April 23, 2005
News in brief
Junior quarterback Alex Smith of the University of Utah is suddenly a lot richer, after being taken this morning as the number one pick in the NFL draft by the San Francisco 49ers.
NBC Television, which has a stake in the PAX TV cable network, says the latter's decision to drop network programs in favor of an all-informercial and commercial format is a breach of contract
By the "narrowest vote in its history," the Los Angeles teachers' union has agreed to a new contract, providing for 2 percent raises and avoiding a strike.
The Deflect-O Corporation of Indianapolis has received the contract to build the "desk apprentice" desk organizer designed by contestants on The Apprentice television program.
Speaking of "reality" shows, an American Idol contestant's "hardcore" rock band Pray for the Soul of Betty has signed a contract with Koch Records and will release its first album in May.
Hockey star Marian Gaborik, who fired his agents just before signing a $3 million contract, has been ordered by an arbitrator to pay them their commissions on the deal.
A Canadian hair dresser who found a fly in his bottle of Culligan water has received $340,000 in damages for the shock he suffered on seeing a fly in the bottle, even though he didn't actually drink any.
Is there any theory behind Realism?
Everybody seems to agree that since the days of Karl Llewellyn, American commercial law has been heavily influenced by Legal Realism. Yet hardly anybody seems to share the same conception of what Legal Realism is. In a new paper, The Realist Conception of Law, Hanoch Dagan of Tel Aviv University takes a crack at making sense out of the jumble of Llewellyn mysticism, Frank determinism, and Rodell rants that collectively go by that name. Dagan tries to fit the pieces together by positing Realism as a series of "constitutive tension" between the various strands:
A well known truism states that the realist conception of law is false or nonexistent. Those who view the infamous predictive theory of law as synonymous with the legal realist conception of law point to its well-known deficiencies. Others, who focus on the realists' suspicion of conceptual analysis, hold that legal realism fails to offer any interesting insights into the concept of law.
Almost as commonplace is the claim that the reason "we are all realists now" is that legal realism represented a crude revolt against formalism, assembling an incoherent set of rudimentary ideas. Once these various claims were developed by its later heirs, legal realism inevitably diverged into a set of distinct, sharp, and oftentimes conflicting perspectives on law.
This Article contests both of these clichés. It revives the legal realists' rich account of law as a going institution accommodating three sets of constitutive tensions—between power and reason, science and craft, and tradition and progress—and demonstrates how the major claims attributed to legal realism fit into this conception of law. Finally, this Article claims that the contemporary heirs of legal realism have each focused on one element of a single constitutive tension rather than refining, as conventional wisdom might hold, a confused collection of rudimentary claims. While contemporary accounts of law enhance our understanding of its characteristics, only the realist conception captures law's most distinctive feature: the uncomfortable, but inevitable, accommodation of these constitutive tensions.
Today in history—April 23
303: A senior military aide to the Emperor Diocletian admits that he is a Christian and is decapitated at Nicomedia (now Izmit) in what is now Turkey. As St. George, he will be venerated as the patron of England.
1348; King Edward III founds the Order of the Garter. "I like the Garter," Lord Melbourne will say some few centuries later, "There's no damned merit to it."
1533: The Church of England annuls the marriage between Catherine of Aragon and Henry VIII of England, thus turning Princess Mary (later Mary I) into a bastard. This doesn't increase her fondness for Protestantism.
1791: Lawyer James Buchanan is born in a log cabin at Cove Gap, Pennsylvania. In his inaugural address as President of the U.S. in 1857, he predicts that the Supreme Court shortly will settle the slavery question "speedily and finally" in its Dred Scott decision.
1813: Stephen Arnold Douglas, the lawyer and land speculator whose Kansas-Nebraska Act will ignite the fuse that will touch off the Civil War, is born at Brandon, Vermont.
1951: Charles Gates Dawes (Cincinnati Law 1886) dies at Evanston, Illinois. He is the only U.S. Vice President to both win the Nobel Peace Prize (1925) and to write the music for a hit song (It's All in the Game).
1968: The United Kingdom produces its first decimal coins, a 5p and a 10p coin.
1982: At Key West, Florida, the Conch Republic declares independence and declares war on the United States. It immediately surrenders and requests $1 billion in foreign aid.
1985: The Coca-Cola Co. announces the future of soft drinks: New Coke.
2001: Intel Corp. introduces the Pentium 4 Processor.
April 22, 2005
Film Clips: Monty Python
Hospital Administrator: Ah, I see you have the machine that goes ping. This is my favorite. You see, we lease it back from the company we sold it to, and that way it comes under the monthly current budget and not the capital account.
