Wednesday, April 9, 2008
At left is Greg LeMond (in the yellow jersey) poised to win his third Tour de France. In 1986, LeMond became the first American to win cycling's most celebrated race. In 1987, he was nearly killed in a hunting accident. He and the 37 shotgun pellets still in his body, including two imbedding in the lining of his heart, returned to racing and won the Tour again in 1989 and 1990. Needless to say, he is a great hero to American cycling fans, and unlike the strangely omnipotent Lance Armstrong, LeMond was appreciated by European fans as well.
Greg LeMond was one of the first riders to speak out against doping in the sport. You would think that any company associated with the sport would kill to have such a distinguished and squeaky clean spokesperson. Yet, as the AP reports, bicycle-maker Trek is suing for permission to breach its endorsement contract with LeMond. Apparently, the estrangement between LeMond and Trek is a product of his anti-doping comments, including comments directed at Armstrong, who is reported to have close ties to Trek.
According to the AP, Trek president John Burke accused LeMond of reneging on a promise to curb "his comments about doping in cycling to focus on the brand." Burke claims that LeMond continued to speak out against doping and that LeMond's comments resulted in a decline in sales in the brand. Hmmm. I wonder what could have hurt the brand:
a. The fact that doping scandals have ruined the last two Tours and are threatening to keep the top team out of this year's race;
b. The entry of new manufacturers into the high-end bicycle market; or
c. Greg LeMond's principled stand against doping in competitive cycling.
Tuesday, April 8, 2008
Justice Roberts' opinion in Medellin v. Texas has been praised as "modest and fairly careful." But on the crucial question of self-execution, I find the opinion both bold and confusing. Bold, because I think the petition for cert. was improvidently granted in this case. As Justice Roberts notes in footnote 1 of the opinion, because Medellin confessed within three hours of his arrest, and because according to the ICJ's judgment in Avena, consular notification would have been timely if effected within three days, Medellin could not have been prejudiced based on the U.S. violation of the Vienna Convention on Consular Relations. The Texas courts so found on the merits of Medellin's habeas petition. The Court could have simply upheld that decision as satisfying the "review and reconsideration" required by Avena. End of the matter.
I find Roberts' opinion confusing on the vital matter of what it takes to make an international agreement self-executing. Or to put it in less technical language, when does an international agreement have direct effect as domestic law even without any congressional implementing legislation and under that test, must state courts give effect to the CISG in disputes where it provides governing law? Michael Van Alstine and Antonin I. Pribetic provide reasoned grounds for thinking that the CISG is a self-executing agreement under the test articulated by Justice Roberts.
Van Alstine writes:
Chief Justice Roberts' opinion in Medellin does not require express language for self-execution. Indeed, at one point he refers to the intent of the Senate upon giving its consent to treaty ratification. See slip op. at 12 (reasoning in part that the UN Charter was not self-executing because there was no "indicat[ion] that the Senate that ratified the U. N. Charter intended" it to have direct domestic law effect). Moreover, he quoted with approval Judge Boudin's opinion from Igartúa-De La Rosa v. United States, 417 F. 3d 145, 150 (1st Cir. 2005) to the effect that a treaty need merely "convey an intention that it be 'self-executing' and [be] ratified on these terms.” Slip op. at 9.
Antonin Pribetic applies Justice Roberts' reasoning to the CISG as follows, beginning with a quotation from page 9, fn 3 of the Majority opinion:
"Accordingly, a number of the Courts of Appeals have presumed that treaties do not create privately enforceable rights in the absence of express language to the contrary. [citations omitted]."
Clearly, the CISG does "create private rights" or does "provide for a private cause of action", in circumstances where both parties are from Contracting States (CISG, Art. 1(1)(a)) and the pre-requisites of applicability, internationality and territoriality are otherwise met (Art. 2-6).
These readings of Roberts' opinion are well-justified and should prevail.
But the dissent provides an alternative reading of Roberts' opinion which is not without support in that text. For example, the language from Igartúa-De La Rosa v. United States quoted by Michael Van Alstine above actually suggests to me (as it does to the dissent) that a court must look to language in the treaty conveying an intention that the treaty be self-executing. This reading is reinforced on page 18 of the opinion where Justice Roberts writes that "we do think it rather important to look to the treaty language to see what is has to say about the issue" of self-execution.
But as the dissent points out at page 12 (quite rightly in my opinion), it is unlikely that a multilateral treaty would ever address the issue of self-execution, as that issue is handled differently in different domestic contexts. Rather, treaties usually express the expectation (though language such as the U.N.Charter Art. 94's "undertake to comply") that states will take whatever measures are necessary as a matter of domestic law to make the relevant provisions effective as a matter of domestic law.
