ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, September 30, 2005

U Chicago Launches Faculty Blog

University_of_chicago The University of Chicago has announced a new “Faculty Blog,” on which a rotating array of its “friends, alumni, and faculty” will share their thoughts on a range of issues.  The new blog hits the electronic waves this Monday, October 3, as Saul Levmore, Randal Picker, Lior Strahilevitz, David Strauss, Cass Sunstein, and Douglas Lichtman address issues related to Hurricane Katrina.

[Frank Snyder]

September 30, 2005 in Law Schools | Permalink | TrackBack (0)

Dark Lord Sues Oprah

In what is likely to become a major celebrity case, Satan is suing media mogul Oprah Winfrey for breach of contract, claiming that she’s failed to keep her end of the bargain under which she sold her soul in exchange for fame and fortune. 

The complaint claims that Winfrey signed the agreement with Diabolical Interests Groups, Inc., some 20 years ago.  Satan claims that Winfrey’s obligations were to “openly disseminat[e] evilness and wrong doing throughout the community,” which she has failed to do.  A spokesman for the entertainer/entrepreneur denies the charges:

Oprah admits that she did sign a contract with Diabolical Interests in the eighties.  However, she denies categorically that she has acted in any way that would breach this contract. She is prepared to fight this suit and feels that she would be vindicated by a court of law. She believes her show does support the interests of Satan and evil and has viewer statements that they would rather go to hell than watch another show of hers as evidence.

[Frank Snyder]

September 30, 2005 in In the News | Permalink | TrackBack (0)

Southern Cal Marks 125th Anniversary

Usc_festival The USC Law School is holding a number of events starting next week to mark the 125th anniversary of its parent institution.  The schedule is here.

[Frank Snyder]

September 30, 2005 in Law Schools | Permalink | TrackBack (0)

Today in History: September 30

1399: Henry IV becomes the first English king since the Conquest 333 years earlier to make his coronation address in English.

1882: The Appleton Edison Electric Co. opens the first U.S. hydroelectric plant, on the Fox River at Appleton, Wisconsin.

1913: Inventor Rudolf Diesel, en route to a meeting with English manufacturers interested in licensing his engine, disappears mysteriously from the S.S. Dresden at Antwerp; his body will be found floating in the river.  Authorities say “suicide,” his family says “murder.”

1930: The first episode of Death Valley Days airs on NBC Radio.  It’s created and written by an advertising woman who’s never seen Death Valley, but thought up the idea as a great vehicle for her client’s product, 20 Mule Team Borax.

1935: A new musical, Porgy and Bess, flops badly on its opening at Boston’s Colonial Theater.

1938: The League of Nations unanimously outlaws the intentional bombing of civilians.  The rule will be honored more in the breach than in the observance.

1947: The first baseball World Series is broadcast.  Gillette and Ford Motor Co. pay $65,000 for the sponsorship rights.

1953: President Eisenhower appoints California Governor Earl Warren to be Chief Justice of the United States.

1970: Actress Shirley Maclaine makes her mark on casebook history when the California Supreme Court comes down with Parker v. Twentieth Century-Fox.

September 30, 2005 in Today in History | Permalink | TrackBack (0)

Thursday, September 29, 2005

News in Brief

Lil Jon has sued Hustler magazine owner Larry Flynt for $30 million, after the porn king used footage from one of the rapper’s concerts in a sex video without permission.  (

Ford Motor Co. says it’s going to cut costs and improve supplier relations by slashing the number of its suppliers and giving them larger, long-term contracts which give them more input in the design process.  (Associated Press)

The British father who spent nearly £200,000 in legal fees to get his son -- “the most ill-disciplined pupil ever to have darkened Marlborough College's celebrated classrooms” -- saw his money go for naught after an English judge ruled for the college on his breach of contract claim.  (The Times)

Faculty at Florida Atlantic University are saying that a dispute over pay for summer teaching is delaying implementation of promised pay raises, which the administration wants to tie to a global contract settlement.  (Miami Herald)

A spinoff company is suing Sandia National Laboratories for breach of contract and fraud, claiming that Sandia didn’t deliver on contractual promises to deliver technology.  (SmallTimes)

The Czech Republic’s Supreme Administrative Court has ruled that customers cannot move their phone numbers to a new cellular phone provider until their previous cell phone contract ends.  (Prague Daily Monitor)

