September 20, 2005
Weekly Top 10
Here, belatedly, is the Weekly Top Ten, delayed because of search problems at SSRN. For the first time in many months, the most-downloaded article isn't a government contracts piece from George Washington. Here are the top ten most-downloaded papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending September 18, 2005. (Last week's rank in parentheses; "•" indicates fastest-rising papers; "t" indicates tie.)
1 (2) On Collaboration, Organizations, and Conciliation in the General Theory of Contract, Ethan J. Leib (Cal-Hastings).
2 (5) The Posthumous Life of the Postal Rule Requiem and Revival of Adams v. Lindsell, Peter Goodrich (Cardozo).
3 (3) The Limits of Lawyering: Legal Opinions in Structured Finance, Steven L. Schwarcz (Duke).
4 (6) Friends in High Places: Amity and Agreement in Alsatia, Peter Goodrich (Cardozo).
• 5-t (-) Bargaining Power in Contract Theory, Daniel D. Barnhizer (Michigan State).
5-t (7) Is Forum-Shopping Corrupting America's Bankruptcy Courts?, Todd J. Zywicki (Geo. Mason).
7 (8) On-line Boilerplate: Would Mandatory Website Disclosure of E-standard Terms Backfire?, Robert A. Hillman (Cornell).
8 (9) New Basics: 12 Principles for Fair Commerce in Mass-Market Software and Other Digital Products, Jean Braucher (Arizona).
9 (10) Employment as a Relational Contract, Robert C. Bird (UConn-Marketing).
10 (-) The Culture of American Arbitration and the Lessons of ADR, Alan Scott Rau (Texas).
Today in History: September 20
1863: Jacob Ludwig Karl Grimm, who first came into contact with fairy tales as a law student studying under Friedrich Karl von Savigny, dies at age 78.
1878: Writer Upton Sinclair is born to a wealthy and distinguished Southern family at Baltimore, Maryland. In 1906 he’ll score one of the biggest self-publishing successes of all time with his The Jungle.
1881: New York City lawyer Chester Alan Arthur, who originally made a name for himself representing blacks who complained about segregated city transportation, is sworn in as President of the United States.
1945: Arizona-raised Republican Mayor Fiorello LaGuardia (NYU Law 1910) dies at New York City.
1969: One of the few pop songs about commodities hits the top of the charts, with the Archies’ Sugar, Sugar.
1979: Former Ford president Lee Iacocca is named President of the Chrysler Corporation, which is teetering on the brink of bankruptcy.
1995: AT&T Corp., which the U.S. government had spent decades trying to break up, announces that it is splitting into three companies: AT&T, Lucent, and NCR.
September 19, 2005
Weekly Top 10
Because of problems on the SSRN server, today's installment of the Weekly Top 10 has been delayed. We'll post the countdown when it becomes available.
Extreme Makeover and the Hairy Hand
In a classic update of the famed Hairy Hand case, a woman denied the plastic surgery promised her by the producers of TV's Extreme Makeover has sued based on breach of contract and promissory estoppel. David Hoffman of PrawfsBlawg has the story.
Marrow, Paul Bennett, "Squeezing Subjectivity from the Doctrine of Unconscionability," Cleveland State Law Review, Vol. 53, p. 187, 2005 http://ssrn.com/abstract=801426
This article proposes that unconscionability determinations be based upon the impact of a suspect term on third parties.
Those indirectly impacted should be the chief concern.
Accordingly, a term is unconscionable only if:
1. With respect to any contract
a. The term undermines the integrity of the contracting system itself, or
b. The term undermines the integrity of any statutory scheme granting to the court the power to review agreements allowed by the statutory scheme.
2. With respect to matrimonial agreements
a. The operation of the term appears likely to result in any party to the agreement seeking public assistance, or
b. The term interferes with the ability of a party to seek reform to avoid having to seek public assistance, or
c. Adversely impacts the interests of children of the marriage.
In addition, this article reconsiders what "substantive" and "procedural" describe.
ABA on terminations for convenience
One of the most important rules of government contract law is also one of the oddest from the point of view of the nonspecialist: the "termination for convenience." Under the rule, the government has the unilateral power to terminate a contract at any time for any reason, subject only to payment of certain expenses and profits. The ABA is offering a CLE on issues surround the TFC tomorrow, September 20, 2005. Registration is here.
