September 3, 2005
Stockmeyer on Michigan damages
Looking for a good summary of the how Michigan courts measure and limit contract damages? Otto Stockmeyer (Thomas Cooley) has a chapter on the subject in a book he co-edits, Michigan Law of Damages. You can get a brief summary of the basic points from him, with some citations, here.
Today in History: September 3
301: A Dalmatian builder, St. Marinus, founds the little community of San Marino, which in the tenth century will become the world's oldest republic and the last surviving Italian city-state.
1260: The Mongol invasion reaches its furthest penetration and is stopped by the Mameluks at the Battle of Ain Jalut "Spring of Goliath") in Palestine.
1634: Sir Edward Coke dies at Stoke Poges, Buckinghamshire.
1658: Lord Protector Oliver Cromwell, the Cambridge-trained Puritan who nearly decided to move to Virginia in 1628 but chose to enter Parliament instead, dies at Whitehall at age 59.
1875: Ferdinand Porsche is born at Vratislavice in what is now the Czech Republic. His plans to build a small, inexpensive car for workers, financed with loans on his life insurance policies, will be on the brink of failure until Adolf Hitler decides that every German needs a "Volkswagen."
1895: In Latrobe, Pennsylvania, the local YMCA beats the Jeannette Athletic Club 12-0 in the first professional football game in U.S. history.
1951: Joy dishwashing liquid and Spic and Span cleaning liquid sponsor the first episode of TV's first great soap opera, CBS's Search for Tomorrow.
1967: At 5:00 a.m., everyone in Sweden has to stop driving on the left side of the road and drive on the right from now on.
September 2, 2005
Spinal Tap on Record Labels, part II
From Spinal Tap: The Guitar World Interview (April 1992):
GW: How would you describe the relationship you had with your former label, Polymer?
ST. HUBBINS: We have not had good luck with labels. We were on Megaphone for years and years, but they've gone under. What we're really trying to do now is get hold of our back catalog. And Polymer's legal position is that not only can't we have our back catalog, no one should have it.
SMALLS: There's been a lot of publicity about MCA and Polygram [Polymer's parent label] having this lawsuit, and the story is that it's about the rights to Motown, but that's a front, a smokescreen. The real story is all about our back catalog. They couldn't care less about Motown.
Madison on EULAs
End User License Agreements -- those little "contract" things that pop up when you install your software, telling you the terms of the deal -- have got a big boost from a couple of recent cases. Mike Madison (Pittsburgh) has this thoughtful analysis of them on his always-interesting blog, madisonian.net.
Law Schools Mobilize for Katrina
The chaos enveloping New Orleans as a result of Hurricane Katrina is staggering, but U.S. law schools are acting remarkably quickly to alleviate one small part of the problem. Nearly all ABA-accredited schools have volunteered to allow students from hard-hit Tulane and Loyola-New Orleans law schools to transfer as visitors. Most schools have agreed to waive tuition, and the major legal publishers are agreeing to provide books free to the students.
Our colleague Joe Hodnicki over at Law Librarian Blog has been collecting information here. The AALS has established a web site providing information on schools willing to take New Orleans law students here. Other useful sites::
Tulane Law School Official Site (temporary, hosted by Emory)
Information Blog for Tulane Law School
Loyola-New Orleans Emergency Site
Information Blog for Loyola-New Orleans Law School
The Long Arm of Georgia Law
A recent 11th Circuit ruling raises concerns for counsel who draft and enforce non-compete agreements. In Palmer & Cay, Inc. v. Marsh & McLennan Companies, Inc., an employee and shareholder of a national insurance brokerage firm signed two agreements with non-solicitation covenants. The covenants prohibited the employee from accepting unsolicited business from former clients of the employer. The employee thereafter moved to Georgia and became president of a competitor company. The former employee sought a declaration that the agreements were unenforceable in Georgia, which applies strict scrutiny to non-compete agreements.
The District Court declared the non-solicitation covenants unenforceable in Georgia, and held that they could not be blue-penciled. The 11th Circuit went further: it vacated the District Court’s judgment to the extent it was limited to Georgia, rendering the covenants unenforceable even in states outside of Georgia that are more friendly toward such covenants.
