June 1, 2005
Today in history—June 1
1495: By order of King James IV, Tironensian Friar John Cor makes the first recorded batch of scotch whisky—then called aquavitae—at Lindores Abbey on the banks of the Tay.
1660: The Massachusetts colonial government hangs Mary Barrett Dyer for being a Quaker.
1780: Carl Phillip Gottlieb von Clausewitz is born at Burg, Germany. His advice to teachers on preparing for class is still good today: "No battle plan survives first contact with the enemy."
1792: Kentucky joins the Union as the 15th state.
1796: Tennessee, not to be outdone, joins the Union as the 16th state, and determines to have a better football team. The Volunteers lead the all-time series 67-23-9.
1815: General Philip Kearny, Jr. (Columbia Law 1833) is born, the son of a financier, in New York City. His parents insist that he become a lawyer, but when he inherits more than $1 million in 1836 he gives up law for a second lieutenant’s commission in the U.S. Army.
1855: American lawyer, newspaper editor, and filibustero William Walker takes control of Nicaragua. His decision to abrogate the charter of Cornelius Vanderbilt’s Accessory Transit Co. will ultimately lead to his downfall.
1868: Lawyer and former President James Buchanan, who never understood why everyone didn't agree that the Supreme Court’s decision in Dred Scott v. Sandford resolved the contentious slavery issue permanently, dies at Lancaster, Pennsylvania.
1925: New York Yankee Lou Gehrig pinch-hits for shortstop Pee-Wee Wanninger, beginning his streak of 2,120 consecutive games played.
1938: Action Comics introduces a new series character, called "Superman."
1967: Electric & Musical Industries’ Parlorphone label releases the Beatles’ Sgt. Pepper’s Lonely Hearts Club Band. Capitol Records is the U.S. distributor.
1980: Turner Broadcasting’s Cable News Network opens its doors as the first all-news TV network. Almost everyone at the time thinks it’s a really bad idea.
May 31, 2005
2 New Blogs Join Law Professor Blogs Network
We are pleased to announce the launch of two new blogs as part of our Law Professor Blogs Network:
These blogs join our existing blogs:
- AntitrustProf Blog (Shubha Ghosh (SUNY Buffalo))
- ContractsProf Blog (Carol Chomsky (Minnesota) & Frank Snyder (Texas-Wesleyan))
- CrimProf Blog (Jack Chin (Arizona) & Mark Godsey (Cincinnati))
- Health Law Prof Blog (Betsy Malloy (Cincinnati) & Tom Mayo (SMU))
- LaborProf Blog (Rafael Gely (Cincinnati))
- Law Librarian Blog (Joe Hodnicki (Cincinnati))
- Law School Academic Support Blog (Dennis Tonsing (Roger WIlliams) & Ellen Swain (Vermont))
- Media Law Prof Blog (Cristina Corcos (LSU))
- Sentencing Law & Policy Blog (Douglas Berman (Ohio State))
- TaxProf Blog (Paul Caron (Cincinnati))
- Tech Law Prof Blog (Jonathan Ezor (Touro) & Michelle Zakarin (Touro))
- White Collar Crime Prof Blog (Peter Henning (Wayne State) & Ellen Podgor (Georgia State))
- Wills, Trusts & Estates Prof Blog (Gerry Beyer (Texas Tech))
LexisNexis is supporting our effort to expand the network into other areas of law. Please email us if you would be interested in finding out more about starting a blog as part of our network.
Today in history—May 31
1469: Manuel I, the king who will do as much as anyone for Portuguese commerce, is born at Alcochete. He’ll commission the trading and exploration voyages of Vasco de Gama, who finds the route to India, and Pedro Cabral, who finds Brazil.
1753: Pierre Victurnien Vergniaud, another one of the French lawyers who will be guillotined by the Revolution they lead, is born at Limôges.
1757: Pennsylvania passes a ban on theatrical performances. The governor holds the bill up just long enough for Lewis Hallam’s prominent Philadelphia troupe to finish its five-month season.
1775: The Citizens Committee of Charlotte, North Carolina, issues the Mecklenberg Declaration, which disimisses all crown-appointed office-holders from their jobs. Today, of course, they’d be protected by Civil Service laws.
1838: Philosopher Henry Sidgewick is born at Skipton, Yorkshire.
1884: John Henry Kellogg of Battle Creek, Michigan, receives a patent for corn flakes.
1889: A dam owned by the South Fork Fishing & Hunting Club collapses under an unprecedented downpour, and a wall of water 60 feet high and moving at 40 miles an hour rips through Johnstown, Pennsylvania.
1913: The Seventeenth Amendment to the U.S. Constitution is passed, requiring the direct election of U.S. Senators. This explains why the Senate works so much better today than when political hacks like Clay, Webster, and Calhoun were running it.
1930: Clinton Eastwood, Jr., is born at San Francisco, California. He’s won twice as many Best Director awards as Stanley Kubrick, Orson Welles, Alfred Hitchcock, Robert Altman, Ingmar Bergman, Federico Fellini, Francis Ford Coppola, and Martin Scorsese combined.
