Wednesday, November 17, 2004
Singer Rod Stewart will have to return a $640,000 down payment and his business associates will have to pay more than $1 million in other damages after the singer was hit by a jury verdict in a breach of contract action.
The lawsuit arose out of a failed attempt to put together a Latin American tour. Under the proposed agreement, which was never signed, tour promoters were to pay Stewart $2.1 million. The promoters gave him a down payment of $780,000. When the tour did not materialize, Stewart refused to return the down payment, claiming that the promoters had failed to raised the necessary amounts.
A Los Angeles jury disagreed. According to a report by the Celebrity Justice web site, jurors did not believe there had been a final contract between the parties. One juror was quoted as saying that "without a signed deal, the jury felt Stewart shouldn't have kept the cash." Stewart's lawyer said the singer would appeal.
Things keep getting more complicated for pop star Michael Jackson. He's now been sued by a "former associate" for breach of contract.
J. Mark Schaffel Jackson says he's owed $3 million for money he loaned to Jackson and for work Schaffel did in a pro-Jackson documentary. Jackson used some of the borrowed money, says the plaintiff, to buy jewelry for Elizabeth Taylor.
Schaffel, ironically enough, was also the executive producer of Jackson's 2002 single, What More Can I Give? The answer, apparently, is $3 million.
Click the link below for the article.
Is a bill of lading that covers both ocean and overland transport a "maritime contract" subject to the liability limitations of federal admiralty law? Yes, says the U.S. Supreme Court in a recent opinion. The holds that a railroad was entitled under admiralty law to the liability limitations of the original shipping contract where the carriage involved both land and sea transportation.
In the case, goods were destroyed in a train wreck on the last leg of a trip from Australia to Alabama. The original contract contained a Himalaya clause that purported to limit the liability of any third party whose services were used to perform the shipment. The railroad argued that it was entitled to the limitation under admiralty law, because the goods included ocean transport.
Justice O’Connor, writing for the court, agreed. Privity of contract is not required before a carrier can benefit from a shipping contract's liability limitations. The default rule, she wrote, is that any intermediary involved in the transportation contract is acting as an agent of the cargo owner for the purpose of extending liability limits to downstream carriers.
Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd., No. 02-1028 (U.S. Nov. 9, 2004)
The increasing use of laptop computers in the classroom has created the phenomenon of students who engage in E-mail conversations, play solitaire, download sports scores, and do other things in class. The problem is not so much that students are not paying attention—there have always been students who didn’t pay attention—but that such activities are often highly distracting to other students.
In a new paper, Paul Caron and Rafael Gely argue that the response is not outlawing laptops, but rather using technology in the classroom to foster active student learning. The paper, Taking Back the Law School Classroom: Using Technology to Foster Active Student Learning is forthcoming in the Journal of Legal Education.
Tuesday, November 16, 2004
The Internet Corporation for Assigned Names and Numbers has countersued Verisign in the running dispute over which entity gets to offer the lucrative Site Finder and Waiting List services. Verisign, which has the ICANN contract to administer the domain-name function, previously sued ICANN, claiming that ICANN was violating Verisign’s agreement by offering the services itself in competition with Verisign.
In today’s action, ICANN claims that the contract that authorizes Verisign to administer the domain-name process does not permit Verisign to offer the services. The key to the dispute is what the contract means by "registry services"—a phrase that apparently was adopted before anyone realized how lucrative the add-on services could be.
ICANN also is seeking to have the dispute moved from a California court to arbitration before the International Chamber of Commerce.
From the forthcoming issue of the AALS Contracts Newsletter, the curious connections between the well-known promissory estoppel case of Feinberg v. Pfeiffer Co., Ernest Hemingway, the Warner-Lambert Pharmaceutical Company, Frank Lloyd Wright, Marisa Berenson, and The Metropolitan Museum of Art . . . .
Fullback Martin Croft, who retired recently, says that the club induced him to sign a performance-based contract on which he would be paid based on the number of games he played—and then assigned him to a minor league affiliate, the Werribee Tigers of the Victorian Football League, so that he had no opportunity to perform. The assignment came immediately after a remarkable five-goal performance in a game against the Kangaroos.
The AFL Players Association has decided to back Croft on the claim, which is the first in the history of a league that goes back to 1896.
Does the equation change when we are talking about intellectual property? This is a matter of some controversy, and David Rice (Roger Williams) weighs in on the topic in a new article, Copyright and Contract: Preemption After Bowers v. Baystate, just out in the Roger Williams University Law Review. Rice (left) makes the case that federal copyright law preempts and displaces contract law, and that courts who approve software "licenses" that extend the scope of copyright protection are failing to carry out Congressional intent. (No link available.)
Several contracts teachers will be on the panel this January in San Francisco for Taking Christian Legal Thought Seriously. The day-long session, sponsored by Law Professors’ Christian Fellowship, the Journal of Catholic Social Thought, and Lumen Christi, runs concurrently with the AALS program and will be held a few blocks away at the Hotel Monaco.
Unfortunately, the afternoon part of the proceedings conflicts with the Section's meeting, which is scheduled for 1:30 on Saturday.
Among the panelists are John Breen (Loyola-Chicago), James Gordley (UC Berkeley), Scott Pryor (Regent), and Mark Scarberry (Pepperdine).
The faculty news publication from Southern Cal notes the death of longtime contracts teacher and scholar David W. Carroll.
