July 16, 2005
Charlton Heston on employment contracts
[Maj. Amos Dundee, assisted by Sgt. Gomez, is looking for men for a hazardous mission.]
Wiley: If you're lookin' for hard-ridin', Injun-fightin' whiskey drinkers, then by God you've got one!
Sgt. Gomez: He's the biggest drunk we could find, but a damn good mule packer.
Dundee: What's your name?
Dundee: Wiley. All right, make your mark.
Wiley [pausing]: Whiskey?
Dundee: All you can drink --
[Wiley quickly signs the contract]
Dundee: -- when appropriate.
[Sgt. Gomez escorts Wiley out of the room.]
From: Major Dundee (1965)
Today in History: July 16
622 A.D.: The Muslim calendar, dating from the beginning of the year in which Mohammed and his make the Hijira to Medina, begins with 1 Muharram 1 A.H.
1769: Fr. Junipero Serra founds San Diego de Alcalá, the first mission in California, which he names for St. Didacus, a Spaniard who is patron saint of the Franciscan laity.
1782: Wolfgang Amadeus Mozart has his first big Vienna success with the premiere of his Abduction from the Seraglio.
1821: Mary Baker Eddy is born at Bow, New Hampshire. In 1879, at age 58, she'll found the Church of Christ, Scientist.
1880: Forty-nine year-old Dr. Emily Howard Stowe, a graduate of the New York Medical College for Women, becomes the first woman licensed to practice medicine in Canada.
1898: Labor lawyer Trygve Halvdan Lie (Oslo Law 1919) is born at Kristiania (now Oslo), Norway. An admirer of Lenin, he'll be elected in 1946 as a compromise candidate to become the first Secretary General of the United Nations.
1951: First-time novelist Jerome David Salinger publishes his The Catcher in the Rye, which will become one of the most-assiged novels in college history.
1997: The Dow Jones Industrial Average closes above 8,000 for the first time, hitting a record 8,038.88.
2005: The most-awaited book in the history of the known universe, J.K. Rowling's Harry Potter and the Half-Blood Prince, is released in stores throughout the English-speaking world.
July 15, 2005
Nehf returns to Indy
Nehf is the Cleon H. Foust Fellow and Professor of Law at Indy, where he teaches contracts, commercial law, consumer law, and European community law. He’s a former editor-in-chief of the North Carolina Law Review, and clerked for Judge Phyllis Kravitch on the Eleventh Circuit. He practiced with O’Melveny & Myers in Washington, D.C., and then as a partner at Choate, Filler, & Nehf, before joining the faculty in 1989.
He’s written widely on contract and commercial law, particularly from the consumer perspective, and is a member of the International Consumer Law Association. He’s also the founding director of Indy’s European Law Program
Deadline for ABA is today
Today (Friday) is the deadline for advance registration for the American Bar Association Annual Meeting in Chicago, August 4-9. The lead speakers (Justice Stevens, Justice Ginsburg, Attorney General Gonzalez, and Senator Clinton) aren’t likely to talk much about contracts issues, but the Business Law Section has lots of good program. Registration is here.
If you're going to be in the Windy City, remember that Thursday night, Aug. 4, is the Birthday Bash at Buddy Guy’s Legends, one of the world’s great blues clubs. In celebration, from Lonnie Johnson's Chicago Blues:
Chicago's all right to visit,
But please don't hang around.
You'll find the cool chicks and high slicks
And, boy, all those mellow fellows.
But when your bankroll is gone,
You're just another chump
That's dropped into town.
My first night in Chicago,
My friends really treated me fine.
Then overnight they all changed,
Like Daylight Savings Time.
And everything I wanted
I had to lay my money down on the line.
Cases: Cardholder stuck with terms of credit agreement
A man whose estranged wife ran up thousands of dollars on his credit card was out of luck because he failed to comply with the terms of the credit card agreement, according to a recent decision by the Maryland Court of Special Appeals.
