Saturday, October 1, 2005
This week we inaugurate a new feature on Contracts Prof Blog: a weekly profile of a contracts professor. Each Saturday, ContractsProf Blog shines the spotlight on one of the hundreds of contracts teachers in America's law schools. We hope to help you get to know your colleagues better by bringing you the many individual stories of scholarly achievements, teaching innovations, public service, and career moves within the contracts teaching community. Please email me here suggestions for future Contracts Prof Profiles.
Over the next weeks, we'd like to focus a series of profiles on folks beginning their careers this year, so if you are, or know someone who is, a new contracts teacher, email me (Carol Chomsky) here to be included in this series.
We'll begin by introducing some of the AALS Contracts Section officers and ContractsProf bloggers. This week, we focus on Meredith Miller, contributing editor to the Blog.
Union College, B.A.
Brooklyn Law School, J.D.
Temple University Law School, LLM in Legal Education (expected May ‘06)
As an undergraduate at Union College (in fabulous Schenectady, New York), I studied Art and English, with a focus in printmaking and poetry. I love to go fishing, skiing, biking and for ambling walks in urban areas with my dog Milton (a mutt of highly speculative origin). I collect Polaroid cameras, pictures of the Brooklyn Bridge and LP records, and I am fascinated with Vespa scooters (though I do not presently own one). Once in a while, I try my hand at cooking and home repairs, with very mixed results. Living in Philadelphia for a little over a year now, I have a newfound interest in football, though, admittedly, many of the rules of the game elude me. The one thing I can say I don’t dabble in is music – the only thing I can play is the radio.
With such a diverse range of interests, it seems natural that I am drawn to the study of contract law – because contract law is everywhere. It is present in so many of our human interactions, whether we are acting as businesspeople, employees, consumers, ebay resellers or family members in a bet. I enjoy teaching contract law because the casebooks have the most captivating stories – hairy hands, botched nose jobs, broiler chickens, carbolic smoke balls and family promises gone sour. Really, contract law has it all.
Presently, I am an Abraham L. Freedman Fellow and Lecturer at Temple University School of Law. In the first year of my fellowship, I had the pleasure of collaborating with Eleanor Myers in her Contracts class. During the class on economic duress, the students had many good, unanswerable questions about Austin v. Loral, and it drove me to spend my summer thinking about the case and the doctrine. I was also interested in the history of the case because it is a New York Court of Appeals decision, and I served on the Court’s Central Staff from 2000-2002.
The end result of my studies is an article I recently completed, titled “Austin v. Loral: A Study in Economic Duress, Contract Modification and Framing.” The article essentially does three things: (1) it reconstructs and retells the story of Austin v. Loral by referencing the trial testimony and placing the case in the historical context of the conflict in Vietnam; (2) it connects the parties’ arguments to theories of cognitive linguists concerning “framing” and (3) it uses the reconstructed story, and the themes that emerge, to explore revisions to the doctrine of economic duress in the context of contract modifications by business entities. It will appear in the Hastings Business Law Journal in spring 2006. As you might have guessed, the article is currently being optioned for a feature length film.
As a scholar, I am particularly interested in the intersection of employment, corporate and contract law. I am also intrigued by all the ways the Internet has changed how we conduct business.
This semester, I am collaborating with Amy Boss in her E-Commerce seminar and surveying “the market” for a tenure-track teaching position. Drawing on my experience as a litigation associate at Proskauer Rose LLP, next semester I will teach Civil Procedure II. While procedure is also interesting to me, the stories in the casebooks are just not as captivating.
In today’s N.Y. Times, Jon Schwartz reports that “[a]n obscure contract dispute from the 1990's that describes questionable building practices and unstable soil at a crucial New Orleans levee may help explain why the walls that were supposed to protect the city from hurricanes collapsed under the assault of Hurricane Katrina.” To read the article go here (free subscription required).