Milwaukee Symphony Orchestra musicians have agreed to a new contract that cuts their minimum salaries from $56,000 to $53,000 a year.  (Milwaukee Journal Sentinel)

Meanwhile, the Pittsburgh Symphony, which pays its musicians a base of $101,000, is seeking to cut wages to a base of $93,000 (KDKA-TV)

Faculty from the University of the Philippines Law Center testified yesterday before a Philippine Senate Committee investigating a controversial $500 million rail contract with a Chinese company.  (ABS-CBN)

The Canadian Broadcasting Company, which has locked out its employees over a dispute about contract-worker hiring, says it’s willing to limit new contract hires to 90 a year, but the union says there are already far too many.  (Globe and Mail)

[Frank Snyder]

September 29, 2005 in In the News | Permalink | TrackBack (0)

A Law Firm By Any Other Name

Law firms are getting larger, but law firm names are getting shorter.  For example, my friend Jonathan Golden recently joined WilmerHale, the firm created by the merger of Wilmer Cutler & Pickering and Hale and Dorr.  One article documents how partners at some firms have been unhappy with their names being dropped, and how they hoard the old firm stationary that has their names on it until the paper runs out. 

Perhaps law firms will begin selecting partners not based on length of service with the firm or influence, but on the basis of how those last names sound.  Snyder, Chomsky, Barnes, Cherry, Miller, Rowley & Safranek?  Ah, I suppose “ContractsProf Blog” does sound much more catchy after all.  [Hat-tip: Alyssa DiRusso (Samford / Cumberland)]

[Miriam Cherry]

September 29, 2005 | Permalink | TrackBack (0)

Catholic Law honors Frankino

Catholic University's Columbus School of Law is paying its respects to Villanova professor Steven Frankino -- an alumnus and former dean of CUA -- who died yesterday after a long bout with cancer.  Frankino was dean there from 1979 to 1986.  The school is taking contributions for its Steven P. Frankino Scholarship Fund for Latino Law Students.  Contributions can be sent to:

The Catholic University of America Columbus School of Law
Office of Institutional Advancement
     Attn: Margaret King
3600 John McCormack Road, NE -- Suite 339
Washington, DC  20064

[Frank Snyder]

September 29, 2005 in Contract Profs | Permalink | TrackBack (0)

Interpretation: Is it a "hole in one" if you use a mulligan?

Iowa_flag A promising potential casebook classic has been thwarted by a settlement.  Iowa jurors were deliberating what counts as a "hole-in-one" for purposes of a nonprofit organization's promise to pay $10,000 for a hole-in-one at a charity golf tournament, when the claimant and the defendants settled for an undisclosed amount.  A good summary of the background is here.

High school student Adam Fisher was playing in a local Future Farmers of America charity golf tournament.  Organizers promised $10,000 to anyone who made a hole-in-one at the tournament.  They also offered to sell "unlimited mulligans" -- a "mulligan" is the chance to do a shot over again without a penalty -- to participants.  After Fisher's first tee shot on a 196-yard par-3 fifth hole hole went bad, he used a mulligan, and his next tee shot went into the hole.

The FFA refused to pay the $10,000, chiefly because the insurance carrier whose policy was to pay the prize had specifically forbidden mulligans and thus would not have to pay the prize.  An Iowa trial judge ruled that evidence of the insurance policy limitation could not be introduced at the trial, on the grounds that Fisher's claim was a contractual one against the FFA.

[Frank Snyder -- hat tip to Debbie Zalesne (CUNY)]

September 29, 2005 in In the News | Permalink | TrackBack (0)

Ninth Circuit looks at arbitration unconscionability

Ninth_circuit_4 Is the claim that an arbitration agreement is unconscionable one to be decided by judges or by arbitrators?  That’s the issue in a closely watched case in the Ninth Circuit, where an en banc panel of judges on Tuesday heard oral arguments on the matter.

The case, Nagrampa v. MailCoups, Inc., involved a franchisee-franchisor dispute.  Plaintiff held a MailCoups franchise in California.  The franchise agreement required that all disputes be arbitrated under American Arbitration Association rules in Boston, Massachusetts, and provided that the two sides would split arbitration costs fifty-fifty.  Arbitration was to apply to:

Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, including, without limitation, any claim that this Agreement or any portion thereof is invalid, illegal or otherwise voidable or void . . . .

