Thursday, July 21, 2005
1831: Leopold I is crowned as King of the newly independent Belgians. His military prowess is such that he had been colonel of a regiment at age 5.
1873: Jesse James and the James-Younger gang pull their first train robbery, taking $3,000 from a Chicago, Rock Island & Pacific train at Adair, Iowa.
1911: Herbert Marshall ("The Medium is the Message") McLuhan is born at Edmonton, Alberta.
1948: Film director and entrepreneur David Lewelyn Wark "D.W." Griffith, who "almost single-handedly invented modern cinema," dies at Los Angeles, California. The Directors Guild of America, embarrassed by him, will later rename its D.W. Griffith Award.
1984: According to the United Auto Workers, the first "robot related death" in the U.S. occurs when a die cast operator is crushed between the back of a robot and a safety post at a factory in Jackson, Michigan.
2002: WorldCom, formerly America’s second-biggest telephone long-distance company files for bankruptcy, the largest in U.S. history.
Wednesday, July 20, 2005
Martina Navratilova and a "gay-friendly" credit card company called Do Tell, Inc., have settled their contractual dispute. The tennis star had licensed her name to be used for the company’s "Rainbow Card," but later became "very dissatisfied" with the marketing program, which targeted Showtime TV programs "The L Word" ("Lesbian") and "Queer as Folk," which she called "depraved."
The details of the settlement were not announced.
The new issue of the Cyberspace Law Committee’s Miscellaneous Internet-Related Legal News is out. As usual, editor Vince Polley has crammed it with news across the legal gamut. The latest issue and back issues are here.
Among the interesting stories in the July 15 issue:
* Software users are banding together to create a pro-user version of the Uniform Computer Information Transactions Act as an alternative to the stalled statute.
* France and Germany have found U.S.-style anonymous whistleblower hot lines, under which employees report possible misconduct, to be illegal.
* More than 98 percent of U.S. libraries are offering free Internet connections, without even requiring the purchase of a latte.
* A British web site that offers online gambling to Americans (illegally, say prosecutors) is going public on the London Stock Exchange, probably making billionaires of its owners.
* Internet bloggers are finding themselves subject to growing attention from federal regulators.
* Australia has decided not to implement a national identity card, on the grounds that it would just make identity theft easier.
* A Florida man has been arrested for using his neighbor’s Wi-Fi signal to access the Internet on his own laptop. It’s a third-degree felony.
1519: Lawyer Gian Antonio Facchinetti de Nuce (Bologna Law 1544) is born to a family of modest means at Cravegna, Italy. In 1591 he'll be elected Pope as Innocent IX.
1861: The new Congress of the Confederate States of America takes up residence at Richmond, Virginia.
1872: Mahlon Loomis of West Virginia receives the first patent for wireless telegraphy. In 1868 he had transmitted signals 18 miles between two mountain tops, using kites as antennas.
1885: England's Footbal Association agrees to allow professionals to compete.
1922: The League of Nations goes happily about parceling out Africa to European powers, giving Togoland (Togo and part of Ghana) to France and Tanganyika (now part of Tanzania) to Britain.
1923: José Doroteo Arango Arámbula, better known as "Pancho Villa," is assassinated at Parral, in Chihuahua, Mexico. Last words: "Don't let it end like this. Tell them I said something."
1925: Clarence Darrow cross-examines William Jennings Bryan outdoors as part of the Scopes Monkey Trial circus at Cleveland, Tennessee. Bryan wins the case, but Darrow gets all the good lines in the play.
1940: Billboard Magazine introduces its Music Popularity Chart, successor to the Hit Parade and forerunner of the Hot 100. The first number one song: Frank Sinatra's I'll Never Smile Again.
1945: The U.S. Senate ratifies the Bretton Woods Agreement, the first international monetary pact in history.
1984: Officials of the Miss America pageant ask Vanessa Williams to turn in her crown after Penthouse magazine publishes nude photos of her. She'll go on to become the most successful former Miss America of recent decades.
2001: The two-hundred year-old London Stock Exchange goes public, with stock trading under the symbol LSE.
