January 6, 2010
Weekly Top Ten in Contracts Scholarship
January 5, 2010
Now in Print
Rick Bigwood, "Threats" versus "Warnings,"  N.Z. L.J. 385 (discussing economic duress).
Deanna N. Conn, When Contract Should Preempt Tort Remedies: Limits on Vicarious Liability for Acts of Independent Contractors, 15 Fordham J. Corp. & Fin. L. 179 (2009).
Danielle Kie Hart, Contract Formation and the Entrenchment of Power, 41 Loy. U. Chi. L.J. 175 (2009).
Martin Hogg, Perspectives on Contract Theory from a Mixed Legal System, 29 Oxford J. Legal Stud. 643 (2009).
Ola Kvaløy & Trond E. Olsen, Endogenous Verifiability and Relational Contracting, 99 Am. Econ. Rev. 2193 (2009).
Elizabeth Macdonald, Casting Aside "Officious Bystanders" and "Business Efficacy"?, 26 J. Contract L. 97 (2009) (considering rules English courts use to imply unexpressed contract terms).
Barbara McDonald & J.W. Carter, The Lottery of Contractual Risk Allocation and Proportionate Liability, 26 J. Contract L. 1 (2009).
Eliza Mik, The Effectiveness of Acceptances Communicated by Electronic Means, or Does the Postal Acceptance Rule Apply to Email?, 26 J. Contract L. 68 (2009).
Catherine Mitchell, Contracts and Contract Law: Challenging the Distinction Between the "Real" and "Paper" Deal, 29 Oxford J. Legal Stud. 675 (2009).
Juliet M. Moringiello & William L. Reynolds, Survey of the Law of Cyberspace: Electronic Contracting Cases 2008-09, 65 Bus. Law. 317 (2009).
Prince Saprai, The Principle Against Self-Enslavement in Contract Law, 26 J. Contract L. 25 (2009).
Guanghua Yu, The Role of Mortgages: A Case for Formal Law, 26 J. Contract L. 45 (2009).
[Keith A. Rowley]
Conair to Plaintiff: Dude, Get a Gmail Account!
The Times of Trenton reports on a not very surprising decision of a New Jersey appellate court in Canella v. Conair Corp., upholding a trial court dismissal of a wrongful discharge claim by a Conair Corp. employee who was terminated for using the corporation's e-mail for private correspondence. The termination occurred after the plaintiff received an internal memorandum supplementing the employee handbook with a warning that "misuse of e-mail will be grounds for immediate dismissal." This written notice was followed by a warning by plaintiff's supervisor that she must stop communicating with her former partner and co-worker via e-mail. Plaintiff continued her correspondence. In the e-mail that precipitated Canella's dismissal, she addressed her ex-lover as "one arrogant, cold, cruel bitch."
The trial court found that Canella was an at-will employee. But even if she weren't, the court found that Conair would have been justified in terminating her for her repeated violations of the employee handbook and for her insubordination in continuing her e-mail exchange with her former partner after being told to stop.
The full opinion can be found here. Based on the Appellate Division's opinion, the case seems exceedingly clear-cut. Canella was terminated in May, 2000. One wonders why it took nine years for a seemingly meritless claim to work its way to dismissal. I suspect there was more going on here than is reflected in the appellate decision. Many people use their work e-mail for personal purposes, and they do not get fired for it. I wonder if Canella thought she was being fired for being a lesbian and viewed Conair's grounds for termination -- abuse of the corporation's e-mail -- as a pretext.
January 4, 2010
Contracts Rights and First Amendment Rights
We have had occasion to muse on this topic before, in the context of Valerie Plame Wilson's suit, seeking a court order that would have permitted her to disclose in her autobiography certain facts already in the public record relating to her employment agreement with the C.I.A. Last week, the Los Angeles Times reported on another context in which contracts rights and First Amendment rights could overlap.
According to the report, The American Freedom Alliance is claiming that the California Science Center is violating its contractual and constitutional rights by canceling a scheduled screening of a film promoting intelligent design. The film, "Darwin's Dilemma: The Mystery of the Cambrian Fossil Record," explores the mystery of the so-called "Cambrian explosion," in which it appears from the fossil record that numerous complex species suddenly emerged without the niceties of Darwinian evolution. It is just one in a series of productions by Illustramedia, which based on its website, seems to produce only films relating to intelligent design. The feature-length film, which based on the trailer looks like it has high production values, was to be screened at the Science Center's IMAX theater on October 25th, together with a short pro-Darwin IMAX film, "We Are Born of Stars."
The American Freedom Alliance's story is that the Science Center cancelled the screening in response to pressure from the Smithsonian Institute and from University of Southern California professors. It seeks punitive damages, compensation for financial losses, a declaration that the Science Center violated the Constitution and apparently some form of prospective declaratory relief that would prevent the Science Center from refusing to rent its facilities to the AFA in the future. The AFA claims not to have a dog in the fight between Darwinian evolutionary biology and intelligent design. It simply wants to foster debate.
The Science Center's story is that it is entitled to cancel the contract because the AFA had violated the terms of the rental agreement by sending out promotional materials that were not submitted to the Science Center in advance as required. The AFA says that the promotion issue is not the Science Center's real reason for canceling the contract and this dishonesty, says the AFA, constitutes fraud, entitling it to punitive damages.
On October 14, a California Superior Court judge denied the AFA's request for an order requiring the Science Center to host the event. The screening took place the University of Southern California instead.
The Smithsonian's National Museum of Natural History became embroiled in a similar controversy in 2005 when it hosted a screening of a different film promoting intelligent design. The Smithsonian did not bow to pressure from the scientific community to cancel the screening, but it did everything in its power to distance itself form the event.