Contract Rights Under Assault

Barack_Obama_pledges_help_for_small_businesses_3-16-09In 1789, as the inchoate American government was climbing out of the mountainous debt left over from the Revolutionary War, a thorny political problem emerged.  While most of the chattering class was consumed with the debate over whether the states’ war debt should be federalized, another far more visceral controversy arose.  Because the Continental Congress lacked funds during the war, the Revolution was funded partly by wealthy private citizens who invested in bonds.  As a result of the lack of governmental money, many American soldiers were given worthless IOUs at the end of the war, as states scampered for a way to give the patriots their back pay.  Many of these soldiers panicked, and sold their IOUs to speculators for as little as fifteen cents on the dollar.  The problem was, once the federal government began repaying the debt, the value of the bonds soared.  So who should get the money: the patriots who fought bravely for their country and only sold the IOUs because of fear they would get nothing from their government, or the speculators?

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A Decade-Old Statute Pays Dividends for REIT Investors and Their Attorneys

Perhaps real estate investors and their attorneys have reason to be cautiously optimistic: economic reports released this week indicate signs of life in the real estate market.  As reported by the Associated Press, the National Association of Realtors saw increases in pending home sales for the ninth straight month.  And for the first time in six months, construction spending saw an increase.  Optimists say these numbers, in conjunction with recent reports that home prices are climbing, indicate long-term recovery for both the residential and commercial real estate sectors.

Yet many analysts argue that these spikes are temporary.  The growth in construction spending amounted to a measly 0.04%, and the rise in pending sales contracts over the last nine months is attributable to the homebuyer tax credit, which the Obama Administration and Congress recently extended.

I suppose time will tell which analysis is correct.  But while commentators continue to debate, real estate investors have shifted their focus from traditional residential and commercial endeavors to a sector less affected by the downturn: healthcare properties.

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Memo To The New Justices: That’s Not How We Do Things On The Court

wisconsin-supreme-courtAt last month’s Conference on the Wisconsin Supreme Court, the panel discussing the Court’s business law cases during the 2008-2009 term began with an observation and a question.  The panel noted that there were three business law cases in which the votes of the Justices split on a 5-2 basis.  These cases were Farmer’s Automobile Ins. Assn. v. Union Pacific Ry., 2009 WI 73; Krier v. Vilione, 2009 WI 45; and Star Direct, Inc. v. Dal Pra, 2009 WI 76.  The question our panel asked was “Is this 5-2 split just a coincidence, or is something else going on?”

I cannot speak for my co-panelists, Tom Shriner and Leonard Leverson, and these comments should not be interpreted to reflect their views.  However, I have concluded that, taken together, the three dissents filed by Justices Abrahamson and Bradley in the aforementioned cases can be read as an clear admonishment to their two newest colleagues on the Wisconsin Supreme Court.

 The message that comes through to me, loud and clear, is one of disapproval of Justices Ziegler and Gableman for failing to adhere to the unwritten standards of professionalism that apply to the highest court in the State.  It’s as if these two members of the “old guard” feel it necessary to remind their colleagues that they now sit on a Supreme Court, and that there are certain things that one just doesn’t do as a Supreme Court Justice.  That the concerns of the dissenters have arisen in the context of three cases involving business law disputes is nothing more than a coincidence.

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