September 24, 2005
Monty Python on Substantial Performance
From the "Last Supper" sketch. Michelangelo is played by Eric Idle; the Pope is played by John Cleese.
Michelangelo: Good evening, your Holiness.
Pope: Evening, Michelangelo. I want to have a word with you about this painting of yours, "The Last Supper."
Michelangelo: Oh, yeah?
Pope: I'm not happy about it.
Michelangelo: Oh, dear. It took me hours.
Pope: Not happy at all.
Michelangelo: Is it the jello you don't like?
Michelangelo: Ah, no, I know, they do have a bit of colour, don't they? Oh, I know, you don't like the kangaroo?
Pope: What kangaroo?
Michelangelo: No problem, I'll paint him out.
Pope: I never saw a kangaroo!
Michelangelo: Uuh...he's right in the back. I'll paint him out! No sweat, I'll make him into a disciple.
Michelangelo: All right?
Pope: That's the problem.
Michelangelo: What is?
Pope: The disciples.
Michelangelo: Are they too Jewish? I made Judas the most Jewish.
Pope: No, it's just that there are twenty-eight of them.
Michelangelo: Oh, well, another one will never matter, I'll make the kangaroo into another one.
Pope: No, that's not the point.
Michelangelo: All right. Well, I'll lose the kangaroo. Be honest, I wasn't perfectly happy with it.
Pope: That's not the point. There are twenty-eight disciples!
Michelangelo: Too many?
Pope: Well, of course it's too many!
Michelangelo: Yeah, I know that, but I wanted to give the impression of a real last supper. You know, not just any old last supper. Not like a last meal or a final snack. But you know, I wanted to give the impression of a real mother of a blow-out, you know?
Pope: There were only twelve disciples at the last supper.
Michelangelo: Well, maybe some of the others ones came along after...
Pope: There were only twelve altogether.
Michelangelo: Well, maybe some of their friends came by, you know?
Pope: Look! There were just twelve disciples and our Lord at the last supper. The Bible clearly says so.
Michelangelo: No friends?
Pope: No friends.
Michelangelo: You see, I like them, they help to flesh out the scene, I could lose a few, you know I could...
Pope: Look! There were only twelve disciples at...
Michelangelo: I've got it! I've got it! We'll call it "The Last But One Supper"!
Michelangelo: Well there must have been one, if there was a last supper there must have been a one before that, so this, is the "Penultimate Supper"! The Bible doesn't say how many people were there now, does it?
Pope: No, but...
Michelangelo: Well there you are, then!
Pope: Look! The last supper is a significant event in the life of our Lord, the penultimate supper was not! Even if they had a conjurer and a mariachi band. Now, a last supper I commissioned from you, and a last supper I want! With twelve disciples and one Christ!
Pope: Yes one! Now will you please tell me what in God's name possessed you to paint this with three Christs in it?
Michelangelo: It works, mate!
Michelangelo: Yeah! It looks great! The fat one balances the two skinny ones.
Pope: There was only one Redeemer!
Michelangelo: Ah, I know that, we all know that, what about a bit of artistic license?
Pope: Well one Messiah is what I want!
Michelangelo: I'll tell you what you want, mate! You want a bloody photographer! That's you want. Not a bloody creative artist to crease you up...
Pope: I'll tell you what I want! I want a last supper with one Christ, twelve disciples, no kangaroos, no trampoline acts, by Thursday lunch, or you don't get paid!
Michelangelo: Bloody fascist!
Pope: Look! I'm the bloody pope, I am! May not know much about art, but I know what I like!
[Meredith R. Miller]
An Offer You Can’t Refuse…?
Playing off Frank’s earlier post about murder-for-hire in India, I recently came across this article that discusses how few employee benefits there are when your employment contract is with the mob. As the story put it, mafia members often leave with “bronze caskets” rather than with “golden parachutes.” Interesting, as was the discussion in Freakonomics about the pay structure for drug dealers. Low-level “employees” are willing to put up with pay close to minimum wage and extremely violent working conditions because they, usually in vain, hope to become the leader of the gang someday and make millions.
Today in History: September 24
624: Muhammad and his followers arrive in Medina at the conclusion of their hejira from Mecca.
1664: Dutch West India Company director-general Peter Stuyvesant surrenders the Company's New Amsterdam community to the English after a surprise attack.
1755: Future U.S. Chief Justice John Marshall is born at what is now Midland, Virginia.
1789: On Marshall's 34th birthday, The Judiciary Act creates the U.S. Supreme Court and the position of Attorney General.
1852: French engineer Henri Giffard makes the first powered flight, going some 27 kilometers in a steam-powered dirigible.