This case raises concerns that one state’s public policy concerning non-competes can be imposed upon other states. To avoid this result, counsel for employers might draft the agreements with forum selection clauses choosing states that are more friendly toward non-competes.
[Meredith R. Miller]
Today in History: September 2
1666: The Great Fire of London destroys five-sixths of the City, including St. Paul's Cathedral, the Royal Exchange, and the Guildhall, and leaves 100,000 homeless.
1752: The United Kingdom finally gives in an adopts that dangerous Papistical invention, the Gregorian calendar.
1817: The defendants in Adams v. Lindsell mail their offer to sell "eight hundred tons of wether fleeces, of a good fair quality of our country wool, at 35s. 6d. per ton," but send it to the wrong address.
1833: Two Presbyterian clergymen found Oberlin College, which will become the oldest coeducational college in the U.S. and the first to admit African-Americans.
1850: Albert Spalding is born at at Byron, Illinois. He'll get some fame as a baseball player, but his lasting impact will be his creation of the modern U.S. sporting goods industry.
1901: Speaking at the Minnesota State Fair, Vice President Theodore Roosevelt quotes an African proverb he'd heard on safari: "Walk softly and carry a big stick."
1973: Author and Oxford don John Reuel Ronald Tolkien dies at age 82, too early to see his final triumph: The Super Poseable Mount Doom Frodo action figure with Electronic Sound Base.
1995: The Rock & Roll Hall of Fame opens in Cleveland, Ohio. Two men actually have three plaques each in the Hall: Eric Clapton (for his work in Cream and The Yardbirds, along with his solo career), and Sam Cooke (as an "early influence," for his solo work, and as a member of The Soul Stirrers).
September 1, 2005
ContractsProf passes 100K mark
Thanks to all of you for visiting and offering your kind words of encouragement.
The CD Ain't Dead Yet
A recent survey by the University of Western Sydney found that over two-thirds of "music lovers" preferred to buy original CDs from a store, even though pirated copies are extensively available on the Internet. The study involved 100 "baby boomers" and 100 members of "Generation Y," described as persons aged 14 to 29. 38% of the respondents did admit to downloading pirated music, however. The survey indicated that a clear majority of music lovers enjoy having the commercially-produced CD and packaging, and also enjoy getting the newest music. The problem for the recording industry --- 54% of Generation Y downloaded pirated music, compared to just 10% for the baby boomers.
J. Greeley McGowin, 80 years ago
Eighty years ago today, on September 1, 1925, James Greeley McGowin allegedly promised a lifetime pension to Joe Webb, a promise that will ultimately lead to that staple of contracts casebooks, Webb. v. McGowin.
McGowin was the new president but longtime co-owner of the W.T. Smith Lumber Co. of Chapman, Alabama, and an important figure in the state's timber industry. Today, he's a member of the University of Alabama's "Alabama Business Hall of Fame." (Left, his picture, University of Alabama Culverhouse College of Commerce & Business Administration.) Here's his bio:
James Greeley McGowin was a self-made man. Early in life, McGowin began assisting his father in cutting timber, the industry in which he would make a career. McGowin opened a mercantile business in Brewton in 1892. While developing the successful business, McGowin met and fell in love with Essie Teresa Stallworth. The couple married in 1898. In 1903, McGowin sold his interest in the mercantile store and moved to Mobile to join his brothers in the lumber exporting business. Two years later, McGowin joined with his brothers and a brother-in-law in purchasing the W.T. Smith Lumber Company in Chapman, Alabama. The early period of McGowin’s management of the company was one of intense competition. “Cut out and get out” was a dominant philosophy, but McGowin stayed with the land, purchasing and merging with neighboring mills. In 1925, McGowin became president of the company, a position he held the rest of his life. Many southern timber industries began to suffer as old timber began to run out, and reforestation had not yet produced new timber. Diversification and the use of all possible timber were the ways McGowin met the problem. McGowin’s main avocations were his farm south of Chapman and the development of a wildlife conservation area. He was active in trade organizations such as the Southern Pine Association. He devoted much of his time to the Universalist Church. One of McGowin’s sons described his father: “Truly, James Greeley McGowin was one of the mightiest pines.”
