January 8, 2005
The annual program hits its high point this afternoon, with the Contracts Section program at 1:30 p.m. Chair Juliet Kostritsky leads a panel on "Incomplete Contracts: The Implications for Contract Law." Panelists are Richard Craswell (Stanford), Avery Katz (Columbia), and Bob Scott and George Triantis (Virginia). The business meeting follows.
Today in history—January 8
1675: The first domestic American corporation is chartered, the New York Company for Settleing [sic] a Fishery in These Parts. It is one of only six corporations to be chartered in the country before independence.
1825: Inventor and manufacturer Eli Whitney dies. He was only 32 when, in 1797, he invented the process of manufacturing products from interchangeable parts. He breached his contract with the government to deliver 10,000 muskets by 1799—but the government fortunately forgave him and let him deliver six years late.
1838: The first telegraph message using dots and dashes is sent. It is “A patient waiter is no loser.” The code system was developed by Alfred Vail of Morristown, New Jersey.
1889: Dr. Herman Hollerith gets a patent for the first punch-card calculating system. It is successfully used on the subsequent 1890 census.
1901: The American Bowling Congress holds its first sanctioned tournament in Chicago.
1905: The logical positivist philosopher Carl Gustav Hempel is born at Orianenburg, Germany.
1942: Physicist Stephen Hawking is born at Oxford, England. In 1989, a research project done for Time-Life Books will disclose that his A Brief History of Time is the book that subscribers to Reader’s Digest Condensed Books most want to read. Only later is it discovered that the company that did the survey ranked the books exactly backwards.
1976: With Citizens Band radio at its zenith, C.W. McCall’s Convoy hits the top of the pop charts. “Ah, breaker 1-9, this here’s the Rubber Duck. You got a copy on me, Pigpen, c’mon?” “Yeah, 10-4, Pigpen, for sure. By golly, it’s clean clear to Flagtown, c’mon.”
1980: Physicist and engineer John W. Mauchly dies in Ambler, Pennsylvania. With John Eckert, he will develop in 1946 the first general-purpose electronic computer, the Electronic Numerical Integrator and Computer (ENIAC). .It consumes 100 kW of electric power and contains 18,000 electronic valves. They will also collaborate on the first commercial computer, UNIVAC, in 1951.
1987: The Dow Jones Industrial Average closes above 2,000 for the first time.
Farmers claim government breached water contract
The Supreme Court may be a whiz when it comes to criminal procedure or the Commerce Clause, but it doesn’t really do contract law. So it will be interesting to see what strange gyrations the Nine Wise Old Guardians go through in resolving a major contract dispute involving water rights in the West.
The case involves farmers and ranchers whose existing water rights are being infringed by federal action to protect endangered species or protect other environmental interests. The federal actions have driven many family farmers to bankruptcy, and they are suing. Law.com quotes their lawyer, William A. Smiland of Los Angeles: “[T]he rules may have changed in the middle of the game. We are going to ask the Court to reaffirm they haven't changed. We have a rule of law here.”
Cases—Notice—Reasonable notice required for right of first refusal
When a right of first refusal on a piece of real estate does not specify the notice period required, the right extends for a “reasonable” period, according to the Minnesota Supreme Court in a case of first impression. Similarly, the person holding the right has a “reasonable” time to respond.
Plaintiff David Dyrdal leased 630 acres of Red River Valley land from Golden Nuggets, Inc. He had a right of first refusal to buy the property if GNI decided to sell. One day in 2001, GNI’s farm manager orally notified Dyrdal that a contract for sale was pending, and gave him 48 hours to respond. Dyrdal did not respond within that time, claiming he had 45 days to respond. GNI went ahead and sold the property. Dyrdal did not attempt to exercise his right during the 45 days.
The 48 hour oral notice was unreasonable, said the court in an en banc opinion by Justice Russell Anderson:
We hold that when, as in this case, the lease provides the lessee with right of first refusal but is otherwise silent regarding the right, the lessor need only provide reasonable notice of the essential terms of an offer of sale to trigger the lessee's obligation to timely exercise his right of first refusal. We acknowledge that upon receiving notice of sale, the lessee may need to clarify or investigate uncertainties or ambiguities in essential sale terms before exercising the lessee's first refusal right, but we also hold that such inquiry, and lessor's response thereto, must be reasonable, timely and in good faith.