Seems that Arthur Spengler, Jr., had opened a credit card account with Sears. He added his wife as an authorized user in 1996. The original card agreement obliged Spengler to notify Sears whenever his address changed. In 1997, Spengler paid off the credit card, destroyed it, and never used it again. It was his intention to close the account, even though he never notified Sears. In January 2001, Spengler and his wife separated, and he moved out of the house. Two months later, Mrs. Spengler received a bulk mailer from Sears (at Spengler's old address) saying the credit card was automatically upgraded to the Sears Gold MasterCard. Mrs. Spengler saw this and transferred her own credit card balance and made additional charges to the card, ending in a $5,638 balance. When Spengler refused to pay the balance, Sears reported him to credit agencies, which made him unable to get a bank loan. He sued Sears for breach of contract, defamation, and interference with business relations. A jury awarded him $145,000 in damages, but the trial court granted a motion for judgment notwithstanding the verdict, and Spengler appealed.
The breach of contract claim had no merit, said the court, because Spengler himself failed to follow the provisions of the contract. He assumed his ex-wife would destroy the card, which she didn't. He also failed to notify Sears of his change of address, so the court failed to see why his actions and inaction should be Sears's problem. Because the breach of contract claim had no merit, the defamation claim also failed because they were intertwined. And since Sears engaged in no "improper means" when it reported his defalcation to the credit agencies, the interference claim also failed.
Spengler v. Sears, Roebuck & Co., 2005 Md. App. LEXIS 93 (July 11, 2005).
Today in History: July 15
1085: Robert Guiscard (i.e., "the Resourceful"), the Norman freebooter who expelled the Muslim rulers from Sicily and the Greek rulers from Italy, dies on the island of Kefalonia in the Aegean.
1381: A leader of the Peasants’ Revolt, the renegade Lollard priest John Ball, is hanged, drawn, and quartered. In his sermon exhorting the peasants, he’d said:
From the beginning all men by nature were created alike, and our bondage or servitude came in by the unjust oppression of naughty men. . . . And therefore I exhort you to consider that now the time is come, appointed to us by God, in which ye may (if ye will) cast off the yoke of bondage, and recover liberty.
1799: A French military officer supervising some construction at the port of Rosetta (now Rashid) discovers the Rosetta Stone, the key to deciphering Egyptian hieroglyphics.
1848: Future economist Vilfredo Pareto is born at Paris, France. He’s credited not only with the Pareto Efficiency Principle—so popular in Contracts scholarship—but with the 80/20 hypothesis, which is that for many phenomena 80 percent of the outcome is caused by 20 percent of the cause.
1870: The Hudson’s Bay Company cedes the area known as Rupert’s Land to the Canadian government. The cession amounts to about one-third of modern Canada.
1916: William E. Boeing, the son of a timber merchant who is fascinated by airplanes, founds Pacific Aero Products. A year later the name will be changed to Boeing Airplane Co.
1930: French critic and philosopher Jacques Derrida is born at El Biar, Algeria.
1948: General of the Armies John J. "Black Jack" Pershing (Nebraska Law 1893) dies at Washington, D.C.
1955: The first successful jet passenger plane, the Boeing 707, makes its first flight. It cost $16 million to develop.
1988: Twentieth Century-Fox releases Die Hard, which turns Bruce Willis into a star and rejuvenates the action/thriller genre.
1995: Amazon.com sells its first book: Fluid Concepts & Creative Analogies: Computer Models of the Fundamental Mechanisms of Thought, by Douglas Hofstadter.
2003: Once viewed as Microsoft’s principal rival for control of the Internet, Netscape Communications is disbanded by its owner, AOL Time Warner.
July 14, 2005
Oberman joins Santa Clara
Oberman joined the DePaul faculty in 1993, after earning a B.A. at Cornell and a J.D. and a Masters of Public Health from Michigan. In addition to her work in contracts, she’s known for combining feminist theory with health care law, most notably her book (written with Cheryl Meyer), Mothers Who Kill Their Children: Understanding the Acts of Moms from Susan Smith to the "Prom Mom."
Interested in becoming a law professor?
At least a few of our readers are folks who think they might like to get into law teaching at some point. So we thought we'd point out that the deadline for the Association of American Law Schools’ Faculty Appointments Register is coming up fast. (You can sign up later, but it decreases your chances of getting a job.) The great majority of all faculty hired at American law schools are hired through the AALS process. There are a handful of people out there who don't need to go through the process, but if you're one of these you already know it.
