ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, January 15, 2010

Top Ten Conan Replacements

Dave_Chappelle  Conan is gone!  Long live Conan!  IMHO, Jay Leno is now damaged goods, especially with the younger, hipper crowd who can't think of anything better to do than watch network news and then The Tonight Show. Since Top Ten lists are a sort of late-night television staple, here is my top ten list of potential hosts for the time slot, whatever NBC now chooses to call it.  

#10: Tyra Banks.  She's had a daytime show and she always makes me laugh.

#9: Rosie O'Donnell.  She's had some talk show experience on her own show and on The View.  She's good at stirring up controversy, and when you're trying to attract viewers, the only thing worse than being talked about is not being talked about.

#8: Whoopi Goldberg.  She's done it all.  She's been successful in so many different media.  She can be lively and outspoken but she can also just be a good listener -- like when she tended bar on Star Trek.

#7: Orpah Winfrey.  Just say she's not up to it.  I dare you!

ChrisRock  #6. Chris Rock.  It would be worth it just to see now long he goes before drawing hefty fines from the FCC.  

#5 Dave Chappelle.  He'd be great if anyone can find him.

#4 Jon Stewart.  We know he's got the Sitzfleisch to get on the air every night, but he might have to be smart and mature more consistently.  He can do it, but he may not want to, and a lot of traditional NBC constituencies may be unwilling to stop associating him with liberalism and fart jokes.  

Ellen  #3 Jerry Seinfeld.  I think he's the closest thing my generation has to a Johnny Carson.  His act is clean and funny, but he's such a perfectionist about his material, it's not clear he can be funny doing bits written by others.

#2 Stephen Colbert.  By which I mean Stephen Colbert, the infinitely funny, inventive and talented comedian and not "Stephen Colbert" the Bill O'Reilly parody, although the latter can certainly put in appearances.  He's got incredible comedic range -- from the faux gravitas he often engages in on his current show to the absurdist stuff in which he specialized more when he was on The Daily Show

#1 Ellen DeGeneres.  Once again, she's shown that she's got the stamina to do a daily talk show, and after Finding Nemo and hosting the Academy Awards, she would seem to have established her ability to appeal to a national audience that could include people who are not entirely comfortable with her sexuality.  If they get uncomfortable, such people can simply close their eyes and pretend they are listening to Dory.  It would be a bold move for NBC to pick Ellen, but she's certainly got the talent and the energy that the network needs, and she would come with her own dedicated fan base.  

[Jeremy Telman]

January 15, 2010 in Celebrity Contracts, In the News | Permalink | Comments (0) | TrackBack (0)

Thursday, January 14, 2010

End of the Line for Dan Rather

Rather  We have posted before on Dan Rather losing his suit against CBS, but now New York's Court of Appeals has rejected Rather's appeal, and even he now seems to recognize that his $70 million suit against the network that employed him for 44 years is over.

We first reported on the suit in April 2008, after New York state court Justice Ira Gammerman dismissed Rather's claims against individual defendants.  As we reported in September 2008, the remainder of the case was then permitted to proceed.  Last September, we noted that New York's Appellate Division overturned that decision, dismissing Rather's appeal in toto.  

This week, as reported in the Daily News, New York's Court of Appeals affirmed the appellate division's decision.  Rather expressed disappointment at what he characterized as "a grave miscarriage of justice."

[Jeremy Telman]

January 14, 2010 in Celebrity Contracts, In the News | Permalink | TrackBack (0)

Wednesday, January 13, 2010

Conan the Contractarian?

ConanYesterday's New York Times reported that Conan O'Brien is being courted by the Fox Network.  Apparently Jay Leno's prime time talk show was not the hit NBC was hoping for, so they are carting his chin back to Jay's old 11:35 PM EST time slot.  Conan would still host The Tonight Show, but with a start time of 12:05 AM, the show would be better named The Late Show.  Is that name taken?  As the picture at left indicates, Conan is so angry at this treatment, his hair is on end.  But would he go so far as to jump ship to Fox?

Jay_LenoAccording to the Times, O'Brien might not be free to take Fox up on its offer.  The Times suggests that O'Brien's contract with NBC includes a non-compete clause that could prevent him from jumping to a rival network for a year or more.  In order for O'Brien to extract himself form this NBC contract, he would have to show that the 1/2-hour time change constitutes a breach of contract by NBC.  Unfortunately, for Mr O'Brien, his contract with NBC does not specify the time slot for The Tonight Show.

At least one commentator thinks that Conan's lawyers "screwed up" by failing to specify the time slot of The Tonight Show in his employment agreement.  At least one other commentator thinks the "screw up" insignificant because a court will assume that the parties intended for The Tonight Show to air in its traditional time slot. Unfortunately, this latter commentator can only cite this blog as her authority.  Of course, we were not privy to the negotiations that resulted in that contract, but certainly NBC's good faith could be questioned if Mr. O'Brien emerged from the negotiations in the reasonable belief that The Tonight Show would continue to air at its usual time.