1869: The "Black Friday" panic hits the U.S. financial markets after Jay Gould and James Fisk try to corner the gold market. President Grant will break the corner by releasing $4 million in U.S. gold into the market.
1948: Soichiro Honda, who had just made a nice profit selling auto-parts business to Toyota, starts his own company to make motorized bicycles.
September 23, 2005
AALS fete moves to D.C.
Since Hurricane Katrina caused New Orleans and the Gulf Coast to suffer, the AALS leadership has decided to have its membership share the pain. The AALS Annual Meeting in January will thus be held, not in someplace like California or Las Vegas but at the God-Awful Marriott Wardman Park in D.C.
Somehow you really expected this, didn't you?
Mitchell to host Lavender Law
William Mitchell Law School will host the 14th Regional Lavender Law Conference, “Challenging Times: Reclaiming Purpose, Passion and Balance.” It will be at the St. Paul school on Saturday, October 15, from 9 a.m. to 4 p.m.
Negotiation of Public Loo Contract
The New York Times reports today that
Apparently, “the details of how Cemusa was chosen, as well as its designs for the toilets, bus shelters and newsstands, remain a mystery.” The project is one of the largest of its kind in the city’s history, and Cemusa outbid four other companies for the project.
The Times reports:
City and Cemusa officials, citing the continuing contract talks, have refused to provide more information. Some lobbyists and city officials who have followed the bid say privately that one of the losing companies may still sue to block the project.
The mayor was pleased:
"It will mean for the city a billion dollars in revenues over 20 years, which we certainly can use, and it will make the streetscape look better and cleaner, and provide better access for people walking back and forth," he said. "And toilets are one of those things that people need, and lots of other cities have them."
The article is here (free subscription required).
[Meredith R. Miller]
Contract hits in India
There’s a an unusual contract dispute brewing in the Indian film industry -- one that involves not merely “contract” in its legal sense but “contract” in its underworld sense.
Bollywood actress Preeti Jain has apparently admitted that she agreed to pay contract killer Naresh Pardeshi an advance of 40,000 rupees to murder film-maker Madhur Bhandarkar. Pardeshi then turned and allegedly hired subcontractor Gulfam Mohammed Ibrahim Shaikh, a/k/a Shamir, to help with the killing. But Pardeshi says he was then contacted by gangster-turned-state-legislator Arun Gawli, who told him that Bhandarkar would pay him 50,000 rupees more than Jain to get the contract “cancelled.” Five people have been arrested; no word on whether Pardeshi will get the cash for calling off the hit.
Today in History: September 23
490 BC: A Greek soldier, Pheidippides, runs the first Marathon and dies.
1241: Poet-historian-politician Snorri Sturleson is killed at Reykholt in western Iceland after taking part in an unsuccessful revolt against King Haakon IV of Norway.
1529: After massacring 4,000 the civilians who fled the city -- young women suitable for slavery excepted -- Suleiman the Magnificent begins the siege of Vienna with an army of 100,000 men and 300 cannons.
1728: Christian Thomasius, the first German law professor to lecture in the vernacular instead of German (at the University of Halle), dies at 73.
1806: Meriwether Lewis and William Clark return from their long trip.
1912: Mack Sennett’s new Keystone Film Co. releases its first “Keystone Kops” feature, Hoffmeyer’s Legacy.
1943: Elinor Glyn, sister of Lucy, Lady Duff Gordon, and inventor of the modern bodice-ripping novel, dies at age 78.
September 22, 2005
News in Brief
Cosmetics firm Rimmel is the fourth to announce it is "reviewing its contract" with model Kate Moss, saying it’s “shocked” -- shocked! -- that she snorts cocaine. (The Telegraph)
The town of Brookline (Mass.) is suing cable giant Comcast for breach of contract, saying the company broke its pledge to improve reception there. (Brookline TAB)
A Texas judge has dismissed fraud and breach of contract claims brought against bicycle racer Lance Armstrong by a former assistant. (KGBT-TV)
Indiana officials have terminated the contract of the firm hired to link together the computer systems of the state courts because the system just doesn’t work. (Ft. Wayne Journal-Gazette)
New York City will ink a 20-year contract with Spain’s Cemusa, Inc., to build and maintain bus stops and public toilets; Cemusa will get all advertising rights and will pay about $1 billion over the life of the contract. (Newsday)
An Oklahoma roofing company has seen its stock more than double after it wins Army contracts to provide roofing services in storm-damaged Mississippi. (KFOR-TV)
Boston Scientific has agreed to pay $750 million to a small Israeli company to settle a contract dispute over sales of heart stents. (Boston Globe)
Cases: Policy incontestible despite fraud
The statutory two-year incontestability provision of Florida life insurance law means an insurer must pay out the benefits even if the policyholder hired an impostor to impersonate him during the required medical exam, according to a ruling from the U.S. Court of Appeals for the 11th Circuit.
