October 3, 2007
Weekly Law School Rankings
The race is getting closer, but Southern Cal's Gould School of Law continues to keep a slim lead over the Paul M. Hebert Law Center of Louisiana State in this week's rankings of the top law schools in the U.S. It was a week of upheaval marked by some big jumps and some dizzying drops. Penn State (Dickinson) and Alabama drop out of this week's Top 20. Schools are, as always, ranked by ContractsProf's proprietary computer ranking software; last week's rank in parentheses. (Right: Cal-Berkeley Dean Christopher Edley, Jr., whose school moved all the way to third this week.)
1 (1) Southern California (Gould)
2 (2) LSU (Hebert)
3 (7) Cal-Berkeley (Boalt)
4 (8) Ohio State (Moritz)
5 (9) Wisconsin
6 (11) Boston College
7 (12) Kentucky
8 (3) Florida (Levin)
9 (4) Oklahoma
10 (13) Georgia
11 (5) West Virginia
12 (10) Oregon
13 (15) South Carolina
14 (14) Hawai'i (Richardson)
15 (16) Missouri-Columbia
16 (6) Texas
17 (20) Arizona State (O’Connor)
18 (-) Cincinnati
19 (19) Nebraska
20 (-) Miami
They’re in touch with the latest developments in law and practice. They’re dedicated to teaching and mentoring lawyers. They get very little money and less respect, but they routinely get high ratings from the students who sit in their classes.
Who are they? Adjuncts, of course. No law school can get by without them, and schools often tout their skills to students, who for some reason tend to like to take classes from those who are actually practicing what they teach. Yet they are all-but-invisible outside their own classrooms, and many tenure-track faculty have no idea who they are when they pass in the halls.
It takes a special kind of person to do that kind of work, and part of the ever-growing Law Professor Blogs Network empire is Adjunct Law Blog. The lead editor is veteran adjunct Mitch Rubinstein (St. John’s & New York LS), who’s also Senior Counsel to the New York State United Teachers. His co-editors are full-timers Eric Lustig (New England) and Gail Levin Richmond (Nova Southeastern).
Rubinstein’s specialty is employment law, so the blog occasionally has some things of interest to contract law types who aren't adjuncts, like this one about the employee fired for working for someone else while out on Family Medical Leave Act status.
More on Reed v. UND
Those of you who use the Epstein-Markell-Ponoroff contract law casebook teach the case of Reed v. University of North Dakota, 589 N.W.2d 880 (N.D. 1999). You might be interested in some background information.
Reed is a sad case, in which a young UND hockey player was required by his coaches to run in a 10-kilometer charity race as part of his conditioning program. About 200 yards short of the finish line, he collapsed from dehydration. Rushed to the emergency room, he eventually needed one kidney and two liver transplants. He sued both UND and the North Dakota Association for the Disabled, the group that had sponsored the event. His suit against UND was knocked out on other grounds, and his suit against NDAD had to overcome the fact that he had signed a liability release before the race. The player argued it was unenforceable for lack of consideration. No, said the court, there was consideration of the release, and therefore it was enforceable.
The hockey player was Jace Reed (left). Reed had been a high school star at Grand Rapids High School in Minnesota. In 1989 he was taken in the fifth round of the National Hockey League draft (86th overall) by the New York Islanders -- ahead of future NHL stalwarts like Pavel Bure (Canucks), Aaron Miller (Nordiques), and Dallas Drake (Red Wings). Instead of signing a pro contract, Reed opted to hone his skills at UND, a perennial hockey power that has won seven NCAA championships, three in the ten years before Reed joined. At UND, Reed played in 23 games his first two seasons, and was preparing to battle for a starting spot in his third year.
That ended with his injuries. During his hospitalization, the "big, tough defenseman" nearly died and dropped from 215 pounds to 145. Doctors were not sure he would even be able to return to school, let alone play sports. His hockey days were over. Ultimately, he was able to return to UND in the fall of 1992. The school's "Big Green Club" of athletic boosters raised the money to pay the remainder of his school expenses.