Nagrampa, who claimed that she didn’t know about the arbitration agreement when she signed the form franchise contract, originally participated in the arbitration, but then filed suit claiming that the clause was unconscionable.  A three-judge panel of the Ninth Circuit held that the question of unconscionability was one for the arbitrators to decide, not the judge.

Nagrampa's brief on rehearing is here.  Commentary on the case can be found at BNA, ACS Blog, and the ADR Institute.

[Frank Snyder]

September 29, 2005 in Recent Cases | Permalink | TrackBack (0)

When is a Broker’s Job Fully Performed?

New_york_flag_6 When a lessee uses a real estate broker to locate an apartment, and the lessee and the landlord reach a deal but later mutually rescind it, should the broker get to keep the fee?  The answer depends on the language in the broker's contract with the lessee.

Marco Srour requested that Dwelling Quest Corp, a real estate brokerage firm, assist him in finding a Manhattan apartment. The broker assisted Srour in finding an $11,000 a month penthouse. Srour signed a lease with the landlord and paid his first month's rent and security deposit. Srour requested certain, minor repairs to the apartment before he moved in, and the landlord agreed to make those repairs. Srour then paid the broker $13,000 in cash for his commission.

Something went horribly wrong, however, in the time between the lease signing and Srour's move-in date. When Srour showed up to the apartment in was no longer habitable:

the windows were covered; scaffolding was in place; the ceiling in the master bedroom had caved in from a water leak; the whole roof was being ripped up to prevent leakage and the unit's wraparound terrace was completely inaccessible. Renovation work was expected to take six to eight months, which included constant drilling.

Srour demanded that the landlord cancel the lease and return his first month's rent and security deposit. The landlord complied. Srour then asked the broker to return the commission fee. The broker refused; Sour sued. The question becomes: when was the broker’s job fully performed? The parties’ contract defined the broker’s job as “assisting in the location and renting of a suitable apartment.”

The trial court held that the broker had to return the commission because he had not presented a “suitable” apartment for rental. The Appellate Term affirmed. The Appellate Division reversed. The Appellate Division majority held that “the apartment in question constituted a ‘suitable apartment’ at the time it was located and rented, and the signing of the lease was specified as the critical moment at which the broker's commission was earned.” The court noted that the broker’s obligation to assist in finding a suitable apartment was separate and distinct from the landlord’s obligation to deliver a habitable apartment, and it was the landlord who breached his obligation. The court noted:

Of course, the "parties to a brokerage agreement are free to add whatever conditions they may wish to their agreement" (Feinberg Bros., supra at 830 [citation omitted]). For instance, in Graff v Billet (64 NY2d 899 [1985], affg 101 AD2d 355 [1984]), the parties specifically included in their agreement that the commission would be due and payable "as, if and when title passe[d], except for willful default on the part of the seller" (101 AD2d at 355). Therefore, in Graff the broker did not earn the commission merely by presenting a willing purchaser, or even upon the signing of a contract; it was earned only at the time of the contract's closing, when title passed (id.).

Here, however, unlike Graff, the parties did not insert in the agreement any "precondition" requiring that the tenant be in occupancy in the residence before the broker's obligation is discharged and the commission earned. There was no provision or condition that the broker's obligation to the client would continue until the client took occupancy. The only "condition" supplied by the written brokerage agreement was the provision specifying that once a suitable apartment had been located and rented, the commission would be payable upon the signing of a lease. Nothing was included in, or added to, this brokerage agreement, which could be interpreted as extending the broker's general obligation to the plaintiff past the date when the lease was signed.

The two-Justice dissent would have affirmed “because defendant did not meet its obligation of procuring a ‘suitable’ apartment for plaintiff ‘[t]he entire transaction can only be reasonably viewed as a nullity, as it was by the immediate parties to the lease.'"   

New York’s highest court will hear oral argument in the case next month.

Srour v. Dwelling Quest Corp., 11 A.D.3d 36 (N.Y.  App. Div. 1st Dep't 2004).

[Meredith R. Miller]

September 29, 2005 in Recent Cases | Permalink | TrackBack (0)

Today in History: September 29

1725: Robert Clive is born near Market Drayton, Shropshire.  At age 26, a civilian factor in the employ of the East India Company, he’ll take command of a mixed Anglo-Indian force of 500 men and begin the campaigns that will make India British.

