August 2, 2005
Today in History: August 2
1100: While hunting in the New Forest, English King William II is "accidentally" shot through the heart by an arrow after getting separated from the rest of the party.
1754: Pierre Charles L’Enfant is born at Paris, France. Hired to design the new U.S. capital at Washington, he gets into a dispute with the government and never makes a dime off the job.
1835: Elisha Gray, co-inventor of the telephone and founder of Western Electric, is born at Barnesville, Ohio.
1870: The Tower Subway, the world’s first, opens in London. Its small 12-person cars, operated by cable, turn out to be inefficient, and it’s subsequently turned into a pedestrian walkway.
1876: At Nuttall & Mann’s Saloon No. 10 in Deadwood, Dakota Territory, James Butler "Wild Bill" Hickok is shot to death from behind while playing poker. The two pair he holds in his hand -- aces and eights -- will come to be known as the "dead man’s hand."
1892: John Leonard "Jack" Eichelbaum is born, the youngest of 12 children, in London, Ontario. He and his brothers will change their last name to "Warner" and create one of Hollywood’s biggest film studios.
1943: The Japanese destroyer Amagiri ("Misty Rain") runs over and sinks PT-109, which had been idling in the middle of the Blackett Strait. General MacArthur wants to court-martial the American commander for negligence, but he’s given a medal instead.
1951: Swiss electrical engineer George de Mestral receives a patent for Velcro.
1975: The New Orleans Superdome opens with a game between the New Orleans Saints and the Houston Oilers.
Richman, Barak D., "How Communities Create Economic Advantage: Jewish Diamond Merchants in New York" (March 2005). Duke Law School Legal Studies Research Paper No. 65; Harvard Law and Economics Discussion Paper No. 384. http://ssrn.com/abstract=349040
This fascinating article explores how the diamond merchant market in New York has maintained a competitive advantage over other markets because of various values held by and enforced by the community.
August 1, 2005
Leiter blog joins LawProf
Curious about the latest activities of the rich and famous? Want to learn where the elite meet to greet and compete? Who's hot and who's not? Well, you're in luck, because Leiter's Law School Reports has joined the LawProf Blog Network. Written by Brian Leiter (Texas), the nation's foremost expert on the academic legal hierarchy, the blog will keep you up to date on all the news likely to affect the U.S. News ratings of the top 50 law schools.
Speaking of the rankings, the New York Times has a story today on some of the unusual moves some law schools have used to enhance their ranking in the polls.
Microsoft wins round 1 on noncompete
In an employee noncompete case being watched around the country, King County (Wash.) Superior Court Judge Steven Gonzalez has issued a temporary restraining order prohibiting former Microsoft vice president Kai-Fu Lee from doing work for his new employer, Google, that relates to what he did at Microsoft. Lee signed a noncompete when he was hired by Microsoft in 2000.
Weekly Top 10
1 (1) Understanding the Current Wave of Procurement Reform -- Devolution of the Contracting Function, Christopher R. Yukins (Geo. Washington).
2 (5) Juries, Judges, and Punitive Damages: Empirical Analyses using the Civil Justice Survey of State Courts 1992, 1996, and 2001 Data, Theodore Eisenberg (Cornell), Michael Heise (Cornell), Martin T. Wells (Cornell Stats), Paula Hannaford-Agor (National Center for State Courts), Neil LaFountain (NCSC), G. Thomas Munsterman (NCSC), & Brian Ostrom (NCSC).
•3 (10) Decisionmaking & the Limits of Disclosure: The Problem of Predatory Lending, Lauren E. Willis (Loyola-Los Angeles).
4 (6) The Comparative Law and Economics of Pure Economic Loss, Francesco Parisi (Geo. Mason), Vernon V. Palmer (Tulane) & Mauro Bussani (Trieste).
5 (8) Private Contractual Alternatives to Malpractice Liability, Jennifer Arlen (NYU).
•6 (-) Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise, Jeffrey M. Lipshaw (Wake Forest).
•7 (-) Better than Cash? Consumer Protection and the Global Debit Card Deluge, Arnold S. Rosenberg (Thos. Jefferson).