Contracts Spotlight: Eniola Akindemowo
LL.M, University of London (University College)
LL.B, University of Ife
Grad. Cert. (Higher Education), Monash University
Professor Akindemowo joined the faculty of the Thomas Jefferson School of Law in San Diego in 2006. She teaches Contracts and E-Commerce.
Professor Akindemowo brings 17 years of teaching th Thomas Jefferson. Immediately before joining Thomas Jefferson, she was a faculty member of the Monash University Faculty of Law in Melbourne Australia, where she was also an Associate Director of the Center for Law in the Digital Economy (CLiDE). She has been the recipient of several competitive research and travel grants.
She enjoys the fact that contracts are deeply rooted in everyday life, and that there is an abundance of material/examples - regular news clips, music, movies, common daily experiences - to use as teaching aids to enliven the classroom. Professor Akindemowo has a particular interest in comparative contractual law, given that she has taught Contracts from the perspectives of the US legal system, the English legal system, and the Australian legal system. Her other areas of interest and expertise are Information Technology Law, Internet Contracting, Payment Systems and E-Commerce.
Professor Akindemowo is the author of several articles that have been published in both student-edited, and peer-reviewed journals. She is the author of the first substantive book on IT law to have been published in Australia, and co-author of another on E-Commerce and the Law.[The be the next feature in the Contracts Prof Blog spotlight, send a note to Meredith Miller.]
October 2, 2007
Teaching Assistants: Geoffrey R. Watson
We broke some hearts in last week's post on Kirksey v. Kirksey, as several generations of contracts profs and students were forced to part with their fantasies regarding Isaac and Antillico (Angelico) Kirksey. Well, this week we have very good news. Levi Wyman lived! And his father may even have loved him!! Or so says Geoffrey R. Watson (left) in In the Tribunal of Conscience: Mills v. Wyman Reconsidered, 71 Tulane L. Rev. 1749 (1997).
Like Kirksey, Mills v. Wyman is a familiar case, involving a Good Samaritan (Mills) who cared for the dying Levi Wyman, estranged son of Seth Wyman. Mills wrote to Seth to inform him of his son's condition and to invite Seth to visit his son. According to the case, Seth replied that he could not come but would cover any costs Mills incurred in caring for Levi. Levi Wyman died, despite Mills' ministrations, and Seth's promise was not kept. Mills sued to enforce the promise. The Supreme Judicial Court of Massachusetts concluded that Seth Wyman had a moral obligation to pay Mills but no legal one and ruled for Wyman.
Watson finds fault with everything about the Massachusetts' court's opinion. Seth Wyman never promised to pay Mills, and Levi Wyman did not die until many years later. Moreover, if the facts were as the court construed them, Watson thinks the "court missed an opportunity to shape a more sensible doctrine of promissory liability." Id. at 1752. Unlike those killjoys, Casto and Ricks, who sucked all the joy and mystery out of Kirksey, Watson leaves some of the mysteries of Mills unresolved. For example, Watson's exhaustive historical research did not enable him to explain why the court treated Levi Wyman as a corpse in 1825 when as late as 1829 he was engaged in spending and wasting "his estate by excessive drinking and idleness." Id. at 1757. We do learn some dramatic details of Levi's illness, however. For example, his symptoms included bouts of delirium during which "he leaped out of a chamber window to the immminent hazard of his life" and for which he was treated by a "prominent Hartford physician" with "1 gallon spirits" and pills. Perhaps the Massachusetts court simply indulged the safe assumption that in the 1820s medical treatment for an illness such as Levi's was little more than an unpleasant prelude to death.
