November 6, 2008
Now in Print
- Michael J. Kelly, Recognizing the Breadth of Non-assignable Contracts in Bankruptcy: Enforcement of Nonbankruptcy Law as Bankruptcy Policy, 16 Am. Bankr. Inst. L. Rev. 321 (2008).
- Florencia Marotta-Wurgler, Competition and the Quality of Standard Form Contract: The Case of Software License Agreements, 5 J. Empirical Legal Stud. 447 (2008).
[Meredith R. Miller]
We're Number 30!!!
According to this post on TaxProf Blog, the ContractsProf Blog is ranked 30th among blogs edited by law professors. For some reason, while we are ranked 30th on visitors, we are unranked on page views despite the fact that we track such statistics. I didn't bother to add up our monthly page views for the months in question, but simply multiplying our number of visitors by our 1.4 page views per visitor, we rank 30th for page views as well as visitors.
What does this all mean? Clearly, it means that you, our readers, are the true heroes. There are other law-related blogs that might be more popular and there may be a few that are more esoteric. But there is only one blog that is ranked 30th and that is this one and so we thank you, our heroic readers who have put us in our place!
November 5, 2008
Prop 8 Passes in California, Raises Contract Issues
Proposition 8, which bans same-sex marriage, was passed by voters in California. Assume the following facts, which probably are not too far fetched:
After the California Supreme Court decision allowing same-sex marriage, a same-sex couple in California books a banquet hall for their wedding. After booking the banquet hall, but before the wedding date, Prop 8 passes. Same-sex couples can no longer legally marry in California. The couple wants to cancel the banquet hall contract. Assume there is no hell or high water clause, or any similar provision addressing what would happen if the law changed.
Does the couple have an impossibility/ impracticability defense if they renege on the banquet hall contract? Frustration of purpose? What do you think?
[Meredith R. Miller]
On Presidents, Puppies & Promises
This blog is, at least nominally, about contracts. The Restatement (Second) of Contracts § 1 defines a contract as "a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." So, really, this is a blog about promises.
Our President-elect Barack Obama made plenty of promises on the campaign trail. But there's one promise, in particular, I'll be watching to see him fulfill: the puppy. Obama promised his daughters that, whether or not he won, they'd get a puppy when the election was over. And, he even mentioned the puppy last night in his speech in Chicago: "Sasha and Malia I love you both more than you can imagine. And you have earned the new puppy that's coming with us to the new White House."
It may make his daughters very happy, but the puppy was also absolutely necessary for Obama's presidential image. What president in recent memory has not owned a dog? Millie Bush even co-authored a book. Seriously, what kind of legacy does a president leave if he has no artifacts for the Presidential Pet Museum?
And, no matter your political leanings, you have to admit the warm feeling you get when you conjure the image of the picturesque Obama family with a puppy. It pulls at your heartstrings.
I'll wager that quite a few sun visors found their way to Southeast Asia after the tsunami. One brutal news story after another, and it went on for weeks. The phone numbers of aid organizations would skitter across the bottom of the TV screen, and I recall thinking that if they wanted serious donations they ought to show a puppy. People I know, people who had never before contributed to charity, emptied their pockets when a cocker spaniel was shown standing on a rooftop after Hurricane Katrina hit, eight months later. "What choice did I have?" they asked. "That poor little thing looked into the camera and penetrated my very soul."
The eyes of the stranded grandmother, I noted, were not half as piercing. There she was, clinging to a chimney with her bra strap showing, and all anyone did was wonder if she had a dog. "I'd hate to think there's a Scotty in her house, maybe trapped on the first floor. What's the number of that canine-rescue agency?"
Really, whether red or blue at heart, who doesn't like puppies?
(Pictured above, Fala. FDR's dog).
[Meredith R. Miller]
Prank Call Costs English Broadcaster His Contract
Andrew Sachs (pictured) is a 78-year-old English actor and comedian. I'm not familiar with his complete body of work, but I would be surprised if he ever surpassed his performances as Manuel, the Spanish waiter, bellboy and foil to John Cleese in the latter's Fawlty Towers series. I did hear, however, that Mr. Sachs did an excellent series educating the English traveler on the wonders of Spain. In the latter series, Mr. Sachs surprised many viewers by revealing that in fact he speaks no Spanish.