Carroll, who was 72, overcame childhood polio that left him a triplegic, to become a successful practicing attorney and law professor at Toledo. He spent four years teaching in Nigeria and Uganda, before joining the USC law faculty in 1975. He retired in 1992.
Monday, November 15, 2004
A woman who claims that her ex-fiancé stole her ideas to use in his best-selling novels will get a chance to prove her breach of contract claim. A New York judge threw out several claims against novelist James Patterson, but agreed that Christina Sharp can proceed on her contract claims.
Sharp had a romantic relationship with Patterson and the parties had planned to wed until they broke up in 1997. Sharp says that Patterson asked her to help him with some of the romantic passages in his subsequent, best-selling Cat and Mouse. She says she did not ask for compensation because she thought they would be sharing the benefits after their marriage.
A long-running feud among the members of one of New Orleans’s leading restaurant families will go back to court for yet another round. Members of the Brennan family—which control such famous Crescent City eateries as the original Brennan’s (left), Commander's Palace, Mr. B’s Bistro, Bacco, Ralph Brennan's Red Fish Grill, and Ralph's on the Park, as well as units in Las Vegas, Houston, and California—are again trying to stop Cousin Dickie Brennan from using the family name.
The interesting point this time is that the newest battle is over a settlement agreement from a previous round of the litigation. In 1998, the various Brennans agreed to a settlement that let Dickie continue to use the Brennan name. But his cousins sued him in 2000, claiming he had breached the agreement in the way he used the Brennan name in his own Dickie Brennan’s Steakhouse and other restaurants. They won a jury verdict in 2002, but the jury found that the breach was not substantial enough to terminate the agreement.
Now they’re trying again, arguing that since the 1998 settlement has no termination date, it is terminable at will. They have sent Cousin Dickie a termination notice. Lawyers for Dickie argue that the claim is too late; issues about the prior agreement should have been raised in the 2000 lawsuit.
The Contract Section web site has a new co-editor. Longtime Section listserve manager Carol Chomsky (Minnesota) has agreed to take the job. Chomsky (as almost all of you know) is a former co-president of the Society of American Law Teachers, president of Minnesota Women Lawyers, and is a member of the American Law Institute.
She has taught at Minnesota since 1985.
Attorneys for the estate of a former adjunct music instructor at Western New Mexico University are suing the school, claiming breach of contract, retaliatory discharge, and civil rights violations.
Charlotte Ashford, then 39, was refused renewal of her adjunct teaching contract after she brought forward student complaints against a tenure-track associate professor. The estate says that Ashford got consistently high student ratings and that her retention was supported by her department chair. The decision came after she raised questions about how one of the tenure-track faculty had been treating students.
The former adjunct died of cancer in August.
The question of accountability looms large in situations where the government uses contracts with private entities perform services for it. Steven Schooner (George Washington) examines the problem in light of the Iraq prison scandal in a new paper, Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government, which will be published in a forthcoming issue of the Stanford Law & Policy Review. Click on the link at the bottom of this entry for the abstract.
Schooner (left) also has a new piece out in Legal Times, co-written with colleague Christopher Yukins, exploring the problems that have plagued the government’s drive to make contracting more efficient.
"You mean, you can send it out to as many journals as you want?"
"You can get an answer in weeks?"
"You don’t have to revise it to deal with inane comments by the anonymous mossbacks that particular journal always relies on to butcher anything new and different?"
"They don’t make you cut half of it out?"
Well, that’s the good side to the law review process. The bad side, says Judge Richard Posner (left) in a recent piece in Legal Affairs, Against the Law Reviews, is that (among other things) articles are too long and are not vetted by people who have any idea what they’re doing.
The reader response is mixed. Thanks to Marie Reilly (South Carolina) for forwarding the article.
In his day, Samuel Williston must have been a giant—not only the greatest contract scholar of the times, but widely popular with practicing lawyers and influential with legislators. No legal scholar has had more influence on modern contract law than Williston; much of the work of scholars like Corbin and Llewellyn is simply remodeling the house designed by Williston in the First Restatement and the Uniform Sales Act.
Yet generations of internecine scholarly warfare have reduced his reputation these days to that of a dim-witted ivory tower pedant whose jurisprudence was as pointless and unreal as that of any any medieval Schoolman. Only Christopher Columbus Langdell falls lower on the totem pole than Williston—perhaps because "Christopher Columbus Langdell" is a more absurd name.
In a new article, Rediscovering Williston, Mark Movsesian (Hofstra) goes back and looks at Williston’s work, finding it less "arid and conceptual" than it is usually regarded. Movsesian is not a Williston partisan, but a fair-minded critic who finds a great deal more pragmatism in the old man than his reputation might suggest.
The article is forthcoming in the Washington and Lee Law Review.
Want a piece of Lucy lore from Wood v. Lucy, Lady Duff Gordon? Jim Fishman (Pace) points out that an original gown by the couturier known as "Lucile" is up for auction tomorrow in the "Couture, Textiles, and Accessories" sale at the Doyle New York auction house. It's the dress on the cover, but to see the item web page you'll need to do a search on "Lucile."
Pre-sale estimate on the gown, which is said to be from Lady Duff Gordon's first American collection, is $5,000-$7,000.
The Doyle catalogue entry follows.
An odd force majeure clause in her tour contract provides:
In the event that ARTIST is unable to perform during the period of time specified in the Contract due to no fault of her own, ARTIST shall be paid the full compensation agreed upon without the necessity of ARTIST’S performing.