1977: The 800-mile, $8 billion Trans-Alaska Pipeline is completed, bring oil from Prudhoe Bay to the lower 48 states.
1996: The Age of Aquarius official yields to the Postmodern Era, as Dr. Timothy Leary’s final dementia and planned live Internet suicide is short-circuited when he dies in his sleep.
2004: A computer foul-up causes the Royal Bank of Canada to misplace about 10 million accounts. They are found shortly thereafter.
Every silver lining has a cloud
The legal nightmare that began when Alex Popov caught Barry Bonds's record-setting 73rd home run ball just keeps rolling along. A California appellate court has frozen Popov's share of the proceeds of the ball's sale, some $225,000, because he ran up legal bills of about twice that amount during the litigation over who owned the ball.
Popov, expecting the ball to sell for well over $1 million, allegedly refused to enter into a contingent fee agreement with his lawyer, Martin Triano, but wanted to pay by the hour.
Weekly Top 10
The Memorial Day holiday made little difference, as the top five papers stay the same in this week's Top 10. There are two new entries, and Richard Epstein scores his highest chart position to date. Following are the top 10 most-downloaded papers from the SSRN Journal of Contract and Commercial Law for the 60 days ended May 29, 2005.
1 (1) Risky Business: Managing Interagency Acquisition, Steven L. Schooner (Geo. Washington)
2 (2) Commentary on the Acquisition Workforce, Steven L. Schooner & Christopher R. Yukins (Geo. Washington)
3 (3) Putting Identity Theft on Ice: Freezing Credit Reports to Prevent Lending to Impostors, Chris Jay Hoofnagle (Electronic Privacy Information Center)
4 (4) There Are No Penalty Default Rules in Contract Law, Eric A. Posner (Chicago)
5 (5) A Normative Theory of Business Bankruptcy, Alan Schwartz (Yale)
6 (7) Pricing Legal Options: A Behavioral Perspective, Oren Bar-Gill (NYU)
7 (9) Free Markets Under Siege, Richard A. Epstein (Chicago)
8 (8) The Role of Groups in Norm Transformation: A Dramatic Sketch, in Three Parts, Robert B. Ahdieh (Emory)
9 (–) The Political Economy of International Sales Law, Clayton P. Gillette (NYU) & Robert E. Scott (Virginia)
10 (–) Contracts, Holdup, and Legal Intervention, Steven Shavell (Harvard)
May 30, 2005
No, there's no housing bubble
From this week's issue of Fortune, thirty-something investor Debbie Smith, whose entire net worth is tied up in 20 real estate properties, all highly leveraged and with borrowed down payments, on market risk:
"It's a risk, but I really feel like it's a lot less risky than the stock market. Even if it does crash, it's not like it's worth nothing--like a stock, where the value can go all the way to zero."
Memorial Day salute
Memorial Day at Vicksburg National Cemetary, Mississippi (Courtesy U.S. National Park Service.)
Cases: Breach of warranty for rotten meat
The buyer in a contract dispute has the burden of proof that goods are nonconforming under the U.N. Convention on Contracts for the International Sale of Goods, even where the seller is the plaintiff, according to a new decision from the U.S. Court of Appeals for the Seventh Circuit.
In the case, two wholesalers, one in the U.S. and one in Canada, agreed to a sale of 1,350 boxes (about 20 tons) of pork back ribs, for a total price of $178,200. Neither Buyer nor Seller ever took possession of the ribs. Under the deal, Seller's Supplier would turn the goods over to Buyer's Carrier, which would deliver the goods to Buyer's Customer. When Carrier, acting on behalf of Buyer, picked up the meat, it signed a bill of lading that said the goods appeared in good or but it did not know what the condition of the goods inside the boxes were. Later, after Carrier had delivered the goods to Customer, it was discovered that large amounts of the ribs were "putrid, green [and] slimy." Ultimately the U.S. Department of Agriculture condemned the whole lot, finding that none of it was salvageable. Buyer refused to pay Seller, and Seller sued.
Since no one could tell exactly when the meat spoiled, the burden of proof became crucial. Seller argued that Buyer had the burden of proof because nonconformity is an affirmative defense. Buyer argued that since delivery of conforming goods was a requirement of Seller's claim, Seller should bear the burden. The court found no precedents under the CISG on the issue, but given that the relevant provisions (seller's warranty under Art. 35 and risk of loss provisions under Art. 67) are analogous to those in Article 2 of the UCC, it made sense to apply the UCC rule, which puts the burden on the buyer. Since Buyer could not prove that the goods were nonconforming when delivered, Seller was entitled to the contract price.
Chicago Prime Packers, Inc. v. Northam Food Trading Co., 2005 U.S. App. LEXIS 9355 (7th Cir., May 23, 2005).
Call for papers: Yale Law Journal
It has nothing to do with contract law, but open calls for papers from the Yale Law Journal are unusual enough that we thought we'd pass it along for those of you who also are forced to dabble in constitutional law.