To start the ball rolling, you’ll need to visit the AALS’s Faculty Recruitment Services site to sign up for the job bulletins, get your name in the register to be considered by the law schools, and attend the annual Meat Market. The Meat Market is late this year, Nov. 10-12 in Washington, D.C., but it's still important to get your name into the hopper by August 5.
Incidentally, there’s been quite a lot of good advice on the web recently for would-be professors. Check out:
Many of these have links to other sources.
Cases: Arbitration not unconscionable
An arbitration clause in a gym contract is not unconscionable even where it strictly limits damages and provides that the proceedings shall be confidential, according to the Ohio Court of Appeals in a recent decision.
In the cases, plaintiff John Cronin joined a gym called California Fitness. He signed a two-page contract, which included an arbitration agreement that, among other things, required the party making the claim to pay the arbitration costs, provided that no discovery could be had, and capped total damages for either party at an amount equal to the annual membershp fee. It also provided that the results of the arbitation must be kept confidential. After numerous difficulties in his dealings with the gym, he sued for breach of contract and violations of the Ohio Consumer Sales Practices Act, seeking compensatory and punitive damages. A trial court issued a stay pending arbitration, and Cronin appealed.
He claimed the arbitration clause was unconscionable because it denied him a real chance to redress his grievances and that the confidentiality provision violated the Ohio CSPA’s purpose to deter fraudulent conduct in consumer transactions.
No dice, said the court. There was no substantive unconscionability because the provision bound both parties equally and the plaintiff could not show that in fact it prohibited him from getting any redress. It was not procedurally unconscionable because the contract was not unduly long, the provision was clearly labeled, it specifically provided that Cronin had the right to rescind the deal within three days if he were not satisfied, and there was no evidence he could not understand the provisions. As for the confidentiality clause, so long as the contract is not itself unconscionable, Ohio’s "strong presumption in favor of arbitrability outweighs consumer protection interests represented by the CSPA." Affirmed.
Cronin v. California Fitness, 2005 Ohio App. LEXIS 3056 (Ct. App., June 28, 2005).
Trump sues partners
Developer Donald Trump has sued some of his Hong Kong partners, claiming they sold a 77-acre piece of property in New York City for $1.76 billion, when they could have got $3 billion for it. Trump and his partners had bought the property for $82 million in 1994, during a real estate recession.
Today in History: July 14
1789: A Paris mob storms the old Bastille prison, freeing all seven prisoners—four forgers, two lunatics, and a "deviant aristocrat"—and seizing large stores of arms and powder.
1798: The U.S. Congress passes the controversial Alien and Sedition Acts. They will all expire or be repealed by 1802.
1881: Twenty-one year-old Henry McCarty, a/k/a William Bonney, a/k/a Billy the Kid, is shot to death by Sheriff Pat Garrett at Old Fort Sumner, New Mexico.
1913: U.S. President Gerald Rudolph Ford, Jr. (Yale Law 1941) is born Leslie Lynch King, Jr., at Omaha, Nebraska.
1938: Future Yippie leader and Chicago Seven defendant Jerry Rubin is born at Cincinnati, Ohio. He’ll later go on to become a successful Wall Street marketing analyst and venture capitalist.
1958: Military officers stage a coup that overthrows the Iraqi monarchy, killing several members of the royal family and the prime minister.
1965: Two-time Presidential candidate Adlai Ewing Stevenson II (Northwestern Law 1926) dies at London, England.
1966: Richard Speck rapes and kills eight student nurses in a townhouse in South Chicago, Illinois. Asked later about their deaths, he’ll remark, "It just wasn’t their night."
1984: Auckland lawyer David Lange becomes the 32nd Prime Minister of New Zealand.
1998: Richard "Dick" McDonald, who cooked the first McDonald’s hamburger ever served, dies at Manchester, New Hampshire. In 1984 he also cooked the ceremonial 50 billionth burger.
July 13, 2005
Film Clips: Family Guy on knowing assent
Brian the Dog: Peter, did you read the fine print on this loan contract?