Tuesday, July 19, 2005
In a recent article, Daniel Markovits (Yale) tackled one of the Big Issues: a general theory of contract. Now Ethan Leib (UC-Hastings) (left) takes a respectful but critical look at Markovits's thesis in Collaboration, Organizations, and Conciliation in the General Theory of Contract, forthcoming in the Quinnipiac Law Review. Here's the abstract:
This short piece exposes a central shortcoming of all general theories of contract that purport to be comprehensive and descriptive: they tend to exclude whole types of contracts to make their theories fit. As the essay explains, there are contracts between individuals (Type (1)), between organizations (Type (3)), and between individuals and organizations (Type (2)). By carefully analyzing Daniel Markovits’s recent attempt at a contract theory in his Contract and Collaboration, 113 Yale L.J. 1417 (2004), as well as looking at Schwartz and Scott’s recent effort in Contract Theory and the Limits of Contract Law, 113 Yale L.J. 541 (2003), I am able to expose how contract theorists ignore various Types of contracts to their theories’ detriment. At the conclusion, I suggest how Types of contracts are relevant to contract theory construction -- and how a focus on Types can point to a resolution of some of the ongoing debates in contract theory.
711: An invading force of North Africans destroys the Visigothic army at the Battle of Medina Sedona, killing King Rodrigo and putting most of Iberia under Muslim control. A survivor of the battle, Pelayo of Asturias, will retreat to the northern mountains to organize resistance.
1814: American entrepreneur Samuel Colt is born at Hartford, Connecticut. "God made men," people will later say, "but Col. Colt made them equal."
1848: Led by Elizabeth Cady Stanton and Lucretia Mott, the two-day Women's Rights Convention opens at Seneca Falls, New York.
1898: American Marxist philosopher and sociologist Herbert Marcuse is born at Berlin in the German Empire.
1922: Future Dakota Wesleyan history prof and presidental candidate George Stanley McGovern is born at Avon, South Dakota.
1944: Retailer Montgomery Ward's Chicago properties are seized and Chairman Sewell Avery is carried from his office by soldiers after the firm refuses to obey what it considers to be an illegal executive order imposing a labor contract on it.
Monday, July 18, 2005
There's a new paper at the top of this weeks Top 10 chart, but not a new name. Government contracts continues to be hot, with a new paper by Christopher Yukins grabbing the top spot in its first week on the chart. Following are the top ten most-downloaded papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending July 17, 2005.
• 1 (-) Understanding the Current Wave of Procurement Reform - Devolution of the Contracting Function, Christopher R. Yukins (Geo. Washington).
2 (5) Contracts and the Division of Labor, Daron Acemoglu (MIT Econ), Pol Antras (Harvard Econ) & Elhanan Helpman (Tel Aviv Econ)
3 (4) The Political Economy of International Sales Law, Clayton P. Gillette (NYU) & Robert E. Scott (Virginia).
4 (6) Trust as 'Uncorporation': A Research Agenda, Robert H. Sitkoff (Northwestern).
5 (7) Juries, Judges, and Punitive Damages: Empirical Analyses using the Civil Justice Survey of State Courts 1992, 1996, and 2001 Data, Theodore Eisenberg (Cornell), Michael Heise (Cornell), Martin T. Wells (Cornell Stats), Paula Hannaford-Agor (National Center for State Courts), Neil LaFountain (NCSC), G. Thomas Munsterman (NCSC), & Brian Ostrom (NCSC).
• 6 (10) The Comparative Law and Economics of Pure Economic Loss, Francesco Parisi (Geo. Mason), Vernon V. Palmer (Tulane) & Mauro Bussani (Trieste).
7 (8) Harnessing Litigation by Contract Design, Robert E. Scott & George G. Triantis (Virginia).
8 (9) Private Contractual Alternatives to Malpractice Liability, Jennifer Arlen (NYU).
9 (-) The Lurking Rule Against Accumulations of Income, Robert H. Sitkoff (Northwestern).
10 (-) Decisionmaking & the Limits of Disclosure: The Problem of Predatory Lending, Lauren E. Willis (Loyola-Los Angeles).
Are the films Jaws 3-D, Home Alone 2, and Smokey and the Bandit "classics"? That was the question a New York judge had to answer after Time Warner Cable sued the American Movie Classics channel for running such fare instead of the "classic" films it had agreed to air.
And the answer, said Supreme Court Justice Bernard Fried, is "no." He ruled that AMC breached its contract with Time Warner, thus allowing the cable company to drop the channel. The audio of an NPR story is here.
A high school football player who died at a YMCA outdoor facility is not a third-party beneficiary of the school's contract with the youth organization, according to a recent decision by the Georgia Court of Appeals.
Daniel Sterling, a high school football player, went to the Athens YMCA Camp in Talullah Falls, Georgia, for a three-day football training camp. Under the contract between the YMCA and the school, the school and its coaches were to be responsible for the safety of the students over the weekend. Sterling was playing on a "zip line," a cord that swimmers can use to swing and drop themselves in the lake, when he drowned. His parents sued the head coach and the school district for breach of contract, claiming that Sterling was a third party beneficiary of the agreement with the YMCA.