[Everyone in the room applauds]
Hospital Administrator: Thank you, thank you.
From: Monty Python’s The Meaning of Life (1983)
Cases: "Solicitation" isn't "advertising"
An insurance policy that covers loss caused by “advertising injuries” does not cover losses caused by a franchisee’s termination of its franchise agreement and soliciting its existing clients, says the California Court of Appeals in a rare published contracts opinion.
In the case, the franchisor sued for breach of contract, misappropriation of trade secrets, and unfair competition. The franchisee, claiming that this was a covered "advertising injury," demanded that its insurer provide a defense, and the insurer declined. The policy defined “advertisement” as “a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters.” The franchisee argued that its actions, which involved a public announcement, a breakfast meeting with customers, and notice on the Internet counted as “advertising.”
The court disagreed. Reading the clause broadly would essentially cover nearly any kind of business communication, said the court, and that obviously was not what was intended. Whatever advertising covers—and the court did not find it necessary to develop a complete definition—it is not the same as ordinary solicitation, which was not covered. Summary judgment for the insurer was affirmed.
Rombe Corp. v. Allied Insurance Co., 2005 Cal. App. LEXIS 600 (4th Dept. April 1, 2005).
Today in history—April 22
1500: Ships under Pedro Álvares Cabral, a Portuguese navigator on a trading mission financed by Florentine bankers, become the first known Europeans to sight Brazil.
1707: Henry Fielding, the London Chief Magistrate and co-founder of the city’s first police force, the Bow Street Runners, is born near Glastonbury, Somerset. He will also write Tom Jones.
1724: Philosopher Immanuel Kant is born at in Königsberg, East Prussia (now Kaliningrad, Russia.)
1864: The U.S. Congress passes the Coinage Act of 1864; the new two-cent coin it authorizes will be the first to carry the motto, “In God We Trust,” at the urging of President Lincoln.
1880: Future lawyer Vladimir Ilyich Lenin is born at Simbirsk, Russia. He’ll later find that law works too slowly when you’re trying to accomplish real social change.
1889: Some 50,000 land-hungry settlers drive, ride, or sprint in hopes of grabbing farms now opened for settlement in the Indian Territory, in what comes to be called the Oklahoma Land Rush.
1923: TV producer Aaron Spelling (Mod Squad, Starsky & Hutch, Charlie's Angels, Love Boat, Vega$, Hart to Hart, Dynasty, T.J. Hooker, Family, Twin Peaks, Beverly Hills 90210, Melrose Place) is born at Dallas, Texas. His L.A. home is the largest single-family dwelling in California.
1946: Harlan Fiske Stone (Columbia Law 1898), former dean of Columbia Law School and President of the AALS, dies at Washington, D.C. He was appointed to the Supreme Court by his Amherst classmate, Calvin Coolidge.
1975: ABC’s Barbara Walters becomes the highest-paid television news personality, with a five-year, $5 million deal.
1994: Richard Milhous Nixon (Duke Law 1937), the first U.S. President to lose his law license, dies at New York City.
2000: Federal agents seize six-year-old Elián González from his relatives’ home in Miami. That fall the Cuban-American vote in Florida will go strongly against Vice President Gore, probably costing him the election.
April 21, 2005
Bob Dylan on merchantability
Well, Mack the Finger said to Louie the King,
"I got forty red white and blue shoestrings,
And a thousand telephones that don’t ring.
Do you know where I can possibly get rid of these things?"
And Louie the King said "Let me think for a minute son."
Then he said "Yes I think it can be easily done—
Just take everything down to Highway 61."
Bob Dylan, Highway 61 Revisted
Album: Before the Flood
News in brief
The Economist magazine is reporting that housing starts in the U.S. are down sharply, suggesting that the "housing boom" is over.
A developer who got hard water instead of soft water is suing the municipality that promised to provide it, asking in part for an order that the water be softened.
Business is booming at a Great Lakes shipyard, which has received four new vessel contracts. One of them is for a new "unmanned, self-discharging, bulk cement barge" for American Transport Leasing Inc., which will service 15 U.S. Great Lakes terminals.
The University of California and its service workers have apparently reached a tentative agreement.
Former law firm partners who left for greener pastures are suing for a slice of the pie their former firm earned on the Microsoft antitrust suit.
Indian’s defense ministry is putting on hold an arms contract with South Africa’s state-owned Denel (Pty) Limited, amid allegations of corruption in connection with the contract.
The New York Yankees are apparently going to be hit with the largest "luxury tax" in baseball history—some $30 million. (Baseball teams must pay other teams 40 percent of the amount by which their player payroll exceeds $140 million.)
