November 30, 2004
New and very expensive books from Ashgate
A new catalogue from British publisher Ashgate is printed in type far too small for a fat, middle-aged bespectacled law professor to read—we suspect their graphics designer moonlights doing boilerplate contract clauses for Gateway. The web site is a little easier to read.
In a forthcoming volume, Hobbes on Law (edited by Claire Finkelstein)—due out next March—there are three essays on Hobbes’s theory of contracts, by Grover Robinson, M.T. Dalgarno, and Larry May. At 560 pages and $137.95, Hobbes (left) is a bargain compared to its companion Kant on Law (edited by Sharon Byrd and Joachim Hruschka), which contains Byrd’s essay on Kant’s theory of contracts. The Kant work weighs in at 500 pages but a hefty $245.
Philosophy can’t hold a candle to the Internet, though—Brian Fitzgerald’s two-volume Cyberlaw is marked at a healthy $450, although it, too, only runs around 500 pages.
Dawson named associate dean
The University of Florida’s "Report from the Faculty" in the mail today notes that George Dawson has taken over as associate dean for academic affairs, a position he previously held from 1996-2000. Congratulations.
This week's AP law school rankings
The nation's top law schools this week, ranked by the Associated Press:
1. University of Southern California
2. University of Oklahoma
3. University of California–Berkeley
4. University of Utah
5. University of Texas
6. University of Louisville
7. University of Georgia
8. University of Miami
9. University of Iowa
10. Louisiana State University
11. University of Michigan
12. University of Tennessee
13. Florida State University
14. University of Wisconsin
15. University of Virginia
16. University of Pittsburgh
17. University of Florida
18. Arizona State University
19. Boston College
20. Texas Tech University
21. Ohio State University
22. University of West Virginia
23. University of Toledo
24. University of Colorado
25. University of Memphis
Rankings are based on performance of the school's football team, which is probably as good a measure as any.
Frisco hotel strike over
You've probably already heard by now, but the San Francisco hotel strike that threatened to disrupt some of the activities at the AALS Annual Meeting is on hold. The Mother Ship is back on course with meetings scheduled at the Hilton San Francisco (left). If you haven't registered yet, you can drop by the AALS web site to sign up.
November 29, 2004
Barnett isn't stoned, but court is stony
Bob Dylan famously remarked once that "Everybody must get stoned," but that fate didn't befall Randy Barnett (Boston University) at today's argument before the Supreme Court in the medical marijuana cases. The story is here.
Initial reports suggest that it may be a tough sell, since the conservatives don't like marijuana and the liberals don't like federalism . . . .
Today in history—November 29
1484: Tomás de Torquemada, first Inquisitor General of Spain, convenes an assembly of inquisitors to present the statute governing their activities.
1780: Maria Theresa, the great Habsburg empress who created the first supreme court for the Empire, dies from a cold caught while hunting in the rain.
1781: The famed Jesuit law school at the University of Innsbruck is closed when the university is suppressed by Emperor Joseph II.
1868: Pierre-Antoine Berryer, the eminent French advocate avocat, dies at Augerville. Berryer was so gifted as an advocate that he lectured on eloquence at the Société des Bonnes Etudes and famous actors studied his style. His secret? "The ex tempore speaker has repeated the same thing to himself twenty or a hundred times."
1870: Compulsory education is announced in the United Kingdom.
1933: The Pennsyvania state government begins its liquor monopoly, opening the first state liquor stores. People in Philadelphia can drive to Delaware or Jersey, but those in Pittsburgh are stuck.
1942: The U.S. government for some reason decides to ration coffee, although there is no shortage. A black market immediately develops, and rationing is halted in 1943.
1948: The first Australian car is produced, the Holden FX. Holden is still going strong.
1962: In one of the great pieces of Anglo-French commercial cooperation, the two countries agree to jointly develop and deploy the Concorde supersonic airliner.
1973: Reeling Chrysler Corp. announces plans to halt production at seven plants and lay off as many as 38,000 workers.
1975: Baseball free agency is heating up, as outfielder Reggie Jackson signs with George Steinbrenner’s New York Yankees.
And they say business law isn't sexy
There are relatively few sales-related legal questions that involve constitutional law, but our colleagues over at AntitrustProf have spotted one: state restrictions on on-line sales of wine. Booze, the Internet, the Constitution—maybe we can get on TV, too.
Mark your calendars
As usual, Lawrence Solum has the week’s schedule of legal theory related workshops and presentations over at the Legal Theory Blog—always a good place to start your Monday. Among the goodies are two of particular interest to Contracts teachers, both on Thursday, December 2.
At Yale, Elizabeth Warren of Harvard debunks the myth that today’s families spend too much on frivolous luxuries in a workshop presentation on The Over-Consumption Myth and the Other Tales of Economics, Law and Morality.
At the opposite end of the country, her colleague Steven Shavell presents The Law as a Remedy for the Problem of Contractual Holdup as part of the Stanford Law & Economics program.
