January 15, 2005
Computer difficulties mean that blogging on this site is going to be minimal until Tuesday. Sorry for the inconvenience.
Today in history—January 15
1759: The British Museum, the oldest national public museum in the world, opens. The original collection was assembled by Sir Hans Sloane; it was acquired by Parliament from his heirs.
1861: Inventor Elisha G. Otis of Yonkers, New York, receives a patent for what he calls a “hoisting apparatus” but is later known as the “safety elevator.” Otis’s contribution was the device that prevents the car from falling when the cable breaks—a major innovation in increasing its popularity.
1863: The first newspaper published on wood-pulp paper is produced. It’s the Boston Morning Herald.
1936: The world’s first all-glass office building is finished in Toledo, Ohio. Fittingly, it’s the headquarters of the Owens-Illinois Glass Company laboratory.
1943: Speaking of office buildings, the world’s biggest opens in Arlington, Virginia. The five-sided structure is dubbed “The Pentagon.”
1967: The first Super Bowl is held, pitting the NFL champion Green Bay Packers against the AFL champion Kansas City Chiefs. The Pack rolls 35-10.
1970: The “Henry Ford of Aviation,” William T. Piper, dies at 89. His two-seater “Piper Cub” became America’s most popular small aircraft.
1987: Paramount Pictures puts the first paid advertisement on a home video, a 30-second Pepsi commercial at the beginning of Tom Cruise’s Top Gun.
January 14, 2005
Passover is "service," not "good" for UCC purposes
A catered ten-day "Passover Retreat" is a "service," not a "sale of goods," according to a New York judge, as reported via Law.com in the New York Law Journal.
In the case, the defendant allegedly agreed to pay $24,000 for 15 of his family members to spend 10 days at Passover at a country club. He claimed he never entered into the deal, and his family did not go. There was no written agreement, but the caterer sued. The defendant moved to dismiss on statute of frauds grounds under UCC § 2-201.
New York applies to "predominant purpose" test to mixed transactions, and the defendant claimed that the "very essence" of the contract was the food—"the presentation and enjoyment of abundant, frequent and high quality Kosher for Passover cuisine."
The essential religious obligation during this eight day period—and the principal reason why people attend events similar to the Program sponsored by plaintiff—is in order to facilitate their fulfillment of the requirement to eat only food which is prepared in strict accordance with the mandate of Jewish law for Passover.
The trial court judge, however, saw a lot more than eating going on.
The activities possible include tennis, racquetball, swimming, Swedish massage, "'make over face lift show," "'trivia time," aerobics, bingo, ice skating, dancing, "showtime," "power walk," arts and crafts, day camp, ping-pong, Yiddish theater, board games, horse racing, horseback riding, wine tasting, and indoor baci—and that is only through Wednesday.
He had no trouble finding that the "essence" of the transaction was a "family communal experience," and therefore the UCC statute of frauds did not apply.
Letter from the Chair
At the Section Meeting at the AALS Annual Meeting, incoming Chair David Snyder (no relation), delivered an open letter to Section members, outlining his thoughts about the coming year. To read it, click below.
January 8, 2005
I am honored to serve as chair of the Section for 2005. As we look forward to a new year, I would like to highlight some of our activities and to share a few of my thoughts. Rather than providing the details here, I will send out a more elaborate version of this letter via the listserv so the information will be available more conveniently. If you are not on the listserv and would like a copy, please let me know. There are many opportunities to be involved, and I hope you will take advantage of them.
To begin, let me thank everyone who has served the Section so well, particularly Juliet Kostritsky, our chair for the last year, and Hazel Glenn Beh, our past chair. I would also like to thank Carol Chomsky for running our listserv and Frank Snyder, who edits our outstanding newsletter and who has now taken over our web presence from Scott Burnham, who has given us many years of service. Let me also thank those who will continue to serve with me on the executive committee in the coming year. I hope you will feel free to contact any of us:
I hope that the coming year will bring more chances to become involved in the section, to meet colleagues, and to explore the law of contracts. There are several possibilities to pursue.
Informal gatherings. Gathering for panels and presentations is an academic pleasure, a privilege of being a professor. Aside from these more formal occasions, though, many would like to spend more time talking about contracts-learning from each other. Because the presentations often allow little time for those not presenting, I hope that informal gatherings will provide more opportunity for interaction. Our first one will be today [January 8] from 5:30 to 6:30 or 7:00. We will meet for drinks and will have a chance to follow up the topics from today's presentations, to discuss opportunities for involvement in the Section, and to let the discussion range where it may. I am sure we can find a chance for similar gatherings at the mid-year meeting this summer, as well as at the annual meeting next January.
