Saturday, May 24, 2008
One of the overlooked advantages of tenure is that deans cannot trade law professors for players to be named later and the like. More specifically, as the USA Today reports, no dean would think of trading a law professor for ten maple bats. If professional ball players had the sort of protection we professors enjoy, pitcher John Odom would still be hurling for the Calgary Vipers rather than being sent down to the Laredo Broncos in return for ten maple bats, valued at about $650. Oh, the indignity!
Friday, May 23, 2008
Ellen DeGeneres to Senator McCain earlier this week, in an exchange that made McCain visibly squirmy. Her remark is apropos of my previous post concerning the marriage as contract rhetoric. Here's a transcript of their exchange:
DeGENERES: We're back with Senator John McCain, and so let's talk about it. Let's talk about the big elephant in the room. So -- by the way, I was planning on having a ceremony anyway this summer, even though it wasn't legal. But I feel that at least I get to celebrate my love. Then it just so happened that I legally now can get married, like everyone should. * * * And what are your thoughts?
JOHN McCAIN: Well, my thoughts are that I think that people should be able to enter into legal agreements, and I think that that is something that we should encourage, particularly in the case of insurance and other areas, decisions that have to be made. I just believe in the unique status of marriage between man and woman. And I know that we have a respectful disagreement on that issue.
DeGENERES: Yeah, I mean, I think that it's -- it is looked at -- and some people are saying the same -- that blacks and women did not have the right to vote. I mean, women just got the right to vote in 1920. Blacks didn't have the right to vote until 1870. And it just feels like there is this old way of thinking that we are not all the same. We are all the same people, all of us. You're no different than I am. Our love is the same.
To me -- to me, what it feels like -- just, you know, I will speak for myself -- it feels -- when someone says, "You can have a contract, and you'll still have insurance, and you'll get all that," it sounds to me like saying, "Well, you can sit there; you just can't sit there." That's what it sounds like to me. It feels like -- it doesn't feel inclusive...It feels -- it feels isolated. It feels like we are not -- you know, we aren't owed the same things and the same wording.
McCAIN: Well, I've heard you articulate that position in a very eloquent fashion. We just have a disagreement. And I, along with many, many others, wish you every happiness.
DeGENERES: Thank you. So you'll walk me down the aisle? Is that what you're saying?
DeGENERES: Well, my hope is someday it won't be called a contract; it will be called marriage.
On the one hand, you have gay marriage advocates attempting to distill marriage to an issue of contract law, and with that, framing the debate as a simple matter of allowing adults to contract without bias based on gender or sexuality. (Bouley's view in my previous post). On the other hand, you have the anti-same-sex marriage view, which says that gay people don't need marriage rights, because they can cobble together marriage rights with contracts. (McCain's position, above). To which the the same-sex marriage advocates say: we don't want a system of ad hoc contract rights, we want the equal footing of marriage. (Ellen's position, above). Everyone seems to be throwing around contract in a way that is supposed to suit them, and I don't think it works for either side of the debate.
Marriage it seems is not a contract, but rather a system of statutory default rules setting forth the bare minimum of the parties' obligations and what should happen in the event their relationship sours. Many of the marriage laws can be contracted around. But, unless there is a trust fund to protect, the overwhelming majority of couples do not have contracts (pre-nuptial agreements) but, rather, they take on (and probably many of them unknowingly) the system of statutory default rules. Which undermines the analogy/ rhetoric about marriage as contract. But it also undermines the argument that same-sex couples can and should (in McCain's words) "enter into legal agreements." They don't. It is expensive, time consuming, unromantic... And this is where the equality arguments come in. It seems that the argument should be that same-sex couples should be permitted to marry not because marriage is a contract but because it is a system of statutory default rules. Otherwise, the law is essentially saying that committed gay couples have to take on the expense and hassle of bargaining in a way that committed straight couples do not.
By the way, maybe McCain should have just danced:
[Meredith R. Miller]
Thursday, May 22, 2008
If you need a break from grading exams, check out the Foo Fighter's catering and hospitality contract riders at The Smoking Gun. Quite amusing, and definitely written with an audience in mind, including a clause which acknowledges: "Wow, rockstars ask for some stupid crap."