For a third party to have legal standing to sue on a contract, said the court, the contract language must express the parties' intent to benefit the third party or a class of third parties of which the plaintiff is a member. Here, the school and the YMCA were merely agreeing between themselves who would be responsible for accidents. There was no express intent to benefit anyone other than the two parties. Sterling therefore was not a third-party beneficiary, so summary judgment should have been granted.
Donnalley v. Sterling, 2005 Ga. App. LEXIS 764 (4th Div., July 13, 2005).
1811: Novelist William Makepeace Thackeray is born, the son of an East India Company employee, at Calcultta (now Kolkata), India.
1867: A Parisian gardener, F. Joseph Monier, receives a patent for reinforced concrete. The insertion of steel rods makes the stuff useful for large projects for the first time.
1872: Oaxaca lawyer Benito Juárez, who rose from being a domestic servant who could not speak Spanish to being twice President of Mexico, dies at his desk in the National Palace in Mexico City.
1936: The first Oscar Mayer Wienermobile rolls out of the General Body Co. factory in Chicago.
1947: President Truman signs the Presidential Succession Act, providing that in the event the offices of President and Vice President become vacant, the Speaker of the House of Representatives shall become president, followed by the President Pro Tempore of the Senate and then members of the Cabinet in the order that their departments were created.
1950: British entrepreneur Richard Charles Nicholas Branson is born at Sharnley Green, Surrey. In 1970, at age 20, he'll begin his Virgin Group empire by starting small mail-order record store.
1968: Two former employees of Fairchild Semiconductor, Gordon Moore and Robert Noyce, incorporate their new business, which they call Intel Corp.
1969: Follow a party on Chappaquiddick Island, Senator Edward Kennedy drives his Oldsmobile off a bridge.
1969: Under pressure from the NFL, football star Joe Namath gets out of the nightclub business by selling his interest in New York's Bachelors III.
1986: One of the most profitable movies made to date, the $18 million Aliens, opens in theaters. Star Sigourney Weaver, a gun control advocate, says she's troubled about making a movie glorifying gun violence, but she gets over it.
1994: The U.S. Senate Guido Calabresi to the U.S. Court of Appeals for the Second Circuit
Sunday, July 17, 2005
He earned his J.D. in 1993 from Cornell, where he was Articles Editor of the Cornell Law Review. He spent three years teaching at Northern Kentucky after a stint in legal practice with Cincinnati’s Taft, Stettinius & Hollister. In addition to Contracts, he teaches and writes in the area of health law, particularly on the doctor-patient relationship in managed care situations and in legal attitudes toward the mentally disabled. He’s also apparently a baseball fan, given that he’s got a piece called "Mickey Mantle and the Role of Celebrity in Regulating Organ Allocation," in a new book called Courting the Yankees: Legal Essays on the Bronx Bombers.
The provisions of the U.S. Postal Service's insurance contract trump the statements of one of its clerks to a customer, according to a federal district court in New York, and a customer who receives the policy acts unreasonably if he relies on the statements instead of the contract terms.
In the case, Arieh Gildor went to the post office in Cobleskill, New York to mail some gold rings to France. At the recommendation of an employee, he paid $49 to insure the package for $5,000. The package was not, in fact delivered, and was returned to Gildor -- but minus the gold rings. Gildor filed a claim with the USPS, which was denied on the ground that gold jewelry was explicitly excluded from coverage under the policy. Ultimately, he sued.
His first claim, negligence, was knocked out on sovereign immunity grounds, so he changed his claim to breach of contract. Trouble was, said the court, the back of the mailing label that Gildor was given listed all the prohibited items, which included both gold and jewelry. Since gold rings were clearly and unambiguously excluded from the policy, Gildor could not recover. Gildor then claimed that the post office, through its clerk, misrepresented the insurability of the rings to him. This, too, was a loser, because negligent misrepresentation is covered by the USPS's sovereign immunity. Finally, Gildor claimed equitable estoppel, claiming he relied on the statements of the clerk. But this reliance wasn't reasonable, said the court, since Gildor had been given the actual terms of the policy and should have seen that the goods were excluded. The court granted the motion for summary judgment.
Gildor v. USPS, 2005 U.S. Dist. LEXIS 13792 (N.D.N.Y., July 12, 2005).
1787: Friedrich Krupp, the patriarch of one of the world's great industrial families is born at Essen, Germany, to a family of gunmakers. In 1811 he'll start a small steel foundry in Essen.
1790: Scots economist and philosopher Adam Smith dies at Edinburgh.
