What Do Offshore Wind Farms Have To Do With the Disintegration of Contract Law in Wisconsin?

Answer: They are the subjects of this year’s top student comments in the Marquette Law Review.  The winners of the Gold and Silver Quill Awards were announced at last week’s Law Review banquet.  Marvin Bynum won the Gold for “Testing the Waters: Assessing Wisconsin’s Regulatory Climate for Offshore Wind Projects,” while Donald Stroud won the Silver for “Beyond Deception: Finding Prudential Boundaries between Breach of Contract and Deceptive Trade Practice Act Violations in Wisconsin.”  Both papers are on SSRN; “Testing the Waters” is here, and “Beyond Deception” is here. The abstracts appear after the jump.  Congratulations to Marvin and Tripp for this well-deserved recognition!

Here is the abstract for Marvin’s comment on offshore wind projects:

Legislators in a majority of states have recently embarked on novel experiments in alternative energy policy through renewable portfolio standards (RPSs). In many states, RPS policies have been used to spur public and private development of land-based wind power generation facilities. In fact, many states see wind power as an increasingly essential element in their energy portfolios. However, while a few states have investigated the potential of offshore wind projects, or wind farms, none have actually erected wind turbines in their waters. But in many places, the winds of change are blowing. No longer are the continental coasts seen as the only viable sites for offshore wind development. Increasingly, energy policy makers are turning their attention to the Great Lakes.

On January 15, 2009, the Public Service Commission of Wisconsin (PSCW) released its final report of a yearlong study assessing the potential for offshore wind-power generation in Lakes Michigan and Superior. Despite much anticipation, the study’s results were inconclusive, at best. On one hand, the PSCW found that it is “technologically feasible” to generate electricity from wind turbines sited in the middle of Lake Michigan. However, on the other hand the report also conceded that there are a number of “significant technical, economic, environmental, and legal issues to resolve.”

This Comment addresses the most significant legal concerns related to the development of offshore wind farms in Lakes Michigan and Superior, particularly whether and how the existing Wisconsin and federal regulatory schemes would accommodate offshore wind farm development. The Comment also discusses lessons that might be learned from two recent European policy initiatives: (1) the European Union’s 2009 Renewable Energy Directive, which established a comprehensive renewable energy regulatory system based on principles of extensive coordination and cooperation among various governmental entities, and (2) the United Kingdom’s Planning Act 2008, which considerably streamlined the permitting process for substantial national infrastructure projects such as large wind farms, but whose central permitting authority has been typecast as being undemocratic and authoritarian. The Comment identifies opportunities for Wisconsin state legislators to address offshore wind energy in the Great Lakes while simplifying the state’s current regulatory scheme, and discusses the potential for federal-state collaboration in efforts to develop the Great Lakes region’s renewable energy industries, generally, and offshore wind, specifically.

Here is the abstract for Tripp’s comment on the interaction between contract law and the unfair trade practices statute:

It has been said that the law of contracts is an abstraction, a residual component destined to disappear among advancing bodies of other law. Commentators have identified the swift progression of regulation, uniform codes, and statutory law as the driving force in obviating the common law of contracts. Wisconsin is currently in the midst of wrestling with this exact issue; that is, the destiny of contracts and contract law. Wisconsin, by adopting a strong economic loss doctrine, has shown particular distaste for the immersion of tort and contract, but the Wisconsin Supreme Court’s economic loss jurisprudence does not similarly foreclose the potential for statutory law to replace the role of contracts. The court has indicated that facts giving rise to a breach of contract claim may also support recovery under the state’s Deceptive Trade Practices Act (the DTPA). Thus, while the distinction between contract and tort law grows crisper, that between contract and statutory causes of action is becoming significantly more blurry.

The “freedom to contract” principle permits parties to voluntarily adjust their rights and responsibilities by specifying their own terms to which they can expect to be bound. The law, recognizing the societal value in enforcing contracts, makes it difficult for a party to escape its promises once the contract is made. However, by allowing recovery for breach of contract under the DTPA, the supreme court has made it significantly easier for parties to “opt out” of their contract’s terms just by asserting a DTPA claim. Therefore, the extent to which courts will apply and enforce the DTPA over contracts will have a dramatic effect on parties’ ability to escape the terms of their agreements ex post facto.

The thesis of this Comment is that, for the benefit of our contract-based system of economic exchange, prudential boundaries between ordinary contract disputes and DTPA violations are needed in order to preserve the difference between the two. By setting aside valid, freely bargained for contracts in order to enforce the DTPA, the supreme court is visiting unjustifiable harm upon contract law without advancing the DTPA’s purpose. Contracts still play a fundamental role in law and society by protecting agreements that are the lifeblood of our economic system. The DTPA should not be a tool for scrapping this essential institution.


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