Mentoring and scholarly review. The Section can help provide new teachers, and teachers new to contracts, with a mentor. While there have been some efforts along these lines in the past, I am not sure how widely (or if) the idea was implemented. This year I hope that this program can provide some guidance to anyone who would like it. In addition, we can try to link those working on particular articles with others who are interested in reading drafts. If you would like a mentor or would like to serve as one, please let me know. If you would like to find a reviewer for an article, or would like to review one, again, let me know.
On-going and Upcoming Activities
The listserv. The listserv is home to contracts discussion of extraordinary quality. Some of our most distinguished teachers and scholars not only contribute but sometimes have saved the threads for use in the classroom or even publication (with permission of the email authors). The threads range from in-depth discussions of controversial points to quick help for an upcoming class. Participants include senior scholars, total newbies, and everyone in between.
The web. Our web presence in the last year has shifted from a largely archival web site to a web page with a touch of the blog to it. It is still evolving, but it is always filled with new information, from updates on scholarship to humorous tidbits. If you are interested in being a part of the effort, contact Frank Snyder.
The Newsletter. The newsletter features articles on teaching, summaries of new scholarship, contracts-related current events that will likely be of interest to students as well as teachers, and round-ups of upcoming conferences and similar happenings, among other things. There are many opportunities to be involved; contact Frank Snyder if you are interested.
The Mid-year Meeting. This year the AALS is sponsoring one of the relatively rare conferences on Contracts. These events are the source of both scholarly ferment and fond memory. I wish I had been there when Grant Gilmore conceded that Contract might be alive. The meeting this June in Montreal looks very promising, and I hope many of us can attend.
The Annual Meeting. Planning for the next annual meeting, incredibly, begins now. Please let me know if you want to share ideas for the meeting in 2006.
Serving as chair is a great privilege. I hope you will contact me with any ideas, suggestions, comments, or questions. I look forward to working with all of you.
Yours very truly,
David V. Snyder
Today in history—January 14
1741: Benedict Arnold is born at Norwich, Connecticut. After running his own apothecary shop in New Haven, he will become famous in the 2004 U.S. presidential campaign as a corporate CEO who moves jobs overseas.
1861: David Wesson is born in Brooklyn, New York. He will leave a teaching post at MIT to work for the Southern Cotton Oil Co. where, in 1899, he will develop a new method for deodorizing cottonseed oil, thus making is useful for cooking. The company will later change its name to "Wesson Oil."
1885: Yale professor Benjamin Silliman, Jr., dies at New Haven. Working part-time for a New York lawyer named George Bissell, he will write the 1855 report showing that petroleum can be distilled into a useful fuel. This leads to the world’s first oil drilling project at Titusville, Pennsylvania, in 1859.
1892: Film entrepreneur Hal Roach is born in Elmira, New York. His studio’s biggest stars will be the comedy team of Laurel and Hardy (left)—and he will keep them on separate contracts with different expiration dates to gain leverage over the duo.
1911: James Skelly Wright is born in New Orleans. As a judge on the D.C. Circuit Court of Appeals, he’ll become known in Contracts circles for the seminal unconscionability opinion in Williams v. Walker-Thomas Furniture Co.
1914: Henry Ford announces a new continuous-motion system for his assembly lines that reduce the time spent to make a car to 93 minutes.
1915: Mark Goodson, the co-founder of the quiz show empire that includes What’s My Line, I’ve Got a Secret, The Price is Right, Password, Concentration, Match Game) is born in Sacramento, California.
1952: One of the National Broadcasting Company’s most successful long-term franchises, Today, debuts with host Dave Garroway. The show's first big star will be chimpanzee J. Fred Muggs (at left, second from left), who joins the show a year later.
1973: Elvis Presley draws the biggest audience for a television broadcast to that date, when his Elvis: Aloha From Hawaii is seen by a billion people in 40 countries.
1978: Mathematician Kurt Gödel is born in Brno, in what is now the Czech Republic. Hardly anyone understands his Incompleteness Theorems, but that doesn’t stop people from talking about them inaccurately.
1984: Ray Arthur Kroc, the milkshake-machine salesman who spotted the potential in a San Bernardino (Calif.) hamburger joint called "McDonald’s," dies at San Diego, California.