The article reports:
The Army Corps of Engineers hired Pittman Construction for $2.6 million in 1994 to build a reinforced concrete cap with flood-wall segments called monoliths atop the existing earthen levee. But the government found that the company's work was not acceptable in several areas and that the monoliths had shifted.
The company responded that the problem was not the quality of its work but the "lack of structural integrity" of the steel sheets that are rammed through the center line of the levee, and "the relative weakness of the soils," which made it extremely difficult to build a stable structure. The company asked for $810,000 to correct the problem.
That request was denied in 1998 by Reba Page, an administrative law judge for the corps, who determined that Pittman Construction had brought on many of its own problems by not coming up with a successful way to brace the wooden forms that concrete is poured into. A contractor working on a nearby canal project, the judge noted, was able to deal with similar soil issues "without the need for extraordinary construction means, delay or expense."
Of course, without more information, we cannot assume a connection between the construction problems arising from the
1998 contract dispute and the recent levee failures. Hassan Mashriqui, a professor from the
Robort Bea, a professor of engineering at the University of California, Berkeley, saw both sides of the story. Professor Bea said "[w]here there's smoke, there's fire - usually," but he added: "Documents don't always tell the whole truth. You have to keep on probing."
[Meredith R. Miller]
The University of Tennessee is looking for a one-semester business law visitor, and is particularly interested in folks interested in coming into academia out of private practice. Here's the notice:
THE UNIVERSITY OF TENNESSEE COLLEGE OF LAW invites applications for a one-semester visiting faculty position to commence in the fall semester of 2006 to teach business law related courses through the Clayton Center for Entrepreneurial Law. Successful applicants must have a strong academic background and substantial, relevant practice experience. Preference may be given to those applicants that are seeking to enter the academy from private practice. Candidates must have a strong commitment to excellence in teaching, scholarship and service.
The University of Tennessee welcomes and honors people of all races, creeds, cultures, and sexual orientations, and values intellectual curiosity, pursuit of knowledge, and academic freedom and integrity. The University of Tennessee College of Law provides equal opportunity in legal education for all persons, including faculty and employees, with respect to hiring, continuation, promotion and tenure, applicants for admission, enrolled students, and graduates, without discrimination or segregation on the basis of race, color, religion, national origin, sex, age, handicap or disability, sexual orientation, or veteran status. In furtherance of the University's and the College's fundamental commitment to a diverse faculty, minority group members and women are strongly encouraged to apply.
Applications, including a letter of intent, resume, and the names and addresses of three references, should be sent to:
George W. Kuney
Associate Professor of Law and
Director of the Clayton Center for Entrepreneurial Law
The University of Tennessee
College of Law
1505 W. Cumberland Avenue
Knoxville, TN 37996-1810
What's the best way to get through an exam? For contracts prof Ben Davis (Toledo) and his son Daniel, it's IRAC. Here's their paean to it, based on the Natasha Bedingfield hit, Unwritten.
lyrics by Benjamin G. Davis & Daniel D.R. Davis
Ha, ha, ha
These words are my own
Threw some boxes together
The combination 1-2-3
Its who I am, its what I do
No one's gonna let it down for you
Try to focus my attention
But I feel so A-D-D
I need some help, some inspiration
(But it's not coming easily)
Whoah oh . . . .
959: King Edgar I assumes the throne of England. He’ll promulgate some of England’s earliest product regulations, such as “Let the iron that is for the threefold ordeal weigh three pounds; and for the single, one pound.”
1811: The new Pittsburgh-built New Orleans, the first steamboat designed for use on the Mississippi River, is delivered at New Orleans.
1829: A new boys’ school, South Africa College is founded. It will later become the University of Cape Town, whose motto, “Spes bona,” means “Good hope.”
1854: The American Horology Company relocates its headquarters to a new factory on the banks of the Charles River at Waltham, Massachusetts. Under the “Waltham” name it will become the first watchmaker to use interchangeable parts.