The plaintiff nevertheless lost, said the court, because he did not act even within the 45 days he claimed he had. Dyrdal v. Golden Nuggets, Inc., 2004 Minn. LEXIS 755 (Dec. 16, 2004).
January 7, 2005
The Mother Ship never stops innovating. Taking account of the problem of America's unhealthy diet, they've come up with a new approach to the beverage and snack stations between panels. Outside the meeting rooms they have large tables covered with piles of cups, but on which coffee and snack foods are never placed. There are tea bags, but no hot water. It's certainly good for us, but there were a lot of yawns at the mid-morning sessions. Yesterday was the day to skip out for a frolic, because traditional San Francisco drizzle is coming down today. Nothing can dampen the spirits of the crowds milling around the Hilton lobby, though. The ring of caffeine-free conversation of little knots of lively people echoes off the big inverted-wedding-cake chandeliers. The lobby is nice, but could use some remodeling. For example, the center is dominated by a large globe that is badly out of date, since it is labeled with places like "India orientalis," "Turcheftan," and the place that ought to be Siberia, although misshaped, is labeled "Carthaio." Australia, in particular, seems to be missing. Last night's Gala was a huge success, with hundreds of people standing packed together and looking for familiar faces. Most popular pickup line: "So, what's your research agenda?" More panels are on tap for this afternoon, and will certainly look interesting to those interested in those sorts of things. There are a good many social events tonight. SALT is having its Robert Cover Study Group. The topic will be, "The Attack of Civil Liberties." The brochure doesn't mention who or what they're attacking, but the best guess is the Bush Administration. It's at 7 p.m. Also at 7 p.m., the people who the real work in law schools, the Legal Writing folks, are having their Blackwell Award Reception and giving out their Golden Pen Award. The two items that look the best, though, are Vermont Law School's "Taste of Vermont" Reception from 7 to 9 p.m., and Samford/Cumberland's "12th Annual Dean's Dessert." See you there.
The Mother Ship never stops innovating. Taking account of the problem of America's unhealthy diet, they've come up with a new approach to the beverage and snack stations between panels. Outside the meeting rooms they have large tables covered with piles of cups, but on which coffee and snack foods are never placed. There are tea bags, but no hot water. It's certainly good for us, but there were a lot of yawns at the mid-morning sessions.
Yesterday was the day to skip out for a frolic, because traditional San Francisco drizzle is coming down today. Nothing can dampen the spirits of the crowds milling around the Hilton lobby, though. The ring of caffeine-free conversation of little knots of lively people echoes off the big inverted-wedding-cake chandeliers. The lobby is nice, but could use some remodeling. For example, the center is dominated by a large globe that is badly out of date, since it is labeled with places like "India orientalis," "Turcheftan," and the place that ought to be Siberia, although misshaped, is labeled "Carthaio." Australia, in particular, seems to be missing.
Last night's Gala was a huge success, with hundreds of people standing packed together and looking for familiar faces. Most popular pickup line: "So, what's your research agenda?"
More panels are on tap for this afternoon, and will certainly look interesting to those interested in those sorts of things. There are a good many social events tonight. SALT is having its Robert Cover Study Group. The topic will be, "The Attack of Civil Liberties." The brochure doesn't mention who or what they're attacking, but the best guess is the Bush Administration. It's at 7 p.m.
Also at 7 p.m., the people who the real work in law schools, the Legal Writing folks, are having their Blackwell Award Reception and giving out their Golden Pen Award.
The two items that look the best, though, are Vermont Law School's "Taste of Vermont" Reception from 7 to 9 p.m., and Samford/Cumberland's "12th Annual Dean's Dessert." See you there.
Town faces sewage, lawyers
The sewage problem in Cortez, Colorado, is getting worse. Not only is the city's proposed new sewage treatment facility stalled in mid-construction, but now they're faced with lawyers, too.