McGowin's son Earl, who was a Rhodes Scholar at Oxford at the time of Webb's accident, is also a member of the Hall. The McGowin family sold the lumber company in 1965. A piece about its wildlife preserve is here.
The Objective Theory of Bank Heists?
Apparently, a man in Georgia sent a 12-year-old girl into a bank with a yellow post-it note stating: "Give me your money this is a stick up." The teller tripped the bank's alarm and, when the cops and FBI showed up, the man said he was "only joking."
Sounds like a criminal case, not a contracts case, but it does have notable similarities to the interaction between Lucy and Zehmer. See Lucy v. Zehmer, 196 Va. 493 (1954). Though, there is no indication that the joking bank robber was "high as a Georgia pine."
[Meredith R. Miller]
Today in History: September 1
1878: The Telephone Dispatch Co. of Boston, Massachusetts, hires Emma M. Nutt to be the first female telephone switchboard operator in the U.S.
1887: Emile Berliner gets a patent for the flat-disc gramophone, the ancestor of the later record player. Edison and RCA will later adopt Berliner's trademark, a dog listening to His Master's Voice.
1914: The last passenger pigeon curls up its toes and becomes extinct.
1922: WBAY Radio in New York City debuts The Radio Digest, the first regularly scheduled broadcast news program.
1931: Lecil Travis "Boxcar Willie" Martin is born in a tool shed six feet from the Missouri, Kansas & Texas Railroad tracks at Sterrett, Texas. When he can't land a record contract with a major label, he'll turn to television ads, eventually chalking up four platinum and fifteen gold records for K-Tel Records.
1967: Article 2 of the U.C.C. goes into effect in Texas.
1977: After two flop albums, singer Debbie Harry of the group Blondie signs a record deal with Chrysalis Records, which bought the band's whole label, Private Stock, for $500,000. "Heart of Glass" will shortly make Blondie the first punk band to have a crossover disco hit.
August 31, 2005
Falwell v. Fallwell
Reversing a District Court decision, the Fourth Circuit held that a “gripe site” named “www.fallwell.com” does not infringe the Reverend Jerry Falwell’s trademark rights in his name. Christopher Lamparello registered the domain name and launched a site challenging the Reverend’s views on homosexuality. The site disclaims any connection to the Reverend and provides a link to the Reverend’s own website, “www.falwell.com”.
The court held that Lamparello’s site is not likely to cause confusion. The court noted that, although Lamparello’s domain name is similar to the Reverend’s trademarks, the websites look very different. Moreover, Lamparello’s website is intended to criticize Falwell’s views, not to “steal customers.” The court determined that, because Lamparello’s site criticizes the Reverend, no one seeking the Reverend’s guidance would be misled to believe that the Reverend authorizes its message. Likewise, the Reverend was unable to establish a cybersquatting claim because he could not demonstrate that Lamparello had a bad faith intent to profit from the similar domain name.
[Meredith R. Miller]
Spinal Tap on record labels, part 1
From: Spinal Tap: The Guitar World Interview (April 1992):
GUITAR WORLD: Where's Ian Faith, your manager?
NIGEL TUFNEL: Yes, Ian died.
GW: How did he die?
DAVID ST. HUBBINS: Who cares?
TUFNEL: You get news like that and you go, "I'm not even going to ask how."
ST. HUBBINS: He was always prone to apoplexy, because he had very thin English skin and very thick alcoholic blood.
TUFNEL: He was prone to apoplexy and . . . what do they call it? Embezzlement.
DEREK SMALLS: He took everything personally -- including our royalties.
. . .
SMALLS: We have a custom label, a subsidiary of MCA, named in tribute to him --
ST. HUBBINS: -- but mainly because it's a great name.
SMALLS: It's called Dead Faith Records.
ST. HUBBINS: Dead Faith Records, Tapes & CDs --
SMALLS: And Any Other Form Of Recorded Entertainment There May Be In The Known Universe. That's the legal name.