1891: The Leland Stanford Junior University, named for the deceased son of a railroad baron and California governor, opens its doors in a converted horse farm.
1903: Charles “Deacon” Phillippe allows just six hits and Jimmy Sebring drives in four runs as the Pittsburgh Pirates beat the Boston Pilgrims Americans 7-3 in the first-ever World Series game.
1924: U.S. Chief Justice William Hubbs Rehnquist born at Milwaukee, Wisconsin.
1957: The motto “In God We Trust” appears on U.S. paper currency for the first time.
1971: Walt Disney World -- at 47 square miles more than twice the size of Manhattan -- opens in Orlando, Florida. Unlike Manhattan, all its streets are steam cleaned every night.
Friday, September 30, 2005
The University of Chicago has announced a new “Faculty Blog,” on which a rotating array of its “friends, alumni, and faculty” will share their thoughts on a range of issues. The new blog hits the electronic waves this Monday, October 3, as Saul Levmore, Randal Picker, Lior Strahilevitz, David Strauss, Cass Sunstein, and Douglas Lichtman address issues related to Hurricane Katrina.
In what is likely to become a major celebrity case, Satan is suing media mogul Oprah Winfrey for breach of contract, claiming that she’s failed to keep her end of the bargain under which she sold her soul in exchange for fame and fortune.
The complaint claims that Winfrey signed the agreement with Diabolical Interests Groups, Inc., some 20 years ago. Satan claims that Winfrey’s obligations were to “openly disseminat[e] evilness and wrong doing throughout the community,” which she has failed to do. A spokesman for the entertainer/entrepreneur denies the charges:
Oprah admits that she did sign a contract with Diabolical Interests in the eighties. However, she denies categorically that she has acted in any way that would breach this contract. She is prepared to fight this suit and feels that she would be vindicated by a court of law. She believes her show does support the interests of Satan and evil and has viewer statements that they would rather go to hell than watch another show of hers as evidence.
1399: Henry IV becomes the first English king since the Conquest 333 years earlier to make his coronation address in English.
1882: The Appleton Edison Electric Co. opens the first U.S. hydroelectric plant, on the Fox River at Appleton, Wisconsin.
1913: Inventor Rudolf Diesel, en route to a meeting with English manufacturers interested in licensing his engine, disappears mysteriously from the S.S. Dresden at Antwerp; his body will be found floating in the river. Authorities say “suicide,” his family says “murder.”
1930: The first episode of Death Valley Days airs on NBC Radio. It’s created and written by an advertising woman who’s never seen Death Valley, but thought up the idea as a great vehicle for her client’s product, 20 Mule Team Borax.
1935: A new musical, Porgy and Bess, flops badly on its opening at Boston’s Colonial Theater.
1938: The League of Nations unanimously outlaws the intentional bombing of civilians. The rule will be honored more in the breach than in the observance.
1947: The first baseball World Series is broadcast. Gillette and Ford Motor Co. pay $65,000 for the sponsorship rights.
1953: President Eisenhower appoints California Governor Earl Warren to be Chief Justice of the United States.
1970: Actress Shirley Maclaine makes her mark on casebook history when the California Supreme Court comes down with Parker v. Twentieth Century-Fox.