The Cortez Sanitation District is embroiled in a contract dispute with a contractor that walked away from the project. The contractor, RMCI of New Mexico, claims that the district and its engineers misrepresented the site’s soil conditions, provided misleading survey information and obstructed work through “overzealous work inspections.” It is seeking $12 million in damages for breach of contract and negligence. The district, which terminated the contract on September 7, claims RMCI has failed to do the required work.
Today in history—January 7
1782: The first commercial bank in the U.S., the Bank of North America, opens in Philadelphia.
1827: Sir Sandford Fleming is born. While surveying the route of the transcontinental Canadian Pacific Railway, he will come up with the idea of standard time zones as a way to simplify scheduling and control.
1871: Félix-Édouard-Justin-Émile Borel is born in St. Affrique, France. He is best known as the inventor of the “infinite monkey theorem,” under which a monkey given an infinite amount of time will inevitably type out every manuscript in the Bibliothèque Nationale de France. Every year students attempt to prove this on their law school exams.
1922: Actor Vincent Gardenia, who plays Murray Melman on L.A. Law is born.
1927: Transatlantic telephone service is inaugurated between New York and London. Thirty-one calls are made the first day, at $75 for five minutes.
1943: Nikola Tesla dies. Tesla invented the basic technology for alternating current, and sold the patent rights to George Westinghouse.
1946: Rock publishing entrepreneur Jann Wenner in born in New York City. He’ll go on to found Rolling Stone magazine in a San Francisco warehouse at age 21, using his wife’s family money.
1954: DuMont Laboratories introduces the Duoscopic television receiver, allowing viewers to watch two programs simultaneously. The company is too far ahead of its time; the product flops.
1970: Max Yasgur’s neighbors sue him for $40,000 for damage to their caused by the 450,000 people who descended on his farm for the Woodstock festival in August, 1969.
1998: Inventor Jerome L. Murray dies. In 1951, while watching passengers at Miami International Airport walking through the rain to get to their planes, he will invent the aircraft boarding ramp.
Cases—Interpretation—Usage of trade
A manufacturer of glass beads used in reflective paint was entitled to judgment because its products performed in according with normal usage of trade, even though they failed the buyer’s tests, according to the Indiana Court of Appeals in a 2-1 decision.
The manufacturer, Todd Heller, Inc., sold the beads to the Indiana Department of Transportation. They were required to meet certain moisture standards. The tests performed by Heller showed that the beads passed, but those performed by INDOT showed that they failed. It turns out that while both were doing the same basic test, Heller tilted the container and poured water in slowly, while INDOT just dumped water in. INDOT finally terminated the agreement, and Heller sued. Heller offered testimony that its method was the industry standard for performing the test. The trial court rejected the testimony and held for INDOT.
This was error, wrote Judge Riley. Under the Illinois UCC, trade usage is read into every contract. Here, Heller’s evidence that everyone in the trade poured water the same way it did was not rebutted, and was credible. Thus INDOT’s failure to conduct the test in accord with trade usage was a breach of contract.
In dissent, Judge Vaidik argued that the trade usage evidence was overridden by a specific clause, which said that “"All bidders are required to be familiar with the methods of sampling, testing and reporting that are used by [INDOT]. This may be accomplished by contacting the Materials and Tests Division. Such procedures will be binding upon the successful bidder throughout the contract period.” Since bidders were on notice that INDOT’s method, not the industry’s, would be used, she argued that the trial court’s decision should have been upheld. Todd Heller, Inc. v. Indiana Dep’t of Trans., 2004 Ind. App. LEXIS 2483 (4th Dist. Dec. 16, 2004).
January 6, 2005
Just when you thought they couldn't do it, the AALS has managed to hold its Annual Conference at a hotel that is just as big a rabbit warren as the Godawful Marriot Wardman Park. Here at the San Francisco Hilton, conference registration is up six escalators and around the corner from the main lobby. The message center is down the hall, around the corner, up two different escalators, down a hallway, hang a left, go down a short flight of stairs, go left again . . . .
