Friday, June 24, 2005
Western New England College has hired a new Contracts professor. Jill Anderson is joining the school for the 2005-06 academic year, where she will be an assistant professor of law.
Anderson graduated from Columbia Law School, where she was a senior editor of the Columbia Law Review, earned Kent Scholar honors, and won the Wertheimer Prize in employment law. She spent two years as a Skadden Fellow with Western Massachusetts Legal Services. Before going to law school she worked for a law firm monitoring a consent decree and working on race antidiscrimination training and testing programs in the areas of public accommodations and insurance redlining. Her research interests lie in insurance, antidiscrimination, disability, and law and linguistics.
Cricket Australia is investigating whether all-rounder Andrew Symonds breached his team contract when he went on an all-night drinking binge in Cardiff, the night before a match against Bangladesh. He was so unsteady on his feet in the morning that he was pulled from the match, which Australia went on to lose in one of the biggest upsets in cricket history.
The standard cricket contract does not forbid getting drunk (these are, after all, Australians), but does provide that the player is required to "perform his services under this contract diligently, faithfully and with utmost integrity," and must "keep himself fit and in first-class physical condition to enable him to play to the best of his ability in all matches for which he is selected."
Today is the birthday of Ambrose Bierce. Here's a bit from his Devil’s Dictionary (1911):
LUNARIAN: But this system of maintaining an expensive judicial machinery to pass upon the validity of laws only after they have long been executed, and then only when brought before the court by some private person -- does it not cause great confusion?
TERRESTRIAN: It does.
LUNARIAN: Why then should not your laws, previously to being executed, be validated, not by the signature of your President, but by that of the Chief Justice of the Supreme Court?
TERRESTRIAN: There is no precedent for any such course.
LUNARIAN: Precedent. What is that?
TERRESTRIAN: It has been defined by five hundred lawyers in three volumes each. So how can any one know?
1534: Jacques Cartier becomes the first European captain to discover Prince Edward Island, though he can't call it that because Prince Edward hasn't been born yet.
1664: The future King James II gives the land between the Hudson and Delaware Rivers as a proprietary colony to Sir George Carteret and Lord Berkeley of Stratton. It will come to be called “New Jersey,” because Sir George had previously been governor of Jersey.
1693: Following the destruction of Port Royal by earthquake, the British found the town of Kingstown, Jamaica.
1793: France gets its first republican constitution. Experience will show that there are some bugs to be worked out.
1880: The song O Canada receives its first public performance at a Saint-Jean-Baptiste Day banquet in Quebec City.
1908: Lawyer and former President Stephen Grover Cleveland dies at Princeton, New Jersey. He set a record for the number of Presidential vetoes, noting that his greatest accomplishment was his blocking of other people’s bad ideas.
1913: Sir Joseph Cook, a former mineworker with no formal education, becomes the sixth Prime Minister of Australia.
1916: Mary Pickford becomes the first film star to sign a million-dollar contract.
1974: A UPC bar-coded grocery item is scanned in a check-out line for the first time. The event takes place at Marsh’s Supermarket in Troy, Ohio, and involves a ten-pack of Wrigley’s Juicy Fruit chewing gum.
1999: The guitar that Eric Clapton used to record Layla is sold at auction for $497,500.
Thursday, June 23, 2005
A woman who thought she won $100,000 in a radio station giveaway but instead got a Nestlé "100 Grand" candy bar is suing the station for breach of contract.
WLTO-FM in Lexington, Kentucky, offered "100 Grand" on DJ Slick's night program to anyone who listened to the station for a particular period and then was the tenth caller at a specified time. When Norreasha Gill tried to claim her prize, she was told she had won a candy bar, not $100,000. The station eventually offered her $5,000, but she says she wants the other $95,000, too.
ADD: The Smoking Gun website has the story and a copy of the complaint. (Thanks to Ronald Chen for the pointer.)