[Meredith R. Miller]
Wednesday, May 21, 2008
Business Week, picking up a story from the Associated Press, reports that a bankruptcy judge has approved a settlement in the Iridium case, reducing Motorola's liability from $4 billion to zero. According to The Register, Iridium was and is a mobile phone system based on connecting cell phones directly to satellites. Motorola made cell phones for Iridium's network of satellites. Iridium filed for bankruptcy in 2001, and its creditors sought recovery from Motorola on a number of claims, including breach of contract. The Register described the original damages estimate as a "whacking great sum." Love those Brits! The Register also suggests that the real cause of Iridium's bankruptcy has less to do with Motorola than with the extraordinarily high cost of making phone calls using satellite technology, which is also somewhat antiquated at this point.
This week, Judge James M. Peck approved a settlement agreement between Motorola and the creditors, according to which Motorola will pay nothing.
The introductory contracts course glosses over topics like the calculation of prejudgment interest (at least, my course does). Here is an excerpt from a recent case from New York's intermediate appellate court (3d Department) that demonstrates the potential complexity of computing interest. (This was a contract for "coal fly ash.").
On July 1, 2000, the parties entered into a contract under which defendant agreed to provide plaintiff with coal fly ash produced at its steam generating station in the Village of Johnson City, Broome County through December 31, 2004. Defendant provided plaintiff with coal fly ash on various dates between September 27, 2000 and November 20, 2000, but failed to do so thereafter. Plaintiff commenced this breach of contract action as a result. Following a trial, the jury rendered a verdict in favor of plaintiff and awarded damages in the amount of $184,456.94. Thereafter, plaintiff moved to fix the date of interest on the verdict as of July 1, 2000, the contract date, or alternatively, as of April 1, 2001, the date the summons and complaint were filed. Defendant, in turn, cross-moved to set aside the verdict or, alternatively, to have interest on the verdict computed in a different manner. Specifically, defendant sought to have interest computed on a monthly basis between December 2000 and December 2004 or from January 1, 2003, the intermediate date of the contract. Supreme Court declined to set aside the verdict and chose January 1, 2003 as the date from which to compute interest.
Plaintiff's sole challenge on appeal is to the date that Supreme Court utilized in computing preverdict interest. CPLR 5001 (b) provides that in a case like this where damages are incurred at various points in time, preverdict interest "shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date" (see e.g. Danka Off. Imaging Co. v General Bus. Supply, 303 AD2d 883, 886 ). The statute vests the court with broad discretion in determining a reasonable date from which to award interest (see Conway v Ichan & Co., Inc., 16 F3d 504, 512 ). In the case at hand, January 1, 2003 is the approximate halfway point between the time that plaintiff initially began to incur damages due to defendant's breach of the contract and the time that plaintiff ceased to incur damages due to the expiration of the contract. Supreme Court's selection of this date makes logical sense under the facts of this case. Accordingly, we find that Supreme Court chose a reasonable date from which to compute interest and did not abuse its discretion.
Pozament Corp. v AES Westover, LLC, -- N.Y.S.2d ----, 2008 WL 1901938 (N.Y.A.D. 3 Dept. May 1, 2008).
Tuesday, May 20, 2008
They started posting this week,and according to the opening post, the blog will cover numerous topics, including but not limited to the following:
We wish them well.
Thisis a useful teaching case because it covers both implied actual authority and apparent authority. The Church is bound by Bill Hogan's decision to hire his brother, Sam, to do some work in the church both because a past course of dealing made it reasonable both for Bill to assume that he could hire Sam and for Sam to believe that Bill could hire him. In this case, the authority issue was especially important because Sam fell off a ladder very soon after beginning work, and the church (or its insurer) was trying to avoid liability for Sam's injury.
Mill Street Church v. Hogan
Could Bill Hogan, employed by his church,
Hire his brother, who fell from his perch?
Yes, Bill's authority is wide
Even if just implied.
Thus the court leaves the church in the lurch.