There's a ton of stuff going on today, but this is being typed in the lobby of the Hilton, whose wireless network costs $.25 a minute to use, and so you can go read it yourself at the AALS website.
Widow sues for breach after husband’s body moved from grave
A widow whose husband’s body was moved from his grave without her knowledge is suing the town that operates the cemetery.
Carole Pomroy says she continued to visit the grave site and leave flowers for a “long time” after the town of Levant, Maine, had moved the body from the grave in Waugh Cemetery. She apparently did not notice that the ground had been disturbed because of snow cover. The town says that Mrs. Pomroy’s husband was erroneously buried in a plot already owned by someone else. The town’s attorney says that they tried to contact Mrs. Pomroy, but were unsuccessful.
She is seeking damages for breach of contract and emotional distress.
Today in history—January 6
1655: Mathematician Jacob Bernoulli is born. He’s best known as the guy who added the “integral” to “integral calculus.” The great thing about law schools is that calculus isn’t required.
1838: Partners Samuel F.B. Morse and Alfred Vail demonstrate the telegraph for the first time in public at the Speedwell Iron Works in Morristown, New Jersey.
1842: Geologist Clarence King is born. At age 25, he will conduct the geologic survey along the route of the proposed Union Pacific Railroad. As part of his study, he’ll find the first glaciers in the U.S.
1880: Cowboy/actor Thomas Hezekiah “Tom” Mix is born at Cameron County, Pennsylvania. He will become, as the “straight shooting, non-drinking, non-smoking, non-swearing champion of fair play,” the most popular star of his day, earning $17,000 a week.
1912: New Mexico enters the Union as the 47th state.
1916: Eugene T. Maleska, the long-time editor of the New York Times crossword, is born. After his death in 1993, the puzzles are changed to make to make them easier and more attractive to hip young people. Sample clue now: “Fred Flintstone’s best friend.”
1929: Sheffield Farms of New York puts milk into waxed cardboard containers instead of glass bottles for the first time.
1942: Pan American Airways makes the first commercial round-the-world flight.
1950: Schlitz Beer and NBC introduce The Halls of Ivy. Ronald Colman plays a blue-blood Ivy League college president, and his wife Benita Hume plays his wife, a world-famous actress. The series revolves around the funny college antics at their home at 1 Faculty Row. Amazingly, the public isn’t fascinated.
1952: The successful “Peanuts” licensing empire begins as Charles Schulz’s first syndicated Sunday strip appears.
1984: Getty Oil announces a $9.9 billion bid to take over Texaco.
1987: The Ford Thunderbird becomes the first car to win Motor Trend’s Car of the Year award twice. The first time was in 1958.
1997: The U.S. Court of Appeals for the Seventh Circuit rewrites UCC § 2-207 with its opinion in Hill v. Gateway 2000.
Cases—Filed rate doctrine—Customer can’t bring contract claim over rate filed with FCC
Telephone customers who brought a breach of contract claim after AT&T slapped them with undisclosed charges on their bills were undone by the filed rate doctrine, according to the California Court of Appeals.
AT&T advertised rates to consumers that did not include something called a “Subscriber Line Charge,” which it tacked onto bills when they went out. AT&T claimed that the amount was “imposed by” the Federal Communications Commission. It was not, in fact, required. It was, however, part of AT&T’s voluntary tariff filing with the FCC.
That was enough to trigger the filed rate doctrine, wrote Justice Kathryn Doi Todd. When a carrier has filed a tariff, allowing a state contract claim against the carrier by some customers would result in them receiving a lower rate than that posted with the FCC, which would be improper. The contract claims were therefore dismissed. Gallivan v. AT&T Corp., 2004 Cal. App. LEXIS 2150 (2d Dist. Dec. 15, 2004).
January 5, 2005
The Mother Ship’s annual conclave starts today in San Francisco, with the first events at around 2:00 this afternoon, Pacific time. It's cloudy but a bearable 50 degrees. Rain is, of course, expected throughout the weekend, but daytime temperatures should stay in the mid-fifties.