Two updates

First, over at Concurring Opinions, Lawrence Cunningham has given the Conan O'Brien/Jay Leno controversy the full-blown IRAC treatment.  I think I'd give myself about a B- on the issue-spotting exam, since I didn't address the mitigation issues nor did I think about the effect of the controversy on third-parties.   But I still have the temerity to quibble with Professor Cunningham's conclusion that, on the whole, NBC would have the stronger position if the controversy were to end up in court.  Much might depend on what percentage of The Tonight Show's target audience has the stamina to pay much attention after the opening monologue, but I suspect that viewership declines drastically after the witching hour.  

One factor that might be crucial to a determination of which party has the stronger bargaining position is the rumor that Conan's agreement with NBC included some sort of $45 million penalty clause.  The Daily Beast here contemplates the consequences of a broad reading of that penalty clause.  In the report cited above, The New York Times, suggests that the $45 million would only have come into play if Conan had never gotten to host The Tonight Show.  But if NBC's intention all along was to bring Jay Leno back if his prime time show failed, was Conan really given a chance?

Second, today's New York Times reports -- on page A1 above the fold no less! -- that Conan has thrown down the gauntlet, pronouncing that he will not go back to early a.m. television.  His intention is apparently to soldier on until NBC throws a pile of money at him and allows him to get on with his career unimpeded.

[Jeremy Telman]

January 13, 2010 in About this Blog, In the News | Permalink | Comments (2) | TrackBack (0)

Weekly Top Ten in Contracts Scholarship


Lots of movement and lots of big names made the list this week.

RECENT HITS (for all papers announced in the last 60 days) 

TOP 10 Papers for Journal of Contracts & Commercial Law 

November 14, 2009 to January 13, 2010

RankDownloadsPaper Title
1180ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining 
Eric A. Posner
University of Chicago - Law School
2175Conflict of Laws and Choice of Law 
Erin A. O'HaraLarry E. Ribstein
Vanderbilt University School of Law, University of Illinois College of Law
3156Contract Interpretation Redux 
Alan SchwartzRobert E. Scott
Yale Law School, Columbia University - Law School
4124Duress in Contracts: An Economic Analysis 
P├ęter Cserne
Tilburg Law and Economics Center (TILEC)
595The Foundations of a Market Economy: Contract, Consent, Coercion 
Yulie Foka-KavalierakiAristides N. Hatzis
University of Athens, Department of Philosophy & History of Science , University of Athens - Department of Philosophy & History of Science
690On Uncertainty, Ambiguity, and Contractual Conditions 
Eric L. Talley
UC Berkeley (Boalt Hall) School of Law
785Contract Enforcement and the Harm Principle 
Brian Bix
University of Minnesota Law School
882Easterbrook on Copyright 
Randal C. Picker
University of Chicago - Law School
982Fixing the Home Affordable Modification Program to Mitigate the Foreclosure Crisis 
Jean Braucher
University of Arizona - James E. Rogers College of Law
1076Pre-Closing Liability 
Omri Ben-Shahar
University of Chicago Law School

Jeremy Telman]

January 13, 2010 | Permalink | TrackBack (0)

Tuesday, January 12, 2010

Smart Money Backs Fired Texas Tech Coach in Case of Suit Against His Former Employer

TexasTechSeal  Readers of this blog probably mostly associate Texas Tech with its University Press, which has brought forth some of the best formal poetry of the early 21st century.  Apparently, the school also has a sports program. 

An Associated Press report posted on states that Texas Tech's President fired the university's football coach Mike Leach for cause based on allegations that he had mistreated a student-athlete who has suffered a concussion.  Leach was fired one day before an $800,000 bonus would have been triggered.

On January 8th, Leach sued, as reported on, sued for breach of contract, fraud and defamation, among other things.  Texas Tech is claiming sovereign immunity to suit, but Leach is claiming protection under Texas' whistleblower statute and claims that under that statute, sovereign immunity does not apply. 

According to this report on, Leach has a good chance of succeeding in his lawsuit.  According to the report, Leach's best legal argument would be to claim that his conduct did not rise to the level that would justify a "for cause" firing.  The report suggests that the good people of West Texas will support Coach Leach regardless of any misconduct, and that attitude might force the university into a settlement.

[Jeremy Telman]

January 12, 2010 in In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Wesleyan Sues Former Chief Investment Officer

 According to Business Week, Wesleyan University is suing its former Chief Investment officer, Thomas Kannam, for fraud and breach of contract.  Kannam allegedly formed his own hedge funds while working for Wesleyan.  According to the Business Week report, Wesleyan is alleging that Kannam used Wesleyan resources to pursue his own entrepreneurial ventures.  He also allegedly made use of information available to him because of his position at Wesleyan for purposes of private gain.  

My attempts to find a copy of the complaint online were unavailing.  I was especially interested in doing so because the facts as reported do not make especially clear why the suit would sound in breach of contract and fraud rather than in breach of fiduciary duty.  We will try to provide updates if they arise.

[Jeremy Telman]

January 12, 2010 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)