1889: California trial lawyer Erle Stanley Gardner, the creator of Perry Mason, is born at Malden, Massachusetts.
1897: The Klondike Gold Rush begins as news reaches the United States of a gold strike at Rabbit Creek near Dawson, Yukon Territory. By the end of 1898, 40,000 gold-seekers and hangers-on will arrive.
1899: Nippon Electric Corp. (now NEC) becomes the first Japanese joint venture created with foreign capital. Its partner is the Western Electric division of AT&T.
1917: In the middle of a war with Germany, Britain's royal Saxe-Coburg-Gotha family (a branch of the ancient Wettin family) changes its name to "Windsor."
1955: Walt Disney's widely ridiculed Disneyland park opens at Anaheim, California. The Disney board had opposed the project, so Walt built it with his own money.
1961: Tyrus Raymond "Ty" Cobb, the greatest player of baseball's "dead ball" era, dies at Atlanta, Georgia. Cut from his first professional team, the Augusta Tourists, his contract was sold to the Detroit Tigers in 1905 for $750.
1995: The Nasdaq stock market index, which had started at a base of 100 in 1971, closes above 1,000 for the first time. Less than five years later it will hit 5,000; today it's 2,156.78.
1997: The Wal-Mart of its day, the 117-year-old F.W. Woolworth Co. closes its its last handful of U.S. stores.
Saturday, July 16, 2005
[Maj. Amos Dundee, assisted by Sgt. Gomez, is looking for men for a hazardous mission.]
Wiley: If you're lookin' for hard-ridin', Injun-fightin' whiskey drinkers, then by God you've got one!
Sgt. Gomez: He's the biggest drunk we could find, but a damn good mule packer.
Dundee: What's your name?
Dundee: Wiley. All right, make your mark.
Wiley [pausing]: Whiskey?
Dundee: All you can drink --
[Wiley quickly signs the contract]
Dundee: -- when appropriate.
[Sgt. Gomez escorts Wiley out of the room.]
From: Major Dundee (1965)
622 A.D.: The Muslim calendar, dating from the beginning of the year in which Mohammed and his make the Hijira to Medina, begins with 1 Muharram 1 A.H.
1769: Fr. Junipero Serra founds San Diego de Alcalá, the first mission in California, which he names for St. Didacus, a Spaniard who is patron saint of the Franciscan laity.
1782: Wolfgang Amadeus Mozart has his first big Vienna success with the premiere of his Abduction from the Seraglio.
1821: Mary Baker Eddy is born at Bow, New Hampshire. In 1879, at age 58, she'll found the Church of Christ, Scientist.
1880: Forty-nine year-old Dr. Emily Howard Stowe, a graduate of the New York Medical College for Women, becomes the first woman licensed to practice medicine in Canada.
1898: Labor lawyer Trygve Halvdan Lie (Oslo Law 1919) is born at Kristiania (now Oslo), Norway. An admirer of Lenin, he'll be elected in 1946 as a compromise candidate to become the first Secretary General of the United Nations.
1951: First-time novelist Jerome David Salinger publishes his The Catcher in the Rye, which will become one of the most-assiged novels in college history.
1997: The Dow Jones Industrial Average closes above 8,000 for the first time, hitting a record 8,038.88.
2005: The most-awaited book in the history of the known universe, J.K. Rowling's Harry Potter and the Half-Blood Prince, is released in stores throughout the English-speaking world.
Friday, July 15, 2005
Nehf is the Cleon H. Foust Fellow and Professor of Law at Indy, where he teaches contracts, commercial law, consumer law, and European community law. He’s a former editor-in-chief of the North Carolina Law Review, and clerked for Judge Phyllis Kravitch on the Eleventh Circuit. He practiced with O’Melveny & Myers in Washington, D.C., and then as a partner at Choate, Filler, & Nehf, before joining the faculty in 1989.
He’s written widely on contract and commercial law, particularly from the consumer perspective, and is a member of the International Consumer Law Association. He’s also the founding director of Indy’s European Law Program
Today (Friday) is the deadline for advance registration for the American Bar Association Annual Meeting in Chicago, August 4-9. The lead speakers (Justice Stevens, Justice Ginsburg, Attorney General Gonzalez, and Senator Clinton) aren’t likely to talk much about contracts issues, but the Business Law Section has lots of good program. Registration is here.
If you're going to be in the Windy City, remember that Thursday night, Aug. 4, is the Birthday Bash at Buddy Guy’s Legends, one of the world’s great blues clubs. In celebration, from Lonnie Johnson's Chicago Blues:
Chicago's all right to visit,
But please don't hang around.