Thursday, September 29, 2005
Lil Jon has sued Hustler magazine owner Larry Flynt for $30 million, after the porn king used footage from one of the rapper’s concerts in a sex video without permission. (MTV.com)
Ford Motor Co. says it’s going to cut costs and improve supplier relations by slashing the number of its suppliers and giving them larger, long-term contracts which give them more input in the design process. (Associated Press)
The British father who spent nearly £200,000 in legal fees to get his son -- “the most ill-disciplined pupil ever to have darkened Marlborough College's celebrated classrooms” -- saw his money go for naught after an English judge ruled for the college on his breach of contract claim. (The Times)
Faculty at Florida Atlantic University are saying that a dispute over pay for summer teaching is delaying implementation of promised pay raises, which the administration wants to tie to a global contract settlement. (Miami Herald)
A spinoff company is suing Sandia National Laboratories for breach of contract and fraud, claiming that Sandia didn’t deliver on contractual promises to deliver technology. (SmallTimes)
The Czech Republic’s Supreme Administrative Court has ruled that customers cannot move their phone numbers to a new cellular phone provider until their previous cell phone contract ends. (Prague Daily Monitor)
Milwaukee Symphony Orchestra musicians have agreed to a new contract that cuts their minimum salaries from $56,000 to $53,000 a year. (Milwaukee Journal Sentinel)
Meanwhile, the Pittsburgh Symphony, which pays its musicians a base of $101,000, is seeking to cut wages to a base of $93,000 (KDKA-TV)
Faculty from the University of the Philippines Law Center testified yesterday before a Philippine Senate Committee investigating a controversial $500 million rail contract with a Chinese company. (ABS-CBN)
The Canadian Broadcasting Company, which has locked out its employees over a dispute about contract-worker hiring, says it’s willing to limit new contract hires to 90 a year, but the union says there are already far too many. (Globe and Mail)
Law firms are getting larger, but law firm names are getting shorter. For example, my friend Jonathan Golden recently joined WilmerHale, the firm created by the merger of Wilmer Cutler & Pickering and Hale and Dorr. One article documents how partners at some firms have been unhappy with their names being dropped, and how they hoard the old firm stationary that has their names on it until the paper runs out.
Perhaps law firms will begin selecting partners not based on length of service with the firm or influence, but on the basis of how those last names sound. Snyder, Chomsky, Barnes, Cherry, Miller, Rowley & Safranek? Ah, I suppose “ContractsProf Blog” does sound much more catchy after all. [Hat-tip: Alyssa DiRusso (Samford / Cumberland)]
Catholic University's Columbus School of Law is paying its respects to Villanova professor Steven Frankino -- an alumnus and former dean of CUA -- who died yesterday after a long bout with cancer. Frankino was dean there from 1979 to 1986. The school is taking contributions for its Steven P. Frankino Scholarship Fund for Latino Law Students. Contributions can be sent to:
The Catholic University of America Columbus School of Law
Office of Institutional Advancement
Attn: Margaret King
3600 John McCormack Road, NE -- Suite 339
Washington, DC 20064
A promising potential casebook classic has been thwarted by a settlement. Iowa jurors were deliberating what counts as a "hole-in-one" for purposes of a nonprofit organization's promise to pay $10,000 for a hole-in-one at a charity golf tournament, when the claimant and the defendants settled for an undisclosed amount. A good summary of the background is here.
High school student Adam Fisher was playing in a local Future Farmers of America charity golf tournament. Organizers promised $10,000 to anyone who made a hole-in-one at the tournament. They also offered to sell "unlimited mulligans" -- a "mulligan" is the chance to do a shot over again without a penalty -- to participants. After Fisher's first tee shot on a 196-yard par-3 fifth hole hole went bad, he used a mulligan, and his next tee shot went into the hole.
The FFA refused to pay the $10,000, chiefly because the insurance carrier whose policy was to pay the prize had specifically forbidden mulligans and thus would not have to pay the prize. An Iowa trial judge ruled that evidence of the insurance policy limitation could not be introduced at the trial, on the grounds that Fisher's claim was a contractual one against the FFA.
[Frank Snyder -- hat tip to Debbie Zalesne (CUNY)]
Is the claim that an arbitration agreement is unconscionable one to be decided by judges or by arbitrators? That’s the issue in a closely watched case in the Ninth Circuit, where an en banc panel of judges on Tuesday heard oral arguments on the matter.
The case, Nagrampa v. MailCoups, Inc., involved a franchisee-franchisor dispute. Plaintiff held a MailCoups franchise in California. The franchise agreement required that all disputes be arbitrated under American Arbitration Association rules in Boston, Massachusetts, and provided that the two sides would split arbitration costs fifty-fifty. Arbitration was to apply to:
Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, including, without limitation, any claim that this Agreement or any portion thereof is invalid, illegal or otherwise voidable or void . . . .