8 (-) Private Dispute Resolution in the Card Context: Structure, Reputation, and Incentives, Andrew P. Morriss & Jason Korosec (Case Western).
9 (-) Evolving Business and Social Norms and Interpretation Rules: The Need for a Dynamic Approach to Contract Disputes, Nancy Kim (Cal Western).
10 (-) Contract-Centered Veil-Piercing, Nicholas L. Georgakopoulos (Indiana-Indianapolis).
Last week's position in parentheses; • indicates fastest-rising paper.
Sign up for Boilerplate
Online registration is now available for the upcoming Michigan Law Review conference, Boilerplate: Foundations of Market Contracts. The conference, which will be held in Ann Arbor, Michigan, September 23-24 is sponsored by the John M. Olin Foundation, and is free. Speakers include Douglas Baird (Chicago), Lucian Bebchuk (Harvard), Omri Ben-Shahar (Michigan), Lisa Bernstein (Chicago), Stephen Choi (UC-Berkeley), Kevin Davis (NYU), David Gilo (Tel Aviv), Mitu Gulati (Georgetown), Robert Hillman (Cornell), Ariel Porat (Tel Aviv), Todd Rakoff (Harvard), Margaret Jane Radin (Stanford), Henry Smith (Yale), James J. White (Michigan).
Efficiency Contracting for Breach
"Harnessing Litigation by Contract Design"; Yale Law Journal, Vol. 115, 2005-06, ROBERT E. SCOTT, University of Virginia School of Law, GEORGE G. TRIANTIS, University of Virginia School of Law. http://papers.ssrn.com/paper.taf?abstract_id=722263 This article explores commerical contracting in light of specific and vague terms (rules and standards), as well as terms allocating litigation burdens. The article argues that the prevelance of vague terms in contracts persists because parties anticipate that the courts or alternative dispute mechanisms will determine them through litigation. Thus, the anticipated path of litigation is relevant to contract design.
Today in History: August 1
527: Flavius Petrus Sabbatius Iustinianus becomes Byzantine Emperor as Justinian I. The 38 years of his reign will see a tremendous codification and clarification of Roman law.
1492: By the terms of the Alhambra Decree, issued by Ferdinand of Aragon and Isabella of Castile, all Jews who do not convert to Christianity must leave Spain.
1619: With tobacco beginning to become a booming industry, the first African slaves are imported to the Jamestown colony in Virginia.
1714: Anne, by the Grace of God, Queen of Great Britain, France and Ireland, Defender of the Faith, etc., dies of a fever caused by erysipelas. Judges in the American colonies go into mourning, wearing black robes, which they later decide to keep.
1774: Joseph Priestley discovers oxygen, which allows everyone to breath more comfortably.
1794: Angry farmers opposed to the federal government's tax on distilled spirits begin the uprising that will come to be known as the Whiskey Rebellion. It will take 13,000 troops under George Washington to quell it.
1831: London Bridge opens to traffic. A hundred and fifty years later it will be sold to an American for $2.5 million and moved brick-by-brick to Arizona, where it is now the state's second most popular tourist attraction.
1834: The Slavery Abolition Act abolishes slavery in British dominions, except for areas of India under the control of the East India Company. Parliament appropriates £20 million to compensate slave owners for their losses.
1876: Colorado is admitted to the Union as the 38th state.
1941: The Willys-Overland Motor Company of Toledo, Ohio, delivers the first model of a new open four-wheeled vehicle designed for military use. No one knows exactly why it will come to be known as the "Jeep."
1961: The world's largest theme park company begins with the opening of the $10 million Six Flags Over Texas. The six flags are those of Spain, France, Mexico, the Republic of Texas, the United States, and the Confederate States of America.
1981: MTV Music Television goes on the air. The hip new medium is a joint venture between corporate titans Warner Communications and American Express.
July 31, 2005
Film Clips: The Marx Bros. on contract drafting
[Fiorello and Otis B. Driftwood are going over their proposed contract.]
Driftwood: Now pay particular attention to this first clause because it's most important. It says the, uh -- "The party of the first part shall be known in this contract as the party of the first part." How do you like that? That's pretty neat, eh?