The U.S. Supreme Court has ruled that California farmers have no standing to sue the federal government under water contracts negotiated with their local irrigation districts, not with the farmers personally.
After a win in a big action-figure licensing case, World Wrestling Entertainment is now seeking attorneys' fees from loser Marvel Entertainment.
The American Screen Actors Guild has rejected a proposed new contract for its members who do voice work for computer and video games; the issue apparently is residuals.
Indiana's NiSource Energy has signed a 10-year, $1.6 billion deal to outsource its IT work to IBM; more than 400 workers will be laid off or will go to work for IBM.
A proposed tour of Sri Lanka by West India cricketeers "is in jeopardy" after only three of thirteen players returned the signed contracts offered them. There's been an on-going dispute with the cricket board over endorsements.
The link (or lack of one) between contract law and morality is one of the ageless topics in our field. Jeffrey M. Lipshaw, who'll be visiting next year at Wake Forest, offers his own new take on the issues in a new essay, Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise, now available on SSRN. Here's the abstract:
In this essay, I suggest the difference between the law of consensual relationships (i.e., contracts) and the morality of those relationships is one of compulsion and freedom. In the former, we find ourselves being compelled by, or compliant with, a rule some distance removed from the basic norm; in the latter we find ourselves in touch, constantly and sometimes in the face of more visceral obligatory rules, with a far deeper and more fundamental (transcendental) sense of fairness. Moral decisions are the ones made without any threat of compulsion from the law. The clearest example in commercial relationship of a moral decision unfettered by the positive law is the promisee's choice not to enforce an otherwise legally binding contract. As a matter of logic, if not practice, a court cannot impose a duty to do so, either as a matter of positive law theory or natural law theory that contends law is not law unless it rests on a deep structure of values like fairness or justice or liberty. Nevertheless, that sense of obligation on the part of the promisee is regularly sensed and even acted upon in commercial relationships, and its source is the will of the autonomous agent who has not traded freedom for compulsion or compliance.
The pending U.K. Gambling Bill will introduced some changes in the law that will impact not only traditional types of gambling, but the use of various kinds of unilateral offers (e.g. prizes and promotions) in marketing and advertising efforts. Louise Oliver of London’s Lovells offers a rundown of the main provisions.
1611: Henry Hudson, on a voyage co-sponsored by the Virginia Company and the British East India Company, is set adrift among the ice in James Bay with several other crew members by mutineers who refuse to continue his exploration. They're never seen again.
1713: The British government, which has acquired Acadia (now Nova Scotia) in the Treaty of Utrecht, orders all French settlers to swear allegiance to Britain or leave the colony within one year.
1757: An army of 3,000 East India Company troops (only 800 of them Europeans) under 26-year-old Robert Clive routs 68,000 troops of the Nawab of Bengal, marking the real start of British India. The battle shows that commercial armies have some advantages, since the key to the victory is Clive’s secret bribery of a large part of the Nawab’s army to abandon him.
1810: John Jacob Astor forms the Pacific Fur Co., which opens for business just in time to get wiped out by the British in the War of 1812.
1894: Baron Pierre de Coubertin founds the International Olympic Committee, for the purpose of providing enormous advertising venues for giant multinational corporations.
1894: Entomologist Dr. Alfred Kinsey is born at Hoboken, New Jersey. He’ll later discover that sex outsells bugs by a several orders of magnitude.
1940: Future Lord Chancellor Alexander Andrew Mackay Irvine, Lord Irvine of Lairg, is born at Inverness, Scotland.
1944: Apparently feeling that the U.S. does not have enough really depressing intellectuals who want to talk about themselves and what they’re feeling, Thomas Mann becomes an American citizen.
1948: Supreme Court Justice Clarence Thomas (Yale Law 1974) is born at Pin Point, Georgia, population 275.
1969: Former law professor Warren Earl Burger (William Mitchell Law 1931), is sworn in as Chief Justice of the United States.