Thoroughbred horse breeders are looking to create a new contract with jockeys that would require them to pay damages if they don’t ride when they’re supposed to.
Cases: What does "employee" mean?
In the case, Wyeth SA v. Manqele, the plaintiff was hired under a written employment contract, with actual employment to start later. The plaintiff's contract was subsequently terminated for alleged dishonesty before the date that employment was to start. When the plaintiff sued in the Labour Court, the employer moved to dismiss on the grounds that he was not an "employee."
The court disagreed, holding that "employee" includes anyone who is a party to a valid employment contract, whether or not actual performance under the contract has begun.
Contract law and the constitution
Liberal theory in the 19th century saw in contract theory a powerful force for democracy and equality, and a good many battles were fought to give that right to disadvantaged groups, chiefly African-Americans and women. Does contract law still have something to say about liberty and equality? Hila Keren (Berkeley) thinks so, and has a new paper, "We Insist! Freedom Now": Does Contract Doctrine Have Anything Constitutional to Say? In it, she argues for a greater role for the doctrine of good faith in negotiations as a means of combating lingering discrimination. Click on the "Continue reading" link for the abstract.
On a daily basis countless people are refused contracts due to discrimination on account of their "Otherness" – their race, their disability, their gender, etc. Many of them are not welcomed by hotels, denied service in restaurants, rejected by banks when asking for a mortgage loan, and so on. The variety of transactions that are denied and the breadth of human interaction that they affect are simply overwhelming and result in a fundamental exclusion from the marketplace.
For years contract law has ignored this problem, while exclusive responsibility for contractual discrimination has been reserved for constitutional law and the antidiscrimination statutes that were enacted to fulfill egalitarian ideals. This Article attempts to break the contractual silence and to bridge the huge gap between discrimination and contracts by pressing up against traditional legal boundaries. Drawing on a broad understanding of the Thirteenth Amendment - as a promise of an egalitarian and mobile economy which heavily relies on contracts - the Article calls for addressing the problem of precontractual discrimination with contractual tools. Such a possibility has until now remained by and large unexplored, but as this Article seeks to show, it is an achievable and powerful step that can be well-integrated into up-to-date contract theory.
The Article first exposes the detachment between contract doctrine and the scattered antidiscrimination norms and analyzes the harmful consequences of this detachment. It then creates an original meeting point between the two bodies of law, one of which is intentionally located within contract doctrine. This point is found by dismantling the dominant concept of "freedom OF contact", and especially by defining and establishing the freedom to make a contract.
The novel insistence on the "freedom TO contract" – which gives the Article its name – is to be enforced, as proposed, through the duty to negotiate in good faith. Breaking contractual negotiations for discriminatory reasons, it is argued, should be seen as illegitimate business behavior, as an overt expression of bad faith that carries liability. One basis for imposing such precontractual liability can be found by applying to the issue of discrimination the "no-retraction" principle that was recently developed within the economic school of thought. Such reasoning is part of a more general effort to go beyond the opposition between equality and freedom by answering affirmatively the question raised by the Articles’ title: contract law has something constitutional to say and it is the commitment and enforcement of the essential freedom to contract.
Today in history—April 21
753 BC: Romulus founds a new settlement on the Palatine hills which he calls "Rome" in honor of the brother he slew. He attracts a population by offering sanctuary to refugees, criminals, and runaway slaves.
1142: French scholar and scholastic philosopher Pierre Abélard, whose most lasting fame came from his seduction of his young pupil Heloise—for which he was castrated—dies at Chalon-sur-Saône.
1836: Rebel Texas forces under Tennessee lawyer Samuel Houston surprise and rout the government army under General Antonio López de Santa Anna at the Battle of San Jacinto.
1864: Sociologist and political economist Max (The Protestant Ethic) Weber is born at Erfurt, Germany. He’s credited with defining the state as "a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory."
1912: The New York Giants and New York Yankees play an exhibition game to benefit survivors of the RMS Titanic.
1918: German fighter ace Baron Manfred von Richthofen is shot down and killed by Allied fire over Vaux sur Somme in France, giving his name to a popular brand of frozen pizza.
1944: French women get the right to vote.
1946: John Maynard Keynes, whose economic theories gave a tremendous boost to growing government expeneditures in the 1930s and 1940s, dies at Firle, Sussex.
1956: Heartbreak Hotel becomes the first Elvis Presley single to reach the top of the Billboard magazine music charts.
1970: Driven to rebellion by government farm quotas, the Hutt River Province secedes from the Commonwealth of Australia. They do not get recognition from other governments, but they sell a lot of knighthoods and T-shirts.