Fiorello: No, that's no good.
Driftwood: What's the matter with it?
Fiorello: [Thinking.] I dunno. Let's hear it again.
Driftwood: It says the, ah "The party of the first part shall be known in this contract as the party of the first part."
Fiorello: That sounds a little better this time.
Driftwood: Well, it grows on you. Would you like to hear it once more?
Fiorello: Er -- just the first part.
Driftwood: What do you mean? The -- the party of the first part?
Fiorello: No, the first part of the party of the first part.
Driftwood: All right. It says the, uh, "The first part of the party of the first part shall be known in this contract as the first part of the party of the first part shall be known in this contract" -- Look, why should we quarrel about a thing like this? We'll take it right out, eh?
From: A Night at the Opera (1935)
Who owns employees' knowledge?
With the decline of unskilled or traditional assembly-line jobs, the concept of "human capital" has become more prominent. When employers invest substantial amounts of money to give workers a set of valuable skills, what rights do employers have in those skills? Contractual provisions -- usually noncompete clauses -- are often used in an attempt to protect the employer's interest. Should that interest be protected?
In Thinking and Doing -- The Regulation Of Workers' Human Capital in the United States, forthcoming in the Socio-Economic Review, Katherine Van Wezel Stone (UCLA) looks at the issues from a relational angle and concludes that current law is out of step with reality. Click on "continue reading" for the abstract.
The ownership of human capital has become a hotly contested issue in the United States. Covenants not to compete are widely used in the American workplace and the source of an enormous volume of litigation. Trade secret disputes are also widespread. The issues raised by these cases are not new, but they are arising with increasing frequency and are posed in a new way.
The new focus on workers' human capital is a result of the fact that, in the past two decades, the employment relationship has changed from one in which workers' knowledge about production was devalued to one in which it is highly prized. This change in the nature of the employment relationship has many far-reaching implications for many aspects of employment regulation, of which the ownership of human capital is high on the list.
This article examines the current disputes and legal trends concerning the issue of who owns the workers' human capital from an historical perspective. It begins with a review of the regulation of employee human capital in earlier employment systems and a description of the new employment relationship. It then discusses the current controversies and changing legal framework governing the ownership of human capital to show that the law is out of step with the changes in the nature of work. Part III proposes an approach that is consistent with the implicit promises and understandings that underlie the new employment relationship.
Today in History: July 31
1763: Chancellor James Kent is born at Fredericksburgh, New York. The first professor of law at Columbia, his Commentaries on American Law will go through six editions in his lifetime and be enormously influential on both sides of the Atlantic.
1790: Philadelphia potash maker Samuel Hopkins receives the first patent issued by the United States government, for an improvement in the process of making potash. The document is signed by President Washington, Secretary of State Jefferson, and Attorney-General Randolph.
1803: Inventor John Ericsson is born at Långbanshyttan in Wermelandia, Sweden. Although he'll become most famous as the designer of the U.S.S. Monitor, his greatest contribution is the screw propeller, which revolutionizes steamship design.
1856: Christchurch, named after the Oxford college of the same name, receives a royal charter to become the first city in New Zealand.
1912: Economist Milton Friedman is born at New York City. "A major source of objection to a free economy," he will say, "is precisely that it . . . gives people what they want instead of what a particular group thinks they ought to want."
1923: Record impresario and Atlantic Records co-founder Ahmet Ertegun is born at Istanbul, Turkey.
1930: The Mutual Broadcasting Service debuts a new radio series, Detective Stories. The most memorable character is the announcer, known only as "The Shadow."
1951: Japan Airlines (known as JAL) is formed. Today it flies more Boeing 747s than any other airline.
1958: Internet entrepreneur Mark Cuban is born at Pittsburgh, Pennsylvania. In 1998 his Broadcast.com will go public, making him a billionaire and 300 other employees millionaires.
1965: Joanne Rowling is born at Chipping Sodbury, Gloucestershire. Her six Harry Potter novels will make her the first writer in history to earn $1 billion from her writings.
1975: Teamsters president Jimmy Hoffa is reported missing from the parking lot of the Machus Red Fox restaurant in Bloomfield Hills, Michigan.