1989: Warner Bros. releases its $35 million Batman, which at $251 million will become the third -highest-grossing superhero film of all time. It doesn’t return anything to the net profits participants, though, in part because Jack Nicholson’s slice of the gross will net him a tidy $55 million.
Wednesday, June 22, 2005
Bad news for would-be Contracts and Commercial Law teachers: A rigorous scholarly analysis over five decades, using Harvard Law Review articles, an Excel spreadsheet, and the tools of technical stock market analysis concludes that American law schools are slightly overstocked with Contracts professors, but positively glutted with Commercial types.
That's the conclusion of Sara K. Stadler of Emory University (left), in her The Bulls and Bears of Law Teaching, forthcoming in the Washington & Lee Law Review. Her unique and startlingly original analysis rates each teaching field from "strong buy" (a field likely to be in demand) to "strong sell." While Bankruptcy, Tax, and Employment law are all rated "strong buy," the news isn't so good for Contracts (weak sell), and is worse for Commercial Law and Cyberlaw (strong sell). Here's the abstract:
This Essay provides readers with a unique perspective on the world of law teaching: Employing a quirky methodology, Professor Stadler predicts which subjects are likely to be most (and least) in demand among faculties looking to hire new professors in future - rating those subjects, like so many stocks, from "strong buy" to "weak buy" to "weak sell" to "strong sell". To generate the data on which her methodology is based, Professor Stadler catalogued, by subject, almost every Article, Book Review, Booknote, Comment, Essay, Note, Recent Case, Recent Publication, and Recent Statute published in the Harvard Law Review between and including the years 1946 and 2003. In the end, she found an interesting (and, she thinks, predictive) relationship between the subjects on which faculty choose to write and the subjects on which students choose to write.
Feminism and Contract Law
by Hila Keren
Hebrew University of Jerusalem
Center for the Study of Law and Society, UC-Berkeley
A new book about contract law, Feminist Perspectives on Contract Law, edited by Linda Mulcahy and Sally Wheeler (GlassHouse Press, 2005), is now offering to us all a fresh look at the good old contract law. With contributors from all over the English speaking world, this collection constitutes a valuable addition to socio-legal contract scholarship and is truly worth exploring.
Nine different pieces challenge the masculine image of contract law under classical and neo-classical models of contract. These established models are formalistic, abstract, hold to linear reasoning, assume universal truths, claim to be objective and natural and perceive the typical contractor as a self-regarding, autonomous selfish and competitive "reasonable man" who dwells at the core of the market place. Theories of this sort leave little room within contract law for numerous important contractual experiences, many of them at least stereotypically associated with the feminine. The result is not only the marginalization of women which has engaged feminist scholars but also a poor understanding of the contractual phenomenon that should have alerted contract scholars.
Fundamental subjects in the textbooks we use in contract law courses are discussed, and questioned, from new points of view. The formation of contracts, with the adversary and inert model of offer and acceptance, is confronted with the living experience of shopping for fashionable clothing as well as with the marital roots of the postal rule which expose the overprotection of the offeree at the offeror’s expense. The levels of pressure and submission that are needed to satisfy the doctrine of undue influence are contested by the reality of what might be termed "desperate housewives" and their dependence on their partners’ business judgments. The application of traditional contract doctrine to the cyberspace is also illuminated by feminist ideas while critically examining the tendency to conceptualize cyberspace as merely an extension of the marketplace and by that as yet another public sphere. In addition, the collection suggests feminist support of dispute resolution clauses that offer the parties meditation as an alternative to an unresponsive judiciary.
In ways that exceed the reach of this brief descriptive note, reading Feminist Perspectives on Contract Law from the contractual perspective is not a trouble-free task. However, it is an effort worth making as it reminds us how, to quote the opening sentence of the collection, "the law of contracts is an area which is ripe for feminist analysis."
(Image courtesy Cavendish Publishing Ltd.)