The typical plot of a Fawlty Towers episode was that the over-confident and supercilious Basil Fawlty (Cleese) would get himself into some sort of predicament which he would then attempt to keep from his smart, shrewish wife, Sybil (Prunella Scales). For some reason, Sybil permits Basil to run the hotel, and he is thus able to enlist the employees, the charming, competent and beautiful American, Polly (played by Cleese's then wife, Connie Booth, who co-wrote the series with him) and Manuel (Sachs), in the deceptive plot du jour. Manuel's lack of English, coupled with Basil's lack of Spanish, provided for many delightful miscommunications. In the end, Sybil would discover all, Basil would be humiliated and Manuel would receive a beating. During the series, Sachs took a lot of abuse, as indicated in the clip below. But he did so willingly. He was in on the joke.
Alas, Sachs is in the news again as the butt of a joke, but this time he was placed in that position without his knowledge or approval when two younger comedians (though not nearly young enough to justify their conduct) filled air time on BBC radio with a series of prank calls directed at Mr. Sachs. According to this Financial Times report, the BBC apologized to Mr. Sachs after Russell Brand and Jonathan Ross left a series of obscene messages on Mr. Sachs' answering machine. The hilarious joke: the two claimed to be calling Mr. Sachs to inform him that Mr. Brand was sleeping with Mr. Sachs' granddaughter. Sky News here identifies the granddaughter in question as "an aspiring model." I'm sure it was really funny if you heard the program. Apparently 400,000 people did hear it, but few bothered to complain until the prank calls were reported in the newspapers. At that point, the BBC was flooded with complaints and several politicians, including Prime Minister Gordon Brown, took the time to criticize Ross and Brand.
As CNN reports, the BBC decided to suspend Mr. Ross without pay for 12 weeks, a suspension that would cost him the equivalent of $2.4 million. The New York Times today reports that Mr. Brand has also resigned from his position with the BBC, where he hosted a radio program. The Guardian reports that Mr. Brand has plenty of other options. The impact on Mr. Ross's career appears to be more significant.
I wonder what the basis is for Ross's suspension. Is there a morals clauses in his contract? It appears that his regular listeners were for the most part not the least offended by the prank. Indeed, some English media reports suggest that what Ross and Brand did was tame by the standards of American shock jocks. I think we know what it would take to get Don Imus off the air (at least temporarily) but what would it take to rid the airwaves of Howard Stern?
November 4, 2008
Election Day 2008
Just in case your daily routine involves reading this blog but does not involve noticing what day it is, we provide this public service reminder. Today is election day in the United States. Don't forget to vote!!
Business Associations Limerick of the Week: In re Wheelabrator Technologies, Inc.
This case is a bit a dud, but it presents a lot of law in very little space, at least in the edited version provided in the Klein, Ramseyer & Bainbridge casebook that I use, so I continue to like it. The case deals with a challenged merger transaction in which Waste Management acquired Wheelabrator. Although the board seems to have done everything right in terms of recusals of board members who might have had a conflict of interest and submitting the merger for shareholder approval, some shareholders sued alleging breaches of the duties of loyalty and care. I like the fact that the court found that a three-hour board meeting was evidence of sufficient care in this context, especially since the court found that a two-hour meeting was a breach of the duty of care in van Gorkom. So now I know that if I really want to provide a tough duty of care question for my students, I have the board meet for 2 and 1/2 hours.
As to the duty of loyalty claim, the court found that, in this instance, the nature of the loyalty claim was an interested transaction rather than a dominant shareholder transaction. Before the merger, Waste controlled only 22% of Wheelabrator, and the court found that 22% was not sufficient control to dominate. Since the transaction was ratified, the business judgment rule applied.
In re Wheelabrator Technologies, Inc.
Wheelabrator merged into Waste
A decision perhaps made in haste.
Business judgment applied
By the shareholders who'd been displaced.
November 3, 2008
Contracts Limerick of the Week: Battle of the Forms
At some point, the various battle of the forms cases all run together. Merchants exchange form price quotations, purchase orders, confirmations or invoices and then the courts perform the requisite 2-207 dance. It's fun to run the cases through the steps, but it does not inspire the poet. So, while the Muse sleeps, I offer this all-purpose Battle of the Forms Limerick:
To rhyme on the battle of forms
Would intrude upon poetic norms.
2-207 in verse
Might even be worse
Than an ode to the new tax reforms.