April 20, 2005
Great historical web site
There's a terrific web site for those of us who like the theory and history of contract law: Hein Online's great Legal Classics site.
It has about 100 "classic" legal works, including some by Blackstone, Langdell (left), Maine, Pufendorf, Kent, Story, Holmes, Pollock, Maitland, Hohfeld, Hale, Grotius, Ames, Berle & Means, Austin, Thayer, Bentham, Pound, Warren, Kant, and a bunch more. They're in facsimile, but you can search them. [UPDATE: We originally noted that the site was free, but it is not. It's available to Hein Online subscribers, which includes most law school libraries and faculty.]
One goody is C.C. Langdell's Selection of Cases on the Law of Contracts (1871).
(Thanks to Conglomerate Blog for the reference.)
News in brief
The University of California wins renewal of a 5-year, $2.3 billion contract to run the Lawrence Berkeley National Laboratory, after no one else bid.
St. Bonaventure University has settled its contract dispute with fired basketball coach Jan van Breda Kolff for an undisclosed amount.
Over-zealous ticketing at a retail park in Stevenage, Hertfordshire, has cost the management company its contract.
A New York City Councilman rep, sensing an election issue when he sees it, plans to lead a boycott of the Daily News if it refuses to kick in another $3-4 million in "restitution" for the dashed hopes of readers who got misprinted winning tickets.
A company called Motion DNA, whose products can allegedly analyzes baseball players for how likely they are to get injured (a factor that affects their career value), has landed a contract with a major scouting combine.
Mobil Oil has been hit in Ghana with a breach of contract judgment for 3.966 billion cedies (US$438,426) in favor of a local firm.
The Globe and Mail is reporting that some 30 percent of Canadian workers are now on what’s called "non-standard" work, including contract work, freelancing, and consulting.
Call for papers: Advertising and kids
Organizer Michelle Simon of the Center for Informed Food Choices—an outfit dedicated to combating the "industrial food economy"—is looking for 7-8 articles, with panel discussions both in Shakeytown and up at UC-Hastings. Click on the link for the call for papers.
CALL FOR PAPERS
I am writing to request your assistance on an exciting project. I have been asked by the editors of the Loyola of Los Angeles Law Review (at Loyola Law School) to put together a symposium issue on the topic of food advertising to children. While much as been written on this subject, not enough has been done in the way of legal analysis; that is the purpose of this project, to create a better understanding of the various options for regulation, among advocates and lawyers alike.
The issue will consist of 7-8 articles, mostly of the scholarly length. I am told that with footnotes, articles usually come in around 25,000-35,000 words. I will also include a few commentaries of any reasonable length. Topics might include, but are not limited to:
- Federal Trade Commission regulation (including history)
- First amendment issues: commercial speech doctrine and beyond
- Lessons learned from regulating tobacco and alcohol ads to kids
- Regulation in other countries: can the US emulate others?
- Can anything be done at the state level?
- Local applications: restricting marketing in schools, zoning laws
- Industry self-regulation: Children's Advertising Review Unit
- Litigation as a tool: consumer protection statutes
Papers will be due by August 1, 2005. I have a small budget to pay an honorarium to authors for full-length articles. In addition, I am planning two live panel discussions on the results of the writing, one in Los Angeles and the other in San Francisco (At UC, Hastings College of the Law, where I am teaching Health Policy) sometime in the fall, probably in October. While authors are not required to be part of these events to submit articles, it will add another exciting dimension to your participation, as I really want to try and bridge the gap between advocates and lawyers on this topic. Unfortunately, I have no budget for travel expenses, but you can certainly use the honorarium for that purpose. It's also possible that not all participants in the panel discussion will have submitted a paper, so if you are only interested in being on the panel, feel free to contact me about that as well.
Please forward this message to anyone you think might be interested and post to any relevant list-serves. I require a brief letter of inquiry prior to being selected and confirmed as an author. The letter should explain your topic and experience in the field. Please also send a CV. If you happen to be in the middle of writing a relevant article and are in need of a publication, feel free to send a draft. All materials should be sent me via email, if possible.
If you have any questions, please feel free to contact me. Thanks for your help and I look forward to sharing the results of this exciting and much-needed project!
Michele Simon JD, MPH
Founder and Director
Center for Informed Food Choices
PO Box 16053
Oakland, CA 94610
Sign up for Informed Eating--a free newsletter on the politics of food, here.