1986: Sylvester Stallone’s Rambo sets the record for first-day video sales, racking up 435,000 on its opening day in stores.
1997: The Greek Ministry of Culture confirms that it has unearthed the school where Aristotle taught from 335-324 B.C.
Consumer issues in the digital world
How to deal with consumer issues in a modern, digital economy will be the subject of an interesting one-day conference coming up at the University of Washington School of Law (left). The school’s Shidler Center for Law, Commerce & Technology is hosting Is Consumer Protection an Anachronism in the Information Economy? on Friday, March 4.
The conference apparently intends to take the question seriously—it’s bringing together a wide mix of both market-oriented and state-oriented scholars. There should be some particularly entertaining exchanges on a panel devoted to contract law issues, which is moderated by an attorney for Consumers Union but will include Richard Epstein (Chicago), Clay Gillette (NYU), Jean Braucher (Arizona), Bob Hillman (Cornell) and Anita Ramasastry (Washington).
Organizers say that they’re negotiating with publishers for a possible book incorporating the papers. More information and registration is available at the LCT website.
January 13, 2005
LawProf blog cited by Supreme Court
Congratulations to our LawProf blogging colleague Douglas Berman, who runs the Sentencing Law and Policy Blog—the first member of this network to get cited by the U.S. Supreme Court, in one of the two Justice Stevens opinions in the major Sentencing Guidelines case of United States v. Booker.
Those of us Contracts folks who are jealous that we're highly unlikely ever to be cited in Supreme Court opinions can take some comfort in the fact that we don't have to read them.
State agency not covered by false advertising law
You always knew that the government could lie to you, but now it's official. California state agencies are not subject to the state's false advertising laws, according to a decsion by the First District Court of Appeal in San Francisco.
The animal-rights group People for the Ethnical Treatment of Animals sued the California Milk Producers Advisory Board, whose ads show "happy cows" cavorting merrily in sunny pastures, with the slogan "Great cheese comes from happy cows. Happy cows come from California."
It's a lie, said PETA. California cows are not, in fact, particularly cheerful, and their lives are (so to speak) poor, nasty, brutish, and short. The cattle lots do not have vegetation, said PETA, and the animals defecate directly onto the ground.
The court did not need to reach a sovereign immunity argument, holding merely that the false advertising statute did not mention public entities and therefore did not apply to them. PETA's remedy was to filed a request for administrative review.
There is no word whether PETA will now pursue the Chick-fil-A franchise people on the grounds that the poor-spelling cows in its ads cannot, in fact, write at all.
Pair arrested for unfunny lawyer joke
You don't want to mess with lawyers. The hearse horse who snickered when carrying a lawyer (left) is now dog food, and now two men who made lawyer jokes at a courthouse are being charged with disorderly conduct.
It's about time.
Argentina makes offer you can't refuse
The Argentine government, which three years ago set a record with the largest bond default in history, is now telling creditors that unless they accept a new deal they will be stuck with nothing but "worthless paper."
Argentina owes $103 billion in existing debt and interest, and is offering to give creditors $41.8 million if they give up those claims. It is telling its 500,000 creditors, many of whom are individuals and pension plans, that it will not pay off the old bonds, but that if they accept the new ones, it will resume paying interest.
Individuals who hold about 30 percent of the bonds have said they intend to sue the government in Argentina to gain what they claim they are owed.
Today in history—January 13
1832: Horatio Alger, Jr., is born in Revere, Massachusetts. He will write 130 dime novels for boys, with titles like Ragged Dick, Luck and Pluck, Bound to Rise, and Only an Irish Boy, which will help instill the "American Dream" in the post-Civil War U.S.
1885: Alfred C. Fuller, a self-styled "country bumpkin" whose Fuller Brush Co. would become synonymous with modern door-to-door sales, is born in Nova Scotia.
1928: RCA and General Electric put the first television sets into homes in Schenectady, New York. The picture is wobbly and the screens are 1.5 inches square. Plus, there are no TV broadcasters yet. It does not catch on.
1941: Bandleader Glenn Miller signs the Modernaires quartet to a full-time contract to appear with his big band. Among other things, the Modernaires were previously known as the "Wizards of Ozzie" when they performed with Ozzie Nelson’s own band.
1955: Two of America’s premier banks merge. Chase National Bank (founded 1877) and Bank of Manhattan (1799), form Chase Manhattan, then the second-largest U.S. bank.
1957: Judge Jerome New Frank of the U.S. Court of Appeals for the Second Circuit, one of the leading Freudians on the federal bench, dies in New Haven, Connecticut.