More on the Meaning of "Flood"
Adam F. Scales (Washington & Lee) has written an informative article on law.com concerning the homeowners insurance litigation after Katrina. He notes that "a homeowners insurance agreement is one of the most complicated contracts the average person will ever sign." He explains:
This is partly due to the historical development of homeowners insurance -- which was stitched together in something like its present form just a few decades ago, from various strands of the law of insurance contracts, which developed over centuries.
Unsurprisingly, given the complexity of these contracts, individual policyholders do not bargain over the terms of their contracts; with rare exceptions, they have neither read their contracts, nor would understand them even if they did. Almost every word in a modern insurance policy has acquired meaning through a cycle of drafting, legal challenge, and redrafting. Indeed, these repeated cycles have often bestowed upon insurance terms not simply a single meaning, but multiple meanings.
The article posits that causation issues will be crucial in the litigation, and that courts will not adopt insurers' arguments for literal readings of the policies.
[Meredith R. Miller]
Today in History: September 19
1737: The lawyer who will become the richest man in America and a leader in the War of Independence, Charles Carroll of Carrollton, is born at Annapolis, Maryland.
1824: Levi Wyman, the wandering son in Mills v. Wyman, now fully recovered from his illness, marries wife Lucinda.
1881: James Abram Garfield, the first college president (Hiram College) to become President of the United States, dies of blood poisoning and pneumonia at what is now Long Branch, New Jersey, 80 days after he was shot.
1900: Robert Leroy "Butch Cassidy" Parker, Harry “Sundance Kid” Longabaugh, and other members of the “Wild Bunch” hit the First National Bank of Winnemucca, Nevada, for $32,640, or about $3.5 million based on 2003 wage levels.
1945: William (“Lord Haw Haw”) Joyce, an American citizen who had become a naturalized German citizen in 1940, is sentenced to death by British authorities for “high treason” against the United Kingdom.
1982: Scott Fahlman, a computer scientist at Carnegie Mellon University, uses the first “emoticon” on the Internet. :-)
1985: Under pressure from the Parents Music Resource Center, the U.S. Senate Commerce Committee begins investigation into smutty lyrics in pop music. It’s much too profitable for anything to be done, though.
September 18, 2005
Exam Question of the Day
From: Matt. 18:23-34:
Therefore is the kingdom of heaven likened unto a certain king, which would take account of his servants. And when he had begun to reckon, one was brought unto him, which owed him ten thousand talents. But forasmuch as he had not to pay, his lord commanded him to be sold, and his wife, and children, and all that he had, and payment to be made.
The servant therefore fell down, and worshipped him, saying, “Lord, have patience with me, and I will pay thee all.” Then the lord of that servant was moved with compassion, and loosed him, and forgave him the debt.
But the same servant went out, and found one of his fellowservants, which owed him an hundred pence: and he laid hands on him, and took him by the throat, saying, “Pay me that thou owest.”
And his fellowservant fell down at his feet, and besought him, saying, “Have patience with me, and I will pay thee all.” And he would not: but went and cast him into prison, till he should pay the debt.
So when his fellowservants saw what was done, they were very sorry, and came and told unto their lord all that was done. Then his lord, after that he had called him, said unto him, “O thou wicked servant, I forgave thee all that debt, because thou desiredst me: Shouldest not thou also have had compassion on thy fellowservant, even as I had pity on thee?”
And his lord was wroth, and delivered him to the tormentors, till he should pay all that was due unto him.
You are contacted by the Wicked Servant, who claims that the release of his previous debt was valid. The King has claimed that W.S. gave no consideration for the release, and therefore the debt is still owed. Discuss.
Today in History: September 18
1709: Writer and lexicographer Samuel Johnson is born, the son of a poor bookseller, at Lichfield, Staffordshire.
1779: Joseph Story, one of America’s greatest jurists and legal writers, is born at Marblehead, Massachusetts. At 32, he’ll be the youngest person ever appointed to the U.S. Supreme Court.
1851: Henry Jarvis Raymond and George Jones found a newspaper which they call the New York Times.
1857: U.S. Supreme Court Justice and Cleveland railroad lawyer Joseph Hessin Clarke is born at New Lisbon, Ohio.
1873: The preeminent Philadelphia banking firm of Jay Cooke & Co. collapses, triggering what will become the Panic of 1873.
1927: The upstart United Independent Broadcasters, a network of 47 stations, hits the airwaves to compete with the established National Broadcasting Co. The name will later be changed to “Columbia Broadcasting System” or “CBS.”