Choice of jurisdiction in international reinsurance
A recent decision by the European Court of Justice has raised concerns about whether exclusive choice of jurisdiction clauses in international reinsurance contracts will be enforceable. Amanda Mochrie, of Bryan Cave’s London office, has an analysis of the implications for those who deal with such agreements.
Today in History: August 31
1422: England’s Henry V, who has just about won the Hundred Years War and had himself named heir to the French throne, dies suddenly at age 34, undoing pretty much the entire plan.
1897: Thomas Edison received the patent for the Kinetoscope, the forerunner of the modern motion picture camera.
1931: The last of 4.3 million Ford Model A automobiles runs off the assembly line.
1973: Director John Ford dies at Palm Desert, California. He won four Academy Awards for Best Director, but none for a Western.
1980: The Polish Solidarnosc (“Solidarity”) labor union is formed.
2002: Lionel Hampton, the only jazz musician to have a university school of music named for him (at the University of Idaho) dies at 94.
2004: The DVD of Mel Gibson’s film The Passion of the Christ sells 4.1 million copies in its first day of release.
August 30, 2005
Welcome to the Blogosphere
A hearty welcome to the newest member of the Law Professor Blog Network, Family Law Prof Blog, edited by Barbara Glesner Fines (Missouri-Kansas City), Robert E. Oliphant (William Mitchell), and Nancy Ver Steegh (William Mitchell).
Today’s postings include an interesting Rhode Island case that involves the issue of whether an unambiguous settlement contract entered into in a divorce proceeding can be reformed by a court.
Katrina may be most costly hurricane in history
It's too early to tell, but analysts estimate that Katrina could inflict the most damage of any hurricane on record. Estimates currently range from $9 billion to $26 billion. By comparison, average annual insurance losses in Louisiana are $196 million, whereas in Florida they are $1.42 billion. To put these numbers in perspective, according to the Insurance Information Instsitute, the following are the costliest catastrophes in U.S. history:
Event Date insured (2004 dollars)
Hurricane Andrew August 1992 $20.9 billion
9-11 attacks September 2001 $20.1 billion*
Northridge, Calif. earthquake January 1994 $15.9 billion
Hurricane Charley August 2004 $7.5 billion
Hurricane Ivan September 2004 $7.1 billion
Hurricane Hugo September 1989 $6.4 billion
Hurricane Frances September 2004 $4.6 billion
Hurricane Jeanne September 2004 $3.7 billion
Hurricane Georges September 1998 $3.4 billion
Tropical Storm Allison June 2001 $3.1 billion
*Property only. Insured losses totaled $31.7 billion including liability and life insurance claims.
News in Brief
Model Tyson Beckford has sued Sean “Diddy” Holmes for $5 million, claiming that Holmes continued to use Beckford’s image in selling his Sean John clothing line after Beckford’s contract expired.
The U.S. government is expected to issue some $250 billion in IT contracts during FY2006, according to a new report.
An arbitrator has ruled that Metrologic Instruments must pay $12 million to settle a license dispute with its rival bar-code reading company, Symbol Technologies.
Workers at Michigan-based Farmer Jack grocery stores have rejected a contract their union said was necessary to allow the chain to be acquired and avoid being shut down.
The United Steelworkers, who narrowly lost a similar vote on a contract recommended by union leadership, have reconsidered a strike at a West Virginia mill and will put the contract up for a second vote, as the state's governor has requested.
Boeing’s latest offer to its machinists, meanwhile, seems to have crashed and burned on takeoff.
A company that claims the Eastern Pequot tribe breached a partnership contract says it will take an appeal to the Connecticut Supreme Court.
General Dynamics, which makes a good deal of money making weapons, has won a $30 million contract to take them apart again and “demilitarize” them.
Indiana is in negotiations with a private company on a renewable 10-year deal to manage its 2,416-bed New Castle Correctional Facility, a minimum-to-medium security facility.
A demoted Army procurement official says she’ll sue, claiming the job action was in retaliation for exposing irregularities in contracts with a Halliburton subsidiary.
In the Third Year, They Bore You
Is the third year of law school necessary or useful? Some critics of
On the other side, it is argued that
shortening legal education to two years “will invalidate the prestige of the
degree and produce attorneys who are not yet ready to practice law.”
[Meredith R. Miller]