Under the law, a life insurance policy becomes incontestable if it’s in force for two years before the policyholder’s death. Allstate Insurance claimed that policyholder John Miller had someone else pretend to be him during the medical exam, but the district court granted summary judgment on that contention to the beneficiaries.
The two-year period, said the court, is the equivalent of a statute of limitations:
Just as Florida courts would dismiss an otherwise valid action once the statute of limitations on that claim had run, Florida's appellate courts have uniformly held that once the incontestability clause becomes effective, insurers are barred from attempting to rescind or cancel the insurance policy based on allegations that the insured engaged in fraud or misrepresentation.
Snappy Responses to Wrong Answers
"Okay, now let's try to get an answer from someone who's not a complete retard. Anyone?"
-- Mr. Garrison, South Park
Today in History: September 22
1784: Russians establish a new colony at Three Saints Bay on Kodiak Island, Alaska. The settlement of Kodiak will become the central trading point for the Russian fur fleet.
1851: At Goshen, New York, the president of the Erie Railroad sends the first telegraphic train dispatch to let a train know it's supposed to wait for an oncoming train. Within weeks, the system will be used all across the Erie system.
1893: Brothers Charles and Frank Duryea of Springfield, Massachusetts, exhibit the first American-built automobile. Within three years their company will sell 16 of the things.
1902: Jacques Haussmann is born at Bucharest, Rumania. After emigrating to the U.S. and taking the name “John Houseman,” he’ll reach fame as Contracts Professor Charles Kingsfield in The Paper Chase.
1955: In Great Britain, the ITV television channel, a commercial rival to the BBC, goes live for the first time. Specifically set up to avoid “vulgar” U.S.-style programs, it will come eventually up with The Benny Hill Show.
1964: Zero Mostel sings "Tradition" to open the first of 3,242 performances of Fiddler on the Roof.
1989: Songwriter Irving Berlin dies at New York City at age 101.
September 21, 2005
Get Ready to Rumble. . .
Today, the Authors Guild filed a copyright infringement lawsuit against Google concerning the Google Print project (subject of a handful of previous posts). Press release from the Authors Guild: here. Google's statement on its blog: here.
This topic has a tendency to veer away from contracts and toward copyright law, but it is irresistible. Besides, whichever side the court takes, the case's aftermath will certainly raise contract issues for authors and publishers.
[Meredith R. Miller]
Sosa settles legal bill
Via our colleages at TaxProf Blog, we hear that baseball star Sammy Sosa, whose other problems range from steroids to corked bats, has settled the breach of contract lawsuit brought against him by tax counsel who claimed he stiffed them.
Last November we mentioned Rediscovering Williston by Mark Movsesian (Hofstra) here. It was "forthcoming" then, and it's now out in the Washington & Lee Law Review. Those who view Williston as the quintessential Formalist bogeyman will find it eye-opening.
You can contact Mark for copies here.
China looking for K profs
"Late applications for 2006-07 Fulbright Scholar grants in China are being accepted from scholars in a wide variety of sub-field of law including: administrative, business, contract, investment, civil, tax, constitutional comparative, intellectual property and international Grants are for 5 or 10 months. Five-month grants start in August 2006 or February 2007 and academic year grants start in August 2006. Applicants may express a preference regarding host institution and host city, but final determination of placements is at the discretion of the Public Affairs Section of the US Embassy in Beijing in consultation with the Ministry of Education. Applicants do NOT need to secure a letter of invitation. Applicants must have a minimum of 5 years of law school teaching experience either full-time or as an adjunct. The lecturing grants in China include a generous benefits package.
Today in History: September 21
1558: Charles V -- the half-German, half-Spanish, Dutch-born, French-speaking Emperor who abdicated his throne as the most powerful European since the days of the Roman Empire -- dies at the monastery of Yuste in Spain.
1756: John Loudon MacAdam is born at Ayr, Scotland. As surveyor for the Bristol Turnpike Trust, he’ll develop a new means of making all-weather roads which will come to be known as “macadamization”; when asphalt is later added to the mix it will be called “tarmacadam,” or "tarmac."
1897: The New York Sun publishes the most reprinted editorial in history, “Yes, Virginia, there is a Santa Claus.”