1829: London’s newly reorganized police force - known as “Peelers” or “Bobbies” after the author of the Metropolitan Police Act, goes on duty from its new headquarters at Great Scotland Yard.

1907: The original Singing Cowboy, Orvon Gene Autry, is born near Tioga, Texas.  He’ll make his real money not from his film, radio, recording, and television success, but from his real estate dealings.

1916: John D. Rockefeller’s personal wealth is said to cross the $1 billion mark, making him the first American billionaire.  Using the relative share of GDP as a comparison, that would make him worth around $240 billion today.

1946: Wildroot Cream Oil (“Relieves dryness, removes loose dandruff!”) of Buffalo presents the first episode of The Adventures of Sam Spade.

1961: A New York Times review of a performance by Bob Dylan brings the unknown minor to the attention of John Hammond of Columbia Records.

1962: After six and a half years, My Fair Lady closes on Broadway, setting what is then a record for the longest-running musical.

1996: Nintendo sells 500,000 copies of its new Super Mario 64 game on its first day of issue.

September 29, 2005 in Today in History | Permalink | TrackBack (0)

Wednesday, September 28, 2005

Fordham Law turns 100

Fordham_centennial Congratulations to Fordham Law School, which is marking its 100th anniversary tonight with a gala event at Gotham Hall in New York City.  A plethora of judges, city officials, and notable alumni will gather for the event.  The Fordham Law community has pledged, in honor of the anniversary, to 100,000 hours of public service work.

[Frank Snyder]

September 28, 2005 in Law Schools | Permalink | TrackBack (0)

News in Brief

England’s prestigious Marlborough College is in court, defending itself in a breach of contract action brought by a parent over the expulsion of a pupil for “smoking, drinking, and bullying.”  (The Times)

A new law in Idaho says that contractors who fail to register with the state, post a bond, and prove they have workers’ compensation insurance will not be able to sue for damages on their construction contracts.  (Bonner County Daily Bee)

Lawmakers are looking into the FEMA contract with Carnival Cruise Lines under which Carnival will house some 7,100 refugees on three of its ships.  (WTVY Television)

A Jackson County (Mo.) jury has awarded $800,000 in punitive damages to a couple whose insurance claim was denied by State Farm on grounds of fraud.  (Kansas City Star)

Indonesia says ExxonMobil won’t get an extension of its contract to develop a China Sea natural gas block unless it gets moving and starts development.  (Forbes)

The English Rugby Football Union and Premier Rugby look like they’re heading to court over a contract dispute between the central organization and three clubs.  (

Wisconsin election officials are feeling pressure to terminate Accenture’s contract to develop the state’s first statewide voter list, based on delays that could cost America’s Dairyland a substantial amount of federal funds.  (Capital Times)

Supermodel Kate Moss, whose cocaine use cost her major fashion contracts, is now being offered a five-year, $5 million “spokesmodel” deal by an Internet gambling site, which points out that its target audience is males ages 21 to 45.  (

[Frank Snyder]

September 28, 2005 in In the News | Permalink | TrackBack (0)

Requiescat in pace: Steven J. Frankino

Steven_frankino Villanova University has announced that longtime Contracts professor and former dean Steven R. Frankino died this morning.  Frankino led the Philadelphia school from 1986 to 1997, after serving as dean of the law schools at Creighton University and the Catholic University of America.  A member of the American Law Institute, he was widely known for his activities with the ABA and AALS.  Here's a portion of his biography on the Villanova web site:

Professor Frankino graduated from Catholic University of America, Columbus School of Law in 1962, where he was a member of the Catholic University Law Review and was elected to the Order of the Coif.  He was Teaching Fellow at Northwestern University School of Law (1962-63), Assistant Professor at Catholic University of America, Columbus School of Law (1963-65), and a Professor at Villanova University School of Law (1965-71).  He also was a Research Professor at the Institute of Comparative Law, University of Florence, Italy in 1970. He served as Dean of Creighton University School of Law from 1971-77, and was a partner at the law firm of Kutak, Rock & Huie from 1977-79.  He was the Dean of the Columbus School of Law and the General Counsel of Catholic University of America from 1979-86.  In 1986, he returned to Villanova as Dean, and served as Dean until 1997 when he resigned to assume a position on the faculty.

A Requiem Mass will be held at the St Thomas of Villanova Church on the university campus at 12 noon on Monday, October 3, with a reception to follow at the Villanova Conference Center.