The European Union is tightening up the 48-hour maximum work week. Thus far states like Britain, where both employers and labor unions oppose the maximum work weeks, have been permitted to opt out of the limit, but several nations are pushing a plan to make the rule mandatory across all member states.
Helen Jerry and Marie-Louise McMahon of Pillsbury Winthrop Shaw Pittman LLP have a rundown of the debate.
1767: Wilhelm von Humboldt is born at Potsdam in Prussia. As Minister of Public Instruction he’ll found what will come to be called Humboldt University of Berlin, whose students will later include Fichte, Hegel, Savigny, Schopenhauer, Einstein, Planck, and Marx.
1832: John Ireland Howe of Connecticut patents a machine that can make pins in one operation, instead of the 18 previously required; this will put thousands of pin-makers out of work.
1856: Sir Henry Rider Haggard is born at Bradenham in Norfolk. Although he’ll be called to the bar in 1888, he’ll make his living mostly by his 70-odd novels, which include She and King Solomon’s Mines.
1874: Dr. Andrew Taylor Still, whose three children died in an epidemic from which current medicine knowledge was unable to save them, formulates his new theory of "osteopathy."
1903: John Dillinger, whose year-long career as a bank robber will net his gang over $300,000 before he’s killed by FBI agents, is born at Indianapolis, Indiana.
1964: After a bidding war with NBC, CBS Television signs singer Barbra Streisand to a ten-year contract at $200,000 a year.
1965: Film impresario David O. Selznick (Gone With The Wind, Anna Karenina, Rebecca, A Star is Born) dies of a heart attack at Hollywood, California.
1978: Astronomer James Christy discovers that the planet Pluto has a moon. Demonstrating that scientists have better classical educations than lawyers, he names it Charon, after Pluto’s dog.
1989: Dublin City University and the University of Limerick are granted university status by the Irish government.
1998: CompUSA announces that it’s buying Tandy Corp.’s floundering Computer City operation for $275 million.
Tuesday, June 21, 2005
For those interested in Cardegna v. Buckeye Check Cashing, which we summarized a little while back, a PDF of the Florida Supreme Court's opinion is here, and the good folks at the Florida State law library have all of the related briefs here. The oral argument before the Florida Supreme Court is here.
After earning a J.D. at Michigan (where she served as an editor of the Michigan Journal of Race & Law), she clerked for a Michigan district court judge, was a staff attorney for the Legal Assistance Foundation of Chicago, and a litigation associate at a Detroit firm, before joining the faculty of the University of Northern Kentucky. She crossed the Ohio River a couple of years ago to join UC, which has a much better basketball team. In her spare time she’s secretary and a board member of the Society of American Law Teachers and treasurer of the AALS Section on Law and the Humanities.
Oh, and double congratulations are appropriate, since she’s also expecting her first child -- who’s slated to arrive in October and will graduate law school in 2030.
. . . it’s interesting anyway. Adam Feibelman (North Carolina) has a new paper, Defining the Social Insurance Function of Consumer Bankruptcy, coming out in a forthcoming issue of the American Bankruptcy Institute Law Review.
Feibelman examines the relationship between consumer bankruptcy and other forms of "social insurance," such as unemployment insurance, spousal support laws, Medicare, etc. He notes that even with the "safety net" some folks fall into bankruptcy as a result of job loss, illness, or divorce, but argues this isn’t necessarily a bad thing, since an optimal safety net system may well incorporate a bankruptcy-like solution for those whose losses are significantly above average. Click on "continue reading" for the abstract.
1774: Lawyer Daniel D. Tompkins is born at Scarsdale, New York. While serving as U.S. Vice President under James Monroe, he’ll lead a private venture that inaugurates steam ferry service between Manhattan and Staten Island.
1788: New Hampshire ratifies the new Constitution and becomes the ninth U.S. state.
1871: Four members of the Irish-American labor group the "Molly Maguires" are hanged at Carbon County, Pennsylvania, for the murder of two mine bosses.
1898: Guam becomes a U.S. territory.