Today is somewhat slim pickings for commercial types, but you might be interested in the following, all of which start at 2 p.m.:
The Immigration and the Labor & Employment Sections are running a panel on Guestworker Programs: Proposals and Perspectives.
The Law & Economics Section is doing a panel on Experimental Methods. Details aren’t available in the program.
The Sections on North American Cooperation, International Law, and International Legal Exchange are putting on Dispute Resolution Under NAFTA and the WTO.
Tonight, from 7:00 to 10:00 p.m., the Section on Socio-Economics is hosting a reception. Historically, you’ve been able to have a pretty good dinner off the hors d’oeuvres at their get-togethers. There’s a slew of member school events, but the best-looking is the Wine Reception hosted by Whittier Law School, from 6:00 to 7:30.
Southern Cal joins elite group
The University of Southern California, which last night crushed Oklahoma 55-19 in the Fed Ex Bowl, will now likely become only the third university with a law school to win two undisputed football national championships since 1899. The Sooners were also bidding for that distinction, having also won an undisputed championship in 2000.
The other two—yesterday’s Trivia Question was wrong and the author has been summarily dismissed—are the University of Nebraska, which won titles in 1995 and 1971, and Yale, which performed the same feat in 1900 and 1909. Interestingly, no school without a law school has ever won two such championships.
"Undisputed" championships are those in which all the ratings services monitored by the NCAA name the same champion. Other schools that have won an undisputed championship: Miami (2001), Florida State (1999), Texas (1963), Michigan (1948), and Georgia Tech (1917).
Today in history—January 5
1794: Edmund Ruffin is born is born in Prince George County, Virginia. He will do much to introduce crop rotation and fertilization into the American south, will found the successful Farmer’s Register, and will be given the honor of firing the first shot at Fort Sumter, South Carolina.
1815: Delegates from Connecticut, Massachusetts, Rhode Island, Vermont, and New Hampshire, following as series of secret meetings at Hartford, issue a manifesto attacking the Madison administration and calling for seven new constitutional amendments, including two-thirds votes for declaring war or admitting a state, limiting a president to one term, prohibiting any state from providing two successive presidents, and apportioning taxes and representatives according to population.
1885: The Long Island Railroad becomes the first to provide piggyback service. Potato farmers can bring their wagons onto rail cars and have the wagons delivered to the city, without unloading.
1889: The word "hamburger" (for a ground beef patty) first appears in print, in a newspaper in Walla Walla, Washington.
1914: Ford Motor Co. announces that its new work day will be 8 hours and its daily wage will be $5—an unheard-of sum for factory labor.
1914: Aaron "Bunny" Lapin is born in St. Louis. After deciding that Washington University law school isn’t for him, he will go on to invent of aerosol whipped cream, introducing his "Reddi-Wip," to customers through local milkmen in 1948. It is now part of ConAgra Foods. Half of all aerosol whipped cream still comes in his red, white, and blue can.
1923: Sun Records founder Sam Phillips is born in Florence, Alabama. He will be 27 when he opens the Sun Studio. Among his stars: Elvis Presley, Johnny Cash, B.B. King, Howlin’ Wolf, Jerry Lee Lewis, Roy Orbison, and Carl Perkins.
1965: The rare pop song to raise an issue regarding the warranty of fitness for a particular purpose, the Searchers’ Love Potion No. 9, tops the charts.
1970: The soap opera All My Children premieres. It is originally set in fictitious Pine Valley, New York, but the locale is later changed to Pine Valley, Pennsylvania—perhaps to avoid New York’s fearsome Workers’ Comp rates.
Illinois gets new farmers’ contract laws
The law has always had a special fondness for farmers menaced by big city hustlers, and as of January 1, Illinois has added a new layer of protection, with the enactment of 100 new laws to protect the tillers of the soil (left) from exploitation by those who buy their products.
Among other things, the new provisions specify type size, organization, and language of contracts; prohibit unilateral termination by buyers; permit termination only for causes specified in the contract; and require such things as disease protocols for animals and seed segregation to be spelled out in the contract.