Peter Griffin: If by "read," you mean "imagined a naked lady," then yes.
From: Family Guy (1999)
Cases: Rafting release enforceable
A whitewater rafting company's release form, knowingly signed by a participant, bars a wrongful death action based on negligence under California law, according to a recent unpublished decision by the U.S. Court of Appeals for the Ninth Circuit.
In the case Sandra Schoeps was killed while on a whitewater rafting expedition organized by Whitewater Adventures. Her parents, Hubert and Christiane Schoeps, sued for negligence, breach of contract, and intentional misrepresentation. The district court granted summary judgment because Sandra had signed a full liability release before going on the trip. The Court of Appeals affirmed:
California law precludes recovery for Sandra's personal injuries because she expressly assumed the risk of harm when she signed Whitewater Adventures' liability release form before participating in the whitewater rafting activity. On the whole, the release is in plain language, contains a clear and comprehensive outline of the kinds of harm that may occur, and has the clear import of relieving Whitewater Adventures of liability for negligence or other harms.
Moreover, we conclude that the liability release was not unconscionable. Substantively, it is not unreasonable or unexpected for an organizer of adventure sports to reallocate risk to the participants through a liability waiver. Procedurally, there were no hidden terms in the liability release, and the most oppressive aspect of the situation was that if Sandra refused to sign it she could not go with the group on the river and might be stuck without transportation in an isolated area. But this was not caused by any action or inaction on Whitewater Adventures' part; nor is there any evidence in the record that Denyse Caven, who had driven Sandra to the meeting point, would have been unwilling to leave with Sandra or to let Sandra drive herself, nor that no other transportation was available. The district court recognized that Sandra had only a few minutes to decide whether to sign the release and would have lost her pre-paid ticket price had she refused to sign. However, this is not sufficient to constitute oppression or lack of meaningful choice, particularly insofar as Sandra had been given a brochure before the rafting trip in which Whitewater Adventures stated: "we require all trip participants to sign a liability release waiver before embarking on your trip." (Citations omitted.)
Schoeps v. Whitewater Adventures LLC, 2005 U.S. App. LEXIS 13181 (9th Cir., June 29, 2005).
Today in History: July 13
1205: Archbishop Hubert Walter of Canterbury, the great justiciar who did much to revamp royal law administration in the reigns of Richard I, John, and Henry II, dies at Teynham, Kent.
1772: HMS Resolution, a privately owned North Sea collier bought by the Royal Navy for £4,151, sets sail under Captain James Cook to make the first true explorations of the Antarctic.
1787: The U.S. Congress enacts the Northwest Ordinance, organizing the area that is now Ohio, Indiana, Illinois, Michigan, Wisconsin, and half of Minnesota. It requires existing states to cede their claims to the territory and provides that new states will be created by the federal government.
1821: Nathan Bedford Forrest, whose career as a slave trader and planter will make him a millionaire and one of the South’s richest men, is born to a poor family at Chapel Hill, Tennessee.
1863: Crowds cheering for Jefferson Davis and crying, "vengeance on every n—" rampage through New York City, burning the Colored Orphan Asylum and beating or killing black man they run across. Eleven will be lynched, the death toll will reach 300, and 4,000 Federal troops will have to be brought in to restore order.
1925: A hitherto unknown comedian temporarily filling in for W.C. Fields at the Ziegfeld Follies wows the New York critics. His name is Will Rogers.
1972: Los Angeles Rams owner Robert Irsay and Baltimore Colts owner Carroll Rosenbloom agree to swap teams.
1977: A 25-hour blackout hits New York City; rioters cause $60 million in damage.
1978: Ford Motor Co. chairman Henry Ford II fires president Lee Iacocca, who will later join rival Chrysler.
1985: The 16-hour Live Aid phone-a-thon brings together the largest cast of famous acts ever to appear in a single broadcast. It will ultimately raise $144 million for Ethiopian famine relief.
July 12, 2005
Some things money can't buy
An odd standoff between the Marxist past and the capitalist present is shaping up over a unique historical artifact: the ice pick used to assassinate Leon Trotsky in Mexico City in 1940.