In any case, while Mills clearly thought he had received a promise from Seth to pay for services rendered, Watson views Seth's letter as far more equivocal, suggesting at best an intention to pay for future services. Id. at 1761. Watson suggests that Seth's failure to visit his dying son is best explained by Seth's advanced age (63) and frail health rather than by lingering ill-will towards Levi. Id. at 1762-63. In large part, Watson's critique of the Massachusetts court turns on his conviction that Seth made no promise. While the court viewed Seth as a man "willing to have his case appear on record as a strong example of particular injustices sometimes necessary resulting from the operation of general rules," Watson paints a different picture of Seth:
Wyman did not make the promise and thus never "determined" to break any promise. Wyman's "transient feeling of gratitude" might have been a sincere expression of willingness to pay for Levi's future expenses, but not his past ones. Wyman's "willingness" to stand as an example of "injustice" was more likely a determination to fight for his rights.
Id. at 1781. Hmmm. Do we like Seth better if we think he went to the Massachusetts Supreme Court to fight for his right not to pay a penny to the man who nursed his ill son back to health and then sought full reimbursement and not only reimbursement starting from the moment of the promise?
As to the doctrine of moral consideration, Watson thinks the law was much less clear than the court suggests, as Lord Mansfield had declared in a 1785 case that where there is a moral obligation and a promise, "the honesty and rectitude of the thing is a consideration." Id. at 1783. Lord Mansfield's position met with resistance in England, but was viewed sympathetically in America. In the 1813 case, Bowers v. Hurd, the same Chief Justice Parker who decided Mills, enforced a moral obligation, even where no antecedent debt was found. Id. at 1784-85. Reminded of Bowers in the context of Mills, Justice Parker remarked that the case "has been doubted." Id. at 1786.
In the final section of the essay, Watson summarizes theoretical approaches to the moral obligation doctrine, including: the revival or waiver theory, which seems to have informed the Mills decision (id. at 1790-93); the promissory restitution theory embodied in R.2d s. 86 (id. at 1793-95); Duncan Kennedy's concerns about the "legalization" of family relations (id. at 1795-96); and Richard Posner's economic defense of the moral obligation doctrine. (Id. at 1796). Watson finds all of these approaches inadequate in terms of explaining the behavior of courts. For example, theoretical approaches call for the enforcement of either a pre-existing obligation or of the subsequent promise, but courts do not consistently enforce either. The Restatement approach, as well as Posner's, suggest where the law ought to go rather than to describing the law as it is.
Watson has his own ideas for reform that draw on the doctrine of restitution. Watson argues that "[o]ur society suffers more from apathy than from altruism" (id. at 1801) and therefore proposes that the law create incentives to encourage Good Samaritans, like Mills and Joe Webb of Webb v. McGowin. Watson acknowledges that an expanded restitutionary doctrine would impose considerable judicial costs of enforcement. Id. The solution is simple, however.
A promise to fulfill a moral obligation should be binding regardless of whether it is supported by consideration. It should be enough for the plaintiff to prove that the defendant's promise was made with intent to be legally bound. The existence of a past "moral obligation" should be treated as prima facie evidence that the moral obligor does intend to be bound.
Id. at 1801. Intent to be bound would be evidenced, says Watson, not by the bizarre rigamarole of the consideration doctrine but by formal mechanisms, such as a writing or a seal. Id. at 1802. Watson concludes by predicting the ultimate demise of consideration doctrine: "Consideration doctrine, if indeed it was ever useful, has outlived its utility. The next century will see the end of consideration as we know it." Id. at 1804. With the end of the consideration doctrine, Watson foresees a future in which legal liability will be more closely linked to moral responsibility -- and the proposed reform would also enhance efficiency by making promises "more valuable at relatively little social cost."
The rule in Mills v. Wyman, says Watson is "eminently forgettable;" it is both "incoherent and inefficient." Id. at 1806. The facts of Mills -- from which we can create competing narratives -- are what remains.