1937: George Allen & Unwin, Ltd., publishes a new novel by an Oxford professor of Anglo-Saxon. The Hobbit, or There and Back Again, proves an unexpected success.
1947: Writer Stephen King is born at Portland, Maine. He’ll get a $2,500 advance for his first book, Carrie.
1957: King Haakon VII of Norway, who in 1926 became the only foreign head of state to visit Lake Wobegon, Minnesota, dies at age 85.
1970: One of TV’s great franchises, Monday Night Football, debuts on the ABC Television Network, making an unlikely star of former NYU Law Review editor Howard Cosell.
September 20, 2005
Harris Joins Memphis Faculty
Harris was a visiting student at the London School of Economics and Political Science, before eventually obtaining his undergraduate degree from Morehouse College in 2000. Harris went on to earn his J.D. from Yale Law School in 2003, where he was a Coker Fellow. For the past two years prior to joining Memphis, Harris practiced at Baker, Donelson, Bearman, Caldwell & Berkowitz.
Harris teaches Contracts, and has also published articles in the University of Maryland Journal of Race, Class & Gender, Journal of Land Use & Environmental Law, Georgetown Journal of law and Public Policy, University of Memphis Law Review and Southern University Law Review.
NY High Court to Apply PA Law: Non-binding, Charitable Pledge or Enforceable Promise?
Wirth v. Drexel University, a New York case involving Pennsylvania law, raises the seemingly timeless issue whether consideration exists to bind a donor's pledge to make a charitable contribution.
Raymond P. Wirth executed a Pledge Agreement with Drexel University, "irrevocably pledg[ing] and promis[ing]" to pay Drexel $150,000. The Agreement expressly stated that Wirth "intend[ed] to be legally bound." The parties agreed that a scholarship fund would be set up in Wirth’s name, effective immediately upon the transfer of an initial $50,000. Wirth expressly "acknowledge[d] that Drexel’s promise to use the amount pledged . . . shall constitute full and adequate consideration for [the] pledge." Less than two months later, Wirth passed away; he had not yet contributed the initial $50,000 to Drexel. Drexel sued Wirth’s estate to enforce the Pledge Agreement. The parties agreed that Pennsylvania law applies.
The Surrogate’s Court denied Drexel’s motion for summary judgment and dismissed its petition. By a 3-2 vote, the appellate court reversed. The majority held that, under section 6 of Pennsylvania’s Statute of Frauds, the Pledge Agreement did not need to be supported by consideration because Wirth expressly stated his intent to be bound. Moreover, even assuming consideration was necessary, the majority held that:
Drexel provided sufficient consideration by expressly accepting the terms of the Pledge Agreement and by promising to establish a scholarship in the decedent’s name. The fact that the decedent died before the initial gift was transferred into a special account set up by Drexel, and therefore the scholarship fund was not yet implemented, did not negate the sufficiency of the promise as consideration to set up the fund. (citations omitted).
The two-justice dissent would have affirmed.
The dissent stated that, despite the statute of frauds, under Pennsylvania law, a charitable promise to pay money in the future is not enforceable unless it is supported by consideration. The dissent stated that, in charitable cases, "consideration is defined either as some type of detrimental reliance upon the promise by the promisee, or other donors were induced to donate based on th[e] promise." The dissent would have held that the pledge was unenforceable for want of consideration because Wirth died before the initial $50,000 gift was transferred to Drexel, and before Drexel acted in reliance on the pledge.
The double dissent gave Wirth’s estate an appeal as of right to New York’s highest court, which will hear oral argument in this case next month.
[Meredith R. Miller]
The Walking Purchase and bad faith
Today marks the anniversary of one of history’s more unusual cases of contract performance. On this date in 1737, Edward Marshall, the fastest man in the Pennsylvania colony, completed a 65-mile run/walk from the junction of the Delaware and Lehigh Rivers to near what is now Jim Thorpe, Pennsylvania, in what came to be known as The Walking Purchase. The walk netted the Penn family, the colony’s owners, 1.2 million acres of new territory, a piece of land as big as Rhode Island.
Marshall’s marathon march came about because of a treaty between the Penns and the Lenni Lenape tribe. Under the agreement -- the legitimacy of which has been questioned -- the tribe ceded the land “as far west” from the river junction “as a man could walk in a day and a half.” The tribe had estimated that this would be about 40 miles. The Penns, however, found the three fastest runners in the colony, and had them set out, going nearly around the clock. It was Marshall who made it the furthest.
The tribe was not happy with the deal, feeling that the British had behaved with bad faith, and spent 19 years trying to get the treaty annulled, but to no avail.