The ice pick apparently was abstracted from a police evidence room in the 1940s by a former Mexican secret police commander, whose daughter wants to sell it. Problem is, it can't be authenticated unless the bloodstains can be matched with Trotsky's DNA -- and Trotsky's grandson, who runs a little Marxist museum honoring his grandfather, refuses to cooperate unless the foot-long weapon is given to his museum.
Injured pedestrian not TPB of snow contract
Plaintiff Rhonda Massey slipped on some "black ice" on a sidewalk outside a building that housed the U.S. Army's Tank-Automotive and and Armament Command, known as TACOM, on February 7, 2002. Defendant Raytheon Technical Services had a contract to clear all snow and ice from the premises in order to avoid safety hazards. Massey, claiming that she was a third-party beneficiary of the snow-removal contract, sued Raytheon for her injuries.
The court analyzed the question under a specific Michigan statute relating to third-party beneficiaries, which provided:
A promise shall be construed to have been made for the benefit of a person whenever the promisor of said promise had undertaken to give or to do or refrain from doing something directly to or for said person.
This standard requires, said Judge Robert H. Cleland, an "express promise (i.e., written or verbal) . . . which designates Plaintiff as a third-party beneficiary." Since the contract did not mention the plaintiff or the class to which she belonged, she was not a third-party beneficiary.
Massey v. Raytheon Technical Services Co., 2005 U.S. Dist. LEXIS 12581 (E.D. MI, June 27, 2005).
We just received a copy of an interesting essay from the book Feminist Perspectives on Contract Law, which Hila Keren (UC-Berkeley) reviewed for us here. Peter Goodrich (Cardozo) has what looks to be an interesting take on the mailbox rule and a good deal more, in The Posthumous Life of the Postal Rule: Requiem and Revival of Adams v. Lindsell. You can e-mail him for a copy here, or check out the book here.
Today in History: July 12
100 B.C.: Gaius Julius Caesar, whose patrician family can trace its descent directly from the goddess Venus, is born at Rome.
1536: Gerrit Gerritzoons , better known as "Erasmus," dies at Basel, Switzerland. During his life he consistently refused attractive academic appointments, convinced that they would interfere with his free scholarship.
1690: Catholic emancipation in England will have to wait another 150 years, as King James II’s forces are defeated by the Dutch and English Protestant troops under William III at the Battle of the Boyne.
1730: The man who will revolutionize the world’s ceramic industry, Josiah Wedgwood, is born to fa mily of potters in Bursley, Stoke, England.
1854: Inventor George Eastman is born at Waterville, New York. He’ll choose the name "Kodak" for his company because he likes the letters "K" and "D."
1864: George Washington Carver is born into slavery near Diamond Grove, Missouri. He will, among many other accomplishments, come up with 300 uses for the peanut, but one of them is not peanut butter, which had already been invented.
1920: The $347 million Panama Canal is formally dedicated.
1933: Congress passes the first national minimum wage law.
1957: U.S. Surgeon General Leroy Burney issues a report that finds a connection between cigarette smoking and lung cancer.
1982: Steven Spielberg’s E.T.: The Extra-Terrestrial breaks box-office records by moving past the $100 million mark after only 31 days of release.
1982: After 60 years of production the last Checker Cab rolls off the assembly line at Kalamazoo, Michigan.
July 11, 2005
ContractsProf hits milestone
ContractsProf, which has been running for a little over eight months, hit a milestone last night: its 100,000th page view. Since November 4, 2004, more than 82,000 visitors have dropped by the site.
Thanks for your support, and send us your news!
"She came down from Birmingham one cold December day . . ."
Cherry, who's been teaching at the Birmingham (Ala.) school since 2003, earned a B.A. (Phi Beta Kappa) from Darmouth and a 1999 J.D. from Harvard, where she was executive editor of the Harvard Women's Law Journal. Before joining Cumberland, she clerked for the Massachusetts Supreme Judicial Court and then for Judge Gerald Haney on the Eighth Circuit, before practicing with Foley Hoag LLP.
Her newest article, forthcoming in the Northwestern Law Review, is Tiresias and the Justices: Using Information Markets to Predict Supreme Court Decisions. But her best article title is How to Succeed in Business Without Really Trying Cases.