October 1, 2007
In the News: October 1, 2007
The widow of a firefighter killed while working for the U.S. government will try to take her claim to the U.S. Supreme Court, after an appellate court ruled that her husband was a contract worker not entitled to regular government benefits.
United Parcel Service and the Teamsters Union have reached a deal that will allow the company to exit the Teamster’s multiemployer bargaining unit and get greater control over its pension costs.
Seattle SuperSonics season-ticket holders say they’ll sue the team for breach of contract, claiming they wouldn’t have bought the tickets if they’d known the team would leave at the end of the year.
Netherlands’ Boskalis Westminster and Korea’s Hyundai have signed a € 1.1 billion letter of intent to for work on a new offshore harbor in Abu Dhabi.
A private investigator is suing Joe (GoodFellas), Home Alone) Pesci for $103,000 in bills the investigator says he’s owed for helping provide security for the actor after his ex-wife allegedly hired a hit man.
The government of Alberta is thinking about unilaterally increasing the amount of royalties it collects under its existing leases with oil producers.
If you bought gold back in inflation-racked 1980, you didn’t get much protection -- the price of the yellow stuff today hit $746.50, the same price you paid for it 28 years ago. That $746 in 1980 is worth only $305 today.
Weekly Top Ten
Two new papers hit the list this week, both of them taking a philosophical approach to the subject. Following are the 10 most-downloaded new papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending September 23, 2007. (Last week's rank in parentheses.)
1 (1) Usury Law, Payday Loans, and Statutory Slight of Hand: An Empirical Analysis of American Credit Pricing Limits, Christopher Lewis Peterson (Florida).
2 (2) Explaining the Spread of At-Will Employment as an Inter-Jurisdictional Race-to-the-Bottom of Employment Standards, Richard A. Bales (No. Kentucky).
3 (3) Consumer Protection in the United States: An Overview, Spencer Weber Waller & Jillian G. Brady (Loyola-Chicago).
4 (7) Anti-Social Contracts: The Contractual Governance of Online Communities, Joshua Fairfield (Indiana-Bloomington).
5 (6) Renting the Good Life, Jim Hawkins (Independent).
6 (8) The Other Side of the Picket Line: Contract, Democracy, and Power in a Law School Classroom, Richard Michael Fischl (Connecticut).
7 (9) A Positive Law Theory of Contract, Fergus Farrow (Victorian Bar).
8 (-) Aboutness, Thingness, Models, and Understanding: A Pragmatic Ontology of Formal Systems in Law, Jeffrey M. Lipshaw (Suffolk).
9 (10) Consent and Exchange, Oren Bar-Gill (NYU) & Lucian Arye Bebchuk (Harvard).
10 (-) Morality, Social Norms and Rule of Law as Transaction Cost-Saving Devices: The Case of Ancient Athens, Anastassios Karayiannis (Piraeus) & Aristides N. Hatzis (Athens-Philosophy).
Radio Clips: Groucho on Alternative Defenses
Waldorf T. Flywheel: Any mail this morning?
Miss Dimple: Yes, there's a letter from the typewriter company. They say you haven't paid for the typewriter yet.
Flywheel: Why should I pay for the typewriter? You're the only who uses it.
Dimple: But Mr. Flywheel, I --
Flywheel: Never mind, take a letter to those cheap chiselers. Ah . . . Gentlemen . . . I never ordered that typewriter . . . If I did, you didn't send it . . . If you sent it, I never got it . . . If I got it, I paid for it . . . And if I didn't, I won't. Best regards.
"Flywheel Shyster & Flywheel"
Esso Five Star Theater, Feb. 13, 1933
September 30, 2007
The September issue of Vincent Polley's excellent MIRLN (MIscellaneous IT Related Legal News) is out. The regular report is put out by the ABA's Cyberspace Law Committee and Polley's firm, Dickinson Wright PLLC. You can find it at the MRLN Blog. There are always some interesting stories relating to contract law, but the report covers the gamut of Internet and computer law issues.