1957: The Wham-O Company introduces a new flying toy, which it calls the "Pluto Platter." The name is subsequently changed to "Frisbee." Inventor Fred Morrison had sold the rights to Wham-O for $1 million.
1957: At the top of the charts is the Tarriers’ Banana Boat Song:
Work all night on a drink o’ rum
Daylight come and we wan’ go home
Stack banana till the mornin’ come
Daylight come and we wan’ go home
2000: Bill Gates announces that he is stepping down as CEO of Microsoft Corp., and will turn the job over to longtime friend and associate Steve Ballmer.
THE TERMS THEY ARE A-CHANGIN’
words by Frank Snyder
music by Bob Dylan
[to the tune of Bob Dylan’s The Times They are a-Changin’]
G Em C G
Now listen, you workers, pay heed to my song
G Em C D
The broad social forces around you are strong,
G Em C G
And whether for better or worse, right or wrong,
G Am D
Your employment terms need rearrangin’
D D/c G/b D/a
So sign on the line or just go and resign,
G C D G
For the terms, they are a-changin’.
You thought that the handbook up there on the shelf
Would bind your employer as well as yourself
But we've had it re-written by some legal elf
Liabilities he’s disengagin’
So now it provides there’s no contract at all—
Yes, the terms, they are a-changin’.
You thought that you had the right to bring suit,
Get a rich plaintiff’s firm and collect lots of loot,
And harrass your boss (and his bosses, to boot)
With disccovery free and wide-rangin’—
But now arbitration is all you can get,
For the terms, they are a-changin’
Now ignorant judges who scribble with pens
May let you win this time, but we’ll try again.
And sooner or later we’re going to win
Our purpose is fixed and unchangin'.
So sign on the line or resign and don't whine,
For the terms they are a-changin’.
Kid Rock wins Top Dog action
Two men who claim that they had a 1989 contract with rap musician Kid Rock that gave them the rights to the "Top Dog" trademark saw their claim dismissed because they waited too long to pursue it.
Alvin Williams and Earl Blunt of EB-Bran Productions, Inc., claimed that they had acquired the rights to the trademark and had entered into a partnership with the Kid (left). But the Sixth Circuit affirmed a lower court decision that even if the agreement were valid, EB-Bran had waited more than ten years to make its claim.
January 12, 2005
The government and student loans
Not surprisingly, there are lots of comments (left).
Justices cool on secret agent claims
The Associated Press is reporting that most of the justices who heard yesterday’s argument in the espionage contract case of Tenet v. Doe seem to be leaning against the spy plaintiffs. Links to the varioius documents were posted here yesterday.
Jury to get lawyer's claim for share of tobacco fees
Via Law.com, the New York Law Journal is reporting that a jury will get to decide an attorney’s claim to a slice of an $84 million legal fee.
The lawyer, H. Neal Connolly, resigned from his firm to take a job with the State Insurance Fund, just a month before it became one of the six firms retained by New York to represent it in tobacco litigation. When the state agreed to a $25 billion settlement, the lawyers got a total of $625 million in legal fees (about $13,000 an hour), out of which Connolly’s former firm got $84 million.
Supreme Court Justice Anthony Benza of Albany ruled that Connolly’s partnership had ended before the firm was retained, but said a jury could nevertheless determine whether it was a "work in progress" at the time of his departure.
At the Circus (1939)
Today in history—January 12
1729: Philosopher and member of Parliament Edmund Burke is born at Dublin.
1822: The man who will develop the first commercially successful internal combustion engine, Jean-Joseph-Étienne Lenoir, is born at Mussy-la-Ville, Belgium.
1885: Canal and railroad engineer John Bloomfield Jervis, the man who proposed the first railroad in the U.S. and designed the first working American locomotive, dies at Rome, New York.
1932: The Yankee steps down from Olympus, as Justice Oliver Wendell Holmes, Jr., retires from the U.S. Supreme Court
1943: The U.S. Office of Price Administration announces that the "frankfurter" and the "wiener" are being replaced by the "victory sausage."
1951: The man who will resurrect AM radio and make station owners a ton of money, Rush Hudson Limbaugh III, is born to a family of lawyers in Cape Girardeau, Missouri.
1954: The man who will do for the FM band what Limbaugh did for the AM band, Howard Allen Stern, is born at Jackson Heights, New York.
