (2) undermine the legitimacy of a justice system through seemingly arbitrary results; and (3) unexpectedly shift a public burden to a specific group who did not cause the underlying problem.” Professor Speidel argued that it is easier to obtain excuse for retrospective government acts where the act makes the contract either unenforceable or would result in direct governmental sanctions on the party performing because presumptions that the law will not change operate to satisfy the foreseeability element of excuse.With the trend toward greater governmental regulation, however, parties are increasingly aware of such risks, and a party may undertake a duty that is not discharged by such supervening governmental actions, as where governmental approval is required for his performance and he assumes the risk that approval will be denied. Such an agreement is usually interpreted as one to pay damages if performance is prevented rather than one to render a performance in violation of law.
Speidel's concern with the use of ordinary contract principles to allocate the risk of retrospective government acts helped shape my recent paper on Impracticability Under the U.C.C. for Wartime Contracts. Although Justice Souter noted in United States v. Winstar Corporation case the humdrum nature of basic procurement contracts, wartime sales contracts in Iraq have turned out to be less than routine due to the hazards created by insurgents. I have argued that the strict application of traditional doctrine must proceed with caution regarding wartime contracts as they arguably exhibit the same differential in bargaining power noted by Professor Speidel. As such, the traditional rules are applicable to wartime contracts as they are to regulatory ones, but one must exercise care in the allocation of risks. Not surprisingly, Professor Speidel’s proposition is consistent with the comments to the Code, directing reference to equitable principles where excuse or no excuse does not lead to a satisfactory result. U.C.C. § 2‑615 cmt. 6 (2001). Although Professor Speidel's work did not answer, nor was it intended by him to answer, the specific issues raised by extreme personal hazards faced by contractors during wartime, his words guided my thought process. Although I did not personally know Richard Speidel, his work has influenced my own. I would guess that there are many who share my perspective on the impact of Dick Speidel's work.
The Commercial Law Blog is sponsoring a commercial law tribute to Richard Speidel during the month of October. Accordingly, we are pleased to announce a "mini" blog-symposium (or "mob-blog") to honor him and his work. This mob-blog is open to all in terms of participation and we hope that many will participate with a posting. We especially hope that some of Dick's colleagues and collaborators will participate in this venture. All those wishing to post simply should send an email at jenni.martin@louisville.edu to receive guest access rights to post on the blog.