Credible threats and irrational breaches
In the mail today are reprints of three articles by Omri Ben-Shahar (Michigan) (left) and Oren Bar-Gill (NYU), all relating to aspects of coercion in contract and the doctrine of duress, a subject they’ve explored in more depth that probably anyone around today. The three are Threatening an "Irrational" Breach of Contract, 11 Sup. Ct. Econ. Rev. 143 (2004) (online here); The Law of Duress and the Economics of Credible Threats, 33 J. Leg. Stud. 391 (2004); and Credible Coercion, 83 Tex. L. Rev. 717 (2005) (online here).
The last piece makes the interesting and radical argument that sometimes legal remedies for duress put the victim in a worse position than if no such remedy existed. Omri has some additional reprints if you'd like one. Contact him here.
"Radical" bankruptcy changes
Like it or not, we've got a new Bankruptcy Code. Much of the hubbub has been about consumer lending, but there’s a lot more in the thing than that—including, for example, provisons that make it harder for commercial tenants to reject leases. The folks at the Commercial Law League of America are on top of the changes. They have three new upcoming telephone seminars to bring you up to speed.
Bankruptcy Reform Overview: Understanding the Radical Bankruptcy Code Changes (May 4, 1:30-3:30 p.m. EDT) (Register)
Business Bankruptcy Practice Under the New Code (May 25, 1:30-3:30 p.m. EDT) (Register)
Consumer Bankruptcy Practice Under the New Code (June 23, 1:30-3:30 p.m. EDT) (Register)
Today in history—April 20
571: The Prophet Muhammad is born in Mecca in what is now Saudi Arabia. A prosperous merchant, he will experience his vision at the age of 40.
1653: Oliver Cromwell dissolves the English Parliament. "You have been sat too long here for any good you have been doing. Depart, I say, and let us have done with you! In the name of God—go!"
1769: Pontiac, the Ottawa chief who in 1763 led attacks on the British for their refusal to allow free trade in firearms and ammunition, is murdered at Cahokia, Illinois, by a member of the rival Peoria tribe.
1862: Louis Pasteur completes the first test of his new "pasteurization" process.
1889: One of the few vegetarian artists to become head of a major European state, Adolf Hitler, is born at at Braunau am Inn, Austria.
1895: The Grunden-Martin Woodenware Co. sends a request for the "lowest price" from Fairmount Glass Works for an order of Mason jars.
1914: Colorado National Guardsmen clash with striking employees of the Colorado Fuel & Iron Co.; after a day of battle, 26 people are dead in what comes to be known as the "Ludlow Massacre."
1920: U.S. Supreme Court Justice John Paul Stevens (Northwestern Law 1947) is born at Chicago, Illinois.
1923: Rita Frances Rizzo, the nun who will found the EWTN broadcasting network (now in 110 countries) is born at Canton, Ohio.
1926: Western Electric Co. and Warner Bros. announce the new Vitaphone sound process, which will lead the next year to the first "talking" picture.
2001: Violence erupts at rallies in Quebec City protesting free trade.
April 19, 2005
Those who don't think Karl Llewellyn is God . . .
. . . may want to check out the new Religion Clause Blog, operated by Howard Friedman of the University of Toledo Law School. There's a story today that does touch on freedom of contract: Whether the state should force pharmacists who don't want to sell the so-called "morning after" pill to do so. Illinois has new "emergency" regulations that do that.
News in brief
A Florida jury says Alliance Capital Management isn’t liable for losses the state’s pension fund incurred in Enron stock—and also ordered the stay to pay $1.1 million in unpaid management fees.
Off-spinner Dan Cullen, 21, has been awarded a Cricket Australia contract after his first full season; while he doesn’t know the terms, he says it feels, like, "totally surreal."
Under a new pact, South Korea’s oil company will $300 million to develop gas fields in Vietnam, and Vietnam will sell the gas to Korea.
A deli owner in Westchester is fighting eviction to prevent construction of a new $350 million project on the site.
The U.S. Defense Department and its suppliers seem to be getting more reluctant to engage in new and innovative contracting methods, due to bad publicity and public pressure.
India’s Great Eastern Shipping is selling its 260,000-ton VLCC ("Very Large Crude Carrier") Vasant J. Sheth—named for the company’s founding director—for an undisclosed amount of money.
The Dallas school board is looking to an incentive-laden contract for its new superintendent, paying for such things as improved graduation rates and legal compliance.
Film Clips: Get Shorty
Bo Catlett: It says here you're getting Martin Weir for the part of Lovejoy?
Chili Palmer: That's right, we're getting Martin.
Bo Catlett: Come on, how you gonna do that?
Chili Palmer: I'm gonna take a gun, I'm gonna put it to his head, and say, "sign the fucking papers, Martin, or you're dead." That's it.
Bo Catlett: I wonder, would that work?
From: Get Shorty (1995)