You'll find the cool chicks and high slicks
And, boy, all those mellow fellows.
But when your bankroll is gone,
You're just another chump
That's dropped into town.
My first night in Chicago,
My friends really treated me fine.
Then overnight they all changed,
Like Daylight Savings Time.
And everything I wanted
I had to lay my money down on the line.
A man whose estranged wife ran up thousands of dollars on his credit card was out of luck because he failed to comply with the terms of the credit card agreement, according to a recent decision by the Maryland Court of Special Appeals.
Seems that Arthur Spengler, Jr., had opened a credit card account with Sears. He added his wife as an authorized user in 1996. The original card agreement obliged Spengler to notify Sears whenever his address changed. In 1997, Spengler paid off the credit card, destroyed it, and never used it again. It was his intention to close the account, even though he never notified Sears. In January 2001, Spengler and his wife separated, and he moved out of the house. Two months later, Mrs. Spengler received a bulk mailer from Sears (at Spengler's old address) saying the credit card was automatically upgraded to the Sears Gold MasterCard. Mrs. Spengler saw this and transferred her own credit card balance and made additional charges to the card, ending in a $5,638 balance. When Spengler refused to pay the balance, Sears reported him to credit agencies, which made him unable to get a bank loan. He sued Sears for breach of contract, defamation, and interference with business relations. A jury awarded him $145,000 in damages, but the trial court granted a motion for judgment notwithstanding the verdict, and Spengler appealed.
The breach of contract claim had no merit, said the court, because Spengler himself failed to follow the provisions of the contract. He assumed his ex-wife would destroy the card, which she didn't. He also failed to notify Sears of his change of address, so the court failed to see why his actions and inaction should be Sears's problem. Because the breach of contract claim had no merit, the defamation claim also failed because they were intertwined. And since Sears engaged in no "improper means" when it reported his defalcation to the credit agencies, the interference claim also failed.
Spengler v. Sears, Roebuck & Co., 2005 Md. App. LEXIS 93 (July 11, 2005).
1085: Robert Guiscard (i.e., "the Resourceful"), the Norman freebooter who expelled the Muslim rulers from Sicily and the Greek rulers from Italy, dies on the island of Kefalonia in the Aegean.
1381: A leader of the Peasants’ Revolt, the renegade Lollard priest John Ball, is hanged, drawn, and quartered. In his sermon exhorting the peasants, he’d said:
From the beginning all men by nature were created alike, and our bondage or servitude came in by the unjust oppression of naughty men. . . . And therefore I exhort you to consider that now the time is come, appointed to us by God, in which ye may (if ye will) cast off the yoke of bondage, and recover liberty.
1799: A French military officer supervising some construction at the port of Rosetta (now Rashid) discovers the Rosetta Stone, the key to deciphering Egyptian hieroglyphics.
1848: Future economist Vilfredo Pareto is born at Paris, France. He’s credited not only with the Pareto Efficiency Principle—so popular in Contracts scholarship—but with the 80/20 hypothesis, which is that for many phenomena 80 percent of the outcome is caused by 20 percent of the cause.
1870: The Hudson’s Bay Company cedes the area known as Rupert’s Land to the Canadian government. The cession amounts to about one-third of modern Canada.
1916: William E. Boeing, the son of a timber merchant who is fascinated by airplanes, founds Pacific Aero Products. A year later the name will be changed to Boeing Airplane Co.
1930: French critic and philosopher Jacques Derrida is born at El Biar, Algeria.
1948: General of the Armies John J. "Black Jack" Pershing (Nebraska Law 1893) dies at Washington, D.C.
1955: The first successful jet passenger plane, the Boeing 707, makes its first flight. It cost $16 million to develop.
1988: Twentieth Century-Fox releases Die Hard, which turns Bruce Willis into a star and rejuvenates the action/thriller genre.
1995: Amazon.com sells its first book: Fluid Concepts & Creative Analogies: Computer Models of the Fundamental Mechanisms of Thought, by Douglas Hofstadter.
2003: Once viewed as Microsoft’s principal rival for control of the Internet, Netscape Communications is disbanded by its owner, AOL Time Warner.
Thursday, July 14, 2005
Oberman joined the DePaul faculty in 1993, after earning a B.A. at Cornell and a J.D. and a Masters of Public Health from Michigan. In addition to her work in contracts, she’s known for combining feminist theory with health care law, most notably her book (written with Cheryl Meyer), Mothers Who Kill Their Children: Understanding the Acts of Moms from Susan Smith to the "Prom Mom."