Nagrampa, who claimed that she didn’t know about the arbitration agreement when she signed the form franchise contract, originally participated in the arbitration, but then filed suit claiming that the clause was unconscionable. A three-judge panel of the Ninth Circuit held that the question of unconscionability was one for the arbitrators to decide, not the judge.
When a lessee uses a real estate broker to locate an apartment, and the lessee and the landlord reach a deal but later mutually rescind it, should the broker get to keep the fee? The answer depends on the language in the broker's contract with the lessee.
Marco Srour requested that Dwelling Quest Corp, a real estate brokerage firm, assist him in finding a
the windows were covered; scaffolding was in place; the ceiling in the master bedroom had caved in from a water leak; the whole roof was being ripped up to prevent leakage and the unit's wraparound terrace was completely inaccessible. Renovation work was expected to take six to eight months, which included constant drilling.
Srour demanded that the landlord cancel the lease and return his first month's rent and security deposit. The landlord complied. Srour then asked the broker to return the commission fee. The broker refused; Sour sued. The question becomes: when was the broker’s job fully performed? The parties’ contract defined the broker’s job as “assisting in the location and renting of a suitable apartment.”The trial court held that the broker had to return the commission because he had not presented a “suitable” apartment for rental. The Appellate Term affirmed. The Appellate Division reversed. The Appellate Division majority held that “the apartment in question constituted a ‘suitable apartment’ at the time it was located and rented, and the signing of the lease was specified as the critical moment at which the broker's commission was earned.” The court noted that the broker’s obligation to assist in finding a suitable apartment was separate and distinct from the landlord’s obligation to deliver a habitable apartment, and it was the landlord who breached his obligation. The court noted:
Of course, the "parties to a brokerage agreement are free to add whatever conditions they may wish to their agreement" (Feinberg Bros., supra at 830 [citation omitted]). For instance, in Graff v Billet (64 NY2d 899 , affg 101 AD2d 355 ), the parties specifically included in their agreement that the commission would be due and payable "as, if and when title passe[d], except for willful default on the part of the seller" (101 AD2d at 355). Therefore, in Graff the broker did not earn the commission merely by presenting a willing purchaser, or even upon the signing of a contract; it was earned only at the time of the contract's closing, when title passed (id.).
Here, however, unlike Graff, the parties did not insert in the agreement any "precondition" requiring that the tenant be in occupancy in the residence before the broker's obligation is discharged and the commission earned. There was no provision or condition that the broker's obligation to the client would continue until the client took occupancy. The only "condition" supplied by the written brokerage agreement was the provision specifying that once a suitable apartment had been located and rented, the commission would be payable upon the signing of a lease. Nothing was included in, or added to, this brokerage agreement, which could be interpreted as extending the broker's general obligation to the plaintiff past the date when the lease was signed.
The two-Justice dissent would have affirmed “because defendant did not meet its obligation of procuring a ‘suitable’ apartment for plaintiff ‘[t]he entire transaction can only be reasonably viewed as a nullity, as it was by the immediate parties to the lease.'"
New York’s highest court will hear oral argument in the case next month.
Srour v. Dwelling Quest Corp., 11 A.D.3d 36 (N.Y. App. Div. 1st Dep't 2004).
[Meredith R. Miller]
1725: Robert Clive is born near Market Drayton, Shropshire. At age 26, a civilian factor in the employ of the East India Company, he’ll take command of a mixed Anglo-Indian force of 500 men and begin the campaigns that will make India British.
1829: London’s newly reorganized police force - known as “Peelers” or “Bobbies” after the author of the Metropolitan Police Act, goes on duty from its new headquarters at Great Scotland Yard.
1907: The original Singing Cowboy, Orvon Gene Autry, is born near Tioga, Texas. He’ll make his real money not from his film, radio, recording, and television success, but from his real estate dealings.
