October 25, 2005
Today in History: October 25
1154: Nineteen bloody years of civil war and constant upheaval finally come to an end with the death of King Stephen and the ascension of his longtime rival and adopted heir, Henry II.
1495: King João II of Portugal dies at age 40. He refused to sponsor Columbus’s voyage to the west, not because he thought the world was flat, but because Portuguese mariners knew that that the globe was much bigger than Columbus estimated.
1683: Lord Chief Justice Sir William Scroggs (“perhaps the worst of the judges who disgraced the English bench at a period when it had sunk to the lowest degradation”) dies at London.
1828: The St. Katharine Docks open in London. Their inadequate size means that they’ll always be something of a failure as commercial docks, but in the 1970s they’ll become a very nice marina for pleasure boats.
1861: Twenty-four men gather at the local Masonic Hall to create the Toronto Stock Exchange. Today it’s the fourth biggest in North America.
1938: The Archbishop of Dubuque denounces “swing” music as degenerate and says that it will create a “primrose path to hell.” No one believes him, but World War II breaks out just months later.
1993: The little guy from Shawinigan, Jean Chrétien (Laval Law 1958), becomes Prime Minister of Canada.
October 24, 2005
Weekly Top Ten
Few changes in this week's Top 10, although one of the papers from the recent Michigan Boilerplate conference debuts at number 10. Following are the top ten most-downloaded papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending October 23, 2005. (Last week's ranking in parentheses.)
1 (1) Risk Management in Long-Term Contracts, Victor P. Goldberg (Columbia).
2 (3) Katrina's Continuing Impact on Procurement -- Emergency Procurement Powers in H.R. 3766, Christopher R. Yukins & Joshua I. Schwartz (Geo. Washington).
3 (2) Bargaining Power in Contract Theory, Daniel D. Barnhizer (Michigan State).
4 (4) Are Heuristics a Problem or a Solution?, Douglas A. Kysar (Cornell).
5 (8) Resolving the Paradox of the Consideration Doctrine: The Implications of Inefficient Signaling and of Anti-Commodification Norms, David Scott Gamage (Texas) & Allon Kedem (Law Clerk)
6 (7) Competition and the Quality of Standard Form Contracts: An Empirical Analysis of Software License Agreements, Florencia Marotta-Wurgler (NYU).
7 (6) Are 'Pay Now, Terms Later' Contracts Worse for Buyers? Evidence from Software License Agreements, Florencia Marotta-Wurgler (NYU).
8 (9) Credit Card Accountability. Samuel Issacharoff & Erin F. Delaney (NYU).
9 (10) The Myth of the Rational Borrower: Rationality, Behaviorism, and the Misguided 'Reform' of Bankruptcy Law, Susan Block-Lieb (Fordham) & Edward J. Janger(Brooklyn).
10 (-) The Hidden Roles of Boilerplate in Standard Form Contracts, David Gilo & Ariel Porat (Tel Aviv).
Court Denies Recovery for Mental Anguish on Breach of Contract Claim
A hotel manager refused to rent a room to a blind man (plaintiff) because he was accompanied by a guide dog. Plaintiff sued the hotel and its manager, asserting federal and state discrimination claims and various tort claims. Plaintiff also sued on a breach of contract theory. The hotel moved for summary judgment on the breach of contract claim, arguing that mental and emotional damages alone are insufficient to maintain a breach of contract action. The District Court for the Middle District of Alabama granted the motion for summary judgment and dismissed the breach of contract claim.
The court noted:
The general rule is that plaintiffs may not recover for mental anguish on breach of contract claims. However, an exception to this rule exists "where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering." (citations omitted)
The court held that contracts for the rental of hotel rooms did not fall within this exception, and observed that "the majority of cases falling within this exception regard breaches of contract that render homes uninhabitable." However, the court distinguished a hotel room from a home:
While hotel rooms may take on the temporary role of one's "castle," as a home would, hotel rooms are drastically dissimilar from homes in terms of the amount of money invested, the amount of care taken in upkeep, and the amount of thought and emotional concern invested.
Hardesty v. CPRM Corp. (M.D. Ala. Jun. 1, 2005)
[Meredith R. Miller]
Babe Ruth's Book Deal
An interesting bit of historical contracting is on sale at eBay: the original 1947 publishing contract for Babe Ruth's autobiography "as told to" Robert Considine. The contract itself isn't famous, but the typewritten changes and interlineations on the standard form allow you to see the various points of negotiations in a way that a modern signed contract can't.
You can read it online, but you'll probably have to pay a fair amount to own it.
Today in History: October 24
1648: The modern international system of nation-states is more or less officially born with the signing of the Peace of Westphalia.
1852: Daniel Webster, whose defense of Dartmouth College struck a major blow to public higher education in the Northeast, dies at his home at Marshfield, Massachusetts.
1855: Utica, New York lawyer and businessman James Schoolcraft Sherman is born at Utica. He'll become Vice President of the United States under William Howard Taft.
1861: The Western Union Co. completes the first transcontinental telegraph line, linking Sacramento, California, to the East.
1929: On "Black Thursday," the Dow Jones Industrial Average takes a sudden drop, spreading panic. The Chicago and Buffalo stock exchanges close their doors and eleven prominent financiers kill themselves, before an afternoon rally restores order to the market.
1945: Having temporarily reinstated the death penalty for the purpose, the Norwegian government sends Vidkun Quisling and two associates to a firing squad.
2003: Supersonic passenger fight comes to an end with the last regular British Airways Concorde flight. The plane, loaded with celebrities, crosses the Atlantic in 3.5 hours but must spend 45 minutes taxiing around Heathrow Airport.
October 23, 2005
Film Clips: Big Fish
[Circus master Amos Calloway is talking Karl the Giant into signing a deal.]
Calloway: Tell me, Karl, have you ever heard the term "involuntary servitude"?
Calloway: "Unconscionable contract"?
Karl: Uh, nope.
Big Fish (2003)
Today in History: October 23
1456: One of the relatively few lawyers to achieve sainthood, Giovanni da Capistrano (in Spanish, San Juan Capistrano) dies at Villach, Hungary, after helping lead the Crusade that saved Belgrade from Ottoman conquest.
1739: After a British captain displays his ear, allegedly severed by Spanish authorities, Parliament declares war on Spain. It will come to be known as the War of Jenkins' Ear.
1813: As a result of the war with Britain, the Pacific Fur Company's trading post at Astoria, Oregon, is taken over by the British North West Company, which will go on to dominate fur trading in the region for a quarter of a century.
1835: Small-town Illinois lawyer Adlai Ewing Stevenson I is born at Christian County, Kentucky. He'll go 3-5 in election campaigns, but one of the wins will be as Vice President in Grover Cleveland's first administration.
1861: Again ignoring a prior order from Chief Justice Taney, President Lincoln suspends the writ of habeas corpus in Washington, D.C.
1946: The United Nations General Assembly convenes for the first time, at Flushing Meadow in New York City.
1987: Ushering in the modern era of partisan political battles over judicial nominees, the U.S. Senate rejects Judge Robert Bork for a seat on the U.S. Supreme Court.