1965: Scientists accidentally create a radioactive cloud over Los Angeles, when at 10:58 a.m., PST, they conduct a controlled burn-up of a nuclear rocket in Nevada. That explains a lot.
1970: The hugely popular American television program, All in the Family—an American version of a British comedy, Till Death Us Do Part—debuts. NBC had paid for the pilot but decided it wasn’t likely to be a hit, so producer Norman Lear sells it to CBS instead.
1999: Baseball slugger Mark McGwire’s record 70th home run ball sells at auction for $3 million.
2001: MGM's AntiTrust, the fictional film version of the Microsoft litigation (with Mission Impossible sequences added), debuts in the U.S. From the reviews: "Clearly, someone involved with the production is a passionate believer in the film’s basic message. . . . ‘All computer companies are Evil! Evil! Evil!’"
2001: William Hewlett, the guy who co-founded Hewlett-Packard, dies at age 88. The two partners started in a garage with $528 in 1939; the order of their names was chosen by a coin toss.
George Washington and the drunken gardener
Here, courtesy of Joe Perillo (Fordham), is an employment contract between George Washington and one of his gardeners, one strikingly reminiscent of the classic case of Clark v. West:
AGREEMENT WITH PHILIP BATER
April 23, 1787.
Articles of Agreement made this twelveth day of April Anno Domini one thousand seven hundred and eighty seven, by and between George Washington Esqr. of the Parish of Truro, in the County of Fairfax, State of Virginia, on the one part, and Philip Bater, Gardner, on the other Witness, that the said Philip Bater, for and in consideration of the covenants herein, hereafter, mentioned, doth promise and agree to serve the sd. George Washington, for the term of one year, as a Gardner, and that he will, during said time, conduct himself soberly, diligently and honestly, that he will faithfully and industriously perform all, and every part of his duty as a Gardner, to the best of his knowledge and abilities, and that he will not, at any time, suffer himself to be disguised with liquor, except on the times hereafter mentioned.
In Consideration of these things being well and truly performed on the part of the sd. Philip Bater, the said George Washington doth agree to allow him (the sd. Philip) the same kind and quantity of provisions as he has heretofore had; and likewise, annually, a decent suit of clothes befitting a man in his station; to consist of a Coat, Vest and breeches; a working Jacket and breeches, of homespun, besides; two white Shirts; three Check Do; two pair of yarn Stockings; two pair of Thread Do; two linnen Pocket handkerchiefs; two pair linnen overalls; as many pair of Shoes as are actually necessary for him; four Dollars at Christmas, with which he may be drunk 4 days and 4 nights; two Dollars at Easter to effect the same purpose; two Dollars also at Whitsontide, to be drunk two days; A Dram in the morning, and a drink of Grog at Dinner or at Noon.
For the true and faithful performance of all and each of these things the parties have hereunto set their hands this twenty third day of April Anno Domini 1787.
January 11, 2005
Supreme Court looks at spy contract
Contracts are not always contracts, especially when they’re made with secret agents. That’s what the U.S. Supreme Court held in the 1876 case of Totten v. United States, holding that a spy can’t sue the government on a secret contract to perform espionage, because then the contract wouldn’t be secret any more.
The Supreme Court is hearing argument today on that doctrine. In Doe v. Tenet, two communist defectors who were brought into the U.S. by the CIA during the Cold War are claiming that the agency violated its promise to cover their expenses for life. The agency said it no longer had funds in its budget for such things. The Ninth Circuit held, 2-1, that they could proceed with their claim.
In Totten, the plaintiff had a special commission direct from President Lincoln to go and spy in the "Insurrectionary States," gathering information on troops and fortifications in exchange for $200 a month. After the war, his estate sued the government. The Court held:
Both employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter. This condition of the engagement was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent. If upon contracts of such a nature an action against the government could be maintained in the Court of Claims, whenever an agent should deem himself entitled to greater or different compensation than that awarded to him, the whole service in any case, and the manner of its discharge, with the details of dealings with individuals and officers, might be exposed, to the serious detriment of the public. A secret service, with liability to publicity in this way, would be impossible; and, as such services are sometimes indispensable to the government, its agents in those services must look for their compensation to the contingent fund of the department employing them, and to such allowance from it as those who dispense that fund may award. The secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery. (Emphasis added.)
The plaintiffs in Doe hope to get around the contract rule by claiming due process violations. The Ninth Circuit's opinion is here. Also available are the CIA's petition for certiorari, the CIA's appendix, the Does' response, and the CIA's reply.