1916: John D. Rockefeller’s personal wealth is said to cross the $1 billion mark, making him the first American billionaire. Using the relative share of GDP as a comparison, that would make him worth around $240 billion today.
1946: Wildroot Cream Oil (“Relieves dryness, removes loose dandruff!”) of Buffalo presents the first episode of The Adventures of Sam Spade.
1961: A New York Times review of a performance by Bob Dylan brings the unknown minor to the attention of John Hammond of Columbia Records.
1962: After six and a half years, My Fair Lady closes on Broadway, setting what is then a record for the longest-running musical.
1996: Nintendo sells 500,000 copies of its new Super Mario 64 game on its first day of issue.
Wednesday, September 28, 2005
Congratulations to Fordham Law School, which is marking its 100th anniversary tonight with a gala event at Gotham Hall in New York City. A plethora of judges, city officials, and notable alumni will gather for the event. The Fordham Law community has pledged, in honor of the anniversary, to 100,000 hours of public service work.
England’s prestigious Marlborough College is in court, defending itself in a breach of contract action brought by a parent over the expulsion of a pupil for “smoking, drinking, and bullying.” (The Times)
A new law in Idaho says that contractors who fail to register with the state, post a bond, and prove they have workers’ compensation insurance will not be able to sue for damages on their construction contracts. (Bonner County Daily Bee)
Lawmakers are looking into the FEMA contract with Carnival Cruise Lines under which Carnival will house some 7,100 refugees on three of its ships. (WTVY Television)
A Jackson County (Mo.) jury has awarded $800,000 in punitive damages to a couple whose insurance claim was denied by State Farm on grounds of fraud. (Kansas City Star)
Indonesia says ExxonMobil won’t get an extension of its contract to develop a China Sea natural gas block unless it gets moving and starts development. (Forbes)
The English Rugby Football Union and Premier Rugby look like they’re heading to court over a contract dispute between the central organization and three clubs. (Sportinglife.com)
Wisconsin election officials are feeling pressure to terminate Accenture’s contract to develop the state’s first statewide voter list, based on delays that could cost America’s Dairyland a substantial amount of federal funds. (Capital Times)
Supermodel Kate Moss, whose cocaine use cost her major fashion contracts, is now being offered a five-year, $5 million “spokesmodel” deal by an Internet gambling site, which points out that its target audience is males ages 21 to 45. (Hollywood.com)
Villanova University has announced that longtime Contracts professor and former dean Steven R. Frankino died this morning. Frankino led the Philadelphia school from 1986 to 1997, after serving as dean of the law schools at Creighton University and the Catholic University of America. A member of the American Law Institute, he was widely known for his activities with the ABA and AALS. Here's a portion of his biography on the Villanova web site:
Professor Frankino graduated from Catholic University of America, Columbus School of Law in 1962, where he was a member of the Catholic University Law Review and was elected to the Order of the Coif. He was Teaching Fellow at Northwestern University School of Law (1962-63), Assistant Professor at Catholic University of America, Columbus School of Law (1963-65), and a Professor at Villanova University School of Law (1965-71). He also was a Research Professor at the Institute of Comparative Law, University of Florence, Italy in 1970. He served as Dean of Creighton University School of Law from 1971-77, and was a partner at the law firm of Kutak, Rock & Huie from 1977-79. He was the Dean of the Columbus School of Law and the General Counsel of Catholic University of America from 1979-86. In 1986, he returned to Villanova as Dean, and served as Dean until 1997 when he resigned to assume a position on the faculty.
A Requiem Mass will be held at the St Thomas of Villanova Church on the university campus at 12 noon on Monday, October 3, with a reception to follow at the Villanova Conference Center.
North Carolina Central University's Law School is breaking ground today in a $9 million addition to its Albert E. Turner Law Building (left). It's just one of more than $60 million in capital projects that the Durham school is kicking off this week.