In short, I think a smart commercial lawyer whose client would prefer to have her contract governed by the U.C.C. could convince a trial court that Justice Roberts' opinion now means that because there is no language in the CISG that expresses or implies an intention on the part of the parties to the CISG that it be a self-executory agreement, it cannot be given direct effect by U.S. courts absent congressional legislation to that effect.
Monday, April 7, 2008
Having now carefully read the Medellin case, I have two more comments to make that relate to earlier posts on contracting with the U.S. government and the enforceability of international agreements as domestic law. Today, I will take up the first theme. The good news is that both the Medellin majority and the dissent agree that making it easy for third parties to predict when the U.S. will abide by its international obligations is a good thing. The bad news is that they come to different conclusions about how to facilitate U.S. cooperation in treaty regimes.
Justice Roberts, writing for the majority, chateracterizes the dissenting judges' approach to the issue of self-execution of treaties as entailing "an ad hoc judgment of the judiciary," which could result in differing outcomes even if the same international agreement was at issue in successive cases. Slip op. at 19. Justice Roberts rejects this approach:
It is hard to believe that the United States would enter into treaties that are sometimes enforceable and sometimes not. Such a treaty would be the equivalent of writing a blank check to the judiciary. Senators could never be quite sure what the treaties on which they were voting meant. Only a judge could say for sure and only at some future date. This uncertainty could hobble the United States' efforts to negotiate and sign international argreements.
Id. at 19-20 (majority opinion). Justice Breyer, writing in dissent, characterizes the majority as requiring language in a treaty specifying that the treaty is to be self-executing before it can be given direct effect as domestic law. Slip op. at 12 (Breyer, J., dissenting). After pointing out that few multilateral treaties would contain such language, since in some countries (e.g., the Netherlands) treaties concluded by the executive, are always given direct effect, even absent parliamentary approval, Justice Breyer gets a bit colorful:
In a word, for present purposes, the absence of presence of language in a treaty about a provision's self-execution proves nothing at all. At best the Court is hunting the snark. At worst it erects legalistic hurdles that can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.
Id. at 12-13. And there you have it. The Justices want to facilitate U.S. participation in international agreements, but each side is convinced that the other side's approach to the question of self-execution undermines such participation.
Tune in tomorrow for a discussion of why I am less certain than Michael Van Alstine and Antonin Pribetic that the self-executory nature of the CISG is beyond question.
Sunday, April 6, 2008
They work long hours, often around the clock. It's a job that estranges them from family and loved ones -- not only becasue of the demands of their work but also because the experience so alters them that they can no longer relate to people who have not shared their trauma. No, I'm not talking about military veterans. I'm talking about America's other heroes -- bloggers. Today's New York Times reports (on its front page!!) that bloggers are "toiling under great physical and emotional stress created by the around-the- clock Internet economy that demands a constant stream of news and comment." According to the Times, "bloggers complain of weight loss or gain, sleep disorders, exhaustion and other maladies born of the nonstop strain of producing for a news and information cycle that is as always-on as the Internet."
Consider my case. The picture of me at the lop left was taken before I started blogging. A bit nerdy, yes, but otherwise a fine physical specimen. At left, we have a picture of me taken today, after only 18 months of blogging. The weight gain is palpable; the droopy eyes suggest severe sleep disorders and exhaustion. Yup, all the symptoms of bloggerrhea are clearly visible.
As the Times notes, "[b]logging has been lucrative for some." For example, Blog Emperor Paul Caron (left) seems fit as a fiddle. But others toil away hoping to hit their bonus target of 100,000 page views a month. Matt Buchanan, who works for Gizmodo, pretty much sums up my day. According to the Times, "he sleeps about five hours a night and often does not have time to eat proper meals. But he does stay fueled — by regularly consuming a protein supplement mixed into coffee." His editor shows the compassion behind the blogging industry: “If I don’t hear from him, I’ll think: Matt’s passed out again,” said Brian Lam, the editor of Gizmodo. “It’s happened four or five times.”
Why do we do it? Because of the high we get when our efforts are appreciated by our viewers and by our colleagues. As one of my senior colleagues put it, "What's the Internet?"
Now, if the caffeine will just kick in, I can crank out a few more stories before I crashshshzzzzzzzzzzzzzzzzz
zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz. . . .