1903: Caricaturist Al Hirschfeld, who will prove you can earn a nice living doing drawings where everyone’s forehead is way too big, is born at St. Louis, Missouri,
1905: Existentialist writer Jean-Paul Sartre is born at Paris, France, a cousin of Albert Schweitzer.
1927: Carl Burton Stokes (Cleveland-Marshall Law 1956), whose victory in Cleveland in 1967 will make him the first black mayor of a major U.S. city, is born at Cleveland, Ohio.
1942: A Japanese submarine lobs 17 shells into Fort Stevens at the mouth of the Columbia River in Oregon. They cause no damage.
1947: Harold Dahl, in a boat with his son and a dog, encounters six UFOs at Maury Island, Washington. The aliens kill his dog, but the government manages to hush things up.
1957: Progressive Conservative Ellen Louks Fairclough becomes the first woman to hold a Canadian cabinet post when she is sworn in as Secretary of State for Canada.
1965: Roger McGuinn’s 12-string Rickenbacker guitar becomes one of the distinctive sounds of the Sixties as the Byrds release the album Mr. Tambourine Man.
2003: J.K. Rowling’s 900-page Harry Potter and the Order of the Phoenix, the fifth in the projected series, is published. It sells seven million copies the first day, and as of today, two years alter, it’s still the top-selling book on Amazon.com.
On June 20, 2005, the U.S. Supreme Court granted certiorari in Cardegna v. Buckeye Check Cashing, Inc., 894 So.2d 860 (Fla. 2005). Plaintiffs in Cardegna brought a class action against the defendant, alleging usurious loan practices disguised as check cashing transactions. The defendant invoked an arbitration clause in the agreement, but the Florida Supreme Court ruled that a trial court, not an arbitrator, should decide whether the underlying agreement was illegal. In so doing, the Florida court distinguished Prima Paint Corp. V. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), which held that a claim of fraud in the inducement to enter a contract was encompassed by the agreement’s mandatory arbitration provision pursuant to the Federal Arbitration Act. The Florida court cited other state courts and a number of federal courts of appeals opinions similarly ruling that claims a contract is “void ab initio” rather than “voidable” should be decided in court, not in arbitration, but acknowledged a contrary Eleventh Circuit opinion from 2002.
Judging by the lively discussion at the session on Contracts and Arbitration at the recent AALS Conference on Exploring the Boundaries of Contract Law, the scope and implementation of mandatory arbitration clauses is one of the hot topics in contract enforcement, and the Supreme Court decision in Cardegna will help clarify one more aspect of that subject.
Monday, June 20, 2005
1 (1) Commentary on the Acquisition Workforce, Steven L. Schooner & Christopher R. Yukins (Geo. Washington)
2 (2) Toward a Better Understanding of Anti-dilution Provisions in Convertible Securities, Michael Woronoff (Proskauer Rose LLP) & Jonathan Rosen (Shelter Capital Partners)
3 (5) The Political Economy of International Sales Law, Clayton P. Gillette (NYU) & Robert E. Scott (Virginia)
4 (6) Free Markets Under Siege, Richard A. Epstein (Chicago)
5 (8) Contracts, Holdup, and Legal Intervention, Steven Shavell (Harvard)
6 (4) The Role of Groups in Norm Transformation: A Dramatic Sketch, in Three Parts, Robert B. Ahdieh (Emory)
7 (7) Contracts and the Division of Labor, Daron Acemoglu (MIT Economics), Pol Antras (Harvard Economics) & Elhanan Helpman (Tel Aviv Economics)
8 (9) The Societas Europaea -- A Step Towards Convergence of Corporate Governance Systems?, Udo C. Braendle & Juergen Noll (U. of Vienna Business Studies)
9 (10) Whither Commodification?, Carol M. Rose (Yale)
10 (-) Trust as 'Uncorporation': A Research Agenda, Robert H. Sitkoff (Northwestern)
Numbers in parentheses indicate last week's rank.