[Frank Snyder]

September 28, 2005 in Contract Profs | Permalink | TrackBack (0)

NCCU kicks off building project

Nccu_law_school North Carolina Central University's Law School is breaking ground today in a $9 million addition to its Albert E. Turner Law Building (left).  It's just one of more than $60 million in capital projects that the Durham school is kicking off this week.

[Frank Snyder]

September 28, 2005 in Law Schools | Permalink | TrackBack (0)

A Failure to Evolve?

At law. com, Stephen J. Friedman, dean of Pace Law School, provides insightful commentary concerning the disjunction between the law school curriculum and the practice of law.  He argues that, "[w]hile we don't need radical changes in a law curriculum that has worked for a long time, legal education must be brought into closer alignment with the need of law students to hit the ground running when they begin to practice law."  To read A Pracitical Manifesto for Legal Education, go here.

[Meredith R. Miller]

September 28, 2005 in Teaching | Permalink | TrackBack (0)

Today in History: September 28

1066: Duke William of Normandy lands at Pevensey in Sussex with 7,000 men and a prefab wooden castle, determined to assert his claim to the English throne.

1542: Spanish explorer Juan Rodriguez Cabrillo lands at a fine natural harbor on the California coast, which he names San Miguel.  Missionaries will later call it San Diego.

1705: Henry Fox, first Baron Holland, is born.  As paymaster of the Army, he’ll make a tidy fortune by delaying payments to soldiers and skimming off the accumulated interest.

1820: Legend says that at Salem, New Jersey, Robert Johnson eats a bushel of tomatoes to prove to  skeptical residents that the fruit (vegetable?) isn’t poisonous.

1901: William Samuel Paley is born at Chicago, Illinois.  Taking over the little Columbia Phonographic Broadcasting System in 1928, he’ll pioneer the system under which networks give free programming to affiliates in exchange for advertising space, and will drop the “Phonographic” from the company’s name.

2000: Pierre Elliot Trudeau (Montréal Law 1943), Canada’s fifteenth Prime Minister, dies of cancer Montréal.

2000: Danish voters, by 53-47% vote, reject membership in the European Monetary Union.

September 28, 2005 in Today in History | Permalink | TrackBack (0)

Tuesday, September 27, 2005

News in Brief: September 27, 2005

Amerada Hess is facing a consumer class action in Florida over its practice of putting a $75 hold on checking accounts for debit card payments, even when the sale amount is less.  (The [Lakeland]Ledger)

The African-American Word religious radio network is suing Sirius Satellite Radio for breach of contract and discrimination after Sirius cancelled its contract to carry the network..  (PR Newswire)

Analysts are saying that a new contract for Boeing’s striking machinists could be a win for both sides.  (Indianapolis Star)

The University of California’s contract to run the Lawrence Livermore National Laboratory has been extended two years, with a base fee of $2.8 million and incentives up to $4.3 million.  (Contra Costa Times)

The University of the Philippines Law Center has issued a paper declaring a railway contract between North Luzon Railways and a Chinese developer is unlawful.  (Manila Times)

The U.S.’s Motorola has won a contract from 17 developing countries to produce some 6 million low-cost mobile phones which will wholesale for less than $30 each.  (BBC News)

A Florida court has ruled that gun manufacturers’ insurance policies do not cover claims against them for violence-related costs, because the guns used in such violence are not defective. (Daily Business Review)

[Frank Snyder]

September 27, 2005 in In the News | Permalink | TrackBack (0)

A modest solution for high casebook prices

Ian_ayres The price of casebooks used in law schools is high, due in part to lack of price competition among suppliers, but also due to the fact that the professors who pick the books get free copies and have no financial incentive to assign cheaper books.  Yale's Ian (Studies in Contract Law) Ayres offers an interesting solution to the problem.

[Frank Snyder]

September 27, 2005 in Commentary | Permalink | TrackBack (0)

Kate Moss gets support in contract cancellations

Fellow supermodels are rallying around Kate Moss, who’s seen four of her modeling contracts canceled after she was photographed snorting cocaine.  Nicky Hilton, a featured model for the Antz Pantz line of underwear, called the situation “kind of a bummer,” while her colleague Kimberly Stewart said “it really makes me sad and I think that it is just a bummer that it happened.”

[Frank Snyder]

September 27, 2005 in In the News | Permalink | TrackBack (0)