Friday, April 4, 2008
This blog has seen its share of radio hosts with contract issues. Now, consider the predicament of liberal talk show host Randi Rhodes, who has a show on Air America. At a recent (off air) appearance on behalf of Air America, the radio host called Hillary Clinton and Geraldine Ferraro "f**n whores." (Coincidently, Rhodes comment about Clinton uses contract as a metaphor: "Hillary is a big f**ing whore, too" ... "You know why she's a big f**ing whore? Because her deal is always, 'Read the fine print, a**hole!').
Without providing much explanation, Air America has temporarily suspended Rhodes' show from the air waves. Rhodes told the Huffington Post: "They are in breach of my contract and have damaged my hard won excellent reputation in the broadcast industry..."
[Meredith R. Miller]
No doubt influenced by yesterday's post on this blog about the ailing music industry, the New York Times today reports on what it calls "the ailing music industry," which has now teamed up with MySpace to start a new music site. MySpace Music will now be a joint venture with Universal Music Group, Sony BMG Music Entertainment and Warner Music Group. According to the Times, "The music companies are expected to make their entire digital music catalogs available for listening and downloading on the new site, which will be introduced later this year."
Once again picking up on a theme articulated in yesterday's blog post, the Times notes that "the industry is seeking revenue that does not come directly from its customers, like the ad-supported element of the MySpace service." In other words, the ailing music industry is trying to make money through means other than music.
The article also reports that Apple, through its iTunes Store, has surpassed Wal-Mart as the nation's leading music retailer, which explains why Wal-Mart is pressuring the record labels to lower the prices of CDs.
By the way, don't be fooled by my Google Doppelgänger; I don't have a dog in the FaceBook/MySpace fight.
Thursday, April 3, 2008
As this blog has previously reported, the music industry is being forced to move away from its reliance on a revenue stream coming from the sale of
records LPs CDs well, let's just say the music industry is moving away from reliance on a revenue stream coming from the sale of music. What then will the future of the industry look like? (Look to the left for a sneak peek.)
Today's New York Times reports that Rapper "Jay-Z plans to depart his longtime record label, Def Jam, for a roughly $150 million package with the concert giant Live Nation that includes financing for his own entertainment venture, in addition to recordings and tours for the next decade."
The Times provides the following details of the arrangement:
The overall package for Jay-Z also includes an upfront payment of $25 million, a general advance of $25 million that includes fees for his current tour, and advance payment of $10 million an album for a minimum of three albums during the deal’s 10-year term, these people said. A series of other payments adding up to about $20 million is included in exchange for certain publishing, licensing and other rights.
Given his earlier forays into clothing and nighclubs, Jay-Z is just the man to move the music industry beyond music. But Live Nation also includes in its stable other pioneers of the music industry, such as Madonna and U-2, who recognized long ago that a multi-faceted resume is what separates them from, say, the Bay City Rollers.
Tuesday, April 1, 2008
The New York Times recently reported that one benefit of blogging is the inevitable book deal that follows. So, it was just a matter of time before this blog's Jeremy Telman (pictured) exploited the publicity for his verse generated in this forum to sign a book contract for his Limericks for Lawyers project. Although Telman would not disclose details, he described his advance as "in line with my talent and status."
Regnery Press was apparently drawn to Telman's work due to his dutiful reporting on developments at the Press. Asked how Telman's book would fit in with the Press's reputation as a publisher of right-wing diatribes, Regnery's spokesperson explained, "He writes metrical verse; he must be conservative."
The Law Professors Blog Network (LPBN) is suing bloggers Franklin G. Snyder (left, top) and Keith A. Rowley (left, bottom) for breach of contract in connection with their blogging activities on the Commercial Law blog, allegedly in breach of contractual provisions committing both contracts professors to devote "their full time and skill exclusively to the ContractsProfs Blog." According to the complaint, although Snyder and Rowley are listed as Blog Editor and Contributing Editor respectively of the ContractsProfs Blog, they have joined "a ragtag crew of renegades seeking to undermine the LPBN's dominance in law prof blogging, promote communism and end civilization as we know it." Rowley is listed as a "Contributor" on the Commercial Law Blog; Snyder is listed as a "Guest."
Reached for comment at his vacation home on a private island, Professor Rowley argued that his agreement with LPBN came in the form of a click-wrap contract, the terms of which he never read. "Who does?" he queried.
Snyder, reached at his new offices in Texarkana, responded to the lawsuit as follows, "Look, just because I'm a guest, doesn't mean I'm a welcome one. Besides, -- STRIKE?!? HOW CAN YOU CALL THAT A STRIKE?!? IT WAS THREE FEET OVER HIS HEAD!"