The proposed symposium is The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law: A Symposium on Executive Power. The Call for Papers is here. Oddly enough, there's no submission date specified, but the editors plan to select the papers in the "summer of 2005," so haste is probably a good idea.
Today in history—May 30
1416: Alarmed by revolutionary currents in Bohemia stirred up by Jan Hus, the Imperial Government burns his friend Jerome of Prague at the stake for heresy.
1539: A mercantile colonization mission under Hernando de Soto lands in what is now Bradenton, Florida. De Soto is looking for gold, but finds swamp and mosquitoes, it being still 400 years before people start liking beautiful beaches.
1806: At Nashville, Tennessee, lawyer Andrew Jackson fights a duel with Charles Dickinson. When the handkerchief is dropped, Dickinson fires first, hitting Jackson in the chest and breaking two ribs; he must stand there, 24 feet away, while the wounded Jackson takes slow, careful aim and drops him dead.
1854: Shepherded by Senator Stephen Douglas, the disastrous Kansas-Nebraska Act, which abrogates both the Missouri Compromise and the Compromise of 1850, passes the U.S. Congress.
1778: François-Marie Arouet, who wrote under the name "Voltaire," dies at Paris. He's one of those writers everyone has heard of but hardly anyone has got around to reading.
1865: U.S. Supreme Court Justice John Catron, another Nashville lawyer, dies in Washington, D.C. Congress abolishes his seat, leaving only nine on the Court.
1899: Film exec Irving Grant Thalberg, later known as the "Boy Wonder" when he takes over Universal's production at age 21, is born at New York City.
1902: Actor Lincoln Theodore Monroe Andrew Perry is born at Key West, Florida. He'll become the first black actor to become a millionaire, in his character as "Stepin Fetchit."
1911: Eighty thousand spectators gather for the initial Indianapolis 500 motor race. Ray Harroun, in a Mamson Wasp fitted with the newfangled "rear-view mirror" takes the checkered flag.
1935: With no designated hitter rule in place to keep his career going, Babe Ruth plays his final baseball game, for the Boston Braves.
1967: Twenty years too early to enjoy the later fad of local self-determination, the Republic of Biafra declares itself independent from Nigeria. A million Biafrans will be killed, with U.N. approval, before it is stamped out.
May 29, 2005
Cases: Nice try, no cigar
Inmate Daryl Dorsey, who'd made complaints about his current cellmate, found himself transferred to a smoking cell. He sued the prison for breach of contract. No dice, said the court. In addition to the fact that he'd already made the claim and had it knocked out, he had no contract with the prison, and therefore there was nothing to be breached.
Dorsey v. Grafton Correctional Institution, 2005 Ohio App. LEXIS 2319 (Ohio Ct. App., May 19, 2005).
ABA BusLaw session set for Windy City
The ABA's Business Law Section will be holding its Annual Meeting in Chicago, August 5-9. The brochure for the event is now available here.
Trademarks and the constitution
We don't know much about about intellectual property law, but we wonder how Lisa Ramsey's bosses at the University of San Diego School of Law feel about her new paper, Descriptive Trademarks and the First Amendment. In it, she argues that descriptive trademarks should not be federally protected; that only marks that are fanciful, arbitrary, or suggestive pass muster under the constitution.
What's interesting is that "University of San Diego School of Law" seems to be a quintessential descriptive trademark.
Today in history—May 29
1453: The last remnant of the Roman Empire is extinguished as Constantinople falls to the Muslims. Every Christian church in the city is either destroyed or turned into a mosque except St. Irene, which becomes an Ottoman arsenal.
1660: Charles II becomes King of England, ending the English experiment with a republican government.
1677: The Treaty of Middle Plantation is signed, which provides that the Powhatan Indians in Virginia will be subjects of the King of England, but stipulates that no Englishman may settle within three miles of a Powhatan village.
1736: Lawyer and land speculator Patrick Henry is born at Hanover County, Virginia. One of his ventures, as President of the Virginia Yazoo Co., will ultimately lead to an important Supreme Court Contract Clause case, Fletcher v. Peck.
1790: Rhode Island becomes the last of the original 13 colonies to accept the new U.S. Constitution.
1848: Wisconsin is admitted to the Union as the 30th state.
1864: His Imperial Highness Ferdinand Maximilian Joseph, Archduke of Austria, Prince of Hungary and Bohemia, reluctantly lands at Veracruz to take the throne of the new Mexican Empire. The empire will last only three years.
1866: Ex-lawyer Winfield Scott dies at West Point, New York. His campaign during the Mexican War is still probably the greatest military achievement in U.S. history.
1874: Poet, essayist, apologist, public debater, and detective writer Gilbert Keith Chesterton is born at London. "No sceptical philosopher," he will note, "can ask any questions that may not equally be asked by a tired child on a hot afternoon."
1886: The first ad for the new, non-alcoholic Coca-Cola appears in the Atlanta Journal.
1914: Everyone remembers the RMS Titanic, but hardly anyone recalls the Canadian Pacific's liner RMS Empress of Ireland, which two years later sinks in the Gulf of St. Lawrence, twenty miles from land, killing 1,014 of the 1,433 people aboard.