March 2, 2005
Today in history—March 2
1705: William Murray, 1st earl of Mansfield and future Chief Justice of England, is born at Scone, Scotland.
1793: Lawyer Samuel Houston is born in Rockbridge County, Virginia. He will be the only person to serve as governor of two different U.S. states, not to mention president of a foreign country.
1807: Congress passes a bill to prohibit the importation of slaves into the United States.
1836: At a wooden cabin in Washington-on-the-Brazos, delegates enact the Texas Declaration of Independence.
1904: Theodore "Dr. Seuss" Geisel is born at Springfield, Massachusetts. He will first gain fame as an ad writer for Flit insecticide—his "Quick, Henry, the Flit!"will be the "Where’s the beef?" of the 1920s.
1917: The Jones-Shafroth Act grants U.S. citizenship to residents of Puerto Rico.
1917: Desiderio Alberto Arnaz y de Acha III is born in Santiago, Cuba. With his wife Lucille Ball, he will not only found Desilu Studios, but will invent the TV rerun.
1926: Anarcho-capitalist thinker Murray Newton Rothbard is born in the Bronx, New York.
1949: Singer Edward Joseph Mahoney is born in Brooklyn, New York. He won’t become successful, though, until he changes his last name to "Money."
1965: A new page in promissory estoppel opens as the Wisconsin Supreme Court decides Hoffman v. Red Owl Stores.
1987: America's Number 4 carmaker ceases to exist when Chrysler acquires American Motors, which never managed to get a government bail-out.
2004: Angry about what they consider unfair tax burdens on businesses, voters in Killington, Vermont, vote to secede from the state and join New Hampshire.
March 1, 2005
Win some, lose some
Plaintiffs who went to trial in metropolitan Kansas City in 2004 won 53 percent of the time, but collected substantial amounts when they did, according to a recent survey. There were 250 jury trials during that period, and the average plaintiff's verdict was about $1.3 million. That figure excludes one massive $453 million verdict involving the explosion of a Kansas City Power & Light plant.
Breach of contract and commercial actions were the second-biggest category of trials (there were 65 of them), trailing only car accidents in the total number of claims.
News in brief
Hollywood's two major actors' unions have ratified a new contract that gives them a 9 percent raise over 3 years, but no additional cut of DVD sales.
Also getting raises of 3 percent a year are track workers for Canadian National Railway; they've ratified a new four-year pact.
Baxter HealthCare Corp. and the American Red Cross have ended their long-term contractual relationship, under which Baxter provided plasma products.
An angry Internet entrepreneur is suing the Federal Trade Commission . . . for false advertising.
A former employee of celebrity publicist Lizzie Grubman is seeking $6 million in a breach of contract suit; she claims she was promised a part interest in the PR firm and a job on a "reality TV show."
Rocker Ted Nugent's suit against the city of Muskegon has survived yet another attack, as a Michigan judge refuses to throw it out for violating discovery rules.
A Pennsylvania businessman who failed to repay an investor in a failed restaurant has escaped a theft charge, the court holding that a breach of contract is not a crime.
Georgia Regents honor Coenen
The University of Georgia Board of Regents has honored longtime Contracts and Con Law professor Dan Coenen with its prestigious "University Professor" title. The Regents can create only one University Professor each year.
Coenen is the J. Alton Hosch Professor at Georgia, where he has taught since 1987. He previously won the University's highest teaching award, the Josiah Meigs Award, and has been honored multiple times by the law school's students. The University provost, in making the announcement, said:
Dan Coenen is the consummate faculty member who richly deserves this recognition. He serves with distinction in all functions of the University of Georgia. An outstanding teacher, nationally-recognized scholar, superb leader and contributor to a myriad of committees, Dan contributes to the university with distinction and integrity.
Today in history—March 1
1628: Without Parliament’s consent, King Charles I decides to impose a "ship money" tax on all British towns and counties, seeking £173,000. It is the first step in the long process that will lead to the English Civil War.
1692: Under the direction of Lieutenant Governor William Stoughton, a former Chief Justice of Massachusetts, the Salem Witch Trials begin with the charging of four women.
1781: The Continental Congress adopts the United States Articles of Confederation.
1805: The Senate acquits U.S. Supreme Court Justice Samuel Chase on impeachment charges.
1836: Delegates from 57 Texas communities meet at Washington-on-the-Brazos to discuss possible independence from Mexico.
1867: Nebraska enters the Union as the 37th U.S. state.
1873: E. Remington & Sons, an established gunmaker, begins manufacture of the first commercial typewriter.