Cases—Interpetation—Junk fax to corporation isn’t “invasion of privacy” for insurance coverage
A mailer of junk advertising faxes can’t get its insurer to cover its statutory liability to angry recipients, according to a new opinion by Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit.
Capital Associates sent an unsolicited faxed advertisement to a hauling firm, allegedly in violation of the Telephone Consumer Protection Act. The hauler, not pleased, brought a class action on behalf of all of those who got the junk faxes. Capital claimed coverage from its insurer, American States Insurance on the ground that this was an "advertising loss" covered by its policy. American agreed to defend the suit, but reserved its rights, and then brought an action for declaratory judgment. The district court held for Capital.
The Seventh Circuit reversed. "Advertising loss" was defined under the policy as "oral or written publication of material that violates a person’s right of privacy." Another provision excluded injury that was "expected or intended from the standpoint of the insured." In a case of first impression at the appellate level, the court, applying Illinois law, held that an unsolicited fax is not an invasion of a business’s privacy, and the annoyance and waste of fax paper was fully intended by the insured. The mailer would therefore have to pay its own damages. American States Ins. Co. v. Capital Assoc. of Jackson County Inc., 7th Cir., No. 04-1659 (Dec. 23. 2004).
January 4, 2005
Football, panels make for exciting week
The very air is tingling with anticipation, as the nation kicks off one of the year’s biggest weeks. It starts tonight with the College Football National Championship game between the Southern Cal Trojans and the Oklahoma Sooners in the Fed Ex® Bowl at Miami's Pro Player® Stadium, and then continues with the AALS Annual Meeting, which thunders into San Francisco tomorrow.
The matchup between the Trojans and the Sooners promises some big-time thrills, but the teams will have their work cut out for them to match the sheer excitement of the four days of nonstop action that is the AALS, as law professors on expense account—many of them veterans of the Sixties who will have flowers in what remains of their hair—descend on the City by the Bay. All the details are in the massive 180-page program which is available online.
The Contract Section program is Saturday at 1:15, and features Juliet Kostritsky, Richard Craswell, Avery Katz, Bob Scott, and George Triantis, on "Incomplete Contracts: The Implications for Contract Law."
One of the two teams in tonight’s Fed Ex Bowl will likely become only the second university with a law school to win two undisputed national football championships since 1899, according to the NCAA. What is the other?
Today in history—January 4
1813: Sir Isaac Pitman, the inventor of the shorthand note-taking service that made court-reporting and dictation possible, is born at Trowbridge, Wiltshire.
1896: Utah enters the Union as the 45th state. Entry had been held up for a considerable period by resistance to the Mormon practice of polygamy. The constitution of the new state provides:
No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.
1928: The Dodge Victory Hour premieres on the NBC radio network. The show features Will Rogers, Al Jolson, and Paul Whiteman and his Orchestra.
1936: Billboard magazine runs the first pop chart based on actual sales figures. Debuting at number one? Joe Venuti’s Stop! Look! Listen!
1954: Young Elvis Presley pays $4 to the Memphis Recording Service to record two songs, Casual Love and I’ll Never Stand in Your Way. They will later be heard by Sam Phillips who signed Presley to Sun Records.
1961: Austrian physicist Erwin Schrödinger dies in Vienna. His cat has been featured in more than thirty law review articles.
1965: CBS buys the Fender Guitar Company for $13 million after founder Leo Fender becomes too ill to run the business. Employees and investors will buy it back from CBS sixteen years later. The Fender Precision bass (introduced 1951) and Stratocaster guitar (1954) are the most popular and enduring instruments of their type ever made. (Left, Motown legend James Jamerson with his 1962 Fender P-bass "The Funk Machine.")
1995: Dr. Newton Leroy Gingrich is formally elected Speaker of the House of Representatives. One of very few college professors ever to hold that post, he is best known for his "Contract With America."
2000: The first sign of trouble for the Tech Bubble—the NASDAQ index falls 229 points, or 5.6 percent. Widows and orphans pile their money into Red Hat on this "buying opportunity."