April 12, 2008
Twilight of the Ringnuts
"He has his half hours."
"It's better than it sounds."
For fans of Richard Wagner (left), there is no better way to spend 15-16 hours than listening to his singular Gesamtkunstwerk, "Der Ring des Nibelungen." That is why, as the New York Times reports, members of the Wagner Society of NewYork are hitting high C's in expressions of outrage over New York's Metropolitan Opera's decision to end its unofficial policy of giving Wagnerians the first pick of tickts for the Met's production of the Ring. Instead, the Met's regular subscribers and patrons will be given preference. As a consequence of this decision, Wagnerians contend that they may have to spend extra hundreds or even thousands of dollars to secure good seats for the last performance of Otto Schenk's classic production of the Ring in 2009.
The Met's Peter Gelb is unrepentant:
“Wagnerians are very emotional,” he said. “But I have to look at the larger picture of the Met’s interests,” he said.
Limiting “Ring” priority to patrons and overall subscribers is another incentive to raise money and sell subscriptions, Mr. Gelb said. “We felt we needed to reward people who are patrons or subscribers,” he said. He provided his own baseball analogy: It is like buying season tickets for the Yankees, which includes the bonus of watching them play the Red Sox.
Mr. Gelb also pointed out that the earlier practice was not official policy, and that the Met was giving ample advance notice. “We don’t want to offend Wagner lovers, certainly, but hopefully they understand we are trying to maximize attendance and ticket revenues at the Met.”
So, here's the potential contract issue. Is Mr. Gelb admitting too much when he acknowledges an earlier practice, even if that practice was not "official policy?" Perhaps the prices that members of New York's Wagner Society were paying for their tickets included the consideration that those tickets assured them a place at the head of the line for future productions.
April 11, 2008
The Future of CBS News: Lame Duck or Albatross?
All glory is fleeting. When CBS News hired Katie Couric a year and a half ago, the move represented a clear break with its past. Couric was sure to bring CBS into the 21st century by completing the People Magazinfication of the evening news. And CBS paid big time, entering into a five-year $75 million contract with Couric.
Now, as those clever headline writers at the New York Daily News report, CBS recognizes that the contract was a "Kat-astrophe." CBS News is mired in third place, where it was before Couric arrived. While all involved are denying rumors of Couric's imminent departure, the smart money indicates she will be gone before the next presidential inauguration.
The New York Times suggests that CBS's problems are broader than its ties with Kouric. Given the rise of the 24-hour news networks, the traditional network news divisions may no longer be able to compete. ABC News has clearly given up on breaking news. Meanwhile, the Times reports that CBS is rumored to be talking of a partnership with CNN.
CBS News Haunted by Its Past: The Dan Rather Suit
Dan Rather (pictured) sued his former employer last September. Yesterday, most reports suggested that CBS won something of a victory, with headlines such as "Dan Rather's CBS Lawsuit Loses Some Steam," "Court Dismisses Majority Of Claims In Dan Rather's Lawsuit Against CBS" and "Judge Dismisses Bulk of Dan Rather's Suit vs. CBS." In its web edition the New York Times offered a more measured headline, "Parts of Rather's Suit Against CBS Dismissed," but in the print edition, schadenfreude apparently won the day, as the headline reads "CBS Is Denied a Move To Dismiss Rather's Suit."
As you may recall, the former CBS anchor was fired for attempting to engage in journalism. Yesterday, New York State Supreme Court Justice, Ira Gammerman, set aside Mr. Rather's claims against individual defendants such as Sumner Redstone and Leslie Moonves, but left in tact Mr. Rather's breach of contract claim against CBS. Mr. Rather alleges that CBS breached its contract with him by effectively marginalizing him for more than a year after he departed from the evening news. Mr. Rather's fraud claim against CBS was dismissed.
I suspect that Justice Gammerman let Sumner Redstone off because of his competitive streak. Gammerman has been around forever and doesn't like his longevity to be upstaged. Gammerman well remembers the Roosevelt administration but Sumner Redstone well remembers the Lincoln administration.
April 9, 2008
Legal Recruiters and Mutual Assent
A legal recruiter sued Akin Gump for a placement fee, and a New York trial court recently granted the law firm summary judgment.
The recruiter sent an unsolicited email to a partner of the law firm, attaching the resume of a candidate with specialization in Korean law. The email stated that "[t]he interviewing of any attorney submitted to the firm will constitute acceptance of these terms and conditions unless [the recruiter] is notified to the contrary in writing prior to the first interview." The law firm partner stated he had no recollection of receiving the recruiter's email. A few months later, the firm hired this attorney and the recruiter sought a placement fee of more than $200,000.
The court granted the law firm summary judgment, finding the following undisputed facts:
While [the recruiter] may have been the first to submit [the attorney's] resume to defendant, there is no dispute that: (1) the resume was sent unsolicited; (2) it was sent to a non-hiring partner at the New York office, as opposed to either the recruitment office or to the Washington D.C. office, where the Korean practice was based; (3) there was no communication made by defendant to plaintiff acknowledging receipt of [the attorney's] resume or concerning his hiring; and (4) plaintiff never arranged an interview or had any conversation concerning either of the candidates with anyone at Akin Gump.
Thus, as a matter of law, the court held there was no mutual assent between the parties. And, moreover, even a contract was formed, the recruiter was not the "procuring cause" of the attorney's placement and, thus, there was no breach of contract.
Sivin-Tobin Associates LLC v. Akin Gump Strauss Hauer & Feld LLP, 107123/06 (Solomon, J.).
[Meredith R. Miller]
Trek Sues to End Contract with Greg LeMond
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.
April 8, 2008
Medellin and Contracts Revisited II
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.
April 7, 2008
Medellin and Contracts Revisited I
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.
April 6, 2008
Hazardous Duty Pay for Bloggers
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
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