1936: Six Companies, Inc.—a joint venture of Morrison-Knudsen, Utah Construction, Pacific Bridge, Bechtel, Kaiser, and MacDonald-Kahn—finishes work on the Hoover Dam, on budget and two years early.
1927: Robert Heron Bork (U. Chicago Law 1953) is born at Pittsburgh, Pennsylvania, the son of a steel company employee and a schoolteacher.
1944: Senator John Berlinger Breaux (Alabama Law 1967) is born in Crowley, Louisiana.
1947: The International Monetary Fund, which always prescribes the same remedy no matter what the disease, opens for business.
NOTE: If you see people walking around wearing leeks today, it's St. David’s Day in Wales.
February 28, 2005
Brooklyn honors Cohen
Brooklyn Law School's BLS LawNotes magazine carries a profile of Neil Cohen, who has been named the school's first Jeffrey D. Forchelli Professor of Law. Cohen, who has taught at the school since 1985, is a noted expert on contracts, commercial law, and, more importantly, baseball.
The article does not appear to be online, but here's a release from the school.
News in brief
African American leaders are discussing whether to put forward a "contract with black America" as a test for political leaders.
It's common enough for people to ignore the fine print in the contracts they sign, and in New Hampshire it seems that public officials do much the same thing.
A citizens' group in Durham (N.C.) is pressuring the city's largest employer, Duke University, to see that its contract workers get enough to "afford food, clothing and electricity."
A new survey of employers suggests that with the improving economy they are willing to be a little more generous in contract negotiations, except in explosive, high-cost areas like health benefits.
Iron ore prices have risen more than 70 percent this year, putting tremendous pressure on steel producers in an uncertain economy.
The U.K.'s Ministry of Defence is about to award a record-breaking £4 billion IT contract to a consortium led by America's EDS and Japan's Fujitsu.
School, physician in non-compete dispute
Judges are not usually sympathetic to employee non-competes involving physicians, and it looks like judges in Iowa are going to get a crack at one that looks awfully broad. The University of Iowa and a plastic suregon are locked in a dispute that arose when Dr. Al Aly left the UI hospitals, where he had been since 1997, to help start Iowa City Plastic Surgery in Coralville.
Under the employment contract, Dr. Al Aly agreed not to "practice medicine" for two years within a 50-mile radius of "any" UI health facility.
Weekly Top 10
The Top 10 Contracts-Related downloads from the SSRN network, for the 60 days ending February 27:
1. Emerging Policy and Practice Issues, by Steven L. Schooner & Christopher R. Yukins
2. Rawls and Contract Law, by Kevin A. Kordana & David H. Tabachnick
3. Unity and Pluralism in Contract Law, by Nathan Oman
6. Allegheny College Revisited: Cardozo, Consideration, and Formalism in Context, by Curtis Bridgeman
7. Law and the Emotions: The Problems of Affective Forecasting, by Jeremy A. Blumenthal
8. The Limits of Lawyering: Legal Opinions in Structured Finance, by Steven L. Schwarcz
10. Fairness and the Optimal Allocation of Ownership Rights, by Ernst Fehr, Susanne Kremhelmer & Klaus M. Schmidt
Well, they're not exactly "late fees"
Blockbuster Video's ballyhooed "no late fees" promotion has, it seems, a little hitch in it. And the hitch has got it into hot water with the New Jersey Attorney General's Office. Turns out that Blockbuster's contract provides that after eight days, late rentals are merely converted into sales. The AG's office say Blockbuster says that this wasn't disclosed to consumers. Blockbuster apparently disagrees.
Want to visit St. Pete, anyone?
From the good folks at Stetson:
Stetson University College of Law is in need of visitors for the Summer 2005 session (end of May through mid-July), and the 2005-06 academic year. For the Summer session, we need some combination of the following courses: Contracts, Criminal Law, Constitutional Law, Property, or Professional Responsibility. For the Fall 2005 and Spring 2006 semesters, we are looking for a Contracts (with a possibility of Commercial Law) visitor. We may also need a Property visitor for Fall 2005.
For info, contact Associate Dean Theresa Pulley Radwan.
In defense of Allegheny College
All of Judge Cardozo's contracts opinions are interesting, but few have aroused as much interest over the years as Allegheny College v. National Chautauqua County Bank, the decision that held that consideration is unnecessary to support charitable pledges. Or maybe in didn't hold that, exactly. Actually, does anyone know exactly what it held? Anyone?
As Curtis Bridgeman (Florida State) argues in an interesting new paper, Allegheny College Revisited: Cardozo, Consideration, and Formalism in Context, few of old Ben's opinions have been so widely criticized, even by people who applaud the outcome. Bridgeman sets out to rectify this, mounting a sustained defense of the opinion and replying to much of the criticism. Click on the link for the abstract.