Good faith as an “Empty Vessel”
The question of whether and how the state should impose "good faith" duties on contracting parties is obviously a hot issue in Contracts scholarship. Emily Houh (Cincinnati) offers a different take on the question in a new paper, The Doctrine of Good Faith in Contract Law: A (Nearly) Empty Vessel?, forthcoming in the Utah Law Review. Her ambitious goal "to re-conceive and reinvigorate the private law doctrine of good faith as one that might assist in effecting the public law norm of equality."
For the Abstract, click below.
Empty Vessel explores both the positive and normative questions of what the contractually implied obligation of good faith does and should require of contracting parties. The Article attempts to assess and evaluate the ways in which courts are currently employing the good faith doctrine in contract disputes, as part of a larger project whose goal is to re-conceive and reinvigorate the private law doctrine of good faith as one that might assist in effecting the public law norm of equality.
Empty Vessel identifies two dominant theoretical approaches to how to define good faith, which I refer to as the fairness (or, Restatement) and the economic (or, foregone-opportunities) approaches. Further, it argues that, to the extent courts have applied and/or referenced the economic and/or fairness models of good faith in their decisions, they have rendered the two approaches operationally and functionally indistinguishable by employing both approaches as analytical proxies for material breach. Empty Vessel is divided into three parts. Part I explains the good faith doctrine, and explores in some depth the theoretical differences between the fairness and economic approaches to good faith. By examining exemplary good faith decisions in the contexts of "vanilla" commercial contracting, commercial lending, contractor cases, and commercial real estate leasing, Part II argues that contemporary courts employ the good faith doctrine not as a truly implied contractual obligation, but as a rhetorical framework for analyzing underlying issues of what constitutes material breach.
In conclusion, Empty Vessel argues that the good faith doctrine might be given new life in two different ways: first, vis-a-vis its applicability to bad faith conduct in contract formation and negotiation (presently the obligation applies only to the performance and termination of contract); and, second, with respect to performance and termination, vis-a-vis its applicability in the employment context. While the scholarship relating to the former is quite rich, that relating to the latter remains relatively unexplored. As a result, I explore in other articles how good faith might be used in the employment context to remedy presently non-cognizable forms of discrimination.
Holday weekend roundup
Two new papers on the economics of contract intepretation and incomplete contracts.
A Mississippi litigant who refused to adhere to a forum selection clause loses an $80 million jury verdict.
A real estate developer is pleased to discover that sometimes "clear and ambiguous" language really works.
Credit card companies breath easier after a court rules that British consumer protection laws don’t extend to overseas purchases.
ERISA does not bar hospitals for pursuing state breach of contract claims against union health care benefits groups.
November 28, 2004
Mississippi town pays plumber twice
The town of Gautier, Mississippi, will have to pay double for some plumbing work on the reconstruction of U.S. Route 90. The town, which owed $1,006 to Nelson Plumbing, accidentally paid the money to Nelson's subcontractor, Alabama Precast.
The problem arose because Alabama Precast filed a notice of lien with the town, which mistook it for a garnishment notice and paid the money over. Nelson may owe the money to the sub, but that's for the courts to sort out. In the meantime, the town will pay the $1,006 to Nelson, which is about 80 percent through the task of installing water and sewer lines for the highway project, and which had threatened to stop work as a result of the town's breach.
It's a smart move for the town—Nelson is already 5 months behind schedule and in the penalty phase of its contract.
Today in history—November 28
1520: One of the world’s great commercial voyages hits a milestone, as Ferdinand Magellan’s expedition emerges from All Saints Channel (now the Straits of Magellan) into the Pacific. Only one of the original five ships will make it back to Spain, but its cargo of 50,000 pounds of cloves will make the whole venture profitable.
1582: William (Merchant of Venice) Shakespeare marries Anne Hathaway.
1660: The Royal Society is formed in London.
1820: Friedrich Engels is born.
1907: A scrap metal dealer named Louis B. Mayer opens his first small movie theater in Haverville, Massachusetts. He later will be one of the founders of Metro-Goldwyn-Mayer and one of Hollywood’s most powerful men.
1929: Motown founder Berry Gordy, Jr., (left) is born in, well, Motown. In 1959 he'll borrow $800 to start the record label. First hit? Barrett Strong's Money (That's What I Want)—co-written by Gordy.
1963: The Beatles’ "I Want to Hold Your Hand" becomes the first record to sell a million copies before it’s even released
1988: Pablo Picasso’s "Acrobat & Harlequin" sells for $38.5 million.
1989: Outfielder Rickey Henderson signs a then-record $3 million-a-year contract with the Oakland A’s baseball team.
Mandatory arbitration clauses in employment: Assessing the risks
Clauses that require arbitration of all employer-employee disputes are becoming ever more common in employment contracts. In a new essay, A Risk-Based Approach to Mandatory Arbitration, Scott Baker (North Carolina) analogizes such clauses to property insurance—both are methods for reducing risk.
"Using a risk analysis," he writes, "the essay reexamines (1) the repeat player effect in arbitration, (2) why employers do so well in the litigation of discrimination disputes, and (3) the ‘adequacy’ requirement for arbitral forums. In particular, I consider whether mandatory arbitration accounts for the problems of moral hazard and adverse selection endemic to any risk management scheme."