Allegheny College is a bit of an oddity. It deals with a narrow issue (the enforceability of promises to make donations to charities), and Cardozo's majority opinion is almost universally derided as at best confusing and at worst outright devious. Yet it is still included in most contracts casebooks and taught by most contracts professors, usually as an introduction to the doctrine of promissory estoppel. In this paper, I defend the opinion - something almost no one has done without severe qualification - and argue that most of the criticisms are the result of a misguided emphasis on promissory estoppel.
Although most scholars now agree that the case is decided on consideration grounds, the invocation of promissory estoppel is usually explained away as some sort of rhetorical flourish or deceit, probably designed ultimately to undermine the doctrine of consideration. I take on some of this scholarship, and then argue by contrast that the reference to promissory estoppel is not meant even to suggest that promissory estoppel controls in this case, but rather to show that whether bargaining has taken place (and therefore whether a promise is supported by consideration) depends very much on context. The key move in Cardozo's opinion is not only finding the return implied promise by the college, but also claiming that Ms. Johnston made her promise in order to induce Allegheny College to obligate itself, a point that has gone almost unnoticed in the scholarship.
Perhaps more importantly, I argue that there is a larger lesson for us here about contracts jurisprudence. Finding bargaining in such an instance would likely be an unwarranted stretch in a normal business setting, but it makes perfect sense in the context of charitable subscriptions. I argue that this sensitivity to context is of a piece with two of Cardozo's other famous opinions, Wood v. Lucy and DeCicco v. Schweizer. There is room between the caricature of formalism as completely blind to particular facts and the caricature of realism as completely unbound by legal rules. Cardozo displays a jurisprudence that shows respect for the formalities of contract law, but insists on applying those rules in a way that understands transactions the way the parties themselves did.
Today in history--February 28
1828: The Baltimore & Ohio Railroad is incorporated. It will be the first railroad to offer both passenger and freight carriage.
1849: Regular steamship service between America's two coast begins, as the S.S. California reaches San Francisco from New York after 4 months and 21 days.
1850: The University of Deseret, the forerunner of the University of Utah opens in Salt Lake City.
1854: A group of Whigs and antislavery Democrats meets at Ripon, Wisconsin, and creates the "Republican" party.
1875: Sir Goldsworthy Gurney, who built the first successful steam-powered passenger road car, dies at age 82. He had opened a successful London-to-Bath car service, but fear for the loss of jobs in the horse carriage industry led to it being taxed out of existence.
1885: The American Telephone & Telegraph Co. is incorporated in New York as a subsidiary of American Bell Telephone. Its mission: Develop a national long-distance system.
1955: Webb Pierce's version of Jimmy Rodgers's In the Jailhouse Now tops the U.S. country music charts.
1983: The final episode of M*A*S*H becomes the highest-rated television series episode of all time.
February 27, 2005
Hofstra looking for visitors
Hofstra Law School is looking for visitors for the 2005-06 year. They need a wide range of subjects, including Contracts, Commercial Law, Bankruptcy, Civil Procedure, Con Law, Wills Trusts & Estates, Federal Income Tax, and Criminal Law. Contact Vice Dean Marshall Tracht if interested.
Today in history--February 27
1812: George Gordon, Lord Byron, a classmate of Baron Alderson at Cambridge, gives his first speech in the House of Lords, defending Luddite violence against industrial machinery.
1844: Lawyer and financier Nicholas Biddle, who presided over the Second Bank of the United States before it was destroyed by President Jackson, dies at Philadelphia. He was valedictorian of his class at Princeton at age 15.
1886: Hugo Lafayette Black (Alabama Law 1906) is born at Harlan, Alabama.
1891: David Sarnoff is born at Uzliany in what is now Belarus. He will join the Marconi Wireless Co. as a telegrapher at age 15, and at 28 will become the General Manager of the new Radio Corporation of America, leading RCA until his death in 1970.
1900: Meeting at Memorial Hall in London, Britain's Trade Union Congress creates the "Labour Representation Committee," the forerunner of the Labour Party.
1922: In Leser v. Garnett, the U.S. Supreme Court finds the 19th amendment to the U.S. Constitution to be, well, constitutional.
1936: The world's most famous dog trainer, Ivan Petrovich Pavlov, dies at age 86.
1951: The 22nd amendment to the U.S. Constitution, which ensures that presidents will be lame ducks during their second terms, is ratified.
1974: Time, Inc., launches People magazine.
2004: The founder of the Monthly Review, Marxist economist Paul Marlor Sweezy, dies at 93, still waiting for the Revolution.